Queen v Warren [2016] PNSC 1 (2 June 2016)

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IN THE PITCAIRN ISLANDS SUPREME COURT
HELD AT ADAMSTOWN, PITCAIRN ISLAND

[1] Mr Michael Warren lives on Pitcairn Island. On 25 April 2010 he sent an otherwise innocuous email to various persons involved in the day to day administration of Pitcairn Island.

[2] The sending of this email triggered a long series of events which ultimately saw Mr Warren facing trial in the Pitcairn Island Supreme Court to answer numerous charges alleging the possession of child pornography and indecent articles.

[3] At the conclusion of the two trials on Pitcairn Island, on 2 March 2016, I found Mr Warren guilty of all the charges he faces. I indicated that my reasons for those verdicts would be delivered subsequently. These are those reasons.
Pitcairn Island

[4] A judgment of the Pitcairn Island Court of Appeal in this proceeding^[1] conveniently describes Pitcairn Island:

[5] When Mr Warren, then as now resident on Pitcairn Island, sent his 25 April 2010 email, he signed it as "Mike". But on its face it originated from an email address shown as kim-davis@hotmail.com. This feature of the email triggered some concern on the part of one of its on-island recipients. It was passed on to the then resident New Zealand Police officer on Pitcairn Island, Sergeant Medland.

[6] Sergeant Medland conducted some preliminary inquiries. As a result of what those inquiries revealed he subsequently obtained a search warrant authorising him to search both the Island Secretary's office (located on one side of the Adamstown Square) and Mr Warren's home, situated on the road or track known as Jack's Taty.

[7] On Wednesday 26 May 2010, those two premises were searched by Sergeant Medland. He was accompanied by a Pitcairn-born, island-based Police officer, and a social worker. A number of items were seized.

[8] Relevantly (a number of other items initially seized were later returned to Mr Warren or to the Island Secretary's office), Sergeant Medland seized two laptop computers, three external hard drives, and a number of compact disks.

[9] At the time Sergeant Medland was executing the search warrant at Mr Warren's home, he asked Mr Warren about the presence of child pornography:

[10] In early June 2010 these items (along with other material) were shipped to New Zealand. They were taken for analysis to the New Zealand Police's Electronic Crime Laboratory.

[11] There the items were examined and analysed by Sergeant Medland, who had also left the island in June 2010 and travelled back to New Zealand. Sergeant Medland had assistance from appropriately qualified personnel, and used appropriate technical equipment so as to preserve the integrity of the original computers, hard drives and compact discs. The examination and analysis did not in any way alter, change, affect or otherwise contaminate the originally seized electronic devices.

[12] In cross examination during trial the chain of custody, and the integrity of storage and access to these devices whilst at the Electronic Crime Laboratory, was traversed. Despite that, I am amply satisfied that both the chain of custody and the integrity of devices was appropriately maintained from the moment of seizure on Pitcairn Island, and thereafter.

[13] In broad summary Sergeant Medland described in his evidence what was found on the items uplifted from Mr Warren's possession:

[14] Sergeant Medland explained that he then divided the images he had identified into five categories based, as he said, on his understanding of the applicable English practice (this categorisation was not, in principle or in substance, challenged during trial):

[15] Following on from that analysis, Mr Warren was charged with 20 specific and representative counts under the applicable (English) Criminal Justice Act 1988, and (initially 5 but subsequently reduced to) 2 summary charges under s 8(1) of Pitcairn Island's Summary Offences Ordinance.

[16] Tables produced at trial conveniently summarise these charges and the levels into which each relevant file falls (reference to their location on various trial Exhibits have been deleted):
Counts in the Information under s 160 of the Criminal Justice Act 1988:

Count	Description	Level
1	Possession of an indecent film of a child Hc Vim04 — Babysitter And Girl 8Yo — 10Yo Having Sex with Older Sister (Anal Toys!) Incest — Pedo Mom Helps Dad Fuck His Tiny Daughter (B) (Pthc — 20m15S). mpg (20 mins 15 seconds)	Level 4
2	Possession of an indecent photograph of a child Luy9878fty.jpg	Level 1
3	Possession of an indecent film of a child (Pthc) Girl 8Yo Fakes lit S000 Cute 2008.mpg (3 mins 5 seconds) Representative of 744 photographs and 79 films	Level 1 Representative of 823 Level I images
4	Possession of an indecent photograph of a child Childlover Pedo Rape Kinderficker Missbrauch Vergewaltigen 6-11Yo Daugther Nock Nude Incest ficken (318).jpg	Level 3
5	Possession of an indecent photograph of a child 11yo in Heaven Dad Cums she loves it.jpg Representative of 5 photographs and 2 films	Level 3 Representative of 7 Level 3 images
6	Possession of an indecent photograph of a child Pictures from ranchi torpedo dloaded in 2009- pedo kdv kidzilla pthc toddlers 0yo lyo 2yo 3yo 4yo 5yo 6yo 9yo tara babyj (151)(2).jpg	Level 2
7	Possession of an indecent film of a child 8 Simon Cute 12yo Preteen Boy Looks At Porn Naked Nude Close Up Of Him Caressing His Wide Spread Legs Caressing His Boner Balls And Ass Pedo Young Child Sex Kdv Rbv Pjk.mpg (21 seconds) Representative of 67 photographs and 24 films	Level 2 Representative of 91 level 2 images
8	Possession of an indecent film of a child (PJK) - PTHC - KDV — RBV - PEDO - 14 - SK Starskysh - Boys -12yo - 13 yo - 26-13min.MPG (26 minutes 13 seconds) Representative of 34 photographs and 38 films	Level 4 Representative of 72 level 4 images
9	Possession of an indecent photograph of a child Kopie (2) von Pedo — 8Yo Girl Suck 8Yo Boy Dick pthc lyo 2yo 3yo 4yo 5yo 6yo 7yo 8yo 9yo 10yo 11yo 12yo hussyfan qqaazz Ism Isbar Is-island Ls-magazine kdquality vdbest(4)jpg	Level 4
10	Possession of an indecent photograph of a child Pictures from ranchi torpedo dloaded in 2009- pedo kdv kidzilla pthc toddlers 0yo lyo 2yo 3yo 4yo 5yo 6yo 9yo tara babyj (135)(1).jpg	Level 4
11	Possession of an indecent photograph of a child Childlover Pedo Rape Kinderficker Missbrauch Vergewaltigen 6-11Yo Daugther Nackt Nude Incest Fickent (182).jpg	Level 4
12	Possession of an indecent photograph of a child 13yo Hayley sucking Dads cock(1) childfugga childlover pthc collection.jpg	Level 4
13	Possession of an indecent photograph of a child Childlover Pedo Rape Kinderficker Missbrauch Vergewaltigen 6-11Yo Daugther Nackt Nude Incest Ficken (243).jpg	Level 4
14	Possession of an indecent film of a child 147.mpg (12 minutes 32 seconds)	Level 4
15	Possession of an indecent film of a child (((Kingpass))) St Petersburg & Cums On Her 11Yo (Moscow)(Nablot)(Ptsc)(Hussyfan)(Kleuterkutje)(R@Ygold)(Kiddy)(Video Lolita).mpg (17 minutes 58 seconds)	Level 4
16	Possession of an indecent film of a child (Hussyfan)(Pthc) Vicky 7yo and 10yo 69 Pedo Child Porno Lolita.mpg (14 minutes 11 seconds)	Level 4
17	Possession of an indecent film of a child 12yo boys playing sex - boyorgie0l kdv rbv pjk rft# s00 hmv brn gerbys Preteen boys boy sex starskysh yamad fuck pthc crimea kingpass p101 zz fkk.mpg (9 minutes 37 seconds)	Level 4
18	Possession of an indecent film of a child XXX— Incent —5yo raped, hymen penetrated — kiddy little girl young Porn real child sex baby pedo (no sound).mpg (1 minute 41 seconds)	Level 4
19	Possession of an indecent film of a child Vicky - Pedofilia 13 anos [pedo preteen 13yo Lolita BDSM bondage Ropes] 15m32s.mpg (15 minutes 32 seconds)	Level 5
20	Possession of an indecent film of a child (Pthc) 14yo Isabel — (Rape and Fuck) (R@vgold).mpg (21 minutes 16 seconds)	Level 5

The Criminal Justice Act 1988: Possession of an indecent photograph of a child

[17] As set out in the table above, 20 of the charges were laid under s 160 of the Criminal Justice Act 1988. In pre-trial proceedings, the Pitcairn Island Court of Appeal held that the relevant sections of this Act apply on Pitcairn Island under section 42 of the Pitcairn Constitution.^[2]

[19] Pursuant to s 7 of the Protection of Children Act 1978, s 160 of the Criminal Justice Act 1988 is relevantly interpreted so that:

[22] After the charges were initially laid in the Pitcairn Island Magistrate's Court (sitting in Auckland, New Zealand on 19 November 2010, after the New Zealand Minister of Justice granted permission under the Pitcairn Trials Act 2002 (NZ), for the Pitcairn Island Courts to sit in New Zealand in relation to this matter), the Crown and Mr Warren jointly filed a "plea and directions memorandum" on 29 September 2011.

[25] The unchallenged and substantive effect of these admissions at trial was therefore that the sole and determinative issue in relation to the Criminal Justice Act charges was whether Mr Warren had, in terms of s 160(2)(a) of that Act, proved that he had a "legitimate reason" for his admitted possession of the indecent photographs and video recordings of children. If he had proved that, he was entitled to be acquitted. If he had not, then convictions would follow.
Legitimate reason: defence submissions

[26] Mr Ellis, as counsel for Mr Warren, had in May 2012 encapsulated the substance of the asserted legitimate reason, when appearing before Her Ladyship Justice Lovell Smith in earlier pre-trial proceedings in this matter:

[28] However Mr Ellis, in his closing submissions, sought to enlarge upon the asserted legitimate reason. Mr Ellis submitted that after the internet came to Pitcairn Island in the mid 2000s, and Mr Warren being unfamiliar (so Mr Ellis asserted from the Bar) with things such as the age of consent, sexual abuse and the like, but having become aware of those matters as a result of earlier sexual abuse trials conducted on the island (referred to throughout the trial as the "Operation Unique trials") he wanted to learn about them. Mr Ellis submitted Mr Warren wanted to know more about those issues but because there was no one on the island he could talk to, as he didn't trust the resident social worker, and as he had heard a little about child pornography, he began to use the internet to discover, so Mr Ellis argued, what child abuse was.

[29] On the basis, he said, of Mr Warren's initial instructions, Mr Ellis submitted that Mr Warren had "inadvertently downloaded images of adult and child pornography", and was "disgusted and disturbed". Mr Ellis submitted, from the bar and solely on the basis of his client's instructions to him, that Mr Warren located child pornography relatively easily on the Internet, using file sharing software. Mr Ellis then asserted that, having done that, Mr Warren could not understand how the defendants in the Operation Unique trials had been convicted, yet those involved in the images he was seeing on the Internet "got away with it".

[30] Mr Ellis noted that only some 1,000 or so images and videos of child pornography had been identified, within the much larger number, in excess of 400,000 pornographic images and videos, assembled by Mr Warren over an extended period. This, he argued, supported his submission of accidental or inadvertent downloading. He submitted that overall Mr Warren was curious about child pornography, angry that it was about, and that those directly involved in it were not prosecuted. Mr Ellis submitted that Mr Warren was perhaps stupid and naive, but the uniqueness of Pitcairn Island, and the unavailability of regular or indeed any sexual partners for Mr Warren, meant that his not turning to or committing physical sexual abuse of children, but rather his resort to pornography, was to be commended.

[31] Identifying the two formulations of the legitimate reason already referred to, Mr Raftery submitted that both were untenable and unsupported by the evidence.

[32] He submitted that the cumulative effect of a number of relevant factual matters rebutted any suggestion of either a legitimate reason or indeed an accidental or inadvertent accumulation of child pornography, submitting rather that Mr Warren "was deeply into pornography, both adult and child pornography", and despite the limitations imposed by Pitcairn Island's unique physical and electronic/digital isolation, he had persisted in assembling and curating his extensive collection over an extended period of time.
Discussion

[33] The first, obvious, and insurmountable hurdle faced by Mr Warren is that there is before the Court no evidence upon which the Court could properly or at all conclude that Mr Warren has, as required by s 160(2), proved that he had a "legitimate reason" for possessing the indecent images and video recordings depicting children aged under 18 years.

[35] Mr Ellis, in his closing submissions, posed as the test for the Court to answer:

[36] Mr Warren did not give 'his version' in evidence. The only account he has given is the very short and unsupported assertion to Sergeant Medland on the occasion of the seizure of the electronic equipment from his home, where he said:

[37] It is axiomatic that counsel's submissions, even if they are said to be based on their client's instructions, are not evidence. The asserted accidental downloading was not able to be tested under cross examination. There is no other evidence to support it.

[38] In any event I accept the Crown's submission that the cumulative effect of all the proved circumstances in this case rebut comprehensively any suggested accidental downloading or retention of the voluminous child pornography Mr Warren possessed. These circumstances, in summary and as established by the detailed evidence given at trial, include:

[39] The cumulative effect of the above is, first, that Mr Warren has not proved to the required standard on the balance of probabilities, or indeed at all, that he had a legitimate reason for possessing any of the images or videos that are the subject of each separate count. Given that each of those images or videos are 'indecent' images or videos of a child or children, he is convicted on each count.

[40] Indeed the effect of the evidence is such that, had the Crown been required to disprove the existence of a legitimate reason or reasons beyond reasonable doubt, I would readily have concluded that the Crown had met that higher standard of proof.
The Summary Offences Ordinance trial: possessing indecent articles

[41] By agreement this Court sat with assessors to determine the two Summary Offences Ordinance charges, after the trial of the Criminal Justice Act counts had concluded.

[42] Following, with appropriate changes, the process set out in s 9 of the Justice Ordinance, a list of potential assessors resident on Pitcairn Island was identified and summonsed. Following the process as set out in s 29 of the Justice Ordinance, and allowing both the prosecution and the defence their rights of objection, two assessors were ultimately selected from those that attended. The two assessors were duly sworn in, and sat for the hearing of the Summary Offences Ordinance charges.

[43] Section 32 of the Justice Ordinance relevantly reads (with changes made to recognise that the charges were heard by the Supreme Court sitting with assessors):

[44] In relation to the two Summary Offences Ordinance charges, there is in that Ordinance no defence of legitimate reason for possession. But the Crown accepted at trial (given that the Summary Offences Ordinance charges were, by consent, heard in the Supreme Court by me as trial Judge sitting with two assessors) that if in the Criminal Justice Act charges the defence of legitimate reason was established, then a similar defence would be available to Mr Warren in relation to the summary charges.

[45] However as it transpired at trial, and in relation to the Summary Offences Ordinance charges, "legitimate reason" was not advanced as a defence. Rather the sole and determinative issue for trial in relation to those two charges was whether the two articles were, in terms of the statute, "indecent". If they were, convictions would follow. If they were not, the defendant would be acquitted.

[46] The Crown accepted that the proper test to be applied, both by the assessors when reaching their opinion as required by the Ordinance and subsequently by the Court, was whether or not the articles were grossly or extremely indecent or obscene. In this respect, the Crown submitted, correctly in my view, that the Court should properly be guided by the approach adopted in s 63 of the English Criminal Justice and Immigration Act 2008. Relevantly, that section provides:

[47] As already noted, the sole factual issue falling for determination in the Summary Offences Ordinance charges was whether or not the two relevant articles were, in terms of the ordinance, "indecent". At the conclusion of the evidence, I briefly summed up to the assessors, who then retired to the Island Secretary's office, under supervision of the Registrar of the Court, to consider their opinion.

[48] Upon the assessors indicating that they had reached their opinions, and after they had returned to Court, I asked each of the two assessors individually whether, in relation to the two charges separately, they were sure that the article in question was indecent. Each of the two assessors in relation to each of the two separate charges responded, and I recorded each assessor's opinion thus:

[49] As noted above, and pursuant to s 32(1)(b) of the Justice Ordinance, the Court is not bound by that opinion. I therefore now turn to my own consideration of whether or not the articles are "indecent".

[50] For convenience, the table summarising the substance of the two Summary Offences Ordinance charges is reproduced:

[51] The document in question in the first charge was an extended transcript of an internet chat between Mr Warren and another person, variously identified but for present purposes conveniently referred to as "C"; and extending over numerous days and different occasions.

[52] The film in question in the second charge was a short 24 second video clip, showing a naked and bound woman who is first digitally penetrated, and then has inserted into her anus a large hook attached to a rope descending from above her, which is then tightened as if to hoist her into the air.

[53] There was no dispute as to the appropriate approach, already referred to above, that the Court should take to deciding whether these articles are indecent. In summary:

[54] The Crown say that irrespective of who 'C' in the chat transcript actually was, Mr Warren was aged 45 and then 46 when he chatted to this person in an often predominantly and highly sexualised way. Given the content of the chat exchanges, the Crown say Mr Warren must have known or believed or thought that 'C' was a 15 year old English schoolgirl.

[55] In summary the Crown say that, in that context, this explicit material was created principally for Mr Warren's sexual arousal, and that the material recorded in the transcript relating explicitly to excrement of various types, in the context of its insertion into various orifices, is grossly and extremely offensive, disgusting and obscene, as is Mr Warren's encouragement of sexual activity on the part of a 15 year old child, and his encouraging of sexual contact with her similarly aged sister.

[56] The defence stressed that it is important to distinguish between conduct described and the words used to describe that conduct. The defence highlighted that Mr Warren is only charged in relation to possessing the words on the pages comprising the transcript, and not the conduct supposedly described on those pages. The defence submitted that the Court should readily infer that it was all completely made up, that none of what was described ever really happened, that there never was a 15 year old girl who did any or all of those things.

[57] So, the defence say, the whole thing is ridiculous and fanciful and completely made up, so that the Court should in the end conclude the words in the transcript document are not grossly or extremely indecent, especially when those words are balanced against the freedom of expression that the Pitcairn Island Constitution guarantees.

[58] The Crown submitted the short video clip was undoubtedly created, by its very nature, solely or principally for sexual arousal, and then that the insertion of the hook (of whatever material that hook was in fact made) into the bound and gagged naked woman's anus, followed by the beginning of the hoisting of her upwards, is extremely and grossly indecent.

[59] And the Crown say that the Court can and should properly infer that serious injury is likely to result from those actions, portrayed as they are in that film clip in an explicit and realistic way, especially given what is evident on the video of the woman's response to what was happening to her.

[61] The defence argue that, from the nature of the film and the words that appear after it ends, the Court should infer that the people it depicts are professional adult actors, who have, the defence say, consented to everything that is shown happening. Further, and given that, the defence submit that it is unlikely that the female shown would be injured by what happens to her, happening as it does, the defence say, on a film set with professional actors.

[62] The defence accept that the video is unpleasant and upsetting, but submit that it is not grossly or extremely indecent.
Discussion

[63] Applying the approach as set out above, and in conformity with the opinions delivered by the two assessors, I am clearly of the view that both the chat transcript and the video clip, individually, are "indecent".

[64] Both can properly be characterised as extreme pornography: the former by the frequent references to matters scatological, and the latter by its graphic depiction of extreme cruelty to a naked and bound woman in circumstances where (whatever material the hook was made of) serious injury was likely to result.

[65] It is difficult to conceive of a reasonable or rational basis upon which the contrary view could be reached. I readily conclude that both articles, individually, were obscene in the extreme, disturbing to watch or read, and were grossly and offensively indecent.
Result

[66] That being the view of both the Court and of the two assessors, Mr Warren is convicted on the two summary offences ordinance charges.

^[1] Warren v R, Pitcairn Island Court of Appeal, judgment delivered 23 October 2015.
^[2] See Warren v The Queen CA 1/2012, 23 October 2015 at [114] — [120].

Hearing:	1-4, 28, 29 February, 1, 2, 4 March 2016
Date of Reasons for Verdict:	3 May 2016
Issued on: Recalled on: Reissued on:	3 May 2016 31 May 2016 pursuant to Order made 31 May 2016 2 June 2016
Appearances:	Kieran Raftery for the Crown Tony Ellis and Graeme Edgeler for the Accused
In Attendance:	Graham Ford (Registrar) Maureen Dawson (Stenographer)

Q:	Is there child pornography?
A:	Yes (Warren indicates towards a hard drive sitting in a caddy on the top shelf).
Q:	Pictures or movies?
A:	Movies, I was downloading on lime wire, do you know lime wire?
Q:	Yes I know it.
A:	Well I was downloading what I thought was something else and it was child porn.

Level 1:	Images depicting erotic posing with no sexual activity, subject does not necessarily have to be naked.
Level 2:	Non-penetrative sexual activity between children, or solo masturbation by a child.
Level 3:	Non-penetrative sexual activity between adults and children.
Level 4:	Penetrative sexual activity involving a child or children, or both children and adults.
Level 5:	Sadism or penetration of, or by, an animal.

Charge	Charge/description
3	Possession of an indecent document C.....858.xml
22	Possession of an indecent film 3759_1 wmv

Charge	Charge/description
3	Possession of an indecent document C... ... 858.xml
22	Possession of an indecent film 3759_1.wmv (24 seconds)

Supreme Court of Pitcairn Islands

Queen v Warren [2016] PNSC 1 (2 June 2016)