The Star: July 15, 2021

Thursday July 15 2021 The Star
Latest Canterbury news at starnews.co.nz
NEWS 11
intent to harm ‘not there’, say police
He said the Police Prosecution
Service and Crown Law Office
provided legal opinions that
under the Harmful Digital
Communications Act 2015, De
Koker’s actions did not meet
the “evidential test” under the
Solicitor General’s Prosecution
Guidelines.
To prosecute under the act
police must be satisfied that the
person who posts the material
does so “with the intention that it
causes harm to a victim” and that
it actually “causes harm to the
victim”.
“The law in its present state
is that we have to prove that
the person posting the [video]
intended to cause harm to a victim,”
Murton said.
“Proof of the intent to cause
harm is not there. Therefore
based on my assessment of the
evidence, and the legal opinions
provided by the Crown as well
as police prosecutions, and the
further inquiries [completed] we
are unable to lay a charge against
Mr De Koker.”
Murton said De Koker’s actions
and explanation had been thoroughly
investigated.
De Koker told police he posted
the footage “simply to make
money” and that the video did
not show her identity, despite several
of the woman’s identifiable
features being clearly visible.
Although De Koker would not
ASSESSMENT: Under current legislation, proof of intent to
harm is not there, said Detective Inspector Greg Murton.
PHOTO: JASON OXENHAM/NZ HERALD
face criminal charges, police had
spoken to him at length about his
actions.
“Mr De Koker is now fully
aware of the perils and consequences
of uploading such content
to the internet without the
permission of the other party,”
Murton assured.
“He has undertaken not to do
so again.
“His intent, as he stated was not
to cause [the woman] any harm,
and he thought neither he or she
would be able to be recognised. It
turns out that was not the case.”
Murton confirmed there was
an “unfortunate” 11-week delay
between the woman’s initial
complaint and an officer being
assigned to investigate.
The delay was due to “a large
caseload of files awaiting investigation
and other serious crime
matters which occurred over that
period.”
“I have apologised to [the woman]
for the delay in an email and
intend to meet with her in person
in the next couple of weeks,” said
Murton.
“Since [the officer in charge]
took over the case it has progressed
in a timely manner.
“Much of the delay is in obtaining
the legal opinions, answering
questions – especially in a case
where the legal picture is not
clear and whether a charge can
be preferred under the existing
legislation.”
Murton assured the case was
taken extremely seriously and
the victim was at the forefront of
their investigation.
“This case was somewhat
unique in respect of the legislation
available to prosecute the
case, or not – this was the main
issue,” he said.
“Where there are learnings to
be taken from this case they will
be passed on to investigators.
“This case has identified a gap
in the legislation [around] the
posting of intimate visual recordings
without all parties’ consent.”
The victim was “disappointed”
by the decision.
“I feel like I have been failed by
the New Zealand justice system
and I am extremely hurt, upset,
humiliated, and disappointed by
every aspect of my ordeal,” she
told the Herald on Sunday, and
also reiterated to police in an
email.
“While I understand the
decision, I feel there has been
no justice for what I have had to
endure throughout the last nine
months of investigation and my
exploited body and genitals will
forever be on the internet without
so much as a genuine sorry from
the offender.”
De Koker told police and
Netsafe he was sorry but has said
little to the victim.
He initially maintained he did
not have to remove the footage.
“I can do whatever I want
with them. Nobody knows our
identity,” he told the woman via a
Facebook message.
In the civil court hearing Judge
Tony Gilbert said De Koker had
“obviously caused a lot of distress”
to the woman.
“You need to be careful because
there’s the possibility of this being
a criminal offence as well . . .
make sure you don’t do it again,”
he said.
“I can well understand [the
woman’s] upset at what has
occurred because while she
consented to the intimate visual
recordings being made, she very
certainly did not consent to
them being splashed about the
internet.”
De Koker spoke briefly at the
hearing.
“I do apologise,” he said, promising
to pay the ordered costs
“within a couple of weeks.”
Judge Gilbert said the woman
would be “surprised” at how
many similar cases came before
the courts.
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