Allison (a pseudonym) v The Queen
[2021] VSCA 308
•12 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0127
| JUSTIN ALLISON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | T Forrest and Walker JJA and Macaulay AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 October 2021 |
| DATE OF JUDGMENT: | 12 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 308 |
| JUDGMENT APPEALED FROM: | R v [Allison] [2021] VCC 1322 (Judge Chambers) |
---
CRIMINAL LAW – Interlocutory appeal – Applicant charged with using carriage service to access child pornography, using carriage service to access child abuse material, and possession of child abuse material – Overlap between ‘access’ and ‘possession’ offences –Whether charges duplicitous – Whether offences involve different criminality – Whether judge erred by refusing to stay charges relating to ‘access’ offences – Appeal dismissed – Pearce v The Queen (1998) 194 CLR 610; R v Fulop [2009] VSCA 296, considered – Criminal Code (Cth) ss 474.19, 474.22, 474.22A.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M FitzGerald | Doogue + George Defence Lawyers |
| For the Respondent | Ms K Breckweg | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) |
T FORREST JA
WALKER JA
MACAULAY AJA:
The applicant is charged on indictment with the following offences contrary to the Criminal Code (Cth) (‘the Code’):
(a) accessing child pornography using a carriage service between 30 July 2017 and 20 September 2019 contrary to sub-s 474.19(1) of the Code (charge 1);
(b) accessing child abuse material using a carriage service between 21 September 2019 and 23 February 2020 contrary to sub-s 474.22(1) of the Code (charge 2); and
(c) possessing material, being child abuse material, on 26 February 2020, in the form of data held in a computer or contained in a data storage device, obtained or accessed using a carriage service, contrary to sub-s 474.22A(1) of the Code (charge 3).
There is no dispute concerning the facts that found the charges. The applicant indicated an intention to plead guilty to charge 3. However, he applied for a permanent stay of charges 1 and 2 on the basis that a continuation of those charges would be an abuse of process. He argued that these two charges are duplicitous with charge 3, because they would render the accused liable to double punishment. That was because, he submitted, the conduct of accessing child pornography or child abuse material using a carriage service (being the conduct that gives rise to charges 1 and 2[2]) is an element of, and therefore subsumed by, charge 3 on the indictment.
[2]Charges 1 and 2 cover a single course of accessing the relevant material, but separate charges were required because in September 2019 the offence under s 474.19 of accessing child pornography was repealed and replaced with s 474.22, which created the offence of accessing child abuse material. Nothing turns on this legislative change. For ease of expression, we will use the term ‘child abuse material’ to include both ‘child pornography material’ and ‘child abuse material’.
The prosecution opposed the stay application. The Crown submitted that the access charges represent ‘discrete and distinct offending’ from the charge of possession and that, accordingly there is no duplicity or any prospect of double punishment that arises. The trial judge refused to stay charges 1 and 2.
The applicant now seeks leave to appeal from that decision. He has two grounds of appeal, as follows:
1.The learned trial judge erred in refusing to grant a permanent stay of charges 1 and 2 on the indictment, on the grounds that the prosecution of those charges resulted in impermissible duplicity with charge 3 and was therefore an abuse of process.
2.The learned trial judge erred in finding that the element of using a carriage to access child abuse material in charge 3 did not subsume the elements of [charges] 1 and 2.
Each ground of appeal is, broadly, directed to the same issue, therefore the two grounds can be dealt with together.
In that context, the question that falls to be answered can be framed as follows.[3] As both parties accepted, the elements of the offences charged against the applicant overlap, but are not identical. In the present context, the offences under ss 474.19(1) and 474.22(1) of the Code provided for specific fault elements in relation to the access of child abuse material; in contrast, for the offence under s 474.22A(1), accessing child abuse material using a carriage service was a strict liability element. Further, the offence under s 474.22A(1) required possession of the child abuse material; the offences under ss 474.19(1) and 474.22(1) did not. Given those differences, did charging both offences subject the applicant to double jeopardy? Or to put it slightly differently, was charging both offences duplicitous? In our view the answer is ‘no’, and the trial judge’s ruling was correct.
[3]By analogy with the question posed by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610, 613 [7]; [1998] HCA 57 (‘Pearce’).
The trial judge certified her ruling as being of sufficient importance to warrant it being determined on an interlocutory appeal, pursuant to s 295(3)(b) of the Criminal Procedure Act 2009. Although before the trial judge the Crown contended that her Honour’s ruling was not an ‘interlocutory decision’ as defined in s 3 of the Criminal Procedure Act, so as to be permissibly subject to an interlocutory appeal, the Crown now accepts that the ruling was an interlocutory decision, as defined. That concession was quite properly made. The Crown also accepts that her Honour’s ruling is of sufficient importance to the trial to justify it being determined on an interlocutory appeal. We agree that that is so.
In light of the importance of the issue raised, and the fact that this issue has not yet been the subject of appellate consideration, we grant leave to appeal but dismiss the appeal.
Relevant statutory provisions
At the relevant time, s 474.19 of the Code was headed ‘Using a carriage service for child pornography material’. It provided as follows:
(1) A person is guilty of an offence if:
(a) the person:
(i) accesses material; or
(ii)causes material to be transmitted to himself or herself; or
(iii)transmits, makes available, publishes, distributes, or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child pornography material.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a)intention is the fault element for the conduct referred to in paragraph (1)(a);
(b)recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.
Note: For absolute liability, see section 6.2.
Section 474.22 is headed ‘Using a carriage service for child abuse material’. It provides as follows:
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii)causes material to be transmitted to himself or herself; or
(iii)transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
…
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a)intention is the fault element for the conduct referred to in paragraph (1)(a);
(b)recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
…
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.
For convenience, we shall refer to ss 474.19 and 474.22 as the ‘access offences’.
Section 474.22A is headed ‘Possessing or controlling child abuse material obtained or accessed using a carriage service’. We shall refer to this offence as the ‘possession offence’. This section provides as follows:
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b)the material is in the form of data held in a computer or contained in a data storage device; and
(c)the person used a carriage service to obtain or access the material; and
(d) the material is child abuse material.
…
(2) Absolute liability applies to paragraph (1)(c).
Note: Absolute liability, see section 6.2.
(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used the carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see 13.4.
Relevant definitions are found in s 473 of the Code. In s 473.1, ‘access’ is defined as follows:
access in relation to material includes:
(a)the display of the material by a computer or any other output of the material from a computer; or
(b)the copying or moving of the material to any place in a computer or to a data storage device; or
(c) in the case of material that is a program—the execution of the program.
‘Child abuse material’ is also defined in s 473.1, as was ‘child pornography material’ previously, but it is not necessary to set out those definitions. ‘Possession’ is dealt with in s 473.2, as follows:
473.2 Possession or control of data or material in the form of data
A reference in this Part to a person having possession or control of data, or material that is in the form of data, includes a reference to the person:
(a)having possession of a computer or data storage device that holds or contains the data; or
(b) having possession of a document in which the data is recorded; or
(c)having control of data held in a computer that is in the possession of another person (whether inside or outside Australia).
We note at this point that, in oral argument, the applicant raised a question as to whether the element in s 474.22A(1)(c) could encompass conduct that occurred before the possession offence in section 474.22A was introduced. That was a matter not raised in the application before the trial judge and not raised by any ground of appeal. It is not appropriate, or necessary, for us to enter into a consideration of that issue.
Factual background[4]
[4]See R v [Allison] [2021] VCC 1322, [2]–[4] (‘Reasons’).
On 26 February 2020, the police executed a search warrant at the applicant’s home and seized his Toshiba laptop computer. The applicant provided police with usernames and passwords to the applications on his computer. The computer was examined and found to contain a large number of images and videos depicting child abuse material.
An examination of the accused’s internet search history revealed that he had accessed peer-to-peer networks (‘P2P’), which allows the sharing of files with other P2P users. The analysis also revealed ‘torrent file fragments’ or fragments of computer files containing metadata holding various information that had titles corresponding with categorised child abuse material. Many of the files were saved with references to the ages of the children involved. This material had been stored on the computer hard drive on numerous occasions between 30 July 2017 and 23 February 2020.
In his record of interview, the applicant admitted downloading thousands of child abuse videos and images over several years, including in the weeks prior to his arrest.
The trial judge’s ruling
After setting out the parties’ submissions, the trial judge summarised the following principles that emerged from the High Court’s decision in Pearce:
·Firstly, that a single series of events can give rise to several different criminal offences to which different penalties attach;
·Secondly, prosecutors should frame charges in a way that will reflect all of the accused’s criminal conduct, and thus enable the imposition of punishment that truly reflects the criminality of that conduct;
·Thirdly, the stages in the criminal justice process should be considered separately. At the stage of prosecution, it is necessary to consider whether the accused is entitled to enter a plea in bar to one or more counts on the indictment or is entitled to a stay of proceedings on one or more counts. At the stage of punishment, it is necessary to consider whether the accused is entitled to be sentenced ‘in some way differently from the sentences imposed’ to avoid double punishment.[5]
[5]Reasons [25].
Her Honour observed that:
In discussing the principles applicable to a plea in bar (based on either autrefois acquit or autrefois convict), the High Court re-stated that these will apply to offences the elements of which ‘are the same as’, or ‘are included in’, the elements of the offence for which an accused has been tried to conviction or acquittal. It was in that context that the High Court discussed the difficulty in determining whether a plea in bar is available where a person is charged with different offences arising out of substantially the same facts. The High Court observed that in such cases, there may be sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charges ‘are identical or in which all the elements of one offence are wholly included in another’.[6]
[6]Reasons [26] (citations omitted).
The trial judge also referred to the High Court’s separate consideration in Pearce of the inherent power of a court to prevent an abuse of process and to grant a stay of proceedings by reason of double jeopardy. She observed that the High Court there determined that there was no abuse of process in the two counts brought against the appellant, and that the Court held the primary judge had correctly refused the stay application.[7] Her Honour quoted the following passage from the majority’s judgment:
The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused, and consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.[8]
[7]Reasons [27]–[28].
[8](1998) 194 CLR 610, 621 [31] (citations omitted); [1998] HCA 57.
Her Honour noted that in Pearce the elements of the offences overlapped but were not identical. She concluded that the same was true of the offences in issue in the present case:
The offence under s 474.22(1) requires a specific intent to access the child abuse material; the offence under s 474.22A does not. The use of a carriage service to access the child abuse material is a physical element of the offence created by s 474.22A only. The offence under s 474.22A requires a specific intent to possess or control the material; the offence under s 474.22(1) does not. The latter provision is not directed to conduct involving possession and control of child abuse material at all.[9]
[9]Reasons [32].
She further noted, by reference to the definitions of ‘accessing material’ and ‘possession of control of material’ in s 473.1 of the Code, that ‘the act of accessing and the act of possessing or controlling child abuse material are distinct acts involving distinct criminality’:
As the prosecution identified, the act of accessing material is aimed at the activity of specifically and intentionally searching for, locating and viewing child abuse material. The possession or control of child abuse material involves further conduct of saving the material accessed, in this case to the computer hard-drive, making it available for ongoing or future use, such as viewing, distribution, sharing or selling the images.[10]
[10]Reasons [35].
Her Honour held that ‘the element of accessing child abuse material using a carriage service in s 474.22A does not subsume the elements of the offences created by s 474.19 and s 474.22 of the Code’.[11] That was because the element in s 474.22A(1)(c) — of accessing child abuse material using a carriage service — is a physical element and not a fault element; the prosecution is not required to establish an intention to access the child abuse material. Her Honour stated that she did not accept the applicant’s submission that an intention to access the material was implicit in the provision. Rather, by reason of s 474.22A(1)(c), the contrary is true.[12]
[11]Reasons [36].
[12]Reasons [36].
Her Honour concluded as follows:
It follows therefore, that I do not consider that charges 1 and 2 on the indictment should be stayed as an abuse of process on the basis they are duplicitous. There is however, force in the submission of the defence that the access offences now overlap to a significant degree with the Commonwealth possession offence. The question of double punishment therefore arises. This, however, will be a matter for consideration in the ultimate sentence imposed on the charges and is not a foundation for staying the charges.[13]
[13]Reasons [37].
The parties’ submissions
Before us, the parties, in effect, renewed the submissions they had made below. The applicant accepted that he had no plea in bar, but submitted that the test for a permanent stay was different. He contended that the test to be applied on an application to stay a charge on the grounds of duplicity was whether the elements of the impugned offences were the same or substantially the same, relying on Pearce.[14]
[14](1998) 194 CLR 610, 616 [18], 617 [21], 645 [109], 652 [125]; [1998] HCA 57.
He submitted that the offences were duplicitous because proof that the offender ‘used a carriage service to obtain or access the material’, as part of the actus reus of the s 474.22A offence, therefore included proof of the actus reus of the ‘access’ offences under ss 474.19 and 474.22 of the Code. In his case, he submitted, proof of charge 3 requires or includes proof of charges 1 and 2. Thus, he submitted:
[A] plea of guilty to charge 3 would conclusively admit the facts and elements of charges 1 and 2, such that the whole of the prosecution case on those charges would be comprehended by the plea. The case prosecuted under cover of charge 3 included the case prosecuted under cover of charges 1 and 2.
He submitted that in his case the absence of a subjective fault element for the physical element of ‘us[ing] a carriage service to obtain or access the material’ in s 474.22A did not detract from the proposition that, ‘in a real and practical sense, the criminality comprehended by this element was substantially the same as the “access” charges’. As part of that submission, he contended that a charge under s 474.22A ‘effectively assumes that the accused intentionally used the internet to access the material to which the charge relates’, notwithstanding that absolute liability applies to this element. As a consequence, he said, the trial judge erred in concluding that the absence of a subjective fault element in s 474.22A(1)(c) meant that that offence did not subsume the elements of the ‘access’ offences.
The applicant accepted that the analysis required by an application to stay a charge on the grounds of duplicity must be directed to the elements of the charged offences, and that it involves ‘an analysis of, and comparison between, the elements of the two offences under consideration’.[15] However, he submitted that it is not dispositive that a particular offence can be said to be ‘aimed at’ or ‘directed at’ a discrete part of its actus reus, or that this part of the actus reus can be identified as the ‘gravamen’ of the offence. Thus, he contended, the trial judge erred in reasoning that the laying of multiple charges was justified to reflect the whole of the criminality of the applicant, on the basis that the access charges were ‘aimed at’ or ‘directed at’ distinct acts involving distinct criminality.
[15]Pearce (1998) 194 CLR 610, [20]-[21], [103], [125]; [1998] HCA 57.
In contrast, the Crown submitted that no issue of duplicity or double punishment arises as between the s 474.22A offence and the ss 474.19 and 474.22 offences, for three related reasons:
(d) First, the possession offence in s 474.22A and the accessing offences in ss 474.19 and 474.22 are distinct and separate offences.
(e) Second, the offences are directed at different criminality. ‘The act of bringing material into a person’s possession whereby it can be retained and controlled involves different criminality to gaining access to it in the first place.’
(f) The offences have different fault elements. In the possession offence, a person must intend to possess the material. The element requiring use of a carriage service to obtain or access the material is a constitutional connector only, necessary to engage a Commonwealth head of power. It does not relate to the substance of the offence and does not have a fault element of intention; rather, strict liability attaches to this element. In contrast, the fault element for the accessing offences is intention to access, reflecting the different act of accessing.
In support of the submission that the offences of accessing and possessing child abuse material are distinct and discrete forms of criminality warranting separate punishment, the prosecution also relied on several cases concerning the overlap between the Commonwealth access offences and a State possession offence.[16] For example, in R v Fulop, a case concerning double punishment at the sentencing phase, this Court observed as follows:
The elements of the offences overlapped but they were not identical. While the appellant was able to obtain possession of the pornographic material through a carriage service, the service also enabled users to disseminate the material. …
On the other hand, the state offence is not concerned with the means by which the offender gains possession of pornographic material. The appellant could gain access to the material without possessing it. In this case, he took a further step by downloading the material and thereby obtained possession of it. The Commonwealth offence was concerned with the images found on the hard drive of the appellant’s computer. The state offence was constituted by the CDs and DVDs made and retained by the appellant. In my opinion, the offences did not overlap to such an extent that it rendered inappropriate the degree of cumulation ordered by the sentencing judge.[17]
[16]See, eg, R v Porte [2015] NSWCCA 174, [157] (‘Porte’); Huggett v The Queen [2021] NSWCCA 62; Dennis v The Queen [2017] VSCA 251; R v De Leeuw [2015] NSWCCA 183; James v The Queen [2009] NSWCCA 62; R v Mara [2009] QCA 208, [17]–[21] (‘Mara’); R v Jones [1999] WASCA 24, [9].
[17][2009] VSCA 296, [11]–[12] (‘Fulop’).
In contrast, the applicant distinguished these cases because, he submitted, the overlap between the Commonwealth possession and access offences is different: it cannot be said, as it was in Fulop, that the Commonwealth possession offence ‘is not concerned with the means by which the offender gains possession’ of the material.
Consideration
In our view there is no impermissible duplicity between charges 1 and 2, and charge 3, so as to require a permanent stay of those charges. The trial judge’s conclusion was correct and, subject to one minor distinction which we mention below, we adopt what her Honour has said. However, we shall briefly state our own reasons for reaching that conclusion.
In Pearce the High Court relevantly identified three separate issues in relation to charges that overlapped.[18] The first issue was whether the appellant was entitled to enter a plea in bar to one or more counts on the indictment. The second was whether he was entitled to a stay for abuse of process. The third was the need to take account of double jeopardy in sentencing a person who had been convicted of overlapping offences.
[18](1998) 194 CLR 610, 615 [15]; [1998] HCA 57.
As to the first issue, the applicant did not rely on a plea in bar as the basis of his application for a stay. There is thus no need to consider the judgments in Pearce in so far as they concern that topic.
As to the courts’ general power[19] to stay a proceeding that is an abuse of process, which the applicant sought to invoke, the plurality held that the confined availability of the plea in bar ‘did not deny the existence of the inherent powers of a court to prevent abuse of its process’, and that ‘there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process’.[20] That supports the applicant’s argument that the power of a court to stay proceedings for abuse of process is not confined by the same considerations as a plea in bar. That argument is also supported by the following statement by Gummow J, upon which the applicant relied:
[E]ven if a plea in bar is not available, successive prosecutions may be an abuse of process. It should also be accepted that the inclusion of separate counts for what in substance, if not entirely in form, is the same offence may be an abuse of process.[21]
[19]The power is inherent in so far as superior courts are concerned, and implied in so far as inferior courts are concerned: see DJL v Central Authority (2000) 201 CLR 226, 241 [25]; [2000] HCA 17.
[20]Pearce (1998) 194 CLR 610, 620 [29] (emphasis in original); [1998] HCA 57.
[21]Pearce (1998) 194 CLR 610, 629 [67] (citations omitted); [1998] HCA 57.
However, the plurality also held that to stay proceedings in relation to different offences arising out of the same course of conduct, as was the case in Pearce, would be ‘to preclude the laying of charges that, together, reflect the whole criminality of the accused’.[22]
[22]Pearce (1998) 194 CLR 610, 621 [31]; [1998] HCA 57.
We accept that it is not necessary, in order for a court to grant a stay for abuse of process in relation to overlapping offences, for the elements of the offences to be identical. It is unclear whether it is sufficient that they are ‘substantially similar’. Nonetheless, in determining whether offences are duplicitous so that they should be stayed, it remains important to consider the extent to which the elements overlap. It is also appropriate, contrary to the applicant’s submissions, to consider whether the offences are directed at distinct and separate forms of criminality. That emerges, in our view, from the conclusion in Pearce that the offences in that case were ‘different in important respects’, and that to grant a stay in those circumstances would preclude the laying of charges that, together, reflect the ‘whole criminality’ of the accused. That is, their Honours plainly had in mind the different criminality attaching to the different offences in Pearce. Thus, contrary to the applicant’s submissions, the trial judge was quite correct to consider whether the access offences and the possession offence involved different criminality.
Here, it is clear that there is an overlap between the offences created by ss 474.19 and 474.22, on the one hand, and the offence created by s 474.22A, on the other. In each case the Crown must prove that the accused accessed child abuse material using a carriage service.[23] The two offences can thus arise from the same course of conduct. That is not, in itself, fatal to the prosecution of the two offences: as the High Court observed in Pearce, and as the applicant accepted, ‘a single series of events can give rise to several different criminal offences to which different penalties attach’.[24] In the present context, it appears that the material accessed by the applicant that underpins the possession charge was the same material that underpins the access charge; thus it may be said that the applicant is being charged twice for the same conduct.
[23]At the hearing of this matter, the applicant raised the possibility that the access element of the possession offence might not be satisfied by conduct that occurred prior to the enactment of the possession offence. However, no argument of that kind was put to the trial judge, and we do not consider it appropriate to deal with that argument on the appeal.
[24]Pearce (1998) 194 CLR 610, 615 [11]; [1998] HCA 57.
However, the elements of the possession offence are not the same as the elements of the access offences. Nor are the elements of one wholly included in the other. Rather, when one considers the elements of the offences, it is clear that there are differences between them. Thus, as the Crown submitted:
(g) The access offences have the following elements:
(i) The accused accessed material
Physical element: conduct
Fault element: intention
(ii) The accused used a carriage service to access the material
Physical element: circumstance
Fault element: absolute liability
(iii) The material accessed was child abuse material
Physical element: circumstance
Fault element: recklessness
(h) The possession offence has the following elements:
(i) The accused possessed or controlled material
Physical element: conduct
Fault element: intention
(ii) The material was in the form of data held in a computer or contained in a data storage device.
Physical element: circumstance
Fault element: recklessness
(iii) The accused used a carriage service to obtain or access the material
Physical element: circumstance
Fault element: absolute liability
(iv) The material possessed was child abuse material
Physical element: circumstance
Fault element: recklessness
We note that the applicant submitted that the physical element in s 474.22A(1)(c) — that the accused used a carriage service to obtain or access the material — was a conduct element, not a circumstance element. We do not accept that submission. But, in any event, even if we were to accept that submission, it would make no difference to the outcome of the application, because we do not consider that that is a significant matter in assessing whether the charges are duplicitous and whether a stay should be granted.
The principal difference between the access offences and the possession offences is that, although both have as a physical element that the accused accessed the material, there is no intention attached to the physical element of access in the possession offence; whereas for the access offences, the Crown must prove that the accused intentionally accessed the material and was reckless as to whether it was child abuse material. Contrary to the applicant’s submission, we do not consider that it is inherent in the element requiring that the accused ‘used’ a carriage service ‘to access’ the material that the accused did so intentionally. Not only is that contrary to the express provision that this element is a strict liability element, it is also contrary to the factual possibility that a person may unintentionally access child abuse material using a carriage service, for example, because it is transmitted to them by a third party without their knowledge or consent, but they may then intentionally decide to retain the material. In those circumstances, they would be guilty of an offence against s 474.22A, but not of an offence against either s 474.19 or s 474.22. Further, contrary to the applicant’s submission, if a person was prosecuted for those offences sequentially, rather than concurrently, and convicted on the possession offence, an acquittal on the access offences would not be inconsistent with the earlier conviction. However, in those circumstances there might be other reasons for staying the subsequent prosecution.[25]
[25]See, eg, Joud v The Queen (2011) 32 VR 400, 437 [115], 441–3 [137]–[141]; [2011] VSCA 158, where the Court of Appeal upheld the trial judge’s decision to grant a permanent stay of a subsequent prosecution, not on the basis of double jeopardy, but on the basis that the second trial was oppressive because the applicants were subjected to two separate and lengthy trials for offences arising largely out of the same facts and circumstances, when the entirety of their criminality could have been dealt with in a single trial; as well as the conditions of incarceration and transport suffered by the accused.
In our opinion there was distinct and separate criminality involved in the applicant’s intentional possession of the child abuse material and in his intentional accessing of that material. However, we do not unreservedly accept the lines of demarcation mapped out by the Crown.
The Crown submitted before us, as it had before the trial judge, that the access offences are directed at the activity of intentionally searching for, locating, and viewing child abuse material. The Crown submitted that the vice to which the access offence is directed is the use of the internet to access the market for child abuse material, which in turns increases the need for such a market. The possession offence, the Crown submitted, involves an additional step, namely that the material accessed is saved or kept for ongoing or future use, which can include viewing, distribution, sharing or sale.
We largely accept what the Crown submitted, but the critical hallmark of the possession offence is that the accused has possession or control of the medium (computer, data storage device or document) in which the material is captured. Possession is not necessarily denoted by the ‘additional step’ of saving the material. As the definition of ‘access’ shows, access may include copying or moving the material to any other place in a computer or to a data storage device, therefore access may in a given case include the step of downloading and saving material onto a computer hard drive or a data storage device. But unless the relevant medium is one that the accused has or takes possession or control of, the offence does not pass beyond the access offence. Saving the material for the purpose of ongoing or future use would usually imply that the user retains possession or at least control of the material, but merely downloading or saving it would not necessarily carry that implication. That is, the additional step is better described as ‘keeping’, rather than ‘saving’, the material. It is for this reason that we register a slight qualification with the distinction drawn by the trial judge in the passage extracted above at [23].
Regardless of that minor qualification, the two offences are nonetheless aimed at different behaviours and that is reflected in their different elements. This is not a case where there would be nothing left to be punished once the applicant is convicted and sentenced for the possession offence.[26]
[26]Cf R v Langdon (2004) 11 VR 18, 38 [117]; [2004] VSCA 205.
This conclusion is supported (although not compelled) by the cases concerning the sentencing for overlapping Commonwealth access offences and State possession offences. In those cases the courts have recognised the different aspects of the distribution and possession of child abuse material caught by the access offence and an offence of possession.[27] The two forms of offences are directed at different but related vices.[28]
[27]See, eg, Mara [2009] QCA 208, [18].
[28]See, eg, Dennis v The Queen [2017] VSCA 251, [98]; Fulop [2009] VSCA 296, [11]–[12]; Porte[2015] NSWCCA 174, [55]–[56], [157].
It remains the case that the applicant should not be punished twice for the same conduct. That will, as the trial judge correctly observed, require consideration at the stage of sentencing, if the applicant pleads to or is found guilty of the three offences. Thus, as the plurality said in Pearce:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[29]
[29]Pearce (1998) 194 CLR 610, 623 [40]; [1998] HCA 57.
Conclusion
For these reasons, we grant leave to appeal but dismiss the appeal.
- - -
10
7
0