Failings noted in child porn case

A man wrongly accused of downloading explicit child pornography was charged on assumptions, bias and an incomplete investigation, his counsel says.

The Invercargill man, who has permanent name suppression, was arrested on December 15, 2020 after police were informed by the Department of Internal Affairs the material had been downloaded from his Mega cloud storage account.

Police prosecutor Sergeant Grant Gerken said at a criminal costs hearing in the Invercargill District Court yesterday that while the man did initially set up the account in August 2018, further evidence pointed to his former friend, Person A, as the offender.

"It seems the initial reason for setting up the account started around Person A wanting to upload pictures or videos, electronic material, relating to some of his [Person A’s] ex-girlfriends or girlfriends," Sgt Gerken said.

"There was nothing to indicate the material was illegal. That was the basis for setting up the account."

It was eight months later, in April 2019, that the objectionable material was downloaded.

In total 20GB of child exploitation material was accessed, Sgt Gerken said.

At his arrest, the man told police he believed no other person knew his email account or password.

After his first court appearance the man was released on bail with strict conditions, initially not being allowed to have contact with his two children.

The conditions were changed just before Christmas 2020, allowing him to see his children but only under the supervision of his partner.

While evidence began to point to his friend, Sgt Gerken said police still needed to be sure the man was not a consort in the criminal matter being investigated.

Further investigations revealed he was not, and the charges were dismissed on May 10, 2021.

"All the evidence suggests the defendant is innocent of the offence," Sgt Gerken said.

The man’s counsel, Peter Redpath, said while the man initially could not think of anyone who would know his email and password, he did mention Person A’s name to police when he was arrested.

However, the man never considered Person A would do something like that.

Right from his arrest, the man said he was innocent, had no knowledge of the material and believed he had been hacked.

He had given up his devices readily in the hope it would prove his innocence, Mr Redpath said.

Mr Redpath wrote an email to police conveying the man’s innocence and reiterating the belief he had been hacked.

The reply from Detective Senior Sergeant Kallum Croudis, of Dunedin, sent on the same day, stated he had only dealt with 35 hacked offences in 38 years, showed a "totally instantaneous dismissive response being taken" by police, Mr Redpath said.

"The police seem to be maintaining that they had enough to arrest and charge, and to sustain a conviction but I say it’s clear they did not," Mr Redpath said.

"They say they had all that without the need to seize devices and be able to find those identification links."

Person A had not been charged with the offending as all his devices had been destroyed on March 22, 2020, one day prior to police executing a search warrant that was issued on March 13.

"They’re saying you didn’t need to get any other information [to charge my client], but for Person A they haven’t charged him because of that one missing link ... the phone or whatever device it was, it’s not there any more."

Mr Redpath said the investigation fell well short of the expected standards and showed bias.

"It’s our position, sir, making assumptions with incomplete investigations runs the risk of poor decisions and heightens the risk of injustice."

The man is seeking $10,904.38 in costs which were legal costs incurred as a result of the initial arrest and in relation to yesterday’s hearing.

Judge John Brandts-Giesen reserved his decision.

karen.pasco@odt.co.nz

 

 

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