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Allison (a pseudonym) v The Queen

Allison (a pseudonym) v The Queen

Case [2021] VSCA 308 12 November 2021

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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.

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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)

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allison (a pseudonym) v The Queen

Details

AGLC: Allison (a pseudonym) v The Queen [2021] VSCA 308
Case: [2021] VSCA 308
Decision Date: 12 November 2021

CaseChat Overview and Summary

The case of Allison (a pseudonym) v The Queen involved an interlocutory appeal against a decision by the County Court of Victoria. The applicant, who was charged with using a carriage service to access child pornography and child abuse material, and possession of child abuse material, sought to have the charges relating to the access offences stayed on the basis that they were duplicitous and did not involve different criminality from the possession charge. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the charges of accessing child pornography and child abuse material were duplicitous, and whether they involved different criminality from the possession charge. The court had to consider whether the offences of accessing child abuse material and possessing it involved the same criminality and whether the charges were duplicitous, which would have warranted a stay of proceedings. The court also had to consider whether the judge had erred in refusing to stay the charges relating to the access offences.

The Court of Appeal dismissed the appeal and held that the charges were not duplicitous and did not involve the same criminality. The court held that the offences of accessing and possessing child abuse material involved different criminality, as the former required an active use of a carriage service to access the material, while the latter required only the possession of the material. The court also held that the judge had not erred in refusing to stay the charges relating to the access offences. The court relied on the decisions of Pearce v The Queen and R v Fulop in reaching its decision. The court also considered the relevant provisions of the Criminal Code.

The court did not make any orders as the appeal was dismissed.

Orders