R v Fagundez (No 2)

District Court

New South Wales

Medium Neutral Citation:

R v Fagundez (No 2) [2023] NSWDC 526

Hearing dates:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

1. In relation to Counts 1 and 2 on the indictment dated 8 March 2023 on which the Accused was arraigned on 20 March 2003, Accused found not guilty.

2. Application of the Accused for a certificate pursuant to s 3 of the Costs in Criminal Cases Act 1967 refused.

Catchwords:

CRIME – Possession of child abuse material – Mental element – Strict liability offence – Statutory construction – Clear language required – No case to answer – Direction to acquit in judge alone trial – Costs in criminal cases

Legislation Cited:

Costs in Criminal Cases Act 1967, s 3

Crimes Act 1900, ss 7, 91H(1) – (3), 91HA, 308, 308F(1) – (4)

Criminal Procedure Act 1986, s 132(1)

Cases Cited:

Clark v R [2008] 188 A Crim R 1

DPPvHughes [2017] NSWSC 492

He Kaw Teh v The Queen [1985] HCA 43, 157 CLR 523

May v O’Sullivan (1995) 92 CLR 654

R v Fagundez(No 1) [2023] NSWDC 508

Category:

Principal judgment

Parties:

Rex (Crown)
Carlos Alberto Fagundez (Accused)

Representation:

Counsel:
S Richards (Crown)
A Bhasin (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Clover Legal (Accused)

File Number(s):

2021/126538

Publication restriction:

None

JUDGMENT: ex tempore

1. HIS HONOUR: By agreement between the parties and pursuant to s 132(1) of the Criminal Procedure Act 1986, I am hearing, without a jury the trial of the Accused on two charges:

1. On 29 January 2020 at Rosebery in the State of the New South Wales did possess child abuse material being photographic images stored on a mobile phone.

2. On 6 May 2021 at Rosebery in the State of the New South Wales did possess child abuse material being a video stored on a mobile phone.

2. At the conclusion of the Crown’s case, the Accused made a “no case to answer” submission.

3. As explained in May v O’Sullivan (1995) 92 CLR 654, the question to be decided on such an application is not whether on the evidence, as it stands, the Accused ought to be acquitted but whether on the evidence, as it stands, he could not lawfully be convicted. This is a question of law. The question for me is whether on the whole of the evidence tendered in the Crown case, taken at its highest, I am satisfied that there is sufficient evidence to allow the Accused to be lawfully convicted.

Count 1

The Crown case

4. In relation to Count 1, the Crown’s case is simple. It says that in the execution of a search warrant, a mobile phone in the possession of the Accused was seized and that forensic analysis of that phone has identified that in relation to three of the “DIB sample” images found on the phone (images 1, 2 and 3), those images…