Court of Criminal Appeal (Tas)|2010-09-02|Before: Crawford CJ, Blow JJ, Evans J

Isherwood v Tasmania [2010] TASCCA 11 (2 September 2010)

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Isherwood v Tasmania [2010] TASCCA 11

Criminal Law - Procedure - Witnesses - Powers of judge - Presence of witnesses in court before giving evidence - Discretion - Unrepresented accused wishing witness to act as McKenzie friend.

Moore v Lambeth County Court Registrar [1969] 1 All ER 782; Tomlinson v Tomlinson [1980] 1 All ER 593; R v Bassett [1952] VicLawRp 75; [1952] VLR 535; R v Tait [1963] VicRp 72; [1963] VR 520, referred to.

Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances amounting to miscarriage - Other irregularities - Unrepresented accused - Procedural determinations made without inviting submissions - Failure to advise as to rights of parties to address jury.

MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, applied.

R v Coman [1955] VicLawRp 53; [1955] VLR 289, not followed.

R v Andrews (1938) 27 Cr App R 12; R v Nilson [1971] VicRp 105; [1971] VR 853; Dietrich v R [1992] HCA 57; (1991) 177 CLR 292; Black v Smith (1984) 30 NTR 29; Abram v Bank of New Zealand (1996) 18 ATPR 41-507; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154; Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, referred to.

Criminal Law - Appeal and new trial - Verdict unreasonable or insupportable having regard to evidence - Appeal allowed - Evidence displaying inadequacy and lacking probative force - Possession of child exploitation material - Inadequate evidence of knowledge by accused that material was in his custody.

Judgment Number: [2010] TASCCA 11

CHRISTOPHER MALCOLM ISHERWOOD v STATE OF TASMANIA

3 Sentence and other consequential orders set aside.

CHRISTOPHER MALCOLM ISHERWOOD v STATE OF TASMANIA

1 The appellant was tried and found guilty on a single charge of possessing child exploitation material, contrary to the Criminal Code, s130C. He was convicted and sentenced to six months' imprisonment, which was wholly suspended. An order was made under the Community Protection (Offender Reporting) Act 2005 requiring his name to be placed on the register under that Act, and requiring him to comply with the reporting obligations under that Act, for three years. He has appealed against his conviction, his sentence, and the order under the 2005 Act. He has filed two separate notices of appeal - one relating to his conviction, and one relating to his sentence and the order under the 2005 Act.

2 Police officers went to the appellant's home on 25 January 2008 with a search warrant that authorised them to search for computer-related items. They seized a number of items and took them away. A police officer with expertise in computers, Const Clayton, examined a hard drive that had been seized from the appellant, and found on it 12 video files that depicted boys engaged in sexual activities. The Crown case at trial was that the appellant committed the crime of possessing child exploitation material on the day of the search by possessing those 12 video files when he knew or ought to have known that they were child exploitation material.

3 The section in the Criminal Code under which the appellant was charged, s130C, provides as follows:

(a) is in possession of child exploitation material; and

(b) knows, or ought to have known, that the material is child exploitation material -

4 Knowledge by the accused person that the material is in his or her custody is an ingredient of the crime created by s130C, since the word "possession" imports a mental element: He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523. The Crown therefore needed to prove beyond reasonable doubt that the appellant knew that he had the 12 video files. Because of s130C(b), the Crown also needed to prove that the appellant knew that the files amounted to child exploitation material. The Crown did not seek a conviction on the basis of anything that the accused ought to have known.

5 In relation to the knowledge of the appellant, the Crown relied not just on the finding of the files on a hard drive seized from the appellant's home, but also on answers given by the appellant during a police interview. A DVD recording of that interview was tendered on the trial.

6 The appellant represented himself, both at trial and before this Court. His case at trial was that he had bought the hard drive second hand; that he had not loaded the 12 files onto it; that he did not know they were there; and that therefore he was not in possession of them and did not know that they were child exploitation material. The critical question for the jury was whether the appellant knew that the 12 files were on his hard drive.

7 There was a dispute as to whether certain answers given by the appellant during the recorded police interview related to the 12 files that were the subject of the charge, or to other child pornography material that was not the subject of the charge. There was evidence that the appellant had once knowingly had possession of other computer files containing child pornography, but that he had deleted them long before the day of the police search. Some of his answers during the recorded police interview contained clear admissions that he had knowingly had possession of computer files containing child pornography. The Crown contended that, in those answers, he was making admissions about the files that were the subject of the charge, but he contended that he was only ever talking about the files that he had deleted, which were not the subject of the charge.

8 In challenging his conviction, the appellant has relied upon a large number of grounds of appeal.

9 By ground 15 and part of ground 27, the appellant contends that the jury's verdict was "unsafe and unsatisfactory", unreasonable, not supported by the evidence, and unsound.

10 The test to be applied when considering whether a verdict is "unsafe or unsatisfactory" was explained by Mason CJ in Chidiac v R [1991] HCA 4; (1991) 171 CLR 432 at 442 - 443 as follows:

"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...".

11 In M v R [1994] HCA 63; (1994) 181 CLR 487 at 494 - 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe or unsatisfactory:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461-462)."

12 The items taken from the appellant's home comprised a large computer tower hard drive server from the garage area and a laptop computer from the bedroom area. Const Clayton gave evidence that the server contained six hard disc drives, and that one of those drives contained the 12 video files that were the subject of the charge. No evidence was led from him as to which of the six drives contained the relevant files, nor as to the capacity of that hard drive. He gave evidence that he used forensic software to examine the contents of the hard drives. Using a computer in the witness box, he gave evidence that the 12 files had all been "created" on 2 December 2005, that they had last been accessed on 21 February 2006, and that none of them had been deleted. It appears from his evidence that the word "created" referred to the date when the 12 files had been put onto the hard drive, and not to when the boys' sexual activities were recorded.

13 During the recorded interview, the appellant suggested a couple of times that the dates recorded on the relevant server could be wrong because of a problem caused by a battery failure. Const Clayton was not asked about that at the trial.

14 In that interview, the appellant said the following things about his acquisition and use of computer hardware:

•

His mother bought the server at an auction about three years previously, some time in 2005. (The interview was on 19 March 2008.)

•

He did not use the server very often. He used it about once per week. It was used mainly for data storage.

•

Friends had also used the server.

•

His knowledge and skill in relation to computers was above average.

•

The server had not been lent to anyone or repaired by anyone but him.

•

He had bought a number of servers at auction, at least since an auction on 1 September 2004. He may have been to another auction before that.

•

He pulled bits and pieces out of the servers he bought in order to make a fairly decent one.

•

The server found by the police had had lots of different drives.

•

It had been dormant for probably a year.

•

He thought one hard disc drive, said by one of the interviewing officers to be a 9 gigabyte hard drive, was a 36. He did not really have any idea where it would have come from initially.

•

He purchased a desktop computer, on which there was child pornography, in 2005 or 2006. He found that material after the purchase.

•

He transferred the pornographic files from that computer to the server, deleted them from that computer, and sold it at auction.

15 The appellant gave evidence at his trial. His evidence as to computer hardware included the following:

•

He purchased a computer at an auction in June 2006. Child pornography found by him on that computer was later transferred to his server, and later deleted from the server. He tendered a receipt showing that he purchased a computer on 22 June 2006.

•

He had purchased hard drives since then, and put them in and out of his server.

•

He purchased a hard drive on Ebay on 21 August 2007.

•

He installed Windows on that hard drive on 29 September 2007.

16 All of the evidence we have referred to was unchallenged and uncontradicted. All of it was consistent with the appellant having innocently purchased the relevant hard drive with the 12 relevant video files already on it, and not having known about them until after the police search. Counsel for the respondent submitted to us that it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew he had the 12 video files on the basis of answers given by him during the recorded interview, together with his evidence at the trial. However counsel did not identify any part or parts of the appellant's evidence that he relied on in relation to the question of the appellant's knowledge. Having carefully read the transcript of the appellant's evidence, we have been unable to find any piece of evidence that, on any reasonable interpretation, could be relied upon as tending to prove that the appellant knew he had the 12 relevant files.

17 The Crown case therefore depended on what the jury made of the appellant's answers during the recorded interview. He certainly admitted that he had known of child pornography computer files in his possession, had accessed such material, and had moved such material within his computer system. The critical question was whether any of his admissions related to the 12 files that were the subject of the charge, or any of them. The appellant contended that he knew nothing of the 12 relevant files at the time of the interview, and that his answers all related to other files.

18 Const Clayton gave evidence that, in addition to the 12 video files to which the charge relates, he found references to a number of deleted files whose names suggested that they had contained child pornography material. A printout of a directory that included the names of those deleted files was tendered at the trial as exhibit P3. The material before this Court also includes the names of the 12 files to which the charge related. One of the 12 files appears to have the same name as a deleted file listed in the directory ("12 yo boys playing sex - boyorgie01 kdv rbv pjk rf = s00 hmv brn gerbys preteen boys boy sex starskysh yamad fuck pthc crime ..."). Another of the 12 files ("Gay preteen - Little boys assfucking kiddie pedo boy lolita R@gold underage.mpeg") has a very similar name to a file listed in the directory ("Gay 2 Preteen Boys Fuck - kiddie pedo boy lolita R @ ygold underage.MPG"). The names of the 12 files are otherwise different from the names of the deleted files. The names of the deleted files were found in a folder named "LimeWire". Within that folder, they were in sub-folders named "down" and "Incomplete".

19 The recorded interview took place nearly eight weeks after the police search. The officer with computer expertise, Const Clayton, did not participate. The interviewing officers were Det Const Callinan and Det Sgt Hinchen. They had a report from Const Clayton, but that report was not shown to the appellant during the interview.

20 After getting the appellant to state his name, age, date of birth and address, Det Const Callinan said the following:

"Chris, as you're aware, I wish to speak to you today in relation to some images or some video files that were retrieved from a server, in particular ah I think you call it a Skuzzy server, that was retrieved from your house around the 25th of January 2008 this year by myself. Those video files depicts [sic] some young males in various poses and I intend to ask you some further questions in relation to that."

21 It seems clear from the words "as you're aware", and from the reference to "further questions" that there had already been some conversation between at least one police officer and the appellant about the subject matter of the interview. There was no evidence at the trial as to the extent of the information that had been provided to the appellant prior to the interview. Thus the jury had no evidence that police officers had told the appellant anything about the number of video files that had been found, their names, what they depicted, or whereabouts in his computer system they had been found.

22 During the interview, the appellant was not shown the 12 video files. He was not told their names. He was not told where they were found. At the end of the interview, Det Const Callinan asked, "Do you wish to see the video images that I've referred to?" The appellant replied "No. No. Why would I want to see them?" It is reasonable to infer that he was not shown them before the interview.

23 The interview lasted 39 minutes. For about the first third of the interview, Det Const Callinan elicited a lot of insignificant information from the appellant in relation to his activities with computers. He then moved to the subject of pornography, and the appellant began to make admissions. The transcript of the relevant part of the interview reads as follows:

"Q Have you ever found images, movies or stories which you thought were illegal?

A Ah yes.

Q When?

A Pop-ups 06 or 05. Back in high school there was stuff like that.

Q Alright. Well specifically related to this server.

A Oh right.

Q Have you ever found any images, movies or stories which you thought were illegal?

A Ah yes, on the computer that I transferred to it.

Q So yeah. So if we say on the computer the images were transferred from?

A Yep.

Q And can you describe for me what you found on that computer hard drive that you transferred across to your Skuzzy server?

A Yep. Um pictures of young boys in acts and videos.

Q Can you describe that further? What, were they masturbating, oral sex, anal sex -

A There was lots of different -

Q - um just nudity?

A There was lots of different things but what you've mentioned I saw some of it.

Q Which bits?

A Well I saw masturbation, just nudity, um that's about it. There was a lot of others. I didn't open everything up.

Q Okay. And what did you do with the images that you found?

A I transferred them to the server and then deleted the computer and put Windows on it and sold it.

Q Okay. Do you have any images, movies or stories containing child pornography on your computer or stored anywhere else?

A No.

Q Other than obviously the ones that you've just said you transferred onto the Skuzzy?

A No, that's the only, yep.

Q Okay. In regards to the ones that we've mentioned then, about the ones were just transferred onto Skuzzy, who put them there?

A Who put them on the Skuzzy server?

Q Yes?

A I did.

Q And how long have they been there?

A Ah since 0, I'm not sure, it's either 0 five or 0 six. I'd have to get the receipt for the computer to know for definite.

Q Yep, and where did they come from? Obviously this other hard drive?

A Yeah. From, it was from an auction the computer. But I have found stuff before, me and my mother on computers of auctions. We just deleted them.

Q Those images that we've referred to, why are they on your Skuzzy drive?

A Um I was going to report them to the Police but I didn't get around to it because I thought possession, even possessing it is illegal and I'd get into trouble. And the reason I didn't delete them is because I pretty much forgot they were there until my fiancé [sic] found them."

24 In some of the answers quoted above, the appellant spoke about pornographic files that he had transferred to his server as if he thought they were still there. He certainly did not say, at this stage of the interview, that he had deleted any pornographic files from his server. However, in the light of that which followed, the last sentence in the last of the above quoted paragraphs provides a significant link between the images he was referring to and those that he deleted when his fiancée found them. Thereafter, when interviewed, he returned to that which he had found on the laptop computer and transferred to the server, and on three occasions in substance said that he deleted it after his fiancée found it. His recall was that she had found it in December 2006.

25 It is a matter of common knowledge that, when a computer user deletes a file and is unable to retrieve it, a computer expert with the appropriate software and expertise can often retrieve and view the deleted file. One possibility that needs to be considered is that, in the passage quoted above, the appellant was talking about files that he had deleted from his server, believing that the police had retrieved and viewed them, and believing that they had asked to interview him about those deleted files, and that he simply happened not to mention the fact that he had gone through the process of deleting them. All the answers set out above are consistent with that hypothesis.

26 A small point worth noting is that the admissions set out above related to material described by the appellant as "pictures of young boys in acts and videos". The files to which the charge related were all video files, as distinct from files containing still images, which might be described as "pictures". Such an interpretation of the word "pictures" tends to support the appellant's contention that he was not talking about the files that became the subject of the charge.

27 By the time of the interview, Const Clayton had found the 12 video files that became the subject of the charge and the directory that suggested that other child pornography files had been deleted. Neither of the interviewing officers sought to establish whether the admissions set out above related to the 12 viewable video files or to other files that had been deleted.

28 Det Const Callinan went on to ask the appellant a lot of questions about computer hardware. At one point, he asked some further questions about the pornographic files that the appellant had mentioned. In his answers at that point, the appellant said the following things:

•

The material came from a desktop computer, not a computer tower.

•

He purchased the desktop and it had some of "these particular images" on it.

•

He transferred them across to his Skuzzy drive.

•

He had a choice about which hard drive they went onto.

•

The fact that they were on a particular hard drive did not really signify anything. He did not know which one they were on.

•

He moved pretty much the whole lot.

•

The names of the files were "gay young teens or kids or something like that".

•

He copied the files across to his own hard drive because he was going to hand them to the police, but needed to sell the computer that they were initially on, in order to get some money. He was concerned that otherwise the police might take the computer, and thereby take away his ability to sell it.

•

He did not ever contact the police.

•

He went through the files after putting them on his server. He only went through a few.

•

He thought he had moved them a couple of times, because he had had a few hard drives.

•

He kept putting off reporting them to the police.

•

The pictures disgusted him.

•

He could have simply deleted the material from the computer. He had done that before with a few other computers. Instead he chose to put the material onto his server.

•

He deleted the material when his fiancée found it. He believed that that was some time in 2006, before December.

29 This was the first time that the appellant spoke of deleting pornographic material from his server. It occurred in the context of a discussion about the same material that was discussed in the transcript extract above. Again, no attempt was made by the interviewing officers to clarify whether the appellant had been talking about the 12 video files that Const Clayton had been able to view, or about the deleted files whose names were found by Const Clayton in the directory that we have referred to.

30 On the hearing of this appeal, counsel for the respondent made a submission to the effect that the appellant had been speaking about the 12 undeleted files at first, had realised that he had said too much, and had tried to talk his way out of trouble by making a confusing reference to the deleted files. That is one hypothesis. Another is that the appellant knew nothing of the files to which the charge related, was talking about the deleted files at all material times, believed that the police had been able to view them, happened not to mention any earlier that he had "deleted" those files from his server, and happened to mention that at this later stage. All of his answers are consistent with that hypothesis.

31 Throughout the interview, the appellant appeared to be calm, frank and co-operative. He showed no sign of wanting to talk his way out of trouble, or suddenly realising that he had said too much.

32 What the appellant said about the names of the files does not help him or the Crown. Neither the 12 video files nor the deleted files included files actually named "gay young teens" or "kids". Both groups of files had names similar to those names.

33 What the appellant said about preserving the files so that he could give them to the police could be rejected as implausible, but the giving of false or dishonest answers about his intentions could not properly be regarded as evidence as to his knowledge or his guilt: Edwards v R [1993] HCA 63; (1993) 178 CLR 193.

34 A little later in the interview, Det Sgt Hinchen asked the appellant a series of questions about his mother's involvement. Towards the end of those questions, the following was said:

"Q So she knew that when Police came to your place and took them that you had x amount of images or movies downloads -

A Deleted. Yeah.

Q Deleted.

A Deleted on the old server."

35 Next, Det Const Callinan showed the appellant a printout of the directory listing the names of the deleted pornographic files. He asked the appellant if any of them rang a bell with him. The appellant replied, "They ring a bell of being transferred, yes." He said that he could see from the directory that they were transferred to a folder called "down", which was under a folder called "LimeWire". For each file listed in the directory, there is a date in a column headed "File Created", and another date in a column headed "Last Accessed". The creation dates for the deleted pornographic files listed in the directory are from 24 June 2006 and 2 August 2006 inclusive. The dates of last access vary from 2 August 2006 to 7 August 2006 inclusive. After looking at those dates in the printout of the directory, the appellant asked Det Const Callinan about the dates that the files were transferred. Det Const Callinan told the appellant to stand by, looked at a document, and appeared to read from it. He gave evidence at the trial that the document was the report of Const Clayton. That report was not tendered at the trial, but we have it in our appeal books. When Det Const Callinan appeared to read from it to the appellant, he said the following:

"The 12 video files were in a shared - in a folder called 'Shared' under the user ID of 'Administrator'. Some of these files contained young males. All of these files have a creation date in, on the second of the twelfth 2005, ie the files were put onto the computer hard disk on that date."

36 In the light of the evidence of Const Clayton, it is clear that the passage that Det Const Callinan read out related to the 12 undeleted files, not to the deleted files listed in the directory printout. Apparently Det Const Callinan did not understand that. He went on to say to the appellant:

"To be honest with you, I can't follow the 05 and the 06 discrepancy and one of two things I would suggest is either perhaps this report is a typo and that it should be 06."

37 The appellant pointed to Const Clayton's report, and asked if it referred to the file creation date. Det Const Callinan responded by reading more from the report, without indicating the slightest comprehension that it referred first to 12 undeleted files, and then to a quantity of deleted files. Apparently reading or paraphrasing the report, he said the following to the appellant:

"File, the files were put on the computer hard disk on the second of the twelfth, those 12 video files, and located in the software program LimeWire is a file sharing program which is as you're aware two sub-folders, down and incomplete, located in the file LimeWire, with 17 references to fully downloaded deleted files with titles that suggest child exploitation material. And then there were three incomplete folders that have not been fully downloaded. Those files are dated between June and August 06 okay. LimeWire has been used for a period between December 05 and September 2007."

38 At that point the appellant said that his fiancée put LimeWire on for him, and set it up. He agreed that she had done so in December 2005. He said that she had introduced him to LimeWire and taught him how to set it up. He said that the material listed in the directory, which included Scottish bagpipe music, was not downloaded by him, but that he transferred that material. He said he thought he did so in 2005, but was not sure.

39 Det Const Callinan's next two questions, and the appellant's answers to them, were as follows:

"Q Could they have been transferred over on the second of the twelfth o five?

A They could have been.

Q That's what this report is saying, that the files were put onto the computer hard disk on that date.

A Right. Right. They could have been. All I'm saying is they could have been. I'm not saying they were. I don't know."

40 At this stage of the interview, the following things are perfectly clear:

•

Det Const Callinan had no comprehension that the reference by Const Clayton in his report to 2 December 2005 related to the 12 undeleted files, not the files listed in the directory printout and associated with LimeWire.

•

The appellant had been talking, and was continuing to talk, about the files listed in the directory printout, all of which he had deleted.

•

Nothing said by the appellant at this stage of the interview showed any awareness of the other, undeleted files.

•

Det Sgt Hinchen, apart from taking notes, remained totally inert through this part of the interview. It is therefore reasonable to infer that he had not noticed that the date 2 December 2005 in Const Clayton's report referred to different files from the files listed in the directory printout that the appellant had in front of him.

41 The appellant went on to say that he did not download the files that he transferred onto his server. He confirmed that he found them on a desktop computer that he bought at an auction, that he transferred them onto his hard drive, that he had no further information as to where they initially came from, and that they remained on his hard drive from roughly 2005 until his former fiancée found them in 2006. He said he probably moved them once as a result of getting a different hard drive. He said he added and removed hard drives because some were too small. He said he moved the folder that the files were in, and not the individual files. He said that he did not move everything that was on the hard drive from which the folder was moved. He agreed that he knew what was in "that LimeWire folder". He said he thought he sold the previous hard drive on Ebay. He accepted that his fiancée would have found the material under "downs" (Det Const Callinan's choice of word). He confirmed that he then deleted the files. The interview concluded shortly thereafter. Nothing more of relevance was said, apart from the appellant declining the offer to view the pornographic material.

42 Det Const Callinan asked, "Do you wish to see the video images that I've referred to?" That question suggested that he had no understanding that some of the video files that he had been referring to - those listed in the directory printout - could not be shown to the appellant because they had not been retrieved by Const Clayton. Det Sgt Hinchen did not enlighten him. He must not have understood that either.

43 We have each viewed the DVD recording tendered at the trial. After viewing it and considering very carefully what the appellant said to the police, we consider that everything he said is consistent with him knowing nothing about the 12 video files found by Const Clayton, and not even understanding at the end of the interview that those files existed. It is true that Det Const Callinan referred to those 12 files when he read from Const Clayton's report during the interview, but he did so in response to a question from the appellant about the creation date of the deleted files listed in the directory printout. No one present showed any sign of realising that the 12 video files referred to in the report were different files, nor that a different number of files, not 12, were listed in the directory printout.

44 If one were to consider in isolation the part of the interview when the appellant first made admissions about child pornography material, the transcript of which is set out above, one could not rule out the possibility that he was talking about the 12 video files found by Const Clayton, especially since the appellant said nothing during that part of the interview about deleting them from his server. However his answers during that part of the interview are also consistent with him knowing nothing about the 12 video files, and simply not mentioning the deletion of the other files from the server at that stage. When one considers the interview as a whole, one certainly cannot rule out the possibility that the appellant's admissions related only to the deleted files.

45 When one looks beyond the interview, there are a number of pieces of evidence that tend to suggest that the appellant knew nothing of the 12 video files. He gave unchallenged and uncontradicted evidence that he had two days' warning of the police search. The police do not normally give warning of such searches, but it is possible that they acted on information received from someone, and that the appellant was warned by their informant, or by someone aware that their informant had provided information to them. There was also evidence from the appellant's mother and another woman that they often used the appellant's server. The appellant would be less likely to keep pornographic material on a server used by others than on a server that no one else used.

46 Having regard to all these matters, we are not satisfied beyond reasonable doubt that any admission made by the appellant in his police interview related to the 12 video files that were the subject of the charge, or any of them. When compared to the jury, we are not disadvantaged in assessing the evidence of the police interview, as we, like the jury, have viewed the recording of the interview. Further, we consider that the jury's advantage in seeing and hearing the balance of the evidence is not capable of resolving the doubt which we experienced. The evidence, insofar as it relates to the issue of the appellant's knowledge, displays inadequacy and lacks any probative force.

47 It follows that we should allow the appeal, quash the conviction and the consequential sentence and orders, and substitute a verdict of acquittal.

48 A number of the grounds of appeal raise questions about what a trial judge should do to facilitate the presentation of an accused person's case when that person is not represented by counsel. In the course of dealing with the subject, we refer to a number of assertions of fact by the appellant in his submissions to this Court. There is no need to inquire into the accuracy of many of the assertions having regard to the success of the appeal for other reasons.

49 At one time, the appellant was represented by counsel, but that was not the case for some time before the trial. He said to this Court that three days before the trial the Legal Aid Commission granted him legal aid for the trial but he was told that, in view of the shortness of available time, he would have to secure an adjournment of the trial. He said that the prosecution would not agree to an adjournment and he was obliged to defend himself. He did not make an application for an adjournment to the trial judge. Ground 9 complains that he had never been on trial before and knew nothing of the process or his rights. In the course of his submissions he said that he did not realise that he was entitled to make an application to the judge for an adjournment.

50 During the empanelment of the jury, Crown counsel identified for the potential jurors the witnesses she would call to assist the decision of the jurors whether to seek to be excused from the trial under the Juries Act 2003, s39. The appellant then volunteered the identity of the witnesses he proposed to call. One of them was his mother. He also informed the learned judge that he wished to have her sit next to him during the trial so that she could assist him with the conduct of his case. The learned judge required him to make a choice between calling his mother as a witness and not having her assistance, or not calling his mother as a witness and having her sit next to him to assist him. It was made clear to him that if his mother was to give evidence, she would be required to remain outside the court room until she did so. He was not invited to make submissions why such a rule should not be applied to him in the exercise of a discretion the judge may have had. As a result of the requirements of the learned judge, the appellant elected not to call his mother as a witness but instead to have her sit next to him at the bar table throughout the trial. In the course of arguing Ground 9, he submitted that it was unfair that his mother was only able to assist him if she did not give evidence. Ground 20j also raises the issue.

51 Crown counsel made an opening address to the jury. The learned judge adequately explained to the appellant the limited rights he had under the Criminal Code, s371(ab), to make an opening address immediately following, the limitations being to identify any matters of fact that were not in dispute or that the appellant was prepared to admit, and any issues that he contended were important to the defence case. He made such an address to the jury, following which the Crown commenced to call evidence.

52 Ground 3 asserts error by the learned judge in admitting certain evidence. There is no merit in the ground. The appellant conceded to this Court that at the trial he did not object to the evidence in question. However, he claimed that he was unaware that the general rule was that he should object to evidence before it was given.

53 At the conclusion of the Crown's case, the appellant was asked, in accordance with the Criminal Code, s371(b), whether he intended to give evidence or to call witnesses himself. It was explained to him by the learned judge that he did not have to do either of those things, it was entirely a matter for him to decide. At no time before or during the trial, was it explained to him by a judge that by virtue of s371(c) and (d), if he gave evidence himself and adduced no other evidence, he would be entitled to make a closing address to the jury in his own defence and Crown counsel would not be entitled to make a closing address at all, but if he did adduce other evidence, any closing address by him would be followed by a reply by Crown counsel. Nor was it explained to him that in accordance with s371(d)(i), if he did adduce evidence other than his own, he was entitled first to make an address to the jury for the purpose of opening the case for the defence, and then call his evidence. He was not invited to make an opening address at all. Once he had informed the learned judge that he would give evidence himself and call witnesses to give evidence, the learned judge directed him to go into the witness box and start with his own evidence. Ground 9 is sufficient to raise these matters, but the appellant did not raise them in argument. We suspect that he was, and probably still is, unaware of the procedural rules to which we have referred.

54 When he went into the witness box, he sought first to make a PowerPoint presentation to the jury as part of his evidence, but the learned judge did not permit him to do so. Grounds 1 and 24 allege that was an error.

55 When he began giving his evidence without the PowerPoint presentation, he was referring to notes, but the learned judge told him that he could not read from them and directed him to close them. He was not invited to make submissions as to why he should not be required to do so, nor was he invited to show the notes to the judge so that she might consider whether to exercise a discretion to allow him to refer to them when giving evidence. Ground 5 asserts that, as a result of being required to put his notes away, he did not receive a fair trial and was disadvantaged because it could not reasonably have been expected that his memory alone would be good enough. In argument to this Court he said that what the learned judge required him to put away were notes of what he wanted to say in evidence and a printout of the PowerPoint presentation, which he would have used to remind him also. He said that as a result, his evidence lacked cohesion and there were a number of facts about which he had intended to give evidence but failed to do so. Under Ground 20l he referred to the provisions of the Evidence Act 2001, s32, concerning the power of a trial judge to give leave to a witness to use a document to revive his or her memory about a fact.

56 Ground 20d asserts, among other things, that the learned judge failed to give a warning to the jury that he was disadvantaged in not having his evidence led from him by counsel and in being required to rely solely on his memory when giving evidence.

57 A judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 at 523. Because of that obligation, the general rule is that the trial judge must advise the unrepresented accused person of any fundamental procedure or right which could be advantageous to the accused. A trial in which a judge allows an accused to remain in ignorance of such matters can hardly be labelled as fair. MacPherson at 534, 547.

58 Advice to unrepresented accused persons about such matters enables them to make effective choices whether to exercise their rights. R v Gidley [1984] 3 NSWLR 168. The duty to give advice may not extend necessarily to a duty to advise as to how rights and choices should be exercised. R v Zorad (1990) 19 NSWLR 91 at 99. But a failure to inform an unrepresented accused person of his or her rights may result in unfairness and therefore a miscarriage of justice. R v Andrews (1938) 27 Cr App R 12; R v Nilson [1971] VicRp 105; [1971] VR 853 at 864; Dietrich v R [1992] HCA 57; (1991) 177 CLR 292 at 325. Further, an inadequate explanation of the accused person's rights may also lead to a miscarriage of justice. R v Bellino [1993] 1 Qd R 521; (1992) 59 A Crim R 322.

59 There is no limited category of matters regarding which a judge must advise an unrepresented accused person. What is required is such information as is necessary to enable the accused to have a fair trial. MacPherson at 524. The matters about which something should be said will depend on the circumstances of each case and will be governed by the overriding principle referred to in MacPherson. Black v Smith (1984) 30 NTR 29 at 31; Abram v Bank of New Zealand (1996) 18 ATPR 41-507 at 42,341, 42,347; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154 at par[11]; and MacPherson at 547.

60 The duty of a trial judge was summarised by Bell J in Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at pars[139] - [142]:

"Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR [International Covenant on Civil and Political Rights]. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. ...

The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant."

61 If it is known that an accused person is likely to be unrepresented at the trial, it is desirable that a judge, normally the trial judge, should hold a preliminary hearing before the trial commences. Most trial judges endeavour to hold such a hearing on a day that precedes the due date for the trial. At such a hearing an inquiry can be made as to whether the accused is ready for the trial to commence or wishes to apply for an adjournment. Various aspects of the trial process can be explained and the accused person can be appropriately advised of his or her rights, so that he or she is better able to prepare for the trial armed with much needed knowledge. Some judges have a practice of providing some of the advice in writing. In many cases, much of the advice given at the preliminary hearing will need to be repeated at various stages of the trial, when appropriate.

62 A most useful publication on all aspects of the duty of judges is Self-Represented Parties - A Trial Management Guide for the Judiciary by Elizabeth Richardson that was published by the County Court of Victoria in 2004.

63 For the appellant's trial, there was no preliminary hearing of the nature we have mentioned. A form of directions hearing was conducted by a judge, who was not the eventual trial judge, about three or four weeks before the trial commenced. The appellant had been remanded to appear that day for his trial but other cases had priority and it could not begin. The judge took advantage of his appearance before the Court to enquire whether the Crown had made adequate disclosure of its case to him, including access to the child exploitation material the Crown claimed was found on his hard drive, and technical information concerning that material. The learned judge also gave advice to him concerning whether there was a need to give notice to the prosecution of an intention to rely on an alibi.

64 The Court's recording system reveals that the transcript of the first day of the trial that is in the appeal book commences at 10.59am that day. However, the system also reveals that in fact the hearing commenced at 10.30am when the appellant appeared before the trial judge. She had him confirm that he was not represented by counsel but did not ask why that was so. Nevertheless, it may be inferred that the learned judge was aware that at some time in the past the appellant had been refused legal aid for counsel to appear for him at the trial.

65 That the appellant claimed to this Court that he did not realise that he was entitled to make an application for an adjournment confirms that it is a desirable course for a trial judge to take before commencing a criminal trial involving an unrepresented accused person, and one that is commonly followed, to enquire whether the accused is ready for the trial to commence or whether he or she wishes to apply for an adjournment. No such enquiry was made of the appellant in this case. Instead the learned judge proceeded to explain how his plea would be taken and how the jury would be empanelled. The empanelment followed.

66 The learned judge then spent about 10 minutes explaining to the jurors the procedural framework of the trial they could expect. The explanation was given in the presence of the accused. Much of what was said should normally be explained to an unrepresented accused person either prior to, or at the commencement of a trial, in any event. There is an advantage in carrying out such a process with an unrepresented accused person in the absence of the jury so that matters that are raised may be freely discussed between the judge and the accused person and greater clarification given when necessary, without running the risk of the accused saying something in the presence of the jury which might better be left unsaid. The matters explained by the learned judge to the jury in his presence included:

(a) they were the judges of the fact, not the judge, and their verdict would depend on the facts they found after considering the evidence;

(b) the role of the judge;

(c) the role of Crown counsel to present the State's case;

(d) the accused was not represented by counsel;

(e) both Crown counsel and the accused would have an opportunity to make opening addresses, although it was emphasised that the accused did not have to make one;

(f) an important principle was that an accused person did not have to say anything and might remain silent at his trial, the rule being that the Crown bore the responsibility at all times to prove its case and the accused person did not have to prove his innocence;

(g) after the opening addresses, Crown counsel would call witnesses to give evidence and the accused would have an opportunity to cross-examine those witnesses by asking them questions to in effect test their evidence and challenge any part of it with which he did not agree;

(h) once the Crown case finished the accused would be asked to elect whether he intended to give evidence himself and whether he proposed to call other witnesses to give evidence;

(i) if he did give evidence and called other witnesses, they would give their evidence from the witness box and be subjected to cross-examination by Crown counsel;

(j) when the defence case was closed, the accused and Crown counsel would make closing addresses and the learned judge would present a summing up, following which the jurors would commence their deliberations.

67 Following that process, the learned judge considered a number of matters with Crown counsel and the appellant in the absence of the jury. It is at this point in the hearing that the transcript in the appeal book commences. One of the matters considered was the wish of the appellant to have his mother sit with him throughout the trial so that she could provide him with assistance. The learned judge informed him that "there's no way in the world that would be allowed", adding "that's a normal rule that applies in any criminal trial that a witness in a trial should not be in the court room during the course of the trial." The appellant was directed to choose which of those two courses he would follow, that is to say whether he would have her sitting next to him to assist him with his conduct of his defence, in which case she would not be able to give evidence, or whether he would have her give evidence but not assist him with his defence.

68 Although it may be common practice to require most witnesses to remain out of the court room until they have entered to give evidence, it is not a rule of law. It is purely a matter within the discretion of the court. Moore v Lambeth County Court Registrar [1969] 1 All ER 782 at 783; Tomlinson v Tomlinson [1980] 1 All ER 593 at 596; R v Bassett [1952] VicLawRp 75; [1952] VLR 535 at 539; R v Tait [1963] VicRp 72; [1963] VR 520 at 523. In Bassett and Tait the courts agreed that the discretion should be exercised in the way in which the trial judge deemed "most conducive to the investigation of truth" in the case in question, applying language used in Cobbett v Hudson [1852] EngR 913; (1852) 1 E & B 11 at 14. In Tait, the Full Court said that the decision whether to allow a particular witness to remain in court will often depend on the balance between the assistance to be derived in the elucidation of the truth on the one hand and possible prejudice to the other side on the other hand.

69 The common term of reference to a person who does not appear as counsel but assists an unrepresented litigant at a trial is to a "McKenzie friend". Whether such assistance should be allowed by the judge is very much a matter of practice and procedure, and also requires the exercise of a discretion. All the circumstances of the case must be considered in deciding upon the matter. Smith v R [1985] HCA 62; (1985) 159 CLR 532 at 534.

70 With respect, the learned judge erred by determining, without exercising a discretion, that the appellant's mother should remain out of Court until she gave her evidence. Associated with that was another error by determining, without exercising a discretion, that his mother would not be permitted to act as a McKenzie friend, if it was intended that she would give evidence as a witness. Before exercising those discretions submissions should have been sought from the appellant and Crown counsel, but they were not. That was also an error. It is possible that if submissions had been made, the appellant may have allowed the learned judge to inspect a statement of his mother's evidence he intended to call to assist the exercise of the discretion, and he may have been able to establish to the satisfaction of her Honour that it was just that he have her assistance without her being barred as a witness.

71 It is a wise course for a trial judge to take before a trial commences, and certainly before evidence commences, to advise the accused of the right to object to evidence before it is led, perhaps on the basis of irrelevance or because a leading question has been asked, or on any other ground. The point should be made to an accused that it is better to object before the evidence is given than after. He or she should also be informed that if uncertain about any matter that arises in the course of the trial, the accused should ask to speak to the judge in the absence of the jury and then ask the judge to rule or advise on the matter. It is also the preferred course that the accused be asked before or at the commencement of the trial whether he or she has an application to make to exclude any of the evidence that the Crown proposes to lead.

72 Advice about such matters was not given to the appellant at any stage of the trial. However we do not accept that he was unaware of his right to object to evidence before it was given. He made such objections. An example was his objection to the admissibility of a DVD of the child exploitation material found on his hard drive.

73 The failure of the learned judge to explain to the appellant the effect of the Criminal Code, s371(c) and (d), on his right to make an opening address before adducing evidence, the failure to invite him to make an opening address and the failure to explain to him the effect of s371(d)(i) on the right of Crown counsel to make a closing address, and the order in which closing addresses would be made, in the event that the appellant adduced evidence other than his own, breached the duty owed by the learned judge to advise him of fundamental procedures and his rights. As far as the making of an opening address is concerned, Crown counsel had the benefit of making such an address to open its case. It seems likely that the appellant was denied the opportunity to make an address that opened his case by being kept in ignorance of his right to do so and by not being invited to do so at the appropriate time. The contrary view that there is no relevant duty that was expressed by the Full Court of Victoria in R v Coman [1955] VicLawRp 53; [1955] VLR 289 at 290, that an unrepresented accused person should be presumed to known that he or she has the right to make an opening address, whether the trial judge points it out or not, and that it may be inferred from a failure to make such an address that the accused did not wish to make one, should not be accepted as valid in the light of MacPherson v R (supra) and many other more recent cases concerning the duties of trial judges to give advice to unrepresented accused persons.

74 Counsel for the respondent made a submission to the effect that the requirement in s371(d) as to an accused person's opening address was directory, not mandatory, and that the learned trial judge had acted appropriately in not offering the appellant the opportunity to address the jury to open his case. He referred to Masnec v R [1962] Tas SR 254 at 268. That case is authority for the proposition that a trial judge has a discretion to permit addresses that are additional to the ones for which the section provides. It does not suggest that a trial judge may ignore par(d). We reject the submission.

75 We deal next with the wish of the appellant to make a PowerPoint presentation to the jury as part of his evidence. The learned judge considered the presentation, in the absence of the jury, and ruled that it would not be admitted into evidence. In general terms, the reasons for so ruling included the following. Firstly, there were repeated on every page of the presentation the words "not guilty defence for Chris Isherwood" which the learned judge considered inappropriate for evidence. Secondly, a significant amount of the material was irrelevant. Thirdly, a significant amount of the material was argument and not evidence in the form of stated facts. Fourthly, there were many pictures in the presentation that were not themselves evidence and added nothing. The learned judge made the point that normally evidence must be given by a witness from the witness box and a party is not allowed to hand up a document which sets out what a witness wants to say. Insofar as there were portions of the presentation that would be admissible as evidence if given orally, the learned judge said they would be allowed to be given orally.

76 We detect no error in what the learned judge ruled. However, we observe that portions of the PowerPoint presentation that were disallowed as evidence would not have been objectionable if expressed as part of an opening address.

77 We deal next with the requirement of the learned judge that the appellant put away the notes to which he was referring when giving evidence.

78 The Evidence Act, s29(2), provides that a witness may give evidence wholly or partly in narrative form if the court so directs upon application by the party calling a witness. The provision was not inserted with unrepresented litigants' evidence in mind. The direction will be required in every case of an unrepresented litigant giving evidence, otherwise he or she will be unable to give it.

79 Section 32(1) provides that in the course of giving evidence, a witness must not use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. Without limiting the matters that the court may take into account in deciding whether to give leave, subs(2) directs that the court is to take into account whether the witness will be able to recall the fact or opinion adequately without using the document. Another matter prescribed for the court to take into account is whether so much of the document is, or is a copy of, a document that was written or made by the witness when the events recorded in it were fresh in his or her memory or was, at such a time, found by the witness to be accurate.

80 It is clear that s32 gives the court a discretion whether to allow a witness to use a document to revive his or her memory. Section 192 directs attention to other matters that a court may take into account whether to give leave. They include the extent to which the giving of leave would be unfair to a party and the importance of the evidence in relation to which the leave is sort. Of course, in addition, the court should also take into account any matters which may be relevant in the particular case. Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 at par[41].

81 The principal object of s32 is the giving of leave to a witness to refresh memory from notes made when the events recorded were fresh in the witness's memory, but that is not its only object and its provisions are sufficiently broad to apply to the situation that arose in this case. Almost invariably, unrepresented litigants are at a disadvantage when giving evidence because they do not have counsel to lead the evidence from them by appropriately worded questions. The risk of an unrepresented litigant forgetting to give evidence of a material fact will be a real one in many cases if he or she does not have recourse to notes. While a trial judge will have an understandable concern to ensure that a witness does not simply read his or her evidence from a prepared document, care should be taken before refusing an unrepresented litigant leave to refer to any notes at all when giving evidence. There could hardly be harm to the interests of justice if the notes contain only subject headings or questions that are not in a leading form, the purpose of which is to refresh the mind of the witness of the matters about which he or she should give evidence.

82 The learned judge erred by ruling against the use of the notes without exercising the discretion whether to give leave to the appellant to refer to them and without calling for submissions why leave should or should not be given. In support of any application for leave the appellant may have wished to make when informed of his right to make one, the documents could have been produced to the learned judge for inspection. It may have appeared that there was nothing in them that should have prevented leave being given. However, although the PowerPoint presentation is before this Court, the other notes the appellant had in front of him are not and we are unable to determine whether leave to refer to some or all of the notes should have been given.

83 The learned judge did not warn the jury that they should take into account that the appellant was under a disadvantage through not having legal representation. The requirements of each case will vary and there is no rule of law that such a warning must be given in every case. A possible direction to the jury regarding an unrepresented accused person is referred to in Self-Represented Parties - A Trial Management Guide for the Judiciary at 40 as having come from his Honour Judge Kelly's Charge Book, in the following terms:

"The accused in this case is not represented by counsel. That imposes additional duties of fairness upon the prosecutor; upon me to see that the accused's case is fairly put before you; and upon you to consider it, and what might have been said about it by counsel on the accused's behalf. In a sense we all have to be the accused's counsel, whilst being careful also to fulfil our own duties.

It is proper for you to make every allowance, in assessing the demeanour and personality of the accused, for the fact that he has had no counsel to guide him in presenting his [or her] case [and his [or her] evidence]."

84 We conclude that a miscarriage of justice occurred by reason of the following errors considered in combination:

1 Determining, without exercising a discretion, that the appellant's mother remain out of court until she gave evidence.

2 Determining, without exercising a discretion, that his mother could not sit with him and perform the role of a McKenzie friend if it was intended that she would be called as a witness to give evidence.

3 Failing to call for submissions before making those determinations.

4 Failing to advise the appellant that he was entitled to make an opening address before adducing evidence and failing to invite him to make one.

5 Failing to advise the appellant of the effect his adducing of evidence would have on the right of Crown counsel to make a closing address and the order of closing addresses.

6 Determining, without exercising a discretion, that the appellant could not refer to notes when giving evidence.

7 Failing to call for submissions before making that determination.

85 There are a great many other grounds of appeal. There was no merit in them and there is no need to deal with them. Nor is there a need to deal with the appeal against sentence.

86 For the reasons stated, it will be ordered that the appeal is allowed, the conviction quashed, the sentence and other consequential orders set aside, and a verdict of acquittal substituted.

Isherwood v Tasmania [2010] TASCCA 11

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (122 paragraphs)

Isherwood v Tasmania [2010] TASCCA 11 (2 September 2010)

Parties

Cases Cited (11)