Mischa Konopka v Commissioner of Police

The decision at first instance

1. In determining that the appellant's removal was not harsh, unreasonable nor unjust, Commissioner Murphy provided the following reasons at [106] to [109]: [106] 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. [107] 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). [108] 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]). [109] 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).
2. The Commissioner's key findings with respect to Allegations 1 and 2 commence at [112]: 112. 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. 1. 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. 1. 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 www.[redacted].com(116).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 THREE IN THE WOODS and added to database. DS Long's description of www.[redacted].com(32).jpg: 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. [113]. 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. [114]. 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. [115]. 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. [116]. 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. [117]. 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". [118]. 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. [119]. The Commissioner of Police of this [S]tate 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. [120]. 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). [121]. 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. [122]. 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). [123] 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. [124]. 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.

Principles on leave to appeal

1. An appeal does not lie as of right against a first-instance decision of the Commission under the Act. Section 188(1) of the Industrial Relations Act 1996 (NSW) provides leave has to be sought and granted before any appeal is heard. Section 188(2) further provides the Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that in the public interest, leave should be granted. Accordingly, we turn to the principles in relation to the question of leave to appeal.
2. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 where the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled …: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
3. In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: [12] Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. [13] Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. ... There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal.
4. We have adopted this approach to the determination of the issue of leave to appeal in the present matter.

Case for the appellant on leave to appeal

1. The appellant appeared in person. At the outset, it must be said that the appellant has spent a great deal of time preparing material for his appeal. The application for leave and appeal comprises a mixture of fact and submission. It also seeks in large part to re-run the case heard below.
2. In support of his application, the appellant expanded on the grounds and reasons set out in his application. In doing so, the appellant canvassed a number of authorities concerning child abuse and child pornography in an attempt to rebut and cast doubt on the evidence of Detective Sergeant Long (NSWPF) and Detective Sergeant Mellor (Australian Federal Police) that some of the appellant's photographic images assessed by them constituted child pornography material, that is, the girls depicted in the images were or appeared to be under the age of 16 years within the meaning of s 91FB of the Crimes Act.
3. In his application the appellant contended that two questions of law were raised by the appeal: "1. The method of determination of the age, or apparent age, or implied age of a person. The method relied upon in the decision is set out at Paragraph 107 of that decision, and states, "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, the present case, is this Commission, assisted by the evidence and submissions presented by the parties. I have adopted a similar approach respect to section 473.1 of the Criminal Code Act (Cth)." There is little applicable case law, however the circumstances of Director of Public Prosecutions (NSW) v WT [2013] NSW LC 33 are applicable here. The criteria for determination of age as set out in this case was not applied, and had it been applied, the material would be categorised as legal. 2. At Paragraph 91-95, the decision draws a distinction between the legislation as it was in 2007 and the legislation in its current form. The definition of "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 is hereby asserted there is no operative distinction between the use of "or apparently under" from legislation as it existed in 2007, and "or appears to be" as it exists now. There is also a factual error in the judgement in relation to this point, in that there is clear evidence the 2007 matter was assessed using the Commonwealth legislation, which has not changed in that time. In stating the 2007 investigation only considered New South Wales legislation, the judgement relies on a document that played no part in the 2007 investigation, and whose author had no involvement in the investigation."
4. The appellant contended leave to appeal should be granted for the following reasons: "1. There is very little settled authority on the issue of determining age. When the legislation is applied in the same manner as the only relevant authority, that the material is legal, and the decision of the Commission should be overturned. 2. There has already been significant public interest in the outcome of this matter. 3. The Commission has accepted the legislation in determining age should be applied in the manner suggested by Detective Sergeant Long and Detective Sergeant Mellor, who despite their clear advocacy for the respondent and other crucial flaws, were accepted as experts. Both state that there have been cases where their methods and evidence have been accepted in criminal matters, with the implication being there have been convictions based on their opinions. In the event that it is found they have been incorrectly applying legislation, there would be significant public interest as it would be very likely there have been wrongful convictions based on their evidence. 4. There is nothing to support the interpretation of the Commission that the legislation regarding "appearance" has changed. It has always been the case that it is rare in cases of child pornography that a victim is known, and the application of the section regarding appearance has not altered."
5. The appellant referred to the decision of the Local Court in Director of Public Prosecutions (NSW) v WT [2013] NSWLC 33 to support the proposition that "there is little settled authority" that deals with the definition of "child abuse material" under the Crimes Act. Thus, in the absence of settled legal authority, the relevant test for proof must be the criminal standard - beyond reasonable doubt and not the civil test as applied by Commissioner Murphy.
6. The appellant further contended it was in the public interest that industrial tribunals and the criminal courts should apply the same tests when determining whether the materials were legal or constitute child abuse material (Crimes Act) or child pornography material (Criminal Code).
7. Commissioner Murphy should have applied the approach adopted by the Local Court in WT. In that case, the Court considered the "child abuse material" must show "a person, who is, appears to be or is implied to be, a child". The Court considered the offending material in WT comprised images of an adult person.
8. The appellant was critical of Commissioner Murphy's reliance on the evidence of Detective Sergeant Long and Detective Sergeant Mellor: (They) were officers that are manipulating evidence to a state which they knew wasn't true, basically align what the two witnesses had said. They deliberately hid evidence of other photos of which there was information showing that they were in fact legal, that was only served, and there are a number of other similar things about the case, there was more than meets the eye to this. Essentially it started off as a search warrant on me for - now, my de facto in 2012 had been charged with domestic violence and later acquitted, so there was a degree of acrimony there, we separated, she makes a complaint in 2013 that I have assaulted her in 2008 and they did a search warrant on my house to look for photos of injuries to me - not injuries to her - to support somehow that search warrant. It is an absolutely ludicrous set of circumstances. While I was there they basically searched for child pornography, which they weren't entitled to do on the warrant, but it showed they wanted to find something, it shows their intentions were disingenuous, it wasn't as black-and-white as first reading may appear. I have - I mean, I've gone into everything in my submission is, it is lengthy. Then thereafter the evidence changes no less than five times for what they purport this so-called child pornography to be.
9. It was the appellant's case that "teen" pornography "with models at the young end of the legal range" was widely available through the internet. He considered much of that material, which he had previously considered to be legal, would now be considered "child abuse material" when viewed against Commissioner Murphy's decision.

Case for the respondent

1. The respondent opposed leave. Shortly stated, the respondent submitted: 1. the appeal does not raise any issue of law that has wider implications for the jurisprudence of the Commission; 2. the appellant's case on appeal was primarily directed towards challenging the Commissioner's findings the photographic images and videos in the appellant's possession amounted to "child abuse material" for the purposes of the Crimes Act or "child pornography" for the purpose of the Criminal Code and has no implications for the jurisprudence of the Commission; 3. the appeal only seeks to challenge findings of fact; 4. whether the various images and videos in the appellant's possession depicted persons that "appeared to be" or "were implied to be" under the age of 16, and in a sexually provocative manner that reasonable persons would regard to be offensive, was quintessentially a fact-based determination; 5. in the course of proceedings below, Commissioner Murphy viewed those photographic images and videos and at paragraphs [112] and [113] he set out his key findings. Those findings were both reasonable and open to him to make on the evidence; 6. moreover, the Commissioner's approach in determining whether or not those materials constituted "child abuse material" and/or "child pornography" was both orthodox and correct; 7. The appellant's contentions that the public interest warrants leave being granted on the grounds that Commissioner Murphy adopted the civil rather than criminal standard of proof that resulted in the images and videos being deemed to constitute "child abuse material" are misconceived; 8. the Commissioner's approach in dealing with the evidence was unremarkable. Commissioner Murphy simply determined whether or not the particular images or videos fell within the definition of "child abuse material" as defined in the Crimes Act; 9. the appellant's contention that the Commissioner was required to be satisfied beyond reasonable doubt that the material constituted child abuse material is misplaced. The criminal standard of proof, of course, would apply to a criminal prosecution arising under s 91FB of the Crimes Act. However, proceedings before the Commission are civil proceedings where the civil standard of proof is applied; 10. the contention that the Commissioner was required to be satisfied beyond reasonable doubt ignores the fact that pursuant to s 181F(2) of the Police Act, it is the appellant who at all times bears the onus of establishing that his removal was harsh, unjust or unreasonable; 11. the appellant's further contention that the public interest warrants leave being granted on the ground that Commissioner Murphy accepted the evidence of the respondent's witnesses in the proceedings, particularly Detective Sergeant Long and Detective Sergeant Mellor, is also misconceived. It was entirely open to Commissioner Murphy to accept their evidence; 12. in any event, it is not apparent that the Commissioner relied on the evidence of the respondent's witnesses in making the relevant factual findings. In that regard, while the Commissioner at [112] relevantly states that he "concurs" with their opinion, he also makes a finding based on his own view of the videos and images under the subheading "Determination"; 13. it was reasonably open to Commissioner Murphy to conclude that the videos and images, that he reviewed, depicted persons that appeared to be, or were implied to be, under the age of 16; 14. those "Determinations" do not disclose any error nor any demonstrably wrong factual findings; 15. to the extent that the appellant contends error is exposed by Commissioner Murphy's consideration of the history concerning s 91FB of the Crimes Act, set out in paragraphs [87]-[92] of the decision below, the respondent submitted that contention was misconceived by the appellant as it is clear on a fair reading of the decision as a whole that Commissioner Murphy simply traced the history of the provision in response to the submissions made by the appellant, that if much of the material seized in 2007 was found to be "legal" and subsequently returned to him, that same material must also be "legal" in 2013; 16. Commissioner Murphy was required to, and did, determine the matter based on the legislation that existed at the time the material was found in the possession of the appellant;
2. The respondent also urged the Commission to reject the appellant's submissions concerning the alleged manipulation and falsification of evidence by its officers.

Consideration

1. The appellant was self-represented and did not have the benefit of legal representation in preparing his appeal. Accordingly, his application for leave to appeal, notice of appeal and submissions, both written and oral were more convoluted than might otherwise be the case if they had been prepared by experienced legal representatives. That said, we have given full and detailed consideration to the appellant's material.
2. Pursuant to s 181F(2) of the Police Act, it is the appellant who, at all times, bears the burden of establishing that his removal from the NSW Police Force was harsh, unreasonable or unjust.
3. Leave to appeal is to be granted if the matter is of such importance that, in the public interest, leave should be granted. The authorities at [13] and [14] make clear that appeals are limited to the correction of demonstrated error. In the case of discretionary decisions the Commission must be satisfied that the tribunal below has failed to properly exercise the discretion applying the principles set out in House v The King [1936] HCA 40.
4. We have considered the Commissioner's findings of fact and determined they were reasonably open to him based on the evidence. On the basis of those findings the exercise of discretion by Commissioner Murphy was also open. We find no error in either respect.
5. We consider Commissioner Murphy has given proper consideration to the requirements established by s181F(3) of the Police Act in determining whether the order to remove the appellant was harsh, unreasonable or unjust.
6. The Full Bench has considered the questions of law said to be raised by the appeal and the appellant's grounds of appeal. We have formed the view that, for the reasons advanced by the respondent, the appeal does not raise any substantial issues of principle or law. Nor does the appeal identify any error in the decision at first instance.
7. It is clear on the material before the Full Bench that Commissioner Murphy considered, as he was obliged to, both the interests of the appellant and the public interest, which is taken to include the interest of maintaining the integrity of the NSWPF and the fact that the Commissioner of Police has made the order pursuant to s181D(1).
8. There is no proper basis on which, in the public interest, leave should be granted, nor is there any other basis that warrants intervention by the Full Bench.

Disposition of the appeal

1. No arguable case for intervention by the Full Bench has been made out by the appellant. The relevant law has been correctly identified, considered and applied. Commissioner Murphy correctly dismissed the appellant's application. No error has been disclosed.

ORDERS

1. The Full Bench makes the following orders: 1. Leave to appeal refused. 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: 23 January 2019