Bounds v The Queen
[2005] WASCA 1
•7 JANUARY 2005
BOUNDS -v- THE QUEEN [2005] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 1 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:83/2003 | 2 SEPTEMBER 2004 | |
| Coram: | MURRAY J STEYTLER J MCKECHNIE J | 6/01/05 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction of count 2 on indictment quashed | ||
| A | |||
| PDF Version |
| Parties: | MATTHEW DAVID BOUNDS THE QUEEN |
Catchwords: | Criminal law Possession of child pornography Evidence Admission of new evidence Principles to be applied Evidence of websites Whether propensity evidence Confessions and admissions Whether admission to manager without caution should be excluded Practice and procedure Indictment alleging a simple offence and indictable offence Simple offence a nullity Whether trial fundamentally miscarried |
Legislation: | Censorship Act 1996 (WA), s 59 Criminal Code Amendment Act 2004 (WA) Criminal Code Compilation Act 1913 (WA), s 4 Criminal Code (WA), s 3, s 378A, s 571, s 576, s 577, s 594, s 598AA, s 599, s 602, s 602A, s 612, s 616(2), s 622 District Court of Western Australia Act (WA), s 8, s 42 Interpretation Act 1984 (WA), s 67 Justices Act (WA), s 20 Supreme Court Act 1935 (WA), s 16 |
Case References: | Buttsworth v The Queen [2004] WASCA 69 Cleland v The Queen (1982) 151 CLR 1 Crofts v The Queen (1996) 186 CLR 427 Gallagher v The Queen (1986) 160 CLR 392 Glennon v The Queen (1994) 179 CLR 1 Gorman v Indich [1990] WAR 131 Mallard v The Queen (2003) 28 WAR 1 Mallard v The Queen [2003] WASCA 296; 28 WAR 1 Mickelberg v The Queen (1989) 167 CLR 259 Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997 Paciente v The Queen, unreported; CCA SCt of WA; Library No 920574; 10 November 1992 Petty v The Queen (1991) 173 CLR 95 Pfennig v The Queen (1994) 182 CLR 461 R v Cairns (1983) 87 Cr App Rep 287 R v Lee (1950) 82 CLR 133 R v Suresh (1998) 153 ALR 145 R v Swaffield (1997) 192 CLR 159 R v Thompson (1975) 61 Cr App Rep 108 Ratten v The Queen (1974) 131 CLR 510 TKWJ v The Queen (2002) 212 CLR 124 Wilde v The Queen (1987) 164 CLR 365 Wilde v The Queen (1988) 164 CLR 365 Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997 BRS v The Queen (1997) 191 CLR 275 Burns v The Queen (1975) 132 CLR 258 Button v The Queen (2002) 25 WAR 382 Harriman v The Queen (1989) 167 CLR 590 Hoch v The Queen (1988) 165 CLR 292 Lawless v The Queen (1979) 142 CLR 659 Makin v Attorney-General (New South Wales) [1894] AC 57 McDermott v The Queen (1948) 76 CLR 501 R v Amad [1962] VR 545 R v Cox (1967) 52 Cr App Rep 106 R v Lockley [1997] Crim LR 455 R v Smith [1997] 1 Cr App Rep 390 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BOUNDS -v- THE QUEEN [2005] WASCA 1 CORAM : MURRAY J
- STEYTLER J
MCKECHNIE J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : ESP 11 of 2002
Catchwords:
Criminal law - Possession of child pornography - Evidence - Admission of new evidence - Principles to be applied - Evidence of websites - Whether propensity evidence - Confessions and admissions - Whether admission to manager without caution should be excluded - Practice and procedure - Indictment alleging a
(Page 2)
simple offence and indictable offence - Simple offence a nullity - Whether trial fundamentally miscarried
Legislation:
Censorship Act 1996 (WA), s 59
Criminal Code Amendment Act 2004 (WA)
Criminal Code Compilation Act 1913 (WA), s 4
Criminal Code (WA), s 3, s 378A, s 571, s 576, s 577, s 594, s 598AA, s 599, s 602, s 602A, s 612, s 616(2), s 622
District Court of Western Australia Act (WA), s 8, s 42
Interpretation Act 1984 (WA), s 67
Justices Act (WA), s 20
Supreme Court Act 1935 (WA), s 16
Result:
Appeal allowed
Conviction of count 2 on indictment quashed
Category: A
Representation:
Counsel:
Appellant : Mr I L K Marshall
Respondent : Mr R E Cock QC & Mr L M Fox
Solicitors:
Appellant : Moss & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Buttsworth v The Queen [2004] WASCA 69
Cleland v The Queen (1982) 151 CLR 1
Crofts v The Queen (1996) 186 CLR 427
Gallagher v The Queen (1986) 160 CLR 392
(Page 3)
Glennon v The Queen (1994) 179 CLR 1
Gorman v Indich [1990] WAR 131
Mallard v The Queen (2003) 28 WAR 1
Mallard v The Queen [2003] WASCA 296; 28 WAR 1
Mickelberg v The Queen (1989) 167 CLR 259
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Paciente v The Queen, unreported; CCA SCt of WA; Library No 920574; 10 November 1992
Petty v The Queen (1991) 173 CLR 95
Pfennig v The Queen (1995) 182 CLR 461
R v Cairns (1983) 87 Cr App Rep 287
R v Lee (1950) 82 CLR 133
R v Suresh (1998) 72 ALJR 769
R v Swaffield (1998) 192 CLR 159
R v Thompson (1975) 61 Cr App Rep 108
Ratten v The Queen (1974) 131 CLR 510
TKWJ v The Queen (2002) 212 CLR 124
Wilde v The Queen (1988) 164 CLR 365
Case(s) also cited:
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997
BRS v The Queen (1997) 191 CLR 275
Burns v The Queen (1975) 132 CLR 258
Button v The Queen (2002) 25 WAR 382
Harriman v The Queen (1989) 167 CLR 590
Hoch v The Queen (1988) 165 CLR 292
Lawless v The Queen (1979) 142 CLR 659
Makin v Attorney-General (New South Wales) [1894] AC 57
McDermott v The Queen (1948) 76 CLR 501
R v Amad [1962] VR 545
R v Cox (1967) 52 Cr App Rep 106
R v Lockley [1997] Crim LR 455
R v Smith [1997] 1 Cr App Rep 390
(Page 4)
1 MURRAY J: I am grateful to have had access to the judgments of Steytler and McKechnie JJ, in draft.
2 This matter was, in form, an appeal as of right. No doubt it should have been an application for leave to appeal, having regard to the provisions of the Criminal Code (WA), s 688. But it is of no moment because had the proceedings been by way of application for leave to appeal, I would have granted leave generally, or at least in respect of the conviction of the offence charged in count 2 of the indictment, the possession of indecent or obscene articles, contrary to the Censorship Act 1996 (WA), s 59(5).
3 As to the issues raised by grounds 4, 5 and 6(d) and (e) in the appeal, I need do no more than express my concurrence in the reasons of McKechnie J and the additional reasons of Steytler J. There is, in my opinion, no merit in any of these grounds. As to ground 7, again I agree with their Honours that this ground is made out. Although the point that count 2 in the indictment charged a simple offence not amenable to trial by jury in the District Court was not taken at the trial by a special plea or otherwise and appears not to have been noticed by either party or the trial Judge, the fact remains that as a matter of law this offence was not triable on indictment and the conviction of it by the verdict of the jury was not open. It follows that the appeal must be allowed to the extent necessary to quash the conviction of that offence.
4 Ground 6(a)-(c) seeks to build on this result by asserting that the evidence led in support of this count was irrelevant to the offence charged by count 1, the possession of child pornography contrary to the Censorship Act, s 60(4), and was therefore inadmissible. It is contended that the prejudice occasioned by the admission of this evidence in the context of the joint trial of the two counts of the indictment ought to lead this Court to the view that the conviction of count 1 was unsafe and unsatisfactory, with the result that the conviction would be quashed and a retrial of that count ordered.
5 In the first place, I note that it was not asserted by this part of ground 6, and but faintly argued at the hearing of the appeal, that the trial fundamentally miscarried so as to establish the necessary miscarriage of justice upon that basis: cfWilde v The Queen (1988) 164 CLR 365, 373.
6 For my part, on the basis that count 2 should never have appeared on the indictment, the question would be whether the trial of the offence charged in count 1 miscarried by reason of the admission of evidence
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- primarily directed to the proof of count 2. If that evidence was inadmissible, as the ground asserts, that would not constitute a fundamental miscarriage of the trial process in my view, but the question would simply be whether a miscarriage of justice had occurred or whether the proviso that the appeal should be dismissed on the ground that there was no substantial miscarriage of justice, should be applied.
7 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: Glennon v The Queen (1994) 179 CLR 1, 8-9; Crofts v The Queen (1996) 186 CLR 427. 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.
8 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.
9 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.
10 The trial judge appears to have taken that view. At the outset of his directions to the jury his Honour said:
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- "There are two counts in the indictment. You will have to examine each count separately. In this case the evidence adduced by the Crown relates to both counts in common. In most jury trials the jury is told by the trial judge that it has to consider the evidence in relation to each count separately and reach a separate verdict in respect of each count. That is indeed the case here.
In most criminal trials a jury is also told by the trial judge that their verdict on one count may not be the same as their verdict on the other count or counts in the indictment, because of course the evidence may vary, depending upon which count is under consideration. That is really not the situation in this trial. Although it is entirely a matter for you, I would have thought that the evidence which the Crown has led which is common to both counts in relation to the vital issue of possession will mean that the two counts either stand or fall together. That is simply a comment which is not binding upon you."
11 In my respectful opinion, his Honour was right in making those comments in the circumstances of this case as it was presented to the jury at trial. In that event, it can be seen that the evidence in relation to count 2 would have been admissible, and no doubt led, at a trial of count 1 alone. Its admission has therefore occasioned no miscarriage of justice.
12 In the final analysis, therefore, I would allow the appeal upon the question of law raised by ground 7, with the result that I would express my respectful agreement with Steytler J that the only consequential order required is that the conviction of the offence charged in count 2 of the indictment should be quashed. The conviction in relation to count 1 remains unaffected.
13 STEYTLER J: I have had the advantage of reading, in draft, the judgment of McKechnie J. It is consequently unnecessary for me to restate, in any detail, the facts and circumstances giving rise to this appeal.
14 On 28 May 2003, the appellant was charged, on indictment, with two counts of breach of provisions of the Censorship Act 1996. Count 1 charged a breach of s 60(4) of the Act in that, on 28 July 2001 at Esperance, the appellant had in his possession child pornography in the form of computer data. Count 2 charged a breach of s 59(5) of the Act in that, on the same date and at the same place, the appellant had in his possession indecent or obscene articles in the form of computer data.
(Page 7)
15 The appellant had been a student at Curtin University in Esperance. He exercised his entitlement to make use of the university's computer room. In July 2001 the university's systems administrator, Phillip Jones, discovered a large collection of images stored in the appellant's computer directory. This was subsequently found to comprise 105 images of child pornography, which became the subject of count 1 on the indictment, and 11 other indecent or obscene images, which became the subject of count 2. Mr Jones disabled the appellant's access to the computer room. He also told the university management what he had found.
16 Kathline Michalanney, then the university's acting programme manager, arranged an interview with the appellant. She asked Mr Jones to be present. The interview took place on 1 August 2001. She said, in her evidence at the trial, that she told the appellant that objectionable material had been found in his files in the university's computer network. She said that he acknowledged, by nodding his head and mumbling, that he had downloaded the material. She also said that, later in the interview, he said that he was sorry for letting the university down. She said that he said that he was not getting the material for himself and that he was "doing it to sell".
17 Mr Jones gave similar evidence about the meeting. He said that Ms Michalanney told the appellant "about him having pornography and child pornography in his … home directory". The appellant admitted this "by nodding his head and muttering". Mr Jones said that, when told that he was to be suspended, the appellant "implied he was expecting it". Mr Jones also said that the appellant "wanted to make it clear that it wasn't for himself" and that he said that he "wasn't like that" and that he was "only doing it for the money". At that point, Mr Jones said, he and Ms Michalanney stopped the appellant from saying any more. Mr Jones was not cross-examined on any of his evidence as regards what took place during this meeting.
18 Each of Mr Jones and Ms Michalanney had prepared notes of what was said at the meeting (Mr Jones used his notes to refresh his memory, although he said that he could "sort of recollect most of … [what took place]"). The notes were tendered in evidence at the trial by consent of the appellant's counsel.
19 In his evidence, the appellant denied storing most of the objectionable material. He suggested that someone else had learned, or guessed, his password for computer access and had logged on in his name and saved the objectionable material. He also disputed that he had been in
(Page 8)
- the computer room at one of the times at which objectionable material was downloaded. As has been more fully set out in the judgment of McKechnie J, he acknowledged that he had saved and filed some of the objectionable material, but said that this had been sent to him by a computer "chat room" acquaintance in Canada and that he had stored it without appreciating what it was. As to the interview with Ms Michalanney and Mr Jones, he said:
"Well, after we sat down, Mrs Michalanney had told me what was found on my computer and told me that I was to be suspended and the police were involved. It was at that time that I went into deep shock and can't remember much more of the interview."
The Grounds of Appeal
21 As has been said by McKechnie J, there are four remaining grounds of appeal after others have been deleted by amendment. The first, ground 4, relies upon new evidence obtained by the appellant from a computer expert to the effect that it is possible to download material into a file without opening it and without knowing its content. The appellant contends that, because of the absence of this evidence at the trial, he has lost a chance of acquittal. The second, ground 5, contends that two exhibits, exhibits 11 and 12, were wrongly admitted into evidence at the trial and that the trial Judge erred in his directions to the jury in respect of them. The third, ground 6, challenges what was said to be inadmissible and highly prejudicial evidence put before the jury in respect of count 1, being the evidence concerning count 2 (evidence of the appellant's possession of various obscene images, including images of bestiality) and also evidence of "the so called 'admission' and 'confessions' to Mr Jones and Mrs Michalanney". The fourth, ground 7, contends that the conviction on count 2 should be quashed because an offence under s 59(5) of the Censorship Act "is not an indictable offence … and ought not be tried upon an indictment".
(Page 9)
Ground 4
22 As to ground 4, it is enough for me to say that I agree with McKechnie J that the new evidence (provided by a computer science expert, Mr Khaled Mustafa) adds nothing of significance to the evidence which was before the jury. As McKechnie J has pointed out, each of Mr Jones and a police computer expert who gave evidence at the trial, Mr Timothy Thomas, acknowledged that it is possible to save images without knowing their content (Mr Thomas was cross-examined at some length on this aspect of his evidence), although each also said that, given other circumstances which were proved in evidence (these have been referred to by McKechnie J), this was highly unlikely in the circumstances of this case.
23 The fact that the evidence the subject of ground 4 is new (it is acknowledged by the appellant's counsel to be so) and not fresh (as to which see Mallard v The Queen (2003) 28 WAR 1 at [12] to [17]) is not necessarily fatal to the attempt now to rely upon it (see Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997). However, in circumstances in which evidence precisely similar to that now relied upon was before the jury, it cannot sensibly be said that the absence of the new evidence led to any miscarriage of justice: Ratten v The Queen (1974) 131 CLR 510 at 520; Gallagher v The Queen (1986) 160 CLR 392; and Mickelberg v The Queen (1989) 167 CLR 259.
Ground 5
24 As to ground 5, the two exhibits now complained of are described in the judgment of McKechnie J. Both were admitted into evidence by consent of the appellant's counsel. It is enough for me to say that I agree with all that McKechnie J has said in respect of them. I would only add that, while, with respect, I found the trial Judge's directions in respect of them (set out in the judgment of McKechnie J) to be somewhat confusing, it sufficiently emerges from those directions that (as the trial Judge put it) the jury "must not reason that because … [the appellant] might have possessed objectionable material such as pornographic lists on occasions other than those charged he was the kind of person who was likely to have been in possession of child pornography and obscene material on the occasions charged". His Honour added that this type of reasoning was "totally impermissible in a criminal trial".
(Page 10)
Grounds 6 and 7
25 As to grounds 6 and 7, it seems to me, as it does to McKechnie J, to be appropriate to deal, first, with grounds 6(d) and (e), then with ground 7 and, finally, with grounds 6(a), (b) and (c).
Grounds 6(d) and (e)
26 As to grounds 6(d) and (e), I agree with McKechnie J that no basis was made out for the exclusion of the evidence of Mr Jones and Ms Michalanney in respect of the appellant's admissions (I have mentioned that their notes of the meeting were tendered by consent).
27 Essentially, counsel for the appellant relies, here, upon what is said to be an infringement of the appellant's right of silence. The right of silence was described by Dawson J, in his dissenting judgment in Petty v The Queen (1991) 173 CLR 95 at 118, as being "a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation". He said (ibid) that it embraces "the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority". What took place in this case was not a compulsory interrogation by persons in authority. It was not an interrogation at all. It was merely a meeting designed to inform the appellant of what had been discovered and what would be the consequences, for him, of that discovery. His admissions were unsolicited and, indeed, he was discouraged from making any further admissions.
28 I also agree with McKechnie J that the trial Judge's directions with respect to this evidence were adequate. He fairly described the evidence of each of Ms Michalanney, Mr Jones and the appellant in this regard, as well as the competing contentions of the defence and prosecution. Having done so, he told the jury that it was for them to consider that evidence and to relate it to the "detailed submissions" which had been put to them in that regard by the prosecutor and counsel for the appellant. Nothing more was required.
Ground 7
29 That brings me to ground 7.
30 The Interpretation Act 1984 provides, by s 67, that offences are of two kinds, indictable offences and simple offences. An offence which is not otherwise designated is a simple offence. Formerly, s 3 of the Criminal Code (amended in 2004) provided for three types of offences,
(Page 11)
- being crimes, misdemeanours and simple offences, with crimes and misdemeanours having been indictable offences. Section 67(3) of the Interpretation Act provides that the procedure for dealing with indictable offences is set out in the Justices Act 1902 and the Criminal Code and s 67(4) thereof provides that the procedure for dealing with simple offences and matters that are to be dealt with summarily is set out in the Justices Act.
31 A "simple offence" is one which is punishable on summary conviction and, somewhat circuitously, a "summary conviction" is one for a simple offence (s 4 of the Justices Act). The procedure, in the case of simple offences, is provided for by Pt VI of the Justices Act.
32 An "indictable offence" is one "which may be prosecuted before the Supreme Court, or other court having jurisdiction in that behalf, by information in the name of the Attorney General or other authorised officer" (s 4 of the Justices Act). Until 21 May 2004 that expression was defined in s 1 of the Criminal Code to mean "an offence a complaint of which is, unless otherwise expressly stated by the Code, triable only by a jury". However, this last definition was repealed by the Criminal Code Amendment Act 2004.
33 By virtue of s 3(2) of the Code (introduced by the 2004 amendment), an indictable offence is triable only on indictment unless the Code or another written law expressly provides otherwise (cf the former provisions of s 4 of the Criminal Code Act 1913). An indictment is "a written charge preferred against an accused person in order to his [sic] trial before some court other than justices exercising summary jurisdiction" (s 1 of the Code).
34 There is, in various parts of the Code, provision for particular indictable offences to be punished summarily (see, for example, s 426 and s 427). If a person is convicted by a Court of Petty Sessions of an indictable offence, the conviction is to be regarded as having been one of a simple offence only (s 3 of the Code). That situation aside, the general scheme of the Code distinguishes between simple and indictable offences: cf Gorman v Indich [1990] WAR 131 at 132, per Kennedy J, and 137, per Franklyn J.
35 By s 571 of the Code, the "jurisdiction of courts of justice with respect to the trial of offenders is set forth in the laws relating to the constitution and jurisdiction of those courts respectively". In the case of the Supreme Court, the relevant provision is s 16 of the Supreme Court
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- Act 1935. In the case of the District Court (in which the appellant was tried) the relevant provision is s 42(1) of the District Court of Western Australia Act 1969. That section provides that, except as provided in s 42(2) (which excludes from the jurisdiction of the District Court offences carrying a maximum term of life imprisonment or strict security life imprisonment), the Court has all the jurisdiction and powers that the Supreme Court has "in respect of any indictable offence" (my italics). So far as Courts of Petty Sessions are concerned, provision is made by s 20(1) of the Justices Act for the summary determination of offences made punishable on summary conviction and also of any offence, act or omission not declared to be treason, felony, a crime or a misdemeanour and in respect of which no other provision is made for the trial of the offender. By s 4 of the Criminal Code Act, as it stood in 2003, no person is liable to be tried or punished in Western Australia for an indictable offence except under the express provisions of the Code or some other applicable statute. That section has since been amended by the 2004 amending legislation so as to delete the word "indictable".
36 Subject to what I have said below, concerning s 602A of the Code, it seems to me to be plain enough from the legislative scheme that simple offences are intended to be tried summarily, in Courts of Petty Sessions, save for those specific instances in which provision has been made for superior courts to deal with simple offences. So, for example, by virtue of s 32(1) of the Sentencing Act 1995, an offender who is to be sentenced by a superior court for an offence may request that court to deal also with any pending charges against that offender and, by virtue of s 32(4), for the purposes of s 32 "a superior court is to be taken to have jurisdiction to deal with simple offences". Another example is provided for by s 594 of the Code, which provides that:
"Except as hereinafter stated, upon an indictment charging a person with an offence he may be convicted of any indictable or simple offence under this Code, or any other indictable offence, which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment."
37 Section 602A of the Code provides that a person may be convicted of and punished for an offence on indictment notwithstanding that the person might have been convicted of and punished for that offence "summarily" (defined by s 1 to mean "before a court of petty sessions"). The section was introduced in 1987, by the Criminal CodeAmendment Act (No 2) 1987, which introduced, at the same time, provisions creating specified
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- simple offences (by the substitution of a new s 313, dealing with common assaults, which had previously been categorised as misdemeanours, and by the introduction of s 378A, dealing with the theft of property to a value of $400 or less) and provisions enabling a number of indictable offences to be dealt with summarily (eg, s 426, s 426A and s 465), although provisions of that kind had previously existed in the Code: see the repealed s 407A, s 426 and s 465. The amending Act also dealt with s 594 of the Code, quoted above. That section had previously read as it does now, save that the words "any offence" appeared in the section instead of the words "any indictable or simple offence under this Code, or any other indictable offence".
38 It seems to me, as it does to McKechnie J, that s 602A was enacted so as to put beyond doubt the proposition that, notwithstanding that the indictable offences referred to in the 1987 Act might be dealt with summarily, a person might nevertheless be convicted and punished for those offences on indictment. The words "an offence on indictment", read in their context in the amending legislation, and given the legislative history and the existence of provisions such as s 594 of the Code and s 32(4) of the Sentencing Act, seem to me to have been intended to comprehend only indictable offences and not also simple offences. That this was the legislature's intention is, I think, supported by the fact (mentioned by McKechnie J) that s 602A appears within ch LXIII, entitled "Effect of Indictment" and not in the chapter which deals with jurisdiction (ch LXI) or that which deals with "Trial: Adjournment: Pleas: Practice" (ch LXIV).
39 There is no dispute as regards the proposition that the offence under s 59(5) of the Censorship Act, charged as count 2 in this case, is a simple offence and not an indictable offence. It follows from what I have said that the District Court had no jurisdiction to deal with it in the absence of some provision expressly expanding that Court's jurisdiction for that purpose. The Director of Public Prosecutions, who appeared on behalf of the respondent, contended that there is such a provision, being s 622 of the Code. That section (which forms part of ch LXIV of the Code, dealing with the procedure, inter alia, in respect of pleas) reads as follows:
"Trial by jury
If the accused person pleads any plea or pleas other than the plea of guilty, or a plea to the jurisdiction of the court, he is by such plea, without any further form, deemed to have demanded that the issues raised by such plea or pleas shall be tried by a
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- jury, and, subject to Chapter LXIVA, those issues are triable accordingly."
40 The Director contended that the appellant, having pleaded not guilty to the offence charged and having raised no plea to the jurisdiction of the Court, is taken thereby to have demanded that the issues raised by his plea should be tried by a jury and that the District Court was given jurisdiction accordingly by s 622.
41 Counsel for the appellant contended, on the other hand, that s 622 contemplates only a plea made in respect of a valid indictment and, relying upon Paciente v The Queen, unreported; CCA SCt of WA; Library No 920574; 10 November 1992, that the indictment in this case was a nullity so far as count 2 is concerned.
42 In Paciente the Court had to deal with an indictment charging two offences under the Misuse of Drugs Act 1981, one being an indictable offence and the other (count 2) being a simple offence. Before any plea was taken, prosecuting counsel sought to amend count 2 on the indictment so as to allege, in lieu of the simple offence (one of possession of amphetamines) an indictable offence (of possession of amphetamines with intent to sell or supply to another). The Court (Franklyn, Nicholson and Ipp JJ) held that, because count 2 on the indictment alleged an offence not capable of being the subject of an indictment or of a committal for trial, the indictment was a nullity in respect of that count.
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. 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.
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44 I should add, before leaving ground 7, that s 576, to which we were also referred, seems to me to be of no significance in this context. That section (headed "Persons brought before wrong court") deals with cases in which it appears, on the trial of a person before any Court, that that person "is not properly triable before that court under any of the provisions of the last preceding section", being s 575. Section 575, in turn, deals only with the place of trial, specifying where it shall be held depending upon the various factual matters referred to in subs (1) to (7) of that section. It does not bear, at all, on jurisdictional requirements of the kind under consideration in this case.
45 It consequently seems to me that the indictment was a nullity, insofar as count 2 is concerned, and that the District Court did not have the necessary jurisdiction to embark upon a trial of that count, regardless of the appellant's failure to take the point prior to entering his plea of not guilty. It follows that the proceedings in respect of count 2 were themselves a nullity (cfR v Thompson (1975) 61 Cr App Rep 108, CA; and R v Cairns (1983) 87 Cr App Rep 287, CA) and, consequently, that the conviction on that count must be quashed.
Grounds 6(a), (b) and (c)
46 That leaves grounds 6(a), (b) and (c) which, as I have foreshadowed, are to the effect that evidence concerning count 2 was wrongly put before the jury, being evidence of the appellant's possession of three bestiality images and eight other obscene images unrelated to count 1, all of this evidence having been prejudicial to the appellant.
47 The files in which these 11 images were stored were created between 2 July 2001 and 23 July 2001. Two files were created on 2 July 2001 at 00:47, eight were created on 21 July 2001 at 22:17 and one was created on 23 July 2001 at 17:09. The files in which the 105 child pornography images were stored were created between 1 July 2001 and 28 July 2001. Eleven of these were created between 00:39 and 02:43 on 2 July 2001 and one was created at 17:52 on 23 July 2001. The remaining 93 files were created at times or on dates which did not correlate with those the subject of count 2. As will be apparent from what I have said above, the appellant's defence (more fully described in the judgment of McKechnie J) was that he had not himself stored the objectionable material, save for some of it which he had received from a "chat room" acquaintance in Canada, which he had saved and filed without appreciating what it was. This last category of material comprised only five images of child pornography which were saved and filed by the
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- appellant on 28 July 2001. Consequently, the appellant's defence in respect of the remaining 100 child pornography images the subject of count 1 was identical to that in respect of the 11 images the subject of count 2.
48 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 (as to which see Wilde v The Queen (1988) 164 CLR 365 at 373).
49 I would consequently decline to uphold grounds 6(a), (b) and (c).
Conclusion
50 It follows that I would uphold ground 7 and quash the conviction on count 2 but that I would otherwise dismiss the appeal.
51 MCKECHNIE J: The applicant was charged on indictment with two counts. Count 1, that on 28 July 2001 at Esperance he had in his possession child pornography, in the form of computer data; and, count 2, that on the same date and at the same place he had in his possession indecent or obscene articles, in the form of computer data. After trial he was convicted of both counts. Both counts followed the wording of the Censorship Act 1996. However, count 2 alleged an offence under the Censorship Act s 59(5). Such offences are simple offences.
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The case at trial
52 The applicant lived in Esperance and was an affiliated student of Curtin University. As such he had access to the Esperance Community College and in particular the computer room. After hours access to the computer room was granted to students on application, and the applicant was given access. Physical access was gained firstly by disabling the alarm system through the entry of a PIN number onto a key pad at the front door. Access to the computer room was by way of a swipe card. Records tendered in evidence by the prosecution showed a history of access by the applicant to the computer room, including access on 28 July 2001. Access to the Curtin University network was by way of a user identity, name, and password. It was common knowledge among the University students that the user identity name consisted of the first seven letters of the student's surname. The student provided the password. Access to the network included access to a home directory. On the prosecution case, the directory could only be accessed by a systems administrator or the applicant.
53 In late July 2001, a systems administrator, and prosecution witness, Phillip Neil Jones, had a problem backing up the system because too much space was being used. An examination of the system revealed that the applicant's directory contained some 68 megabytes. Closer inspection discovered a series of images. Jones only looked at four images, some of which depicted images of child pornography. It was not in issue at the trial, in fact an admission was made to the effect, that the images contained either child pornography, the subject of count 1, or obscene and indecent material, the subject of count 2.
54 Mr Jones was asked whether it was possible to accidentally save the images without the person knowing that they had done it. His response:
"…Theoretically, yes.
And the likelihood of that occurring?---In this case, looking at this case, I'd say it was very unlikely, simply because of the methodology and the period that they were actually downloaded and also the fact that they were neatly put away in folders inside other folders and things like that."
55 There was no indication that somebody had been hacking into the system but Mr Jones could not give a 100 per cent guarantee that nobody hacked in. A police computer expert, Timothy Justin Thomas, was asked
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- the same question, namely, whether it was possible to save a document without knowing it, by accident. His response:
"We see on the system there that we have documents that are saved at a certain time, they're given a directory, they're given a file name. What is the process one would have to go through to save an image, a JPEG image, say?---It depends on the method by which the file is being dealt with. There is an enormous number of ways that can occur, the significant majority of which involve user interaction of some description, be it clicking on a save, save as, being selecting a download directory, by simply - for example, copying from a floppy disk to the hard drive would give you the impression that it had been saved there but it's an act of copying that causes that to occur, so in some cases - for example, if you had a word processor, it might be configured to automatically save the document for you but for it to have a name of the types of names we've seen, that would have to have been given to it by a user. In the cases where it hasn't been given a name, it uses a particular format which isn't consistent with what we see there.
So all of, say for instance, the 105 images we have seen - - -?---Yes.
- - - whoever is saving those has to know that that is what they are doing?---I would think so."
" … The student agreed that he had been downloading objectionable material, and was informed of the disciplinary action, possible termination of enrolment and reporting this activity to the police.
The student apologised for his behaviour and asked when he would receive the letter …"
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57 In her oral evidence, Ms Michalanney explained her note. The acknowledgement to which she referred in the notes was by way of a nod. The applicant also said that he was sorry and was sorry for letting the University down. He also said that he was not getting this material for himself and that he was doing it to sell. Her evidence was confirmed by Mr Jones who had been brought into the interview as an independent witness.
58 The applicant gave evidence that he knew Ms Michalanney was referring to child pornography. The applicant had a friend in Canada named Daniel Bishop who was fond of music. He and Bishop were involved in a band called "Gutrench". He entered the lab after hours in order to talk to Daniel in Canada because of the 12 hour time difference. He talked through the chat room. He said he was chatting to another person, not Daniel, talking about bands and this person asked if he would like to receive some pictures. The applicant received those pictures on 28 July although he did not look at them. His mother, his sister, and his niece, were planning on putting on a stall in the local markets and he was going to use the pictures of bands to frame and sell at the market. Before he could do anything his computer access was denied. When the applicant went to the interview with Ms Michalanney he thought he was going to be suspended for chatting because that was against Curtin policy. At the interview he went into deep shock and did not remember apologising or giving an explanation. He said that when he went into the computer room he would always write his Gutrench logo on the whiteboard. He never missed an episode of "Friends" which was screened at 7.30 on Monday nights.
59 In cross-examination he said his explanation was that in essence his password "Gutrench" was so well-known in its attachment to him that someone had guessed it and logged on using his name, guessed the password and saved all the other documents. There was no suggestion that he gave away his swipe card or PIN number. He was not disputing the times in the computer labs. He conceded that he said he had received the pictures from a person whose name he did not know, whose sex he did not know, in a chat room, that he thought were pictures of the band Metallica but the name Metallica does not appear in any of the file names. Although he was fanatical about Metallica he did not look at the pictures. He agreed that he was capable of creating a full path name and he had done so for his psychology notes. He agreed that "countach" was a type of Lamborghini car in which he had an interest and that it was coincidental that the name where it was saved in his home directory would have a reference to countach. In essence he said that the
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- 105 images of child pornography were downloaded by him without checking their contents. The other 100 images of child pornography were put on the computer by somebody using his password at another time.
60 On the day that his access was cut off, it was, he said, between 10.30 am and 11.00 am. He denied that he was downloading a video clip of bestiality at that time. Exhibit 11 relates to this video clip. He agreed that he did not give his swipe card or PIN away to anyone.
61 The applicant's mother also gave evidence about his watching "Friends" on a Monday night and that she was planning to run a stall at Esperance.
Amended grounds of appeal
62 The first three grounds of appeal were abandoned. The balance of the grounds are that the trial Judge was wrong in law as:
"(iv) The Appellant lost the chance to obtain an acquittal as there was expert evidence which was available given the exercise of due diligence but which was not adduced on behalf of the Defence. The Appellant accepts that it would have been available to the Defence had reasonable diligence been exercised.
The evidence is from a computer expert who is of the opinion that a person can download material into a file without opening it and without knowing its content and the Appellant seeks leave to adduce this evidence on the hearing of the Appeal.
(v) (a) The learned Trial Judge wrongly admitted Exhibits 11 and 12 as neither Exhibit related to Count 1 or Count 2 and the admission thereof had the potential to prejudice the jury; and
(b) The learned Trial Judge wrongly directed the jury that Exhibits 11 and 12 may demonstrate an ongoing propensity of the Appellant to access obscene and objectionable material.
(vi) The verdict of the jury on Count 1 was unsafe and unsatisfactory as:-
- (a) evidence concerning Count 2 was wrongly put before the jury;
(b) the jury had before it irrelevant evidence that the Appellant had possession of eleven images of indecent or obscene articles, three bestiality images and eight obscene images;
(c) the jury can only have been prejudiced against the Applicant by receiving this irrelevant evidence and evidence that these eleven images had been downloaded by the Appellant;
(d) the so called "admission" and "confessions" to Mr Jones and Mrs Michalanney was inadmissible; and
(e) if the evidence was admissible (which is denied) the direction of the learned trial judge on the "admission" or "confession" was inadequate.
- (vii) As to count 2
(a) The convictions and sentence on count 2 ought to be set aside and quashed;
(b) An offence under s 59(5) of the Censorship Act 1996 is not an indictable offence as it is neither a crime nor a misdemeanour and ought not be tried upon an indictment."
63 The evidence relied on as new evidence is contained in an affidavit of Khaled Mustafa sworn 10 May 2004 which was provisionally admitted into evidence as appeal Exhibit 1.
64 As the ground articulates, and counsel concedes, the evidence proposed to be produced from Mr Mustafa is not fresh evidence in that it could have been discovered with reasonable care and diligence before the trial. Despite some indications of a blurring between the test of fresh and new evidence, there remains a difference and it is a critical difference: see Mallard v The Queen [2003] WASCA 296; 28 WAR 1 at [11] to [17] inclusive.
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65 The Court should be wary of intervening in cases of new evidence unless the potential for injustice is obvious. Otherwise, the trial process will merely become the first step in an endless series of steps as evidence is added to a case piecemeal.
66 The affidavit of Mr Mustafa annexes a report which is said to be an expert opinion. Mr Mustafa deposes that he completed a Bachelor of Science in Computer Science from Edith Cowan University in 2003. He further deposes:
"However, I have extensive experience in building, maintaining and installing computers and computer equipment. I have used computers both personally and professionally for the last 10 years. Not only do I understand the theory and mathematics of computers but also I worked with both the hardware and software side of it."
67 I am prepared to accept that Mr Mustafa has qualified himself as an expert. Mr Mustafa poses, and then answers, the question whether or not a person can download material into a file without opening it and without knowing its content. His response to this question is as follows:
"The simple straightforward answer is YES, a person can download material into a file without opening it and without knowing its content."
68 This opinion is repeated. I consider that this opinion is an admissible expert opinion. I do not regard the balance of his report as admissible expert opinion. Mr Mustafa spoke to the applicant at length, asking questions about the program, and based on what he was told, set out a series of steps which might have occurred. He then purports to give some general information about the internet. This material consists entirely of speculation, either derived from an account given by the applicant (an account necessarily rejected by the verdict of the jury), or merely his own observations of the apparent interaction of people with the internet.
69 Returning to the portions of Mr Mustafa's opinion which I regard as admissible, it is clear that the jury had evidence to the effect that it was possible to download or save a document without opening it and being aware of its contents. This evidence came from Jones and Thomas and is set out earlier in this judgment. Mr Mustafa's admissible evidence adds nothing to the evidence before the jury.
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70 The evidence is manifestly not fresh evidence and was available with reasonable diligence. The proposed evidence does not raise sufficient doubt in my mind about the applicant's guilt that the verdict should be quashed. I would dismiss ground 4.
Ground 5: Wrongful admission of Exhibits 11 and 12
71 Exhibit 11 is a printout indicating that a file name Video-dog.mpeg was created on 30 July 2001 at 11.19 am. It was created in the applicant's directory. The time is important. Exhibit 12 is a website list found within the applicant's directory. It is a list of website addresses, the names of which are probative of the fact that they are websites which may contain child pornography.
72 Each exhibit was tendered through Mr Thomas. Before accepting Exhibit 11 into evidence the 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"
73 Counsel for the accused:
"It is, your Honour."
74 When Exhibit 12 came to be tendered the Judge said:
"Any objection?"
75 There was no answer and so the tender continued.
76 In the course of his directions to the jury, the Judge dealt with these exhibits. He made a mistake, which was immaterial, in describing the exhibits as Exhibits 13 and 14 when they should correctly be described as Exhibits 11 and 12:
"…There is only one other legal issue that I need discuss with you. You heard during the course of the trial that, apart from the material said to have been found in the form of computer data relating to the two counts in the indictment, there was other allegedly objectionable material which did not relate to either of those two counts. I refer to exhibit 13 which was a Web site list of allegedly pornographic material. I refer also to exhibit 14 which was allegedly a bestiality movie.
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- 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, but you must remember, ladies and gentlemen, that this evidence is not direct evidence of the two offences charged and unless you are satisfied that the subject of each charge has been proved by the evidence relating to that charge you cannot use the evidence of possession of objectionable material falling outside the two charges to convict the accused.
Furthermore, you must not reason that because he might have possessed objectionable material such as pornographic lists on occasions other than those charged he was the kind of person who was likely to have been in possession of child pornography and obscene material on the occasions charged. That type of reasoning is totally impermissible in a criminal trial."
77 The first very considerable hurdle which the applicant must overcome is that this material was tendered by consent in the case of Exhibit 11, and either by consent or acquiescence in the case of Exhibit 12. Counsel at trial cross-examined Thomas to establish that the file was created at 11.19 am on 30 July 2001. There was some point to this as the time at which the applicant was shut out of the system was a live issue at trial. Counsel also cross-examined on Exhibit 12 eliciting the response that there was no evidence that the sites were visited and that it was possible that somebody could be prevented from going to those addresses by a firewall or a Net nanny. In my opinion, there was a clear forensic purpose to the tender of Exhibit 11. The time of download of a pornographic item was an important issue in the case, notwithstanding the prejudicial nature of the item in question. The real issue at the trial was not whether the material downloaded contained child pornography or was obscene but whether the applicant possessed the material in circumstances where he knew of its content and had taken steps to download it.
78 The evidence in relation to Exhibit 11 had a relevance over and above mere propensity in that it showed an underlying system of access to pornographic sites. In my opinion, it was relevant evidence: Pfennig v The Queen (1995) 182 CLR 461. The evidence was admissible for this
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- limited purpose and the Judge correctly directed the jury against an impermissible line of reasoning in respect of the evidence.
79 It is more difficult to see great significance in the list of websites (Exhibit 12). However, I consider the argument was open to the prosecution to use that 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. The manner in which the Judge dealt with the evidence left the jury in no doubt as to the limited use that they could make of the material.
80 In any event, the fact that this material was tendered by consent is, in the circumstances, an insuperable hurdle. There is no suggestion in the grounds of appeal, or in the careful and moderate way in which the applicant's counsel argued the appeal, that counsel at trial was incompetent. There is a clear tactical reason why Exhibit 11 might be let in in the circumstances. In the circumstances the fact that a tactical decision about Exhibits 11 and 12 may now seem to have been unwise, in light of the verdict, has not deprived the applicant of a fair trial: R v Suresh (1998) 72 ALJR 769. The applicant is bound by the conduct of counsel and the tactical decisions made: TKWJ v The Queen (2002) 212 CLR 124 per Gleeson CJ at [8].
81 I propose to deal with grounds 6 and 7 in a slightly different order from that presented.
Ground 6(d) and (e) – Admissibility of the confession
82 These grounds challenge the admissibility of the applicant's response to Ms Michalanney's statement. In the alternative, it is said that the response should have been excluded on discretionary grounds. The applicant submits that the material I have set out as constituting an admission was not an unequivocal and unambiguous confession to knowingly possessing child pornography. I disagree. In my opinion, the response to Michalanney is material on which it was open for the jury to conclude that the applicant had made an admission to the possession of child pornography. I note that the view of counsel for the applicant at trial was that the responses "are clear admissions against his interest by the accused person".
83 The jury had before them not only the oral testimony of the witnesses, Jones and Michalanney, but also their notes. Jones's notes were tendered as Exhibit 6 by defence counsel with the consent of the prosecution. Michalanney's notes were tendered as Exhibit 7 by the
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- prosecution with the consent of the defence. Not too much can be made of this fact because in advance of the trial defence counsel sought, unsuccessfully, to have the evidence excluded. The Judge adjourned briefly to consider the ruling. The first point the Judge made was that the voluntariness of what the applicant said did not seem to be an issue:
"There's absolutely no suggestion that his will was overborne or that he did not say what he did in the exercise of his free choice. The question I have to decide, however, is whether the accused's statements ought be excluded in the exercise of my discretion."
"…The accused was simply told by the staff in question what had been found on his computer and was also told that he would be receiving a letter in due course.
The accused's responses both by his conduct and in his words were spontaneous and, as far as I can see, unsolicited. There was no need for him to volunteer the information he did. There was no need for him to have replied at all. However, he chose to do so."
85 The Judge also noted that the applicant was not interrogated and the confrontation was never intended to elicit answers from him.
86 In directing the jury, the Judge referred to the admissions, summarising the prosecution and defence arguments in respect of them, directing the jury that they would have regard to the evidence and relate it to the detailed submissions put by the prosecutor and counsel for the accused.
87 A Judge is bound to direct the jury as to the issues raised in a trial but it is not necessary, or desirable, for a Judge to give the jury directions about matters which have not arisen. In this trial no issue arose as to whether or not the applicant made the gesture and the comments as given in evidence by Ms Michalanney. The Judge gave standard directions as to burden and standard of proof and which are not challenged. He advised the jury that direct evidence is not necessarily more convincing than
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- circumstantial evidence and the jury must decide what weight they give to any particular piece of evidence, be it direct or circumstantial.
88 In speaking of the right to silence in Petty v The Queen (1991) 173 CLR 95 Brennan J at 107 said:
"The rule is designed to prevent oppression by the police or other authorities of the State; it is not designed to preclude a jury from drawing inferences from silence when a response might reasonably have been expected, the response not being sought by or on behalf of a person in authority." [cfc]
89 This premise was further developed in the High Court in R v Swaffield (1998) 192 CLR 159. In Swaffield Brennan CJ examined the authority on involuntary confessions and what he called the fairness discretion. He set out the rules by which voluntariness was determined as adopted in R v Lee (1950) 82 CLR 133 at 144.
90 In the present case, I doubt whether Ms Michalanney could be regarded as "a person in authority" in the sense used in the cases. If I am wrong about that, there is no indication that Ms Michalanney offered any form of threat or inducement to the applicant. The occasion of the meeting was, for her, to impart information to the applicant. I agree with the Judge's characterisation that the applicant made a spontaneous response. In the circumstances, I do not regard the admissions as involuntary, nor was there any occasion for the exercise of general discretion to exclude the evidence. I would dismiss this ground of appeal.
Ground 7: The verdict on count 2
91 I commence this discussion by noting that the applicant, when arraigned, pleaded "not guilty" to the indictment, a plea permitted under the Criminal Code s 616(2). He did not plead that the District Court had no jurisdiction to try him on the charge outlined in count 2.
92 I also note that the jurisdictional and procedural provisions in the Criminal Code have been substantially changed since the trial. By Act No 4 of 2004 proclaimed 26 May 2004, amendments to the Criminal Code have considerably enlarged the jurisdiction of Courts of Petty Sessions to deal with many indictable offences in a summary manner.
93 The first issue is whether the District Court had jurisdiction to try the applicant for the summary offence laid pursuant to the Censorship Act s 59. If, as I conclude, the District Court had no jurisdiction to try the
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- charge outlined in count 2, does the applicant's action in pleading not guilty demand trial by jury for the charge pursuant to the Criminal Code s 622?
(a) The jurisdiction of courts of justice
94 The jurisdiction of courts is set out in the Criminal Code ch LXI entitled "Jurisdiction". The jurisdiction of courts of justice with respect to the trial of offenders is set forth in the laws relating to the constitution and jurisdiction of those courts respectively: Criminal Code s 571. The three courts with jurisdiction in Western Australia are the Supreme Court, District Court and Courts of Petty Sessions.
95 The Supreme Court gains its general jurisdiction in respect of criminal matters from the Supreme Court Act 1935, s 16.
96 The District Court's criminal jurisdiction arises under s 8 and s 42 of the District Court of Western Australia Act 1969. The District Court has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence. The District Court has no jurisdiction in respect of offences for which the maximum term of imprisonment that can be imposed is imprisonment for life or strict security life imprisonment. I shall hereafter refer to the Supreme and District Courts as superior courts.
97 The Courts of Petty Sessions are given limited jurisdiction under s 20 of the Justices Act. Justices have jurisdiction for any offence made punishable on summary conviction. Justices are prohibited from exercising jurisdiction to hear and determine an indictable offence which does not have a summary conviction penalty.
98 The various statutes to which I have referred do not expressly give superior courts jurisdiction over summary matters. In the statutory provisions I now set out, the jurisdictional scheme becomes quite clear. Superior courts have exclusive jurisdiction over indictable offences. Courts of Petty Session have exclusive jurisdiction over summary offences except where, in limited circumstances, a statute expressly extends the jurisdiction of superior courts to summary offences.
99 The Interpretation Act 1984 s 67 provides:
"Offences and proceedings for offences
(1) Offences are of 2 kinds: indictable offences and simple offences.
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- (1a) An offence designated as a crime or as a misdemeanour is an indictable offence.
(2) An offence not otherwise designated is a simple offence.
(3) The procedure for dealing with indictable offences is set out in the Justices Act 1902 and The Criminal Code.
(4) The procedure for dealing with simple offences, and matters that are to be dealt with summarily, is set out in the Justices Act 1902."
100 In certain circumstances, the jurisdiction of the superior courts has been enlarged to deal with simple offences. For example, under the Sentencing Act 1995 s 32, a superior court may, upon request, deal with a simple offence and by s 32(4):
"For the purposes of this section a superior court is to be taken to have jurisdiction to deal with simple offences."
101 A superior court has jurisdiction to deal with a simple offence of breach of a community based order.
102 The Criminal Code Compilation Act provided at the time of trial that an indictable offence is triable only on indictment, unless the Criminal Code or another written law expressly provides otherwise. There are exceptions in relation to indictable offences triable summarily which are not relevant to the present issue. The Criminal Code Compilation Act 1913 s 4 relevantly provided at the time of trial that:
"No person shall be liable to be tried or punished in Western Australia as for an indictable offence except under the express provisions of the Code or some other statute law of Western Australia…" [emphasis added]
103 This section was amended by the Criminal Code Amendment Act 2004 (Act No 4 of 2004) by deletion of the adjective "indictable". At the time of trial an "indictable offence" was defined meaning an offence a compliant of which is, unless otherwise expressly stated by the Code, triable only by jury - Criminal Code s 3.
104 This definition was repealed by Act No 4 of 2004 which also added general provisions for indictable offences in an amended Criminal Code s 3.
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105 The express provisions of the statute law for the trial of simple offences are to be found in the Justices Act. Proceedings are commenced by complaint. In contrast:
"The term 'indictment' means a written charge preferred against an accused person in order to his trial before some court other than justices exercising summary jurisdiction." (Criminal Code s 1).
106 The procedure governing a trial on indictment is exhaustively set out in the Criminal Code. Chapter LXII entitled "Indictments" details various rules in respect of indictments. Chapter LXIII is entitled "Effect of Indictment". Chapter LXIV is entitled "Trial – Adjournment: Pleas: Practice".
107 By Criminal Code s 594, which is in ch LXIII:
"Person may be convicted for offence other than that charged
… upon an indictment charging a person with an offence he may be convicted of any indictable or simple offence which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment."
108 Section 594 does not authorise the charging of a simple offence amendment. It allows a conviction for a simple offence in circumstances where an indictable offence is charge but not proved. There are also specific examples when, upon an indictment charging a person with an offence, the person may be convicted of a simple offence: s 598AA and s 599. Apart from these provisions, a superior court has no general jurisdiction to hear and determine a simple offence.
109 Section 602A of the Criminal Code, also in ch LXIII, is entitled "Conviction on indictment of offence that might have been tried summarily" and provides:
"A person may be convicted of and punished for an offence on indictment notwithstanding that the person might have been convicted of and punished for that offence summarily."
110 At first sight, s 602A might appear to provide some support for the regularity of the conviction obtained on count 2. However, the proper
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- construction of s 602A does not extend to justify the conviction on count 2.
111 Section 602A, as I have said, appears within ch LXIII entitled "Effect of indictment", not in ch LXI entitled "Jurisdiction", nor in ch LXIV entitled "Trials: Adjournment: Pleas: Practice". Section 602A was part of a package of amendments inserted into the Criminal Code by the Acts Amendment Act No 106 of 1987. Act No 106 of 1987 also amended s 594 by deleting the words "any offence" and substituting "any indictable or simple offence under this Code, or any other indictable offence". Section 594 provides:
"Person may be convicted for offence other than that charged
Except as hereinafter stated, upon an indictment charging a person with an offence he may be convicted of any indictable or simple offence under this Code, or any other indictable offence, which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment."
112 The pre-condition for such conviction, however, is that the conviction must be "upon an indictment charging a person with an offence".
113 Section 602A was added to the Criminal Code at the time when a number of simple offences were created. For example, s 378A created a simple offence where the amount stolen was less than $400 (repealed by Act No 101 of 1990). The amendments also provided for summary trials in certain circumstances of offences such as becoming an accessory after the fact and indeed Pt III AmendingAct No 106 of 1987 is entitled "Amendments relating to summary conviction for certain offences". Section 426 was amended to allow for summary disposition in certain matters and it is for these offences that s 602A was added. Act No 106 of 1987 was not proclaimed until 14 March 1988. In that same year other amendments were added to the Criminal Code.
114 By Act No 119 of 1985 s 5 was repealed. Its form had no relevance to the matters presently under consideration. The only relevance is that by Act No 70 of 1988 a new s 5 "Summary conviction of indictable offences" was added to the Code. That section was an attempt to allow certain indictable offences to be dealt with by way of summary conviction.
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115 It enacted a regime whereby, if the words "summary conviction penalty" appeared after a provision in the Code, then, in certain circumstances, the matter may be dealt with summarily at the election of the person charged, and the person was liable on summary conviction to a lesser penalty than if the matter had proceeded on indictment. Section 5 added to the procedures that were already in place under s 574(4) of the Criminal Code to cover the position where a person is charged before a Court of Petty Sessions with an indictable offence that may, at his election, be dealt with summarily, or with a simple offence for which he may, at his election, be prosecuted on indictment. Those provisions although current at trial, have been repealed by Act No 4 of 2004.
116 It is with this background in mind that I approach the construction of s 602A. The title of the chapter in which the section occurs and its history all impel the conclusion that it was not meant to enlarge the jurisdiction of a superior court to deal with a summary offence unless the offence charged was an offence which was capable otherwise of being dealt with on indictment. The phrase "an offence on indictment" where appearing must be equivalent to "an indictable offence" for the reasons I have previously set out. A person may be convicted of and punished for "that offence summarily" not "that summary offence". Clearly the second reference to offence in the section is a reference back to an indictable offence not to a simple offence.
117 I turn to deal with the prosecution submission about s 622.
118 Chapter LVIV deals with Trials: Adjournments: Pleas: Practice. By s 616 a person must either plead or demur to an indictment and the trial is deemed to begin when the person is called on to plead: Criminal Code s 612. There follows s 622 which provides:
"622. Trial by jury
If the accused person pleads any plea or pleas other than the plea of guilty, or a plea to the jurisdiction of the court, he is by such plea, without any further form, deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury, and, subject to Chapter LXIVA, those issues are triable accordingly.."
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- redundant as the jurisdiction of the superior courts is unlimited as to territory.
120 It is clear that the reference to "plea" in s 622 in the context of the CriminalCode, 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. Therefore, the procedures for trying a simple offence disclosed by such a document are never activated.
121 Any plea purportedly made under the Criminal Code s 616 is likewise a nullity and so there can be no demand to have the issues raised by such plea tried by a jury.
122 Moreover, I do not read s 622 as a provision which, by its own force, without more, can, in some circumstances, invest a superior court with basal jurisdiction.
123 My conclusion on the nullity of the indictment is consistent with the decision of this Court in Paciente v The Queen, unreported; CCA SCt of WA; Library No 920574; 10 November 1992. Although the Court's intention in Paciente was not drawn from Criminal Code s 622, I do not consider that the omission lessens the authority of the decision.
(b) The decision in Paciente v The Queen
124 Paciente was charged on indictment with two offences under the Misuse of Drugs Act. Count 1 on the indictment alleged that on 8 February 1991, at Embleton, Paciente had in his possession a quantity of amphetamine with intent to sell or supply it to another. This was an allegation of an indictable offence: Misuse of Drugs Act s 6(1).
125 Count 2 on the indictment, as presented, alleged that on the same date and at the same place Paciente had in his possession a quantity of amphetamine.
126 The second count alleged a simple offence (Misuse of Drugs Act s 6(2)). At the commencement of the trial, the prosecution successfully applied to amend count 2 by adding the words "with intent to sell or supply it to another".
127 Paciente was convicted and sentenced to concurrent terms. He appealed against the convictions on various grounds. His appeal was
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- successful. One ground concerned count 2. Franklyn J (Nicholson and Ipp JJ agreeing) held that count 2 was a nullity and therefore could not be amended:
"The indictment presented to the Court was signed by the senior assistant crown counsel. It is not in dispute that he was authorised in that behalf by the Governor. However by count 2 it did not charge an indictable offence, but a simple offence which, by reason of s9, was to be tried summarily.
Thus the indictment alleged an offence not capable of being the subject of an indictment or of a committal for trial. In my view, in respect of count 2, the indictment was a nullity. The defect could not be cured by the amendment purportedly made, whether it be regarded as an amendment to the indictment as signed and presented or as purporting to produce an ex officio indictment. Consequent upon the amendment count 2 alleged an indictable offence which had never been the subject of an indictment signed and presented to the Court by the Attorney General or some other person appointed in that behalf by the Governor. S591 of the Criminal Code, which permits the amendment of indictments, has no application. The document as signed and presented, did not, by count 2, allege an indictable offence and so relevantly was not an 'indictment'."
128 What follows from my conclusion on ground 2 is that there has been, in the words of s 689(1), "a wrong decision of any question of law". The Court is obliged to allow the appeal unless it considers that no substantial miscarriage of justice has actually occurred.
129 In Wilde v The Queen (1988) 164 CLR 365 the High Court considered the application of the proviso. The onus is on the prosecution to establish that there has been no miscarriage of justice. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.
130 As it was put at 373:
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- "…It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings."
131 Brennan, Dawson and Toohey JJ noted that there is no rigid formula to determine what constitutes such a radical or fundamental error which may go either to the form of the trial or the manner in which it was conducted and that each case must be determined upon its own circumstances.
132 In my opinion, the inclusion of count 2 on the indictment is a fundamental error under which the trial proceeded and the proviso has no application. The trial was conducted in respect of both counts at the one time when there should have been only one offence before the jury. A verdict was returned on a nullity. The trial fundamentally miscarried. In any event, I consider the applicant lost the chance of an acquittal which was fairly open to him because of the inclusion of count 2.
133 Count 1 involved 105 images of child pornography. Count 2 involved 11 of obscene and indecent images. It appears from the evidence I have outlined earlier, that after access had been denied to the applicant. The images were downloaded and then characterised as either child pornography or indecent or obscene material. The essence of the prosecution case was that the applicant was in possession of prohibited material, some of which was child pornography and some of which was obscene and indecent material. 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. It may be that the evidence would be admissible but the applicant was denied the opportunity of advancing an argument to the contrary by reason of the joinder of counts 1 and 2.
134 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.
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