Haynes v Hughes
[2001] WASCA 397
•07/12/2001
HAYNES -v- HUGHES [2001] WASCA 397
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 397 | |
| THE FULL COURT (WA) | 07/12/2001 | ||
| Case No: | SJA:1232/2000 | 23 OCTOBER 2001 | |
| Coram: | MURRAY J ANDERSON J EINFELD AJ | 7/12/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal Dismissed | ||
| A | |||
| PDF Version |
| Parties: | ROGER HAYNES PETER LINDSAY FOSTER HUGHES |
Catchwords: | Criminal law Particular offence Using computer service to obtain objectionable material Words and phrases "Obtain possession of an article knowing it to be objectionable material" Email message saved to work directory Whether "obtained" when first received or when saved Whether offence committed by saving |
Legislation: | Censorship Act 1996 (WA), s 99, s 101(1)(b) |
Case References: | Nil Beckwith v The Queen (1976) 135 CLR 569 Daniels v Burfield (1994) 125 ALR 33 Davis v The Queen (1990) 5 WAR 269 Devries v Australian National Railways Commission (1993) 177 CLR 472 Ibbs v The Queen [2001] WASCA 129 R v Atholwood (2000) 110 A Crim R 417 Smith v The Queen (1992) 7 WAR 527 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HAYNES -v- HUGHES [2001] WASCA 397 CORAM : MURRAY J
- ANDERSON J
EINFELD AJ
- Appellant
AND
PETER LINDSAY FOSTER HUGHES
Respondent
Catchwords:
Criminal law - Particular offence - Using computer service to obtain objectionable material - Words and phrases - "Obtain possession of an article knowing it to be objectionable material" - Email message saved to work directory - Whether "obtained" when first received or when saved - Whether offence committed by saving
Legislation:
Censorship Act 1996 (WA), s 99, s 101(1)(b)
(Page 2)
Result:
Appeal Dismissed
Category: A
Representation:
Counsel:
Appellant : Ms C J Thatcher
Respondent : Mr A O Karstaedt
Solicitors:
Appellant : State Crown Solicitor
Respondent : Max Crispe
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Beckwith v The Queen (1976) 135 CLR 569
Daniels v Burfield (1994) 125 ALR 33
Davis v The Queen (1990) 5 WAR 269
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ibbs v The Queen [2001] WASCA 129
R v Atholwood (2000) 110 A Crim R 417
Smith v The Queen (1992) 7 WAR 527
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
(Page 3)
1 MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision to be published by Anderson J. I respectfully agree with them in their entirety and I agree that the appeal should be dismissed. In my respectful opinion, the point upon which Roberts-Smith J decided the appeal made to him by the complainant was correct.
2 The matter turns on the proper interpretation of the Censorship Act 1996 (WA). The offence charged in the complaint is that defined by s 101(1)(b) of using "a computer service to… obtain possession of an article knowing it to be objectionable material;". As Anderson J has noted, there was no doubt that the offending image was an "article" within the definition of that term in s 3 because it was data associated with a computer program. Nor was there any doubt that it was "objectionable material" as defined by s 99 in that the data produced an image which depicted in a manner likely to cause offence to a reasonable adult "the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct", without it being necessary to consider whether the image depicted in the necessary offensive manner an act "of torture or the infliction of extreme violence or extreme cruelty".
3 I respectfully agree with Anderson J, that possession of the offending article was obtained when it was received into the computer’s programs, not when it was dealt with internally within the computer system by transferring it to a personal directory or otherwise. To so hold is to give the term "obtain possession" its natural meaning.
4 That such as the correct view of the term "obtain possession" is, I think, confirmed by the view expressed by Roberts-Smith J, who pointed out that the acts proscribed by s 101(1) are all acts performed externally to the computer by the use of a computer service. It is prohibited to use a computer service to "transmit", to "obtain possession", to "demonstrate" an article, to "advertise that objectionable material is available for transmission" and to "request the transmission of objectionable material".
5 That such is the proper interpretation of the section is to my mind further confirmed by the fact that, by s 101(2):
"It is a defence to a charge of an offence against this section to prove that the article concerned is:
(a) an article of recognized literary, artistic or scientific merit; or
(Page 4)
- (b) a bona fide medical article,
and that transmitting, obtaining possession of, demonstrating, advertising, or requesting the transmission of, the article is justified as being for the public good."
6 Finally, those acts are prohibited when done by the use of a "computer service". That term is defined by s 99 to mean:
"… a service provided by or through the facilities of a computer communication system allowing –
(a) the input, output or examination of computer data or computer programmes;
(b) the transmission of computer data or computer programmes from one computer to another; or
(c) the transmission of computer data or computer programmes from a computer to a terminal device"
- It will be seen that the term "computer service" does not encompass the whole of the capacities or functions of a computer system but is confined to those by which communication is had in to or out of the computer of data or programs, and the transmission of data between computers or between a computer and an external terminal. That occurred when the e-mail was received.
7 That being the case, as Anderson J has pointed out, it was at that time that it had to be proved that the respondent knew the image to be objectionable material and that was a finding which the learned Magistrate declined to make beyond reasonable doubt, a conclusion which it is conceded was open to her Worship on the evidence before her.
8 ANDERSON J: This is an appeal from a judgment of Roberts-Smith J delivered on 9 May 2001 dismissing an appeal from a decision of a Magistrate in the Court of Petty Sessions at Perth to reject a single charge against the respondent brought pursuant to s 101(1)(b) of the Censorship Act 1996 (WA). The charge was that the respondent:
"On a date unknown between 28 June 1999 and 4 May 2000 at Canning Vale … used a computer service to obtain possession of an article knowing it to be objectionable material … "
(Page 5)
9 The appellant is a detective member of the police service who had laid the complaint prosecuted before the Magistrate. The complaint was dismissed on the ground that the charge contained in it was not proved beyond reasonable doubt.
10 The facts were as follows. The respondent was a prison officer employed by the Ministry of Justice and attached to the Canning Vale Prison. He was approved as a user of the Ministry's PC network computer system and he was allocated a reserved area of storage space on the system with his own log-on ID ("HughesPE") which provided him with exclusive access to his storage space. It was, in effect, his personal or home directory.
11 Acting on information received, the appellant, with the assistance of computer experts in the Ministry, examined the respondent's home directory in which a number of folders were found. In a folder entitled "Work", a number of different images and movie files were found, including one entitled "Hook.bmp". This was an erotic image of a male and female engaging in an extreme form of sexual activity in which a large cargo hook was used to suspend the female above the male. The investigation and discovery occurred on 4 May 2000 which explains the reference to that date in the charge.
12 Section 101 of the Censorship Act 1996 (WA) provides:
"Objectionable material: offences
101.(1) A person must not use a computer service to —
(a) transmit an article knowing it to be objectionable material;
(b) obtain possession of an article knowing it to be objectionable material;
(c) demonstrate an article knowing it to be objectionable material;
(d) advertise that objectionable material is available for transmission; or
(e) request the transmission of objectionable material knowing it to be objectionable material."
(Page 6)
13 The respondent was charged under s 101(1)(b). There was no dispute that the image in question is an "article" and "objectionable material" within the meaning of the subsection. However, it was not proved exactly how the article was obtained. In particular, it was not proved that, when the article was first obtained, the respondent already knew what it was.
14 The respondent might have found the article on the Internet, or in some other medium such as a floppy disk, and downloaded it, in which case he would have known what it was when it was obtained and a guilty verdict would have been inevitable. However, he denied that this is how it was obtained and there was insufficient evidence for the Magistrate to reject that denial. There was evidence that the image could have arrived in his inbox as an e-mail or as an attachment to an e-mail without the respondent doing anything to cause it to happen. This hypothesis being reasonably open on the evidence, the Magistrate had to approach the case on the basis that that was the way in which the image had been obtained, as was, in fact, the respondent's case. The respondent said the image was received as an e-mail, most likely as an attachment to an e-mail, that he had saved it to his work directory in bulk with other e-mails waiting to be viewed, and that he had no idea what it was until he opened it some time later, whereupon he immediately attempted to delete it and thought he had done so.
15 It is perhaps not wise to indulge in too many analogies, but the e-mail process can be likened to ordinary mail in the sense that people with mail boxes have little control over what may be placed into them. People with PCs and an e-mail address have little control over what e-mail messages may be sent to them. On this aspect of the case, the Magistrate's findings were expressed as follows:
"There is insufficient evidence to enable me to determine how the image came to be on the defendant's computer service or whether the article came as solicited or unsolicited material. And if it was unsolicited material he cannot be convicted of knowingly obtaining it.
The defendant's evidence says that he had moved a number of unopened messages in bulk to his work folder for perusal at a later time and once he had viewed the objectionable article he was shocked and immediately took an action which he believed had deleted it.
(Page 7)
- What he had actually achieved was to bar his access to it. He would not have known the nature of the article until he opened [it] in which event he would not necessarily have known it to be objectionable material at the time when he received it.
In my view, the prosecution case falls short of establishing all the elements of the charge beyond reasonable doubt and the complaint will therefore be dismissed."
16 Roberts-Smith J held, however, the respondent must have deliberately saved it to his work directory under its name "Hook.bmp" and must then have known what it was. With respect, this must be correct. There is no dispute that the image had been saved in the respondent's work directory. It is extremely unlikely that the respondent would have saved it in the name "Hook.bmp" unless he had viewed it. The cargo hook was a central feature of the image. The inscription written on the image was "Gives new meaning to the phrase 'Hook, line and sink-her!' - PW".
17 A number of grounds of appeal were argued before Roberts-Smith J. Some of these grounds were successful and some were not. There is no need to discuss them. The Judge held that, although some grounds of appeal had been made out, the decision to dismiss the complaint involved no miscarriage of justice. He came to this conclusion on a construction of s 101(1)(b) which he acknowledged had not been argued. He said:
"There is a further point which is raised by s 101(1) of the Censorship Act which appears not to have been the subject of consideration here by either the learned Magistrate or counsel. It lies in the opening words of the subsection, namely, that:
'A person must not use a computer service to - '
Thus what is proscribed by the subsection is use of a computer service for a particular purpose, that being here, to obtain possession of an article knowing it to be objectionable material.
It seems to me that what the subsection is directed to is the use of a computer system for one of the proscribed purposes. It would follow that the time at which the defendant must be shown to have had the required state of knowledge of the nature of the material and the intent to obtain possession of it, must be the time at which the computer service was used for that purpose. That construction gives the subsection a consistent
(Page 8)
- application across each of the circumstances described in paragraphs (a) to (e) inclusive. Each of those, other than (b) could only apply at the time the service was used; it is consistent to construe par (b) in the same way. As I have already observed, s 101(1)(b) does not make it an offence to knowingly be in possession of objectionable material - even such material which has arrived through the use of a computer service. The offence created by subs (1)(b) is that of 'knowingly' using a computer service to obtain (that is, for the purpose of obtaining) such material.
That was not the case being put by the prosecution here. Not only was there no proof that the respondent knowingly used a computer service to obtain the Hook.bmp image, but it seems to have been common ground that he did not. For that reason, the decision of the learned Magistrate to dismiss the complaint was correct, although not for the reasons she gave. That being so, and notwithstanding the appellant must succeed on grounds (a), (b), (c) and (d), for the reasons set out above, there was no substantial miscarriage of justice (see s 199(1)(b) of the Justices Act 1902 (WA)) and the appeal must be dismissed."
18 Ms Thatcher, who appeared before us as counsel for the prosecutor appellant, submitted that these passages indicate that the Judge had not understood the prosecution case. Ms Thatcher said that the prosecution case was unambiguously that the respondent knew what the image was when it was first obtained, but, anyway, by moving the image into his work directory, the respondent had used a computer service to obtain possession of it.
19 It may be going too far to say, as the Judge did, that it was "common ground" that the respondent did not knowingly use the computer service to obtain the Hook.bmp image. The prosecution led evidence that there was other salacious material in the respondent's work directory, and invited the Magistrate to infer from this that the respondent was a person who engaged in obtaining computer material of that kind and that it should be inferred that the article in question was received into the respondent's storage space on the computer system as part of that pattern of behaviour and with guilty knowledge on his part. In the end, if Roberts-Smith J did misapprehend the prosecution case in this respect, nothing can turn on it. The Magistrate declined to draw the inference which the prosecution invited her to draw and it is not now contended that this course was not open to her. It plainly was open to her.
(Page 9)
20 It was open on the evidence that the image was received as an e-mail without knowledge that it was coming or what it contained, and that the respondent did not know what it contained until he opened and viewed it. This being so, I agree, with respect, with the analysis of the issue by Roberts-Smith J.
21 It seems to me that an article is obtained by use of a computer service when that article is first received into the electronic systems comprising the computer service. Possession of the article is obtained at that point, or, at the very latest, at the point at which the computer service displays notification that the article has been received. From there it is available to have applied to it the various computer functions such as the view function, the save function, the send function and so on. Once it has arrived, it is there on the computer service for the user to do with it what the user wishes to do with it. The user has, thus, "obtained" the article. To have done so knowingly, it is necessary to prove that the user already knew it to be objectionable material at that point.
22 Method of proof is another matter. Whilst it might be difficult to prove intentional or guilty participation in the receipt onto a computer system of objectionable material, I am not persuaded that it is so difficult that parliament could not have intended the words of s 101(1)(b) to have their ordinary meaning. The ordinary meaning of the words is as Roberts-Smith J has explained it. A person cannot be found to have used a computer service to obtain an article knowing it to be objectionable material unless at the point of obtaining that article he/she already had that knowledge. It is not enough for the prosecution to prove that, having obtained it, there was a subsequent discovery of its character and a conscious decision to keep it. If a person obtains possession of something not knowing it to be objectionable material, he cannot be said to have obtained possession of it knowing it to be objectionable material simply because he later discovers what it is and decides to move it from one directory to another in his PC, even if his purpose in doing so is to hide it.
23 The problem for the prosecution is the need to prove guilty knowledge accompanying the act of obtaining. Maintenance of a computer terminal which is capable of receiving e-mail may in itself amount to using a computer service to receive e-mail in the same way that maintenance of a letterbox at the front gate is "use" (albeit passive use) of a letterbox to receive mail. But there will only be an offence if the recipient knew it to be of a particular character.
(Page 10)
24 In my opinion, the consequence of failing to prove (by inference or otherwise) that when this article arrived in his personal directory the respondent already knew it to be objectionable material, was that the offence was not proved. Evidence that he later viewed the material and deliberately saved it to his work directory does not establish the act of obtaining with knowledge. At the point of saving it, he had already obtained it.
25 The appeal should be dismissed with costs.
26 EINFELD AJ: I agree with the reasons for decision of Justice Anderson and with the order proposed.
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