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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Wales  QCA 70
CA No 275 of 2018
DC No 80 of 2017
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 9 October 2018 (Kefford DCJ)
15 April 2020
24 October 2019
Fraser and McMurdo JJA and Mullins AJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty by a jury of knowingly possessing child exploitation material – where a USB drive containing 100 image files and a laptop containing 45 image files admitted to be child exploitation material were found at the appellant’s residence, which belonged to the appellant – where witnesses who lived at the appellant’s residence gave evidence that nobody else used the USB drive or the laptop – where the files on the laptop were found in the “User” profile which could only be accessed using the appellant’s password – where witnesses gave evidence that they could not use the appellant’s laptop or desktop computer without him logging in with his password – where the appellant gave contradictory evidence that he gave his password to everyone in the house and all his friends – where the appellant gave evidence at the trial that he did not know about the files – where the appellant submitted that the jury did not properly consider incongruences within the evidence adduced at the trial – whether on the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty
MFA v The Queen (2002) 213 CLR 606;  HCA 53, cited
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, cited
The appellant appeared on his own behalf
D Balic for the respondent
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: The appellant was found guilty by a jury of knowingly possessing child exploitation material. He was convicted and sentenced to a wholly suspended term of fifteen months’ imprisonment. The sole ground of the appellant’s appeal against his conviction is that the verdict of the jury was unreasonable. That ground requires the Court to decide whether upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
- The Crown particularised the charge as being that on 12 August 2015 at Wishart in Queensland the defendant knowingly possessed child exploitation material which was located on a Sandisk USB Drive (which I will call “the USB Drive”) and/or an ASUS Notebook Computer (which I will call “the Notebook”). The parties formally admitted that 100 image files on the USB Drive and 45 image files on the Notebook were child exploitation material.
- It is convenient here to summarise the evidence at this short trial.
- A police officer, Mitchell, gave evidence that he executed a search warrant on the downstairs part of the property at Wishart where the appellant resided. The USB Drive was one of eight USB sticks that were in a box next to a desktop computer in the hallway of the downstairs part of the house. The Notebook was in the downstairs area next to the television in the lounge room. The appellant cooperated with police, including by providing passwords for the computers.
- Ms Torrisi gave evidence that she had met the appellant about eight years ago when they worked together in Gympie. They were good friends. Ms Torrisi said that she knew the appellant by the name “Neil”. She referred to him as Neil but she knew that his other name was Cornelius. Ms Torrisi and one of her sons resided in a unit with the appellant in Woodridge from about April 2015. In July 2015 they moved to the residence at Wishart along with her other son. Ms Torrisi and her two sons lived in the upstairs part of the house. There was a kitchen upstairs but they more often used the kitchen in the downstairs area. They also walked through the downstairs area to get to the laundry at the back of the house. Sometimes they ate in the dining room downstairs. One of Ms Torrisi’s sons watched the television downstairs. Ms Torrisi used the appellant’s desktop computer but she could not open it unless the appellant first logged in using his password. She never used the appellant’s laptop computer when she lived with him. Ms Torrisi had never seen nor used the USB Drive.
- In cross examination, Ms Torrisi agreed that at the Woodridge property she and one of her sons used the appellant’s desktop computer in the lounge room, but she said they couldn’t get into the computer without the appellant logging in. There were USB sticks at that property but she did not use them or see other members of the house using them. She never used the Notebook at the Woodridge property. She did not think her son had used it. At the Wishart property there were USB sticks belonging to the appellant. They were not locked away but no one used them. Everybody at the Wishart property could use the desktop computer but only if the appellant first logged in. It was put to Ms Torrisi that at Woodridge the appellant occasionally had friends over. Ms Torrisi answered that the appellant’s only friends were someone called Ryan, who lived in the house with the appellant, and Ryan’s girlfriend. He did not have any other friends. She had never seen the appellant have friends at the Wishart property.
- Mr Bond gave evidence that he knew the appellant by the names Cornelius and Neil. On 9 August 2015 Mr Bond moved into the Wishart property, in which he rented a room. He stayed in the second bedroom downstairs. Ms Torrisi and her sons resided upstairs. He did not recognise the USB Drive and had never used it. He used his own laptop. He had not seen or used the appellant’s Notebook. He had not used any of the appellant’s other devices. In cross examination Mr Bond said that he had never seen anyone else in the house using the appellant’s Notebook or USB sticks.
- Mr Mount, an investigative computer analyst working for the Queensland Police Service, gave evidence that he was a member of the International Association of Computer Analysts and had completed numerous training courses in relevant software. He had worked in computer forensics in the United Kingdom for five or six years before he commenced working for the Queensland Police Service in 2014. He conducted a forensic examination of the Notebook and the USB Drive. The USB Drive had one folder called “Private”, which contained numerous sub-folders in addition to several files that were not within the Private folder. The Notebook contained a single drive partitioned into two parts.
- An “XWAYS” report recording the results of Mr Mount’s forensic examination was made an exhibit. That report includes a list of the 100 files on the USB Drive and the 44 or 45 files on the Notebook that were admitted to be child exploitation material. The report records that the file path of a minority of the files on the Notebook includes reference to “Media Player” and “Cache”. Mr Mount said that those were files kept open by the computer after they had been viewed using “Media Player”. The file path for the majority of the child exploitation material files on the Notebook includes reference to “User” and “Neil Private”.
- Mr Mount gave evidence about various terms used in the XWAYS report. “Path” refers to the location of a file within a folder. The “created date” of a file is the date the file was put onto the device. (The created dates for the files on the USB Drive range between 9 January and 30 May 2015. The created date for most of the files on the Notebook is 14 May 2014 or 2 March 2015.) Mr Mount referred to several pairs of duplicate files found in different locations for which the created date remained the same. That suggested that the original file had been highlighted with a mouse and then dragged and dropped into another folder. The “modified date” is the date the file was created at its last location, not necessarily the original date it was created. The “access date” refers to the date when the file was last accessed, which is not necessarily when the file was accessed on the device where the file was found. (Most of the files on the USB Drive have an access date of 7 April 2015. Seventeen files have an access date of 30 May 2015. About half the files on the Notebook have an access date of 2 March 2015. The remaining files have an access date of 17 July 2015.) Access dates are not “particularly useful” because Windows does not treat them as it should.
- The Notebook could be accessed using the “User” profile only with a password. Alternatively, it could be accessed using the “guest profile” without a password. The Notebook had been accessed through the User profile 587 times and through the guest profile 27 times. The child exploitation material had been accessed within the User profile.
- In cross examination Mr Mount agreed that the files referred to as “cache” files which were opened with Media Player were not created by someone intentionally saving the files. He agreed that there was no way of knowing how the other files identified in the XWAYS report had been accessed. There were no details to show when and how they were accessed which might corroborate the unhelpful access dates, so there was no way of identifying the meaning of “accessed” when a date for such access was in a report for those files. He agreed that the USB Drive was not password protected and it did not require a user to log in. Upon a user opening a USB folder on a computer the user would not necessarily see the content of images on the USB; instead the user would see icons or folders. It was possible to move a file from its icon without seeing the contents of the file. Mr Mount could not find any data to allow him to ascertain who was using the USB Drive when images were accessed, modified or created. There was no way of ascertaining how the files originally were created or where they originated. Mr Mount could not ascertain the origin of any of the files on the Notebook recorded in the XWAYS report. There was a reference to the program “Tumblr” in file names. He had searched the Notebook to see if he could ascertain the Tumblr history. The history he saw did not marry up with the Tumblr image files in the XWAYS report.
- In re-examination Mr Mount stated that normally the word “Tumblr” in a file path would indicate that the Tumblr program had saved the files. It was possible that folders and files had been moved into different paths.
- The appellant gave evidence that he bought the USB Drive six or 12 months before he was arrested on 12 August 2015. He bought the Notebook at an earlier date. When they were seized the USB Drive was in a box on top of the computer desk, where all of his USBs were kept, and the Notebook was on a low lying cabinet plugged into the TV for use as a media centre.
- The appellant gave evidence that at the Wishart residence he initially lived with Ms Torrisi and her two sons. They moved to that address in early July 2015. Mr Bond moved in later. Ms Torrisi and her children would come down to the appellant’s kitchen and lounge room and use all of the appellant’s things. The lounge room was the only room in the house with a television and it was a common focal point. Everyone who lived at the Wishart residence and a large range of visiting people had access to the Notebook. The appellant’s friends came over and had access to it. The Notebook was password protected. Everyone in the Wishart house knew the password. The appellant made no secret of his passwords to any of his devices. The appellant’s friends still remembered his password.
- The appellant lived in the Woodridge residence from 26 January 2014 until July 2015. The appellant referred to three people who had lived with him at that address in addition to Ms Torrisi and one of her sons. Everyone had access to the USB Drive and the Notebook when the appellant lived at Woodridge. The appellant used the Notebook to access Tumblr to look at adult pornography. At that time he had a Tumblr account but he no longer had that account. He did not know the name of the account. The appellant could not recall ever using the USB Drive. He had never used a Tumblr account to look up pornography involving people under 18. No one had ever sent him pornography involving people under 18 using Tumblr. He had never used the Notebook to look up pornography involving people under 18. He had never saved such pornography on the Notebook. He did not have any knowledge in August 2015 that there was child pornography on the Notebook. He did not put it there and was not aware it was there. He had never saved child pornography onto the USB Drive. He did not know how the child pornography got onto the USB Drive or the Notebook. He had never searched for or sought out child pornography using any medium and he had never knowingly had child pornography in his possession.
- The appellant adhered in cross examination to the evidence he had given in examination in chief. He was cross examined upon statements he made when the search warrant was executed. The statements were recorded. When the police officer executing the search warrant said police were looking for child exploitation material the appellant said that in pornography on the USB Drive there were photos of guys and he believed they were 18, “But whether or not that – they actually are, I don’t know”. The appellant agreed there could have been pornography on the USB Drive with people under the age of 18 but he would not have known about it.
- The transcript of the recording records a statement by the appellant as “indistinct”. The recording was played and the prosecutor put to the appellant that in the indistinct portion the appellant said, “They might look younger or they might be younger”. The appellant replied that he could not remember the conversation. (In summing up to the jury the trial judge directed the jury that the relevant evidence was what they heard on the recording.)
- Shortly after that part of the recording the police officer asked the appellant whether there was anything on the Notebook that might be illegal. The appellant said that he had illegally downloaded videos. The police officer replied that he was mainly concerned with child exploitation material. The appellant said, “not that I’m aware of” and he added that he had had the Notebook for a long time, a paedophile had lived with him in Gympie, the appellant did not find out that the man was a paedophile until he left, and that man had access to the Notebook so the appellant did not know if there was anything on it. In cross examination the appellant denied that he said, “not that I’m aware of” because he believed that there might have been child exploitation material on the Notebook; he said it because everyone else in the house had access to the device. The appellant said his statement about having illegally downloaded videos referred to him having illegally downloaded movies that had been released at the cinema.
- In answers to questions about evidence given by Ms Torrisi the appellant said that she had lied in her evidence. In answer to questions about evidence given by Mr Bond the appellant said Mr Bond was only there for two days, the appellant had given him the password to the Notebook, and he would have had access to it.
- The appellant agreed the media he said was used from the computer was in the user profile that required a password to be accessed. In response to the prosecutor’s question why that media was not kept on the guest profile the appellant answered that there was no need for a guest account and he should have just closed it off because everyone had access. The prosecutor asked why the appellant had a password if everyone had access. The appellant replied that the point of the password was so that people he did not know and did not trust could not get access. The people to whom he had given free access were his friends and people he knew and trusted. The prosecutor asked why the appellant needed to have trust in those people before giving them the password and what was on the computer that the appellant needed to save from other people accessing. The appellant answered there was nothing. The appellant agreed that giving his passwords to people defeated the purpose of having a password to an extent. He maintained that he gave his password to all of his friends.
- The appellant said the movies he regularly watched at night time using the Notebook were primarily stored on an external hard drive so that it was not necessary to access the password protected User account in order to watch those movies. He used the Notebook primarily for that reason but the Notebook had other software on it that people could use.
- The appellant denied Ms Torrisi needed his assistance to access the Notebook. He said she had used a computer efficiently and effectively when he worked with her in a call centre in Gympie. She had used the Notebook and the desktop.
- The appellant’s attention was directed to item 110 in the XWAYS report. He agreed it was stored in “Neil Private” within “My Documents” in the “User” profile. When asked to explain how that image came to be in that folder the appellant answered that anyone else using the computer could have created the folder and a number of people who had access could have created it. The appellant could have created the folder himself if it had other items in it that were not child pornography, which he believed it did. The prosecutor referred to item 111, which was stored in a sub-folder named “Tumblr” within “Neil Private”. The appellant agreed that he might have used the Notebook to access Tumblr. He denied that he had downloaded that file from Tumblr into the Private folder. The prosecutor referred to item 116, which was in a subfolder called “Personal” within “Neil Private”. The appellant said he could not recall ever accessing that folder. He did not recall creating it.
- This Court is not to set aside a jury’s verdict on the ground that it is “unreasonable” without having “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”.
- Upon the whole of the evidence it would not have been unreasonable for the jury to think it highly improbable that, as the appellant’s evidence suggested, without his knowledge someone else uploaded and kept for a lengthy period some 45 child exploitation images in password protected folders identifying him (by the name “Neil Private”) on a computer he owned, kept in his residence, regularly used as a media centre, and allowed many other people to use. The jury could resolve against the appellant the inconsistencies between his evidence and evidence in the Crown case, including the significant inconsistency between the appellant’s evidence that he shared his password to the user profile in his Notebook with Ms Torrisi and Mr Bond and their evidence to the contrary. The jury could also take into account the appellant’s acknowledgment that he used the Tumblr program (which was referred to in the file paths of some of the files containing child exploitation material) and what the jury might think were defensive explanations he suggested to police for the possible presence of child exploitation material on his USB Drive and Notebook (for example, that without his knowledge some pornography he downloaded might have involved children). Upon the whole of the evidence it could not be said to be unreasonable for the jury to have rejected the appellant’s exculpatory evidence and, notwithstanding his evidence, to have inferred that the appellant knowingly possessed the child exploitation material.
- The appellant argued that the jury could not have considered all of the evidence and come to the conclusion that he was guilty. In support of that proposition the appellant developed two arguments. The appellant’s first argument is that the jury did not properly consider incongruences within the evidence adduced at the trial. Four of the 20 points the appellant articulated in support of this proposition rely upon his evidence that he did not know that the child exploitation material was on the notebook or the USB Drive, he used the notebook as a media centre for the television, he freely gave his password out to his friends, and he used Tumblr to access adult pornography and had since deactivated his account. In the circumstances I have described, the appellant’s own evidence, which the jury must have rejected, is an insufficient basis for this Court to set aside the verdict.
- The appellant made 10 points about the expert evidence given by Mr Mount. Three points concerned uncertainty about digital file dates; Mr Mount admitted there was a level of unreliability about the digital access dates, he was uncertain whether dates on the files were accurate, and he could not find actual access dates for the photographs. These points do not detract from Mr Mount’s evidence, including in particular his evidence that numerous files containing child exploitation material were found on the appellant’s USB Drive and Notebook and his evidence about some such files having been viewed and moved.
- The appellant relied on Mr Mount’s reference to an inconsistency in the way in which the XWAYS report counts the files found on the Notebook. This referred to Mr Mount’s evidence that the report might start the numbering system from zero as the first file, so that the reported number of files of 144 instead should be 145. The point is insignificant. That Mr Mount was unable to explain the origin of files moved into a new folder in the laptop or Tumblr image files mentioned in the XWAYS report also does not deny that the files were on the appellant’s Notebook or detract from the available inference that the appellant knew as much. Mr Mount’s agreement that the “cache” files were not intentionally saved is consistent with his evidence that those files were created when the originals of them were opened. That Mr Mount agreed that anyone who had access to the USB Drive could have saved the photographs, it was possible for images to be stored on the computer without the owner’s knowledge, and the images did not marry up with internet usage shown on the computer, were points for the jury to consider, but these matters did not preclude the jury from inferring that the appellant knew that the child exploitation material was stored on his Notebook and USB Drive.
- The appellant pointed out that he cooperated fully with the investigation. In this respect the evidence of the investigating police officer was that upon execution of the search warrant the appellant was quite cooperative and showed police where all of his electronics were, he did not try to hide anything, and he gave correct passwords. Those were matters for the jury to consider. The jury also could take into account the context in which the appellant cooperated, in which (as the transcript of the statements made when the warrant was executed suggests) from the start police made it clear that they would seize all of the appellant’s electronic equipment and the appellant supplied his passwords after police had explained that he was required to do so to avoid committing an offence.
- The appellant challenged Ms Torrisi’s testimony. The appellant’s contention that she was not clear about basic issues and often contradicted herself is not supported by the references in the transcript he gave; the inconsistency between Ms Torrisi’s reference to living in Mt Gravatt and her subsequent reference to living in Wishart lacks any apparent significance, as does her evidence about the extent to which she and her sons were in the downstairs area.
- The appellant argues that Ms Torrisi misled the Court about who lived in the Woodridge house and when. The appellant refers to Ms Torrisi saying “Not really, no” when asked whether the appellant’s friend Ryan’s partner lived in the Woodridge house when Ms Torrisi lived there with one of her sons. Ms Torrisi also said that she knew Ryan had a long spell in hospital which was why she hardly saw him for most of the time she was there. The appellant’s argument upon this point relies upon suggested facts for which there was no evidence at the trial. Even if the appellant’s contention that additional evidence would show that Ryan paid rent and his medical paperwork could be provided is correct, that would not require a conclusion that Ms Torrisi misled the Court, particularly in circumstances where the evidence on which the appellant relies relates to Ryan’s partner and not Ryan himself.
- The appellant’s contention that Ms Torrisi admitted that she was able to use the technology overstates her evidence, in which she said that she did use the computers but “I wasn’t really computer literate and I couldn’t get into the computer unless he’d logged in”.
- The appellant argues that Mr Bond’s evidence that he was present at the Wishart house when a search warrant was executed on 12 August 2015 contradicts the evidence of the police officer that no one else was present. The evidence of the police officer is less definite; the answer given by the police officer responded to a question whether he recalled anyone else being in the residence at the time. Nor does the evidence establish that in the course of execution of the search warrant the police went into Mr Bond’s room or must have encountered him if he were in the house. The appellant argues that because, on Mr Bond’s evidence, he was only in that house for a few days he could not have familiarised himself with it nor seen whether any visitors came over. In this respect the appellant refers to evidence given by Mr Mount that the last time someone logged into the user account on the Notebook was 9 August 2015. For those reasons Mr Bond’s evidence was less significant than Ms Torrisi’s evidence, but it remained the case that the jury could accept Mr Bond’s evidence and reject the appellant’s evidence that he gave Mr Bond the password to the Notebook and Mr Bond used that device.
- I conclude that upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that, notwithstanding the appellant’s sworn denials, he was guilty of the offence of which he was convicted. It follows that the appellant’s only ground of appeal is not established.
- The appellant’s second argument is that the jury could not make an accurate assessment about the facts of the case because they were not able to view the entire range of evidence. He contends that his “legal team” did not “adequately” present his defence because they did not tell him that he could “present” evidence in addition to giving testimony, they did not call witnesses to give evidence who were prepared to testify, and they did not follow instructions when asked to point out Ms Torrisi’s misleading statements. These contentions are not relevant to the question raised by the ground of appeal whether the verdict was unreasonable. Nevertheless, I will discuss them.
- The new argument depends upon the Court giving leave to admit evidence that was not adduced at the trial. The Court received the evidence for the purpose of making a decision whether or not leave should be granted to admit it. The evidence comprises three documents. First, there is a statement attributed to Natalie Ifield in what appears to be an email from her dated 22 October 2019 that she witnessed “Denise” (presumably a reference to Ms Torrisi) using the appellant’s laptop “multiple times when he was not present”. Secondly, Ryan Walsh affirmed an affidavit dated 21 October 2019 in which he stated that “Denise” accessed the appellant’s laptop when he wasn’t around. Thirdly, Mr Wales affirmed an affidavit on 22 October 2019 in which his most substantial statements are that Mr Walsh and Ms Ifield resided with him “prior and during the time in question” and that “Mr Walsh and Ms Ifield dwelt with me prior to Mrs Torrisi”.
- The proposed evidence of Ms Ifield and Mr Walsh is unhelpful because of its vagueness and the absence of any evidence identifying the period during which it is suggested that Ms Torrisi accessed the appellant’s laptop, whether or not she did so using the “guest” profile which did not require a password and did not contain the relevant files, and whether either proposed witness knew whether or not Ms Torrisi viewed or uploaded any file to the laptop.
- In response to the appellant’s argument about the evidence of Mr Walsh and Ms Ifield, the respondent pointed out that upon the evidence of Ms Torrisi she moved into the Woodridge residence in about April 2015 and she moved into the Wishart residence in July 2015, but the most recent created date for the files on the Notebook was 2 March 2015. (Many of the files were created much earlier, in May 2014.) Mr Mount’s evidence was that the created date in the case of the USB Drive was the date when the file was put onto the USB Drive. The respondent submitted that in the case of the Notebook, the fact that the created date preceded the date when Ms Torrisi moved into the Woodridge residence rendered the proposed new evidence irrelevant. In reply, the appellant argued that Ms Torrisi had access to his laptop before she moved to the Woodridge address and on a much earlier date than the created dates shown on the files containing child exploitation material both in the USB Drive and in the Notebook. There is no statement to that effect in the new evidence upon which the appellant seeks to rely.
- Otherwise the affidavit of Mr Wales comprises repetitions of evidence he gave at the trial and some general criticisms of the conduct of his legal representatives in his defence. As to the criticisms, he makes three particular points. First, the appellant states he instructed his lawyers to point out Ms Torrisi’s dishonesty. Defence counsel cannot be criticised for failing to make such a submission to the jury, which would not have been justified by the evidence, and would have been unnecessary and potentially inflammatory. Second, the appellant states that his lawyers failed to bring up Ms Torrisi’s ability with computers arising from them both having been employed at a place where there were requirements for computer use. The generality of this evidence renders it of little value. Thirdly, the appellant states that he instructed his lawyers about what the appellant submits are inconsistencies within the evidence in the Crown case. For reasons already given these suggested inconsistencies, which were probably apparent to the jury in any event, are not significant.
- The new evidence upon which the appellant seeks to rely lacks persuasive force. It does not justify a conclusion that the appellant has been the victim of a miscarriage of justice.
- I would refuse the appellant’s application for leave to adduce new evidence in the appeal and I would dismiss the appeal.
- McMURDO JA: I agree with Fraser JA.
- MULLINS AJA: I agree with Fraser JA.
- Published Case Name:
R v Wales
- Shortened Case Name:
R v Wales
 QCA 70
Fraser JA, McMurdo JA, Mullins AJA
15 Apr 2020