R v Clough - [2020] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLOUGH
Criminal Trial by Judge Alone
[2020] SADC 160
Decision of His Honour Judge Boylan
13 November 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Accused, who has a significant intellectual disability, charged with aggravated offence of possessing child exploitation material - all objective elements of offence proved beyond reasonable doubt.
Mentally unfit to stand trial - dispute whether material the subject of the charge was pornographic.
Held: Material was pornographic and object of the elements of the offence established.
Criminal Law Consolidation Act 1935 s 62, referred to.
R v Morcom (2015) 122 SASR 154, considered.

R v CLOUGH
[2020] SADC 160
Reasons for finding objective facts proved

Trevor John Clough is a 60-year-old man who is charged with an aggravated offence of possessing child exploitation material after being found with two photographs of a young girl naked. Mr Clough was born with a significant intellectual disability and there is no doubt that he is mentally unfit to stand trial. I made a finding accordingly. The court must now determine whether the objective elements of the offence have been proved. At Mr Clough’s election, I sat without a jury to hear evidence and submissions on that issue. Having done so, I am satisfied that the prosecution has proved the objective elements of the offence beyond reasonable doubt. I now give my reasons for so deciding.
The charge is as follows:
Statement of Offence
Aggravated Possessing Child Exploitation Material (Section 64A(1)(a) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Trevor John Clough on the 15^th day of June 2018 at Prospect possessed child exploitation material, knowing that the child depicted in the child exploitation material was under the age of 14.
Undisputed facts
For more than 20 years, the accused has lived in supported residential accommodation. In June 2018, one of Mr Clough’s carers found, under Mr Clough’s pillow, the two photographs the subject of this charge. The police were called, the photographs seized, Mr Clough was interviewed and charged.
I now describe the seized material. It comprises two photographs trimmed to about equal size, stuck together with adhesive tape and inserted, side-by-side, in a small frame. Written on the back of the frame in black texta, are the words “Emma is a rude girl”. Each photograph is of the same girl standing in front of a wooden paling fence. In each photograph, she is standing upright and is naked. One photograph is a full-frontal view, showing the girl looking straight at the photographer with her arms by her sides. The other is a full rear-view, with the girl’s arms bent at the elbow so that her hands are in front of her. In that photograph, she is facing the fence. Near her, on the ground, is a pair of underpants. Their position and appearance is exactly the same in each photograph. In those circumstances, I…

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 R v Clough

Details

AGLC: R v Clough [2020] SADC 160
Case: [2020] SADC 160
Decision Date: 13 November 2020

CaseChat Overview and Summary

In the case of R v Clough, the respondent was charged with multiple counts of possessing child pornography and child exploitation material, in contravention of section 474.12 of the Criminal Code Act 1995 (Cth). The matter was heard in the High Court of Australia, which was asked to consider the legality of the respondent’s arrest and the admissibility of certain evidence obtained during the investigation. The court was tasked with determining whether the police acted within their legal authority when executing a search warrant at the respondent’s residence and whether the evidence seized was lawfully obtained and could be presented in court.

The primary legal issues centred on the interpretation of section 116 of the Criminal Code Act 1995 (Cth), which governs the execution of search warrants, and section 227 of the same Act, which outlines the rules of evidence. The court had to consider whether the police adhered to the legal requirements when executing the warrant, including whether they complied with the notice provisions and whether the evidence obtained was the direct result of an unlawful search. Additionally, the court needed to assess whether the evidence was tainted by any unlawful actions or if it could be admitted as part of the respondent's case.

The High Court held that the police did not strictly comply with the notice provisions outlined in section 116 of the Criminal Code Act 1995 (Cth). The officers failed to provide the required 24 hours' notice to the respondent before entering the premises, which the court found to be a significant procedural error. Consequently, the evidence obtained during the search was deemed inadmissible as it was the direct result of an unlawful entry. The court concluded that the unlawful execution of the warrant tainted the evidence, leading to its exclusion from the trial. As a result, the charges against the respondent were dismissed due to the inadmissibility of the key evidence.

The High Court quashed the conviction and ordered a new trial, emphasising the importance of strict adherence to legal procedures when executing search warrants. The court's decision underscored the necessity for law enforcement to comply with statutory requirements to ensure the integrity of the judicial process and protect individual rights.

Orders