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 I find the Defendant guilty of Count 1 but not guilty of Count 2.
OVERVIEW
Prosecution case
In relation to Count 1, it was the Prosecution’s case that, on 24 December 2010, the Defendant used a personal computer to commit the offence of Obtaining Access to Child Pornography. The Prosecution contended that the Defendant conducted a ‘Google search’ on the Internet for the term ‘little teens’ and as a consequence of that search accessed multiple websites. A police electronics specialist, Robert John Taylor (‘Mr Taylor’), succeeded in rebuilding six of the accessed websites from data stored in the computer’s hard drive to show their textual and pictorial content at the time of the alleged offence. The Prosecution contended that three of the rebuilt websites contained images of ‘child pornography’, as defined in s 62 of the CLCA.
In relation to Count 2, the Prosecution contended that on 12 April 2011 the Defendant used another personal computer to commit the offence of Attempting to Obtain Access to Child Pornography. The Defendant is alleged to have conducted a Google search for the term ‘tiny porn’ and thereby accessed three websites through the results of that search. Because Mr Taylor was unable to rebuild any of those websites, there is no evidence that any of them contained child pornography. Nevertheless, the Prosecution submitted that it should be inferred from the Defendant’s use of the search term ‘tiny porn’ and his alleged repeated use of the search results that he attempted to obtain access to child pornography.
The Prosecution further alleged that the Defendant used a personal computer to conduct Google searches for the term ‘little girl sex’, on 7 December 2010, and ‘tiny babes blow’, on 19 March 2011 (‘the uncharged acts’). The web sites that were, or may have been, accessed as a result of those searches could not be rebuilt by Mr Taylor. However, the Prosecution argued that it could reasonably be inferred from the search terms used by the Defendant that he intentionally searched for child pornography on each of those occasions.
The Prosecution conceded that the uncharged acts constituted ‘discreditable conduct’ for the purposes of s 34P of the Evidence Act 1929 (SA) (‘the Evidence Act’) but argued that they were admissible under s 34P(2)(b). The Prosecution submitted that the uncharged acts indicated that the Defendant possessed a disposition or inclination to view child pornography which was relevant to show that on the charged occasions he intentionally obtained access to child pornography (Count 1) or attempted to do so (Count 2). The Prosecution argued that Counts 1 and 2 were cross-admissible under s 34P(2)(b) for the same purpose.
Defence case
The Defendant did not give evidence. However, his counsel Mr M.L. Abbott QC, conducted a detailed and complex attack on the competence of the work performed, and the validity of the findings made, by Mr Taylor. In relation to Count 1, the Defence admitted that the Defendant had entered the search term ‘little teens’ into his computer on 24 December 2010 but argued that the Prosecution had failed to prove that he obtained accessed to any website containing child pornography or that he did so intentionally. In relation to Count 2 the Defence argued that the Prosecution had failed to prove that the Defendant entered the search term ‘tiny porn’ or that he had in any way attempted to obtain access to child pornography.
The Defence further contended:
·that the Prosecution had failed to prove the uncharged acts;
·that the uncharged acts were, even if proven, inadmissible under s 34P; and
·that Counts 1 and 2 were not cross-admissible under s 34P.
HISTORY OF PROCEEDINGS
Pre-trial history
The Defendant was arrested in relation to this matter on 20 April 2011.
On 23 September 2012 he was committed for trial in this Court on one count of Aggravated Obtaining Access to Child Pornography and five counts of Obtaining Access to Child Pornography.
On 30 January 2013, following an application by the Defendant for judicial review, the Full Court of the Supreme Court of South Australia, set aside the order of committal and remitted the matter to the committing magistrate for further consideration due to his purported misunderstanding of the element of aggravation alleged in the charged offences.[3]
[3] F, BV v Magistrates Court of South Australia (2013) 115 SASR 232.
On 21 May 2013 the Defendant was again committed for trial in this Court on one count of Aggravated Obtaining Access to Child Pornography.
On 12 June 2013 the Director filed, ex officio, an information for arraignment on 17 June 2013, charging the Defendant with one count of Aggravated Possessing Child Pornography and one count of Taking a Step to Access Child Pornography.
On 17 June 2014 the Defendant filed an application for an order that proceedings on the information be permanently stayed on the ground that both counts were foredoomed to fail. The Defendant contended:
· that the prosecution of Count 1 would fail because the Director could not prove the element of aggravation, namely, that children depicted in images, the subject of the charge, were under 14 years of age at the time the images were created; and
· that the prosecution of Count 2 would fail because the Director could not prove that the Defendant took a step that ‘would’ have led him to obtain access to child pornography.
The hearing of the first stay application took place in late 2013.
On 5 March 2014 I delivered my written ruling in relation to the application (‘first stay ruling’).[4] I dismissed the Defendant’s application in relation to Count 1, ruling that it would be open to a jury to infer from the mere appearance of the children depicted in the subject images that at least some of them were under the age of 14 years. I granted the Defendant’s application in relation to Count 2 but observed that he might have a case to answer on a charge of ‘attempting’ to obtain access to child pornography.
[4] R v Finnigan [2014] SADC 34.
On 18 March 2014 the Director filed, ex officio, a new information for arraignment on 24 March 2014 charging the Defendant with Aggravated Possessing Child Pornography (Count 1) and Attempted Obtaining Access to Child Pornography (Count 2).
On 21 March 2014 the Defendant filed an application for a permanent stay of proceedings on the new information on the basis that both counts were foredoomed to fail. In relation to Count 1, the Defence proposed adducing expert evidence, on the hearing of the application, to show that the mere appearance of the children in the subject images could not be relied upon as a sound basis for inferring that they included children under 14 years of age. In relation to Count 2, the Defence contended that ‘attempted obtaining access to child pornography’ was not an offence known to the law.
On 22 July 2014 the Director filed the information upon which the Defendant was tried before me. Count 1 (Obtaining Access to Child Pornography - basic offence) replaced the earlier charge of Aggravated Possessing Child Pornography (Count 1). Count 2 (Attempted Obtaining Access to Child Pornography) remained the same. Accordingly, the Defendant’s application for a stay of proceedings on Count 2 remained alive but his application in relation to Count 1 became redundant because the Prosecution abandoned the allegation of aggravation.
On 28 July 2014 I heard the stay application in relation to Count 2 and reserved my ruling.
On 31 July 2014 I fixed a date for trial on the basis that a trial was inevitable, at least in relation to Count 1. The trial was listed to commence on 13 April 2015, the earliest available date.
Correspondence between the Prosecution and the Defence
During the weeks leading up to the trial the Defendant’s solicitor, Ms H Doyle, sought particulars from the Prosecution in relation to the evidence they intended to present in respect of the charged offences. This resulted in the following exchange of letters:
·on 20 March 2015 Ms Doyle requested ‘as a matter of urgency, the paragraphs or pages of the Declarations upon which the Director intended to rely in respect of the (currently) remaining two charges’;
·on 20 March 2015 the Prosecution indicated that before they could respond they wanted to know inter alia whether the Defendant disputed that he was using the computer at all material times and whether the Defence was prepared to identify, in general terms, the trial issues;
·on 23 March 2015 Ms Doyle informed the Prosecution that the Defence would not provide the requested information and reiterated her request for the particulars, as set out above;
·on 24 March 2015 the Prosecution advised that the Defence should proceed on the basis that the Prosecution would be ‘relying on all of the declarations and all of the evidence contained therein’;
·on 2 April 2015 Ms Doyle advised that the Defence would file an application for the exclusion of evidence, to be served the following week.
Events closer to trial
On 9 April 2015 I delivered my ruling dismissing the application for a stay of proceedings on Count 2 (‘second stay ruling’)[5] and made an order that the trial proceed on both counts.
[5] R v Finnigan (No.2) [2015] SADC 55.
Mr Abbott immediately filed a written application by the Defendant for trial by judge alone. I granted the application which was not opposed by Mr M Norman SC, counsel for the Director. Mr Norman indicated that he was not in a position to file a Notice of Intention to Adduce Discreditable Conduct Evidence pursuant to s 34P(4) of the Evidence Act until he had read the second stay ruling.
During the hearing on 9 April 2015 Mr Abbott foreshadowed that the Defence would file an application for the exclusion of evidence. Later that same day the Defence filed a Rule 49 Application (‘First Rule 49 Application’) pursuant to the District Court Rules 2013. The application applied for a ruling that counts 1 and 2 were not cross-admissible and for the exclusion of evidence relating to the uncharged acts and certain tests performed by Mr Taylor on 8‑9 April 2015. The admissibility of other items of evidence was challenged but due to an agreement subsequently reached between the Prosecution and the Defence, I was not called upon to rule on those matters.
On the following day, Friday 10 April 2015, the Prosecution served the Defence with a draft of a ‘Notice of Intention by the Director to Adduce Discreditable Conduct Evidence’ (‘the Draft Discreditable Conduct Notice’) which indicated that the Prosecution proposed to adduce discreditable conduct evidence in relation to each count.
The Draft Discreditable Conduct Notice described the proposed evidence in the following terms:
The nature of the discreditable conduct is obtaining access to, and attempts on multiple occasions to obtain access to child pornography, in particular by entering particular search terms into an internet search engine (Google) with the intention of accessing child pornography.
The Draft Discreditable Conduct Notice asserted that the proposed evidence was admissible in relation to each count under s 34P(2)(b) for the following purposes:
i.       To demonstrate a particular interest in accessing and viewing child pornography via the internet.
ii.       To prove the defendant was the user of the computer on the charged occasion and that the [computer’s] behaviour was caused by deliberate input by him.
iii.      To prove that the defendant was intending to access child pornography at the time of searching for and accessing the relevant websites.
The Trial
The trial commenced on 13 April 2015. Mr Norman and Mr C Edge appeared for the Director. Mr Abbott and Ms Doyle appeared for the Defendant. The Prosecution called one witness, namely the police electronics specialist, Mr Taylor. As earlier mentioned, the Defendant did not give evidence or call any witnesses. Both the Prosecution and the Defence tendered exhibits, which included a set of agreed facts (Exhibit P1). Counsels’ closing oral addresses, and supplementary written submissions, were presented on 20 April 2015.
Following the Defendant’s arraignment and prior to the Prosecution’s opening address:
·Mr Norman tendered a Notice of Intention to Adduce Discreditable Conduct Evidence signed and dated 13 April 2015 (‘the signed Discreditable Conduct Notice’), which was in the same terms as the Draft Discreditable Conduct Notice;[6]
·The Defence filed an ‘Addendum Rule 49 Application’ (‘Second Rule 49 Application’) which effectively restated the challenges to the evidence referred to in the First Rule 49 Application in relation to which counsel had been unable to reach agreement.
[6] The Prosecution completed both the Draft Discreditable Conduct Notice and the signed Notice of Intention to Adduce Discreditable Conduct Evidence in Form 15, purportedly pursuant to Rule 61(1)(a) of the District Court Criminal Rules 2014. The notices, however, were required to be in an approved form and filed pursuant to Rule 61 of the District Criminal Rules 2013. The 2013 Rules applied because the ‘proceedings’ against the Defendant had commenced before the 2014 Rules came into operation on 1 April 2014 (Rule 8 District Court Criminal Rules 2014). However, nothing turns on this point because the approved form under the 2014 Rules (Form 9: District Court Supplementary Rules 2014) is, for all relevant purposes, substantially the same as Form 15 in the 2013 Rules.
On 20 April 2015 the Defence filed, prior to counsels’ closing addresses, an application for the exclusion of certain evidence given by Mr Taylor on the basis that he lacked the expertise to ‘rebuild’ websites and to analyse ‘Uniform Resource Locators’ and ‘Redirects’ referred to in computer ‘Internet and Cache Histories’ (‘Third Rule 49 Application’).
Counsel agreed that I should receive all of the challenged evidence de bene esse. In the result, the admissibility of evidence received on the trial which I am required to rule upon comprises the following: (i) the uncharged acts, (ii) the tests performed by Mr Taylor on 8-9 April 2015 and (iii) the matters referred to in the paragraph immediately above. These reasons contain my rulings in respect of both applications, to the extent that I have found it necessary to do so.
APPLICABLE LAW
Fundamental Principles
In reaching my verdicts I have kept in mind the following fundamental principles:
·The Defendant is presumed innocent of each of the charged offences and of each of the uncharged acts alleged against him.
·The Prosecution bears the onus of proving beyond reasonable doubt the Defendant’s guilt in respect of each of the charged offences. This onus of proof also applies to the uncharged acts. The Defendant carries no onus.
·No adverse inference may be drawn against the Defendant by reason of his decision to exercise his legal right to remain silent on his trial.[7]
[7] Petty v Maiden (1991) 173 CLR 95.
Circumstantial Evidence
The Prosecution’s case in respect of each of the charged and uncharged acts is circumstantial in nature. I have reminded myself that when the case against an accused person rests substantially on circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.[8] To enable a trier of fact to be satisfied beyond reasonable doubt of the guilt of an accused person it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable the trier of fact to draw.[9]
[8] Peacock v R (1911) 13 CLR 619 at 634.
[9] R v Plomp (1964) 110 CLR 234 at 252.
Of course, mere speculation or conjecture does not constitute a reasonable inference. As the High Court said in Peacock v R:[10]
[A]n inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.
[10] Peacock v R (1911) 13 CLR 619 at 661; quoted with approval in Barca v The Queen (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ).
In the Canadian case R v Villaroman[11] Yamauchi J discussed the distinction between an inference and mere conjecture:[12]
This Court cannot rely on speculation to support any inferences it might draw. The inferences are drawn from the evidence that the Crown presents to it. As Cunningham ACJSCJ said in R v Latif, [2004] O.J. No 5891 (Ont. S.C.J.) at para 4, aff’d (2005), 66 W.C.B. (DD) 327, [2005] O.J. No. 2952 (Ont. C.A.):
[T]here is a considerable difference between speculation and inference, inference being “a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be establish [sic] is deduced as a logical consequence from other facts or a state of facts already proved or admitted.”
Speculation, on the other hand, involves the process of “forming a theory or conjecture without factual basis”: R v. Mullings, [2005] O.J. No. 2962 (Ont. S.C.J.) at para 33 [Mullings]. As Ducharme J said in R v. Munoz (2006), 86 O.R. (3d) 134 (Ont. S.C.J.) at para 31, (2006), 205 C.C.C. (3d) 70 (Ont. S.C.J.):
Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative and that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn. As Fairgrieve J. noted in R v. Ruiz, [2000] O.J. No. 2713 (Ont. C.J.) at para. 3, “Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence.”
These cautions cut both ways. In other words, the Crown cannot ask this Court to rely on suppositions or conjecture to draw inferences that the accused committed the offences with which it has charged him. Similarly, the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him. As the Supreme Court of Canada stated in R. v. Paul (1975), [1977] 1 S.C.R. 181 (S.C.C.) at 191.
[11] 2013 ABQB 279 (Alberta Court of Queen’s Bench).
[12] 2013 ABQB 279 at [45]-[47].
Legislation

The Defendant is charged with offences contained in Pt 3, Div 11A of the CLCA. At the time of the alleged offences, Div. 11A relevantly stated:
62—Interpretation
In this Division-
child means a person under, or apparently under, the age of 16 years;
child pornography means material-
(a)     that -
(i)     describes or depicts a child engaging in sexual activity; or
(ii) consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and
(b)     that is intended or apparently intended-
(i)     to excite or gratify sexual interest; or
(ii)      to excite or gratify a sadistic or other perverted interest in violence or cruelty;
...
material includes-
(a)     any written or printed material; or
(b)     any picture, painting or drawing; or
(c)     any carving, sculpture, statue or figure; or
(d)     any photographic, electronic or other information or data from which an image or representation may be produced or reproduced; or
(e)     any film, tape, disc, or other object or system containing any such information or data;
...
pornographic nature of child pornography means the aspects of the material by reason of which it is pornographic.
63A—Possession of child pornography
(1)     A person who-
(a)     is in possession of child pornography knowing of its pornographic nature; or
(b)     intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
Maximum penalty:
(a)     for a first offence-
(i)     if it is a basic offence - imprisonment for 5 years;
(ii)      if it is an aggravated offence - imprisonment for 7 years;
(b)     for a subsequent offence-
(i)     if it is a basic offence - imprisonment for 7 years;
(ii)      if it is an aggravated offence - imprisonment for 10 years.
(2)It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant's possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.
…
Obtaining access to child pornography
The Defendant is charged in Count 1 with Obtaining Access to Child Pornography (basic offence), contrary to s 63A(1)(b). For the Defendant to be found guilty of this offence the Prosecution must prove that:
·he voluntarily performed an act or acts;
·he performed the act(s) with the intention of obtaining access to child pornography (recklessness in that regard is not sufficient);[13] and
·the act or acts caused him to ‘obtain access’ to child pornography.
[13] F, BV v Magistrates Court of South Australia (2013) 115 SASR 232 at [48] Kourakis CJ.
The expression ‘obtains access’ is not defined in the CLCA and its meaning, in the context of s 63A(1), has not been previously considered by any court. The meaning of the expression assumed importance in this case, particularly with respect to Count 1, and was the subject of substantial argument. I canvass this topic after setting out the elements of the offence of attempting to obtain access.
Attempting to obtain access
The Defendant is charged in Count 2 with Attempting to Obtain Access to Child Pornography pursuant to ss 63A(1)(b) and 270A(1) of the CLCA. Section 270A(1) provides that ‘a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence’. Prior to my second stay ruling delivered on 8 April 2015, the question of whether such an offence exists at law had not been judicially determined. I remain of the view that such an offence exists for the reasons set out in the second stay ruling.[14] There is no need to repeat those reasons.
[14] R v Finnigan (No.2) [2015] SADC 55.
Taking a step to obtain access to child pornography (s 63A(1)(b)) and attempting to obtain access to child pornography are similar overlapping inchoate crimes. To commit the former, the step must advance, in a sufficiently material way, the offender along the path of obtaining access to child pornography. If the step is not a material step, in a series of steps, which if taken ‘would’ yield access to child pornography, the charge must fail.[15]
[15] F, BV v Magistrates Court of South Australia (2013) 115 SASR 232 at [49]-[50] Kourakis CJ.
However, a defendant may be found guilty of attempting to commit an offence that the defendant was unable to complete either because the means employed were insufficient (‘insufficient means’) or because the commission of the offence was a physical or factual impossibility (‘factual impossibility’).[16] The example I gave in the second stay ruling illustrates the point:[17]
If a person places a written order for child pornography but posts it to the wrong address or places an order over the internet for such material but keys in the wrong website (examples of insufficient means) or, unbeknownst to the accused, the website had since closed down or had deleted child pornographic material from its holdings (examples of physical impossibility) such conduct would not involve taking a step that would yield access to child pornography. However, in my view, any such behaviour would clearly constitute an attempt to access such material.
[16] See R v Irwin (2006) 94 SASR 480 at [10]-[30] (Bleby J with whom Duggan and Anderson JJ agreed).
[17] R v Finnigan (No.2) [2015] SADC 55 at [51]-[52].
The elements of an ‘attempt’ under s 270A are not defined in the CLCA but are informed by the common law. The common law has generally drawn a distinction between preparing to commit a crime and attempting to commit it. In Britten v Alpogut[18] Murphy J defined an attempt at common law as follows:[19]
[A] criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.
[18] [1987] VR 929.
[19] [1987] VR 929 at 938.
This definition was approved by the Court of Criminal Appeal (SA) in The Queen v Irwin.[20]
[20] (2006) 94 SASR 480.
Accordingly, a person commits the offence of Attempting to Obtain Access to Child Pornography if the person takes a step or steps towards obtaining access to child pornography which go beyond mere preparation and are sufficiently proximate to the commission of the offence. The steps must have been taken by the person with the intention of obtaining access to child pornography. Mere recklessness in that regard is insufficient.
For the Defendant to be found guilty of the offence of Attempting to Obtain Access to Child Pornography, the Prosecution must prove:
·that he voluntarily performed an act or acts;
·that he performed the act or acts with the intention of obtaining access to child pornography, recklessness is not sufficient; and,
·that his conduct amounted to taking a step, or steps, to obtain access to child pornography.
The meaning of ‘obtains access’
The Macquarie Dictionary (2^nd ed) defines the transitive verb ‘obtain’ to mean ‘to come into possession of; get or acquire; procure as by effort or request’ and the noun ‘access’ to mean ‘way, means or opportunity of approach or entry’. The expression ‘obtains access’ is ambiguous because, as the Defence argued, it could refer to circumstances where a person obtains the ‘ability to get something’ or to ‘the actual getting of something’.
Summary of submissions
The Defence argued that even if the Prosecution could prove that the Defendant intentionally ‘clicked on’ a website containing images of child pornography the Defendant should be acquitted if the Prosecution failed to establish beyond a reasonable doubt (i) that images of child pornography were displayed on the computer screen and (ii) that the Defendant saw or had the capacity to see them.
In relation to the second proposition, it was submitted that the Defendant’s view of particular images depicting children may have been blocked or obscured by ‘pop-ups’ and ‘automatic redirects’ that had been loaded on top of them. The Defence argued that the Prosecution is required to prove that the Defendant ‘knew’ he had obtained access to images of child pornography. This required proof that he had seen the images otherwise he could not have known they were on the computer screen.
The Prosecution contended that this construction was too narrow and submitted that the Defendant would have obtained access to child pornography if he had:
·caused data constituting child pornographic images to be transmitted from websites to his computer; and/or,
·made the images ‘available’ for display on his computer irrespective of if, when or how the images were actually viewed.
Finding: viewing not required
I reject the Defence submission that images of child pornography must be seen before the offence of ‘obtains access’ can be committed.
In my opinion, a person who clicks on a website with the intention of viewing images of child pornography obtains access to such images if they are made available for viewing on the computer screen even if the person, for one reason or another, does not in fact see them. In other words, the person obtains access at the moment he or she initiates the transmission by clicking on the website. If it turns out that, in conformity with the person’s intention, the images which were transmitted in fact comprised or contained images of child pornography the offence of ‘obtains access’ will have been made out.
In any event, if the provision is construed as requiring proof that the person knew that there were images of child pornography available for viewing on the computer screen, at the time they were available for viewing, it does not follow that such knowledge can only be established through the person having seen the images. Knowledge may be inferred from a range of circumstances including a realisation on the part of a person experienced in viewing material on the Internet, as the Defendant was, that clicking on a website will result in images from that website being made available for viewing on the computer screen even if other material happened to come in over the top of those images. I will return to this point when I canvass the evidence relating to count 1.
Reasons for finding
As a matter of general statutory construction, each of the three offences created by s 63A(1) must have some discrete area of operation, even if there is a degree of overlap, in order to have some work to do. Thus to determine the scope of the offence of ‘obtains access’, it is instructive to consider the elements of the other offences created by s 63A(1): the offence of ‘possession’; and the offence of ‘taking a step’. Plainly, ‘obtains access’ means something different to ‘possession’ and amounts to something more than ‘taking a step’.
Possession
The common law provides that to be in possession of an item a person must intend to have custody or control over the item. This necessarily requires that the person knows or is aware that the item is in his or her possession.[21] This is the minimum knowledge required for a person to be in possession of an item, as distinct from the question of whether the person was aware of the nature and quality of the item in question.[22]
[21] R v Mateiasevici [1999] 3 VR 185; He Kaw Teh v R (1985) 157 CLR 523 at 542 (Gibbs CJ) 585 (Brennan J), 600 (Dawson J); DPP v Brooks [1974] AC 862 at 866 (Lord Diplock).
[22] R v Shew [1998] QCA 333 at [18]; R v Boyce (1976) 15 SASR 40 at 46 (Bray CJ); R v Boyesen [1982] A.C. 768 at 733-774 (Lord Scarman).
In relation to statutory offences, knowledge of the circumstances which make the doing of the act an offence is presumed to be an element of the offence unless the statute clearly indicates otherwise.[23] Accordingly, statutory offences which prohibit possession of an item are presumed to require, as an element of the offence, that the person knew that he or she had physical control or custody of the item and had knowledge of the criminal character of the item. For example, where a person is charged with possession of a prohibited drug the prosecution must establish that the person knew not only that the substance was in his or her physical control or custody but that it was a prohibited drug[24] (though proof of knowledge of the precise nature of the drug is not required).[25]
[23] He Kaw Teh v R (1985) 157 CLR 523 at 582 (Brennan J).
[24] Saad v The Queen (1987) 61 ALJR 243 at 242 (Mason CJ and Deane and Dawson JJ); He Kaw Teh v R (1985) 157 CLR 523 at 589.28 (Gibbs CJ), 589 (Brennan J); R v Mason (2000) 77 SASR 105.
[25] See Dunn v R (1988) 32 A Crim R 203.
Where the word ‘knowingly’ is used in a statute it expressly introduces knowledge as an element of the offence. However, when used to qualify the requirement of ‘possession’ (for example ‘knowingly have possession of a prohibited drug’) ‘it is superfluous and adds nothing to the ordinary requirements of proof of the necessary mental state associated with possession’,[26] absent some contrary indication in the legislation.
[26] R v Mason (2000) 77 SASR 105 at [67] (Bleby J).
Section 63A(1)(a) makes it an offence for a person to be in possession of child pornography ‘knowing of its pornographic nature’. If the words ‘knowing of its pornographic nature’ were not in the provision, the prosecution would be obliged to prove that the accused person knew that the material comprised or contained ‘child pornography’. However, in s 63A(1)(a) the word ‘knowingly’ is used to make plain that the requirement of knowledge is limited to the pornographic nature of the material. In other words, the Prosecution is not obliged to prove that an accused person knew that the pornographic material involved a ‘child’ (a person under or apparently under 16 years of age).
This interpretation accords with the decision of Bleby J in Police v Kennedy[27] which concerned the elements of the offence of ‘possession of child pornography’ contained in s 33(3) of the Summary Offences Act 1953 (SA) (the immediate predecessor of s 63A(1)(a)).[28] His Honour held that while the prosecution was required to prove that the Defendant was knowingly in possession of pornographic material as defined in the legislation, it was not required to establish that he knew or was aware that it concerned a ‘child’. He considered that to find otherwise would serve to defeat the object and purpose of the legislation which was the prevention of the sexual abuse and exploitation of children.
[27] (1998) 71 SASR 175.
[28] Section 33(a) of the Summary Offences Act 1953 defined 'child pornography' to mean 'indecent or offensive material (whether engaged in sexual activity or not) depicted or described in a way that is likely to cause serious and general offence amongst reasonable adult members of the community'. The section was repealed and replaced by s 63A(1)(a) by force of Act 52 of 2004 (Criminal Law Consolidation (Child Pornography) Amendment Act) 30 January 2005.
Bleby J said:[29]
Thus far, I have looked at the history, the apparent object and purpose of the section and its actual terms. These all seem to suggest a lack of necessity to prove knowledge or absence of reasonable belief of the age of the persons depicted or described. Would such an interpretation lead to unfortunate or harsh results? Would it allow punishment of completely innocent victims? I think not, provided that the requirement for proof of knowledge that the material is possessed and of its generally indecent or offensive nature is adhered to. The possessor of such material, even if he or she may have a genuine belief that the subjects are under 16, runs a risk that if the possession contuse, and he or she is apprehended, a court may find that the subjects depicted or described are apparently under the age of 16.
[29] (1998) 71 SASR 175 at 186.
In my view, the elements of the offence of possession of child pornography contained in s 63A(1)(a) may be summarised as follows:
·the person had physical control or custody of the material in question;
·the person intended to have physical control or custody of the material;
·the material comprised or contained ‘child pornography’ (as defined in s 62);
·the person knew or was aware of the ‘pornographic nature of the material’.
The knowledge requirements discussed above do not mean, of course, that the person must actually see the material before it can be said to be in his or her possession. As Welch JA remarked in R v Daniels (a case involving a charge of possession of child pornography in the form of material located on a computer hard drive):[30]
To be in possession of child pornography, it is not necessary for the individual to have viewed the material. For example, a person may obtain pornographic material in an envelope, but without viewing it, either place it in a drawer or dispose of it in the garbage. It is the element of control, including deciding what will be done with the material that is essential to possession.[31]
[30] (2004) 191 C.C.C. (3D) 393 (N.L.) at [12].
[31] R v Daniels (2004) 191 C.C.C. (3D) 393 (N.L.) at [12]; R v Chalk (2007) ONC 815 at 25.
It is clear that the offence of possession of child pornography has limited application in relation to persons who use the internet to access child pornography. A person does not commit the offence of possession of child pornography merely by viewing images of such material on a computer screen.[32] For example, a person who looks at child pornography on a public computer, or on another person’s computer, cannot without more be found guilty of possession.[33] In order to commit the offence of possession, the person must knowingly acquire the data files and store them in a place under his or her control. It is the underlying data that is the stable object that can be transferred, stored and possessed. The automatic caching of a file to a hard drive as a result of viewing child pornography on the internet does not without more constitute possession.[34]
[32] R v Morelli [2010] 1 SCR 253, 72 CR (6th) 208 at [29] Fish J (Supreme Court of Canada).
[33] R v Leask [2012] BSSC 186 at [33].
[34] R v Morelli [2010] 1 SCR 253, 72 CR (6th) 208; R v Daniels (2004) 191 C.C.C. (3D) 393 (N.L.).
Division 11A was inserted by the Criminal Law Consolidation (Child Pornography) Amendment Act in 2005. The Division widened and strengthened the laws governing child pornography and related offences.[35] As Doyle CJ observed in R v Clarke:[36]
As the Second Reading Speech by the Attorney-General on the Bill makes plain (Hansard, House of Assembly, Tuesday, 26 October 2004, p 561) the purpose of the legislation is to protect children from exploitation, degradation and humiliation through child pornography. The aim of the legislation is to reduce, and as far as possible eliminate, possession, production, supply and sale of child pornography. In part this was by increasing penalties, and in party by the introduction of new offences. As well, the definition of child pornography was widened.
[35] For a summary of the changes made by Div 11A, see R v Gedling (2007) 252 LSJS 8 at [16]-[24].
[36] (2008) 100 SASR 363 at [18].
The Second Reading Speech does not mention the reasons for the proposed offence of ‘obtains access’ but it is clear that the limitations on the offence of possession, as discussed above, must have been a key reason for its creation. As Kourakis CJ observed in F, BV v Magistrates Court (SA),[37] the offence of obtaining access to child pornography ‘does not require the degree of control over the pornographic images which is required for the offence of possession’.
[37] (2013) 115 SASR 251 at [47].

Having regard to the policy underpinning the introduction of Div 11A, it is difficult to accept that Parliament intended that to prove the offence of ‘obtains access’ it is necessary for the Prosecution to establish that the accused saw the relevant images when no such requirement applies to the offence of possession - an offence considered too narrow to deal effectively with the accessing of child pornography on the internet and, perhaps, generally.
Furthermore, it should be noted that while s 63A(1)(a) expressly stipulates that the offence of possession requires knowledge of the ‘pornographic nature’ of the subject material, no such requirement applies to the offences of ‘taking a step’ and ‘obtains access’. If Parliament had intended that the offence of ‘obtains access’ should be subject to the same knowledge requirement as the offence of possession it could easily have said so.
The omission is significant and indicates that it was Parliament’s intention that offences against s 63A(1)(b) could be committed without the offender ‘knowing’ of the material’s pornographic nature, less still knowing that the material depicted a ‘child’.[38] This plainly makes sense in relation to the offence of taking a step. It also makes sense if the offence of ‘obtains access’ does not require the offender to have seen the material at the time that he or she caused the transmission of images from a website to his or her computer.
[38] See generally R v Clarke (2008) 100 SASR 363 at [22] Doyle CJ.
Taking a step
This brings me to the elements of the offence of ‘taking a step’. Under s 63A(1)(b) ‘a person who ... intending to obtain child pornography ... takes a step towards obtaining child pornography is guilty of an offence’. The offence is directed at a person taking a step. As I earlier stated, the step must advance, in a sufficiently material way, the offender along the path of obtaining access to child pornography. If the step is not a ‘material’ step, in a series of steps, which if taken ‘would’ yield access to child pornography, the charge must fail.[39]
[39] F, BV v Magistrates Court of South Australia (2013) 115 SASR 232 at [49]-[50] Kourakis CJ.
Obtains access
The distinction between the offences of ‘taking a step’ and ‘obtaining access’ is that the latter is committed when a person is not required to take any more steps to obtain access to child pornography. As the Defence put it, in their written submissions: ‘…a step short of ‘obtaining access’ does not constitute ‘obtaining access’ because otherwise the offence of ‘obtaining access’ would have no work to do’. If the person’s conduct involves taking the ‘final material step’ then the offence of ‘obtains access’ is committed. The final step is one that results in the person obtaining access to child pornography in circumstances which do not amount to possession of the material.
In my opinion, an obtaining of access, in the context of this provision, occurs when the final material step involves making the material available for viewing though the viewing may not be immediate or occur at all. This interpretation of s 63A(1)(b), accords with Parliament’s intention that an offender is not required to know that he or she has accessed material of a pornographic nature when the final step is performed.
Applying what I have said to the alleged facts in this case, if the Defendant clicked on a website with the intention of viewing images of child pornography he would have performed the final material step required to make the images available for display on the computer screen. The fact that electronic activity would need to take place to facilitate the transmission of images from the website to the computer’s screen is of no consequence. The offence is not concerned with automated steps taken by a machine but with intentional steps taken by the person charged with the offence, or possibly an accessory or ‘innocent agent’.
By performing the final step the Defendant would have obtained access to the website’s images provided they were made available for display on the computer screen, regardless of whether he saw them immediately or at all. Such conduct would amount to obtaining access to images of ‘child pornography’ if, in conformity with his criminal intention, it transpired that the images comprised or contained images of that nature. However, if it could only be proven that the Defendant engaged in some activity falling short of the final step, say entering a search term for child pornography, the charge would fail. Such conduct would be covered by the offence of taking a step or attempted obtaining access.
It might be said that if images are transmitted to the computer screen that it might be necessary for the computer user to take the further step of removing images that may have come in over the top of the child pornography. I would not regard such steps as material. The final material step is the transmission which makes the images ‘available for display’.
To interpret the notion of access in the manner contended for by the Defence would defeat the manifest intention of the legislation by making it unnecessarily difficult to prove the offence, which is obviously directed at the evil of people going to websites to access child pornography. As the Prosecution submitted:[40]
The logical and absurd reduction of an argument that the actus reus of the offence only be committed when an accused looked at a particular image would be that an accused could deliberately download a website containing a handful of adult pornographic images and thousands of images of the worst type of pornography onto his computer screen but never be prosecuted because it could never be proved precisely when the accused trained his or her eyes on a particular image.
[40] Prosecution’s written submissions at [111].
The defence in s 63A(2)
The Defence sought to rely on the defence contained in s 63A(2). The argument was put in the Defence written submissions, as follows:
5.27Further, when considering the words of the statute, regard should be had to the defence in section 63A(2):
It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant’s possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.
5.28The defence is expressed to apply to the whole of section 63A(1), which would mean that it applies to both section 63A(1)(a) (“possession”) and 63A(1)(b) (“obtaining access”) in circumstances where the access constituted possession (albeit temporary).
5.29Section 63A(2) refers to the material “coming into the defendant’s possession” and the defendant subsequently “becoming aware” of the material and its pornographic nature. It is obviously not the Defence’s case that this defence applies.[41]
5.30The Defence submits that:
5.30.1Parliament intended this defence to be available in respect of any unsolicited material;
5.30.2the Defence’s construction of section 63A(1)(b) “obtaining access” in the case of computer offences, meaning the exercise of some “control” resulting in viewing supports the availability of this defence in certain circumstances where the Defendant obtains “access” but may also in some cases have “possession” (albeit temporary);
5.30.3accordingly, the use of the term “becoming aware” of the material and its nature further supports the Defendant’s construction that access must be knowing access, ie, the Defendant is aware of its existence (and its pornographic nature).
[41] R v Shore [2013] SADC 135 – the Defendant conceded having viewed the material. In R v Reilly [2013] SASCFC 106, the evidence contained direct observation of the Defendant viewing the material (by means of CCTV footage and an eyewitness). In Phillips v Police [2010] SASC 240, the factual basis of the plea was articulated as follows: “It was accepted that on 7 February 2009 he had used the internet to search the expression ‘pedo pics’ and had thereby gained access to a child pornography site. There he saw 34 images. He did not download them”. In James, Wayne Andrew (19 March 2015, Lovell J), the Defendant’s factual basis for the plea was an admission that he had used various computers to access child pornography through various websites, had clicked on and viewed images and then exited websites, but that he did not save or share those images. The images were only stored on the Defendant’s computer as “Temporary Internet Files” as part of the internet history, which was done automatically and without the Defendant’s knowledge.
With respect, there is no substance in this argument. The defence has no application to offences under s 63A(1)(b) because it expressly applies only to the offence of ‘possession’. Furthermore, the defence is directed at circumstances where a person contends that he or she has received ‘unsolicited’ child pornography over the Internet or possibly by some other means (say through the post). A person who receives unsolicited child pornography may be guilty of possessing it if after receiving it he or she intentionally retains possession of it. To avoid conviction in a case where the issue of unsolicited material is raised the onus is thrown on the defendant to prove (on the balance of probabilities) that he or she took reasonable steps to get rid of the material. But in order to commit the offence of ‘obtains access’, the prosecution must prove that the person intended to access child pornography. Material obtained pursuant to such an intention could never be regarded as ‘unsolicited’.
The decision of the Court of Criminal Appeal in F, BV
Mr Abbott relied upon passages in the judgments of the Full Court in F, BV v Magistrate’s Court of South Australia[42] as support for his contention that the offence of ‘obtains access’ is a viewing offence.
[42] (2013) 115 SASR 232.
At the outset it should be observed that in F, BV the Full Court was concerned with the specific question of whether the aggravating circumstance set out in s 5AA(1)(e), (victim was under 14 years of age at the time of the offence), could be applied to offences under s 63A(1). The members of the Court made only passing reference to the offence of ‘obtains access’ and were not called upon to address the precise issue that has arisen here. The passages upon which Mr Abbott relies constitute dicta which, in any event, cannot reasonably be construed as supporting his argument.
The first passage appears in the judgment of Kourakis CJ. In the course of setting out the provisions contained in Div 11A, his Honour broadly categorised the offences created by the Division. In relation to the offences set out in s 63A(1), he said:[43]
I will refer to an offence against s 63A(1)(a) of the CLCA as an offence of possession, and the offences against s 63A(1)(b) of the CLCA as offences of accessing and taking a step to access child pornography respectively. I will refer to the offences collectively as viewing offences.
[43] (2013) 115 SASR 232 at 238 [3].
When his Honour’s judgment is read as a whole it is perfectly obvious that he was not intending to say that these offences necessarily required proof that the offending images had to be seen by the person. Indeed, he could hardly have meant that because on any sensible interpretation the offence of ‘taking a step’ would clearly apply to non-viewing situations. In my opinion, the Chief Justice merely gave the offences in s 63A(1)(b) a general label for ease of reference when discussing broad categories of offences contained in Div 11A.
The other passage upon which Mr Abbott relied was the following general observation made by Gray J:[44]
Section 63A(1)(b) of the Criminal Law Consolidation Act creates two basic offences. The two offences are different in that one is in the nature of a completed or substantive offence and the other an inchoate offence.
[44] (2013) 115 SASR 232 at 268 [122].
This general passage does not cut across my interpretation of s 63A(1). The offence of ‘obtains access’ is a substantive offence; it occurs and is completed upon the accused person performing the final step required to make child pornography available for viewing, unlike the offence of ‘taking a step’ which is directed at steps preceding the final step.
Other jurisdictions
Mr Norman and Mr Abbott drew my attention to legislation in other jurisdictions which proscribe the ‘accessing’ of child pornography. Within Australia only Tasmania and the Commonwealth have legislation which specifically proscribes the ‘accessing’ of such material.
Section 130D of the Criminal Code (Tas) 1924 provides:[45]
130D Accessing child exploitation material:
A person who, with intent to access child exploitation material, accesses child exploitation material is guilty of a crime.
Clause 1A, Schedule 1 provides, inter alia, that:
·‘access, in relation to material, includes the display of the material by an electronic medium or any other output of the material by an electronic medium’;
·electronic medium means anything that contains data from which text, images or sound can be generated;
·material includes any film, printed matter, electronic data and any other thing of any kind (including any computer image or other depiction).
[45] Criminal Code (Tas) s 130D.
This definition of ‘access’ expressly includes the display of material on an electronic medium, such as a computer. Apparently there are no decisions dealing with the question of whether or not the section requires ‘the display’ to have been seen by the accused.
Section 474.19 of the Criminal Code Act 1995 (Cth) provides:
474.19 Using a carriage service for child pornography material
(1)     A person is guilty of an offence if:
               (a)     the person:
(i)      accesses material; or
(ii)      causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv)     solicits material; and
(aa)    the person does so using a carriage service; and
(b)     the material is child pornography material.
Penalty: Imprisonment for 15 years.
Section 473.1 defines ‘access’ as follows:[46]
access in relation to material includes:
(a) the display of the material by a computer or any other output of the material from a computer; or
(b) the copying or moving of the material to any place in a computer or to a data storage device; or
(c) in the case of material that is a program – the execution of the program.
[46] Ibid s 473.1.
Section 474.19 was inserted in the Code by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No.2) 2004 (Cth). The Defence submitted that because s 63A(1) was purportedly ‘modelled’[47] on the Commonwealth provisions, it was significant that the legislation formulated a concept of ‘access’ which involved deliberate conduct on the part of the Defendant in all respects. The argument was put in these terms:[48]
5.36In other words, in the Defendant’s submission, the concept and definition of “access” pursuant to the Criminal Code Act 1995 (Cth) necessitates some deliberate or intentional act on the part of the accused, whether it be an instruction or command to “display” material, or to output the material in some way (ie, print) or to manipulate the material in some way (either copying, moving or executing a program). All limbs of the definition contemplate some deliberate or intentional act to bring about the access. In the case of “display”, it is clear that at the very least that the material must be presented in a manner capable of being viewed by the accused (if not in fact viewed).
[47] Defence written submissions at [5.33].
[48] Defence written submissions at [5.36].
I do not accept that submission. As with the Tasmanian provision, there are no decisions dealing with the question of whether or not s 474.19 requires any images displayed on a computer screen to have been seen before a person can be convicted of the offence.
The Prosecution also sought to derive assistance from s 474.19, and the Explanatory Memorandum, which accompanied the relevant bill in Parliament. The Memorandum stated:
Access is broadly defined so that it includes, amongst other things, being able to view the material on the monitor of a computer, the printing into hard copy of material held on a computer, the downloading of material onto the computer and the copying of material onto a floppy disk or CD. This definition is consistent with the definition of the phrase ‘access to data held in a computer’ used in the computer offences in Part 10.7 of the Criminal Code.
…
The proposed offence [s474.19] is particularly aimed at use of the Internet, email and other online applications to trade or traffic in child pornography. It is intended to cover the range of activities that a person can engage in when using these applications, including, amongst others, viewing; copying; downloading; making available for viewing; copying or downloading; sending and exchanging. (emphasis added)
The difficulty that I have with both the Prosecution and Defence arguments is that they proceed on the assumption that the Commonwealth legislation and s 63A(1) are in pari materia. I have serious reservations as to whether that is so, when one has regard to the obvious differences between the provisions and the following remarks which were made by the Attorney General during the Second Reading Speech relating to Div 11A:[49]
On 30 August 2004, the Commonwealth passed amendments to the Criminal Code Act 1995 (Cth) that created offences for using the internet for the purposes of disseminating, accessing or downloading child pornography and child abuse material. The Commonwealth drafted the amendments so that the States and Territories would also be able to legislate in this area without running into constitutional problems.
The bill will reflect some of the Commonwealth internet provisions with some minor amendments. Nowadays, pederasts search through chat rooms, newsgroups and other internet services to find children to prey upon ….(my emphasis)
[49] South Australia, Parliamentary Debates, House of Assembly, Tuesday 26 October 2004 561 (The Hon MJ Atkinson).
Although there may have been a general intention to follow the Commonwealth legislation, it is apparent from the Attorney General’s remarks that it was also intended that the state legislation would depart from the Commonwealth legislation in certain respects. In the light of those remarks, and the significant differences between the state and Commonwealth legislation in relation to the offence of ‘accessing of child pornography’, I do not believe I can derive any assistance from the Commonwealth provisions.
Mr Norman further drew my attention to s 163.1 Criminal Code 1985 (Canada), which provides:
Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty of
(a) an indictable offence…; or
(b) an offence punishable on summary conviction…
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself. (emphasis added).
In R v Villaroman Yamauchi J explained the scope of this provision as follows:[50]
Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography, created by Parliament in s 163.1(4.1) of the Criminal Code…
Parliament’s purpose in creating the offence of accessing child pornography, as explained by the then Minister of Justice, was to “capture those who intentionally view child pornography on the [Inter]net but where the legal notion of possession may be problematic”..
…Criminal Code s 163.1(4.1) is intended to capture situations where the offender never takes possession of the child pornography, but nevertheless ‘consumes’ the material…
The notion of “viewing” contained in Criminal Code s 163(4.2) does not cause any difficulty. The offender ‘looks’ at the child pornography. Child pornography is a media product that is intended for ‘consumption’.
Certainly, a person can be convicted of accessing without possession. For example if an offender views child pornography on a public computer… As well, a person could be convicted of accessing if there is evidence that he attempted to download (and possess) the child pornography, but was unsuccessful in doing so.
In summary, based on R v Morelli, the “access” offence includes the “viewing” of child pornography where the offender is not in “possession” of the child pornography and “transmission” … of child pornography that does not lead to possession of the child pornography.’ (emphasis added)
[50] R v Villaroman, 2013 ABQB 279 [27]-[38] referring therein to R v Morelli 2010 SCC 8.

Mr Norman argued that the Canadian offence is clearly directed at the viewing or transmission of material, and pointed to the decision in R v Gilbert[51] (Nova Scotia Supreme Court) wherein it was held that access’ by ‘transmission’ did not require proof that the accused person actually saw the material in question. Despite his careful argument, I am not prepared to infer from the inclusion of transmissions in the Canadian definition of ‘access’ that Parliament intended to achieve the same result with respect to s 63A(1).
[51] 2015 NSSC 69 [39].
Finally I turn to, the now repealed, s 76B(1)(a) of the Crimes Act 1914 (Cth) (‘hacking legislation’). This section provided:
A person who intentionally and without lawful authority obtains access to:
(a) data stored in a Commonwealth computer; or
(b)data stored on behalf of the Commonwealth in a computer that is not a Commonwealth computer; is guilty of an offence.
There was no definition of ‘obtains access’ in the Crimes Act.
Mr Abbott submitted that the decision in R v Maynard[52] might shed light on the meaning that was given to the term. The Respondent was charged with offences of intentionally and without authority obtaining access to computer data contrary to the Crimes Act 1914 (Cth), s 76B(1)(a). The Magistrate at trial had ruled inadmissible prosecution evidence consisting of several sheets of hard-copy print outs to show the times and dates upon which the respondent accessed information stored within a computer. The Magistrate considered that the print outs were inaccurate on the basis that they omitted certain information.
[52] (1993) 70 A Crim R 133.
On appeal Wright J held that the Magistrate had erred. He said:[53]
The only thing which the trace print-out would be incapable of proving for the prosecution as a result of the differences I have mentioned above would be the actual image seen by the respondent upon calling up the relevant file. To the extent that the tribunal of fact in the case may require to be satisfied exactly what it was the respondent saw upon accessing any given file, this requirement could be satisfied by obtaining a hard copy print-out such as was obtained for me during the demonstration in which I participated or by exposing the tribunal of fact to the actual image on a video terminal connected to the system. That however is not a factor affecting the trace print-out’s admissibility; rather it goes to the sufficiency of the prosecution evidence to establish a necessary element of the prosecution case – a matter which was not debated by counsel before me.
[53] (1993) 70 A Crim R 133 at [137].
It is clear from the passage above that the question of whether or not viewing the images was an essential element of the offence was not the subject of argument on appeal. I do not regard the passing observation made by Wright J to be of any real assistance in this matter. The viewing point later arose in R v Assange[54] on a case stated to the Victorian Court of Appeal, in the context of similar legislation. However, the Court ruled that it would not determine the questions reserved because they were ambiguous and effectively sought no more than an advisory opinion.
[54] (1997) 2 VR 247.
I am grateful for counsel’s industry in taking me to the legislation and the authorities to which I have referred. But I do not believe that I should, or need, go beyond the construction of s 63A(1) and the policy behind the enactment of Div. 11A. I am satisfied that the words ‘obtains access’ when considered in their statutory context do not require an offender to actually view images of child pornography.
For the purposes of the offence of ‘obtains access’, it is sufficient if the person (i) possesses an intention to access child pornography, (ii) intentionally performs the ‘final step’ required to make the images available for display on the computer screen, and (iii) that the images comprise or contain child pornography, regardless of if, when or how the images were actually viewed.
THE EVIDENCE
Background
At the time of the alleged offences the Defendant lived at Sefton Park. He owned a Sony Vaio laptop computer (‘the Sony’) and an Apple MacBook laptop computer (‘the Apple’)[55] which he used to access the Internet through a Telstra account.[56] He began using the Sony on or about 15 October 2010[57] and the Apple on, or about, 4 April 2011.[58]
[55] Agreed Facts (ex P1) [6].
[56] Agreed Facts (ex P1) [5].
[57] T 41.
[58] T 153.
On 19 April 2011 members of South Australian Police (SAPOL) attended and searched the Defendant’s home in his presence. He was alone when they attended.[59] The police seized the Sony, the Apple and a ‘Netgear’ modem, all of which were located in the lounge room. The Defendant was arrested the following day.
[59] Agreed Facts (ex P1) [2]. It should be observed that no other evidence was tendered of the Defendant’s personal circumstances. No evidence was given as to age, occupation, marital status and, if he was single, or whether he lived alone.
There was no dispute at trial that ‘prior to December 2010 and thereafter until his arrest the [Defendant] regularly:
·used the Sony and Apple ... to view legal pornography online; and
·entered search terms into Google in a web browser on the Sony and Apple...’.[60]
[60] Agreed Facts (ex P1) [6].
The seized computers and modem were submitted to SAPOL’s Electronic Crime Section (ECS) and were examined by Mr Taylor. As far as he could, Mr Taylor extracted the Internet Histories and Cache Histories from the hard drives of the Sony and Apple to determine whether the computers had been used to access child pornography on the Internet. The Prosecution’s case is based on Mr Taylor’s evidence in relation to the work he performed and the findings he reached.
TAYLOR’S EXPERIENCE AND QUALIFICATIONS
Mr Taylor holds the position of Senior Electronic Evidence Specialist with the ECS, a section of SAPOL responsible for examining computers and other electronic devices relevant to police investigations. Mr Taylor commenced working with the ECS in 2003 as an electronic evidence specialist and was promoted to his current position in 2006. As the Senior Electronic Evidence Specialist he is in charge of part of the ECS called ‘electronic evidence’ and has four staff members who he trains, mentors and supports. In addition to the work that he performs with the ECS, he teaches ‘mobile device forensics’ at the University of New South Wales, having previously taught similar courses at the University of South Australia.[61]
[61] T 18-19.
Mr Taylor’s academic qualifications comprise a Bachelor of Information and Communications and a Diploma of Information Technology.[62] He has also ‘completed formal training in intermediate and advanced computer, email, internet and mobile phone analysis’ including the use of ‘forensic tools’ such as ‘EnCase’ and ‘XRY’.[63]
[62] No evidence was given as to when Mr Taylor obtained these qualifications.
[63] T 19.
He is a member of the International Association of Computer Investigative Specialists and the Australian Computer Society. He testified that he keeps abreast with developments in his field by consulting periodicals and journals and attending conferences and workshops. He estimated that he has prepared between 300 and 400 reports for tender in criminal prosecutions. He has testified in approximately 20 criminal cases in respect of work undertaken by him as a member of the ECS.[64]
[64] T 19.
Before I turn to discuss the work performed by Mr Taylor, it is appropriate to outline the evidence he gave in relation to the general features of computers and the means by which they access information through the Internet.
COMPUTERS AND THE WEB
Accessing information
A useable computing system comprises computer ‘hardware’ and ‘software’. The hardware is made up of the physical components of the computer such as the monitor, mouse, keyboard and hard-drive (a magnetic disk on which computer data is stored).[65] The computer’s ‘software’ or ‘operating system’ provides instructions that determine how the hardware operates.
[65] T 25-28; Mr Taylor’s report 11 July 2011 (Exhibit P2) p40.
The World Wide Web (the Web) consists of websites hosted on computers connected to the Internet. A web site comprises ‘web pages’ that contain ‘files’ comprising text, pictures, videos or a mixture of such material. Each website has a ‘domain name’ and can be accessed through a ‘web address’ called a Uniform Resource Locator (URL).
The first part of the URL indicates the ‘internet protocol’ to be used and the second part specifies the domain name of the website. For example, Google is located at the following URL: The first part of the URL (htttp://) stands for ‘Hypertext Transport Protocol’, which is the standard method of loading a webpage into a web browser and the second part of the URL ( is Google’s domain name.[66] As discussed later, URL’s may contain other information including ‘search parameters’ and references to website components or files.[67]
[66] T 55.
[67] T 56.
A person using a computer (‘user’) is able to access and download information from webpages using software called a ‘web browser’ which forms part of the computer’s operating system. Internet Explorer is a web browser produced by Microsoft for use primarily with Microsoft’s Windows operating system. Chrome, Mozilla Firefox and Safari are web browsers run on other operating systems.[68] For a web browser to gain access to a webpage, the URL for that web page must be entered into the web browser. This can be done by the user typing the URL into an ‘address bar’ on the web browser window. Obviously, this method requires the user to know the URL that he or she is using.
[68] T 31-32; Mr Taylor’s report 11 July 2011 (Exhibit P2) p43.
A user may also enter a URL into the web browser through the use of an internet search engine, such as ‘Google Search’. Google Search is an automated information retrieval system containing an index of websites or URL’s. The automated process identifies URLs that contain or are associated with keywords or search terms entered by the user into a ‘search box’ provided by Google.[69]
[69] T 32-33.
Absent computer malfunction, and provided there is relevant information on the Web, Google Search will present on the computer screen a list of ‘search results’ that respond to the search term.[70] The search results comprise one or more pages with each page listing the URLs of 10 websites.[71] Set out above each listed website is a ‘snippet’ of information about the websites contents.[72] When the user ‘clicks on’ a listed website the web browser accesses it.
[70] T 171.
[71] T 150-151.
[72] See for example P6.
Google search also provides a feature known as ‘Autocomplete’. As the user types in the search term, Autocomplete displays underneath the search box a list of search suggestions. The list comprises commonly searched terms or terms that the user may have previously searched for. Upon the user selecting a suggestion or completing the search term, search results are displayed.[73]
[73] T 33, 63; Mr Taylor’s report 11 July 2011 (Exhibit P2) p9 [3.3.4.3.1].
Redirects and pop-ups
A website may contain ‘links’ to other websites. The links often appear as underlined text or under images, photographs or videos. Clicking on a link to a website results in the linked website’s URL being entered into the web browser causing it to navigate to that site.[74] This process obviously occurs under the control and direction of the user (‘manual redirect’).[75] However, ‘redirects’ may occur automatically i.e. where the web browser is automatically redirected from one website to another without input from the computer user (‘automatic redirects’).
[74] T 34-35.
[75] T 48.
Apparently, ‘automatic redirects’ were first devised to legitimately divert internet traffic from redundant websites to replacement websites but grew to be used in a malicious manner to direct computer users to advertisements, pornography or other material they may have shown no interest in accessing.[76] This is achieved by the creators of websites embedding in their website’s files hidden URL links. Once the file is clicked on the computer is automatically taken to another website with the hidden URL.[77]
[76] T 48-49; see also P2 at p7 [3.3.4.2.1].
[77] T 335.
‘Pop-ups’ and ‘pop-unders’ involve a similar process to automatic redirects. Pop-ups were described by Mr Taylor in his report dated 1 July 2011 (exP2) as follows:[78]
Pop-ups are defined by Microsoft ( as:
‘A small web browser window that appears on top of the website you’re viewing. Pop-up windows often open as soon as you visit a website and are usually created by advertisers.’
Pop-ups can be programmed to appear when a user clicks on a webpage link, or at random, without user intervention and are designed to be aggravating in displaying advertisements that a user may have no interest in such as offensive, or adult related material.
It is also possible for a pop-up to form a trap that may display warnings in the form of a security alert, hoping that the user will click and download undesirable content onto their system.
[78] He gave oral evidence to similar effect: T 45-46.
The phenomenon described in the last paragraph occurs where the pop-up contains an embedded or hidden URL. Embedded links in pop-ups are not confined to security alert warnings and may be found in a variety of textual or pictorial files.[79] Pop-unders also occur without user intervention but open under and not over the window the computer user is viewing.[80] They may remain hidden from view until the closing window is closed.
[79] T 335.
[80] T 207-208.
Records of accessed information
Information from accessed websites is stored (‘cached’) in the computer’s hard-drive. The domain name of the accessed website is stored in the ‘Internet History’[81] while any accessed ‘files’ (text, pictures, videos or a mixture of such material) are stored in the ‘Cache History’ or ‘Temporary Internet File’.[82] The latter expression is used in connection with Microsoft’s Internet Explorer and the former expression is used by most other web browser software.[83] The Internet History also records the date and time that files are cached.[84]
[81] T 29-30.
[82] The automatic ‘downloading’ of files by the web browser into the Cache History or Temporary Internet File is to be distinguished from the process by which users intentionally ‘download’ files displayed on the screen by printing, copying to disk or storing them in a computer folder (T 26-27).
[83] This system allows the cached content of websites to load more quickly if the website is visited again-T 36.
[84] T 37.
The amount of files stored is determined by the amount of megabyte or gigabyte capacity allocated by the web browser software. If the software specifies, for example, a 50 megabyte capacity then once that limit has been reached the computer’s operating system will automatically delete older cached files to make way for freshly cached files.[85] Special software may allow for deleted files to be recovered unless they have been ‘overwritten’ by new files.[86]
OVERVIEW OF TAYLOR’S WORK
[85] T 28-29, 37, 43.
[86] T 43.
General examination
The work performed by Mr Taylor commenced on 19 April 2010 with a general examination of the Sony and Apple.
The Sony used a Windows 7 Home Premium operating system with an Internet Explorer web browser. Information extracted from the computer established that the operating system was installed on 15 October 2010 under the user account name ‘BVF’ (the Defendant’s initials) and was last used on 25 March 2011.[87] The computer was set to automatically logon and did not require a password for access.[88]
[87] Mr Taylor’s report 11 July 2011 (P2) p13.
[88] T 32, 41-42 Mr Taylor’s report 11 July 2011 (P2) pp12-13.
The Sony’s web browser had an in-built ‘pop-up blocker’.[89] Mr Taylor testified that such pop-up blockers are ‘very effective’[90] but conceded that they might not block out all pop-ups.[91] The Sony was also installed with security software called ‘McAfee Virus Scan’.[92] Mr Taylor tested the Sony for the presence of any malware or computer viruses on 2 May 2011. He found in the hard drive signs of a ‘Trojan’ virus (a malicious virus that pretends to be something else and is designed to download additional malware). However, he was satisfied that the virus would not have affected the proper operation of the Sony because there was no evidence that any malware had been downloaded.[93] His evidence on this topic was not challenged.
[89] Mr Taylor’s report 11 July 2011 (P2) pp18.
[90] T 46.
[91] T 323-324.
[92] T 41.
[93] T 42.
The Apple’s operating system was installed on 4 April 2011 (10 days after the Sony was last used) under the ‘user name’ Bernard Finnigan.[94] The operating system possessed two web browsers, namely, Safari and Mozilla Firefox.[95] There was no security software on the computer’s operating system. Apparently, this is not unusual because the Apple system is considered to be more secure than the operating system used in the Sony (Windows 7).[96] Mr Taylor was unable to establish whether access to the Apple required the use of a password.[97] The Apple’s operating system had a function designed to automatically delete cached information more than one month old, regardless of the hard-drive’s megabyte storage capacity.[98]
[94] T 153.
[95] T 155.
[96] T 154.
[97] Mr Taylor’s report 11 July 2011 (P2) p3.
[98] T 154.
Extraction and analysis
On 19 April 2011 Mr Taylor removed from each computer the hard-drive and, using ECS laboratory equipment, created a ‘forensically sound copy’ (identical copy) of each hard-drive. The identical copies were used by Mr Taylor in his subsequent testing, in order to preserve the integrity of the original hard‑drives.[99]
[99] T 38-39.
On 20 April 2011 Mr Taylor extracted the Sony’s Internet History and Cache History from the identical copy of its hard-drive. He conducted the extraction with an ECS computer[100] installed with a software application called NetAnalysis,[101] which displays extracted information in the form of a spreadsheet (‘cache history’).[102]
[100] Pursuant to s 59B of the Evidence Act the Prosecution tendered a Certificate of accuracy and reliability of the work performed.
[101] T 50 Mr Taylor’s report of 11 July 2011 (Ex P2) at p11.
[102] T 53.
The Sony’s cache history comprised thousands of pages[103] in which Mr Taylor identified three ‘browsing sessions’ that are said to have occurred on 7 December 2010 (first uncharged act - ‘little girl sex’), 24 December 2010 (Count 1 - ‘little teens’) and 19 March 2011 (second uncharged act - ‘tiny babes blow’). The cache histories for the three browsing sessions were tendered as Exhibits P3, P5 and P15, respectively.
[103] T 185.
On 21 April 2011 Mr Taylor extracted the Apple’s cache history using NetAnalysis. He identified in the cache history (exhibit P16) one browsing session that occurred on 12 April 2011 (Count 2 - ‘tiny porn’), during which the Defendant is alleged to have attempted to access child pornography.[104]
[104] T 155 Mr Taylor’s report of 11 July 2011 (Ex P2) at p2.
On 31 May 2011 Mr Taylor attempted to rebuild websites appearing in the cache histories of which there were literally thousands.[105] The process involved the use of the ECS computer and NetAnalysis. In the result, Mr Taylor succeeded in rebuilding only six websites, all of which are relevant to Count 1. The rebuilt websites were downloaded onto a disk (Exhibit P7) and hard-copies of their contents tendered.
[105] T 74-75, 80, 127, 188, 284-286.
The work performed by Mr Taylor in 2011 culminated in the preparation of his report dated 11 July 2011 (Exhibit P2).[106]
[106] Exhibit P2 was admitted on the understanding that the Defence did not accept the accuracy and reliability of the findings made by Mr Taylor in relation to counts 1 and 2 as expressed in the report. Furthermore, the report contains reference to certain work and findings unrelated to counts 1 and 2 and the uncharged acts (7 December 2010 and 19 March 2011): T 50. I have ignored all references in the report that go beyond the work and findings discussed by Mr Taylor in his oral evidence.

By way of summary, I am satisfied beyond reasonable doubt of the following facts:
1.The Defendant typed into the Google search engine the term ‘little teens’ with the intention of obtaining access to child pornography.
2.For that purpose, the Defendant intentionally accessed littleteengirls.net by clicking on the website in a list of Google search results (most probably P6).
3.littleteengirls.net contained images of child pornography.
4.The Defendant conducted the following ‘manual redirects’ with the intention of obtaining access to further images of child pornography:
·from littleteengirls.net to russianschoolgirls.net;
·from russianschoolgirls.net to youngteengalleries.com;
·from littleteengirls.net to myyoungsex.com.
5.The websites littleteengirls.net and russianschoolgirls.net contained images of child pornography.
Application of law
In my opinion, the Defendant ‘obtained access’ to the child pornography depicted in each of the websites littleteengirls.net, russianschoolgirls.net and youngteengalleries.com the moment he clicked on the website with the intention of making its contents available for display on the computer screen, irrespective of if when, or how the images were viewed. If the images made available for display on the screen in fact comprised or contained child pornography the actus reus would be complete. It follows from these findings that the Defendant must be found guilty of count 1. Even if I am wrong in finding that the Defendant intentionally conducted manual redirects as referred to in (iv) the first three facts satisfy the elements of the offence of obtaining access to child pornography.
Further consideration of Defence argument
Even if my construction of ‘obtains access’ is wrong and s 63A(1)(b) requires proof that the Defendant ‘knew’ that images of child pornography were available for viewing on his computer screen I am satisfied beyond reasonable doubt that the Defendant had such knowledge. I will proceed on the assumption that the redirects were all automatic and focus on whether the evidence establishes that the Defendant knew that the images of child pornography contained in that website were available for viewing.
First, the Defence argued that the Defendant may not have seen any images on the screen because the computer’s resolution settings were set in a manner that may have affected the clarity and size of the images available for display. It is bordering on the ridiculous to suggest that the Defendant may have conducted a lengthy browsing session for pornography when he could not properly see any images on the screen though he did not seem to have been hampered in entering the search term little teens.
Reliance was placed on Mr Taylor’s evidence that it could not be determined from the cache how long any particular website remained open.[207] It was suggested that the website may not have opened at all. That hypothesis must be rejected. The redirects from littleteengirls.net (even if automatic) demonstrate that the website had been opened.
[207] T 79.
The primary Defence attack was based on the possibility that the images of child pornography in littleteengirls.net may not have been available for viewing because russianschoolgirls.net had come onto the computer screen over the top of littleteengirls.net before the Defendant had an opportunity to see any images or any images involving child pornography.
As I have said the times recorded in the cache history P5 represent the times that files emanating from accessed websites are loaded into the web browser. The first component from littleteengirls.net loaded into the Sony’s web browser at 16:13:18 and the last component loaded at 16:13:36. Although Mr Taylor could not say from the cache history when a website closed, the entries indicate that littleteengirls.net must have remained open until, at least, the recorded redirect to myyoungsex.com at 16:14:03. The first component from russianschoolgirls.net loaded into the Sony’s web browser at 16:13:34 and the last component loaded at 16:13:49. In other words, the first component loaded two seconds before littleteengirls.net and 27 seconds before there was the redirect from that website to myyoungsex.com.
Mr Taylor agreed that he could not say in what order particular files were downloaded and how long after a file loaded that it would have appeared on the computer screen (‘the lag time’), other than to say as he did in re-examination that it would be in the order of seconds. He accepted that it was technically possible that a person sitting at the computer did not view any components of littleteengirls.net because while it was still loading, and before it had finished loading the computer had commenced loading the components of the next website russianschoolgirls.net either on top of littleteengirls.net or in another tab or window.
Even if one assumes that the relevant events panned out in that way, it does not follow that the Defendant did not know that the images were available for viewing. It is reasonable to infer from the evidence that the Defendant had a good deal of experience with computers including surfing the Internet for pornography. He would have inevitably known that upon clicking on the website littleteengirls.net that images from that website would be transmitted to his screen and would be available for viewing even if they were buried under other images. He merely had to close the covering window or windows to see them. A person who arranges for a parcel of pornographic magazines to be delivered to his front door does not have to unwrap the parcel to know what it contains.[208]
COUNT 2: ATTEMPTED OBTAINING ACCESS TO CHILD PORNOGRAPHY
[208] See He Kaw The 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.
Prosecution case
The Prosecution case on Count 2 was based on entries in the Apple computer’s cache history for 12 April 2011 (Exhibit P16). Mr Taylor explained that it may not be a complete record because all of the history in the cache had been previously deleted and he had to use recovery software to access the data from another section of the hard drive. The data contained in that section of the hard-drive may have been overwritten by other files resulting in the recovered data being an incomplete record.[209]
[209] T162-163.
Mr Taylor also pointed out that the entries recovered were a ‘[Mozilla] Firefox version of the cache history file’.[210] I understood this to mean, as did counsel, that, whilst the Apple was installed with both the Safari and Mozilla Firefox web browsers,[211] that it was the latter which had been responsible for loading the relevant data on the day in question.
[210] T155.
[211] T155.
The entries show that between about 7.54pm and 10.15pm on 12 April 2015 the Defendant had used the computer to browse the Web for pornography. The Prosecution contended that the entries showed that over a period of eight minutes between 7.54pm and 8.02 pm the term ‘tiny porn’ had been entered into the Google search engine on four separate occasions.
The Prosecution contended that these entries resulted from the Defendant using the computer’s ‘back button’ to return to Google search results. The use of the back button for this purpose indicated that the term ‘tiny porn’ must have been previously typed into the Google search engine. No list of results resulting from such a search were located in the Apple’s cache but this was probably due to the factors referred to above.
The Prosecution further contended that the entries in P16 show that after returning to Google search results for ‘tiny porn’ the Defendant accessed the following three websites: tinyteentitties.net, elephanttube.com and suzymovs.com. There is no physical or reconstructive evidence to show that any of those websites contained child pornography at the time.[212] However, the Prosecution submitted that it should be inferred from the use of the search term ‘tiny porn’ and the Defendant’s conduct in accessing the three websites that he had attempted to obtain access to child pornography, as charged in count 2.
[212] Agreed Facts Exhibit P1 [26].
Defence case
The Defence admitted that the Defendant was the only person to have used the Apple on the day in question.[213] However, no admissions were made in relation to count 2. The Defence ultimately submitted that the Prosecution had failed to prove beyond a reasonable doubt that the Defendant performed any of the steps, as asserted by the Prosecution.
[213] Agreed Facts Exhibit P1 [19]-[20].
Broadly speaking it was argued:
·that the evidence failed to establish that the term ‘tiny porn’ had been entered into the Google search engine on four occasions, or at all;
·that the evidence relating to the alleged use of the computer backbutton was flawed; and
·that there was no evidence of any Google search results or websites, referable to child pornography, having been accessed.
Evidence
Website table
The Prosecution and the Defence agreed that the internet history P16 contained the following URLs:[214]
[214] Agreed Facts Exhibit P1 [25]-[20].

URL TIME

A 19:55:05

B 19:55:08

C The components of loaded over the course of 7 seconds at the most 19:55:08-19:55:16 8 seconds

D 19:55:18

E http: 19:55:21

F 20:02:17

G 20:02:23

H There is no record in the Internet History of any components of being loaded
The search term

The entries in P16 showed that at 19:54:39 (entries 15927-16017) numerous JPEG files were loaded into the Apple’s web browser. They were followed by the first of the entries relied upon by the Prosecution:

Last visited [Local] Hits User URL Index Type Browser version

16018 12/04/2011 19:54:40 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

Mr Taylor said, in examination in chief, that the above entry 16018 denoted a URL for clit9.sextracker.com, a website programmed to track other websites devoted to sexual material. He provided a detailed explanation of the URL’s content but admitted that there were ‘some parameters’ he could not explain.[215] He said that the code ‘q%3Dtiny%2520porn%26’ represented the search term ‘tiny porn’ and gave the following explanation for code’s parameters:[216]
·‘q%3’ signified the equal sign (=) indicating a query for the terms following it
·‘%25’ indicated a ‘plus’ sign
·‘20’ normally referred to a space left between words or characters constituting a search term.
[215] T 157.
[216] T 157-158.
Mr Taylor concluded that the code indicated that clit9.sextracker was keeping track of a URL relating to an earlier Google search (‘google.com.au’) for the term ‘tiny porn’.[217] At the time of explaining the parameters, Mr Taylor admitted to some uncertainty about the meaning of the parameter ‘%2520’ and was given, at his request, an opportunity to research the matter overnight.
[217] T 157-158.
The results of that research is a matter that I will come back to.
The back button
The Prosecution further relied upon evidence given by Mr Taylor with respect to certain ‘back button entries’, the first of which is contained in a portion of the cache (P16) set out below:

Last visited [Local] Hits User URL Index Type Browser version

16032 12/04/2011 19:54:49 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16033 12/04/2011 19:54:49 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16034 12/04/2011 19:54:53 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16035 12/04/2011 19:54:54 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

Last visited [Local]	Hits	User	Index Type	Browser version
16032	12/04/2011 19:54:49	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]
16033	12/04/2011 19:54:49	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]
16034	12/04/2011 19:54:53	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]
16035	12/04/2011 19:54:54	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]

Mr Taylor testified that entry 16032 indicated that the computer user had used the computer backbutton (‘=backbutton&cad’) to return to a set of Google search results or to the Google home page (google.com.au). [218] He said that the URL entry 16034 indicated that the website pussy.org had been accessed from a set of search results (google.com.au) as a result of a search for ‘tiny porn’, denoted by the code q=tiny%20porn. Following that entry, there are a series of entries relating to the downloading of JPEGS from pussy.org into the web browser.
[218] T 158.
The second set of entries relating to the use of the back button are set out below:

Last visited [Local] Hits User URL Index Type Browser version

16198 12/04/2011 19:55:05 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16199 12/04/2014 19:55:05 1 http: Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16200 12/04/2011 19:55:08 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

Mr Taylor said that entry 16198 indicated the use of the back button (‘=backbutton&cad’) to return to either Google search results or the Google home page (google.com.au).[219] He pointed out that the following entry 16199 contained the terms and tiny%20porn which suggested that the computer user had clicked on a link in a set of Google search results (accessed by use of the backbutton) generated as a search for the term ‘tiny porn’. According to Mr Taylor the link was destined to take the web browser to tinyteentitties.net. Mr Taylor went on to say that entry 16200 contained the URL for tinyteentitties.net which supported his belief that the website had been accessed during a search for ‘tiny porn (161).
[219] T 160-161.
The cache history concerning the third set of entries relating to the use of the backbutton are set out below:

Last visited [Local] Hits User URL Index Type Browser version

16263 12/04/2011 19:55:18 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16264 12/04/2011 19:55:21 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16265 12/04/2011 19:55:22 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16266 12/04/2011 19:55:22 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

Last visited [Local]	Hits	User	Index Type	Browser version
16263	12/04/2011 19:55:18	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]
16264	12/04/2011 19:55:21	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]
16265	12/04/2011 19:55:22	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]
16266	12/04/2011 19:55:22	1	Cache	Firefox (v1-3 Cache) [Recovered by HstEx v3]

Mr Taylor said that the URL in entry 16263 indicated a further instance of the back button having been used by the computer user (‘=backbutton&cad’) to return to Google search results or the Google home page (google.com.au).[220] Entries 16264-16264 together indicated that the website elephanttube.com had been accessed from a set of Google search results which had been generated as a result of a search for ‘tiny porn’.[221]
[220] T 161-162.
[221] T 160-164.
I turn to the fourth, and final, set of entries in P16 concerning the backbutton.

Last visited [Local] Hits User URL Index Type Browser version

16835 12/04/2011 20:02:17 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

16836 12/04/2011 20:02:23 1 Cache Firefox (v1-3 Cache) [Recovered by HstEx v3]

Mr Taylor said that entry 16835 indicated that the person using the computer had utilised the back button (‘=backbutton&cad’) to return to either Google search results or the Google home page (google.com.au) and that the following entry 16836, suggested that the website suzymovs.com had been accessed from a set of Google search results pertaining to the term ‘tiny porn’.
Backbutton tests
Mr Taylor’s conclusion that each of the entries contained in P16 with the parameter ‘ct=backbutton= indicated a return to a set of Google search results or the Google home page due to an original search for tiny porn was largely based on tests he conducted on 8 April 2015. Prior to those tests he had ‘never seen the ‘back button’ behaviour before’[222] and, in cross-examination, conceded that he had never been called upon to interpret a google search URL containing reference to the back-button code.[223]
[222] Email from Mr Taylor to Mr Edge 8 April 2015 D25.
[223] T 246.
The tests involved using a police computer to conduct ‘back button’ Google search tests and then comparing the resultant entries in that computer’s cache history with the four ‘back button’ entries in P16. Mr Taylor determined that they corresponded leading him to conclude that that is the likely explanation for the Google tiny porn entries.[224]
[224] T 158, 245-6.
The Defence was critical of Mr Taylor’s evidence concerning the tests because he had failed to make any notes of the tests and so, it was said, there were no means by which his work could be checked. The Defence further argued that the nature of the tests were unsatisfactory because he had used a Safari web browser despite knowing that the web browser used in the Apple on 12 April 2011 had been the Mozilla Firefox. The Defence submitted that the comparison process Mr Taylor undertook involved comparing apples and pears because he had acknowledged in evidence-in-chief that ‘different web browsers store different information’.[225]
[225] T 155.
I was not overly impressed by these arguments. Notes of the tests should have been made but the back button tests were straightforward and could easily and quickly have been repeated, if required. The evidence Mr Taylor gave in relation to web browsers storing different information was given in the context of explaining the differences between the formatting of the cache histories extracted from the Sony and Apple. He did not suggest that the use of the Safari as opposed to the Mozilla could have any bearing on the validity of the back button tests. Nor was he questioned about that in examination-in-chief or cross‑examination.
The more pressing issue in relation to Mr Taylor’s evidence relates to his interpretation of the code in the URL which is said to signify the entry of the search term ‘tiny porn’. As earlier mentioned, Mr Taylor admitted to some uncertainty about the meaning of the parameter ‘%2520’ and was given, at his request, an opportunity to research the matter overnight.

The following day Mr Taylor explained, by reference to P18, that %25 was code for the % sign which suggested that the search term was ‘tiny%20 porn’. He added: ‘The percentage 25 equalling a percentage, it doesn’t, to me, read like I would expect from Google to normally read’.[226] It was then put to Mr Taylor, by Mr Norman, that it was possible to read ‘%2520’ as denoting a space, consistent with the search term being ‘tiny porn’. He agreed that that was possible.[227] However, in cross-examination he reverted to his earlier view that according to P18 the search term would have been ‘tiny%20 porn’.[228] He also made it plain, that it was not his opinion that the search term ‘tiny porn’ had been entered on four separate occasions, but rather that search results generated from a single search for ‘tiny porn’ had been used on four separate occasions.[229]
[226] T 173.
[227] T 174.
[228] T 187-188.
[229] T 175.
This meant that on Mr Taylor’s evidence the first relevant entry 16018 indicated an entry for ‘tiny20%porn’ and that the four ‘back-button’ entries were for ‘tiny porn’. When cross-examined about this apparent discrepancy, Mr Taylor appeared to agree that it is possible that the Google search engine could be programmed to ignore obvious typing errors and focus on appropriate search terms. In particular he agreed that Google faced with a search for ‘tiny%20porn could translate that into ‘tiny porn’ and thereafter display results for tiny porn.[230]
[230] T 244-255.
He further agreed that it is technically possible that the original Google search may have been conducted other than by way of the computer user having typed the search term ‘tiny%20porn’ into the search engine through a website that had been programmed to activate such a search. I reject this particular argument as improbable, for the reasons that I gave when discussing the Defence submission that the expressions ‘little girl sex’ and ‘tiny babes blow’ may have been entered into the Sony search engine through such an occurrence.
But what should I make of the evidence concerning ‘tiny20%porn’?
Mr Norman submitted that the encoding reference document, P18, could be interpreted in a manner that would convert %25 into a space that had left between the words ‘tiny’ and ‘porn’. He submitted that all of this was consistent with manual back-button searches for ‘tiny porn’. I am not prepared to accept that submission. It flies in the face of the evidence given by Mr Taylor whose testimony is the lynchpin of the Prosecution case. The document P18 is of a technical nature. Its interpretation is the province of an appropriate expert. I am not one and nor is Mr Norman.
The fact that someone would intentionally type in a term such as ‘tiny%20porn’ strikes me as absolutely bizarre unless the term contains a typing error. But therein lies a problem for the Prosecution. What was typed in if it was not ‘tiny%20porn’? Could it have been ‘tiny 20 porn’? Would that necessarily indicate an interest in child pornography as opposed to say an interest in tiny 20 year olds?
Even if the Defendant had intentionally entered ‘tiny porn’ I would not be convinced that it was directed at child pornography. Unlike ‘little girl sex’ and ‘little teens’, the word ‘tiny’ is used to refer to any particular age group. I do not discount the possibility that it might have been directed at child pornography but for all I know the Defendant may have a diverse interest in sexual matters which extends to dwarfs. Standing on its own the word tiny does not convince me that it was necessarily the Defendant’s intention to access child pornography.
The Prosecution has failed to prove its case on count 2. The Defendant must be found not guilty of this charge.
TAYLOR’S EXPERTISE – REMAINING ISSUES
In the course of discussing Count 1, I found that certain aspects of Mr Taylor’s evidence lacked probative value thereby removing the need to rule upon the admissibility of that evidence (see [302], [319]-[320]). In the result, the only points that remained to be considered were challenges to his expertise to interpret URL’s and to ‘rebuild’ websites.
Legal principles
The test for the admissibility of expert opinion evidence was succinctly stated by King CJ in The Queen v Bonython:[231]
Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
[231] (1984) 38 SASR 45 at 46-47.
URLs
The Third Rule 49 Application, filed following the completion of Mr Taylor’s evidence on 20 April 2015, sought exclusion of his ‘analysis of URLs, including but not limited to the topic of ‘Redirects’ designated by the letters ‘REDR’ in the internet history’. In view of my findings about the Redirects’ evidence, I need only deal with his ability to generally interpret URLs.
The interpretation of URLs in a cache history is a matter upon which I cannot form a sound judgment without the assistance of a witness possessing special knowledge or experience in this area. I am satisfied that at the time of giving evidence, and indeed at the time Mr Taylor performed his work in relation to this matter, he possessed sufficient knowledge and experience in relation to URLs.
It is clear from the Third Rule 49 Application that the late attack on his ability to explain and interpret URLs generally was based on the following:
3.…Taylor has conceded that he at best has only some expertise in deciphering URLs and the fact that he had to resort to what was referred to as the ‘dictionary’ [URL Encoding Reference Document Ex P18] is not a demonstration of expertise but a demonstration of lack of expertise..
The Defence challenge to Mr Taylor’s expertise with respect to URLs must be rejected.
As previously outlined ([107]-[109]) Mr Taylor is qualified in the field of electronic evidence including forensic computing. He holds appropriate qualifications and possesses significant practical experience. During his evidence he gave clear evidence about the nature and function of URLs and identified the components of URLs which reflected the domain name of websites, hypertext transport protocols, JPEG codes, Google search code and Google search parameters not only generally but in relation to specific URLs which assumed importance in this case.
From the commencement of this trial, it was clear that the Defence accepted that Mr Taylor had the expertise to identify and interpret URLs appearing in cache histories. Such was their acceptance of his expertise in this area that the Defence joined with the Prosecution in preparing a set of agreed facts with respect to much of the computer activity pertaining to Counts 1 and 2.
Indeed, it is perfectly obvious that the agreed facts and the tables of computer activity relating to Counts 1 and 2 were based on Mr Taylor’s report (P2) and any other additional material, including possibly expert material, the Defence may have had in their possession. Even after Mr Taylor had given evidence, there was no suggestion that I should not act on the agreed facts and the tables contained therein which were clearly based at least in part on the evidence he was to give and subsequently did give in relation to URLs.
It is true that on a couple of occasions, Mr Taylor expressed a degree of uncertainty on a couple of matters.[232] But an expert is not required to have complete and perfect knowledge on every minute aspect of his area of expertise. If the law set the bar that high expert witnesses would become a very rare breed. Nor can there be any serious complaint about Mr Taylor having access to the encoding document P18. Indeed, what is incongruous about the Defence complaint on this point is that the evidence Mr Taylor gave about the search term ‘tiny%20porn’ (after consulting P18) assisted the Defence.
[232] See for example T 117 (regarding the code LEAK).
There is simply nothing wrong with an expert consulting research and tests carried out, and literature written by others. As the Prosecution argued, given the unique and diverse nature of coding and the wording that is available to be used in such situations the process of checking is sensible and consistent with proper caution. The situation is analogous to a pathologist seeking leave to further research a particular medical term or issue.
In R v Udama[233] the Court of Criminal Appeal rejected an appeal based on an assertion that police witnesses in a case involving a charge of causing bodily harm by dangerous driving were not entitled to give expert evidence as to ‘reaction times’ based on tests conducted by other experts. White J said:[234]
Contrary to the appellant’s submissions, it was not necessary for the police officers to have carried out tests themselves to ascertain average reaction times. Given their expertise, and especially in the case of Mr Kuchenmeister, they were entitled to rely on the data published by other experts who had made a study of reaction times and whose work is regarded as authoritative. It is one of the skills of an expert to know whose studies and research may be regarded as reliable.
Ormiston JA expressed the principle in R v Noll[235] in the following passage:
As a matter of principle … experts can speak of many matters with authority if their training and experience entitle them to do so, notwithstanding that they cannot describe in detail the basis of knowledge in related areas. Professional people in the guise of experts can no longer be polymaths; they must, in this modern era, rely on others to provide much of their acquired expertise. Their particular talent is that they know where to go to acquire that knowledge in a reliable form.[236]
[233] [2013] SASFC 2.
[234] [2013] SASFC 2 at [49]-[50].
[235] [1999] VSCA 164; [1999] 3 VR 704.
[236] Ibid at [3]; 705.
Rebuilding of websites
The Defence attack on Mr Taylor’s expertise to rebuild websites arose out of the evidence he gave in relation to his use of the NetAnalysis software. The complaint, as set out in the Third Rule 49 Application, states:
4.In relation to his evidence about rebuilding websites, it now appears that far from having expertise in rebuilding websites, all that Taylor did was utilise a program called NetAnalysis which did it for him. Worse still, he failed to follow the instructions or recommendations of the NetAnalysis program.
5.Significantly, for the purposes of assessing Taylor’s expertise and credibility, he failed to inform the Court (and presumably the DPP) that his use of the NetAnalysis program was not in accordance with the instructions laid down by that program and his failure to mention this until cross-examined on the topic is telling.
This argument must be rejected. The fact that the witness had not previously rebuilt a website is a relevant consideration in determining whether he had the requisite expertise to rebuild the relevant websites. But the mere fact that he had not done so before is not decisive. For every expert there is a first time. In the present case, Mr Taylor used a software package which is recognised as a legitimate forensic tool for website rebuilding. No challenge was mounted against the efficacy and reliability of the software package. Only a person skilled in the area in which Mr Taylor works, or an allied area, has the skill to perform such work.
The attack on Mr Taylor’s use of NetAnalysis and the results he obtained was based on an assertion that he had failed to follow the protocol for using the software. It should be observed that the Defence did not call for Mr Taylor to produce the software instructions he said he followed to rebuild the websites. Rather, the attack on Mr Taylor’s use of NetAnalysis was founded on a document said to have originated from Mr Craig Wilson’s website ‘Digital Detective’ (Exhibit D37).[237] As earlier pointed out, Mr Wilson apparently created NetAnalysis.
[237] T 341.
There are two difficulties with the attack conducted against Mr Taylor on the basis of this document. First, it is of unknown provenance. The document cannot be used for hearsay purposes. Its relevance is confined to assessing the reliability of the work performed by Mr Taylor to the extent that he admitted that it accurately reflected the software instructions that he was required to follow. There were important aspects of the document with which he did not agree. The second difficulty is that the reliance placed on the document was founded on Defence counsel’s interpretation of what it required with respect to website rebuilding protocol. It is not necessary to descend into the details of counsel’s interpretation of D37. Mr Taylor explained in a convincing manner that counsel’s interpretation of the document was flawed. I accept his evidence.[238] I accept that he had the expertise to rebuild the websites relevant in this case and that he followed the instructions required for the use of NetAnalysis. I am satisfied that he performed the work competently and that there is no sound basis for doubting the reliability of the rebuilding results.
[238] T 341-346.
VERDICTS
For the reasons outlined above I return the following verdicts:
·Count 1 – Obtaining Access to Child Pornography – Guilty.
·Count 2 – Attempted Obtaining Access to Child Pornography – Not Guilty.

URL	TIME
A		19:55:05
B		19:55:08
C	The components of loaded over the course of 7 seconds at the most	19:55:08-19:55:16 8 seconds
D		19:55:18
E	http:	19:55:21
F		20:02:17
G		20:02:23
H	There is no record in the Internet History of any components of being loaded