NW v R

Court of Criminal Appeal (NSW)|2014-10-17|Before: Hoeben CJ, McCallum J, Garling J, As Garling J, McClellan CJ, Grove J, Spigelman CJ, Callum J

Judgment 1HOEBEN CJ at CL: I agree with Garling J. 2McCALLUM J: I have had the benefit of reading the judgment of Garling J in draft. I joined in the orders of the Court for reasons which differ in some respects from those expressed by his Honour. 3As Garling J has explained, the definition of the term "child abuse material" is broader than the definition of the term "for pornographic purposes" previously adopted in the statute and the elements of the new offence are different. Subject to the requirement to establish that the matter in question be depicted or described in a way that reasonable persons would regard as being offensive, the current definition would apply to any material depicting the private parts of the child, whereas it was an element of the earlier offence that the material depict the child engaged in sexual activity or placed in a sexual context. 4As to count 2, rather than viewing the matter as one of miscarriage of justice, I consider that the defects in the indictment deprived the District Court of jurisdiction: cf Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 at [158]-[159] per McClellan CJ at CL; Grove J agreeing at [181]. 5Count 2 alleged an offence of using a child under the age of 14 years for the production of child abuse material contrary to s 91G(1)(a) of the Crimes Act 1900. As at the dates alleged in the indictment, that was an offence unknown to the law. This is not a case of an indictment describing a known offence in words similar to the statute so as to be "sufficient in law" in accordance with s11 of the Criminal Procedure Act 1986. Nor is it a case in which this Court can substitute the verdict found by the jury pursuant to s 7(2) of the Criminal Appeal Act 1912, as submitted by the Crown. That section applies where the jury "could on the indictment have found the appellant guilty of some other offence". Those words make plain that the source of the integrity of any special verdict of this Court is the indictment. I do not think the section can properly be applied as a mechanism for curing an indictment which failed to invoke the jurisdiction of the court below: cf Doja at [53] per Spigelman CJ. 6The position is more complex in the case of count 1, which alleged an offence that was known to the law for part but not all of the period alleged. The indictment on that count was also defective, but it is a defect that was amenable to rectification during the trial by application to amend the dates. However, since that did not occur, the result must be that the conviction is quashed. The conviction could only be sustained on the basis that the applicant possessed child abuse material at some point between the commencement of the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (from 17 September 2010) and 31 October 2010, the end-date alleged in the indictment. However, since the defect was not identified until after the jury returned its verdict, the consequence is that the applicant has been deprived of a trial on the issues. Accordingly, I agree with Garling J that there has been a miscarriage of justice in the trial of that count. 7It remains to explain my reasons for joining in orders in the form pronounced on 26 August 2014. The jury's verdict amounted of itself to a conviction on each count: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 301 per Barwick CJ; at 313 per Jacobs J; at 334 per Aickin J (Stephen and Murphy JJ not dealing directly with that point). It follows from the way in which I have analysed the issues in the present case that there could not be a new trial on Count 2, since it alleges an offence unknown to the law. For the same reason, it makes no sense to enter a verdict of acquittal on that count. Whether it would be appropriate or possible to find a bill in respect of the events that gave rise to that charge would be an issue for the Director of Public Prosecutions. In all the circumstances, I agreed with Garling J that the appropriate determination of the appeal was to make an order for a new trial pursuant to s 8 of the Criminal Appeal Act. 8GARLING J: On 12 September 2013, an Indictment was presented against the appellant, to whom I shall refer as "NW", which charged the following two counts, namely: "Between 1 January 2008 and 31 October 2010 at Glossodia and elsewhere in the State of NSW [NW] did possess child abuse material Section 91H(2) Crimes Act (NSW) 1900" and also that: "Between 29 May 2009 and 1 December 2009, at Deane Park in the State of NSW [NW] did use [TW], a child then under the age of 14 years, namely approximately 18 months old, for the production of child abuse material Section 91G(1)(a) Crimes Act (NSW) 1900" 9A jury was empanelled before Letherbarrow SC, DCJ in the District Court to hear those charges. On 24 September 2013, the jury returned a verdict of guilty on both counts. 10The appellant, NW, has lodged an appeal against his conviction on these counts. 11On 26 August 2014, the Court pronounced orders allowing the appeal and ordered that there be a new trial. For the reasons which appear below, I joined in the orders which were pronounced by the Court on that date.

A Legal Issue is Identified 12After the jury returned its verdicts of guilty, the proceedings were adjourned for sentence to Monday 2 December 2013. 13On that day, the Crown Prosecutor who had appeared at the trial, informed the Court that there was a legal difficulty with the convictions, with which the District Court ought deal prior to proceeding to impose any sentence. 14It had become apparent to the Crown Prosecutor that, with respect to Count 1, the terms in which the Indictment was preferred were incorrect because of a number of statutory amendments, which took place during the period covered by the dates in the charge. With respect to Count 2, the prosecutor informed the Court that the offence with which the appellant had been charged did not exist in that form in the time period alleged in the charge. 15The Crown Prosecutor informed the trial Judge that, as he understood the position with respect to these two counts, there would need to be an appeal, and if the problem that he had identified existed, the appeal ought be upheld and there would need to be a new trial. 16However, as the appellant had pleaded guilty to a third count, which was not put before the jury, and there was no difficulty with the correctness of that count, his Honour was urged by the parties to impose sentence with respect to that count. 17On 20 December 2013, with respect to the third count, the District Court imposed a bond pursuant to the provisions of s 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 2 years from 20 December 2013 to 19 December 2015. There is no appeal against this conviction and sentence. After the sentence on Count 3 was imposed, the appellant was released on bail pending further hearing of the proceedings in this Court.

Notice of Appeal 18On 26 March 2013, the appellant filed a Notice of Appeal against conviction. There were eight grounds nominated. They are as follows: "1. Count 1 in the indictment is invalid as the section of the Crimes Act 1900 as charged was not the law during all the period alleged in the indictment. 2. Count 1 in the indictment is invalid as the essential definition identifying an element of the offence was not the law during all the period alleged in the indictment. 3. Count 1 of the indictment is invalid as the elements of the offending behaviour changed twice during the period alleged in the indictment. 4. Count 1 of the indictment is invalid as the maximum penalty for the offence as charged was not the maximum during all the period alleged in the indictment. 5. Count 2 in the indictment is invalid as the section of the Crimes Act 1900 as charged was not the law during all the period alleged in the indictment. 6. Count 2 in the indictment is invalid as the essential definition identifying an element of the offence was not the law during all the period alleged in the indictment. 7. The finding of guilty for Count 1 is unreasonable as the Tendency notice permitted the use of evidence for Count 2 in respect of Count 1. 8. The finding of guilty for Count 2 is unreasonable as the Tendency notice permitted the use of evidence for Count 1 in respect of Count 2." 19In considering these grounds, it is convenient to commence with considering Count 2, and in particular Grounds 5 and 6 which raise the issue of invalidity.

Grounds 5 and 6: Count 2 20It is to be recalled that Count 2 of the Indictment dealt with conduct in the period 29 May 2009 to 1 December 2009. The count was charged as being one of using a child "... for the production of child abuse material". The section identified on the Indictment was s 91G(1)(a) of the Crimes Act. 21On the appeal, the parties agreed that in 2009 and up to 16 September 2010, the terms of s 91G did not include the use of the phrase "... for the production of child abuse material", but rather included the use of the phrase "... for pornographic purposes". 22Section 91G, as it existed in 2009, defined "pornographic purposes" in this way: "91G(3) For the purposes of this section, a child is used by a person for pornographic purposes if: (a) the child is engaged in sexual activity; or (b) the child is placed in a sexual context, or... for the purposes of the production of pornographic material by that person." 23The phrase "child abuse material" became part of the Crimes Act as a consequence of the commencement of the Crimes Amendment (Child Pornography and Abuse Material) Act, on 17 September 2010. Relevantly, the definition of "child pornography", which I have set out above, was repealed and a definition of "child abuse material" was included in s 91FB of the Crimes Act. 24The definition of "child abuse material", it is accepted by both parties, is different from and broader than the definition of "pornographic purpose". It is in the following form: "Section 91 FB 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, or 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." "Private parts" are defined as a person's genital area or anal area and the breasts of a female. 25Section 91 FB(2) provides a range of matters which are to be taken into account in deciding whether a reasonable person would regard material as being offensive. 26It is to be observed that the definition of the phrase "child abuse material" is broader than the definition of the phrase "pornographic purposes" because the more recent definition includes a specific reference to the depiction of the private parts of a person, whereas the earlier material required the depiction to be in a particular context or in a particular pose. 27It was the Crown's principal submission at trial that the offence was complete because the photograph showed the child's private parts. The child depicted in the photos, the subject of the charge was naked and her private parts could be seen. On that basis, the photographs were said to have constituted child abuse material. Being satisfied of that fact alone would not have been sufficient, without more, to meet the definition in the earlier legislation of "pornographic purpose". 28The repealed and current sections are also different in another material respect. The repealed definition of "pornographic purposes" did not require any reconsideration, objectively, of the offensiveness of the material. A jury considering an offence charged under the repealed legislation, as this charge should have been, needed to consider and decide if the content of the photographs in fact depicted sexual activity or the existence of a sexual context, and whether the child was engaged in the sexual activity or placed in the sexual context "... for the purposes of the production of pornographic material". 29Under the current section, which did not exist at the time of the alleged conduct, and in accordance with which the jury were directed, before a guilty verdict can be returned, the jury must be satisfied that depiction of the individual must be in a manner which a reasonable person would find offensive having regard to the matters set out in s 91 FB(2), and that the depiction is of a child and is of a prohibited kind as s 91 FB(1) describes. 30Shortly put, not only is the definition different, but so are the elements of the respective "old" or "new" offences. 31It is simply not possible to equate the two offences, their elements and their content although they are obviously intended to address the same, or substantially the same, conduct. 32Accordingly, it will be seen that the jury was asked to return a verdict in respect of an offence, the terms of which did not exist at the time the conduct, the subject of the charge, was alleged to have taken place. 33In her written submissions on the appeal, the Crown Prosecutor submitted that, pursuant to the provisions of s 7(2) of the Criminal Appeal Act, it was open to this Court to impose a substituted verdict: "... because there is sufficient similarity between the old offence of producing 'child pornography' and the current offence of producing 'child abuse material'" Further, the Crown submitted, it could not be said that there had been a substantial injustice to the appellant. 34In oral submissions, the Crown Prosecutor accepted as is clear from a reading of the statutes that there was a significant difference between the definitions to which I have earlier referred. She also accepted that the newer definition of child abuse material was broader than the one that it replaced. She also accepted that, on the facts put to the jury with respect to Count 2, it was open to the jury to be satisfied that an offence had been committed in reliance upon the broader and more recent definition, which may not have constituted an offence under the earlier definition. 35In summary, the offence charged did not exist for the period charged. An analogous offence did exist, but there were material and significant differences in the definitions and the elements of the offence. The significant difference was in the definition of the conduct which was prohibited by the statute. The principal submission put by the Crown to the jury during the trial did not address the relevant definition of the prohibited conduct, but rather the broader definition, which did not necessarily accord with the offence provisions of the time. 36In those circumstances, it seems clear that the conviction cannot stand because there has been a miscarriage of justice. NW has been convicted of an offence that did not exist in the terms in which he was charged. The difference between the statutory provisions is such that there is no room for the operation of s 7(2) of the Criminal Appeal Act. The conviction on Count 2 ought be quashed. 37In light of this conclusion, it is unnecessary to make a final determination of the question which is not without difficulty, as to whether the indictment (with respect to Count 2) was or was not invalid. It is also unnecessary to determine whether the District Court had jurisdiction to hear the indictment. In light of the conclusion that a miscarriage of justice has occurred, there would be no different result, whether this Court concludes that the indictment was or was not invalid and whether or not the District Court had the jurisdiction to hear this charge.

Grounds 1 to 4: Count 1 38The period of the offence alleged in Count 1 was from 1 January 2008 through to and including 31 October 2010. 39Up until 1 January 2009, namely, in the first 12 months of the period covered by the offence charged, the offence was one against s 91H(3) of the Crimes Act, and not s 91H(2) as the indictment alleged. Section 91H(3) provided that a person who had child pornography in his possession was guilty of an offence. Child pornography was defined by relation to whether it depicted a child (that is, a person under the age of 16) engaged in "... sexual activity, or in a sexual context ...". Any such depiction had to be in a manner which would cause offence to reasonable persons. 40With effect from 1 January 2009, as a consequence of the commencement of the Crimes Amendment (Sexual Offences) Act 2008, s 91H(3) was repealed, and the offence of "possession of child pornography" was merged into s 91H(2). As well, the maximum penalty for the offence increased from 5 years to 10 years. Relevantly, for the purposes of the present charge, the definition of "child pornography" did not change with this amendment. 41Thus, the only change of substance, relevant here, was an increase of the maximum penalty for the offence from 5 years to 10 years. I do not regard the structural change or the numerical change, as being of any substance. 42On 17 September 2010, namely about 6 weeks before the end of the period of time covered by the offence, a new s 91H was substituted upon the commencement of the Crimes Amendment (Child Pornography and Abuse Material) Act. The new s 91H proscribed conduct by reference to "child abuse material" instead of the phrase "child pornography". 43Thus, the terms in which the appellant was charged in Count 1, namely that he possessed "child abuse material" reflected the legislation which existed for only the final 6 weeks of the 34 month period covered by the offence charged. 44The definition of child abuse material for the offence charged in Count 2 is the same as for the offence charged in Count 1. I have set out the definition above at [19]. 45The definition of child pornography is different from "pornographic purpose" which was the relevant definition for the offence in Count 2. It has an objective element, namely whether the depiction would cause offence to a reasonable person. The existence of this element brings the definition closer to child abuse material than the offence in Count 2. 46However, for the purposes of the offence in Count 1, the current definition is broader than the repealed one because it includes the depiction of the private parts of a person, whereas the repealed definition did not. 47The conviction of the appellant in Count 1 may well have occurred because, at an unspecified time, but during the period charged, the jury was satisfied that the appellant had in his possession material which depicted a child's private parts. Such a conviction could only lawfully be sustained if that possession was proved to the jury's satisfaction to have occurred in the final six weeks of the period and not before, 17 September 2010. 48No direction was given to the jury, nor was one sought, which would have led to a verdict for such a short period. 49As well, one of the significant factual issues at the trial with respect to Count 1, was whether, during the period charged in the offence, the appellant was actually in possession of the material found on a particular computer, and whether, if he was in the possession of the computer, the material was on the computer at the time he was in possession of it. This issue arose because the computer upon which the relevant images were found was not always in the exclusive possession of NW. Others had access to it, and from time to time used it. At other times, NW was not living at the premises where the computer was kept. 50A further factual issue at the trial was whether the dates upon which certain photographs were taken, and transferred on to the computer, or else downloaded onto the computer from the internet, was accurately reflected by the date contained on the camera's chip, and also within the computer meta-data. 51The existence of these two factual issues means that it was necessary for the jury to be satisfied beyond reasonable doubt, that at a particular time, or times, NW was in possession of material prohibited by the statute. Because the legislation changed in a substantive way on 17 September 2010, the jury could only have returned a verdict of guilty on Count 1 (as charged) if it was satisfied that these two factual issues occurred within the period after the legislation changed. 52If the jury was only satisfied about NW's possession of the prohibited material, at a time prior to 17 September 2010, then it could not properly have returned a verdict which accorded with the charge as framed. 53The parties to the appeal are agreed that the directions of the trial Judge did not differentiate the periods to reflect the statutory amendments. Nor was he asked to give any such directions. 54NW submitted on the appeal that the terms in which Count 1 was preferred, and the absence of legislation to support the Count for the entirety of the period charged, and the significance of the difference between the definition of "child pornography" and "child abuse material" as demonstrating that his conviction on Count 1 constituted a miscarriage of justice. 55In her written submissions, the Crown Prosecutor argued that, as the offence was correctly stated with respect to the period of 6 weeks, the appellant may have been lawfully convicted if the jury was satisfied that in that period he had been in possession of child abuse material. In a theoretical sense, this submission may be accepted. However, reference to the way in which the trial was in fact conducted, meant that it was not submitted to the jury, nor was the jury directed in terms that reflected this submission. In short, the jury was never directed that it could only return a verdict of guilty if it was satisfied of possession and of material of a particular kind after 17 September 2010. 56Whilst in some circumstances the Crown could fairly submit that having regard to the evidence, a conviction could stand because, if the dates on the indictment were amended, no miscarriage of justice had occurred, I am not persuaded that such a submission should be accepted in this case. 57Having regard to the entirety of the length of time charged in the Count the significant differences in the statutory definitions between "child pornography" and "child abuse material", as I have outlined above, the significant factual issues about the existence of the material on the computer and the appellant's possession of it, and in the absence of any submission to the jury, and more importantly, specific directions from the trial Judge about the effect of the legislation, a miscarriage of justice has occurred. 58Accordingly, I would uphold the appeal with respect to Count 1 and quash the verdict.

Grounds 7 and 8: Counts 1 and 2 59These grounds deal with the correctness of the admission of evidence as tendency evidence with respect to the Counts that were charged. In light of the fact that I am of the view that there has been a miscarriage of justice and that the verdicts ought be quashed, it is unnecessary and inappropriate to engage in what is an entirely hypothetical exercise, as to whether evidence tendered was or was not properly admissible. 60There is no need to determine these grounds.

Result 61In the result, I am satisfied that there has been a miscarriage of justice with respect to the proceedings of the jury on both Counts 1 and 2, and that the verdicts returned by the jury should be quashed. 62The appellant submitted that the Court ought enter verdicts of acquittal with respect to the charges. This is not the appropriate approach in the circumstances of this case. Because the charges that were preferred did not correctly reflect the legislation, entering an acquittal would be inappropriate. 63There was evidence upon which the Crown relied which, depending upon the terms of any charge, and the evidence which may or may not be admitted, may be sufficient to constitute an offence against the legislation as it stood at the relevant time. 64Having regard to all of the facts and circumstances, including the fact that for a period of time the appellant was held in custody with respect to these charges, until the Crown discovered the errors with respect to the indictment, it will be a matter entirely for the Director of Public Prosecutions as to whether any further indictment is to be preferred and, if so, in what terms. 65In all of those circumstances and for those reasons, I joined in the orders pronounced on 26 August 2014, which were as follows: (1)Appeal allowed; (2)Convictions entered on 24 September 2013 in respect of Counts 1 and 2 on the Indictment are quashed; (3)Order that there be a new trial.

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