R v Brusnahan - [2015] SADC 69

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRUSNAHAN
Criminal Trial by Judge Alone
[2015] SADC 69
Judgment of His Honour Judge Boylan
1 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with four counts of disseminating child pornography and two counts of possessing child pornography via his mobile telephone - aggravated offences - children depicted under 14.
Trial by judge alone - prosecution did not prove their case beyond reasonable doubt the possibility of others having access to the accused's mobile telephone.
Held: Not guilty all counts.

R v BRUSNAHAN
[2015] SADC 69

Norman Jay Brusnahan is charged with four counts of disseminating child pornography and two counts of possessing child pornography. All six counts are aggravated because the child or children depicted in the relevant images are under 14. Mr Brusnahan elected for trial by judge alone. Having heard the evidence and counsel’s submissions, I reserved my decision. I now give reasons for the verdicts which I am about to deliver.
Outline of Crown case
In July 2013, two men received pornographic photographs of children obviously under the age of 14 on their mobile telephones. Each man reported the matter, and showed the contents of their mobile telephones, to police. It was clear that the photographs had been sent from the accused’s mobile telephone. Accordingly, police officers attended at the accused’s premises and searched them. They seized his mobile telephone, his desktop computer and his laptop computer. Further pornographic photographs of children were found stored on the desktop computer and mobile telephone. Images found on the laptop computer were originally the subject of charges but, during the trial before me, the Director entered nolle prosequi in respect of the relevant count.
Outline of defence case
In his evidence, Mr Brusnahan told me that, at relevant times, he was usually drunk and could not remember if he sent a number of texts from his mobile telephone. He denied sending any of the photographs the subject of these charges and told me that other people had access to his desktop computer and to his mobile telephone. The accused called two witnesses who described the effects of his alcoholism and told me about the opportunities other men had to use the accused’s mobile telephone and computer. Their evidence was not challenged.
Some undisputed facts
At about 12.41 pm on 11 July 2013, Mr Hedley Fayle received a photograph which constitutes aggravated child pornography on his mobile telephone. Mr Fayle and the accused do not know each other but Mr Fayle’s mobile telephone number was on a gay chat site with which the accused was familiar. Having received the photograph, Mr Fayle telephoned the number and had a conversation with a male who did not identify himself. He described the male as having an effeminate-type laugh or giggle and sounding as someone sounds when affected by drugs. The unidentified male’s voice was high pitched and excited. Mr Fayle reported the matter to the police and showed them the photograph which he had received. The sending of the photograph to Mr Fayle is the subject of count 1 on the Information.
At about 6.14 pm on the same day, 11 July 2013, a Mr Samuel Durham received a text message from the accused’s mobile telephone number. There followed a ‘text conversation’ between Mr Durham and the accused’s mobile telephone number. At about 6.14 pm on the same day, Mr Durham received from that number, an image which constitutes aggravated child pornography. Some time later, the sender of the messages from the accused’s mobile telephone said that he lived on Keith Lewis Court and Wynn Vale, the accused’s address, and, later, sent Mr Durham a photograph of the accused. Mr Durham reported the matter to the police and presented his mobile telephone to them. Police officers did not seize Mr Durham’s phone but filmed its contents. The film of the contents was in evidence before me. Mr Durham was not called. It is not disputed that the written copy of telephone messages between his mobile telephone and the accused’s mobile telephone is incomplete; Mr Durham has removed some text messages.
The sending of the child pornography photograph to Mr Durham is the subject of count 2 on the Information.
On 22 July 2013 at about 4.49 am, Mr Durham received a further image which constitutes aggravated child pornography and, at about 6.54 am on the same day, he received another image which constitutes child pornography. Those images are the subject of counts 3 and 4 on the Information.
The accused’s mobile telephone was examined by an e-crime expert and found to contain four images, each of which constitutes child pornography. Those images on the mobile telephone are the subject of count 5 on the Information.
On the accused’s desktop computer, computer analysts found seven images, each of which constitutes aggravated child pornography.
In brief, then, there is no dispute that the child pornography sent to Mr Fayle and to Mr Durham was sent from the accused’s mobile telephone, that there were further images of child pornography stored in his mobile telephone and that there were a number of images of child pornography stored on his desktop computer.
The trial
Before turning to the case for the accused, I make some comments about the witnesses whom I heard. All of the witnesses called by the prosecution, including Mr Fayle, impressed me as being credible and reliable. Their evidence on matters of fact was not challenged. Mr Roberts, an e-crime expert called by the prosecution, readily made a number of concessions, one of which led to the entry of nolle prosequi on what had been count 7.
The accused gave evidence. I shall not set it out in full but describe its general effect. Mr Brusnahan is a 49 year old single man. He is homosexual. For some years he has been on a disability support pension and, at relevant times, has lived at his housing trust premises at Keith Lewis Court at Wynn Vale. For many years he suffered from chronic alcoholism. At the time of these alleged offences, he was drinking very heavily. He stopped drinking about 12 months before the trial of these matters after he had joined Alcoholics Anonomous. He has become estranged from his family but remains in contact with two good friends, both of whom gave evidence.
Mr Brusnahan denied that he had sent any of the photographs to Mr Fayle and Mr Durham. He said that he did not know that there were images of child pornography on his mobile telephone or on his desktop computer.
The effect of Mr Brusnahan’s evidence was that other people had access to his mobile telephone and to the computers in his house. Owing to his alcoholism, he could not always remember user names and passwords for the computers and left these written down on cards near to the computers
He told me in evidence that it was his practice to have groups of men to his house for what he described as ‘sex parties’ or ‘orgies’. Some of those men, strangers to him, would use his computers while at the house and would also use his mobile telephone. In other words, his evidence was that other people had easy access to his desktop computer and to his mobile telephone.
Mr Brusnahan was cross-examined at great length about his telephone records in the period of six months leading up to the alleged offending. There were thousands of messages and some photographs in his mobile telephone records. He said that he could not remember if he sent some of them because he was always drunk at the relevant period. He explicitly denied sending some messages saying that from their content, he would not have sent them. For example, a message apparently sent by him, included an offer to pay a taxi fare. He said that he would never have been able to offer to pay somebody else’s taxi fare. Some of the messages referred to various types of sexual role play. Mr Brusnahan said that he would not have sent some of those messages because the sexual roles referred to are not roles that he would ever take in sexual activity.
I found Mr Brusnahan to be a most unsatisfactory witness. It seemed to me that he tailored his evidence to explain text conversations which he thought may have incriminated him. On occasions, his answers were simply unconvincing. But I have directed myself that the prosecution must prove its case against him beyond reasonable doubt, that he is presumed innocent until he is proved guilty, and that he is not required to say, do or prove anything. Even if I reject all of his evidence, or much of it, that is no basis for conviction. The onus remains always upon the prosecution to prove its case.
Mr Brusnahan called two witnesses: his close friends, Norman Livingstone and Keith Gallasch. Both of them struck me as honest, credible and reliable witnesses. Their evidence was not in any way seriously challenged by the prosecutor. Both men confirmed that, at relevant times, the accused was drinking very heavily. The effect of their evidence was that he was nearly always drunk. Mr Livingstone said (at transcript page 245):
He was really drunk all the time, he was out of it, he just wasn’t with it.
Mr Livingstone also told me that on some occasions when he visited the accused’s house there were other adult men there, up to four at a time. Mr Livingstone had seen other men using the accused’s computer.
Mr Livingstone also gave evidence which tended to confirm the accused’s evidence that there were regular sex parties at the house, parties at which the participants played various roles.
Mr Keith Gallasch gave evidence that he visited the accused’s house regularly and that, from time to time, he observed that other men were living there, although not permanently. Some of those men would be there for a couple of weeks and some for a couple of nights. They were always adult males.
Mr Gallasch said that the accused used to leave passwords for his computer near to the computers.
Mr Gallasch also gave this important evidence: when he rang the accused on the accused’s mobile telephone, males other than the accused sometimes answered. He would ask to speak to the accused who would normally come to the telephone. On those occasions the accused sounded ‘pretty inebriated’. Mr Gallasch estimated that on probably more than 10 occasions in the six months or so leading up to the dates of these alleged offences, strange males had answered the accused’s mobile telephone.
I accept the evidence of Mr Livingstone and of Mr Gallasch.
In his final address, Mr Ellis, counsel for the prosecution, put a careful and thorough argument that I should conclude from the content of the various text messages, and especially from the fact that some of the telephone communications the subject of the charges appear in ‘lengthy text conversations’, that the accused was responsible for sending the photographs the subject of the charges and that he knew of the pornography stored in his mobile telephone and on his desktop. I found Mr Ellis’s argument most attractive but, at the end of the day, I am not so persuaded. I am deeply suspicious that the accused is guilty but I am not satisfied beyond reasonable doubt. On the basis of the evidence of Mr Livingstone and Mr Gallasch, I cannot exclude beyond reasonable doubt the possibility that other men who had access to Mr Brusnahan’s mobile telephone and computer are responsible for sending the photographs and for storing the material the subject of those charges. In those circumstances, I enter verdicts of not guilty on all counts.