[79] I am satisfied that the Plaintiff has demonstrated that the learned Magistrate erred in law in his construction of cl 18A PSD Regulations. I am satisfied also that the learned Magistrate erred in law in dismissing each of the five charges upon the basis of the erroneous construction of the provision.
20 In the present case there was no dispute of fact to be resolved by the magistrate other than whether on the facts as agreed the offence had been made out. That question depended upon the construction to be given to the word "film" in s 578B. The magistrate held that on the facts the defendant was not in possession of a "film" as he interpreted the relevant provisions and, therefore, there was no prima facie case. Whether or not there was evidence to support the charge was in my view a matter of law even though it involved a consideration of the meaning of a word in the provision giving rise to the offence. It seems to me in the circumstances of an appeal by the prosecutor against the dismissal of a charge where the magistrate has found that there is no evidence to support it, that this involves a "question of law alone" notwithstanding that it also involved the determination of a meaning of a word in a section of an act.
21 It is clear that for the purpose of s 578B a "film" includes "a cinematograph,……,and any other form of recording from which a visual image, including a computer generated image can be produced". It is also clear that a "computer generated image" is not a film: it is a visual image that is produced from a "film". A computer generated image is "an image…produced by use of a computer monitor……from electronically recorded data". Therefore, it is the "electronically recorded data" in the computer that amounts to a "film" for the purposes of the section.
22 As I understand the evidence, "the electronically recorded data" that produced the "computer generated image" viewed by the defendant was the jpeg file sent by the computer operating the web site to the computer operated by the defendant when he indicated by clicking on a particular page and then on a particular image that he wished to view the image or images on the page. Before the defendant could view either the page displaying the thumbnail images or the page displaying the enhancement of a single image from the thumbnails, the relevant jpeg file had to be sent to the defendant's computer and stored automatically in the temporary Internet cache. It was the jpeg file, transmitted to and stored in the defendant's computer, that created the image that he viewed on the monitor.
23 In my opinion what the defendant viewed on the monitor was a "computer generated image". The jpeg file in the temporary Internet cache was a "film" within the terms of the section because it was a "form of recording from which …….a computer generated image can be produced". Although the defendant had a "film" or a number of "films" on one of the hard drives of his computer, he was not in possession of any "film" on his computer because he was not aware of its existence.
24 The plaintiff points out that the definition of "film" is not exhaustive and includes "any other form of recording". But a "film" must be a recording. A recording in everyday parlance is a store of information for subsequent reproduction, however permanent or temporary that storage might be. In my opinion if the information is not stored there is no recording of the information. There is no reason to read the word any differently when it is used in the relevant provisions. To the contrary the examples specified of recordings in the definition of "film" are all storage facilities for the reproduction of information. The image when viewed by the defendant on the monitor was, in my view, merely the retrieval or reproduction of material stored in the jpeg file in the temporary Internet cache.
25 The plaintiff in the initial submissions argued that the defendant "clicked on various photographs and must have been acutely aware that at least at that time the computer had recorded and retained the information transmitted". There is in my opinion no evidence to support that proposition and it seems to me, with respect, to be contrary to the way the case was presented by the prosecutor before the magistrate. The prosecutor conceded in effect that he could not prove that the defendant knew that the images were recorded on the computer in any shape or form.
26 The plaintiff in later written submission, received after the Court had reserved, submitted that "the only restriction on 'recording' is in the capacity of such a recording to produce a visual image". It was then argued that "thumbnail images are inherently capable of producing visual images in the sense of 'showing visual images' because they are already in the form of visual images". The argument proceeded as follows: the defendant paid for accessed thumbnail images that were displayed upon his monitor; the image was a collection of pixels; a photograph may itself be a recording; the thumbnail images are less permanent than the recording in the cache; but nevertheless the images were at the behest of the defendant sent to his computer for his viewing for such time as he desired; in that sense they were a recording.
27 With respect I do not completely follow the argument. The thumbnails of images, and the enlarged images, were in the possession of the person operating the Internet site. They were not in the possession of the defendant unless he knew that they were recorded in the jpeg file in the cache of his computer. While the defendant might have thought that he was viewing images that were on the computer of the Internet site, in fact he was viewing images on his computer. In any event, it does seem to me to matter what the defendant thought was the mechanism whereby he was able to view the images.
28 The Magistrate held that a "film" for the purposes of the section could not include a jpeg file. As I understand the evidence that finding, with respect, cannot be correct. The problem for the prosecution was not that the jpeg files in the temporary Internet cache could not be a recording for the purpose of the definition of a "film" under the section but rather that the defendant did not know of their existence. But in my opinion the Magistrate was correct in finding that the visual image on the monitor was not itself a recording and, therefore, the plaintiff when viewing an image was not by that activity alone in possession of a recording. There was no prima facie case and the magistrate was correct in dismissing the charge.
29 The summons should be dismissed with costs.
**********