I created a Compact Disc from this image file (hereinafter referred to as PC01CDImage01) which I labeled "E05 / 036 - Created Disc" I examined the contents of PC01CDImage01 and found it contained 3,154 graphic image files in JPEG format which may depict child pornography.
218 The statements set out in those paragraphs are not at all easy for the uninitiated to understand. I note that there was no oral evidence about the nature of the "temporary directory". There was no evidence showing how the officer had identified, retrieved and reproduced the data. There was no evidence whether the means he used was, as for "deleted" material, available from software suppliers or from the internet. There was no evidence that since the relevant use of the computer in 2003 any application had been made that suggested that the appellant knew that the computer created such a temporary directory or how long such a temporary directory was likely to last.
219 I think that Sergeant McCulloch's evidence meant this. It is possible to use a computer to transfer data from a digital camera to a compact disc. There are installation programs that can be used to perform that function. If such a process is undertaken, one result is that the hard drive sets up for itself a temporary file containing a further record of the data transferred from the camera to the disc. The officer noted that on the hard drive there had been installed an application capable of performing that function. He searched for temporary files. He found some and transferred them to the compact disc. The record showed that the function of making a compact disc and laying down the temporary files on the hard drive had happened on 7 February 2003.
220 Sergeant McCulloch compared with one another the image files contained on the two discs tendered in evidence. There were four common images.
221 Sergeant McCulloch found other data on the hard drives as well. One of them contained an application called Internet Explorer. It maintained a number of files including a history of internet sites to which access had been obtained. It showed that a user logged on as "Peter Clark" had used Internet Explorer to search the internet for resources matching certain search terms. In an annexure to his report the officer listed a resume of such searches. They showed, among other things, that the computer had been used to search for information using terms "teen", "boy" (on more than one occasion), "SexyBoys…", "young teens" on three occasions and "16 year olds". The computer had been used to visit the websites "teenaffection.com", "incest place - pichunter.com" ", "little teen gallery.com" and "teenmpgmovies.com".
222 The officer also gave evidence of identifying a record on one of the hard drives that on 28 December 2004, over a space of approximately one and half to two hours, some 7,400 files had been deleted. He retrieved some or all of those files and produced a list of 200 of their names and particulars. The list became exhibit Z. They all had names suggesting an interest in boys, particularly a sexual interest. I do not find it necessary to repeat the names.
223 Sergeant McCulloch's explanation of the processes of deletion and the creation of compact discs from digital cameras by the use of the computer and of the resulting effects upon the relevant hard drive was not challenged.
224 The third count was brought under s91H, Crimes Act, which is as follows -
1) Definitions
In this section:
child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context, or
(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).
disseminate child pornography, includes:
(a) send, supply, exhibit, transmit or communicate it to another person, or
(b) make it available for access by another person, or
(c) enter into any agreement or arrangement to do so.
(2) Production or dissemination of child pornography
A person who produces or disseminates child pornography is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
(3) Possession of child pornography
A person who has child pornography in his or her possession is guilty of an offence.
Maximum penalty: imprisonment for 5 years.
(4) Defences
It is a defence to any charge for an offence under subsection (2) or (3):
(a) that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography, or
(b) that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC), or
(c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant's conduct was reasonable for that purpose, or
(d) that the defendant was a law enforcement officer acting in the course of his or her official duties, or
(e) that the defendant was acting in the course of his or her official duties in connection with the classification of the material concerned under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth.
(5) Defence to possession of child pornography
It is a defence to any charge for an offence under subsection (3) that the material concerned came into the defendant's possession unsolicited and the defendant, as soon as he or she became aware of its pornographic nature, took reasonable steps to get rid of it.
225 Section 7 Crimes Act is as follows -
7 "Possession" when criminal
Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who:
(a) has any such property in his or her custody, or
(b) knowingly has any such property in the custody of another person, or
(c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another.
226 As Gibbs CJ, Mason, Brennan and Dawson JJ said in He Kaw Teh v The Queen, where a statute makes it an offence to have possession of goods, knowledge of the accused that those goods are in his custody, in the absence of a sufficient indication of a contrary intention, will be a necessary ingredient of the offence, because the word "possession" itself necessarily imports a mental element. The fact that the appellant was charged with having possessed data, rather than goods, makes no difference in principle. As I have observed, his Honour directed himself in accordance with the principles explained in He Kaw Teh v The Queen. The question for his Honour was whether the appellant intentionally possessed the data which were in due course transferred by Sergeant McCulloch to the two discs put into evidence.
227 In my opinion nothing in s91H or in s7 necessarily or by implication removes the requirement for the Crown to prove, when charging possession of some thing or some material, that the accused's possession is intentional. No doubt some users of computers are highly expert in the art and realise that data which have been "deleted" may remain in whole or in part upon the hard drive and may by employing suitable means, be identified and retrieved. No doubt many other users of computers believe that the word "deleted" means what it says. Such persons, wishing to rid themselves forever of material on their computers, believe that by following the deletion procedure they have achieved exactly that end.
228 The Court was not referred to any Australian decision on the concept of possession in such circumstances, but there are two English cases. Mr Ramage QC included a reference in his written submissions to R v Porter [2006] EWCA Crim 560, a decision of the Criminal Division of the Court of Appeal.
229 Section 160 of the English Criminal Justice Act 1988 is as follows -
160 Summary offence of possession of indecent photograph of child
(1) It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession.
(2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove -
(a) that he had a legitimate reason for having the photograph in his possession; or
(b) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent; or
(c) that the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
(3) A person shall be liable on summary conviction of an offence under this section to a fine not exceeding level 5 on the standard scale.
(4) Sections 1(3), 2(3), 3 and 7 of the [1978 c. 37.] Protection of Children Act 1978 shall have effect as if any reference in them to that Act included a reference to this section.
(5) Possession before this section comes into force is not an offence.
230 In R v Porter the appellant had been convicted of possessing indecent photographs of children. One of the counts concerned a number of still images all of which had been "deleted". According to the judgment the data had been placed first into the "recycle bin", then the recycle bin had been emptied. The Court was satisfied that there was nothing further the user could have done to get rid of the data. The second count under consideration comprised a number of movie files, seven of which had been "deleted" by the same means. The Crown conceded that all the deletions had been done before the police took possession of the computer equipment. The Crown also conceded that the appellant had no software to retrieve or review deleted files.
231 The appellant had submitted at trial that he had no case to answer on the first count and concerning the relevant files on the second, because they were not in his possession at the time, since he had done all he could to divest himself of possession and did not know that they were where they were found. The trial judge rejected the submission, holding that the appellant possessed the files whether they were in an "active" or a "deleted" category.
232 It was submitted on appeal that images had to be readily accessible to a defendant for viewing at the time they were said to be possessed, or capable of being made accessible without the need to obtain specialist software. It was also submitted that a person who had, for example, placed them in the recycle bin and emptied it, was no longer in possession.
233 The Court of Appeal held that if a person could not retrieve or gain access to an image he no longer had custody or control of it. It was not appropriate to say that a person who could not retrieve an image was in possession of it. It was a matter for the jury whether the images were beyond the person's control.
234 Atkins v Director of Public Prosecutions [2000] Cr App R 248 concerned a conviction which had been entered up in the Magistrate's Court of the possession of indecent photographs of children. One of the charges, like those in R v Porter, was laid under s160 Criminal Justice Act 1988.
235 A number of photographs were shown to have been downloaded from the internet using a browser program. Those photographs were shown to have been viewed by whoever used the computer but then to have been deliberately "not saved", which for present purposes is equivalent to "deleted". There was expert evidence before the magistrate which showed that a user could deliberately choose to download or save documents but that it was not commonly known by users that the browser automatically created an automatic temporary information store, a "cache" of recently viewed documents. The cache was automatically emptied of documents as it became full, but even then an expert could retrieve the information. .
236 The magistrate had ruled that the section created an offence of strict liability, the effect of which was mitigated only by the three statutory defences set out in subs (2). A case was stated which asked the High Court to say whether that was a correct view.
237 Delivering the judgment of the court, Simon Brown LJ, having reviewed the facts and the expert evidence, observed that the central question was whether or not knowledge of the existence and effect of the cache was an essential ingredient of the offence of possession under s160. Having dealt with two aspects of the Magistrate's ruling not relevant here, his Lordship observed that the relevance of knowledge of possession fell to be decided in accordance with general principle. Reference was made to a number of English cases which I need not cite here. His Lordship continued at 262 -
Once again, therefore, I prefer Miss Malcolm's argument that knowledge is an essential element in the offence of possession under section 160 so that an accused cannot be convicted where, as here, he cannot be shown to be aware of the existence of a cache of photographs in the first place.
Returning to section 160(2)(b), it seems to me indeed that the very fact that Parliament created a defence for those possessing photographs reasonably not known to be indecent, strongly suggests that there was no intention to criminalise unknowing possession of photographs in the first place.
238 I find these cases persuasive. The structure of s160 Criminal Justice Act is similar to that of s91H. Both acts deal with similar subject matter, likely to be possessed in the form of electronic data recorded on a computer hard drive. Both make possession an offence. Both are enacted in jurisdictions where possession, to constitute an offence, has to be intentional unless there is clear indication to the contrary. The defences are substantially similar: cf s160(2)(b) and s91H(4)(a); s160(2)(c) and s91H(5). I think that they should be followed in construing the requirements of s91H.
239 In giving judgment his Honour dealt with the evidence of Sergeant McCulloch saying this (AB 49) -
He found a number of photographs, well over 3,000, which he produced to the court and also a CD Disk with 22 photographs.
240 I do not think that the way his Honour put it was intended to convey an understanding that the officer had found a disc. His Honour was well aware that the officer had produced a disc from material on the hard drive. His Honour went on to say something about the images produced and to conclude that they were pornographic.
241 His Honour summarised the evidence about the effects of deletion, remarking that it was not a process of removal, quoting the evidence of the officer that "the data is not removed from the drive. It is essentially sitting there, available for re-use, all the blocks of disc area that it sits on is available for re-use if required".
242 His Honour reviewed the evidence of what was needed to recover the data, particularly evidence that it was a process which did not require a high level of technical skill, and that most of the "tools" were automated, designed for commercial or consumer applications in such a way that a disc would scan the system and present a listing of all deleted files and enabling the user to choose any file he wished to recover.
243 Having summarised the evidence of Sergeant McCulloch his Honour said this (AB 51) -
I think that pretty well summed-up his evidence with this exception. He said that the accused's computer did not require a password to operate it. In other words, his evidence was quite clear, that this material which was clearly pornographic, had been and was available on the computer. There can be no doubt, as of 27 January, that it was in the possession of the accused, in that it was found in his premises during the search.
244 His Honour then dealt with the defence under subs (4)(a). Having rejected that defence, his Honour continued (AB 53) -
I am also satisfied it was in his possession on 27 January when the police seized it. The elements in the offence, the date, the place and everything else are proven beyond reasonable doubt. There was clearly child pornography on that computer. It was there. There were persons under sixteen engaging in sexual activity and placed in a sexual context. He had possession of it and none of the defence could apply to him. I do not believe there is anything further I can say.
245 In coming to these conclusions his Honour made no distinction between the data which produced the 22 images on exhibit AA and the data which produced the 3,154 images on exhibit BB.
246 In my opinion his Honour was obliged to ask himself whether the accused knew that the data reproduced on exhibit AA existed on the hard drive at the date of search and, if so, whether he knew how to retrieve them. Before he could find the appellant guilty of the possession of the 3,154 images reproduced on exhibit BB, his Honour was obliged to ask himself whether the appellant knew that the data existed on the hard drive at the relevant time and, if so, whether he knew how to retrieve them.
247 Unfortunately, although his Honour initially correctly directed himself that the Crown had to prove intentional possession, which in the present case involved proof that the appellant knew that the data were present and retrievable, those questions were never ultimately framed or answered. One reason for this may have been that during the debate that followed the close of the evidence the only reference made to possession concerned the establishment by the appellant of the statutory defences. So his Honour received no assistance on what the Crown had to prove to establish possession.
248 I would uphold this ground of appeal.