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Malcolm Granich at the Whangārei District Court during his trial for possession of objectionable images.
Photo: Supplied / NZME / Open Justice
Warning: This article discusses child sexual exploitation and may be upsetting to some readers.
An SD card passed from phone to phone – and later found to contain child sexual exploitation material – has become the centrepiece of a courtroom battle.
The man holding the device when officers seized it, Malcolm Granich, maintains he had no knowledge the card was inside the handset, let alone what was stored on it.
Granich has now faced a judge-alone trial before Judge Peter Davey in the Whangārei District Court, charged with 26 charges of possessing objectionable publications.
Investigators gave evidence that the illicit files were all uploaded to the card on the same day, a detail central to both sides of the case.
Police were originally alerted to objectionable images being shared on websites from a Wi-Fi address associated with Granich’s property in Maungatapere, Whangārei, in early 2021.
Detective Richard Soper brought Granich into the police station for questioning and asked him who had access to his phone in 2018.
Granich said he had his phone, but other people used the Wi-Fi address, including his brother-in-law, Ezekial Lowe.
Granich said he had not used chatrooms or dating sites since 2014, but had previously uploaded “d*** pics” to women he was talking to on Zeuss.
“I was young and dumb, and when you get older, you realise it’s not cool,” he said.
Soper questioned him about an image of a 4-year-old girl performing a sexual act that was uploaded onto the live streaming site Kick in 2018. It was allegedly linked to his email address.
“Did you upload this?” Soper asked.
“No,” Granich responded.
“Did this email belong to you?”
“Yes. I’ve still got it technically, but I never had a kick account with that email,” he said.
Soper told the court Granich believed it was Lowe, whom he had described as a “dropkick”, who had put the images onto Kick.
The interview finished, however, Soper was not happy with his answers and obtained a search warrant.
When police arrived at Granich’s address in December 2021, he had an Oppo cellphone in his hand.
That cellphone and several other devices were uplifted from Granich’s home.
The phones were searched, and an SD card was located in the Oppo phone, which held 20 pornographic images, 17 of which were objectionable.
The images were on an SD card, which had been on several phones.
Photo: Unsplash/ Thom
Among the recordings were videos, screenshots and images of children, as young as 4 years old, in sexual contact with adults.
One of the videos was 42 seconds long.
Both the Crown and defence accept the images are objectionable, however, it is the defence case that Granich was not aware they were there.
Among the files were also selfies of Granich posing or performing sexual acts with himself.
He was taken in for questioning again and was asked what kind of material he had on his devices.
‘Pretty average’
In that interview, he again pointed to his brother-in-law, Lowe.
“Zeek [Ezekial] lived at the address and had a book with passcodes and information in it,” Granich claimed.
Granich said he had all types of porn on there.
“People jacking off on chicks, pretty average,” he said.
Soper asked what age the people were in his images.
“Twenty-plus. Why are you looking at me like that?” Granich asked Soper before requesting a lawyer, which terminated the interview.
Granich was charged in 2022.
However, it has taken more than four years to reach a judge-alone trial following multiple pre-trials and application hearings.
At the recent judge-alone trial, Soper and police digital forensic analyst Jung Lee gave evidence about the SD card.
Lee said around 200 files had been bulk-uploaded onto the SD card with a creation date of 14 April 2021.
He said sometime between April and the seizure of the phone, the files had been deleted.
One of the files had a screenshot of a video that showed the volume bar matching the version of the Oppo phone in Granich’s possession.
However, Jung said there was no way to determine it was this exact Oppo phone that had taken the screenshot.
‘No way of knowing’
Lee also confirmed there was no metadata from the phones showing any search history for the videos or media player data.
“There’s no way for us to know which devices used the SD card?” defence lawyer Mathew Ridgley asked.
“No,” Lee responded.
“And there’s no way of knowing when the SD card was inserted into the Oppo?”
“Correct,” Lee said.
Lee said the data was unable to show if the SD card had played the videos and conceded that the files could have been uploaded onto the card before it was inserted into the phone.
Lee also confirmed there was no way to know where the data was uploaded from.
In closings, Danette Cole said the Crown did not have to prove the files were viewed, but that Granich had knowledge of the files, therefore had control over them.
Judge Peter Davey has reserved his decision.
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“The SD card contained information of him on there, his business pages, etc. There was also no evidence of anyone who had or stored items on the SD card,” Cole submitted.
Cole also said the images of Granich masturbating and in other sexual acts had been uploaded onto the card on 15 April.
“They say he had no possession after April 14, that is not true,” Cole said.
“There was also a QR card created on May 5, 2021, that shows he has ongoing possession of the SD card.”
Ridgley said the Crown’s case was circumstantial and the forensic analysis showed the SD card had been moved across multiple phones and pointed to a selfie of his wife taken in 2020.
“Plainly other people had access to storage,” Ridgley submitted.
“This SD card was in other phones prior to being in the Oppo phone.
“A Huawei, a Samsung at some point, then made its way into the Oppo phone.
“The only time he accepts it was in there was on December 10, 2021, when the phone was seized. There is no other evidence suggesting it was in the Oppo phone any earlier.”
Ridgley said Granich accepts he was in custody of the SD card, but that was not the point.
“Isn’t the point is we don’t know the source of the device that took that photo?” Ridgley asked.
“There is no reliable evidence to suggest or support that Granich engaged in this material whatsoever, and he was responsible for taking the screenshots.
“The Crown case falls short of establishing the charges beyond reasonable doubt.”
Judge Davey has reserved his decision until June.
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* This story originally appeared in the New Zealand Herald.