Konopka v Commissioner of Police

Background

1. The applicant commenced employment in the NSWPF as a Probationary Constable on 25 January 1991. He rose to the rank of Senior Constable on 26 July 1996.
2. In 2007, the applicant was investigated in relation to accessing child pornography via the internet. No adverse findings were made against him at that time. However, an Investigator's Report prepared by Detective Sergeant Gavin Bradbury in July 2007 contained the following: In relation to the current area of attachment for KONOPKA, it would be recommended that a risk assessment be conducted to establish his suitability to work in the area of Child Protection. As this is an area of investigation that has access to child pornography, it would be appropriate to make such an assessment. During the interview with KONOPKA, he made admissions that he accessed and purchased pornographic material via the internet and that he had a predilection for females aged between 18 and 25. Although no criminal offences were identified during the investigation, material located on his computer hard drive could be deemed borderline due to the young age of the females depicted.
3. According to the respondent, in 2013 police were investigating an alleged assault involving the applicant and his former partner. Investigating police were aware that the applicant had taken photographs of injuries which he alleged he had suffered during the course of an assault upon him by his former partner. The police sought and obtained a search warrant for the purposes of seizing the photographs and any other evidence relevant to the alleged offence.
4. On 26 September 2013, the search warrant was executed at the applicant's residence. During the course of the execution of the search warrant, the police seized and/or examined computers and hard drives located at the premises.
5. In addition to the photographs being sought in connection with the alleged assault, the police discovered what they suspected to be child abuse material on a computer and hard drive in the applicant's possession. Despite the seizure of these items, criminal charges were not pursued against the applicant relating to his possession of alleged child abuse material.
6. An Investigation Report prepared by Detective Sergeant Timothy Meagher, Professional Standards Command Investigations Unit, dated 17 February 2015, contained the following: Section 91H Crimes Act 40/1900 - A person who produces, disseminates or possesses child abuse material is guilty of an offence The advice was that the prosecution have to prove that the persons depicted in the images are persons under the age of 16 years. At the time there was insufficient evidence to establish the females depicted in the images were under 16 and therefore there was no reasonable prospect of a conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law. Section 474.19 Criminal Code Act (Cth) Use carriage service for child pornography Inspector Houlohan stated the difficulty with proving this offence lay with the element of 'use carriage service'. Most of the images were created prior to the date of the installation of the operating system on the computer. Without examining the old computer, computer technicians cannot ascertain where the files came from. For that reason, the prosecution would not be able to establish the particular element of this offence of 'use a carriage service' and therefore Inspector Houlohan advised not to commence criminal proceedings against Detective Konopka for this offence.
7. The advice received by Detective Sergeant Meagher from Inspector Houlohan was not put into evidence in these proceedings. However, as will become apparent later in these reasons for decision, the proposition that a conviction for an offence under section 91H of the Crimes Act 1900 requires proof that the persons depicted in the images are persons under the age of 16 years, appears to be based upon an unnecessarily narrow view of the definition of "child abuse material" in section 91FB of that statute.
8. Whilst no criminal proceedings were initiated against the applicant, the images and videos that were seized were subsequently used by the NSWPF in conducting a disciplinary investigation into the applicant's conduct. This investigation culminated in the respondent making an order pursuant to section 181D(1) of the Police Act removing the applicant from the NSWPF.

Previous proceedings

1. On 31 March 2017, I handed down a decision on certain interlocutory issues which had been raised by the applicant in these proceedings (Konopka v Commissioner of Police [2017] NSWIRComm 1014). These interlocutory issues had been formulated as follows: 1. Should material which was seized from the applicant during the execution of a search warrant granted by a Local Court in relation to a criminal investigation, and then used by the respondent during the disciplinary investigation which led to the applicant's removal from the NSWPF, be admitted into evidence in these proceedings? 2. Should the affidavits of Detective Sergeants Long and Mellor be admitted into evidence in these proceedings? 3. What weight should be attributed to the evidence of Detective Sergeants Long and Mellor if their affidavits are admitted into evidence? 4. An application by the applicant pursuant to section 164A of the IR Act for a non-disclosure order prohibiting the disclosure of the applicant's name in connection with these proceedings.
2. In that decision, I determined as follows: 1. The material which was seized from the applicant during the execution of a search warrant granted by a Local Court in relation to a criminal investigation, and then used by the respondent during the disciplinary investigation which led to the applicant's removal from the NSWPF, will be admitted into evidence in these proceedings. 2. The affidavits of Detective Sergeant Long and Detective Sergeant Mellor will be admitted into evidence in these proceedings. 3. The application by the applicant for a non-disclosure order prohibiting the disclosure of the applicant's name in connection with these proceedings is rejected.

Relevant legislation

1. Division 15A of the Crimes Act contains the following provisions: 91FA Definitions For the purposes of this Division: child means a person who is under the age of 16 years. child abuse material - see section 91FB. 91FB Child abuse material - meaning (1) In this Division: child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character) (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are: (a) a person's genital area or anal area, or (b) the breasts of a female person. 91H Production, dissemination or possession of child abuse material (1) In this section: possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)). (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.
2. Under the NSW legislation, a "child" is a person who is under 16 years of age. The offence of possession of "child abuse material" occurs where the offensive material depicts a "person who is, appears to be or is implied to be, a child" (emphasis added).
3. Section 91HA of the Crimes Act contains the following defence: 91HA Defences (1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.
4. The Schedule to the Criminal Code Act 1995 (Cth) contains the following provisions: 473.1 Definitions In this Part: child pornography material means: (a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who: (i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or (ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or (b) material the dominant characteristic of which is the depiction, for a sexual purpose, of: (i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or (ii) a representation of such a sexual organ or anal region; or (iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age; in a way that reasonable persons would regard as being, in all the circumstances, offensive; or (c) material that describes a person who is, or is implied to be, under 18 years of age and who: (i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or (ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or (d) material that describes: (i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or (ii) the breasts of a female person who is, or is implied to be, under 18 years of age; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive. 473.4 Determining whether material is offensive The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults; and (b) the literary, artistic or educational merit (if any) of the material; and (c) the general character of the material (including whether it is of a medical, legal or scientific character). 474.19 Using a carriage service for child pornography material (1) A person commits an offence if: (a) the person: (i) accesses material; or (ii) causes material to be transmitted to himself or herself; or (iii) transmits, makes available, publishes, distributes, advertises or promotes material; or (iv) solicits material; and (aa) the person does so using a carriage service; and (b) the material is child pornography material. Penalty: Imprisonment for 15 years. (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1): (a) intention is the fault element for the conduct referred to in paragraph (1)(a); (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b). 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
5. Under the Commonwealth legislation, "child pornography material" includes offensive material which depicts "a person who is, or appears to be" under 18 years of age (emphasis added). Under this legislation, the use of a carriage service, such as the internet, to access pornographic images of a person who is, or who appears to be, under 18 years of age is an offence, whereas, under the NSW legislation, possession of such material is an offence if the person depicted is, appears to be or is implied to be under 16 years of age.

Evidence of the applicant

1. The applicant filed two witness statements in the proceedings. The first is a 19 page statement which was accompanied by five folders of documents described as "attachments" to the witness statement. These "attachments" comprised 1,125 pages in total. The applicant's second witness statement, comprised 16 pages of 82 paragraphs together with 14 pages of attached documents.
2. A considerable amount of the applicant's evidence related to the 2007 investigation of the applicant in relation to accessing child pornography via the internet. It was the applicant's case that much of the material which was seized, examined and returned to him in 2007 with no criminal or disciplinary charges being laid against him, was the same material which was seized in 2013 and which ultimately led to his removal. In relation to the material which was seized from the applicant in 2007, he gave the following evidence under cross-examination: Q. Now you have a statement that materials were seized from your possession in 2007 pursuant to a search warrant? A. Yes. Q. That search warrant at that time was one which was seeking material related to child pornography? A. Yes. Q. Is it your case that any of these impugned images or videos were part of that material returned to you in 2007? A. Yes it is. Q. Do you say all of the impugned content? A. No, 2 February 2007, that search warrant, everything that predates that, there's no other explanation--
3. In relation to the material which was seized from the applicant during the execution of the search warrant on 26 September 2013, which was assessed by Detective Sergeant Peter Mellor ("DS Mellor") of the Australian Federal Police ("AFP") and Detective Sergeant Richard Long ("DS Long") of the NSWPF, and which was relied upon by the respondent as the basis for the removal order (collectively "the impugned material"), the applicant gave the following evidence in his first witness statement: - The impugned content is provably legal to any reasonable standard. The evidence that the experts are provably wrong in almost all cases and/or the impugned material was subject to previous examination from the first search warrant and determined as being legal far outweighs the value of their provably flawed opinions. - The study of Professor Arlenbloom concludes that it is reckless and irresponsible to attempt to attribute age to pornographic images of post pubescent teens. This is supported by the massive variation in the opinions of Federal Agent Mellor and Detective Sergeant Long, if it is not common sense that there is extreme danger. I assert that if there is evidence they are wrong a single time, with the fact that these statements were intended for use in a criminal prosecution, then no weight can be attached to their opinion, and that allowing such opinions will inevitably result in wrongful convictions. - There is no wrongdoing on my part. All evidence shows I only ever sought, or had, legal content and have no interest in child pornography. My actions and the content I possessed would not give any reasonable person cause to consider the material might be under 18, let alone not legal. The vast majority of the impugned pictures come from still active websites which show compliance with US record keeping legislation, thereby providing not only a means to verify the age of the models involved, but an obligation to do so if the investigators truly believed the material depicts children being abused. In so far as the few photos which do not have logos, there is significant evidence that I have only ever visited sites offering legal content, and also significant evidence that most were previously examined and returned after the 2007 search warrant. The only evidence not to my benefit is the provably wrong opinion of Detective Sergeant Long, although while Detective Sergeant Meagher has twisted the opinion of Federal Agent Mellor to try to show it as concurring with Detective Sergeant Long, the least enquiry or reading of Federal Agent Mellor's statement will leave no doubt it is contradictory to that of Detective Sergeant Long. - The Commissioner of Police has made his decision based on being advised of circumstances which are false, and not advised of other highly relevant exculpatory circumstances. The sole reason I have been dismissed is the dishonesty of the officers tasked with the investigation.
4. In addition to accessing internet websites directly, the applicant stated that he also used the BitTorrent protocol which is a "peer to peer" data sharing method of obtaining material. In relation to this matter, the applicant gave the following evidence under cross-examination whilst being shown a particular image from the impugned material: Q. So let me just - you understand that, and I think you've agreed with this, that if you obtain the material by using the BitTorrent Protocol, you can't determine one way or the other where the image or the video might have originated from in the first place? A. There's ways-- Q. Do you-- A. --that you can have a very good educated guess based on other user comments. Some sites have a star rating and also the file size, you know, will let you know whether it's a video or a photograph, for example. Q. Can I ask you this. You don't know if you've obtained that from BitTorrent - I'll just break it back. You don't know from looking at that image or from your recollection whether you accessed a website which had, I'll call it the "disclaimer", but the US reporting regulations, you don't know whether you went on one of those websites and downloaded that picture, do you? A. I don't know whether that was downloaded from a website or not, no. You're right. Q. So you have no idea of knowing where that image was sourced from, do you? A. The only - when you're downloading from a torrent there's usually a description of what you're downloading.
5. The applicant was highly critical of the evidence provided by the two police officer witnesses for the respondent.
6. The applicant claimed that DS Mellor had conducted his assessment based on "irrelevant legislation (Commonwealth)". The applicant further claimed that, in quite a few instances, DS Mellor's opinion was that the photos he examined depicted persons between 16 and 18 years of age, making them "legal" in New South Wales.
7. The applicant was particularly critical of the use by DS Mellor and DS Long, as asserted by the applicant, of the "Tanner Scale" of sexual maturation to estimate the age of the subjects depicted in the images and videos they were asked to assess. The applicant relied on a number of publications by Dr Arlan Rosenbloom of the Department of Paediatrics, University of Florida College of Medicine, and by the creator of the Tanner Scale himself, Dr James Tanner of the University of London, including a letter entitled "Misuse of Tanner Scale" which was co-authored by both doctors and which cautioned against the use of Tanner staging to estimate the chronological age of the subjects depicted in still images.
8. Under cross-examination, the applicant gave some evidence about his work as a police officer in the area of child protection. The following exchange then occurred: Q. You would obviously then, given that work experience, agree with the Commissioner's statement that exploitation of children is a particularly serious issue? A. Absolutely. Q. It's a serious issue for society in general? A. I agree with all the observations the Commissioner made and most people view it as abhorrent, as do I. Q. You've indicated just then that you agree with the observations that the Commissioner makes, you mean the observations he makes about these matters in the reasons that he's given accompanying your removal order? A. No, in relation to his abhorrence of child abuse material and that, if it were the case, that I had possessed child abuse material, I would be inclined to agree with him. Q. Well, I'll come back to that in a moment, but just so I can clarify. You agree then that when the Commissioner says that he expected all police officers to be vigilant in detecting and preventing matters of child abuse, you agree with him that that was reasonable for him to have that expectation? A. Yes. Q. Likewise, in relation to his, this is the Commissioner's statement that a New South Wales police officer who possessed child pornography material, whether they procured it themselves knowingly or not, that that has a potential to significantly undermine the integrity of the police force, do you agree with that? A. Yes. Q. Now I want to ask you about this proposition. You would also agree, and I think this is the Commissioner's statement, that you would agree with this proposition, that as a police officer it was important for you to possess sound judgment? A. Yeah, he did make that comment. I know that is, of course, accurate. Q. It's important because policing matters, by their very nature, require judgment to be made every day, correct? A. There's community expectations, no doubt about it, there is a high standard, yes. Q. Well just back to the question in relation to exercising judgment, the very nature of policing work requires judgment to be exercised every day? A. That's true.
9. The applicant agreed with counsel for the respondent that it was his case in these proceedings that none of the impugned material, the possession of which led to his removal from the NSWPF, is, in fact, child abuse material or child pornography material. The following exchange occurred during cross-examination: Q. ………….. Your whole case, so to speak, or defence of the removal order is that none of the images or videos that Detective Sergeants Mellor or Long have opined as being child abuse material or child pornography material is in fact child abuse material or child pornography material, that's your case? A. That is my case.

Dr Chapman

1. In an affidavit filed by the respondent, Dr Peter Chapman, Director at Ferrier Hodgson within the firm's Forensic IT practice, gave an explanation of the BitTorrent protocol and its use in lay terms.
2. In effect, BitTorrent is a "peer to peer" communications protocol that is used to share electronic files over the internet. Dr Chapman gave the following evidence: 15. Users who download a files via a BitTorrent application generally rely upon the name of the Torrent file and the other user's ratings as to the accuracy of the Torrent name in reference to the contents of the Torrent. Even if the user was to examine the technical instructions within the Torrent file itself, the contents of each of the segments referenced by the Torrent file are not visible by the user until they are downloaded. 16. In this regard, the titles of a Torrent file can be misleading. For example, while an uploader may create a Torrent containing a file with the title "Picture of a car", the file itself may actually be a different picture, a movie, a document or any other type of data. While some BitTorrent applications provide a function to "stream" downloaded segments of video while the remainder of the segments are downloaded, streamed segments must be downloaded before viewing. Therefore, in order to confirm that the content of the file is consistent with any description supplied by the user or by the BitTorrent website, the content must be downloaded first. 17. Further, a user is unable to scrutinise the origin of the files that are referenced by a Torrent prior to download. For example, if a person obtains content from a particular website and creates a Torrent file in order to share that file, any persons who download that content through the use of the Torrent file and a BitTorrent application will not be able to discern that the content originated from that particular website prior to downloading the content.
3. Dr Chapman's evidence was not challenged by the applicant.

Detective Sergeant Mellor

1. DS Mellor has been a sworn officer of the AFP for approximately 33 years. During that time, DS Mellor spent over 10 years investigating child exploitation and child sex offences. For around seven of those years he was the Team Leader of the Victim Identification Team, Child Protection Operations, High Tech Crime Operations Unit, within the AFP.
2. In December 2013, DS Mellor prepared two reports in relation to his review of 10 video files and 74 still image files which had been forwarded to him by Detective Senior Constable Watkins of the Professional Standards Command, NSWPF. These videos and images were part of the material seized from the applicant on 26 September 2013.
3. Using the Australian National Victim Image Library ("ANVIL") schema, DS Mellor reviewed the videos and images against the Child Exploitation Material ("CEM") scale of five categories which broadly described the activity depicted in the material, with category 5 being the most offensive. Broadly speaking, the five categories of the CEM scale classifies material according to the following criteria: Category 1 Images of children which are likely to cause offence to a reasonable adult, but where there is no actual sexual activity taking place. There is no specific requirement for nudity or for a particular focus on, or attention to the genitals; however the image must be sexually suggestive or sexual in nature. Category 2 Sexual acts between children only with no part of the body being penetrated and the solo masturbation by a child. This includes a child penetrating themselves in the act of masturbation. Category 3 Images in this category feature adults with a child involved in any sexual activity taking place, however the sexual activity must be non-penetrative. Category 4 Penetrative sexual activity between children only or adults and children. Category 5 The activity involved need not necessarily be overtly sexual but includes images of children which are likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality or humiliation. Category 6 relates to animated or virtual images or videos. None of the material examined by DS Mellor fell into this category.
4. In his evidence in these proceedings, DS Mellor stated that, in his two reports, he was expressing a view as to whether or not a person or persons depicted in the videos and images were under the age of 16 years. He stated as follows: 10. Given the variations between jurisdictions, and in accordance with the ANVIL schema, the AFP categorises alleged child abuse material with reference to an age limit of 16 years, as this is the lowest age limit across all Australian jurisdictions for child abuse material. I was also aware that there was a possibility of criminal charges being laid under the Crimes Act 1900 (NSW), and accordingly, I reviewed the images and videos with reference to an age limit of 16 years, consistent with the statutory definition of 'child abuse material' in NSW.
5. Of the 74 still images he examined, DS Mellor classified 25 as category 1 on the CEM scale, 11 as category 2 and one as category 3. Of the 10 videos examined by DS Mellor, he classified five as category 1, one as category 2 and one as category 5.
6. DS Mellor was cross-examined by the applicant at length. Much of that cross-examination was directed towards establishing that DS Mellor could not be definite in his opinion as to the actual age of any of the persons depicted in the videos and images which he examined and about which he gave evidence in these proceedings.
7. In relation to the Tanner Scale, DS Mellor gave the following evidence: Q. So in each case where you've referred to them as pubescent, that is fairly significant evidence that they are older than 16? A. When I say medically, if you're using for example, the TANNER(?) scale, that would pubescent - if I remember correctly, the TANNER scale originally had specific age ranges for each level on the scale, which was correct for the sample of people that the developing doctor used, but medically since, it's been proved to be quite inaccurate. However, we still use the term pubescent. Q. So you don't use the TANNER scale in your assessment? A. Not to calculate age but to calculate the physiological development of a person. Q. Okay? A. So all I'm saying is that using the word pubescent, if you take the original meaning of the word and applied it strictly, every time I use it, it would be incorrect to then say that that material is under - falls within the New South Wales under 16 age threshold. Q. Okay, so the corollary of that is every time you've used the word pubescent it would be well open to somebody to conclude that that was legal within the New South Wales definition? A. That's right. What I'm saying is you don't take it as its original meaning. Perhaps for clarity Commissioner, everybody uses the term paedophile, but it actually specifically means a person who has a sexual preference for males who have yet actually to reach puberty. Whereas in general use and in the community and in the media and so forth, the term paedophile refers to anybody who likes children below the age of consent. So technically it's a very specific type of offender. That's currently the best to explain it. Q. Now you mentioned the TANNER scale Detective Sergeant Mellor, but that's no longer accepted as something that's legitimate for use in identifying? A. No it's still legitimate for use but you don't use it to come to an age range.

Detective Sergeant Long

1. DS Long is a Team Leader of the NSWPF, Child Exploitation Internet Unit, which sits within the Child Protection and Sex Crimes Squad, State Crime Command. He has been in this role since March 2005. His unit investigates the sexual exploitation of children that is facilitated through the use of internet and telecommunications devices. This includes, but is not limited to, investigations into the production, dissemination and possession of child abuse material and child pornography.
2. On 21 August 2014, DS Long was asked to review 339 images that were found in the possession of the applicant. DS Long was asked to provide his opinion on whether or not any of these images came within the definition of "child abuse material" as set out in section 91FB of the Crimes Act. In a Statement of Police prepared by DS Long on 9 September 2014, he expressed his opinion that 17 of the 339 images examined by him were captured by the definition of "child abuse material". DS Mellor had also examined 15 of these 17 images. He had classified two of them as category 1on the CEM scale and 10 of them as category 2. Three of the images which, in the opinion of DS Long, were captured by the definition of "child abuse material", DS Mellor had not classified as category 1-5 on the CEM scale.
3. In the process of preparing his affidavit for the purpose of these proceedings, DS Long reviewed the images that DS Mellor had classified as category 1, 2 or 3 on the CEM scale. DS Long stated that he would not disagree with DS Mellor's assessment that a further 11 images, which DS Long had not initially assessed as being captured by the definition of "child abuse material", did constitute such material. In relation to these 11 images, DS Long stated in his affidavit: 8. It is not surprising to me that Detective Sergeant Mellor came to this finding, notwithstanding that, as at September 2014, I was not satisfied that these images constituted child abuse material. The reason for this is because the assessment of the images is a subjective one. While it involves the assessment of particular criteria, it ultimately comes down to the subjective opinion of the assessor in determining whether or not the images depict a person under the age of 16 years. 9. In my practice and experience, I tend to err on the side of caution when assessing potential child abuse material. If I consider there to be any doubt, I err on the side of not classifying material as child abuse material, in fairness to the person accused of being in possession of the material. In this respect, any remaining images that Detective Sergeant Mellor has classified as child abuse material but I have not, only reflects my practice of not classifying images as child abuse material where I have doubts about whether or not it meets that definition. Further, the images are 'borderline', in the sense that they do not obviously depict a person who is under the age of 16. From my experience, I have previously worked collaboratively with Detective Sergeant Mellor previously, and I acknowledge and respect his opinion and expertise in the area of child sexual exploitation investigation. ……………………. 15. … I deny that there are "enormous variations" in the opinions of myself and Detective Sergeant Mellor. I have explained above, at paragraphs 8 and 9 of this affidavit, why there are differences between my opinion and the opinion of Detective Sergeant Mellor. In short, any variations can be explained, in part, by the subjective nature of the assessment of child abuse material, and equally, due to my approach to provide accused persons with the benefit of any doubt I may have as to whether or not an image or video file constitutes child abuse material.
4. During the cross-examination of DS Long by the applicant, the following exchanges occurred which capture the essence of the opposing approaches of the parties to the determination of whether or not a particular image comes within the definition of "child abuse material": Q. What do you say gives you your expertise in determining that exact nature of whether a person is under or over the age of 16 years? A. I don't say that I'm an expert in determining the age of someone over or under 16, but that's not the test that I apply in terms of determining whether something falls within child abuse material as such. Q. What test do you apply? A. Well, that's only one component is that the person depicted in - or the thing depicted in the image is - depicts someone that may be under - under the age of 16 or is appeared to apparently be under the age of 16 or is depicted in a way to give the impression that they're under 16. So that - so in terms of an actual age it may in fact be someone that is either older than under 16, but they're depicted to appear to be someone who is apparently under the age of 16. So age isn't the only primary - primary factor is what I'm trying to convey. ………………… Q. In any of the images that you saw was there definitive proof that any of the images were under 16? Definitive proof, not something that you have concluded appeared to be under the age of 16? A. I'm not exactly sure what you're asking there. Q. Do you have evidence other than your own opinion that corroborates your opinion that any of these images are under 16? A. Sorry - sorry, I'm just - just not a hundred per cent clear on what - what you - what you're - what you're actually asking there. Q. Is there any independent evidence that corroborates your opinion? A. Such as you mean like a birth certificate or something like that? Q. Anything? A. No. Q. No, so it's purely your opinion that they're under 16? A. I'm not saying they're under 16. It appears to be or depicted to be a person under 16 years of age. Q. So in the definition of child pornography is a person is, appears to be or is implied to be under a particular age depending on the legislation, is that correct? A. Correct. …………………… Q. So you believe that you can accurately tell the difference between a person who is 15 and a person who is 16? A. No I don't. Q. So a person who you determine is 15 might well be 18 or 19? A. If - I suppose if you just answered it, that would be the case, but if you compile it with the adage that I adage that I also apply and do in that training as well is that if in doubt leave it out, or throw it out, then I would say no. Because if there was some doubt as to whether that person was under the age or appeared to be or implied to be under the age of 16, I would not classify that it's child abuse material. …………………….. Q. Okay. My main criticism in that was that there was never any methodology defined that how you were able to say somebody was over 16 or under 16 and given that we are talking about borderline images, we are talking about borderline images? A. I wouldn't use that term. Q. What would term would you use? A. I would use the term that they're either child abuse material or they're not child abuse material. I'd-- Q. Okay-- A. If we're talking about borderline images, I would say that they - I'm not sure exactly what you're saying by borderline images, but when in doubt I would leave them out, so if I've classified any as child abuse material, I wouldn't consider them borderline. Q. So if they're around an age that I think you've said that it would be something to the effect that another person would be entitled to conclude to a different conclusion than you? A. What paragraph was that? Q. Sorry, just bear with me, I have to find that one? A. It's all right. Q. It's paragraph 8 again, the same sentence. The reason for this is because the assessment of your images is a subjective one. While it involves the assessment of particular criteria, it ultimately comes down to the subjective opinion of the assessor in determining whether or not the images depict a person under the age of 16? A. Yeah, that's correct. On the basis of people's life experience, people's professional experience, people in the way they view and perceive things is different. I mean we're not robots, so-- Q. You're not robots and for that reason I would suggest that for - if you acknowledge that one person might arrive at a different conclusion to you, I would suggest that you need a very precise and accurate method, so if we are to believe your opinion that they are under 16? A. Well the difficultly with that, and this comes down to some, and I recall specifically some presentations I've been at, been presented on that very issue that you raise in terms of determining ages of children and not purely for the purpose of determining whether they're for child abuse material or not, from some paediatric specialists and the advice from those presentations are consistent, is that it's almost impossible even for them, who deal with children on a professional basis every day, to give you an exact age of someone. So obviously what you say would be correct in that aspect. ………………….. Q. Yes. A. You would look at what stage that development - bodily development is as part of the gauge, and then you would look at as part of that bodily development obviously the development around the genitals, the limbs, the hips and then facial development. You would then, once you've looked at that material, you would have a look at anything else in the image that may depict or give the apparent depiction that the material itself is trying to depict that person to be someone under the age of sixteen. It might be the clothing they wear, it might be some prop in the image, it might be some other pose or whatever that might imply that the child - that the person is under the age of sixteen or is certainly implying to present them to the viewer of that material as someone who is under the age of sixteen. So they're some of the factors that - or as methodology that you apply to someone in the cases as you're saying in these particular matters. ………………………… Q. Sorry, just on this document, the "Misuse of Tanner Scale", do you have any reason to doubt what that says? A. I - as I indicated I can see what the premise of that particular document is. I noted it appears to be, and you would know more than I would because you've sourced it, it appears to be a letter to the editor of some newspaper or media thing so I - I would be interested before I went too deeply into it to get the full background as to how it came about, why it came about and in relation to the context of it. But in principle, as I indicated, to be age specific rather than category specific I can see that there would be issues if you solely relied just upon the Tanner Scale, yes. And that comes from presentations I've had from - where paediatricians have given, basically, a similar type warning, for lack of a better word, of just solely relying upon one particular aspect to gauge an age of somebody, you know, to get it 100% accurate. Q. Do you know of a better method? A. Better method to what? Q. A better method of developmental staging than Dr Tanner's? A. I don't - I mean I can't respond to that because I mean it's not - what I'm - have given in my evidence is not age staging as such as you put it so I don't know the answer as to whether there is an exact science or a better method. I mean I don't know. I don't think there is to my knowledge one method, but there may very well be. But, once again, I think it would have the same limitations when you rely on just one aspect to come to an opinion on anything. You draw upon, as I've indicated, quite a number of things and that just being one indicator. Certainly it would be dangerous to just draw upon one method when determining anything let alone specifically this type of area. Q. Dangerous? A. Sorry? Q. Dangerous? A. Well, I think it would - I don't think you could purport to have given a reasonable opinion if you've just restricted yourself to one source of forming that opinion. I think whether it be in this area or anywhere I think it would be certainly, I think it would be unprofessional. ……………………….. Q. Detective Sergeant, it's not an exaggeration to say that the consequences of your opinion can be quite extreme if it's accepted? A. Sorry, I don't understand that question. Q. Well, the consequences of your opinion, you could potentially send somebody to gaol, or have somebody dismissed? If your opinion is accepted? A. I mean that's difficult to answer, I mean, my opinion on a particular matter is only one component of what could lead to the actions you, you know the consequences you describe. Q. Okay, and what if your opinion is taken as essentially the main component of that matter and the decisive component of that matter, then the consequences of it could be extreme? A. Again, difficult to answer, I mean that would be a decision on a person requiring that opinion, what they do with it is beyond my control. Q. Okay, so, do you acknowledge that if you are wrong just a single time, then that casts a great deal of doubt over the ability that you claim to have in being able to determine whether somebody appears to be under 16? A. Sorry, I'm just, just not quite understanding what you're asking me. Q. If you're wrong just once, that casts enormous doubt given the potential consequences of it, over - that you can in fact do what you say you can do to any degree of reliability? A. If I'm wrong, but in terms of what? An opinion on a particular - Q. Yeah, on any one single image? A. Oh, once again I think that's difficult to answer because it's - firstly it's hypothetical, I mean if you gave me a specific example, that may assist but I certainly endeavour when giving opinion that - I mean it's an opinion so whether it's wrong or right, is at the time that I give that opinion I consider it to be right, so if someone else judges it to be wrong or whatever the case may be, I mean that once again is beyond my control. Q. So if you're opinion is established as being wrong in one single instance, anyone, it doesn't matter which do you acknowledge that that then casts into doubt the - your ability to proffer opinions at all? A. Well I think that what you're asking is if my opinion's wrong it - I mean I don't know how you would say that someone's opinion is wrong, I mean someone may have a different opinion but to say someone's opinion is wrong is - I think it's a difficult concept, I mean it's someone's opinion, I mean someone may have a different opinion, but what makes one opinion right and one opinion wrong is subject to discussion or argument. Q. So, you're saying essentially because you say it appears to be that that excuses you from any exactness-- COMMISSIONER: Sorry I just don't understand that question. APPLICANT Q. You're saying because the image is up here (appears) to be under 16 that excuses you from any concept of being wrong because it's an opinion that they're under 16 and it's just an opinion so it doesn't matter if there's actual evidence that they're 25, it's still your opinion so there's no consequence to that? A. No I disagree with that on this basis, that when I would give an opinion that someone appears to be or is implied to be under 16 years of age, it's irrelevant what age that person is, or turns out to be, because the opinion is expressed on what's presented in that particular image or article or be able - looking at, at that time, so it's irrelevant. I mean I give you a practical example to perhaps explain what I'm trying to say, is that if you have a girl that's say aged 15 for example. If that girl determines that she wants to go to a nightclub where you need to be 18 or somewhere for that evening, then often girls will dress themselves up to appear much older than what they actually are. So they may appear in fact, 18, 19 or whatever, even though they are 15. So if you saw them in that context you would probably form a view that in that context they are somewhat above the age of 16 when in fact they're not. That same girl, the next day, may want to get children's rate to get into an entertainment complex where they need to be under 14 or 13 or whatever the case may be. They would dress themselves down to appear to be much younger than they are, despite what their age is, so that they can get in and get half price of children's price for something. That's what I'm saying to you, that it's the context on that particular day, is what you can give an opinion on, their age in actual fact may be totally irrelevant.

Submissions of the applicant

1. The applicant filed and served a 94 page written submission together with a five page summary of that submission and two attachments.
2. The applicant relied heavily on the fact that he has not been charged with any criminal offence as a result of his possession of the material which was seized during the execution of the search warrant on 26 September 2013. In relation to section 91H of the Crimes Act, the legal advice given to the respondent at the time, which is referred to in the Investigator's Report prepared by Detective Sergeant Meagher in 2015, was that there was insufficient evidence to establish that the females depicted in the images were under 16 and therefore there was no reasonable prospect of a conviction by reasonable jury (or other tribunal of fact) properly instructed as to the law. In relation to section 474.19 of the Criminal Code Act (Cth), the advice was that the difficulty with proving this offence lay with the element of "use carriage service" (see paragraph 14 above). The applicant submitted: If it cannot be said beyond reasonable doubt that the person depicted is below 16, the material is legal and there is no offence. …………………….. There is no borderline or grey area regarding age in these offences. It must be established beyond reasonable doubt that the material depicts someone underage. If it cannot be said with that requisite certainty that it depicts a person who is underage, then it is legal.
3. In relation to the asserted reliance by DS Mellor and DS Long on the Tanner Scale to estimate the age of the subjects depicted in the material which they examined, the applicant submitted as follows: There is eventual acknowledgement of a heavy reliance on the use of the Tanner scale in the assessments made by both Detective Sergeant Long and Detective Sergeant Mellor, despite the Statement of Reasons effectively asserting this method was not used. There is overwhelming scientific evidence, agreed to by both Detective Sergeant Mellor and Detective Sergeant Long, that it is fraught with danger to conduct assessments in the manner they have been conducted in this case. There is no evidence to the contrary. There is no scientific or evidentiary data, or anything else that supports these witnesses being able to do what they claim.
4. The applicant repeated the assertions he had made in his response to the section 181D(3) Notice to the effect that, in 2013, DS Mellor had conducted his assessment of the videos and images against the definition of "child pornography material" in the Criminal Code Act (Cth) which refers to the depiction of a person, or a representation of a person, who is, or appears to be, under 18 years of age.
5. The applicant also submitted that, in their assessments of the material provided to them, both DS Mellor and DS Long did not take into account the "reasonable person test" in determining that a particular video or image depicted a person who "appeared to be" under the relevant age. It was put that, in order for the material to be classified as "illegal", the images must "'appear to be' under a particular age to a reasonable person, and beyond reasonable doubt".
6. In relation to the issue of "the standards of morality, decency and propriety generally accepted by reasonable adults" (section 91FB(2)(a) of the Crimes Act and section 473.4(a) of the Criminal Code Act (Cth)), the applicant submitted that reasonable adults would not find videos or images of "legal models who look young", engaging in sexual acts, to be offensive. He based this submission on the popularity of "teen-themed porn" on popular "legal" internet pornography sites. The applicant submitted: The whole assessment process of both Detective Sergeant Long and Detective Sergeant Mellor is based on the understanding that it doesn't matter that they are or could be in fact legal, with no exceptions. This disregards the reality that sites will use legal models who look young, which is a desirable and accepted quality in the industry and wider community. Youthful looks does not make them illegal. Indeed, it is the largest segment of an enormous marketplace. That the industry has a high demand for young looking legal models is supported by the report of Professor Rosenbloom, and agreed to in evidence by Detective Sergeant Mellor. Detective Sergeant Mellor several times confirmed in evidence that it makes no commercial or legal sense that a pornography site would use illegal models, when they can use legal models and the only consequence is making money. The probability of any of the models being illegal in reality is so remote as to be negligible, and neither Detective Sergeant Long or Detective Sergeant Mellor dispute that they could be, as a fact, legal age. The only way of knowing their age is through actual investigation which would have been possible in this matter, yet was not done. Detective Sergeant Mellor states… that if illegal material is detected it can cause a serious downturn in trade and operators remove it immediately. To accept the application of the legislation used by Detective Sergeant Long and Detective Sergeant Mellor is to determine that the hundreds of millions of users who search "Teen" are looking at illegal content, and that somehow it is not a community norm or generally accepted by reasonable adults, even though hundreds of millions of people routinely look at this type of content. It is the largest section of a multi-billion dollar industry, which is criminalised if the law is applied without taking 91FB2(a) in to account.
7. The applicant further submitted that, in relation to his alleged possession of child abuse material as defined in section 91FB(1) of the Crimes Act, the respondent's Statement of Reasons did not specify whether the persons depicted in the impugned material were alleged to actually be under 16 years of age, or appeared to be so, or were implied to be so. This, according to the applicant, was unjust and unfair to him.
8. It was also submitted that, based on the evidence of DS Mellor and DS Long, the case that was being put against the applicant was that the persons depicted in the impugned material appeared to be or were implied to be underage, rather than were underage. In a case such as that, the "reasonable person" test needed to be applied but was not in this case.
9. The applicant also submitted that the evidence of DS Mellor and DS Long did not satisfy the test for "expert" evidence and could not be accepted as such.
10. With respect to the investigation that occurred in 2007, the applicant repeated his assertion that much of the material that was impugned following the 2013 seizure had been examined in 2007 and found not to be "illegal". In his written submissions, the applicant quoted the following extract from a report by Detective Superintendent Helen Begg dated 28 September 2007 which related to the 2007 investigation: I have reviewed the material and I have received advice from Detective Sergeant Long, the Team Leader from the Child Exploitation Internet Unit in relation to the material. In order to commence proceedings in relation to child pornography material, police have to be able to be satisfied that the person depicted in the images are under the age of 16 years of age. The images in the material that was viewed were borderline, and it would be difficult to prove to a criminal standard required that the persons were under 16 years. Notwithstanding, these sites depicted girls that appear to be around that age. It should be stated that there are no images of very young children in the material.
11. The applicant was highly critical of the investigation which ultimately led to his removal. He was particularly critical of the involvement of Detective Senior Constable Watkins and Detective Sergeant Meagher in that investigation and claimed that the process was not impartial and that the outcome was predetermined.
12. It was also submitted that, in the event that the Commission determined that the impugned material "is actually illegal", the applicant relied upon the defence of innocent possession (section 91HA(1) of the Crimes Act).
13. In relation to the Criminal Code Act (Cth), the applicant claimed that there was a lack of recklessness on his part in accessing the impugned material (sections 474.19(2)(b) and 5.4). He stated in his written submissions: Throughout their various statements and their evidence, both Detective Sergeant Mellor and Detective Sergeant Long made repeated statements that would cause doubt in the mind of a reasonable person as to what the material "appears to be" or is "implied". There is no evidence any material "is" illegal. Both witnesses agree that another person would be well entitled to the view that the material is legal. If the opinions are accepted, an implied part of that acceptance is to acknowledge that it takes a trained eye of such surgical precision it can tell the difference in age of potentially just a few days. When all the circumstances are taken into account, a reasonable person could form no other conclusion than the material is legal, and there is no doubt that I hold a genuine belief that I have done nothing wrong. In those circumstances and the totality of the evidence, I submit it is clear in respect of the alleged NSW offence that the possession of the material was innocent and I could not have been reasonably expected to have known it to be illegal. I also submit in relation to the Commonwealth allegation, it is clear that I was diligent and responsible in my behaviour, and in the manner I conducted my porn surfing. No reasonable person would have foreseen any risk.
14. The applicant also submitted that the impugned material represented one millionth of the "other undisputedly legal pornography" he had downloaded.

Submissions of the respondent

1. The respondent submitted that the applicant has not discharged his onus of proving that the impugned material found in his possession did not constitute child abuse material/child exploitation material/child pornography ("child abuse material") as defined in either the Crimes Act or the Criminal Code Act (Cth); that he did not engage in the misconduct which the respondent was satisfied that he had engaged in; and consequently, that his removal from the NSWPF was harsh, unreasonable or unjust.
2. The respondent had rejected the applicant's contention that the impugned material did not constitute child abuse material and had reached that view with the benefit of the evidence from DS Long and DS Mellor, both of whom hold substantial expertise in the criminal investigation of cases involving child abuse material.
3. The respondent was deeply concerned by the applicant's lack of judgement and absence of any insight into the gravity of his behaviour. The applicant's failure to acknowledge that any of the impugned material constituted child abuse material or, at the very least, was "borderline", left the respondent with no confidence that the behaviour would not be repeated, nor did it instil the respondent with confidence that the applicant held the judgement required to be a police officer.
4. The respondent summarised the applicant's case as follows: 1. The impugned material, or much of it, came from websites that contain disclaimers stating that all persons depicted are over the age of 18, and that the website complies with record-keeping legislation applicable in the United States of America. 2. The impugned material contained logos and/or watermarks which are indicative of their legal content. 3. The file names or pathways for the images and videos are indicative of their legal content. 4. Some or all of the images and videos needed to be seen in the context that they comprise part of the series, and that other images and videos in the series establish the legality of the content. 5. The opinions of DS Long and DS Mellor should not be accepted.
5. In dealing with section 91FB of the Crimes Act, with reference to the definition in section 91FA of a "child" as being a person under the age of 16 years, the respondent emphasised that the definition required an objective assessment, as to whether or not a reasonable person would regard the material as being, in all circumstances, offensive, taking into account the factors set out in subsection 91FB(2). A separate assessment was required as to whether or not the person depicted or described is, appears to be or is implied to be a "child". In relation to this separate assessment, the respondent submitted as follows: It is not immediately apparent that the determination of whether someone "appears to be" or is "implied to be" for the purposes of section 91FB is either subjective or objective. In any event, if one was to apply an objective standard to the impugned images and videos, it is readily apparent that the impugned images and videos are of persons that "appear to be" or are "implied to be" under 16.
6. The respondent relied upon the following extract from the decision of Magistrate Antrum in Director of Public Prosecutions (NSW) v WT ([2013] NSWLC 33): [41] The child abuse material must be "a person who is, appears to be or is implied to be, a child". The defendant submits that the images are not, in fact, of a child, therefore there is not a child, and could not appear to be, beyond a reasonable doubt, a child. Consequently, the Crown must rely upon the new and relatively unique status of a person who is "implied" to be a child. The Crown accepts that as its position with respect to these facts… [42] One distinction that can be drawn between the second state (appears to be) and the third state (impliedly is) is that the principal actor in forming a view as to what the image "appears to be", is the "viewer", in this case the defendant. [43] In the third state (implied to be) the focus shifts to the sender, or the creator of the image. This is the person who creates a set of circumstances (or an image) that implies a certain thing to another person. Of course, it must still have the ability, whatever the intention of the creator, to make a particular implication on its own material presentation. …………. [45] The New South Wales legislature has acted upon the Child Pornography Working Party recommendations. From that discussion and the debate in Parliament it seems abundantly clear that Parliament has sought to "cover all bases" so as to make it very clear that even where the content is not in fact a depiction of a child, any person who seeks to obtain any sexual gratification from a perception or an assumption that the image is of a child, should be subject to sanction.
7. It was then submitted that the applicant's plainly incorrect submissions regarding interpretation of the criminal law reveal a concerning lack of insight and understanding about the operation of that law, in circumstances where he was a sworn police officer who spent six years working on child abuse cases.
8. The respondent also rejected the applicant's contention that it was contingent upon the respondent to set out which of the three limbs (being "is", "appears to be", or "is implied to be") he relied upon in classifying each of the images and videos as child abuse material.
9. The respondent also referred to the Commonwealth Criminal Code Act noting that a "child" under that legislation is a person under 18 years of age.
10. The respondent rejected the proposition that the applicant had scrutinised websites from which he had downloaded material to ensure its legality. Relying on the evidence of Dr Chapman, the respondent submitted that such scrutiny is not possible when downloading material through the use of the BitTorrent file sharing protocol.
11. The applicant's asserted reliance upon disclaimers on websites that claimed that the persons depicted therein were 18 years of age or older, was also criticised by the respondent on the basis that such disclaimers are included for self-serving purposes. The respondent also criticised the applicant's stated reliance upon website disclaimers which asserted compliance with United States' regulatory provisions such as 18 U.S.C. 2256, which defines a minor as a person under the age of 18, and 18 U.S.C. 2257, which requires a person who produces an image of a human being containing a depiction of sexually explicit conduct, to create a record of each performer in each visual depiction, which must contain the performer's name and date of birth.
12. Further, the evidence of DS Mellor and DS Long was that websites may contain child abuse material, either knowingly or unknowingly, notwithstanding any disclaimers those websites may also contain.
13. The respondent further submitted that the applicant's reliance upon website disclaimers and United States' regulatory codes fails to deal with the definition of "child abuse material" in New South Wales which includes persons who appear to be, or are implied to be, under the age of 16.
14. The respondent made similar criticisms of the applicant's reliance upon logos or watermarks which appear on some of the impugned material, as well as his reliance upon file names and pathways.
15. The respondent also rejected the applicant's reliance upon certain of the impugned images being part of a series of images which were not all impugned. The respondent relied upon the evidence of both DS Mellor and DS Long that each image and video must be viewed individually on its own merits as to whether or not it meets the criteria set out in the statutory definitions.
16. In relation to the applicant's reliance upon a "legal advising" that he had not engaged in misconduct, the respondent submitted that this opinion, which was referred to in the Investigator's Report prepared by Detective Sergeant Meagher in 2015, was to the effect that there were no reasonable prospects of a conviction under section 91H of the Crimes Act or under section 474.19 of the Criminal Code Act (Cth) (see paragraph 14 above). In considering whether or not the applicant had engaged in misconduct by his possession of child abuse material and by downloading and/or transmitting child abuse material to himself through the use of a carriage service, the respondent concluded, on the balance of probabilities, that this behaviour contravened the Crimes Act and the Criminal Code Act (Cth). In doing so, the respondent formed this view on the "Briginshaw standard".
17. The respondent submitted that the applicant has demonstrated a disturbing lack of insight, not only in the proceedings before the Commission, but since the pornographic images and videos were seized from his residential premises in September 2013. It was submitted that it might be expected that a person seeking reinstatement as a police officer would show some degree of understanding that the images and videos are at least "borderline", or that his methods for downloading pornography were reckless and carried a real risk of downloading illegal material. To the contrary, so the respondent submitted, the applicant has demonstrated no such contrition, remorse or insight at any time from September 2013 to October 2017, despite multiple opportunities to do so.
18. It was further submitted that it might be expected that a person seeking reinstatement as a police officer would be able to demonstrate a working knowledge and understanding of the criminal law. To the contrary, the applicant has prosecuted his case in complete ignorance of the fact that, irrespective of the true age of a person in an image or video, if they appear to be or are implied to be under the age of 16 years, this will constitute child abuse material.
19. In reply to the case presented by the applicant, the respondent rejected the criticisms of the evidence of DS Long and DS Mellor and their lack of "expertise" in assessing the age of persons who appeared in the various videos and images which the applicant had downloaded from the internet. The respondent pointed out that, despite the applicant's own lack of any qualifications or expertise, he proceeded to give precise evidence about the ages of persons depicted in the various videos and images. In a number of answers given under cross-examination, the applicant supported his own evidence as to the age of the persons depicted with reference to their breast and genital development, the very matters about which, he claimed, DS Long and DS Mellor lacked any expertise.
20. The respondent also rejected the assertion by the applicant that DS Long and DS Mellor had been "reckless" in their classification of the material examined by them. To the contrary, it was submitted, both officers adopted the approach that, where there was any doubt as to whether or not a particular video or image constituted child abuse material, that doubt was exercised in favour of the applicant.
21. In support of this submission, the respondent noted that the applicant had tendered into evidence a large number of images which had not been classified as child abuse material by either DS Long or DS Mellor. The respondent submitted that it was apparent from viewing these images that they are "borderline" in the sense that reasonable minds may differ as to whether or not they themselves, in fact, constitute child abuse material. The fact that neither officer had categorised such "borderline" images as child abuse material was illustrative of their diligence, and the benefit of the doubt they have given to the applicant, notwithstanding how slender that doubt clearly must have been in some cases.
22. The respondent's written submissions concluded as follows: 174. On the evidence, Mr Konopka has plainly engaged in serious misconduct. Even now, following his removal from office, and having had an extensive period of time to reflect on his behaviour, it is apparent that Mr Konopka still does not accept or understand that his behaviour was improper or inappropriate in any way. Mr Konopka's conduct while a sworn police officer will undermine public confidence if he is now reinstated. 175. Mr Konopka's lack of insight, and in particular, his vehement defence of the images and videos that were relied upon by the Commissioner to remove Mr Konopka, and his failure to accept that any person could reasonably come to the view that any of the images or videos constitute child abuse material, is illustrative of his unsound judgment and unsuitability to serve the community as a sworn police officer, responsible for the detection and investigation of crime. 176. Mr Konopka has engaged in behaviour that he rightly accepted was abhorrent and plainly brought the reputation of the Commissioner of Police and the NSW Police Force into disrepute by his misconduct. 177. Mr Konopka's application for review must be dismissed.

Submissions of the applicant in reply

1. The applicant filed and served an extensive written submission in reply to the submissions of the respondent in which he sought to refute the case put against him.
2. The applicant dealt extensively with the concept of what a "reasonable person" might regard as offensive, as well as the terms "appears to be" and "is implied to be" as they appear in section 91FB of the Crimes Act. As part of his reply submission, the applicant put the following: If there is reasonable doubt where "implied" or "appears to be" are asserted, then the material is categorically legal. It is legal to possess and it is legal to download. If it is contended that the material is, or may be "borderline", as it is in the Respondent's submissions as well as the Statement of Reasons, then there is reasonable doubt. When the correct objective legal test is applied, the material is legal to possess, and legal to download. Even if it were contended, that on the balance of probabilities the material is not legal, then there is reasonable doubt. When the correct objective legal test is applied, the material is legal to possess, and legal to download. ……….. When the correct legal test is applied there is a vast body of evidence demonstrating, at the very least, that a reasonable person would have reasonable doubt as to the age. That being the case, the material is legal. It is legal to download, and legal to possess.
3. The applicant maintained that neither DS Long nor DS Mellor had applied the correct legal test.
4. The applicant's reply submissions concluded as follows: The Commission can be satisfied that there is no evidence at all of any wrongdoing. The evidentiary case of the Respondent does not prove or tend towards proving anything. Repeatedly and aggressively asserting I possessed child abuse material does not overcome the failure to apply the correct legal test. My evidentiary case was the only evidence which considered the correct legal test in these matters. When the correct legal test is applied there is nothing doubtful or dubious about the material. It is conclusively legal.

History of section 91FB - Crimes Act

1. Before embarking upon a consideration of whether or not the removal of the applicant was harsh, unreasonable or unjust, it is useful to trace some of the history of section 91FB of the Crimes Act. This is especially so given the heavy reliance placed by the applicant on the proposition that much of the impugned material had been previously seized in 2007, examined, found to be "legal" and returned to him. The applicant has conducted his case on the basis that, if the material was "legal" in 2007, then it must still have been "legal" in 2013 and subsequently. However, that proposition does not necessarily follow.
2. As at 6 February 2007, when the first search warrant was executed at the applicant's premises, the relevant provision of the Crimes Act was section 91H, the relevant parts of which were in the following form: 91H Production, dissemination or possession of child pornography (1) Definitions In this section: child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context). ………………… (2) Production or dissemination of child pornography A person who produces or disseminates child pornography in is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Possession of child pornography A person who has child pornography in his or her possession is guilty of an offence. Maximum penalty: imprisonment for 5 years.
3. It will be noted that the "child pornography" was "material that depicts or describes… a person under (or apparently under) the age of 16 years". This wording is significantly different to that of the current section 91FB, which gives some context to the applicant's often repeated submission to the effect that the material, or a significant amount of it, which had been impugned following the 2013 seizure, had been seized and examined in 2007 and found to be "legal". The test then was quite different from the test now.
4. Section 91H was amended by the Crimes Amendment (Sexual Offences) Act 2008, the relevant parts of which were then in the following form: 91H Production, dissemination or possession of child pornography (1) Definitions In this section: child pornography means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context). ………………… (2) Production, dissemination or possession of child pornography A person who produces, disseminates or possesses child pornography in is guilty of an offence. Maximum penalty: imprisonment for 10 years.
5. The definition of a "child" remained a person under the age of 16 years but it will be noted that the operative words of the provision had changed from "material that depicts or describes… a person under (or apparently under) the age of 16 years" to "material that depicts or describes (or appears to depict or describe)… a person who is (or appears to be) a child". It will also be noted that that the maximum penalty for possession of child pornography was increased from 5 to 10 years imprisonment.
6. The Explanatory Note which accompanied the bill when it went before the parliament contained the following: Schedule 1 [25] and [30] make amendments to clarify that the child pornography offence extends to material that appears to depict or describe a child (a person under the age of 16 years) in a pornographic manner. This includes where an image of a person is manipulated in a manner to make the person appear to be a child or appear to be engaged in a sexual activity, in a sexual context or a victim of torture, cruelty or physical abuse.
7. During the second reading speech, the Honourable John Hatzistergos, Minister for Justice and Minister for Industrial Relations, said as follows: The available technologies currently utilised in the production of pornography allow for images to be manipulated, juxtaposed or pixillated. One of the reasons offenders do this is to make it more difficult to identify the children and the perpetrators, and therefore more difficult to apprehend the perpetrators and rescue the victims. This allows the abuse to continue. Images can also be manipulated to make innocent photographs of children appear in a pornographic context, or to make a person in a sexual context appear to be a child. Some may argue that such images do not include a real victim and therefore should not be captured by this legislation. However, the Government makes no apologies for ensuring that all child pornographic images, whether real or pseudo, are covered by this legislation. These tough child pornography laws not only serve to protect children from abuse but also act as a denunciation and a general deterrent. Furthermore, it is important to reduce the amount of abhorrent material available to anyone with access to a computer. The community expects the Government to do everything within its power to prevent the proliferation of these images, and that is what this bill serves to do. ………………. Item [25] replaces the current definition of "child pornography" in section 91H to clarify that child pornography includes material that appears to depict or describe offensive material, and includes a person who is or appears to be a child. As I have previously outlined in this speech, this ensures that all forms of child pornography are included in this definition, even images that have been digitally altered to either make someone appear to be under 16 years or make a child appear to be in a pornographic context. Item [26] provides a definition of the term "produce" in relation to child pornography and ensures that all forms of production of child pornography are captured by the definition, including both real images of children being abused and also pseudo, manipulated or computer-generated images. Item [30] goes further and ensures that all images, including pseudo images, are covered by this section, not just for the purposes of those who produce child pornography as covered by the item [26] amendments but also for those who possess or disseminate such material. This section puts beyond doubt that the definition of child pornography in section 91H includes images of a child that have been altered or manipulated or an image that appears to be a child. Items [27], [28] and [29] relate to the increase in the maximum penalty for possession of child pornography to 10 years imprisonment, and consequential amendments to the section as a result of this increase.
8. It is apparent that the legislature, at this time, intended to significantly broaden the definition of "child pornography" by the inclusion of the words "or appears to depict or describe" and the replacement of "or apparently under" with "or appears to be". It is also apparent that this definition was intended to capture videos and images of a person who may, in fact, be 16 years of age or older, but who "appears to be" under that age.
9. The current section 91FB was inserted into the Crimes Act by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010.
10. The Explanatory Note which accompanied the bill when it went before the parliament contained the following: Schedule 1 [6] and [9] replace provisions of the Crimes Act 1900 relating to child pornography. The new provisions are generally consistent with the approach to child pornography taken in the Criminal Code Act 1995 of the Commonwealth. At present, child pornography is defined as material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context). It is an offence to produce, disseminate or possess child pornography. The new provisions expressly extend to a greater range of material, including material that depicts or describes the private parts of a child. The material concerned will now be referred to as child abuse material. Child abuse material is defined as material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. The existing offence of producing, disseminating or possessing child pornography is retained, with updated terminology.
11. Again, it is apparent that, at this time, the legislature, by the inclusion of the words "or is implied to be", intended to further broaden the scope of the definition of what is now called "child abuse material" to capture material that depicts a person who may, in fact, be 16 years of age or older, but who is, in the context of the particular video or image, "implied to be" under 16 years of age.
12. This legislative history, to a large extent, defeats the often repeated submission of the applicant to the effect that a significant amount of the material which was seized from him in 2013 and found to be child abuse material, had previously been seized in 2007 and found to be "legal". What this submission fails to grapple with is that the definition of "child pornography" in 2007 was much narrower than the current definition of "child abuse material" which places emphasis on the age the person "appears to be" or "is implied to be", as well as the person's actual age which can, as has been demonstrated by the evidence in this case, be difficult to accurately determine from a video or still image.

Section 181F - Police Act

1. Section 181F of the Police Act is in the following terms: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).
2. The first matter that the Commission is required to consider in this case is the respondent's Statement of Reasons for the decision to remove the applicant from the NSWPF.
3. As stated at paragraph 5 above, the respondent found that the two specific allegations which had been laid against the applicant had been sustained on the balance of probabilities. That is, the respondent found that the applicant was in possession of child abuse/child exploitation material/child pornography contrary to section 91H of the Crimes Act (allegation 1) and that he had downloaded and/or transmitted to himself child abuse/child exploitation material/child pornography contrary to section 474.19 of the Criminal Code Act 1995 (Cth) (allegation 2).
4. In particular, the respondent was concerned regarding the applicant's lack of judgement in relation to the impugned material and the lack of acknowledgement by him that the material found to be in his possession contained images of children.
5. The respondent's Statement of Reasons concluded as follows: I take into account your comments that no adverse findings were made against you in 2007. However, I maintain that following the 2007 investigation you should have been on notice to be cautious as to the pornographic material you downloaded and had in your possession. Instead you have continued to download pornographic material in a reckless manner and displayed extremely poor decision making in relation to these matters. I consider you have displayed contempt and disrespect for the law, this organisation and your Oath of Office. I have considered the material and the opinions of both AFP Mellor and Detective Sergeant Long. I have also considered your detailed submission regarding your view that their opinions cannot be relied upon. I disagree, and I take no comfort in your comments that they have relied upon 'guesswork', 'magic powers' and 'junk science'. I have given careful consideration to your submission regarding the logos of websites appearing on some of the images, as well as the full file names. In that regard I obtained further opinion from AFP Mellor, and accept his opinion that these are not relevant factors when assessing the images. As set out in my Notice, these matters go to the very heart of your personal judgement and integrity. I have determined that I am unable to rely upon your integrity as a police officer to perform policing duties in the future. Whether on or off duty your conduct will reflect on the NSW Police Force. All employees must protect the reputation of the NSW Police Force through appropriate behaviour. I am satisfied that you engaged in the conduct as alleged, and consider you have acted unlawfully and in a way that brings discredit to this organisation. Given the nature of your conduct I no longer consider you to be a person of sound moral principle and character. I have carefully reviewed all of the material associated with this matter. However, given the magnitude of your misconduct I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. I expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty. You have failed in this regard. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer.
6. The case presented by the applicant as to why his removal was harsh, unreasonable or unjust is outlined at paragraphs 24-32, 47-60 and 83-86 above and may be summarised as follows: 1. Much of the impugned material was the same material which had previously been seized from the applicant in 2007, examined at that time, found to be "legal" and returned to him. 2. It has not been established that any of the persons depicted in the impugned material is actually under 16 years of age, nor do any of them "appear to be" or are "implied to be" under 16. The evidence of DS Long and DS Mellor to the contrary should be rejected. 3. Applying the "reasonable person" test, it has not been established that any of the impugned material depicts, in a way that reasonable persons would regard as being, in all the circumstances, offensive, a person who is, appears to be or is implied to be under 16 years of age. 4. Some of the impugned images have a logo, watermark, file name or pathway which demonstrates that they were downloaded from "legal" websites which do not use underage models. 5. The impugned material comprised such a miniscule proportion of the pornographic material found to be in the applicant's possession that it could not be established that his downloading practices had been "reckless".
7. The case presented by the respondent in answer to the applicant's case is outlined at paragraphs 33-46 and 61-82 above. In essence, the case for the respondent is that the impugned material, which was seized from the applicant, depicts, in a way that reasonable persons would regard as being, in all the circumstances, offensive, persons who are or who appear to be or who are implied to be under 16 years of age engaged in a sexual pose or sexual activity.

Was the removal of the applicant harsh, unreasonable or unjust?

1. At the outset, it should be stated that none of the impugned material depicts young infants. The videos and still images depict females in various stages of undress, all of whom appear to be in their teens.
2. With respect to section 91FB of the Crimes Act, the approach that I have adopted is that the "reasonable person" test applies to the consideration as to whether the material depicts a person in a way that reasonable persons would regard as being, in all the circumstances, offensive. I accept that there is no definitive method of determining whether or not any of the persons depicted in these videos and images is actually under 16 years of age. In relation to the determination of whether or not any of the persons "appears to be" or "is implied to be" under 16, that is a matter for the tribunal of fact which, in the present case, is this Commission, assisted by the evidence and submissions presented by the parties. I have adopted a similar approach with respect to section 473.1 of the Criminal Code Act (Cth).
3. Whilst the applicant has the burden of establishing that his removal was harsh, unreasonable or unjust, the evidentiary burden may shift to the respondent once the applicant has adduced evidence that casts sufficient doubt on the finding by the respondent that the allegations against the applicant are sustained (Tredinnick v Commissioner of Police [2016] NSWIRComm 14 at [29]-[79]; see also Commissioner of Police v Morris [2017] NSWIRComm 1010 at [10]-[15]). The standard of proof to be applied is the civil standard or "balance of probabilities" as explained in Starr v Commissioner of Police ([2001] NSWIRComm 226 at [158]-[159]).
4. As a general proposition, I do not accept that website logos, watermarks, disclaimers or statements of compliance provide any assistance to the Commission in the determination of whether or not any of the impugned material falls within the definition of "child abuse material" in section 91FB of the Crimes Act or within the definition of "child pornography material" in section 473.1 of the Criminal Code Act (Cth).
5. By way of illustration, the applicant relied upon the decision of a United States District Judge to dismiss the indictment in the matter of United States of America v Arnold Katz (Western District of Louisiana, Lake Charles Division, Criminal No. CR96-20027-02). The motion to dismiss the indictment was granted on the basis that the case against the defendant was to be based on expert evidence using the Tanner Scale of Human Development to establish the age range of persons depicted in what was alleged to be child pornography which had been received and distributed by the defendant. However, it was brought to the court's attention that Dr Tanner himself had published a report criticising the use of Tanner Staging to determine if a model in a pornographic video tape is under the age of 18. On the basis of Dr Tanner's report the motion to dismiss the indictment was granted. However, for present purposes, the relevance of this decision is that the issue before the American court was whether or not the persons depicted in the material were, in fact, under the age of 18. This demonstrates that the tests for what constitutes "illegal" child pornography can vary markedly from jurisdiction to jurisdiction.
6. Further, any statement of compliance appearing on a pornographic website to the effect that the persons depicted are 18 years of age or older in compliance with the laws of a foreign jurisdiction, even if such statement be true, is of little, if any, assistance in determining whether or not any videos or images downloaded from such a website would be captured by the definition of "child abuse material" in section 91FB of the Crimes Act or by the definition of "child pornography material" in section 473.1 of the Criminal Code Act (Cth). The applicant's heavy reliance on these disclaimers and statements of compliance to establish that the material in his possession was "legal", completely ignores the criteria of "appears to be" and "is implied to be", which are critically important elements of the child protection laws of this state.
7. For the purpose of making my determination in this matter, I have focussed attention primarily on those images which were assessed by both DS Mellor and DS Long as constituting child abuse material. What follows is a description of those images and my determination in relation to them, by reference to the attached file name. (1) a8f9.jpg DS Mellor's description: Category 1. One early pubescent female seated with her legs apart exposing her genitals. Female does not have any clothing on her lower body. The logo for the website: [redacted].com is on the image. Image recorded as being seized by Belgium Authorities in 2010. Image was located in an AFP seizure 2006. DS Long's description: In my opinion the girl depicted in this image is a person who appears to be a child under the age of 16 years. I form this view based upon her facial features and bodily development Determination: I concur with the opinion of both police officers. Whilst I am unable to determine that the person depicted is actually under 16 years of age, she certainly appears to me to be under that age and the coy manner in which she is posed also implies that she is under 16. I do not accept that the logo for the website which appears on the image negates the appearance of this person as coming within the definition of a "child" under the Crimes Act. (2) Home 001239.jpg DS Mellor's description Category 1. One pubescent female lying down. Female is naked and breasts are visible. Not previously known to LEA. DS Long's description: In my opinion the girl depicted in this image is a person who appears to be a child under the age of 16 years and in any case is implied to be a child under 16 years of age. I form this view based upon her facial features, bodily development and her presentation. Determination: I concur with the opinion of both police officers. The subject of this image certainly appears to me to be under the age of 16 years. Whilst not necessarily determinative, the fact that she has braces on her teeth and the manner in which she is posed implies that she is under 16. (3) www.[redacted].com(32).jpg www.[redacted].com(36).jpg www.[redacted].com(41).jpg www.[redacted].com(60).jpg www.[redacted].com(68).jpg www.[redacted].com(75).jpg www.[redacted].com(82).jpg www.[redacted].com(84).jpg www.[redacted].com(104).jpg www.[redacted].com(107).jpg DS Mellor's description: Category 2. Three pubescent females naked in a forest setting. Various poses in which the females are kissing or caressing each other or digitally penetrating themselves. Females are well developed physically and are assessed as being around 16 years of age. Not previously known to LEA. Series named THREEINTHEWOODS and added to database. DS Long's description of : In my opinion the girl depicted in the middle in this image is a person who appears to be a child under the age of 16 years. I form this view based upon her facial features and bodily development. In my opinion the girl depicted on the right in this image is a person who appears to be a child under the age of 16 years. I form this view based upon her facial features and bodily development. DS Long gave similar descriptions of the other images in this series. Determination: I concur with the opinion of both DS Mellor and DS Long. Two of the three girls depicted in this series of images certainly appear to me to be under the age of 16 years.
8. I have also formed the opinion that each of the images described above depicts persons who are or who appear to be or who are implied to be under the age of 16 years of age and they are depicted in a sexually provocative way that reasonable persons would regard, in all the circumstances, especially their young age, as being offensive. The images depict girls who appear to be under 16 years of age engaged in, or apparently engaged in, a sexual pose or sexual activity and depict their private parts in a manner that reasonable persons would regard as offensive. I have formed this opinion taking into account the matters set out in subsection 91FB(2) of the Crimes Act. I am also of the opinion that each of these images is captured by the definition of "child pornography material" in section 473.1 of the Criminal Code Act (Cth), in that each of the images depicts a person or persons who appear to be under the age of 18 years.
9. On the applicant's own case, it is reckless and irresponsible to attempt to attribute age to pornographic images of post pubescent teens. Accepting for the moment that there may be some force in this contention, it was reckless and irresponsible of the applicant to download and retain videos and images of post pubescent teens who may well, on the applicant's own case, have been under 18, or even 16, years of age, putting aside the issues of "appears to be" or "is implied to be". I reject entirely the applicant's contention that, because the material (or some of it) was downloaded from overseas pornographic websites which profess compliance with the laws of other jurisdictions, then the material must be "legal" in New South Wales. This was material of the sort which the applicant, given his experience during the 2007 investigation, should have stayed well away from.
10. I am also of the opinion that many of the other videos and images which were seized from the applicant in 2013 and examined by DS Mellor and DS Long may well be captured by the definition of "child abuse material" in section 91FB of the Crimes Act and the definition of "child pornography material" in section 473.1 of the Criminal Code Act (Cth), but I find it unnecessary to make a positive determination to that effect.
11. It follows that I concur with the finding of the respondent in relation to allegation 1, that, on the balance of probabilities, although having regard to the seriousness of the allegation, the applicant was in possession of child abuse/child exploitation material/child pornography and that such conduct was contrary to the Police Act 1990, the Police Regulation 2008, the Crimes Act 1900 and the NSW Police Force Code of Conduct and Ethics.
12. As previously stated, I find that the images described above fall within the definition of "child pornography material" in the Criminal Code Act (Cth) in that they depict a person who is, or who appears to be, under 18 years of age and who is engaged in a sexual pose or sexual activity. I reject the applicant's contention that the Criminal Code Act (Cth) is "irrelevant legislation".
13. As I apprehend the contention of the applicant, possession of a pornographic image of a person who is demonstrably 17 years of age, and who appears to be so, would not be grounds for removal because the image is "legal" in New South Wales. I disagree.
14. The Commissioner of Police of this state is fully entitled to lose confidence in a police officer who has in his possession material which comes within the definition of "child pornography material" in the Criminal Code Act (Cth), even in circumstances where the prosecution for an offence under that statute may not be feasible due to difficulties in establishing that possession of such material was achieved by the use of a carriage service.
15. It follows that I concur with the finding of the respondent in relation to allegation 2, that, on the balance of probabilities, although having regard to the seriousness of the allegation, the applicant downloaded and/or transmitted to himself child abuse/child exploitation material/child pornography and that such conduct was contrary to the Police Act 1990, the Police Regulation 2008, the NSW Police Force Code of Conduct and Ethics and the Criminal Code Act 1995 (Cth).
16. For the reasons already stated, I reject the applicant's submission to the effect that his possession of the impugned material was acceptable on the basis that, at least, some of it had been examined in 2007 and had been found to be "legal". According to Detective Sergeant Bradbury, at that time in 2007, the material located on the applicant's computer hard drive could be deemed "borderline" due to the young age of the females depicted (see paragraph 10 above). Since that time the "border" has shifted considerably in favour of the protection of children.
17. The events of 2007 should have served as a warning to the applicant to stay well away from material which he should have recognised as being "borderline". It should have been apparent to the applicant that such material may well fall on the wrong side of the line that defines child abuse material. Instead, the applicant chose to retain and acquire further material of this nature on the basis that, if it is "borderline" then it must be "legal". This attitude discloses a distinct lack of judgement on the part of the applicant. I agree fully with the respondent's comments to this effect as set out in his Statement of Reasons (see paragraph 103 above).
18. I also reject the applicant's submission to the effect that the impugned material made up only a miniscule proportion of the total amount of pornography which he downloaded and retained. Laws which are put in place to protect children from exploitation are not to be circumvented by the acquisition and retention of vast amounts of "legal" pornography. At the very least, the acquisition and retention of the impugned material by the applicant demonstrated a reckless indifference to the possibility that he may be in breach of the law, such as to be incompatible with the role of a sworn police officer in the NSWPF.
19. I accept that the respondent has lost confidence in the applicant's capacity to remain a member of the NSWPF, and the reasons for that loss of confidence. The respondent was fully justified in ordering the applicant's removal from his position as a police officer.

Conclusion

1. For the reasons set out above, I find that the removal of the applicant from the NSWPF was neither unreasonable nor unjust.
2. On the question of whether or not the removal of the applicant was harsh, I agree with the submission put on behalf of the respondent that very little, if anything, has been placed before the Commission by the applicant which touches upon this issue.
3. The applicant was a long serving member of the NSWPF having commenced in 1991. Apart from the matters which led to his removal, there is no evidence before the Commission of any prior formal disciplinary action having been taken against the applicant during his career as a police officer. I accept that the loss of his career in the police force will have been a significant blow to the applicant and will have adversely affected him in a number of ways, including financially. Against this consideration, however, must be weighed the seriousness of the misconduct which led to the removal of the applicant. I assess the applicant's conduct to be sufficiently serious, such as to militate against a finding that his removal was harsh.
4. On the basis of the findings set out above, it is my determination that the removal of the applicant from the NSWPF was neither harsh, unreasonable nor unjust.

Order

1. The application by Mischa Konopka for review of the order removing him from the New South Wales Police Force is dismissed. John Murphy Commissioner

Amendments 30 January 2018 - coversheet - added publication restriction. paragraph [112] - redacted website urls. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2018