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McEwen v Simmons

McEwen v Simmons

Case [2008] NSWSC 1292 8 December 2008

Criminal Liability

Causation

Admissibility of Evidence

Criminal Law

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Reported Decision:
73 NSWLR 10
191 A Crim R 390

New South Wales

Supreme Court

CITATION: McEWEN v SIMMONS & ANOR [2008] NSWSC 1292
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13/11/2008

JUDGMENT DATE :
8 December 2008

JUDGMENT OF: Adams J at 1

DECISION: Appeal dismissed
Each party to pay its own costs.

CATCHWORDS: Child pornography - cartoon figures modelled on "The Simpsons" - whether depict a "person" within s 474.19 (1)(a)(i) of the Criminal Code Act 1995 (Cth) and s 91H(3) of the Crimes Act, 1900

LEGISLATION CITED: Crimes Act 1900
Criminal Code Act 1995
Acts Interpretation Act (1901) (Cth)
Crimes Legislation Amendment (Telecommunications Offences and other Measures) Bill (No 2) 2004
Customs Act 1901
Interpretation Act 1987

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
Holland v The Queen (2005) 154 A Crim R 376
R v Sharpe [2001] SCR 45
Einfeld v R [2008] NSWCCA 215

PARTIES: Alan John McEwen (Plaintiff/Appellant)
Senior Constable Scott Simmons (First Defendant/First Respondent)
New South Wales Police Service (Second Defendant/Second Respondent))

FILE NUMBER(S): SC 2008/11248

COUNSEL: G Craddock SC/M Avenell (Plaintiff/Appellant)
C O'Donnell (Defendants/Respondents))

SOLICITORS:
Marina Voncina Solicitor (Plaintiff/Appellant)
M Lagana (Commonwealth DPP) (Defendants/Respondents)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 518/08

LOWER COURT JUDICIAL OFFICER : Favretto LCM

LOWER COURT DATE OF DECISION: 26/02/2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

8 December 2008

2008/11248 – ALAN JOHN McEWEN v SENIOR CONSTABLE SIMMONS AND ANOR

JUDGMENT

HIS HONOUR:
Introduction

1 On 26 February 2008 the plaintiff was convicted in the Parramatta Local Court of the offences of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900 (the Act) and using his computer to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (the Code). The alleged pornography comprised a series of cartoons depicting figures modelled on members of the television animated series “The Simpsons”. Sexual acts are depicted as being performed, in particular, by the “children” of the family. The male figures have genitalia which is evidently human, as do the mother and the girl. It was accepted, I think, that it is implied – from the television series – that, insofar as cartoon characters might have ages, the young male is about ten years old, the female about eight years old and a female toddler. Leaving such an implication aside, it would be difficult to assign ages to either the young male or the girl, though the latter appears to me to be pre-pubertal and the former less than eighteen (the Commonwealth offence) and possibly less than sixteen (the State offence). Since the issue in this respect is the apparent age, I am sceptical that proof, as it were, of age by reference to another document is relevant. However, this question was raised neither here or below. The question before me is whether 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 McEwen v Simmons

Details

AGLC: McEwen v Simmons [2008] NSWSC 1292
Case: [2008] NSWSC 1292
Decision Date: 8 December 2008

CaseChat Overview and Summary

The case before the court involved an individual, McEwen, charged with possession of child pornography. The dispute centred on whether cartoon figures, which were modelled on "The Simpsons" and depicted in a manner suggestive of child pornography, constituted a "person" as defined within the relevant statutes. The court was tasked with determining the applicability of the Criminal Code Act 1995 (Cth) and the Crimes Act 1900 to these cartoon depictions. The specific legal issues included whether the cartoon figures, despite not being actual human beings, could be considered "persons" under the statutory definitions and if the charges were therefore valid.

The court examined the statutory language of s 474.19(1)(a)(i) of the Criminal Code Act and s 91H(3) of the Crimes Act, focusing on the interpretation of the term "person." It was necessary to determine whether the term encompassed fictional characters such as those based on "The Simpsons." The court considered precedents and the ordinary meaning of the word, weighing the intent behind the legislation and its purpose to combat child pornography. Ultimately, the court found that while the cartoons were clearly intended to simulate child pornography, the statutory definitions did not extend to include non-human characters. Consequently, the depictions did not meet the statutory criteria for child pornography.

In reaching its decision, the court emphasised the importance of adhering to the plain meaning of statutory language while also considering the legislative intent. The court concluded that the term "person" in the statutes referred to actual human beings and did not extend to include cartoon figures or fictional characters. As a result, the charges against McEwen were dismissed due to the inapplicability of the statutory provisions to the cartoon depictions. The final orders of the court were that the charges of possessing child pornography were not upheld, and the charges were dismissed on the grounds that the cartoon figures did not constitute "persons" within the meaning of the relevant statutes.

Orders