Police v Wright
[2008] QMC 10
•11 September 2008
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Wright [2008] QMC 10
PARTIES:
POLICE
(prosecution)
v
DAVID WRIGHT
(defendant)
FILE NO/S:
MAG96097/08(5)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Summary Hearing
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
11 September 2008
DELIVERED AT:
Brisbane
HEARING DATE:
28 August 2008
MAGISTRATE:
Previtera T
ORDER:
Defendant acquitted
CATCHWORDS:
CRIMINAL LAW – breach of supervision order – sexual offender released on supervision order – defence of accident – defence of mistake of fact
Dangerous Prisoners (Sexual Offenders) Act 2003, s 43B
COUNSEL:
Bradley (sergeant) for prosecution
D Vasta for defendant
SOLICITORS:
Prosecution on own behalf
Legal Aid Queensland for defendant
The defendant is charged, pursuant to Section 43B(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that between 3 April 2008 and 18 May 2008 at Bowen Hills he, being a person subject to a supervision order, without reasonable excuse, contravened a requirement of the said order, namely, that he not access pornographic images containing photographs or images of children on a computer or on the internet or in any other format.
Section 43B of the Dangerous Prisoners (Sexual Offenders) Act 2003 provides:-
(1) A person subject to a supervision order or interim supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence.
Maximum penalty—2 years imprisonment.
(2) A proceeding for an offence against subsection (1) is to be taken in a summary way under the Justices Act 1886.
The onus is on the prosecution to prove each and every element of the offence and the standard of proof is the criminal standard of proof beyond a reasonable doubt.
On the evidence, the defendant has raised the defences of “accident”[1] and honest and reasonable mistake of fact[2], which defences the prosecution must negative beyond a reasonable doubt.
[1] Section 23 of the Criminal Code (Queensland)
[2] Section 24 of the Criminal Code (Queensland)
The prosecution called two witnesses:-
1. Acting Sergeant Scott Atkins, a senior investigating officer of the Organised Crime and Online Child Abuse Unit of the Crime and Misconduct Commission.
2. Police Officer Jason Wright, a computer analyst in the Forensic Computer Unit of the Crime and Misconduct Commission.
The defendant did not give or call evidence.
The following matters are not disputed:-
1. The defendant was made subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 on 15 December 2006. A copy of that order of the Supreme Court of Queensland at Brisbane was admitted into evidence and marked Exhibit 1. The order provides that, upon release from prison, the defendant be subject to 29 conditions, until 29 January 2022 or further order of the court.
2. Those conditions include conditions that the defendant:-
“…21. Not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;
22. Not be on the premises of any shopping centre, without reasonable excuse between 9am to 9.30am and between 2.30pm and 4.30pm on school days other than for the purposes of:
(i) Employment; or
(ii) Attending a bona fide pre-arranged appointment with a government agency, medical practitioner or the like;
…
24. Not without reasonable excuse be in the area within 100 metres of a school, children’s playground or child care area at any time;
25. Not undertake unsupervised care of children under 16 years of age;
26. Not establish and maintain contact with a child under 16 years of age; except in the case of the respondent’s daughter …
27. Not enter into, or maintain a relationship with, a woman with children under 16 years of age in her care;
28. Not access pornographic images containing photographs or images of children on a computer or on the internet or in any other format;[3]
[3] My highlighting
…”
It is condition number 28 in relation to which the QPS allege a breach and hence the charge before the court.
3. The defendant is a homosexual male who possesses advanced computer skills and spends approximately an hour each day on the computer. He accesses gay websites and chat rooms and has an online profile indicating that he is looking for males between the ages of 18 - 25 or 20 – 28. He regularly accesses websites with names such as eurotwinks.com, U.S. boys.com, teenstudio.com and teenboys.com, but admits that there are hundreds of websites he is able to access.
4. On or about 17 May 2008 Detective Acting Sergeant Scott Atkins and Detective Senior Sergeant Charles Cane conducted an interview with the defendant following a consensual search of the defendant’s room and his computer, as a result of which the police seized the hard drive, undertook a preliminary check of the hard drive (which revealed a number of images now relied on in this prosecution) and commenced a forensic examination of the hard drive of the computer. The forensic examination remains incomplete.
5. The defendant agreed that there were pornographic images of adults on his computer, but denied that there was any material depicting children “under the age of 16 I think the wording is”. The defendant denied putting any pornographic images of children on to the computer.
6. During the police interview, the defendant was shown eight (8) pornographic images taken from his hard-drive (Exhibit 3). An additional 20 images found on the defendant’s hard-drive were also admitted into evidence (Exhibit 5). None of the images were saved on to files within the defendant’s computer or otherwise stored on discs.
7. The defendant made the following admissions:-
(a) That he had previously seen five (5) of the eight (8) images in Exhibit 3; he would not accept that the boys depicted in photographs D and F were younger than 16 because of a disclaimer on the website (teenstudio.com) that all participants were over 16, although he admitted that the boy in photograph D looked 15, 16. Having viewed photograph D, he explored the site to view other photos or other samples.
(b) That there had been approximately 30-40 images of children under 16 brought onto his computer “..inadvertently through receiving images from people or clicking on links on pages or profile pages or things like that”. He admitted to deleting these images immediately.
(c) The last occasion on which he said this occurred was a month or 2 months prior to the police search, when somebody called James with a logon id which said he was 18 years old, sent a picture, allegedly of himself, which the defendant deleted on the basis that he thought the picture “looked as under 16”. The photo depicted a male person with “just his jocks on and an erection inside his underwear”.
(d) The defendant has also received images when he has clicked on a thumbnail with a smaller version of a picture he wants to see on a larger scale.
DISPUTED
The following matters require determination:
1. Does release condition number 28 apply only to images of children under 16 or is it intended to cover images of children under 18 years?
2. Do the photographs in Exhibits 3 and 5 depict images of boys of an age prohibited by release condition number 28?
3. If no to question 2, do the admissions made by the defendant enable the court to be satisfied that he has accessed pornographic images of children in breach of release condition number 28?
4. If yes to either question 2 and 3, has the defendant “accessed” the photographs in breach of the release condition?
5. If so, has the prosecution negatived beyond reasonable doubt the defences of “accident” and “honest and reasonable mistake of fact?”
1. THE MEANING OF “CHILDREN”
Unlike release conditions 25, 26 and 27, which specifically refer to “children under 16 years of age”, condition 28 does not refer to any specific age of the children to be protected by it. Consequently, the argument has arisen as to what the Supreme Court intended was to be the age group to which condition 28 was referable.
There is no definition of child/children in the Dangerous Prisoners (Sexual Offenders) Act 2003.
In the absence of any specificity in the condition, the Prosecution argues that the court should determine the meaning of child by reference to s 36 of the Acts Interpretation Act 1954 which provides that a child is an individual who is under 18 years of age.
The defence submits for an interpretation of the meaning of “child” by reference to the issue of child exploitation generally and in particular, by reference to Section 207A of the Criminal Code Act 1899.
207A provides that child exploitation material means “material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years—
(a) in a sexual context, including for example, engaging in a sexual activity; or
(b) in an offensive or demeaning context; or
(c) being subjected to abuse, cruelty or torture.”
The court accepts the defence argument on the basis that s 207A is referable to the matter with which the defendant is charged, referable to the context in which the special release conditions were required to be made in the first place and indeed referable to other conditions in the special release conditions, including reference to children of school age or children “under the age of 16”.
The court therefore determines that release condition number 28 prohibits the defendant from accessing pornographic images of children under 16 years, on a computer or on the internet or in any other format.
2. DO EXHIBITS 3 AND 5 DEPICT IMAGES OF BOYS UNDER 16 YEARS OF AGE?
It was argued by the defence that, in relation to the ages of the boys depicted in the photographs, this was a “borderline” case as to whether boys were aged 15 or 16 years of age. It was certainly not alleged, for example, that the photos were of boys aged 12, 13 or even 14.
Both the prosecution and defence submitted that it was for the court to determine objectively the ages of the various boys depicted in the photographs; and that this determination should be undertaken by reference to their physical features, including the absence or otherwise of pubic hair and their facial features.
If this court had determined the definition of “child” as “a person under the age of 18 years” it would have had no difficulty being satisfied beyond reasonable doubt, by reference to the photos and the defendant’s admissions, that some of the photos were indeed of children under the age of 18 years.
Given, however, the court’s finding as to the meaning of “child” and the applicable standard of proof, the decision has proved somewhat more difficult for the court, in the absence of expert evidence as to the varying stages at which boys under 16 mature or the features which would more certainly identify a boy as being within that age group. As an example of the difficulty, the boy who could be considered to be the youngest in the photos by reference to his facial features (the boy in the middle of photos A and B in Exhibit 3) has the most pubic hair.
It may have proved helpful to have received evidence from a paediatrician, for example, who had viewed the images.
Whilst the court is of the view that it is more probable than not that, some of the images are of children under the age of 16 years, it cannot be satisfied beyond reasonable doubt that they are so.
3. DO THE ADMISSIONS MADE BY THE DEFENDANT ENABLE THE COURT TO BE SATISFIED THAT HE HAS ACCESSED PORNOGRAPHIC IMAGES OF CHILDREN IN BREACH OF RELEASE CONDITION NUMBER 28?
In relation to the 30-40 images the subject of admissions as referred to in paragraph 7(b) above, there is no evidence as to what was depicted in these particular images; no evidence to suggest that they are included in the images tendered in evidence and, in particular, no evidence that they were actually pornographic. The defendant stated only that he would call them questionable - “whether they would be or not I don’t know.”
In relation to the particular image the subject of an admission in paragraph 7(c) above, no image fitting this description is included in the images admitted into evidence so as to enable the court to determine objectively to the requisite standard whether or not the image was in fact a pornographic image of a child under the age of 16 years.
Consequently, the court is not satisfied that the admissions of the defendant enable the court to be satisfied that the defendant has breached condition number 28.
4. THE MEANING OF ACCESS
According to Oxford University Press, 2005, “access” as a noun means “the opportunity or right to use or see” and/or “a way of entering or reaching a place”. As a verb “access” means, in relation to computing “to open a computer file in order to get or add information”
Despite the defendant’s evidence that it was “inadvertent”, the court is satisfied that the defendant has, nonetheless, accessed the pornographic images the subject of the charge. He has opened computer files, clicked on thumbnails and opened attachments
5. THE DEFENCES OF “ACCIDENT” AND “HONEST AND REASONABLE MISTAKE OF FACT”
(f) I didn’t actively ask for the photo to be loaded on to my drive”. (The consequence of receiving an image, however, is that the image is then automatically downloaded onto the hard-drive); that he then explored the site by viewing other photos or other samples.
5.1 Accident
Section 23 of the Criminal Code provides:-
23 Intention—motive
(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
(a) an act or omission that occurs independently of the exercise of the person’s will; or
(b) an event that occurs by accident.
…
(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.
An event cannot qualify as an accident within the meaning of Section 23 where there is a real risk of its occurrence of which an ordinary person in the circumstances would be conscious.[4] “…that accordingly where the circumstances of the case called for the Section 23 defence of accident to be excluded… the Crown was obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome”
[4]R v Taiters ex parte Attorney-General 1997 1 QR 333.
It the decision of R. v. Taiters ex parte Attorney-General[5] it was further stated that “in the construction of Section 23 the reference to “act” is to “some physical action apart from its consequences” and the reference to “event” in the context of occurring by accident is a reference to “the consequences of the act”… A number of occurrences can as a result of the operation of one or more chains of causation follow upon the doing of an act. However, Section 23 is concerned to excuse from criminal liability so the relevant event for the purpose of the section should be taken to be the one which apart from the operation of the section, would constitute some factual element of an offence which might be charged.” The court then said that the principle now established in respect of the accident part of Section 23 may be taken as stated by His Honour Justice Gibbs in Kaporonovski v R[6] where he said “it must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably be foreseen by an ordinary person.”
[5] Ditto.
[6] (1973) 133C.L.R.209
The relevant action in this case is the clicking on of images/ attachments/ photos/ thumbnails. The relevant event is the viewing of those images. “If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental. Even if there is a substantial likelihood, although something less than a preponderance of probability, that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental. On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.”
This court is satisfied that the Crown has negatived to the requisite standard the defence of accident, having regard to the following:
1. The defendant intentionally accesses sites with the names teenboys.com; US boys.com and eurotwinks.com.
2. The defendant, despite disclaimers on sites that participants are either over the ages of 16 or 18, has received approximately 30-40 images of children under the age of 16 years, including from people who claim to be over 16 years of age.
3. There have been other occasions where he has discovered that, contrary to what he has actually been told by participants or their profiles as to their age, that they have in fact been younger (in one case a person passing himself off as 19/20 was in fact 16 years old).
4. Despite having had these experiences, the defendant continues to blindly rely on what he is told by persons or profiles as to the ages of participants; and continues to accept images against a background of the experiences reported by him and above.
5. To continue to do so in the face of his numerous experiences indicating that there is a real possibility (as there has been on 30-40 occasions previously) that images will be of children under 16 years, is in the court ‘s view not only non-accidental, but reckless.
6. The defendant has admitted that there are “hundreds of web-sites” he accesses where he does not encounter these issues. He nonetheless continues to access the same websites.
7. The defendant has time to assess the probabilities of accessing material from certain website which could breach the release condition. His decisions to click on an image, agree to receive an image etcetera are not typical of the type of on-the-spot, reactionary decisions which ordinarily form the basis of reliance upon the defence of accident.
8. An ordinary person in the circumstances described by the defendant would have been conscious of the possibilities of receiving images of boys under 16 and would, therefore have foreseen the receipt of an image of a boy under 16 as a possible outcome.
5.2 Honest and reasonable mistake of fact.
Section 24 of the Criminal Code provides:-
24 Mistake of fact
(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
For the same reasons enumerated above in relation to the defence of accident, the court is satisfied that the Prosecution has negatived beyond reasonable doubt the excuse of honest and reasonable mistake of fact.
Even if honest, it is not reasonable for the defendant to have continued to access web-sites and chat rooms from which previously indicated “inappropriate” images of children under 16 have been received.
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