Geoffrey William LEONARD v REGINA

[2007] NSWCCA 197

Appeal Outcome: Special leave application dismissed by the High Court - 24 April 2008

New South Wales

Court of Criminal Appeal

CITATION:	Geoffrey William LEONARD v REGINA [2007] NSWCCA 197
HEARING DATE(S):	29 June 2007
JUDGMENT DATE:	3 July 2007
JUDGMENT OF:	Spigelman CJ at 1; James J at 33; Hislop J at 34
DECISION:	Leave to appeal refused
CATCHWORDS:	APPEAL – Appeal from pre-trial interlocutory proceedings – discretionary judgment of the judge below not to stay proceedings – no error in the exercise of discretion - CONSTITUTIONAL LAW – Operation and effect of the Commonwealth Constitution – Restrictions on Commonwealth and State legislation – rights and freedoms implied in the Commonwealth Constitution – freedom of political communication – s474.22 of the Criminal Code does not place an impermissible burden on the freedom of communication. - CRIMINAL LAW – Offences against decency and morality – Publication of child abuse material on the Internet – interpretation of s474.22 of the Criminal Code.
LEGISLATION CITED:	Criminal Appeal Act 1912, s5F(3)(a) Criminal Code Act 1995 (Cth), Criminal Code s473.1, s473.4, s474.19, s474.22
CASES CITED:	Coleman v Power (2004) 220 CLR 7 Holland v The Queen (2005) 30 WAR 231 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
PARTIES:	Geoffrey William Leonard (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/796
COUNSEL:	A R Jungwirth (Appellant) P Roberts SC, L M McManus (Respondent)
SOLICITORS:	M Lagana, Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0746
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ
LOWER COURT DATE OF DECISION:	13 March 2007

- 8 -

2007/796

SPIGELMAN CJ
JAMES J
HISLOP J

Tuesday 3 July 2007

Geoffrey William LEONARD v REGINA

Judgment

1 SPIGELMAN CJ: The Applicant seeks leave under s5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal against the judgment of her Honour Judge Morgan in which her Honour refused a permanent stay of proceedings sought by the Applicant. In those proceedings the Commonwealth Director of Public Prosecutions sought to present an indictment for an offence under s474.22 of the Criminal Code (Cth). The charge is that:

“Between 19 September 2005 and 7 March 2006 at Sydney in the State of New South Wales, Geoffrey William Leonard, used a carriage service, namely the Internet, to make available child abuse material.”

2 The background facts can be briefly stated. The Applicant had a website on which he published material about himself and his involvement in what he called “man-boy love”. The website was used, inter alia, as a vehicle to promote the Applicant’s views that there should be changes to existing laws regarding sexual crimes against children.

3 The Crown alleges that on the website the Applicant published a 124 page article entitled “Punished for Love”. Within this article there was an edited police fact sheet and edited police statements of two males and of their father, concerning sexual acts committed on the two males (brothers then aged 13 years and 16 years) by the Applicant during 1989. It is the edited police fact sheet and edited police witness statements which are alleged to constitute child abuse material, the subject of the charge.

4 The Applicant advanced his case before Judge Morgan on three alternative bases, which are substantially repeated in this Court. Furthermore, the Applicant now raises a constitutional issue based on the implied immunity for political communication found in the Commonwealth Constitution.

The Legislation

5 Section 474.22 of the Criminal Code provides:

“(1) A person is guilty of an offence if:
(a) the person:
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or

(v) uses a carriage service to publish or otherwise distribute material; and
(b) the material is child abuse material.
Penalty: Imprisonment for 10 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);

(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.”

6 “Child abuse material” is defined in s473.1 of the Criminal Code as:

“child abuse material” means:
(a) material that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) material that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim or torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.”

7 Section 473.4 of the Criminal Code provides:

“The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material; and
(c) the general character of the material (including whether it is of a medical, legal or scientific character).”

8 It is also pertinent to refer to the parallel provisions for an offence of using a carriage service for child pornography material found in s474.19. Child pornography material” is also defined in s473.1. It is unnecessary to set it out in full. It is sufficient to note that it extends to:

· depiction or representation of a sexual pose or sexual activity;

· the depiction of sexual organs for a sexual purpose;

· the description of a person engaged in a sexual pose or sexual activity;

· material that describes a sexual organ of a person.

in each case where the person is, or is implied to be, under 18 years of age.

9 With respect to each of these categories, as in the case of child abuse material, the definition contains the qualification “and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive”.

Ground 1

10 The first ground of appeal is that her Honour erred in refusing to order a permanent stay by failing to properly consider that the evidence relied upon by the Crown would prejudice the Applicant by raising his bad character. In this regard the Applicant relies both on the matter said to constitute an offence, namely the edited police statements and the edited police sheet, as well the whole of the document in which they are, respectively, contained.

11 The statements are part of the publication prepared by the Applicant entitled “Punished for Love” which on p1 he has described as:

“A collection of autobiographically based essays on the law, prisons, society, ethics and sexuality. This is the tale of a judicial fraud whereby an attempt is made to justify the imposition of a heavy gaol sentence for a moral crime, when doubt is felt that the criminal law should be about morals.”

12 There is little doubt that much of the material contained in the Applicant’s own document, including his own admission as to his sexual activities with young boys and his criminal conviction, inter alia, would be regarded by a jury as adversely reflecting on his character.

13 The trial has not yet occurred. The evidence has not yet been tendered. No trial judge has yet considered whether some or all of the material upon which the Crown seeks to rely should be omitted in the exercise of the Court’s discretion. Nor has any trial judge considered whether or not any direction concerning such evidence should be made and, if so, the adequacy of any such direction with respect to ensuring that the Applicant receives a fair trial.

14 This ground for a stay is not only premature. How the trial will be conducted is yet to be determined. How the defence will be conducted has not even been raised in the course of these proceedings. It may very well be that counsel for the defence during the course of the trial may insist on the entirety of the document going into evidence.

15 The overall context of the whole of the documents may reinforce the proposition that the particular passages upon which the charges are based because of the character of the documents – namely a police witness statement and charge sheet – are such that the depiction or representation of the alleged “physical abuse” would not be regarded by a reasonable person as being “offensive”.

16 Judge Morgan stated expressly in rejecting this ground that:

“I do not accept that there is such prejudice to the accused that the trial judge would be unable to cure it by careful directions to the jury.”

17 No basis for interfering with her Honour’s exercise of discretion in this respect has been advanced.

Ground 2

18 The second ground is that her Honour erred in refusing to order a stay by failing to consider properly, or at all, that the evidence relied upon by the Crown does not amount to child abuse material. The ground is primarily based on the proposition that the relevant part of the definition of “child abuse material” in s473.1 of the Criminal Code, namely “physical abuse”, cannot as a matter of statutory interpretation apply to sexual abuse. Her Honour rejected this ground on the basis that it was a matter for the jury. She did not, however, address the statutory interpretation issue in terms.

19 In written submissions it was suggested that the provision should in some way be read down to extend only to a “trade or traffic in child abuse material”. This submission was without foundation and was appropriately withdrawn.

20 It was also suggested in the written submissions that material could not be regarded by reasonable persons as “offensive” within the definition of “child abuse material” in s473.1, having regard to the matters required to be considered in drawing this conclusion by s473.4. In this regard her Honour was completely correct in concluding that this was quintessentially a jury issue and could not be the basis for a permanent stay application.

21 The statutory interpretation submission was based on the parallel regimes for “child abuse material” and “child pornography material”.

22 The relevant charge in the present case is under s474.22(1)(a)(iv) of the Criminal Code, namely that the Applicant used a carriage service to make “child abuse material available”. This section has an exact parallel in s474.19(1)(a)(iv) which makes it an offence to use a carriage service to make child pornography material available.

23 There may be circumstances in which some of the provisions of the definition of child pornography material, to which I have referred above may be seen as constituting a form of “sexual abuse”. However, that is not the primary thrust of the respective component parts of the definition of “child pornography material”. As referred to above the respective paragraphs which concern the depiction, representation or description of such matters are concerned with engaging in a sexual pose or sexual activity or of a sexual organ, etc.

24 Nothing in the terminology suggests that one set of characteristics was intended to be exclusive of the other. The possibility of overlap in particular situations is not of itself sufficient to draw any inference to that effect. Indeed, there may well be cases in which it is entirely appropriate for the prosecution to charge one offence in the alternative to the other.

Ground 3

25 The Applicant alleged that her Honour erred in refusing to order a permanent stay because the proceedings amounted to an abuse of process on the basis that the prosecution was oppressive. A number of authorities were referred to in which reference was made to the court intervening, by means of a stay, when a prosecution creates abuse and injustice.

26 Her Honour rejected the suggestion that there was any such oppression here. Her Honour was correct to do so. Nothing in the nature of oppressive conduct has been suggested in any of the submissions.

27 I have found it difficult to understand some of the propositions advanced on behalf of the Applicant in this respect. One that comes through clearly is the proposition that the material on which reliance is to be placed, as the conduct constituting the offence, was itself the subject of substantive offences for which the Applicant was convicted and sentenced.

28 As Morgan DCJ correctly said, this was not relevant to an oppression submission. The offences to which the Applicant had pleaded guilty constituted a completely different offence to that brought under s474.22. The conduct is not the same.

Ground 4

29 The final ground advanced is the proposition that s474.22 and s473.4(a) of the Criminal Code are invalid because they are inconsistent with, indeed contrary to, the implied immunity for political communications established by Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Coleman v Power (2004) 220 CLR 7. Particular reference was made to the provisions of s473.4(a) referring to the standards of morality, decency and propriety generally accepted by reasonable adults, as one of the matters to be taken into account in determining whether or not a reasonable person would find the relevant depiction or representation to be offensive and, accordingly, satisfy an essential element of the definition of “child abuse material”.

30 It can be accepted that there are parts of the lengthy documents proposed to be tendered in the Crown case which answer the description of debate about political matters. Some part of the material is, accordingly, political communication within the scope of the constitutional immunity.

31 There may well be circumstances in which an attempt to impose “standards of morality, decency and propriety generally accepted by reasonable adults” in the Australian community, and restricting public debate within such confines, will constitute an impermissible burden on political communication. However, in the present statutory framework this is only one matter to which the tribunal of fact is to have regard when determining whether or not a particular depiction or description is, relevantly, of “physical abuse” that occurs in a manner that a reasonable person would regard as “offensive”. This context does not, in my opinion, indicate anything in the nature of an impermissible burden on political communication.

32 Furthermore, as in Holland v The Queen (2005) 30 WAR 231 esp at [100], the constitutional immunity is not infringed because “the direct purpose of the relevant statutory provisions and regulations in the present case is not to restrict or burden political communication as such in a way that would impermissibly restrict the freedom of communication implied from the relevant sections of the Constitution”. The child pornography provisions under consideration in Holland are not relevantly distinguishable.

Conclusion

33 Accordingly, each of the proposed grounds for appeal are without substance. Her Honour was correct in the exercise of her discretion. Leave under s5F is not readily granted with respect to matters of this character. There is no basis for doing so in the present case. Leave should be refused.

34 JAMES J: I agree with Spigelman CJ.

35 HISLOP J: I agree with the Chief Justice.

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