Bounds v The Queen
[2006] HCATrans 236
[2006] HCATrans 236
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P54 of 2005
B e t w e e n -
MATTHEW DAVID BOUNDS
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 16 MAY 2006, AT 10.23 AM
Copyright in the High Court of Australia
MR I.L.K. MARSHALL: May it please your Honours, I appear with my learned friend, MR P.G. GIUDICE, for the appellant. (instructed by Moss & Co)
MR K.P. BATES: If the Court pleases, I appear with my learned friend, MR L.M. FOX, for the respondent. (instructed by Director of Public Prosecutions for Western Australia)
GLEESON CJ: Yes, Mr Marshall.
MR MARSHALL: Your Honours, there is the preliminary point of the summons to amend the grounds of appeal.
GLEESON CJ: Is that opposed, Mr Bates?
MR BATES: We would oppose it for three reasons. Firstly, the ground was not argued before the criminal appeal. Secondly, it was expressly disavowed by counsel at the special leave hearing. Thirdly, it has only been filed the day before this hearing after all the submissions have been filed.
GLEESON CJ: Then, Mr Marshall, you can pursue your application in the course of making your submissions and we will hear Mr Bates’ response to it in the course of his submissions and we will decide in due course.
MR MARSHALL: Thank you, your Honour. There are basically four points here and they all arise out of the misjoinder. The first of the points that we would raise is that either the entire indictment was a nullity or there was a partial nullity. The effect or consequence of the entire indictment being a nullity or it being a partial nullity is a significant irregularity.
GLEESON CJ: Under the Criminal Code (WA) is there a procedure for raising arguments about the validity of an indictment?
MR MARSHALL: Yes, you can demur to the indictment.
GLEESON CJ: What happens if you do not follow that procedure?
MR MARSHALL: You are left in a position like we are now.
GLEESON CJ: What is that?
MR MARSHALL: Which is seeking justice according to law.
GLEESON CJ: You mean you can ignore the rules about when you are supposed to complain about the indictment and then take the point in the High Court?
MR MARSHALL: No, you cannot ignore the rules. Yes, the Criminal Code (WA) does have – when you are called upon to plead you can demur.
GLEESON CJ: What does it say about taking objections to the indictment? There was no objection taken to this indictment, was there?
MR MARSHALL: No, the position here, your Honour, is that neither the prosecutor, the defence counsel or the trial judge were alive to the position that one of the counts was a summary matter.
GLEESON CJ: I think what we would like to understand a little better than we do at the moment is what the Code says about that sort of defect in an indictment.
HAYNE J: For a start, we need to get hold of the right version of the Code, do we not?
MR MARSHALL: Yes, we do.
HAYNE J: We need to go back to a Reprint 10 as at February 2003 because the trial was in May 2003, was it not?
MR MARSHALL: Yes, your Honour is quite right, we do have to go back. The Criminal Procedure Act has taken over and the material provisions have been repealed from the Code that we are talking about.
HAYNE J: I think that may take us then to section 590 of the Code as it stood in 2003 and, in particular, section 590 entitled “Formal defects”, the first paragraph of which tells you what is not open to objection and the second paragraph of which says that:
Every objection to an indictment for any defect apparent on its face must be taken by motion to quash the indictment before the jury is sworn, and not afterwards –
Now, what consequence, if any, follows from that provision?
MR MARSHALL: The consequence that follows from that is that this was not an indictment under the meaning of the Criminal Code (WA). It is only an indictment if it contains indictable offences. Under the law of Western Australia the Criminal Code provides for cases triable upon indictment and an indictment is a document which is defined in that Criminal Code to mean:
a written charge preferred against an accused person in order to his trial before some court other than justices exercising summary jurisdiction –
and 578, which is the chapter which sets out indictments:
Nature of indictments
When a person charged with an indictable offence has been committed for trial, and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.
In this particular trial, the document was not an indictment under the terms of the Criminal Code (WA) because it contained a summary offence.
KIRBY J: So it was an indictment as to the first count.
MR MARSHALL: It was an indictment – well, that depends ‑ ‑ ‑
KIRBY J: It contained extraneous matter, on your submission.
MR MARSHALL: What we say is, as to the first count, that certainly was an indictable offence, but the fact that it was in a document along with a summary matter, it is certainly arguable that it was not an indictment.
KIRBY J: Yes, but if you do not take that point the Code, at least in respect to the first count, appears to say that you cannot take it afterwards, and that is for the very good reason that people dream up or see all sorts of problems later and that creates an instability in the outcome of trials which are the solemn taking of the verdict of the jury and the solemn entry of the order of the Court on conviction or acquittal.
MR MARSHALL: I think one of the problems that we have is this 21‑year‑old accused person, through no fault of his, is brought before trial on an indictment which is ‑ ‑ ‑
GLEESON CJ: Well, hang on, he was represented by counsel.
MR MARSHALL: Yes.
GLEESON CJ: There are references in your written submissions about it being forced to trial. He was represented by counsel.
MR MARSHALL: Yes, and counsel made an error, the judge made an error.
GLEESON CJ: So you say, but on the face of it, section 590(2) of the Criminal Code seems to say that objections to indictments for defects apparent on their face may not be taken after trial.
MR MARSHALL: And my answer to that is that this was not an indictment.
GLEESON CJ: I wonder if you could just make clear to us exactly why – and I realise everybody is assuming this is so – the offence the subject of count 2 in the indictment could not be dealt with by trial before a jury. I am not suggesting you are wrong about that, but I would just like to understand why it is so.
MR MARSHALL: The Censorship Act section concerning this particular offence set out that it was a summary matter, not one triable upon indictment.
GLEESON CJ: The only copy of the Censorship Act we seem to have is in the respondent’s bundle of authorities; is that right?
MR MARSHALL: I think that is right, although I thought that the two sections had been annexed to the appellant’s submissions.
KIRBY J: Can I tell you what is going through my mind, Mr Marshall. I can understand very well if you have been denied a trial by jury, a complaint about that, but where you have been given a trial by jury, it seems at least odd that you should be complaining that you have a super trial with all the accoutrements of a jury trial and that you are saying that that cannot be done by the District Court of Western Australia, a superior court, or that it renders what is done, the solemn taking of the jury’s verdict and so on, as a nullity. It does not seem a sensible outcome. It is not the same as not getting the benefits of a jury trial. This is where you have something extra that you did not have to get.
MR MARSHALL: We did not want this super trial.
KIRBY J: You did not raise any objection to it.
MR MARSHALL: No, I am sorry, your Honour. Certainly we do not want a super trial because the effect of the super trial is to have both counts heard together and the bestiality and the obscene images are all thrown in before the jury.
GLEESON CJ: How did the jury know – and, for that matter, how do we know – that the images the subject of count 2 related to bestiality? There was an admission made at the commencement of the trial which is recorded on page 16 of the appeal book that, as I understand it, had the consequence that the jury never got to see any of these images.
MR MARSHALL: No.
GLEESON CJ: Then how did the jury know that the images the subject of count 2 were images of bestiality?
MR MARSHALL: You will need to look, your Honour, at page 69 of the appeal book for a start. At page 69 is the evidence of Mr Thomas, who talks of what he found.
GLEESON CJ: He refers to the bestiality movie, but was that not exhibit 11?
MR MARSHALL: Yes, it was:
“A quantity of items appearing to be unlawful in content were found. These include a bestiality movie and images of child pornography, bestiality and with obscene content ‑ ‑ ‑
GLEESON CJ: “(urination).”
MR MARSHALL: Yes, a woman and urination. There was no question – I think it was even opened on the basis that there were eight indecent and obscene images and three of bestiality. Of the 11 images the subject of count 2, eight of them were indecent and obscene and three of them were bestiality.
GLEESON CJ: I would like to just see that in the transcript.
KIRBY J: You make a point in your written submissions that the jury was contaminated by the material on the second count?
MR MARSHALL: Yes.
KIRBY J: The suggestion that is being put to you is that because of the concession by counsel at the beginning of the trial, the jury did not really get contaminated by this material on the second count because they were not shown the images, they did not see the film and all they heard was that there was an obscene material on the second count.
MR MARSHALL: Your Honour says “all they heard”, but if one is standing trial on a charge of child pornography then, in addition to that, the jury hear about him being not only in possession of child pornography images but also images of bestiality, images of indecent and obscene – including a woman in the way that it was, that surely contaminates the process ‑ ‑ ‑
GLEESON CJ: You may be right, but what we would like you to show us is what they were told.
MR MARSHALL: At page 79C there is the question of the bestiality images. The prosecutor says:
These are three images that are subject of the second count?---Yes.
So that is 79C and it refers to three bestiality images and 80A, the top of page 80 ‑ ‑ ‑
GLEESON CJ: What they are talking about there is exhibit 9.
MR MARSHALL: What they are talking about there is count 2.
GLEESON CJ: It is exhibit 9, do you see? You see line B on the page?
MR MARSHALL: It is in fact exhibit 10. Exhibit 9 is the 105 child pornography images. Exhibit 10, relating to count 2, is the 11 images, three of which images being the subject of the second count, as appears at 79C to D, are bestiality images.
GLEESON CJ: Where do we see the exhibit that is being referred to on page 69 between C and D?
MR MARSHALL: At page 69?
GLEESON CJ: No, where do we see the exhibit? It is a reference to an exhibit.
MR MARSHALL: Is your Honour directing my attention to page 69?
GLEESON CJ: No, on page 79, which you are talking about now, Mr Porter is talking about a document. You see he uses words like, “If we move down there, you have a heading”. Do you see that?
MR MARSHALL: Yes, I see that.
GLEESON CJ: Where can we see the document ‑ ‑ ‑
MR MARSHALL: That is not in evidence. It is a document which Mr Thomas had which he was looking at when he gave his evidence. He is the one who gave the evidence about what was there ‑ ‑ ‑
KIRBY J: But did that document – and you say that is exhibit 10 ‑ ‑ ‑
MR MARSHALL: What I am saying is that exhibit 10 is a document relating to the count 2 images. It is at page 156 of the appeal book and you will see at page 156 there are three matters concerning count 2 – I am sorry, your Honour, I have just misled you. Exhibit 10 is on page 157, I beg your pardon, and the first lot of images – you see there is “File Name” No 1 so you can forget about that. So there are two images, “untitled28.bmp”. So there are two on page 157. On page 158 there is one, “Horse”, et cetera. So that is three and then the other eight are on page 159. There again forget the No 1 which just simply puts the file name in. There are 8 there. So that is the 11 images that are referred to in relation to count 2.
KIRBY J: So the only actual reference to any sexual activity with animals is the use of the word “horse” in the description of the title of one of them?
MR MARSHALL: Yes, but if I could just ‑ ‑ ‑
KIRBY J: It is hardly very contaminating material.
MR MARSHALL: No, but, your Honour, could I just refer you to page 69 where Mr Thomas gave his evidence. I am sure your Honour will have read Mr Thomas’ description.
KIRBY J: I have not read the evidence. I do not have the time to read all the evidence of every appeal book. You should see some appeal books, they are 50 volumes.
MR MARSHALL: All right. Page 69, your Honour, Mr Thomas tells us that there are:
“A quantity of items appearing to be unlawful in content -
The bestiality movie, that is exhibit 11, but then there are -
images of child pornography, bestiality and with obscene content (urination).”
Page 75C, there is reference again to count 2 and the three images of bestiality and eight obscene images. It is between the letters D and E on page 75. In addition to that, during the course of the hearing a witness, Mr Frazer - I think he was a classmate of the appellant - was cross‑examined on page 61C:
Did you download any pictures of bestiality on the system?---No.
Any pictures of women urinating onto the system?---No.
Then, on page 62 between B and C, he is asked about that sort of material as well. In opening at page 13, and this is where ‑ ‑ ‑
KIRBY J: There is a mention of bestiality on 62B.
MR MARSHALL: Yes there is. In opening at page 13, there is reference to the fact that count 2, at the letter B “relates to 11 images” and there is reference to the fact that ‑ how the jury will be:
they are indecent and obscene images with respect to the second count so you won’t be put to what is a terrible chore of actually having to look at these things
KIRBY J: What page is this?
MR MARSHALL: That is page 13 of the opening.
KIRBY J: Is this the Crown opening?
MR MARSHALL: Yes it is, your Honour.
CALLINAN J: Whereabouts, I am sorry?
MR MARSHALL: Between B and C, your Honour, on page 13.
GLEESON CJ: Mr Marshall, the allegation against your client was that he was in possession of 111 images.
MR MARSHALL: Make that 105 plus 11.
GLEESON CJ: 116 images.
MR MARSHALL: Yes.
GLEESON CJ: And 105 of them were by agreement, by concession, images of child pornography.
MR MARSHALL: Yes.
GLEESON CJ: If your client was in possession of those, he had contravened section 60 of the Censorship Act which carried a penalty of a term of imprisonment.
MR MARSHALL: Yes.
GLEESON CJ: Eleven of the 116 images had nothing to do with children, but by concession they were obscene images.
MR MARSHALL: Yes.
GLEESON CJ: If your client was in possession of those, he had contravened section 59(5) of the Censorship Act, which carried a maximum penalty of a fine of $5000. What is it that produced the consequence that he could not be the subject of a proceeding on indictment in respect of the alleged contravention of section 59(5)?
MR MARSHALL: There is no legislation, there is no mechanism by which a summary matter can be tried upon indictment in Western Australia. We have crimes and misdemeanours which are triable on indictment. We have summary matters which are triable before justices. We have indictable offences which are triable summarily. We do not have summary offences which are triable upon indictment. That is just the Code.
GLEESON CJ: You may be right about this, but I am just inviting you to take us to the statutory provisions that produce that consequence because we have to write a judgment at the end of all this and we have to explain in the judgment why it is so. I am not suggesting that you are wrong about this; I am just asking you to tell us by reference to the legislation why it is so.
KIRBY J: There are some lawyers who are barbarians and come from non‑Code States.
MR MARSHALL: Under section 3 of our Code, your Honours, there are offences of three kinds: “crimes, misdemeanours and simple offences”. Crimes and misdemeanours are indictable offences. By reference to section 1, the definition of “indictable offence”:
means an offence a complaint of which is, unless otherwise expressly stated by the Code, triable only by jury.
“Indictment” is also defined and I have already touched on that, but it is a charge against an accused person in order to – there seems to be a word missing, but:
a written charge preferred against an accused person in order to his trial before some court other than justices exercising summary jurisdiction –
This particular matter arises from the Censorship Act. Normally indictments go through, they are settled by the DPP and there is not a problem of this nature.
GLEESON CJ: Would there have been committal proceedings in this case?
MR MARSHALL: No. What happens now, there is no such thing as committal proceedings; there is just a committal mention date and there is a committal for trial.
GLEESON CJ: A paper committal?
MR MARSHALL: Yes, without any right to challenge in ‑ ‑ ‑
GLEESON CJ: But would these charges have gone before a magistrate first?
MR MARSHALL: Yes. It starts off with a complaint before a magistrate and then the magistrate then, when the accused is before the court, remands it off to a committal mention date because he cannot deal with it. Technically he could have dealt with one of them but it went off to the committal mention date and he was then committed to the District Court for trial. An indictment was then prepared and the matter got before the District Court upon indictment.
GLEESON CJ: So the problem that you have been explaining to us was overlooked by the committing magistrate and by the District Court judge and by the prosecutor and by trial counsel for your client?
MR MARSHALL: Yes.
GLEESON CJ: They all overlooked the fact that one of the counts in this indictment, being for a simple offence, could not lawfully be tried on indictment?
MR MARSHALL: Correct. I do not want to – with the magistrate, I cannot be 100 per cent sure about that, but certainly all the others, yes.
HAYNE J: Now, what distinguishes the offences created by sections 59 and 60 is to be determined having regard, amongst other things, to the then provisions of the Interpretation Act 1984, section 67, I think. Is that right?
MR MARSHALL: Yes, I am not sure about that. Just looking at his Honour Justice Steytler’s judgment at page 219, paragraph 30, there is reference, your Honour, to the Interpretation Act, section 67, and he mentions:
indictable and simple offences. An offence which is not otherwise designated is a simple offence.
But I thought ‑ ‑ ‑
HAYNE J: Just apropos of that, I need some help to understand or to get hold of the proper form of section 67 as it then stood, because paragraph 30 of the reasons for judgment is to be contrasted with paragraph 99 of the reasons for judgment of Justice McKechnie. Paragraph 99 contains 67(1a):
An offence designated as a crime or as a misdemeanour is an indictable offence.
Now, was that provision in force at the time of this trial, because if it was, then the distinction comes, if you go to the Censorship Act – the distinction lies in section 60 saying at the foot of subsection (4):
A person who possesses . . . is guilty of a crime –
That may be contrasted with section 59 where a person who contravenes commits an offence.
MR MARSHALL: Yes.
HAYNE J: Now, I think that is the statutory path but ‑ ‑ ‑
MR MARSHALL: Your Honours, we can safely proceed on the basis that the Interpretation Act 1984 was that in force at the time. I do not think there is any argument about that. I have not checked it.
HAYNE J: Well, I have tried to and I got into a state of confusion.
MR MARSHALL: But your Honour can see that the – and I do not think there is any argument that the Court of Appeal in Western Australia accepted that the count 2 was a nullity, should never have been ‑ ‑ ‑
KIRBY J: We know that, but we have our own duties.
MR MARSHALL: Yes, I understand.
KIRBY J: We have to check these things and not infrequently you find that things that were accepted or assumed turn out on closer inspection to be wrong. People can get too close to their own legislation. Now, there is nothing in 67 that talks of a crime. It talks of offences, simple offences, but it does not talk of a crime. So it does not provide a formula to pick up to use in section 60(4) of the Censorship Act.
MR MARSHALL: But we must remember, of course, that indictable offences necessarily are crimes or misdemeanours. That is how an indictable offence is defined.
KIRBY J: But you normally think of these things fitting together like a glove to provide the formula that parliamentary counsel picks up somewhere else. I think Mr Bates might have something to throw on the light.
MR MARSHALL: I am looking at paragraph 99 of the judgment at page 237 and, in particular ‑ ‑ ‑
KIRBY J: I see. Well, in (1a) it says ‑ ‑ ‑
MR MARSHALL: ‑ ‑ ‑ page 238:
(2) An offence not otherwise designated is a simple offence.
HAYNE J: I do not know when that provision came in, (1a). I do not know when (1a) came in. The print as at 1999, and I thought I had done an as at date search on the website as at 2003, suggested that 67(1a) was not then in the Interpretation Act. Now, there we are.
KIRBY J: Now, (1a) does refer to a crime.
MR MARSHALL: Yes, but (2) seemed to suggest it is a simple offence.
HAYNE J: Yes. Well, assume it to be a simple offence, what is it that then means that the District Court does not have jurisdiction to deal with it?
MR MARSHALL: The District Court criminal jurisdiction under the District Court Act does not permit them to deal with that offence.
KIRBY J: It is, of course, a statutory court set up with – though it is a superior court by the statute, as I understand it, it is a court of limited jurisdiction. So it only gets the jurisdiction that is specifically conferred on it and matters incidental to that. So where is it given jurisdiction in criminal offences?
MR MARSHALL: Your Honour, the best answer perhaps is paragraph 96 at page 237 of the appeal book which refers to:
The District Court’s criminal jurisdiction arises under s 8 and s 42 of the District Court of Western Australia Act1969.
CRENNAN J: Does it have jurisdiction if a request to deal with the simple offence is made?
MR MARSHALL: There is a section, your Honour, on a plea of guilty you can put in a section 32 notice, at paragraph 100 which is on page 238. Yes, your Honour, that arises from the Sentencing Act. Under section 32, you can make a request to deal with a simple offence. If someone has committed several indictable offences, they are pleading guilty and they want to get all their affairs in order, they can have any summary offences and I think you put in a notice with those summary offences and you can be sentenced for the whole lot.
KIRBY J: Well, we need to know what that is and that there is no other provision equivalent to that saying that the District Court can in certain cases deal with indictable crimes and any connected or consented simple offences.
MR MARSHALL: Well, section 32(4) makes it clear that:
For the purposes of this section a superior court is to be taken to have jurisdiction to deal with simple offences.
So it specifically confers jurisdiction to deal with summary offences.
GLEESON CJ: In relation to sentencing?
MR MARSHALL: Yes, in relation to sentencing.
GLEESON CJ: This is what Justice McKechnie deals with on page 238 of the appeal book at paragraph B.
MR MARSHALL: Yes. That is what I have just been reading from, your Honour. Yes.
KIRBY J: So that is not available for trial, in your submission.
MR MARSHALL: No, it is not available for trial.
KIRBY J: Your client pleaded not guilty to this on both counts?
MR MARSHALL: He did.
KIRBY J: So that this was a trial and you say therefore the Sentencing Act section 32(4) is not engaged. Therefore you are back to whatever jurisdiction the District Court is given, notably by its own Act. What is that jurisdiction?
MR MARSHALL: To deal with indictable offences. Paragraph 96 – I do not have the District Court Act here but sections 8 and 32 give the jurisdiction and powers of the Supreme Court in respect of any indictable offence.
KIRBY J: We are going to have to check this and I think if you do not have the Acts here we cannot deal with it at the moment. We are going to need a note on this ‑ ‑ ‑
MR MARSHALL: Yes, I can certainly attend to that.
KIRBY J: It appears to have been assumed by the judges of the Court of Criminal Appeal that there was no jurisdiction in the District Court to deal with count 2.
MR MARSHALL: None.
KIRBY J: But we want it in black and white.
MR MARSHALL: I can undertake to put in a note, your Honour. I will check it with Mr Bates first and I will put in a note.
GLEESON CJ: Where are the remarks on sentence of the sentencing judge, Judge Muller?
MR MARSHALL: Not here. Not in the appeal book, your Honour.
GLEESON CJ: What was the sentence imposed by Judge Muller?
MR MARSHALL: A suspended sentence of imprisonment.
GLEESON CJ: What was the sentence imposed under section 59?
MR MARSHALL: I am just getting that. Your Honour, I am reading from the application book at page 216 between the letters C and D. The sentencing remarks of his Honour were as follows:
You will be sentenced as followed: count 1, 18 months’ imprisonment; count 2, 6 months’ imprisonment. If the two terms of imprisonment were to be served immediately, I would have ordered that they were to be served concurrently with each other.
GLEESON CJ: Sorry, where are you reading?
MR MARSHALL: I am reading from the special leave application book, page ‑ ‑ ‑
KIRBY J: We do not have that.
MR MARSHALL: You do not have that, I know. I know.
GLEESON CJ: Are you telling us that the judge sentenced him to a term of imprisonment for an offence that carried as its maximum penalty a fine of $5000?
MR MARSHALL: Count?
KIRBY J: On count 2.
MR MARSHALL: The penalty under the Act is in the case of an individual $5000 or imprisonment for 6 months.
GLEESON CJ: Where is that?
MR MARSHALL: It is section 59(8):
A person who contravenes subsection ‑ ‑ ‑
GLEESON CJ: Well, we have the wrong version of the statute. The version of the statute with which we have been provided by the respondent in 59(8) reads as follows:
A person who contravenes subsection (2), (4), (5) or (6) commits an offence and is liable to a penalty of $5 000.
CALLINAN J: Mr Marshall, this is hopeless. We must have the correct legislation and we must have all of the legislation including the District Court Act and we must have it, really, before the appeal finishes.
MR MARSHALL: Yes, I will attend to that.
CALLINAN J: I wonder whether the respondent can help us out in relation to these? Are there instructing solicitors in Court?
MR MARSHALL: No.
CALLINAN J: Well, it is very difficult. You are talking about something. We do not have it before us.
MR MARSHALL: Yes. Look, I will need to check whether at the time of sentencing there was an alternative of 5000 or six months imprisonment.
CALLINAN J: But it may be critical.
MR MARSHALL: And if what has been put in by the respondent came as a result of an amendment, I will check that out. But certainly the ‑ ‑ ‑
KIRBY J: When did the amendment take effect and did it apply to the offence of your client, the alleged offence on count 2?
MR MARSHALL: I will follow that through.
GLEESON CJ: If what you are saying is right, what you say is a simple offence carried a penalty of imprisonment, is that right?
MR MARSHALL: Yes.
GLEESON CJ: There are some simple offences, are there, that carry penalties of imprisonment?
MR MARSHALL: There are. The magistrate’s powers are generally to sentence up to a period of six months for summary offences, but various statutes, such as the Misuse of Drugs Act, gives them wider powers to sentence.
GLEESON CJ: Where do we find in the appeal book the sentence imposed by Judge Muller?
KIRBY J: It is there because I remember reading it.
MR MARSHALL: Yes, the only place I could find it is in the application book. I do not recall it being – unless it was ‑ ‑ ‑
KIRBY J: It might have been in your submissions, somewhere there. Because essentially it was a suspended sentence, was it not?
MR MARSHALL: It was, it was.
KIRBY J: It seemed a quite, if I can say so, sensible sentence.
MR MARSHALL: He served six weeks imprisonment and then by the time we got to sentence, taking into account the six weeks served and the age, et cetera, no previous convictions and ‑ ‑ ‑
GLEESON CJ: But what did Judge Muller do with him in relation to the breach of section 59?
MR MARSHALL: Sentenced him to six months imprisonment.
GLEESON CJ: Where are you reading from?
MR MARSHALL: Page 216 of the application book.
GLEESON CJ: Thank you.
MR MARSHALL: Not the appeal book, the application book.
KIRBY J: Which we do not have.
GLEESON CJ: Which we do not have.
MR MARSHALL: No. Well, I was present at sentence and I made a note and I can tell you what the sentence was. Your Honours, I can ask my learned friend, Mr Giudice, to immediately ‑ ‑ ‑
GLEESON CJ: Would he have a copy of the remarks on sentence? There seems to be a view abroad which we are trying to get rid of by amendment to our Rules that in a conviction appeal the remarks on sentence are irrelevant. Nothing could be further from the truth. The remarks on sentence inform the Court of the material that used to be in what was called a judge’s report to the Court of Criminal Appeal. The remarks on sentence are the most convenient source of finding out how the trial judge saw the case which is often very important for appellate courts. So if we could have the remarks on sentence of Judge Muller it would be very helpful to us.
MR MARSHALL: I can get those photocopied as soon as possible.
GLEESON CJ: If you hand up one copy, we will get them photocopied.
MR MARSHALL: Your Honour, I am handing the application book which is opened at page 216 and it sets out – sorry. The pages where his Honour made the sentencing remarks are in the application book and I can hand them to your Honour, page 211 through to the end.
GLEESON CJ: Thank you very much.
CALLINAN J: Mr Marshall, for my part I need to be clear about one thing. Did the jury see any of the bestiality images?
MR MARSHALL: No.
CALLINAN J: Did they see any film or anything of that ‑ ‑ ‑
MR MARSHALL: No.
CALLINAN J: So the reference at the top of page 80, for example, where the prosecutor says “Now, there are two images you have there”, and so on, and there is a reference I think to “hard copies” there, that is a hard copy of the documents at page 158.
MR MARSHALL: Yes.
CALLINAN J: So we can take it the jury never saw any hard copy or any images of actual bestiality?
MR MARSHALL: That is absolutely correct. I checked that out myself. I was a bit confused when I read that as well.
CALLINAN J: And no film of any bestiality?
MR MARSHALL: No.
CALLINAN J: What about the other images? Did they see them?
MR MARSHALL: No.
CALLINAN J: So they never saw any of the images?
MR MARSHALL: No, it was not an issue.
CRENNAN J: They just saw what computer people call the pathways?
MR MARSHALL: Yes, and they are in those documents that are in the appeal book.
KIRBY J: Can you understand that in those circumstances where there is otherwise quite a strong Crown case against your client by reference to the times he was there and so on that your argument of contamination begins to look rather weak? All you have is about five police statements referring to the word “bestiality” and the word “horse” in one of the descriptions of the title of one of the films, but it is very much in the minor key. It is not really a very significant factual matter that was in the minds of the jury and certainly they did not the potentially prejudicial material of films or pictures or hard copies that might with a particular jury cause contamination, shock, and therefore prejudice you on the first count of the indictment.
MR MARSHALL: The accused was in the position of going to trial when sure, the images of bestiality, three of those, the images of the woman urinating and things like that were not physically in there, they did not see them. But to say that a jury could not be prejudiced against someone in those circumstances - fairness would demand that - of course a jury could easily be prejudiced. They do not actually have to see the images when they have heard about them, when they know what they are, bestiality, and we know what bestiality is. You do not have to actually see the physical images. If one is drawing a distinction, “You need to see the images before you can have real prejudice”, I will be very surprised. The fact that he not only comes before – not only as a child pornographer but also someone who – a separate and distinct perverted sort of conduct being in possession of bestiality and obscene and indecent images. I mean, what chance did he have?
KIRBY J: The law makes the possession of child pornography a serious and imprisonable offence.
MR MARSHALL: Yes.
KIRBY J: But the law in Western Australia attaches to the other images quite a modest penalty, no doubt in keeping with the values of the times. I mean, the jury comes from the general community and knows that there is a lot of pornography in the community including on the Internet and, therefore, to have a policeman on five occasions use the one word “bestiality” in the midst of a crime which is about the more serious offence of child pornography, which is a serious offence, that Parliament has made a serious offence, does not seem to be a very contaminating element in that context. The seriousness is the child pornography.
MR MARSHALL: Your Honour, this was a case where his credibility was in issue. He said that, “I did not possess those items. They were downloaded but I did not open them, I did not possess them - the only ones I knew about were five, I downloaded five, what I thought to be images of the band, Metallica, but I did not download any of those other ones and I did not open them”. So, when his credibility is in issue and the jury are faced with – starts off in opening and in the opening address it then goes through to the closing address - they are reminded about these things and as I say ‑ ‑ ‑
KIRBY J: Is bestiality mentioned in the closing address of the Crown or of the defence?
MR MARSHALL: Page 169A. That is the defence closing.
KIRBY J: There it is just “about indecent and obscene images”. Yes, I see there is a ‑ ‑ ‑
MR MARSHALL: Yes, see that. I cannot see it in the closing address but that is what the case was about. It is not mentioned in the Crown address, my learned friend, Mr Bates, reminds me and I thank him for that. The Crown were cross-examining Mr Frazer which I have already touched on about bestiality and women urinating.
KIRBY J: Did you say there was no mention of bestiality in the Crown’s ‑ ‑ ‑
MR MARSHALL: Yes, accepting what my learned friend, Mr Bates, says about that. When it came to his Honour’s summing‑up, necessarily he would have had to touch on that. The summing‑up commenced at page 190 and I am just checking to see what, if anything, his Honour said about that. He did in the sense of ‑ ‑ ‑
KIRBY J: He says at 195 in the middle of the page:
child pornography in relation to the first count and obscene articles in relation to the second count.
So he does not really go into the details.
MR MARSHALL: Yes, and then on page 196 he deals – you see between B and C, his Honour says, “I refer to exhibit 13.” Your Honours, that should read “exhibit 12”, which is a website list of allegedly pornographic material, and he goes on to say:
I refer also to exhibit 14 which was allegedly a bestiality movie.
That should read “exhibit 11” and that is to be found at page 160. The website list that I am referring to is at page 161 and that contains descriptive material and then of course his Honour deals with it, saying how they can use those two items – and I am reading from 196C:
The relevance of this material if you find it to have been pornographic and to have been stored by the accused with knowledge of its contents is that it may demonstrate an ongoing propensity by the accused to access material that is clearly obscene and objectionable, and for that reason may be relevant to prove that he committed the offences charged in the indictment –
If I can just stop there, that is not in accordance with Pfennig. Just to say that you can use that material for the reason that it may be relevant to prove that he committed the offences charged in the indictment, that seems to suggest propensity for the sake of propensity rather than it being allied to ‑ ‑ ‑
KIRBY J: That is a different issue.
MR MARSHALL: It is a different issue ‑ ‑ ‑
KIRBY J: At the moment we are concentrating on contamination.
MR MARSHALL: Well, that is part of the contamination here, and the reason it arises is because those ‑ ‑ ‑
KIRBY J: Well, your point has to be that you were entitled to a trial which focused only on child pornography and you were entitled to have a trial without any reference whatever to issues of bestiality, sex with animals, or matters of that kind, and that it was hard enough for you to face the trial on child pornography without having to have other things thrown in.
MR MARSHALL: Yes, and at page 244D, his Honour Justice McKechnie puts it:
There is no necessary causal link in the chain of reasoning which required the prosecution to lead evidence of the possession of obscene and indecent material to sustain proof on count 1.
There is no causal link ‑ ‑ ‑
KIRBY J: Justice Murray thought that there was a causal link on the basis that if you have one form of pornography, you may be prone to have another form.
MR MARSHALL: He had some proliferation argument which, in my respectful submission to his Honour, is not appropriate.
KIRBY J: I think that might have been raised only in the reasons. I think Justice Callinan asked questions of Mr Giudice about this in the special leave hearing. This was not something which had been contended for either in the trial or in the appeal was Justice Murray’s explanation when he came to write his reasons. Is that correct?
MR MARSHALL: Yes, I think that is right. Your Honours, I do not know whether I have been able to convey this but what I am trying to convey is that this misjoinder carried with it a lot of luggage in the sense that the conviction of count 1 which we are seeking to overturn was not tried on its merits. It had all this luggage with it. It had this other material ‑ ‑ ‑
KIRBY J: It was not a lot of luggage. I would not go putting a lot of emphasis on it. It is about five words where the word “bestiality” is used by a policeman.
MR MARSHALL: No, can I just put it this way? We say it is more than just that. The very fact that someone is in possession of those images, that in itself could well give rise to strong feelings about – people may well have strong feelings about something like bestiality and it really ‑ ‑ ‑
KIRBY J: They are rather more likely to have strong feelings about child pornography.
GLEESON CJ: The legislature obviously does. The legislature regards child pornography as a much more serious offence than possession of these other images.
KIRBY J: Can I say, because that has to involve the degradation of children, whereas the bestiality so‑called is involving animal life and it is not ‑ but I suppose also the degradation of those who take part in it.
MR MARSHALL: They are all God’s creatures and dealing with an animal in that way is ‑ ‑ ‑
GLEESON CJ: Now, Mr Marshall, I still want to get to the bottom of this question of the maximum available penalty for section 59. I see that you represented your client at the sentencing proceedings ‑ ‑ ‑
MR MARSHALL: I did.
GLEESON CJ: ‑ ‑ ‑ and the judge obviously dealt with him on the basis that a sentence of imprisonment was an available sentence for a contravention of section 59, but the version of section 59 that we have been given by the respondent does not seem to bear that out. How come?
MR MARSHALL: Yes. Well, I will just have to check it out because I cannot remember at the time and ‑ ‑ ‑
GLEESON CJ: All right. The second question is this: is there something in the Criminal Code or in any other relevant statute dealing specifically with misjoinder?
MR MARSHALL: Yes, there is. The section in the Criminal Code which permits joinder also carries with it a proviso that provided the accused is not prejudiced. So if I could just turn up that section on joinder of counts, but it is not a misjoinder of the nature that we are looking at. It is one of those misjoinders in relation to over‑indicting, you know, when you have too many ‑ ‑ ‑
GLEESON CJ: What is the section?
MR MARSHALL: It is section 585. Your Honour will see when I say the proviso, it just says:
But, if in any case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately.
See, we start off with the proposition that an indictment should just have one charge only.
GLEESON CJ: That is part of the context in which section 590 appears, is it not? Sections 585 and following deal with joinder and, by implication, misjoinder. They tell you what you can do and, by implication, what you cannot do. Then section 590 says if you want to object to an indictment, this is how and when you do it and not otherwise.
MR MARSHALL: But those formal defects such as the wrong person – you see under the law of Western Australia the Attorney‑General or someone authorised on his behalf has to sign indictments. Formal defects such as – you cannot take the point that ‑ ‑ ‑
HAYNE J: Section 590 tells you what is not available as an objection to an indictment but it also tells you in the second paragraph something about a radically separate subject matter, namely “objection to an indictment for any defect apparent on its face”.
MR MARSHALL: Obviously, your Honour, a section 623 demurrer – under section 623 of the Code, you can demur. That is obviously what should have happened.
GLEESON CJ: But is not the effect of section 590 that what occurred here was an irregularity but not something that meant that the indictment can now be regarded as wholly bad and that the test for the Court of Criminal Appeal to apply, there being an irregularity, is: was there a substantial miscarriage of justice?
HAYNE J: What is said in 590 is then to be read with what is said in 616 about pleas.
MR MARSHALL: Yes, 616(7), you can plead that the court has no jurisdiction to try him for the offence.
HAYNE J: Which takes you into 621 and ultimately takes you to that provision, 622, which puts you on trial by jury. Is not the scheme 590, you have to apply to quash, you have to apply to quash before the jury is sworn; if you do not, 616 applies; you then have either to plead or demur? One of the pleas is no jurisdiction. If a plea is made of no jurisdiction, 621 is engaged. If you do not plead no jurisdiction but plead not guilty, 622 is engaged and the issues raised by the plea shall be tried by a jury.
MR MARSHALL: It says “subject to Chapter LXIVA” and I am just not sure what that says.
HAYNE J: That is trial by judge alone, where you can elect for trial by judge alone.
KIRBY J: Your case has to be all of this assumes that you are in the right place and if the District Court is not by Parliament given the jurisdiction and power to try the matter, then it does not have that power and the Code cannot fix it up. That has to be your case.
MR MARSHALL: Yes, that is exactly right.
KIRBY J: That, of course, has a lot of inconvenience about it if that is correct because you could have a person who is sentenced and serves their sentence, as in fact your client has ‑ ‑ ‑
MR MARSHALL: Yes, he has.
KIRBY J: ‑ ‑ ‑ and in some cases it may be sentences of imprisonment actually carried out and this defect is found only later and then the law has to try to unravel all of that, whereas the course that Justice Hayne has suggested may avoid that rather forbidden consequence.
MR MARSHALL: Yes, it seems a high price to pay to get a conviction for something like this because the State puts in an erroneous indictment.
GLEESON CJ: This is an adversarial system of justice and your client has at all stages of the proceedings been represented by counsel.
MR MARSHALL: That is true.
KIRBY J: And you yourself at the sentencing hearing apparently did not see fit to raise this point.
MR MARSHALL: That is true.
KIRBY J: I do not wish to criticise you because you are not the only one who missed it. The judge of the District Court and the prosecutor missed it.
MR MARSHALL: Yes.
KIRBY J: But the question is: how does the law respond to this problem once it does arise?
MR MARSHALL: But I did not initiate any error.
KIRBY J: No, I was not making a smart point at your expense. The fact is that people, including learned and experienced people, can miss points and then the question is, where that point affects what is in effect a judgment, because a finding of guilty and the conviction that follows are a judgment of a court and in this case of a court deemed superior. To say that is a nullity is not very attractive.
MR MARSHALL: I would respectfully adopt what was said in Paciente by his Honour Justice Franklyn. In Paciente he concluded that count 2 was a nullity and he said it was not an indictment within the meaning of the Western Australian legislation. That, of course, was a case where, as you have probably seen, there were two counts, one of possession of drugs with intent to sell or supply and simple possession. The later was a summary matter and there was leave sought to amend at trial to make it into an indictable offence, but of course it was not signed off by the authorised officer or anything like that and it was held not to be – there was a nullity to the extent of that count that went to trial. Paciente was convicted of both and the conviction in relation to the second count was held to be a nullity. So what we are saying here is that ‑ ‑ ‑
KIRBY J: Now, I ask you what if the trial had been conducted in the Supreme Court. Would you still be contending that the order of conviction of the Supreme Court judge is a nullity? That cannot be, can it?
MR MARSHALL: The Supreme Court has greater powers than the District Court but they still only try matters upon indictment. If you put a summary matter on a Supreme Court indictment it would not be an indictment within the meaning of the Criminal Code (WA). That is the problem.
KIRBY J: I find it hard to believe that this is the first time that a mistaken summary offence has been included in an indictment under the Griffith Code. I find it hard to believe that nowhere in Queensland or Tasmania or elsewhere in the country this problem has arisen before. Have you researched what happens in the other Code States when this problem arises?
MR MARSHALL: Yes, we could not find anything in those other States. Your Honours, if I could just go back for one moment to this question of prejudice that arose to my client. It is not simply a matter of just saying that the fact that a policeman mentioned six times bestiality, it is more than that because, as I say, it starts with the opening, finishes with the closing, the summing‑up of the judge. But, in addition to that, we had the movie, exhibit 11 - that was a bestiality movie. That is something which was put into evidence by consent but that is something which would not have been relevant in ‑ ‑ ‑
CALLINAN J: The jury did not see the bestiality movie?
MR MARSHALL: No, but they were aware that there was a movie downloaded – “video‑dog.mpeg”. They did not see it, your Honour.
CALLINAN J: Did the judge say anything about bestiality in the summing‑up?
MR MARSHALL: Yes, he did.
CALLINAN J: Where is that?
MR MARSHALL: He did not go into ‑ ‑ ‑
KIRBY J: I think we are taken to 196B where he says “which was allegedly a bestiality movie”.
MR MARSHALL: Yes.
CALLINAN J: Is that the only reference?
KIRBY J: There are other references, I think, to the obscene articles in relation to the second count. That is at 195C, in the middle of the page, and at 197A.
MR MARSHALL: Then the website list at pages 161 and 162, that is exhibit 12. That had bestiality‑type things – “beastlinks”, “beastcentral” and dealt with bestiality matters, websites in relation to bestiality matters. None of these had been opened. The forensic significance of exhibit 11 was that that was said to be downloaded at 11:19 and he was cut off from his access at about 10:30.
GLEESON CJ: Well, I think the evidence is not quite so clear about that, is it? I got the impression from the written submissions that your side were actually relying on exhibit 11 for the point that you have just mentioned in order to support what the defence case was, which was that he did not have possession.
MR MARSHALL: Yes.
GLEESON CJ: But I understand from the submissions that are put against you that the evidence about the timing of his access is rather less clear than you have just submitted.
MRMARSHALL: Well, Mr Jones, when he was cross-examined was asked specifically what time access was disabled and you will find that at page 45.
GLEESON CJ: Was exhibit 11 objected to?
MR MARSHALL: No, it was by consent.
GLEESON CJ: Not only by consent; it was actually relied on in support of one your arguments, was it not?
MR MARSHALL: It was. But the reason that ‑ if there was a trial of count 1 alone this would never have been in. In a trial of count 1 alone bestiality was not an issue.
GLEESON CJ: No, but possession was an issue.
MR MARSHALL: Possession was in issue. Just getting back to the point about – I know it has been put against me that 11:19 was the time that that was downloaded, but under cross‑examination Mr Jones was asked at page 45E:
you became aware that at 10 am – you make a diary note that it’s 10 am when you find this material. When did you disable his account or his access into the computer?---It would have been very close after that.
Then further on:
So it’s possible that you disabled it by 10.30?---It’s possible, yes.
It is put against us that it is not as clear as I am putting it but 11:19 as opposed to he agreeing. I mean, it is obviously of significance.
GLEESON CJ: But the defence at trial were relying on exhibit 11.
MR MARSHALL: They were.
GLEESON CJ: The fact that it was downloaded at 11:19 to support the defence case added to that answer about could possibly been closed down at 10:30 to indicate that it must have been somebody else who was putting these images into your client’s computer.
KIRBY J: See, the point of that is that therefore on your case you wanted the film in evidence and thereby you were going to get on your case evidence of the bestiality movie into evidence though for the particular purpose you wanted it and therefore that it is a little hollow for you to be complaining now before us that you had it before the jury because you wanted it for your own purposes in the form of exhibit 11.
MR MARSHALL: Yes. But that is because the indictment was erroneous.
KIRBY J: You say that in that event you would simply be having the film as allegedly something extraneous and in your favour whereas here you are having the film in answer and you have to answer a count that you are guilty of obscene material which was a bestiality movie.
MR MARSHALL: Yes. Why would you introduce something like that unless there was some purpose such as ‑ ‑ ‑
KIRBY J: I can see why you would want it. Your theory of the case was that a hacker had got into the computer, that you were blameless, that other strangers had got in and that in proof of that, Mr Jones had disabled the computer at 10:30 and this movie had got in at 11:15, and therefore that it was the work of somebody other than you. That was your theory of the case.
MR MARSHALL: Our defence, or the appellant’s defence, was “I didn’t do it”.
KIRBY J: Well, I know that, but you wanted – you needed the other material to add a little colour to that because there was a lot of evidence that suggested you did do it in the form of the computer – the swipe cards which showed that you were in the computer facility at the very times when these were downloaded.
MR MARSHALL: But our defence being “I didn’t do it” and when asked, “Was it the hacker?”, it is possible. I mean, it is very like the case of those sex offences where an accused man is charged with an offence against a child, sexual penetration without consent, something like that, there are a number of people in the house, he says, “I didn’t do it”, and then he is asked by the investigating officer, “Why would the complainant make up this if it wasn’t true?”, the Palmer‑type things which are impermissible, and, “Are you saying that Uncle Bob did it and not you and went into the bedroom at night?”. He cannot be asked for theories, “The hacker did it”. “Did a hacker do it?”, and things like that. He is just saying, “I didn’t do it”.
KIRBY J: Yes, but if you could show that in fact after your access to the computer had been disabled some material was downloaded, then that would be an evidentiary element that would favour your case.
MR MARSHALL: Yes, and all I am saying is that if there is a trial of count 1 absent the bestiality, then a forensic decision would not necessarily be taken the way that it was. But what I am saying is, when you start off with a flawed indictment, what is built on it is also flawed in the sense that you are required to make tactical forensic decisions which you otherwise would not be required to make. So when we come to the question of, “Well, what prejudice did you suffer? There are only 11 images” – there is a whole lot of prejudices that he has suffered when you are required to respond to two counts, one of which ‑ ‑ ‑
GLEESON CJ: You were not required to do anything. This was an indictment which according to your argument had a defect or error on the face of it. You were not required to do anything except take the point.
MR MARSHALL: There is a jurisdictional error. There is no jurisdiction in the District Court to try that count, and criminal lawyers do not often take out prerogative writs with an excess of power. The point is that ‑ ‑ ‑
KIRBY J: That is because there is a procedure laid down by the Criminal Statute or in this case the Code that requires you to take the point on demurrer. What was your answer to Justice Hayne’s tracing of the sections, and section 422 says that if you have pleaded, the pleas shall be tried by the jury and those issues are triable accordingly. Now, why does that not cure the defect by the Code saying that if you should have taken the point on demurrer but it has been missed, and you plead and thereby raise the issue ‑ ‑ ‑
MR MARSHALL: You cannot get jurisdiction by default. What we are saying is ‑ ‑ ‑
KIRBY J: This is not by default. The suggestion is that it says these issues are triable, accordingly is a grant of jurisdiction.
MR MARSHALL: Yes, but that is what I mean. You, by failing to demur to the indictment, what we say is the – the appellant cannot be – the District Court cannot be given jurisdiction to try a summary matter. It is inconsistent with the District Court Act. The District Court Act specifically says that there is no jurisdiction over summary offences and it is a question of construction. You would have to look at the District Court Act and ‑ ‑ ‑
KIRBY J: Which we do not have, by the way.
MR MARSHALL: No, that is – but how can the District Court be clothed with jurisdiction because there has been a default to demur? It just seems that it would be flying in the face of the provisions of the District Court Act.
GLEESON CJ: Have you looked at the decision of this Court in Truong v The Queen?
MR MARSHALL: No, I have not.
GLEESON CJ: Well, that was a case in which – this is 205 ALR 72. At paragraph [111] of the judgment of Justices Gummow and Callinan this is said:
The circumstances of the surrender of the appellant to Australia were such as to attract the operation of s 42 of the [Extradition] Act. However, the right given by s 42 to an extradited person is exercisable by demurrer or special plea under the applicable procedures of the trial court. It is not open to plead the general issue, then, after conviction, to seek to impeach that conviction in the fashion sought to be done in this case.
KIRBY J: That, of course, was a trial in the Supreme Court of Victoria. That may or may not be a point of distinction.
MR MARSHALL: And the Supreme Court in Victoria no doubt having a wide jurisdiction, wider than a District Court.
KIRBY J: Well, Supreme Courts are normally given all the jurisdiction that is necessary for the administration of justice in the State.
MR MARSHALL: Yes, whereas the District Court the statutory powers are limited and it is limited to trying indictable offences, not simple offences.
GLEESON CJ: What is the new point that you want leave to raise?
MR MARSHALL: The new point?
GLEESON CJ: You wanted leave to amend your notice of appeal.
MR MARSHALL: Yes. Well, what we say about that is that ‑ ‑ ‑
GLEESON CJ: What is the point?
MR MARSHALL: The point is that it is appropriate that this Court set out the law of Australia in such a case where a summary matter erroneously finds its way onto an indictment containing an indictable offence. The English Court of Appeal has come up with a solution in those two cases of Callaghan and Smith.
HAYNE J: Now, as to Smith, it is reported not just in the Criminal Appeal Reports, it is (1997) QB 836 and their Lordships in both Smith and the cases that precede it simply refer to the count being a nullity. At least as far as I can see, their Lordships do not go into any detail of the reasoning which leads to the affixing of that consequence or conclusion to it.
MR MARSHALL: Your Honour probably would have noticed that they were both cases where Callaghan and Smith had pleaded guilty. The upshot of it all was that in the case of this misjoinder where an impermissible summary count had been put on the indictment, the conviction on the summary count was quashed but the conviction on the indictable count was allowed to stand. They got as far as saying that the solution was that where this happens, provided there is no prejudice or embarrassment to an accused, and bearing in mind each of these accused pleaded guilty, the conviction in respect of the impermissible summary matter would be quashed and the count will stand. That is how they have dealt with it. What I am saying - the point here is that this Court needs ‑ ‑ ‑
HAYNE J: All of those decisions were founded in very different statutory regimes, notably the Criminal Justice Act (UK), section 40 which provided that a count charging a person with a summary offence to which the section applies may be included in an indictment if certain conditions were met.
MR MARSHALL: Yes, it would have to be as part of the same series of transactions. The ones which were impermissible were summary matters, not part of the same series of transactions. So what I am saying is why it is important for that amendment to be granted is that this Court – here is an opportunity for this Court absent any statute such as section 40 of the Criminal Justice Act, the English statute – yes, there is no statute and probably throughout Australia there is this ‑ ‑ ‑
KIRBY J: Yes, but how can we - you want us to lay down general rules. We cannot do that. Every case would depend on its own statutory framework.
MR MARSHALL: Exactly, but in this case all I could ask to be done is rather than have the – we are saying the entire indictment was a nullity. It is one of the points we are making. This concept of a partial nullity, I mean, I can understand it in using the blue pencil to restrict a restrictive covenant, cross out a few things like that, but this is an indictment. How can you have a partial – it is either a nullity or it is not.
GLEESON CJ: On your argument can your client tomorrow be charged with a contravention of section 59?
MR MARSHALL: Yes, if it was a nullity. But he did a six month time limit.
HAYNE J: He might have a time limit, might he not?
MR MARSHALL: He cannot. In summary matters I think it is 12 months in WA.
KIRBY J: Again, we would have to have that sort of material. We do not have that either.
HAYNE J: That is under the old Justices Act. Again, we would need chapter and verse, not just the bare assertion.
MR MARSHALL: The magistrates exercising summary jurisdiction, in some statutes there is a longer period than six months or 12 months but as a general proposition – and we will get the chapter and verse – but what I am getting at is that the position in the UK, from the Court of Appeal judgments I have just referred to, seems to be that it is a nullity but, provided there is no prejudice - and we will quash the impermissible summary conviction but, provided there is no prejudice – and what I have been trying to point out here is that there was considerable prejudice and it is not just the material itself; it is the prejudice that arose conducting a trial. You conduct a trial and your client is put before a jury facing not one but two indictable offences, the nature of the second count of which is just disgusting.
HAYNE J: Let me put this chain of statutes to you. Section 42(1) of the District Court of Western Australia Act 1969 provides that:
Except as provided in subsection (2), the Court has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence.
Subsection (2) deals with offences for which the penalty is, in effect, life or strict security life imprisonment. But you start from the District Court has all the jurisdiction and powers the Supreme Court has in respect of any indictable offence. You go back to the Supreme Court Act 1935, section 16:
the Supreme Court –
. . .
(b)shall be at all times a court of oyer and terminer and general gaol delivery in and for Western Australia and its dependencies; and
(c)is authorised, empowered, and required to take cognizance of and hold all pleas and all manner of causes, suits, actions, pleas of the Crown, prosecutions, and informations, whether civil, criminal, or mixed –
et cetera. A very ample conferral of criminal jurisdiction. You have here an indictment, one count of which on any view charges an indictable offence. Next step is there is joined in that indictment a count which is a simple offence. Accepting for the purpose of argument that the District Court otherwise would have no jurisdiction in respect of the simple offence, if objection is not taken to the indictment before the jury is sworn and if the indictment be not quashed, why does the District Court not have jurisdiction to try the issues joined on the indictment?
MR MARSHALL: The Distinct Court Act specifically says ‑ ‑ ‑
HAYNE J: Where? You keep saying “specifically”. If you can point me to the section, I would be much assisted.
MR MARSHALL: I am just looking at his Honour Justice McKechnie’s judgment where he analyses the position. He refers to sections 8 and 42, and your Honour has just referred to section 42, and how it is that the District Court “has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence”. Then he concludes that there is no jurisdiction in respect of offences for which it has no jurisdiction. I do not have my District Court Act here but it is obviously section 8 and section 42. Your Honour has read section 42.
HAYNE J: All that section 8 provides is that the Court:
(a) is a court of record;
(b)shall be constituted by a District Court Judge as provided in this Act; and
(c)has the criminal and civil jurisdiction conferred on it by this Act.
MR MARSHALL: Well, as I have pointed out, section 32 of the Sentencing Act had to be specifically enacted to give the District Court power to deal with simple offences on a plea of guilty. It would tend to suggest that there is not a residual power in the District Court, if what is necessary is specific legislation to actually deal with summary matters. But I am at a little bit of a disadvantage without having the Act but certainly, as a matter of practice, summary matters are just never dealt with in the District Court and it just seems that in those circumstances where there is no specific statute – well, I do not know whether – is what your Honour read out a specific statutory authorisation for the District Court of Western Australia to try summary offences? If that is the case, this appellant may have a problem, but that is not my understanding of the legislation.
CALLINAN J: Mr Marshall, section 3(6) of the Criminal Code, what do you say about that? I think you may have mentioned it before. I am looking at the reprint as of 1 June 2005.
MR MARSHALL: Yes.
HAYNE J: It was introduced, was it not, by the 2004 amendments, I think.
MR MARSHALL: I think so, your Honour.
CALLINAN J: So it is after ‑ ‑ ‑
MR MARSHALL: Yes, after. That is why when I first read it I read out from the earliest ‑ ‑ ‑
CALLINAN J: Yes, I was not sure. Thank you.
KIRBY J: That might be another argument, if it solves the problem, that Parliament felt it necessary to insert the solution.
MR MARSHALL: Yes, that is what I would argue, that Parliament found it necessary to ‑ ‑ ‑
KIRBY J: But after these proceedings?
MR MARSHALL: Yes – well, exactly. The other – and I am getting back to this because I do not think I have fairly put before your Honours the prejudice which has arisen. I have been trying to get through it slowly but we point out, for example, we lost the chance to argue that those 11 images were inadmissible. I mean, it is all very well to say if there was a charge on count 1 alone that evidence could have been adduced as uncharged acts. There are two things we would say. One is that we do not agree with the proposition that it is an uncharged act but, secondly, we were dealing with a trial where we just did not have the opportunity to argue the admissibility. I mean, if it was count 1 alone, the admissibility of that as an uncharged act could be argued ‑ ‑ ‑
GLEESON CJ: You had the opportunity to argue anything you wanted to argue. You just did not take this point. Nobody forced you to trial.
MR MARSHALL: But, your Honour, my point is simply this. If there had not been a misjoinder and if it was a trial of count 1 alone, if the prosecution sought to adduce evidence of uncharged act, namely, all the bestiality material, it would have argued the prejudicial value outweighs the probative value, argue that it is not relevant and there is no causal connection in the way that Justice McKechnie has said, but that is lost to us wrongly because this count 2 ‑ ‑ ‑
CALLINAN J: You did not apply for severance of the charges, did you, separate trials?
MR MARSHALL: No.
CALLINAN J: That might have highlighted the point or brought the point to the fore if you had done that.
MR MARSHALL: Yes. This is a case obviously where, your Honour, there are a number of things: we should have demurred, should have applied for severance, but I am just dealing with what happened and what happened was a flawed indictment, what happened was that material came in ‑ ‑ ‑
CALLINAN J: I am beginning to wonder whether you wanted them tried together because of the capital that you thought you could make out of one of the documents that was referred to by the Chief Justice.
MR MARSHALL: Yes. Well, look, I was not trial counsel and I can tell you ‑ ‑ ‑
CALLINAN J: No, it may have been a good tactical decision. Not all these tactical decisions succeed, but they sometimes do, but that is the chance you take in adversary litigation.
MR MARSHALL: Well, I do not want to go into what defence counsel did or should have done or did not do. It is easy after a case. My point simply is this. We lost the chance to argue that those 11 images were inadmissible on the trial of count 1, but that is all theoretical. The other thing we say is that where – and forgive me if I have already made this point – the credibility of the appellant was clearly in issue and to have his credibility judged against a background of not only child pornography but bestiality, it just can only be adverse to him. Then when you have a case where the learned trial judge has said ‑ ‑ ‑
CALLINAN J: You say his credibility was in issue.
MR MARSHALL: Yes.
CALLINAN J: His explanations were really unbelievable. He said he was interested in some band and he thought he might store some images in relation to it, Metallica or something, and then he said somebody had somehow discovered his password and misappropriated it.
MR MARSHALL: Well, his explanation was, “I didn’t do it”.
CALLINAN J: He did not even deny that he made the admissions. He just said he could not remember them.
MR MARSHALL: Yes, but what more could an accused person say when – the material had been downloaded and he simply says “I didn’t do it” and ‑ ‑ ‑
CALLINAN J: He was disarming the alarm systems and at very curious hours and some explanation that he was chatting with somebody in Canada, really a suspension of disbelief.
MR MARSHALL: Well, all that he is asking for is a fair trial according to law. This was not a trial according to law. This was a trial which, due to the irregular indictment, brought with it matters other than those which should have been encountered by the jury.
It brought with it matters which are irrelevant. Added to that, his Honour said it is a matter of comment. He said this at page 190C, “the two counts either stand or fall together.” Generally that is probably right. The two counts did stand or fall together in a trial where possession was the issue. But what about if they commenced to consider count 2 first and then decided, “Well, we find him guilty on count 2, therefore he’ll be guilty on count 1”? In hindsight it is a very unfortunate comment to make in the context of this trial where count 2 should not have been there in the first place.
So what we say is there is that and there is also the problem that arose which I have already dealt with about demonstrating an ongoing propensity at page 196. That on its own is a stand‑alone reason why the – and I know that his Honour went on to say you cannot use it in this way or that way, but the damage was done. It was, according to Justice Steytler, a confusing direction. It is a very important direction to make about exhibits 11 and 12, how they were to use it. If you take the trouble to look at page 196, you will see this comment was just totally – the first part of it was completely wrong and they were telling the jury that it can be used as proof that he committed the other charges on the indictment. It cannot be used as proof of that at all. So that is the area where we say there was ‑ ‑ ‑
CALLINAN J: Say he had not been charged with count 2. Why would not the evidence on it be similar fact evidence?
MR MARSHALL: It is not similar fact evidence, is it? Where is the striking similarity? One is child pornography, a different sort of perversion.
CALLINAN J: The means of commission of the crime are strikingly similar and both crimes relate to obscenity. It is just a different sort of obscenity.
MR MARSHALL: Why would you need, as his Honour Justice McKechnie says, the other 11 images when there was no necessary causal link in the chain of reasoning?
CALLINAN J: I do not know whether that is right, with all due respect. There may be a causal link. It is not an answer just to quote Justice McKechnie to me.
MR MARSHALL: I do not see that there is a causal link.
KIRBY J: It does not necessarily follow that a person who has some paedophilic interest will have an interest in animals.
MR MARSHALL: Exactly. It is a different sort of perversion.
GLEESON CJ: What if the material had been totally innocent – ladies’ fashions or something like that – in terms of the dispute?
MR MARSHALL: No problem.
GLEESON CJ: The issue at the trial was an issue about timing, was it not? I mean in terms of access.
MR MARSHALL: If it was ladies’ fashions, then it would not have been admissible.
GLEESON CJ: No, but if there had been perfectly innocent material mixed up in point of time with the other material and there was evidence that he had access to the innocent material, would that not have been relevant?
MR MARSHALL: There was innocent material. There were his notes and things like that and nothing was made about that. It just seems to me that what has happened here is the prejudice has arisen as a result of these type of things setting out a completely different perverted sort of – possessing images and showing interest in these perversions, a different perversion.
I suppose all I am trying to say is that what chance did he have when this sort of thing is put before the jury? It was put before the jury wrongly because it should not have been there in the first place and ‑ ‑ ‑
GLEESON CJ: It was put before the jury because it was not objected to.
MR MARSHALL: Sorry - 11 and 12, yes. That was not objected to but the count 2 images that were put before the jury should not have been there in the first place because ‑ ‑ ‑
GLEESON CJ: I thought we had already agreed that the count 2 images were not put before the jury.
MR MARSHALL: Sorry, when I say the count 2 images ‑ ‑ ‑
GLEESON CJ: What was before the jury was an admission.
MR MARSHALL: I mean the details of them. I do not mean the actual images of them. I am not trying to suggest that the actual images were there. So we say that the consequences of this misjoinder are firstly that the indictment No 2/1788 is a nullity or at the very least that count 2 was a nullity. If the Court comes to some conclusion that there is a doctrine of partial nullity or some principle whereby something can be said to be characterised as a partial nullity, I would have thought it would be all or nothing. But either way, whether the entire indictment is a nullity or whether there is this partial nullity, we say the result is that there has been such a significant departure because no person should be standing trial and have this additional material as a result of the irregularity being put before the court and that departure is a departure from the essential requirements of the law.
As has been said many times that a person who goes on trial is entitled to a trial according to law, that the correct procedures be followed, that only the evidence that is properly admissible is before the jury and in this case this is what has happened. He has not had a trial according to law. The rules of procedure, the rules of evidence, what has happened here is because of the misjoinder the evidence got in that should not have got in and there has been a failure and he has lost the chance of an acquittal. He has not had what he is entitled to which is namely a trial according to law.
GLEESON CJ: Mr Marshall, is there is any section of the Act that we have not already looked at that deals with defects or irregularities in indictments?
MR MARSHALL: Not that I am aware of, your Honour.
GLEESON CJ: Thank you.
MR MARSHALL: What we say is that if it is a nullity, entire nullity or a partial nullity, it is unnecessary to consider the strengths and weaknesses of the prosecution and defence cases. It goes to the root of the proceedings. There has not been a proper trial. So that is the first proposition. The second is that if we are wrong, that there is neither a partial – the misjoinder did not go to the root of the proceedings and that there was a not a significant irregularity, there was not a departure from the essential requirements of the law ‑ then it is necessary for you to consider the - if you say that it is just an error not of the fundamental kind, something less, we are saying it is a fundamental error and there is no necessity to consider the strengths and weaknesses.
If it is something less than that, if it is not a fundamental error, but an error, then it would become necessary to consider the proviso. We say that you would need to ask yourself whether a reasonable jury would inevitably have convicted had the error not been made, and that puts one in a situation of second guessing what a jury might do, and what a jury might do, anyone who has been in the criminal courts for any length of time knows the perils of predicting what a jury might do or might not do. The unwinnable case is often won, the unlosable case is often lost.
It just seems to us that this is a case where the proviso should not apply to save the conviction on count 1. The conviction on count 1 was obtained at too high a price. Through no error of the appellant, he was in the Court and the verdict came down on a count which should not have been before the Court, and due to that error, he lost the legal right to what we say is a separate trial because we say that count 2 could only have been dealt with in the Magistrates Court before the justices, and he has not had a trial of count 1 on its merits. It has been accompanied by what I would call luggage.
There is a loss of his opportunity to argue admissibility points. Forensic decisions were made in the context and against the background of two counts, not one. We would say that the – and that goes for exhibits 11 and 12. Yes, they were put in by consent, but of course that was made in the context of a two‑count indictment.
CALLINAN J: Mr Marshall, could I just ask you about section 594 of the Code. Have you referred to that already?
MR MARSHALL: I have not, your Honour.
CALLINAN J: That would seem to suggest that a person charged on an indictment could be convicted for an offence that would be a summary offence.
MR MARSHALL: Yes, but that can happen in a case where there is indeed an indictable offence. Say if it is assault occasioning bodily harm ‑ ‑ ‑
CALLINAN J: Yes, under some lesser offence, but it can be a summary ‑ ‑ ‑
MR MARSHALL: Yes, common assault, yes, that is true.
CALLINAN J: Yes, it can be a summary offence.
MR MARSHALL: But it is predicated by the indictment being an indictable offence.
CALLINAN J: Yes, I understand that, but that can happen.
MR MARSHALL: Yes, that can happen, and a classic example is the assault occasioning bodily harm. If for some reason bodily harm cannot be proved or ‑ ‑ ‑
CALLINAN J: Well, it seems curious that on the one hand a person could be convicted for a summary offence after being charged on indictment, but could not be convicted for a summary offence actually charged and joined with a crime or a misdemeanour on indictment.
MR MARSHALL: But the alternative verdicts are specified by statute.
CALLINAN J: Yes.
MR MARSHALL: I think that it is a question of statute.
CALLINAN J: Where is the provision about that? Is that only 594 or is there something else? I am talking about what applied at the time of the offence. What is the statutory provision, Mr Marshall, to which you are referring, you say, which deals with alternative offences?
MR MARSHALL: At the time of this matter, the alternative verdicts were actually the ones specified in the Code.
CALLINAN J: But 594 does not specify any particular offences. It is couched in general terms.
MR MARSHALL: Yes, it is. It says “Except as hereinafter stated” and after that there are a number of ‑ ‑ ‑
CALLINAN J: That is what I want to find. I want to find any exceptions to that because it is couched in general terms. Is there an exception that applies to your case?
MR MARSHALL: There is no alternative verdict under the ‑ ‑ ‑
CALLINAN J: But 594 does not talk about alternative verdicts. It does not use the word “alternative”. It is a simple question, you may not be able to answer it now, Mr Marshall, but at some stage I would like to know where something different, where an exception is hereinafter stated and is an exception to 594.
MR MARSHALL: It may not be an answer to your Honour’s question but I can assure you that ‑ ‑ ‑
CALLINAN J: No, it is not answer. I want to know, I want to see the provisions.
MR MARSHALL: There is no provision for an alternative verdict under section ‑ ‑ ‑
CALLINAN J: Mr Marshall, did you hear what I asked? At some stage, I want you to tell me where it is hereinafter stated differently.
MR MARSHALL: Right. I am not sure that I have dealt with clarity with the point that I was making about what has been described by his Honour, Justice Steytler, as the confusing direction that his Honour gave about propensity but I will just simply leave it on the basis that it was certainly an inadequate direction. That is a stand alone point. What was required was clarity and certainty in relation to a direction about the exhibits 11 and 12 and that was not there. What we say about that is that it is important that there was clarity and certainty about that direction. On the one hand, it said what you would expect the direction to be. One other hand, it said something completely the opposite which you would expect the direction not to be. It was simply wrong and does not match up with what was said in Pfennig.
Your Honours, if I could just finish by saying that the appellant’s case is that the trial was fatally flawed by this misjoinder. There was a significant irregularity and if you do not agree with the entire indict with a nullity or that there is a partial nullity, then we get to the situation where the question of whether the proviso applies and we say that there certainly has been a substantial miscarriage of justice in this case when somebody is brought to Court in the way that he was and had this evidence which was said to be produced pursuant to an indictment but was not an indictment under the law. That was it, thank you, your Honours.
GLEESON CJ: Thank you, Mr Marshall. Yes, Mr Bates.
MR BATES: May it please the Court. The threshold question is whether the erroneous inclusion of count 2 on the indictment was a fundamental error such that the proviso could have no application. Whilst the indictment ought to have been severed because of the improper joinder of count 2, a defect in the form of the indictment does not necessarily lead to a mistrial. Improper joinder creates prejudice because it may allow inadmissible evidence to be given and it is put against us that the wrongful inclusion of the evidence in support of a count of the indictment that was improperly joined was an irregularity of such gravity that no proper trial had taken place.
Applying the principles as expressed by the majority in Wilde, in our submission, it is the significance of the evidence said to be wrongly admitted in the context of the trial which must determine whether or not there was a fundamental error. When viewed in context, it does not appear that the evidence said to be wrongly admitted in relation to the count upon which the appellant was convicted can have carried any significant additional weight having regard to the other evidence in the trial. This is to take into account the strength of the prosecution case on the count upon which the appellant was convicted and the weakness of the defence, but it is to do so for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the proviso was applicable.
The two questions, in our submission, are obviously intertwined where the error is said to be one of wrongful admission of evidence in support of a count improperly joined on the indictment, but, in our submission, they need to be considered separately.
GLEESON CJ: You used the expression “wrongful admission of evidence”. The evidence was not objected to, was it?
MR BATES: The evidence was not objected to in relation to exhibits 11 and 12. It was otherwise not objected to because it related to a count on the indictment so there would be no basis for objecting to it in a joint trial where there should have only been a trial on the one count on the indictment.
KIRBY J: So do you accept that there should only have been a trial on the one count of the indictment?
MR BATES: Yes, we accept that and we adopt the reasons for that as expressed by Justice McKechnie and Justice Steytler in the Court of Criminal Appeal where they address this particular issue.
KIRBY J: You have heard the exchanges when Mr Marshall has been urging his submissions on the Court. Do you embrace the suggestion that there was another route to finding the indictment a valid indictment in the circumstances?
MR BATES: In our submission, we agree with the Court of Criminal Appeal that the count 2 was a nullity, but our submission is that otherwise count 1 was a – the indictment was otherwise valid.
GLEESON CJ: “Nullity” is a word that perhaps conveys some different meanings in difference circumstances. Is it your submission that there could not be a trial and conviction on count 2?
MR BATES: Yes, your Honour.
GLEESON CJ: Because of a lack of jurisdiction in the District Court?
MR BATES: That is correct, your Honour, yes. If I can take the Court to the relevant passages where this was dealt with in the Court of Criminal Appeal, firstly the judgment of Justice McKechnie at page 242 of the appeal book.
KIRBY J: You do not have the District Court Act provisions here?
MR BATES: I do not have the District Court Act. It is paragraph 120. It is at about line A:
It is clear that the reference to “plea” –
Perhaps I can just say this at the outset. The Court of Criminal Appeal held that the failure to take the point at trial is not fatal and essentially there is no jurisdiction in the District Court to try a simple offence. At paragraph 120 Justice McKechnie said:
It is clear that the reference to “plea” in s 622 in the context of the Criminal Code, can only mean a reference to a plea to an indictment: s 616. A document setting out particulars of a simple offence can never be an indictment, no matter what it purports because it does not set out the provisions for an indictable offence. Any document such as count 2 is a nullity. The jurisdiction of the superior court is never invoked by such a document.
GLEESON CJ: The proposition that there is no jurisdiction in the District Court to try a simple offence must be subject to some qualification by reference to the provision that Justice Callinan referred to.
MR BATES: Which provision was that?
GLEESON CJ: The provision that allowed a conviction on a simple offence where it was an ingredient of an indictable offence.
MR BATES: That is correct. That is section 594 of the Criminal Code, so if you have an offence of assault occasioning bodily harm which is an indictable offence that is properly within the jurisdiction of the Court but there is an exception to that in section 594 which permits the conviction for a simple offence where the simple offence is an element of the indictable offence. That is an exception to the rule that the District Court can only try an indictable offence. The District Court is trying an indictable offence but there is statutory provision to accept a verdict on a simple offence.
In Paciente which was the case referred to by my learned friend, in that instance there were two counts of drug offences. One was possession with intent to sell or supply and the other count was a simple possession and the court in that case held that the court had no jurisdiction to hear the simple offence because the indictment signer – there was a purported amendment at the trial and the amendment could not be made because the jurisdiction of the District Court was never invoked because it was a simple offence and should never have been there in the first place.
GLEESON CJ: What was the consequence, in terms of the outcome?
MR BATES: The consequence, in terms of the outcome, the point that my learned friend seeks to argue that the whole indictment was a nullity, that was not argued but the consequence was. They just quashed the conviction on the simple offence and the conviction stood in respect of the indictable offence but the point was not argued in that case.
GLEESON CJ: That is the consequence for which you contend in this case?
MR BATES: That is right, yes.
CALLINAN J: Mr Bates, 594 refers to an element which is the ingredient point. What are the words:
or would be involved in the commission of the offence charged in the indictment.
MR BATES: It has to have some nexus back to the indictable offence and that is what those words are ‑ ‑ ‑
CALLINAN J: Is there any authority on the words, “would be involved in the commission”?
MR BATES: I have not looked at any authority in recent times.
CALLINAN J: Because they seem to be broader than an ingredient, do they not?
MR BATES: Yes, it is slightly broader but it would not be broad enough to encompass this matter because of possession of bestiality – obscene, indecent articles would not be involved in the commission of an offence that was said to be possession of child pornography so it would not be broad enough to cover the instant case, but your Honour the Chief Justice is correct. That is a statutory exception to what would otherwise be the case that only indictable offences can be tried before the District Court, subject to the limitation imposed by the District Court Act in respect of life imprisonment.
To answer Justice Hayne’s point, in our submission, the key is the words in section 42(1) of the District Court Act giving the District Court:
all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence.
In this instance this offence of possession of obscene or indecent articles is not an indictable offence and therefore the District Court has no jurisdiction. Justice McKechnie went on to say that the ‑ ‑ ‑
HAYNE J: Does his Honour refer at any point, or do any of their Honours refer to section 590? Do any of their Honours refer to procedures to quash the indictment?
MR BATES: I do not believe so, but I will just check Justice McKechnie’s judgment. My learned junior ‑ ‑ ‑
HAYNE J: Come back to it perhaps after the adjournment and you might also have a look at Paciente where again I think there seems to be an elision of procedures to quash the indictment with a separate and distinct procedure of demurrer.
MR BATES: That is correct, your Honour, yes, but my learned junior tells me that there is no reference to 590 in the decision of the Court of Criminal Appeal. Justice Steytler also dealt with this point, and that is at page 223 of the appeal book and it commences at about line C. It is paragraph 43:
The Court did not consider the effect of s 602A or of s 622, perhaps (in the case of the latter section) because the issue in that case arose before any plea was taken. However, I doubt that that section has any application in a case such as this. It seems to me that s 622 is intended to be solely procedural in its effect, providing only that, if there has been no plea of guilty (in which event the matter would have been dealt with by a judge alone) and no plea to the jurisdiction of the Court (in which event there would have been a trial, under s 621, on that issue alone), then the accused person is taken to have demanded, without more, a trial by jury on his plea or pleas and, subject to ch LXIVA (dealing with trial by judge alone), those issues are triable accordingly.
Then the important passage is the next sentence that:
If, as I understand to be the case, the legislative scheme is that, subject only to specified exceptions, simple offences are to be tried summarily, in Courts of Petty Sessions, it seems most unlikely that the legislature would have intended that jurisdictional requirement to be waived merely by a failure to take the point. It also seems to me that, if that had been the legislature’s intention, it would have said so rather more clearly.
So Justice Steytler is saying there that in his view that failure to take the point at trial is not fatal and the Court of Criminal Appeal quashed the conviction on count 2 as a nullity, it being a simple offence and there being no jurisdiction in the District Court to try that offence.
The point was never argued at the Court of Appeal stage that the rest of the indictment was a nullity and our submission is that the remaining count on the indictment is a valid count and that there was no fundamental error in this case and this is a case where the proviso can be applied.
GLEESON CJ: Just before you start talking about “fundamental errors” which sometimes sound like “big mistakes” as distinct from “little mistakes”, once you get to the point that you reached in your second last sentence which was that there was no jurisdiction at the District Court to try the appellant on count 2 and there was jurisdiction in the District Court to try the appellant on count 1, where do you go from there in terms of the conviction on count 1?
MR BATES: Where we go from there, our submission is twofold. One, we say there was no fundamental error by the inclusion of the nullity in count 2 and secondly, we say ‑ ‑ ‑
GLEESON CJ: But that is just another way of saying, as you have said, that there was jurisdiction in the District Court to try the appellant on count 1 on that indictment.
MR BATES: Yes.
GLEESON CJ: Well, where do we go from there in asking ourselves whether the conviction on count 1 ought to be set aside and whether there ought to be a new trial on count 1 because that is what this appeal is about?
MR BATES: That is right. Well, you look at the prejudice from the inclusion of count 2. What was the prejudice to the appellate? You look at whether the evidence on count 2 was admissible ‑ ‑ ‑
GLEESON CJ: When you are doing that, what account do you take of the fact that counsel for the appellant was not objecting to that evidence?
MR BATES: The difficulty there is the difficulty raised by Justice Callinan at the special leave application, that the evidence on count 2, those 11 images, related to a count that was before the court in that instance but now, in our submission, should not have been before the court, so they were in effect denied the opportunity of objecting to it through the failure to appreciate the point and the failure to take the point.
HAYNE J: That drives you back to a logically prior point. The argument at this point has got to the stage of saying that count 2 is somehow a nullity, whatever that means. That leads to the quashing of the conviction on count 2, correct?
MR BATES: That is correct, yes.
HAYNE J: It does not lead, does it, to the entry of a verdict of not guilty on count 2? What does it do with the indictment? The indictment is not cleared by the orders of the Court of Criminal Appeal. All the Court of Criminal Appeal does is say quash the verdict and orders on count 2. You then have an indictment uncleared. What do you do with it? Do you quash the indictment? Do you quash count 2 of the indictment? That drives you back into territory which your argument specifically eschews. The prosecution will take the path it wishes to in this appeal and it is not for me to induce it to take some other path, but what is the proper order of the Court of Criminal Appeal on your submission in relation to count 2?
MR BATES: In our respectful submission, it was a nullity and therefore it should never have been on the indictment in the first place, therefore that count 2 is quashed. Then you proceed to consider whether the conviction on count 1 can stand.
CALLINAN J: Mr Bates, the heading of section 590 perhaps is a little misleading. It says “Formal defects”, but the second paragraph refers to “any defect apparent”, and that would seem to me to be broad enough to include the sort of defect that is said to have existed on this because of the joinder of the summary offence. Do you think that is right? “Any defect” is a very broad term.
MR BATES: It is very broad but it must, in our submission, refer to defects other than a defect in this case because, going back to basics, if the District Court has no jurisdiction to try simple offences, then there is no jurisdiction for that offence to be there in the first place.
CALLINAN J: But you would take the objection and say the defect is the inclusion of the summary charge, eliminate it from the indictment. That could easily have happened, could it not?
MR BATES: Yes, it could have happened but ‑ ‑ ‑
CALLINAN J: Are you suggesting that the joinder of a simple offence on an indictment with an indictable offence is not a defect within section 590?
MR BATES: We would have to accept that it is a defect within section 590.
CALLINAN J: It is.
MR BATES: Yes, but still, in our submission, the failure to take the point cannot be regarded as fatal because ultimately the court had no jurisdiction. So that is the threshold issue.
KIRBY J: Your submission is that it is a defect that cannot be cured by failure to take the point?
MR BATES: That is correct, your Honour, yes.
KIRBY J: You say that is because it suffers from the fatal flaw (a) that is a defect of jurisdiction and (b) that the jurisdiction of the District Court is limited and spelt out by statute and cannot be resuscitated or cured by the way in which the Crown frames its indictment and the accused’s response to that indictment?
MR BATES: That is correct, your Honour, yes.
GLEESON CJ: It is a point that is sometimes expressed by saying you cannot confer jurisdiction on a court by consent.
MR BATES: Yes.
GLEESON CJ: But let it be supposed that the correct conclusion is that the District Court had no jurisdiction to try the appellant on count 2. Let us suppose you got that far, just the lack of jurisdiction in the court. You might reflect that conclusion by quashing the conviction on count 2. Where does that leave you in relation to count 1?
MR BATES: It leaves you with a count in respect of which the court has jurisdiction and it is a count in respect of which he has had a trial and a count on which the jury has returned a verdict of guilty so there is a conviction in respect of that count and, subject to any issues as to prejudice from the count 2 being tried at the same time, we would submit that that count can stand.
GLEESON CJ: That is what I am interested in. You say subject to any issues about prejudice, but there were arguments running both ways in the present case about the significance of some of this other information, including information about timing. Does the Court of Criminal Appeal ask itself whether the accused would have been better off if there had been no count 2?
MR BATES: No, the Court of Criminal Appeal looked at the question of whether the erroneous inclusion of count 2 was a fundamental error and whether the proviso can be applied, notwithstanding the erroneous inclusion of count 2. The view that they came to and the view that we adopt is the view expressed by Justice Steytler that having regard to the issues in the case, it did not make any difference. If I could take the Court to appeal book 225, paragraph 48 between lines A and B, that in a nutshell sums up our argument, and it is this:
Given this largely common defence to the two counts (commented upon by the trial Judge in his charge to the jury), to the effect that none of the objectionable material, other than the five child pornography images filed on 20 July 2001, had been downloaded by the appellant himself, it seems to me that there could have been no real prejudice to the appellant’s defence to the charge of possession of 105 images of child pornography arising out of the admission of the evidence of the finding of an additional 11 pornographic images (if that evidence was not admissible in respect of count 1). Whether 100 or 111 objectionable images had been downloaded, and whether the objectionable items were exclusively child pornography images or child pornography and other pornographic images, seems to me to be a question which could not have been one of any significance to the jury in considering whether or not it had been the appellant, or someone else, who downloaded those images. That being so, I do not consider that any substantial miscarriage of justice could have resulted from the wrongful (if it was so) admission of the evidence concerning count 2. Nor, for similar reasons, do I consider that the wrongful inclusion of count 2 on the indictment, and the consequential wrongful hearing of the evidence in respect of that count together with that in respect of count 1, was an error so fundamental as to go to the root of the proceedings in respect of count 1 or, to put it differently, to result in those proceedings being fundamentally flawed –
and the reference to Wilde.
KIRBY J: We have all read that, but what the appellant says is, first, that he did not get a chance to object to the admission of that other evidence because of the presence of the second count and, second, that it is burden enough to carry the charge of child pornography, but to add to that the burden of facing a charge of sexual activity with animals which might enliven different and in some jurors equal or stronger or additional different feelings, that this is an admissible introduction of a stranger into an already burdensome case, and that that goes to the root of the trial. It is obviously what Justice McKechnie considered was the case.
MR BATES: Yes. If I can deal with the second issue first, and the second issue is that in this particular case the prejudice was very much reduced by the manner in which count 2 was dealt with. There was admission at the outset of the trial, after the Crown had opened the case and before the Crown Prosecutor commenced to call evidence, by defence counsel that the images were in count 1 child pornography and in count 2 obscene and indecent images, and throughout the trial there was very limited reference to what those 11 images were.
There has been some reference to some passages in the appeal book, but if I can just take the Court very quickly to them. At page 61 between lines B and D ‑ ‑ ‑
KIRBY J: We are talking now about the count 1, are we?
MR BATES: We are talking about – there was evidence from a witness Frazer and this is reference to both count 1 and count 2.
KIRBY J: Who was Mr Frazer?
MR BATES: Yes, Mr Frazer was a friend of the appellant and there was some evidence from Mr Frazer that on two or three occasions he had gone with the appellant into the computer lab and that the appellant had logged Mr Frazer onto the system using his user name and password and it was possible for two people to be logged onto the system using the same user name and password and be accessing material at the same time. So the possibility was raised that it was Mr Frazer who downloaded this material. So it is only the answers that are evidence, but the questioning was, about line C:
Did you download any child pornography onto the system?---No.
Did you download any pictures of bestiality onto the system?---No.
Any pictures of women urinating onto the system?---No.
So it was, in a sense, asking him whether he had done what is alleged in counts 1 and 2. The reference at page 62 at about line B was in fact a reference to a search of Mr Frazer’s computer and as to whether the police found any images of child pornography, bestiality or women urinating on his computer, to which the answer was no.
The next reference to the images the subject of count 2 is in the evidence of Thomas at appeal book 69 at about lines C to D.
KIRBY J: We were taken through all these, I think.
MR BATES: This is an additional one that was not referred to before. Mr Thomas was the computer expert and he was asked what was found:
“A quantity of items appearing to be unlawful in content were found. These include a bestiality movie and images of child pornography, bestiality and with obscene content (urination).”
KIRBY J: I have marked that as having been read earlier. We were taken through the mentions and that is what I say, there were about five such mentions of bestiality.
MR BATES: Yes, and there is another one at 75D to E, and I do not believe that was taken to.
KIRBY J: Yes, that is marked too.
MR BATES: Then there is the other ones that were referred to, 79C, 80A.
KIRBY J: Yes, that is marked too.
MR BATES: Then, finally, the only reference was the reference that has earlier been referred to by the appellant’s counsel ‑ ‑ ‑
KIRBY J: That is marked too.
MR BATES: ‑ ‑ ‑ and that was the one that was referred to. So our submission was that there was very limited reference to this material which would have distracted the jury from the issues that they had to deal with.
GLEESON CJ: Thank you. We are going to adjourn in a moment, but both sides have provided us with a version of the Censorship Act which seems to be wrong. Both sides have provided us with a version of the Censorship Act that seems to provide for a maximum penalty of $5,000. It looks as though, but you might both check up on this over the adjournment, there was an amendment in 2003 which produced the form in which we have the Act now, but that because these events occurred in 2001 the 2003 amendments do not apply. Could you please both check up on that?
MR BATES: Yes, I will check that, your Honour.
KIRBY J: Neither side has referred to the recent and unanimous decision of the Court in Weiss v The Queen (2005) 80 ALJR 444 which is the latest statement of the Court on the application of the proviso.
MR BATES: That is correct, your Honour, yes.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.20 PM:
GLEESON CJ: Yes, Mr Bates.
MR BATES: May it please the Court. Over the luncheon adjournment we have looked at the relevant provision of the Censorship Act that related to the applicable penalty. The applicable penalty at the time of this offence, which was 28 January 2001, was a fine of $5,000 or imprisonment for six months. That is set out in section 59(8). Then there was an amendment, Censorship Amendment Act 2003, No 30 of 2003, which was assented to on 26 May 2003, and the penalties were amended to delete the six months imprisonment, so it just became a fine of $5,000. So the copy of the Censorship Act that has been provided to the Court in terms of penalty is the incorrect version and I apologise to the Court for that. The offence does carry a $5,000 fine or imprisonment for six months. That was the applicable penalty provision at the time.
If I can deal with the two issues, one is whether the error was a fundamental kind, and the second issue was whether this was a case for the application of the proviso in that there was no substantial miscarriage of justice. In relation to the fundamental error issue, to determine whether something is a fundamental error it is necessary to look at the gravity and significance of the error and in determining the gravity and significance of the error in including count 2 on the indictment, regard must be had, in our submission, to the overwhelming case against the appellant at trial on count 1, the largely common defence to both charges and the sheer quantity of the more serious child pornography images which in count 1 were 105, when compared with the minor amount of the less serious material, 11 images the subject of count 2.
So if I can deal with those issues, firstly the overwhelming case against the respondent, this has been set out at paragraph 54 of our outline of submissions. There was a circumstantial case and there was also some direct evidence in the form of admissions, but the circumstantial case, in very brief summary, comprised this, that all the images were located in the appellant’s personal directory; he used his personal directory to store personal information such as his assignments; the personal directory could only be accessed by using the user name and password and ‑ ‑ ‑
KIRBY J: Just pause there. My understanding was that the user name was his own name and certain indications of the university in between and that this was common and every student knew how to construct another person’s user name.
MR BATES: That is correct, it certainly was the case. There was evidence that every student was instructed how to compile a user name. It is the first seven initials of your surname and the first initial of your Christian name. So he has used the name of ‑ ‑ ‑
GLEESON CJ: What was his password?
MR BATES: His password was “gutrench” and he gave evidence or there was evidence that he had never told anyone his password. So, in this instance, there was evidence that he presumed that someone must have guessed his password. There is also the other evidence ‑ ‑ ‑
HAYNE J: His case being that this was the name of a band that he was a member of, it was an advertised band though it did not seem to play very often, and that it was readily guessed.
MR BATES: That is right. He said that he would go into the computer lab and write the name up on the whiteboard and that he was involved in the band, as your Honour Justice Hayne has indicated, and it was readily guessed. You also then have the other evidence that the computer lab could only be accessed after hours by a swipe card to get in the front door, then a PIN number to disable the alarm and then you needed a swipe card to get into the actual computer lab.
There was an exhibit, exhibit 4B, which detailed when the appellant’s swipe card and PIN number had been used to access the lab after hours, and that is at appeal book 148 to 150. The appellant ultimately did not dispute that at the times indicated through the swipe and PIN card that he was actually in the lab, and there was this correlation between the times the images were downloaded and the times that the appellant was in the computer lab.
GLEESON CJ: Mr Bates, was the theory of the defence that somebody else of a mischievous or malicious nature did this in order to cause trouble for him? What would be the purpose that somebody else would put images like this into his computer?
MR BATES: Yes, the defence was simply that “I didn’t do it”, and it was suggested that Mr Frazer, who was someone who had on a couple of occasions gone with the accused – the accused or the appellant had accessed him and they were both on computers side by side, that it may have possibly been Mr Frazer, but there was no ‑ ‑ ‑
KIRBY J: There was also the theory of a hacker, was there not?
MR BATES: There was a theory of a hacker. It was either someone else who was in the lab, although there was occasions when he was in the lab alone, so it could not have been anyone in the lab. It would have had to have been someone outside hacking in using his user name and his password, because there was evidence that two people could use the one user name and password at the same time and download images at the same time.
GLEESON CJ: The expression “download” in this context just means getting the images on the screen, does it?
MR BATES: It just means, as I understand it, putting the images in your personal directory.
GLEESON CJ: But viewing them on the screen as distinct from bringing them into hard copy?
MR BATES: That is right, yes. So, in our respectful submission, there was a very strong ‑ ‑ ‑
KIRBY J: There was another point, was there not, suggesting that the images were put away in files in a safe and careful way, of the appellant’s files.
MR BATES: Yes.
KIRBY J: Can you just explain that to me. I did not quite understand it.
MR BATES: Yes. All the images were located in the appellant’s personal directory and that was “d:\\users\curtin\boundsm”. So they were in the personal directory. That was a directory that could only be accessed by the appellant using that user name and password. The evidence that relates to that is Jones, the university administrator, appeal book 34D to E, and Thomas, who is the computer expert, appeal book 70A to D.
That personal directory was used to store other personal information that related solely to this appellant, and that evidence came from Thomas at appeal book 69C to 71E. So the circumstantial case against the appellant was very strong and coupled with the circumstantial case ‑ ‑ ‑
GLEESON CJ: Before you leave that, can I ask you another question about the facts?
MR BATES: Certainly, your Honour.
GLEESON CJ: How long had these child pornographic images been stored in his personal directory?
MR BATES: The images were stored between 2 July and 28 July and in our outline of submissions there is a table that shows when each of the images was downloaded. That is at page 4.
GLEESON CJ: Yes, and my next question is: had he accessed his personal directory between those two dates?
MR BATES: As I understand it, the evidence is silent as to that point, your Honour.
GLEESON CJ: The reason I asked the question was this. Let it be assumed that some other mischievous or malicious person, some hacker, for example, was putting these images into his personal directory. It is fairly obvious, is it not, that certainly he would have either known they were there or would have had access to them himself? They were not being hidden from him.
MR BATES: That is correct, your Honour, yes. As I understand it, there is no evidence as to whether he had access to his personal directory during the period that these images were downloaded, but certainly they were not hidden from him. They were in his personal directory. They had a path name attached to them and ‑ ‑ ‑
GLEESON CJ: In his evidence did he say that it came as a surprise to him that these images were there when he was told by the authorities, or had he been aware that they were there?
MR BATES: His evidence, as I understand it, was that he was not aware that they were there. He was told that his access had been cut off and he made inquiries as to why his access had been cut off.
GLEESON CJ: If some of these images had been there for a few weeks – is that case, some of them had been there for a few weeks?
MR BATES: Yes, certainly some had gone on there on 1 July.
GLEESON CJ: And if they were in his personal directory for a few weeks, what was his evidence about whether or not he had access to his personal directory during those few weeks?
MR BATES: I do not believe – he was certainly cross‑examined about occasions when the records showed that he had or that someone had downloaded the images the subject of the charges, but I do not know that it was ever put to him that he accessed his personal directory during the month of July when these images were downloaded.
GLEESON CJ: Would it be possible to have access to your personal directory and not notice these images?
MR BATES: The images certainly had the path and there was certainly a large number of them, 105, between 1 July and 28 July 2001, so there was a very large number of them and, in those circumstances, in our submission, it would be unlikely that you would not notice that there was such a large number of images on the appellant’s case that he had not downloaded it and did not know anything about.
KIRBY J: Forgive me, I am not too familiar with the technology, but it is not like picking up a manila folder in which there are 105 hard copy pornographic pictures amidst your draft essays on ancient history. It is a matter that you would have to tap into the computer the signature to bring up the particular images, would you not?
MR BATES: That is right, as I understand it.
KIRBY J: So, unless you tap that in, you are not going to bring up the images. They can be there but they can be like all the other material that is in computers; you do not see them unless you ask for them.
MR BATES: Yes. In our submission, if you went to the personal directory, you would see the paths which showed these 105 images. If you went in on 28 July 2001 – not the images but just the path name, you would see that.
HAYNE J: I am not sure that is right. It depends how you go in. If you go in and look for the whole tree, yes. If you go in and search for a file with a “doc” extension, you will not see any of these JPEG files.
MR BATES: Yes, we accept that, your Honour.
GLEESON CJ: At all events, he was not questioned about this in cross‑examination.
MR BATES: My reading of the transcript is that he was not questioned about those aspects in cross‑examination, no. There were certainly questions about certain times that he was in the lab and what time of day it was and whether there was anyone else in the lab and matters of that nature, but he was not cross-examined on that point, your Honour.
KIRBY J: You said that there were some direct – had you finished the circumstantial evidence?
MR BATES: Yes, I have finished the circumstantial evidence and that is set out at ‑ ‑ ‑
KIRBY J: There was some direct evidence of admissions, was there not?
MR BATES: Yes, I can take the Court to those. It is in the evidence of Kathline Michalanney. It is appeal book 53B to E.
KIRBY J: He explained these by saying he was in shock that the police had been brought into this matter, is that not correct?
MR BATES: That is correct, yes. He did not have a recollection of what had been said. It commences about line B:
Do you recall what you said to the accused man?---I explained the purpose of the meeting and from my notes explained that objectionable material was located on his files on the Curtin University network.
Was there a response from the accused man at any stage?---He acknowledged that he had downloaded material.
MULLER DCJ: How did he do that?---He nodded and later said that he was sorry and he was sorry for letting us, the university, down.
PORTER, MR: Did he make a statement to you shortly before the meeting completed?---He also said that he wasn’t getting this material for himself and that he was doing it to sell.
The meeting concluded at that point in time?---After that was said, Phil and I said to him not to say anything else.
And the meeting concluded?---Yes.
Then the notes in question were tendered by consent. That is the notes of the witness, Michalanney.
GLEESON CJ: Where are they?
MR BATES: The notes are exhibit 7. It is page 151 of the appeal book and it is a document headed “Inappropriate use of Computer Downloading of Pornography”. It tracks through the sequence of events of his access being suspended, him being given the letter to attend for an interview, then the interview. The third-last paragraph:
At the interview, with program manager and network manager, the student agreed that these facts were true, the student said that the material was not for their personal use, but for re sale, and after verifying the actions to be taken, accepted what had been told to him and apologised for letting the university down.
The other evidence came from Mr Phillip Jones, the administrator, and that is at appeal book 35. It is at appeal book 35. It commences about line C. It commences with the question:
Perhaps you can describe how it was that you came to be at that meeting on 1 August 2001?---Kathline, as I said, being the management representative on campus, wanted – we had to have an interview I suppose with Matthew. I unfortunately had to be in the office at the time and she asked me to be the independent witness at that interview.
He goes on and says the time was at 3 o’clock, and then the critical question about line D:
Perhaps you can just describe what occurred at the meeting?---Kathline basically said to Matthew about him having pornography and child pornography in his I drive.
I will stop you there. When you’re referring to I drive, you’re referring to the home directory?---The home directory, yes. I have got a note that he admitted by nodding his head and muttering. When told about the suspension as a Curtin student, he implied he was expecting it and he asked when he would get the letter. Then Kathline said, “Is there anything else?” He got up to leave and he said he wanted to make it clear that it wasn’t for himself. He wasn’t like that. He was only doing it for the money, at which stage both Kathline and myself stopped him from saying any more.
The notes were later tendered by consent. The notes are at exhibit 6. They are at appeal book 131. They are handwritten notes, appeal book 131, and they are in these terms:
Kathline explained to Matt about him having porn/child porn on his I drive – he admitted it by nodding head & muttering. When told about suspension as a Curtin student he implied he was expecting it. He asked when he would get a letter. When he was leaving said he wanted to make it clear it wasn’t for himself – he wasn’t like that, that he was only doing it for money ‑ ‑ ‑
GLEESON CJ: When were those notes made?
MR BATES: I will turn up the evidence of Jones.
CRENNAN J: Page 36.
MR BATES: Yes, he is asked at about A:
How soon after the meeting did you make those notes?---I made those during the meeting, because I basically wasn’t part of the meeting. I was just the witness.
The observer. Does it accord now with your memory of the meeting?---It was 2 years ago – yeah – but I can sort of recollect most of it, yeah.
GLEESON CJ: I think we were told during the special leave application that the appellant was not in a position to contradict that because he said he had no recollection of the terms of the interview, but that the line that was taken in cross‑examination was that what he had said was or could have been ambiguous and might have been misunderstood, is that right?
MR BATES: Yes, I recollect that. Unfortunately at the special leave there was material missing from the appeal book. The position is that in respect of Jones there was no cross‑examination of his evidence. In respect of Michalanney there was one bit of cross‑examination. That was at page 57 of the appeal book and commenced about E:
In your notes on the interview, you say that when it was put to him about this objectionable material he agreed he had been downloading it?---Yes.
What did he say?---He lowered his head in a sort of nodding motion and he said – he was sort of mumbling.
You took that to being an agreement to your accusation that he had downloaded objectionable material?---Yes, because later he apologised.
So in fact he didn’t actually say, “Yes, I did download the objectionable material”. He lowered his head. He made a nodding motion?---Yes.
At that point in time?---Yes.
He mumbled something?---Yes.
Later on he apologised for downloading it?---Yes.
Did he say, “I’m apologising for downloading that material”?---Not exactly.
He apologised for his behaviour?---
KIRBY J: How old is the appellant?
MR BATES: The appellant is 21 years of age.
GLEESON CJ: What I am interested in is what was the defence case about the evidence of Mr Jones that he said he was doing it for money? Was that challenged?
MR BATES: Mr Jones’ evidence was not challenged on that point. There was evidence led from the appellant himself that his mother and sister were having a market stall and that they were intending to sell items at that stall. The five images that came from an unknown source that he had downloaded, that he had admitted that he had downloaded - he thought they were images of a band, Metallica - and he was going to frame those images and sell them at the market stall that his mother and sister were having. His mother also gave evidence that she was having a stall with the daughter and that items were going to be sold at the stall. That was the way in which the admissions that the material was not for himself, that he was going to sell it, that was how that was explained.
KIRBY J: He seems hardly likely to have been selling the material that was the subject of the charges, not at the store.
MR BATES: That is correct. The appellant was cross‑examined in relation to the admissions and that is at appeal book 123D. I will just read the passage:
You’ve heard their evidence – and I can read from the notes if you wish, but from my recollection it was that as you left the meeting, you apologised. You said that you wanted them to know that you weren’t like that. They weren’t for you and you were doing it for money? ‑ ‑ ‑Well, I can’t remember saying that.
You can’t remember but you’re not disputing it was said? ‑ ‑ ‑I heard the evidence, yes.
If they were images of Metallica that you were talking about, why would you be saying that you weren’t like that? Do you think it’s a shameful thing to be interested in heavy metal? ‑ ‑ ‑Not at all.
Then it was put to him at 124:
What those two witnesses have testified to is entirely consistent with someone confessing to having child pornography on the computer, isn’t it? Would you agree? ‑ ‑ ‑It can be viewed that way.
That was the end of the cross-examination. Just to complete the direct evidence, that evidence was summarised by Justice Steytler. I will not go to it but I will give the Court the references. Page 216 of the appeal book, B to C, paragraphs 16 and 17 of Justice Steytler’s judgment and Justice McKechnie also summarises the evidence at appeal book 227 to 228, paragraphs 56 to 58. I will not take the Court to that unless the Court wishes me to.
In our respectful submission, when one considers the circumstantial evidence in combination with the direct evidence, this was an overwhelming case. There was ‑ ‑ ‑
KIRBY J: But what do you say to counsel’s submission to us that it is difficult enough to confront a charge or charges of – or a charge of multiple cases of child pornography, but to throw in other and irrelevant allegations of bestiality and other obscenities is an impermissible intrusion of extraneous matter into the trial and, depending on the reaction of the jury to that matter, is the type of thing that really attacks the very foundation of the fair trial on the only matter that was properly before the jury?
MR BATES: We would deal with that issue in this way. We would say that the instant case is akin to improper joinder and the wrongful admission of evidence in a sex case and the question is what is the prejudice - for example, a sex case where you have a separate complainant giving evidence in support of counts that never should have been on the indictment, it is usually the case that there is great prejudice because of the improper joinder. But in our submission, this is a different case. There was the admission that we have referred to by counsel at the outset of the trial that the material was child pornography and obscene and indecent material, and the trial judge also commented on that. So the jury never got to see the ‑ ‑ ‑
GLEESON CJ: Just a minute. There is an anterior question, is there not, and I am not sure that you are facing up to it. The question is, is it not – or a question that has to be faced is, it is not, if there had never been a second count in this indictment and if he had never been charged with a contravention of section 59, would the evidence in relation to the images in question; that is, the images that were the subject as it happens of count 2, have been admissible in relation to the charge on count 1?
MR BATES: There is an issue there. Our primary argument is, whether they were admissible or not, having regard to the facts of this case, this is an appropriate case where you can apply a proviso, so we adopt what Justice Steytler and Justice Murray said. Justice Steytler did not find it necessary to determine whether the evidence subject to count 2 was admissible, so that is ‑ ‑ ‑
KIRBY J: But the first step in applying the proviso I think is to find out whether an error has occurred.
MR BATES: That is correct, yes.
KIRBY J: And therefore we have to ask ourselves, do we not, who is right amongst these two: Justice Murray who said, “Well, it’s an immaterial matter because it would have been admissible anyway as evidence of the first count”; or Justice Steytler who says, “Well, I’m not going to answer that question”.
MR BATES: The primary question is, is the evidence admissible? If it is not admissible, then the question is, can you apply the proviso notwithstanding the wrongful admission of the evidence that formed the subject of a count, and it is primarily that second matter where we place great weight on, because we say on the facts of this case it would not have made any difference.
But on the threshold question of admissibility we say that we adopt what Justice Murray said in his judgment and say that the evidence was admissible as evidence of uncharged acts, and Justice Murray thought that was relevant to the proof of possession of child pornography on count 1 and his argument was basically a proliferation argument that if you have 105 child pornography images and 11 obscene and indecent images, it rebuts his defence that he did not know that this material was in the home directory of his computer. So there was what has been referred to as the proliferation argument in that respect.
If I can just take the Court to where Justice Murray deals with that, it is at appeal book 214 at paragraphs 8 and 9. Paragraph 8 commences between B and C:
However, I am far from persuaded that the evidence concerning the downloading of the indecent or obscene material the subject of count 2 was inadmissible in respect of count 1. In my opinion, that evidence would have been admissible as evidence of uncharged acts relevant to the proof of the possession of child pornography the subject of count 1: Buttsworth v The Queen [2004] WASCA 69. That is because, as Steytler J explains, apart from a variation in respect of a limited portion of the material, the appellant’s defence, contrary to the evidence of his admissions at the interview with Ms Michalanney and Mr Jones, was that he did not himself actively acquire possession of the material through the use of the computer, and it could only be supposed that somebody else had been able to obtain access, as if he or she was the appellant, and downloaded the material so as to store it in the appellant’s computer files.
In relation to that defence it would, in my opinion, be relevant to prove the proliferation of the number of acts by which material of a prohibited kind was introduced into the computer system operated by the appellant and the times during the period immediately preceding 28 July 2001 when the records showed that such conduct occurred. The greater was the proliferation of instances, the more likely the jury might regard it as being the conscious act of the appellant exercising his authority to operate the computer system which led to his possession in the system of child pornography on 28 July 2001.
We adopt what Justice Murray says and submit that the evidence was admissible for those reasons, but what we say is at the end of the day it does not matter and that this is a case where you can apply the proviso because the jury never got to see the images, there was very limited reference to the images throughout the course of the trial, and we have been through that evidence this morning.
There was the direction to the jury to guard against prejudice by virtue of the nature of the subject matter itself. I will just give the Court the reference. That is at trial judge appeal book 199A to C. There was a direction to consider each count separately. That is at appeal book 190A to D. The central issue in this case was possession and we would adopt what Justice Steytler said and the fact that Justice Murray concurred, that it did not matter whether the appellant had downloaded 100 or 111 images, whether the images were exclusively child pornography or child pornography and other pornographic images because that could not have been of any significance to the jury on the question of whether it was the appellant or someone else who had downloaded the images.
In our submission, the only prejudice comes from the subject matter. It was never tendered. There was limited reference to it. The vast bulk of material was child pornography which was the more serious material and there were only 11 indecent obscene images which were the less offensive material.
So in the context of this case it is our submission that whether the evidence on count 1 was admissible or not, it did not affect the overall result of the trial. If I can deal with the fundamental error, whether an error is fundamental or not ‑ ‑ ‑
KIRBY J: Can I just ask you before you go on to that, you said earlier that this is akin to improper joinder of counts.
MR BATES: Yes.
KIRBY J: What is the authority on that? What is the principle concerning improper joinder of counts?
MR BATES: I was really just going back to basics that go back to cases such as De Jesus. Normally, with sexual matters if ‑ ‑ ‑
GLEESON CJ: That is the anterior question, is it not?
MR BATES: Yes, it is.
GLEESON CJ: The counts would only be improperly joined if the evidence in one was not admissible on the other.
MR BATES: That is correct, yes.
GLEESON CJ: So the first question you have to ask yourself is whether the evidence in relation to count 2 was, in any event, admissible in relation to count 1.
MR BATES: Yes.
GLEESON CJ: Leaving aside the jurisdictional question, it is only if you answered that question “no” that you would get into the area of improper joinder, is it not?
MR BATES: That is correct. What we are saying is that we adopt what Justice Murray said in relation to the admissibility of the evidence ‑ ‑ ‑
KIRBY J: But Justice Steytler and Justice McKechnie did not agree with that. I must say that I have some reservations myself as to whether evidence that a person has in his possession child pornography is proved by the fact that there is also evidence of sex with animals or material that illustrates that, because it does not necessarily follow that the one inclination is reflected in the other. People can have different sexual interests and the fact that a person has an interest in under age is not necessarily proved by the fact that somebody else has material that is relating to sex with animals. They are not the same obsession.
MR BATES: Yes. That is why we put the argument in the alternative. We say that Justice Murray was correct, but even if Justice Murray was wrong and the evidence was inadmissible, then this is a case where the proviso can be applied because the admission of this evidence would not have made any difference in ‑ ‑ ‑
KIRBY J: Assume we have got over the anterior question now. I am interested in your analogy because it may be that that provides a fruitful source of thinking about what one does if a mistake has happened in admitting this evidence in this trial. What is the case? Is it De Jesus, is it, that refers to the improper joinder of counts on an indictment?
MR BATES: Yes. It harkens back to cases such as De Jesus whereby it used to be the case that you could only lead evidence or have counts relating to different complainants if the evidence in respect of one complainant is admissible in respect of the other complainant. The authorities were to the effect that if the evidence of one is not admissible on the evidence of other then, it being a case of a sexual nature, there is a high degree of prejudice that cannot be cured by any direction to the jury and, therefore, in those cases of improper joinder of sexual matters the courts have not applied the proviso. So it is a question of looking at ‑ ‑ ‑
KIRBY J: That is what I would have thought of. Now, why is that not analogous to this case? Obviously Justice McKechnie thought it was.
MR BATES: Well, we would submit that it is a question of looking at what was the prejudice in ‑ ‑ ‑
KIRBY J: Every time counsel referred to the “sex with animals” material he screwed his nose up and obviously it was deeply offensive to him. People react differently to these things. The legislature obviously does not think it is as serious as child pornography and in that respect probably the legislature reflects the views of the community. But there are some people who might be really affronted and disgusted by sex with animals. So the question is, did that contaminating factor going before the jury risk a mistrial in this case?
MR BATES: We would submit that it is a question of looking at the degree of prejudice, that the evidence was admissible and, in our submission, the fact that the bestiality images or the fact of bestiality images was inconsequential having regard to a number of factors in this case. The jury never got to see the images, there was limited reference to them. There was the direction to guard against prejudice by virtue of the subject matter of the material itself. There was the separate consideration direction, to consider each count separately.
In this particular case the central issue was possession and that was the issue upon which the case stood or fell and it did not really matter whether he had downloaded 100 images or 111 images. The question was whether the Crown had proved beyond a reasonable doubt that it was the appellant who downloaded the images. So what we would say is, when one has regard to the evidence of guilt which is overwhelming, the circumstantial evidence, the direct evidence, we say that this error, if it was an error, in allowing inadmissible evidence in ‑ ‑ ‑
HAYNE J: You keep referring to “this inadmissible evidence”. I think we may need to be a little more precise. First, on the trial of the child pornography charges, would it have been admissible to tender a complete list of everything that appeared in the appellant’s directory on the computer?
MR BATES: In our submission, it would have been admissible to tender the complete list for the reasons ‑ ‑ ‑
HAYNE J: That is to say, it would have been admissible to tender a list that included any and every image that appeared in that directory?
MR BATES: In our submission, yes.
HAYNE J: Indeed, on one approach to the matter it is perhaps surprising that the full listing of the directory was not before the jury.
MR BATES: And that is for the reason that his Honour the Chief Justice has mentioned, that you could see when it was accessed and what actually was in there and how these images, the subject of count 105, how they can fit it in with the total directory.
HAYNE J: Thus, what goes to the jury that perhaps should not have gone to the jury is the admitted fact, the conceded fact, that the particular images which are on the accused’s directory are indecent or obscene.
MR BATES: Yes.
HAYNE J: That might be the material that is before the jury that should not have been there, not the fact that the files were in the directory, it seems to me.
MR BATES: That is correct. It was the fact that 11 of the images were obscene and indecent, eight were obscene and three were bestiality. Our primary submission is that that evidence was admissible, but if it was not then, in our submission, the prejudice in this case was inconsequential because of the issues that were thrown up in the trial.
GLEESON CJ: I think the point that is being made to you is that the problem is not one of the admissibility of evidence. The problem arises in relation to the statement of an agreed fact. If by hypothesis the whole of the contents of the file constituted admissible evidence, the problem arises because counsel agreed that some of the contents of the file included obscene material.
MR BATES: That is correct, your Honour, and that was as a consequence of the fact that count 2 was on the indictment and it was not picked up that it, in our submission, should not have been on the indictment. That is a starting point.
KIRBY J: How does the fact that you have some materials relating to sex with animals prove that you have an interest in under‑age sex with human beings?
MR BATES: It is the proliferation of the material of a prohibited kind. Whether it is child pornography or some other sort of pornography, it is proliferation of ‑ ‑ ‑
HAYNE J: Spoken like a true prosecutor. I would have thought the relevant fact was that these images were on his directory and in his possession.
MR BATES: That is right.
HAYNE J: And that is the fact.
MR BATES: Because possession was the central issue of the trial.
HAYNE J: And their quality was neither here nor there.
MR BATES: And what the images were was just not an issue in the trial because there was an admission and there was limited reference to them and the jury were directed to consider the counts separately and not be prejudiced by the nature of the images themselves.
HAYNE J: And whether he was interested in them assumes, rightly or wrongly – the evidence does not go to this point – that these were matters which he obtained for his personal satisfaction, not for some commercial transaction.
MR BATES: That is right.
HAYNE J: Now, these were matters into which the trial did not and indeed probably should not have gone, save to the extent flagged by what it is said he said to the investigating people from the university.
MR BATES: Though, in our submission, having regard to the issue, the central issue was one of possession and therefore these other issues, in our respectful submission, fell away so there was no fundamental error and there was no substantial miscarriage of justice. Further, in our submission, the fact that count 2 was a charge on the indictment did not give greater weight to the material for the reasons that I have just indicated.
If I can move on and deal with some other issues, ground 4 related to the admissibility of exhibit 11 and, as has been indicated this morning, exhibit 11 – this was the path for the bestiality movie – its forensic value lies in the time that the file was created and, in our submission, this was apparent from the way in which the exhibit was tendered.
It is appeal book page 80 and it is about C. Mr Porter said:
Below that, if you can just go down, there’s a movie file. That’s not the subject of either of these two counts but I suspect my friend might like to know when it was created. Can I confirm it appears in Matt Bounds’ directory again?---The boundsm directory, yes.
Yes, and then can we just go into the detail table. That’s actually a movie file, is it?---Yes, it is.
Go to the far right. That’s its full path name, and what was the time of creation for that? 30 July?---30 July 2001 at 11.19.
Just for thoroughness’ sake, if you can take that document – you have got a hard copy of that?---Yes, I do.
Your Honour, that document is not the subject of any of these charges but as it may be a matter as to when things were or were not saved, the crown for completeness intends to tender it with the consent of my friend.
Then there is some reference to the description of it. Then at the top of page 81 it is then tendered and the learned trial judge said:
The document described as one movie, full path, which is not the subject of either count in the indictment, will be received into evidence by consent – it must be by consent ‑ ‑ ‑
HAMILTON, MS: It is, your Honour.
The judge then marked it as exhibit 11. So the appellant’s counsel at trial was endeavouring to establish that an unlawful image not the subject of either count in the indictment was downloaded at a time after the appellant’s access had been revoked and the appellant’s counsel made much of that point in her address to the jury. I will just give the Court the references in her closing. It is at AB 174A to B. There was also some cross‑examination of the witness, Jones, at 45D to 46A.
The appellant seeks to draw a nexus between the practical decision made and the erroneous inclusion of count 2 on the indictment asserting that different tactical decisions may have been made on an indictment containing count 1 alone. However, in our submission, there is no nexus between the inclusion of count 2 on the indictment and the tactical decision. The inclusion of count 2 on the indictment was, in our submission, irrelevant to that tactical decision and, given the lack of any nexus between the tactical decision and the wrongful inclusion of count 2 in the indictment, the appellant remains bound by the tactical decision made at trial.
GLEESON CJ: Mr Bates, you said that the issue on which the trial was fought was the issue of possession.
MR BATES: That is correct, yes.
GLEESON CJ: That can be refined a little, can it not? Possession has two aspects, one factual and one mental.
MR BATES: Yes, the physical and the mental.
GLEESON CJ: The physical and the mental. The issue on which the trial was fought was the mental issue, what I might call the He Kaw Teh aspect of the possession issue, was it not?
MR BATES: That is correct.
GLEESON CJ: There was no dispute that factually these images were in his control. The defence case was that he did not know they were there.
MR BATES: That is correct. In respect to five his defence was that he downloaded those but he did not know what they were. That is the five from Canada. So he clearly put in issue the mental element there. With respect to the others he said that they were in his directory but he did not download them, so he was disputing that he knew that those images were in his directory.
GLEESON CJ: The images were in his control, but his defence was that he did not realise they were?
MR BATES: That is right, yes.
CALLINAN J: “Possession” is defined, is it not, in the Code?
MR BATES: The common law definition that the learned trial judge has directed the ‑ ‑ ‑
CALLINAN J: But it is defined, is it not, in section 1?
MR BATES: “Possession” is not defined in the Criminal Code, your Honour.
CALLINAN J: Are you sure?
MR BATES: My learned friend, Mr Marshall, says that that is right. I am sorry, it is, your Honour.
KIRBY J: It is on page 34 of the print we have.
MR BATES: I am sorry, it is. Yes:
The term “possession” includes having under control in any manner whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing or property in question.
GLEESON CJ: That is an inclusive definition, but is it common ground that there is a mental element of what I summarised as the He Kaw Teh kind involved in the concept of possession in a case such as this?
MR BATES: That is correct, your Honour, yes. There is the physical element and the mental element.
GLEESON CJ: The issue in this case concerned the mental element?
MR BATES: In our submission, yes. If I can deal with ground 5 which relates to the direction on exhibit 11 which was the movie and exhibit 12 which was the list of websites. So, in our submission, it was the time of the download of the pornographic item that was an important issue in the case, notwithstanding the prejudicial nature of the item in question and the real issue at trial was not whether the material downloaded contained child pornography or was obscene, but whether the appellant possessed the material in circumstances where he knew of its contents and had taken steps to download it. So, in our submission, exhibit 11 did have a relevance over and above propensity in that it showed an underlying system of access to pornographic sites and we rely upon what Justice McKechnie said at appeal book 233, paragraph 78.
So, in our submission, the evidence in respect of exhibit 11 was admissible for a limited purpose and the trial judge correctly directed the jury against any permissible line of reasoning. I deal with exhibit 12 which is the – or the direction of the trial judge I will just refer the Court to. It was at 196B to D.
Exhibit 12 is the list of websites and Justice McKechnie noted that there was an argument open to the prosecution to use the list as a circumstance giving rise to the possibility of access to child pornography, the question of possession of such material being at the very heart of this case. Justice McKechnie’s judgment on that is appeal book 234 at paragraph 79.
Justice McKechnie also noted that the manner in which the learned trial judge dealt with the evidence left the jury no doubt as to the limited use that they could make of the material. In our submission, it sufficiently emerged from the trial judge’s direction that they must not engage in propensity reasoning and such reasoning was totally impermissible. Accordingly, in our submission, there was a relevance to exhibits 11 and 12 beyond the propensity and the trial judge adequately cautioned the jury against engaging in propensity reasoning.
If I can deal with the final ground, which was the ground that is sought to be added. In my learned friend’s outline of submissions, he refers to two English authorities, Smith and Callaghan. Those authorities are to the effect that you only quash the count or counts that are improperly joined through want of jurisdiction. In our submission, there is no statutory provision which renders the whole indictment a nullity. Each count stands or falls on its own merits. In this case, count 2 falls because there is no jurisdiction and count 1 remains valid.
In the decision of Paciente, although the matter was not argued, the Court only quashed the conviction on the simple offence for which there was no jurisdiction and the conviction on the indictable offence stood. In our submission, count 2 is invalid through no jurisdiction – it is quashed – but count 1 remains a valid count on a valid indictment. Our submission is that the issue in this case was possession. Having regard to the fact that that was the issue in the case, there was no fundamental error and the proviso can be applied because there was no substantial miscarriage of justice.
GLEESON CJ: Could I just ask you whether this is not an accurate analysis of the position in relation to admissibility. I preface by asking, is it accurate to refer to the appellant’s personal directory?
MR BATES: Yes.
GLEESON CJ: Right. Why was not evidence of the contents of the whole of the appellant’s personal directory, prima facie, admissible?
MR BATES: In our respectful submission, it would have been admissible.
GLEESON CJ: Then, in that event, was not the proper rubric under which to deal, if somebody wanted to deal, with the possible exclusion of evidence as to some of the contents of that directory, the rubric of evidence whose prejudicial effect outweighed its probative value. Is that not the basis on which trial counsel would have sought to exclude evidence of this count 2 material if there had been any issue about it at the trial.
MR BATES: That is correct, your Honour, yes.
GLEESON CJ: But, of course, there was no issue about it at the trial because of the formal admission that was made by trial counsel on page 16.
MR BATES: That is right, yes.
GLEESON CJ: She was the person, actually, who told the jury that the contents of the file included obscene material.
MR BATES: That is correct, your Honour, yes.
CALLINAN J: Mr Bates, why would evidence, for example, of psychology material – I think he was a psychology student.
MR BATES: Yes.
CALLINAN J: That he had gained access to that, how could that be relevant to the charges?
MR BATES: We would say it would be relevant to the charge for this reason, that it shows the total contents of the personal directory and that these objectionable items were stored in his directory amongst other items of a personal nature and it went to this issue of possession, both the physical and the mental element of possession.
CALLINAN J: But everybody would know that he would have other material on his personal directory. I just do not see myself at the moment that it is relevant to any of the charges.
MR BATES: It would be relevant to show ‑ ‑ ‑
CALLINAN J: I can see that some of the times, the times when the pornographic material was accessed, anything about that time, that he accessed other material at about that time, I can see that that could be relevant, but for the moment I cannot see any possible relevance to the whole of the directory.
MR BATES: The timing is certainly relevant but the whole of the directory ‑ ‑ ‑
CALLINAN J: Yes, but the timing relates to material accessed at or about the time that access was gained to the objectionable material, the relevant material, the subject material.
MR BATES: In our submission, the whole of the directory would be relevant to see what proportion of the directory was the objectionable images in comparison with the ‑ ‑ ‑
GLEESON CJ: Well, how would you know – unless you had evidence of the whole of the directory, how would you know what his directory consisted of?
MR BATES: That is right, and there was no evidence of the whole of directory in this particular case.
CALLINAN J: Why do you need to know what the whole of his directory consisted of?
KIRBY J: A lot of this might be prejudicial and damaging to people to have ‑ ‑ ‑
GLEESON CJ: That is why there is a ground of rejection of evidence on the basis that the prejudicial effect outweighs its probative value.
CALLINAN J: But it has to be relevant first, and at the moment, for myself, and speaking only for myself, I cannot see that this other material has a relevance.
MR BATES: It would only be relevant to show ‑ ‑ ‑
CALLINAN J: Unless it was approximate in time perhaps to the gaining of access to the pornographic material.
MR BATES: It would only be relevant to show ‑ ‑ ‑
CALLINAN J: I mean, if somebody read 10 books and one of them was pornographic and he had access to 10 books in a library and he took 10 books home, you would not call evidence of the nine books, or you would not give evidence that he had nine other books.
MR BATES: There was obviously a judgment taken at trial not to include details of the rest of the personal directory, so I do not know why that decision was taken, but it would only be relevant to show that if there was only a small number of other personal items and there was a large number of objectionable items, it might be relevant in that instance.
CALLINAN J: We do not know that, do we?
GLEESON CJ: What is all that material that appears on pages 133 to 140?
MR BATES: What was tendered was the – that is all the entries in July for the swipe card where the swipe card and the PIN number was used. That is 4A. Then the other exhibit was 4B, which just included the relevant
swipe card entries and 4B appears at pages 148 through to 150. So 4A was the totality of the swipe card PIN number uses and 4B relates solely to the relevant matters, and your Honour will see that there is reference to G12, G11 - I am looking now at 148 – G12, G11, G10, G9, and on page 4 of our outline of submissions we have a summary of what images were created and when those images were created.
GLEESON CJ: What is the material on 153 and 154 and 155.
MR BATES: That is the exhibit 9 which is the 105 child pornography images full path. So that is the full path of the 105 child pornography images, the subject of count 1. It commences at ‑ ‑ ‑
HAYNE J: Showing that they are stored in a subdirectory of Mr Bounds which is “Countach for Animation\A23, Pschology notes”?
MR BATES: That is right and there was some cross‑examination that “Countach” was a type of motor vehicle that ‑ ‑ ‑
HAYNE J: Lamborghini.
MR BATES: Mr Bounds had an interest in a Lamborghini, yes. Then exhibit ‑ ‑ ‑
HAYNE J: The Crown case was, as I understand it, that the offending images were stored in a directory to which he and he alone had access.
MR BATES: That is correct.
HAYNE J: If the content of that directory, that is, if the listing of that directory is to be admissible it may perhaps be admitted on the basis that it is showing that he and he alone stored material personal to him on that directory and revealed the nature of the directory where the material was stored.
MR BATES: Yes, possession being the central issue in the case, both the mental element - or more particularly, the mental element. May it please the Court. They are the submissions on behalf of the respondent.
GLEESON CJ: Thank you, Mr Bates. Yes, Mr Marshall.
MR MARSHALL: Mr Giudice is going to reply.
GLEESON CJ: Yes, Mr Giudice.
MR GIUDICE: May it please the Court. My learned friend said that in relation to these counts each count stands or falls on its own merits. Unfortunately, that was not the case at the trial, in my submission, because the trial judge commented to the jurors that these charges stand or fall together and that is one of the reasons why the wrongful inclusion of count 2 on the indictment carried, in our submission, the gravity or the weight that it did.
GLEESON CJ: Was the trial judge saying anything more than that there is no separate issue as between the two charges, the issue in the case being knowing possession?
MR GIUDICE: He was saying that, your Honour, but what if the jurors considered count 2 first, for example, and decided ‑ ‑ ‑
GLEESON CJ: What difference would it make if the issue in the case was knowing possession?
MR GIUDICE: Well, the difference is, of course, the charge should not have been there in the first place. That is the ‑ ‑ ‑
KIRBY J: Yes, but the suggestion is that the battleground that you chose, and that was the real battleground before the jury, was whether you were in knowing possession. It was not whether it was obscene. It was not whether it was bestial. It was not whether even it was child pornography. That was accepted. The battleground was knowing possession and it is suggested that concentration on that battleground swamped any possible incorrect influence of having present in the counts of the indictment the count that should not have been there.
MR GIUDICE: Except for the highly prejudicial nature of the material alleged.
KIRBY J: No, but that is not – it is potentially prejudicial, I accept that, but it is not prejudicial when you have chosen the battleground of knowing possession. Now, what is the answer to that? If that is what the jury is concentrating on, then what is the prejudice of the nature of the material which is, in a sense, conceded and accepted and out of the way?
MR GIUDICE: The prejudice is that the jury would say that this is the sort of person who has an interest in animal sex and that because this was a case of credibility, that they would find that this person was not a credible witness, the accused.
HAYNE J: The accused went to the jury on his counsel’s final address at the foot of 177 to 178. Counsel for the appellant put the case to the jury, particularly at 178B:
on the crown evidence, you may well find he –
that is, the appellant –
possessed [the files].
The challenge she put out to the jury was, on the Crown evidence, in effect, you could not find that the accused had ever opened these files up and that he ever knew what was inside the files. That is, by the time we go to final addresses the only issue is: did he know what was in the files? Do you accept that as a characterisation of the way that the trial had concluded?
MR GIUDICE: Yes. In relation to that, it was the credibility of the accused man that was crucial here because he said that he did not know this material was on his computer. He said he never made any admissions in regard to knowledge to anybody. He said he had not viewed the pictures. In cross-examination he said that it was put to him at one stage, “If you were going to sell these images that you knew you had downloaded, it would have been a bit odd selling” – I forget the name of the obscene material, but he said, “At that stage I would not have viewed it” or “At that stage I would have viewed it”. So he would have found out what it was.
So knowledge is really what this was all about, this case, and knowledge depended on accepting what the accused said. If you have him facing not just child pornography but sex with animal stuff as well, it is just throwing enough mud and some will stick. His credibility is seriously affected, especially when the evidence is called in support of what purports to be an indictable offence. So the jury are not thinking, “Parliament thinks that this count 2 is a less serious matter. They don’t know what the penalty is”. The jury is not thinking, “This is a matter that is normally dealt with by a magistrate”. The jury is thinking, “This is a very serious matter demanding trial by judge and jury in the District Court with wigs and gowns and all that business”.
So the evidence in support of count 2 takes on a greater gravity because of the existence of count 2 on the indictment than it would otherwise have taken on if it had been called as evidence in support of uncharged acts, to use Justice Murray’s description.
KIRBY J: But why would a jury differentiate between its attitude on one form of pornography and another?
MR GIUDICE: When the case was opened to the jurors at page 13, on one reading of it it could be argued, your Honour, that it was possible to perceive the first count as to be at least equal or less serious than the second. At 13A/B the Crown Prosecutor says that:
section 64 of the Censorship Act . . . makes it an offence to possess any images of child pornography. Child pornography is defined as meaning an article that describes or depicts in a manner that is likely to cause offence to a reasonable adult person who is or who looks like a child under 16 years of age, whether the person is engaged in sexual activity or not.
So theoretically that, for example, could be a person even over 16 who is dressed to look like he or she is under 16 and it could be just naked photographs of that person. There is no description of what this child pornography was alleged to have been. But when you look at his description of count 2 the prosecutor says:
Count 2 is the possession of indecent or obscene articles.
Not “offensive” but “indecent and obscene”. So even though it relates only to 11 images the description there, in my submission, casts it in just as serious a light, if not a more serious light. So in answer to your question, it is not as though the Crown here has opened this case on the basis of “Look, this person was caught with images of 5‑year‑old naked children on his computer”. So there is nothing in the description of count 1 which, in my submission, makes it of the most serious kind of ‑ ‑ ‑
KIRBY J: We just do not know, because of the concession. There is just no information about that so it ‑ ‑ ‑
GLEESON CJ: It was a very shrewd concession that was made. Nobody is being critical of trial counsel. She had a very good tactical reason for making that concession.
MR GIUDICE: Yes.
KIRBY J: The net result was that the trial was concentrated on the matter which was raised by the defence: did he knowingly have this in his possession or did some other student put it there, did some hacker put it there, was it somebody else’s action, and that he was completely innocent and ignorant. That was what the jury was concentrating on.
MR GIUDICE: Or was it accidentally downloaded?
KIRBY J: Yes. They were not concentrating on whether it was about sex with animals or adult women urinating or children’s images. They were concentrating on the defence which you had presented.
MR GIUDICE: It must be surely the case, in my submission, that to face a trial on simply count 1 would not be – an accused person would be in a better position if he faced a trial only on count 1 where count 2 is not also thrown in alleging he is into bestiality and women urinating and this sort of perversion, and count 2 just should not have been there. He said he was, when this information was provided to him, a 21 or 22‑year‑old, he was numb and he was in deep shock – page 106. As I said, he was asked at pages 110 and 103 whether he had viewed these pictures and whether he knew what was in the material and his answer was no.
KIRBY J: What do you say can be made of the fact that he said, thinking it to be some exculpation, that he had not secured these for himself but that he intended to sell them?
MR GIUDICE: It is my submission he was not talking about pornographic material there. He was talking about what he believed was the Metallica – and he was apologising for causing this trouble to the university as a result.
GLEESON CJ: If he was talking about musical material there, what was the point of his saying, “I am not like that”?
MR GIUDICE: As a reassurance, saying, “I know this looks like I put that there. I am not like that. I didn’t do it. What I was trying to do is get the Metallica music and I was going to sell it. This is how it came about.” It was a denial of deliberately downloading and having knowledge of that material, in my submission.
GLEESON CJ: Was there evidence as to whether, as things turned out, there was in his personal directory anything else he did not know was there?
MR GIUDICE: There was no evidence about that, your Honour.
KIRBY J: Well, your case has to be, this is a case of the total failure of the trial because of the inclusion of something that should not have been there, because once one gets into weighing the case of the prosecution, it is a very powerful case against your client. If you add the admissions that were made and recorded and the interpretation that is available on them and then you add the use of the swipe cards and the time he was in there and the evidence of the downloading of the material at those times, it is really an overwhelming case against him.
Well, is it not? I mean, essentially you have to say, “Look, I have a technical defence. My technical defence is this trial was contaminated by something being in there that shouldn’t have been there and that led to the failure of the whole trial process”, because once you are into the business of weighing up the merits of the matter and whether there has been any miscarriage of justice on the facts, it is pretty hard to establish that in this case. Is that not a correct understanding of the matter?
MR GIUDICE: Well, I would not agree, with respect, your Honour, that the prosecution case was overwhelming in this matter. There is another side to it. Often a defence is reduced to a denial.
KIRBY J: Well, it may be, but they put together this tracking of the times he went in there. They have to have his swipe card, they have to know his code and they have to know his PIN number, so there are three barriers to getting access. Now, that is pretty strong security.
MR GIUDICE: There was evidence that another person visited there with him after hours and they set up two computers in tandem working together. Also, there was a person, Mr Ratcliffe, who was not called at all. He had access to this computer. He was a co‑administrator with Mr Jones. That is found at pages 21 and 32. Firstly at 21 there is evidence that Mr Ratcliffe was the co‑administrator and had access to the system. Then the only other reference to Mr Ratcliffe was at page 32 when the Crown Prosecutor said this to Mr Jones, his co-administrator:
You did not download them onto the home directory of Matthew Bounds?---No, I did not.
To the best of your knowledge, did the other systems administrator Mr Ratcliffe?---I’m pretty sure that he wouldn’t, no.
That was not pursued as far as I can see in closing to the jury, but there is – I am sorry, I apologise. On page 94 my learned friend has just pointed out to me that Mr Porter, the prosecutor, told the judge this:
With the agreement of my friend, it is conceded that Mr Ratcliffe didn’t download the images.
So that is ‑ ‑ ‑
HAYNE J: The appellant acknowledge in cross‑examination at page 108 that he did not dispute that he was in the computer lab at the times that the files were downloaded - see letter D. So he is in the lab at the time the files are downloaded. He is asked at 122 some questions about possible explanations and he can give none - see letters B and between C and D.
KIRBY J: That is why I say you really have to fix your flag to the mast of the technical point that this trial failed just totally because of the fact that it had an extraneous matter before the jury.
MR GIUDICE: I understand what your Honour is saying there.
KIRBY J: You do say that. That is one of your arguments. You want to go on and try and show that there has been a miscarriage of justice in the facts and you may be right and you may be wrong but I just do not think is a very strong case and all of this is in the context of a person who got, if I can say so, speaking only for myself, quite a sensible sentence from the trial judge having regard especially to his age - did not have to serve an imprisonment term despite the fact that Parliament has said this is a very serious offence and who has served his sentence totally.
GLEESON CJ: And who now wants a new trial.
MR GIUDICE: Can I just say, your Honours, that it is really not up to the accused man to come up with explanations. All he can say is, “I only know one thing. I did not put it there”.
KIRBY J: Well, that is true ‑ ‑ ‑
MR GIUDICE: It is not for him to prove how it got there.
KIRBY J: That is true but in fact he did come up with explanations and when they are tested ‑ ‑ ‑
MR GIUDICE: Possibilities.
KIRBY J: Well, they are pretty unconvincing, I am afraid.
MR GIUDICE: The witness, Mr Jones, said at page 36 E that it is possible to save images onto your computer accidentally and he also said that he cannot be 100 per cent sure that no one hacked into the computer, although they had no evidence of that occurring at the university.
GLEESON CJ: Now, accidentally is a very dangerous word for you, is it not? That is the key that opens the door to similar fact evidence. If the defence case were that these child pornography images were downloaded onto your client’s computer accidentally, then that is just the sort of argument that would let in, is it not, evidence of the obscenity images that are there? All I am saying is you had better steer clear of accident.
HAYNE J: Whether it is 105 accidents or 111.
MR GIUDICE: Except, of course, that the extra 11 in that case would not be called in support of a charge on the indictment. In the context of this trial he was facing two charges. So that evidence was in relation to both counts. Theoretically it is possible that these images can be downloaded onto your computer accidentally although unlikely:
There is no way I could say 100 percent that nobody hacked into it –
he said, but that had no indication that that has been occurring at the university.
Guidance, in my submission, can be obtained, your Honours, in relation to the question of whether this indictment was a nullity from those cases of Smith and Callaghan and it appears that what those cases are saying in relation to misjoinder, pursuant to the legislation in the UK, that provided there is no possible prejudice or embarrassment to the accused, then the indictment will not be a total nullity and it is possible to quash one conviction.
But in this case it is our submission that there is prejudice and embarrassment, and severe prejudice and embarrassment, by the addition of count 2. So that if those cases are relied upon, it would support the argument that the whole indictment is a nullity and that there was not a trial. But if that is not the case and count 2 can be severed, then in Wilde’s Case the argument is that a trial according to law was not had.
Your Honour the Chief Justice asked my learned friend if the District Court had no jurisdiction to try count 2 and that is quashed, where does that leave count 1? The reply was he has had a trial on count 1 in the District Court with jurisdiction and a verdict has been given by a jury, so it stays. Our answer to that is, it was not a trial. That is not reality. That is not what happened. He did not get a trial on count 1 in the District Court with jurisdiction. The real position is he had a trial on count 1 in the District Court contaminated by count 2, and therefore resulted in him not getting a fair trial, and the prejudice goes to the root of the trial and to the procedure.
GLEESON CJ: Mr Giudice, is there some provision in the legislation under which the Court of Criminal Appeal operates that provides that if a conviction is quashed, the sentence is quashed also?
MR GIUDICE: I will just check something, your Honour. It does not appear to be. I am looking at section 689, “Determination of appeals in ordinary cases”, and there does not seem to be anything which says that that follows as a matter of course, but one would have thought that that would be the natural result.
GLEESON CJ: Was there an order made quashing the sentence on count 2 in this case?
MR GIUDICE: Justice McKechnie in the minority said:
I would allow the appeal, quash the conviction on count 2, set aside the conviction on count 1, and order a retrial on that count.
HAYNE J: The order is at page 245, is it not?
MR GIUDICE: Thank you. No.
GLEESON CJ: What happened to the sentence?
MR GIUDICE: Quashed with the count, I would respond, without any – it is implicit in the order.
KIRBY J: You say it is implicit in the quashing of the conviction, that if you have no conviction, you have no sentence to attach to the conviction.
MR GIUDICE: Exactly.
GLEESON CJ: That is why I asked you what the relevant statutory provisions are about that.
HAYNE J: The relevant provision, I would have thought, was 689(2) which says that on quashing the conviction the court is to:
either direct a judgment and verdict of acquittal to be entered or order a new trial.
That takes us back to where we came in which neither party seeks to pursue.
KIRBY J: I think we were told that it was out of time to order a new trial on the simple offence, is that correct or not? Does the Justices Act (WA) provide a time limit and does that apply when a court is disposing of the appeal?
MR GIUDICE: I think the time limit is 12 months.
GLEESON CJ: How could any question of ordering a new trial on count 2 arise in the view taken by the Court of Criminal Appeal? There is no question of any new trial. There might have been a question of a fresh charge being laid in a different court, but that is what was out of time.
MR GIUDICE: Yes.
GLEESON CJ: That gets back to Justice Hayne’s question, which is really a question about working out what were the powers that were being exercised by the Court of Criminal Appeal, having regard to the problem that they all saw. So far we just have not seen a solution to that problem in the statutory provisions that we have been referred to, which is a bit disconcerting. Perhaps counsel would like an opportunity within 14 days of today to put in any further written submissions they might like to make on these technical questions of powers and orders that we have raised at the beginning and then again at the end.
MR GIUDICE: Thank you for that opportunity, your Honour.
GLEESON CJ: If you decide that you do not want to put in anything in writing, perhaps you could give a note to that effect anyway. That applies to both sides. Have you finished, Mr Giudice?
MR GIUDICE: May it please the Court.
GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow.
AT 3.50 PM THE MATTER WAS ADJOURNED
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