R v Gedling - [2007] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GEDLING
[2007] SADC 124
Reasons for Ruling of His Honour Judge Millsteed
21 November 2007
CRIMINAL LAW
Defendant charged with making a communication with intent to procure a child to engage in, or submit to, sexual activity contrary to s63B(3)(a) of the Criminal Law Consolidation Act 1935 - whether prosecution required to prove that the defendant knew that the recipient of the communication was a "child" as defined in the legislation or did not have an honest and reasonable belief to the contrary - held that prosecution was under no such obligation.
Criminal Law Consolidation Act 1935 s63B(3), s63B(3)(a); Summary Offences Act 1953 s33(2), s33(3); Criminal Law Consolidation (Child Pornography) Amendment Act 2005 s63B(1), s63B(1)(b)(i), s63B(1)(b)(ii); Criminal Code Act 1995 (Cth) s474.26(1), s474.26(2), referred to.
Proudman v Dayman (1941) 67 CLR 536; Jiminez v The Queen (1992) 173 CLR 572; He Kaw Teh v The Queen (1985) 157 CLR 523; Police v Pfeiffer (1997) 68 SASR 285; Police v Kennedy (1998) 71 SASR 175; CTM v R (2007) 171 A Crim R 371; R v Prince (1875) LR 2 CCR 154; R v Kennedy (1980) 3 A Crim R 40, considered.

R v GEDLING
[2007] SADC 124
Introduction

On 25 September 2007, the defendant, Lloyd Alexander Gedling was convicted by a jury of the offence of making a communication with intent to procure a child to engage in, or submit to, sexual activity contrary to s63B(3)(a) of the Criminal Law Consolidation Act 1935 (“the CLCA”).
Prior to the empanelment of the jury, and because the issue had not been previously judicially determined, I was invited by counsel to rule on whether it was necessary for the prosecution to prove that the defendant knew that the recipient of the communication was a “child” as defined in the legislation or did not have an honest and reasonable belief to the contrary. I ruled that the prosecution was under no such obligation. At the time I indicated that I would give reasons for my ruling later. These are my reasons.
The legislation
Section 63B(3)(a) is contained in Division 11A of the CLCA which is headed “Child pornography and related offences”. The provisions in the Division relevantly state:
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;
…
pornographic nature of child pornography means the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gedling

Details

AGLC: R v Gedling [2007] SADC 124
Case: [2007] SADC 124
Decision Date: 21 November 2007

CaseChat Overview and Summary

Lloyd Alexander Gedling was convicted of making a communication with the intention of procuring a child to engage in, or submit to, sexual activity contrary to s63B(3)(a) of the Criminal Law Consolidation Act 1935. The court was required to determine whether the prosecution was required to prove that the defendant knew that the recipient of the communication was a child as defined in the legislation or did not have an honest and reasonable belief to the contrary. The court ruled that the prosecution was not required to prove such a thing. The court held that the offence required proof that the defendant intended to procure the recipient of the communication to engage in, or submit to, a sexual activity and that the recipient was a child as defined by the legislation, namely, a person under, or apparently under the age of 16. The court found that the construction of the relevant provision was consistent with the object and purpose of the legislation which was to protect children from sexual exploitation and that to allow for a defence of mistaken belief would be inconsistent with the construction of other statutory sexual offences involving children under 16 years.

Orders