R v Finnigan (No 3) - [2015] SADC 166

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FINNIGAN (NO. 3)
Criminal Trial by Judge Alone
[2015] SADC 166
Reasons for the Verdicts of His Honour Judge Millsteed
10 November 2015
CRIMINAL LAW
Trial by Judge alone - Defendant charged with Obtaining Access to Child Pornography ('Offence of Obtains Access') contrary to s 63A(1)(b) Criminal Law Consolidation Act 1935 (CLCA) and Attempted Obtaining Access to Child Pornography contrary to s 63A(1)(b) and s 270A of CLCA - Defendant alleged to have used personal computer to access and attempt to obtain access to child pornography on the internet - whether 'obtains access' required Defendant to have viewed images of child pornography for the purpose of the offence of Obtains Access - held: no such requirement - where the Prosecution have proved on the basis of computer cache records and their interpretation by police electronic specialist - that the Defendant had committed charged offences - Defendant found guilty of Count 1 but not guilty of Count 2.
Criminal Law Consolidation Act 1935 s 270A and s 63A(1)(b), referred to.
F, BV v Magistrates Court of South Australia (2013) 115 SASR 232; R v Finnigan [2014] SADC 34; R v Finnigan (No. 2) [2015] SADC 55; He Kaw Teh v R (1985) 157 CLR 523; Kural v The Queen (1985) 157 CLR 523; Saad v The Queen (1987) 61 ALJR 243; Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; Royall v The Queen (1991) 172 CLR 378, considered.

R v FINNIGAN (NO. 3)
[2015] SADC 166
INTRODUCTION

The Defendant, Bernard Vincent Finnigan, was tried before me sitting without a jury[1] on an information, containing two counts, filed ex officio by the Director of Public Prosecutions (SA) (‘the Director’). He is charged, in the first count, with Obtaining Access to Child Pornography contrary to s 270A and s 63A(1)(b) of the Criminal Law Consolidation Act, 1935 (CLCA) and, in the second count, with Attempted Obtaining Access to Child Pornography contrary to s 270A and s 63A(1)(b) of the CLCA.[2] The offences were alleged to have been committed at Sefton Park on 24 December 2010 and 12 April 2011, respectively.
[1]    The accused elected to be tried by judge alone pursuant to s 7 of the Juries Act (SA).
[2]    The information was expressed as follows:
First Count
Statement of Offence
Obtaining Access to Child Pornography (s63A(1)(b) of the Criminal Law Consolidation Act, 1935)
Particulars of offence
Bernard Vincent Finnigan on or about the 24^th of December 2010 at Sefton Park, intending to obtain      access to child pornography, obtained access to child pornography.
Second Count
Statement of Offence
Attempted Obtaining Access to Child Pornography (Sections 270A and 63A (1)(b) of the Criminal Law Consolidation Act, 1935)
Particulars of offence
Bernard Vincent Finnigan on or about the 12th of April 2011 at Sefton Park, intending to obtain access to child pornography, attempted to obtain access to child pornography.
For the reasons set out herein…

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.

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Details

Case: [2015] SADC 166
Decision Date: 10 November 2015

CaseChat Overview and Summary

Bernard Vincent Finnigan was tried on two counts: Count 1, Obtaining Access to Child Pornography, and Count 2, Attempted Obtaining Access to Child Pornography. The trial was conducted by Judge Millsteed in the District Court of South Australia. The court found Finnigan guilty of Count 1 but not guilty of Count 2. The decision hinged on the interpretation of the term 'obtains access' within the context of the Criminal Law Consolidation Act 1935. The court determined that the offence of 'obtains access' does not require the defendant to view the images of child pornography, provided they intentionally perform the final step to make the images available for viewing on their computer screen. The court relied on the expert evidence of Robert John Taylor, a police electronics specialist, who reconstructed websites from data stored in Finnigan's computer's hard drive. The court also examined the legislative intent behind the offence, finding that it was designed to combat the accessing of child pornography on the internet effectively. The court rejected the defence's argument that the offence required the defendant to view the images, emphasizing that such a requirement would unnecessarily complicate the prosecution of offenders. The court concluded that Finnigan was guilty of Count 1 but found insufficient evidence to support the charge of attempted obtaining access to child pornography in Count 2.

Orders