R v Golubovic

[2016] SASCFC 144

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GOLUBOVIC

[2016] SASCFC 144

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Doyle)

21 December 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY - REASONABLE DOUBT

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - DIRECTIONS TO JURY

Appeal against conviction.

The appellant was found guilty by a jury of five counts of possession of child pornography.

In July 2012, officers of the sexual crime investigation branch attended at residential premises where the appellant and his mother lived. The police found in the sleepout of the main house a computer, use of which was shared between the appellant and his mother. The police found on the computer a software program called LimeWire that enabled a user to download files from computers on which LimeWire was also installed so at to share files. The police found five files containing child pornography. In addition, there were records that another 14 files had previously been downloaded but had been deleted which had file names suggestive of child pornography. There were also 483 files that appeared to have been downloaded using LimeWire, the names of some of which were suggestive of generic pornography.

When the police attended, Detective Fitzgerald informed the appellant that he believed that a computer at the premises had files suggestive of child pornography available for sharing through a sharing network and the appellant responded that there was a computer that stayed on constantly, the house was open during the day time, the computer had a downloading device on it that was about 2007 and he rarely used the computer.

At the trial, the appellant’s mother, uncle and cousin gave evidence that they did not download and were not aware of the child pornography on the computer. Detective Fitzgerald gave evidence that some of the words in the names of the files were commonly used and recognised by those interested in child pornography.

No objection was raised at trial to the admission of evidence of other files on the computer and no issue in relation to discreditable conduct evidence was raised.

The defendant appeals, and seeks permission to appeal, against his convictions on grounds that:

1.  evidence by Detective Fitzgerald of a conversation with the appellant’s mother was wrongly admitted;

2.  evidence about the meaning of certain keywords was wrongly admitted and the Judge erroneously summarised the evidence that search terms employed by the user of the computer disclosed an attempt…