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  • Unreported Judgment

R v AAB

 

[2007] QCA 261

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

DC No 495 of 2006

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

DELIVERED ON:

10 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2007

JUDGES:

Williams and Jerrard JJA and Mackenzie J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – PARTICULAR CASES – where the appellant was convicted of  the offence of having, without legitimate reason, recorded an indecent visual image of a child under 16 years – whether inadmissible and prejudicial evidence had been put before the jury concerning the police warrant – whether  the trial judge had erred in not discharging the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – PARTICULAR CASES – where the learned trial judge gave directions to the jury in regard to that inadmissible evidence – whether the directions were sufficient to overcome the prejudice created

COUNSEL:

C W Heaton for the appellant

T A Fuller for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

[1]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and there is nothing I wish to add thereto.  The appeal should be dismissed.

[2]  JERRARD JA: On 9 March 2007 AAB was convicted by a jury of the offence of having, without legitimate reason, recorded an indecent visual image of SJ, a child under 16 years.  The learned trial judge was concerned about a matter which had arisen during the trial, and accordingly adjourned the sentence, to allow AAB the opportunity to challenge the conviction on appeal, before imposing any sentence.  However, by 14 May 2007 it was apparent the appeal would not be heard for some months and the prosecutor urged that the conviction did not call for a sentence of imprisonment, and that the learned judge should proceed to sentence.  In the circumstances the judge acceded to that, ordering that AAB be imprisoned for eight months, but wholly suspending that sentence for an operational period of two years.  He has appealed against his conviction, on the ground foreshadowed by the learned judge. 

[3] That ground was that the trial judge had erred in not discharging the jury, upon an application made by AAB’s counsel, after inadmissible and prejudicial evidence had been put before the jury.  An alternative ground was that the learned trial judge’s directions to the jury in regard to that inadmissible evidence was insufficient to overcome the prejudice created.  There was also a ground complaining the conviction was “unsafe and unsatisfactory”, which should be understood to argue, in terms of s 668E of the Code, that the verdict could not be supported having regard to the evidence.  That ground was not argued on the appeal.

[4] The evidence led by the prosecution was all heard on the morning of 8 March 2007.  It included that on 10 May 2006 a plain clothes Senior Constable Pettigrew, of the Whitsunday Child Protection and Investigation Unit, received some information from a Constable Nicholas, in the form of a crime intelligence report, and Constable Pettigrew then took out a search warrant for AAB’s address.  The police executed the search warrant the next day; the evidence the jury heard included the following:

“Now, what type of items were you looking for? - - We were looking for - - -

Perhaps that’s relevant to this? - - - - videos and any pictures relating to child pornography.”

[5] AAB’s counsel immediately told the learned trial judge that counsel had an application to be heard in the absence of the jury, but the judge required that the evidence continue, and heard the application – that the jury be discharged – at the close of the prosecution case, at 12.34 pm that same day.  The evidence led had included photographs of some rooms in the residence, and the contents of a videotape in a small hand held Canon Mini DVD Recorder seized at the residence.  That video, exhibit 3 at the trial, recorded footage taken in one of the bedrooms at the house when a young female (aged 12 at the time) was trying on a variety of clothes from the cupboard in the room.  To try on those clothes she removed her top, and exposed her breasts on a number of occasions.  The camera was situated in the room so as to capture that process on the video, and the child appeared unaware of its presence.  The contents of the video began with it showing the empty room, and the camera then appeared to move slightly from side to side, and was left in a position looking across the room and pointing directly toward the cupboard.  AAB was seen shortly afterwards to come into the camera’s view, and look at the mirror of a wardrobe in the room before leaving.  Some time after that the child came into the room and began trying on the clothes.  She left that room a number of times and returned to try on other clothing, and this process continued while the camera was in a static position recording.  Towards the end of the recording the child tried on a particular top, and AAB came into the room, and helped her put on some long gloves matching that top. 

[6] Other evidence included that the police seized a variety of cameras, photographs, and discs at those premises; but the only charges brought against AAB were the matter now under appeal, and a charge relating to the possession of the recorder in which the tape was located.  It was common ground the disc was in the camera, and the police were able to play it immediately at the scene: the evidence was a little uncertain as to when and how the police noticed that particular camera, and it may have been handed to them – or its existence identified – by AAB’s female partner.  The video was fully rewound in the camera when the police first examined it, and not ready to start at the point where the girl was recorded.

[7] Other evidence identified the 12 year old as the daughter of a casual friend of AAB, and the 12 year old was in the habit of visiting his female partner.  She only visited if the female partner was there, according to the evidence of the child’s mother.  That was the totality of the evidence on which the prosecution relied, to establish that AAB was responsible for deliberately recording an indecent visual image namely of the then 12 year old child exposing her breasts.  The child was not called, and neither AAB nor his female partner gave any evidence.  No evidence was led of any conversations between AAB and any police officers.  The prosecution would prove the charge if the evidence satisfied the jury beyond reasonable doubt that either AAB acting alone, or AAB acting with another person, intentionally video recorded the 12 year old when partly naked; assuming the jury also thought indecency was established.

[8] The application for the discharge of the jury was put on the basis that the prosecution had led evidence from which the jury could quite readily infer that:

“Someone was aware that my client was into child pornography”. 

Counsel informed the judge (without contradiction) that counsel had indicated to the prosecutor that the basis of the search warrant should not be put before the jury, and the prosecutor had agreed.  Counsel also informed the learned judge that the information actually given to the police, as the basis for the search warrant, related to some “chat room” images sent to a person, with the suggestion of some text attached to some photographs.  There was no reference whatever about a video image or images.  Counsel explained that he considered it would be impossible to cross-examine the police officer as to the real basis of the warrant, because to do so would only present other prejudicial information to the jury.

[9] The learned judge gave a very short ruling, to the effect that while the judge accepted that there was the risk of the jury being prejudiced, it would be preferable for the trial to proceed.  Subsequently the judge gave a quite careful and full direction to the jury in these terms:

“Before I backtracked just then I was about to refer you to your having heard Detective Pettigrew, formerly her name was Jordan, asked and state what she was looking for when she executed the search warrant of the defendant’s premises.  That question shouldn’t have been asked and answered.  It was part of internal police procedures that started somewhere before along the line, even before Senior Constable Ellis.

 

There is a real concern that the witness Pettigrew’s answer might distract you and unfairly prejudice [AAB].  You must ensure that it doesn’t.  You have evidence about particular relevant facts before you on which you may act.  The basis for the warrant is not relevant and there is not a tittle [sic] of evidence about it to show whether or not there is anything in it.  It might well have been a warrant or it might as well have been a warrant to search for undersized fish or chop chop, which I understand is the name for illegal tobacco, or explosives thought to be relevant in some exercise against terrorism.  There is not the slightest reason or basis here to draw any inference or harbour any suspicions against [AAB] in that titbit of information.  It has nothing to do with the prosecution’s attempt to prove any elements of the offence which are limited to whether at the time and place the defendant, [AAB], recorded an indecent visual image of the girl without legitimate reason. 

 

The purposes of that exercise would be totally irrelevant if [AAB] were or was suspected to be the greatest criminal in the State, the greatest criminal unhanged.  It would be totally irrelevant what some people might have said or believed about it.  None of it has got anything to do with whether the prosecution has proved the particular offence charged. 

 

As you know, nothing whatever came out of the police visit to the house except this particular charge and apparently some related one that referred to the camcorder.”[1]

[10]  Those directions read as very persuasive instructions to the jury, given with the authority of the judge, for it deciding the case only on the evidence, as the learned judge elsewhere also reminded the jury to do.  The judge summarised the Crown arguments as that the video images were created by an adult male in his own home of a girl dressing and undressing, and their creation was a deliberate act on his part.  That could be inferred from the camera being activated, and then repositioned to make the mirror more central.  Then AAB came into view, and the prosecution argued the jury could infer he set up the camera and began operating it.  Accordingly, when he was seen coming back into the room to assist the young girl, the jury should conclude that he knew what was happening, and that it happened as a result of his deliberate decision. 

[11]  The argument for AAB, of which the judge also reminded the jury in full, included that there was no evidence otherwise suggesting that AAB was a peeping tom or pervert; there was only the one charge following the visit by the police, and the jury could not reason that he must have known that the 12 year old would undress.  In any event, her visits were not so common that he could possibly have foreseen she would both undress and uncover her breasts.  Again, AAB may not have mastered the technology of the video, and may not have intentionally recorded what was in fact recorded.  Any movement by the camera when it was operating may have resulted from it slipping, rather than it being repositioned.

[12]  Those arguments advanced by each counsel, and repeated by the learned judge, illustrate that there was a sufficiently strong case based on circumstantial evidence, capable of supporting the inference that AAB had operated the camera, either entirely by himself or in concert with the only other person presumably present, namely his partner.  There was no direct evidence that any other person capable of operating that camera was present in the house when the video was made, but the evidence of the child’s mother suggests AAB’s partner was there too.  There was no request for any direction on that point, and nothing made of it at the trial or appeal.  The judge’s instructions were very clear and sensible ones, and leave very little risk that the evidence Senior Constable Pettigrew gave (of having taken out a search warrant for “the defendant’s address” at Proserpine, searching for pictures relating to child pornography) may have affected the jury’s conclusion as to AAB being at least one of the persons in control of the camera.  The warnings and summary of the arguments given by the learned judge focused attention solely on the evidence given.

[13]  AAB’s counsel conceded on the appeal that the directions given by the learned trial judge about the irrelevant evidence of the asserted contents of the warrant were sufficiently clear, relevant, and persuasive to overcome anything other than irreversible prejudice.  The nature of the charge is such that a jury hearing it read, as the jury panel did, may well have understood it as a charge which alleged that AAB had produced or recorded child pornography.  That also would cause some degree of prejudice, not necessarily any more than the prejudice felt on hearing Detective Pettigrew’s version of the contents of the warrant.  In any event, the jury then heard what the actual evidence was, and also that the police searched for and seized other discs and cameras, but brought no further charges.  Finally, in addition to the directions the jurors were given at the end of the trial by the judge, quoted above, the judge told them at the start of the trial, when it was adjourned for two days after the jury were selected that:

“Ladies and gentlemen, you don’t know anything about the case yet, I take it, as the trial isn’t going to get underway until Thursday morning, for reasons I have explained.  In the unlikely event that you are bursting with curiosity and find something about the case, can I urge you not to?  It’s most important that juries decide criminal cases only on the basis of the evidence that’s presented in court when the prosecution and the defence are ready and that’s not going to happen until 9.30 Thursday.  You’re free to leave the court, thanks for your services today and good wishes until 9.30 on Thursday morning when I see you again.”[2]

[14]  In combination the directions the learned judge gave to the jury were sufficient to focus the attention of the jury only on their proper task, and to undo the effect of any unfair prejudice caused by the evidence about the warrant.  When passing sentence, the learned judge remarked as follows:

“The case seemed to me a clear one but the conviction was under a cloud given the gratuitous evidence given by a police officer that the police had gone to the house searching for pornography.”

[15]  That description is accurate, and I would dismiss the appeal.

[16]  MACKENZIE J: I agree that the appeal should be dismissed for the reasons given by Jerrard JA. 

Footnotes

[1] At AR 67, 68.

[2] At AR 5.

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Editorial Notes

  • Published Case Name:

    R v AAB

  • Shortened Case Name:

    R v AAB

  • MNC:

    [2007] QCA 261

  • Court:

    QCA

  • Judge(s):

    Williams JA, Jerrard JA, Mackenzie J

  • Date:

    10 Aug 2007

Litigation History

No Litigation History

Appeal Status

No Status