CD (By her Litigation Guardian EF) v Hamence; GH (By her Litigation Guardian IJ) v Hamence
[2017] VSC 753
•14 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2017 03536
BETWEEN:
| CD (BY HER LITIGATION GUARDIAN EF) | Plaintiff |
| v | |
| PETER JOHN HAMENCE | Defendant |
AND BETWEEN:
S CI 2017 03537
| GH (BY HER LITIGATION GUARDIAN IJ) | Plaintiff |
| v | |
| PETER JOHN HAMENCE | Defendant |
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JUDICIAL OFFICER: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2017 |
DATE OF RULING: | 14 December 2017 |
CASE MAY BE CITED AS: | CD (By her Litigation Guardian EF) v Hamence; GH (By her Litigation Guardian IJ) v Hamence |
MEDIUM NEUTRAL CITATION: | [2017] VSC 753 |
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PRACTICE AND PROCEDURE – Subpoena objection – Child abuse material – Whether production of material to Prothonotary constitutes distribution or access to it – Whether production of material would be an offence – Whether production of material is in connection with the administration of the criminal justice system – Whether any exception applies to provision of material – Whether production of material interferes with forfeiture order – Subpoena within interests of justice – Subpoena objection dismissed – Crimes Act 1958 (Vic) ss 51A, 51C, 51D, 51H and 51J – Interpretation of Legislation Act 1984 (Vic) s 35 – Sentencing Act 1991 (Vic) s 85B – Confiscation Act 1997 (Vic) ss 34 and 44(1) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 42AA.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms C Moore | Ryan Legal |
| For the Chief Commissioner of Police | Mr C M McDermott | Victorian Government Solicitor’s Office |
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JUDICIAL REGISTRAR:
Introduction
This is an objection by the Chief Commissioner of Police (“CCP”) to produce items pursuant to two subpoenas, identical save for their case numbers and the names of the plaintiffs.
The objection was heard on referral on 13 October 2017.[1]
[1]Order made by Ierodiaconou AsJ on 12 October 2017.
The plaintiffs, who are minors and who bring this action by way of their litigation guardians, subpoenaed Mildura Sexual Offences and Child Abuse Investigation Team of Victoria Police[2] for:
All material, records and items pertaining to the prosecution of Mr Peter Hamence in respect of case number G12772878 including but not limited to all property seized and referred to in the Court Order dated 8 August 2017 under the heading ‘Forfeiture order made by consent.’
[2]Subpoena for Production to the Prothonotary filed 5 September 2017.
The CCP objects to the production of some of the material caught by the terms of the subpoena, that being material which constitutes ‘child abuse material’.
Of its own motion, the Court has made a pseudonym order in relation to both plaintiffs and their litigation guardians.
Background
These proceedings arise from the sexual abuse of the plaintiffs by the Defendant.
The Defendant covertly used a video camera with the appearance of a digital clock to record the plaintiffs in a state of undress without their knowledge and stored the recordings on the desktop computer and the USB stick. The Court understands that images of the plaintiffs are stored on each of these devices.
On 8 February 2017 the Defendant pleaded guilty to charges, in relation to each of the plaintiffs, that he did:
(a) knowingly produce child pornography;
(b) knowingly possess child pornography; and
(c) stalk another person.
On that day, a forfeiture order pursuant to Part 3 of the Confiscation Act 1997 (Vic) (“Confiscation Act”) was made by consent over:
(a) a USB stick;
(b) a covert video camera with the appearance of a digital clock; and
(c) a desktop computer.
The plaintiffs initiated common law proceedings for damages in this Court on 1 September 2017. The plaintiffs claim that they have suffered psychiatric injury as a result of the Defendant’s actions.
The CCP’s arguments
The CCP objected in its written material to the production of documents on the following grounds:[3]
[3]Submissions of the Addressee to Subpoena Issued by the Plaintiffs dated 11 October 2017 (“the submissions”).
(a) part of the material identified as being within the scope of the subpoena constitutes ‘child abuse material’ for the purpose of s 51A(1) of the Crimes Act 1958 (Vic) (“Crimes Act”), and production of such material may constitute an offence[4] since it does not fall within the lawful exceptions under s 51J of that Act;
(b) the interest in property the subject of the forfeiture order made by the Magistrates’ Court on 8 February 2017 now vests in the Minister, and requiring the CCP to fulfil the subpoenas will interfere with the terms of the forfeiture order; and
(c) the plaintiffs have not identified “a legitimate forensic purpose” for the use of the material sought in the subpoenas in these common law proceedings.
[4]Crimes Act 1958 (Vic) div 1 sub-div 8.
The CCP did not press the last of these objections as, after reviewing the submissions of the plaintiffs, Counsel accepted that the plaintiffs had a legitimate forensic purpose for seeking the material.
Production of the material may constitute an offence
The CCP submits that the material sought for production in the subpoenas constitutes ‘child abuse material’ within the meaning of s 51A(1) of the Crimes Act which defines such material as:
material that –
(a) depicts or describes –
(i) a person who is, or who appears or is implied to be, a child –
(A) as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or
(B) as a victim of sexual abuse; or
(C) engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or
(D) in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity; or
(ii) the genital or anal region of a person who is, or appears or is implied to be, a child; or
(iii) the breast area of a person who is, or who appears or is implied to be, a female child; and
(b) reasonable persons who would regard as being, in the circumstances, offensive.
The Crimes Act defines material as being:
(a) any film, audio, photograph, printed matter, image, computer game or text; or
(b) any electronic material; or
(c) any other thing of any kind. [5]
[5]Ibid s 51A(1).
The Court was informed that the material contains images of the plaintiffs in a state of undress. There is no doubt that such images would constitute child abuse material, under s 51A(1)(a)(ii) and/or s 51A(1)(a)(ii) and s 51A(1)(b) of the Crimes Act, and the plaintiffs accept that the material is child abuse material.
Section 51 of the Crimes Act sets out a number of ways in which dealing with child abuse material constitutes an offence. The most relevant sections for this application are ss 51D and 51H which are set out below:
s 51D Distributing child abuse material
(1) A person (A) commits an offence if –
(a) A intentionally distributed material; and
(b) the material is child abuse material; and
(c) A knows that the material is, or probably is, child abuse material.
s 51HAccessing child abuse material
(1) A person (A) commits an offence if-
(a) A intentionally accesses material; and
(b) the material is child abuse material; and
(c) A knows that the material is, or probably is, child abuse material.
(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
(3) For the purposes of subsection (1), the ways in which A accesses material may include –
(a) viewing material; or
(b) displaying material by an electronic medium or any other output of the material by an electronic medium.
The CCP contends that, if the material requested was produced in response to the subpoena, production of the material would or could give rise to the commission of an offence under the Crimes Act.[6]
[6]Such as s 51H.
Distributing child abuse material
Pursuant to s 51A(2)(b), the ways in which material is distributed may include -
(i) publishing, exhibiting, communicating, sending, supplying or transmitting the material to any other person; or
(ii) making the material available for access by any other person.
On the ordinary meaning of the text in s 51A(2)(b) and s 51D, the production of the material to the Court would appear to fall within the scope of the offence.
The plaintiffs contend that, because the subpoenas were issued pursuant to O42AA of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the material is to be produced to the Prothonotary of the Supreme Court, not a legal person. Therefore, the offence of distribution provided for in s 51D cannot apply as the material is not being distributed to ‘any other person’.
The principle of statutory construction was considered by the Court of Appeal in State of Victoria v Intralot Australia Pty Ltd[7] where the Court determined that:
Authorities at the highest level stretching back over 60 years…make it clear that if an Australian legislature desires to enact a secret provision which would impinge on court procedures for the obtaining (by parties or by the court itself) of relevant information or evidence – such as pleadings, particulars, discovery, inspection, subpoenas of the giving of written or oral testimony – then the legislature will generally need to refer expressly to courts in this regard.[8]
[7][2015] VSCA 358.
[8]Ibid [55].
In that case, the Court of Appeal held that an offence provision relating to disclosure did not operate to prevent disclosure in the context of court processes. The principle is based upon the policy that ‘courts should be able to secure information relevant to issues which they are called upon to determine.’[9]
[9]Lloyd’s Ships Holdings Pty Ltd & Anor v Davros Pty Ltd & Ors (1986) 11 FCR 287, 292.
In Potts v Dennis Jones[10] Lindgren J determined that a statutory provision preventing or restricting the ‘publication’ of evidence was not intended to catch ‘production to a court pursuant to the coercive power of a subpoena’.[11] The legislature, where it wishes to do so, is able to provide expressly for an immunity from an obligation to produce material to court.[12]
[10](1995) 58 FCR 61.
[11]Ibid 70.
[12]Ibid 71.
The proper administration of justice is fundamental to any proceeding and subpoenas facilitate the administration of justice in ensuring that material that has a legitimate forensic purpose can be brought before the Court. In the absence of a provision expressly setting out that child abuse material is not to be provided to the Court, it could be determined that the Court is not ‘any other person’ to which material can be ‘distributed’ within s 51A(2), and where there is no express intention of the legislature that the prohibition on distribution should apply in such a context.
If providing material to the Prothonotary is not ‘publishing, exhibiting, communicating, sending, supplying or transmitting’ the material to a ‘person’, could such production to the Prothonotary still constitute distribution under s 51A(2)(b)(ii) by causing the material to be available for access by any other person, being the plaintiffs and their lawyers? The argument against this is that it is not the CCP who is then ‘distributing’ the material – the CCP’s involvement with the material ends when he produces it to the Prothonotary.
Accessing child abuse material
The plaintiffs contend that providing the USB stick, computer hard drive and digital clock video recorder, on which the images are contained, does not require the CCP to ‘access’ the child abuse material as envisaged by s 51H, as there is no requirement for the CCP to view, display, download or in any other way access the images which constitute the child abuse material. The plaintiffs propose that the USB stick itself could be provided, or digital copies of the documents on the USB stick could be provided and that ‘actual accessing of documents would not be required in either case.’
However, s 51H(3)(b) also defines ‘access’ to material to include ‘any other output of the material by an electronic medium’.
The Department of Justice’s report, ‘Crimes Amendment Sexual Offences Act 2016: An Introduction’, notes that the definition of how material may be accessed is inclusive and includes audio or tactile access (using the example of a child sex doll).[13]
[13]‘Criminal Law Review’ Victorian Department of Justice & Regulation, Crimes Amendment (Sexual Offences) Act 2016; An Introduction, June 2017, [8.2.5].
Providing a print out of digital images would, under s 51H(3)(b), constitute access to the material as it would be an output of the material by an electronic medium.
However, merely producing the USB stick, a computer or a video recorder which contains digital images constituting child abuse material, whilst requiring the CCP to access those pieces of equipment, does not require the CCP to access the child abuse material contained therein and would not, therefore, be in breach of s 51(H).
Therefore, I am not satisfied that, in complying with the subpoena, the CCP would be committing an offence pursuant to the Crimes Act.
Exceptions to child abuse material offence
However, if, contrary to my finding, production to the Prothonotary does involve distributing or accessing child abuse material by the CCP, the question then becomes whether any exception applies to the provision of material in these circumstances.
Section 51J of the Crimes Act provides that:
A does not commit a child abuse material offence (other than an offence against section 51I(1) if the conduct is engaged in by A in good faith in the course of official duties of A—
(a) connected with the administration of the criminal justice system, including the investigation or prosecution of offences; or
(b) as an employee of the Department of Justice and Regulation who is authorised to engage in that conduct by the Secretary to that Department.
The CCP submits that:
(a) s 51J(a) does not provide a lawful exception in these circumstances as these are civil proceedings and are not connected with the administration of the criminal justice system; and
(b) s 51J(b) simply does not apply as the Chief Commissioner of Police is not ‘an employee of the Department of Justice and Regulation who is authorised to engage in that conduct by the Secretary to that Department’.
The exceptions in s 51J need to be considered in relation to the Crimes Amendment (Sexual Offences) Act 2016 (Vic). The Explanatory Memorandum to that Bill sets out the basis of the exception as being:
The exception is simplified to ensure coverage of the variety of roles associated with the criminal justice system which may require a person to deal with child abuse material as part of their official duties. This could include a police officer, prosecution, lawyer, court staff, or a judge. It could also include services under contract, such as a forensic computer specialist hired by the police to analyse a computer.[14]
[14]Explanatory Memorandum, Crimes Amendment (Sexual Offences) Bill 2016 (Vic) 64.
The CCP contends that the exception identified in s 51J is limited to only those individuals engaged in fulfilling their duties associated with the criminal justice system. The fact that the criminal justice system is specified in the legislation, rather than ‘the justice system’ more generally, should be taken to mean that the exception is not intended to apply to other aspects of the justice system, including the civil justice system.
The plaintiffs contend that the purpose of s 51 is to prevent the improper dissemination of child abuse material, at least in part to protect the rights and interests of the child who is the subject of such material. Releasing such material to the Court to allow the plaintiffs to access it to pursue their civil claim, in no way undermines the purpose of the legislation. Indeed, the plaintiffs contend, not allowing them access to this material would subvert the protective purposes of the legislation, as they would be significantly impeded in their attempts to seek redress for the injuries caused to them by the Defendant.
There is no doubt that the purpose of s 51 is to ensure limits on the dissemination of child abuse material. People who lawfully come into possession of child abuse material in the performance of their duties, such as police officers, will still commit offences if they subsequently deal with that material in any way that goes beyond the performance of their duty within the administration of the criminal justice system. The legislation necessarily imposes significant, potentially onerous, restrictions on the handling of child pornography to ensure that its scourge, as far as possible, is curtailed.
The question in the present case is whether the production of material in response to a subpoena in this proceeding is ‘connected with the administration of the criminal justice system’.
A number of decisions address the question of how terms such as ‘connected with’ are to be interpreted in a legislative context. They have been considered ‘capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote.’[15]
[15]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 288.
Ultimately each provision is to be considered in the context of the Act in which it appears. The Full Court of the Federal Court in Burswood Management Ltd v Attorney-General (Cth)[16] approved the following statement by Davies J in Hatfield v Health Insurance Commission:[17]
The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and the object or purpose of the statutory provision in which they appear.[18]
[16](1990) 23 FCR 144; also later referenced in Minister for Immigration and Multicultural Affairs v Singh & Ors [2000] FCA 845.
[17](1987) 15 FCR 487.
[18]Ibid 491.
The Full Court in Burswood[19] further noted:
Reference to particular reported cases is of little assistance in determining the meaning of the words "in connection with" because they take their meaning from the particular statute in which they appear.[20]
[19](1990) 23 FCR 144.
[20]Ibid 146.
Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) provides that in the interpretation of a provision of an Act or subordinate instrument:
A construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object.
The Crimes Act restricts the legitimate dealings with child abuse material to dealings that occur in connection with the administration of the criminal justice system. The purpose or object of the Act is ensure child abuse material is not disseminated inappropriately. Production of the material would not be contrary to that purpose or object.
One can envisage a range of circumstances in which child abuse material may need to be dealt with in connection with the administration of the criminal justice system, which are not directly related to the prosecution of a criminal offence. Such dealings might include, for example, a judicial review proceeding in this Court relating to a ruling in the course of the criminal proceeding or an investigation into police conduct of an investigation. While one would always expect material of this nature to be dealt with sensitively, there is no call to read the phrase ‘connected with the administration of criminal justice’ as encompassing only direct connections with a criminal prosecution.
In Thales Australia Ltd v Coroners Court[21] Beach J (as his Honour then was) held in relation to the phrase ‘connected with the death’ in Coroners Act 2008 (Vic) that ‘standards, protocols and practices in place at the time and applicable to the work being performed’ by the deceased at the time of his collapse were within the scope of the relevant provisions and that there was no cause to read the provisions as requiring a direct connection.[22]
[21][2011] VSC 133.
[22]Ibid [76].
There are legislative provisions which allow victims of crime to seek to recover compensation, both from the perpetrator or the State.[23] Indeed, the plaintiffs in this case have made application pursuant to s 85B of the Sentencing Act 1991 (Vic) (“the Sentencing Act”). Had the same subpoenas been issued in those proceedings it is difficult to imagine that s 51J would not apply.
[23]See for example the Victims of Crime Assistance Act 1996 (Vic) and Part 4 Division 2 of the Sentencing Act 1991 (Vic).
The mechanism of s 85B of the Sentencing Act is designed as a simplified means of obtaining compensation without the need for recourse to civil proceedings. The existence of that mechanism suggests that victim compensation is, or can be, connected to the administration of criminal justice. An application for compensation under the Sentencing Act may be made by various people including the victim, the Director of Public Prosecutions or, if the sentencing court was the Magistrates’ Court as it was in this case, by the informant or police prosecutor on behalf of a victim.[24] The fact that the Director of Public Prosecutions, the informant or police prosecutor may bring an application on behalf of a victim for compensation from the offender reinforces the notion that the administration of criminal justice is not entirely unconnected with a claim for compensation.
[24]S 85C.
The explanatory memorandum to the Bill[25] introducing s 51J states that:
New section 51J(a) is based on the defence in existing sections 68(2) and (3), 70(4) and (5), and 70AAAB(6)(a)(i) of the Crimes Act 1958. The exception is simplified to ensure coverage of the variety of roles associated with the criminal justice system which may require a person to deal with child abuse material as a part of their official duties. This could include a police officer, prosecutor, lawyer, court staff, or a judge. It could also include services under contract, such as a forensic computer specialist hired by the police to analyse a computer.[26]
[25]See above n 14.
[26]Ibid 64.
The previous defences to which the explanatory memorandum refers encompassed police and prosecutors, but made no reference to, for example defence lawyers who received material through the court process of discovery.
Descriptions of abuse when recorded, in whatever form, fall within the definition of child abuse material. Under a strict construction of the Crimes Act, a lawyer who, in a civil claim for damages, draws a pleading detailing allegations of child sexual assault, would be ‘producing child abuse material’ pursuant to s 51C of the Crimes Act. A solicitor who, in a civil claim, provides to a barrister a client’s written instructions about child sexual assault would be ‘distributing child abuse material’.
Although in the present claim the Defendant pleaded guilty to criminal charges, there are many cases in the civil jurisdiction of this court that relate to child abuse in which no criminal charges have been laid. This Court currently has nearly one hundred claims for compensation arising out of institutional sexual abuse of children. In many of those cases the perpetrator has died and has never been the subject of the criminal justice system.
It cannot be correct that the intention of those provisions of Crimes Act is to criminalise the production or distribution of affidavits and pleadings in civil claims. In some of those cases, the plaintiffs rely on subpoenaed material from institutions which detail complaints of other victims of abuse to establish the liability of the defendant. It cannot be right that an institution could protect itself from having to produce records which would be damaging to it, on the basis that to produce those records would be in breach of the Crimes Act. This would entirely subvert the aim of the legislation which is to protect the victims of the child abuse material, not the perpetrators, or the institutions that harboured them.
It would therefore be a perverse result for these plaintiffs to be denied access to the material that depicts images of themselves, in circumstances where they seek to access it to prosecute their legal right to claim compensation.
Whilst this civil proceeding is not part of the criminal proceeding, it is not so remote from the administration of the criminal justice system that it cannot be considered to be ‘connected with’ it.
Interference with Forfeiture Order
The Certified Extract of the Magistrates’ Court Order dated 8 February 2017[27] states:
Forfeiture order made by consent Order all Property/s seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister.
[27]Affidavit of James Adams sworn on 7 September 2017 at Exhibit JA-1.
The parties agree that the forfeiture order was validly made pursuant to s 34 of the Confiscation Act and that the property now vests in the Minister. Nevertheless the property remains at the police station in Mildura.
Section 44(1) of the Confiscation Act requires that the Minister or a prescribed person must ‘as soon as practicable after the property vests in the Minister, sell or otherwise dispose of the property’.
The plaintiffs contend that ‘as soon as practicable’ could encompass destruction after the production of the material in compliance with the subpoena.
I note that the forfeiture order required that the material be disposed of ‘or otherwise dealt with’ according to the direction of the Minister.
There is a discretion granted to the Minister under the terms of the forfeiture order made by consent which does not necessarily require the destruction of the material and certainly does not require its immediate disposal.
It appears that no steps had been taken by the Minister or a prescribed person to dispose of the property between 8 February 2017 and the service of the subpoena on 6 September 2017.
The intent of the forfeiture order is to both deprive the Defendant of the property and to destroy the child abuse material contained within.
The forfeiture order can be complied with after the production of the material to the Prothonotary and any use that may be made of it in this civil proceeding. Any interference with the forfeiture order is temporary only and is in the interests of justice.
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