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Eagles v Densley

Eagles v Densley

Case [2012] VSC 355 23 August 2012

Appeal

Admissibility of Evidence

Procedural Fairness

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eagles v Densley

Details

AGLC: Eagles v Densley [2012] VSC 355
Case: [2012] VSC 355
Decision Date: 23 August 2012

CaseChat Overview and Summary

The case of Eagles v Densley involved a dispute between the plaintiff and the defendant over the prosecution of the plaintiff for possessing child pornography. The case was heard in the County Court of Victoria, with the appeal being heard by Judge Vickery. The plaintiff was prosecuted for possessing child pornography, with the images being contained on a DVD in his possession. The DVD was an exhibit in the proceedings. The plaintiff appealed the conviction on the grounds of procedural unfairness, arguing that the County Court Judge had viewed the DVD in private chambers after the hearing, and had relied on the way the DVD was "configured" to convict him, without displaying the contents in open court. The plaintiff argued that this was unfair as it denied him a fair opportunity to be heard, and amounted to the Judge acting as an investigator or prosecutor, or creating new evidence.

The legal issues in the case revolved around whether the County Court Judge had acted unfairly in viewing the DVD in private chambers and relying on the way it was "configured" to convict the plaintiff, without displaying the contents in open court. The plaintiff argued that this was unfair as it denied him a fair opportunity to be heard, and amounted to the Judge acting as an investigator or prosecutor, or creating new evidence. The court needed to determine whether the Judge's actions had breached the principles of procedural fairness.

The court found that there had been no unfairness in the proceedings. The court held that the County Court Judge had not acted as an investigator or prosecutor, and had not created new evidence. The court held that the Judge's reasons for conviction were based on the evidence that was presented in open court, and that the way the DVD was "configured" was simply a means of describing the evidence that was presented. The court held that the plaintiff had been given a fair opportunity to be heard, and that the proceedings had not breached the principles of procedural fairness. Accordingly, the appeal was dismissed.

No further orders were made by the court.

Orders