High Court upholds important Internet decision, reinforces New Zealand law

26/9/2005

A Wellington High Court decision on Friday dismissing appeals made by a man jailed for distributing movies and pictures of children being sexually abused has reinforced New Zealand censorship law.

In July this year the Wellington District Court jailed 40-year-old Wellington student, for nine months and fined him $2,000. The man unsuccessfully appealed the conviction and the sentence.

Department of Internal Affairs Deputy Secretary Andrew Secker said that this had been the first case in which an offender had pleaded not guilty arguing that by using file-sharing software known as “peer-to-peer” applications he got around legal definitions used in the Films Videos and Publications Classification Act.

Mr Secker said that the case was important because most offending by New Zealanders now involves the use of such software and similar not guilty pleas are being entered in many other cases.

In the District Court the offender had argued unsuccessfully that he was not guilty based on technical arguments about how peer-to-peer applications work and the meanings of the phrases “makes available” and “for gain”.

Similar legal arguments had previously been used unsuccessfully about other ways of using the Internet but had not been tested in relation to peer-to-peer applications.

“The District Court decision had immediate effect, and was soon being referred to by a Judge and lawyers in other cases,” Mr Secker said. “To have the High Court uphold that decision reinforces it, giving it important precedent value.

“Such decisions are important tools for the Department and other agencies to use in future cases.”

Summary of offending

This case began in November 2003 when the Department received information from an overseas agency that a person who appeared to be a New Zealander was using the Internet to share electronic pictures of children being sexually abused and sexually posed.

The Department investigated and was able to identify the person asthe accused and track him to his home in Wellington.

Department Inspectors and a Police officer executed a search warrant in December 2003. The Inspectors seized his computer system and several videos.

The Department’s analysis of the computer system revealed about 300 objectionable electronic pictures and movies. They were of children being sexually abused and sexually posed, bestiality and extreme torture and cruelty.

Ten of those images were the subject of representative possession charges. He pleaded guilty to these 10 charges.

Of the 300 objectionable files, 49 were found in the shared folder of his file sharing software. Anyone in the world using the same software could download those files to their own computer. Five of these images were the subject of representative distribution charges. He pleaded not guilty to these five charges.

A defended hearing was held in the District Court in March this year and in May Judge Carolyn Henwood found him guilty, stating in her decision:

“The Court is satisfied that the prosecution have proved the ingredients of this charge in every respect and there is no doubt in the Court’s mind that the defendant knew exactly what he was doing. He knew the publications that were in his shared file were objectionable. He knew that other persons would have access to them if he made them available in his shared file and he did this in order to achieve further objectionable material from other kazaa users.” [Kazaa was the software he used.]

An appeal hearing was held in the High Court on September 13 and Justice Alan MacKenzie gave his decision on Friday afternoon, dismissing the appeal on all grounds.


Media contact

Andrew Secker
Deputy Secretary Phone 04 495 9329, Cellular 027 281 5211

Ronnie Anderson
Communications Advisor Phone 04 494 0570, Cellular 027 471 9464