Toronto solicitor Roderick Hale, was sitting in his office when he was visited by the police and some technical staff of the Police Service. They had a search warrant. They said that they were looking for child pornography. They asked Mr Hale whether he had looked at child pornography and he admitted that he had viewed it from time to time. Later in the day he was arrested and charged with an offence against s 474.19 of the Criminal Code Act 1995 of the Commonwealth.
The charge specifies in the Court Attendance Notice that Mr Hale was using a carriage service to access child pornography. The details of the offence alleged were that it occurred between 26 November 2008 and 3 February 2009 at Toronto and the carriage service was specified as " the internet ". Mr Hale was interviewed by the police and his case came on in the Local Court at Toronto before his Honour Magistrate Pierce on 21 December 2009. It became part heard and concluded on 19 July 2009 when his Honour found the offence proved and convicted Mr Hale.
Mr Hale appealed to the District Court and the case was heard before me at Newcastle last Friday, 4 March 2011. When a person appeals from a conviction to the District Court, the District Court Judge hears the case anew. The District Court Judge makes up his or her own mind on the material which was before the Magistrate. Fresh evidence can be tendered. In this case there was tendered on behalf of Mr Hale a document which had been rejected by the learned Magistrate. I determined that it was admissible and it became exhibit 1 before me.
The Commonwealth Director of Public Prosecutions was represented by Mr Young of counsel and Mr Hale by Mr Rosser QC and Ms M Moss of counsel. Mr Rosser QC made it clear from the outset that there were three issues on the appeal. The first was whether the charge was duplicitous. The second was whether the specified carriage service, being the internet, was a carriage service and the third was whether the prosecution had satisfied the fault element for the circumstance that the material viewed was child pornography. Mr Rosser made clear that what was not in issue on the appeal were whether or not his client had accessed material or the fact that the material, which was the subject of exhibit 8, was in fact child pornography. Nor was there any argued defence of public interest.
As to the issue of duplicity, I ruled in a judgment last Friday that the charge was not duplicitous.
The question for me on this appeal of course is whether or not I am satisfied beyond reasonable doubt that Mr Hale has committed the offence which is charged. The way that the case has been efficiently conducted by both parties means that the issues which I have to determine remain now as whether or not the internet was a carriage service and whether or not the particular fault element has been made out.
It is convenient to consider the issue about the fault element first. Mr Rosser QC takes me to the definition of the offence. The fault element for t he circumstance that the accessed material is child pornography material is specified by s 474.19(1)(b) and (2)(b) as recklessness. Section 5.4(4) of the Criminal Code specifies that if " recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element ". In light of that (the law which I have just referred to), it seems to me that Mr Rosser has posed the correct questions at p 7 of his written submissions which were in the following terms-
" 1. Was this a case where recklessness would be satisfied by proof of intention, that is, did the appellant intend to access what he knew was child pornography?
Was the appellant aware that in the searches he was making, there was a substantial risk that he might be bringing to his computer material that was child pornography?
Having regard to the circumstances as known to him, was it justifiable to take the risk?"
As I have said, there was no issue that the material contained on exhibit 8 which I have viewed was child pornography material. I am satisfied beyond reasonable doubt that Mr Hale intended to access child pornography. That is abundantly clear in my opinion from the record of interview which Mr Hale gave to the police and which was before me in exhibit 1 and exhibit 6 in the Court below. He agreed at question 124 of the record of interview that he had earlier in the day said to the police -
"I have looked at child erotica over and over but I didn't disseminate it. I didn't realise I was breaking the law simply by viewing it. I would have looked at it for twenty minutes here and there over the past week."
He referred to the website he goes to in question 127 and in response to question 129 by the police officer that he had " admitted viewing child pornography ". Mr Hale said, " I did admit to doing that."
When asked at question 239, " How long have you been actively seeking child pornography to download over the internet?" he replied that he had not been actively seeking it as such or necessarily going on line seeking it, but that he goes " on line to look at a variety of pornography and it's one, one kind of pornography that I, I have looked at ". In the following question he agreed that although he had not actively sought child pornography, he had " viewed it within...a session of viewing other things ". He agreed in the following series of questions that he had gone into a site and downloaded an image expecting it to be child pornography. He said he had been doing it for some four or five years. Then this question and answer occurred at question 248:
" Q. So for the past four or five years you have clicked on links expecting the download to be child pornography and upon the download or viewing it you have found that to be true?
A. That's true."
In his evidence before the learned Magistrate, Mr Hale said that he had been looking at what he called child erotica on behalf of a client. However he did agree at T 7 on 22 December 2009 that he had searched the internet in sites that at times held child pornography. He explained that the circumstances were on behalf of a client.
However the descriptions which Mr Hale gave of the sort of photographs that he was looking for on behalf of a client amounted to child pornography material. This is apparent in my opinion from the evidence Mr Hale gave on 22 December 2009 when he explained that the photographs he was looking for depicted a child who was wearing " a small black outfit, lingerie outfit, with no knickers, was asked to put her legs in certain positions, look up and close her eyes ." He described them as not pornographic, but erotic photographs. He agreed at T 45 that " it could be there's genitalia showing but you've got to look at the context of it ." He said that there " was probably no sexual connotation " in " a girl posing like that with her eyes closed looking up is attenuating any sexual impulse that might be obtained by a viewer by looking at her genitalia, unless they are entirely voyeuristic ." The girl in question whose photographs he was looking for was aged between twelve and fifteen.
I entertain no reasonable doubt that the material described by Mr Hale in that evidence is a description which coincides with the definition of " child pornography material " contained in s 473.1 of the Criminal Code as "material that depicts a person...who is, or who appears to be, under eighteen years of age and who...is engaged in, or appears to be engaged in a sexual pose...and does this in a way that reasonable persons would regard as being, in all of the circumstances, offensive. " Because of references to the exposure of the genitalia of a girl who is aged between twelve and fifteen, I am satisfied beyond reasonable doubt that the prosecution has proved that Mr Hale intentionally accessed material which was child pornography material.
I turn now to the second remaining issue agitated by Mr Rosser QC, which concerns the internet. The Court Attendance Notice, as I have said, pleads that Mr Hale " did use a carriage service, to wit, the internet to access child pornography material ." Mr Hale argued before the learned magistrate that there was no evidence that the internet was a carriage service and, if there was evidence, then his Honour should entertain a reasonable doubt about that. His Honour rejected both arguments.
In the appeal before me it was argued by Mr Rosser at p 10 of his written submissions that "in terms of the definition, the internet is not a service, but that it is a protocol to which carriage services provide access ."
The offence is created by the Criminal Code . In the Dictionary to the Criminal Code , a " carriage service " is said to have " the same meaning as in the Telecommunications Act 1997". Section 7 of the Telecommunication Act defines " carriage service " as meaning " a service for carrying communications by means of guided and/or unguided electromagnetic energy ."
Evidence was tendered and called before the learned magistrate by both parties on this question. A Mr Sturt, called on behalf of Mr Hale, said in exhibit 11 that the internet is " a worldwide system of computer networks - a network of networks in which users at any one computer can, if they have permission, get information from any other computer ." Mr Sturt was called to give evidence on behalf of Mr Hale on 19 July 2010. At T 8 Mr Sturt said that a " carriage service is the infrastructure where a third party provides access to them and to provide - to transmit information in the form of electromagnetic energy, as the access ." He said that the infrastructure " is either the radio towers or the phone lines or the cables ". He said at T 11 that a " carriage service is basically, like it says in the Act, a point to point way of transmitting information via electromagnetic energy, whether it's guided or unguided ." He said at the same page that a carriage service " provides access to the internet " and that " to say that the internet is a carriage service, is wrong ". He said at T 13 that a " carriage service is like an on-ramp onto a freeway, so you get onto the freeway, the freeway is the internet. You can't have a network of on-ramps. " He emphasised that " the carriage service provides access to the internet, the carriage service is not the internet ."
Mr Wilson on behalf of the Director of Public Prosecution drew my attention to Mr Sturt's evidence given under cross-examination over T 6 to 7 where he agreed that the internet was a " network of networks " and that information gets from computer to computer " via electromagnetic energy ". The argument there was that that series of answers by Mr Sturt coincided with the definition of carriage service.
There had also been tendered in the court below a number of statements by a person named Kevin Anthony Sutherland, described as a Commonwealth public servant, but who possessed " tertiary qualifications in communications engineering " and had at that time " over twenty-five years work experience in the communications sector ".
In his second statement dated 4 March 2010 over para 16 and 17 Mr Sutherland said that in the case of " communications between parties using an internet-type application, the communication between their computers...will be in the form of the exchange of packets of data that will be carried by copper wires, optical fibres or radio communication links or by any combination of these." He then went on to express in the following paragraph the opinion that " using an internet-type application for communications, as described in paragraph 16...constitutes the use of a service for carrying communications by means of guided and/or unguided electromagnetic energy." Mr Sutherland did not give evidence in the court below.
Both parties looked to a recent decision of the Full Court of the Federal Court of Australia for support. The decision was Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23.
In the judgment of Emmett J at [36] his Honour said that " the Internet is fairly described as a network of networks of computers ". Mr Rosser relied upon what his Honour had said at [41] regarding carriage service providers which " connect their customers to the internet by means of physical infrastructures ".
I think that I have to keep in mind that the definition of carriage service which the prosecution in this case is relying upon is a definition contained in a series of statutes. I also have to bear in mind of course that one of the statutes in question is the Criminal Code and that the expression is used in creating an offence which carries a maximum penalty of fifteen years imprisonment.
As Mr Wilson correctly said during his submissions, although Mr Sturt appeared to give an opinion about what the legislation says, that was no help. Mr Sturt - and indeed Mr Sutherland, I add - could say what the Internet is and how it works but neither can say by evidence whether or not it is a carriage service pursuant to the legislation. Mr Wilson correctly argued that that is a matter for me.
I need to look at the meaning which the statutes ascribe to " carriage service ". As I have said, the meaning adopted by the Criminal Code is the meaning given to that expression in the Telecommunications Act. While evidence cannot define the meaning, it, in this case, appears to elucidate the debate between the parties. Mr Rosser QC on behalf his client says that a carriage service is infrastructure and a means of access to the Internet. Mr Wilson says on behalf of his client that while that may be so, it is also a very wide definition and that it picks up smaller components of, for example, a network of networks.
The Criminal Code also defines an " internet service provider " as having " the same meaning as in sch 5 to the Broadcasting Services Act 1992 ". When one goes to cl 8 in sch 5 of the Broadcasting Services Act it says that " if a person supplies, or proposes to supply, an internet carriage service to the public, the person is an internet service provider ." That suggests, Mr Rosser argues, that there may be carriage services which provide access to the internet. It suggests to my mind a distinction between the concepts of internet and carriage service.
In the same Schedule 5 to which the Criminal Code directs the reader looking for the meaning of internet service provider, the expression " internet carriage service " is defined as meaning " a listed carriage service that enables endusers to access the Internet ".
The combination of that reference and the fact that the definition of internet service provider to which the Criminal Code directs the reader, suggests to me that the legislation intends there to be a distinction between the Internet and a carriage service. It is to my mind abundantly clear that the Criminal Code via the Telecommunications Act and the Broadcasting Services Act intends that a carriage service is to be not the same as the Internet.
I appreciate Mr Wilson's argument that on one reading the definition of carriage service contained in the Telecommunications Act could have a broad general meaning which could pick up the internet. But when one drills down further into the relevant legislation it appears to me to be clear that that is not the intended meaning which Parliament was legislating for.
If there is any doubt or ambiguity about that proposition then I need to bear in mind what was said by the High Court of Australia in Regina v Adams (1935) 53 CLR 563 at 567-8 in a passage which was quoted with approval by the late Shaw J with whom the President and Hidden J agreed in Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361 at [24] in the following terms-
" No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category ."
Shaw J went on to say in the following paragraph that "there would be no contradiction between an Adams construction and s 33 of the Interpretation Act 1987 (NSW) because to prefer the construction promoting the object and purpose of a statute is to apply it according to its terms."
There has been no application to amend the Court Attendance Notice. Accordingly, the charge in my opinion does not plead an offence and the appeal should be allowed and the conviction set aside.
Accordingly the formal order which I make is as follows. Under s 20 of the Crimes (Appeal and Review) Act 2001 I determine this appeal against conviction by setting aside the conviction.
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Decision last updated: 25 August 2011