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WHEN JUSTICE IS SEEN NOT TO BE DONE: The State vs Vladimir A Korolev and Another Case No.

. AR50/05 (Note the difference between when justice is not seen to be done and when justice is seen not to be done!) THE FACTS In 2003, Vladimir A Korolev and his wife, Elena, were charged with 26 counts contraventions of section 27(1)(a), read with section 1 and 30, of the Films and Publications Act 65 of 1996, section 50(1)(a) of the Child Care Act 74 of 1983 and indecent assault of their infant son and daughter. Section 27(1)(a) of the Films and Publications Act 65 of 1996 (Act) is the offence of the creation, production, importation or possession of a publication which contains a visual presentation of child pornography. Section 1 deals with the definitions of words and phrases used in the Act, while section 30 deals with punishments for those convicted of offences under the Act. In terms of section 1 of the Act, child pornography is defined as including any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of 18 years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children. The Act defined a publication to include any drawing, picture, illustration or painting and any print, photograph, engraving or lithograph and any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet. A visual representation was defined as a drawing, picture, illustration, painting, photograph or image or a drawing, picture, illustration, painting, photograph or image or any combination thereof, produced through or by means of computer software on a screen or a computer printout. The visual presentations forming the subject-matter of the charges under section 27(1)(a) of the Act included, literally, hundreds of pictures of Vladimir Korolev and his wife Elena engaged in acts of sexual conduct with their 8-year-old son and 3-year-old daughter, pictures displaying their genitals, as well as pictures and cartoons of unknown children (and adults) engaged in sexual conduct.

The Durban Regional Court found both of them guilty and sentenced Vladimir Korolevo to 8 years imprisonment and his wife Elena to 4 years imprisonment. Both then appealed against their convictions to the High Court, Natal Provincial Division, which upheld the appeal and set aside their convictions. Before dealing with the judgment of the High Court, it is necessary to understand the reality of child pornography. Legal definitions of child pornography have to be objective to ensure proper investigation and prosecution. But no legal definition, in any jurisdiction, describes the stark reality of child pornography. To understand the reality of child pornography, one should look at it from the perspective of the particular victim as well as of children in general. THE REALITY OF CHILD PORNOGRAPHY OFFENCES In most jurisdictions, the offences are the creation, possession and distribution of child pornography or child abuse images. But the offences do not describe the behaviour of child pornography offenders and the behaviour of an offender is directly linked to the offence and should be a matter for consideration by a court in determining both the guilt and punishment of a child pornography offender. Child pornography involves the actual abuse, brutalisation, torture and even murder of children. And its creation, possession and distribution should, therefore, be seen within the scope of what is defined as depraved indifference recklessness or reckless endangerment in the United States. Depraved indifference or reckless endangerment describes conduct which is so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime1. Depraved indifference focuses on the risk created by the defendants conduct, not the injuries actually resulting. Depraved indifference refers to a persons state of mind in recklessly engaging in conduct which creates a grave risk of harm conduct that shows utter disregard for the value of human life not because such a person means to cause harm but because he or she simply does not care whether or not such conduct will lead to harm. Depraved indifference to human life reflects a wicked, evil or inhuman state of mind, as manifested by brutal, heinous and despicable acts. It is evidenced by conduct that is wanton, deficient in a moral sense of concern, and devoid of regard for the life or lives of others .....depraved indifference is best understood as an utter disregard for the value of

Echoing the advice of the UK Sentencing Advisory Panel that an offender sentenced for possession of child pornography should be treated as being in some degree complicit in the original abuse which was involved in the creation of the images

human life a willingness to act not because one intends harm, but because one simply doesn't care whether or not grievous harm results.2 Child pornography is not a victimless crime. In a recent case, for instance, where a 36-year-old Surrey man was given a custodial sentence of thirteen and a half years after pleading guilty to 11 charges, the UK Surrey Provincial Court Judge said that the images involved in the case were .....wrenching and, frankly, agonizing to watch......a gross and continuing violation of the personal integrity and privacy of the child that cannot be adequately described in words..... to describe this material as disturbing would constitute a significant understatement ....the most disturbing aspect of the photographs and videos are the large number involving infants ...the possession of child pornography is not a victimless crime. It is an inherently serious, harmful and insidious offence, regardless of whether it involves any distribution. Those who possess child pornography encourage the production of such material by providing a market for it even without the exchange of monies. Thus, they directly contribute to the harm caused to children in its production. The Internet has exponentially facilitated access to child pornography to a degree which is frightening. The creation, distribution and possession of child pornography are brutal, heinous and despicable acts and certainly amount to depraved reckless indifference child abuse and exploitation and reckless endangerment in so far as the lives of children are concerned.

THE JUDGMENT DIVISION)

OF

THE

HIGH

COURT

(NATAL

PROVINCIAL

The High Court of the Natal Provincial Division upheld the appeal on the basis, inter alia, that: the State failed to prove at the trial of the appellants that the requirements prescribed in section 27(3) of the Films and Publications Act No. 65 of 1996 were complied with in obtaining the necessary search warrants for the search and seizure at the appellants home, and that the State did not prove that the exhibits sought to be put in .....are the original recordings.....We are also not in agreement with the finding by the learned Magistrate that the images were original images as it is common cause that these images were either downloaded from the Internet or transferred from a digital camera. The original images therefore would be those contained on

6 N.Y. 3d. And see, also, People v Register, 60 N.Y. 273, 469 NYS2s 599 and People v Russell, 91 NY2d 280, 287

the camera disc or the original source from which it was loaded onto the Internet site. THE ISSUE REGARDING THE SEARCH WARRANT Section 27(3) of the Act provides that No prosecution shall be instituted in respect of a contravention of sub-section (1) and no search warrant shall be issued in terms of the Criminal Procedure Act, 51 of 1977, in respect of a publication or film which may be involved in such a contravention, without the written authority of the Attorney-General concerned. It should be noted that this section only deals with requirements for any section 27(1) offence - it does not apply to the many counts of indecent assault of their own children. The State conceded that no written authority, as was required by section 27(3), was submitted to the court during the trial for the reason that the authority to determine prosecutions was, in fact, delegated to Senior Public Prosecutors in terms of the Director of Public Prosecutions Circular No 1 of 2000. The State established that the Investigating Officer, Captain Booysens, on the basis of that delegated authority, had applied for authority for the issuing of a search warrant to the Senior Public Prosecutor in the case and that the warrant was subsequently authorised by a Senior Magistrate. However, the High Court held that the matter of delegated authority was not proved and, therefore, ruled that, since section 27(3) of the Act was not complied with, any evidence obtained from what was seized from the Korolevs were inadmissible. This being the case the conviction of both of the appellants cannot be sustained and falls to be set aside. Search and seizure warrants are issues of constitutional rights. Section 14 of the Constitution entrenches everyones right to privacy, which includes the right not to have(a) their person or home searched; (b)their property searched; (c) their possessions seized; or (d)the privacy of their communications infringed. Section 35(5) of the Constitution provides that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. What is depressing, if it is correct that the State did not comply with section 27(3) through the delegated authority of the Senior State Prosecutor, is the lack of any reference in the judgment of the High Court to exceptions to the general rule affecting search and seizure warrants

and evidence obtained from a defective warrant or a warrantless search and seizure. This failure by the High Court to examine circumstances which might have rendered the evidence obtained by the States alleged non-compliance with section 27(3) of the Films and Publications Act as admissible, is a chilling suggestion that the court did not see the offences involving the sexual abuse and exploitation of children as serious and heinous crimes of depraved reckless indifference. The High Courts statement that inadmissible evidence remains inadmissible is not just wrong but is contrary to the exceptions to ensure the proper administration of justice.. Section 39 of the Constitution provides that, for the proper interpretation of the Bill of Rights, courts must refer to international law and may refer to foreign law on relevant issues. There is no reference in the judgment of the High Court in the Korolev case to exceptions either to the rules governing search and seizure warrants or to the admissibility of evidence that appears, at first sight, to be inadmissible. Section 35(5) of the Constitution clearly states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded only if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. Given the fact that the accused in the case questioned the admissibility of the evidence, the provisions of section 35(5) of the Constitution should have been thoroughly examined against the facts and the offences. There is not even a mention of section 35(5) of the Constitution in the judgement of the High Court in the case of the Korolevs! EXCEPTIONS TO THE RULES GOVERNING THE ADMISSIBILITY OF EVIDENCE Exceptions to rules are, generally, based, not on anticipation, but on experience in the implementation of a rule in changing circumstances and environments. A number of judgments in South African courts, as well as courts in the United States and Canada, outlined exceptions to the rule that evidence obtained from a warrantless search and seizure, or from a warrant that was found to be defective, are inadmissible, coming to the conclusion that, where evidence is obtained in a manner that infringes or denies or violates any constitutional right such evidence must be excluded if, having regard to all the circumstances, the admission of such evidence would bring the administration of justice into disrepute. To ensure that the administration of justice will not be brought into disrepute, the requirement for regard to all the circumstances should not be restricted only to the circumstances surrounding the obtaining of the evidence but should also include the nature and seriousness of the offences and the rights of victims of such offences. After all, the objective or purpose of the law against the sexual abuse and exploitation of children is not only to punish offenders. The trauma that children, in

general but the child-victims in particular, have to suffer and endure through their degradation by the creation, distribution and possession of child abuse images, as well as the indignation and apprehension caused to society by the very existence of such images, cannot be ignored by courts. Children (as well as society in general) have the right to be protected from abuse and exploitation and courts have the power to protect children from those who are likely to cause harm and are dangerous to their well-being and normal development.

CASES RELATED EVIDENCE

TO

THE

ADMISSIBILITY

OF

INADMISSIBLE

The primary role of the State in any criminal prosecution is to present the court with facts to establish, without doubt, the commission of the offence with which an accused person is charged. Courts, on the other hand, are responsible for ensuring the proper application of the law. In the 1998 case of S v Gumede and Others, the issue raised was the admissibility of evidence obtained in contravention of section 48 of the Criminal Procedure Act (51 of 1977) when police entered a premises, by breaking down then door, before requesting consent for entry into the premises. The court held that the evidence obtained, even though in violation of the law, would not render the trial unfair and would not bring the administration of justice into disrepute. Section 35(5) of the Constitution does not provide for the exclusion, by default, of any evidence obtained in violation of constitutional rights and freedoms. Evidence obtained unconstitutionally must be excluded only if such evidence would either render the trial unfair or is detrimental to the administration of justice, bringing the administration of justice into disrepute. In S v Madiba, another 1998 case, the question of the violation of a persons right to privacy was in issue when it became apparent that a search was conducted without a valid warrant. The court held that section 35(5) of the Constitution did not prohibit the admissibility of the evidence obtained by an unlawful search if the circumstances showed that the arrest and prosecution of the accused was more important for the proper administration of justice than his right to privacy. In the case of the Korolevs, the issue of any violation of the right to privacy, as provided for in section 14 of the Constitution, should have been examined within the context of all the circumstances related to the case, such as the fact that the laptop computer containing evidence of child pornography was handed over to a third party for repairs. It is

common knowledge that repairs of computers involved an examination of the computer to ensure that any data stored in the computer was not destroyed. The computer technician, therefore, had free access to any data stored in the computer. If a computer technician comes across any data in the computer which raises his suspicions about the commission of an offence under section 27(1) of Films and Publications Act, then that technician is under a legal obligation, on pain of criminal sanctions, to report such knowledge or suspicions to an official of the South Africa Police Services. Is there any violation of the right to privacy in circumstances where a person actually hands over evidence of a criminal offence to a third party especially where the third party is under a legal obligation to report knowledge of that evidence to the police? the fact that the images in the computer revealed evidence of the disturbing sexual abuse and exploitation of infant children and that, in such cases, immediate police intervention was critical to save children from further continuing abuse and exploitation and for consistency with the constitutional rights of children for protection from maltreatment, abuse and degradation; and the fact that there is no doubt that, given the nature of the offence, a valid search and seizure warrant would have been issued. It cannot be doubted that the police did have reasonable grounds to believe that a warrant will be issued under section 21 of the Criminal Procedure Act but that any delay in obtaining such a warrant would provide the accused with an opportunity to destroy the evidence and remain free of any criminal sanctions for a serious and heinous crime against children.

Even if the circumstances were not sufficiently compelling to convince the court that there was, in fact, no violation of the accuseds right to privacy, section 20 of the Criminal Procedure Act does provide for warrantless search and seizure where there are reasonable grounds to be concerned about the commission of an offence or what is seized will produce evidence of the commission of an offence or where there are reasonable grounds to believe that what has been seized would be used in the commission of an offence. In the United States vs Leon [U.S. 897 (1984)], the Supreme Court, applying the "good faith" rule, held that evidence seized by officers relying in good faith on a warrant was still admissible, although the warrant was later found to be defective. Evidence would have been excluded, however, if the police officer dishonestly or recklessly prepared an affidavit to seek a warrant or the issuing magistrate abandoned his neutrality, or the warrant lacked sufficient particularity. In Nix v. Williams [467 U.S. 431 (1984)] and Segura v United States [468 U.S. 796 (1984)], the Supreme Court ruled that evidence illegally

seized without a search warrant is admissible if the prosecution can prove the evidence would have been found and seized by legal means not based on evidence or information illegally seized. The information in the Korolev case was not obtained illegally but came from a report by the person who was asked by the Korolevs to repair their computer. That report was, in fact, in compliance with section 27(2) of the Films and Publications Act which made it an offence to fail to report knowledge of the commission of a section 27(1) offence, as soon as possible, to the police! A warrantless search and seizure can also be an exception to the rule where the situation demands police action to protect a person in danger, as was held in the case of Kerman v City of New York. Emergency situations or exigent circumstances can also provide exceptions to the rule that evidence obtained through illegal search and seizure are inadmissible, contrary to the statement in the judgment of the High Court in the Korolev case that Inadmissible evidence remains inadmissible a statement that is, in fact, contrary to section 35(5) of the Constitution! The probability, for instance, that a person under investigation for the possession of child pornography could easily destroy such evidence during the time the police are waiting for a search and seizure warrant, could amount to a valid emergency situation for an exception to the rule. In the case of the United States v Santana, for instance, the court found that preventing the destruction of evidence and the hot pursuit of a criminal suspect, to be valid reasons to conduct an emergency search without a warrant. The right to perform legal warrantless searches to prevent harm to the officers or others was also established in the case of Warden v. Hayden. In Thompson v. Louisiana and Mincey v. Arizona, courts established the right for officers to enter and search residences, without warrants, in order to render immediate aid to persons in need of assistance. The information provided to the police in the Korolev case by the computer repair person could have been argued as providing information that required immediate police intervention to prevent the further abuse and exploitation of children. Exigent circumstances appear when police have reasonable grounds to believe that there is an immediate need to protect their own lives or the lives of others, their property or the property of others and the search is not motivated only by an intent to arrest and seize evidence but there is some reasonable basis to associate an emergency with the area or place to be searched The exception to the search and seizure warrant rule is, therefore, valid where it appears a search or seizure was necessary to protect law enforcement or the community, or the prevention of the destruction of relevant evidence, or the escape of a suspect, or any other consequence

hindering law enforcement efforts, as was defined in the case of United States v. McConney, 728 F.2d 1195, 1199 (9thCir,), certiorari denied, 469 U.S. 824 (1984). According to legal experts,3 exigent circumstances are very common when dealing with electronic evidence because electronic data can be destroyed very easily. Data is not strictly vulnerable to just computer commands. Weather, such as humidity and extreme temperatures, physical destruction, and even magnetic fields can destroy electronic evidence. In the case of United Stated v. David, [756 F.Supp, 1385 (D.Nev. 1991)], for instance, a law enforcement officer had witnessed the defendant deleting files from his personal computer and seized the computer immediately to protect the evidence. The defendants actions had created an exigent situation and the seizure was necessary to prevent the destruction of relevant evidence. Information and communication digital technology has significantly and dramatically changed the lives of everyone but especially the lives of criminal paedophiles and child pornographers. In the words of Fred Galves, a law professor at the University of the Pacific, new and advanced technology is allowing criminals direct access to our lives a criminal does not have to confront you physically to steal your money since all he needs to access your bank account is a laptop and an Internet connection.....this technology has introduced crime as a career for many who previously may have found committing crime the old-fashioned way involved too much work or risk.....with the extent of ease technology has made on everyday life it has also made the art of committing crime that much easier. Digital technology has certainly increased the abuse and exploitation of children. The computer is now a tool not only for the accessing of child pornography but for targeting vulnerable children and for the creation and distribution of child abuse materials worldwide. Almost all offences related to child pornography involve digital technology. The search and seizure warrant rule is there to protect not only an individuals right to privacy, but also the right to a fair trial. In so far as the right to privacy is concerned, the case of Katz v United States [389 U.S. 347 (1967)] answered questions regarding the level of privacy that one should expect, discussed in some detail by Christopher M Logan. The case answered the question: does an individuals conduct reflect a real expectation of privacy? There is no doubt that all individuals retain a reasonable expectation of privacy with regard to information stored in computers under their control. However, is that expectation of privacy still alive when
3

See, for instance, Gathering Electronic Evidence Under the Guidelines of the Fourth Amendment Without Search Warrants by Christopher M Logan

a computer, with the stored information, is passed on to third parties, such as to a computer repair shop? How can there be an expectation of privacy when there is a legal obligation on all persons to report information or knowledge or even suspicion of a contravention of section 27(1) to the police? Can a person expect privacy from a person to whom the computer was handed over for whatever reason when the law makes it an offence for failure to report knowledge or suspicion of the commission of a section 27(1) offence to the police and to furnish the police with all relevant details? The Katz case held that, in such circumstances, there is a diminishing of the right to privacy. As Christopher M Logan observed, This obligation on the part of third party overcomes the expectation of privacy on the part of the owner of the data. Individuals, in fact, surrender their right to privacy when handing over a computer, with illegal data, to a third party because of the law which requires third parties to report, on pain of criminal sanctions, knowledge of such illegal data to the police. Given that the information regarding child pornography on his computer was reported to the police by a third party to whom that computer was handed over for repair, the High Court should have held that Vladimir Korolev had surrendered his right to privacy and that the search and seizure of that computer by the police was not in violation of his constitutional right to privacy. This is not to suggest that law enforcement should ignore the rules governing search and seizure but that courts should accept the fact that inadmissible evidence can become admissible under certain circumstances. In the Korolev case, the fact that the computer was handed over to a third party for repairs, which means giving that person access to whatever data was stored in the laptop, is a valid argument against any claim to violation of his constitutional right to privacy. And the person to whom the laptop was handed over was under a legal obligation to report any evidence of child pornography offences discovered in that laptop to the police. It can also be argued that the information reported to the police regarding child abuse and exploitation demanded immediate police intervention to protect any further abuse and exploitation of children. The police acted on information received about evidence of child abuse and exploitation from a third party who was in possession of the laptop. It is difficult to accept the Courts ruling that, because of a defective warrant, the police acted in bad faith!

THE ISSUE REGARDING ORIGINAL IMAGES


The finding of the High Court that the State did not prove that the images were originals reveals a disturbing ignorance of the nature of information and communication technology. One cannot transmit images

through the Internet but only numerical representations of images. There will never be images, even in negative format, in a digital camera a digital camera captures only numerical representations of whatever is being photographed. One cannot, therefore, speak of original images when dealing with images on digital cameras or the Internet! Until the introduction of digital technology, traditional images captured through photography were analogue images. A digital image, however, is a numerical representation recorded simply as a series of binary digits (bits) either one or zero with no value in between. A digital image is captured, in batches of ones and zeroes, by being focussed onto an electronic sensor made up of individual lightsensitive elements called pixels or picture elements. Unlike analogue images, digital recording technology provides no original image that could be produced in evidence. An analogue image always has an original, either in a negative or positive format, from which copies may be produced. For a digital image, the original consists of data recorded in memory, from which an image can be generated and because the recorded image is represented as a finite set of numbers, exact copies may be made. Therefore, any digital image can be thought of as being the original even if it is produced from a copied set of data every digital copy is an identical replica. [US Fed.R.Evid.1001(3) law, for instance, provides that printouts of data stored in a computer are originals.] In so far as analogue pictures are concerned, there can be only one original from which any number of copies can be produced and distributed as physical pictures. But a digital image is different there is no original physical picture but just batches of zeroes and ones. In order to see the physical image, one needs to use digital technology to decode the zeroes and ones into an analogue or physical image. There was no argument or doubt about the source of the images of the abuse and exploitation of children submitted as evidence of a section 27(1) offence it is common cause that these images were either downloaded from the Internet or transferred from a digital camera. The next sentence clearly shows gross ignorance about digital technology on the part of the High Court The original images therefore would be those contained on the camera disc or the original source from which it was loaded onto the Internet site. Digital cameras and the Internet do not contain, and cannot store, original images but only numerical representations recorded as a series of binary digits (bits) of ones or zeroes with no value in between. In order to see a physical image, one needs to use computer software technology to transform the ones and zeroes into a visible analogue image. The reference by the High Court to the judgement in the case of S v Ramgobin & Others (in 1986 years before the era of digital technology!) that audio tape recordings and video tape recordings must be proved to be the original recordings for admissibility as evidence clearly

demonstrates the ignorance of the High Court about the nature of the subject-matter in the Korolev case! Audio and video tape recordings are not digital recordings they do not contain numerical representations of what was recorded. A video tape contains analogue images whereas a digital video disc (DVD) contains numerical representations of images. The subject-matter in the Ramgobin case was not digital data stored in digital cameras or on the Internet but audio and video tape recordings and, therefore, has no relevance to the subject-matter in the Korolev case. The objective or purpose of criminal law is not only to punish offenders. The trauma that children have to suffer and endure through their degradation by the creation, distribution and possession of child abuse images, and the indignation and apprehension caused to society by the very existence of such images, cannot be ignored by courts. Children (as well as society in general) have the right to be protected from abuse and exploitation and courts have the power to protect children from those who are likely to cause harm and are dangerous to their wellbeing and normal development. The impact of rapidly advancing and converging digital technology on specific criminal acts cannot be grasped, understood and applied in terms of a quantitative extension of existing traditional laws and precedents but requires a qualitative supersession of any traditional law or precedent related to that form of specific criminal acts. Unfortunately, courts cannot protect children from abuse and exploitation if they remain ignorant of the nature of information and communication digital technology.

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