R v Godfrey - [2018] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GODFREY
Criminal Trial by Judge Alone
[2018] SADC 35
Reasons for the Verdict of His Honour Judge McEwen
26 April 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Trial by Judge without jury. Accused charged with one count of Possessing Child Pornography.
After receiving information of the defendant accessing two chatrooms, police attended at the defendant’s home residence and seized a Dell computer tower. Police analysed the seized item and located 1205 files containing child pornography.
Defendant gives evidence but Court finds his version implausible.
Held: combination of all circumstances sufficient to establish guilt – verdict of guilty.
Criminal Law Consolidation Act 1935 (SA) s62, s63A; Evidence Act 1929 (SA) s34P, referred to.
Police v Kennedy (1998) 71 SASR 175; R v Clarke (2008) 100 SASR 363; R v Morcom [2015] SASCFC 30, considered.

R v GODFREY
[2018] SADC 35
Introduction

The defendant is charged with one count of Possessing Child Pornography. Particulars of the charge are as follows:
First Count
Statement of Offence
Possessing Child Pornography. (Section 63A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Darren John Godfrey on the 8^th day of September 2011 at Seaford Rise, was in possession of child pornography, knowing of its pornographic nature.
Upon commencement of the trial, the defendant made a very late election for trial by judge alone. The prosecution did not oppose the application. An extension of time was granted[1] and the trial proceeded.
[1] T3.
As will be seen, the issues contested at trial fall within a fairly narrow ambit. There is a lengthy list of agreed facts comprising 27 paragraphs.[2] The prosecution called two police officers; Detective Jack Slattery who attended the defendant’s address on 8 September 2011, seized computer equipment, and conducted a video recorded conversation with the defendant; and Senior Constable Robin Neville of the electronic crime section of SAPOL who carried out a forensic computer analysis of the seized equipment.
[2] Exhibit P1.
The accused gave evidence in his defence.
In his initial statement of issues in contention Mr Redford submitted[3]
The issue in contention is a question of possession and that the focus in this case will be on knowledge.
[3] T14.
Similarly, Mr Redford in his closing address submitted:[4]
The only issue to be determined on the way in which the defence has presented its case is whether or not the accused was in possession of the relevant material. We have effectively conceded that it was child exploitation material and that it was pornographic. If your Honour accepts that the accused knew of the presence of that material, then the defence has conceded that he knew that it was pornographic material. However it is my submission that for there to be possession there must be a conscious recognition of the presence of the thing, the actual knowledge of child exploitation material within the hard drives.
[4] T193.
General Directions
Before I turn to consideration of the issues, I need to remind myself of some important general directions.
Firstly, that the prosecution bears the onus of proving each ingredient of the charge beyond reasonable doubt. The accused comes before the court with a presumption of innocence in his favour. He carries no onus to prove or disprove anything.
As to the witnesses called, I need to assess the credibility and the reliability of their evidence and I can accept or reject all or part of a witness’s evidence. I need to make this assessment within the context of the surrounding evidence including exhibits and the agreed facts.
The accused has given evidence and been cross-examined. His evidence must be considered along with the other evidence in the case and I approach the task of assessing his evidence in the same way as for other witnesses. I need to bear steadfastly in mind that by giving evidence he has not assumed any burden of proof. That always remains with the prosecution.
I need to decide the case upon the evidence presented and in so doing I need to bring an objective and unbiased mind to the assessment of that evidence. This being a charge of possession of child pornography it is important that I approach my task in an objective and dispassionate manner.
Discreditable Conduct
The prosecution led evidence in the trial of discreditable conduct. This was the evidence of the accused visiting the chatrooms ‘dad-and-daughter-sex’ and ‘kids-R-us’. Defence conceded the admissibility of that evidence. Despite that concession, I need to be satisfied of the requisite test for the admissibility of the evidence pursuant to s 34P of the Evidence Act 1929 (SA).
The prosecution submit that this evidence is admissible pursuant to s 34P(2)(b) as amounting to a particular propensity or disposition; described in the trial as a particular proclivity to visit chatrooms of that type, thereby evincing an interest in child pornography. Applying that higher threshold for admissibility entailed in sub-paragraph (b), I do consider the evidence has strong probative value having regard to the particular issues at trial. As will be seen, the predominant issue or argument at trial, is whether the prosecution have proved the requisite knowledge on the accused’s part to make out this offence.
I bear in mind that the evidence must not be used to reason that the accused is guilty of the offence merely by reason of a propensity or disposition to visit chatrooms suggestive of child pornography.
The permissible use of the evidence is to consider whether that propensity, disposition or proclivity to visit such chatrooms renders it less likely he was in possession of the relevant material without any knowledge of its child pornographic nature. The other permissible use of part of the discreditable conduct evidence is the coincidence in the date, 24 November 2010, of a visit to the ‘dad-and-daughter-sex’ chatroom and the creation date of a number of the relevant files on his computer.
Statutory Provisions
The relevant provisions of the Criminal Law Consolidation Act (‘the Act’) at the time, were as follows:
Division 11A—Child pornography and related offences
62—Interpretation
In this Division—
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;
materialincludes—
(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.
(3)In determining whether an offence against subsection (1) is a first or subsequent offence, a court must treat a previous offence involving child pornography against any provision of this Division, or a corresponding previous enactment, as a previous offence.
Ingredients of the Charge
The charge of possession of child pornography entails three ingredients. Firstly that the defendant was in possession of the relevant material; secondly that the material comprised child pornography as defined; and thirdly that the defendant knew, in other words was aware of, the pornographic nature of the material.
The material referred to is the data on the 1,205 items or files referred to in the agreed facts, Exhibit P1. It is agreed that each of those files contained or comprised child pornography.
As to the first ingredient, in order to prove possession, the prosecution must prove that the defendant had physical custody or control of the files. It is not necessary to prove that he had opened or viewed the images on the files. However, it is necessary to prove that he knew of their existence on the computer. A person cannot be in possession of something if they do not know they have it.
In view of the submissions made in closing addresses, that the central issue is possession, it is necessary that I focus closely on what is entailed in that ingredient for the purposes of a charge of possessing child pornography pursuant to s 63A of the Act. At this point I am not dealing with the third ingredient, namely knowledge or awareness on the part of the defendant of the pornographic nature of the material. I am focusing on the requisite knowledge for the purposes of the first ingredient, namely possession of the material.
In order to be in possession of material on the computer the defendant needs to know the material is there. He needs to know of the existence of the material on the computer. What is meant by that? How detailed must his knowledge be?
It is not necessary to prove that he has actually viewed the images. But it is necessary to prove that he knew the files were on the computer. For instance, if images came onto a relevant hard-drive of the computer entirely without his knowledge by the actions of a third party or by external computer uploads to his hard-drive of which he was unaware, he would not be in possession of the files.
Mr Redford appears to submit that the requisite knowledge for this first ingredient of possession, entails knowledge that the files contained child pornography.
Alternatively, it may be his submission that the third ingredient entails knowledge not just of the pornographic nature of the material, but that the material comprised child pornography.
Either or both of those submissions would be contrary to a clear line of authority commencing with Police v Kennedy,[5] and followed by R v Clarke,[6] and R v Morcom.[7]
[5] (1998) 71 SASR 175.
[6] (2008) 100 SASR 363.
[7] [2015] SASCFC 30.
To reiterate the ingredients of the offence of Possessing Child Pornography, they are as follows:
Firstly, that the defendant was in possession of the material. In these circumstances possession entails knowledge that the material; that is the files, were on the computer; together with an intention to exercise some control over them. The intended control could be accessing and looking at some or all of them in the future; or making them available for others to download; or simply retaining them on the computer as part of a collection or databank of material.
Secondly, that the material comprised child pornography. In this case that is an agreed fact.[8]
[8] See paragraph 27 of Exhibit P1.
Thirdly, that at the time of possession of the material the defendant knew of its pornographic nature.
None of these ingredients entail knowledge of its child pornographic nature.
The Evidence
I do not propose to set out the evidence in great detail, especially the prosecution case which is largely not disputed. As I have already noted, Detective Jack Slattery, attended the defendant’s home on 8 September 2011. His conversation with the accused was video recorded and is exhibit P4. I shall return to specific aspects of that conversation in my analysis of the evidence.
The forensic analysis of the seized computer equipment was conducted by Senior Constable Robert Neville. The results of that analysis are set out in his declaration which was tendered by consent, together with the spreadsheets Exhibit P2 and P6; and the agreed facts. He explained the process undertaken to discover that material.
The defendant gave evidence. Again, I do not propose to set it out comprehensively although it is necessary that I give an overview of his evidence. At this point I am simply summarising and paraphrasing his evidence. I shall turn to my analysis and assessment of it in due course.
He told the court the following:
He is a commercial IT trainer with very extensive experience in that field, dating back to the 1990s. Since then he has held a number of positions as an IT specialist including ‘systems infrastructure specialist’ and delivering training in various types of computer equipment and programming. He is very familiar with the workings of the internet.
He has participated in chatrooms since the mid-1990s. His primary interest has been sex-related chatrooms. He told the court of the evolution of the form of chatrooms from internet relay chat, to peer-to-peer, through to an application called GigaTribe. For present purposes it is unnecessary that I attempt to accurately set down the detail of these evolving technologies and applications.
The accused’s evidence was that over a period of 15 years or so he has built up an extensive pornography collection comprising ‘a ridiculously large number’ of pictures and videos which he estimates to be probably a couple of million items: [9]
[9] T73-74.
QHad you seen all the pictures and videos.
AThere wasn't enough hours in the day, no.
QWhy would you collect something that you didn't see.
AI would eventually. The plan was I would eventually get around to seeing everything.
QHow did you go about collecting, what was the actual process.
AI'm generalising, the vast majority of files were gained via the file server. My file server was advertised in chatrooms that related to pornography. Someone would see my file server, they would connect my file server. When they connected to my file server it worked on a ratio, so basically if they uploaded 100 kilobits of information they were then able to download 300 kilobits of information. They would upload files to me and they would choose files and download them themselves.
QWhat equipment did you have.
AI had a Dell mini tower but over the years I had many, many computers.
Continuing to summarise and paraphrase his evidence in ordinary non-technical terminology, my understanding is that he exchanged pornographic files with like-minded individuals via a file server. The file server was associated with what I shall call a working hard-drive namely the SOHOTEN hard-drive. This was not encrypted. Anyone could locate that file server via a chatroom and then upload pornography onto the defendant’s hard-drive or download pornography from the defendant’s hard-drive. The accused would then, from time to time, transfer material from the SOHOTEN hard-drive to a number of encrypted hard-drives.
A password was required to access the Dell computer, and a further password was required to access the encrypted hard-drives. [10]
[10] T76.
QHow did you grow your collection by that means.
AThere are a large number of people that wanted those files so I wasn't giving anything away. It was re-using it, it was the stuff I already had. If I had a thousand users they all had to give me individual files but they were all downloading the same files.
As to moving the files from the SOHOTEN to the encrypted or transfer drives, his evidence included: [11] [12]
[11] T77-78.
[12] T79.
AI would generally move the files from their original location onto one of those transfer drives, then I might go in and have a look at those files.
QWhy would you move them.
AJust to free up space on the hard drive on the virtual machine.
QHow often would you look at them.
AIt wasn't any regular sort of process, sometimes if I was bored, I might look at them every day. On the other hand there would be weeks when I wouldn't.
QWhen you looked at them what form would they look - you're looking at a screen - can you describe what it looked like.
AOnce again there was no real process as such. Usually I used Windows Explorer, that's the one where you can see your CD ROM and everything and I would actually just have the file and folder name and folder names listed J, the name of the folder or file.
QNot the image.
ANot the image usually, no.
QWhen you did it how long would you do it for when you were looking at these.
ASometimes minutes, sometimes hours.
QWere there occasions where you found child exploitation material.
AThere were.
QHow often would that happen.
AIt wasn't infrequent but it wasn't frequent. I don't know, probably, I'm sort of making a number up to sort of explain the way I feel, maybe one out of every 10 or 15 times.
QNot one -
ANo, not one out of every 15 files, one out of every 15 sessions of looking at files.
QWhat would you do if you came across such material.
AI would immediately delete it.
QFor how long prior to your arrest did that process occur.
A15 years.
QWere there occasions where you encountered child exploitation material that had been on your computer for a period of time.
AYes.
QWhat was the longest period of time, having confronted it, did you see or observe this material being in your computer.
AI could not give you an answer on that with any certainty whatsoever but it could be years.
…
QIn terms of managing the material you did look at can you explain to his Honour what you did, what sorts of things you would do.
ASo, once again there was no process as such but probably the majority of times I was looking at this stuff I would actually bring up a viewer, in particular the viewer I used was ACDC, I would load up the folder and a space bar and that would actually take you one picture further and as I was going through hitting the space bar I was going through the files and I hit the delete key and that would delete the file.
QI think you were trading in this material
AYes.
QIn terms of what you traded out think you were trading did you check that material.
AI never traded a file I hadn't checked.
QWhy was that.
AI didn't want to perpetuate the trading of any of those illegal files I just spoke about including child.
QWhy was that.
AI didn't want it, didn't agree with it, but a big one was the file server that I ran it was a reputational thing. Trust is hard to build up in an environment like a chatroom so if my file server was known to be a clean file server so people could come into my file server and they knew what they were going to get were not any of those illegal categories.

He visited a chatroom called ‘dad-and-daughter-sex’. Over a period of 10 years or so, “I might have been there hundreds of times”. He also visited a site named ‘kids-R-us’.
As to Exhibit P2, his evidence was that he had never seen the file names or folder names in columns 1 and 2 of the exhibit. This was because he had so many files that were uploaded to his computer by other pornography traders. He would then transfer them to the encrypted drives without noting the individual folder or file names.
One of the primary chatrooms that he visited was ‘small-tit-pics’.[13]
AThat particular chatroom was for people interested in smaller breasted 18-plus women so by the name of that chatroom it attracted a lot of people that were looking for something else. So that chatroom had probably one of the best developed guard scripts that I have ever seen and basically what would happen is if you were caught in any a number of banned rooms, then basically the guard script would kick you out. I tested that guard script on several occasions before going into that room. If the guard script ran I would be kicked out of SmallTitPix, and if the guard script was not running it would not kick me out and therefore I would have to be more careful about who allowed on my file server.
[13] T85-86.
As to whether he could vet the material that was uploaded onto his hard-drive by others, his evidence was that there was no way of doing this.[14]
[14] T89-90.
QWhat I'm asking you is you have the server, that's separate to your hard drive, is it, that the items were found on or is it part of your hard drive.
ANo, it's part of the hard drive.
QWhat I'm asking you is if someone on the IRC wanted to make certain files available to you, did you have to do anything on your behalf to select which of those you wanted to be on your computer or was it an automated process.
AOn IRC it was an automated process.
QWhy would you participate in an automated process that would see material put onto your computer that you say that you did not know about, particularly when you said that you would go through files and come across child pornography.
AIf it was the case that I actually came across child pornography, very often then I probably wouldn't have but the child pornography it was like a sprinkling of stardust in the sky. You came across one, you wouldn't see another one for a month. It was just a hobby.
QYou weren't concerned about giving people whom you never met the ability to transfer files to your computer that you had no ability of either accepting or rejecting.
AI had no problems with that.
QEven though you came across child pornography.
AIf you look - no.
QWas that a risk that you were prepared to take as part of your pornography collecting hobby if you call it that.
AIt was a risk that should never have happened. It was a trust process, everything and everyone does is a trust process. You don't know what you are going to get when you download a file or when you download a web page. The whole process of working on the internet is based around you're trusting somebody that you have no relationship with. It is like driving a car. Do I park my car in the garage because I'm worried other people will break the law?
That is a brief overview and paraphrase of the accused’s evidence. He built up a very extensive collection of pornography over many years by trading files with numerous other like-minded persons. He would transfer files he received from the working hard-drive SOHOTEN to one of the five encrypted hard-drives in which he stored his pornographic material. He also had other external hard-drives in which he stored work materials or other non-pornographic material.[15]
[15] T110.
QIsn't SOHOTEN separate from your file server.
ASOHOTEN is the file server.
QDidn't you tell me this morning that you transfer things from SOHOTEN to the other hard drives. Is that what you call them.
AYes SOHOTEN was actually a virtual PC. From the way you interacted with it, it was just another computer so what I was doing was moving files from that computer onto another storage area.
QWhen you say your file server you mean SOHOTEN, they are one and the same.
AInside SOHOTEN there is a piece of software running that allows it to act as a file server.
QDoes anything that lobs in your computer lob into SOHOTEN, or not.
AYes.
QIt does.
AYes.
QEverything.
AEverything.
QIf some work stuff lobs in your computer it lobs in SOHOTEN.
ACorrect.
QThen if you want it on one of your external hard drives, you put it there.
ACorrect.
QOr if you want it in transfer 2, you put it there.
AThat's right.
QAnd you have a way of discriminating where you put things.
ACorrect.
Does the accused’s version amount to a defence?
A curious aspect of this case is that, even accepting the accused’s evidence, he is guilty of the charge. I shall briefly explain how this is so, before I move to an assessment of whether I do accept, even as a reasonable possibility, the accused’s evidence.
So for present purposes, I adopt the hypothesis that I accept the accused’s evidence.
Is the first ingredient proved? In other words is he in possession of the 1205 files that are the subject of the charge?
Plainly he is in possession of them. They were on various virtual hard-drives of the Dell computer that he operated. He had actively set up the computer in order that pornographic files could be traded between him and any like-minded individual who accessed his file server. He ran the file server for this specific purpose. He knew that files were constantly uploaded by external sources onto his SOHOTEN virtual drive. 163 of the files were still on the SOHOTEN virtual drive.
The remaining 1042 were distributed amongst four encrypted virtual hard-drives. He had transferred all of those files from the SOHOTEN hard-drive to the encrypted drives. He had transferred them to the encrypted drives because that is where he stored his vast pornographic collection.
On the present hypothesis of accepting his evidence, he did not see the folder or file names of the 1042 CEM files that he had transferred at various times to the four encrypted drives. Further, he had not seen the file or folder names of the 163 CEM files that were still stored in his working hard-drive, SOHOTEN.
Mr Redford’s argument is that although the material was on his computer as part of his vast collection of pornography, he was not in possession of these 1205 files because he did not know they contained child pornography as distinct from adult pornography. Mr Redford’s argument is that not knowing it was child pornography means that he was not in possession of it. As I have already noted, this submission is plainly contrary to established authority. The requisite state of mind to be in possession of the material on the computer does not entail knowledge that it was child pornography. He knew it was pornography. That was what he was trading and collecting. As he said, he had accumulated a vast collection of pornography over many years. This material was part of that collection.
In my view, on the accused own evidence he was plainly in possession of all of the material in his vast data bank of pornography including the 1205 CEM files.
The second ingredient would be made out because it is an agreed fact, that the 1205 files contain child pornography.
The third ingredient would be made out because he knew the files being uploaded to his file server contained pornography. That was the underlying purpose of setting up the file server, and making it available to like-minded pornographers, to trade pornography with him.
For those brief reasons, even if I accepted the accused’s evidence in full, I consider he would be guilty of the charge.
Assessment of the Evidence
I now turn to my assessment of the evidence. The primary focus is upon the accused’s evidence because as already noted, the prosecution evidence mainly comprises agreed facts, or evidence not disputed.
Before turning to specific issues I commence with an overall assessment or evaluation of the accused’s evidence. I formed a very unfavourable impression of his credibility. I consider he constantly used his undeniable expertise in the fields of IT or computer technology and applications, as a cloak to conceal the truth. He repeatedly took on the role of a long-suffering teacher or instructor doing his best to explain complex concepts. Whereas, in my view the reality was that when faced with awkward questions, he would attempt to divert attention from them by giving tutorials on Information Technology and computing. True it is that he has impressive knowledge and experience of computers. But in my view, the essential thrust of his evidence relating to the child exploitation material was totally implausible. The fact that it was an implausible version wrapped up in a lot of technical terminology and lecturing about how the internet and chatrooms and file servers work; made it no less implausible.
That is my overall impression of his evidence. Without being comprehensive, I shall cite some specific examples of topics upon which I disbelieve him. In other words, aspects of his evidence that contribute to my overall impression and assessment.
·His evidence as to visiting the chatrooms ‘dad-and-daughter-sex’ and ‘kids-R-us’. Firstly his reasons for visiting them relating to wanting to check what was going on there in some sort of strategic sense, is patent nonsense. Secondly, it is totally implausible that he visited the dad-and-daughter-sex chatroom up to hundreds of times over ten years, but never saw anything apart from a blank room or blank screen.
·I totally reject his evidence that although one of the primary chatrooms he visited was ‘small-tit-pics’, but that this was strictly for people interested in small breasted, 18+ women. Specifically, I reject that his interest was so precisely constrained.
·I reject the evidence that he had no way of vetting or blocking contributors to his file server to ensure there was no child pornography uploaded to it. As he was constantly at pains to tell the court, he is an IT technologist with impressive credentials and I certainly accept that. However, his evidence on this topic was contradictory. He eventually conceded in cross-examination that he chose to make the file server available to all comers in order to build up the porn collection. It wasn’t a matter of not being able to block or vet contributors. It was a matter of that being a risk he was prepared to take in order to attract contributors to his pornography collection.
·His evidence that he named a majority of the folders in Exhibit P2 is totally at odds with his evidence that he transferred 1042 of them to encrypted drives without noticing the folder names or file names; and had never noticed the folder or file names of the remaining 163 in SOHOTEN.
·His evidence that everything that comes onto his computer comes onto SOHOTEN and he then transfers it into the encrypted drives or onto his external hard-drives for work or other non-pornographic materials; and that he is able to discriminate where he puts these various data; is totally at odds that with him transferring 1042 of the CEM files to the encrypted porn storage drives, without having any idea of the folder or file names, or that it was child pornography.
·His evidence of the entire 1042 files that he had transferred from SOHOTEN to the encrypted drives were done by bulk downloads, without ever seeing any of the very incriminating folder or file names, is totally implausible.
·The defendant paints himself as a collector of very specific pornography and referred at one point to wanting to complete his collection; comparing himself to someone requiring specific additions of a particular magazine to complete their collection. This is totally at odds with his evidence that his file server was freely available to other consumers and traders of pornography, to download and upload material.
Those are specific examples of topics upon which I find his evidence contradictory or totally implausible. Of course, my assessment of his evidence is not confined to those specific topics. I accept a good deal of his evidence, relating to his expertise and experience, and the manner in which he built up his pornography collection over the years. However, I do not consider it is a reasonable possibility that he was unaware of the folder names and file names, and the nature of the material in the files listed in Exhibit P2.
Findings of Fact
Rejection of the accused’s evidence does not make him guilty of the offence. I need to make an assessment of the prosecution case; what I find proved beyond reasonable doubt; and whether those facts make out the ingredients of the charge.
Of course, I accept the statement of agreed facts. I accept the declaration of Senior Constable Robin Neville dated 6 April 2018 and the two spreadsheets, Exhibits P2 and P6. I accept the accused’s description of the set-up on the computer to the extent that files were traded on to SOHOTEN hard-drive and he then transferred them to the encrypted drives.
As already noted, I accept his evidence as to the building up of his pornography collection and the manner in which it was traded on the computer.
Upon the entirety of the evidence, I consider the inference is overwhelming that he was aware that these files contained child pornography. I draw that inference beyond reasonable doubt, and consider it is the only rational conclusion from the entirety of the circumstances including the following:
Firstly, his extensive knowledge and experience in computing.
Secondly, his very strong interest in his pornography collection as evidenced by the time and efforts he had put into amassing a huge data-bank of pornography.
Thirdly, that the file server and the SOHOTEN hard-drive on the computer were set up and left running a lot of the time, specifically to enable material to be uploaded onto his computer.
Fourthly, that from time to time he would transfer material from the SOHOTEN hard drive to other hard drives including external hard drives for work or other purposes, but had the encrypted hard drives for pornography. I accept his evidence he was able to discriminate where material needed to go. In so doing, he must have had regard to the folder names and file names; if not every individual one at least sufficient of them to know the type of material that was comprised in the folders and files.
Fifthly, I consider the coincidence of the date he visited the dad-and-daughter-sex chatroom, namely 24 November 2010, with the creation of a number of the files on his computer, to demonstrate a link between the two events. I reject as totally implausible, that the material just happened to be downloaded at the very time he had visited that chatroom.
Sixthly, the inference that he was aware of child pornography on his computer is consistent with some of the remarks he made to Detective Slattery including that there were possibly child pornography files on his computer but as he finds it he deletes it; that he vets the material on his computer; and that everything he has not vetted is basically sitting out in the clear. Irrespective of the remark that followed this exchange in the interview, I take that former remark to be a reference to him having vetted the material that was on the encrypted drives, but that all of the unvetted files were on the SOHOTEN drive which was not encrypted and hence sitting out in the clear.
I therefore find those cited passages from the police interview as no more than consistent with what I consider to be the overwhelming inference in any event; that is, that the files on the encrypted drives were ones that he had vetted in the sense that he had transferred the material from SOHOTEN to those drives and in so doing had noted the contents at least to the extent of seeing and having regard to the folder names and file names.
Conclusion
In this trial, defence have argued that possession of the child pornographic material has not been proved, because the prosecution has not proved knowledge on the defendant’s part of the child pornographic content of the material. However, this submission is contrary to authority which makes it plain that knowledge that the material was child pornography is not an ingredient of the offence. Upon the accused’s own evidence, in combination with the agreed facts, he is guilty of the offence, in that he was in possession of the files knowing they contained pornography.
However, for the reasons outlined, I do not accept, even as a reasonable possibility, his evidence that he was unaware of the child pornographic content of the material. For the reasons I have outlined, I consider the only rational and reasonable hypothesis, on the entirety of the agreed facts and evidence, is that he was aware that the files on the SOHOTEN and encrypted hard drives of the Dell computer, contained child pornography. Accordingly, even if it was necessary for the prosecution to prove knowledge of the child pornographic content of the material, the offence would still be made out.
For those reasons I find the defendant guilty.