Haynes v Hughes

[2001] WASCA 146

HAYNES -v- HUGHES [2001] WASCA 146

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 146
Case No:	SJA:1232/2000	Heard:	3 APRIL 2001
Coram:	ROBERTS-SMITH J	Delivered:	9/05/01
No of pages:	40	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	ROGER HAYNES PETER LINDSAY FOSTER HUGHES
Catchwords:	Appeal Justices Act 1902 (WA) Dismissal of charge Using computer service to obtain possession of objectionable material Evidence Whether  Magistrate made error of fact or law Principles Criminal law Using computer service to obtain possession of objectionable material Meaning of "obtain possession" Meaning of requirement that prosecution prove computer service used to obtain possession Evidence Expert evidence Failure to give reasons for rejecting expert evidence Whether error of law Whether Magistrate rejected expert evidence
Legislation:	Censorship Act 1996 (WA), s 101(1) Justices Act 1902 (WA), s 199
Case References:	Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 Atholwood v The Queen (2000) 110 A Crim R 417 Chambers v Jobling (1986) 7 NSWLR 1 Davis v The Queen (1990) 5 WAR 269 Flannery v Halifax Estate Agencies [2000] 1 All ER 373 Moylan & Ors v Nutrasweet Co & Ors [2000] NSWCA 337 (unreported) BC 200007222, 24 November 2000 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Voulis v Kozary (1975) 50 ALJR 59 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Daniels v Burfield (1994) 125 ALR 33 Devries v Australian National Railways Commission (1992-93) 177 CLR 472

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HAYNES -v- HUGHES [2001] WASCA 146 CORAM : ROBERTS-SMITH J HEARD : 3 APRIL 2001 DELIVERED : 9 MAY 2001 FILE NO/S : SJA 1232 of 2000 BETWEEN : ROGER HAYNES

Appellant

AND

PETER LINDSAY FOSTER HUGHES
Respondent

Catchwords:

Appeal - Justices Act 1902 (WA) - Dismissal of charge - Using computer service to obtain possession of objectionable material - Evidence - Whether Magistrate made error of fact or law - Principles

Criminal law - Using computer service to obtain possession of objectionable material - Meaning of "obtain possession" - Meaning of requirement that prosecution prove computer service used to obtain possession

Evidence - Expert evidence - Failure to give reasons for rejecting expert evidence - Whether error of law - Whether Magistrate rejected expert evidence

Legislation:

Censorship Act 1996 (WA), s 101(1)

Justices Act 1902 (WA), s 199

(Page 2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Ms J C Pritchard
Respondent : Mr A O Karstaedt

Solicitors:

Appellant : State Crown Solicitor
Respondent : Max Crispe

Case(s) referred to in judgment(s):

Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474
Atholwood v The Queen (2000) 110 A Crim R 417
Chambers v Jobling (1986) 7 NSWLR 1
Davis v The Queen (1990) 5 WAR 269
Flannery v Halifax Estate Agencies [2000] 1 All ER 373
Moylan & Ors v Nutrasweet Co & Ors [2000] NSWCA 337 (unreported) BC 200007222, 24 November 2000
Rosenberg v Percival [2001] HCA 18
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Voulis v Kozary (1975) 50 ALJR 59
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Case(s) also cited:

Daniels v Burfield (1994) 125 ALR 33
Devries v Australian National Railways Commission (1992-93) 177 CLR 472

(Page 3)

1 ROBERTS-SMITH J: On 23 November 2000 a Magistrate in the Court of Petty Sessions dismissed a charge against the respondent that on 4 May 2000 at Canning Vale he used a computer service to obtain possession of an article, knowing it to be objectionable material, contrary to s 101(1)(b) of the Censorship Act 1996 (WA). That was apparently the first charge to be brought under that section. The appellant, who was the complainant in the court below, appeals by leave granted on 19 December 2000.

2 The respondent had pleaded not guilty before the Magistrate. The trial was heard in the Perth Court of Petty Sessions on 23 October 2000. At the end of the trial the learned Magistrate reserved her decision. She handed it down on 23 November 2000. She found the prosecution had not proved its case beyond reasonable doubt and dismissed the charge. She ordered the appellant to pay the respondent's costs fixed at $2250.

3 The appeal was heard on 3 March 2001.

4 Section 101 of the Censorship Act 1996 (WA) provides:

"101. Objectionable material: offences

(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.

Penalty:

(a) in the case of an individual, $15,000 or imprisonment for 18 months;

(b) in any other case, $75,000.

(Page 4)

(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

(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."

5 Section 101 appears in Division 6 of Part 7 of the Act. Division 6 is headed "Computer services". "Objectionable material" is defined in s 100 as meaning:

"(a) a film classified RC, a computer game classified RC, or a refused publication;

(b) child pornography;

(c) an article that promotes crime or violence, or incites or instructs in matters of crime or violence; or

(d) an article that describes or depicts, in a manner that is likely to cause offence to a reasonable adult -


(i) the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct;

(ii) sexual conduct with or upon the body of a dead person;

(iii) the use of urine or excrement in association with degrading or dehumanizing conduct or sexual conduct;

(iv) bestiality;

(v) acts of torture or the infliction of extreme violence or extreme cruelty."

6 Section 104 is entitled "Defences for possession in certain circumstances":

(Page 5)

"(1) In proceedings for an offence against Part 7 relating to possession of an article it is a defence for the person charged to prove that the person had possession of the article to which the charge relates, in good faith -

(a) for the purpose or with the intention of delivering it into the possession of a person lawfully entitled to have possession of it;

(b) for the purposes of any proceedings under this Act or any other enactment in relation to the article;

(c) for the purpose of giving legal advice in relation to the article;

(d) for the purpose of giving legal advice, or making representations, in relation to any proceedings; or

(e) in accordance with, or for the purpose of complying with, any decision or order made in relation to the article by the censor, the appeal censor, the Minister, or any court."

7 The definition of "article" in s 4 of the Act includes (inter alia) a publication, a computer programme and associated data and a photograph. The term "computer service" is defined in s 99 of the Act as meaning:

"… 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."

8 The classification of films and computer games is covered in Part 3 of the Act. The designation "RC " means "refused classification" (s 21(2)).

9 The prosecution opening before the learned Magistrate was quite brief. Shortly put, it was that the respondent is a prison officer at Canning

(Page 6)

Vale Prison and as such had access to Ministry of Justice computers at work. He received an objectionable image titled "Hook":

"… probably through an e-mail at work. He kept that image on his work computer, along with a number of other pornographic images, and he was locked out of his computer directory somehow. Police came along and checked his computer directory and they found this 'Hook' image there." (AB 17).

10 The Ministry of Justice ("the Ministry") computer system was described by Mr Steven McLernon, a consultant project manager for Computer Science Corporation, which firm was providing information technology ("IT") technical support for the Ministry. Prior to that appointment he was project manager responsible for technical support for Offender Manager IT, which all prisons and Correctional Services officers used and which was also within the Ministry. He was project manager for the deployment of computer hardware for Canning Vale Prison in June 1999 and was also involved in the installation of the software for that system in about July 2000. Prior to deployment of the current PC network throughout the Ministry between April and June 1999, prison officers at Canning Vale Prison had been using networked equipment provided by Convergent Technology Operating Systems ("CTOS") apparently together with some stand alone PCs since about 1982.

11 McLernon was asked to explain a computer image defined as a "bitmap image" ("bmp"). He replied that (AB 19):

"…A bitmap image is a raw data version of a file. If you take a photograph of something, or draw a picture of something, the colours or the pixels on the screen are represented by data, and that data is written directly to a file. There are numerous different formats, TIF which is tagged image format, bitmap, which is BMP, JPEG and lots of different (sic). One thing that discriminates bitmaps is that they're not compressed.

The BMP type image which your Worship will learn later is the actual type of image in question today.

(TO WITNESS): On the old system, the CTOS system, would it be possible to view such an image?---No, there were no image - - no packages that were capable of display (sic) BMPs directly."

(Page 7)

12 In cross-examination he explained that the CTOS system did have a product called "document designer" and an imaging product called "image editor", but the system was not capable of saving in bmp format.

13 At the time of trial Mr Jason Jordan was a computer consultant with Woodside Petroleum, holding the position of manager of the IT support team. That role involved the architecture, design implementation and support of the company's IT systems. Prior to that he was IT consultant with the Ministry. His role included content monitoring and security. Before working with the Ministry he had worked for General Electric as consultant to the Water Corporation and before that had worked as technical team leader for IBM's internal support organisation.

14 Jordan became involved with the new PC network computer system being used by the Ministry in September 1999. The new system was known as Total Offender Management System ("TOMS"). According to him, when an individual employee or officer within the Ministry is first approved as a computer user, they are allocated a reserved area of storage space on the system. He likened the individual user's storage space to a filing cabinet. The user is given a log-on ID, which may be compared to the key to a filing cabinet. Once the cabinet is open, the user can do what they like with the cabinet. They have exclusive access to it. This is known as the user's personal home directory. It is stored on a central server for each location. Data may also be saved on the user's own hard drive. The data on the server is backed up on tape each night. Thus, even if a user's PC or hard drive were to be destroyed, all the data on their home directory could be replaced from the backup tape.

15 About 4 May 1999 Jordan was instructed by the Ministry to provide assistance to Detective Roger Haynes of the Western Australian Police Vice Squad. Detective Haynes had a list of Ministry employees in respect of whom he was conducting inquiries. Jordan was to assist the detective examine the computer storage space and e-mails relating to those on the list. One of them was the respondent. Jordan and Detective Haynes began an examination of the respondent's computer records.

16 Each home directory on the Ministry system was prefixed with its user's ID. The respondent's in this case was "HUGHESPE". Once allocated, the user could change their own password.

17 On examination of the respondent's directory HUGHESPE, Jordan found a number of folders. One was entitled "work". Within that folder Jordan found a number of different images and movie files including one

(Page 8)

entitled "Hook.bmp". A copy of the image appears at AB 105. It was later described in evidence by Detective Haynes in the following terms (AB 22):

"… the image is a picture of a female person trussed with rope and chain. She's performing oral sex on a male person. She's suspended above the ground by these ropes and chains, and she has a hook inserted in her anus."

18 On Haynes' instructions, Jordan copied the image onto a floppy disk which he gave to the detective.

19 Jordan had experienced some difficulty getting into this folder. As he was examining the respondent's home directory, he found a number of folders, one of which had been coded in such a way as to deny access to anybody, including the directory user. The system permits the user to put passwords, or what Jordan described as "permissions" on each folder within their home directory, such that the only person who can then gain access is the user themselves.

20 Again, using the analogy of the filing cabinet, Jordan said the folder had been padlocked, but in this case in such a way as to deny access to everyone, including the user. This meant, he said, that at that point (AB 45):

"… the user would not have had the ability to go into that folder and change anything. They wouldn't have been able to save into it, delete from it, look at anything in there. It was just inaccessible. There was a process that the user could have gone through to re-establish rights to the folder but that was not the case when I looked at it."

21 This, he said, was very unusual. System or network administrators however, always have the ability to overcome user restrictions of this kind by going through a reasonably complex process. Jordan did that here and it was in this folder that he found the image "Hook.bmp" together with a number of others.

22 Speaking about TOMS generally, Jordan said the operating software was Windows NT, which had been chosen specifically because of its compatibility with the Ministry's applications software and also because it provided a level of security regarded as world's best standard. He said what that meant was there was an ability at both a folder and document level to establish who has access to what.

(Page 9)

23 He was then asked in evidence-in-chief about the possible ways in which images could have been placed on the directory. He said there were many different ways. The first was by e-mail. An image could be received as an attachment to e-mail and then saved to the directory. He said there was a process which had to be undertaken to detach the image from the e-mail and save it to the directory. He said this was certainly not an accidental performance. Again there were many different ways of doing that. The image could be dragged from within the e-mail and dropped into the particular directory. Alternatively, the user could right-click on the attachment and do a "save as". Further again, at the top of each e-mail there is a number of options, one of which is "file", and the user could go to the file menu option and save the e-mail by clicking on "save as".

24 In addition to receiving the image as an attachment to an e-mail, a user could browse the web and save it from within the web browser using similar methodology to that just described. A further possibility again, although according to Jordan, less likely, was that the image could have been received through an Internet relay chat. He described this as similar to a CB radio - it is a text mode of communication within which one can make contact with other individuals who then have the ability to send a file directly to the user and vice versa. He said again, there were various ways of doing this, but mainly for Windows NT, a box would appear advising that the person with whom the user was communicating has asked to send a file and querying whether the user wished to accept it, and if so where they wished to save it. He also mentioned that although these were the main ways in which an image could be brought into the system, there were others, for example using a removable medium such as a floppy disk or a CD-rom. All of these require a complex user interaction, usually dragging and dropping the file or simply copying the file by right-clicking on it and on "copy". It would then be necessary to go to the directory into which the user wished to put it and right-click and "paste".

25 In cross-examination, Jordan said that he could not comment on the proposition put to him (at AB 52) that Training and Special Services ("TSS") data could not be input from CD-roms because there were no CD drives available to those machines at the relevant time, because he had no idea whether or not disk drives were available to them (TSS was the unit in which the respondent worked). He did concede that e-mails and attachments can be transferred from one computer to another without being opened. The e-mail could be read and the attachment opened on receipt, or alternatively the e-mail and attachment could be saved. The cross-examination then continued as follows (AB 52-55):

(Page 10)

"Not only that, if you had a lot of emails in your in box it's possible to do them in bulk?---Yes, you can. Not the attachments but the emails.

MR CRISPE: Well, the emails and the attachments. That you might have, say, 10 or 12 - - ? It would not be possible - - Unless all of the attachments were inside one email it would not be possible to get all of the attachments from multiple emails.

It might be at my limit, but firstly, let's just stick with emails. With emails if you had a whole stack of them and you wanted to move them across to read them at a later time, you could actually highlight - - ?---You could select all of them or put them into another folder within Outlook.

In your directory?---No.

I just want to make sure I'm saying it right because some evidence is going to be given about it, but I take it when you access the machine with a user name and password, you then access the Ministry of Justice system and one of the things you can then access is your email?---Correct.

And what you would see if your email in box---Yes. However - -

Once you open - - do another step and open the . . . (indistinct) . . . - - ?---That's correct. Users have the ability to change what it looks like, but in the main, the way it's installed if they haven't modified it then they can see all of the emails that are currently in their box, and they do have the ability to save those emails out to their hard drive.

Right. Out to their directory you're talking about. Is that what we're talking about when we're talking about the hard drive? Each person has a filing cabinet inside a whole office of filing cabinets?---Absolutely. You have the ability to save that email or the attachment to your local hard drive or to your personal home directory.

First of all if you had a great number of emails, it's possible to by the various methods move them all en masse into your filing cabinet?---That's correct, but you would only be saving the - - You would be saving the email which contains the attachment.

(Page 11)

So the attachment wouldn't exist as an attachment with just its name.

I was trying to simplify it and, firstly, give the example of just a whole series of emails without attachments. There's no problem there in moving them en masse?---That's correct.

MR CRISPE: You could scroll down somehow or highlight them all and move them across?---Absolutely.

If, in fact, you had a whole series of emails with attachments can you tell us whether you can, by highlighting them, can you move them and the various attachments into - - ?---In exactly the same way as the emails that didn't have attachments you can batch save them to the directory. They'll be a lot bigger because they'll contain the attachment but they will be called something else entirely.

All right. Just pausing at that point, at that stage a person might not know the contents of an attachment but has, in fact, moved it from their in box into their filing cabinet?---Yes.

And then a person, I suppose, at leisure or whenever, could go through those and look at them?---Yes. We start - -

Open them or whatever the expression - - ?---We're starting to get reasonably complex now, but yes, it can be done.

Well, once you've moved them in - - It's not that complex - - You've moved the emails - - ?---It is because - - If I can use the example of hook.bmp. If you want to save that into your home directory, that's fine. You write (sic: right) click on it within the email and you save it out. With that - -

Within the in box - - sorry. Just so that we can stick with it. In the in box. We've got it there as a - - ?---Yeah.

- - 'Here, have a look at this' or whatever the little message might be with it?---Precisely, and then it's got your - -

It's got a paper clip?---So you haven't looked at the picture but it's there.

Right?---So you have the ability then to write (sic: right) click on it and save it out.

(Page 12)

That hook.bmp might just - - it would be shown on your in box as a paper clip?---Yes. If that came through that way.

If it came as an email. That's what I'm talking about?---Not all the emails require the images to be there as a paper clip. Some of them can show the image. It depends on how it's been sent.

Okay. Well, I think a lot of us a (sic: are) familiar with emails where attachments, whatever they be, are shown as a paper clip?---Okay.

And I think when I asked - -? The distinction I'm trying to draw is that you can save that imager (sic: image), no problem at all, without having seen it.

MR CRISPE: Yes?---I concede that point. If you wish to save out the entire email with the attachment inside it, you can also do that. And then it will be called - -

Right. So the little message might say, 'Here, have a look at this"?---And you've saved out the whole thing.

That's the little message which might be whatever length it is plus the paper clip?---Plus the attachment.

Plus the attachment?---But that would be called something else. It won't be called hook.bmp.

When it's saved into your directory it will be called something else?---It'll be a random string of numbers .eml email.

My point was which you might have answered it, just so that I understand it, because if you had a series of emails with a series of attachments and they appear in your in box - - ?---Yes.

- - is it possible rather than doing it one by one which you can do and save, is it possible to highlight and save. And I think your answer was yes?---Yes, because you would select all of those emails and you would write (sic: right) click and do a save as. Then you would - - Say, you did 10 of them, they would appear as 10 random number.eml files.

With their attachments?---Still inside the eml file. However, if you wanted to get the 10 emails and select all of the attachments and save them out separately, you can't do that.

(Page 13)

So my point is by highlighting them and saving it would save both the email plus the attachment - - ?---That's correct." (emphasis added).

26 Counsel for the respondent before the Magistrate then referred to the various ways the witness had suggested the image could have come to be on the respondent's home directory and put to him that according to his instructions, TSS did not have access to the Internet at the relevant time. Jordan said that he understood that through an oversight in security, virtually everyone did have access to the Internet even though they were not aware of it at the time. He agreed that given the respondent had told the police officers the image came via an e-mail, that would be consistent with one of the most likely possibilities in Jordan's own suggested list of possibilities.

27 As to the restrictions on access to the work file, Jordan reiterated that as he found it, access had been denied to everyone including the user - all permissions on that folder had been removed. However, as the respondent was the authorised user, it would have been possible for him to re-grant permission to himself, although to do that he would need to understand how permissions worked - which he would have needed to know to remove the permissions in the first place - because that is a reasonably complex procedure.

28 He was then cross-examined about the back-up procedure. He said the entire H-drive (which is the network drive across the whole of the Ministry) was backed up at the end of each day. Data could be restored to individual hard drives from the back-up tapes. This could be done remotely from head office. There were not many of those which had to be done but he could not see a situation occurring where e-mails and attached documents which might have been received and subsequently deleted, might suddenly reappear in a user's "in-box" without being asked, although he could see it could occur if the user was doing their own back-up restores. In that situation it might occur if a user had changed their view of their e-mail or if they had deleted something in circumstances in which their e-mail was set to "view only unread items". If that were later changed to "view all items" the user might find items thought to have been deleted would suddenly reappear (AB 59).

29 In re-examination there were the following exchanges (AB 60-61):

"If, in fact, it didn't have an email attached, the possibility that was put to you as to how emails could have been batched (sic)

(Page 14)

saved or highlighted and put across, would that have occurred with that hook image?---Well, no, because the attachment was saved there as a stand-alone image file. There was no email attached.

Now, just one last question. I just want to clarify for my own understanding here. You were talking about changing views in email such that things that you thought it deleted weren't deleted. Can you explain how that works?---Certainly. Any user of outlook would have experienced - if they had been exploring within outlook's option that there is one particular setting which allows you to change the view of your email from view all items or view read items and view unread items. It's just one of the way (sic) so of viewing your email to make it more management (sic). And what some users discover is that if, in fact, they have it as view unread items, they read an email which they don't act or haven't filed in the manila folder.

When they go out of that view, look in another folder and go back into the original in box, well, that email is not there any more. They haven't acted on it so it's obviously been deleted. And that is isn't the case. It's simply an email that you haven't done anything with. If you then change your view to view all items, that email miraculously reappears…." (emphasis added).

30 In his evidence, Haynes said that when Jordan accessed the respondent's home directory at the Ministry in his presence, they found the Hook image and seven others. The others were pornographic but were not of a character to be objectionable material within the meaning of the Censorship Act.

31 Counsel for the respondent objected to the admission of this evidence, but counsel for the appellant argued it was admissible as propensity evidence. Its relevance was to show a system of keeping pornographic images and further, to rebut a possible defence of accident were it to be suggested the respondent saved the image not knowing what it was but subsequently looked at it and attempted to delete it, but unsuccessfully.

32 The learned Magistrate ruled the evidence was admissible on the basis contended for by the prosecution (AB 33-34). As this is a prosecution appeal and there is no cross-appeal by the respondent, no issue as to that ruling arises on this appeal.

(Page 15)

33 On 19 June 2000 Haynes, accompanied by Detective Sergeant Craig Reynolds, interviewed the respondent at the Canning Vale Prison centre. Reynolds told him they were there to speak to him about an objectionable image found on his work computer. He then cautioned the respondent. He described the image and asked if the respondent knew what he was talking about. The respondent said: "I think so but I don't have any images now." He was then told the image had been found on his home directory on 4 May, to which he said he got rid of everything. He said he did not really have any computer knowledge and when told the directory in which the image was located had been protected in such a way that not even the administrator could access it (which of course was not in fact correct) the respondent said he did not know how that was done. Reynolds told him the directory's access was even barred to the respondent because it was not done properly, to which he repeated that he thought he had got rid of everything when they were told to. When Reynolds said that the way this was set up he could not have got rid of it if he wanted to, the respondent reiterated that he had no idea how it was done. A colour print of the image was shown to him and he acknowledged that he received it through an e-mail, although he did not know from whom. He suggested the police should be able to find that out. Asked what he did with it when he received it, he said he did not know. Asked whether he saved it to his work folder he said he was not sure. He was then told he would be charged in relation to the possession of the image and the interview concluded. That completed the evidence for the prosecution.

34 The respondent testified that he was a prison officer at the Training and Specialist Service Branch of the Hakea Prison complex, formerly known as the Canning Vale Prison complex. He has been a prison officer with the Ministry for seven years. Although he had access to computers for a period over his career, they were only for muster and incident report writing purposes until 1999 when there was a change. He has never received any computer training at all.

35 He said there was no Internet access when the computers were set up but there was as of May 2000, although he did not know when that came into operation. Access to his computer was by typing in his user name (HUGHESPE) then typing in a password. It was necessary to log on and use the password to check his e-mail. He said it would not be uncommon to receive more than 500 e-mails after logging on to the computer if he had been off duty for a period of three to four days. Only a few would necessarily have any direct relevance to himself. There would be a message from the system administrator advising that his inbox was full

(Page 16)

and that he should either delete or save some of the e-mails. He testified that because he did not have time to read such a large number of e-mails, his practice was to save them in bulk to a directory within his file and to read them at a later stage. He learned this procedure from another officer who showed him how he could do it. That other officer had had no formal training either, but "just stumbled across" a way that it could be done. He said that when he had time he would go through the e-mails and nine times out of 10 would delete them because they were not relevant to him.

36 He said he did recall going through his e-mails and finding a particular e-mail called Hook.bmp. He could not say when that was, although it was definitely months before 4 May. He said he believed he had received some other crude e-mails prior to that, but they were deleted to the best of his knowledge. He reiterated that his practice was to send all of his e-mails to his work file and from there he would go through and delete them.

37 At the time he received the Hook.bmp image, he had several other items as well as games that had been sent to him.

38 He described the process in relation to this particular image in his examination-in-chief (AB 69) as follows:

"Can you tell us what happened when you received this particular one, the hook.bmp?---When I received that particular email I would have saved it with a quantity of other emails to my work file, and then going back at a later stage and checking through I discovered this particular image and I decided to delete it straight away because I found it objectionable. I was quite shocked from that particular image and I also - - Well, I deleted the whole file to the best of my knowledge.

Just pausing there, you said when you received this image you saved it. Where had it first appeared? When you got the email, where does it first appear?---It first appeared in my in box.

Did you open it at that stage or did you transfer it to - - ?---I transferred it without seeing it because it was with another 30 or 40 saved emails.

You said that you then, when you opened it, you saw what it was and you deleted it?---Yes.

(Page 17)

What did you actually delete?---I deleted the file. I didn't want any part of any of this that was going around.

Did you do anything else at the same time or as part of that?---Yes. I put a security lock, as such, on the file or the directory - - I'm not - - Sorry, your Worship, I'm not terribly computer literate. I don't know how I put the lock on or exactly the reason why.

Was it done at the same time as you've told us you deleted the image?---It was done within about a 3-minute space.

What was your understanding at that stage as to the state of the matter once you had done that?---My understanding was that the whole file had been deleted and then the lock put on (sic) place." (emphasis added).

39 He said he thought this was done possibly in January or February 2000 or late 1999. He had had no access to that particular folder between then and 4 May 2000 and to the best of his knowledge, the whole file had been completely erased. He discovered subsequently that he had no access to the work file and that e-mail facility, although once a security lock was put on the computer automatically gave him a duplicate running system so he could still send and receive e-mail and could still use a file entitled "work". However, at that stage he changed the way he was checking and receiving e-mails in that he began to check the e-mails at source at the "inbox" and either delete or save them as he chose, as opposed to saving them en masse.

40 In cross-examination he admitted having received, looked at and kept a number of other images including "Pirelli" (a slide show of pictures of naked women), "Hotspot" (a woman in a bikini sitting on a car in which clicking on the bikini showed a close-up of her tattooed genital area), "Xenarun" (a short movie of a naked woman with very large breasts running towards the camera) and "Cokecan" (a woman bending over and eventually producing a coke can from her vagina). He conceded that having initially opened them and seen these, he decided to keep them. He said a lot of it was from people he had never known before.

41 It was then put to him that according to Jordan's evidence, the Hook.bmp image could not have been saved "in bulk" as claimed by the respondent (at AB 75-76):

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"Now you heard the evidence of Mr Jordan, that given the nature of these files, the way that they were found, and I think that have (sic) admitted for all of them, except 'hook', they weren't saved by this bulk method, but this 'hook' in the same way that it couldn't have happened that way, do you have any comment to make on that?---The 'hook' one was put in the same bulk save method. …

… It wasn't necessarily you didn't have to save the whole email to the workfile. You could save the attachment to the file. And that's what I'd done. You had, as you were trying to bulk save, you would have to save the image separately, and that was doing without knowing what the image was, until it got to the work file.

MR BATHURST: So when you say bulk save, what you mean is not really, you didn't highlight them, and as a block move them over. Now what you're saying is you got this initial image 'hook', just the attachment, and not the email, and you saved that across without looking at it, is that what you're saying?---I'm not 100 per cent sure. I believe - - I believe it would come up if you tried to save, it would say this email has an attachment, and then you would click, and save the attachment to the work file, so you could go through and save all the other emails.

MR BATHURST: So what happened is you actually decided to save this particular attachment called 'hook'?---Without knowing what it as (sic: was), that is correct.

Okay. Now do you recall the email it came with?---No, I do not recall the email it (sic) came with it.

So you don't recall if there was any sort of message with it or who it was from? Now I think you then said you later looked at this image, you later opened it?---Along with the other emails that I had saved, yes, that is correct..

So you opened this image? I think you said something along the lines of I found it objectionable, I didn't want any part of it. So I deleted it?---I deleted that one, along with all the email which involved games.

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Well, no, we're just talking about the very first time you ever looked at this. The very first time you ever looked at this?---The very first time I ever looked at it - -

Now you said that you found this particular one distasteful, so you deleted it straight away, is that right?---No, that is not correct, that is not what I said.

So when did you delete it?---I looked at it, I closed the picture, I deleted the file." (emphasis added).

42 Cross-examined further, the respondent repeated that sometime prior to his visit by the police a warning had been issued by the Ministry about staff receiving inappropriate material on their work computers and when they were told to get rid of such material, he had done so. He was aware from colleagues from work that the system administrator had access to their individual hard drives and the respondent wanted everything deleted. However, he had already deleted the Hook.bmp image prior to this. Cross-examined about why he put protection on the directory, he said there was no definite reason. Further pressed, he said he believed his password may have been compromised and that someone else could use his e-mail facilities to send or receive e-mails using his password, although he could not be one hundred per cent sure. Reminded that when the police officers had asked him whether anyone else had access to his home directory, he had told them not that he knew of, the respondent said that was correct - he did not know whether anyone did; he could not be one hundred per cent sure and to that day still would not know if anyone had access. He did concede he was not alleging that anyone else had "done any of this stuff" (AB 79) - which I take to mean saving the relevant images. When it was suggested to him squarely that the reason he put the protection on this folder was to make sure that no-one else could see what was there, his response was (AB 79):

"Absolutely not. If they looked inside, there would have been nothing in there. I had no problems with that."

43 Finally, he reiterated that he had no computer training and little computer knowledge and when asked if he backed up his own files, he said he did not and would not have a clue how to do so, nor did he restore his own files and he had never asked for his files to be restored.

44 In re-examination the respondent said the Hook.bmp and other items were all located in his work file and it was that entire file he had attempted to delete. As for the security protection, he said he had no idea

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how he had gone about it and believed he would not be able to replicate it. He said that was done "in the same moment" that he had deleted the file and from that point he had no further access to the material.

45 Apart from the respondent there was only one other witness called for the defence before the Magistrate. That was a Mr John Lambie, also a prison officer, and then officer in charge of the Technical Support Unit ("TSU") which was part of TSS. As officer in charge of TSU he was responsible for the correlation of information (such as high security escort data and special operations statistics), for riot truck equipment, video-recording and the gathering of forensic evidence. Although required to use computers, he had no formal training in relation to them. So far as his own computer was concerned, he had access to his own personal directory on the Ministry "H" drive and to the "C" drive on his own desk top computer. Since the new system came on line in early 1999, Lambie had been called upon to provide assistance probably to between 15 and 20 of the approximately 60 personnel attached to TSS. One of those was the respondent, who had sought his assistance in relation to e-mails (AB 82-83):

"… - basically when the email was full, which was at that time, was very common for multiple emails to be sent throughout the whole ministry. Once our email system was full we were unable to receive or send any more email, so it was a matter of basically removing them to be able to get our email system to work again.

And what particular mechanism did you show Mr Hughes?---The one that I found out myself was basically to highlight the items by holding the shift button and the down arrow on the keyboard, to actually highlight the items. On the highlighting the items, the arrow on them - -

Don't go too fast, because obviously people - - so you highlight it in some way, and then move and arrow?---Yes, using the mouse you're able to put the arrow on to the highlighted items. Once you click the right button, a screen appeared, a number of options that you could actually do. One of them was forward, and you can actually ... (indistinct) … forward button, it would come up with a slightly smaller screen, once more, and you could actually push the file button and down to save as, and you could actually save them to your personal drive in bulk.

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Is that a method you've - - is that the method you showed Mr Hughes?---Yes, that's correct.

So what would happen to all the emails that had been highlighted that were in the in-box? Where would they end up being?---Well, you could move them to you (sic) personal H drive.

Right. And what's the advantage of doing that, as you understood it? What was the advantage to you, such that you showed say Mr Hughes?---The reason being is we were hit with so many unsolicited emails, that we actually received, it was not uncommon for the whole system, and the system administrators to say it's clean out your email system, and to actually use your email, you're unable to send or receive or any further email until the system was cleaned up. So without having to go through and read lots and lots and lots of email, this way you could actually move them to your H drive and peruse them later at your own thing, but basically you had the ability then to be able to utilise your email system."

46 Lambie described instances of deleting e-mails from his computer only to be surprised later to see them reappear. He said this had happened both on his H drive (by which I take him to have meant his home directory) and his "outlook" (which I take to be a reference to the C drive on his own PC). In neither instance had he accessed, backed-up or restored data; he had simply logged on in the ordinary way.

47 The early part of his cross-examination by the prosecutor was obviously directed to suggesting he was a long-time workmate and friend of the respondent, but no suggestion was made that his evidence was in any way untruthful or exaggerated. He did say he did do his own back-ups of confidential information and although he believed the system did have a facility whereby a user could restore his or her own data, he had never tried it.

48 Without attempting to canvas the closing submissions made to the learned Magistrate comprehensively or in detail, those made by counsel for the respondent may be summarised as being that the prosecution had to establish the respondent had used a computer service to obtain possession of the Hook.bmp image knowing what it was, that there was no evidence that he knew what it was when he "bulk" saved it from his e-mail to the work folder in his home directory and that when he

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subsequently opened it and saw the image, he immediately deleted it (or thought he did) whereas the folder was not deleted at all but access to it was barred to all users including himself and that was the situation as at 4 May 2000. Some formal admissions were made, including that the Hook.bmp image contained objectionable material as defined in s 99 of the Censorship Act.

49 Counsel for the complainant, for his part, submitted that on the evidence the relevant image must have been e-mailed to the respondent but that it could not have been "bulk" saved as he claimed because if it had, it would have been found as an e-mail, not an attachment as a separate image. He pointed out that the respondent had admitted making deliberate decisions to keep the other individual pornographic items he had received and his evidence that he thought the Hook.bmp image was so bad that he was driven to delete it immediately was simply unbelievable. The prosecution case as it was crystallised at this stage was that the respondent had been collecting pornographic images (including Hook.bmp) and when the Ministry eventually issued a directive prohibiting such material, he tried to delete them all, but due to his lack of computer knowledge, what he in fact did was block access to the folder completely, including to himself. And so, as the prosecution submitted (AB 93):

"… he's locked himself out, he's left all his pornographic images in there, probably thinking he's safe. But in effect he's trapped himself, because eventually an administrator comes along and has a look and sees all these things."

50 It was submitted that Lambie's evidence relating to backups and restorations did not assist the respondent because his own evidence was that he had never done any backups nor restored data himself and Jordan's evidence was that deleted files could not reappear in the way claimed by the respondent.

51 In her reasons for decision the learned Magistrate first referred to the provisions of s 101(1)(b) of the Censorship Act and noted the various concessions of fact made by the respondent. She then referred to the respondent's evidence as to how he received e-mails and saved them unopened to his work files. She referred to his interview with the police and his evidence before the learned Magistrate that he had never received any computer training at all. Despite that, her Worship considered that on his evidence it was clear the respondent had some level of expertise insofar as he knew how to log on, to change passwords, to send and

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receive e-mails, to open e-mails and their attachments and to detach attachments from e-mails and save them to his work folder. She noted that the evidence that the Hook.bmp image was found with other images in the respondent's work folder was consistent with the prosecution's submission that they were there not merely by accident but as a result of conscious action by the respondent.

52 Her Worship accepted Jordan as an expert in the field of computer technology and further accepted his evidence that when he accessed the respondent's computer, he found it had been set up in such a way as to deny access to everybody including the respondent. She specifically referred to Jordan's evidence that at the time at which he looked at the folder on 4 May 2000, even the user would not have had access to it although there was a process that the user could have followed to gain access. Her Worship was satisfied on the basis of Jordan's evidence that on 4 May 2000 the respondent did not have access to his work folder but the administrators of the network did. From that point her Worship's reasons continued as follows (AB 101-103):

"Was the defendant, as at the 4th of May, in possession of the article in those circumstances? Possession is not defined in the Censorship Act. Possession is defined in the shorter Oxford English Dictionary volume 2 at page 1635 as:

'The visible possibility of exercising over a thing such control as attaches to lawful ownership. The detention or enjoyment of a thing by a person himself or by another in his name. The relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing admits to the exclusion of other persons.'

I refer also to section 3 of the Misuse of the Drugs Act where the term 'to possess' is defined to include:

'To control or have dominion over and to have the order or disposition of and inflections and derivatives of the verb to possess have correlative meanings.'

Various sections of the Police Act refer to possession of different articles including gold. The term possession is construed to include control of an article or thing.

On the evidence I am satisfied that as at the 4th of May 2000 the defendant was not in possession of the objectionable article

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because it was inaccessible to him although it was accessible to the administrators of the computer network.

At page 55 of the transcript the defendant said he had received the objectionable article months before the 4th of May 2000, but he could not remember exactly when. At page 56 he said that he could not remember when he deleted the file and he did not know how or when he put the lock on the file.

There is no evidence as to the date when the defendant put the lock on the file, but as stated earlier I am satisfied that from the point where he locked the file onwards, he ceased to be in possession of the contents. This charge relates to him 'obtaining possession' of the article.

There is no evidence as to the date in which the article appeared on his computer or the method of which it appeared on his computer. How was the article obtained? The defendant said he thought it appeared as an email attachment, but Mr Jordan said that when he found it there was no attachment. He described it as a stand-alone.

At pages 33 to 35 of the transcript, Mr Jordan described numerous ways by which the image could have been obtained. One was by email, another one was from the Internet via a web browser or through Internet relay chat or by exchange of files through a programme called ICQ, or by the use of a floppy disc or burning a personal CD rom. He said all of these latter procedures required a complex user interaction.

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.

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

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(sic: 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."

53 The appellant's grounds of appeal are that:

"The learned Magistrate erred in dismissing the charge in that she:

(a) erred in law and in fact in finding that there was no evidence as to the date on which the article containing objectionable material appeared on the respondent's computer or the method by which it appeared there when the uncontroverted evidence of the respondent was that he received it as an email attachment 3 to 4 months before the date of his police interview on 19 June 2000;

(b) erred in fact by misconstruing the evidence of Jason Jordan, who was accepted as an expert in the area of computer technology, that he found the email attachment which contained the objectionable material had been saved as a stand alone image file to mean that it could not have been received as an email attachment, rather than that it could not have been batch saved along with other emails without knowing its contents, as alleged by the respondent;

(c) erred in fact in accepting the evidence of the respondent, who professed to have no computer training, that he had bulk saved the email attachment containing the objectionable material along with a number of other emails when the evidence of Jason Jordan, an accepted expert in the area of computer technology, was that, given the nature of the attachment containing the objectionable material, this could not have occurred;

(d) erred in law in finding that if the article containing the objectionable material was received by the respondent unsolicited he could not be convicted of knowingly obtaining it when she should have found that irrespective of whether or not the article was solicited, once the

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respondent knew the contents of the article and decided to save it or keep it on his computer, he had obtained possession of it knowing it to be objectionable material;

(e) erred in fact in finding that while attempting to delete the article containing objectionable material the defendant barred access to it when this could not reasonably be inferred from the evidence; and

(f) erred in fact in finding that as at 4 May 2000 the defendant did not have access to his work folder when the controverted evidence of Jason Jordan was that the defendant could have accessed his work folder by regranting himself permission to it."

54 It is important to appreciate that this appeal must be determined on the evidence given before the learned Magistrate; that evidence is not to be fleshed out nor contradicted by any knowledge of, for example, computers or e-mails or the processes involved, on the part of an appeal court or any individual judicial officer.

55 At the outset of the appeal, Ms Pritchard, counsel for the appellant, emphasised that the prosecution case was not that the respondent had obtained possession of the Hook.bmp image within the meaning of the Act when he received it on his computer (whether by e-mail or otherwise) but rather that he did so when he deliberately saved it as an image to his home directory knowing its content. She further maintained that the question whether he later "lost" possession of it when he put the "lock" on his work folder and excluded all access to it, was irrelevant and a "red herring". Implicit in these contentions is the proposition that the respondent in fact did look at the Hook.bmp image some time after having received it, that he made a conscious and deliberate decision to save it as an image and that he in fact did so. Thus, proof of those matters was essential to the prosecution case.

56 The proper approach to be taken on an appeal by way of re-hearing under the Justices Act1902 (WA) was explained by Ipp J (with whom Malcolm CJ agreed on that point) in Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 448:

"It is correct that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the court below has not taken proper advantage of seeing and

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hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh: see Wing Luck Foods v Lay Choo Lim [1989] WAR 358.

Further, it is to be noted that this is not an appeal from a jury but from the reasoned decision of a magistrate. The appeal stands or falls upon an examination of the magistrate's reasons in the light of the evidence. A decision of a court of summary jurisdiction is not regarded with the same sanctity as the verdict of a jury: see Davern v Messel (1984) 155 CLR 21 at 37-38. If it is argued that there was inadequate evidence to justify a conviction, and the appellant identifies particular findings which, it is submitted, are not warranted by the evidence, it is the task of the respondent to provide, in turn, an analysis of the transcript which refers to the evidence which, in the respondent's submission, bears out the findings: see Carden v The Queen (1992) 8 WAR 296."

57 The advantages had by a trial judge or magistrate at first instance to assess the credibility of witnesses are no longer necessarily regarded as precluding an appeal court from overturning a decision on appeal, particularly where there is other evidence pointing to a contrary conclusion. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liq) (1999) 73 ALJR 306 the High Court of Australia allowed an appeal where the trial judge had rejected the evidence of a critical witness because of his assessment of her credibility. The court considered the significance attached to her appearance and demeanour in the witness box was misplaced in circumstances in which the material parts of her evidence had withstood cross-examination and important aspects were corroborated by the unchallenged evidence of other witnesses and by documents in the case. Gaudron, Gummow and Hayne JJ pointed out [63] (ibid) that the fact the trial judge was heavily swayed by his impressions of the witness in the witness box, did not preclude a court of appeal from concluding that in light of other evidence a primary judge had two fragile a base to support a finding that a witness was unreliable, citing Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-7; Voulis v Kozary (1975) 50 ALJR 59 and Chambers v Jobling (1986) 7 NSWLR 1.
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58 In his judgment, Kirby J canvassed the history of judicial attitudes to appellate review of facts and the principles applicable thereto (see [72] - [93]). His Honour concluded [89] that none of the factors to which he referred required abandonment of the respect which appellate courts must pay to the advantages enjoyed by the trial judge, although (at [93]) even where the trial judge has expressed conclusions as to the credibility of a particular witness, such a finding will often be far from conclusive of the proper outcome of the entire trial and hence of the appeal. Taking that approach, Kirby J was satisfied the trial had miscarried. Even were the witness's evidence to be excised because of the trial judge's adverse findings on her credibility, the real strength of the appellant's case still remained; it lay in the documents, and they were not subjected to the analysis which was required for a proper evaluation of the case.

59 On the other hand, where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial Judge gave insufficient weight to other facts in the case (per McHugh J in Rosenberg v Percival [2001] HCA 18 at [41] - with whom Gummow J agreed on this issue (at [92])).

60 There is an additional element in the present case. The appellant says the learned Magistrate purported to accept the evidence of both Jordan and the respondent but contends that on the relevant issues their evidence was incompatible. She also submits that on some other important issues, her Worship appears to have preferred the evidence of the respondent against that of Jordan, an expert witness, without any reasoned analysis justifying the rejection of the latter. I will deal with the substantive grounds in the context of which these submissions were made, but for the moment confine myself to the relevant principles of law.

61 In this regard Ms Pritchard relied on Moylan & Ors v Nutrasweet Co & Ors [2000] NSWCA 337 (unreported) BC 200007222, 24 November 2000. It is not necessary to consider the facts of that case, save to note the appeal was from a judgment of Bruce J in the New South Wales Supreme Court delivered on 22 February 1999, some 14 months after it was reserved in December 1997. His Honour's judgment covered 247 pages, the vast bulk of which consisted of transcriptions (generally unacknowledged) from the written submissions of the parties. It was generally unclear whether or not recitations of propositions and arguments were intended to be findings. Submissions of the parties were simply copied by the learned trial Judge without any discussion nor any attempt by him to resolve the evidentiary differences so exposed (see eg [38]

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(ibid)). On the sixth day of argument in the liability appeal (there was also an appeal against a decision made on an application to extend the relevant limitation period) senior counsel for the defendants conceded Bruce J's reasons for judgment were inadequate and that the appeal ought to be allowed. Nonetheless there were still issues to be resolved as to consequential orders and costs and it was those issues to which the judgment of the Full Court was directed. One of the matters considered in that context was the way in which the learned trial Judge had dealt with the extensive epidemiological evidence in the case. The Full Court found that his Honour's short statement of conclusions in relation to that did no justice to the detail and range of the extensive epidemiological evidence tendered by the parties. Schiller JA (with whom Beazley and Giles JJA agreed) said (at [62] - [66]):

"[62] In their written submissions to this Court the plaintiffs said that fifty-two witnesses, mostly experts and/or treating doctors, gave written and oral evidence at the trial and all except one were cross-examined. Written affidavits and witness statements were tendered on behalf of the plaintiffs in respect of an additional twenty-three witnesses who were not required for cross-examination. Nine of these were medical practitioners. The plaintiffs submitted that of the fifty-two witnesses who gave oral evidence in the liability proceedings, Bruce J did not refer to (other than in passing), analyse or make findings in respect of any of the oral and written evidence of forty-four witnesses concerning

(a) individual causation issues in the cases of one or more of the nine plaintiffs (thirty-eight witnesses); and/or

(b) the issues of liability in respect of the alleged negligent failure adequately to test the Cu-7 devices in clinical trials (nine witnesses, including three, part of the thirty-eight referred to before).


None of the evidence of the twenty-three witnesses not required for cross-examination was considered in the judgment.

[63] In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, a decision of the English Court of Appeal, a firm of

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surveyors was sued for negligence. At 379 Henry LJ, who gave the judgment of the Court, said that the trial judge had summarised the history of the litigation at some length. Henry LJ described what followed as:

'a bare summary of the expert evidence given on behalf of each party, being introduced with the observation that the plaintiff's evidence was "entirely different" from that called by the defendants. Ten lines or thereabouts is spent on the plaintiffs' case with the bare assertion of the conclusion "the property had suffered from significant structural movement" without any supporting argument or detail beyond saying "They drew my attention to a number of features concerning the property which they said confirmed their opinion …'

Then just over a page is spent on the defendants' case, with the conclusions from Mr Atkinson's report of 4 March 1997 being expressly quoted. Again, assertion and not supporting evidence or argument is there set out."

[64] The conclusion of the trial judge in that case was expressed in a paragraph which opened with the hallowed statement (at 380):


'I have had the advantage not only of hearing the various witnesses give evidence but also of seeing the way in which they reacted to the questions that they were asked. Having done so, I prefer the expert evidence that was given for the defendants to that which was given for the plaintiffs. I find, on the balance of probabilities, that the property was described reasonably accurately by Haining in his report and that the opinion expressed by Mr Atkinson is correct.'

[65] There was a little more elaboration in the following dozen or so lines of the trial Judge's reasoning process.

[66] Henry LJ referred to Eckersley v Binnie (1988) 18 Con LR 1 at 77-78 where Bingham LJ said that: 'a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal,

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unless it can be discounted for other good reasons'. In Flannery at 382 Henry LJ said:

'where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence …'

With due respect I entirely agree."

62 In Flannery v Halifax Estate Agencies[2000] 1 All ER 373 the plaintiffs had purchased a flat relying on a report from the defendant's valuers stating there were no apparent undue hazards in respect of movement. After a prospective sale had later fallen through because the valuers produced a further report concluding that the property was affected by structural movements, the plaintiffs sued for negligence in respect of the first report. At trial, the case turned entirely on a dispute between the rival expert witnesses. Without providing any reasons for decision, the trial Judge stated that he preferred the evidence of the valuers' expert witness and dismissed the claim. On appeal the plaintiffs accepted that it had been open to the judge to conclude that the property had not suffered from structural movement as contended by the valuers' witness but they relied on his failure to provide any reasons for reaching that conclusion. The appeal was allowed. In a joint judgment, the Court of Appeal made the following general comments on the duty to give reasons (at 377 (ibid)):

"(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties - especially the losing party - should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p Dave) whether the court had misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

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(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt summarised the evidence) to indicate simply that he believes X rather than Y, indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence, but it is not necessarily limited to such cases.

(4) This is not to suggest that there is one rule for cases concerning the witnesses' truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword."

63 Against the above background of authority, I return to the grounds of appeal.

64 The first ground challenges the statement made by her Worship (at AB 102: C) that:

"There is no evidence as to the date in (sic) which the article appeared on his computer or the method of (sic) which it appeared on his computer".

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65 This statement was made by her Worship in the context of a finding made by her immediately before, that from the point at which the respondent put the "lock" on the file, it was inaccessible to him and so he was not in possession of it as at 4 May 2000. Having made that finding, her Worship then considered what the situation was prior to that date. Whilst there was no evidence of the actual date on which the image first appeared on the respondent's computer, nor specific evidence of how it got there, the respondent's own testimony was that it was some months before 4 May 2000, possibly in January or February 2000 or in late 1999 and that it had probably come as an attachment to an e-mail. Jordan's evidence was that e-mail was one method by which it could have arrived on the respondent's computer. As amended at the hearing, the charge alleged that the respondent used a computer service to obtain possession of the Hook.bmp image on a date unknown between 28 June1999 and 4 May 2000. It was therefore not necessary for the prosecution to establish the actual date, so long as it could prove the respondent obtained possession of the image some time between those two dates. Again, whilst it is true there was no evidence of the specific date upon which the respondent put the lock on the file (as her Worship said at AB 102: B-C), the respondent's own evidence was that he did so some time after having received the image as an attachment and "bulk" saved it without then looking at it. His evidence was that he looked at it later and then sought to immediately delete it (which had the effect of locking him out of his work folder) - and all of this was well within the period 28 June 1999 to 4 May 2000. The prosecution case was that some time after 28 June 1999 and before 4 May 2000 the respondent received the image, probably as an attachment to an e-mail, and having at some stage opened it to view it, saved it as an image with the name Hook.bmp. Her Worship's findings in this regard simply do not address the case put. Contrary to her conclusion that there was no evidence as to the date upon which the image appeared on the respondent's computer, nor when he locked himself out of the folder, the evidence that these events occurred between the dates alleged on the complaint was uncontroverted. Ground (a) is made out.

66 The learned Magistrate's statement (at AB 102:C-D):

"The defendant said he thought it appeared as an e-mail attachment, but Mr Jordan said that when he found it there was no attachment. He described it as a stand-alone"

appears to reflect a misconception of the evidence and the nature of the case being put. I accept the appellant's submission that her Worship here appears to have been taking the effect of Jordan's evidence to have been

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that there was some doubt whether or not the image had arrived as an attachment to an e-mail because when he found it there was no attachment (sic: e-mail), it was a stand-alone image. The point of Jordan's evidence, however, was not that the image could not have arrived as an attachment to an e-mail but rather that it could well have done so, but if it had, then it would not have been possible for the respondent to "batch save" it in the way it was found on 4 May 2000, but that he would have had to have opened it and taken deliberate action to save it. The thrust of the respondent's own evidence was that he received it most likely as an attachment to an e-mail because his explanation for it being saved to his home directory in the first place was that he had "batch" or "bulk" saved it, in effect inadvertently, as an attachment when he saved his e-mails.

67 Her Worship appears to have relied on Jordan's evidence here to conclude that the Hook.bmp image could not have been received as an attachment to an e-mail, and hence to find the prosecution had not established how the image had been received. That may have been relevant to the question whether the image had been obtained by the respondent through the use of a computer service (in that there may have been some argument whether use of a CD-ROM or floppy disc would fall within the definition of "computer service" in s 99 of the Censorship Act - although the definition is probably wide enough to cover that; but it is not necessary for me to decide that and I do not do so). However, that question was not raised here and as I apprehend her reasons it was not the question to which her Worship was directing her mind. I think the only conclusion open on what her Worship meant here is that because the image was found by Jordan as a "stand-alone" image with no attachment (sic: was not found as an attachment to an e-mail) it could not have been received as an attachment to an e-mail. That was patently a misapprehension of Jordan's evidence - and of the case being put by the prosecution. Jordan's evidence was that it could have been received as an e-mail (as the respondent had said to the police and in evidence) but if it had been, then it could only have been found as a stand-alone image designated "Hook.bmp" on 4 May 2000 if the respondent had deliberately saved it in that way - and if the prosecution case was that that was the point at which he "obtained possession" of it within the meaning of the Act. I find ground (b) made out.

68 I come now to ground (c). It was in relation to this ground in particular that the appellant submitted her Worship had preferred the evidence of the respondent to that of the expert Jordan, without any reasoned analysis justifying the rejection of the latter. Put shortly, the appellant's argument here was that having accepted Jordan as an expert in

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the relevant field (as she did) and in view of his evidence that attachments to e-mails could not be saved in bulk separately from the e-mails to which they were attachments, the only conclusion open to her Worship was that it was not possible for the respondent to have saved the Hook.bmp image in the way he claimed, and consequently her Worship erred in failing to reject the respondent's evidence in that respect.

69 Mr Karstaedt, counsel for the respondent, submitted that his evidence was not in conflict with that of Jordan. I do not accept that submission. I think that on a careful analysis there was a clear conflict on this issue. However, the present case is quite unlike Moylan. This was not a case of competing expert views, or of reasoned expert opinions. There was no suggestion the respondent was an expert, nor even a particularly qualified computer operator, although her Worship found him to have had a certain degree of knowledge (AB 101:A-B). Indeed, the respondent was somewhat vague about exactly how he had "bulk saved" the Hook.bmp image. What it comes to in the end is that the respondent said he had done so, and Jordan's evidence was that it was not possible to do it that way.

70 It is in fact difficult to discern exactly what finding her Worship made about this. At (AB 102:E) she simply says what the respondent's evidence was, namely, 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 action, which he believed had deleted it. Her Worship does not express that as a finding, nor does she make any comment about it. However, from what immediately follows that reference, it seems implicit that her Worship must have accepted that evidence, because she went on to say that what the respondent had actually achieved was to bar his access to the image. She next said that 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 he received it. This seems to be a finding that:

(a) the respondent would not have known what the image was until he opened it;

(b) the prosecution had not proved that he opened it when he received it; and

(c) it was therefore not proved that he knew it was objectionable material when he received it.

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71 None of this was in dispute. Those findings would not be capable by themselves of leading to a conclusion the prosecution had failed to prove its case. It is only if her Worship's reference to the respondent's evidence that he moved the unopened messages in bulk to his work folder for perusal later and that when he did open this message later he saw what it was and immediately acted to delete it, is taken as a finding, that it would meet the prosecution case. Of course it was not necessary for the respondent to prove that this would happen - the onus of proof was on the prosecution and the standard of proof was beyond reasonable doubt. If, on all the evidence, her Worship considered the respondent's account reasonably possible, then the issue would have to be resolved in the respondent's favour.

72 I therefore accept that her Worship must necessarily have found at least that it was reasonably possible the respondent had bulk-saved a number of e-mails without opening them, including the one to which the Hook.bmp image was an attachment.

73 That finding falls to be considered against her Worship's earlier finding (at AB 101:B) that the evidence that the Hook.bmp image was found with other images in the respondent's work folder was "consistent with" the prosecution submission that they were not there merely by accident but as a result of conscious action by the respondent; her acceptance of Jordan as an expert witness (and apparent acceptance of his evidence) and his testimony that as found by him on 4 May 2000 the Hook.bmp image could not have simply been saved to the respondent's personal directory as one of a number of "bulk saved" unopened e-mails.

74 This is not a case of her Worship giving no reasons for rejecting Jordan's expert evidence in preference to that of the respondent. Her Worship appears to have accepted Jordan's evidence. She appears not to have recognised the conflict between them; she has certainly not addressed it. I accept the appellant's submission that absent any reasoned explanation to the contrary by her Worship, the only inference open on the evidence was that the respondent had, at some time, opened the e-mail and attachment, viewed the image and deliberately saved it to his home directory as "Hook.bmp".

75 Ground (d) concerns the learned Magistrate's finding that the respondent could not be convicted of the offence charged if the image was received by him unsolicited. I will return to this below.

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76 Ground (e) complains that her Worship erred in fact in finding that while attempting to delete the image, the respondent barred access to it when that could not reasonably be inferred from the evidence. The appellant submits there was no evidence to support that. Ms Pritchard argued that the respondent's evidence was that he had deleted the file containing the image and thereafter put a security lock on it. She submitted this was clearly a discrete process from the deletion of the file.

77 The respondent's evidence on this (at AB 69) was again not very specific. Indeed, it was quite vague. Nonetheless, it was to the effect that having saved the relevant e-mail and attachment (without opening them) to his work file with 30 or 40 other e-mails, he later opened it and on discovering what it was, was horrified and, to the best of his knowledge, deleted the whole file. At the same time (that is within a period of about three minutes) he put a security lock on the directory but was not able to say how he did that, nor why.

78 Jordan's evidence was that when he found the folder on 4 May 2000 access to it was barred, including access by the respondent.

79 Although Jordan said the process involved in denying access was reasonably complicated, neither he nor the respondent were asked to detail that process step by step.

80 This finding was open to her Worship on the evidence and accordingly this ground is not made out.

81 By ground (f) the appellant asserts that the learned Magistrate erred in fact in finding that as at 4 May 2000 the respondent did not have access to his work folder when the uncontroverted evidence of Jordan that he could have accessed the folder by regranting himself permission to it.

82 What her Worship actually found (at AB 102:B) was that she was satisfied that as at the relevant date the respondent was not in possession of the image because it was inaccessible to him, although it was accessible to the system administrator.

83 The question here is whether it was open to the learned Magistrate to conclude that the prosecution had failed to prove beyond reasonable doubt that the respondent was in possession of the image. They had sought to do that by proving it was present on his computer (whether on the hard drive or home directory) and that (subject only to the system administrator) he had sole access to and control of it. Jordan's evidence was that access had been barred to everyone, including the respondent, but

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that as the authorised user the respondent could have reversed the process and given himself access again. If it were shown that the respondent knew what that process was and had the ability to regain access, that would, I think, be capable as a matter of law of constituting possession. However the respondent's evidence was that he did not know how he had placed the lock on the folder in the first place and had no idea how to go about reversing it. Although Jordan's evidence gave rise to the inference that the respondent could not have barred access inadvertently and that he did have sufficient knowledge and expertise to regain it, that was not the only inference open on the evidence. It was therefore open to her Worship to find that on 4 May 2000 the respondent did not have access to his work folder in the sense that he did not have it in fact then and could not have regained it - or at least the prosecution had not proved that he did.

84 I return now to ground (d) and the question of obtaining possession generally.

85 Soliciting objectionable material is specifically made an offence by s 101(1)(e) of the Act, which provides that a person must not use a computer service to:

"request the transmission of objectionable material knowing it to be objectionable material."

86 The present charge was not laid under subs (1)(e) but under subs (1)(b). The words "obtained possession" must therefore mean something different to requesting the transmission of such material - which is what her Worship must mean by the term "solicited". The offence under subs (1)(e) is not one of merely possessing a proscribed article.

87 The term "obtained possession" is not defined in the Censorship Act. It is therefore to be given its ordinary dictionary meaning. The "Oxford English Dictionary" (2nd ed) 1989 Vol 11 page 669 defines "obtain" as:

"To come into the possession or enjoyment of (something) by one's own effort, or by request; to procure or gain, as the result of purpose and effort: hence, generally, to acquire, get".

88 The "Macquarie Dictionary" 2nd revised edition 1990 at page 1179 defines "obtain" as:

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"To come into possession of; get or acquire; procure, as by effort or request".

89 The term "possession" imports both physical custody or control: see Davis v The Queen (1990) 5 WAR 269 at 273 and Atholwood v The Queen (2000) 110 A Crim R 417 at 429 and the cases cited therein.

90 Thus, to obtain possession connotes to come into physical possession or control of something by deliberate effort or request, and in the context of the express terms of s 101(1) of the Censorship Act must also involve doing so with a knowledge at the time of the nature of the item, namely, that it is objectionable material.

91 Her Worship's finding that there was insufficient evidence to enable her to determine whether the image came as solicited or unsolicited material was irrelevant. It was never the prosecution case that the respondent had solicited the material. The prosecution case was that however it had arrived there, the respondent obtained possession of it once he knew the content of the image and dealt with it in such a way as to save it to his home directory.

92 A person who unwittingly receives material on their computer has not, in my view, by reason of that circumstance alone "obtained possession" of it within the meaning of those words in s 101(1)(b). To that extent I agree with what her Worship said about unsolicited material. However they would do so once they opened and viewed the material and deliberately followed a procedure to save it to their hard drive, home directory or to disc.

93 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 -"

94 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.

95 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

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possession of it, must be the time at which the computer service was used for that purpose. That construction gives the subsection a consistent 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.

96 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.