Baldwin v The State of Western Australia
[2020] WASCA 110
•13 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BALDWIN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 110
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 18 JUNE 2020
DELIVERED : 13 JULY 2020
FILE NO/S: CACR 11 of 2020
BETWEEN: MITCHELL BALDWIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAVRIANOU DCJ
File Number : IND 1602 of 2018
Catchwords:
Criminal law - Appeal against conviction for possession of child exploitation material - Whether verdict unreasonable and not supported by the evidence - Whether it was open to the jury to infer that the appellant possessed the child exploitation material and to exclude the alternative inference advanced by the appellant
Legislation:
Criminal Code (WA), s 220, s 221A(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Introduction
The appellant appeals against his conviction, after trial, of one count of possession of child exploitation material (CEM) in the form of images, contrary to s 220 of the Criminal Code (WA) (the Code) (count 1). At his trial, he was acquitted of a further count of possession of CEM, namely a video (count 2).
At trial, the appellant admitted that the images and the video the subject of counts 1 and 2 were CEM. He also admitted that he was the owner of the laptop which contained evidence of the existence of the images, and which contained the video.
The images the subject of count 1 had been deleted from the appellant's laptop. The State case on the images was that the appellant had viewed the images and gained sexual gratification from viewing them briefly, but would then delete them because he knew it was too risky to retain them on his device. On the State case the appellant possessed the images momentarily, before deleting them.
The appellant's evidence was that he regularly used online chatrooms and that other chatroom users would send him links. He would click on these links, not knowing what was behind them. Sometimes they were links to CEM. The defence case was that the appellant was not in possession of the CEM the subject of the counts because he never knowingly accessed CEM, he never downloaded or saved CEM and he would delete or close any CEM that came to his device immediately upon realising that the material was CEM.
The appellant appeals his conviction on count 1 on the ground that the verdict should be set aside because, having regard to the evidence, it was unreasonable or could not be supported. In essence, he asserts that the innocent explanation he advanced at trial could not be excluded as a reasonable possibility.
For the reasons that follow, we would refuse leave to appeal and dismiss the appeal.
The appellant's admissions at trial
At trial, the appellant made the following admissions:[1]
I, [the appellant], admit on my trial the following facts alleged or sought to be proved against me:
1.A DELL Laptop computer containing a Seagate 250 GB HDD ('my laptop') seized by police on 13 April 2017, from my residence … belonged to me.
2.Police conducted a forensic examination of my laptop after it was seized from me.
3.A total of 108 thumbnail images recovered from the deleted space and thumbcache database of my laptop contained material that, in a way likely to offend a reasonable person, depicted persons who appeared to be children under the age of 16 years, either engaging in sexual activity or in a sexual context. These images relate to Count 1 on the Indictment dated 6 February 2019.
4.A video file entitled 'Izzy deep throat swallow' recovered from my laptop on the file path "C:\Users\Mitch\AppData\Local\Temp" contained material that, in a way likely to offend a reasonable person, depicted a girl, who appeared to be a child under the age of 16 years, engaging in sexual activity, namely video footage of the girl performing fellatio on an adult man. This video file relates to Count 2 on the Indictment dated 6 February 2019.
[1] Exhibit 1, GBAB 69.
The State case
The appellant was the principal database administrator at a university in Western Australia.[2]
[2] ts 141.
On 13 April 2017, police executed a search warrant at the appellant's residence.[3] During the search, police seized several computers and storage devices, including a Dell laptop which belonged to the appellant.[4] Police analysed the laptop and discovered that it contained CEM in the form of 108 thumbnail images (count 1).[5] Also stored on the laptop was a video of a person, who appeared to be under 16 years old, performing fellatio on an adult male (count 2).[6]
[3] ts 141.
[4] ts 141.
[5] ts 141.
[6] ts 141.
The State case on count 1 was that the appellant would be sent links to CEM by people he spoke to in online chat rooms.[7] He would click on those links and view the images briefly.[8] Then, he would deliberately dispossess himself of the images because he did not want them on his computer;[9] he thought it would be too risky to retain the images on his computer.[10]
[7] ts 143.
[8] ts 143; ts of closings 9.
[9] ts 143.
[10] ts of closings 9, 10.
The State case on count 1 did not rely on the appellant's possession of the thumbnails, which were actually found on his laptop.[11] Rather, the State case relied on the appellant's possession of the original images, which had been deleted and which caused the thumbnails to be created: the appellant was 'prepared to view' the original images, he would gain sexual gratification from momentarily looking at the images[12] and his 'viewing of them prior to … dispossessing himself of those images' established the element of possession.[13] The State said that the appellant intended to possess the images momentarily, prior to deleting them.[14]
[11] ts 300; ts of closings 6 ‑ 7.
[12] ts of closings 10.
[13] ts 143; ts of closings 3, 6 ‑ 7; see also ts 299, 300.
[14] ts of closings 11.
The State also relied on the appellant's past conviction for producing CEM. On 19 January 2019, the appellant pleaded guilty to producing CEM.[15] The CEM the subject of that conviction was the chat log of a conversation between the appellant and an unknown person, in an online chatroom, about a fictional sexual fantasy that did not relate to real persons.[16] During that conversation, the appellant described his desire to involve a 2‑year‑old child in a sexual act, namely fellatio.[17] In the fantasy, the appellant was engaged in a sexual act with the child's mother.[18]
[15] ts 140 ‑ 141; ts of closings 7.
[16] ts 140 ‑ 141.
[17] ts 141; ts of closings 8.
[18] ts 141.
The State case was that this conviction, and the factual basis for it, revealed that the appellant had a sexual interest in prepubescent female children and that he had a tendency to act on that interest in the use of electronic equipment.[19] Further, the past conviction, coupled with the CEM the subject of counts 1 and 2, is evidence of an attitude or the conduct of the appellant towards prepubescent female children over a period of time.[20]
[19] ts 144; ts of closings 7.
[20] ts 144; ts of closings 7.
This, the State said, rendered it more likely than it would otherwise be that (a) the appellant knew that the CEM images (and video) were on his laptop;[21] (b) the appellant intentionally viewed the images, even if only momentarily;[22] and (c) the appellant had control of the CEM images (and video).[23]
[21] ts 144; ts of closings 7, 9.
[22] ts 144; ts of closings 7, 9.
[23] ts of closings 7.
The defence case
The defence case was that the appellant would chat with other people in online chat rooms and, from time to time, he would be sent messages that included invitations to click on links. The appellant would click on such links, but would not know the content behind a link until he had clicked on it. Whenever a link contained CEM in the form of images or videos, he immediately took steps to dispossess himself of the files, namely, by closing the window or deleting it.[24] He did not exercise any custody or control over the CEM and he had no intention to be in possession of it.[25]
[24] ts 149 ‑ 150; ts of closings 16.
[25] ts 149.
In respect of both counts 1 and 2, the appellant also relied on the defence contained in s 221A(2) of the Code.[26] That defence is in the following terms:
221A.Defences and exclusions for s. 217, 218, 219 and 220
…
(2)It is a defence to a charge of an offence under section 220 to prove that -
(a)the material to which the charge relates came into the accused person's possession unsolicited; and
(b)as soon as the accused person became aware of the nature of the material the accused person took reasonable steps to get rid of it.
[26] ts 291 ‑ 297.
The evidence: State case
The State called two witnesses: Mr Sumegi, a digital forensic examiner employed by the Australian Federal Police,[27] and Detective Senior Constable Miley, the investigating officer who interviewed the appellant. The State tendered the video of the search at the appellant's house and the appellant's video record of interview (VROI). As already noted, it also relied upon the propensity evidence.
Mr Sumegi and the search video
[27] ts 153 ‑ 154.
Mr Sumegi attended the search at the appellant's house on 13 April 2017.[28] He examined the appellant's laptop during and after the search.[29]
[28] ts 155.
[29] ts 163.
Mr Sumegi gave evidence about 'Restoration' ‑ the software that police found running on the appellant's laptop at the time of the search.[30] He explained that Restoration is a software with multiple purposes. One purpose is to securely delete files from a computer, such that these files cannot be retrieved.[31] He explained that merely deleting a file, without using such software, does not technically delete it from a computer.[32] Restoration can also be used to search and restore files that have been deleted (but not securely deleted).[33] When police searched the appellant's house, he was using Restoration on his laptop for the first purpose ‑ to securely delete files.[34]
[30] ts 157 ‑ 159.
[31] ts 158.
[32] ts 158.
[33] ts 158.
[34] ts 159; see also ts 183.
It is not necessary to outline Mr Sumegi's evidence relevant to count 2.[35]
[35] ts 166 ‑ 169.
With respect to count 1, Mr Sumegi's evidence was that the program he applied to the computer identified 108 files containing images. The files were located in two different pathways. Some images were located in a pathway called 'path unknown carved files'. A carved file is a file that the forensic software retrieves from the deleted space on a hard drive. Because the file did not exist in a particular location on the computer, the software cannot discern where the file was originally stored. So, the software creates a new location for the file, called 'path unknown'. All files retrieved using the forensic software are stored in this location.[36] The forensic software could not identify the original names of the files so it designated each carved file by a new name, in this case, a number.[37] Mr Sumegi could not say how the files came to be present on the hard drive; all he could say was that the files once existed on the machine.[38]
[36] ts 169.
[37] ts 170.
[38] ts 170.
Other images were in the form of thumb cache files. When one browses to a folder on the computer, and if thumbnails are active, the Windows operating system will produce a preview of the image of the file, known as a thumbnail.[39] In essence, a thumbnail is a smaller version of the original image.[40] Clicking on a link would not create a thumbnail.[41] For the Windows operating system to create a thumbnail (a) the user must save the original file to a folder on the computer; and (b) the user must then browse, in other words go, to that specific location on their computer.[42] If the original image is deleted, the thumbnail still exists in the thumb cache.[43] There are two ways for the Windows operating system to create a thumbnail ‑ either browsing to an external hard drive or USB on which the image or folder is stored, or connecting to an external location and then saving that to the computer.[44] Mr Sumegi could not say when the thumbnails were created.[45]
[39] ts 170 ‑ 171.
[40] ts 170.
[41] ts 171, 175.
[42] ts 171, 175.
[43] ts 172.
[44] ts 172 ‑ 173.
[45] ts 173.
After re‑examination, the judge clarified with Mr Sumegi that, in relation to the thumb cache files, the corresponding original images were deleted but the thumbnails still existed on the machine.[46]
[46] ts 186.
In cross‑examination, Mr Sumegi said the following:
(1)He repeated his evidence‑in‑chief that clicking on a link would not create a thumbnail.[47] For the Windows operating system to create a thumbnail (a) the user must save the original file to a folder on the computer; and (b) the user must then browse, in other words go, to that specific location on their computer.[48]
[47] ts 175.
[48] ts 175.
(2)It is possible that the images the subject of count 1 were sent to the appellant, unsolicited, by another user on the computer network.[49]
[49] ts 176.
(3)The form in which the original images came to the appellant is unknown.[50]
[50] ts 176.
(4)It is reasonably possible that the original images forming the basis of the thumbnails were sent to the appellant without him being aware of the content of the images until he opened the images.[51]
[51] ts 176 ‑ 177.
(5)Mr Sumegi could not say that the images, once opened and viewed, were not immediately deleted.[52]
[52] ts 177.
(6)Mr Sumegi could not say whether all of the 108 images were received by the appellant at one time; it is possible that he received them all at once, opened them and deleted them, while the thumbnails remained on the laptop.[53]
[53] ts 177.
(7)There was no evidence that the appellant had been actively seeking out CEM on the internet by using particular search terms or attending particular websites.[54] However, in re‑examination, Mr Sumegi observed that it is possible to delete internet history and that the appellant's search history was small.[55]
[54] ts 178 ‑ 179.
[55] ts 184 ‑ 185.
(8)With respect to the video the subject of count 2:
(a)There was nothing in the title of the video to suggest that it was CEM; the title could have equally applied to legal, adult pornography.[56]
(b)Depending on the application used, it is reasonably possible that when the appellant opened the video and realised it was CEM, he may have simply closed the video, without thinking it had ever been downloaded to his computer. The appellant might not have deliberately saved the video file to the computer.[57]
(9)He could not say that the appellant was using Restoration for a sinister purpose.[58] Further, there is nothing sinister about having, as the appellant did, a virtual private network (VPN).[59]
(10)It is possible to view thumbnail cache files using various computer programs, but there was no evidence that this had been done; there was no evidence of the required programs on the appellant's laptop or anywhere else in his possession.[60]
(11)The appellant was cooperative during the search.[61]
Detective Senior Constable Miley and the VROI
[56] ts 179.
[57] ts 179 ‑ 180; see also ts 185 ‑ 186.
[58] ts 181.
[59] ts 182; see Mr Sumegi's explanation of VPN or virtual private network at ts 162 ‑ 163.
[60] ts 183.
[61] ts 183 ‑ 184.
The evidence‑in‑chief of Detective Miley was relatively short. He gave evidence that he attended the search at the appellant's house on 13 April 2017.[62] He also gave evidence that he arrested the appellant on suspicion of possessing CEM and interviewed him on 20 September 2017.[63]
[62] ts 222.
[63] ts 223 ‑ 224.
The State played the appellant's VROI during Detective Miley's evidence‑in‑chief.[64]
Propensity evidence
[64] ts 231.
The following facts surrounding the appellant's prior conviction were read out at the trial by consent:[65]
[THE PROSECUTOR]: … On Sunday, 19 July 2015 the [appellant] utilised his username … to engage in a conversation with [another] username … on social media platform Kik. The [appellant] conversed with the unknown person where he made reference to trying to access young female children and sexual acts he would commit on them ...
… [T]he [appellant] further went on to say in detail that he had just returned from a holiday in Bali where he was involved in a sexual act with a young mother with her two‑year‑old female child present. The [appellant] detailed how he tried to persuade the mother of the child to involve the child in the act and how it increased his sexual desire and drive. In that conversation, the [appellant] said and I'm quoting:
Yeah, I stood there naked with my throbbing cock and invited Lil … to suck it. She wanted to, but mum said only watch …
… yes, next time will insist Lil … sucks my cock.
And just so that it makes it clear that factual circumstances is completely fictional and it doesn't involve any real people.
[65] ts 236 ‑ 237.
The appellant's evidence
The appellant gave evidence in defence of the charges.
The appellant gave evidence about his employment history,[66] including that while working for military support companies in the United Kingdom, he had a 'top secret' security classification.[67] He also gave evidence of his personal circumstances leading up to his past conviction. In short, his marriage broke down,[68] his ex‑wife was given full custody of their children, there was a rift in his relationship with his children,[69] he experienced health issues,[70] both his parents passed away,[71] work was particularly busy for him at this time,[72] he suffered from depression[73] and he began drinking excessively.[74]
[66] ts 240 ‑ 243.
[67] ts 242.
[68] ts 244.
[69] ts 245, 247.
[70] ts 245, 246.
[71] ts 246.
[72] ts 247.
[73] ts 248.
[74] ts 247.
The appellant said, as to his past conviction, that the chat the subject of that conviction was a text‑based conversation in a chatroom[75] (as opposed to a conversation by audio or video link)[76] and that the conversation was a fantasy in that the events that he described therein never occurred.[77] He also explained that the conversation was conducted at around 4.00 am, while he was very drunk, and at a time when he was 'at a point of … low self‑esteem and self‑destruction'.[78] He said he 'was being stupid'[79] and that he did not know that it was an offence to produce written descriptions of children in a sexual manner.[80] In cross‑examination, he added that he did not recall having the chat.[81] He denied the prosecutor's suggestion that he knew very well what he was typing and that the reason he engaged in the fantasy chat was because he likes material that displays prepubescent children in a sexual manner.[82] He also denied that fellatio involving children is a sexual act that he finds exciting.[83]
[75] ts 248 ‑ 249.
[76] ts 250 ‑ 251.
[77] ts 249, 252.
[78] ts 249, 252.
[79] ts 252.
[80] ts 249.
[81] ts 261.
[82] ts 262.
[83] ts 263.
The appellant gave evidence about the nature of chatrooms and his use of them. He explained that chatrooms are a browser where users from around the world, using made‑up names, talk about various topics.[84] He explained that users would send each other photos and links. However, he would not know what is behind a link before the link is clicked on.[85] Users would entice other users to click on links by using phrases like 'this is hot, look at this', 'check this out' or 'this is a good set of pictures'.[86] He said that he used chatrooms five nights per week for a long period of time and that he would be in chatrooms for hours at a time.[87]
[84] ts 249.
[85] ts 249.
[86] ts 251.
[87] ts 251 ‑ 252.
The appellant's evidence was that it had never been suggested to him, while using chatrooms, to click on a link on the basis that the link contained CEM, child pornography or anything to do with children.[88] He never asked for pictures of CEM.[89] The appellant said that he has never clicked on a link knowing that it was a link to CEM.[90] He did say, however, confirming what he had told the police, that he has on numerous occasions clicked on links containing CEM.[91] When this occurred, he would close the window or delete the image[92] 'instantaneously' after becoming aware that the image was CEM.[93] The appellant denied that there has ever been a time when he has clicked on an image of CEM, and viewed it voyeuristically, before closing the window or deleting the image.[94]
[88] ts 251.
[89] ts 257.
[90] ts 253.
[91] ts 253, 258; VROI 6.
[92] ts 253.
[93] ts 254, 258.
[94] ts 254.
In cross‑examination, the appellant agreed with the prosecutor that he did not download or keep any CEM because he knew it was illegal,[95] and he explained he had no choice but to look at any CEM behind the links that he would click on because the image would be presented to him and because links can contain content that the user does not know of.[96]
[95] ts 263 ‑ 264.
[96] ts 264.
The appellant also explained that he would regularly click on links containing images that were not unlawful, such as images of adult women which, to the appellant's knowledge, were placed in the chatrooms consensually.[97] The appellant said that he never used search terms to find CEM on the internet.[98]
[97] ts 256.
[98] ts 256.
As regards the images the subject of count 1 specifically, the appellant confirmed the truth of what he had told the police, that he could not explain why the images were on his computer; he said he had not saved or downloaded them.[99] He was not aware that the thumbnail images were on his computer.[100] He did not know when he had received the images and he did not know whether he received the images singularly or as a package, all at once.[101] He said that he never sought out images from other chatroom users[102] and that he has never asked for any links to CEM.[103]
[99] ts 249.
[100] ts 253.
[101] ts 252.
[102] ts 252.
[103] ts 257.
Similarly, he was not aware that the video the subject of count 2 was on his laptop.[104] He also denied having viewed the video.[105]
[104] ts 249, 253, 264.
[105] ts 264.
He denied that he used Restoration routinely after using chatrooms to securely delete files from his computer.[106] He said that he was using Restoration on the day police searched his house because he had been downloading movies from the internet.[107]
[106] ts 264.
[107] ts 266 ‑ 267.
Ground of appeal
The appellant appeals on the ground that the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it was unreasonable or could not be supported.
Legal principles
The legal principles governing a ground of appeal that the verdict is unreasonable or cannot be supported having regard to the evidence are well known. They were outlined in Wells v The State of Western Australia:[108]
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[108] Wells v The State of Western Australia [2017] WASCA 27[13].
The principles relating to criminal cases that turn upon circumstantial evidence were restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in R v Baden‑Clay as follows:[109]
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[109] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47].
Thus, on appeal, the appellant must demonstrate that the jury was bound to find that there was, on the evidence, an alternative reasonable inference consistent with his innocence.
The appellant's submissions
The appellant does not take issue with the admission, as propensity evidence, of his prior conviction for producing CEM. Nor does the appellant take issue with the judge's direction.[110]
[110] Appellant's submissions [6].
The appellant asserts, as he did at trial, that there is an innocent explanation for how the CEM came onto his computer: he inadvertently opened the CEM, not knowing its nature, and he deleted it immediately.[111]
[111] Appellant's submissions [9] ‑ [10]; appeal ts 15 ‑ 16.
In substance, the appellant's written submissions summarise aspects of the evidence and then assert that, in light of all the evidence, including the parts of Mr Sumegi's evidence to which we have referred at [21], [22] and [24] above, 'the jury could not have excluded as a reasonable possibility that the appellant came by the images unsolicited and deleted them immediately, and thus the possession element had not been made out'.[112]
[112] Appellant's submissions [12].
He repeated that contention in oral submissions, submitting that Mr Sumegi's evidence was consistent with his explanation at trial as a reasonable alternative hypothesis.[113] He also submits that, in light of Mr Sumegi's evidence, the defence under s 221A(2) of the Code was made out.[114]
[113] Appeal ts 13 ‑ 14, 17.
[114] Appeal ts 14.
Disposition
We begin with the appellant's contention that it was not open for the jury to be satisfied beyond reasonable doubt in relation to the element of possession. On the facts of the present case, 'possession' bears its natural and ordinary meaning and not the extended meaning as defined in s 1(1) of the Code.
The judge directed the jury that possession means to knowingly have control or custody over something with the intention to possess it. His Honour explained each of the three requirements for possession in the following terms.[115]
[115] ts 284 ‑ 285.
First, it was necessary that the appellant had knowledge that the thing possessed is CEM; suspicion is not enough. Knowledge means that he was aware that he was in possession of CEM or believed it was likely in the sense that there was a significant or real chance that the item was CEM.
Secondly, possession requires either (a) actual physical custody; or (b) control in the sense that the appellant exercised control over the property to the exclusion of others.
Thirdly, the State must prove that the appellant had the intention to exercise control or dominion over the CEM. That is, the appellant had that intention at the time of the commission of the offence of possessing the CEM.
In our view, for the reasons that follow, the evidence led by the State sustained an inference, beyond reasonable doubt, as to each of these three requirements, to the exclusion of any alternative reasonable inference.
First, the appellant admitted that his laptop had 108 thumbnail images of CEM. The appellant controlled his laptop to the exclusion of others.[116]
[116] Search video ts 7; ts 142.
Secondly, on the evidence of Mr Sumegi, the carved files demonstrated that, though the corresponding original files were not now on the computer, they had once existed, in other words been saved, on the hard drive of the computer. Mr Sumegi's evidence was that in order for Windows to create a thumbnail, the user must save the original file to a folder on their computer and then browse to that location.[117] If the user simply clicked on a link, no thumbnail would be created.[118]
[117] ts 171, 175.
[118] ts 171, 175.
On its own, this part of Mr Sumegi's evidence might have been consistent with an inference that the appellant saved the images without being aware of their contents and that, when he subsequently opened the saved file and became aware of its contents, immediately deleted it. However, even where a jury rejects the evidence given by an accused, the evidence given, and not given, by the accused may bear upon what alternative inferences are reasonably open.[119] Given the appellant's adamant denials that he saved or downloaded any of the CEM images, there is no room for a reasonable inference that he saved the images without knowledge of their contents, opened the saved files and then immediately deleted them upon realising they were CEM. The appellant denied that he saved images and gave no evidence of browsing to the location on his computer where he had saved the images. Nor did he give any evidence concerning the deleting of files that he had saved to his laptop.
[119] R v Baden-Clay [54], [57].
Thirdly, the appellant admitted in his police interview, and in his evidence, that he was a regular user of chatrooms and that he frequently clicked on links which revealed CEM, although he denied being interested in viewing material of that kind. Although Mr Sumegi could not rule out the possibility that the appellant received all 108 images at one time, the appellant's frequent clicking on links which revealed CEM entitled the jury to reject, as not being a reasonable possibility, that all of the images arrived on the appellant's computer at one time.
Fourthly, the appellant's previous conviction revealed that, contrary to his denials, the appellant had a sexual interest in young children, at least in the context of online fantasy. The jury were entitled to reject the appellant's attempt to downplay that sexual interest and his suggestion that he must have been extremely drunk at the time he engaged in the online fantasy. The jury were entitled to think that his sexual interest in young children meant that it was more likely that he would derive sexual gratification from viewing CEM and that he would seek out such material.
Fifthly, in all these circumstances, the jury were entitled to reject the appellant's explanation that his practice of clicking on links without knowing what they were was merely stupidity.[120] The jury were entitled to conclude that his conduct was deliberate and that his true motivation was his sexual interest in young children.
[120] VROI 6.
For these reasons, in our opinion, it was well open to the jury to be satisfied beyond reasonable doubt as to each of the three requirements of possession.
That is reinforced by the fact that the credibility of the appellant's explanations, at trial and in his interview, was central to the jury's evaluation of whether the State had proved beyond reasonable doubt that the appellant had possession of the CEM and whether the appellant had made out the defence in s 221A(2) of the Code. The jury had the very significant advantage of seeing and hearing the appellant give evidence.
The critical parts of the appellant's evidence, which he asserts sustain an alternative reasonable inference, were that:
(1)he never clicked on a link knowing that it contained CEM;[121]
(2)when he clicked on a link and discovered that it contained CEM, he would close the window or delete the image;[122]
(3)he did not save or download any of the 108 images the subject of the charge.[123]
[121] ts 253.
[122] ts 253 - 254, 258.
[123] ts 249.
The appellant had made statements to substantially the same effect in his interview with the police. He told the interviewer that he clicked on links but did not download any image of CEM. He said that when he opened a link and saw CEM he would just close the window. He agreed that closing the window was not downloading the image.[124]
[124] VROI 5 ‑ 8.
Contrary to the appellant's submission,[125] this evidence was not consistent with Mr Sumegi's evidence. It was well open to the jury to reject the appellant's evidence that he did not save or download any of the 108 images, on the basis that it was inconsistent with the evidence of Mr Sumegi as to the significance of the presence of a thumbnail and concerning the carved files. Mr Sumegi's evidence was clear and definite - simply clicking on a link to view the image, without saving it to the computer, would not have led to the creation of a thumbnail. The presence of the thumbnail sustained an inference that, contrary to the appellant's evidence, the appellant had saved, to a folder on his computer, the files which had given rise to a thumbnail and had browsed to that folder on his computer. The carved files demonstrated that, though the corresponding original files were not now on the computer, they had once existed, in other words been saved, on the hard drive of the computer.
[125] Appeal ts 13 ‑ 14, 17.
The appellant's evidence was also inconsistent in itself. His evidence ‑ that any time he clicked on a link to CEM, he would close the window or delete the image ‑ is inconsistent with his denials that he saved or downloaded CEM to his computer; if he had never saved or downloaded any such material to his computer, there would not have been anything to delete.
For these reasons, it was open to the jury to draw the inference beyond reasonable doubt that the appellant possessed the CEM, and to exclude any alternative reasonable inference.
For substantially the same reasons, it was well open to the jury to find that the appellant's defence under s 221A(2) of the Code had not been made out. The onus was on the appellant to establish that defence on the balance of probabilities. He relied on what he had said in evidence, and what he had said to the police, to discharge his onus. For the reasons already given, it was well open to the jury to reject the critical parts of the appellant's evidence.
For these reasons, there is no merit in the sole ground of appeal.
Conclusion
For the above reasons, we would make the following orders:
(1)Leave to appeal on the sole ground of appeal is refused.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Orderly to the Honourable Justice Beech13 JULY 2020
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