R v MAY[2007] QCA 333

SUPREME COURT OF QUEENSLAND 

[1]  HOLMES JA:  The appellant was tried on one count of maintaining a sexual relationship with a child (Count 1), 14 counts of indecent treatment of a child under 12 who was a lineal descendant (Counts 2-15), and seven counts of possession of a child abuse computer game (Counts 16-22).  The maintaining count was the subject of a nolle prosequi entered by the Crown at the end of the defence case.  Five of the indecent treatment counts were charges of indecent dealing with the appellant’s daughter.  Of those counts, four concerned the appellant’s role in assisting another man, Shaw, to pose the child for indecent photographs; the other indecent dealing count was based on a statement by the appellant on an internet “chat log” to the effect that he had licked the child’s vagina.  He was convicted of those counts and of the seven counts of possessing a child abuse computer game.  The remaining nine counts of indecent treatment concerned the actual photographing of the child.  He was acquitted on those.

The appeal

[2] The appellant appealed against conviction and applied for leave to appeal against sentence.  However, he explained at the hearing of the appeal that he had no argument to offer as to the sentences actually imposed (six years imprisonment on the indecent treatment and one year’s imprisonment, to be served cumulatively, in respect of the child abuse computer game counts).  He simply sought to make it clear that because he considered the convictions untenable, he thought no sentence should have been imposed on him at all.  The single ground of appeal against conviction on the notice of appeal as filed was that a judge at first instance (not the trial judge) had erred by allowing an application, brought under s 590AA of the Criminal Code Act 1899 (Qld), resulting in the joinder of all charges.  The appellant was granted leave to add a further ground: that the jury verdict was unreasonable, a ground which he sought to make out by pointing to discrepancies between an internet “chat log” relied on by the Crown and telephone and work records.

[3] The original appeal ground was inaccurate in its reference to a s 590AA application being allowed.  In fact the Crown presented the indictment containing all charges; it was defence counsel who unsuccessfully applied for the severing of the maintaining and indecent treatment counts (counts 1-15) from the counts of possession of a child abuse computer game (counts 16-22).  The first set of counts, involving the photographing of and other indecent dealing with the appellant’s daughter, was said to have occurred in October and November 2000.  The second set of counts related to pornographic images found on discs and files on the appellant’s computer when his house was searched in July 2003.  The relevant images were all of unidentified children, not the appellant’s daughter.

The Crown case

[4] The evidence against the appellant at trial came primarily from Shaw. He said that he had first encountered the appellant in 1997, using an internet chat channel, and later that year had met him in person on a visit to Sydney.  They continued to have internet discussions which related, among other things, to the topic of sexual activity with children.  The following year the appellant moved to Brisbane, where Shaw was living, and they maintained contact.  According to Shaw, the appellant   used the name “Pixel” or sometimes “Pixel34”, for the purpose of internet chats and e-mails.  They used an internet chat programme called “ICQ” which enabled them to chat and send files including photographic images.  Shaw identified a document which he said was a log of conversations on the ICQ channel, some of the conversations on which were with “Pixel” (on his evidence, the appellant). They exchanged sexually explicit images, some of which were of children.

[5] On one occasion in late November 2000, Shaw said, the appellant came to his house with his daughter A, who was about five years old.  Shaw posed with the child, both naked in various sexual positions, while photographs were taken.  He could not recall who actually took the photographs, but the appellant was present and gave instructions.  The photographs were uploaded on to his, Shaw’s, computer.  He said that the appellant had subsequently taken copies of them, but he did not say in what form those copies were taken.

[6] In August 2002, Shaw was arrested in New South Wales in relation to offences there.  The appellant assisted him to get bail by providing a surety in the sum of $5,000.  On his return to Queensland Shaw found that his house had been searched and his computer taken.  It was admitted by the defence that when Shaw’s home computer was examined, police found 11 photographs of Shaw posed indecently with A; an internet chat log recording communications with internet users including “Pixel”; and 23 e-mails between Shaw’s hotmail address and “[email protected]”.

[7] Recorded on the chat log are messages exchanged with “Pixel” in November 2000 about videoing sex with A. There is a reference to “Pixel” having licked the child’s vaginal area about a month previously; that is to say, around October 2000.  Other references which might suggest that “Pixel” was the appellant are mentions of someone with the same name as the appellant’s wife and a birthday message sent to “Pixel” on the appellant’s birthday.  Copies of the e‑mail messages were tendered.  Some had files attached, the titles of which suggested that they were indecent images of children; others discussed sexual activity with girls of 13 and 14.  The e-mails directed from Shaw to “Pixel” are occasionally addressed to “Chris”, the appellant’s Christian name, and some of the responses refer to a woman with the Christian name of the appellant’s wife.

[8] The Crown tendered a certificate from Optus showing that an account was opened in December 1999 in the appellant’s name with a login, “Pixel3”.  Another certificate from Primus Telecommunications gave “[email protected]” as a primary e-mail address for the appellant on an account open between August 1999 and October 2001. Records were also tendered for the two telephone accounts maintained by the appellant which, it was said, demonstrated a correspondence between the dialling up of an internet service provider from those telephone services and the sessions of chat between Shaw and “Pixel”. 

[9] As a result of the finding of the photographs of A and another child on his computer, Shaw was arrested on further charges.  While he was held in custody he was visited by the appellant who, he said, told him that A would not be giving any evidence to the police.  Because of his co-operation with the Crown, Shaw received a reduced sentence on counts involving possession of those images, maintaining an unlawful sexual relationship with a child and indecent dealing. It was suggested to him in cross-examination that he had created the “Pixel” character and fabricated both the chat log and e-mails emanating from “Pixel”.  He pointed out that that would require two computers and two server accounts, and he denied having done so.  However, he conceded that it would be possible to log in with a person’s password and send e-mails purporting to be from him or her.  He did not, he said, know the appellant’s password.

[10]  In October 2002, the appellant made a statement at the request of the police who had found the photographs of his daughter on Shaw’s computer.  In it, he said that Shaw was a close family friend. He could recall taking A to visit him and he was aware that she would have been left alone with him at times. He had not known anything of the photographing of A until the police showed him the photographs obtained from Shaw’s computer. He did not make any mention of visiting Shaw in gaol or providing a surety for him.

[11]  The appellant’s computer, CD-ROMs, floppy discs and computer print-outs were seized when his house was searched in July 2003. What was seized was recorded on a property receipt and subsequently in a register at a secure exhibit storage facility.  In neither of those records was mention made of any compact disc seized.  However, when the material was later reviewed, it was found to include 34 compact discs.  The discrepancy was explained, essentially, as the product of carelessness.

[12]  Of the material found, that described and tendered at the trial ranged well beyond the images said to constitute child abuse computer games and would, one would imagine, have entailed considerable prejudice; but it was not objected to and one can only assume that the defence perceived some forensic advantage in permitting it to be led. It included two hard copies of emails, advertising “Lolita” and “pre-teen” videos for sale, with descriptions of their content: uniformly sexual abuse of children. More obviously relevant was an “address book” found in hard copy form which contained a listing, “Pixel Cat”, the email addresses for which were [email protected] and [email protected].

[13]  A computer analyst for the Queensland Police, Mr Illet, gave evidence of examining the computer and discs found at the appellant’s house. The hard drive on the appellant’s computer had, he said, been replaced. The Windows operating system on the computer was first installed in November 2002, with “Pixel” being recorded as the registered owner.  There were two user accounts on the computer, one of which was called “Pixel”, and of interest were two email addresses in use: “[email protected]” and “[email protected]”.

[14]  Mr Illet said that he had located what he described as a “considerable quantity of child abuse material” on the computer. One of the CD-ROMs and a floppy disc also contained child pornography. Two “forensic reports” he had prepared were tendered without any objection being taken.  They listed files located on the computer’s hard drive which he considered relevant. He had included items in a “Keep” folder which, since he had deemed them relevant, “would have been an email with perhaps attachments of possible child abuse material”.  The e-mail address relating to those items might have been “Pixel_34” or “Pixel_3”; he could not be sure. In a “Sent” e‑mail folder, he found five emails from “Pixel_3” which attached image files. Four of those emails attached photographs, apparently in a series, of a young girl, naked, spreading her legs, while the fifth attached images of the appellant’s own children in their school uniforms.

[15]  There were, Mr Illet said, some website addresses bookmarked as “Favourites”. A list of names of the webpages was tendered; they were, from their titles, obviously child pornography. Mr Illet also produced a list of “news groups” subscribed to by the computer user, with names such as “erotica pre-teen”, from which images had been downloaded. He described various movie files and images depicting child pornography found at various locations on the computer. He estimated that the child abuse images held on the computer occupied some three gigabytes of the computer’s capacity.

[16]  The images in this case were not put before the jury.  The Crown tendered eight certificates under s 62(4) of the Classification of Computer Games and Images Act 1995 (Qld), each classifying “the computer game referred to in the attached Schedule” as a child abuse computer game.  At this point, the expression “child abuse computer game” bears explanation. It is a misnomer of statutory creation: “computer game” is defined in Schedule 2 of the Dictionary to the Classification of Computer Games and Images Act as including “a computer generated image”.  “Child abuse computer game”-

“means a computer game that is an objectionable computer game because it depicts a person who is, or who looks like, a child under 16 years (whether the person is engaged in sexual activity or not) in a way likely to cause offence to a reasonable adult”. 

[17]  Each of the eight certificates had a schedule attached, identifying by name (usually suggestive of child-centred erotica) a number of files. Five of the certificates concerned files found at various locations on the appellant’s computer; they were mixes of movie files and pictures, all involving child pornography.  The sixth certificate related to the compact disc, on which eight such movie files were found and the seventh the floppy disc, which contained seven image files all depicting child sexual abuse. Each file, presumably, entailed a separate image or images, but no issue was taken about latent duplicity. 

[18]  More puzzling is the tender of eight certificates when there were seven charges, and the jury was directed that each certificate related to a separate count.  The eighth seems to have been thrown in for good measure:  it related to the series of pornographic photos of one child found as attachments to the e-mails in the “Sent” folder, identified by Mr Illet as sent using the “Pixel_3@optushome.com.au” address.  In the course of submissions on the s 590AA application, counsel for the Crown had explained that those photographs were not the subject of a charge because of the abundance of other pornographic material; indeed, at that stage they had yet to be classified.[1]

The defence case

[19]  The appellant gave evidence.  He said that he had never used an ICQ chat room; although he used the name “Pixel”, he was not the “Pixel” recorded in the chat room log.  His home computer was always left on and he did not know how child pornography material could have got on to it.  He had searched some child pornography sites to see if his daughter’s picture had been placed on them by Shaw.  Having checked the dates and times for the creating, accessing and modifying of the files involving pornographic images, he tendered a schedule derived from work records which, he said, showed that he was at work at the relevant times.

[20]  Under cross-examination, the appellant conceded that he had held the “Pixel_34” hotmail account, but said that he did not send or receive e-mails using it.  It simply collected junk mail.  He did not know anything about child pornography sent on that account.  The “Pixel_3” account was not a junk mail account.  He could not explain how four e‑mails with pornographic attachments were sent using it in December 2002.

The “unreasonable” verdict ground

[21]  The Crown case at trial relied on the internet “chat log” entries as corroborative of Shaw’s evidence, and on the telephone records as demonstrating the dialling up of an internet service provider in correspondence with the sessions of chat between Shaw and “Pixel”.  Here, the appellant sought to demonstrate either that there was no such correlation for given entries or that because he was at work at certain times he could not have been a party to the chat.  It followed, he said, that if he were not the “Pixel” engaging in chat with Shaw on those occasions, the Crown case was irretrievably damaged, because Shaw was, after all, in the position of an accomplice who had obtained a benefit by giving evidence.

[22]  The appellant referred in particular to: some entries relating to “Pixel” on the “chat log” which had no corresponding entry on his telephone records; two entries with a 12 hour discrepancy between the times shown on the telephone records and those recorded for the chat log entries; and two other entries in which there was not a precise coincidence between the time of the telephone call starting and the commencement of the chat conversations.  In addition, he said that since the Crown had not challenged his account that he was at work in his employment as a courier at some of the relevant times, it followed that any conversations occurring during what he maintained as his working hours were shown not to involve him.

[23]  The Crown had a variety of answers to these contentions: that Shaw had conceded the possibility that he had mistakenly set his clock at “pm” when it should have been “am”; that the appellant himself had admitted that it was possible for him to go home during working hours, although it would have caused a lot of trouble had he been caught doing so; and that some of the entries pointed to by the appellant clearly only involved Shaw attempting to make contact without the appellant actually coming on-line, hence the lack of any corresponding dialling-in on the phone records. 

[24]  To the obvious point that all of these matters were the subject of evidence at the trial and were open to the making of the same submissions there, the appellant said that he had not personally had the telephone records to compare with the internet “chat log” until after the trial.  However his counsel, while making a mild complaint about the difficulties of preparation with his client in custody, at no stage sought any adjournment at the trial on the basis that further preparation was needed; and the very point which the appellant now makes about the work records conflicting with the internet chat log entries was made by him in the course of his evidence.  In any event, the discrepancies pointed to by the appellant are not of such moment as to lead to a conclusion that the verdicts were unreasonable.

[25]  The appellant also argued that the jury should not have convicted him on counts 21 and 22, which involved child abuse images on the floppy disc and the compact disc, because of a lack of continuity in the evidence: the police had, as was admitted, failed to record the seizure of the compact discs on the property receipt and register.  But the jury was aware of that anomaly and, it seems, accepted that it was no more than the result of oversight. It certainly provides no basis for concluding that the verdict on those counts was unreasonable.

The joinder ground

[26]  Of considerably more concern is the ground on the notice of appeal as filed: that counts 1-15 on the indictment, the maintaining and indecent treatment charges, should not have been joined with counts 16-22, the counts of possession of a child abuse computer game.

[27]  Section 567 of the Criminal Code precludes the joinder of charges in an indictment against a single accused except where certain conditions are met, of which the only one relevant here is that the “charges … are, or form part of, a series of offences of the same or similar character”.  Section 597A(1) gives the Court a discretion to direct the separate trial of offences charged in an indictment where it is:

“of opinion that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable…”.

[28]  Counsel for the appellant at the 590AA application characterised the application as one for separate trials, although, strictly speaking, he might have moved to quash the indictment on the basis that the counts were improperly joined.  He emphasised the prejudicial effect, on the trial of counts 1-15, of the introduction of the evidence of pornographic material found on the appellant’s computer, none of which had any connection with Shaw. He made it clear that the defence would deny that the appellant was the participant in the internet chat with Shaw using the name “Pixel”, and would suggest that the maker of the “Pixel” entries fabricated them, knowing his details; but, he pointed out, if the Crown wanted to establish that the appellant used particular email addresses, that could probably be done by formal admission, or failing that simply by proving that the email addresses were located on the appellant’s computer, without more.

[29]  The Crown at the s 590AA hearing submitted that the offences on the indictment were part of a series of offences of similar character because of the “factual nexus” between Shaw and the appellant.  It was crucial to the prosecution’s case to show that the “Pixel” sending messages to Shaw’s computer was the appellant.  Shaw said that they had exchanged pornographic images by e-mail.  In order for the prosecution to show that he was telling the truth it was relevant to prove that he had traded such images with other persons using an e-mail address with the name “Pixel”.  The defence was implicitly asserting that the appellant was not doing anything untoward with Shaw.  The possession on his computer of child sex material corroborated Shaw’s statement.   The evidence was thus cross-admissible.

[30]  Notwithstanding that the application was for separate trials, the learned Judge properly dealt with the questions of joinder and severance in succession.[2]  As to the first, he observed that:

“… some persons who have a sexual attraction towards pre‑pubescent children, or at least children who have not reached adulthood, are able to exchange photographs or images of the kind under discussion by way of email or by having access to certain websites.”

The evil to which the provisions concerning possession of “child abuse computer games” were directed was the same as that which was the subject of s 210 of the Criminal Code in relation to indecent treatment of children under 16: “proliferation of the moral corruption and sexual exploitation of children”.  Thus, his Honour said, the consideration of the relevant law and the evil which it sought to restrain provided a general nexus.  In addition, he said, there was a specific nexus in what the accused was alleged to have done:

“An examination of the law and the evil sought to be restrained, will provide a nexus in a general sense but additionally, there is a specific nexus in terms of what the accused is alleged to have done (taken and provided to Shaw indecent photographs or images of Shaw sexually abusing a child in a form which could readily be utilised by Shaw in the way I described earlier in the case of the first set [of alleged offences], and himself obtained computer access to material, presumably dissimulated [presumably a mistranscription of ‘disseminated’] by others, or accessed by himself a website which involved sexual abuse of children, in the case of the second set).”

[31]  As to the discretion under s 597A, the learned Judge considered that the behaviour alleged in relation to counts 1-15 was of such serious and disquieting proportions that the degree of revulsion that a jury might be expected to feel in respect of counts 16-22 was not likely to add significantly.  The probative value of the evidence in relation to counts 16-22 outweighed any prejudicial effects of dealing with all the charges together.  So far as the question of admissibility of evidence was concerned, it was important for the Crown to corroborate Shaw’s evidence because he was an accomplice whose credit was very much in issue.  He continued:

“If the jury are permitted to hear evidence on which they might legitimately conclude the accused himself has a sexual predilection towards pre-pubertal or other young children, that may well assist them in an appropriate way in deciding the matter properly.”

The e-mails involving child sex abuse found on the appellant’s computer were relevant: it would be for the jury to consider whether there were innocent explanations for the appellant’s possession of them.  Defence counsel had pointed out that there was a significant difference in timing of the two sets of offences; that was, his Honour said, a matter for the jury to consider and, in any case, the computer games might have been possessed prior to the date charged.  He continued:

“If the jury were to conclude that the possession of the material subject of charges 16 to 22 indicates McCarthy had the predilection earlier referred to a better understanding on the jury’s part of the allegations raised in the first set of offences may result. It is something akin, it seems to me, of background evidence where if the jury were denied it they may have difficulty in understanding that such things - such things as alleged on the part of the accused could happen, but they might properly, when provided with the other information, have the reaction to the effect of, ‘Now, we understand.’”

Finally, his Honour said, the evidence on counts 16-22 was relevant to establish the identity of the appellant as the person corresponding with Shaw because there was an e‑mail address “common to what can be linked with [the appellant] and what can be linked with the computer chat material.”

[32]  On appeal, counsel for the respondent Crown submitted that the charges were joinable as a series of offences of the same or similar character involving sexual interference with children and its recording and retaining.  The evidence relating to counts 16-22 was, in addition, admissible to rebut an innocent connection with Shaw and a claim that the internet chat log was fabricated by Shaw, by establishing that he regularly dealt with material of a similar kind to that discussed in the chat log, and by showing that the appellant was indeed the “Pixel” in communication with Shaw.

[33]  As to the first, counsel said, the appellant’s unbelievable denials that he was the person responsible for the material found on his computer made equally unbelievable his claim that the internet chat log was a fake. In respect of showing that the appellant was “Pixel”, counsel suggested that child sex abuse material had been received by the “Pixel_34” email address on the appellant’s computer. In fact, the only evidence was Mr Illet saying rather vaguely that he was not sure whether the recipient account was “Pixel_34” or “Pixel_3” which had received “an email with perhaps attachments of possible child abuse material”.  The other connection made was that “Pixel_3” had sent the image files the subject of the eighth certificate, which counsel for the respondent (who had not appeared at the trial) assumed, not unreasonably, but, it seems, wrongly, (given what was said at the 590AA application) was tendered as evidence of the last count, count 22. On that incorrect supposition, counsel contended that if count 22 were properly joined, the addition of counts 16-21 entailed no additional prejudice.

[34]  Notwithstanding the liberal approach to be taken to joinder under s 567(2),[3] I do not consider that these offences were properly joined.  In the first instance, I do not think that counts 1-15 involved offences of the same or similar character as those entailed in counts 16-22. Consideration of whether charges entail a “series of offences of the same or similar character”:

“call[s] for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present.”[4]

[35]  These were not offences of the same legal character; nor could they be said to be of similar legal character, in the way that indecent assault and rape might be.  But even if one were to interpret the term so broadly as to say that because they were all offences involving sexual abuse of children, they were of similar legal character, it was still necessary that there be some nexus or connection between them in order to establish a series.[5]  That nexus may be constituted by factual similarity or may be demonstrated by the admissibility of the same evidence in respect of the different offences.

[36]  As to the first, there was no factual or temporal nexus between these offences, nor was there any practical aspect of their commission which connected them.  They did not involve common participants or a common victim or a similar methodology. The evidence did not establish that the appellant intended or was involved in Shaw’s uploading of the images of A to computer. Although the appellant subsequently received copies of the photographs, Shaw did not say that those images were transmitted or held on computer as opposed to being prints. Shaw was not involved in the appellant’s possession of child abuse computer games, which occurred two and a half years later and the pornographic images held on the appellant’s computer were not of his daughter.  The suggested connection, that photographing the child enabled Shaw to hold her image on computer and the later offences also involved the holding of indecent computer images, was tenuous in the extreme.

[37]  As to cross-admissibility of evidence, it was relevant for the Crown to prove that the appellant used the e-mail addresses “Pixel_34” and “Pixel_3” and the log-in “Pixel” in order to show that he was the person communicating using that name on the chat-log with Shaw. The abundance of other pornographic material found in various folders, hard copies and discs in the possession of the appellant, including that which was the subject of counts 16-22 did not assist in establishing his use of those names. It was unrelated to proof of anything but the appellant’s interest in child pornography; it had nothing to do with whether he indeed carried out the acts involving his daughter and Shaw. The notion that it was admissible as showing “sexual predilection” is simply wrong.

[38]  There was no evidence that any of the material the subject of counts 16-22 had been sent or received by email. But in any event, while it was relevant for the Crown to prove that the appellant sent emails using the address “Pixel_3” in order to bolster its case that he was “Pixel”, the additional information, that e-mails sent by “Pixel_3” attached child sex abuse material, did not add to the proof of that fact.  It was suggested that it went to rebut the appellant’s claim that he had not exchanged indecent material with Shaw. But the appellant was not charged with sending indecent material to Shaw.  The evidence that indicated he had done so was merely a step in the process of proof, by references contained in the relevant emails, that he was “Pixel”, in order to make admissible the chat log entries and in turn to corroborate Shaw’s evidence about the photographing of A. To show that the appellant might have sent such e-mails to others two or three years later merely established a discreditable propensity; there was no “sufficient nexus” between that evidence and the primary evidence on counts 1-15 such as to warrant its admission.[6]

[39]  As I have explained, there was, in my view, no basis for joinder of counts 16-22 with the earlier counts. If I am wrong in that regard, I would consider in any event that the two sets of charges ought to have been severed because the evidence on them was not cross‑admissible, and the risk of prejudice was palpable. Even where counts are properly joined, severance may be appropriate. In Hoch v The Queen,[7] Brennan and Dawson JJ cited De Jesus v The Queen[8] for the proposition that:

“If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts – and there usually is such a risk in sexual cases – separate trials should be ordered”.[9]

Here, the failure to order separate trials has led to impermissible prejudice and a consequent miscarriage of justice.

[40]  Finally, even if the evidence in relation to the second set of counts, 16-22, was admissible in respect of the earlier counts, consideration ought to have been given to whether the converse was true.[10]  The evidence in relation to counts 1-15 could not have proved anything in relation to the appellant’s possession of the images found on his computer and could only have prejudiced his trial on those counts.  On any view, counts 16-22 should have been tried separately, and the failure to do so has deprived the appellant of a fair trial on those counts.

Orders

[41]  The appeal should be allowed and separate re-trials ordered of the remaining counts on which the appellant was convicted: that is, the indecent treatment counts, 2, 4, 6, 8 and 15 in one trial, and counts 16-22 in another.

[42]  WILSON J:  I agree with the reasons for judgment of Holmes JA and with the orders Her Honour proposes.

[43]  PHILIPPIDES J:  I have had the advantage of reading the reasons for judgment of Holmes JA and I agree with those reasons and the orders proposed.