Foster v Filz

[2002] TASSC 23

[2002] TASSC 23

CITATION:              Foster v Filz [2002] TASSC 23

PARTIES:  FOSTER, Mark Leslie

v
FILZ, Roger Christopher, Sgt

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 18/2001
DELIVERED ON:  28 February 2002
DELIVERED AT:  Burnie
HEARING DATE:  28 February 2002
JUDGMENT OF:  Cox CJ

Edited edition of Reasons for Judgment given orally

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Averments - Uncertainty, duplicity and ambiguity - Appellant wrongly convicted of 75 counts of possessing bestiality products when offence consisted of a single act of possession of 75 such products - Convictions quashed - Complaint amended and single conviction recorded.

Classification (Publications, Films and Computer Games) Enforcement Act 1995.
Aust Dig Criminal Law [713]

REPRESENTATION:

Counsel:
           Appellant:  G A Richardson
           Respondent:  D G Coates
Solicitors:
           Appellant:  G A Richardson
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2002] TASSC 23
Number of paragraphs:  5

Serial No 23/2002
File No LCA 18/2001

MARK LESLIE FOSTER v SGT ROGER CHRISTOPHER FILZ

REASONS FOR JUDGMENT  COX CJ
(DELIVERED ORALLY)  28 February 2002

Background

1. The appellant was found to be in possession of computer discs.  On one of them there appeared an image which it was common ground was a "child abuse product" within the meaning of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ("the Act"), s71. On that disc and on the second there were other images, in all 75, each of which was properly found by the learned magistrate to constitute a "bestiality product" within the meaning of the same section. The Act, s74, reads:

   "74      A person must not have possession of –

   (a) a child abuse product; or

   (b) a bestiality product."

1. A single complaint by the respondent alleged in successively numbered paragraphs the commission of 75 offences by the appellant against s74(b) in respect of each such image which depicted bestiality and in a paragraph numbered 76 the commission of an offence against s74(a) in respect of the image which constituted the child abuse product. The learned magistrate, despite a submission from the appellant's counsel to the contrary, entered a conviction on each of the 76 offences charged and imposed a global penalty. The sole ground of appeal was:

"The learned magistrate erred in law and in fact in convicting the appellant of 75 counts of possessing a bestiality product when the evidence supported convictions on 2 counts only."

Ruling

1. The key to this matter is what is proscribed. Section 74 proscribes the possession of each of two products. It does not matter whether what is possessed is one proscribed product or 75 such products. It is the possession of one or more products which fit the description of the products mentioned in par(a) or alternatively par(b) of the section which constitutes the offence. So if a person has 75 such bestiality products in his possession and one child abuse product, there are two offences only ¾ firstly, possessing a bestiality product, to wit the 75 images meeting that description and secondly, possessing a child abuse product, to wit the image on the disc which meets that description. It is similar to the offence of receiving stolen property. If a person is found in unlawful possession of 75 articles of stolen property, he commits the one offence. Although the ground of appeal conceded that two counts of possessing a bestiality product had been made out by the evidence, in my view, only one such count has been made out.

1. Accordingly, the motion to review should be allowed and the convictions on the offences set out in pars1 - 75 set aside.  I allow the complaint to be amended by particularising in par1, which alleges possession of a bestiality product, words to the effect "2 discs containing 75 images of bestiality", and by deleting pars2 - 75, which particularise each of the 74 images after that set out in par1, and by renumbering, as par2, par76 which particularises the child abuse product.

1. The appellant is convicted of both offences and I re-impose the global penalty of a fine of $1,500 initially imposed by the learned magistrate.  There will be like orders as to costs and time to pay as he ordered.