FINNIGAN v R - [2014] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
FINNIGAN v R
[2014] SADC 34
Ruling of His Honour Judge Millsteed
5 March 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant charged on information with aggravated possessing child pornography (count 1) and taking a step to access child pornography (count 2) (s 63A(1)(b) of the Criminal Law Consolidation Act 1935 (SA)) - application pursuant to Rule 14 of the District Court Criminal Rules 2013 for an order permanently staying each count as an abuse of process of the Court upon the grounds that it is foredoomed to fail - (as to count 1) whether there is evidence to prove the aggravating element as prescribed by s 5AA(1)(i) namely that the victim of the offence was, at the time of the offence, under the age of 14 years - (as to count 2) whether there is evidence which would enable the prosecution to prove that the applicant took a step that would have led to child pornography - application for a stay of proceedings on count 1 dismissed - application for a stay of proceedings on count 2 granted.
Criminal Law Consolidation Act 1935 (SA) s 63A(1)(b), referred to.
F, BV v Magistrates Court of South Australia (2013) 115 SASR 232, discussed.
Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; DPP v Shirvanian (1988) 55 NSWLR 129; Williams v Spautz (1992) 174 CLR 509; Ridgeway v The Queen (1995) 184 CLR 19; McHenry v Lewis (1883) LR 22 CH D 397; Williams v Hunt [1905] 1 KB 512; R v Petroulias (No 1) (2006) 177 A Crim R 153; Police v Kennedy (1998) 71 SASR 175; R v Clarke (2008) 100 SASR 363; Shah v New Zealand Police [2006] NZLR 425 (HC); Wallworth v Balmer [1966] 1 WLR 16; Sweeney v Denness (1954) 56 WALR 52, considered.

FINNIGAN v R
[2014] SADC 34
Introduction

The applicant is charged on an information, filed ex officio by the Director of Public Prosecutions (DPP), with aggravated possessing child pornography (count 1) and taking a step to access child pornography (count 2) contrary to s63A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The applicant has not been arraigned on the information and applies, pursuant to Rule 14 of the District Court Criminal Rules 2013, for an order permanently staying each count as an abuse of process of the Court upon the grounds that it is foredoomed to fail.
The particulars of the grounds in relation to count 1 are as follows:
· in order to make out an aggravated offence against s63A(1)(b) within the meaning of s5AA(1)(e) (i) of the CLCA, it is necessary for the prosecution to prove that the victim of the offence was, at the time of the offence, under the age of 14 years; and
· there is no evidence which would enable the prosecution to prove the existence of a victim who was, at the time of the offence, under the age of 14 years.
The particulars of the grounds in relation to count 2 are as follows:
· in order to make out an offence against s63A(1)(b) it is necessary for the prosecution to prove that the ‘step’ alleged to have been taken would have led to child pornography; and
· there is no evidence which would enable the prosecution to prove that the step relied upon would have led to child pornography.
Legislative provisions
Before I canvass the factual background and the detail of the applicant’s argument, it is appropriate to set out the key features of the legislation as it applied at the time of the relevant events, and the principles governing an application for a stay of proceedings on grounds of an abuse of process.
Section 63A is contained in Div 11A of the CLCA which relevantly provides:
62—Interpretation
In this Division—
child means a person under, or apparently under, the age of 16 years;
child pornography means material—
(a)that—
(i) describes or depicts a child engaging in sexual activity; or
(ii) consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and
(b) that is intended or apparently intended—
(i) to excite or gratify sexual interest; or
(ii) to excite or gratify a sadistic or other perverted interest in violence or cruelty;
...
material includes—
(a) any written or printed material; or
(b) any picture, painting or drawing; or
(c) any carving, sculpture, statue or figure; or
(d) any photographic, electronic or other information or data from which an image or representation may be produced or reproduced; or
(e) any film, tape, disc, or other object or system containing any such information or data;
...
63A—Possession of child pornography
(1) A person who—
(a) is in possession of child pornography knowing of its pornographic nature; or
(b) intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
Maximum penalty:
(a) for a first offence—
(i) if it is a basic offence—imprisonment for 5 years;
(ii) if it is an aggravated offence—imprisonment for 7 years;
(b) for a subsequent offence—
(i) if it is a basic offence—imprisonment for 7 years;
(ii) if it is an aggravated offence—imprisonment for 10 years.
...
Section 63A creates three basic offences: possessing child pornography (s63A(1)(a)), obtaining access to child pornography (s63A(1)(b)) and taking a step to obtain access child pornography (s63A(1)(b)). The section imposes higher maximum penalties for aggravated forms of such offences. The terms ‘basic offence’ and ‘aggravated offence’ are defined in the CLCA as follows:
5-Interpretation
(1)In this Act-
aggravated offence - where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);
basic offence - where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA);
...
Section 5AA provides a list of circumstances which may aggravate basic offences under the CLCA. The section relevantly provides:
5AA-Aggravated offences
(1)an aggravated offence is an offence committed in the following circumstances:
...
(e) the offender committed the offence knowing that the victim of the offence was, at the time of the offence—
(i) in the case of an offence against Part 3 Division 11A—under the age of 14 years;
(ii) in any other case—under the age of 12 years;
...
(2) A person is taken to know a particular fact if the person, knowing of the possibility that it is true, is reckless as to whether it is true or not.
Abuse of process
It is well settled that a criminal court has an inherent power to grant a permanent stay of proceedings to prevent an abuse of its process. The power is discretionary and involves a consideration of competing considerations.[1] As Mason CJ, Deane and Dawson JJ observed in Walton v Gardiner:[2]
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
[1] Jago v District Court (NSW) (1989) 168 CLR 23 per Mason CJ at 30.
[2] (1993) 177 CLR 378 at 395-396.
Though discretionary, the power to permanently stay proceedings should be exercised only in exceptional circumstances because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes.[3]
[3] DPP v Shirvanian (1988) 44 NSWLR 129 per Mason J at 134; see also Jago v District Court (NSW) (1989) 168 CLR 23 per Mason CJ at 30; Williams v Spautz (1992) 174 CLR 509 per Mason CJ, Dawson, Toohey and McHugh JJ at 529.
The circumstances in which an abuse of process may arise are extremely varied and include proceedings which are ‘foredoomed to fail’. In Walton Mason CJ, Deane and Dawson JJ said:[4]
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.
[4] (1993) 177 CLR 378 at 493; see also Ridgewayv The Queen (1995) 184 CLR 19 at 41.
Brennan J said:[5]
If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law. And equally, the institution of proceedings which will inevitably and manifestly fail or which unnecessarily duplicate proceedings already pending[6] or determined are incapable of serving a legitimate purpose.
(citations omitted)
[5] (1993) 177 CLR 378 at 410-411.
[6] McHenry v Lewis (1883) LR 22 Ch D 397; Williams v Hunt [1905] 1 KB 512.
Where an application for a stay of proceedings is founded on the ‘foredoomed to fail’ ground the onus is on the defendant to demonstrate that the charge will suffer this fate. The test is more stringent than the test for no case to answer in that it must be ‘clear beyond argument’ that the prosecution is unable to make out a case to answer having regard to the evidence available to it. In other words, it must be clear beyond argument that the evidence is incapable of supporting at least one essential element of the charged offence.[7]
[7] See R v Petroulias (No 1) (2006) 177 A Crim R 153 at [71]-[83] and authorities discussed therein.
Background
On Tuesday 19 April 2011 police attended and searched the applicant’s home at Sefton Park pursuant to a general search warrant. The police seized an Apple Macintosh Pro laptop computer (‘the Apple computer’) and a Sony laptop computer (‘the Sony computer’). The applicant was arrested on the following day.
The laptop computers were examined by members of the South Australian Police Sexual Crime Investigation Branch (SCIB) and the Electronic Crime Section (ECS). Based on the results of police analyses of the internet browsing histories stored in the computers’ hard drives the applicant was charged on information in the Magistrates Court with basic and aggravated offences of obtaining access to child pornography and taking a step to access child pornography.
On 24 September 2012 Mr Smart SM committed the applicant for trial in this Court on one count of aggravated accessing child pornography and five counts of aggravated taking a step to access child pornography. In respect of each count, the aggravating circumstance alleged was that prescribed by s5AA(1)(e)(i), namely, that ‘the [defendant] committed the offence knowing that the victim of the offence was, at the time of the offence, ... under the age of 14 years’.
The applicant applied to the Full Court of the Supreme Court of South Australia for judicial review of the order of committal contending that it was founded on an erroneous construction of ss5AA(1)(e)(i) and s63A(1)(b). The applicant argued that, contrary to the magistrate’s ruling, the aggravating element provided by s5AA(1)(e)(i) could not be applied to charges of taking a step to access child pornography because in such cases there was no ascertainable victim and therefore no evidence which could prove the victim’s age. The applicant further argued that s5AA(1)(e) required the prosecution to prove that the child depicted in the subject pornography was under 14 years at the time the pornography was accessed by the applicant and not when the image was created.
On 30 January 2013 the Full Court (Kourakis CJ and Gray J; Vanstone J dissenting)[8] held that the aggravating element provided by s5AA(1)(e)(i) applied to offences under s63A including the offence of taking a step to obtain access to child pornography. The majority concluded that the victim of an aggravated offence against s63A(1)(b) is the person depicted in the pornographic image which the defendant accessed or took a step towards accessing. Kourakis CJ and Gray J further held that s5AA(1)(e)(i) requires that the person depicted in the image to be under the age of 14 years at the time the image was created. The Full Court, however, set aside the order of committal and remitted the matter to the magistrate for further consideration because he had otherwise misconstrued elements of the aggravated offence.
[8] F, BV v Magistrates Court of South Australia (2013) 115 SASR 232.
On 8 May 2013 the matter came on for further argument in the Magistrates Court before Mr Smart SM.
On 13 May 2013 the magistrate found that the applicant had a case to answer in relation to the count of aggravated accessing child pornography but had no case to answer in respect of each of the five counts of aggravated taking a step to access child pornography. Accordingly, the applicant was committed to stand trial in this Court on a single count of aggravated accessing child pornography.
On 17 June 2013 the applicant appeared in this Court for arraignment on an ex officio information filed by the DPP charging him with one count of aggravated possessing child pornography and one count of taking a step to access child pornography. The applicant’s arraignment was adjourned and the matter set down for a directions hearing. The matter was eventually listed for hearing of the present application.
The counts: summary of prosecution case
The applicant is charged in count 1 with aggravated obtaining access to child pornography. The particulars of the offence set out in the information assert that the applicant ‘on or about the 24^th of December 2010 at Sefton Park intending to obtain access to child pornography, obtained access to child pornography’. The particulars further allege that the applicant committed the offence ‘knowing that the victim of the offence was, at the time of the offence, under 14 years of age’.
The evidence upon which count 1 is based may be summarised as follows.
Police analysis of the Sony computer established that at 4.13pm on 24 December 2010 a person used the Google ‘autocomplete feature’ on the computer to search for a certain term and by so doing acquired a list of Google search results (hyperlinks).[9] The analysis further revealed that over the next few minutes the person using the computer clicked on a number of the listed hyperlinks and obtained access to eleven websites. An ECS analyst succeeded in partially rebuilding six of the websites to show their pictorial and textual content at the time they were accessed on 24 December 2010. Four of the rebuilt websites contained pornographic images of children, some of whom are alleged to have been under 14 years of age when the images were created.[10] The prosecution case as to the age of the children is based entirely upon their appearance in the images.
[9] When using the Google Autocomplete feature, a list of search suggestions is automatically displayed as the user types in a search term. The search results are displayed after the user either selects one of the search suggestions or completes typing the search term.
[10] The search term entered by the user of the computer and the details of the websites accessed are suppressed from publication pursuant to an order made by Mr Smart SM on 13 May 2013 under s69A of the Evidence Act 1929.
For the purposes of this application, counsel for the applicant, Mr Abbott QC conceded that there is sufficient evidence to show that the applicant used the Sony computer in the manner summarised above. The prosecution contends that it can be inferred from the available evidence that on 24 December 2010 the applicant intentionally obtained access to child pornography displayed on four websites knowing that they contained images of children aged under 14 years and thus committed the offence of aggravated obtaining access to child pornography.
The applicant is charged in count 2 with taking a step to access child pornography. The particulars of the offence set out in the information are that the applicant ‘on or about the 12^th of April 2011 at Sefton Park intending to obtain access to child pornography, took a step towards obtaining access to child pornography’.
The evidence upon which count 2 is based may be summarised as follows.
Police analysis of the Apple computer established that on 12 April 2011 a person used the Apple computer and entered into the Google search engine a search term which resulted in the person accessing three websites.[11] The police were not able to rebuild the websites to show their content at the time they were accessed on 12 April 2011.
[11] The details of the search term and websites are suppressed from publication by virtue of the order referred to in fn 2.
On 2 May 2013, the police undertook searches on the internet using the same search term that had been used on 12 April 2011 and were able to access pornographic images of persons apparently under the age of 16 years. On 24 September 2013 police accessed websites with the same names as the three websites accessed on 12 April 2011. The websites accessed by police contained pornographic images of people. The images displayed on two of the websites included images of children apparently under the age of 16 years.
For the purposes of this application it is not in dispute that there is sufficient evidence to show that it was the applicant who used the Apple computer in the manner outlined. The prosecution contends that it can be inferred from the evidence summarised above that on 12 April 2011 the applicant entered the search term to obtain a list of hyperlinks. He then clicked on listed hyperlinks to obtain access to the same three websites accessed by police on 24 September 2013. The prosecution further contends that it can be inferred from these circumstances that the applicant intentionally took a step to obtain access to child pornography as charged in count 2.
The applicant’s argument: Count 1
Counsel for the defendant, Mr Abbott QC, submitted that the prosecution of count 1 is foredoomed to fail because the prosecution cannot prove that the subject pornographic images depicted children who were under the age of 14 at the time the images were created. Accordingly, the prosecution cannot prove the circumstance of aggravation which is an element of the charged offence.
Mr Abbott emphasised that to prove a basic offence against s63A(1)(b) the prosecution must establish that the applicant accessed or took a step towards accessing pornography depicting a child ‘under, or apparently under, the age of 16 years’. By contrast for an aggravated offence s5AA(1)(e)(i) requires that there be a ‘victim’ who was at the time of the offence ‘under the age of 14 years’. Mr Abbott argued that it followed from the distinction drawn between actual age and apparent age that for the purposes of proving an aggravated offence the prosecution cannot, as it seeks to do in the present case, rely upon the mere appearance of children in pornographic images to establish that they were actually under the age of 14 years at the time the image was created.

This argument must be rejected.
I accept that the distinction between actual age and apparent age is of fundamental importance. As Bleby J explained in Police v Kennedy:[12]
The use of the word ‘apparently’ in the definition of ‘child’ at once lowers the standard of necessary proof from something that is of the specified quality, beyond reasonable doubt, to something that appears to be of that quality, beyond reasonable doubt, notwithstanding that it may not in fact be of that quality. That means that the fact-finder, in this case the learned magistrate, must at least consider whether a person is apparently under the age of 16 if she is unable to be satisfied by acceptable evidence that the person is in fact under the age of 16.
[12] (1998) 71 SASR 175.
In R v Clarke Doyle CJ said:[13]
There can be no doubt about the seriousness of the evil at which the relevant legislative provisions are aimed. Likewise, there can be no doubt about Parliament’s intention to punish severely those who produce child pornography, those who disseminate it and those who have it in their possession. And the fact that the definition of ‘child’ includes a person ‘apparently under the age of 16 years’ makes plain, if that was necessary, that persons who disseminate or possess pornography may commit an offence if the person the subject of the pornography appears to be under the age of 16 years, even if there is no means of knowing or proving the actual age of the person. The reason for a provision of this kind is obvious. It will often be impossible to identify the person the subject of pornography, and so impossible to prove the person’s age.
[13] (2008) 100 SASR 363 at 370 [19].
Clearly s5AA(1)(e)(i) requires proof that the victim of the alleged offence must actually be under the age of 14 years, not just apparently under the age of 14 years. In other words it is not sufficient that the person depicted in the subject pornography appears or seems to be under 14 years of age. But it does not follow that the prosecution cannot prove that a child was under the specified age based on the child’s appearance in the image. Section 5AA(1)(e) requires proof that a child was under a certain age but does not regulate the mode of proof.
As a matter of general principle it is well established that admissible evidence of age can be adduced by the opinion evidence of persons other than the persons themselves as to age based on outward features. Similarly, a tribunal of fact is entitled to form an opinion as to the age of a person based on that person’s appearance.[14] As Wigmore states:[15]
Experience teaches us that corporeal appearances are approximately an index of the age of the bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be worth. In particular, the outward physical appearance of an alleged minor may be considered in judging of his age; for such an inference a contrary rule would be pedantically over cautious.
[14] Shah v New Zealand Police [2006] NZLR 425 (HC) Asher J at [14], [23]-[28].
[15] J.H.Wigmore, Wigmore on Evidence, Evidence in Trials at Common Law, (Little, Brown and Company) 1979 Vol 2 at 222.
The general principle that appearance may afford evidence of age has been applied in many cases involving statutory offences requiring proof that a person was under a certain age of which the following are examples.
In Wallworth v Balmer[16] the appellant was convicted by a magistrate of knowingly selling liquor to a person under the age of 18 years. During the trial a police officer gave evidence that he had seen two boys each carrying a bottle of beer and, having indicated the two boys were present in court, said that he had then spoken to the defendant who had agreed that she had sold the beer to the two boys. There was no evidence of ages of the boys other than their appearance in court. On appeal it was argued that the absence of oral evidence establishing that the boys were in fact under 18 years of age was fatal to the conviction. In dismissing the appeal Lord Parker CJ (with whom the other members of the High Court agreed) said:[17]
I am quite satisfied that there must be evidence of age, but I am also satisfied that that need not be oral evidence, but can be visual evidence from the youths themselves. It would be an extraordinary thing if a prosecution should have to be defeated because a little girl of five was said to have been the person to whom liquor was sold merely because her mother had not been called to prove her age. I do not propose to lay down any practice that should be adopted in prosecutions of this sort. It seems to me there may be some cases where the facts speak for themselves in the sense that the youth or child is obviously under 18. On the other hand, there may be cases where little weight can be attached to the evidence of what one sees, and when it would be for the prosecution to give affirmative evidence of age. In the present case, it seems to me that there was evidence of a kind upon which the magistrate could find, as he must have found before he convicted, that these two boys were under 18.
[16] [1966] 1 WLR 16.
[17] [1966] 1 WLR 16 at 18-19.
In Sweeney v Denness,[18] a case involving a statutory offence of supplying liquor to ‘a person under the age of 21 years’, Dwyer CJ held that opinion evidence as to the age of the person concerned given by witnesses based on the person’s appearance was admissible:[19]
It has been held that age can be proved not only by a person’s immediate acquaintance with the facts of birth, but also may be based on appearance and observation of others later in life, and surely that is quite a reasonable conclusion if exact age or day of birth is not required. A normal human being seeing a baby in arms a week or a month old would know that it was not three or four years old; a person seeing a child running about whose real age was three or four years would hardly mistake him or her for a child of twelve years or more, and so through life. I doubt whether one could make a mistake between a child of seven and one of fourteen, ages which have some importance in criminal law though one might hesitate whether a youth was under 19 or over 20; the question seems to depend much more on the weight to be attached to testimony based on observation rather than on its admissibility. Consequently I hold that an opinion based on observation is admissible but its weight and value must be estimated by the tribunal trying the question.[20]
[18] (1954) 56 WALR 52.
[19] (1954) 56 WALR 52 at 55-56.
[20] For other examples of the application of the general principle to under age statutory offences, see: R v Cox [1897] 1 QB 179; Ovens v Lanyerie (1987) 11 NSWLR 207.
Mr Abbott submitted that the authorities dealing with offences in different statutory contexts are of no assistance and that I am bound by the decision in F, BV. He contended that it is implicit in the judgment of Kourakis CJ, and explicit in the judgment of Gray J, that a jury cannot be invited to use the apparent age of a person depicted in a pornographic to infer that the person was a child under 14 years of age. In my opinion, the judgments do not support that proposition.
Kourakis CJ said:[21]
[21] (2013) 115 SASR 232 at [74]-[75].
The only rational and coherent way in which the child victim provisions can be incorporated into the penalty provision of s 63A of the CLCA as an element of an aggravated viewing offence is as follows:
63A – [incorporating s 5AA(1)(e)] Aggravated possession of child pornography
(1) A person who –
(a)is in possession of child pornography knowing of its pornographic nature; or
(b)intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography;
knowing that the person depicted in the child pornography was, ~~at the time of the offence~~ under the age of 14 years, is guilty of an aggravated offence.
With the reading out of the time adjectival clause, it can readily be implied that the subject matter of the offender’s knowledge is the age of the child, as he or she was, when the pornographic image was taken.
...
The relevant age for the purpose of the aggravated offence is the age of the child as he or she is depicted in the pornography and not the age the child has happened to attain by the time the pornography is viewed or disseminated.
Mr Abbott’s argument in relation to the import of the Chief Justice’s reasoning is neatly summarised in the following written submission in reply filed on behalf of the applicant:
1.4The end result of the Chief Justice’s reasoning is to remove the time adjectival clause so that proof that the person depicted in the material was actually under the age of 14 years at the time of creation of the material when the pornographic image was taken is what must be proved.
1.5If any use of apparent age had been regarded as appropriate by the Chief Justice, the time adjectival clause would not have been needed to be removed because the material the subject of the charge remains the same from the date of creation to the date of viewing. The logical conclusion therefore is that a jury could infer the actual age from the apparent age at the time of the offending just as easily as at the time of the creation of the material.
1.6In other words, the differentiation drawn by the Chief Justice between time of creation and time of offending is only significant if you cannot use apparent age. From a jury’s perspective, it is obvious that apparent age never changes. Apparent age is the same at the time of creation of the material as it is 10 years later when the material is viewed.
1.7The Chief Justice could have held that section 5AA applied and an aggravated offence occurred in circumstances (absent proof of actual age) where it was merely apparent to the jury that at the time of defendant viewing the material the alleged victim was under 14. This is the effect of the Prosecution’s submission today.
In my respectful opinion, Mr Abbott’s argument is misconceived. I accept that it is implicit in the Chief Justice’s remarks that it is a requirement that the person depicted in the subject image was actually and not apparently under the age of 14 years at the time the image was created. However, the Chief Justice did not assert or imply, in my view, that a person’s apparent age may not be used as a basis for finding that the person was in fact under the age of 14 at the relevant time. Mr Abbott’s argument fails to distinguish between what must ultimately be proved and the means by which it may be proved.
In relation to the judgment of Gray J, Mr Abbott relied upon the following passage:[22]
To my mind, in enacting the aggravated offence, Parliament intended that a person would face a longer maximum term of imprisonment in circumstances where greater criminal culpability was established. The mischief being addressed was the intentional act of viewing child pornography and the aggravated offence concerned the intentional act of viewing child pornography depicting persons under the age of 14 years. It is to be noted that Parliament specified that there be a victim of an aggravated offence and that the victim be under the age of 14 years. Parliament did not consider that an appearance of the victim being under 14 years would be sufficient. Parliament provided, however, that recklessness as to that particular fact would amount to a sufficient criminal intent.
...
In my view, Parliament intended that the aggravated offence required there to be a victim, that is, a person described or depicted in the relevant image. Further, Parliament intended that the victim depicted in the image be under the age of 14 years at the time of the creating of the image.
(my underlining)
[22] Ibid 270 [135], [138].
In my opinion, these passages should not be understood as supporting the view contended for by Mr Abbott. To my mind, Gray J was simply making the point that a person cannot be found guilty of an aggravated offence merely because the jury is satisfied that the person depicted in the pornographic image appears to be under 14. His Honour did not say that a person’s mere appearance in an image may not provide a sufficient basis for an inference that he or she was in fact under 14 years of age.
Acceptance of Mr Abbott’s argument would mean that the image of an infant could not be relied upon as proof that he or she was under 14 years of age at the time the image was created. The legislation should be interpreted in a manner that avoids such manifest absurdity. Furthermore, as Doyle CJ observed in Clarke it will often be impossible to identify the person the subject of pornography, and so impossible to prove the person’s age other than by reference to the person’s appearance. That is especially so in the case of children who are the subject of internet pornography. As the Full Court decided in F v BV, Parliament intended that the circumstance of aggravation supplied by s5AA(1)(e) apply to offences under s63A(1). However, an acceptance of Mr Abbott’s argument would effectively negate the application of s5AA(1)(e) to internet pornography which is one of the key social evils at which the legislation is directed. This could not have been Parliament’s intention.
There is a further reason for rejecting Mr Abbott’s argument. The application of s5AA (1)(e) is not confined to basic offences under s63A(1) or s63 (production or dissemination of child pornography) which draw a distinction between actual age and apparent age. The provision applies to offences which draw no such distinction; for example, assault (s20) causing harm (s23) kidnapping (s39), compelled sexual manipulation (s48A), abduction (s59) and procuring a child to commit an indecent act (s63B). In many cases including such offences (if not most) it may not be difficult to identify the child victim and prove the age of the child by means other than the child’s appearance. However, that may not always be the case. For example, a film may be found which depicts an accused person compelling a very young child to perform an act of sexual manipulation on him, or procuring the child to commit an indecent act, in circumstances where the victim cannot be traced. On Mr Abbott’s argument s5AA(1)(e) could not be applied to such cases unless the provision is given a different construction when applied to basic offences which draw no distinction between proof of apparent and actual age.
In my view s5AA(1)(e) should be given a uniform application to basic offences to achieve operational certainty. I appreciate that in F, BV the Chief Justice expressed a different view and modified the application of s5AA(1)(e) to basic offences under s63A by reading out what he referred to as the time adjectival clause, namely the words ‘at the time of the offence’. However, that view was not shared by Gray J. His Honour construed the words ‘at the time of the offence’ as referring to an accused person’s knowledge of the child’s age at the time he accessed or took a step to access child pornography.[23] I respectfully agree with the approach of Gray J.
[23] Ibid 270 [139]- [141].
For the reasons expressed above, I am of the view that the prosecution may rely upon the appearance of a person depicted in a pornographic image to prove that the person was under 14 years of age. However, as Asher J observed in Shah there is a need for considerable care to be exercised in this area.
In Shah the appellant was convicted of the offence of driving a motor vehicle without ensuring that a child of or over the age of 8 but under the age of 15 wore a seat belt. The charge was based on the observations of a police officer who had stopped the appellant’s motor vehicle and saw three children seated in the back not wearing seat belts. The police officer expressed the opinion that the three children were aged 6, 8 and 10 years of age. The grounds upon which he reached that conclusion were not explained.
Asher J held that the opinion evidence was admissible but upheld the appeal against conviction on the basis that there was a real possibility that the police officer’s opinions as to the ages of the children were wrong. His Honour said:[24]
However, there is still a question as to how far such admissible evidence can go in providing precise evidence as to age. Caution has to be exercised as to the weight to be given to impressions....
[V]isual evidence can be sufficient particularly where there is a broad issue such as whether the person is under the age of sixteen and the person is obviously a small child. However evidence based on visual features has its limitations when it comes to the precise age of children. It is well understood that some children develop more quickly than others, and others more slowly. It is often very difficult to estimate age, and it is accepted wisdom that guesses in this area are often wrong.
[24] [2006] NZLR 425 (HC) at [27].
Asher J upheld the appeal for the following reasons:[25]
The children were obviously young and there was a variation between their ages. However, there must be a serious possibility that the Police Officer could have been mistaken as to their exact ages. As I have said, it is notoriously difficult to estimate the ages of children, particularly when the persons doing so have no expertise with children of around that age, or regular contact with them. There is nothing to indicate the extent of the Constable’s experience with children in this case. There is nothing to say what characteristics or information he relied on in forming his view.
Treating his evidence as an estimate of the children’s ages as being 6, 8 and 10, there must be a question as to whether he was mistaken. Perhaps the children were aged 5, 6 and 7? It would have been easy to clarify this matter. The Constable could have been asked for the basis upon which he had made this estimate of age. He might well have been able to give some evidence that was sufficient to prove that they were within the relevant age band. For instance, he might have been able to say that he had children of similar ages, and given some indication of characteristics which he thought marked these children as being of those ages.
However, no such question was asked. There was no way in which the bald assertion of the children’s ages could be evaluated.
[25] Ibid [30]-[32].
For the reasons expressed by Asher J, once evidence of approximate age (based on appearance) is accepted, the possibility that a person’s appearance may not be a satisfactory indicator of age must be considered. In trial by jury it will be necessary for the trial judge to give the jury careful directions as to the need for caution because of the risk that a person may appear younger than they in fact are due to factors such as delayed onset of puberty, stature, the manner of dress and hairstyle and the quality of a photographic image in which the person is depicted. There will be cases where there is such an obvious gap between a person’s appearance and the relevant statutory age that a jury can safely reach the conclusion that the person is under the age of 14 (for the purposes of s5AA(1)(e)(i)) or under the age of 12 (for the purposes of s5AA(1)(e)(ii)). In other cases, no such conclusion may be safely reached. Questions of degree will arise.
It should be observed that Mr Abbott further submitted that all images on the internet are capable of being manipulated and, therefore, any use of the images to determine the actual age of the victim would be unreliable. In my view, this argument goes to the weight rather than the admissibility of the evidence. The jury will have to take into account the possibility of image manipulation in determining whether an image in fact depicts a child under 14 years of age.

The question to which I must now turn is whether on my construction of the law the prosecution of count 1 is foredoomed to fail. As earlier stated, the onus is on the applicant to show that it is ‘clear beyond argument’ that he has no case to answer - that is, that the evidence is incapable of supporting at least one essential element of the charged offence. For the purposes of the present application, the contentious element of the offence charged in count 1 is the element of aggravation. Accordingly, the test to be applied in the circumstances of this case may be expressed as follows: ‘Has the applicant established that it is clear beyond argument that a reasonable jury could not be satisfied beyond reasonable doubt (on the basis of mere appearance) that any one of the subject pornographic images depicted a child under 14 years of age?’
Copies of the pornographic images which the applicant is alleged to have accessed in count 1 were tendered on the hearing of this application. I have viewed the images. To my mind, the strength of the prosecution case in respect of the aggravated offence, as distinct from the basic offence, is questionable. But I am unable to say that it is clear beyond argument that no reasonable jury could find that at least some of the images depict a child who is in fact under the age of 14. Apparently, the committing magistrate reached the same view.
The application for a permanent stay of proceedings on count 1 is dismissed.
Count 2
In relation to count 2 there is no evidence of what search results Google displayed in response to the search term used on 12 April 2011 (day of the alleged offence) or which establishes the content of the websites accessed on that day. Mr Abbott submitted that absent such evidence the prosecution of count 2 is foredoomed to fail because the prosecution cannot establish that the applicant took a step that ‘would have led’ to child pornography.
As earlier stated, the prosecution case is based on the police (i) accessing on a police computer images of child pornography using the same search term that the applicant is said to have entered into his Apple computer on 12 April 2011 and (ii) accessing images of child pornography on two of three pornographic websites that the applicant is said to have accessed on the same day. The prosecution contends that it can be inferred from these results that by having entered the same search term and/or by having accessed the same websites as the police the applicant must have taken steps towards obtaining access to child pornography on the day of the alleged offence.
Mr Abbott argued that no such inference can be drawn. He pointed to evidence given at the applicant’s committal hearing on 8 May 2013 by the investigating officer, Detective Brevett Sergeant Trevor Rea. In the course of cross-examination, Det. Rea conceded that pornographic websites are constantly being added to, and deleted from, the internet. The same search term used months apart may lead to different websites. Websites accessed through the use of a certain search term may not exist when the same search term is used months earlier. Furthermore, the content of individual pornographic websites may change. New images may be posted on a website and others taken down.
Mr Abbott argued that in the circumstances it cannot be inferred that the applicant’s use of a search term would have yielded the same results the police obtained when they used the search term approximately 12 months later or that the websites the applicant is said to have accessed would have contained the same pornographic images as those displayed when the websites were accessed by police 18 months later (or that they were even the same websites).
I turn to consider Mr Abbott’s argument. At the outset, it is necessary to consider the elements of the charged offence. In F, BV the members of the Full Court considered the elements of the offence of taking a step towards obtaining child pornography but expressed different views as to their construction. Mr Abbott’s argument is premised on a construction of the elements of the offence as expressed by Kourakis CJ. The Chief Justice said:[26]
The conduct element, as I would define it, requires more than taking a step which is apt to yield access to child pornography. The basic offence is not once of engaging in conduct which is calculated to yield access to child pornography. To “take[s] a step towards obtaining access” implies the existence of child pornography which can be accessed by a series of steps of which the conduct engaged in by the offender is one. In more cases a step which is apt to access child pornography will be such a step. An obvious case in which the difference may be material is the case of a decoy, electronic or otherwise, established by police. An offender who mistakenly believes that he is taking a step to obtain child pornography but is actually being entrapped by the decoy may be guilty of an attempt, if the conduct is sufficiently proximate, but is not guilty of the completed offence. In this respect, s 63A of the CLCA can be contrasted with s 63B(3)(b) of the CLCA.
[26] (2013) 115 SASR 232 at [50].
He further said:[27]
It is relatively straightforward to identify the victim of a viewing offence when the pornography has been accessed or possessed. There is some difficulty in identifying the victim or victims of the basic offence of taking a step towards obtaining access to child pornography. The difficulty is resolved by having regard to the elements of the basic offence of taking a step. I held in [50] above that it is an element of the offence that there existed at the time the step was taken, child pornography to which access would have been obtained if the series of steps of which the charged conduct was one, were taken. It follows that the victim, or victims, of a taking a step offence are the children depicted in the pornography which would have been accessed if all of the steps in a series had been taken, in much the same way as the intended object of an attempt to commit a direct offence against the person is the victim of the attempt.
[27] Ibid [63].
Gray J held that the elements of a taking a step fence under s63A(1)(b) are an intention to obtain access to child pornography and taking a step towards obtaining access to child pornography.[28] However, he did not define the nature of the step that must be taken in order to satisfy the conduct element. Vanstone J expressly adopted the ‘apt to yield’ test which was rejected by the Chief Justice. Her Honour said:[29]
I consider that the elements of the offence of taking a step towards obtaining access to child pornography (s63A(1)(b)) as they stood at the time of the alleged offences are as follows:
1.that the accused took a step towards obtaining access to child pornography (being material describing or depicting a child under or apparently under the age of 16 years); (The words “towards obtaining access” mean that the step taken would have to be apt to lead to access to child pornography).
2.that he did so intending to obtain access to child pornography.
[28] Ibid [123], [132].
[29] Ibid [178].
Plainly, there is a difference between the two tests formulated by Kourakis CJ and Vanstone J. Taking a step that involves keying words into a search engine may be apt to lead to child pornography but may not necessarily lead to that result. For example, the words ‘child pornography’ may be ‘apt’ to lead to child pornographic material but conceivably result in access to a range of non-pornographic sites such as sites discussing the evil of such material.
I will adopt the construction expounded by the Chief Justice for the following reasons. In relation to similar but not identical legislation the Court of Criminal Appeal in the cases of Re Avory[30] and R v Randylle[31] considered the elements of the offence of taking part in the manufacture of a controlled drug contrary to s32(1)(b) of the Controlled Substances Act 1984 (SA) and drew a distinction between merely preparatory acts and acts which may properly be regarded as taking a step in a process of manufacture. In my respectful opinion the difficulty with the formulation proposed by Vanstone J is that a step taken that would be apt to lead to access to child pornography may embrace acts which are merely preparatory in nature (for example obtaining from someone the name of a pornographic website displaying child pornography).
[30] (2003) 87 SASR 392.
[31] (2006) 95 SASR 574.
Applying the test expressed by the Chief Justice, the question for my determination is whether the applicant has established that it is clear beyond argument that a jury could not be satisfied beyond reasonable doubt that by entering the same search term and/or accessing websites of the same name as the police that he took a step that would have led to child pornography. In my opinion this question must be answered ‘Yes’.
As earlier stated the evidence shows that the same search term used months apart may lead to different websites or that that the content of individual pornographic websites may change. In the circumstances it is not possible for the prosecution to say that the use of the same search term as that used by police would necessarily have led to child pornographic sites. Even if the applicant had accessed the same websites as the police it is reasonably possible that the content of the websites may have changed. Child pornographic material which was evident on the websites accessed by police may not have been on the websites when earlier accessed by the applicant. In other words, the images of child pornography accessed by police may not have been posted on the websites until after 12 April 2011. Images of child pornography that had been posted on the internet prior to 12 April 2011 may have been taken down by the time the websites are said to have been viewed by the applicant. On this point it should be observed that there is no evidence that the websites accessed by police were solely devoted to child pornography as distinct from websites which contain a range of pornographic material including images of child pornography.
This does not mean that the conduct alleged against the applicant is necessarily immune from prosecution. It seems to me to be an arguable proposition that if the applicant entered a search term or accessed websites with the intention of obtaining access to child pornography then his conduct may constitute an offence of attempting to obtain access to child pornography or attempting to take a step towards obtaining access to child pornography even if the material he ultimately accessed turned out to contain material that did not comprise child pornography.
A person is guilty of an attempt to commit an offence if he intends to commit the completed offence and pursuant to that intention engages in conduct that is sufficiently proximate to the commission of the offence and is not merely preparatory.[32] It matters not that the commission of the completed offence is physically or factually impossible.[33] For these reasons it is arguable that the prosecution’s inability to prove the specific nature of the images the applicant is said to have accessed would not matter if he were charged with an attempt to commit an offence under s63A(1)(b). However, I have not had the benefit of full submissions on this point and decline to express a concluded view unless and until the prosecution determines to lay a fresh information wherein it replaces count 2 with an attempt offence.
[32] Britten v Alpogut [1987] VR 929 at 938.
[33] R v Irwin (2006) 94 SASR 480 (CCA).
Orders
1.The application for a stay of proceedings on count 1 is dismissed.
2.The application for a stay of proceedings on count 2 (as to the offence of taking a step towards obtaining access to child pornography) is granted.