R v Quick [2004] VSC 270

Supreme Court of Victoria|2004-05-27|Before: Redlich J

Definition child pornography and publication - s.67A Sub-Division 13 Crimes Act 1958 (Victoria) - Meaning of publication at common law and within the meaning of Commonwealth (Classification Publications, Films and Computer Games) Act 1995 - No publication or intent to disseminate - Whether a right of freedom of thought and expression - Whether a risk of harm to children.

By way of pre-trial argument, I have been asked to rule as to whether the material, the subject of each count on the presentment constitutes a "publication" as defined in s.67A of Sub-Division 13 Crimes Act 1958.

The count on the presentment alleging that the accused produced child pornography is laid pursuant to s.68 Crimes Act 1958. It reads:

"68(1) A person who prints or otherwise makes or produces child pornography is guilty of an indictable offence punishable on conviction by level 5 imprisonment (10 years maximum)."

The two counts alleging that the accused "knowingly possessed child pornography" on consecutive days in July 2002 are laid pursuant to s.70 Crimes Act 1958 which is stated in the following terms:

"70(1) A person who knowingly possesses child pornography is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum). (2) It is a defence to a prosecution for an offence against sub-section (1) to prove -

(a) in the case of -

(i) a film; or

(ii) a photograph contained in a publication; or

(iii) a computer game - that at the time of the alleged offence the film, publication or computer game was classified other than RC or X; or

(b) that the film, photograph, publication or computer game possesses artistic merit or is for a genuine medical, legal, scientific or educational purpose; ..."

The circumstances giving rise to these alleged offences is as follows. The accused resided alone at residential premises at 98 Firth Avenue, North Altona. He is a single man, now 59 years of age, who was a primary school teacher for over 20 years teaching mainly Grades 5 and 6. On 1 July 2002 police attended at the accused's home as a consequence of information received from a tradesman who had attended the home some days previously. A large volume of handwritten material by the accused was discovered in which he (the accused) recorded his intimate thoughts and feelings about individual female pupils whom he had taught. He wrote about sexual activity he imagined engaging in with each of those girls, much of the descriptions being of a very explicit sexual nature. On some of the walls of his home and amongst written material found by the police there were photographs of various female pupils whom he had taught or who attended the school at which he was a teacher. The photographs on walls of the house and the photographs contained amongst the written material of the accused were of an innocuous nature. The written material covered a long period during which he had been a teacher.

The Crown submitted that the photographs should be viewed in conjunction with the written material. None of the photographs of pupils at the accused's school were pornographic. The Crown relies upon the photographs as providing the context in which the accused's writings are to be viewed, the photographs and much of the accused's writing revealing that the girls about whom the accused wrote were less than 16 years of age. The accused was charged with possession of the material found at his residence on 1 July 2002.

The police also discovered that the accused had stored a substantial amount of similar material at a storage facility in Braybrook. On 2 July 2002 that material was seized by police and the accused was charged with possession of it. Following the discovery of this material the accused's employment was terminated.

It is admitted that the accused was the author of all of the written texts and that the accused took all of the photographs. In the accused's Records of Interview he stated that he had never indecently assaulted any of his pupils and that he had never shown this material to anyone. This is not disputed by the Crown.

In the course of his interviews the accused told police that in the early 1970's he had started recording his thoughts about girls whom he taught, but that he never wrote about the girls whom he was currently teaching. He said that he thought that what he had been doing was wrong. He had put up photographs of the girls in his bedroom as part of his fantasy. He said that he was embarrassed and ashamed by what he had done. It was not his intention to hurt anyone.

It is unnecessary for the purpose of the present argument to refer to other parts of the accused's Records of Interview. It is sufficient to state that the Crown accepts for the purposes of the present argument that the materials kept by the accused at his home and in safe storage had been produced and were possessed by him solely for his own use. That is to say the Crown does not dispute that he had no intention to show or disseminate such material to anyone else.

The Crown accepts that none of the children photographed, or the subject of the accused's writing, have been harmed or traumatised by what the accused has done. They are not aware of the accused's action. None of the children have been publicly identified. An order was made at the commencement of these proceedings prohibiting the publication of any evidence which would identify the girls concerned.

The accused as a primary school teacher was responsible for his pupils. He was trusted by parents and pupils. He privately entertained vivid and consistent thoughts of sexual activity with his young female pupils, recording those thoughts on a regular basis for decades. Such conduct is a matter of disquiet. It does not reflect contemporary standards. Phillips v Police.[1] When embarking upon the question of statutory interpretation however such reprobation must be put to one side.

The definition of "Child Pornography" and "Publication"

Sub-Division 13 Crimes Act 1958 is concerned with "child pornography". It is defined in s.67A in the following terms:

""Child pornography" means a film, photographic, publication or computer game that describes or depicts a person who is, or looks like, a minor under 16 engaged in sexual activity or depicted in an indecent sexual manner or context."

Both parties have asked me to assume for the purpose of the present ruling that the written material does describe or depict named girls under the age of 16 years engaged in sexual activity or depicted in an indecent sexual manner (hereafter described as pornographic conduct). I heard no argument on this issue. I shall proceed upon that assumption, though I am not to be taken as accepting that the written material which records the accused's fantasies amounts to a description or depiction within the meaning of s.67A.

The works constituting pornographic conduct may be of a child who has participated in such conduct or it may be fictional. The fiction may relate to real or imaginary children. The definition catches both visual and written expressions of thought and imagination. Hence child pornography is defined to include computer games. Child pornography is harmful whether it involves real children in its production or whether it is the product of the imagination. Parliament has proceeded on the indisputable assumption that images or writings of the imagination, depicting or describing child pornography would harm children. Material which does not use children in its creation may equally fuel the market for child pornography and the abuse and degradation of children. No argument was, or could be advanced, that the accused's erotic musings could not fall within the ambit of Sub-Division 13 because they were fantasy.

It being admitted for present purposes that the written material describes persons who were under 16 years of age imagined to be engaged in pornographic conduct - the question which arises for determination is whether such written material constitutes a "publication".

It is convenient to set out further definitions referred to in s.67A:

""classified means" classified under the Commonwealth Act; "Commonwealth Act" means the Classification (Publications Films and Computer Games) Act 1995 of the Commonwealth; "computer game" has the same meaning as in the Commonwealth Act; "film" has the same meaning as in the Commonwealth Act; "photograph" includes a photocopy or other reproduction of a photograph; "publication" has the same meaning as in the Commonwealth Act."

Section 5 Commonwealth (Classification Publications, Films and Computer Games) Act 1995 defines "publication" in these terms:

""publication" means any written or pictorial matter, but does not include:

(a) a film; or

(b) a computer game; or

(c) an advertisement for a publication, a film or a computer game;..."

The Victorian enforcement of classifications statute of 1990

The Classification of Films and Publications Act 1990 [2] was assented to on 19 June 1990 (The Victorian Act 1990). It was introduced as part of a co-operative legislative scheme for censorship in Australia. It adopted the Commonwealth classification of publications and films, regulated their exhibition, sale and possession and created certain offences. The Victorian Act 1990 defined a publication that depicted or described a minor engaged in sexual activity as an objectionable publication. The Victorian Act 1990 made it an offence to possess (s.49) or produce (s.53) an objectionable publication for the purpose of publishing it. The offence carried with it a maximum penalty of two years' imprisonment. It was also an offence for an occupier of any premises to keep an objectionable publication at those premises for the purpose of publishing it (s.50). These were the only substantive offences concerned with possession or production of a publication. They required that an intent to publish accompany the production or possession.

The motivation for the Commonwealth Act and complementary State and Territory enforcement legislation thereafter introduced, was to address Australia's censorship laws which were regarded as being in an unsatisfactory state. As the Federal Attorney-General stated in the Second Reading Speech before the Commonwealth Act was introduced, the Commonwealth Act was based upon the Australian Law Reform Commission's recommendations intended to make censorship laws throughout Australia uniform and more efficient whilst preserving the co-operative nature of the then existing scheme. The Attorney-General said:

"Under the new scheme, it is proposed that State and Territory legislation will adopt, in enforcement laws, the classification decisions made under the Commonwealth Act. It is the State and Territory legislation that will, in effect, govern the submissions of films, publications and computer games to the Classification Board for classification. It will also deal with the consequences, in the respective jurisdictions, of the different classifications given by the Board to films, publications and computer games."[3]

The approach to censorship agreed to by the Commonwealth States and Territories was that material would continue to be classified on the basis of the principles set out at the commencement of the Classification Code in the Commonwealth Act.

The Commonwealth Act was passed in 1995. It initiated a new co-operative legislative scheme providing for uniform censorship rules throughout Australia for classification of publications, films and computer games and for the enforcement of those classifications through States and Territory legislation.[4] Under the Commonwealth Act publications were to be classified as "unrestricted", "category one restricted", "category two restricted" or "refused classification - RC". It introduced a partial compulsory scheme for publications by requiring that publications which may fall within a restricted category should be submitted for classification. Failure to do so is made an offence under the Victorian Classification (Publications, Films and Computer Games) Enforcement Act 1995. The Commonwealth Classification (Publications, Films and Computer Games) Regulations - 1995 No. 401 were promulgated in which the fees for the various categories of classification of a publication are specified.

The Commonwealth Act contemplated that written applications would be made to the Classifications Board for classification. The Director of the Classification Board is given power to require the publisher to submit an application for classification of the publication to the Classification Board.[5]

Section 11 sets out certain matters which were to be taken into account in making a decision on the classification of a publication:

"(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 publication, film or computer game; and (c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and (d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published."

The Commonwealth Act sets out the procedure for classification. Classification decisions were to be made in accordance with a National Classification Code which was set out in a schedule to the Act. The National Classification Code was to give effect as far as possible to the following principles:

"(a) adults should be able to read, hear and see what they want; (b) minors should be protected from material likely to harm or disturb them; (c) everyone should be protected from exposure to unsolicited material that they find offensive; (d) the need to take account of community concerns about:

(i) depictions that condone or incite violence; particularly sexual violence; and

(ii) the portrayal of persons in a demeaning manner."

The Schedule to the Commonwealth Act placed publications which offended against standards of morality, decency and propriety generally accepted by reasonable adults and publications which described or depicted a minor who was or appeared to be under 16 years of age, and whether engaged in sexual activity or not, in a way likely to cause offence to a reasonable adult as a refused classification "RC". This mirrors the pornographic conduct in s.67A Crimes Act 1958.

The Victorian Enforcement of Classification Statute 1995

Complementary legislation was introduced in Victoria through the Classification (Publications Films and Computer Games) (Enforcement)) Act 1995 (The Victorian Act 1995). The purpose of this Act was to give effect to the Commonwealth State and Territory scheme for the classification of publications, films and computer games set out in the Commonwealth Act.

Section 1 of the Victorian Act 1995 provided that it was to give effect to the Commonwealth Classification scheme by:

"(a) providing for the enforcement of classification decisions made under that Act; and (b) prohibiting the publishing of certain publications, films and computer games; and (c) prohibiting certain material on on-line information services."

An "objectionable publication" was defined in s.3 as a publication that (amongst other things):

"(c) describes or depicts a person who is or looks like, a minor under 16 engaging in sexual activity or depicted in an indecent sexual manner or context;"

This definition of objectionable publication is identical with the definition of child pornography which appeared in Part 12 of the Victorian Act 1995 and which was to become the new Sub-Division 13 of the Crimes Act 1958.

The Victorian Act 1995 prohibits the sale or delivery of a publication which has been classified as a "refused classification" under the Commonwealth Code or a publication which is "a submittable publication".[6] A submittable publication is one which is unclassified but which, having regard to the code and the classification guidelines in the Commonwealth Act, should not be sold as an unrestricted publication.[7]

Restrictions are placed on the sale or delivery of restricted publications.[8] Sale or delivery to a minor of a publication classified restricted is prohibited.[9] A person must not leave or display in a public place a "submittable publication", a "refused classification" publication or a publication classified "restricted".[10]

The Victorian Act 1995 prohibits a person from possessing or copying a "submittable publication" or a publication classified "refused classification" with the intention of selling the publication or the copy."[11] The offence carries a maximum term of imprisonment of two years. It is a defence to a prosecution for such an offence to prove that since the offence was alleged to have been committed the publication has been classified unrestricted.[12]

The Victorian Act 1995 makes it an offence for a person to print, make or produce an objectionable publication for the purpose of publishing it. Such an offence carries a maximum term of imprisonment of two years.[13]

Section 32 of the Victorian Act 1995 prohibited, in identical terms to s.53 of the Victorian Act 1990, that a person must not print or otherwise make or produce an objectionable publication for the purpose of publishing it. It was an offence under both the Victorian Act 1990 and 1995 to have possession of an objectionable publication for the purpose of publishing it.[14] In R v Bowden[15] the Court of Appeal held that to "make" pornographic material included reproducing or downloading images.

These prohibitions set out in the complementary Victorian Act 1995 are designed to enforce the Classification Code in the Commonwealth Act. Availability or dissemination to the public is the common feature of the conduct that it seeks to control.

Though the word publication, in its ordinary meaning, refers to something which has been published, Ms Sutherland rightly conceded that the Commonwealth Act also deals with publications that are to be published in the future.[16]

Part 12 Victorian Act 1995 - Sub-Division 13 Crimes Act 1958

The offences contained within the Victorian Act 1995 amongst other things prohibit the dissemination of films, publications, computer games and advertisements which describe or depict children in pornographic conduct. Child Pornography in Part 12 of the same Act, (which became and is referred to as "Sub-Division 13" of the Crimes Act 1958) is defined in the same way as an objectionable film in Part 2 of the Act or an objectionable publication in Part 3 of the Act. A film, publication or computer game that so describes or depicts a person is to be refused classification under the Classification Code in the Commonwealth Act. The offences of possessing child pornography or making or producing child pornography under Sub-Division 13 deal with material that would be refused classification in the event it was submitted for classification under the Commonwealth Act.

It is a defence to a prosecution for knowingly possessing child pornography under s.70, if the film, computer game or publication containing a photograph was classified under the Commonwealth Act other than as refused classification or X.[17] Curiously the defence does not appear to be available in the case of a prosecution concerning publication said to constitute child pornography. This may be an oversight by the Parliamentary draftsperson. In any event it is difficult to conceive of circumstances in which the defence could arise as any material that describes pornographic conduct as defined in s.67A, could not have been given some lesser classification than "RC". The definition for this category of "RC" in the Commonwealth Act and child pornography in Sub-Division 13 is identical.

At the time of the introduction of the Victorian Act 1995 the penalties for making or producing an objectionable publication (s.32) or for possessing such a publication (s.31) were the same as the penalties for offences for making or producing or possessing child pornography under Sub-Division 13. Since the Victorian Act 1995 introduced Sub-Division 13, the penalties for production or possession of child pornography under the Crimes Act have been twice increased.[18]

Mr Horgan who appeared on behalf of the Director of Public Prosecutions submitted the word "publication" means any written or pictorial matter as defined in s.5 of the Commonwealth Act. As the material produced and possessed by the accused is written matter, assumed for present purposes to be dealing with pornographic conduct, the Crown submits that it constitutes child pornography as defined in s.67A of the Crimes Act. Thus counsel for the Director submits that the common law meaning of publication can be of no assistance as the Crimes Act defines its meaning.

The statutory definition in the Crimes Act expressly calls into question the meaning of "publication" in the Commonwealth Act. "Publication" is defined in the Commonwealth Act by its physical characteristics, namely that it is "written or pictorial matter". The defence submits that if the Victorian Parliament had intended that a publication should mean any written or pictorial matter, the definition of publication in s.67A of the Crimes Act would have been so expressed or would have expressly referred to the definition in s.5 of the Commonwealth Act rather than state that it has "the same meaning as in the Commonwealth Act".[19]

In reliance upon the express words in s.67A of the Crimes Act 1958, the defence submits that it is necessary to ascertain the meaning given to a publication in the Commonwealth Act, it not being sufficient that the material meets the physical description of being written or pictorial matter. Ms Sutherland referred to s.7, s.9, s.11, s.13, s.18 and s.23 of the Commonwealth Act to demonstrate that it is concerned only with publications that have been or are intended to or likely to be published. It was contended that the material produced and in the possession of the accused was not material which could be submitted to the Classification Board for classification, as it was not material that had been or was likely to be published.

"Publication" must, it was submitted, be construed in the light of the whole of the Commonwealth Act and having regard to the purpose or object of that legislation. The material which was produced and possessed by the accused was not, it was submitted, a publication within the meaning of the Commonwealth Act. Ms Sutherland submitted that written or pictorial matter must have some "public currency" if it is to be a publication within the meaning of the Commonwealth Act. I understood Ms Sutherland's reference to "public currency" to mean that if the material had not been published nor was it intended or likely to be published, it was not a publication within the meaning of the Act. It was submitted that the word publication should be given its ordinarily understood meaning.

Both parties in the course of their submissions made reference to Second Reading Speeches in relation to the introduction of Sub-Division 13 of the Crimes Act and its subsequent amendment when the penalties for production or possession of child pornography were increased. The Crown sought to rely on such extrinsic evidence notwithstanding its submission that the definition of publication was unambiguous.

The interpretation of the definition of publication in s.67A of the Crimes Act and its meaning in the Commonwealth Act are both in issue. Both the Commonwealth Acts Interpretation Act 1901 [20] and the Victorian Interpretation of Legislation Act 1984 [21] provide that a construction that would promote the purpose of objects underlying the Act is to be preferred to a construction that would not promote that purpose or object. Both the State and Commonwealth Interpretation Acts permit recourse to extrinsic material which would include a Second Reading Speech or any relevant report of a Law Reform Commission.[22]

The Commonwealth Act is based at least in part upon the report of the Australian Law Reform Commission on Films and Literature Censorship Procedure.[23] In introducing the Commonwealth Act, the Federal Attorney-General in his Second Reading Speech stated that the Bill had been prepared following the recommendations made in that report.

It cannot be now doubted that even where the language of the Act is clear and unambiguous recourse to such material is permitted in order to ensure that the meaning of the words used will not give the statute a meaning which was not intended. Mills v Meeking;[24] Hegedis v Carlton and United Breweries & Anor.[25]

Both for the purpose of resolving what I regard as an apparent ambiguity as to the meaning of the term publication in the Victorian Act 1995 and Commonwealth Act and for the purpose of ensuring that the interpretation which I reach is not inconsistent with the purpose or object of such legislation and the mischief it was designed to overcome, I have had recourse to the Second Reading Speeches to which the parties have referred and the report of the Australian Law Reform Commission. Humphries v Poljak;[26] R v Boucher;[27] CIC Insurance Ltd v Bankstown Football Club Ltd;[28] Newcastle City Council v GIO General Insurance.[29]

The Victorian Act 1995 repealed the Victorian Act 1990. The Crown points to the statement made by the Attorney-General during the Second Reading Speech that the Victorian Act 1995 "maintains the prohibition on possession, sale or exhibition of any form of child pornography".[30] As I understood the submission, this was said to mean that Part 12 of the Victorian Act 1995 - Sub-Division 13 of the Crimes Act 1958 maintained the prohibitions on possession or sale that existed in the Victorian Act 1990.

Although there be sufficient ambiguity present to permit reference to be made to the Attorney-General's Second Reading Speech,[31] the speech does not assist me as to the proper construction of the word "publication". It throws no particular light on the object or purpose of either the Commonwealth Act or Victorian Act 1995 which may bear upon the meaning of a "publication". The reference by the Attorney-General to "maintaining the prohibition on possession, sale or exhibition of any form of child pornography" must have been a reference to the provisions in Parts 2 and 3 of the Victorian Act 1995 which created various offences in relation to the exhibition, sale or possession of films and publications which would, by virtue of the Classification Code for refused classification and the statutory definition of objectionable film or publication, include child pornography. It is unlikely that the Attorney-General was referring to Part 12 of the Victorian Act 1995 as it did not deal with "sale" or "exhibition" of child pornography.

In short, the Victorian Act 1995 maintained provisions, although in different language, prohibiting the sale, exhibition, production or possession of certain films and publications as did the Victorian Act 1990. Publishing was retained as a common requirement.

The Australian Law Reform Commission Report (hereafter ALRC)

The defence refers to the report of the ALRC in its written outline of submissions. The co-operative scheme between Commonwealth and States and Territories is as the ALRC recommended one which provides for uniform censorship throughout the country. The Commission intended the classification system to be set out in the Commonwealth Act and that the State laws formulate and enforce rules restricting the dissemination of films, publications and computer games both classified and unclassified. The ALRC recommended that this responsibility should remain that of the States and Territories.

In its Report on Film and Literature Censorship Procedure,[32] the ALRC considered the question whether possession should be prohibited of films and publications that were refused classification. The ALRC said:

"........The Commission indicated in the Discussion Paper that it did not agree that it ought to be an offence to have possession of RC films or RC publications, regardless of their intended use, merely because they are classified RC. Classification is done for the purpose of controlling dissemination. It is not done for the purpose of controlling what a person is able to have in his or her own home. Accordingly an RC classification does not of itself mean a person cannot possess that material. It does mean that he or she cannot disseminate it. If the possession of material is to be banned, it should be to achieve some specific policy objective, not just because it has been declared unsuitable for commercial distribution. Banning the possession of material automatically upon it being classified RC would possibly be inconsistent with the International Convenant on Civil and Political Rights. Article 19 provides exceptions to the right of freedom of expression if they are necessary For the protection of national security or of public order (public ordre) or of public health or morals. Being declared unsuitable for commercial distribution does not automatically place material within any of these exceptions. Accordingly the Commission proposed in the Discussion Paper that mere possession of RC material not be an offence ...... the Commission is not convinced there is a special policy reason to ban the possession of all RC material and recommends that, in the absence of any such reason, mere possession not be an offence." (emphasis mine).[33]

The ALRC adopted the following approach with respect to possession of child pornography.

"5.17 The mere possession of child pornography should however be an offence. This is not because the child pornography has been deemed unstable for commercial distribution and is classified RC. The production of child pornography is likely to involve child sex abuse and is often associated with child sex abuse offences. The prime concern must be the welfare of children. Australia's obligations in this respect have been emphasised by its ratification of the United Nations Convention on The Rights of the Child. Under Article 34 signatory States undertake to protect children from all forms of sexual exploitation and sexual abuse. Particular mention is made of measures to prevent the inducement or coercion of a child to engage in unlawful sexual activity and the exploitative use of children in pornographic performances and materials. The Commission suggested in the Discussion Paper that the best way to safeguard the welfare of children is to eliminate the production of and market for child pornography. It proposed that the possession and production of child pornography, regardless of its intended use, be prohibited."[34]

The ALRC recommended that child pornography which was refused classification should not be possessed by any person whilst other RC classified material could be retained. It proceeds upon the basis that the child pornography in the person's possession has already been published and was material classified RC or which would, if classified, be classified RC. It was concerned with a film or publication which causes the harm to children of the kind described. If the material had not been published to that person, nor was it intended or likely to be disseminated by that person to others, it would not be the subject of classification, the purpose of classification being, as the ALRC states, to control dissemination.

The ALRC proposed a definition of child pornography in the Model Enforcement Provisions in Appendix 2 to its Report. As the ALRC noted, if the child pornography definition in its model provisions was adopted in the State Acts, it would correspond with the criteria for Refused Classification. The model provisions' definition would mirror the proposed definition of an "objectionable publication". This may explain why each of the modes of child pornography in s.67A of the Crimes Act is defined by its meaning in the Commonwealth Act.

The ALRC recommendation and model enforcement provisions are enlightening as to the likely intended ambit of s.68 and s.70 of Sub-Division 13.

This view is reinforced by the approach adopted by the Parliament in New South Wales which introduced amendments to its Crimes Act following the introduction of the Commonwealth Act. By ss.578B and 578C offences were created in which the ALRC Enforcement Model was adopted. Though I doubt that the New South Wales amendments to the New South Wales Crimes Act can be described as forming part of the legislative scheme,[35] it is instructive to note that "film", "publication" and "computer games" were each defined as having the same meaning as in the Commonwealth Act. Child pornography was defined as:

"....a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC on the basis that it describes or depicts..."[36]

The term "publication" has been the subject of much judicial consideration. It has been consistently understood as an expression meaning "making available to the public". Brooke v Mitchell;[37] Boucicault v Chatterton;[38] McFarlane v Hulton;[39] Angelina v Antico;[40] Flinn v James McEwan.[41] Starke J in Sullivan v Hamel-Green[42] considered that a defendant handing a pamphlet to a member of the public constituted a publication within the meaning of s.7A of the Commonwealth Crimes Act. A defamatory matter is the subject of publication when it has been written to some person other than the person of whom it is written. Pullman v Walter Hill & Co Ltd.[43]

The Master of the Rolls in Pullman's case gave the following illustration:

"...if the writer of a letter locks it up in his own desk, and a thief comes and breaks open the desk and takes away the letter and makes its contents known I should say that would not be a publication. ... if he wishes not to publish it, he must, so far as he possibly can, keep it to himself ...".[44]

The expression "public currency" employed by Ms Sutherland may have been derived from the decision of the High Court in Crowe v Graham, Duncan, Rodgers & McKay.[45] In interpreting the term "publication" within the relevant obscene publication legislation Barwick CJ concluded that the use of the word publication required the relevant "obscene production in having to some extent obtained currency with the public before the act of creating it becomes an offence".[46] Kitto J found a publication was established if it was proved that the matter charged was offered or made available to members of the public - that is to say that it was distributed, circulated or offered for sale or otherwise to the public.[47] Windmeyer J in Crowe v Graham & Ors stated that:

"Statutes prohibiting the publication of matter which the law deems nefarious have generally a wide operation; see Dew v Director of Public Prosecutions (1920) 37 TLR 22; Ransom v Burgess (1927) 43 TLR 561."[48]

Lord Wilberforce expressed a similar view in Infabrics Ltd v Jaytex Ltd[49] observing that it requires a great deal of contextual restraint to force the word publication, meaning making available to the public, into some narrower and special meaning.

Upon a literal construction of the meaning of publication in the Commonwealth Act it would be an offence if a person possessed "written material" which he or she had produced for his or her own private sexual titillation with no intention of it ever being shown to anyone else. The consequences of such a construction were considered by McInerney J in Adamson v Helbig[50] which his Honour subsequently referred to in Buckley v Szadurski.[51] In an observation which was obiter his Honour was disposed to the view that the offence of making an obscene article ought to be construed in the context of the surrounding provisions which conveyed the connotation of distribution or exhibition of the article to other persons.[52]

In most of the reported cases dealing with the possession or making of obscene or pornographic material there was evidence of publication of the material and a requirement that the Court have regard to the persons or class of persons to whom the articles was or was intended or likely to be published. Mackay v Gordon & Gotch (Australasia) Ltd;[53] Wavish v Associated Newspapers Ltd;[54] Crowe v Graham, Duncan, Rodgers & McKay.[55] The Commonwealth Act contains such a criterion for the purpose of classification.

It was submitted on behalf of the Crown that the approach to the interpretation of the word publication should be the same as for "film", "photograph" and "computer game". It is unnecessary for me to consider whether any differences are called for in approaching the interpretation of "a publication" and the other mediums of pornography referred to in s.67A.

The learned prosecutor also drew attention to the fact that the definition of photograph does not require recourse to the Commonwealth Act whereas the definition of a publication, film or computer game in s.67A requires the Court to consider the meaning in the Commonwealth Act. In my view nothing turns upon the differences in definition.

The Crown submission that the scope and purpose of the Commonwealth Act, and the generally understood meaning of publication do not bear upon the question of construction, cannot be sustained.

The defence submitted that the object and purpose of Sub-Division 13 of the Crimes Act was to prevent harm to children. It was submitted that a film, computer game or photograph which showed a child actually participating in the proscribed manner and the harm that would flow from the further publishing of such material was the harm that Parliament sought to prevent by the introduction of this legislation. Ms Sutherland submitted that the accused's conduct created no harm in any relevant sense and was not conduct to which the legislation was directed.

It is evident that Parliament in introducing Sub-Division 13 of the Crimes Act was concerned with the important purpose of criminalising the production or possession of child pornography that poses a risk of harm to children. Such legislation is based upon the reasonable apprehension that there are numerous connections between the possession of child pornography and harm to children. Child pornography has the capacity to harm society in different ways. Most obviously it harms children who are procured or compelled to participate. Offences which prohibit the production, sale, exhibition, dissemination or possession of material revealing participation by a child would both directly and indirectly discourage those minded to procure children to participate in such pornography. A further object of such legislation is to reduce the risk of such material influencing or encouraging those who view such material committing crimes against children. As the judgments in R v Sharpe[56] state child pornography fuels fantasies that incite offenders to offend, and it is used for grooming and seducing victims.

Several things may be discerned from counts in the old indictments which concerned obscene publications. An intent to deprave, corrupt and injure morals was always part of such counts but its proof was generally based upon the nature of the publication and the fact that it was published. The common law has always assumed that such publications are subversive of the morals of the public, or a section of the public. Crowe v Graham, Duncan, Rodgers & McKay.[57]

One of the principle objectives of treating possession as a crime is to reduce the market for child pornography and the abuse of children it often involves. R v Land.[58] The statutory purpose of prohibiting possession of child pornography was discussed by Vincent JA in R v Curtain[59] in these terms:

"Parliament clearly introduced the original provision, which carried a maximum penalty of two years' imprisonment, in order to address one aspect of the sexual exploitation of children: the distribution in the community of descriptions; pictures or images of violation. For a number of reasons it was decided to deter those who may be so inclined from collecting, retaining or disseminating such material by rendering its mere possession a criminal offence punishable by imprisonment. The increase in penalty and the categorisation of the offence as indictable were obviously intended to `send a clear message' to use the expression employed by the Attorney-General in his Second Reading Speech introducing the amendment, of the serious view that was taken of the possession of child pornography by this community and to increase the deterrent effect of the law."[60]

In R v Coffey[61] Callaway JA with whom Buchanan and Eames JA agreed said that:

"......child pornography of this kind involves the corruption and violation of children and the possession of such pornography creates a market which encourages the further exploitation of children. The offence created by s 70 of the Crimes Act, which carries a maximum custodial penalty of five years' imprisonment, is intended, amongst other things, to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it."[62]

As the writings of the accused were nothing more than his fantasies which he had recorded and kept private for his own private titillation, such a prosecution was said to put freedom of thought and expression at risk.

The defence relies upon the rule of construction that it is improbable that Parliament intended to abrogate a fundamental freedom in the absence of an expression of its intention with irresistible clearness.

The fundamental importance of freedom of thought and expression enlivens a restrictive approach to the interpretation of statutory provisions which would curtail such freedom. In Coco v R[63] Mason CJ, Brennan, Gaudron and McHugh JJ said:

"The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The Court should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights."[64]

Ms Sutherland drew upon the principle against doubtful penalisation which requires strict construction of penal enactments. A narrow construction of an ambiguous penal statute is to be preferred to a wider one. This approach is based upon the principle that a person should not be put in peril except under clear law. R v Bristol Justices; ex-parte E.[65] Thus the presumption is advanced against the imposition of a statutory restraint of free expression and thought without clear words.[66]

In a written outline of argument the defence submitted that there exists a right to freedom of expression which would be curtailed if the accused's material was to be treated as a publication within the meaning of the Crimes Act. This submission was refined during oral argument, the common law right being described as freedom to record one's thoughts. The Crown response was to deny that any right has ever existed to produce or possess child pornography. Mr Horgan contended that by the accused reducing his thoughts to writing the accused committed the offence of producing child pornography and by retaining such writings he offended the law by possessing it.

The capacity of the law to place a fetter on the freedom of expression was recognised by Blackstone in his commentaries:

"To punish (as the law does at present) any dangerous or offensive writings, which, when published shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty."[67]

A citizen "is free to do anything, subject only to the provisions of the law". Attorney General v Guardian Newspapers Ltd (No 2).[68] So also Brennan J distinguished between absolute freedom and the freedom created expressly or impliedly by the Constitution from the legal regulation. Theophanous v Herald & Weekly Times.[69]

Freedom of expression is highly valued by the common law. Freedom to articulate thoughts lies at the core of a free pluralistic democratic society. Free expression is as stated by Cardozo J in Palko v Connecticut[70] "the matrix, the indispensable condition of nearly every other form of freedom".

Freedom of expression is recognised as a fundamental right in those international conventions which have identified that right.[71] Although these conventions do not form part of Australia's domestic law they are relevant to the rule of statutory construction that statutes are to be interpreted so far as their language permits so as to be consistent with the comity of nations and with established rules of international law. Jumbunna Coal Mine NL v Victorian Coal Miner's Association;[72] R v Home Department State Secretary: Ex-parte Brind;[73] R v Bowden;[74] Pearce and Geddes Statutory Interpretation in Australia.[75]

The Full Court of the Federal Court in Michael Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature[76] considered an asserted right of freedom of expression in the course of an appeal from the Classification Review Board. The Board had refused to classify an edition of "Rabelais", a student newspaper containing an article called "The Art of Shoplifting" on the ground that the article incited or instructed in matters of crime or violence contrary to the Classification Code under the Commonwealth Act. On appeal it was argued that the article fell within the protection of the implied constitutional freedom for speech concerning political or government matters.

Legislative power is restricted by virtue of the constitutional implication discussed in Lange v Australian Broadcasting Corporation and other recent cases.[77] The recognised implied freedom of communication does not confer private rights. There are no corresponding rights in Australian Law to the guarantees of freedom of speech under the Canadian Charter, the Constitution of the United States and the New Zealand Bill of Rights.[78]

The liberty to freely communicate is confined where that which is published contains criminal material. A law which prohibits criminal conduct will not readily be seen to infringe the implied freedom of communication.[79] Freedom of communication which is protected by the Constitution will not invalidate a law "enacted to satisfy some legitimate end where it is reasonably appropriate and adapted to achieving that legitimate object".[80] Sundberg J in Brown's case concluded that the classification provisions of the Commonwealth Act which proscribe conduct which incites or encourages the commission of crime, satisfied the legitimate end of protecting the community from conduct likely to be harmful and its relevant provisions were reasonably appropriate and adapted to achieving that protection.

In the present case, it was not submitted, nor could it be, that the material produced by the accused was protected by the constitutional freedom which arises where the subject has been communicated and concerns "political or government matters". Freedom of speech or communication is not in issue. Rather there is an assertion and counter assertion as to the existence of a right to freedom of thought and expression. No authority was cited in support of either parties position. French J stated in Brown's case that the common law does not accord freedom of expression the status of a right.[81] His Honour referred to a passage from the judgment of Brennan J in Nationwide News Pty Ltd v Wills that "at common law there is no right to free discussion of government. Freedoms or immunities recognised by the common law are, generally speaking, liable to impairment or abrogation by legislation." [82] French J concluded:

"At best it can be said that, absent constitutional implication, the common law and conservative rules of construction provide a zone of partial protection. The over arching principle remains in effect that `where liberty ends the law begins and where the law ends liberty begins'. Kocourek - `The Alphabet of Legal Relations' in Readings in Jurisprudence ed Jerome Hall. (Indianapolis 1938) 509 at 510."[83] I assume, without need to make a determination, that the freedom to record thoughts should be approached in a similar manner.

In R v Sharpe[84] an accused charged with possession of child pornography contrary to the Canadian Criminal Code challenged the constitutionality of the offence of possession on the basis that it violated the guarantee of freedom of expression contained in the Canadian Charter of Rights and Freedoms. The law was held to be constitutional by the Canadian Supreme Court but the majority held that the Charter of Rights required the recognition of exceptions to the law where its intrusion into free expression and privacy was most pronounced and its benefits most attenuated. The relevant exception recognised by the majority was designed to protect the position of expressive material created through the efforts of a single person and held by that person alone exclusively for his or her own personal use. McLachlin CJ who delivered the judgment of the majority said:

"The restriction imposed by s 163.1(4) regulates expression where it borders on thought. Indeed, it is a fine line that separates a state attempt to control the private position of self-created expressive materials from a state attempt to control thought or opinion. The distinction between thought and expression can be unclear. We talk of "thinking aloud" because that is often what we do: in many cases, our thoughts become choate only through their expression. To ban the possession of our own private musings thus falls perilously close to criminalising the mere articulation of thought."[85]

It was not suggested before the Canadian Supreme Court that the prevention of harm to children could never justify limiting free expression. Where the two values stood in stark opposition the prevention of harm to children would prevail. The submission to the Canadian Supreme Court which was also adopted in argument before me was that the limitation which such a law imposed on free expression must fail because the law catches material that poses no risk of harm to children. This led the Chief Justice to the following observations:

"......If the law is drafted in a way that unnecessarily catches material that has little or nothing to do with the prevention of harm to children, then the justification for overriding freedom of expression is absent. Section 163.1(4), as a criminal offence, carries the heavy consequences of prosecution, conviction and loss of liberty, and must therefore be carefully tailored as a `measured and appropriate response' to the harms it addresses: Keegstra, supra at p. 771. At the same time, legislative drafting is a difficult art and Parliament cannot be held to a standard of perfection: R v Edwards Books & Art Ltd [1986] 2 S.C.R. 713; Irwin Toy, supra, R v Chaulk, [1990] 3 S.C.R. 1303. It may be difficult to draw a law capable of catching the bulk of pornographic material that puts children at risk, without also catching some types of material that are unrelated to harm to children. This is what McEachern C.J.B.C. had in mind when he suggested that it is difficult to see how Parliament could have drafted the law in a way that eliminated the possibility of `unintended consequences' (para 292)."[86]

Written materials and visual representations created and held by an accused alone exclusively for their personal use were recognised by the majority in Sharpe's case as less closely tied to harm to children than the vast majority of material caught by the law. Children are not exploited by its making. The majority also recognised that such material could conceivably cause harm to children.

".......Self-created private expressive materials could conceivably abet negative attitudinal changes in the creator, although since the creation came from him or her in the first place one would not expect the effect to be significant. A self-created private depiction or writing in the possession of the maker could fall into the hands of someone who might use it in a way that harms children. ......... So it cannot be denied that permitting the author of such materials to keep them in his or her custody poses some risk. However, the risk is small, incidental and more tenuous than that associated with the vast majority of material targeted by s 163.1(4)........"[87]

The minority judgment by L'Heureux-Dubé, Gonthier and Bastarache JJ identified a further indirect harmful consequence existing independently of any risk of dissemination and flowing from the existence of the pornographic representations which on their own violate the dignity and equality rights of children.[88] This does not appear to fall within the objectives of the Commonwealth Act or Sub-Division 13.

In support of the contention that such laws should not be construed so as to unnecessarily intrude upon the individual's freedom of thought and expression Ms Sutherland placed reliance on the further passage from the majority judgment in Sharpe:

"I turn first to consider the laws application to self-created works of the imagination, written or visual, intended solely for private use by the creator. The intensely private, expressive nature of these materials deeply implicates s.2(b) freedoms, engaging the values of self-fulfilment and self-actualisation and engaging the inherent dignity of the individual: Ford, supra at p. 765; see also my comments in Keegstra, supra at p. 804. Personal journals and writings, drawings and other forms of visual expression may well be of importance to self-fulfilment. Indeed, for young people grappling with issues of sexual identity and self-awareness, private expression of a sexual nature may be crucial to personal growth and sexual maturation. The fact that many might not favour such forms of expression does not lessen the need to insist on strict justification for their prohibition. As stated in Irwin Toy, supra, at p. 976, `the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment'."[89]

The exception grafted onto the law by the majority in Sharpe reducing its scope of operation applied to the offence of possession and making child pornography in circumstances where there was no intent to publish associated with its making or possession.

The accused's writings and his possession of it is not, in my opinion, conduct proscribed by Sub-Division 13. It does not constitute a publication within the meaning of the Commonwealth Act.

The object of the Commonwealth Act is to control dissemination. The purpose of the Victorian Act 1995 is to enforce classifications which give effect to the principles in the National Classification Code. The classification scheme is concerned with publications which have either been published or which are intended or are likely to be published or both.

Sub-Division 13 prohibits the procurement of children for the purpose of making child pornography. It makes criminal the conduct of those who encourage children to participate in the making of child pornography or who record them doing so, or who disseminate or possess material which has recorded children doing so.

Where the pornographic conduct is fictional, Sub-Division 13 also applies and complements the Commonwealth Act. A person who disseminates, or retains material which has been disseminated or possesses material for the purpose of dissemination which describes or depicts children who are imagined as participating in pornographic conduct also falls within the purview of the Sub-Division 13.

The accused's conduct does not fall within any of these objectives. No child was abused or exploited. No person was privy to the production or existence of this material before it was seized by the police. It was not published nor was there any intention that it be so.

Written or pictorial matter comprising expressions of thought which are brought into existence privately by an individual for their exclusive private use and which are not intended or likely to be disseminated to others, does not constitute a publication. To so confine the meaning will not deny Sub-Division 13 the capacity to do all of the work the legislature intended. Material which depicts or describes a child who has participated in the pornographic conduct, or material which has been or is intended to be published which depicts or describes a child so participating, whether it be fact or fiction, is a publication of matter under Sub-Division 13.

To construe the accused's private writings as a publication would fall outside Parliament's purpose, producing unintended consequences. It would involve a curtailment of the freedom of each individual to record their thoughts. The keeping of a diary or other record of a person's fantasies or the writings of a teenage child concerning themselves, where they describe or depict pornographic conduct would be criminalised. Neither the extrinsic evidence or the language employed by the legislature suggests that such an intrusion into the affairs of its citizens was intended. Clear and unmistakable language is required before I should impute an intention to the legislature to interfere with the citizen's freedom to privately record his or her thoughts for their private use.

I certify that this and the -1 preceding pages are a true copy of the reasons for Ruling of Justice Redlich of the Supreme Court of Victoria delivered on 27 May 2004.

[4] Section 3. In a note annexed to s.3 there appears the following: "provisions dealing with the consequences of not having material classified and the enforcement of classification decisions are to be found in complementary laws of the States and Territories."

[7] Section 3 - Definition "submittable publication".

[14] Compare s.49 - Act No. 46/1990 and s.31 - Act No. 90/1995.

[16] For example see s.23 - "submittable publications".

[19] As to the consequences of an express reference to a definition - See Producers Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) [1944] HCA 39; (1944) 69 CLR 523.

[30] Hansard 16 November 1995 at p. 1290.

[31] R v O'Brien (1991) 57 A Crim R 80 at 99; Transport Accident Commission v Clarke [1994] VicRp 7; [1994] 1 VR 117 at 122.

[35] Compare Abdi v Release on Licence Board (1987) 10 NSWLR 294 at 295.

[36] Crimes Act 1900 (NSW) s.578B (1).

[37] [1840] EngR 32; (1840) 6 M & W 473 per Parke B at 476-477.

[38] (1876) 5 Ch D 267 per Brett LJ at 281.

[39] [1899] 1 Ch 884 per Cozens-Hardy J at 899.

[43] [1891] 1 QB 524 per Lord Esher MR at 527.

[50] Unreported 17 July 1968, Supreme Court of Victoria.

[53] [1959] VicRp 60; [1959] VR 420 per Sholl J at 426.

[55] [1968] HCA 6; (1968) ALR 524 per Windeyer J at 538.

[56] [2001] 1 S.C.R. 45; [2001] SCCC 2.

[65] [1998] 3 All ER 798 per Simon Brown LJ at 804.

[66] Bennison, F.A.R. (2002), _Statutory interpretation: a code (_4th Ed.), London, Butterworths, at ss. 277 and 282.

[67] Blackstone, Sir William (1868) Commentaries on the laws of England, Oxford Clarendon Press, Volume 4 at 151-152.

[68] [1990] AC 109 per Lord Goff at 283.

[71] The Universal Declaration of Human Rights - 10 December 1948 - Article 19; The International Convenant on Civil and Political Rights ratified by Australia in 1980 - Article 19; European Convention on Human Rights - Article 10; See Jones, Melinda (2000) `Free Speech and the Village Idiot' in 23(1_) University of New South Wales Law Journal_ 274 at 278.

[75] (1996) (4th Ed.), London, Butterworths at 137 and the cases therein referred to.

[77] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96; Theophanous v Herald & Weekly Times Ltd (1994) Footnote 68; Stephens v West Australian Newspapers Ltd 0No.1) [1994] HCA 45; (1994) 182 CLR 211; Australian Capital Television Pty Ltd v Commonwealth (No. 2) [1992] HCA 45; (1992) 177 CLR 106; Langer v Australian Electoral Commission (1996) 59 FCR 450; Muldowney v South Australia [1996] HCA 52; (1996) 186 CLR 352; Kruger v Commonwealth of Australia [1997] HCA 27; (1997) 146 ALR 126; Levy v State of Victoria (1997) 189 CLR 570; (1997) 146 ALR 248.

[78] Moonen v Film and Literature Board [1999] NZCA 329; [2000] 2 NZLR 9.

[79] Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1 per Dean and Toohey JJ at 77.

[80] Lange v Australian Broadcasting Corporation Footnote 77 at 108.

(Publications Films and Computer Games) Act 1995

At a glance

Court

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Before

Source

Judgment (185 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (19)