Director of Public Prosecutions v Kear

CASES CITED : Director of Public Prosecutions v Belani (2005) 64 NSWLR 319 Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343

PARTIES : Director of Public Prosecutions v Martin Kear

COUNSEL : D. Frearson SC - Plaintiff P. Boulten SC - Defendant

SOLICITORS : S. Kavanagh - Plaintiff Nyman Gibson Stewart - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

15828/2005 DIRECTOR OF PUBLIC PROSECUTIONS v MARTIN KEAR

JUDGMENT 1 HIS HONOUR: On 30 August 2005 a magistrate dismissed a charge against the defendant alleging that he had in his possession child pornography in contravention of s 578B(2) of the Crimes Act 1900 (now repealed). The Director of Public Prosecutions pursuant to s 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 seeks to have the order of the magistrate set aside and asks the Court to grant relief in the nature of declarations that the magistrate erred in law in finding that the offence was not proved. 2 The facts can be stated very briefly because there was no dispute as to the circumstances in which the defendant came to have on the hard drive of his computer a number of pornographic images downloaded by him from an internet site called Allxboys. The defendant had, by the use of a credit card, paid for a subscription to visit the site on 13 April 2003. Thereafter he accessed the site on a number of occasions between 16 April 2003 and 11 May 2003 and viewed images displayed there. 3 On 8 September 2004 police executed a search warrant at the defendant's unit and took possession of his computer. The defendant made admissions that he lived there alone and was the only person to have access to his computer. On one of the two hard drives contained in that computer the police found stored in the temporary Internet cache folder in excess of 5,000 thumbnail images and at least 247 larger images of child pornography. Police downloaded 50 of the larger images to a compact disc that was then submitted to the Office of Film and Literature Classification. The images were refused classification. 4 There was no dispute at the hearing that the computer belonged to the defendant or that he had visited the site and viewed images that would amount to child pornography under s 578B. The only issue was whether, when viewing those images, the defendant was in possession of child pornography in breach of that section. The question ventilated before the magistrate and before this Court was whether in viewing those images the defendant was in possession of a "film" that would, if classified, be classified RC (refused classification) within the provisions of the Classification (Publications, Films and Computer Games) Act 1995 (CTH). 5 Section 578B of the Crimes Act relevantly provided as follows:

child pornography means a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC, on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.

Classification Board means the Classification Board established under the Commonwealth Act.

classified means classified under the Commonwealth Act.

Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth.

computer game , film and publication each have the same meanings, respectively, as in the Commonwealth Act.

law enforcement agency has the same meaning as in section 13 of the Criminal Records Act 1991, and includes a person or body prescribed by the regulations for the purpose of this definition.

(2) A person who has in his or her possession any child pornography is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years (or both).

(c) for a person to have in his or her possession any film, publication or computer game that is classified other than as RC.

(a) are not to be commenced later than 2 years after the date of the alleged offence, and

(b) in the case of a film, publication or computer game that is unclassified at the time of the alleged offence, are not to be commenced until the film, publication or computer game concerned has been classified, and

(c) are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

(4A) However, subsection (4) (b) does not prevent a person being arrested for, or charged with, an alleged offence against this section before the film, publication or computer game concerned has been classified.

(6) In any proceedings under this section, a certificate issued under section 87 of the Commonwealth Act signed (or purporting to be signed) by the Director of the Classification Board (or by the Deputy Director of the Classification Board) and stating that the film, publication or computer game concerned is classified RC on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16 is prima facie evidence of the matter stated in the certificate.

(7)…………….. 6 The relevant provision of the Classification (Publications, Films and Computer Games) Act that defines "film" for the purposes of s 587B is as follows:

film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced (together with its sound track), but does not include:

(a) a computer game, or (b) an advertisement for a publication, a film or a computer game. 7 The same Act defines "a computer generated image" as:

computer generated image means an image (including an image in the form of text) produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium from electronically recorded data. 8 At the end of the prosecution case it was clear that the prosecution were not relying upon the existence of the recorded images in the temporary Internet cache folder as supporting the charge. This was because there was no evidence that the defendant was aware that the images were recorded onto the computer's hard drive in any form. The evidence was that the images were automatically recorded by the computer's software when the defendant viewed them so that, if the defendant returned to the site, the computer could recover the recorded images without downloading them again. A person who was aware of the existence of the recorded images in the folder could access and view them without visiting the Internet site. But there was no suggestion that the defendant had ever done so. The overwhelming inference was that the defendant had only viewed the images and had never intentionally saved them onto either of the hard drives in the computer or any other storage facility, such as a compact disc. There was no evidence that he had ever printed any of the images. 9 In those circumstances the prosecution conceded that it could not prove that the defendant was in possession of the images recorded on his computer in the absence of any knowledge that they were there. Rather the prosecution contended that they were evidence of the defendant's use of the computer to view the images which themselves amounted to a film for the purpose of s 578B when the images were being displayed upon the computer's monitor from the Jpeg file stored in the temporary Internet cache. 10 The evidence as to the manner in which a computer deals with information from an Internet site was given by a police officer with expertise in the field of computer science. There was no dispute as to the evidence he gave and his oral testimony was augmented by a report that was placed in evidence without objection. The relevant parts of his evidence in chief were as follows:

A. Searches were run through the described areas on hard drive disc 2 for suspected child pornography images. At least 247 large images of interest, that's images equal to or exceeding 400 pixels by 400 pixels, that might be refused classification as child pornography were located in the allocated file system.

Q. Just pause please, in plain English what do you mean by allocated file system? A. I mean a file system in which the user would be able to locate those files.

Q. Thank you. A. In excess of 5000 thumbnail sized images with images equal to or less that 200 pixels by 200 pixels appearing to depict child pornography material were located in [the] allocated file system. Both the large and thumbnail size files were located in [the] internet cache an area located within the file system with a storage of file content including images and pages downloaded from the internet whilst web browsing. ................................

Q. Now, the internet cache, you told his Honour about some area allocated within the hard drive for the storage of file content, how does the internet cache work? A. When a user clicks on a link to download a web page that web page typically in a default situation is loaded into the internet cache which is a file system which stores the image from which it is rendered for viewing by the user.

HIS HONOUR: No, I'm not sure I understand what you mean there.

FLIEGNER: Q. Does the temporary internet cache automatically store [the] image that's seen on the screen? A. That's correct.

Q. When an image is seen on the screen, for instance take to use an example from annexure A number 2 there (sic) allxboys.com, how does the cache work in relation to a hit on or a visit to the allxboys.com web page? A. Okay, the file, the file that represents the web page would typically be in hypertext, that's .a form of language, computer language. That comes through a network to the user's computer. Before it appears on the computer it actually goes into this file system that is called internet cache.

HIS HONOUR: Q. That's before it comes onto the screen for viewing? A. That's correct, it actually goes into this Internet cache first, together with any pictures that may be there, there are references to those pictures and they're also called from the serving computer and they come down into the cache as well. Now this is done for efficiency because if the user needs to go back to look at that page again it's much more efficient to load that page if it hasn't changed from his or her computer, rather than to pull it all the way down the Internet and the time overheads that are associated with that.

Q. So where you see that back, forward, back, forward, that's accessing this cache, yes? A. Yes.

FLIEGNER: Q. All right, now is this an automatic process? A. Yes it is and it's generally a default process. It can be modified but in my experience of looking at computers forensically that it is extremely rare.

Q. Do you know whether it was modified in the present case in relation to the exhibit now before the Court? A. It appears not to have been modified.

Q. In relation to the material that's stored in the temporary Internet cache, for example an image file, how can that file be, how can that file [be] dealt with or treated as compared to a file anywhere else in the hard drive? A. It's in a directory structure that is created by the web browser as opposed to deliberately created by the user, but the contents are available if you wish to search for them

Q. Could the contents of the temporary Internet cache using a picture file an example be dealt with as any other file could? A. Copied or saved, is that what you mean-­

Q. Yes? A. Yes. 11 In cross examination the officer gave the following evidence about the cache and how it operated;

Q. Let's assume the user of the computer went to the allxboys website, entered the website through clicking on the member's entry portal, [he] would have then been given a range of options to choose from presumably, is that a fair summary? A. I can't see any problem with that.

Q. And at some time at around about 10.44am on 16 April there was appearing on the screen of the computer the Jpeg image which is depicted in annexure F of your report on the first page? A. Yes.

Q. Now once that picture appeared - in order for that picture to appear on the computer screen of this computer, what's happened is that a computer somewhere else in the world has sent a message through the telephone system to this particular computer in Sutherland, right? A. Yes, yes.

Q. The computer sitting on a desk in Sutherland has received a message via the telephone system and has created without any other conscious or deliberate effort by the user of the computer a cache file on the hard drive of the computer, this one the second hard drive of the computer, right? A. Yes.

Q. This is a mechanism which is done automatically by the computer, is it not? A. It's done by the computer, it's more appropriately the web browser [that] controls the cache, it's part of the computer's software.

Q. So it's the web browser which through an automatic mechanism creates the file in the cache file system, right? A. Before it displays it on the screen.

Q. Before displaying it on the screen, right? A. Yes.

Q. So as far as the user is concerned, the user clicks something, in the twinkle of an eye or perhaps as long as a minute, depending on the efficiency of the Internet system being operated, a picture appears on the screen or appeared on the screen, right? A. Yes.

Q. The user is interested in what's on the screen and their deliberate consciousness presumably is focussed on what is being viewed and you would accept would you not that there's little or [no] conscious or deliberate thinking about what's happening down in the hard drive of the computer once the image appears on the screen, right? A. Well it depends how much they know about what goes on I guess.

Q. Indeed, indeed. But let's talk about what they would see for instance on the screen of their computer. On the screen of their computer would appear a picture, right? A. Yes.

Q. After having viewed it for however long it appeared on the screen, the user would move the cursor on the screen to another page of either that website or another site, right? A. Or close the browser.

Q. Or close the browser? A. Or turn the computer off, or any number of things, yes.

Q. Let's take the case where the person is still interested in looking at other images on the site, the same site, they might use a link on the page that sends you back to a gallery of pictures, right? A. Yes.

Q. Or they might click a button that's available on the screen that allows them to go back to the immediate page before this one, right? A. Yes.

Q. And then once moved from this Jpeg, there would then be another message sent from the remote computer to the Sutherland computer creating yet another file on the cache if it was - A. Yes just in the example you're using there are other things that can occur and that is that if the user clicks on a link to generate a picture, that picture may be generated in another window of the browser, which can mean that it is still there rather than, sorry to correct you but the example you're citing relates to a single browser window. Windows is called just that, you're probably aware, because of the ability for it to open a large number of windows at any one time and allow the user to toggle through those windows and look at them all. 12 A little later the following questions and answers were recorded:

Q. So let me get this straight, the user of the computer had gone to the relevant site and looked at a number of images between 16 April and 11 May, right? A. Yes.

Q. Those images had been stored on the cache? A. Yes.

Q. On 14 May a user of the computer had gone back to the same site on the web, the allxboys website? A. Yes.

Q. And had looked at some pictures that had already been viewed on another occasion? A. On a previous occasion.

Q. There was no localised manualised (sic) deliberate attempt to go to the cache, it was an automatic process that occurred because the user of the computer clicked the website photo, not any mechanism used to deliberately access the cache, right? A. Yes, the access of the cache was an automated process on behalf of the web browser, it wasn't a deliberate process.

Q. The web browser is a machine, not the person browsing the web? A. True. Sorry, when I refer to the web browser I mean the web browsing software, you need an explorer.

Q. So it was a function of the software of the computer, not a conscious function of the user of the computer? A. It was a function of the software of the computer to resurrect if you will that image from [the] cache. The (sic) going to download the image, I've already said that has to have been done by some user initiated action.

Q. Can I just ask about cache files, they could last indefinitely but there is no set length of time for them to remain on the hard drive of a computer, is there? A. From my understanding and research I've done of the cache it is a function of the required space in the operating system that the cache may be deleted or subject to some deletion when the space it occupies is needed for re-use. 13 At the end of the prosecution case both parties addressed the magistrate. As I have already noted, the Crown did not rely upon the stored images in the cache folder, but argued that the viewing of each of the 50 images, later place by police on to the CD, on the computer monitor was possession of a "film" for the purposes of s 578B. Mr Boulton SC, who appeared for the defendant both before the Magistrate and in this Court, argued that the single charge was duplicitous if the Crown were relying upon possession of the 50 images only when each appeared on the monitor and was viewed by the defendant. The magistrate ruled against that proposition and it was not ventilated before this Court. Mr Boulton then argued that what the defendant saw on his computer monitor was not a "film" for the purposes of the offence. 14 The magistrate gave a short ex tempore judgment dismissing the charge. Relevantly he held:

The prosecution case is that the defendant, when he viewed on 50 separate occasions images on his screen, was in possession of a film in terms of the act. Mr Boulten, who represents the defendant, has argued that in the special narrow circumstances of the prosecution case, which does not any longer involve knowledge of what was in the hard drive but knowledge in relation to the image on the screen at the time that the defendant, and in this case it is alleged the defendant, viewed the image that he was then, on each of those 50 occasions, in possession, in terms of what I decided earlier, that is control, exclusivity, knowledge of that film, which I infer from his argument, it has to be, because of the definition that I am required to consider, that is, the film.

As I said, Mr Boulten argues that the definition of film does not and cannot refer to the image on the screen, that is the computer screen, that it requires an acceptance that the word film involves some physical recorder, such as a slide or a tape or a disk, such as one of the disks that were sent for classification which show that on the hard drive there was, without making any formal finding, that it appears very clearly explicit and criminal images. But I am not here dealing with the question of what one should say about it morally or criminally about those particular images but whether or not what he was looking at on the screen, in this special case and the concessions made here by the Crown, is a film. It may have been argued that in fact he did have knowledge by reason of the number of times that he accessed the image, that that could be the only inference available to him but, as I am understanding the Crown case, it is the separate acts of looking at the screen. They cannot establish knowledge about what is inside the tower, inside the hard drive, but nevertheless, the prosecution, in response to the submission of Mr Boulten, say that the prosecution case involves accessing jpeg files and that there is evidence of what a jpeg file is, as set out in exhibit 10A, that is, a Joint Photographic Expert Group - jpeg, is an image compression format used to transfer colour photographs and images over computer networks. Along [with] gif; it is one of the most common ways photos are moved over the Internet.

The Crown says that the word includes is not to be seen as exhaustive of the definition of film that the Court can have regard to and any other form of recording from which a visual image can be produced. Certainly, computer generated images define to mean an image produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium for electronically recorded data.

This is a criminal charge, I have had regard to the purpose of the legislation, including gaol sentences imposed on those that are involved in this activity but I have come to the view that the definition of film is such and my understanding of its meaning does not include the jpeg files and so I, therefore, accept the defence argument that in these special circumstances here, that it has not been shown, beyond reasonable doubt, at this stage, that what he possessed was a film. 15 At the outset of the proceedings before me it was argued by Mr Boulten that the appeal was incompetent because the decision made by the magistrate was a mixed question of fact and law and, therefore, did not fall within the scope of s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act which provides that the prosecution may appeal against an order dismissing a charge "but only on a ground that involves a question of law alone". 16 In Director of Public Prosecutions v Belani (2005) 64 NSWLR 319 Johnson J considered the scope of an appeal under s 56(1)(c) and stated the following principles:

[26] A finding of prima facie case involves a decision whether, on the evidence as it stands at the end of the prosecution case, the Defendant could lawfully be convicted. This is a question of law: May v O'Sullivan (1955) 92 CLR 654 at 658; Amalgamated Television Services Pty Ltd v Marsden at 174-176 (paras 43-50). If the Magistrate has wrongly concluded that there was no prima facie case when, in fact, there was, this is an error of law.

[27] A finding of fact may reveal an error of law where it appears that the Magistrate has misdirected himself, that is, has defined otherwise than in accordance with law, the question of fact which he has to answer. An ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. The Director contends that the learned Magistrate erred in law in this way in wrongly confining the meaning of the word "race" in s 40(1)(a) Safety and Traffic Management Act. 17 That case concerned the proper construction of s 40(1) of the Safety and Traffic Management Act in respect of an offence charged in breach of that section and, in particular, whether the section applied only to planned or organised races and not to impromptu or unplanned races between vehicles upon a road. The magistrate, by reason of his interpretation of the relevant provision, held that there was no prima facie case and dismissed the charges. On his view the word "race" in the section meant an organised race event. Johnson J held that this interpretation was erroneous and amounted to an error of law in confining the words of the section in the way that he did. His Honour further held that the magistrate made an error of law in dismissing the charges and granted the relief sought by the plaintiff. 18 In Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343, Johnson J again considered the issue and stated the following principles in relation to an error of law for the purposes of s 56(1)(c):

[58] Section 56(1)(c) Appeal and Review Act confines a prosecutor who appeals to the Supreme Court against an order of acquittal in summary criminal proceedings to a ground that involves a question of law alone. There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394; Sood v R [2006] NSWCCA 114 at para 30.

[59] The formulation "question of law" employs general words capable of application at different levels of generality: Attorney General for NSW v X (2000) 49 NSWLR 653 at 660 (para 25). The expression "question of law" is wider than "error of law": Attorney General for NSW v X at 677 (para 124).

[60] A mixed question of fact and law does not fall within the description of "question of law alone": Williams v R (1986) 161 CLR 278 at 287 and 314; Attorney General for NSW v X at 663 (para 44).

[61] That an appeal to this Court by a prosecutor from an acquittal in summary criminal proceedings is confined to a question of law alone is not surprising. Such an appeal constitutes a statutory exception to the rule against double jeopardy: Davern v Messel (1983-1984) 155 CLR 21 at 30.

[62] However, a decision of a court of summary jurisdiction acquitting a defendant has never been regarded with the same sanctity as the verdict of a jury and the consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a Magistrate dismissing a charge and empowering the Supreme Court on appeal to quash the order: Davern v Messel at 37-38. 19 That case was concerned with the dismissal of charges laid under clause 18A of the Pawnbrokers and Second-Hand Dealers Regulation and the issue was whether the magistrate had misconstrued a phrase in the regulations as a result of which he held that there was no prima facie case. When considering whether the prosecution appeal did involve a question of law alone, Johnson J stated:

[76] ……………….. There was no factual dispute in this case. Although the learned Magistrate did not make findings of fact in the course of his reasons for dismissing the charges, the facts emerging from both the prosecution and defence cases in the Local Court were clear and uncontested. The Defendant had taken each of the five items in trade or pawn in the course of the licensee's business. A label had been prepared for each item which contained a contract number. Four of the five items were placed in that part of the Defendant's business premises nominated as the 14-day holding area. The labels were placed in that area as well, but were not attached to the items. The Gemini mountain bicycle was held by the Defendant elsewhere in its business premises. The Defendant had taken the items in this way and retained them for at least six days and up to 11 days without affixing the labels to the items. It was a deliberate decision by the Defendant not to affix physically the label to each item.

[77] A fair reading of the learned Magistrate's reasons supports a conclusion that his Honour approached the construction and application of cl 18A in the manner submitted by the Plaintiff.

[78] In my view, this approach involved a fundamental misunderstanding of the meaning of words contained in cl 18A PSD Regulations. In effect, his Honour posed for himself the wrong statutory question for determination. There has been a misdirection as to law: Australian Gas Light Co v Valuer General (1940) SR 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Director of Public Prosecutions v Belani [2005] NSWSC 1013 at para 27. I am satisfied that the appeal is based upon a ground that involves a question of law alone.

[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. **********

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