Judgment Number: [2002] TASSC 81

CHRISTOPHER RONALD KNIGHT v SCOTT RAYMOND McDONALD

1 The applicant appeals against his conviction on one count of having in his possession a child abuse product in breach of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ("the Act"), s74(a) and one count of having in his possession a bestiality product in breach of the Act, s74(b).

2 On 22 August 2000, a police officer searched the applicant's residence and seized 64 floppy discs containing 651 graphics and other information. The graphics are, in most instances, pictures of the nature of photographs of nude or partially clad females of varying ages.

3 At trial, the applicant conceded that five of the pictures came within the statutory definition of a child abuse product insofar as they depicted a child in a manner that was likely to cause offence to a reasonable adult. The learned magistrate found that these five pictures, together with a further 103 pictures, came within the definition of a child abuse product. He found that two other pictures came within the statutory definition of a bestiality product.

4 In order to obtain convictions in relation to these products, it was necessary for the prosecution to establish, inter alia, that they were a "publication" or a "film" within the meaning of those terms as defined in the Act and that they were in the possession of the applicant.

5 At the relevant time, the Act, s3, included the following definitions:

"'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, but does not include -

(b) an advertisement for a publication, film or a computer game; or

(c) a recording for business, accounting, professional, scientific or educational purposes unless it contains a visual image that would be likely to cause the recording to be classified MA, R, X or RC;

'publication' means any written or pictorial matter, but does not include -

6 The learned magistrate determined that the pictures were publications or films for the purposes of the legislation. That determination is criticised by counsel for the applicant. He in substance submits that the pictures are films insofar as they are derived from floppy discs which are a "form of recording from which a visual image, including a computer generated image, can be produced" within the definition of the term "film", and that as the definition of the term "publication" excludes a film, the pictures cannot be publications. I agree that the floppy discs in question are a form of recording covered by the above-quoted phrase from the definition of film and counsel for the respondent did not contend otherwise. This being so, before it can be concluded that a picture is a film for the purposes of the Act, the exclusion contained in the definition of the term "film" must be addressed, in this instance the relevant exclusion is that it not be "a recording for ... educational purposes".

7 In the course of his comprehensive reasons for decision, the learned magistrate rejected the suggestion that the applicant collected the pictures for an educational or artistic purpose. Counsel for the applicant submits that the conclusion that the pictures were not for educational purposes is not sustainable and that the learned magistrate failed to provide adequate reasons for that conclusion.

8 On the day on which the floppy discs were seized, the applicant, then a teacher, told the responsible police officer that he used the pictures for art work. When the applicant was interviewed by police a week after the seizure of the floppy discs, the explanations given by the applicant for accumulating the pictures included:

* The pictures had been gathered when he had been researching child protection for an essay he had to write when a student. (For three years, ending in 1999, the applicant studied at the University of Tasmania to obtain a Bachelor of Teaching degree.)

* He had gathered the pictures for his art. (The applicant completed a Fine Arts degree in 1989, majoring in sculpture and furniture design and obtained an honours degree in Fine Arts in 1996.)

* He had downloaded the material onto floppy discs as he had been running a bit of an investigation. He did a lot of research on the net and sometimes when he got spammed (fed information from a site he did not know was likely to be linked to the site he was searching), he received inappropriate material that he took to the Kingston Police Station.

* He had collected pictures of naked young girls as they are a "nice ... aesthetic ... the aesthetic of innocence". He was building a file of these pictures "a file of innocence" which he was going to publish.

* He downloaded more pictures of young children than adults as he was trying to prove to himself that he did not have a fetish for children.

9 At trial, the explanations given by the applicant for accumulating the pictures included:

* He was an obsessive researcher and had downloaded the pictures when researching for an assignment on child abuse which he, together with two or three other students, did in 1998 for the purposes of his Bachelor of Teaching course.

* The pictures were for art research he was doing for a project he was developing. When asked what was the artwork he was trying to prepare, the applicant responded:

"It was going to be, what I call, a micro-community - what I wanted to do because of the arena I was thrown up in in '98 and '99 concerning people I had befriended and were in relationships with, I wanted to prove that incest is a taboo subject and need to be addressed. [It seems that the applicant's reference to what was thrown up in '98 and '99 was a reference to earlier evidence he had given concerning the sexual molestation of the daughters of a former partner by their father and the sexual molestation of the daughter of a relative by her father.] And by working through the idea of the - what would you call - adjust the position between leader complex and electra complex and the boundaries that lie between those parameters, one should understand that there are rights and responsibilities on both sides. But the only way that we are going to minimise problems that occur in society is to address them, not to continuously field them or go into denial. So the work was going to actually be a micro-community with that in mind. I hadn't edited anything. I didn't - so, the work was only just beginning. I had a theoretical base, and that's the way I wanted to work it - the incidents of incest and abuse against a number of people in a community - simple as that."

10 The pictures which found the applicant's convictions are distributed among the applicant's collection of hundreds of pictures of nude or partly clad females, many of which pictures are inescapably pornographic. In the absence of anything to suggest the contrary, the unavoidable conclusion to be drawn from the applicant's accumulation of the pictures is that he downloaded them for a sexual purpose unrelated to any educational or artistic interest. It is not really possible to discern a claim that the pictures were accumulated for educational purposes from the confused and contradictory explanations the applicant offered for their accumulation. Nevertheless, insofar as such a claim might be conjured out of the applicant's evidence, this was dealt with by the learned magistrate. He said that he rejected any submission or suggestion that the pictures were collected for an educational purpose. He did not need to say any more. In the course of his reasons for decision, he explained that he did not regard the applicant as a credible witness. The submission that the magistrate failed to provide adequate reasons for concluding that the pictures were not gathered by the applicant for educational purposes is not sustainable and I am also unpersuaded that there is any legitimate basis for challenging the correctness of his conclusion.

11 Counsel for the applicant submits that the learned magistrate erred in finding that the applicant had possession of the pictures which are the subject of the counts. Counsel submits that the evidence was insufficient to establish that the applicant knew that he had each picture. As to this issue, the learned magistrate said:

"The defence to the element of possession is that the defendant was unaware that he actually had the images on disks, or to use his Counsel's metaphor, 'a person may know he is carrying a suitcase, but does not necessarily know what it contains'.

What evidence is there of possession? There is no dispute that the defendant had actual possession of the 64 disks themselves. The defendant did not dispute the disks tendered were the disks taken by police from his residence and admitted this fact. The evidence, in any event, is overwhelming as to possession. The defendant admitted that no one else had access to them and he had not shown them to anyone else.

Many of the disks contained labels, some of which have written on them, such phrases as, 'models', 'young models', 'ultrateens', 'good sites - some hot', 'nubile - little', 'bodies - various + lesbianism adult nudes', 'dildo' 'vintage erotic Pixs', and 'bondage', to name a few.

It is obvious, that the contents have been classified or sorted by the person who has saved the images. The defendant said only he had access to them. After having heard the defendant's evidence and having viewed his video recorded interview, I was unimpressed with the defendant's evidence, and his denials as to the contents of the disks. Firstly, from his sorting of the images, from his downloading of those images, he obviously possesses much greater knowledge of computer usage than he was indicating. Obviously the disks do not contain everything randomly downloaded from the cache, but he has been selective or has gone back later and deleted files from the floppies and retained only those he decided to retain. I do not accept the defendant's denials of knowledge and reject them.

The defendant said only he had access to them, there removing any suggestion that some other person had downloaded the images without his knowledge.

I find that the defendant was not only in possession of the disks, but I am satisfied beyond reasonable doubt that he had knowledge of the contents of the disks and as such was in possession of the files contained on each and every disk. I reject any other suggestion to the contrary."

12 The only logical inference to be drawn from the evidence that the applicant searched the net for graphics, 651 of which he downloaded and stored on floppy discs, is that the applicant knew what he was obtaining and retaining. In the face of that compelling inference, it was inevitable that the learned magistrate would reject the applicant's denials of detailed knowledge of the contents of what he had obtained, particularly when those denials were interlaced with evidence which indicated that the applicant paid close attention to, and was well aware of, the contents. In order for the graphics to serve any of the various purposes for which the applicant said they were obtained, it was necessary for the applicant to know what he was downloading. The applicant said that before downloading graphics he made an assessment of their offensiveness and that he drew the line at downloading offensive material. If he found lewd or offensive graphics, he said he took them to the police station. In response to a query as to whether what he had downloaded had assisted him in his preparation of an essay on child abuse, he said that it did not assist him at all and more likely disgusted him. This evidence provides further support for the learned magistrate's finding that the applicant had knowledge of the content of the floppy discs and I am not persuaded that he erred in so finding.

13 No ground of appeal has been made out. The appeal is dismissed.