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R v Campbell[2009] QCA 128

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

DC No 2604 of 2006

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

DELIVERED ON:

22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2009

JUDGES:

McMurdo P, Chesterman JA and Daubney J

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

ORDERS:

1. Appeal allowed

2. Order the conviction be quashed

3. Direct a verdict of not guilty

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – TAKING OBJECTION TO SUMMING UP – where applicant contended there was a miscarriage of justice because the trial judge did not sufficiently direct the jury on the law relating to possession – where confusion as to the subject matter of the charge infected the summing up – whether as a consequence the trial judge had misdirected the jury on the element of “knowing possession”

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT AND PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where the appellant contended that there was a miscarriage of justice because the charge was duplicitous – where appellant argued it was not clear which item of child exploitation material was subject of the charge – whether there was confusion as to the subject matter of the charge

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant contended that the verdict was unreasonable and could not be supported having regard to the evidence – where lack of precision as to the subject matter of the charge infected the evidence – whether or not there was sufficient evidence to sustain the verdict

Criminal Code 1899 (Qld), s 207A, s 228D

Holland v The Queen (2005) 222 ALR 694; [2005] WASCA 140, applied

Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited

R v Morrow and Flynn [1991] 2 Qd R 309, applied

R v Sharpe [2001] 2 SCR 45; (2001) SCC 2, applied

R v Shew [1998] QCA 333, distinguished

R v Solway [1984] 2 Qd R 75, cited

COUNSEL:

D Shepherd for the appellant

P F Rutledge for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

[1]  McMURDO P:  This appeal should be allowed for the reasons given by Daubney J.  I agree with the orders set out by Daubney J.

[2]  CHESTERMAN JA:  I agree with the orders proposed by Daubney J for the reasons given by his Honour.

[3]  DAUBNEY J:  On 9 September 2008 a jury found the appellant guilty of an offence that between 6 September 2005 and 23 March 2006 he knowingly possessed child exploitation material contrary to s 228D of the Criminal Code 1899 (Qld).  He was convicted and sentenced to a 12 month intensive correction order.

[4]  The appellant appealed against that conviction.  Only one ground was stated in the notice of appeal, namely that the learned trial judge had erred in ruling that “someone”, as defined in the definition of “child exploitation material” in the Criminal Code, included a character in a fictional story.

[5]  By his counsel’s written submissions, however, the appellant advised that this ground would not be argued, accepting that the trial judge’s ruling was correct, and sought leave to add the following grounds:

“(ii)There was a miscarriage of justice because his Honour in his summing up did not sufficiently direct the jury on the law relating to possession.

(iii) There was a miscarriage of justice because the charge was duplicitous in that it alleged two offences in the one charge.

(iv) The verdict was unreasonable or cannot be supported having regard to the evidence.”

[6]  Leave was granted to add these grounds of appeal.  Prior to the hearing, counsel were requested to present argument to justify the abandonment of the first ground of appeal.

[7]  It is necessary to recount the course of the trial in some detail. 

[8]  Before the appellant was arraigned, the trial judge heard argument as to whether the subject matter of the charge, a fictional story which described sexual activity between an adult male and a pre-pubescent girl, could not constitute “child exploitation material”, as that term is defined in s 207A of the Criminal Code.  The essence of the submission was that, in order to constitute “child exploitation material”, the person depicted in the offending material had to be a real person as opposed to an imaginary character.  His Honour ruled that, for the purposes of the definition of “child exploitation material” it is not necessary for the offending material to depict a real person, as long as the person depicted apparently is a child under 16 years.

[9]  The appellant was then arraigned and the jury empanelled.  Before the prosecutor opened the Crown case, however, counsel for the appellant made the following admission:

“... the defence wishes to make an admission in relation to the actual material that is the subject of this charge and that admission is that for the purpose of this trial, it is admitted that the document -----

HIS HONOUR:  Can you speak slowly enough for me to write this down precisely?  For the purpose -----

MR GOODWIN:  For the purpose of this trial -----

HIS HONOUR:  It is admitted that?

MR GOODWIN:  That the material the subject of the charge does come within the definition of child exploitation material.

HIS HONOUR:  Thank you, Mr Goodwin.

MR POWER:  Your Honour, if I may at this time hand up the document to which that admission relates?  If that could be marked for identification in this trial?

HIS HONOUR:  The document will be marked C for identification.”

[10] The document marked “C” (“Document C”) was then placed in an envelope, which was ultimately sealed.

[11] In the course of opening the Crown case to the jury, the prosecutor said:

“Now, the defence made an admission of fact which is allowed for under our trial procedure that the document that’s in question in this trial is child exploitation material.  That means that you’re relieved of what would be quite an onerous duty of having to consider that.  So the issue in this trial is not whether or not the material constituted child exploitation material but whether the defendant knowingly had possession of it.

Now, the evidence you’ll hear is that admissions were made and the document was found on a computer in Mr Campbell’s house.  The prosecution case is that Mr Campbell, the defendant, downloaded the document from the internet at some point of time and that he had possession of it in an electronic format and that when the police searched his house on the 22nd of March 2006 they found two copies of that document.  One copy of the document on the face of it, the computer expert will tell you, was downloaded from the internet on the 7th of September 2005 and then manually saved to that computer and that a second copy had been saved from that original copy also onto the computer and it was an identical document that hadn’t been re-downloaded from the internet but rather copied across from that original file.”

[12] The first witness called was a psychologist, who had been seeing the appellant and his wife as clients since late 2005.  He was shown and identified document C as a five page document that had been provided to him by the appellant’s wife in the course of a counselling session.  He said that she contacted him for an urgent appointment, and he saw her on 31 January 2006.  The appellant did not attend this session, but the psychologist had several telephone discussions with him that day.  While the appellant’s wife was with him, the psychologist telephoned the appellant to try to get him to come in.  The psychologist said that the appellant denied any knowledge of the document in the course of this telephone discussion.  The psychologist said the appellant subsequently called on the appellant’s wife’s mobile phone.  The wife gave the phone to the psychologist, and the psychologist said in evidence that he “discussed it [referring to Document C] with him again and he made an admission as to this being his document”.  The psychologist was then asked in relation to that document specifically whether he remembered what the appellant said about that document, to which he replied: “Not verbatim, however the essence of the conversation was that he had a problem and that he needed help dealing with it.” 

[13] The psychologist said that he subsequently had a further session with the appellant, in which the psychologist suggested that the appellant should go on to a specialist “more able to deal with this kind of material”.  The following evidence was given:

“Okay.  Now, when – when you had that – was that a face-to-face conference with him? - - I believe it was.

Okay.  Now, at that meeting with him, what if anything did he say about document C? - -  That he -----

Sorry, I am referring to document C being that document? - -  This document in particular, yes.

Yes? - -  That that had been part of some pornography that he had been looking at on the internet.

Okay.  Did he say when he had seen or accessed it on the internet? - -  He didn’t give me a specific date.

All right.  Now, in terms of that document, did he say where he had accessed it from or anything of that nature? - -  Not that I can recall, no.

All right.  Now, after that conversation with [the appellant] – sorry, when you spoke to him face-to-face, did he examine that document, document C that you have, or did he not see it? - -  I believe I had put it in a secure place to make sure that nothing happened to it.

All right? - -  So I don’t believe he saw it at that time.

Okay.  What if anything did he say about that document – sorry, did you describe that document to him at any point or not? - -  Yes.

And without going into that description, was it in relation to that description that he made the comments that you’ve told us about? - -  Yes.

All right, thank you.  Now, after that point in time did you make contact with the Queensland Police Service and did they arrange to, by virtue of a legal search warrant, obtain that document, document C from your office? - -  Yes, they did.

All right.  And the particular document you have in front of you, that’s – is that the document the police took from your files when they acted under that search warrant with your consent? - -  Yes, it is.”

[14] Under cross-examination, the psychologist confirmed that he had been handed Document C by the appellant’s wife, and that in the first telephone call made to the appellant, the appellant said that he did not want to come in [to see the psychologist] and denied knowledge of the document.  The psychologist said that in the subsequent telephone call that day with the appellant, the appellant said “words to the effect that he did know about that document that I had referred to”, and when asked whether that was all the appellant had said, stated that the appellant had said “Words to that effect in the context of admitting that he had a problem and needed further help”.  The psychologist also confirmed that this conversation happened in the context of the materials (meaning Document C) having been sourced from an internet site called “Perverts ‘R’ Us”. 

[15] The psychologist also confirmed that when he subsequently saw the appellant in his office, Document C had been locked away in a filing cabinet, and was not shown to the appellant.  There was then the following passage of evidence:

“What I suggest he told you is that he had looked at that at a certain time, some time much earlier than when he spoke to you? --  Yes, but he wasn’t specific.

I suggest to you what he did was he told you that at a certain event – it doesn’t matter what the event was – but a certain event in his life he looked at that Perverts ‘R’ Us.  Is that roughly what he told you? -- He wasn’t specific about which events -----

No, all right? --  ----- that I can recall.

That’s okay.  But it was clearly some time well before when he was speaking to you? --  Absent him being specific I couldn’t say how long.

He didn’t say a date or anything like that, did he? --  No.

He simply said he looked at this site and he referred to it as Perverts ‘R’ Us, or that’s the site you were talking about? --  It was clear we were referring to the same document.”

[16] When re-examined, the psychologist was asked to clarify an answer he had given to the effect that it was clear, when he had the face to face meeting with the appellant, that they were referring to the same document.  He was asked what the appellant had said that made this clear, and responded that the appellant spoke about fantasies about underage girls and also some of the sexual content in the document itself, making it clear to the psychologist that they were referring to the same document.

[17] The lead police investigator then gave evidence that he received a telephone call from the psychologist who told him certain things, as a result of which the detective attended at the psychologist’s rooms on 6 March 2006 and took possession under a search warrant of the document which became Document C.  The detective then described executing a search warrant on the appellant’s home on 22 March 2006.  He identified the other police officers and the computer examiner who were present for that search.  At the time the search was conducted, the appellant and his mother in law were home.  The appellant complained of a chest complaint, and an ambulance was called for him.  While sitting on a chair waiting for the ambulance, the appellant indicated “that he was fine and that he said that he’d used computers in the house”.  The detective was then shown a series of photographs that depicted the area in the home office in which a black computer tower was located.  This was one of numerous computers which were seized from the appellant’s home that day, and the detective said that these computers were immediately lodged at the forensic computer examination unit property point.  The detective said that an arrangement was then made for examination of those computers, and he was later provided with, amongst other things, a copy of Document C.  The following evidence then ensued:

“Obviously we’ll hear evidence from that forensic examiner but the end result of that was [the appellant] was charged with the offences before the Court in relation to possession of document C that’s before you? -- That’s correct.”

[18] Under cross-examination, the detective confirmed that, apart from the black tower, there were three other tower computers and a laptop computer located in the appellant’s house.

[19] The next witness to give evidence was the forensic investigation officer who undertook the investigation of the hard drive on the black computer tower.  In his evidence in chief, he was shown a copy of Document C for identification and confirmed that he had been given a copy of that document and asked to conduct a search on all the computers “to determine whether or not that document existed in electronic form on any of the computers”.  He said that he found two copies of that document in separate locations, and described the means by which he conducted that search and located those copies of the document on the hard drive of the black computer tower.  He located those copies by using a forensic search tool which enabled him to search the contents of the hard drive by using the title of the document as a search term.  He was asked where one copy of Document C was found, and said:

“What did your investigation next show about where that copy of the Laura’s Lesson document was found? --  Directly in C drive was a folder called ‘Assignment’.  Within that there was another folder called ‘JLC Assignment’ and there was a copy of ‘Laura’s Lesson’ within a ‘Perverts ‘R’ Us New Client’ folder.”

[20] He said this document was created on the hard drive on 26 January 2006, and that this usually pointed to the date when the document was downloaded.  The document had also been modified.  The modification date was 7 September 2005.  That, however, pointed to the fact that there were two copies of the document on the hard drive, and the other copy had the same creation date, ie 7 September 2005.  He said:

“This usually indicates that the first one was downloaded on the 7th of September 2005, because it’s got a creation date and a modified date almost identical times.  This – this copy of the file was actually a second copy of the same document.  It’s possible to have a modified date earlier than the created date because when a new file is created it always receives a new creator date whereas the modified – because the file hasn’t been changed at all, the modified date is carried over from the previous copy.”

[21] He further confirmed that both copies were found in the “Assignment” folder, one being in the “Perverts ‘R’ Us New Client” folder and the second being in a folder entitled “JLC Assignment”.

[22] The forensic investigator gave evidence (without objection) that once he had located those documents on the hard drive, he printed them out to compare them to the original with which he had been provided.  The following evidence was then given (again, without objection):

“All right.  If I can show you two documents, they are two five-page documents.  Are they the two printouts that you took from those two electronic documents that you’ve been describing? --  They do appear to be, yes.”

[23] Under cross-examination, the forensic investigator confirmed that there were a total of five computers provided to him to investigate, being four computer towers and one laptop.  Otherwise, under cross-examination, he re-affirmed the investigation process, and the fact that both copies of the document found on the black tower hard disc, and their location:

“No, this was actually – both of them were within a folder just called ‘assignment’ and there were folders inside, like the JLC Assignment had the ‘Perverts ‘R’ Us New Client’ folder and within the JLC Assignment there was a copy of the JLC Assignment folder.”

[24] The next witness was one of the police officers who assisted in securing the house during the search.  He gave evidence that while disconnecting the black tower computer from its power source, the uninterruptible power supply (“UPS”) device attached to the computer started giving off an alarm, and that the appellant approached the computer to close it down, but the police officer told him not to because he was going to secure it and he did not want the appellant touching the computer again.

[25] Another police witness also gave evidence of seeing the black computer tower being seized during the search of the property.  Under cross-examination, he confirmed that, during the search, the appellant’s wife arrived at the house, and that the receipt for the seized property was given to her.  He also confirmed that she was an occupier of the property.

[26] The appellant elected to neither give nor call evidence. 

[27] When addressing the jury, the prosecutor referred to the formal admission which had been made on behalf of the appellant at the commencement of the trial and said that “it was an admission that the document that is the subject of this trial did constitute child exploitation material”. 

[28] Later in his address, the prosecutor told the jury that there was unchallenged evidence that, at the second face to face meeting between the appellant and the psychologist, the appellant had admitted that the document produced by the appellant’s wife to the psychologist belonged to the appellant.  The prosecutor said:

“In his words, as quoted from [the psychologist], it was his document.

Before he made that admission the document had been clearly described to him, he gave his reason for possessing that document, his fantasies about underage girls and that he had a problem and needed further help.

Now this evidence has not been challenged in any way under cross-examination and it’s not the subject of any contrary evidence so the prosecution would submit that you would have no difficulties in accepting that evidence.

That evidence of the defendant’s confession to possessing this trial would be sufficient in and of itself to sustain a conviction.  If you can imagine a case where the police had gone to search the defendant’s house and found nothing on the computer whatsoever, then you could still act on that clear admission to possessing that – that document, and you would be able to convict the defendant.

However, because, of course, he made an admission that he had possessed the document and that he download it from the internet, the specific document, of course, had been brought to the psychologist by his wife.”

[29] The prosecutor then moved to review the evidence concerning the electronic copies of the document which had been found on the black computer tower.

[30] The prosecutor concluded:

“So, ladies and gentlemen of the jury, the prosecution submits that this is a very clear case.  The defendant made a clear admission to possessing the child exploitation material.  He explained his reason why he was possessing this child exploitation material, that is, his fantasies about underage girls.

He possessed it not only on his computer at the time that he spoke to [the psychologist], but he continued to have possession of it, such that when the police searched his house on 22 March 2006, the police found two copies of it on a computer in his house that he attempted to actually access that day and certainly computers that he admitted to police he had access to, and that it had been last accessed – that document had been last accessed at 4 am that morning.”

[31] In the course of opening his address to the jury, counsel for the appellant said:

“I made an admission to the trial, to the Court that the material that we are talking about, the magic Exhibit C that you have heard talked about, this document called ‘Laura’s Lesson’ or ‘Perverts ‘R’ Us, it is child exploitation material..

By making that admission, it means exactly what Mr Power said.  It simply means the Crown doesn’t have to prove it.  It has another advantage, of course, and it is an advantage.  It means we don’t have to put it under your noses and you don’t have to read it to see what it contains, so that’s the end of the admission.  The admission is only that this material does constitute what is called child exploitation material.

The balance of the charge against [the appellant] is very, very much in issue.  That is, are you satisfied beyond a reasonable doubt he had it in his possession between those two dates.”

[32] When summing up to the jury, the learned trial judge referred to the admission, and said:

“The prosecution and the defence have agreed that the material, being document C for identification, which is the subject of this charge, does come within the definition of child exploitation material.  You must therefore treat that fact as proved.”

[33] Further in his summing up, the learned trial judge said:

“I should tell you now about the elements of the offence with which [the appellant] is charged.  The prosecution must prove (1) that [the appellant] possessed child exploitation material.  That is, that he possessed C for identification.  Possession involves custody or control of a thing, and/or the ability or the right to obtain custody or control of the thing.  So you will be needing to consider for the first of these elements whether [the appellant] possessed the material;  that is whether he had custody or control of it or the ability or the right to obtain custody or control of it.

Now, the material, of course, can be a copy of exhibit C – I shouldn’t call it exhibit C, the document marked C for identification was a document, you will recall, that was handed by [the appellant’s wife] to [the psychologist].  You might be satisfied that [the appellant] possessed child exploitation material if you are satisfied that he had custody or control of, or the ability or right to obtain custody or control of a document which is a copy of or identical with C for identification.  But the prosecution must prove something else.  They must prove that [the appellant] knowingly possessed the document.  It is necessary for the prosecution to prove a guilty knowledge of having possession of the offending material as an essential element of this offence.  You may think, for instance, that any person in the dwelling where the five computers existed, or any person in the dwelling where the black tower existed, if they were persons who had access to the computers, might be persons who had the ability to obtain the document, but they would also have to have knowingly possessed it;  that is a guilty knowledge of having possession of the offending material as an element of the offence.”

[34] In a redirection to the jury, the learned trial judge stressed a submission made by defence counsel that the psychologist had “jumped to a conclusion that [the appellant] had possession of the document when [the appellant] was merely admitting a problem he needed help about”.  He then said:

“Now, the defence maintains that submission but [sic] the defence case is that [the appellant] did have knowledge of the content of a document “Perverts ‘R’ Us:  Laura’s Lesson” but it is the defence case the Crown has not established that [the appellant] knowingly possessed it at any time in the relevant period between 6th of September 2005 and the 23rd of March 2006.”

[35] I shall return to the content of his Honour’s summing up when dealing with the ground of appeal concerning the directions concerning possession.

Child exploitation material

[36] The appellant was convicted of an offence under s 228D of the Criminal Code, which provides:

“A person who knowingly possesses child exploitation material commits a crime.

Maximum penalty – 5 years imprisonment.”

[37] The term “child exploitation material” is defined in s 207A:

child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years –

(a)in a sexual context, including, for example, engaging in a sexual activity; or

(b)in an offensive or demeaning context;  or

(c)    being subjected to abuse, cruelty or torture.”

[38] This definition clearly encompasses material, such as photographic images or video images, of real persons who are, or appear to be, under the age of 16 years. 

[39] There was no actual child involved in the material in the present case.  The story set out in Document C, which one can accept for present purposes contained a depiction of a child in a sexual context in a way likely to cause offence to a reasonable adult, was a work of fiction.  Nevertheless, his Honour held below and the point was not pursued on appeal, that this fictional material fell within the terms of the definition of “child exploitation material”.  In this regard, the construction of the definition is that the “someone” described or depicted by the material may not be a real person but may be a fictional character.

[40] In R v Sharpe,[1] the Supreme Court of Canada was called on to determine whether legislation which criminalised the possession of child pornography was unconstitutional as a contravention of the right to free expression provided for under the Canadian Charter of Rights and Freedoms.  In giving the judgment of the majority, McLachlin CJC outlined the competing values at stake, comparing the fundamental Canadian right to freedom of expression with “society’s interest in protecting children from the evils associated with the possession of child pornography”.  Her Honour continued:[2]

“Just as no-one denies the importance of free expression, so no-one denies that child pornography involves the exploitation of children.  The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children.  However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children.  Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.  Some of these links are disputed and must be considered in greater detail in the course of the Section 1 justification analysis.  The point at this stage is simply to describe the concerns that, according to the Government, justifying limiting free expression by banning the possession of child pornography.”

[41] The relevant definition of child pornography in that case provided for two categories of material:  visual representations, and written material which advocated or counselled sexual activity with a person under the age of 18 years. 

[42] In relation to the first category, a visual representation, in order to constitute child pornography, had to “show, depict, advocate or counsel” sexual activity with a “person”.  One of the questions which arose was whether “person” in this context applied only to actual, as opposed to imaginary persons.  McLachlin CJC said:

“[38]The first issue is important because it governs whether the prohibition on possession is confined to representations of actual persons, or whether it extends to drawings from the imagination, cartoons, or computer generated composites.  The available evidence suggests that explicit sexual materials can be harmful whether or not they depict actual children.  Moreover, with the quality of contemporary technology, it can be very difficult to distinguish a ‘real’ person from a computer creation or composite.  Interpreting ‘person’ in accordance with Parliament’s purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people.  Notwithstanding the fact that ‘person’ in the charging section and in Section 163.1(1)(b) refers to a flesh and blood person, I conclude that ‘person’ in Section 163.1(b)(a) includes both actual and imaginary human beings.

[39]This definition of child pornography catches depictions of imaginary human beings privately created and kept by the creator.  Thus, the prohibition extends to visual expressions of thought and imagination, even in the exceedingly private realm of solitary creation and enjoyment.  As will be seen, the private and creative nature of this expression, combined with the unlikelihood of its causing harm to children, creates problems for the law’s constitutionality.”

[43] This judgment of the Supreme Court of Canada was referred to, and relied on, in the Court of Appeal of Western Australia in Holland v The Queen.[3]  In that case, the appellant had been convicted of two counts of importing child pornography under the Customs Act 1901 (Cth).  The Customs Act relevantly provided (s 233BAB(3)) to the effect that an item was “child pornography” if it was a document or other goods that “depicted” a “person” who was or appeared to be under 16 years of age, and who was involved in a sexual pose or a sexual activity, and that was likely to cause offence to a reasonable adult.  It was argued in that case that the reference to “person” in the definition meant a real person and not a fictitious person or a character in a literary work.  Malcolm CJ said:[4]

“In my opinion, it is a notorious fact of which judicial notice could be taken that the word ‘person’, as it is commonly used in every day speech and language, extends to both real and fictitious persons.  As the New Shorter Oxford Dictionary itself makes clear, the word ‘person’ includes a person who plays a part in a drama or a character in a play or story.  It is clear that the word extends to real, imaginary and fictitious persons.”

[44] Roberts-Smith JA, with whom McLure JA agreed, said:[5]

“It is plain that the evil to which section 233BAB of the Customs Act was directed is the importation of child pornography, whether in the form of literature or photographs.  The underlying purposes were both to shield the community from injury and protect children from exploitation.  It would be inconsistent with the legislative purpose, and create an unnecessary anomaly, were the section to be construed to allow proscription of pictorial publications of serious child pornography as tier 2 goods but not allow such proscription of descriptive texts of serious child pornography.  The terms ‘describe’ or ‘depict’ are not defined in the Customs Act.  The ordinary meaning of the word ‘depict’ includes ‘describe’.  There is not textual constraint in the Act which would require the word ‘depict’ to be construed in a restricted sense to exclude ‘describe’.”

[45] In dealing with the argument that the word “person” in the section should refer to a natural person and not a fictional person, his Honour expressly rejected submissions that works of fiction lay outside the scope of the legislative prohibition, that argument being founded on the notion that the prohibition was to protect real persons from abuse in the making of pornography and from having to read or view unsolicited material they would find offensive.  In rejecting this argument, his Honour referred to the Canadian decision in R v Sharpe (supra), including the passage of the majority at [38] – [39], and concluded:

“[203]The ordinary use of the word ‘person’ includes a character in a story or a fictional or imaginary character.  The reasoning in Sharpe and Assheton lends considerable support to the respondent’s submission that the description or depiction of imaginary or fictional characters engaged in sexual activity of the kind proscribed, falls within the legislative intention of s 233BAB.  I see no difficulty in the idea that a piece of fictional writing might depict or describe a character who is, or appears to be, under 16 years of age, and who is involved in certain sexual activity, nor that such writing might fall within the purpose of the prohibition.”

[46] By parity of reasoning, I presently see no reason why a piece of literature that describes someone, being a fictional character, who is a child under 16 years in a sexual context might not fall within the definition of “child exploitation material”.  True it is that, in the wider context of the definition, such an approach would render literary works which portray children in offensive or demeaning contexts, or being subject to abuse, cruelty or torture (such as Charles Dickens’ “Oliver Twist”), or in a sexual context (such as Nabokov’s “Lolita”), prima facie susceptible to being characterized as “child exploitation material” if the description in each case is likely to cause offence to a reasonable adult.  But as to this, there are at least three further points to be made:

1.It is more than tolerably clear, at least from the authorities to which I have already referred, that the vice at which legislation of this nature is directed is not limited to the actual exploitation of real people in the production of offending material, but also to a perceived need to “shield the community” from offensive fictional material which describes the sexual or social abuse of children.

2.That it was the legislature’s intent that the definition should extend to the literary description of fictional characters is apparent from the Explanatory Notes to the Criminal Code (Child Pornography and Abuse) Amendment Bill (Qld) 2004, being the legislation by which these provisions were included in the Criminal Code, in which it was expressly said in relation to the definition of “child exploitation material”:

“This definition is broad enough to catch any material at all – images, sound recordings, objects and written descriptions.  It also includes data from which text, images or sounds can be generated (see the definition of ‘material’).

It is not necessary to prove that a child depicted in the material was in fact less than 16 years of age at the time the image or material was created.  It is also not necessary for the material to depict a real person.”

3.To the extent that a literary work which might or should be regarded as a piece of literature[6], might prima facie fall within the definition of “child exploitation material”, s 228E(2) would permit a person charged, for example, with the offence of possession of that material to raise a complete defence by, relevantly, proving that the person possessed the material for a genuine “artistic” or “educational” purpose.  An enquiry as to the matters which would need to be proved on such a defence is clearly beyond the ambit of the present discussion.

[47] Given, however, that the challenge to his Honour’s finding that the fictional material in this case did fall within the definition of “child exploitation material” was not pursued on the appeal, it is not necessary to make any further observations about this aspect.

The arguments on appeal

[48] The principal contentions advanced on behalf of the appellant in the appeal were that:-

(a)the trial judge had misdirected the jury on the element of “knowing possession”,

(b)there was a miscarriage of justice because the charge was duplicitous, and

(c)the verdict was unsafe and unsatisfactory.

[49] There was, as will be seen, a degree of overlap and inter-dependence between these arguments in the appeal hearing.

[50] From the narration of the trial set out earlier in this judgment, it is clear that there were three copies of the subject story:

(a)a hard copy, being the printed pages which the appellant’s wife gave the psychologist, and which was taken by police and ultimately became Document C in the trial;

(b)two electronic versions, each contained within different sub-folders in the “Assignments” folder contained on the hard drive in the black computer tower.

[51] The appellant’s argument, albeit framed as a contention of duplicity, was to the effect that it was simply not clear, either in the case presented by the prosecution or in the summing up to the jury, which of these was the item of child exploitation material which was actually the subject of the charge.  Particulars were not given of the item on which the Crown relied in pressing the charge.  The hard copy, Document C, was the subject of the admission made by the appellant at the commencement of the trial, but it is far from clear whether it was this hard copy or one of the electronic copies, and if so which one, which was the subject of the charge.

[52] The Crown submitted on appeal that, by reference to his Honour’s directions to the jury, the attention of the jury was focussed on the question of possession of the material found on the computer in the house.  That, of itself, is no answer to the notion that it is for the prosecution to identify the facts which are the subject of the particular charge.[7]  But there was, with respect, a lack of consistency in the way in which the trial judge put the matter to the jury (albeit an inconsistency fostered by the manner in which the case had been presented by the prosecution).  The respondent on appeal pointed to the second of the paragraphs quoted above in [31] in support of its contention, highlighting the judge’s reference to the material being a copy of Document C.

Yet in the immediately  preceding paragraph of the summing up, the trial judge had said, in terms, that the prosecution must prove that the appellant possessed child exploitation material – “That is, that he possessed C for identification.”

[53] In my view, the following remarks by Connolly J in R v Morrow and Flynn[8] are apposite and applicable with equal force to the present case:

“The nature of the Crown case was never made clear, whether by particulars or otherwise.  By this I mean that it was never made clear what precise offence was charged against the appellants or, if it was sought to have the indictment understood not in its natural sense but as charging several acts by each of them, what those acts were.  Even regarding the indictment as charging conjoint responsibility for the one offence, there was more than one such offence.  It follows that what really happened in this trial is that the jury was faced with evidence of some seven offences where one only was charged and that they were left to decide for themselves of which offence, if any, they were prepared to convict.

The case therefore was one in which there was what Dixon J., as he then was, described as a latent ambiguity in the indictment.  See Johnson v. Miller (1937) 59 C.L.R. 467 at 486.  That case concerned an offence against the Licensing Act of South Australia constituted by a person being seen coming from licensed premises during a Sunday unless the licensee proved to the satisfaction of the Justices certain matters personal to the person so seen.  The charge was that a person unknown was seen coming from the premises on a Sunday but it emerged that a number of persons were seen so doing.  Dixon J. at 486 pointed out that once it was proved that many persons unknown issued from the hotel it would become quite uncertain which was the person unknown in relation to whom the licensee must prove the exculpating facts.  As is pointed out by Dawson J. in S. v. The Queen (1989) 168 C.L.R. 266 at 274 the latent ambiguity required correction if the person charged was to have a fair trial.”

[54] The confusion, or lack of precision, as to the subject matter of the charge also infected the evidence led and the summing up given on the element of “knowing possession”.

[55] In R v Shew,[9] the Court of Appeal considered an appeal against conviction for the offence of possession of a child abuse computer game, contrary to s 26(3) of the Classification of Computer Games and Images Act (Qld) 1995 which provided that a person “must not knowingly have possession of a child abuse computer game.”  That particular Act provided a definition of “possession” in the following terms:

“‘possession’, of a computer game, includes –

(a)custody or control of the computer game;  and

(b)an ability or right to obtain custody or control of the computer game.”

[56] In the course of their joint reasons for judgment, McMurdo P and Jones J (Pincus JA generally agreeing) said:

“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’.

19In 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.’ ”

[57] The offence charged in the present case was, of course, not under that Act, but under the Criminal Code, and the particular definition of “possession” in that Act is not imported into the present case.  The necessity for the prosecution to prove guilty knowledge of possession of the subject material is, however, clearly an essential element of the offence under s 228D of the Criminal Code by reason of the wording of that section.

[58] In the Criminal Code, “possession” is defined in s 1 as follows:

possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.”

[59] The confusion in relation to the subject matter of the charge, however, highlights the difficulties encountered in the present case in respect of proof of “knowing possession”.

[60] To the extent that the subject matter of the charge was the hard copy, Document C, there was simply no evidence of that document having been in the possession of the appellant.  There was no evidence as to how it came into the possession of his wife (who passed it to the psychologist).

[61] To the extent that the subject matter of the charge was one of the electronic versions saved on the hard drive of the black tower computer, beyond the evidence that this was one of five computers taken from the appellant’s home, and evidence that he went to shut the computer down when the UPS alarm sounded, there was no evidence that the appellant was in possession of either of the relevant electronic files on the hard disk of the computer.  There was no evidence that the appellant knew of the existence of either of the files, that he laid some claim to either of the files (by them being identified, for example, as having been created or saved by him), or that he exercised control over either of the files[10].  Moreover, notwithstanding there being evidence that this was one of five computers in a house occupied by the appellant and his wife, no evidence was led either to link the appellant in any meaningful way to the particular computer nor to exclude possession on the part of the other occupant.

[62] To the extent that the Crown sought to rely on the appellant’s so-called admission to the psychologist that he did know about the document which the psychologist had referred to (but not shown the appellant), it is sufficient to observe that this may have amounted to proof, or at least tended to prove, the appellant’s knowledge of the content of the document, but was no proof of possession of either the hard copy or the electronic versions.

[63] It seems to me, therefore, that the learned trial judge’s directions were, with respect, inadequate, not least because of the lack of definition of the item which was the subject of the charge, but also because in a case such as the present, in which joint possession was not alleged, the jury should have been directed that proof of possession under s 228D required proof that others were or could be excluded from control of the thing in question.

[64] In any event, however, it seems to me that the defects in particularisation and proof of the prosecution case were so serious as to warrant a conclusion that the verdict was unsafe and not able to be supported on the evidence led at trial.  It is convenient for present purposes to quote further from the joint judgment in R v Shew:

“37The 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.’

38The 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.’

39In 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.”

[65] As in Shew’s Case, the evidence in the present case was in short compass.  But in contrast to Shew’s Case, there were no admissions by the appellant with respect to either the hard copy of the document or either of the computer files, nor any admissions even concerning ownership of the computer, nor any evidence from any other person as to the provenance of the hard copy document or ownership of the black tower computer, such as to found the sorts of inferences to which reference was made in Shew’s Case.  On the contrary, and for the reasons I have given above, I consider there was not, as a matter of law, sufficient evidence to sustain the verdict.

[66] I would therefore allow the appeal, order the conviction be quashed and direct that a verdict of not guilty be entered.

Footnotes

[1] [2001] SCR 45.

[2] [2001] SCR 45 at [28].

[3] (2005) 222 ALR 694.

[4] At [17].

[5] At [189].

[6] As that term is understood in its primary meaning in The Macquarie Dictionary (3rd ed), namely “writings in which expression and form in connection with ideas of permanent and universal interest, are characteristic or essential features, as poetry, romance, history, biography, essays etc.”.

[7] Johnson v Miller [1937] 59 CLR 467 per Dixon J at 490.

[8] [1991] 2 Qd R 309 at 313.

[9] [1998] QCA 333.

[10] See R v Solway [1984] 2 Qd R 75, per Demack J, with whom Campbell CJ and Connolly J agreed, at 77.

Close

Editorial Notes

  • Published Case Name:

    R v Campbell

  • Shortened Case Name:

    R v Campbell

  • MNC:

    [2009] QCA 128

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Chesterman JA, Daubney J

  • Date:

    22 May 2009

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC2604/06 (No Citation)09 Sep 2008Convicted by jury of knowingly possessing child exploitation material; sentenced to 12 month intensive correction order
Appeal Determined (QCA)[2009] QCA 12822 May 2009Trial directions inadequate; defects in particularisation and proof of prosecution case as to warrant conclusion verdict was unsafe and not able to be supported by evidence at trial; appeal allowed; order conviction be quashed; direct verdict of not guilty: McMurdo P, Chesterman JA and Daubney J

Appeal Status

Appeal Determined (QCA)

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