Guerin v HB - [2017] NTSC 14

Guerin v HB [2017] NTSC 14
PARTIES:GUERIN, Malcolm

v
HB

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 24 of 2015 (21500360)
DELIVERED:  28 FEBRUARY 2017
HEARING DATES:  27 MAY 2016
JUDGMENT OF:  BLOKLAND J
APPEAL FROM:  THE LOCAL COURT
CATCHWORDS:

Criminal law – Local Court Appeal – Appeal against dismissal of charge – Error in law – Possession of child abuse material – Meaning of sexual, offensive or demeaning context – Broader context of image irrelevant – Context limited to the image – Ground of appeal upheld.
Criminal law – Local Court Appeal – Appeal against dismissal of charge – Possession of child abuse material – Foreseeability of possible consequence and proceeding with conduct – No substantial miscarriage of justice – Appeal dismissed.
Classification (Publications, Films and Computer Games) Act 1995 (Cth).
Classification (Publications, Films and Computer Games) Act (NT).
Criminal Code (Cth) s 473.
Criminal Code (NT) s 31(2), s 125A(1), s 125B(1)(a), s 125E.
Criminal Code Amendment (Child Abuse Material) Act 2004 (NT), Act No 55, 2004.
Guidelines for the Classification of Publications 2005 (Cth).
Local Court Act (NT) s 83, s 87.
Local Court (Criminal Procedure) Act (NT) s 163(3), s 177(f).
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41; Attorney-General (NT) v Wurrabadlumba (1990) 101 FLR 414; Crowe v Graham (1968) 121 CLR 373; DPP (NT) v WJI (2004) 219 CLR 43; Phillips v Police (1994) 75 A Crim R 480; Pregelj v Manison (1987) 31 A Crim R 383; R v Morcom (2015) 122 SASR 154; [2015] SASCFC 30; Worcester v Smith [1951] VLR 316, referred to.

REPRESENTATION:
Counsel:
Appellant:S.Robson
Respondent: R.Goldflam

Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  BLO 1701
Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Guerin v HB [2017] NTSC 14

No. 21500360
BETWEEN:

MALCOLM GUERIN

Appellant

AND:

HB

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 28 February 2017)
Introduction

The appellant was the informant in an unsuccessful prosecution against the respondent. The Local Court heard and dismissed a single count of possession of child abuse material contrary to s 125B(1)(a) of the Criminal Code. The appellant appeals from the Local Court’s adjudication dismissing the information pursuant to s 163(3) of the Local Court (Criminal Procedure) Act. An appeal of this kind may be on a ground that involves an error or mistake on a question of law alone, or a question of both fact and law.[1]
The single ground of appeal is:
“The Local Court erred in law by regarding the definition of “child abuse material” pursuant to s 125A(1) of the Criminal Code, namely material that ‘depicts… in a manner that is likely to cause offence to a reasonable adult…a child (b) in a sexual,…

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 Guerin v HB

Details

AGLC: Guerin v HB [2017] NTSC 14
Case: [2017] NTSC 14
Decision Date: 28 FEBRUARY 2017

CaseChat Overview and Summary

In the matter of Guerin v HB, the appellant sought to appeal against the dismissal of a charge for possession of child abuse material. The appeal was brought before the Local Court and focused on the interpretation of the term "child abuse material" as defined in the Criminal Code. The appeal centred on whether the context in which the images were originally created and possessed should be considered when determining if the material is likely to cause offence to a reasonable adult. The respondent argued that the Local Court had erred by considering the broader context of the images beyond the depiction itself.

The primary legal issue the court had to address was whether the term "child abuse material" should be interpreted to include images that are likely to cause offence to a reasonable adult within the context in which they were originally created and possessed. The court also had to consider whether there was substantial evidence to prove the appellant foresaw the possibility of causing offence and proceeded with the possession of the images. The appeal hinged on the interpretation of the statutory definition and whether the court had correctly applied the legal principles in dismissing the charge.

The court found that the Local Court had indeed erred by considering the broader context of the images when determining if they constituted child abuse material. The court emphasised that the context to be considered was limited to the image itself. However, the court also noted that the respondent's intention or foresight of causing offence could not be proven, and it was unlikely that an ordinary person similarly circumstanced would have foreseen such offence. Given the considerations under the Criminal Code, the court held that no substantial miscarriage of justice had occurred and dismissed the appeal.

The court confirmed the Local Court's decision that the respondent was not guilty of the charge and upheld the dismissal of the charge. The court’s interpretation of the statutory definition of child abuse material and its application in the context of the case provided clarity on the scope of the legal provisions and the circumstances under which such material is considered offensive.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The single ground of appeal is:“The Local Court erred in law by regarding the definition of “child abuse material” pursuant to s 125A(1) of the Criminal Code, namely material that ‘depicts… in a manner that is likely to cause offence to a reasonable adult…a child (b) in a sexual, offensive or demeaning context’ to include the context in which the alleged child abuse material was originally created and possessed”. Evidence before the Local Court The material comprising the single count of possession of child abuse material contrary to s 125B(1)(a) of the Criminal Code was a series of 50 photographs depicting a young girl, the respondent’s daughter, in various poses and stages of undress. The material came to police attention through a series of events which were summarised by the Local Court Judge. There is no dispute of significance in respect of the background and circumstances relied on by his Honour describing the history of how the subject material came to light.[2] In June 2014, the respondent reported an unlawful entry at his home and the theft of some property to police. During the course of investigating the unlawful entry and theft, police officers observed photographs of a child apparently aged between five years and 12 years. A number of the photographs were on walls in the house. One photograph that hung in the hallway particularly attracted the attention of the investigating officers who thought it was provocative and that it seemed to be child abuse material. The photographs were images of the respondent’s daughter when she was a child. At the time of giving evidence in the respondent’s case below, his daughter (MB) was 35 years old.[3] MB identified her age in a sample of the photos as “perhaps” seven years old.[4] An officer who attended the respondent’s home made a complaint to the officer in charge of the Child Abuse Task Force. The officer in charge then attended the respondent’s home, ostensibly to assist in the investigation of the unlawful entry, but the real purpose was to look at the photographs displayed in the home.[5] As a result of those observations, a search warrant was obtained and executed. Thousands of photographs were in the house but ultimately 31 exhibits were seized, some with multiple photographs. The photographs were located in a variety of areas in the home, including the respondent’s office, within wardrobes and in the garage. A number were hung in frames on walls. Ultimately from the items seized, 20 exhibits had no material of any relevance. Police examined hundreds of photographs. Fifty became the subject of the proceedings in the Local Court and ultimately this Appeal. It is agreed between the parties the relevant photographs included the following:[6]·An enlarged and mounted photo of the child with buttocks exposed wearing a swimsuit fashioned into a “G-string” (P3), (P10);·Photos of the child reclining on a motorcycle, shirt parted to expose her chest/breasts (P5), (P7), (P11);·Photos showing the child naked, some with her mother also naked, apparently at Uluru. In some of the photos the child is posed as if to be sucking the mother’s breast (P8), or touching the mother’s breast (P8);·Photos of the child set in the outdoors, the child naked, save for wearing red socks, and some with the mother also naked, in various front, rear and side poses, including bending over exposing her buttocks (P12);·A photograph of the child, apparently very young, bending over with her pants down exposing her buttocks or genitalia (P9);·Photos of the child naked, playing violin and piano (P9 and P13).

Decision

Reasons for decision

Although the respondent intended, at some stage in the past to possess and continue to possess the photos, in the circumstances it could not be proven he intended or foresaw the images would cause offence to a reasonable person. If at some stage he did foresee this consequence as a possibility, it could not be proven that an ordinary person similarly circumstanced would not have possessed the same photographs in the same circumstances. Conclusion and Orders The single ground of appeal is upheld. It was an error to have regard to the broader family context and the circumstances of the original creation and possession of the images, however given the considerations relevant to s 31 of the Criminal Code, the appeal is dismissed pursuant to s 177(f) of the Local Court (Criminal Procedure) Act as no substantial miscarriage of justice has actually occurred. The Local Court finding that the respondent is not guilty and the dismissal of the charge is confirmed.

Ratio Decidendi

Legal Principle Established

A reasonable person would regard Exhibit P3 to be in poor taste, perhaps a misguided attempt at a depiction of cuteness, but not clearly of a child in an offensive, sexual or demeaning context. The same may be said for Exhibits P4, P6, P7 and the photos comprising P9, P10 and P13. Exhibits P5 and P11 depict the child in a clearly sexual context. Those images are likely to cause offence to a reasonable person. The images fall well below the standards of decency and propriety generally accepted. In my view the photos in Exhibit P8, despite the young age of the child depicted, amount to images of the child in a variety of sexual contexts, principally sexual posing. The images fall below the accepted standards of decency and propriety and are likely to cause offence to a reasonable person. Similarly, I regard the series of photos comprising Exhibit P12 to depict the child in a sexual context. They too are likely to cause offence to a reasonable person. Section 31 Criminal Code considerations If I am in error with respect to finding Exhibits P5, P8, P11 and P12 constitute child abuse material, or if I am in error in finding the remainder of the exhibits do not constitute child abuse material, in either case the broader contextual issues that have been excluded from consideration with respect to the definition of child abuse material are relevant to determining whether the respondent intended or foresaw that the items he possessed were likely to cause offence to a reasonable person. It seems unlikely that the respondent intended to possess child abuse material or that he did foresee such a consequence as a possibility. However even if he did foresee such offence there is a wealth of material to satisfy s 31(2) of the Criminal Code. Section 31(2) would excuse him from criminal responsibility if, in all of the circumstances, including the chance of causing offence in the manner anticipated, an ordinary person similarly circumstanced and having such foresight would have proceeded with possession of the photos. It is important to recognise his Honour believed the respondent and accepted his evidence with respect to the background and the context in which the images were made and retained. There is no reason to disturb those findings. The ordinary person similarly circumstanced in this case is a long term male resident of Alice Springs in his seventies who had a career in photography. While it is not possible to have regard to the intertemporal aspects of the case in the determination of what images may or may not meet the definition of child abuse material, that is a factor that has some bearing on foresight and whether an ordinary person similarly circumstanced may have the same. The possession of the photos had taken place for a number of decades. A number of exhibits were displayed in the house without adverse comment from anyone. He had invited police into the house for the initial investigation into the unlawful entry in the knowledge that some of the impugned images were openly displayed. The respondent’s evidence indicates he would not have allowed other persons to see some of the images but that appears to be motivated by an intention to guard the privacy of his daughter rather than foresight of causing offence because of what is depicted in the images. The photos the subject of the charge are part of a much greater collection of family photos, probably thousands. He had forgotten he had many of them.