NW v The Queen - [2014] NSWCCA 217

Court of Criminal Appeal

New South Wales

Case Title: NW v R

Medium Neutral Citation: [2014] NSWCCA 217

Hearing Date(s): 23/07/2014

Decision Date: 17 October 2014

Jurisdiction: Criminal

Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Garling J at [8]

Decision:
(1) Appeal allowed;

(2) Convictions entered on 24 September 2013 in respect of Counts 1 and 2 on the Indictment are quashed;

(3) Order that there be a new trial.

Catchwords: CRIMINAL LAW - appeal - appeal against convictions - appellant convicted of possession of child abuse material and use of child under the age of 14 years for the production of child abuse material - terms of Indictment incorrect - statutory changes during periods alleged in Indictment - offence of using a child for the production of child abuse material did not exist for the period charged - analogous offence of using child for pornographic purposes materially different -definition of 'child abuse material' broader than definition of 'for pornographic purposes' - Crown submissions at trial addressed broader definition -miscarriage of justice - offence of possession of child abuse material - maximum penalty for offence increased during offence period - offence only existed for portion of the period covered by the Indictment - jury could not have properly returned a verdict which accorded with the charge as framed unless satisfied of possession after amendment dates

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Amendment (Child Pornography and Abuse Material) Act 2010
Crimes Amendment (Sexual Offences) Act 2008
Criminal Appeal Act 1912
Criminal Procedure Act 1986

Cases Cited: Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349
Griffiths v R [1977] HCA 44; (1977) 137 CLR 293

Category: Principal judgment

Parties: NW (Applicant)
Regina (Crown)

Representation

- Counsel: Counsel:
J P Lo Schiavo (Applicant)
V Lydiard (Crown)

- Solicitors: Solicitors:
Bayside Lawyers (Applicant)
S Kavanagh (Crown)

File Number(s): 2012/29715

Decision Under Appeal

- Before: Letherbarrow DCJ

- Date of Decision: 24 September 2013

- Court File Number(s): 2012/29715

Publication Restriction: Suppression of applicant's name

JUDGMENT

HOEBEN CJ at CL: I agree with Garling J.
McCALLUM J: I have had the benefit of reading the judgment of Garling J in draft. I joined in the orders of the Court for reasons which differ in some respects from those expressed by his Honour.
As Garling J has explained, the definition of the term "child abuse material" is broader than the definition of the term "for pornographic purposes" previously adopted in the statute and the elements of the new offence are different. Subject to the requirement to establish that the matter in question be depicted or described in a way that reasonable persons would regard as being offensive, the current definition would apply to any material depicting the private parts of the child, whereas it was an element of the earlier offence that the material depict the child engaged in sexual activity or placed in a sexual context.
As to…

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 NW v The Queen

Details

AGLC: NW v The Queen [2014] NSWCCA 217
Case: [2014] NSWCCA 217
Decision Date: 17 October 2014

CaseChat Overview and Summary

NW was convicted of possession of child abuse material and using a child under the age of 14 years for the production of child abuse material. The appellant appealed against the convictions, arguing that the terms of the Indictment were incorrect due to statutory changes during the periods alleged. The central issues before the court were whether the offence of using a child for the production of child abuse material existed during the period charged and whether the definition of 'child abuse material' was broader than that of 'for pornographic purposes.'

The court found that the offence of using a child for the production of child abuse material did not exist for the period charged, as statutory changes had occurred during that time. The court noted that the analogous offence of using a child for pornographic purposes was materially different. Furthermore, the court highlighted that the definition of 'child abuse material' was broader than 'for pornographic purposes.' The Crown's submissions at trial addressed the broader definition, which created a risk of confusion for the jury. The court concluded that there was a miscarriage of justice due to the incorrect framing of the charge. Additionally, the court considered the maximum penalty for the offence of possession of child abuse material, which had increased during the period of the offence. The offence only existed for a portion of the period covered by the Indictment, and the jury could not have properly returned a verdict that accorded with the charge as framed unless satisfied of possession after the amendment dates.

The court allowed the appeal, quashed the convictions, and ordered a re-trial. The court found that the framing of the charge was incorrect and that the jury could not have properly returned a verdict which accorded with the charge as framed. The court also noted that the definition of 'child abuse material' was broader than that of 'for pornographic purposes,' and that the Crown's submissions at trial addressed the broader definition, which created a risk of confusion for the jury. The court concluded that there was a miscarriage of justice and quashed the convictions. The court ordered a re-trial, noting that the jury could not have properly returned a verdict that accorded with the charge as framed unless satisfied of possession after the amendment dates.

Orders