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 166INTRODUCTION
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 24th 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…
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- [2015] SADC 166
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