Eagles v Densley
[2012] VSC 355
•23 August 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. S CI 6730 of 2011
| NIK EAGLES | Plaintiff |
| V | |
| DETECTIVE SENIOR CONSTABLE NICK DENSLEY | First defendant |
| and | |
| THE COUNTY COURT OF VICTORIA | Second defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2012 | |
DATE OF JUDGMENT: | 23 August 2012 | |
CASE MAY BE CITED AS: | Eagles v Densley & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 355 | |
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COURTS AND JUDGES – Procedural fairness – Summary prosecution – Appeal to County Court – Knowingly possessing child pornography – Images contained on plaintiff’s DVD – DVD an exhibit – Contents of DVD not displayed in open court – County Court Judge viewing DVD in private chambers after hearing – Judge relying on way DVD was “configured” to convict plaintiff – Interpretation of Judge’s reasons – Whether Judge acted as investigator or prosecutor or created new evidence or denied plaintiff fair opportunity to be heard – No unfairness – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr K McDonald | Patrick W Dwyer |
| For the first defendant | Mr C Ryan SC | Office of Public Prosecutions |
| For the second defendant | No appearance |
HIS HONOUR:
The plaintiff applies for judicial review[1] of his conviction on 13 October 2011 in the summary appellate jurisdiction of the County Court on one count of knowingly possessing child pornography contrary to s 70 of the Crimes Act 1958.
[1]Under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. No appeal lies from decisions made by the County Court in determining appeals from the Magistrates’ Court in summary criminal proceedings.
The offending images were contained in a sub-folder entitled “Lolita” on an optical disk (DVD) found by police in July 2005 on a coffee table in a house then occupied for business purposes by the plaintiff. It was common ground before the County Court that the disk, and therefore the offending images, were in the possession of the plaintiff. The issue was as to the plaintiff’s knowledge. In effect, his case was that it had not been proven that he “knowingly” possessed the offending images on the DVD. There was material on the disk other than the offending images.
It was accepted that the entire contents of the disk had been transferred onto it by, or at the direction of, the plaintiff. Indeed the disk included a substantial amount of material directly relating to the plaintiff such as a photograph of him standing in front of his motor vehicle, a bank statement relating to his bank account and other files that contained references to his girlfriend, Kate. However, on the basis of the plaintiff’s record of interview with the police, it was suggested on his behalf that there was a reasonable hypothesis consistent with innocence. Specifically, it was suggested that in the course of his business of repairing computers, which was said to have involved transferring temporarily to his own disks (and thereby “backing up”) material contained on the hard drives of computers owned by his clients (but without the plaintiff viewing any such material), the offending images had been transferred to the disk in question without the plaintiff being aware of them. No other hypothesis consistent with innocence was suggested. The plaintiff neither gave nor called any evidence in the County Court proceeding.
In essence, the plaintiff makes a single complaint about his conviction. He submits that the Judge acted as an investigator and prosecutor and thus denied him procedural fairness in that the Judge viewed the DVD on computer equipment in his private chambers after the hearing and then, in his reasons for decision, concluded from the way in which the DVD was “configured” that the plaintiff’s suggested explanation was implausible. The plaintiff contends that the prosecutor had not relied on the configuration of the disk to prove knowledge and that the Judge had given no warning that he himself might rely on the configuration of the disk in that respect. There is a question (to which I will come) about what the Judge may have meant by his reference to the way in which the disk was “configured”.
In the originating motion the plaintiff seeks a declaration that the Judge acted as an investigator and prosecutor and that the plaintiff was thereby denied procedural fairness; and he seeks relief in the nature of certiorari quashing the conviction. The grounds are stated as follows:
(1) The [Judge] engaged in examination or testing of the DVD tendered as exhibit A and so created new evidence:
a.not subject to scrutiny or testing of the parties, particularly the plaintiff;
b.introduced after the close of the first defendant’s case against the plaintiff; and
c.that required expert skills to properly examine and understand and apply to the case.
(2)The [Judge] remedied the defects he had identified in the first defendant’s case against the plaintiff and denied the plaintiff the benefit of the acquittal he might have been entitled to.
I accept that this Court has the power to grant relief by way of a declaration or an order in the nature of certiorari in respect of a proceeding in the appellate jurisdiction of the County Court if the accused was denied natural justice or procedural fairness;[2] and that a valid complaint that the County Court Judge had acted as an investigator or prosecutor would fall under that heading and would therefore be remediable.[3]
[2]Craig v South Australia (1995) 184 CLR 163 at 175-176; Clark v Ryan [2005] VSCA 311 at [36].
[3]R v Brewer; ex parte Renzella [1973] VR 375 at 381; Gilfillan v County Court of Victoria (2001) 123 A Crim R 433.
Further, although in practice final addresses on the facts are usually not heard in summary criminal matters,[4] I am prepared to assume that under the rules of natural justice or procedural fairness the accused is entitled to have his or her mind directed (by the nature or course of the proceeding or otherwise during the proceeding) to the critical issues or factors on which the case is likely to turn in order to have an opportunity of dealing with them; and that the accused is entitled to an opportunity to respond to any adverse conclusion proposed to be drawn by the County Court Judge which would not obviously be open on the evidence.[5]
[4]Compare Mooney v James [1949] VLR 22 at 29.
[5]Compare Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, applied in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 161-162 and considered in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, 219.
In the present case, the plaintiff submits that the Judge has in effect created new evidence in the form of the “configuration“ of the DVD and has used that evidence to plug a gap in the prosecution’s case.[6] This was said to be illustrated by the fact that, moments before reserving his decision, the Judge had asked the informant during re-examination whether he could exclude the possibility that there was material on the disk that had come from, or was a “back up” of, a client’s hard drive. The informant’s answer was as follows:
Without being more technologically savvy and conducting further electronic investigations into it, it can’t be 100 percent excluded.[7]
[6]See Kozul v The Queen (1980) 147 CLR 221.
[7]Transcript 46-47.
Alternatively the plaintiff says that he should have been specifically warned by the Judge that he might draw adverse conclusions about the plaintiff’s knowledge from the configuration of the DVD and that he should have been given an opportunity to respond.
It will be recalled that ground 1 of the originating motion seems to assert that the County Court Judge should not have viewed the contents of the DVD at all. The plaintiff did not go so far in oral submissions. Acknowledging that the DVD had been before the County Court as an exhibit at least for some purposes,[8] counsel conceded that it was legitimate for the Judge to view the DVD in private chambers after the hearing.[9] However, as I understood him, counsel maintained in effect that the Judge should have restricted his examination of the DVD to checking whether the offending images and the material obviously relating to the plaintiff were both contained on the disk or, in any event, that the Judge should not have considered the way in which the disk was configured.
[8]See further below.
[9]Transcript, 19-20, 22 and 24.
I disagree. For the Judge to have restricted himself to checking whether the DVD contained the two sets of material would have been pointless, because it was common ground that the DVD did so. If the Judge was entitled to view the contents of the DVD at all, he was entitled to do more than that.
The plaintiff’s emphasis on the “configuration” of the DVD springs from the language in which the Judge expressed himself in explaining his decision. Initially the Judge gave very short oral reasons for decision in which he mentioned at the outset that he had viewed the DVD and in which he said, among other things,[10] that the way that the DVD was configured did not admit of the plaintiff’s explanation as a credible or plausible explanation. The plaintiff’s counsel then sought clarification, stating that the parties were not privy to the “investigations” which the Judge had made nor to the “specific things” which his Honour had observed. Counsel called upon the Judge to articulate specifically the things that had led the Judge to his conclusion. In response, the Judge immediately mentioned that he had previously offered the plaintiff’s counsel the opportunity to view the DVD, and that, indeed, he had hinted very strongly that the plaintiff’s counsel should do so. Counsel acknowledged this but asserted that it was not “his burden”. The Judge then explained his reasoning further – still orally - again referring to the way in which the DVD had been “configured”. Overall, his Honour used that word four times in explaining his decision.
[10]See further below.
It is necessary to consider what his Honour meant when he referred to the way in which the DVD was configured. There are, I think, only three conceivable readings of what his Honour meant.
The first conceivable reading is that his Honour had carried out or caused to be carried out some kind of technical or scientific examination or testing of the DVD beyond simply viewing its contents on a computer screen. Although in making inquiries of his Honour counsel had used the word “investigations” and although ground 1 of the originating motion seems to contain an allegation along similar lines, the plaintiff did not press any such suggestion at the hearing. It would have been fanciful for him to do so. His Honour would surely have made express reference to any such scientific or technical examination or testing had it occurred. He did not do so. Further, his Honour had twice said during the hearing that the extent of his computer literacy was quite limited. In addition, there would have been precious little time for his Honour to carry out or arrange for the carrying out of any scientific or technical testing. The contents of the disk (as such) had not been displayed during the course of the hearing. His Honour had not otherwise handled the DVD or viewed its contents and his Honour had reserved his decision for a period of no more than an hour or two (including the luncheon break) on 13 October 2011. Further, the plaintiff concedes that it was open to his Honour to convict him in reliance on the evidence led in Court without any expert scientific or technical evidence or investigation.[11]
[11]Transcript, p 72.
The second conceivable reading is that his Honour had, in simply viewing the contents of the DVD on a computer screen, noticed some feature thereof that, for his Honour, rendered unacceptable the plaintiff’s proffered explanation, being some feature that had not previously been described or remarked upon in court. However, once again, I think that his Honour would have made specific mention of any such feature had he seen and acted upon the same, especially in view of counsel’s invitation to his Honour to “articulate specifically” the things arising from his viewing of the DVD which had led his Honour to his conclusion. His Honour did not expressly refer to any feature of the contents of the DVD which had not previously been described or remarked upon in court; and his Honour did not expressly say anything that was inconsistent with the informant’s evidence.[12] The plaintiff’s counsel made no complaint to his Honour at the end of his Honour’s explanation, nor did he seek an opportunity to lead further evidence.
[12]Compare especially the informant’s evidence at County Court transcript, pp 2-3 with his Honour’s reasons at pp 56-57.
The third conceivable reading is that, in simply viewing the DVD on a computer screen, his Honour saw for himself features of the contents which satisfied his Honour that the plaintiff’s explanation was unacceptable, being features which had already been described or remarked upon in the evidence.
I am confident that this third reading is the correct one. It is strongly supported by the matters to which I have already referred, especially by the fact that, although the DVD was an exhibit, its contents had not been displayed in court during the hearing and his Honour had not otherwise viewed it himself prior to reserving his decision. Until that point, his Honour had largely had to make do with the informant’s attempts during his oral evidence to describe the contents and the arrangement of the contents of the DVD. The informant himself was not a computer expert. The only other material available to his Honour at the end of the hearing was a set of the offending photographs taken from the DVD (exhibit B), a set of print-outs of the material unarguably relating to the plaintiff which was also taken from the DVD (exhibit C) and the plaintiff’s record of interview with the police (exhibit D).
Counsel for the plaintiff was a little reluctant to concede that the Judge had in fact confined himself to matters covered by the informant’s evidence. Although unable to point to anything said expressly by the Judge, counsel speculated that his Honour may have taken into account some assessment of the degree of proximity between the sub-folder containing the offending images and the folder or folders containing the material which unarguably related to the plaintiff; and he submitted that matters of proximity had been no part of the Crown case. He further submitted that the mere fact that the contents of the DVD were as they were did not logically tend against the plaintiff’s explanation.
I do not accept these submissions.
In discussions between bench and bar after the conclusion of the evidence his Honour observed that the matter to be determined was “a question of fact as to whether one could draw the inference that he had sufficient knowledge of the material – the existence of material on that media”;[13] and counsel for the plaintiff had replied:
Yes. In my submission, your Honour, the prosecution case is put circumstantially, that is there is no direct evidence of knowledge of possession but you are invited to infer it through the circumstances of its finding and other items closely associated with these files on the optical disk …[14] (emphasis added).
I regard defending counsel’s use in this context of the expression “closely associated” as tantamount to a concession that it was part of the Crown case that the offending images were to be found in proximity to the material on the disk that unarguably related to the plaintiff. In any event, the informant’s evidence clearly did raise such a case.[15]
[13]County Court transcript, p 50.
[14]Ibid.
[15]Unfortunately the transcript from the first day of the County Court proceeding was not available, which restricted this Court’s ability to determine what was advanced by the prosecutor on that day.
The informant gave uncontradicted evidence that the first thing seen on accessing the DVD via a computer was that it was entitled “My Disk”.[16] The offending images were contained in a sub-folder (entitled “Lolita”) within the DVD, albeit some eleven sub-folders down. The informant did not agree with the suggestion by cross-examining counsel that “My Disk” was a standard or default title assigned to DVDs by any computer with a Windows Operating System. He testified to the contrary. The Judge was entitled to accept this evidence, especially in the absence of any countervailing evidence. Further, it is common ground that there were no more than four or five folders at the top level. Stored on one or more of those (few) folders were, as the plaintiff had acknowledged in his record of interview, “a large number of files pertaining to you and your business and your girlfriend and her files …”.[17] One of those folders was entitled “Nik’s Pics” and it contained sub-folders with adult pornography.[18] There was also adult pornography in some of the sub-folders nested under the “Nik’s Pics” folder, as the informant later testified.[19] In re-examination, in answer to a question from the Judge, the informant said that he had found nothing on the disk that would seem to link it to any person other than the accused and his girlfriend, Kate. This was the very last piece of evidence in the case. Two other features of the evidence should be noted in this regard. First, the evidence as to whether the disk in question was re-writable or not was equivocal. The plaintiff’s counsel has conceded before me that if the disk was not re-writable his client’s explanation was impossible. Second, the plaintiff had told the police that his practice when trying to repair a client’s computer was to back up the entire contents of the hard drive.[20] There was evidence from the informant that the hard drive of a computer usually contains a great deal of material and that at the relevant time (2005) the normal process for backing up a hard drive would have been to back it up to another internal hard drive rather than to a DVD of limited capacity such as the 4.7 gigabyte disk in question here.[21] It is true that, immediately after giving that evidence, the informant acknowledged (as indicated above) that without being more technologically savvy and conducting further electronic investigations he could not “100 percent” exclude the possibility that there was material on this disk which represented back up from a client hard drive. However, as the plaintiff’s counsel conceded,[22] this observation of the informant did not bind the County Court to take any particular view of the matter. And it seems to me that in considering what the Judge meant by the configuration of the DVD one should bear in mind not only what the disk contained and how the contents were arranged but also what the disk did not contain.
[16]County Court transcript, pp 2, 7.
[17]Record of Interview (exhibit D), question and answer, p 198.
[18]Ibid, questions and answers, p 181-183.
[19]County Court transcript, p 2.
[20]Record of Interview (exhibit D), question and answer, p 6.
[21]County Court transcript, p 46.
[22]County Court transcript, p 19.
Against that background I should set out the actual words used by the Judge in response to counsel’s request for clarification. His Honour said:
His HonourI am not able off the top of my head to give you a pin point accurate assessment but I will try my best to give you some indication.
Mr McDonald Thank you, your Honour.
His HonourIf one drills down just a short distance one finds a number of files which are very clearly linked to the accused, to his girlfriend and also to pornographic material mostly of an adult kind but also containing images which might well, although it is not part of the case for the appellant, also contain images that might fall within the category of child pornography.
There are two pathways I think to Lolita, not just one, albeit that the pathway involves a number of double clicks beyond the file which is NJJHJH, I think it is, and that leads essentially to the pathway to a number of other files which contain pornography, not just of an adult kind but at least borderline, at any rate, child pornography and it seems to me that the overwhelming inference when one looks at the way in which the DVD is configured is that this is plainly a personal DVD of the accused and/or his girlfriend and that it is plain that it has been deliberately configured by the person who has created the DVD and that being the accused or somebody at his direction.
That is the opinion that I formed drawing all reasonable inferences that I think can be drawn from what I find on the DVD. It is very easy to navigate and, indeed, curiosity would naturally take you through the various links to Lolita, because as soon as you get to My Videos the next thing you go to is NJJHJH and there is one other alternative which takes you virtually nowhere. So, you are almost certainly, if you have any curiosity at all, going to pursue the links which take you to, essentially, Lolita inter alia.
As I say, a number of the folders have material which in my opinion probably is, although I don’t need to find that it is, child pornography then it leaves me in no doubt at all that the only reasonable inference is that the appellant knew of the existence of the child pornography in the folder Lolita.
Mr McDonald: Thank you, your Honour.
His Honour Sorry, that is the best I can do without actually taking you through the pathways themselves.
In short, once he had viewed the contents of the DVD, his Honour was convinced that this was a purely personal DVD of the plaintiff. His Honour was not required to give extensive reasons. The County Court’s appellate jurisdiction is a summary jurisdiction. It is appropriate for me to take into account not only what his Honour said but also the state of the evidence that was before the County Court. Although the DVD was an exhibit before the County Court and, formally speaking, is an exhibit before this Court, counsel for the appellant did not hand up the DVD and did not invite me to view the contents of it myself and I have not done so. Counsel has not submitted that the appellant’s case would be advanced by my doing so. Indeed, his submissions indicated that he has still not viewed the DVD himself. It is to be remembered that the appellant has the burden of proving error or lack of procedural fairness on the part of the County Court.[23] In view of the various matters to which I have already referred and the further matters to which I am about to refer, I am not satisfied that it was not open to the Judge to take the view that what was and was not contained on the DVD, and how the contents were arranged, did logically tend against the plaintiff’s explanation. That is enough to dispose of the plaintiff’s suggestion that in referring to the configuration of the DVD the Judge must have meant something other than what was and was not contained on the DVD and the arrangement of its visible contents.
[23]See Kymar Nominees Pty Ltd v Sinclair [2006] VSC 488 at [9] and the cases there referred to; Kriesner v Magistrate sitting at Dandenong & ors [2004] VSC 389 at [21]; Aussie Vic Plant Hire Pty Ltd v County Court [2008] VSC 245 at [52].
In oral submissions before this Court the plaintiff’s counsel contended that, although the DVD was an exhibit, it had not been tendered and received for all purposes. In particular, he submitted that the DVD had only been tendered on the basis that it contained the images in question and the other material which unarguably related to the plaintiff. This submission was directly related to counsel’s contention that it had not been part of the Crown’s case that the configuration of the disk, as such, tended against the plaintiff’s suggested explanation for the presence of the offending images or otherwise tended to show that the plaintiff had knowledge of the offending images.
This contention of the plaintiff necessarily falls away in view of my conclusion that it was quite evident that it was part of the Crown’s case that the offending images were, to use defending counsel’s own words, “closely associated” with the material on the disk that unarguably related to the plaintiff.
It might be added that the DVD as a whole was an exhibit (exhibit A). Copies of the offending images comprised a separate exhibit (B). Copies of all of the material that was clearly identifiable with the plaintiff comprised yet another exhibit (C). The only additional exhibit (D) was the plaintiff’s record of interview with the police. All four exhibits were tendered and received on the first day of hearing, namely 29 September 2011. Unfortunately there is no transcript of the hearing on that day nor any contemporaneous notes of what took place. But in any event the plaintiff does not allege that any remarks were made during the Crown’s opening expressly limiting the purposes for which the DVD was proposed to be tendered. The informant gave part of his evidence in chief on the first day. Presumably the exhibits were tendered through the informant. The hearing was then interrupted and did not resume substantively until 13 October 2011. The transcript for 13 October 2011 is available. There is nothing in that transcript to indicate that the DVD had expressly been tendered on a limited basis. Counsel for the plaintiff, who also appeared for the plaintiff below, has acknowledged that he did not object to the tender of the DVD in any way. Indeed he accepts that there was no express reference at any stage to any limitation on the use that could be made of the exhibit. On neither of the two occasions when the Judge himself pointed out to counsel for the plaintiff that the DVD was an exhibit did either the Judge or counsel refer to any limitation of the purposes for which the DVD had been tendered. There is no distinct suggestion in any of the three affidavits which have been filed in this Court, or in the plaintiff’s written submissions, that there was even an implied limitation of the purposes for which the DVD was tendered. In all of the circumstances, the Crown contends that I should proceed on the basis that the DVD was tendered and received absolutely and for all relevant purposes. I agree.
Given that the DVD as a whole was tendered absolutely and for all relevant purposes, I also agree with the Crown that there is nothing in Butera v Director of Public Prosecutions,[24] a case relied upon by the plaintiff in this regard, which assists the plaintiff’s position.
[24](1987) 164 CLR 180.
As indicated above, the County Court Judge gave the plaintiff’s counsel every opportunity to examine the contents of the DVD for himself with a view to leading evidence about those contents or making submissions about them. Counsel expressly declined. The choice made by counsel might have been made tactically out of a justified concern about what counsel might see on the DVD. In any event, while parties to legal proceedings are entitled to a reasonable opportunity to put their cases, the law does not impose on courts “the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”.[25]
[25]Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J (referring in terms to the Commonwealth Administrative Appeals Tribunal, but the point applies a fortiori in respect of court proceedings).
The plaintiff does not contend that the Judge’s approach (however it may be characterised) to the matter of the configuration of the disk involved illogicality or irrationality or a want of essential evidence.[26] The plaintiff confines himself to a complaint of procedural unfairness which, in my view, he has failed to make out.[27]
[26]Compare Rees v County Court [2011] VSC 67 at [1]-[26] and cases there cited.
[27]The plaintiff has the burden of establishing that there was a breach of the rules of natural justice or procedural fairness, not merely that there might have been: Aussie Vic Plant Hire Pty Ltd v County Court [2008] VSC 245 (Williams J) esp at [52]. See also footnote 23, above.
For completeness I would add that the Judge’s overall conclusion against the plaintiff was based on more than the configuration of the DVD. The Crown had expressly submitted that the plaintiff demonstrated a consciousness of guilt during the police interview. The Judge accepted that submission. He said:[28]
I am satisfied that the explanation offered by the appellant from the answer to question 41 onwards essentially is false and that I am entitled to infer and do infer that he told a number of lies out of a consciousness of guilt of the crime charged.
[28]Transcript 55.
As his Honour remarked in discussions with counsel, the plaintiff changed his position several times during the interview in relation to significant matters. For example, he initially denied that the disk was his, and only acknowledged that it was his after being told that it contained material that obviously related to him. He also denied at first that he knew of a site on the internet containing child pornography which included the word “Lolita” in its title, but later said that he had seen it pop up on occasions. The plaintiff’s counsel does not suggest that it was not open to the Judge to find consciousness of guilt of the crime charged. Further, counsel accepts that it would have been open to the Judge to take the view on the evidence that it was inherently unlikely that the plaintiff would have used this particular disk (which contained so much of his personal material) to back up a client’s hard drive.
Conclusion
The plaintiff has not satisfied me that the Judge acted as an investigator or prosecutor. Nor am I satisfied that the Judge denied the plaintiff natural justice or procedural fairness in any way. The proceeding will be dismissed.
I will hear the parties on the question of costs.
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