Appellant v Respondent

2 On 26 October 2020, the magistrate made orders convicting Mr McKechnie of those offences and imposing a sentence. The magistrate also convicted the appellant of breach of his parole[2] based on his guilt of the child pornography offences.

3 The appellant appealed[3] on questions of law to this Court from those convictions and the consequential orders made by the magistrate[4] and from his registration as a sex offender with reporting obligations for life under the Sex Offenders Registration Act 2004 (Vic).[5]

4 Last week that appeal was heard,[6] more than five years after the magistrate's orders were made and more than 10 years after the events in question.

5 It appears that the appellant represented himself throughout the proceedings in the Magistrates' Court and he also did so in this Court.[7] By his notice of appeal in this proceeding[8] he raised various questions of law and grounds of appeal, and by a series of proposed amended notices of appeal last year, he belatedly sought to raise many others.

6 At the heart of the case, in my view, lay the question of whether the learned magistrate gave reasons for his decision that met the required legal standard.[9] If adequate reasons were given and their content could be discerned, this in turn would have lent assistance to answering questions posed by the notice of appeal as to whether the magistrate applied the correct standard of proof and what (if any) evidence supported the findings his Honour made. In my view, these were the key questions raised by the appellant's notice of appeal.

7 I mention the other questions raised by the notice of appeal only briefly in the course of my reasons below. Amongst the questions and grounds he sought to rely upon in these documents he did not include a question or ground impugning the magistrate's decision on the basis of any alleged denial of procedural fairness. However, the appellant's reply submissions belatedly included such a contention. I have not relied upon any such ground of appeal in determining the outcome of the appeal.

8 As these reasons explain, I have decided the appeal in the appellant's favour. I have done so on the sole ground that his Honour's reasons for finding the appellant guilty and convicting him on the three charges of knowing possession of child pornography did not meet the standard required by law. It was unnecessary for me to reach conclusions on the other questions and grounds.

9 I intend to order that the three convictions of knowing possession of child pornography and the (dependent) breach of parole conviction be quashed and the matter remitted to the Magistrates' Court, differently constituted. Before I make final orders to that effect, the parties will be given an opportunity to make any submissions about final orders.

10 As a sidenote, it is necessary for me to comment on the excessively protracted nature, and the waste of public resources, involved in the proceeding in this Court, and as far as I can tell in the Magistrates' Court also.

11 Judicial officers of this Court sought to case manage the proceeding from its inception to about mid-2023, making numerous timetabling and case preparation orders, to little or no avail. An interlocutory application was brought by Mr McKechnie toward the end of that period relating to his preparations for the case, which was dismissed by the Court.[10] I was the judge allocated to the case in about mid-2023. From about this time, the proceeding was punctuated and delayed by numerous interlocutory applications by Mr McKechnie, most of which were wholly unsuccessful.[11] At a directions hearing early in 2025, I expressed my intention that the matter should progress to a final hearing in 2025. From April 2025 to late last year, Mr McKechnie belatedly sought to expand the questions of law and grounds of appeal in a series of proposed amended notices of appeal. I refused leave for him to add to the existing questions and grounds, but treated the contents of those documents that were reasonably understood as being confined to the existing questions and grounds as particulars and submissions in support of the existing questions and grounds.[12]

12 I have gleaned from the transcripts of the proceeding in the Magistrates' Court that its final hearing was quite significantly delayed and also that, when it did occur, it did not run as smoothly as it could have. I am unable to reach any conclusive views about the reasons for this. However, I can discern that Mr McKechnie participated in the final hearing via remote link, and that a witness statement or 'affidavit' setting out the intended 'testimony of defendant' (most of which related to computer systems and data and was quite technical) was apparently sent to the prosecution by Mr McKechnie the day before the hearing but did not reach the prosecution in time (testimony document). These facts contributed to the final hearing not running as smoothly as it could have.

13 Further, the prosecution did not call any witness who professed to have any expertise in computers (although apparently one such witness had been included in a list of intended witnesses). The transcript of the first session of that day did not record anything spoken by Mr McKechnie into his microphone at the prison, and so it is difficult to make sense of his cross-examination of the informant, Detective Evans. Detective Evans seemed unable to respond to questions that (apparently) raised technical computing matters. Later in the hearing, Mr McKechnie gave the evidence he had set out in the 'testimony' document. He was then cross-examined, but (perhaps understandably) he was not cross-examined in any real depth on the computer evidence.

14 Some of the difficulties encountered in the proceedings were perhaps unavoidable. However, in my view, if Mr McKechnie had been legally represented from the outset, it is likely that the delays and costs involved in both proceedings would not have been as severe.

15 The factual context was accurately summarised in the respondent's submissions.[13]

16 On 25 September 2015, police executed a search warrant issued under s 465 of the Crimes Act at Mr McKechnie's residence of 99 Kiewa Valley Highway, Tawonga South. The warrant authorised police to search the residence to obtain evidence in relation to suspected child pornography offences.[14]

17 During the search, police located Mr McKechnie's personal effects as well as computers, mobile phones and other digital devices and their components. Police took photographs of the residence and items found there during the search.[15] Police also seized several items. Relevantly, one item seized included a computer system described as a 'Thermaltake Tower' which contained two hard drives. The Thermaltake Tower was located beside the area described by Mr McKechnie as his 'workstation'.[16] Mr McKechnie was interviewed by police but declined to answer questions.

18 Along with other digital devices seized,[17] the two hard drives in the Thermaltake Tower were analysed by technicians within the e-Crime team of Victoria Police. Those two hard drives were found to contain child pornography. Over the course of five days in December 2015 and January 2016, the informant, Detective Evans, viewed and categorised the materials.[18] In the event, the informant determined:

(a) the first hard drive (HDD#1) contained six images depicting a person who is or appears to be a minor in an indecent sexual context (charge 1);

(b) the second hard drive (HDD#2) contained 1756 images depicting a person who is or appears to be a minor in an indecent sexual context (charge 2);[19] and

(c) HDD#2 also contained 95 movies depicting a person who is or appears to be a minor in an indecent sexual context (charge 3).

19 Reports prepared by the e-Crime team of Victoria Police and tendered before the magistrate in support of the charges set out metadata for all the above files, including their file paths.[20] However, there was some uncertainty in the evidence of the informant about whether the file paths were an accurate statement of the file paths on HDD#1 and HDD#2, and to what extent they were a statement of file paths on one or more devices owned by the e-Crime team of Victoria Police to capture and record files that had been on HDD#1 and HDD#2.

20 Files displaying photos and documents personal to Mr McKechnie were also found on the hard drives.[21]

21 Mr McKechnie was convicted of murder by the Queensland Supreme Court in 1996 and sentenced to life imprisonment.[22] He was later transferred to Victoria and released on parole. Shortly after execution of the warrant, Mr McKechnie's parole was cancelled and he was taken into custody.

Proceedings in the Magistrates' Court of Victoria

22 On 9 September 2016, the appellant was charged with three counts of knowingly possessing child pornography contrary to s 70(1) of the Crimes Act and summonsed to appear to answer the charges.

23 Mr McKechnie was also charged with breach of parole. I was informed by counsel for the respondent that this charge was entirely dependent on Mr McKechnie's guilt of child pornography charges.

24 Four years went by before the charges were heard. That is largely unexplained.

25 On 10 September 2020, a contested summary hearing in relation to the three charges was heard before a magistrate at the Magistrates' Court in Wangaratta. The prosecution's main witness was the informant. All exhibits except the photographs taken during the search warrant were tendered through him.[23] Detective Senior Constable Wade Spokes was also called and the photographs were tendered through him.[24] The words spoken by Mr McKechnie at the commencement of the hearing and throughout the prosecution case were not recorded and do not appear in the transcript that is in evidence.

26 After the close of the prosecution case, following the lunch adjournment, the appellant gave evidence and adduced documents in his own defence.[25] The transcript captures Mr McKechnie's testimony and submissions to the magistrate in the course of his defence of the charges.[26]

27 As already noted, at the start of his case, Mr McKechnie sought to tender a testimony document. The magistrate required him to give evidence in that document orally. He did so. He subsequently, toward the end of the hearing, sought to tender the document again. The document was ultimately received and marked as an exhibit.[27]

28 The key points of present relevance in Mr McKechnie's evidence were as follows:[28]

(a) Mr McKechnie had expertise in computers and mathematics.

(b) Mr McKechnie's main job entailed preparing information to be submitted for analysis by a supercomputer in a remote location (in Western Australia).

(c) Mr McKechnie also had, as a part-time occupation, a business involving repurposing old electrical goods and computers. Some of the photos tendered by the police showed miscellaneous parts in his workplace.

(d) For the purpose of assisting his main job, Mr McKechnie had, under development, a computing system in his home that he intended would assist in preparing data to be sent for analysis by the remote super computer. The system under development included a specialised and valuable piece of hardware known as a 'K40 GPU' or 'K40 processor', that had been supplied to Mr McKechnie by Nvidia Pty Ltd. Mr McKechnie called his system under development the 'K40 system'. It consisted of components recently purchased, in 'approximately June 2015'. All components except the K40 processor were recently purchased from eBay and Gumtree.[29]

(e) As to the first hard disk drive (HDD#1), in Mr McKechnie's opinion the child exploitation material (also referred to as 'CEM') files found on the device were operating system generated files as shown by the fact they were thumbnails and their file path description showed they were in a sub-folder generated by an operating system. The document described a system not used by a person directly.[30]

(f) As to the second hard disk drive (HDD#2), the child exploitation material existed as a result of a 'bulk file transfer' and was unnoticed due to the quantity of the data moved, and records that they were never open or used. During the Magistrates' Court proceedings Mr McKechnie was not provided with a complete report of the 2516 image files found on HDD#2. However, based on the first page of the report concerning the still images and the report of the video files, Mr McKechnie inferred that the files and still images had all been 'accessed', meaning saved on this hard drive, within a very short interval of time (shortly after 6am on 22 March 2014). During that interval it would have been humanly impossible for anyone to have watched them or viewed them. This is a characteristic of bulk files being transferred.

(g) File paths of all the files in HDD#2 included 'D\$RECYCLE.BIN' followed by a long sequence of numbers that were computer generated. The file path and digits are typical of what happens when a file is delivered on a Windows based system. It may be that an entire operating system was simply copied and dumped as data on HDD#2.[31] This is supported by the file path being followed by a slash rather than a colon. The recycle bin in this case does not belong to the operating system of HDD#2. All this means is that data was transferred from an unknown recorded device. No thumbnail exists. If images had been clicked on there would be a thumbnail.

29 Mr McKechnie gave evidence squarely denying knowledge of his possession of the child pornography:

... I did not know that the child exploitation material existed and I do not know where they came from. The K40 system on which the files were found is the most valuable item - is the most valuable item that I own and is an extremely important item for the continuation of my academic working career.

To knowingly have files on this system that would cause me to lose it ..... does not represent a reasonable hypothesis.... or by simple lack of knowledge of the content of some second-hand device.[32]

30 As already noted, Mr McKechnie was cross-examined. It is evident from earlier references in the transcript that the testimony document (defence exhibit 6) had not reached the prosecution the day before the hearing, or at any time before the hearing. Understandably, perhaps, the cross-examination was relevantly limited to procedural points and it was not suggested squarely that Mr McKechnie was giving false evidence in any respect. In particular, the prosecutor did not put to Mr McKechnie that HDD#1 and HDD#2 were new when purchased by him (not purchased second-hand, as he had testified) or that it was not reasonably possible that Mr McKechnie had inadvertently transferred them during a bulk transfer of data. The closest the prosecutor came to suggesting this was in a passage as follows:

PROSECUTOR: Thank you, your Honour. All right. Mr McKechnie, so but you've had access to this tower this whole time and you're saying basically that these photos have got there unbeknownst to you even though you've had control of the tower or the hard drives.

MR McKECHNIE: Yes.

PROSECUTOR: It just happened.

MR McKECHNIE: Well - well, it's - it's a very vague statement, just happened. I mean, there's a process.

PROSECUTOR: You have to put - someone has to put them there, don't they?

MR McKECHNIE: I absolutely agree with you and I - I said might give a longwinded ... statement but this is exactly what must have happened. But it wasn't by me.

PROSECUTOR: But you have control of the hard drives. You've put your own information in them.

MR McKECHNIE: ... your information can go on with your sister's information on the same hard drive. That doesn't mean that it's your or her hard drive or that you know what she put on it. Hard drives are shared and they're used and they're distributed between people ...

PROSECUTOR: But you haven't - - -

MR McKECHNIE: ... this ..[might have][33]... had 10 different owners - 10 different people on it.

PROSECUTOR: You never suggested that to the informant at any time that it had 10 different owners or was - that anyone else could have done it.

MR McKECHNIE: The informant showed themselves to be lacking technical savvy. I was regretting that Mr Sikh [Seip] wasn't here because he seems to be the only person who had some.

PROSECUTOR: I don't know - anyway, at the end of the day you never put to the informant that it was someone else's - may have put it there, did you?

MR McKECHNIE: I ... the best I could, yes. That was the implication.[34]

31 As can be seen from the above example, the cross-examination took the form of suggesting to Mr McKechnie that he had not raised key aspects of his evidence with the informant rather than challenging him directly about their truth. The prosecutor never directly accused Mr McKechnie of his evidence being recent invention.

PROSECUTOR: Your Honour, I know that you're not required to point to the facts in matters, but in this case because it's circumstantially put, the knowingly part of the charge where he knowingly possesses child pornography, your Honour, and it's suggested that - and that's put on the basis that has been outlined in cross examination and evidence-in-chief the tower is possessed by Mr - the accused. The premises is occupied by him. There's items of personal interest found within those hard drives belonging to him. There's been no other person ..... access nominated by him. There's been no denial that he actually did possess them. It's been suggested that they just appeared there, your Honour.

MR McKECHNIE: That's not right. I object.

PROSECUTOR: When you - the - sorry, your Honour. The - all of the - when you add up all of the items, your Honour, your Honour must - can draw a conclusion that based on all of the facts and circumstances surrounding the circumstantial matters of the knowing can form a view on those circumstantial facts that the accused did in fact know that the items in question were on - contained on his hard drive.[35]

1. The magistrate did not rule on the objection made by Mr McKechnie in this passage. It was unclear whether the magistrate accepted the prosecutor's characterisation of Mr McKechnie's evidence as being that the child exploitation material had 'just appeared'. The magistrate asked the prosecutor for clarification that there were three separate charges, and it was clarified that charge 1 related to HDD#1 and charges 2 and 3 related to HDD#2. There was some discussion about defining the exhibits before the Court, during which Mr McKechnie was able to tender his testimony document.

34 The magistrate then gave the following reasons for judgment, concluding in a finding of guilt as to the three charges:

HIS HONOUR: Now, as I was saying, it is not for the defendant to prove anything. The prosecution must prove its case beyond reasonable doubt. The prosecution relies on an analysis of two computer hard drives which were found in a computer tower in the workstation as described in Mr McKechnie's workstation schematic. Therefore, these items, the data in this computer is in the possession of Mr McKechnie. The charge is, of course, that he knowingly has it in his possession. Now, Mr - it's noteworthy here that the material provided by the prosecution in various exhibits sets out lists of movies and images. Those files have various creation dates in and around February of 2013. And best as I can understand, the file creation dates on the file and the last written date are similar, if not exactly the same, separated only by a short period of time.

There would appear to me and somebody may correct me if I'm wrong, but it appears to me that certainly all if not the bulk of items were accessed on 22 March 2014. Now, Mr McKechnie has given evidence that he has significant academic qualifications in and around mathematics and computing and is or describes himself as being an expert in computing and, indeed, repairs of these - of machines. The other matter that I - in fact, as I understand it, Mr McKechnie says, well, these have just been created by some form of data transfer and it's impossible for him to have viewed all these items in the creation time or the access time. A physical impossibility. And therefore because he couldn't physically do that, then he couldn't knowingly possess them is my understanding of his evidence.

Furthermore, Mr McKechnie's evidence was that the hard drives were incorporated into a computer containing a very - extremely or very valuable computer processor known as a K40 which has a high operating capacity and thus generates a lot of heat. I also note that some of the items discovered have filenames which are variously described as hotlols and with a female's name of varying natures attached, show stars. So the computer appears to have contained files known as hotlols and images referred to as JPEGS with the full path being stunning dolls, little guests, star touch at least in part. So it's the prosecution's position that because they're on his computer they're in his possession and the inference can be drawn that he knows they're in his possession.

As I said earlier, Mr McKechnie describes himself and would appear to be a man well versed in computing and with varying degrees in the topic and his evidence was that he was provided the K40 processor to assist in forwarding complex mathematical processes or formulas or material that he's created to I believe a computer in Western Australia - a supercomputer in Western Australia. I struggle to understand how it would be that a person of such expertise creating material and using a specialised processor to forward to I think the square kilometre processor in Western Australia would use second-hand hard drives.

MR McKECHNIE: ...

HIS HONOUR: But I think the evidence was that he obtained them second-hand. In fact, I'm sure it was.

MR McKECHNIE: Yes.

HIS HONOUR: Whilst - - -

MR McKECHNIE: ...

HIS HONOUR: It therefore appears to me that these files have been transferred as a bulk lot, as Mr McKechnie was saying on various occasions given the various creation dates or otherwise with his knowledge onto the computer. That being the case, I intend to find Mr McKechnie guilty.[36]

35 His Honour conducted a sentencing hearing and made orders imposing convictions and a sentence on 26 October 2020. Court orders made on that day record convictions on four charges: the three charges of knowing possession of child pornography contrary to then s 70(1) of the Crimes Act; and the single charge relating to breach of parole, which was dependent on a conviction on at least one of the first three charges. Mr McKechnie was sentenced to 21 days' imprisonment in aggregate for the three convictions for offences under s 70(1) of the Crimes Act, it being noted that 31 days was treated as already served.[37] Mr McKechnie was discharged without sentence in relation to the conviction of breach of parole.

36 A further hearing was conducted on 7 December 2020 in relation to the question of registration of Mr McKechnie under the Sex Offenders Registration Act. The transcript on 7 December 2020 indicates relevantly as follows:

(a) the magistrate referred to an application by the prosecutor, first made on 26 October 2020 and renewed on 7 December 2020, that Mr McKechnie be 'registered' on the Sex Offenders Register for 'a life term';[38]

(b) his Honour regarded 'registration' as mandatory given that there were three separate charges of offending and three convictions, even though it might have been possible for those counts to have been rolled into a single charge;[39]

(c) Mr McKechnie said he had prepared an application or appeal to the Supreme Court;[40] and

(d) his Honour said:

... I am compelled by law to place you on the Sex Offenders Registration, or to register you as a sex offender for life. This is a decision that you can appeal to the County Court along with my decision of finding you guilty with respect to the charges, which would entitle you to a hearing de novo and afford you the opportunity of discussing with the prosecution why these charges couldn't be rolled up into one and that you could defend one single charge rather than three, which is the ultimate consequence, if you were to be found guilty, would be a different registration regime. I'm sorry, sir. But this is the order that I am compelled to make. It's mandatory and I do wish you well in the future. We will send you ... the paperwork.[41]

37 I assume that, in referring to registration for life on 7 December 2020, his Honour had in mind the duration of reporting obligations, referred to in s 34 of the Sex Offenders Registration Act. That section relevantly provided, in s 34(1)(c)(iii):

(1) A registrable offender must continue to comply with the reporting obligations imposed by this Part for -

...

(c) the remainder of his or her life, if he or she -

...

(iii) has ever been found guilty of 3 or more Class 2 offences.

38 The offences of which Mr McKechnie was convicted were Class 2 offences - possession of child pornography contrary to s 70(1) of the Crimes Act,[42] which is referred to as a Class 2 offence in item 18 of Schedule 2 to the Sex Offenders Registration Act.

39 As I noted in a previous ruling in this proceeding,[43] the Sex Offenders Registration Act is not explicit as to the mechanism by which registrable offenders who commit certain relevant offences after 2004 are entered on the Sex Offenders Register. The Victorian Law Reform Commission had this to say on the subject in its report 'Sex offenders registration' in December 2011 (references omitted):[44]

3.17 Statutory inclusion occurs automatically once the adult offender has been sentenced for a Class 1 or Class 2 offence. There is no need for a court to make a registration order and, in fact, a court has no power to do so because of the automatic operation of the statutory scheme. ...

3.18 There is marked confusion about the statutory inclusion component of the registration scheme. Some judicial officers make registration orders in these circumstances because they believe the Act requires them to do so. In other cases, the parties have assumed that an offender has avoided inclusion in the Register when the judicial officer has not made a formal registration order.

...

3.47 When a court imposes a sentence for a registrable offence it must give the offender written notice of the reporting obligations and the reporting period.

...

3.50 Adult registered sex offenders are required to report for eight years, 15 years or the rest of their lives, depending on the offences they have committed.

40 On a proper analysis of what occurred, the Magistrates' Court made no order on 7 December 2020. No certified order bearing that date was adduced in evidence before me.

41 In my view, registration and lifetime reporting obligations were simply statutory outcomes of the three convictions of Class 2 offences against Mr McKechnie recorded in the Magistrates' Court's orders of 26 October 2020, without any orders being required.

THE FAILURE TO PROVIDE REASONS FOR DECISION THAT MET THE REQUIRED STANDARD - ANALYSIS AND CONCLUSIONS

42 As noted earlier in these reasons, it is convenient to address the question of whether the magistrate's oral reasons for judgment (reproduced in paragraph 34 above) met the required legal standard. If they did, it would then be possible to go on to address whether his Honour failed to apply the correct standard of proof and whether his Honour's findings were made in the absence of probative evidence. Depending on the outcome, it might have been relevant to go on to consider the other questions and grounds in the notice of appeal: whether the 'indictment' (charges) were defective, or whether the magistrate wrongly rejected evidence, imposed a sentence beyond power, misunderstood the sentencing requirements, or made a decision that was unsafe and unsatisfactory.[45]

43 His Honour was required to provide reasons for concluding that Mr McKechnie was guilty, and those reasons had to disclose his path of reasoning sufficiently to show whether or not an appeal may lie (that is, here, whether the magistrate did or did not err in law).

44 The Court of Appeal explained the legal standard in a case such as this in Makeham v Sheppard.[46] Amongst other things, Priest JA said as follows (references omitted):

In any disputed case, a magistrate should set out material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found. That is not to say that a magistrate necessarily must make explicit findings on each disputed piece of evidence, or make findings on every argument or submission made - particularly where they are numerous and of varying significance - but those that are important to the ultimate decision must be set out.

45 Weinberg JA said (references omitted):[47]

As Priest JA has observed, it has long been recognised that judicial officers are required, at common law, to give reasons for their decisions. Not only that, but those reasons must be adequate. They must, at least, expose the path of reasoning which led the judge to arrive at his or her conclusion. The obligation is fundamental and integral to the exercise of judicial power. The duty to give reasons rests as well on magistrates exercising summary jurisdiction, who, of course, exercise judicial power.

46 Weinberg JA identified[48] the reasons for this duty identified in the oft cited judgment of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd:[49] first, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision; secondly, the giving of reasons furthers judicial accountability; and thirdly, the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.

47 The test for adequacy is less stringent where, as here, a busy magistrate is in the course of hearing a high volume of criminal cases summarily.

48 Priest JA referred to a decision of Roberts-Smith J of the Supreme Court of Western Australia,[50] and then said:[51]

Clearly, the content of the duty to give reasons will vary from court to court and case to case. The obligation that rests upon a busy magistrate, hearing dozens of summary matters in a day, will obviously be less onerous than that which rests upon a judge of a higher court, who will not be burdened with the same daily caseload. As Roberts-Smith J observed in Hardcastle, the realities of pressure of work in the Magistrates' Court must be acknowledged. Thus, it might be expected that in many summary criminal hearings, it will be practical for a magistrate only to give relatively brief reasons.

49 Weinberg JA agreed with this point. His Honour, too, examined the cases in some detail, considering the question of what level of detail has been required as to the test for adequacy of reasons.[52] Relevantly, Weinberg JA concluded:[53]

Self-evidently, the adequacy of a judge's reasons will depend on the importance of the point involved and its likely effect on the outcome of the case. The reasons should deal with the substantial points raised by the parties and they should, of course, include findings on material questions of fact. They should refer to the key evidence, or other material upon which those findings were based. They should provide an intelligible explanation of the process that has led the judicial officer from the evidence to the findings, and from the findings to the ultimate conclusion.

50 In my respectful opinion, applying the above principles, the magistrate's reasons reproduced in paragraph 34 above were inadequate in two respects.

51 First, in my view it was unclear whether his Honour found that Mr McKechnie had not acquired the hard drives second-hand, or (if he did make that finding) what was the intelligible explanation for rejecting Mr McKechnie's evidence to the contrary.

52 In this regard, I am mindful that it was contended by the respondent on the appeal that his Honour had rejected Mr McKechnie's evidence that he purchased HDD#1 and HDD#2 second-hand. The respondent contended that this was clear from the words:

... I struggle to understand how it would be that a person of such expertise creating material and using a specialised processor to forward to I think the square kilometre processor in Western Australia would use second-hand hard drives.[54]

53 I am also mindful that, at least in parts of Mr McKechnie's submissions, he characterised the decision against him as based on the dismissal of his evidence that the drives were second-hand.

54 I am also mindful that it may be appropriate to find that missing elements of reasons for decision can be supplied by a process of implication or 'necessary inference',[55] and that the respondent in this case submitted that it is clear from the passage that follows in his Honour's reasoning that he must have rejected Mr McKechnie's evidence that the hard drives were second-hand.

1. I disagree with both of the respondent's contentions. And if or to the extent that, at points in his submissions, Mr McKechnie suggested that he accepted his Honour made a finding rejecting his evidence that the hard drives were second-hand, I do not regard those statements as giving rise to any estoppel or as otherwise binding me to that same view of the reasons. I am unable to discern whether the magistrate firmly reached the conclusion that the hard drives were new when acquired by Mr McKechnie. I am unable to find that his Honour reached this conclusion as a matter of necessary implication or inference. Drawing such a conclusion would be particularly difficult in circumstances where the prosecutor did not squarely challenge Mr McKechnie as to the truth of his evidence that the hard drives were second-hand.

56 In the alternative, if his Honour did reach such a conclusion, I am unable to discern any intelligible path of reasoning for it. Again, it is significant that neither the prosecutor nor his Honour made any suggestion during the cross-examination of Mr McKechnie or deny his submissions that, as a computer expert developing a computer system incorporating the valuable K40 drive he would not use second-hand hard drives. Any such suggestion might have been met with plausible answers. The topic was simply unexplored.

57 In all the circumstances, I am respectfully unable to follow his Honour's path of reasoning from the point that Mr McKechnie was a computer expert building a system with the K40 drive to any conclusion that his evidence of using second-hand drives was false.

58 The second way in which, in my respectful view, the magistrate's reasons reproduced in paragraph 34 were inadequate, is that I cannot discern the path of reasoning from the proposition that there must have been a 'bulk transfer' to the proposition that Mr McKechnie knew all the data that was in that transfer.

59 It will be recalled that Mr McKechnie gave evidence not only that the hard drives were acquired by him second-hand but also that, at least as regards HDD#2, his interpretation of the e-Crime reports was that the child exploitation material must have been transferred as part of a bulk transfer.[56]

60 This aspect of Mr McKechnie's evidence was accepted and relied upon by his Honour in the first part of the concluding passage of his reasons for judgment:

It therefore appears to me that these files have been transferred as a bulk lot, as Mr McKechnie was saying on various occasions given the various creation dates or otherwise with his knowledge onto the computer. That being the case, I intend to find Mr McKechnie guilty.[57]

61 The first sentence in the above passage contains two parts. The first, longer, part reflected evidence Mr McKechnie gave:

It therefore appears to me that these files have been transferred as a bulk lot, as Mr McKechnie was saying on various occasions given the various creation dates ...

62 There is perhaps a misunderstanding disclosed in these words, because Mr McKechnie's opinion evidence about the relevant files in HDD#2 being bulk transferred rested on the close proximity of the 'accessed' times, but this is probably immaterial. The key point is that his Honour indicated that he accepted Mr McKechnie's evidence on this point.

63 It will be recalled that Mr McKechnie's evidence was accompanied by a firm denial that he knew about the child exploitation material being in the hard disks, and that his opinion was that the files were transferred during a bulk transfer 'unnoticed'.

64 The second part of the first sentence of the concluding passage of his Honour's reasons for judgment then abruptly changes direction and the final sentence is based upon this change of direction:

... or otherwise with his knowledge onto the computer. That being the case, I intend to find Mr McKechnie guilty.

65 There is no explanation for how his Honour reached the conclusion that the transfer occurred 'or otherwise with his knowledge ...'.

66 I have carefully considered the respondent's submissions to the effect that I should infer, or find implied, the missing steps in his Honour's reasoning.[58] However, again, I do not think it is possible to imply the missing steps in this manner. That is particularly so in circumstances where there was effectively no cross-examination on this topic. The proposition that was put to Mr McKechnie by the prosecutor that he (Mr McKechnie) was asserting that the files 'just appeared' was not an accurate characterisation of Mr McKechnie's evidence. His evidence was based on an analysis of the metadata accompanying the relevant files. Neither the prosecutor nor the magistrate addressed the gist of that evidence or the testimony of Mr McKechnie that the files were transferred by process of bulk transfer and he was unaware of the files being present.

67 The respondent submitted that his Honour was in a high volume summary crime jurisdiction and this means a less stringent approach is to be taken to the adequacy of his reasons for judgment. So much may be accepted in principle. However, I do not think that this sufficiently explains the gaps in the reasons in this case. The fact that it was a summary criminal hearing does not absolve the reasons in this case from being impugned for failure to meet the required standard.

68 Further, it appears that some time was dedicated to the proceedings in the Magistrates' Court, as befitted the seriousness of the charges and the complexity of the subject-matter. The e-Crime reports to be tendered by the prosecution were lengthy and complex. This was clearly not a case that his Honour was required to dispose of in the course of a busy daily list of summary contests. His Honour appears to have heard the contest over the course of almost an entire hearing day, and there were subsequent quite substantial hearings on sentencing and on sex offender registration. The computer-related evidence set out by Mr McKechnie in his testimony document (and ultimately given viva voce by him) was evidently quite substantive and called for a more detailed response that in received both during the conduct of the contest on 10 September 2020, and in his Honour's decision-making and reasons.

69 Also contrary to the respondent's submissions, I am satisfied that the inadequacy of the reasons would have made it difficult (and perhaps impossible) for Mr McKechnie to understand whether an appeal would succeed, specifically with respect to the question of whether the magistrate adopted the correct standard (and burden) of proof, and whether his key finding that Mr McKechnie knew he was in possession of the child exploitation material was open on the evidence.

70 For the above reasons, I am satisfied that the magistrate failed to give reasons for his decision to the standard required by law, and the convictions and consequential orders and sex offender registration should be quashed.[59]

71 Because I am unsure of what his Honour's key findings and reasoning were, I am unable to determine question/ground 4 of the notice of appeal, which contended that the magistrate applied the wrong standard of proof. I will therefore not address what the parties had to say on that topic.[60] For similar reasons, I cannot determine question/ground 1, which contended that there was no evidence to support the magistrate's findings.[61]

72 In my view it would serve no useful purpose to address the other questions and grounds relied upon by Mr McKechnie, or to traverse the questions he belatedly attempted to include in his proposed amended notices of appeal.

73 I have considered the evidentiary point I reserved at the hearing last week concerning Mr McKechnie's affidavit dated 16 October 2025 and filed 6 November 2025, in which he exhibited evidence suggesting that the hard drives in question were manufactured many years before 2015. I have decided that that evidence was not before the magistrate and was not admissible in the proceeding before me. I therefore uphold the respondent's objection to its admission into evidence.

[2] Corrections Act 1986 (Vic) s 78A.

[3] Criminal Procedure Act 2009 (Vic) s 272.

[4] Orders entered on 26 October 2020 in Magistrates' Court case number G12666961 (breach of parole charge) and case number G13301604 (three knowing possession of child pornography charges).

[5] Notified by the magistrate to Mr McKechnie on 7 December 2020.

[6] The evidence before the Court was the entire contents of the agreed court book prepared by the respondent and dated 18 July 2025 and an additional, unsworn affidavit of Mr McKechnie dated 4 June 2025, which was received into evidence under s 28A of the Oaths and Affirmations Act 1958 (Vic). Mr McKechnie also sought to rely on his affidavit dated 16 October 2025 and filed 6 November 2026, setting out evidence of the date of manufacture of two hard disks that were central to the prosecution case against him. The respondent objected on grounds that the information was fresh evidence and irrelevant to an appeal on a question of law. The Court reserved its decision as to the admissibility of this affidavit.

[7] On 25 February 2025, the Court referred the proceeding to the Victorian Bar Pro Bono scheme requesting representation for Mr McKechnie, but the referral was not accepted by any barrister.

[8] Notice of appeal filed 4 January 2021. This was and remained the only originating process on which Mr McKechnie had leave to rely.

[9] Notice of appeal, question of law 3, alleging that the magistrate 'failed to provide sufficient reasons for deciding the case contrary to uncontradicted, inherently reasonably corroborated evidence', and question of law 8, alleging that his Honour 'failed [to] provide adequate reasons so that decisions made may be properly address[ed] upon appeal'.

[10] McKechnie v State of Victoria [2023] VSC 259 (Ginnane J, 17 May 2023) refusing Mr McKechnie's application to be provided with a computer for his sole use inside his cell.

[11] McKechnie v Evans (Recusal Application) [2024] VSC 192 (Gray J, 22 April 2024) refusing Mr McKechnie's application to disqualify Gray J from hearing the proceeding; McKechnie v Evans (Communication Summonses) [2024] VSC 295 (Gray J, 5 June 2024) refusing Mr McKechnie's application for various orders relating to communications to him in prison relating to his legal proceedings; McKechnie v Evans (Production application - preliminary issue) [2024] VSC 661 (Gray J, 31 October 2024, revised 8 November 2024) relating to whether Mr McKechnie should be granted leave to appeal out of time as a step toward determining his application for production of various documents; McKechnie v Evans (Production application - conclusion) [2024] VSC 689 (Gray J, 8 November 2024), granting Mr McKechnie's application for a complete copy of one of the exhibits tendered by the prosecution before the magistrate and otherwise dismissing his production application); McKechnie v Evans, unpublished ruling given orally on 4 June 2025 and in writing on 3 July 2025 in response to Mr McKechnie's informal application for leave to rely on a proposed amended notice of appeal. In 2025, the Court conducted regular mentions of the proceeding in a concerted effort to get the matter to its final hearing, making interlocutory orders to this end on 25 February 2025, 7 May 2025, 10 June 2025, 25 July 2025, 21 August 2025, 9 September 2025, 10 October 2025 and 12 November 2025. A final hearing listed on 14 November 2025 was vacated in circumstances where Mr McKechnie had been moved to another prison without his legal materials. The Court attempted to have a directions hearing listed on 1 December 2025 for the purpose of deciding whether and when the final hearing could be relisted, but this attempt was abandoned after the Court received various contentions and proposals in correspondence from the parties. The directions hearing was relisted for 3 February 2026. In the lead up to that date, correspondence from the parties indicated that Mr McKechnie might be prepared for the listing to be converted to the final hearing of the appeal. In the end, although Mr McKechnie still did not have access to many of his legal materials, he consented to the listing on 3 February 2026 being used at the final hearing of the appeal on the basis that he would substantially rely on his written materials.

[12] See in particular McKechnie v Evans, unpublished ruling given orally on 4 June 2025 and in writing on 3 July 2025.

[13] Respondent's Outline of Submissions dated and filed 26 August 2025, [7]-[15].

[14] Police Exhibit 1 - Section 465 Search Warrant within Exhibit OPP-4 (Police Exhibits) as exhibited to the affidavit of the prosecutor, Senior Constable Heath Dosser (Dosser affidavit): Court Book (CB) 131.

[15] Police Exhibit 3 - 75 Photographs (Photographs bundle) within Police Exhibits: CB 134-208.

[16] Photographs bundle: CB 139-144; Defence Exhibit 1 - Work Station Schematic within Exhibit OPP-3 (Defence Exhibits) as exhibited to Dosser affidavit: CB 106.

[17] Transcript of proceedings in the Magistrates' Court of Victoria at Wangaratta, 10 October 2020 (Transcript): CB 56.13-56.17.

[18] Ibid: CB 30.34-30.46, 57.37-59.04.

[19] HDD#2 also contained 760 image files categorised as 'non-illegal but connected', making 2561 relevant image files on HDD#2 in total: CB 214.

[20] Police Exhibit 5, CB 209 (overview of categorisation scale used for categorization in reports of images in HDD#1); Police Exhibit 6 (regarding 6 categorised images in HDD#1) CB 210-212; Police Exhibits 8 and 9 (overview of categorisation scale used for categorization in reports of images and videos in HDD#2) CB 214, 215-228 (report of 94 categorised 'movies'/'.avi' video files in HDD#2; Police Exhibit 10 (first page only, as provided to Mr McKechnie during the proceeding before the magistrate) and complete version of Police Exhibit 10 later produced to him during the Supreme Court proceeding CB 258-600, regarding 1756 images categorised 1 (CEM - no sexual activity) and 760 categorised 7 (non‑illegal but connected) in HDD#2.

[21] Police Exhibit 7 - Photographs of accused on HDD#1: CB 213; Police Exhibit 11 - Further e-Crime Report Photos and personal documents of accused on HDD#2: CB 230-234.

[28] Transcript: CB 67-74; see also testimony document CB 121-130.

[33] It was uncontroversial at the hearing in the Supreme Court that additional words to this effect were spoken but not picked up by the transcript.

[37] Sentencing Act 1991 (Vic) s 18.

[38] Transcript of proceedings in the Magistrates' Court of Victoria at Wangaratta, 7 December 2020: CB 248.

[42] Section 70(1) has since been repealed but was in force at the time of the offences.

[43] McKechnie v Evans (Production application - preliminary issue) [2024] VSC 661 (Gray J, 31 October 2024, revised 8 November 2024) relating to whether Mr McKechnie should be granted leave to appeal out of time as a step toward determining his application for production of various documents.

[44] Victorian Law Reform Commission, Sex offenders registration (Final Report, 22 December 2011). The Act was amended after publication of this report, but the passage remains an accurate description of the Act in late 2020. See also R v Cheetham [2006] VSCA 126; (2006) 13 VR 304, [4].

[45] A contention that a decision is unsafe and unsatisfactory is not a contention describing a question of law that may be appealed under s 272 of the Criminal Procedure Act, but such a contention might raise a question of law if and to the extent it rests on a contention that the decision was not open on the evidence. See Makeham v Sheppard [2020] VSCA 242, [63]-[64] (Priest JA).

[46] [2020] VSCA 242 (Priest, Kyrou and Weinberg JJA). Although the case also concerned the more specific question of whether the Magistrates' Court had directed itself in accordance with the Jury Directions Act 2015 (Vic) s 4A, which does not arise here, the more general comments of their Honours on the content of the duty to give reasons are applicable to this case.

[47] Makeham v Sheppard [2020] VSCA 242, [72].

[49] (1987) 10 NSWLR 247.

[50] Betts v Hardcastle (2001) 23 WAR 559.

[51] Makeham v Sheppard [2020] VSCA 242, [41] (Priest JA).

[55] Frankling v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA, Warren CJ and Nettle JA agreeing), citing Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 19 (Gray J).

[56] The respondent contended that these two points were made by Mr McKechnie in the alternative (respondent's outline of submissions, [67.2]). Mr McKechnie used such language (Transcript: CB 74.10-74.20) but I do not read his evidence as being that they were mutually exclusive possibilities. I interpret his evidence as being that either (or both) of them was capable of being a reasonable explanation consistent with innocence.

[58] Respondent's outline of submission filed 26 August 2025 [58]-[71].

[59] Criminal Procedure Act s 272.

[60] See respondent's outline of submissions, [72], [73].

[61] See respondent's outline of submissions, [18]-[57].