The Queen v Shew[1998] QCA 333

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 13 of 1998

Brisbane

[R. v. Shew]

THE QUEEN

v.

KEITH DOUGLAS SHEW

(Applicant) Appellant

McMurdo P.

Pincus J.A.

Jones J.

Judgment delivered 23 October 1998

Joint reasons for judgment of McMurdo P. and Jones J., separate reasons of Pincus J.A. concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

JOINT REASONS FOR JUDGMENT - McMURDO P. & JONES J.

Judgment delivered 23 October 1998

1. On 11 December 1997 the appellant was convicted of the offence that he knowingly had possession of a child abuse computer game.  He was sentenced to 12 months imprisonment.

2. He appeals against that conviction on the ground that there was insufficient evidence in respect of the element of knowingly having possession of the relevant games and further on the general ground that the conviction was unsafe and unsatisfactory.

3. The offence is prescribed by s. 26(3) of the Classification of Computer Games and Images Act 1995 and is in the following terms -

26(3)A person must not knowingly have possession of a child abuse computer game.

Maximum penalty - 250 penalty units or imprisonment for 2 years."

4. The Act provides definitions for "possession" and "child abuse computer game".

The relevant statutory definition of possession is as follows -

"possession", of a computer game, includes -

1. custody or control of the computer game;  and

2. an ability or right to obtain custody or control of the computer game."

5. In respect of the element that the offending material fell within the definition of "child abuse computer game", the appellant admitted that the contents of the disks the subject of the trial contained a child abuse computer game (R22/5).  Notwithstanding the above admission, the prosecution adduced evidence that a large collection of offending images were contained on the computer disks - some 172 images in all.  It would have been reasonable for the jury to find that a large number of these fell within the definition which the learned trial judge explained during his summing up.  No challenge was made by the appellant that this material did not fall within the definition.  Consequently it is not necessary to refer to the terms of that definition and the associated definitions on which it depends.

6. Ultimately the only issue at the trial was whether the appellant "knowingly had possession" of the offending material.

7. The evidence adduced relative to that issue is in very short compass and essentially is as follows.

8. (1)On Thursday 26 December 1996, Sandra Volk, the de facto wife of the appellant, handed to police officer Constable Price a grocery shopping bag containing 37 computer disks.  Eleven of those disks were in a beige/grey coloured container of the kind used for storing computer disks.

9. (2)Later that evening, shortly after midnight, Constable Price showed the bag containing the disks to the appellant and the following conversation ensued -

Price:"Sandra gave us a number of computer disks whilst we were at her house and she said the computer disks were yours.  She also told us that they contained child pornography.  What can you tell me about that?"

Shew:"Nothing."

Price:"The disks are now in my possession.  So if you are looking for them back at Sandra's place I've got them."

Shew:"Okay."

Price:"Do you own the disks?"

Shew:"I don't know."

Price:"I have got the disks in my car, come out and have a look at them."

Shew:"Okay."

10. The appellant then went with the Constable to the car park at the police station and there he was shown the disks and the beige/grey plastic container which it is said contained 11 disks but which was not opened at the time of this inspection.  The following conversation took place -

Price:"These are the disks that she gave me.  Are they yours?"

Shew(picking up the plastic container):  "These ones are."

Price:"What about the rest?"

Shew:"I don't know."

Price:"Is there any child pornography on them?"

Shew:"No."

Price:"Is there any kind of pornography on them at all?  I don't care if there is if it is normal adult porn."

Shew:"No."

Price:"Are you sure?  We will be checking them anyway."

Shew did not reply.

11. (3)On dates unknown in December 1996 the appellant on two occasions contacted Detective Sergeant Barham to whom he was already known to ask for advice.  On the first such occasion he indicated that he was having domestic problems with Sandra Volk and the advice sought was how he could remove his belongings from the residence he had been sharing with her.  The second occasion was subsequent to the police taking possession of the disks on 26 December 1996.  The conversation with Detective Barham was detailed by him in the evidence as follows -

"In the second conversation Shew, the accused, indicated to me in words to the effect that he had taken my advice and contacted the Boondall police to attend at his residence, his previous residence, to keep the peace while he collected some of his belongings.  When he made contact with the Boondall police they told him that in fact the Sandgate police were actually in attendance at residence.  He then subsequently attended at that residence.  On arrival there he spoke to the police and they told him words to the effect that they had been given some computer disks and that he identified to them that computer disks contained in a grey case in actual fact belonged to him and he also told me that they told him that they believed or they had been told that there was child abuse material on those computer disks.  The conversation he had with me was then seeking a bit of advice.  He indicated that he had actually been through those computer disks on the previous Friday and he was concerned that his fingerprints would be all over the disks ... he said that he was concerned that his de facto, Sandra Volk may have tried to set him up."

12. In cross-examination Detective Barham was asked if it was the case that he was shown a grey box and that the effect of the conversation was that he believed that the grey box was his and the following exchange took place -

The disk inside were his? -- That's what he indicated to me.

The grey box there? -- Yeah.

He didn't tell you the box hadn't been opened.  He said he believed the police had a box that had disks of his in it? -- That's correct.

13. (4)The "previous Friday" the appellant referred to would in fact have been 20 December 1996.  When examined, the electronically recorded files on the disk bore the computer generated date of 19 December 1996.  Evidence was given that it was possible for such date to be manipulated and that such date need not therefore necessarily coincide  with the calendar date.  But in the absence of any manipulation it would coincide with the calendar date.  There was no evidence that such manipulation occurred nor was there any evidence from which manipulation could be reasonably inferred.  The suggestion merely of ill-will towards the appellant by Mr. and Mrs. Volk would not, without more, be a basis for inferring that the date was manipulated.  Any manipulation for the purpose of "setting up" the appellant would have to have occurred subsequent to the time when he last had access to the computer.  Some evidence, at least, of another person having access to the equipment and knowledge of what to do would be basic to that contention.  In the absence of any such evidence the jury could readily infer that the offending files were created, or last modified, on Thursday 19 December 1996 - i.e. the day prior to the Friday when the appellant indicated that he "had been through the disks".

14. That effectively was the extent of the evidence to go before the jury.

15. The case was correctly described by the learned trial judge as a circumstantial one.  There was no direct evidence that the appellant had knowledge of what was electronically stored on any of the disks seized by the police.  Consequently the fact of his "knowingly having possession" of the prohibited material can be established only by inference drawn from all the circumstances.

16. The learned trial judge ruled against a submission that there was no case to answer.  The appellant neither gave evidence nor called evidence in his defence.

17. The first question then is whether there were facts before the jury from which an inference could be drawn that the appellant knowingly had possession of the offending images.

18. “Possession”, Lord Scarman said in R. v. Boyesen [1982] A.C. 768 " is a deceptively simple concept.  It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control.  You may possess a thing without knowing or comprehending its nature:  but you do not possess it unless you know you have it" (at p. 773-774).  The statement of the offence embraces that concept but removes any doubt by adding the word "knowingly".  It is necessary for the prosecution to prove a guilty knowledge of having possession of the offending images as an essential element of the offence.  This follows from the principles enunciated in He Kaw Teh v. The Queen (1984‑5) 157 C.L.R. 523. That case was concerned with a prosecution under the Customs Act 1901 (Cwlth) of the appellant, inter alia, for having in his possession prohibited imports pursuant to s. 233B(1)(c) of that Act.  Gibbs C.J. said (at p. 539) -

"The effect of the authorities to which I have referred is that where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ('in his possession') themselves necessarily import a mental element.  In such a case it is unnecessary to rely on the common law presumption that mens rea is required".

19. In the same case Dawson J. said (at p. 594) -

"Rules of construction must give way to actual expressions of legislative intent, but almost invariably in this context such indications as there are require guilty intent as an ingredient of an offence rather than the contrary.  Where some such word as 'knowingly' or 'wilfully' is used in the description of an offence, there is no difficulty in concluding that guilty intent is required.  However, the absence of words such as these, even if the words appear in the description of offences created elsewhere in the enactment, does not mean that an offence is intended to be absolute:  see Sherras v. De Rutzen [1895] 1 Q.B. at p. 921."

20. In this case the only way in which that guilty intent could be established is by inference from other circumstances.

21. Here it would be reasonable for the jury to accept the appellant's admission that he owned the computer box.  Even though it was of a standard type it is not unusual for a person to identify such property, almost instinctively, by reference to discolourations, markings, scratches or irregularities.  However it would be difficult to make the same comment about unlabelled or unmarked computer disks.  It is highly improbable that a person could say whether anything, and if so what, was stored electronically on a disk unless it had some distinguishing mark or a label and had been recently viewed.

22. The appellant's admission that the disks were owned by him appears to be based simply on his acceptance that there were disks in the container which he acknowledged was his property.  In most circumstances, it would be open to infer that the owner of the box, particularly if it had been in his exclusive possession, might know what its contents were.  But here the applicant did not have exclusive possession and his admission as to its contents came with the qualification that there was no child pornography on the disks.  Despite that it remained open to the jury to infer that the box and its contents belonged to the appellant and at the same time to reject his assertion that there was no offending material on them.  The appellant himself made a distinction between the disks in the box and the ones which were loose.

23. His continuing belief that the disks in the box were his is demonstrated by his later call to Detective Barham.  That call was likely to have been made prior to the forensic examination by the police expert, Constable Hopkins.  He received the disks only on 30 December 1996 and produced a CD of the images on 23 January 1997.  The file creation date on the disks was at the time of the discussion with Detective Barham known only to its author.  But the appellant's statement as to his belief was made with an awareness of Sandra Volk's allegation that the disks contained offending material and a concern on his part that his fingerprints might be on those disks.

24. The appellant's assertion to Detective Barham that Sandra Volk "may have tried to set him up" was not established by any evidence and the circumstances on which the assertion was based - the appellant's damaged relationship with Sandra Volk and an assault by her ex-husband on the appellant two months earlier - were matters for the jury to consider, and had they wished, to draw certain inferences from them.  If there was an intention on the part of someone to set the appellant up, the uninvited copying of prohibited images over five disks would increase the risk of the set up being discovered unless the disks were to be handed over to the police as soon as the offending material was placed on them.

25. The police attended at the residence at an unusual hour - 11.00 p.m. on Boxing Day.  From the appellant's conversation with Detective Barham it is clear the appellant himself was intending to go to the residence at that unusual hour in police company in order to remove his property.

26. It seems to us with the combination of facts referred to above in all the circumstances of the case, that the element of possession as it is defined for the purpose of the Classification of Computer Games and Images Act 1995 was made out, sufficiently to allow the jury to infer the proof of that element beyond reasonable doubt.

27. The drawing of such an inference is akin to the drawing of the inference of fact, once referred to as “the doctrine of recent possession” in receiving and related cases from proof of possession of goods recently stolen.^[1]   It was a matter for the jury as to what weight they gave to the competing inference that Mrs Volk or someone associated with her “set him up” or whether the only rational inference from his admission as to the possession of the box containing the disks which held the child abuse computer game, combined with his admission that he exercised control over the disks the day after they were created, was the only rational inference to be drawn in the circumstances.

28. The element of "knowingly" is a matter which the jury was entitled to infer beyond reasonable doubt from the fact that the creation of the files constituting the child abuse computer game occurred at a time when the applicant was making admissions that he was actively dealing with the computer disks and prior to his admission of possession of them.  The jury of course were not bound to draw the inference they did.  A different jury may not have drawn the same inference but so far as the learned trial judge was concerned his approach was to have regard to the remarks of the High Court in Doney v. The Queen (1990) 171 C.L.R. 207 (at p. 214) -

"But it is appropriate here to draw attention to the fact that the drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.  It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful."

29. The evidence was sufficient to allow the case to go to the jury and we would therefore reject a suggestion that the learned trial judge erred in that regard.

30. The next issue is whether the verdict is unsafe and unsatisfactory.  The applicant did not give evidence and the question was raised on appeal as to what extent that fact impacted on the jury's capacity to draw inferences from the facts as found.  The learned trial judge after giving to the jury several examples of how inferences are drawn from circumstantial evidence instructed the jury in the standard formulation approved in Plomp v. The Queen (1963) 110 C.L.R. 234/252 that it was "necessary not only that guilt should be a rational inference but the only rational inference that the circumstances would enable you to draw" (R80/40).

31. The learned trial judge instructed the jury that an inference of guilt could "be more safely drawn from proven facts when the accused person elects not to give evidence of relevant facts which may easily be perceived to be within his personal knowledge".  There is a need for some care in the use of this direction.

32. Whether the applicant had knowledge that the relevant disks contained offending material is a matter that in the circumstances of this case could only be established by the jury drawing inferences from established facts.

33. In R. v. Fellowes & Ors. [1987] 2 Qd.R. 606 (at p. 610) the court said:

"It is clear that such a direction (as to the failure of the accused to give evidence) can be justified only where there are particular circumstances in the case which call for it.  The most familiar example which may justify such a direction is the presentation of an entirely circumstantial case by the prosecution in a situation where it may reasonably be inferred that the truth, whatever it may be, would be known to the accused, and where the accused neglects the opportunity to explain or place a different complexion upon the facts which the prosecution has presented."

34. In this case it was the appellant's knowledge that had to be proven in the circumstances.  In the absence of any direct statements to other persons or the viewing of the material by other persons, the applicant was probably the only person who could give direct evidence as to his knowledge.  This would have been particularly important if a jury were asked to treat seriously the suggestion that he "had been set up".

35. In Weissensteiner v. The Queen (1993) 178 C.L.R 217 Mason C.J., after considering earlier authorities concluded (at p. 227) -

"... it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.  In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused".

(At p. 228/9)

"There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from the facts which the jury perceives to be within his or her knowledge.  In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence."

36. The direction given by the learned trial judge on this point was justified in this case.

37. The test to be applied when deciding whether a verdict is unsafe and unsatisfactory was considered by the High Court in M. v. The Queen (1994) 181 C.L.R. 487.  In that case the majority (Mason C.J., Deane, Dawson, Toohey JJ.) enunciated the test in the following terms (at p. 493) -

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations."

38. The majority elaborated on this test in the following statement at 494 -

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

39. In this case the evidence was in short compass.  With so little challenge being made to the evidence, the jury's advantage in hearing and seeing the witnesses was not of much moment.  Once one reaches the point that there was sufficient evidence upon which it was open to the jury to draw an inference of guilt then this Court is being asked really to draw inferences different to those drawn by the jury.  If the jury has accepted, as we perceive they did, that the electronic files containing the offending material were created on Thursday 19 December 1996, that the appellant admitted that he handled the files on Friday 20 December 1996 and that he was prepared to accept ownership of the computer disks which were in his computer box knowing the allegation they contained child pornography there is a basis upon which the inference could be drawn that he knowingly had possession of that material.

40. It was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

41. The competing inference suggested by the defence that the appellant had been set up, could not, with the paucity of evidence on that point, rationally be drawn.  We are not persuaded that the jury verdict was unreasonable or that there has been a miscarriage of justice in this case.

42. We would dismiss the appeal against conviction

43. The appellant also sought leave to appeal against sentence but expressly abandoned that application prior to the hearing. Accordingly the application for leave to appeal against sentence should also be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 23 October 1998

1. I have read the joint reasons of the President and Jones J. in which the nature of the evidence called is set out.  It is my opinion that although the prosecution case was not especially strong, there was enough to justify the conclusion that it was open to the jury to convict.  I do not think it necessary to add anything to the discussion of the facts of the case which is contained in the reasons of the President and Jones J., with which discussion I am in general agreement.  I too would dismiss the appeal and refuse the application for leave to appeal against sentence.