Knight v McDonald - [2002] TASSC 81

[2002] TASSC 81

CITATION: Knight v McDonald [2002] TASSC 81

PARTIES:  KNIGHT, Christopher Ronald
  v
  McDONALD, Scott Raymond

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 5/2002
DELIVERED ON:  15 October 2002
DELIVERED AT:  Hobart
HEARING DATE:  8, 9 October 2002
JUDGMENT OF:  Evans J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  D R Fairley
           Respondent:  M J Brett
Solicitors:
           Applicant:  Temple-Smith Barclay
           Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 81
Number of paragraphs: 13

Serial No 81/2002
File No LCA 5/2002

CHRISTOPHER RONALD KNIGHT v SCOTT RAYMOND McDONALD

REASONS FOR JUDGMENT EVANS J

15 October 2002

The applicant appeals against his conviction on one count of having in his possession a child abuse product in breach of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ("the Act"), s74(a) and one count of having in his possession a bestiality product in breach of the Act, s74(b).

On 22 August 2000, a police officer searched the applicant's residence and seized 64 floppy discs containing 651 graphics and other information. The graphics are, in most instances, pictures of the nature of photographs of nude or partially clad females of varying ages.

At trial, the applicant conceded that five of the pictures came within the statutory definition of a child abuse product insofar as they depicted a child in a manner that was likely to cause offence to a reasonable adult. The learned magistrate found that these five pictures, together with a further 103 pictures, came within the definition of a child abuse product. He found that two other pictures came within the statutory definition of a bestiality product.

In order to obtain convictions in relation to these products, it was necessary for the prosecution to establish, inter alia, that they were a "publication" or a "film" within the meaning of those terms as defined in the Act and that they were in the possession of the applicant.

At the relevant time, the Act, s3, included the following definitions:

"'film' includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but does not include ¾
(a) a computer game; or
(b) an advertisement for a publication, film or a computer game; or
(c)a recording for business, accounting, professional, scientific or educational purposes unless it contains a visual image that would be likely to cause the recording to be classified MA, R, X or RC;

'publication' means any written or pictorial matter, but does not include –
(a) a film; or
(b) a computer game; or
(c) an advertisement for a film or computer game;"

The learned magistrate determined that the pictures were publications or films for the purposes of the legislation. That determination is criticised by counsel for the applicant. He in substance submits that the pictures are films insofar as they are derived from floppy discs which are a "form of recording from which a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Knight v McDonald

Details

AGLC: Knight v McDonald [2002] TASSC 81
Case: [2002] TASSC 81
Decision Date: 15 October 2002

CaseChat Overview and Summary

Knight v McDonald is a case heard by the Supreme Court of Tasmania. The applicant, Christopher Ronald Knight, appeals his conviction on one count of having in his possession a child abuse product and one count of having in his possession a bestiality product in breach of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. The appeal focuses on the interpretation of the terms "publication" and "film" within the Act and whether the pictures in question fall under these definitions.

The primary legal issues addressed by the court were whether the images found on the applicant's floppy discs qualified as "publications" or "films" under the Act, and whether the applicant had actual possession of these images. The court examined the definitions provided in the Act and the evidence presented during the trial to determine if the pictures could be classified as films or publications, and if they were in the applicant's possession.

Evans J, delivering the judgment, agreed with the magistrate's determination that the images were indeed films, as they were stored on floppy discs which are a form of recording from which a visual image can be produced. The court further found that the exclusions in the definition of "film" did not apply, as the images were not for educational purposes. The court considered the applicant's various explanations for collecting the images, including research, art, and an investigation, but found them unconvincing. The labeling of the floppy discs and the applicant's actions in downloading and sorting the images indicated a deliberate and knowledgeable accumulation of the material, leading the court to conclude that the applicant had possession of the images.

Ultimately, the court dismissed the appeal, finding no merit in the arguments presented by the applicant's counsel. The conviction was upheld as the court was satisfied that the images were films under the Act and that the applicant was in possession of them.

Orders