Innes v R

[2018] NSWCCA 90

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Innes v R [2018] NSWCCA 90
Hearing dates:	2 August 2017
Date of orders:	11 May 2018
Decision date:	11 May 2018
Before:	Johnson J at [1] Davies J at [146] Lonergan J at [147]
Decision:	Leave to appeal against conviction granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW - conviction appeal – three offences of using a carriage service to transmit child pornography material contrary to s.474.19(1) Criminal Code 1995 (Cth)- online communications by appellant with a police officer using an assumed online identity of a 30 year old woman – appellant’s transmissions included descriptions of sexual activities he wished to undertake with the woman and her 11 year old daughter – definition of “child pornography material” in s.473.1 of Code – contention that offence did not extend to transmissions concerning future sexual activity - held that the offence is not limited to descriptions of sexual activity expressed in the present tense – narrow construction would lead to absurd results and not promote legislative purpose – no error established in trial Judge’s refusal of application for directed verdicts of acquittal – claim of error in directions concerning recklessness and inferences – directions to the jury concerning recklessness were appropriate – no further directions sought by counsel – no error demonstrated – directions to the jury concerning inferences were appropriate – no error demonstrated – appeal dismissed
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Criminal Appeal Act 1912 Customs Act 1901 (Cth) Criminal Code 1995 (Cth) Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No.2) 2004 (Cth) Criminal Appeal Rules
Cases Cited:	Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746 Doney v The Queen [1990] 171 CLR 207; [1990] HCA 51 Gent v R (2005) 162 A Crim R 29; [2005] NSWCCA 370 Hill v R [2017] NSWCCA 138 McEwen v Simmons (2008) 73 NSWLR 10; [2008] NSWSC 1292 Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v JMR (1991) 57 A Crim R 39 R v R (1989) 18 NSWLR 74 R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318; [2012] NSWCA 296 The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 Towney v R [2018] NSWCCA 65 Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29
Texts Cited:	Pearce and Geddes, “Statutory Interpretation in Australia”, 8th ed, 2014, Lexis Nexis
Category:	Principal judgment
Parties:	Ian Duncan Innes (Appellant) Regina (Respondent)
Representation:	Counsel: Mr J Pappas (Appellant) Mr LK Crowley (Respondent)   Solicitors: Ben Aulich & Associates (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2015/237089
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 15 September 2016 (Conviction) 13 December 2016 (Sentence) Before: His Honour Judge McLoughlin SC File Number(s): 2015/237089

Judgment

1. JOHNSON J: The Appellant, Ian Duncan Innes, appeals against conviction with respect to three offences of using a carriage service to transmit child pornography material contrary to s.474.19(1) Criminal Code 1995 (Cth) (“the Code”).

Trial and Sentences

2. Between 13 and 15 September 2016, the Appellant stood trial at the Newcastle District Court before his Honour Judge McLoughlin SC and a jury.

3. On 15 September 2016, the jury found the Appellant guilty of each of the three offences under s.474.19(1). On 13 December 2016, the Appellant was sentenced for each offence to a term of imprisonment of 14 months commencing on 13 December 2016 and expiring on 12 February 2018 to be served by way of intensive correction order.

Appeal Against Conviction Only

4. By Notice of Appeal filed on 30 May 2017, the Appellant appeals against conviction only. In the event that the conviction appeal failed, no challenge was made to the sentences imposed with respect to the offences.

5. The Appellant relies upon the following grounds of appeal:

1. Ground 1 - His Honour erred as a matter of law in failing to direct verdicts of acquittal in relation to Counts 1, 3 and 5 on the Indictment, there being no evidence of any transmission by the Appellant on 2 February, 8 July or 14 July 2015 which came within the definition of “child pornography material” in s.473.1 of the Code.

2. Ground 2 - His Honour misdirected the jury in relation to the fault element which the Crown was required to establish with respect to s.474.19 of the Code, namely that the Appellant was reckless whether any material transmitted by him was “child pornography material”.

3. Ground 3 - His Honour misdirected the jury in relation to the drawing of any inference concerning the Appellant’s state of mind from the whole of the material contained within Exhibit B.

4. Ground 4 - His Honour failed or refused to direct the jury, adequately or at all, concerning an available and rational alternative inference which could be drawn from the features of the communications between the Appellant and the assumed police identity in Exhibit B, the features of which the Crown relied upon to establish the Appellant’s recklessness.

The Course of the Trial

6. At the commencement of the trial, the Crown presented an Indictment containing six counts. There were three principal charges of using (on 2 February 2015, 8 July 2015 and 14 July 2015) a carriage service to transmit child pornography material contrary to s.474.19(1) of the Code (Counts 1, 3 and 5) and three alternative charges of using a carriage service in such a way that a reasonable person would regard that use as being menacing, harassing or offensive, contrary to s.474.17(1) of the Code (Counts 2, 4 and 6).

7. Upon arraignment, the Appellant pleaded not guilty to each of Counts 1, 3 and 5, but guilty to each of the alternative charges in Counts 2, 4 and 6. The trial then proceeded on Counts 1,3 and 5.

8. The trial was brief. There was no dispute that the Appellant had engaged in 67 online communications with a person described as “CEIU16”. The Appellant admitted relevant facts relating to those transmissions (Exhibit A).

9. The only facts in issue were whether the transmissions relied upon by the Crown (that is, the identified portions of the chats on 2 February, 8 July and 14 July 2015) contained “child pornography material” and, if so, whether the Appellant was reckless as to that fact.

10. Printouts of the website communications and transcripts of the Yahoo! Messenger chats were tendered, without objection, and received as evidence in the trial (Exhibit B). Brief oral evidence was given by one witness, the police officer who had acted as “CEIU16” (Detective Senior Constable James Gatward).

11. At the conclusion of the Crown case on 12 September 2016, application was made by counsel for the Appellant for a directed verdict of not guilty on each of Counts 1, 3 and 5. Submissions were made in respect of that application on 12 and 13 September 2016. The application was refused by the trial Judge on the morning of 14 September 2016. Addresses and summing up followed on that day with the jury returning guilty verdicts on each of Counts 1, 3 and 5 on 15 September 2016.

12. The Appellant did not give evidence at the trial.

The Crown Case

13. The following factual narrative arises from the undisputed evidence at the trial.

14. On 19 March 2012, the Appellant registered with the website “motherless.com” using the online identity of “rubenthorn”.

15. On 12 November 2014, the Appellant contacted the identity “CEIU16” on the website “motherless.com”.

16. Between 12 November 2014 and 8 July 2015, the Appellant engaged in messaging exchanges using the identity “rubenthorn” on “motherless.com”, Yahoo!mail, Yahoo!Messenger and Skype with the online identity “CEIU16” and “CEIU16”, a person he believed was a 30-year old single mother named “CEIU16”. In reality, “CEIU16” was a police officer using an assumed online identity to communicate with the Appellant over the internet.

17. The Appellant, using the username “rubenthorn” first contacted “CEIU16” online through the website “motherless.com” on 12 November 2014 when he sent an unsolicited message to “CEIU16’s” website profile “CEIU16”. In that first message, the Appellant stated that his “favourite porn” was incest and informed “CEIU16” that he lived just up the road from her in the Hunter Valley.

18. In the communications through the “motherless.com” website not long after their first online meeting, “CEIU16” revealed to the Appellant that she had an 11-year old daughter, “CEIU16A”. The Appellant expressed an immediate interest in wanting to hear more about “CEIU16’s” daughter and invited “CEIU16” to “chat” on the online social network platform, Yahoo!Messenger.

19. Thereafter, the Appellant and “CEIU16” continued their “relationship” for many months through online chats, emails and Skype calls. Most of their exchanges contained sexual content and references. As the relationship continued, “CEIU16” revealed to the Appellant her sexual attraction to her 11-year old daughter, “CEIU16A”. The Appellant expressed his desire to have a relationship of an intimate sexual nature with both mother and daughter.

20. In total, between 24 November 2014 and 8 July 2015, the Appellant engaged in 67 online messaging exchanges with “CEIU16”. In several of the online chats with “CEIU16”, the Appellant described the sexual activities he wanted to engage in with “CEIU16” and “CEIU16A” when they finally met in person.

21. The chats on 2 February, 8 July and 14 July 2015 were alleged to contain “child pornography material” transmitted by the Appellant. Each of those chats formed the basis for Counts 1, 3 and 5 respectively.

22. Reference should be made to portions of the Appellant’s statements in the chats on 2 February 2015, 8 July 2015 and 14 July 2015 upon which the Crown relied in support of Counts 1, 3 and 5. It is not necessary to repeat the entirety of the offensive communications relied upon by the Crown. Extracts from the material will illustrate sufficiently the communications made by the Appellant.

23. With respect to Count 1(on 2 February 2015) the flavour of the Appellant’s messages appears in the following series of messages (AB47):

“rubenthorn: i would like us to be open with our sexual activities and certainly for me there is enjoyment in doing that in front of her [CEIU16A].

rubenthorn: ideally that would lead to her wanting and enjoying the same sexual activities.

CEIU16: that didnt really answer the question.

rubenthorn: as she is 11 I would like to start playing with her as soon as i could.

rubenthorn: leading to full penetrative sex.

rubenthorn: from then on it would all be about pushing her boundaries.

rubenthorn: with sex acts and other kinks.

rubenthorn: both with me and you…”

24. The Appellant continued on 2 February 2015 (at AB48-49) to propose in explicit terms the commission by him of sexual acts upon “CEIU16A” in the presence of “CEIU16” including cunnilingus and masturbation and sexual intercourse with “CEIU16” in the presence of “CEIU16A”. At one point, the Appellant said to “CEIU16” (AB48):

“..if she sees mum enjoying it, that will allow her to see it is a good thing.”

25. Concerning Count 3 (on 8 July 2015), the Appellant and “CEIU16” said (AB129):

“rubenthorn: What do you think about as we talk about being with her?

CEIU16: mainly her.

CEIU16: you?

rubenthorn: Imagining being with her?

CEIU16: yes.

rubenthorn: I think about being with her and you as a threesome.

CEIU16: how would it play out?

rubenthorn: I'd love her and you kissing and touching.

rubenthorn: And I join you.

rubenthorn: Mum teaching her and showing her how.

CEIU16: mmm then what ...

rubenthorn: Then you help her to take me.”

26. The Appellant continued on 8 July 2015 to propose in explicit terms that he have sexual intercourse with “CEIU16A” and that “CEIU16” take steps to prepare the girl for such activity (AB129). The Appellant proposed in graphic terms, sexual activity between himself, “CEIU16” and the child (AB130).

27. With respect to Count 5 (on 14 July 2015), the Appellant proposed “nice cuddles with all of us” with sexual touching of the child then being suggested by him in explicit terms (AB133).

Relevant Provisions in the Code

28. Section 474.19 of the Code is in the following terms:

“474.19   Using a carriage service for child pornography material

(1)    A person commits an offence if:

(a)    the person:

(i)    accesses material; or

(ii)    causes material to be transmitted to himself or herself; or

(iii)    transmits, makes available, publishes, distributes, advertises or promotes material;

(iv)    solicits material; and

(aa)    the person does so using a carriage service;

(b)    the material is child pornography material.

Penalty:  Imprisonment for 15 years.

(2)    To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):

(a)    intention is the fault element for the conduct referred to in paragraph (1)(a);

(b)    recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.

(2A)    Absolute liability applies to paragraph (1)(aa).

Note: For absolute liability, see section 6.2.

(3)    As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.”

29. The term “child pornography material” is defined in s.473.1 of the Code as follows:

“473.1   Definitions

…

child pornography material means:

(a)    material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

(i)     is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii)    is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b)    material the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i)    a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(ii)    a representation of such a sexual organ or anal region; or

(iii)    the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c)    material that describes a person who is, or is implied to be, under 18 years of age and who:

(i)     is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii)     is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(d)    material that describes:

(i)    a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii)    the breasts of a female person who is, or is implied to be, under 18 years of age;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.”

30. The Appellant was charged in Counts 1, 3 and 5 with offences against s.474.19(1)(b) of the Code as to which (under s.474.19(2)(b)) the fault element was recklessness. Section 5.4 of the Code provides:

“5.4   Recklessness

(1)    A person is reckless with respect to a circumstance if:

(a)       he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b)       having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2)    A person is reckless with respect to a result if:

(a)       he or she is aware of a substantial risk that the result will occur; and

(b)       having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

1. The question whether taking a risk is unjustifiable is one of fact.

(4)    If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”

Elements of the Offences in Counts 1, 3 and 5

31. At the commencement of the trial, the Crown Prosecutor provided the jury with a document setting out the elements of each of the offences contained in Counts 1, 3 and 5. Although the trial Judge did not explicitly adopt this document, counsel for the Appellant agreed that it correctly identified and articulated the essential offence elements.

32. It is useful to set out the contents of that document before moving further into the issues in the appeal. The document stated:

“The essential matters in relation to counts 1, 3 and 5 on the Indictment which the Crown must prove beyond reasonable doubt

The Accused, Ian Innes:

1. Intentionally transmitted material;

2. Using a carriage service;

3. The material was child pornography material; and

4. The Accused knew or was reckless as to the fact that the material was child pornography material.

‘Child pornography material’ (in relation to this particular case) means material that describes a person who is, or is implied to be, under 18 years of age and who is either:

(a)    engaged in, or is implied to be engaged in, sexual activity; or

(b)    in the presence of a person who is engaged in, or is implied to be in engaged in, sexual activity,

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.”

33. The trial was conducted on the basis that elements 1 and 2 (as described in this document) were not in issue and that the jury would be satisfied to the requisite standard that those elements had been made out.

34. Elements 3 and 4 were the issues in dispute in the trial.

35. With respect to element 3, the Crown relied upon paragraph (c) of the definition of “child pornography material” in s.473.1 of the Code (see [29] above). The Crown relied upon the descriptions contained in the written text of the Appellant’s messages. This was not a case involving pictorial depictions which might fall within paragraphs (a) or (b) of the definition nor was reliance placed upon paragraph (d) of the definition in s.473.1 of the Code.

36. Accordingly, the Crown document (at [32]) drew attention to paragraph (c) of the definition of “child pornography material”.

37. There was no issue at the trial that the material was such that reasonable persons would regard it as being, in all the circumstances, offensive. Counsel for the Appellant acknowledged this aspect at various points including his closing address to the jury (AB230).

38. With respect to Count 1, the Crown relied upon each of paragraphs (c)(i) and (ii) in the definition of “child pornography material”. It was said that the transmitted material related both to sexual activity with an 11-year old child and sexual activity between the Appellant and “CEIU16” in the presence of the child (see [23]-[24] above).

39. With respect to each of Counts 3 and 5, the Crown relied upon paragraph (c)(i) only concerning sexual activity with the child (see [25]-[27] above).

40. There were two live issues at the trial.

41. As will be seen, counsel for the Appellant advanced an argument at the conclusion of the Crown case that paragraph (c) of the definition of “child pornography material” could not extend to future activity. This contention was rejected by the trial Judge who found that the Appellant had a case to answer on each of Counts 1, 3 and 5. Despite this ruling, the Appellant advanced a similar argument to the jury, submitting that the definition did not extend to what were described as “future fantasies”. Clearly, the jury rejected this argument (to the extent that it was an issue for the jury at all) in returning verdicts of guilty on Counts 1, 3 and 5.

33. The second live issue at the trial concerned the need for the Crown to prove beyond reasonable doubt on each of Counts 1, 3 and 5, the fourth element that the Appellant was reckless with respect to the circumstance that the material transmitted by him was “child pornography material”: ss.5.4(1) and 474.19(1)(b) and (2)(b) of the Code.

Ground 1 – Claim of Error of Law in Failing to Direct Verdicts of Acquittal on Counts 1, 3 and 5

43. The Appellant contends that the trial Judge should have directed verdicts of not guilty on Counts 1, 3 and 5 and that his Honour erred in declining to do so on 14 September 2016 (AB14-18). It was argued for the Appellant at trial that the conduct alleged against him did not fall within paragraph (c) of the definition of “child pornography material” in s.473.1 as the provision was expressed in the present tense and that what was alleged against the Appellant all related to future sexual activity. It was argued that the wording in paragraph (c) of the definition did not include the prospect of future criminal conduct.

44. The trial Judge refused the application for directed verdicts of acquittal, concluding his reasons in the following way (AB18):

“When one looks at the definitions to which I have referred contained within the dictionaries, I am of the view that the particulars relied upon by the Crown are preliminary but are in the course of engaging in sexual activity. The Crown is not restricted only to the current physical activity to attract the benefit of the definition.

The use of the word ‘is engaged in’, in my view, involves all aspects of the sexual activity, which includes the preparation. It would be well open to the jury to come to the view that the representation or the transmissions made by the accused were in preparation and as a part of the sexual activity.

Hence, I am of the view it is open for the jury to come to the conclusion that he was ‘engaged in’. The application is refused.”

Submissions of Appellant

45. Mr Pappas, counsel for the Appellant (who also appeared at trial), submitted that the conduct of the Appellant disclosed in the evidence fell outside the terms of paragraph (c) of the definition of “child pornography material’ in s.473.1 so that he was not, as a matter of law, liable to conviction for the offences contained in Counts 1, 3 and 5.

46. Mr Pappas submitted that the proper construction of paragraph (c) of the definition ought see it confined to what counsel contended was its plain and ordinary meaning which concerned current activity only as revealed by use of the present tense.

47. Counsel sought to contrast s.474.19 and paragraph (c) of the s.473.1 definition of the Code with s.474.25C which provides:

“474.25C    Using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16

A person (the first person) commits an offence if:

(a)   the first person does any act in preparation for doing, or planning to do, any of the following:

(i)    causing harm to a person under 16 years of age;

(ii)    engaging in sexual activity with a person under 16 years of age;

(iii)    procuring a person under 16 years of age to engage in sexual activity; and

(b)     the first person is at least 18 years of age; and

(c)    the act is done using a carriage service.

Penalty:  Imprisonment for 10 years.

Example:  A person misrepresents their age online as part of a plan to cause harm to another person under 16 years of age”

48. Whilst acknowledging that s.474.25C did not exist in the Code at the time of these events in 2015 (having only commenced on 22 June 2017), Mr Pappas submitted that the temporal contrast upon which he relied was illustrated by the enactment of s.474.25C which extended to the commission of an act “in preparation for doing, or planning to do” a specified thing.

49. The Appellant submitted that the trial Judge adopted a strained and artificial understanding of the expression “engage in sexual activity” as including preparation to engage in sexual activity. It was argued that this interpretation did not accommodate the present tense used in the definition of the verb “to be” and utilised what was said to be the collateral and expansive notion of preparing to engage in a sexual pose and the compound expression “a sexual pose or sexual activity”.

Crown Submissions

50. The Crown submitted that the trial Judge did not err in declining to direct verdicts of acquittal. It was submitted that material with respect to each of Count 1, 3 and 5 fell within the definition of “child pornography material” in s.473.1 of the Code.

51. Whilst acknowledging that part of the trial Judge’s reasoning for refusing the application for directed verdicts was flawed, the Crown submitted that the decision to refuse the application was correct and that error of law had not been demonstrated.

52. The Crown submitted that the Court should construe s.474.19(1) and the definition of “child pornography material” in s.473.1 of the Code by considering the ordinary and grammatical meaning of the words in question having regard to their context and legislative purpose. The interpretation which would best achieve the purpose or object of the legislation was to be preferred to any other interpretation: s. 15AA Acts Interpretation Act 1901 (Cth).

53. It was submitted that the purpose of the legislation is to shield the community from injury and children from exploitation and the prevention of harm: McEwen v Simmons (2008) 73 NSWLR 10; [2008] NSWSC 1292 at 14-15 [14]–[15].

54. The Crown submitted that s.474.19(1) criminalises the transmission of child pornography material through the use of a carriage service because such conduct poses a threat or risk of harm to children. It was submitted that the legislative purpose, and the purpose of offence provisions such as s.474.19(1), is not restricted to combating the direct sexual exploitation and abuse of children but extends to preventing forms of conduct that do not involve the abuse or exploitation of children but which may fuel demand for such material: McEwen v Simmons at 17 [26].

55. In the present case, where each of the alleged offences was said to have been committed by the Appellant by the transmission of text based chats, the Crown relied upon that part of the definition dealing with `, as set out in paragraph (c)(i) and (ii) of the definition in s.473.1.

56. On its proper construction, the Crown submitted that the subject chats transmitted by the Appellant were within the ambit of that part of the definition of “child pornography material” contained in paragraph (c)(i) and (ii). It was submitted that the references in paragraph (c)(i) and (ii) to a “…a person …who is …engaged in sexual activity…” did not restrict the definition to a description framed in the present tense.

57. It was submitted that the relevant part of the definition of “child pornography material” is not restricted simply to transmission of material which describes sexual activity occurring at the present time. The Appellant’s contention would lead to an unduly narrow and restrictive interpretation that would be contrary to the purpose of the legislation and which would lead to absurd and unintended results: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 321 (Mason and Wilson JJ).

58. The Crown submitted that the principle of statutory construction that penal statutes are to be construed strictly has little bearing on the interpretation of paragraph (c) of the definition in s.473.1. The principle is a rule of last resort and one which must give way to a Court’s duty to ascertain and give effect to the purpose of the legislature as expressed in the language enacted by Parliament: Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 at 576 (Gibbs J). Where, as the Crown submitted applies here, the purpose and intention of the legislation is clear the principle cannot unduly restrict the ambit of the relevant offence and definition provisions.

59. The Crown submitted that absurd results would flow from the Appellant’s interpretation of paragraph (c) of the definition of “child pornography material” in s.473.1 of the Code.

60. Accordingly, the Crown submitted that error of law had not been demonstrated as alleged in the first ground of appeal.

Decision

61. This ground of appeal asserts, in substance, that the Appellant had no case to answer on each of Counts 1, 3 and 5. The directed verdict of acquittal is a mechanism for taking a case away from the jury because, as a matter of law, a conviction is not open: The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 at 194 [26] (French CJ). This ground alleges error of law. Accordingly, the Appellant may appeal as of right on this ground: s.5(1)(a) Criminal Appeal Act 1912.

62. The question whether there is a case to answer or a prima face case is a question of law. The power and duty of a trial Judge to direct a verdict of not guilty where there is no case to answer is an expression of the Judge’s power and duty to decide questions of law: The Queen v LK at 195 [29].

63. The test to be applied by a trial judge on an application for verdict by direction in a criminal jury trial is not in doubt. It is the duty of a trial judge to direct a verdict of not guilty if the evidence cannot sustain a guilty verdict or if there is no evidence upon which a jury could convict: Doney v The Queen [1990] 171 CLR 207; [1990] HCA 51 at 212; The Queen v LK at 195 [29]. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. A verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen at 214-215.

64. A trial Judge has no power to direct a verdict of acquittal merely because the Judge had formed a view that a guilty verdict would be unreasonable or, using the terminology previously adopted, unsafe and unsatisfactory: R v R (1989) 18 NSWLR 74 at 85; Doney v The Queen at 214-215.

65. In a case based on circumstantial evidence, at the close of the prosecution case, the Crown need only show that an inference consistent with guilt reasonably arises on the evidence. The Crown does not have to prove that this was the only inference that arose or that there was no inference arising from the evidence inconsistent with guilt: R v JMR (1991) 57 A Crim R 39 at 43-44. It does not matter at this point how tenuously that inference arises provided that it was reasonably open on the evidence: R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 at 130 [127]; Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746 at [14].

66. This ground of appeal raises a question of statutory construction.

67. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ,McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted):

“[69]   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

…

[78]   … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

68. In the construction or interpretation of a statute the object of the Court is to ascertain, and give effect to, the will of Parliament: Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29 at 418 [8] (Gleeson CJ).

69. Further assistance is provided by the judgment of Bathurst CJ (Beazley and Basten JJA agreeing) in Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318; [2012] NSWCA 296 at 329 [39]-[40]:

“39      As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26]; Roadshow Films Pty Limited v iiNet [2012] HCA 16 at [22]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48].

40      Further, although the legislative purpose in enacting the provision and the mischief to be remedied are factors which are to be taken into account in construing the provision in question (see the cases cited above; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; Interpretation Act 1987 s 33, s 34) it is not for a court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose: Australian Education Union supra at [26] and the cases there cited; Alcan supra at [46].”

70. In Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4, Crennan, Kiefel and Bell JJ, in the course of construing a penal provision, said at 202 [309]:

“The modern approach to interpretation, particularly in the case of general words, requires that the context be considered in the first instance and not merely later when some ambiguity is said to arise [K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315 per Mason J; [1985] HCA 48]. Such an approach was confirmed as correct in Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355 at 381 [69]]. Whilst the process of construction concerns language, it is not assisted by a focus upon the clarity of expression of a word to the exclusion of its context.”

71. I accept the Crown submission that the legislation is intended to be of wide ambit and to cover a wide range of conduct and material. So much is evident from the fact that the offences may be committed even though no real child victims exist and even though fictional or fantasy characters may be involved. The intended breadth of the legislation is confirmed by the Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No.2) 2004 (Cth) which said of the definition of “child pornography material” in s.473.1 (emphasis added):

“Child pornography material is defined to cover a range of material including that which depicts or describes persons under 18 engaged in a sexual pose or sexual activity, or in the presence of a person who is engaged in a sexual pose or sexual activity. The definition also covers material the dominant characteristic of which depicts for a sexual purpose the sexual organs, the anal region or the breasts (in the case of a female) of a person who is under 18. Paragraphs (a) and (b) of the definition deal with ‘depictions’ and are intended to cover all visual images, both still and motion, including representations of children, such as cartoons or animation. Paragraphs (c) and (d) deal with ‘descriptions’ and are intended to cover all word-based material, such as written text, spoken words and songs.

Material that does not necessarily contain actual images of children is covered by the definition, because although it may not directly involve an abused child in the production, its availability can fuel further demand for similar material. This can lead to greater abuse of children in the production of material to meet his demand.”

72. I am satisfied that a proper foundation exists for the Court to consider extrinsic material in the form of the Explanatory Memorandum to the 2004 Act: s.15AB Acts Interpretation Act 1901 (Cth).

73. The legislative purpose or object of the provisions contained in s.474.19 and the definition of “child pornography material” in s.473.1 would not be promoted by the narrow construction advanced for the Appellant.

74. The Explanatory Memorandum for the 2004 Act was referred to by Adams J in McEwen v Simmons at 14 [12] when construing the definition of “child pornography material” in s.473.1 of the Code. Adams J referred as well (at 14-15 [14]-[15]) to Holland v R where Malcolm CJ referred to the policy behind the legislation as including “shielding the community from injury and children from exploitation and the prevention of harm”.

75. As Adams J said in McEwen v Simmons at 17 [26]:

“Although the primary purpose of the legislation is to combat the direct sexual exploitation and abuse of children that occurs where offensive images of real children in various sexual or sexually suggestive situations are made, it also is calculated to deter production of other material – including cartoons – that, as the explanatory memorandum puts it, can fuel demand for material that does involve the abuse of children.”

76. It is helpful to refer as well to the judgment of Roberts-Smith JA in Holland v R at 265 [189] (which concerned the Customs Act 1901 (Cth)) with his Honour’s observations having equal application to the provisions in s.474.19 and the definition of “child pornography material” in s.473.1 of the Code:

“It is plain that the evil to which s 233BAB of the Customs Act was directed is the importation of child pornography, whether in the form of literature or photographs. The underlying purposes were both to shield the community from injury and protect children from exploitation. It would be inconsistent with the legislative purpose, and create an unnecessary anomaly, were the section to be construed to allow proscription of pictorial publications of serious child pornography as tier 2 goods but not allow such proscription of descriptive texts of serious child pornography. The terms ‘describe’ or ‘depict’ are not defined in the Customs Act. The ordinary meaning of the word ‘depict’ includes ‘describe’. There is no textual constraint in the Act which would require the word ‘depict’ to be construed in a restricted sense to exclude ‘describe’.”

77. This Court has applied statements made in Holland v R which emphasised the application of legislation such as the relevant provisions of the Code to material in the form of literature or photographs, with the underlying purpose being to shield the community from injury and protect children from exploitation: Gent v R (2005) 162 A Crim R 29; [2005] NSWCCA 370 at 39 [41]-[42].

78. These statements support the Crown argument that s.474.19 and paragraph (c) of the definition of “child pornography material” in s.473.1 should not be narrowly confined so as to apply only to written descriptions expressed in the present tense.

79. I accept the Crown submission that when read as a whole, it is apparent that the principal present tense verb used in paragraph (c) of the definition is the word “describes”, which relates to the character or effect of the material in question. As the Crown observed, the Appellant’s submissions acknowledged the importance and effect of the present tense of the verb “describes” for the purpose of paragraph (d) of the s.473.1 definition, but fails to acknowledge its relevance in the context of paragraph (c). I accept that the word “describes” is framed in the present tense so as to achieve harmonious integration with the terms of s.474.19(1)(a) when the definition is read with, and imported into, the offence provision. The relevant physical element of conduct in this case of “transmits”, within s.474.19(1)(a)(iii), is framed in the present tense because it identifies a type of prohibited conduct that must not be engaged in by a person who uses a carriage service.

77. I accept the Crown submission that the words in paragraph (c) of the s.473.1 definition “…a person…who is…engaged in sexual activity…” are used so that they read fluently and consistently with the terms “transmits” and “describes”. Although the words “is” and “engaged in” are framed in the present tense, the words encompass present descriptions of past, present and future sexual activity. The words refer to the state of the thing described rather than a description of an action occurring at a point in time. A present description of a subjunctive future activity is within the definition.

78. As the Crown submitted, no intention element is required in respect of the sexual activity described. It is the act of transmitting (by use of a carriage service), a description of a child engaged in sexual activity that is prohibited, regardless of whether the event is real, has occurred, is occurring or is intended to occur in the future.

79. In this case, the Appellant was transmitting material which described what he wished to do sexually to an 11 year old girl (whom he believed did exist) and sexual acts he wished to perform with her mother in the presence of the child as a result of his communications with a person whom he believed to be her mother. To construe the relevant provisions as applying to this scenario would clearly operate to protect a child from sexual exploitation. This construction does not distort the words of the legislation. Rather, it promotes the objects of the legislation and sits comfortably with the proper construction of s.474.19(1) and the definition of “child pornography material” in s.473.1 of the Code.

80. A substantial difficulty with the Appellant’s argument in support of the first ground of appeal is illustrated by the responses to questions asked by Davies J during the hearing in this Court (T4-5, 2 August 2017):

“DAVIES J: Mr Pappas, if your client had used the Internet to describe a sexual act with this child that had taken place in the past, and describe the act, would that fall within the section?

PAPPAS: Yes.

DAVIES J: If he did it as if he was imagining it happening as he typed the words would that fall within the section?

PAPPAS: And gave a description of the sexual act, your Honour?

DAVIES J: Yes.

PAPPAS: Yes, I say so, your Honour, although I think earlier our argument may have been caught up a little with the issue of tense.

DAVIES J: Yes, but if he then described what he wanted to do to her, and described the sexual acts that would be involved in that, would that fall within the section?

PAPPAS: Then the line becomes a little unclear, in my respectful submission, your Honour, it would turn on the facts of the case. If there was a description properly so described of the young person, imagined or not, in future or not, engaging in a sexual act, the answer would be yes, but if it was simply an expression, as I say, however morally bankrupt it might be, of a desire to do something, or to become sexually involved with a young person, without a description describing - and I don’t want to use the word twice in one sentence - but describing the young person engaged in either a sexual pose, or sexual activity, then it would fall.

DAVIES J: But didn’t he here say what he wanted to do, and gave a description of certain acts that he wanted to take place with this child?

PAPPAS: He did, your Honour, and in my respectful submission that falls barely, but falls outside the definition, because describing what he would want to do is not the same as describing the young person involved in either a sexual pose, or a sexual act.

DAVIES J: Why isn’t he describing a young person engaged in the act as something that he wanted to happen?

PAPPAS: Because that does some damage to, and it’s perhaps not the best way of putting it, the language of the definition. To speak of someone being engaged in a sexual activity requires there to be some degree of - and description, of course, describing someone engaged in sexual activity requires there to be some descriptor of their engagement. It’s not enough simply to talk about the possibility of it or the intention of doing it. Your Honour will see that “is engaged in” occurs in subs (c)(i) and in subs (c)(ii) in two instances in each case. It’s an important expression at least so far as the drafters of the legislation were concerned.”

84. I accept the Crown submission that an absurd result would flow from the Appellant’s approach, in particular when regard is had to the purpose or object of the legislation. Written descriptions of a child engaging in sexual activity in the present tense would constitute an offence whereas the same sexual activity described with a grammatical change of tense, would not.

85. On the Appellant’s construction, a person who transmitted material describing a dream or an imaginary or fictitious scenario involving a child engaging in sexual activity may or may not commit an offence, depending on the tense used by the author. There is no reason why the tense employed should lead to a result that one description (expressed in the present tense) may be caught by the legislation and fall squarely within the scope of the purpose of the legislation whilst the same description (expressed in a future or conditional tense) would not. I accept the Crown submission that the degree of moral culpability is the same in each case and the person would be equally blameworthy for either transmission.

86. The Appellant’s argument is not assisted by reference to the later enactment of s.473.25C. This was not an amendment to s.474.19 or s.473.1, but the enactment of a new section.

87. Mr Pappas did not contend that the presence of s.474.25C meant that future acts were not embraced by the definition of “child pornography material” in s.473.1 (T5, 2 August 2017). Rather, he submitted that it was necessary to look at all provisions in this part of the Code together and that the enactment of s.474.25C assisted the construction question in a manner which supported the Appellant.

88. I do not consider that principles of statutory construction by reference to the later enactment of this separate provision assists the Appellant in this case: Pearce and Geddes, “Statutory Interpretation in Australia”, 8th ed, 2014, Lexis Nexis, paragraph 3.33-3.34.

89. I accept the submissions of the Crown with respect to this ground. The Appellant had a case to answer at trial on each of Counts 1, 3 and 5. The fact that the trial Judge’s reasoning in refusing the no case submission may have been imperfect does not assist the Appellant.

90. The first ground of appeal should be rejected.

Ground 2 – Claim of Misdirection Concerning the Fault Element of Recklessness

Submissions of the Parties

91. Mr Pappas submitted that the trial Judge misdirected the jury with respect to the fault element of recklessness applicable to alleged offences under s.474.19(1)(b) of the Code.

92. He noted that the parties agreed at trial that the recklessness element related only to the question whether the material transmitted was “child pornography material”. Counsel submitted that, notwithstanding that agreement, the trial Judge gave the jury further directions about recklessness which led to a joint application for redirections. Mr Pappas contended that the directions given were erroneous and that further directions were not given by the trial Judge.

93. The Crown submitted that, when the trial Judge’s directions were considered in total, no misdirection occurred and no miscarriage of justice arose.

94. Whilst accepting that the initial directions concerning the fault element of recklessness were less than clear, the Crown submitted that further directions given by the trial Judge corrected any misstatement or confusion with the jury being directed correctly with respect to recklessness.

95. The Crown submitted that it was significant that no further redirection was sought by the Appellant’s counsel after the trial Judge had given additional directions.

Decision

96. As noted earlier (at [33]-[42]), the issues in contest at this trial were quite limited. There was no factual dispute with respect to the evidence adduced by the Crown. The content of the communications transmitted by the Appellant was clear.

97. The live issues for the jury at the trial were:

1. whether the Crown had proved beyond reasonable doubt that the Appellant transmitted “child pornography material” on the occasions alleged in Counts 1, 3 and 5;

2. whether the Crown had proved the fault element of recklessness with respect to each of these counts.

98. Submissions made to the jury on behalf of the Appellant with respect to the issue at [97](a) tended to repeat submissions made to (and rejected by) the trial Judge on the application for directed verdicts of acquittal. To an extent, those submissions appeared to canvas the trial Judge’s ruling on that aspect by inviting the jury to find for the Appellant as the material transmitted related to future sexual activity only. As Davies J observed at the hearing in this Court, it would not be surprising if the jury was confused by this approach (T18, 2 August 2017).

99. With respect to the issue at [97](b), it is appropriate to refer to closing submissions made to the jury by the Crown and counsel for the Appellant.

100. The Crown addressed the jury on the recklessness element by reference to inferences to be drawn from the totality of the evidence, including what had been communicated by the Appellant over the period of time covered by the counts (AB225ff). The Appellant had expressed concern at one stage to “CEIU16” saying “it was in the back of my mind that you could be in the police…that’s my fear” (AB120, AB227). It was submitted that the Appellant displayed a “degree of tentativeness” and “some guardedness” in some of his messages (AB228). The Crown reminded the jury of the importance of context, submitting (AB229):

“All of that context is important because, like I said at the beginning of this submission, I can't present you with a photograph of what was in the accused's mind at the time of the relevant transmissions, can I? You have to draw a conclusion, or what I expect you'll be directed upon as being an inference, you have to draw an inference that the accused, at the time of each of the relevant transmissions of child pornography material, on the Crown case, to February 8 July and 14 July, that at those relevant times he either knew or was reckless as to the fact the material was child pornography material. And all of the contexts that I've just taken you to is relevant to the drawing of the inference that the Crown urges.”

101. Early in his closing address to the jury, Mr Pappas referred to the live issues in the trial (AB231):

“What you need to be satisfied of in reality in this case is two things, firstly that the material transmitted was child pornography material, I've touched on that for a moment. Secondly, that this man, in making those transmissions, either knew or was reckless as to the quality of that material, that is, whether it was child pornography material. And in both instances, as his Honour will tell you, I'm certain, the law requires you to be satisfied beyond a reasonable doubt.”

102. Mr Pappas addressed on the recklessness issue, inviting the jury to consider what was said to be an alternative explanation (AB232-233):

“Well, ask yourself is that the only explanation for what is pointed to by the Crown as some hiatus in communication, some reticence about giving out details because the Crown, again quite properly, pointed to this passage where the accused says, "That's my primary concern given what we are into. It's not something you discuss with many people." Now, I hope I'm paraphrasing that fairly accurately. Yesterday you'll recall that the officer in charge of the investigation said that the assumed identity had a profile and one of the factors or one of the features, if you like, of that profile was an assertion that she, and I'll use the feminine form for the assumed identity, had an interest in incest. Well, we all know what incest is. It's not something people talk about on a day-in and day-out basis as some basis of an interest of theirs. It's a taboo subject in our society. It's a taboo subject in very many societies.

And ask yourself, ladies and gentlemen, when you're asked to draw this conclusion beyond a reasonable doubt from the carefully dissected material in that folder, can you really conclude that that points to, to the requisite level of satisfaction, an awareness that what he was transmitting was child pornography material and a determination to go ahead anyhow, or does it point more likely to a real - I hesitate to say shyness is probably a better word, shyness, reticence - awareness that what he was discussing on this internet chat facility was a taboo subject and something which, if it is carried out, is a crime and they are, you might think, very good reasons to be reluctant to give out details, reluctant to engage in a ready and abandoned fashion a discussion in what he thought and what the assumed identity lead him to believe was a common interest in this taboo subject.

Now, when you start to analyse the material like that, in my submission it becomes even more apparent to you how difficult it would be to look into, as it were, this man's mind because that's really what the Crown's asking you to do, infer from the circumstances what the state of his mind must have been and to infer beyond a reasonable doubt that it must have been ah-ha, I have a substantial suspicion that what I'm sending is child pornography material, but I'm going to send it anyhow, and if there's another explanation in my respectful submission to you, ladies and gentlemen, and it's a reasonable explanation, that would mean you could not conclude beyond a reasonable doubt that he was reckless.”

103. His Honour gave the following directions concerning recklessness with respect to Count 1 (AB245-246):

“As to recklessness, a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. And that the recklessness is a fault element for a physical element of an offence committed with the intention, knowledge or recklessness will satisfy the fault element.

So, members of the jury, the Crown must prove that the material was child pornography material and prove that beyond reasonable doubt. And that the material that the Crown relies on described a person who is, or is implied to be, under 18 years of age, and who is engaged in, or is implied to be engaged in, a sexual pose or activity, whether or not in the presence of other persons. Or (2) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity. And with the definitions to which you have been referred, you must be satisfied beyond reasonable doubt of the accused's intention and of the recklessness in relation to the transmission of the material.

And this, of course, I will remind you, that the element, the fourth element, may be intention, may be knowledge, may be recklessness. And again I remind you that recklessness with respect to a circumstance that if he or she is aware of a substantial risk the circumstances exist or will exist, having regard to the circumstances knowing it is unjustifiable to take the risk, and the person is reckless with respect to a result if he or she is aware of a substantial risk that a result will occur, and that in regard to the circumstances, knowing it is unjustifiable to take the risk, the question of whether taking a risk is unjustifiable is not a fact, and that recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”

104. His Honour repeated these directions concerning recklessness with respect to Counts 3 and 5 (AB247-249).

105. In the absence of the jury, both the Crown and Mr Pappas sought clarification to be given to the jury concerning recklessness in the circumstances of the trial (AB256-259).

106. The trial Judge gave the jury further directions concerning recklessness which included the following (AB260):

“The question is whether the accused knew or was reckless as to the fact the material was child pornographic material. I have taken you to the question of knowledge and now I have just taken you to the question of recklessness. I remind you that recklessness is a fault element; that the proof of intention, knowledge or recklessness will satisfy that fault element.”

107. In the absence of the jury, Mr Pappas raised the following issues (AB261-262):

“PAPPAS:….Your Honour has still not directed, in accordance with law, I hesitate to say, because your Honour has still conflated the required circumstance of recklessness with the definition of “recklessness”, that part of it which does not apply to a circumstance, and your Honour has not redirected in relation to the explanation which I invited your Honour to redirect on, the explanation –

HIS HONOUR: I’m sorry, you’re quite right.

PAPPAS: -- for the alternative inference. It’s not - I just wonder whether it’s necessary that it be done this afternoon. I know your Honour has told the jury that they can go home.

HIS HONOUR: I'll just enquire whether they're still there. Gentlemen, what do you say I should add or subtract in relation to recklessness?

PAPPAS: Your Honour merely needs to say this, that the only two issues that are live in the case are whether the material was child pornography--

HIS HONOUR: Yes.

PAPPAS: --and your Honour has dealt with that, and whether the accused was reckless as to that fact. If they can't get over reckless, then they're not going to get to intention in any event.

HIS HONOUR: Thank you.

PAPPAS: That simplifies it, and then your Honour could conveniently segue into the explanation for the breaks in the communication and the reticence of my client to provide his details by reference to what he said, which was they were discussing a taboo subject which, in any event, would have been against the law, that is, the engagement in that subject, and that might seem to the jury a viable alternative hypothesis. If they can't reject that, then they could not conclude as invited by the Crown.

HIS HONOUR: But as to the definition of "recklessness"?

PAPPAS: It's set out in 5.4.1 because that's the only bit that relates to a circumstance. Your Honour has said that--

HIS HONOUR: That's what I thought.

PAPPAS: --but the trouble is your Honour has gone beyond that at times.”

108. The jury returned to Court and his Honour gave the following additional directions (AB263-264):

“HIS HONOUR: Members of the jury, I overlooked when explaining to you earlier in relation to the matters that Mr Pappas put in relation to the inferences that you can draw and the rational inferences. What Mr Pappas had in fact put to you was that because of the lengthy breaks in communication and the reticence of the accused in giving particulars and the taboo subject are matters which you can all draw an inference in the areas to which Mr Pappas took you to in relation to those matters as being an explanation or an inference that you can draw as to material the Crown asks you to draw the inference adverse to the accused. The Crown took you to, I think, that which was contained in 78.3 [of Exhibit B] and Mr Pappas' submission to you in relation to that, and the matters of inferences and rational inferences that I have directed you upon.

… I will just repeat to you that the recklessness with which we are concerned is the fault element through the circumstances referred to in the offence, and I remind you that the two matters at issue in this instance are whether the material was child pornographic material and whether the accused was reckless in relation to it, in relation to it being child pornographic material.

So I will just remind you that the matters that Mr Crown has referred you to of the intention to transmit material is admitted; "using carriage service" is admitted; that the material was child pornographic material is not admitted; and that the accused knew or was reckless to the fact the material was child pornographic material is not admitted. They are the matters to which you must apply yourselves.

Again, I am reminding you, members of the jury, that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist; and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

That completes that, Mr Pappas?

PAPPAS: I'm sorry, your Honour?

HIS HONOUR: Is there anything further in relation to that?

PAPPAS: Only one matter, your Honour. Your Honour will recall that in dealing with the alternative inference that might arise from the manner of correspondence between the accused and the fictitious online person, I did raise the question of incest and the fact that not only was it a taboo subject--

HIS HONOUR: I thought I mentioned that.

PAPPAS: Not in terms, your Honour, I'm afraid.

HIS HONOUR: Members of the jury, I thought I just mentioned that that was the area that Mr Pappas had mentioned, that because of those subject matters were matters of which you could draw inferences as he had submitted to you.

If you would please retire and you can start considering your verdict in the morning.”

109. No further application was made for directions concerning recklessness either on the afternoon of 14 September 2016 or the morning of 15 September 2016.

110. The trial Judge’s direction to the jury that proof of intention, knowledge or recklessness could satisfy the requisite fault element of recklessness in respect of the physical element of circumstances under s.474.19(1)(b) was in accordance with the express provision in s. 5.4(4) of the Code and did not involve any error.

111. It is noteworthy that both knowledge or recklessness of the quality of the transmitted material as “child pornography material” had been referred to by Mr Pappas in his closing address to the jury as being the requirement to prove the relevant fault element (see [101] above).

112. It is the case that the directions to the jury concerning recklessness were somewhat protracted, extending from the original directions to further directions given at the request of counsel.

113. However, the trial Judge’s directions, as to the means by which recklessness could be proved by establishing two higher forms of fault on the part of the Appellant (knowledge or intention), were not apt to confuse the jury in this trial.

114. The fact that no further direction was sought on this aspect by the Appellant’s counsel reinforces a conclusion that the issue of recklessness had been left to the jury in an appropriate way.

115. I reject the second ground of appeal.

Ground 3 – Claim of Misdirection to Jury Concerning the Appellant’s State of Mind

Ground 4 – Claim of Error in Directions to Jury Concerning Available and Rational Alternative Inferences Arising From the Evidence

116. It is convenient to consider the third and fourth grounds of appeal together.

Submissions of the Parties

117. In support of these grounds, Mr Pappas submitted that the trial Judge had been asked to direct the jury that the inference of recklessness sought by the Crown was not the only rational inference available based on gaps in the communications between the Appellant and “CEIU16”, and what was said to be the reticence of the Appellant to provide details to “CEIU16” and the Appellant’s contemporaneous explanation for the reticence (that they were discussing incest, a taboo subject) (AB262).

118. It was submitted that the further directions given by the trial Judge were fundamentally confused and confusing.

119. The Crown submitted that the trial Judge gave the jury appropriate directions concerning the drawing of inferences, including a direction that the drawing of the ultimate inference of recklessness required satisfaction beyond reasonable doubt that it was the only reasonable inference to be drawn in the circumstances (AB250-251).

120. The Crown submitted that Rule 4 Criminal Appeal Rules was an impediment to the third ground of appeal being raised in this Court.

121. With respect to the fourth ground of appeal, the Crown submitted that the question whether the Crown had proven beyond reasonable doubt that the Appellant was reckless as to the fact that the material he transmitted was “child pornography material” was a question of fact for the jury’s determination.

122. Although the trial Judge was required to formulate and give directions in the context of the facts of the case and to fairly and properly sum up the Appellant’s case, the Crown submitted that his Honour was not required to direct the jury that arguments raised on behalf of the Appellant were rational alternative inferences to that which the Crown argued was the only reasonable conclusion in all the circumstances. It was a matter for the jury to decide whether any suggested inference was a reasonable inference.

123. The Crown submitted that the trial Judge had given the jury necessary and appropriate directions, including directions sought by the Appellant. No further direction had been sought after that.

Decision

124. To the extent that Ground 3 stands on its own, I note that the trial Judge gave appropriate directions concerning the drawing of inferences and that no further direction was sought at trial on behalf of the Appellant.

125. If Ground 3 is considered as a sub-set of Ground 4, then attention will be given to the latter ground of appeal.

126. The trial Judge gave the jury orthodox directions concerning inferences (AB250-252). His Honour referred to the defence submission concerning inferences (AB253-254):

“Then the other issue that Mr Pappas put to you was the issue of recklessness, with Mr Pappas putting the Crown says to you the only inference you can draw is that of the explanation of recklessness and Mr Pappas puts to you. … It may not be the only inference you can draw in that there is the possibility of shyness, unawareness and another explanation may well be a reasonable explanation which would not enable you to be satisfied to draw the inference that the Crown asks you to draw.”

127. As noted earlier (at [107]), The Appellant’s counsel sought a further direction on the topic of inferences in which the trial Judge would refer to the taboo subject of incest (AB256-257, 261-262). In response to that application, the trial judge gave the jury the direction (AB262-263) set out at [108] above.

128. No application for further directions was made thereafter by the Appellant’s counsel.

129. It was for the Crown to prove beyond reasonable doubt, on each of Counts 1,3 and 5, that the Appellant was reckless with respect to the circumstance that the transmitted material was “child pornography material”. This element could be proved if the Appellant was aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances known to him, it was unjustifiable to take the risk: s.5.4(1) of the Code. The question whether taking a risk was unjustifiable was one of fact: s.5.4(3).

130. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element: s.5.4(4).

131. The effect of s.5.4(1) and (4) was that the greater concepts of intention or knowledge could satisfy the requirement of recklessness if the evidence supported a finding to that effect.

132. Both the Crown and counsel for the Appellant addressed the jury concerning inferences which could or ought be drawn with respect to recklessness.

133. It should be kept in mind that this was a short trial. The closing addresses for the Crown and the Appellant were made on the same day as the trial Judge’s summing-up to the jury. It was not necessary for his Honour to repeat in great detail the arguments which the jury had heard being made by counsel earlier that day.

134. His Honour gave the jury appropriate directions concerning inferences and reminded the jury, in summary form, of the arguments of counsel concerning inferences relating to the element of recklessness. His Honour gave the jury appropriate directions with respect to recklessness.

135. The trial Judge was not obliged to say more than he did. It was not for the trial Judge to endorse an inference suggested by the defence as being a rational one. That was a matter for the jury to consider as an issue of fact at the trial.

136. The trial Judge made sufficiently clear what the competing arguments were on this aspect, keeping in mind that the jury had heard the full submissions of counsel earlier that same day. No error has been demonstrated nor has the Appellant established any miscarriage of justice at trial.

137. In any event, and with the greatest of respect, it is difficult to understand how the proffered alternative hypothesis was capable of being considered a reasonable alternative hypothesis that assisted the Appellant. This point is fortified by the following discussion before this Court (T7-8, 2 August 2017):

“JOHNSON J: What’s the alternative hypothesis which you put to the jury? Just take me to the part of this, please, as to how you raise this as an issue in the trial.

PAPPAS: At about line 40, “and ask yourselves … this taboo subject”. [counsel referred to the submissions set out at [102] above]

JOHNSON J: It was a taboo subject because he was articulating graphic sexual activity with an eleven-year-old girl indicating with some specificity what he had in mind, that’s right?

PAPPAS: Yes, I don’t think I can shy away from any of that, your Honour.

JOHNSON J: How is this an alternative hypothesis?

PAPPAS: Because to talk about incest in a way as disclosed was firstly morally and socially unacceptable.

JOHNSON J: That would be incest on the part of the mother.

PAPPAS: Yes.

JOHNSON J: It wouldn’t be incest on his part.

PAPPAS: No, but they were--

JOHNSON J: It would be sexual offences against a child.

PAPPAS: That’s so, your Honour. But they were in fact talking - well at least he thought he was talking to the mother about an incestuous relationship with her and her daughter involving the three of them; that’s part of the answer. Secondly--

JOHNSON J: That doesn’t extend to him.

PAPPAS: No.

JOHNSON J: It wouldn’t be incest by him; it would be plain, unvarnished, sexual assault on a young child.

PAPPAS: That’s so.

JOHNSON J: The mother’s committing an offence too, that may be something different.

PAPPAS: Yes. But however you look at it, it would be a crime and so his reluctance to talk openly about it, his reluctance to give his particulars, can be explained in that way at least as a reasonable hypothesis rather than an acknowledgment that what he was engaging in was the exchange or the transmission of child pornography material. Again it’s a very fine distinction, your Honour, I accept that.”

138. Later during the hearing in this Court, the following was said (T20-21, 2 August 2017):

“JOHNSON J: It could be said Mr Pappas that what you characterise as an available innocent hypothesis is just another way of describing a guilty hypothesis. He knows it’s an eleven year old child, sexual activity with that child, that’s what’s being discussed. You talk about taboo subjects, incest, reticence to discuss such matters. Those are, it seems to me they’re not two concepts, it may be two ways of describing the same thing and unfortunately for your client both ways of describing it may be incriminating. This is what I raised with you earlier, what is the available alternative innocent hypothesis?

PAPPAS: Well one is a recklessness as to whether the material was child pornography material which has a particular meaning.

JOHNSON J: Has a particular description of which as to the parts it might be said he was well aware, eleven year old child and description of sexual activity. It is of course not necessary that someone in the position of the accused either have knowledge or be reckless as to whether he has specific knowledge of the terms of a provision of the Criminal Code.

PAPPAS: No doubt about that.

JOHNSON J: We’re talking here about the practical component of it and the practical component might be said all moves in one direction in this case.”

139. It is difficult to see how the propositions relied upon by the Appellant at trial were capable of constituting available reasonable hypotheses consistent with innocence on the element of recklessness with respect to the transmitted material being “child pornography material”. In any event, no further direction was sought for the Appellant at trial.

140. Counsel for the Appellant did not seek further directions in areas complained of with respect to Grounds 3 and 4. The importance of trial counsel making appropriate applications at trial has been emphasised by this Court: Hill v R [2017] NSWCCA 138 at [17]-[27]; Towney v R [2018] NSWCCA 65 at [111]-[112]. Of course, it is no response to the failure of counsel to seek further directions at trial to suggest (as was tentatively advanced in this Court) that the position could not be advanced because of the state of directions already given and that there was effectively no point in making a further application (T10, 2 August 2017): Hill v R at [100]-[101], [104]-[106].

141. I am not persuaded that any error has been demonstrated as asserted in the fourth ground of appeal

142. I reject Grounds 3 and 4.

Conclusion

143. The Appellant has failed to make good any of his grounds of appeal.

144. There was, in my view, a clear case to answer on each of Counts 1, 3 and 5. Beyond that, there was a powerful Crown case in support of each count. Even if error had been demonstrated under Grounds 2, 3 or 4 (and it has not) no miscarriage of justice was occasioned so that the proviso in s.6(1) Criminal Appeal Rule 1912 would be invoked in any event: Towney v R at [93]-[97].

145. I propose the following orders:

1. to the extent that leave is required to appeal against conviction, grant such leave,

2. appeal against conviction dismissed.

146. DAVIES J: I agree with Johnson J.

147. LONERGAN J: I agree with Johnson J.

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Amendments

13 June 2018 - Pseudonyms inserted

Decision last updated: 13 June 2018