Ground 5: the verdicts were unreasonable and not supported by the evidence
138As the Court has noted, the appellant was tried by a judge alone. The Criminal Procedure Act, s 133 provides that a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
139The Criminal Appeal Act, s 6(1), provides, relevantly, that an appeal against conviction is to be allowed if the court is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
140The task of the Court of Criminal Appeal pursuant to s 6(1) is, as stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, by Mason CJ, Deane, Dawson and Toohey JJ:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (citation omitted)
141In MFA v The Queen [2002] HCA 53; 213 CLR 606, McHugh, Gummow and Kirby JJ stated, at [58], that the reference to "unsafe and unsatisfactory" in M was the equivalent of the statutory test in s 6(1) of the Criminal Appeal Act that the verdict is "unreasonable" or "cannot be supported, having regard to the evidence".
142Their Honours noted that for the purposes of s 6(1), the starting point was that the jury had the primary function in determining the guilt or innocence of the accused. It was integral to that proposition that the jury had seen and heard the witnesses. However, as had been stated in M by the majority, at 494:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."
143Earlier in M, at 492, their Honours had said:
"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" (citations omitted).
144In SKA v The Queen [2011] HCA 13; 243 CLR 400, French CJ, Gummow and Kiefel JJ reiterated, at [14], that:
"In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'" (citations omitted).
145In R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 at [3]-[4], Wood CJ at CL (Foster AJA and Adams J agreeing) stated the principles that apply where there is an appeal from a verdict given by a judge sitting alone as follows:
"The Court of Criminal Appeal is a court of error, and does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial judge where acting alone: Kyriakou (1987) 29 A Crim R 50, and Kurtic (1996) 85 A Crim R 57.
Where, as in the present case, the relevant ground is that the verdict, or more accurately the finding on the question of guilt by the trial judge (s 17, Criminal Procedure Act 1986 (NSW)) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (s 6(1), Criminal Appeal Act 1912 (NSW)), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: M (1994) 181 CLR 487 at 493; 76 A Crim R 213 at 216, and Jones (1997) 98 A Crim R 107. In that event error permitting the substitution of a verdict of acquittal is established: Coombe (1997) 93 A Crim R 81 at 87-88."
146This statement of principle has been consistently applied by this Court: see Keir v R [2007] NSWCCA 149 and authorities cited therein; Hedges v Regina [2011] NSWCCA 263 per Beazley JA (as her Honour then was) at [46]; FB v Regina [2011] NSWCCA 217 per Whealy JA at [113].
147In Hedges, Beazley JA further said:
"47 In Fleming v R [1998] HCA 68; 197 CLR 250 the High Court observed, at [26] 262, that the first limb of s 6(1) must be seen through the prism of the Criminal Procedure Act, s 33(1). The Court continued:
'The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing [the question is] is that finding 'unreasonable' or one which 'cannot be supported'?'
48 The High Court considered it unnecessary to determine whether in cases under the first limb on an appeal from a judge alone an appellate court will only intervene, relevantly, where there was no evidence to support a particular finding, or the evidence was all one way. See also Keir v R [2007] NSWCCA 149 ; Arun v Regina [2010] NSWCCA 214. That is not the case here. I consider that the Court should approach the matter by asking the question whether, upon the whole of the evidence, it was not open to the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant."
148This Court must, therefore, apply the principles stated in M in its determination as to whether the verdict was unreasonable or cannot be supported having regard to the evidence.
149In accordance with the principles in M, it has been necessary to consider all of the evidence, essential aspects of which have been discussed in the preceding paragraphs of these reasons. Other evidence is considered below. Before turning to consider that evidence, it should be noted that, as there was no dispute that the appellant had child pornography in his possession, the question whether the verdict was unreasonable or not supported by the evidence essentially centres around the defence raised under s 91H(4)(c).
150The Court's rejection of ground 1 means that is it is difficult for there to be a basis upon which ground 5 can succeed. Nonetheless, it is necessary to consider the submissions advanced by the parties, should our conclusion on ground 1 be wrong, or should the submissions in respect of this ground raise different considerations that either require that conclusion to be revisited or, alternatively, which reinforce that conclusion.
151Ground 5 also has to be considered having regard to the onus on the Crown to establish beyond reasonable doubt that the appellant did not have the material in his possession for a genuine scientific purpose, or that his possession was not reasonable for that purpose. The gravamen of the Crown case was that the appellant's possession of the material was for an erotic purpose.
152Whilst it is not an element of the offence that child pornography material be possessed for an erotic purpose, it was the Crown case that this was the appellant's purpose. On the basis that an erotic purpose was inconsistent with a genuine scientific purpose, the Crown's position was that if it established that the appellant's possession was for an erotic purpose, it would have established beyond reasonable doubt that the appellant did not have the protection of the defence under s 91H(4)(c). There was no suggestion in this case that the two purposes could or did co-exist.
153The Crown submitted that the contemporaneity of downloading the eMule program and entering the search terms in November 2007 supported the inference that the appellant's purpose in doing so was to locate child pornography material on the network and to download it. The Crown submitted that the search terms entered by the appellant were consistent with his having an erotic interest in child pornography depicting underage girls and inconsistent with a genuine scientific purpose.
154The Crown also contended that the location of the files within the obscure print settings indicated that the appellant had deliberately hidden the three video files downloaded onto the Sony laptop and was consistent with his knowledge that the files contained child pornography, with his knowledge that it was illegal to possess the files and with his desire to avoid another user of his computer accessing the files, rather than having them for any genuine scientific purpose. The Crown also argued that the lack of any method in the downloading and cataloguing of the files was inconsistent with the asserted scientific purpose and that his continued possession of the material files was unnecessary for such purpose.
155The Crown further contended that the making of multiple copies on the Western Digital hard drive, their hidden location in a complex structure of file paths on the hard drive and the fact that the file structure was consistent with the appellant having "backed up" multiple copies of the material, indicated his interest in their pornographic content rather than any interest in the data for research purposes.
156The Crown submitted that the creation of the Asset.dbf database in November 2007 at the first stage of the 'research' indicated a tendency to possess and access large quantities of child pornography material, reflecting an interest in such material unconnected with any legitimate research purpose. Many of the names in the 12,529 image files in the Asset.dbf file were consistent with the appellant being a prolific downloader of child pornography with a special interest in depictions of underage girls. The Crown submitted that the use of the ACDSee photo management software gave rise to an inference that the appellant had used the software to catalogue some or all of the images he had downloaded.
157Likewise, the Crown submitted that the names and content of the child pornography files found on the Western Digital hard drive demonstrated the appellant's interest in child pornography depicting underage girls. The anodyne numerical file names given to many of the files, and their location on a separate hard drive that the appellant used specifically for this material, was also said by the Crown to give rise to an inference that the appellant had intended to conceal the child pornography material from others because he knew it was illegal to possess it and because he was deeply ashamed should anyone know that he had an erotic interest in such offensive material. In support of this argument, the Crown pointed to the appellant's answer in his ERISP that: "I'm really concerned about this because I really didn't want anything to break up our family". However, it must also be noted that in the record of interview the appellant also stated that his objective in downloading child pornography "was a positive outcome for the business".
158In summary, the Crown's case that the appellant possessed the material was only because of his erotic interest in it, was supported by the following matters which rendered his defence implausible: (i) the manner in which the files were stored was not consistent with any method by which scientific research might be undertaken; (ii) the files were 'hidden' on the computer in the sense that the appellant had filed them in obscure computer files where they would not ordinarily be expected to be found; (iii) the names of files had been anonymised so as not to be easily identified; (iv) the appellant knew that his activity was illegal so that it was unlikely he would have risked detection if he was undertaking research; (v) the failure to inform authorities, when he knew his conduct was illegal which further undermined any likelihood that he was engaging in research; (vi) the failure to inform his work colleagues that he was engaging in research for a commercial product and his engaging in activities late at night in his garage, both of which also undermined any suggestion he was engaging in research.
159The Crown also relied upon the fact that the appellant had lied in respect of a number of matters relating to the possession of the material, had given contradictory evidence, and that particular parts of his evidence were simply implausible and ought not be believed. The evidence relating to these matters has, for the most part, already been considered. For example, the lies the appellant told in his ERISP have already been referred to and standing on their own, and without condoning them, might be thought to be understandable. However, it is necessary to give further consideration to some of the contradictory evidence and the aspects of the appellant's evidence said to be implausible. The lies may be seen differently in the context of the totality of the evidence.
160The contradictory evidence related mainly to his evidence as to why he saved the three video files subject of the first possession charge to the obscure HP Print Settings directory on the Sony laptop. The appellant gave a number of explanations as to why he saved the video files in the print directory. He said that his initial reaction had been to put the video files in an obscure directory and that he had thereafter forgotten about that directory.
161His explanation of his initial reaction was that he was "scared of the nature of the content ... I had print settings open, I copy pasted the path and I put it into the incoming directory of the email". He expressly denied that he had looked at some of the files because he enjoyed looking at the material. Later, he said that he had purchased a printer when he was in the United States and that:
"... as I was progressing forward with my research I just arbitrarily took that particular directory. It was kind of distant from myself and I placed them there."
162The asserted inconsistency in this evidence was that the appellant had said that he set eMule to store files in the print settings directory first. If that were so, it would support the Crown case that his conduct did not relate to any research purpose, but that he had intentionally used the eMule program in November 2007 for the purposes of accessing child pornography which he then saved. However, the appellant, on being specifically questioned on this, denied that he had set eMule to store files in the print settings directory before he came across the child pornography. It cannot therefore be said that, when regard is had to the whole of the evidence on this topic, there was the inconsistency asserted by the Crown.
163Another matter upon which the Crown relied was the asserted inconsistency in the appellant's conduct in purging many of the files but retaining others. The appellant's explanation was that he had retained certain files so that there was a record of the MD5 hash number, which would enhance the capacity for peers to join his computer. He also said that he retained the files to ascertain if he could identify or find any other further identifiers. He said:
"I was looking at the time it took to download and retain - at least there were various sessions where the files were downloaded after a period of time and it was how quickly did those particular files land up in that particular experiment."
164The appellant said that this was an experiment to watch the peer growth over the period of the three or four sessions he had conducted. He said maintaining a record of the MD5 hash number would provide him with more peers connecting to his computer. When it was suggested to him in cross-examination that, in contradiction to that, he had deleted other child pornography files, he replied "[t]hat was certainly the case in March [2008]".
165Some of the files located on the Western Digital hard drive were part files only, being the result of partial downloads. The appellant agreed that the effect of a partial download would be to cause a file to have a different MD5 hash number from that of the complete file from which the part file was created. The Crown contended, therefore, that given the importance of the MD5 hash number to the appellant's research, there was no point in maintaining part files on the computer, being another indication that the appellant had possession of the material for an erotic purpose. The appellant responded that the creation of the part files occurred during the downloading process and was an automated aspect of the eMule application. He also said that the MD5 hash number was maintained within other areas of the application and that once the part file populates all of its pieces it became that file's fingerprint. There was no evidence that contradicted this evidence.
166There were, however, some inconsistencies in the appellant's evidence. Thus, although the appellant agreed that he looked at the files, his evidence differed slightly, in that he first said that he looked briefly at the files to confirm that they were child pornography and that he saw adults and children in a state of undress. However, he agreed that he had earlier said in his evidence that he had clicked through the files and "there would have appeared to be some abuse".
167The appellant had also admitted that he had given false answers to the police in the course of his record of interview. In particular, he agreed that his answer to the police that he had looked at the material once was not true, nor was he providing a complete picture to the police by saying that he had only downloaded child pornography over the couple of nights prior to his arrest. The appellant also agreed that he only told police what he thought they already knew. It must also be said that the appellant never explained why he had kept the three video files at all.
168The Crown also submitted that the appellant's evidence that, having downloaded and saved the files, he had forgotten about them was transparently false. However, his Honour found the appellant to be a credible witness. We consider that in determining whether the Court accept that assessment, the principles stated in Fox v Percy [2003] HCA 22; 214 CLR 118 apply, at least by way of guidance if not directly.
169The Crown has not pointed to any incontrovertible evidence, nor has the Court found any, that would establish that his Honour's assessment was flawed. Nor has it demonstrated that the trial judge misused his advantage in some way. Nor could it be said, subject to one aspect of the case to which we will come, that the appellant's evidence was glaringly improbable or contrary to compelling inferences. Rather, the Crown asks that the appellant's evidence not be accepted and that the Court draw inferences from the evidence to establish beyond a reasonable doubt that the appellant did not possess the material for a genuine scientific purpose but for an erotic purpose.
170There are two aspects of the evidence in particular that point to the appellant having an erotic interest in the child pornography, namely, there being 12,529 file names on the Sony laptop and the retention of the 365 images on the Western Digital hard drive. Although the appellant was not charged in respect of the thumb caches on the laptop, the only conclusion that can be drawn from this evidence was that it involved a significant quantity of downloaded material. Given that at this stage of his research the appellant said he was only interested in ascertaining what the search terms he entered would produce, it is implausible that he needed to download that quantity of material.
171The retention of the 365 images on the Western Digital hard drive bears the same implausibility. If the appellant was concerned to understand how fast and how much material would download, the lack of notation of the results is inexplicable. The retention of the material would not have assisted him to advance that aspect of the research. Having said that, the Court accepts that downloading the material was probably necessary if the appellant's evidence as to research is accepted.
172The Crown also relied upon an experiment the appellant undertook about a week before the trial, which the Crown contended demonstrated that the appellant's evidence as to how he accidentally came across the child pornography was implausible. It will be recalled that the appellant claimed that he had inadvertently stumbled across child pornography when using the eMule program to find copies of a television series. A week prior to the trial he undertook the same task he had undertaken in November 2007, downloading 47 pages of eMule screen shots on a screen similar to that used at the time of the downloads in November 2007. However, the appellant did not find any reference to terms that indicated child pornography or otherwise stumble across child pornography.
173The Court accepts that this was useful evidence in the Crown case. However, we do not consider it would be safe to rely upon a single experiment to conclude that the appellant lied about how he came across the material in the first place. There could be explanations as to why no child pornography came up on that single occasion. There was no evidence that the vagaries of peer-to-peer networks were such that what the appellant said happened could never happen. No repeat experiments were undertaken to demonstrate the statistical unlikelihood of what the appellant said had occurred.
174There was other evidence that cast doubt upon the appellant's case or which was unsatisfactory. The appellant's case that the Eraser program did not pick up the three video files might be thought to be doubtful. But the Crown did not establish that that could not have happened. Likewise, the appellant's evidence that the three video files must have been copied over when he copied over everything from his laptop to the Western Digital hard drive was unconvincing, but not disproved by the Crown. However, the one matter that the Court could not dispel, on reading the evidence, is that the appellant may have had the material for some proposed technological development. Whilst not having the same degree of conviction on this as the trial judge, it is sufficient to cast doubt on the Crown case that there was no such purpose.
175Two aspects of the appellant's account were consistent with his "playing with" or "mulling over" such a possibility. The first was the appellant's stated reaction to what he had come across and the nature of the activities undertaken in March 2008. Child pornography, put starkly, is horrific. The trial judge, who viewed the child pornography material, stated the three video files found on the Sony laptop were "particularly abhorrent". The appellant said that that was his reaction to it and was one of the reasons he put it aside and did not come back to 'advancing' any research until March 2008. Secondly, the programs he used in March 2008 were directed at volume, not content and the appellant did not retain any child pornography on that occasion.
176However, the further consideration we have given to the evidence under this ground has not persuaded us that our conclusion on ground 1 is wrong. For that reason, ground 5 is rejected and the appeal on conviction should be dismissed.