The jury be directed to acquit the accused on count 11 on the indictment.

CRIMINAL LAW - Trial - jury trial - using electronic means to send or make available pornographic material to a young person - statutory interpretation - meaning of 'electronic means' - email - internet chatroom - Facebook messenger - direction to the jury to acquit

Crimes Act 1900 (ACT), ss 66

Crimes Legislation Amendment Act 2001 (ACT), s 43

H R Products Pty Ltd v Collector of Customs [1990] FCA 152; (1990) 20 ALD 340

R v Tamawiwy (No 2) [2015] ACTSC 302

Sherritt Gordon Mines Ltd v Commissioner of Taxation [1977] VicRp 42; [1977] VR 342

Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233

Emeritus Professor D C Pearce and Adjunct Professor R S Geddes point out in Statutory Interpretation in Australia (LexisNexis Butterworths: Sydney, 2014) 8th ed

Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd: Sydney, 2009) 5th ed p 543,

Legal Aid ACT (Defendant)

1. In 2014, the accused, Billy Bartolomeus Tamawiwy, engaged in communication through the internet system known as Facebook with a number of young males.

2. It appears his intent was to encourage the young males to engage with him in sexual activity. He was successful, and one of the young males with whom he made contact, SJ, did engage in sexual activity with Mr Tamawiwy, including penile/anal intercourse and fellatio.

3. Mr Tamawiwy recorded some of this activity on his mobile phone and later sent video clips of it to various people, including SJ's brother, who was fourteen years old at the time.

4. As explained in R v Tamawiwy (No 2) [2015] ACTSC 302, Mr Tamawiwy was later arrested and charged with a number of offences.

5. In relation to the sending of the video clips to SJ's brother, MJ, Mr Tamawiwy was charged with an offence under s 66(2) of the Crimes Act 1900 (ACT), namely using electronic means to send or make available pornographic material to a young person. As an alternative, he was charged with an offence under s 474.17 of the Criminal Code Act 1995 (Cth), namely of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

6. The trial of the various charges against Mr Tamawiwy commenced on 21 September 2015. At the end of the prosecution case, however, Mr J Lawton, counsel for Mr Tamawiwy, applied for an acquittal on the count under s 66 of the Crimes Act.

7. After some consideration, I accepted that the count on the indictment could not be made out.

8. On 24 September 2015, I addressed the jury as follows:

Ladies and gentlemen of the jury, I have had my attention drawn to the fact that there is no evidence that Facebook is email or that it is an internet chat room. The highest the evidence comes is that it may be like or equivalent to these matters. That is not enough as the legislation, for whatever reason, is quite explicit about what is involved in the offence and requires the electronic means to be email, an internet chat room, SMS messages or real time video/audio. This is somewhat technical and I am not satisfied that the evidence is capable of proving these matters.

I have ruled that there is no evidence on which you could properly rely to say that in these circumstances Mr Tamawiwy used electronic means as required under the strict terms of the legislation.

I therefore will direct you to acquit Mr Tamawiwy of count 11 on the indictment. As Mr Tamawiwy is now in your charge, only you can acquit him but you are bound by my rulings of law and I direct you that at law he cannot be found guilty of that count and you must acquit. I will ask my associate to take that verdict from you.

9. As directed, the jury then returned a verdict of not guilty.

10. These are my reasons for ruling as I did and directing the jury accordingly.

11. Section 66 of the Crimes Act relevantly provides:

(2) A person must not, using electronic means, send or make available pornographic material to a young person

Maximum penalty: 700 penalty units, imprisonment for 7 years or both

...

(6) ... using electronic means means using email, internet chat rooms, SMS messages and real time audio/video.

12. The section also defines "pornographic material" in a rather complex way, by reference to terms that are defined in Commonwealth legislation that is not easy to find. That does not bear directly on these reasons.

13. The count on the indictment with which Mr Tamawiwy was relevantly charged was a follows:

AND FURTHER THAT, on 31 August 201 at Canberra aforesaid BILLY BARTOLOMEUS TAMAWIWY used electronic means to send or make available pornographic material to a young person, MANELY [sic] [MJ].

14. Evidence was given by Phillip Goodwin, who was a computer expert employed by the Australian Federal Police.

MR GOODWIN: Facebook Messenger is an aspect of the Facebook social networking site, which allows people to communicate with each other. Facebook allows people to communicate in a different number of ways. So it is a fairly complex subject. So when we were researching to find the most simple way to describe this we actually found the definition from Facebook itself, which we take to be a more authoritative view of how the system would work. We think they have the best idea of how they know their systems, to which paragraph 4 of my statement, which was the definition provided by Facebook about how messaging works when you send a message to another person. 'When you send someone a message, it gets delivered to their messages inbox. If the person you messaged is on chat or uses Messenger, your message will appear as a chat conversation.' That was the exact quote from Facebook. We sort of use that, too. We like that explanation because it related it to two familiar technologies. Sending a message to someone is the same - very equivalent to sending an email. It goes from what you're sending to an inbox for the other person's account. If they are online or using the Messenger chat application, which is a specialised component of Facebook, then it just appears as a chat conversation and you go back and forth, effectively in realtime.

MR HICKEY: Like a chat room?---

MR GOODWIN: Yes, like a chat room.

16. In addition, the information from the Facebook home page from which Mr Goodwin quoted was tendered as an exhibit.

17. Mr Lawton's submission was that the section requires that the electronic means be, relevantly, "email" or "an Internet chat room" and not something else, even if "like" there. The evidence of Mr Goodwin was only that it was "equivalent to" or "like" these means.

18. The original section which became s 66 of the Crimes Act was inserted as s 92NC by s 6 of the Crimes Amendment Act 2001 (No 2) (ACT).

19. The Bill, the Crimes Amendment Bill 2001 (ACT), had a rather tortuous passage in the ACT Legislative Assembly and the outcome shows some of the traps that may befall legislation amended during debate. The Bill was originally introduced by a private member, Mr Paul Osborne MLA, but the major parties in the then Assembly broadly supported it.

20. The section to be introduced, namely s 92NC of the Crimes Act was, in the original Bill, relevantly in the following form:

92NC Using the Internet etc to deprave young people

(1) A person must not, using electronic means, suggest to a young person that the young person commit or take part in, or watch someone else committing or taking part in, an act of a sexual nature.

(a) for a 1st offence - imprisonment for 5 years; or

(b) for a 2nd or subsequent offence - imprisonment for 10 years.

(2) A person must not, using electronic means, send or make available pornographic material to a young person.

Maximum penalty: 100 penalty units, imprisonment for 5 years or both.

21. Apart from the "examples" to sub-clause 92NC(1), there was no definition of "electronic means".

22. The Bill was debated on 22 August 2001 and the detailed consideration adjourned to deal with a number of queries that had been raised about the terms used, including a suggestion that "electronic means" was as wide as to include television and radio broadcasts as well as CD and video recordings (Hansard, 22 August 2001, pp 3128-9).

23. During the adjournment, an amendment was circulated by the mover of the Bill as follows:

Proposed new subsection 92NC(4)

Page 3, line 27 -

Insert the following definition:

using electronic means includes using email, Internet chat rooms, SMS messages and real time audio/video.

24. When this amendment came on for debate, a further amendment was proposed and Hansard (22 August 2001, p 3217) records the then Attorney-General saying:

My amendment simply deletes the word 'includes' and puts in the word 'means'. Mr Osborne's amendment inserts the following definition.

using electronic means includes using email, Internet chat rooms, SMS messages and real time audio/video.

My amendment would delete the word 'includes' and substitute in its place the word 'means'. If 'includes' stays there, other means such as radios and TV products could well be included. That is clearly not intended. My amendment tidies it up.

25. The Attorney-General's amendment to the amendment was accepted, as were a number of other amendments and the section then inserted into the Crimes Act in the terms in which it now appears as s 66. The re-numbering from s 92NC to s 66 was authorised by s 43 of the Crimes Legislation Amendment Act 2001 (ACT) to be effected by a republication which was republication No 9, made on 7 January 2002.

26. There is, ordinarily, a significant difference in a definition between the case of "means" and "includes". As McInerney J pointed out in Sherritt Gordon Mines Ltd v Commissioner of Taxation [1977] VicRp 42; [1977] VR 342 at 353, the use of "means" makes the definition "conclusive and exhaustive" while the use of "includes" results in a definition that "adds the meanings given in the definition clause to the natural meaning of the word".

27. This is, as Emeritus Professor D C Pearce and Adjunct Professor R S Geddes point out in Statutory Interpretation in Australia (LexisNexis Butterworths: Sydney, 2014) 8th ed at 309; [6.60], that:

[t]he orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that 'means' is used if the definition is intended to be exhaustive while 'includes' is used if it is intended to enlarge the ordinary meaning of the word ...

28. Thus, the terms used in the definition of "electronic means" in s 66 of the Crimes Act are exhaustive and conclusive.

29. The Crown originally submitted that the terms used by Mr Goodwin were a "manner of speaking" or a linguistic device and that I should find that, for example, "email" encompassed both that which was "like email" and, as described in the Facebook home page, that the message to someone "gets delivered to their message inbox".

30. There is always a fine line between a word with a technical meaning and the point in time where the word becomes part of common parlance.

31. As pointed out by Lee J in H R Products Pty Ltd v Collector of Customs [1990] FCA 152; (1990) 20 ALD 340 at 353, "a starting point in addressing the question of construction is consideration of the history of the legislative provisions". Here, the history shows that the definition was intended to be somewhat restrictive so as not to include matters that would be included as an unintended consequence.

32. While it might be said that the definition of "email" as given in the Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd: Sydney, 2009) 5th ed p 543, "the sending of messages over a computer network, especially the internet" might be sufficient to encompass what was described in the Facebook home page, it was relevant that Mr Goodwin did not and, I infer, was not prepared to, say that it was email. Indeed, his locution was only "very equivalent to sending an email".

33. My hesitation is that this dictionary definition is very wide and loose. For example, it is not clear that, as happened here, the video clips which were sent would be "a message" and, if they are, then the publication in the Internet of anything could be said to be email, which does not seem to accord with common usage.

34. The publication of a newspaper on the Internet does not seem to me to come within the conception of email, yet it could, depending on the content of "message" be encompassed within the definition. Similarly, Skype could, under that definition, be email and, indeed, it may include telephone conversations, all of which would be counterintuitive, though it may turn out to be correct.

35. It seemed to me, also, that the words used by Mr Goodwin, namely "very equivalent to email" showed a conscious reluctance to say that it was email. That the matter was not explored left the evidence, from an unchallenged computer expert, with an express difference (though slight) from email.

36. Similarly, he described the Facebook system as "like a chat room" and one could see some differences, for the parties do not have, on Facebook, to be online at the same time.

37. These matters seemed to me to go beyond leaving the matter to the jury. While, of course, a jury is not bound to accept the evidence of a technical expert, the evidence for the Crown was that the Facebook system was very close to, but not the same as, email or an Internet chat room. This was not further explored by either counsel.

38. It is a difficult question of whether the issue at stake here is one where it could be said that the jury would not have the technical expertise to be able to evaluate Mr Goodwin's evidence. See, for example, the comments of Gleeson CJ and Hayne J in Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233 at 242; [36]. I was not satisfied that this was a situation where the express evidence of Mr Goodwin on this matter could be set aside on the basis of a general or colloquial use of the relevant terms.

39. I am not making a finding that Facebook is neither email nor an Internet chat room. It may ultimately be found to be either or both. My finding is limited to the evidence before the jury in the particular circumstances of this case.

40. While the time may come where such terms relating to computers and the Internet can be considered part of ordinary language; the careful distinctions made by Mr Goodwin lead me to consider that this has not yet arrived.

41. Accordingly, I considered that there was no evidence that the means used by Mr Tamawiwy to communicate with MJ was shown by the evidence to be "electronic means" within the meaning of that term under s 66 of the Crimes Act.

42. It was in these circumstances and for these reasons that I directed the jury to acquit Mr Tamawiwy of that charge in the terms set out above (at [8]).

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.