R v Golubovic
[2016] SASCFC 144
•21 December 2016
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 to seek out child pornography;
3. the Judge erred in admitting discreditable conduct evidence;
4. the Judge did not give to the jury adequate directions about the permissible and impermissible uses of discreditable conduct evidence;
5. the Judge failed to give to the jury a separate consideration direction;
6. the Judge gave erroneous directions to the jury on the element of possession;
7. a miscarriage of justice was caused by comments by the prosecutor and Judge that fortunately the jury did not have to view the material;
8. the Judge failed to direct the jury on the permissible and impermissible uses of the statement made by the appellant to the police;
9. the Judge misdirected the jury on the burden on proof;
10. there was an imbalance in the Judge’s summing up.
Held by Blue J (Nicholson and Doyle JJ agreeing) (allowing the appeal):
1. The Judge did not err in admitting evidence of Detective Fitzgerald concerning his conversation with the appellant’s mother (at [45]).
2. The evidence about keywords was not wrongly admitted and the Judge’s erroneous summary of the prosecution case did not give rise to a miscarriage of justice (at [54], [62]).
3. The evidence of the names of files on the computer suggestive of generic pornography is discreditable conduct evidence. If objection had been taken to its admission, it ought to have been excluded because its probative value did not substantially outweigh its potential prejudicial effect. It is unnecessary to decide whether a miscarriage of justice resulted (at [73]-[77]).
4. The Judge’s directions to the jury on the permissible and impermissible uses of the discreditable conduct evidence were not sufficient to avoid the risk of impermissible reasoning by the jury by reference to the discreditable conduct evidence (at [89]).
5. A specific separate consideration direction was not required in the circumstances and the jury necessarily understood that it was required to consider each count, and the evidence in respect of each count, separately (at [96]).
6. The Judge did not misdirect the jury on the element of possession (at [107]).
7. No miscarriage of justice arose from the statements by the prosecutor and the Judge that fortunately the jury did not have to view the material (at [112]).
8. The Judge did not adequately direct the jury concerning the permissible and impermissible uses of the appellant’s statement to the police (at [127]).
9. The Judge misdirected the jury in relation to the burden of proof (at [141]).
10. There was an unintended imbalance in the summing up (at [157]).
11. The proviso cannot be applied (at [161]).
12. Permission to appeal on all grounds granted, appeal allowed, convictions set aside and matter remitted for retrial (at [164]).
Criminal Law Consolidation Act 1935 (SA) s 63A; Evidence Act 1929 (SA) s 34P, s 34R, referred to.
Barr v The Queen (2004) 14 NTLR 164; Clark v R (2008) 185 A Crim R 1; Domican v The Queen (1992) 173 CLR 555; KRM v The Queen (2001) 206 CLR 221; Peacock v The King (1911) 13 CLR 619; R v C, G (2013) 117 SASR 162; R v Compton (2013) 237 A Crim R 177; R v Courtney-Smith (1990) 48 A Crim R 49; R v GNN (2000) 78 SASR 293; R v Lowe [2016] SASCFC 118; R v Pahuja (1987) 49 SASR 191; R v Tedesco (2003) 85 SASR 66; R v von Heytmanek (2006) 96 SASR 97; R v Weetra (2010) 108 SASR 232; R v Wilson (1986) 42 SASR 203; Simic v The Queen (1980) 144 CLR 319, discussed.
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Barca v The Queen (1975) 133 CLR 82; Castle v The Queen; Bucca v The Queen [2016] HCA 46; Gassy v The Queen (2008) 236 CLR 293; Mule v The Queen (2005) 156 A Crim R 203; R v Baden-Clay (2016) 90 ALJR 1013; R v Birks (1990) 19 NSWLR 677; R v Forrest (2016) 125 SASR 319; R v Hajistassi (2010) 107 SASR 67; R v Newman [2011] SASCFC 36; Spence v Demasi (1988) 48 SASR 536, considered.
R v GOLUBOVIC
[2016] SASCFC 144Court of Criminal Appeal: Blue, Nicholson and Doyle JJ
BLUE J:
This is an appeal against conviction.
The appellant, Adam Golubovic, was found guilty by a jury in the District Court of five counts of possessing child pornography, three of which were aggravated because the victim was under 14 years old.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a).
The appellant appeals against the convictions on grounds that the Judge:
1 failed to direct the jury that the evidence on each count was not cross-admissible in relation to the other counts;[2]
2 failed to direct the jury as to the permissible and impermissible uses of the cross-admissible evidence (if admissible) and discreditable conduct evidence (if admissible);[3]
3 failed to direct the jury that it was required to consider separately whether the prosecution had proved each count on the information beyond reasonable doubt;[4]
4 misdirected the jury on the elements of the offences charged;[5]
5 failed to direct the jury on the permissible and impermissible uses of a statement made by the appellant to police at the time of his arrest;[6]
6 misdirected the jury on the burden of proof.[7]
[2] Ground 2A.1.
[3] Grounds 2A.2 and 2.
[4] Ground 3.
[5] Ground 4.
[6] Ground 6.
[7] Ground 8.
The appellant seeks permission to appeal against the convictions on grounds that his trial miscarried as a result of:
1 wrongful admission of evidence of discreditable conduct;[8]
2 wrongful admission of evidence in re-examination of Detective Fitzgerald concerning his conversation with the appellant’s mother;[9]
3 wrongful admission of evidence of Detective Fitzgerald about the meaning of terms contained in the names of files located on the seized computer and that the names of the files the subject of the five counts suggested that they were child pornography;[10]
4 the Judge erroneously summarising the evidence case in terms conveying that the search terms employed by the user of the computer disclosed a conscious and deliberate attempt to seek out child pornography when there was no evidence that any specific search terms had been used within the LimeWire program;[11]
5 comments by the prosecutor and the Judge that “fortunately” and “thankfully” the jury did not have to view the material subject of the charges;[12]
6 imbalance in the Judge’s summing up to the jury which gave undue emphasis to the prosecution case but failed to put the defence case adequately.[13]
[8] Ground 1.1.
[9] Ground 1.2.
[10] Grounds 1.3 and 1.4.
[11] Ground 10.
[12] Ground 7.
[13] Ground 9.
Factual circumstances
On 12 July 2012 at about 8 pm, Detective Brevet Sergeant Fitzgerald and other police officers working in the Sexual Crime Investigation Branch attended at residential premises at Brooklyn Park (the premises). Detective Fitzgerald informed the appellant that he believed that a computer at the premises had a number of files suggestive of child pornography available for sharing through a peer-to-peer sharing network. The appellant said that there was a computer which stayed on constantly, the house was open during the daytime, the computer had a downloading device on it that was “about 2007”, and he rarely used the computer.
The police then searched the premises for devices capable of accessing the Internet. The only such device that they found was an LG desktop computer (the computer). They took possession of the computer tower comprising part of the computer and which included the hard disk.
The appellant and his mother Vera were, and had for approximately the previous 17 years been, the sole residents at the premises. The premises comprised a two-bedroom semi-detached house (the house) together with a granny flat at the rear (the granny flat). Vera had a bedroom in the house and the appellant had a bedroom in the granny flat. The appellant generally had his meals in the house and kept some of his clothes there.
The computer belonged to Vera, who had purchased it from a shop on Grange Road. Its operating system, Windows Vista Home Basic, had been installed on 20 June 2007. It was kept in the “sleepout” at the rear of the house. Vera used the computer to send and receive emails via a Bigpond email account. The appellant also used the computer, including using Vera’s Bigpond email address to send and receive emails, and for at least Word document purposes. When the computer was seized by the police in July 2012, the only emails it contained were emails sent to or by Vera or the appellant and generic emails (eg spam) and it did not contain any emails sent to or by any other specific individual.
A software program called LimeWire had been installed on the computer. LimeWire is peer-to-peer file sharing or information sharing software. It enables a user to download files via the Internet from computers on which LimeWire is also installed and on which files have been created or downloaded. I use the term “download” in its broader sense of meaning the transfer (from the perspective of the recipient computer) of data or programs from one computer to another[14] (rather than in its narrow sense of transferring data or programs from a website via the Internet). I use the term “Internet” to mean the infrastructure that interconnects computers, giving access to the World Wide Web, email, the LimeWire network and other software applications. LimeWire also automatically uploads to other computers on which LimeWire is installed files that have been created or downloaded on a computer on which LimeWire is installed.
[14] See Concise Oxford English Dictionary (revised tenth edition, 2002) page 431; Macquarie Dictionary (revised fourth edition, 2001) page 570.
LimeWire contains a search screen which enables the user to select audio, video, images, documents or all types and to enter a keyword or keywords for searching purposes. On entry of a keyword or keywords, the software searches all computers connected to the Internet on which LimeWire is installed for files containing that keyword or keywords. Such computers operate as a virtual network. On the user selecting one of the files returned by the search, the file is downloaded onto the user’s computer. Once the file is downloaded, it becomes available to other LimeWire users via their own search capacity.
While a file is downloading, it is possible to view and/or listen to the file (depending on whether it is an audio, video, image or document file), which is known as a “preview”. While a file is partially downloading, it is stored as a temporary file in a dedicated folder with a dedicated name (the temporary folder). After a file had been completely downloaded, it is automatically transferred into a different dedicated folder with a dedicated name (the permanent folder). The temporary file is then usually deleted from the temporary folder.
Unless overwritten, a record will remain of the file name of a temporary file that has been previewed while being downloaded and temporarily stored in the temporary folder but is no longer present in that folder (or in the permanent folder). In that case, the only record remaining will be the name of the file downloaded, not the date of downloading or any other details. The name of such a file that has been downloaded and previewed will commence with the prefix “Preview-T-[a 10 digit number assigned by the LimeWire software]”. The name of such a file which has been downloaded but not previewed will commence with the prefix “T-[a 10 digit number assigned by the LimeWire software]”.
The most recent version of LimeWire (version 4.14.12) had been installed on the computer on 12 January 2012. However, it was clear that earlier versions of LimeWire had been installed on the computer at least as early as 12 February 2011 because there was a reference to the file the subject of count 2 (which related to a file created in the permanent folder on 12 February 2011) to a temporary version of that file in the temporary folder.
LimeWire was installed on the computer in a manner such that it opened automatically when the computer was turned on. The computer did not require a password to access it, nor did the LimeWire software require a password. The temporary folder on the computer was entitled “Incomplete” (the “Incomplete” folder) and the permanent folder was entitled “Shared” (the “Shared” folder).
The only file in the “Incomplete” folder when the computer was seized by the police on 12 July 2012 was an mpg file created between 18 and 25 June 2012 with a title that included Japanese words and the words “Russian Lolita 13” and “PTHC” (47 minutes). This video file was the subject of count 2. The creation date was shown in a listing of the name, file created date and last written date in tab 4 of exhibit P2 tendered at the trial.
There were 483 files of various types (mostly mp3 music files and mpg video files) in the “Shared” folder when the computer was seized by the police on 12 July 2012. The creation date was shown in a listing of the name, file created date and last written date in tab 3 of exhibit P2 tendered at the trial. The earliest file created date was 11 July 2007. Files in this folder had been created on a more or less regular basis between July 2007 and June 2012. The file creation date was the date on which the file was (automatically) transferred from the “Incomplete” folder to the “Shared” folder on completion of downloading.
The files in the “Shared” folder created between July 2007 and May 2010 were largely mp3 music files. From May 2010 to May 2012, there were 52 mpg files with names that may have suggested that they depicted pornography in the generic sense as opposed to child pornography (the 52 generic pornography filenames).
There were four files in the “Shared” folder that were the subject of four counts:
1 A file created on 12 February 2011 entitled “G7m Pthc - My Ostentatious Daughter 12yo.mpg” the subject of count 4 (59 minutes long).
2 A file created on 29 April 2011 entitled “LS models preteen PTHC hussyfan pedo R@Ygold Japanese Kansai-16 lolita 15yo girl 15 years old fuck preteen underage homemade kingpass pthc(2).mpg” the subject of count 1 (66 minutes long).
3 A file created on 25 May 2012 entitled “(pthc) Pedoland Cinderellac4b02.mpg” the subject of count 5 (6 minutes long).
4 A file created on 26 May 2012 entitled “!New!(Pthc)Neice Series 2 (5y Full Penetration) (62m20s).mpg” the subject of count 3 (62 minutes long).
There was a record showing that a temporary file had existed in the “Incomplete” folder in respect of the files the subject of counts 1, 2 and 3. No such record was located in respect of the file the subject of count 5.
There was a record showing that a temporary file had existed in the “Incomplete” folder in respect of 14 files that had been downloaded (of which four bore the prefix “Preview”) which are no longer present on the computer and which had file names suggestive of child pornography (the 14 remnant filenames).
Several Word documents were found by the police on the computer. The earliest was a document entitled “mums file.wps” created on 25 June 2007. Fifteen Word documents created between January 2009 and December 2011 related to and were apparently created by the appellant.
The trial
After the opening address by the prosecutor, counsel for the appellant identified the issue for the jury in the following terms:
Unlike prosecution, at this moment I am not permitted to have long detailed opening addresses, what I can point out is the issue at this trial and the issue was mentioned a number of times by the prosecutor and that is the possession of those files. Mr Golubovic is denying knowledge of those files, he’s denying downloading those files and he states he has no possession whatsoever of those files. As stated, that is the issue in this case.
Detective Brevet Sergeant Fitzgerald worked in the Sexual Crime Investigation Branch of the South Australian Police between 2009 and 2014. He was the investigating officer. He gave evidence about the search of the house on 12 July 2012 and the seizure of the computer. He described in some detail the length and content of each video file the subject of each count. It was apparent from his descriptions that each video contained child pornography.
Detective Fitzgerald gave evidence that he had learned through his training and investigations that those who created files containing child pornography developed keywords which were commonly embedded in filenames and were easily recognised by those searching for child pornography. He said that these included “preteen”, “pthc” (an acronym for preteen hardcore), “LS” (referring to a well-known child exploitation magazine), “hussyfan”, “pedo” (a contraction of paedophile), “R@ygold” (referring to an American man facing trial for child abuse) and “lolita”. He said that a number followed by “yo” (standing for years old), such as “12yo”, was commonly embedded in filenames of files containing child pornography to designate the age of the child in question.
An expert report by Robert Taylor of the Electronic Crime Section of the South Australian Police was tendered during Detective Fitzgerald’s evidence as exhibit P2. It comprised a 19 page narrative report (tab 1) which included a listing of the 14 remnant filenames, together with a one page listing of the files the subject of each charge (tab 2), a 34 page listing of the files in the “Shared” folder (tab 3), a one page listing of the file in the “Incomplete” folder (tab 4) and some other listings.
Dr Lin worked in the Electronic Crime Section of the South Australian Police. He gave evidence about Mr Taylor’s report. He explained how LimeWire operates, how it operated in particular on the computer, how the computer operated and the files and records of files found on the computer.
Vera Golubovic gave evidence that she and her son, the appellant, moved into the premises about 17 years earlier (about 1998). They were the only persons who ever lived at the premises in that time. She had a falling out with her brother Stevan in 2006 when their mother died and they did not have any contact for five years. Contact resumed in 2011 until a further falling out in 2013. Stevan came to visit from time to time between 2011 and 2013, largely to fix cars in the neighbourhood. Vera did not recall him staying overnight during this period. Vera’s nephew Michael’s mother died about 11 years earlier (about 2004) when he was quite young. Following his mother’s death, Michael visited between 2010 and mid-2012. Michael stayed overnight on a few occasions. Vera had been in a relationship with Zeko which ended in January 2011. Vera had a neighbour, Boban, who visited the house from time to time from sometime after April 2011.
Vera Golubovic gave evidence that she had a full-time job during the day and the appellant often worked night shift. The computer was kept in the sleepout. The appellant often left the back door to the sleepout unlocked when he left for work so that the pets could get out.
Vera Golubovic gave evidence that she had not heard of LimeWire or peer-to-peer file sharing and had never used LimeWire. She had never used the computer to download pornography, video files or music. Her evidence was not challenged in cross-examination.
Stevan Golubovic gave evidence about his relationship with Vera and visits to the house consistent with Vera’s evidence. He said that in 2011 and 2012 he visited the house ranging from two or three times a month to not seeing Vera for a month. He never stayed overnight. He was never in the house without Vera’s knowledge or without anyone else being present. He had little knowledge about computers. He never used the computer. He did not know what LimeWire was. He did not know what peer-to-peer file sharing was. His evidence was not challenged in cross-examination.
Michael Golubovic gave evidence about his relationship with Vera and visits to the house consistent with Vera’s evidence. He said that between 2010 and 2013 he visited the house about twice a year and usually stayed overnight on those occasions. He was never in the house without anyone else being present. The appellant on occasions showed him videos on YouTube on the computer. He never controlled the computer himself and never used it when no one else was present. His evidence was not challenged in cross-examination.
It was an agreed fact that each of the video files the subject of counts 1 to 5 are child pornography within the meaning of the Criminal Law Consolidation Act 1935 (SA) and that the video files the subject of counts 3 to 5 depict children under the age of 14 years.
It was an agreed fact contained in exhibit P4 paragraphs 2 and 3 that there was a conversation between Detective Fitzgerald and the appellant at the outset of the search on 12 July 2012 as summarised above and set out in more detail below.
The prosecution case was concluded before midday on the second day of trial. The appellant made a short no case to answer submission that there was a reasonable possibility that another person had used the computer to download the relevant files. The Judge found that there was a case to answer. The appellant elected not to give evidence. The trial was then adjourned to the following day for closing addresses.
On the third day of trial, the prosecutor addressed the jury, followed by counsel for the appellant. The appellant’s counsel confirmed that the issue for the jury was the identity of the person responsible for downloading the five child pornographic videos present on the computer. Counsel said:
There is no doubt that there were five child pornographic videos present on Vera Golubovic’s computer. It is obvious someone has downloaded them or put them on the computer. It is also obvious that it was not an accident. That can’t be suggested. But the evidence before the court, ladies and gentlemen, in my submission, does nothing to prove beyond reasonable doubt who was responsible for the downloading.
Counsel for the appellant drew no distinction between the counts and addressed the jury on the basis that the files the subject of the five counts were downloaded by the same person and there were only two hypotheses to be considered by the jury: the files were all downloaded by the appellant (the prosecution case) or there was a reasonable possibility that they were all downloaded by a person or persons unknown and none were downloaded by the appellant (the defence case).
The Judge summed up to the jury. The jury returned after considering its verdict for just over four hours. The jury unanimously found the appellant guilty of counts 1 to 4 and by majority found the appellant guilty of count 5.
Admissibility of evidence of conversation with Vera Golubovic
The appellant seeks permission to appeal on the ground that his trial miscarried as a result of the Judge wrongly admitting evidence in re-examination of Detective Fitzgerald concerning his conversation with Vera.[15]
[15] Ground 1.2.
Detective Fitzgerald was asked a series of questions in cross-examination leading to a suggestion that he was looking for anything to implicate the appellant. In the course of the cross-examination, it was put to him that he discounted Vera Golubovic as the person in possession of the pornographic material based on a conversation with her. The cross-examination proceeded as follows:
Q.I understand that this house, this address where the internet connection was, got flagged somehow and a search was conducted.
A. Yes.
Q.You've gone in there and there are two people, there was Vera Golubovic and Mr Golubovic living out the back.
A. Yes.
Q.You were under the suspicion that a computer at this stage might have child pornographic material.
A. Yes.
Q.After a short conversation with Vera Golubovic you decided that she probably wasn't the person who had possession of that material.
A. Yeah.
Q. Then you decided it must be Mr Golubovic.
A. By the powers of deduction, yes.
Q.And you set about looking for anything on that computer that would implicate Mr Golubovic.
A. Well, I went about looking for any evidence of child pornography on that computer.
In re-examination, Detective Fitzgerald was asked what it was about the conversation with Vera Golubovic that caused him to discount her. The re-examination proceeded as follows:
Q. You were just asked some questions about why you, in effect, chose to charge Mr Golubovic over his mother Vera Golubovic and that that was based on some conversations you had with Ms Golubovic.
A.Yes.
Q.You don't need to say exactly word for word what was said but what was it that she told you that gave you the impression she was not the appropriate person to be charging.
A.She told me that she used that computer very little. She had a - she worked on a computer all day with her work and didn't feel the need to sit down and use more computers at home. She also had very little knowledge of computers, in my opinion.
Q.Did you engage in a conversation with her to ascertain her knowledge of computers.
A.I did, yes.
Q.Was that in particular in relation to the peer-to-peer file sharing.
A.Yes, I questioned her about that and she wasn't aware of how it worked, what it was, didn't know any of the program names that related to peer-to-peer file sharing.
The appellant contends that the re-examination was improper: the topic had not been left in an ambiguous state following cross-examination and rehabilitation of Detective Fitzgerald’s evidence was not needed or justified. The appellant contends that the re-examination merely introduced inadmissible hearsay evidence of two matters, namely that Vera Golubovic used the computer very little and had very little knowledge of computers.
No objection was made to the questions asked of Detective Fitzgerald in re-examination. This is not fatal to a contention on appeal that a miscarriage of justice arose as a result of those questions, but it does indicate that the appellant’s counsel at trial took the view that the questions were unobjectionable or forensically advantageous to the defence.
The evident purpose and potential effect of the cross-examination of Detective Fitzgerald was to suggest to the jury that Detective Fitzgerald approached the investigation with a closed mind, precipitately discounting Vera Golubovic and determined to implicate the appellant. This was directly relevant to Detective Fitzgerald’s credit in relation to the investigation and his evidence. In those circumstances, subject to the residual fairness discretion, the prosecutor was entitled to ask questions with a view to rehabilitating Detective Fitzgerald’s credit by elaborating on the inquiries he made of Vera Golubovic before discounting her as a suspect. Indeed, notwithstanding the re-examination, counsel for the appellant in his closing address submitted to the jury that Detective Fitzgerald very quickly decided that the appellant was responsible for the downloading and set about trying to show that he used the computer. While no challenge was made in closing address to Detective Fitzgerald’s credit, this could not have been known when he gave evidence.
If Vera Golubovic had not been called to give evidence and had not given first-hand evidence of the matters that Detective Fitzgerald said were narrated by her to him, there would have been a risk that the jury would have treated Detective Fitzgerald’s evidence as evidence of the truth of what he was told in contravention of the hearsay rule. However, there was no such risk in the present case because Vera Golubovic did give first-hand evidence of these matters and indeed there was no challenge to that evidence.
This ground of appeal is not established.
Meaning of keywords in filenames
Admissibility
The appellant seeks permission to appeal on the ground that his trial miscarried as a result of the Judge wrongly admitting evidence by Detective Fitzgerald of the meaning of terms contained in the names of files located on the computer[16] and that the names of the files the subject of the five counts suggested that the files were child pornography.[17]
[16] Ground 1.4.
[17] Ground 1.3.
Detective Fitzgerald gave evidence that, as a result of his training and investigations during his five years in the Sexual Crime Investigation Branch, he had learnt that persons who named computer files containing child pornography embedded one or more keywords into filenames that were generally known amongst those interested in child pornography as designating that the files contained child pornography. This enabled persons interested in accessing child pornography or particular types thereof to search using the Internet under these generally known keywords.
Detective Fitzgerald gave evidence that such generally known keywords included “preteen”, “pthc”, “LS”, “hussyfan”, “pedo, “R@ygold” and “lolita”. He said that a number followed by “yo” was commonly embedded in filenames of files containing child pornography to designate the age of the child in question.
Keywords identified by Detective Fitzgerald appear in the filenames of the files the subject of each of the five counts and most of the 14 remnant filenames. Detective Fitzgerald gave evidence that the filename of the file the subject of count 1 was extremely suggestive of child pornography.
No objection was made to the questions asked of Detective Fitzgerald. This is not fatal to a contention on appeal that a miscarriage of justice arose as a result of those questions, but it does indicate that the appellant’s counsel at trial took the view that the questions were unobjectionable.
The appellant contends that this evidence by Detective Fitzgerald was not relevant because one person’s state of mind about the significance of terms appearing in the files could not rationally or logically affect the jury’s assessment about another’s state of mind in downloading or accessing the material. However, the relevance of the evidence given by Detective Fitzgerald did not lie in Detective Fitzgerald’s state of mind but rather in what was commonly known amongst those interested in child pornography about certain keywords being embedded in filenames to facilitate access to child pornography files by those searching for child pornography.
The appellant contends that Detective Fitzgerald’s evidence did not concern a subject matter about which the jury required expert assistance. However, the jury could not be expected to know what keywords were used by those interested in child pornography. Many of the keywords identified by Detective Fitzgerald (such as “LS” or “R@ygold” or “pthc”) were esoteric ones that would not be logically or intuitively identified by an outsider as designating child pornography. While others (such as “pedo”) would be intuitively identified, this does not necessarily render the evidence of Detective Fitzgerald irrelevant and in any event his evidence about such terms was incapable of leading to a miscarriage of justice.
The appellant contends that there was no evidence that the full filename would have been visible to the person responsible for downloading the material and the report comprising exhibit P2 suggests that only part of the file name is present in the LimeWire window. However, the relevance of Detective Fitzgerald’s evidence was not that a person seeking to access child pornography would ascertain the nature of a file by looking at in the LimeWire window but rather that the person would enter a keyword into a search box and the computer would do the searching for that keyword.
This ground of appeal is not established.
Summing up about evidence concerning keywords
The appellant seeks permission to appeal on the ground that his trial miscarried as a result of the Judge erroneously summarising evidence in terms that conveyed that the search terms employed by the user of the computer disclosed a conscious and deliberate attempt to seek out child pornography when there was no evidence that any specific search terms had been used within the LimeWire program.[18]
[18] Ground 10.
The appellant contends that there was no evidence that any specific search terms had been used by the user of the computer to search for child pornography or explaining how the files the subject of the charges came to be downloaded on LimeWire. The appellant contends that the Judge erroneously told the jury that specific child pornography-related search terms had been entered into LimeWire.
During his address to the jury, the prosecutor reminded the jury of the evidence that a user of LimeWire can type in particular search terms to locate particular files or types of files for which the user is looking, which is a very deliberate process; the user can then select a file or files to be downloaded and that file will appear first in the “Incomplete” folder and then in the “Shared” folder. The prosecutor reminded the jury of Detective Fitzgerald’s evidence about keywords commonly used by persons interested in child pornography. The prosecutor reminded the jury of the evidence that at least four of the five files the subject of the charges had been downloaded using LimeWire. The prosecutor then made the following submission to the jury about the knowledge of the person who downloaded the files:
…those files have been deliberately and purposely downloaded onto the computer by a user. So whoever it was, leave aside the issue of who did it for the moment, whoever it was it is in my suggestion to you, of course the prosecution case is it is the accused but leave that aside for a moment, whoever it was you might be satisfied did so knowingly and deliberately. Whoever downloaded the files knew they were on the computer, knew where to access them, had possession of them. In other words, whomever downloaded those files was knowingly in possession of them. But that will be a matter for you, ladies and gentlemen.
You might think that then turns you to the real question in this trial, the real issue in dispute in this trial: are you satisfied that the prosecution have proven to you that the accused, Mr Adam Golubovic, was the one to download and access those files?
In the course of the summing up, the Judge said:
You have heard the submissions of both counsel this morning. You have had a thorough explanation given to you by Mr Foundas and you know that the prosecution case, through Detective Fitzgerald, is that particular search terms were deliberately used by the person using the computer… Those search terms disclose a conscious and deliberate attempt, on the prosecution case, by that person using the computer to gain access to the child pornography.
The prosecution says that it is apparent from the use of the search terms such as PTHC, which is an acronym for preteen hard-core. That leads, as you have heard the evidence, to searches identifying child pornography material files and the downloading of those files.
Now as you have heard a number of times from Mr Foundas, the prosecution case is that as a matter of clear inference the person with that intention was the accused. The prosecution case is that the review of the five files discloses the use of such search terms as PTHC or inquiries in relation to files such as Lolita. The prosecution case is that that would be intended by the user to obtain a result identifying child pornography. That is the knowledge case, and, as you have already heard from me, that is an inference based upon circumstantial evidence.
Then on the aggravated possess child pornography charges, the last three charges, the prosecution, as you know, as I have already said, must prove beyond reasonable doubt the same first two elements. In addition the prosecution must also prove beyond reasonable doubt the aggravating feature which is, and again I am going through the aid, that the accused committed the offence knowing that the victim of the offence was at the time of the offence under 14 years of age…
The prosecution case in relation to that aspect of knowledge is largely the same. The evidence of Detective Fitzgerald was that the search terms employed by the user of the computer disclosed a conscious and deliberate attempt – this is what the prosecution would ask you to infer – that it discloses a conscious and deliberate attempt to gain access to child pornography for children who are preteen. Hence by the use of the preteen hard-core inquiry terms there is evidence on the prosecution case of the person conducting the searches attempting to identify child pornography in respect preteen children, that is, children under the age of 14 years. The prosecution case is that, having identified such material, there has been a downloading of the relevant files and those files are the subject of counts 3, 4 5 five which, as you know, it is an agreed fact that they are in respect of children under the age of 14 years.
…
… The question for you on this aggravation issue only is this: are you satisfied beyond reasonable doubt that the accused committed the offence knowing that the victim of the offence was under the age of 14 years.
Now you will recall in relation to that, just to remind you, the evidence in relation to that and concerning that was the evidence of a police officer who informed you in relation to the method of inquiry and the process of inquiry in and search terms.
When considered in context, contrary to the appellant’s submission, the Judge was not in those passages summarising the evidence but rather was purporting to summarise the prosecution case of the inference that could be drawn from the evidence that whoever downloaded the files had entered search terms known to designate child pornography. However, the prosecutor in his address had not explicitly invited the jury to draw this inference. While the Judge did not misstate the evidence, the Judge did misstate the prosecution case.
However, the appellant accepts that, in order to succeed on this ground, it is not sufficient merely to show a misstatement by a trial judge of the evidence (and the same applies to a misstatement of the prosecution case). The appellant accepts that it is necessary to demonstrate that the misstatement has led to a miscarriage of justice. In Simic v The Queen, [19] Gibbs, Stephen, Mason, Murphy and Wilson JJ said that:
… the distinction between misdirection of law and misdirection of fact is fundamental and must always be borne in mind when evaluating the significance of a misdirection of the latter kind. In the case of the former, the jury is assumed to have observed and applied the directions that were given to them, and any mistake by the trial judge in his charge to the jury on matters of law is itself a ground for allowing an appeal, if, subject to the proviso, the Court of Criminal Appeal thinks fit to do so. In the case of the facts, the trial judge must tell the jury that the facts are for them, that their verdict must be grounded on the evidence that they have heard, and that although he will review that evidence and make some comments of his own relative thereto they are not bound to accept anything that he may say. The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal. It is right and proper therefore that an onus rests upon an appellant to bring himself within s. 568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice. …if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.
[19] (1980) 144 CLR 319.
In this case, the real issue was the identity of the person who downloaded the files. There was no dispute at trial that, whoever downloaded the files did so deliberately, knowing that they comprised child pornography. This was accepted by counsel for the appellant in the passage in his closing address to the jury extracted at [35] above. A finding to that effect was inevitable regardless of whether that person found the files on LimeWire by using particular search terms known to designate child pornography. In these circumstances, no miscarriage of justice arose from the Judge’s misstatement of the prosecution case.
This ground of appeal is not established.
Discreditable conduct evidence
Admissibility
The appellant appeals on the ground that the Judge failed to direct the jury that the evidence on each count was not cross-admissible in relation to the other counts[20] and seeks permission to appeal on the ground that his trial miscarried as a result of the wrongful admission of evidence of discreditable conduct.[21]
[20] Ground 2A.1.
[21] Ground 1.1.
Section 34P of the Evidence Act 1929 (SA) relevantly provides:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
The appellant contends that there were three sets of discreditable conduct evidence adduced before the jury:
1 in respect of any one count, evidence of the conduct the subject of the other four counts;
2 in respect of each count, evidence of the 14 remnant filenames suggesting that child pornographic files had previously been downloaded;
3 in respect of each count, evidence of generic pornographic files present in the “Shared” folder on the computer (the 52 generic filenames).
The evidence of the 14 remnant filenames and the 52 generic filenames in respect of files in the Shared folder was contained in exhibit P2, to which no objection was taken by the appellant. In R v C, G,[22] this Court held that, if a defendant makes no objection to the admission of evidence of discreditable conduct, the trial judge is not required to consider its admissibility under section 34P of the Evidence Act.[23] No error of law is committed by the admission of the evidence in those circumstances. The same reasoning applies when the prosecution makes it plain that it is relying in respect of one count on a permissible use of evidence on other counts and no objection is made by the defendant.
[22] [2013] SASCFC 83, (2013) 117 SASR 162.
[23] At [50] per Gray, Sulan and Blue JJ.
Ordinarily, absent a contention of incompetence of counsel (which is not made here), a defendant is bound by the manner in which the trial was conducted and forensic decisions made at trial by or on his or her behalf.[24]
[24] R v Birks (1990) 19 NSWLR 677 at 685 per Gleeson CJ (with whom McInerney J agreed).
This is not to say that in a particular case a miscarriage of justice cannot arise out of the admission of evidence to which no objection is taken. However, the following observations of this Court in R v Lowe[25] are apposite:
While the fact that trial counsel did not object does not prevent interference by an appellate court if there is a real risk of miscarriage of justice, it is nevertheless relevant to the assessment of whether there is such a risk. As stated by Eames AJ for the Victorian Court of Criminal Appeal in R v Ibrahim:
It is important when considering arguments on appeal, especially when the trial was conducted by different counsel to those arguing the appeal, that the reality of the trial not be lost, and that the issues on which battle was joined before the jury not treated as of mere passing relevance to an academic appellate debate.
And more recently, that court stated in Velkoski v The Queen:
When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way. This appeal provides an example of the necessity, when evaluating criticisms of the trial process and the trial judge’s directions to a jury, to relate those criticisms to the manner in which the trial was conducted. The course followed by the defence throughout the trial has a profound bearing upon the evaluation of the complaints now made concerning the trial.[26]
[25] [2016] SASCFC 118.
[26] At [13]-[14] per Peek and Doyle JJ. (Citations omitted)
In relation to cross-admissibility in respect of one count of evidence in relation to another count, the trial was conducted on the basis that the files the subject of the five counts were downloaded by the same person. The more files downloaded over the longer the period, the more likely it was that the downloader was the appellant as a resident at the premises rather than an unidentified casual visitor. This was self-evidently the permissible purpose of the admission of evidence of the files the subject of the other counts in respect of each count. It was not evidence that relied on a particular propensity or disposition of the defendant and was not the subject of section 34P(2)(b).
Impermissible reasoning of the type referred to in section 34P occurs when it is first proved that a defendant has committed an offence or other discreditable conduct and then it is reasoned that the defendant is likely to have committed the charged offence because the defendant is a criminal or immoral person or a person who commits that type of offence. Such impermissible reasoning is incapable of applying when (as in the present case) the question whether the defendant committed the first mentioned offence or other discreditable conduct is in issue and depends on the very same question as whether the defendant committed the charged offence. In the circumstances, there was no potential prejudicial effect of admission of the evidence of the first offence and the probative value of the evidence admitted for its permissible use substantially outweighed any prejudicial effect it may have on the defendant.
The same conclusion applies to the 14 remnant files names. There was no more independent proof that the files the subject of the records had been downloaded by the appellant than the files the subject of the charges. The probative value of the evidence of the 14 remnant filenames was that the more files downloaded, the more likely it was that the downloader was the appellant as a resident at the premises rather than an unidentified casual visitor.
The 52 generic filenames of files in the “Shared folder” on the computer to varying degrees may have been suggestive that the files contained pornographic videos. The actual content of those files is unknown and was unknown to the jury. Those files had file creation dates ranging from May 2010 to May 2012. The filenames ranged from those that do not necessarily suggest pornographic content at all, to those that suggest pornographic content without much clarity about its nature, to three entitled “Rape Fantasy” and two suggestive of incest. There is no basis to regard possession of these files as illegal, particularly as the police obtained access to them in July 2012 and laid no charges in respect of them. “Discreditable conduct” is not defined by section 34P of the Evidence Act 1929 (SA). The Oxford English Dictionary relevantly defines the word “discreditable” to mean:
The reverse of CREDITABLE; such as to bring discredit; injurious to reputation; disreputable; disgraceful.[27]
the word “discredit” to mean:
To injure the credit or reputation of; to bring into discredit, disrepute, or loss of esteem.[28]
and the word “disrepute” to mean:
a. To hold as of no reputation; to regard slightingly; to disesteem;
b. To bring into discredit; to defame, disparage;
c. To bring discredit or an evil name upon (by one’s conduct).[29]
[27] Vol 4 page 754.
[28] Vol 4 page 754.
[29] Vol 4 page 831.
Given the purpose of the section, “discreditable conduct” refers to any conduct which the trier of fact is reasonably liable to regard as illegal or morally reprehensible and from a finding of which there is a real risk that the trier of fact will adopt propensity reasoning in respect of the offence or offences charged. Attitudes in the community to possession of pornography vary widely and the attitudes of jurors are liable to vary correspondingly. Most members of the community are reasonably liable to regard video depictions of rape and incest (even simulated), absent genuine artistic content and purpose, as morally reprehensible. Some members of the community may regard video depictions of sexual activity as morally reprehensible.
The permissible use of the 52 generic filenames is that the more files downloaded over the longer the period, the more likely that they were downloaded by the appellant as a resident at the premises rather than an unidentified casual visitor. This is coupled with the fact that, while the mere fact that the appellant downloaded generic pornographic files (if he did so) cannot prove that he downloaded child pornographic files, it is inherently more likely that one person downloaded all of the pornographic files on the computer rather than two different persons: one downloading generic pornographic files and the other downloading child pornographic files. This is particularly so having regard to the time when the files were created in the “Shared” folder. The file the subject of count 4 was created on 12 February 2011 at 4.51 pm and a generic pornographic file was created on the same day at 9.14 pm. The file the subject of count 5 was created on 25 May 2012 at 1.26 pm and a generic pornographic file was created on the same day at 1.11 pm.
The impermissible use of the generic filenames is to reason that the appellant downloaded generic pornography and is morally reprehensible and therefore more likely to have downloaded the child pornographic files.
The difficulty created by admitting the evidence for a permissible purpose is that it is difficult to explain to a jury the difference between the permissible and impermissible uses and, in the words of subsection 34P(3), difficult to keep the permissible use sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for the impermissible purpose. If objection had been taken to the evidence, the proper application of section 34P(1)(a) would have required its exclusion because its probative value did not substantially outweigh its potential prejudicial effect.
Given the conclusion reached below that the trial directions concerning the discreditable conduct evidence were inadequate and a retrial must be ordered on that and other grounds in any event, it is not necessary to reach a final conclusion whether a miscarriage of justice resulted from the admission of this discreditable conduct evidence.
Adequacy of directions
The appellant appeals on the ground that the Judge failed to direct the jury as to the permissible and impermissible uses of the cross-admissible evidence and the discreditable conduct evidence.[30]
[30] Grounds 2 and 2A.2.
Subsection 34R(1) of the Evidence Act 1929 (SA) provides:
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
The extent of the identification and explanation required in a particular case will depend on the forensic issues in the case, and the cases of and addresses by the prosecution and defence.
In the present case, the forensic issue was whether it was the appellant or some other person who was responsible for downloading child pornography onto the computer. The prosecution case was that the appellant was responsible for all of the files that were or had been in the “Incomplete” and “Shared” folders, including the five files the subject of the charges and the 14 files the subject of the remnant filenames. The appellant’s case was that he was not responsible for downloading any of the five files the subject of the charges or the 14 files the subject of the remnant filenames and someone else was responsible for downloading them. The case was conducted on both sides on an all or nothing basis in this respect.
In his address, the prosecutor put to the jury:
What that demonstrates, ladies and gentlemen, is that whomever accessed the child pornography, who used LimeWire, must have been a long-term, repeated user of the computer, someone who had continued access. The only two people who are permanent residents in that home with long-term, repeated and continued access to the computer is Vera Golubovic, the woman who told you she didn’t do it, who you might believe, and the accused Adam Golubovic.
In his address, counsel for the appellant put to the jury:
There is no doubt that there were five child pornographic videos present on Vera Golubovic’s computer. It is obvious someone has downloaded them or put them on the computer. It is also obvious that it was not an accident. That can’t be suggested. But the evidence before the court, ladies and gentlemen, in my submission, does nothing to prove beyond reasonable doubt who was responsible for the downloading.
The Judge gave directions to the jury as to how to approach a circumstantial case on the issue of identity of the person who downloaded child pornography onto the computer. The Judge directed the attention of the jury to tab 3 of exhibit P2, being the listing of files in the “Shared” folder, asked them to open it up and explained that it was in reverse chronological order from page 34 back to page 1. The Judge then gave the following directions:
Now the whole of exhibit P2 tab 2 [the “Shared” folder file listing][31] is in evidence and you are entitled as a jury to review the whole of the content of that exhibit, including that tab but I need to ensure that when you do so – and I’m going to repeat this – you would do so in this context: that it sits in the background of the evidence that you have heard about the computer…
That evidence principally comes from Mrs Vera Golubovic and what she said about the use of that computer. As counsel has quite rightly pointed out to you, the content of that tab does not form part of any charge except of course the shaded parts. The only question for you is how you assess the content of that, the material in that tab, that is the print-out, in light of all the background evidence that you have heard. I will be starting to talk to you about strands of evidence, it is a strand of evidence but you must ensure that you do not reason in any propensity way; you do not simply say ‘The accused did all of that therefore he is guilty of these charges’. That would be a wrong way to proceed. What you can do is you can use that evidence in the background of all of the other evidence. You can use it in any way you see fit as a strand, or you might reject if you want to, and it is open to you to use as a strand of evidence that you can deal with the whole of the background of the evidence that you have heard.
[31] The settled version of the summing up records the Judge as having said “tab 2” but it is clear from the context and the reference to the whole of the tab that the Judge was referring to tab 3. If the Judge said tab 2 to the jury, the jury would clearly have understood that the Judge was in fact referring to the content of tab 3 which the Judge had asked the jury to open up.
In the course of this passage, the Judge identified the impermissible use of propensity reasoning. On its face, this encompassed in an immediate sense (because the Judge was particularly directing the attention of the jury to tab 3) the filenames and file creation dates of all of the files in the Shared folder and hence the details shown in respect of the 52 generic filenames. In a less immediate sense (because the Judge referred also to the whole of exhibit P2), this encompassed cross-admissibility (listed in tab 2) and the 14 remnant filenames (listed in tab 1).
The Judge did not expressly address cross-admissibility and did not identify or explain to the jury that it could not first find proved one charge and then reason that, because the appellant downloaded child pornography on one occasion, he was more likely to have downloaded child pornography on one or more of the other four occasions the subject of the charges. While the risk of impermissible reasoning in this way was virtually non-existent for the reasons given above and such a warning would not have been required at common law, section 34R does not give a judge any discretion to dispense with the identification and explanation of the impermissible use. The Judge did not explain to the jury the permissible use of evidence in respect of one charge in relation to the other charges. The permissible use is identified at [69] above. A principal purpose of explaining the permissible use is to enable the jury to better understand, and hence avoid, the impermissible use.[32]
[32] See the discussion by Kourakis CJ (with whom Kelly and Lovell JJ agreed) in R v Forrest [2016] SASCFC 76, (2016) 125 SASR 319 at [47].
The appellant’s principal contentions are that the Judge devoted 17 paragraphs of the summing up to identifying and explaining what the Judge totalled as 15 items of circumstantial evidence comprising the prosecution’s circumstantial case on the identity of the person who downloaded the files the subject of the charges but only a single paragraph to the defence case on this issue; the Judge gave to the jury as the first page of the question trail a four paragraph summary of the prosecution case but gave nothing in writing to the jury about the defence case; and overall this resulted in a material imbalance between the prosecution and defence cases.
The appellant makes subsidiary contentions that four of the items of circumstantial evidence identified by the Judge were not advanced by the prosecution in its final address and three of those items together with a further item did not advance the prosecution case. These subsidiary contentions can be rejected at the outset because in a circumstantial case the jury is required to have regard to all items of circumstantial evidence whether they favour the prosecution or defence. The mere fact that the Judge identified an item of circumstantial evidence that did not favour the prosecution case and/or was not advanced by the prosecutor in closing address (if this was so) did not give rise to an imbalance in the summing up as between the prosecution and defence cases.
It is common ground on appeal that the summing up to the jury must be fair and balanced. However, this does not require that the Judge devote equal time to the prosecution and defence cases. Ordinarily, it may be expected that more time will be devoted to the prosecution case for several reasons, including the fact that the prosecution is required to address every element however contentious while the defence case tends to focus only on limited and contentious issues, and the prosecution case is an affirmative case while the defence case is often a negative case. A trial judge has a large measure of discretion as to the level of detail to which the judge descends in identifying the issues in the case and the respective cases of the parties on those issues. At one extreme, in a short trial in which there is a single real forensic issue, no contested evidence, no complexity and the addresses of counsel adequately identify and explain the issues and the respective cases of the parties, there may be very little, if any, need for the judge to identify the issue for the jury or explain to the jury the cases of the parties. At the other extreme, in a long trial in which there are multiple complex issues, contested evidence and important matters not addressed by counsel, it may be essential that the judge gives to the jury a comprehensive identification of the issues in the case and the cases of the parties on those issues. In cases across the spectrum, within limits it will still be a matter of discretion and personal style as to the detail which the judge identifies the issues and the parties’ cases. However, whatever level of detail is required or the judge chooses to address, it is important that the summing up remain fair and balanced in the sense described above.
In R v Courtney-Smith,[65] Gleeson CJ, Kirby P and Lusher AJ said that:
[65] (1990) 48 A Crim R 49.
The duty of a judge to act with manifest fairness in proceedings before him is not in doubt. … If a summing up can be described as “unfair, lacking in judicial balance and so partaking in partiality as to render the trial a miscarriage of justice”, this Court must intervene. However, before doing so the following considerations must be kept in mind:
(1)The summing up must not be considered in isolation. It must be read in the light of the conduct of the trial. Its place in the trial, following the final addresses of counsel, must also be kept in mind. If the arguments of counsel are still vivid, it is unnecessary for the judge to repeat them tediously.
(2)The trial judge is entitled to express opinions on the facts, provided he or she makes it clear to the jury that it is exclusively their function to decide factual disputes…
(3)In default of standard formulate for charging juries, and new statutory rules confining judges, wholly or substantially to instruction on the law, the summing up to a jury in a criminal trial will necessarily be an individualistic endeavour. It is impossible in those circumstances to stamp upon judicial performance a monotonous uniformity. What must be uniform, however, is the overall fairness and balance.
(4)The assessment of the overall balance requires a consideration of the whole of the summing up. Isolated phrases taken from here and there are no substitute for a consideration of the entire charge, looked at as a whole and in its context in the trial. In many cases the summary of the Crown’s case on the facts will necessarily take somewhat longer than the summary of the case for the accused. Often, the accused may give no evidence or may call only character evidence. The Crown’s case being circumstantial may require some little elaboration. It is not the length of time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard.
…
Complaint is made about the length of the review of the Crown case … there is nothing excessive in the length or detail of the summary of the Crown’s case. It was a case of circumstantial evidence. It required the putting together of a factual mosaic. It was proper that his Honour should take some pains to explain both the law and the way the Crown’s case had been built. The accused’s case, by contrast, was much shorter. The lack of temporal equality in the review reflected this evidentiary disproportion. Neither in the general complaint made, nor in the particular instances raised, is this attack on the conviction made good. [66]
[66] At 55-56, 58. (Citations omitted)
In Domican v The Queen,[67] Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said that:
… the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities". Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.[68]
[67] (1992) 173 CLR 555.
[68] At 561. (Citations omitted). See also Castle v The Queen; Bucca v The Queen [2016] HCA 46 at [59], [61] per Kiefel, Bell, Keane and Nettle JJ.
In the present case, although not essential in the circumstances, the fact that the Judge identified for the jury and explained 15 items of circumstantial evidence which generally favoured the prosecution case did not in itself give rise to any imbalance. However, by contrast, the Judge did not identify at an equivalent level of detail those items of circumstantial evidence that favoured or may have favoured the defence. In this respect, the Judge said:
The principal submission in the end of the accused was that it was a reasonable possibility in this matter, on the whole of the evidence, that some third party or parties, perhaps a relative, but perhaps some random person or persons, came into the home … and over a period of in excess of a year on Mr Blake’s estimate, on no less than five occasions, took access to the computer in the home, used the LimeWire software and took access to child pornography. It is also said that on three of those occasions, that person or persons took access to child pornography in respect of children under 14 years of age. Ladies and gentlemen, that is a matter for you.
In this passage, the Judge identified the defence case but did not identify or refer to any items of evidence that might have been regarded as potentially supporting the defence case or more accurately pointing to a reasonable doubt as to acceptance of the prosecution case. The equivalent of the identification of the defence case in this passage would have been to identify the prosecution case as being that the jury could be satisfied beyond reasonable doubt, on the whole of the evidence, that it was the appellant who, in excess of a year and on no less than five occasions, accessed the computer in the home, used the LimeWire software and accessed the child pornography, on three occasions of which it was in respect of children under 14 years of age.
There were items of evidence identified by counsel for the appellant that it was suggested gave rise to a reasonable doubt as to acceptance of the prosecution case. Those items included the fact that there was very limited direct evidence of the use by the appellant of the computer (confined to some emails and Word documents including resumes relating on their face to the appellant); the back door of the house was routinely left open during the day; the shortcut to LimeWire was visible on the computer screen; the computer had no password protection and anyone who entered the house could start and use it; and there was no physical impediment to anyone who entered the house using the computer to download child pornography or other material using LimeWire. In addition, counsel for the appellant submitted to the jury that there were qualifications on the items of circumstantial evidence relied on by the prosecution, such as an asserted ambiguity as to the downloading device on the computer referred to by the appellant being LimeWire and whether the reference to 2007 was to LimeWire or the computer itself. If the Judge chose to identify items of circumstantial evidence tending to support the prosecution case, it became necessary as a matter of balance to identify corresponding items tending to support the defence case. The question is not whether the items in favour of the defence were strong or weak but the overall balance of the summing up.
The first page of the question trail contained a four paragraph summary of the prosecution case entitled “Prosecution Case”. Three of the paragraphs were relatively neutral but the third paragraph was as follows:
The computer contained a file sharing program called LimeWire. The only person who was aware that LimeWire was installed on the computer was the accused. This program was being used by the accused to download music and videos over the Internet, including the 5 videos containing child exploitation material.
The jury would clearly have understood that, in this paragraph (and indeed on the page as a whole), the Judge was setting out the prosecution case and not the Judge’s own view. Nevertheless, this resulted in the jury having before it in the jury room a documented short summary of the prosecution case and no equivalent written summary of the defence case. Placing the summary of the prosecution case at the beginning of the question trail led to a risk that the jury would unduly focus on the prosecution case. After the Judge asked the jury to retire to consider its verdict, at the request of counsel for the appellant, the Judge drew the attention of the jury to the fact that the Judge had not set out the defence case at the front of the question trail and then repeated his Honour’s summary of the defence case as extracted at [151] above. Because this was not in writing, it was not an effective antidote to the risks inherent in giving to the jury a written summary of the prosecution case alone.
There is no doubt that the Judge intended to assist the jury in a neutral way to understand the circumstantial case in respect of which it was called on to decide whether the case had been proved against the appellant beyond reasonable doubt. However, despite the Judge’s good intentions, considered in combination, the effect of the oral summing up and the handing to the jury of the written summary of the prosecution case was that the jury did not receive a fair and balanced summing up of the prosecution and defence cases.
This ground has been established. I address below the question whether the proviso applies that this Court can be satisfied that no substantial miscarriage of justice actually occurred.
Application of the proviso
The appellant has established error of law or miscarriage of justice in respect of directions as to discreditable conduct evidence, exculpatory elements of the appellant’s out-of-court statement, the burden of proof and lack of balance in the summing up. This Court may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Application of the proviso requires satisfaction that guilt was established beyond reasonable doubt and that the errors were unlikely to have had any influence on the verdicts.[69]
[69] Paraphrased from Castle v The Queen; Bucca v The Queen [2016] HCA 46 at [64] per Kiefel, Bell, Keane and Nettle JJ. See also Gassy v The Queen[2008] HCA 18, (2008) 236 CLR 293 at [18] per Gummow and Hayne JJ and [60] and [62]-[63] per Kirby J and Baiada Poultry Pty Ltd v The Queen[2012] HCA 14, (2012) 246 CLR 92 at [27]-[29] per French CJ, Gummow, Hayne and Crennan JJ.
On the one hand, there was no real contest at trial about any of the evidence adduced before the jury and no issues of credit or reliability with respect to the evidence of the witnesses arose. In one sense, this Court is in almost as good a position as the jury to consider whether the case was proved beyond reasonable doubt. On any view, this was a strong prosecution case. Despite the misdirections, it is quite unlikely that the jury engaged in propensity reasoning, it is likely that the jury had regard to the exculpatory elements of the appellant’s out-of-court statement, and it is likely that the jury correctly applied the burden of proof. It is likely that the jury understood and had regard to those items of circumstantial evidence said to favour the defence or to give rise to a reasonable doubt identified by counsel for the appellant during closing address.
On the other hand, the jury saw and heard Vera, Stevan and Michael Golubovic give evidence and it was necessary before the jury could find the charges proved beyond reasonable doubt for the jury to accept beyond reasonable doubt their denials that they were involved in or had any knowledge of the downloading of the child pornography the subject of the charges. This Court cannot be affirmatively satisfied that the misdirections in the summing up did not have an effect upon the jury’s deliberations.
In the circumstances, it is not appropriate to apply the proviso.
Conclusion
I would grant permission to appeal on all grounds. I would allow the appeal. I would set aside the convictions and remit the matter to the District Court for retrial.
NICHOLSON J: I agree with Blue J.
DOYLE J: I agree with Blue J.
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