Bounds v The Queen

[2005] HCATrans 884

[2005] HCATrans 884

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P5 of 2005

B e t w e e n -

MATTHEW DAVID BOUNDS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 2005, AT 11.39 AM

Copyright in the High Court of Australia

MR P.G. GIUDICE:   May it please your Honours, I appear for the applicant.  (instructed by Moss & Co)

MR K.P. BATES:   May it please the Court, I represent the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

GLEESON CJ:   Yes, Mr Giudice.

MR GIUDICE:   Your Honours, I have an application to make, and this is that I have leave to amend the application for special leave to appeal.

GLEESON CJ:   I think we got your proposed amended application this morning.  Is that opposed, Mr Bates?

MR BATES:   No, your Honour.

GLEESON CJ:   Yes, you have that leave.

MR GIUDICE:   Except for one thing, your Honour, I meant to say and that is that in ground 4, after the numeral “11” in line 3, may I add “and Exhibit 12”.

GLEESON CJ:   Yes.

MR GIUDICE:   Thank you.  I have alerted my learned friend to that matter also.

GLEESON CJ:   You can probably delete one of the “m”s in “amended” too.

MR GIUDICE:   I seek leave for that, your Honour.

GLEESON CJ:   Yes.

MR GIUDICE:   Thank you.  I apologise for that.  Your Honours, this applicant was charged with two offences on the one indictment.  One was possession of 105 images of child pornography.  The next one was possession of indecent and obscene material.  The nature of the material in both counts was admitted at trial and it was a question of whether or not the applicant was in possession of this material.

The second count, count (2), should not have been on the indictment because it was a matter that could only be heard summarily in this State.  The prosecutor, the defence counsel and his Honour the trial judge did not realise that and the matter went through the whole trial and the applicant was found guilty on both counts.

The second count, which should not have been on the indictment, involved allegations of images on the computer of bestiality.  The first count was images on the computer of child pornography.  The question that arises for this Court – and the matter went on appeal and the Court of Criminal Appeal, as it then was, in Western Australia quashed the conviction on count (2) but by majority not on count (1).

The question that arises, in my respectful submission, is this.  When an offence is erroneously included on an indictment charging two offences and an appeal court holds the indictment is a nullity in relation to that count, what is the effect of that on the remaining count when the reason for the declaration of the indictment being a nullity is the lack of jurisdiction and that the second count should never have been before the court?  What is the effect of that?

The submission of the applicant is no matter whether the evidence called in support of the second count, which should not have been there, no matter whether that evidence was admissible or not, there has been a radical and fundamental departure from the essential requirements of the law which go to the root of the proceedings.  The reason for that is this.  The law in this State requires in those circumstances two separate trials, one in the summary court, one in the District Court.

Now, what this man faced was joint trials and it should never have happened.  The jury was skewed in its deliberations, in my respectful submission.  How can one contemplate what the effect on the jury was of an accusation that he had committed an indictable offence, a matter considered so serious by the court as to be tried by a judge and jury, relating to images of bestiality, which is in a class of sexual perversion completely distinct and different from child pornography and one that would impact on the jury’s deliberations as to whether or not the accused was in possession of the material the subject of the other count.

Instead of facing one count in the District Court, this man faced two charges.  The submission is this, that if you throw enough mud it is likely that some will stick.  So somebody facing one charge is in a less disadvantaged position than someone who is facing some 20 or 10 or, in this case, even two.  It is my submission, your Honours, that justice dictates that this man should have had a trial according to law, and the only way to do that is to quash the conviction and start again.

The second submission is this.  Even if the evidence in support of the second count was admissible in relation to the first count, it is my submission that a serious injustice has occurred and that the conviction should have been quashed because, as the judge said to the jury right at the outset – perhaps before I say that, the reason is this:  because of the very existence of the count, irrespective of the evidence.  As his Honour the trial judge said right at the outset to the jurors, which you will see on page 5 of the application book, these charges “stand or fall together”.  Now, he said that because ‑ ‑ ‑

GLEESON CJ:   He was telling them that if they found him not guilty of count (2) he had to be acquitted on count (1)?

MR GIUDICE:   Yes, and vice versa of course.  These charges “stand or fall together”.  So if he was guilty on the possession of bestiality, for example, then he is guilty of possession of child pornography.

GLEESON CJ:   Was that because the factual issues relevant to count (1) were, for all intents and purposes, identical to the factual issues relevant to count (2)?

MR GIUDICE:   Not quite.  It was because the defence was the same in relation to both charges ‑ ‑ ‑

CALLINAN J:   The defence was of possession, was it not?

MR GIUDICE:   Yes, possession of these images.

CALLINAN J:   This was – and I do not mean this disparagingly – a technical defence, none the worse for that if it was a good defence.  But that was the sole defence, was it not?

MR GIUDICE:   The defence was, “I didn’t possess them.  I didn’t put them on the computer” – “I didn’t have knowledge of them”, yes.

GLEESON CJ:   But was there any relevant difference in the facts that went to whether there was possession of the child pornography images and whether there was possession of the bestiality images?

MR GIUDICE:   No.  The prejudice suffered by this man, the applicant, in having this evidence of the bestiality images before the jury at the same time as the allegations of child pornography, in my submission, must have been very high and it is impossible to know what effect that had on the jurors.

The other thing that it did is that it – we will not know from a forensic and tactical point of view what counsel might have done in relation to admissions and consent to various exhibits, namely 11 and 12, what tactical and forensic decisions might have been taken if this man had not faced these two allegations.  In relation to exhibit 11, to be specific, that was an allegation of an image on the computer of something to do with a dog.  The jury actually never heard what these images actually depicted, but it was said that it was a movie of a dog, so some bestiality.  Exhibit 12 was a list of websites which are non-specific, apart from three of them which have “beast” written in them.

So both exhibits 11 and 12 which were tendered by consent in this trial related to bestiality images in their content.  Therefore, it directly related to count (2).  Now, it seems that the tactical forensic decision to admit at least exhibit 11 by consent, which was the “video/dog/mpeg”, the tactical reason for that was that the defence maintained that that file was created on the computer after access had been denied to it by the university to the applicant.

GLEESON CJ:   What was the factual basis of the argument about possession?

MR GIUDICE:   The images were found on the university computer system in an area of the computer’s hard disk, which was specifically designated for the applicant.  In order to gain access to that he needed a password and a user name.  Then it is alleged that he obtained images from the Internet – in relation to count (1) 105 images of child pornography – and downloaded them onto his own personal file.  In count (2) the images of bestiality were obtained from the Internet and that he downloaded them onto his computer and that he knew they were there and that he was in possession of them.

GLEESON CJ:   Now, what was the argument about possession?

MR GIUDICE:   The argument was, “I don’t know how they got there”.  Well, “I didn’t put them there”, firstly.  Secondly, “At times a friend of mine and I would go into the computer room at the university and we would work on computers side by side, go to a chat room and both be using the computers at the same time.  Maybe he saw my password or saw me type in my password on the computer”.  As for the user name, it is common knowledge at the university; in fact, the students are told what user name to adopt, that is their surname and the first letter of their Christian name.

GLEESON CJ:   But who did the downloading?

MR GIUDICE:   Allegedly the applicant.  It is not the ‑ ‑ ‑

GLEESON CJ:   What was the defence case about that?

MR GIUDICE:   That he did not.

GLEESON CJ:   That he did not do the downloading.

MR GIUDICE:   Yes, that he did not do it, your Honour, and that he did not know it was there either.  Well, actually I might be misleading you there.  One of the things he said was that he did download some material that he obtained from a person in Canada who, at about the time that the offensive material was downloaded, he thought was sending him images of a band, Metallica, and he simply saw the message and downloaded it onto the computer without opening it at all, and left.  That is one thing he said.

GLEESON CJ:   Were these images, the downloaded hard copy images, ultimately in his possession?

MR GIUDICE:   Not, we say, legally because he did not know what they were, but they were in his file on his computer on the section of the hard drive which he had specific and exclusive access to.  So, provided the mental element could be proven, that is that he knew they were there and that he had looked at them and they were there and knew that they were there and that he had saved them onto the computer system knowing that and remained in possession of them, then he would be guilty.

GLEESON CJ:   Am I right in thinking that the majority in the Court of Criminal Appeal said, “The question is whether there was a miscarriage of justice, and the test to be applied is whether or not anything happened relevantly to the conviction on the first count that would not have happened if he had only been charged with count (1)”.  Is that the way they approached it?

MR GIUDICE:   I understand your question, your Honour.  If I could answer it this way.  Justice Murray said that if the evidence in relation to count (2) was not admissible in relation to count (1), the applicant was not deprived of the chance of an acquittal and it did not detract from the inevitable conviction of the applicant for the same reasons given by Justice Steytler who said at page 79 that the evidence in relation to the second charge was really of no significance to the jury in deciding if it was the applicant or someone else who downloaded this – or was in possession or caused this material to be on the computer.

GLEESON CJ:   I am just interested in what is the test to be applied in a situation like this.  Did they ask themselves, “Was conviction on count (1) inevitable?”, or did they ask themselves what might be a different question, that is to say, “Did the admission of the evidence relevant to count (2) have any material or possibly material bearing on the outcome in relation to count (1)”?

MR GIUDICE:   My reading of it is that Justice Steytler said that the material in relation to count (2) was not of significance in relation to count (1) and therefore no substantial miscarriage of justice.  The extra 11 images in count (2) were of no significance to the jury in deciding if it was the applicant who downloaded this stuff or someone else – that is at page 79.  At page 68 Justice Murray agreed.  Justice Murray went further and said the conviction was inevitable in any event at page 68.  But then later at page 68 Justice Murray then said, “But anyway, I think the evidence in relation to count (2) is admissible against count (1) because it would consist of uncharged acts relevant to the child pornography possession count in count (1) because it would be relevant to prove the proliferation of the introduction of material onto the computer to combat the defence that ‘it was not me’”.  So, in my respectful submission, it seems to ‑ ‑ ‑

CALLINAN J:   That would not have been argued or put, would it?  That would not have been an issue at the trial, that this was done to, as it were, a snow job – the proliferation.  Counsel for your client would not have had an opportunity of dealing with that proposition at the trial.

MR GIUDICE:   No.

CALLINAN J:   It is an explanation offered by his Honour for the first time as a justification for the reception of the evidence in the Court of Appeal.

MR GIUDICE:   Although the trial judge did say to the jury that they could use that evidence to demonstrate an ongoing propensity by the accused to access material that is clearly obscene or objectionable and therefore relevant to count (1).

CALLINAN J:   That is a somewhat different way of putting it from the way in which Justice Murray put it.

MR GIUDICE:   Yes, it is.

CALLINAN J:   What I am suggesting to you is in your favour, that this is a new way of explaining it, as it were, with which you did not have an opportunity to deal at the trial and might have dealt with perhaps by evidence.

MR GIUDICE:   Yes.  In fact, that is something that Justice McKechnie spoke of - not that point exactly, but he referred to the absence of opportunity on the part of defence counsel to advance arguments against the admissibility of the evidence in relation to count (2) because of the joinder.

GLEESON CJ:   Yes, thank you, Mr Guidice. Yes, Mr Bates.

MR BATES:   In our respectful submission, even if the evidence going to count (2) was inadmissible, the proviso should apply because, in the context of the issues in this trial, there was no substantial miscarriage of justice.

GLEESON CJ:   What do you mean by that?  Do you mean that conviction on count (1) was inevitable or do you mean that the evidence on count (2) did not make his possession in respect of count (1) any worse?

MR BATES:   We mean by that that the conviction on count (1) was inevitable because of the way the trial was conducted.  If I can advance that submission further, in our respectful submission, Justice Steytler in the Court of Appeal correctly described it as a matter of logic.  The admission of the evidence regarding the 11 images the subject of count (2) could not have affected the inevitability of the guilty verdict.

In this particular trial the only live issue was possession.  It was admitted that all of the images the subject of count (1) and (2) were child pornography in count (1) and obscene and indecent in count (2).  As I have indicated, the issue at trial was one of possession.  The respondents sought to prove that the applicant had purposely downloaded each image and therefore was in possession of the images.  The applicant’s defence was, in essence, that a hacker or someone else had download 100 out of the 105 images on count (1) and all 11 images on count (2).  There were five images in respect of count (1) that the applicant admitted he had downloaded from a friend in Canada but did not know their contents.  So, essentially, in respect of 100 out of 105 on count (1) and 11 on count (2), the defence was that it was someone else who had downloaded these images.

GLEESON CJ:   Why would somebody else do that?

MR BATES:   Well, he was unable to explain why somebody else would do it, and there was a body of circumstantial evidence to prove, and the jury were ultimately satisfied, that the applicant was the only person who could and did download these images.  There were admissions made to university administrators and also there was a number of items of circumstantial evidence.  For example, firstly, that all the images were located in the applicant’s personal directory and all had file names which started with the same, being “D:\users\curtin\bounds” and his initial “m”.  The applicant used his personal directly to store the information.  The personal directory could only be accessed by the applicant using his user name and password or by someone who knew that user name and password or the administrators, Jones and Ratcliffe, who denied that they were responsible for the downloading of these images.

The applicant had never told anyone his password, although he suggested someone may have guessed it.  Exhibit 13 detailed the exact time that each image was downloaded.  This relevant computer lab could only be accessed after hours by a swipe card and a pin number and the accused had never given any other person his swipe card and pin number.  There was an exhibit which detailed when the applicant’s swipe card and pin number had been used to access the lab after hours, and ultimately the applicant did not dispute that he was in the lab at all times indicated by the swipe card and the pin number as shown in the exhibit.  There was a perfect correlation between the times the images were downloaded and the times that the applicant was in the computer lab.  Ultimately he did not dispute that all images were saved at times when the applicant was in the computer lab, logged on to his home directory using his user name and password.

So possession was the issue at trial.  It was admitted that these items were either child pornography or obscene or indecent.  The State’s case was a circumstantial one and the State suggested to the jury that the ‑ ‑ ‑

GLEESON CJ:   Why do you say it was circumstantial?  I thought you said he made admissions.

MR BATES:   Well, it was a combination of admissions plus circumstances.  He was confronted with the allegations and he admitted that he had downloaded objectionable material.

GLEESON CJ:   Who gave evidence of those admissions?

MR BATES:   Evidence was given of the admissions by the university administrators, Jones and Michalanney.  They gave evidence that he was confronted with this material and he made admissions and that ‑ ‑ ‑

GLEESON CJ:   And what was the nature of the challenge to their evidence?

MR BATES:   The applicant’s explanation was that he had spoken to the administrators but he was in a state of shock at the time and he could not recall what he had said, in essence, and the administrators gave evidence supporting each other and they had notes.

GLEESON CJ:   No.  My question was what was the nature of the challenge to the administrators’ evidence?  They were cross‑examined, I suppose.  Was it put to them in cross‑examination that their memories had failed or that they had colluded with one another?  What was the nature of the attack made upon the evidence of the administrators of admissions?

MR BATES:   That information is not in the application books but I can take an instruction on that matter, if your Honour pleases.

GLEESON CJ:   I do not think you can, looking around you.

MR BATES:   If there is someone available I can take an instruction from.

GLEESON CJ:   I just want to know what was put to them in cross‑examination.

MR BATES:   Yes, I will get that.  If your Honour pleases, it was put to the administrators in cross‑examination that what was said was ambiguous and did not have the meaning which the administrators were suggesting that it had, and Mr Bounds’ position in evidence‑in‑chief was that he was in a state of shock at the time and could not recall what had been said.  So it was suggested that there was ambiguity in the evidence of the university administrators.

GLEESON CJ:   Well, if Mr Bounds could not recall what was said, what was the basis of cross-examining counsel’s instructions that what was said was ambiguous?

MR BATES:   Perhaps I could take a further instruction on that, your Honour.

GLEESON CJ:   Well, perhaps you can treat that as a rhetorical question.

MR BATES:   Yes.

GLEESON CJ:   Where do we find the Court of Appeal concluding that conviction was inevitable?

MR BATES:   I can take your Honours to those passages.  It is in the judgment of Justice Steytler and that is at page 79 of the application book, and it is paragraph 48 of the judgment of the Court of Appeal.

GLEESON CJ:   Whereabouts in paragraph 48?

MR BATES:   What Justice Steytler says in that particular paragraph is that:

Given this largely common defence to the two counts . . . 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).

GLEESON CJ:   My question to you was where do we find the Court of Criminal Appeal saying conviction was inevitable?

MR BATES:   Yes, Justice Steytler then went on to say:

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 –

So Justice Steytler’s reasoning was that there was no substantial miscarriage of justice from the wrongful admission, if it was, of the evidence concerning count (2), and for that reason he was satisfied there was no miscarriage of justice.

Justice Murray approached the matter slightly differently.  The relevant part of Justice Murray’s passage appear at page 68 of the application book in paragraph 7.  There Justice Murray said:

The test in those circumstances, as I apprehend it, is whether the appellate court should conclude that but for the admission of the inadmissible evidence, conviction of count 1 was inevitable –

and reference was made to Glennon v The Queen and Crofts v The Queen –

On the basis that that evidence was inadmissible, then in my opinion, for the reasons given by Steytler J, the admission of the evidence has not deprived the appellant of a chance of acquittal of count 1 and does not detract from the inevitability of the conviction which was achieved by the verdict of the jury in respect of that offence.

Justice Murray was of the view that the conviction was inevitable and Justice Steytler was of the view that because of the way the defence was conducted, there was no substantial miscarriage of justice and the majority of the court applied the proviso in respect of the matter.

GLEESON CJ:   There is a difference, is there not, between asking was conviction inevitable and asking did the admission of the evidence relating to the charges under count (2) affect the outcome?

MR BATES:   Yes, there is a difference.  Generally, where inadmissible evidence is adduced before the court, the approach of Justice Murray is the approach that is taken where the court asks whether but for the inadmissible evidence the conviction would have been inevitable.  In our view, that is the correct approach that Justice Murray has taken.  Justice Steytler has approached it from a different perspective and looked at whether there has been any substantial miscarriage of justice and concluded that there was no substantial miscarriage of justice.

GLEESON CJ:   What is the relevant statutory provision that founded the ground of appeal?

MR BATES:   It is in section 689 of the Criminal Code.  That deals with whether there has been a substantial miscarriage of justice.

GLEESON CJ:   Is this the proviso?

MR BATES:   It is the proviso, yes.  It is in the respondent’s application book.

GLEESON CJ:   So there was, by concession, an error of law.

MR BATES:   It reads in these terms:

(1)      The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law ‑ ‑ ‑

GLEESON CJ:   That is the one, is it not?

MR BATES:   And it goes on to say:

or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

The majority in this case has considered that, because of the way the defence was conducted, there was no miscarriage of justice, although Justice Murray and Justice Steytler have dealt with it in slightly different ways.

CALLINAN J:   Mr Bates, can you ask you this question.  At page 87 in paragraph 77, Justice McKechnie refers to exhibits 11 and 12.  Can you tell me what they were?

MR BATES:   Yes, I can deal with that.  Exhibit 11 was an item that was admitted into evidence by consent.  Exhibit 11 contained a file name, which name disclosed that the file contained an obscene image and it also contained a time of creation, being 11.19 am on 30 July 2001.

CALLINAN J:   It was not one of the images?

MR BATES:   No, it was not one of the images.

CALLINAN J:   Nor was exhibit 12 then.

MR BATES:   Nor was exhibit 12.  Exhibit 12 was a document as well.  Exhibit 11 was admitted by consent.

CALLINAN J:   That is all right.  I just wanted to know what they were.

MR BATES:   In our respectful submission, the Court of Criminal Appeal was correct to apply the proviso in this particular case and also that there was not a fundamental error in this particular case.

GLEESON CJ:   What do you say about what Justice McKechnie says on page 98, paragraph 132?

MR BATES:   I can deal with the fundamental error issue.  We say that a defect in the form of the indictment does not necessarily lead to a mistrial and that there is no rigid formula to establish what constitutes a radical or fundamental error and that, whilst the indictment ought to have been severed, a defect in the form of the indictment does not necessarily lead to a mistrial.  We say it is the significance of the evidence and the context of the trial which must determine whether the error was of a fundamental kind.  What we say in this case is that when viewed in context it does not appear that the wrongly admitted evidence, if it was wrongly admitted, can have carried any additional weight having regard to the other evidence and the issues in the case.  So we say it gets back to the way in which this particular case was defended; the issue was one of possession.

So we say on the fundamental error point that it gets back to the way the case was defended.  The issue was one of possession and the result would have been inevitable given the admissions and the overwhelming circumstantial evidence to support the case brought by the State.  We say in this particular case we take issue with the dissenting judgment of Justice McKechnie in his comments that the trial fundamentally miscarried.  We say that there was no fundamental error and that it cannot be said that the applicant lost the chance of acquittal which was fairly open to him because of the inclusion of count (2) on the indictment.  We submit that the conviction was inevitable for the reasons that we have outlined. 

If I can deal with some other issues, Justice Murray determined that the evidence going to count (2) was admissible as evidence of uncharged acts whose probative value was to support the proposition that the downloading of the material to the applicant’s hard drive was a conscious act of the applicant.  As we have indicated in the main, apart from the five images, the defence was that the applicant did not himself actively acquire possession of the material through the use of the computer and that it could only be supposed that someone else had been able to obtain access as if he or she was the applicant and downloaded the material so as to store it in the applicant’s files.  What we say in relation to that defence, it was relevant to prove the proliferation of a number of acts by which material of a prohibitive kind was introduced into the computer system during the period immediately preceding 28 July 2001 and that the greater the proliferation of instances, the more likely the jury might regard it as being the conscious act of the applicant – rebutted the assertion that it was someone else apart from the applicant.

In our submission, the fact that the evidence was the subject of a count on the indictment, namely count (2), it did not create such prejudice as to amount to a miscarriage of justice.  Once again, we rely upon the argument that there was no substantial miscarriage of justice because of the way the trial was conducted and the issues that fell to be determined.

In relation to exhibits 11 and 12, in our respectful submission, those exhibits were admissible.  In fact, exhibit 11 was introduced by consent as part of the defence and exhibit 12 was either introduced by consent or without objection on the part of the applicant’s counsel.  Both the State and the applicant sought to make different uses of the material.  The applicant sought to prove that exhibit 11 had been printed out at a time when the applicant’s access had been cancelled, but the response to that was that there was a mistake in the time and that the applicant’s access had not been cancelled at that time.

GLEESON CJ:   Thank you, Mr Bates.  Yes, Mr Giudice.

MR GIUDICE:   Your Honours, it is said that the conviction was inevitable, but we will never know what could have happened if only count (1) was on the indictment, particularly in relation to exhibits 11 and 12 which both related to images of bestiality which was the perversion, if you like, the subject of count (2) only.  So different tactical decisions might have been made if it was only count (1) in relation to child pornography.

GLEESON CJ:   Different tactical decisions about what?

MR GIUDICE:   To agree to the tendering of exhibits 11 and 12 which were related to, in 11’s case, a video about a dog, bestiality, and 12, also images in relation to bestiality.  Exhibit 12 was a list, but it is impossible to tell from that ‑ ‑ ‑

GLEESON CJ:   Suppose the images the subject of exhibits 11 and 12 had been perfectly innocent.  Would it not nevertheless have been relevant to show that they were there available, if I can avoid the word “possession”, to your client?  An argument against you, as I understand it, is that the more the number of images that were available to him, the less likely it was that this had happened without his knowledge.

MR GIUDICE:   If the point had been taken at trial and the evidence had been objected to, then that argument could well be advanced and a decision made.  My point is the accused lost the opportunity to argue against the admissibility of it because of the joinder of the charges.  Your Honour’s scenario is different from the one that he faced in the sense that the images related to a charge; according to the information before the jury, an indictable offence.  So it is the presence of count (2) on the indictment that causes this trial to go off the rails.  We are not only talking about the evidence in support of count (2) but the presence of an allegation of the commission of an indictable offence.

GLEESON CJ:   What was the significance in the reasoning of Justice McKechnie of that unreported decision of Paciente referred to on page 96.

MR GIUDICE:   I do not know, your Honour.  That ground was upheld, so I did not look at it.

GLEESON CJ:   I just wanted to be sure that it was not in support of an argument that the entire indictment was a nullity because of the presence of count (2).

MR GIUDICE:   Well, he did not say that, your Honour, in his ‑ ‑ ‑

GLEESON CJ:   And that is not your argument?

MR GIUDICE:   No.  The defence position in relation to the admissions was that the admissions were equivocal.  I was not trial counsel but I am looking at the transcript of the trial.  “Do you recall what you said to the accused man?”  This is the prosecutor talking to the person who interviewed him.  “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”.  His Honour said, “How did he do that?”  “He nodded and later said that he was sorry, sorry for letting the university down”.

Later in cross‑examination it was put to him squarely, “He at no stage admitted to you that he actually, knowingly put that material on the computer”, and it had to be conceded that he did not.  There was also an admission that he said “I intended to sell the material”, but that was explained in terms of the mistaken belief that it was a band, material in relation to a band.  I see the red lights, your Honour.

GLEESON CJ:   Thank you, Mr Giudice.  In this matter there will be a grant of special leave to appeal.  We are going to adjourn for a short time to reconstitute.

AT 12.28 PM THE MATTER WAS CONCLUDED