R v Fagundez [2023] NSWDC 526 | Case summary

What has the Crown proved as a matter of fact

In my judgment the evidence tendered by the Crown taken at its highest - and none of it has been the subject of any challenge by the Accused - in relation to images 4 to 20 is that at some point in time, someone downloaded those images onto the "photo gallery" application on the Accused's mobile phone. The images are child abuse material, and the mobile phone was in the possession of the Accused as at 29 January 2020.
With the exception of image 19, about which there is debate and with which I will deal separately, by the time the phone was seized, none of the images were being stored on the "photo gallery" of the phone but they were stored in "another location on the phone that is not intended to be accessed by a user and a user would likely be unaware of the presence of the images saved on the thumbnail".
This means that, unless a person was a forensic expert like Ms McIntyre or had an unusually intimate knowledge of the operation of mobile devices and possessed the necessary software, not only would that person not know that the images were in some way associated with the mobile phone, they would not be able to access them at all.
The Crown says that those facts prove the charges. The Accused says there is a fundamental flaw in the Crown's case in that the Crown has not proved the requisite mental element of the crime. This raises a question of law, the resolution of which will be determinative of this application.
Before dealing with that question of law, I need to deal with the question of fact concerning image 19 about which there is a contest.
As I have explained, Ms McIntyre in her first report in relation to all of the images 4 to 20 concluded that at the time the phone was seized, the images were "no longer stored in the photo gallery, they were stored in a location that is not intended to be accessed by a user and a user would likely be unaware of images saved as thumbnail".
In para 11 of her second report (exhibit G) with reference to image 19, Ms McIntyre says that the image was able to be located via the "RAR" application and then viewed via multiple applications including Google Photos.
The submission for the Crown is that in relation to photo 19, Ms McIntyre has changed her opinion from that set out in para 22 of her first report and that in relation to photo 19, I should conclude that photo 19 was not stored in the location described in her first report and therefore, taking the Crown's case at its highest, was not stored in a location that was not accessible to a user or a location that a user would likely be unaware of the presence of the image.
When reading both of Ms McIntyre's reports together, her evidence is not at all clear. At no point in her second report does she expressly resile from what was said in her first report. The Crown is asking me to infer that important change of opinion. I don't think that inference is available. I read her second report to be an opinion that the images contained on the RAR application fall into the same category that she describes in her first report. That is, they are in another location on the phone not intended to be accessed by a user and a user would likely be unaware of their presence.
I think I can proceed on a factual basis taking the Crown case at its highest that that image 19 like all the other images was not something that could be accessed by the Accused by the time the phone was seized. I shall return to the relevance of this observation towards the end of these reasons.

The question of law

At the heart of this application is the proper construction of s 91H of the Crimes Act and in particular, what if any, mental element is required to be proved in order to secure a conviction for breach of that provision.
Section 91H is in the following terms: 91H Production, dissemination or possession of child abuse material (1) In this section - "disseminate" child abuse material, includes - (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. "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)). "produce" child abuse material includes - (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty - imprisonment for 10 years. (3) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.
It was by an amendment to the legislation in 2010 that the definition of "possess" was added to the earlier iteration of s 91H so as to incorporate by reference the meaning in s 308F of the Crimes Act.
Section 308F of the Crimes Act is in the following terms: 308F Possession of data with intent to commit serious computer offence (1) A person who is in possession or control of data - (a) with the intention of committing a serious computer offence, or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person), is guilty of an offence. Maximum penalty - Imprisonment for 3 years. (2) For the purposes of this section, "possession or control of data" includes - (a) possession of a computer or data storage device holding or containing the data or of a document in which the data is recorded, and (b) control of data held in a computer that is in the possession of another person (whether the computer is in this jurisdiction or outside this jurisdiction). (3) A person may be found guilty of an offence against this section even if committing the serious computer offence concerned is impossible. (4) It is not an offence to attempt to commit an offence against this section.
The Crown's simple submission is that because of the incorporation by reference of s 308F(2)(a) into s 91H(2) of the Crimes Act, the parliament of New South Wales evinced a clear intention that the mental element of the offence created by s 91H(2) is only that the Accused intended to possess the computer or data storage device holding or containing the data and not any intention to possess child abuse material.
The Crown relies on the well-known passage from He Kaw Teh v The Queen [1985] HCA 43 at 529 to 530; 158 CLR 523 to the effect that it is always open to parliament to create "strict liability" crimes which have no mental element of criminality but that to do so requires clear words. The Crown contends I should find that in light of the definition of possession contained in s 308F that I should hold that all that is needed for the mental element of possession for the purpose of s 91HA is an intention to possess the relevant device, in this case the mobile phone.
The construction of s 91H was considered by the Court of Criminal Appeal in Clark v R [2008] 188 A Crim R 1 from para [225] to [248], prior to the amendment in 2010 that introduced s 308F(2), but at a time when, for all intents and purposes, the provisions were otherwise the same.
In particular, the specific defences created by s 91HA existed, albeit the numbering was different.
In the case, Barr J, with whom Bell JA and Buddin J agreed, analysed s 98HA as it stood at the time in the context of s 7 of the Crimes Act and against the principles stated by the High Court in He Kaw Tey, and emphatically concluded that in circumstances such as this, where there was nothing further that a person in possession of the mobile device could have done to get rid of the data [230], so that the Accused could not retrieve or gain access to an image, it was not appropriate to say that the person who could not retrieve the image was in possession of it [233].
To put it another way, the Court held that there was no discernible intention in the legislation to criminalise unknowing possession of child abuse material so that the crime is not one of strict liability.
Unless there is a distinguishing feature between the present case and that of Clark, it is clear that the ratio in Clark is contrary to the Crown's submission, that I must apply the law as explained in Clark and therefore would be bound to conclude that the Accused has no case to answer.
The Crown contends that there is such a distinguishing feature. That is said to be the amendment to the legislation in 2010 which occurred after the decision in Clark incorporating by reference the definition of "possession" in s 308F into s 91H(2).
The question of construction becomes, does that amendment indicate in the clear terms required by law parliament's intention to effectively convert the possession of child abuse material into a strict liability offence with no mental element as to knowledge of the criminal act being required?
I have been taken to the Second Reading Speech by which the amendments that included the incorporation of s 308 into s 91H were made, relevantly the Minister assisting the Attorney General said: "An existing defence relating to the state of mind of the defendant is retained so that it will be a defence in proceeds for the offence of producing, disseminating, or possessing child abuse material that the defendant did not know and could not reasonably be expected to have known that he or she produced disseminated or possessed child abuse material".
The balance of the Second Reading Speech explains that the purpose of the amendment was mostly to align the State legislation with Federal legislation. There is no suggestion that the intention of the amendment was to deal with the decision of the Court of Appeal in Clark, and to radically alter the law as it then stood. Rather, the introduction of s 308 was to deal with the difficult concept, that being the idea of someone physically possessing "Data".
Before coming to what I think is an important decision of Bellew J in the Supreme Court of New South Wales in 2017, it is my opinion that s 308 was not incorporated into s 91H so as to take away the mental element of the offences had been identified by the Court of Criminal Appeal in Clark. Rather, I think the definition of s 308 was incorporated so as to facilitate proof of the physical element which will always be necessary in order to prove that a person has in their possession (or control) some data. Data is not something that can be kept other than in some form of computer device, CD stick, or the like, so it will always be a difficult concept to prove physical possession of something as artificial as electronic data.
In my judgment, the incorporation of s 308 was intended to do no more than facilitate the proof of physical possession of the data. It says nothing about whether or not there is a mental element requirement over and above physical possession as had been held at the time by the Court of Criminal Appeal in Clark.
Counsel for the Crown has placed considerable emphasis on the express defences provided by s 91HA. But as I have said, those express defences were all in existence at the time Clark was decided, and similar submissions were made and rejected by the Court of Criminal Appeal in that case [283].
For those reasons, if the matter has not been the subject of authority since the amendments, I would have determined the question adversely to the Crown.
However, this same question has been considered at least once since the amendment which incorporated s 308 occurred. In the case of DPP v Hughes [2017] NSWSC 492, a decision of Bellew J.
I do not think it is unfair to say that the decision is a little bit hard to follow. Before me both the Crown and the Accused contend it supports them. There was considerable debate before me as to the actual holding in that case. That confusion is resolved, at least for me, by understanding how the magistrate from whom the appeal to Bellew J lay had decided the matter.
The case was an appeal from a decision of a magistrate where on a charge of producing, possessing, and disseminating child abuse material contrary to s 91H(2) the magistrate had concluded that it was necessary for the Crown to prove what was described by the magistrate as "Malice aforethought", or "Malicious intent", or "Criminal intent". As Bellew J observed, the use of those tags becomes a distraction and a source of ambiguity. The magistrate appears to have used the phrases interchangeably but in a way that was extremely confusing.
Bellew J sets out part of the magistrate's reasons at paras [12] to [14] of his judgment, as well as the findings of fact made by the magistrate. I set out those portions of Bellew J's reasons with the emphasis added by Bellew J: "[12] At the commencement of his reasons, his Honour set out the charges against the defendant and made reference to s. 91H of the Act. He then summarised the procedural history of the matter in the Local Court before commencing (at T2 L34) to make reference to the evidence. In the course of doing so, his Honour made a number of factual findings, including that: (i) there was "absolutely no doubt whatsoever" that the defendant took a photograph of EH who, at the time, was 6 years of age (T3 L11-16); (ii) there was no dispute that the defendant showed KH the photograph that he had taken, which depicted EH in a state of "complete undress, except for an orange towel…" (T3 L18-26); (iii) it was not in dispute that the photograph was retained on the defendant's phone camera (T3 L28); (iv) it was not in dispute that the photograph was transmitted to a laptop computer owned by the defendant (T3 L28-30); and (v) it was not in dispute that the defendant showed the photograph, at least to KH and possibly to Mr McCarthy, but that Mr McCarthy did not take much notice of it (T3 L30-32). [13] His Honour noted (commencing at T3 L34) that the defendant's solicitor had effectively conceded that the Crown had "clearly made out a prima facie case". He then said (commencing at T3 L36): "What of course the Crown has not been able to do is prove any criminal intent underlying the taking of the photograph, possession of the photograph and the showing of the photograph. Whilst there might be some degree of suspicion attached to it, recognised by Mr Hughes himself during the record of interview, possibly after the showing at the barbecue and being asked to delete it and certainly by the time the police became involved that some suspicion could be attached to circumstances in which the photograph was taken, retained and shown. Mr Hughes clearly throughout the record of interview indicated that he had no underlying criminal intent in relation to the matter (my emphasis). [14] Importantly, after making reference to other aspects of the evidence, his Honour said (commencing at T4 L48): These three charges are charges where the Crown would have to prove criminal intent that he had malice aforethought, to use the old definition which might actually still be there - used to be there, maliciously used to be, we used to have a separate definition in the Crimes Act one of the ways in which maliciousness or intent was proven was malice aforethought. I do not have an associate to go and get an ancient textbook so I can look it up now. I do not have access to a research assistant to go and research these things now so again one is relying on one's memory in relation to that but it is certainly now not in the Crimes Act and I do not have the time or the intellectual wit to be able to find it at this point in time but nevertheless there is absolutely no evidence before the Court that the Court could be confident and rely upon at the very least that Mr Hughes at any time during any of these three allegations had any criminal intent underlying his actions. In those circumstances I do not think the Court needs to turn to a consideration as to whether the material would be regarded in all the circumstances offensive and applying some of the matters to be taken into account in 91FB(2) because the Crown have not been able to prove beyond a reasonable doubt that there was any malicious intent underlying the actions of Mr Hughes. Inadvisable, probably. Ten years ago, 15 years ago stock standard. Should have been deleted, obviously in retrospect. Ten to 15 years ago stock standard although it would not have been in the same circumstances, not on a camera phone or a phone with a camera in it but developed on a film. The standard of morality, decency and propriety moved according to the times but the Court, as I said, does not need to go that far because the Crown cannot prove beyond a reasonable doubt the underlying criminal intent and sequences one to three inclusive. However, Mr Hughes, as a warning it might be an idea not to take any photos of anything at all at any time because you can see the difficulty that innocent actions can get you into. Thanks for coming.""
To my mind, on those findings of fact, there was absolutely no doubt that the Accused in that case was not just in possession of child abuse material in the sense that he was in possession of a device with the material on it, which was readily accessible, but moreover obviously knew he was in possession of that material, i.e he knew that he had the child abuse material. When the magistrate spoke of "Malice aforethought", or "Criminal intent", or "Malicious intent", he seems to have been looking for a subjective understanding by the Accused that what he was doing was if not legally but perhaps morally wrong, something over and above knowledge that on his device was accessible child abuse material. It was at that level that the magistrate determined as a matter of law that the Crown's case failed because it had failed to prove what the magistrate considered to be the requisite mental element. In other words, the magistrate decided that it was not enough that the Accused knew that he had the actual material in his possession and was able to access it. He concluded that he needed to know something more than that to the effect that it was wrong.
Relevantly, Bellew J when considering the matter recorded at [70] that counsel for the DPP before him submitted that for the purpose of the offence of possessing child abuse material created by s 91H, it was necessary for the prosecution to prove on the part of the defendant that such material was in his or her custody with particular reference to what was said at paragraphs [226] to [227] of Clark. So it is readily apparent that before his Honour, the submission for the Crown who was the appellant, was that Clark was correctly decided, and that it stood as good law notwithstanding the amendment to the legislation which had taken place in 2010. The submission however was that the magistrate nonetheless was wrong to conclude that there was a missing mental element. Nothing in Bellew J's reasons in any way suggests that he thought Clark was not still good authority.
The question then becomes, how can one square away those two concepts? That being the decision of Clark confirming that a mental element of knowledge of criminality was essential on the one hand, and the magistrate being wrong on the other hand when he determined that the Crown had not made out the requisite mental element.
The answer to that question is to be found by identifying that what the magistrate posited as a mental element was something far and above that required by Clark.
Bellew J decided the issue before him at paras [80] to [88]. In so doing, in my view, he clearly endorsed and applied what the Court of Criminal Appeal said in Clark. That is a requisite element was to be found in the provisions of s 91H. His Honour concluded that the magistrate had overstated that requirement and therefore was in error. It is also clear that his Honour saw no relevant difference as to the mental element between production, dissemination or possession for the purpose of his analysis.
The Crown in this case has submitted, in the event I conclude that Hughes is against it,p that I should not follow Bellew J in Hughes because his Honour does not appear to have been taken to s 308 nor considered it.
For reasons I have already explained, I do not think that the amendment that introduced s 308 changes the import of the crime so as to mean that Clark no longer represents the law. But even if I am wrong in that regard, and even if Bellew J was also wrong in not determining that Clark was no longer the law because of the amendment, I am clearly bound by Bellew J's decision to the effect that Clark remains good law post the 2010 amendments, and therefore duty bound to follow and apply it.

R v Fagundez

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Judgment (12 paragraphs)

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