Summary Daniel George v The King [2022] NZSC 128 (7 November 2022) www.nzlii.org
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The Supreme Court of New Zealand dismissed an application for leave to appeal against a conviction of distributing an objectionable publication for sending a link to the manifesto of Brenton Tarrant.
Key Points
- Daniel George was charged with threatening to kill and distributing the manifesto of a political party
- The offence of distributing an objectionable publication is prohibited by ss 123(1)(d) and 124(1) of the Films, Videos, and Publications Classification Act 1993
- Possession is not an element of the offence and the application for leave to appeal was dismissed
- The case was heard in the Supreme Court of New Zealand
- The case was decided on 7 November 2022
- A High Court Order prohibits publication of the applicant's name, address, occupation or identifying particulars
Summaries
166 word summary
A M S Williams is the applicant's counsel for Daniel George v The King in the Supreme Court of New Zealand. A High Court Order prohibits publication of the applicant's name. On 7 November 2022, the Court dismissed an application for leave to appeal against a conviction of distributing an objectionable publication.
The offence was created by the combination of ss 123(1)(d) and 124(1) of the Films, Videos, and Publications Classification Act 1993 (the Classification Act). The applicant, referred to as "George", was charged with sending a link to the manifesto of Brenton Tarrant, who undertook a terrorist attack on two Christchurch mosques on 15 March 2019. The District Court found that George did not possess or distribute the manifesto. The Court of Appeal rejected arguments that possession was an element of the offence, noting George had no control over the publication at the relevant time. The High Court granted interim name suppression and the application for leave to appeal to the Supreme Court was dismissed.
423 word summary
The applicant, referred to as "George", was charged with threatening to kill. Additionally, he was charged with distributing the manifesto of a political party. The District Court found that George did not possess the manifesto and did not distribute it either by offering it or providing access to it. The Court of Appeal rejected arguments that possession was an element of the offence, noting that by sending the URL, George provided his associates direct access to the manifesto in its entirety. The Court of Appeal also noted that George had no actual or potential control over the publication at the relevant time. The High Court granted interim name suppression and the application for leave to appeal to the Supreme Court was dismissed. On 7 November 2022, the Court dismissed an application for leave to appeal against a conviction of distributing an objectionable publication. The applicant had shared a link to the manifesto of Brenton Tarrant, who undertook a terrorist attack on two Christchurch mosques on 15 March 2019, with a number of other people.
The offence was created by the combination of ss 123(1)(d) and 124(1) of the Films, Videos, and Publications Classification Act 1993 (the Classification Act). Section 124(1) prohibits carrying out any act mentioned in s 123(1), “knowing or having reasonable cause to believe that the publication is objectionable”. This offence is liable to imprisonment for a term not exceeding 14 years.
In the District Court, Judge Kellar dismissed the s 147 application. Following a sentence indication, the applicant pleaded guilty to one representative charge of distributing an objectionable publication. He unsuccessfully challenged this conviction in the Court of Appeal. He has now applied for leave to appeal to this Court.
The Court noted that the wording of the relevant provisions do not indicate that possession is an element of the offence. In this context, the Court also saw the 2015 amendment as providing “strong support” for Judge Kellar’s alternative conclusion, namely, that if possession was an element, it would have been referred to in s 122(2) which defines circumstances that do not constitute distribution. Thus, the Court held that possession is not an element of the offence and the application for leave to appeal was dismissed. A M S Williams is the applicant's counsel in the Supreme Court of New Zealand case of Daniel George v The King. The Criminal Procedure Act 2011 remains in force, and a High Court Order prohibits publication of the applicant's name, address, occupation or identifying particulars. The case was decided on 7 November 2022.