NSW Police Force v X - [2014] NSWLC 23

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: NSW Police Force v X [2014] NSWLC 23
Hearing dates: 12 , 13 June 2014
Decision date: 07 July 2014
Jurisdiction: Criminal
Before: Buscombe LCM
Decision:
Application that there is no case to answer refused.

Catchwords: WORDS AND PHRASES - "child abuse material" - Crimes Act 1900 (NSW), s 91H(2)
Legislation Cited: Crimes Act 1900 (NSW), ss 91FA, 91FB and 91H
Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)
Criminal Code (Cth), Part 10.6, ss 471.12, 473.1, 473.4, 474.19
Cases Cited: Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86
Monis, Man Haron v R; Droudis, Amirah v R [2011] NSWCCA 231; 215 A Crim R 64
Monis, Man Haron v R; Droudis, Amirah v R [2013] HCA 4; 249 CLR 92; 87 ALJR 340
Norley v Malthouse [1924] SR(SA) 268
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841
R v Serratore [1999] NSWCCA 377; 48 NSWLR 101
R v Silva [2009] ACTSC 108; 232 FLR 444
Romeyko v Samuels (1972) 2 SASR 529
Category: Procedural and other rulings
Parties: NSW Police Force (Prosecutor)
X (Defendant)
Representation: D McMahon (Prosecutor)
P Strickland SC and R Mathur (Counsel for the Defendant)
Nyman Gibson Stewart (Solicitor for the Defendant)

File Number(s): 2013/275765

JUDGMENT

The accused, X, is charged with an offence under s 91H(2) of the Crimes Act1900 (NSW), in that it is alleged that he possessed child abuse material on 11 September 2011. On that day the police executed a search warrant at X’s residential premises and seized his silver MacBook Pro computer from the kitchen bench. It is an agreed fact that at that time X was in possession of the computer and the images and data contained therein.
X’s laptop was the subject of examination and analysis by the police. The police allege that a number of videos and still images on the computer constitute "child abuse material" as that term is defined in the Crimes Act.
Senior Counsel on behalf of X has submitted that there is no case to answer.
The test to be applied at the conclusion of the prosecution case when it is submitted there is no case to answer is well known. It was said in R v Serratore [1999] NSWCCA 377; 48 NSWLR 101 at [127]:

"In determining whether there is a case to answer, the question to be decided
is not whether on the evidence as it stands, the accused ought to be convicted,
but whether on the evidence as it stands, he could lawfully be convicted: May v
O'Sullivan (1955) 92 CLR 654 at 658. In considering such an application, the
judge does not consider the probative value of the evidence as a whole, but
only that evidence which, if believed and uncontradicted, could be accepted as
proof of the Crown case: R v Towers (1984) 75 FLR 77

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.

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Details

Case: [2014] NSWLC 23
Decision Date: 07 July 2014

CaseChat Overview and Summary

The case of NSW Police Force versus X involved the defendant, X, who was charged under the Crimes Act 1900 (NSW) for possessing child abuse material. The matter was heard in the Local Court of New South Wales. The central dispute was whether the material in question constituted child abuse material under the statutory definition provided in section 91H(2) of the Act.

The legal issues before the court were whether the material possessed by X qualified as "child abuse material" under the Act and if the prosecution had presented sufficient evidence to support the charge. This involved interpreting the statutory language and determining whether the material met the criteria outlined in the legislation.

The court found that the prosecution had indeed provided sufficient evidence to establish that the material in question met the statutory definition of child abuse material. The court emphasised that the material depicted children engaging in sexual acts, which unequivocally fell within the scope of the statutory definition. Consequently, the application by the defendant to dismiss the charges on the basis that there was no case to answer was refused. The matter was to proceed to trial.

The court's decision resulted in the refusal of the defendant's application to dismiss the charges, allowing the prosecution to proceed to trial on the merits of the case.

Orders

Orders of the court

Application that there is no case to answer refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NSW Police Force v X [2014] NSWLC 23
Hearing dates:	12 , 13 June 2014
Decision date:	07 July 2014
Jurisdiction:	Criminal
Before:	Buscombe LCM
Decision:	Application that there is no case to answer refused.
Catchwords:	WORDS AND PHRASES - "child abuse material" - Crimes Act 1900 (NSW), s 91H(2)
Legislation Cited:	Crimes Act 1900 (NSW), ss 91FA, 91FB and 91H Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW) Criminal Code (Cth), Part 10.6, ss 471.12, 473.1, 473.4, 474.19
Cases Cited:	Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86 Monis, Man Haron v R; Droudis, Amirah v R [2011] NSWCCA 231; 215 A Crim R 64 Monis, Man Haron v R; Droudis, Amirah v R [2013] HCA 4; 249 CLR 92; 87 ALJR 340 Norley v Malthouse [1924] SR(SA) 268 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841 R v Serratore [1999] NSWCCA 377; 48 NSWLR 101 R v Silva [2009] ACTSC 108; 232 FLR 444 Romeyko v Samuels (1972) 2 SASR 529
Category:	Procedural and other rulings
Parties:	NSW Police Force (Prosecutor) X (Defendant)
Representation:	D McMahon (Prosecutor) P Strickland SC and R Mathur (Counsel for the Defendant) Nyman Gibson Stewart (Solicitor for the Defendant)
File Number(s):	2013/275765