R v Hicks
[2019] ACTSC 331
•26 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hicks |
Citation: | [2019] ACTSC 331 |
Hearing Date: | 26 November 2019 |
DecisionDate: | 26 November 2019 |
Before: | Elkaim J |
Decision: | The material relied upon to ground Counts 2 and 3 is child exploitation material |
Catchwords: | CRIMINAL LAW – STATUTORY INTERPRETATION – Definition of Child Exploitation Material – ejusdem generis rule |
Legislation Cited: | Crimes Act 1900 (ACT) ss 64(5), 65, Dictionary |
Cases Cited: | Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 |
Texts Cited: | Collins English Dictionary (online at 26 November 2019) |
Parties: | Darrell Hicks (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr R Davies (Applicant) Ms S Jerome (Respondent) |
| Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCC 227 of 2019 |
ELKAIM J:
The accused is due to face trial on three counts in an indictment dated 4 September 2019. Each of the three counts alleges that the accused intentionally possessed child exploitation material.
The material was discovered by the police during the execution of a search warrant on 25 January 2019. The material is made up of handwritten entries in exercise books found at the accused’s residence.
The accused says that the material is not child exploitation material and has sought a pre-trial ruling to that effect. The Crown has indicated that it does not intend to proceed with Count 1, so the argument is limited to Counts 2 and 3. The relevant material for these counts is in the same exercise book.
Both parties said they had not been able to identify any authorities on this point. The Crown referred to two cases in which an offender had been sentenced for possession of written child exploitation material (R v Walker [2019] ACTSC 172 and R v Walshe [2016] ACTSC 267). However, in both cases there had been pleas of guilty and the point had not been taken.
The possession of the entries in the exercise book is alleged to be in contravention of s 65 of the Crimes Act 1900 (ACT). The section states:
65 Possessing child exploitation material
(1) A person commits an offence if —
(a) the person intentionally possesses pornography; and
(b) the pornography is child exploitation material.
Maximum penalty: 700 penalty units, imprisonment for 7 years or both.
(2) Absolute liability applies to subsection (1)(b).
(3) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds for suspecting that the pornography concerned was child exploitation material.
(4) In this section: child exploitation material — see section 64(5).
The accused’s argument arises from the definitions of “child exploitation material” and “represent” which are found in s 64(5). These definitions are as follows:
(5) In this section:
child exploitation material means anything that represents —
(a) the sexual parts of a child; or
(b) a child engaged in an activity of a sexual nature; or
(c) someone else engaged in an activity of a sexual nature in the presence of a child;
substantially for the sexual arousal or sexual gratification of someone other than the child.
…
represent means depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.
A “child” is defined in the Dictionary to the Crimes Act, which states:
child—
(a)for the Act generally—
(i) means a person who has not attained the age of 18 years; and
(ii) in relation to a person, includes a child—
(A)who normally or regularly resides with the person; or
(B)of whom the person is a guardian; and
(b)for subdivision 10.7.2 (Preliminary procedures in relation to children and young people)—see section 252D.
I was also referred to the definition of a “child” in the Legislation Act 2001 (ACT), which is:
child, if age rather than descendancy is relevant, means an individual who is under 18 years old.
It is first of all necessary to set out the entries which are said to constitute the child exploitation material. Count 2 refers to this entry:
A story about the accused living in a granny flat. He was invited into the main home where “Nina” and her two daughters – “Sara” who was 15 years old and “Kim” who was 14 years old– were drinking. “Sara” passionately kissed the accused. “Kim” was seated on the counter, with widespread legs, and was “rubbing her tiny young pussy”. “Sara” lifted her skirt up and “ran her hand down between her cheeks”. “Sara” told her mother that she had seen her “sucking your brother’s huge cock as Pop was fucking you in your ass”. (redacted).
Count 3 refers to the following entry:
“I walked into Zac and Brett’s place and they were both naked sitting on the lounge as Zac’s 16 y/o brother, Paul, was sucking both there cocks. I had a…shot in my pocket. I said I just have to have a piss. Paul said will I piss over him, I said ok. I started stripping as they went out back so I quickly had my shot. It hit me hard. As I went out, Zac was pissing over his little brother. I stood beside Brett and started pissing. As I pissed, Paul sucked me”. (redacted).
Quite properly, the material is conceded to be pornographic.
The accused’s first argument is that the material must relate to a living person. In other words, the child must be identifiable as a specific child and cannot be a ‘made-up’ or hypothetical child.
The Crown concedes that it cannot identify as actual persons any of the children named in the two entries. I also note, that when questioned by the police, the accused stated that when he is “on ice” he will “just write everything down”. The implication from his words is that the entries reflect his fantasies.
I think this argument is easily dealt with. The relevant definitions plainly envisage ‘unreal’ persons. This is demonstrated by the inclusion of drawings and computer games in the definition of “represent”.
The second argument made by the accused is that the definition of “represent” does not include written material. The accused points out that the definition refers to seven specific modes of representation, none of which include handwriting. The accused then adds that the final words of the definition, “or anything else”, do not assist because of the application of the ejusdem generis rule.
This rule says that:
Where particular words describing a genus or category of persons or things followed by general words, then (subject to any specific contra-indication) the general words will be confined to persons or things of the same class as the particular words. (John Gray, Lawyers’ Latin: A Vade-Mecum (Robert Hale, 2nd ed, 2006))
The first thing to be stated about the rule is that it is not of universal or mandatory application. In Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181, Meagher JA (with whom Barrett JA and Sackville AJA agreed) said:
The ejusdem generis rule is one of a number of guides which may be used in the process of interpreting a statutory provision. That process directs attention to the provisions being construed and its context as well as the scope and purpose of the statute: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69], [70], [78]. The rule provides a grammatical justification for reading general words down so as to limit their operation. For its application it requires that there be an enumeration of things of a particular kind or class so that the general words might then be read as applying only to things of the same kind or class as those enumerated: Cody v JH Nelson Pty Ltd [1947] HCA 17; 74 CLR 629 at 648-649; Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at [125]-[130].
This is confirmed by the discussion of the rule in The Laws of Australia:
The modern approach to the maxim is as follows. It is a rule of construction, not a rule of law. The maxim is not automatically applied where there is a listing of specific words followed by general ones. Regard must be had to the whole of the context, including other provisions of the statute, and its scope and purpose. The maxim is to be applied with caution. Some authorities support the view that it is for the party seeking to invoke the maxim to persuade the court that general words ought not to be given their full meaning but the better view is that there is no presumption either way. (footnotes omitted) (Westlaw AU, The Laws of Australia (online at 26 November 2019) 25 Interpretation and Use of Legal Sources, ’25.1 Public Law’ [2060])
The accused submitted that the words “or anything else” “should be read down to include any other means of representation falling within or similar to the prescribed categories of media e.g. digital recording and videotape and audiotape, drawing and drawing by computer graphics” (written submissions at [24]).
The accused, in support of this approach, quoted from the Explanatory Memorandum, Crimes Act Legislation Amendment Bill 2004 (ACT) (which introduced ss 64 and 65 into the Act):
Child pornography is defined broadly as any representation of a child’s sexual parts; the child engaged in an activity of a sexual nature or another person engaged in an activity of a sexual nature in the presence of a child. The representation may be by any means - film, photograph, computer game, Internet et cetera. This will ensure that the definition will keep up with changing technology.
Contrary to the accused’s reading of the explanatory statement I read it as unequivocally stating that child exploitation material will be the subject of criminal sanction in whatever form it takes. The statement is an indication that new means of publication must be catered for, but not to the exclusion of old means, such as simple writing.
The Crown, advocating an ‘all-inclusive’ interpretation of “represent”, referred to the same explanatory statement extract but emphasised that the intent was to broaden the definition of child pornography so that it included representation “by any means” and that this was consistent with the final words of the definition, “or anything else”.
I agree with the Crown. While the definition of “represent” endeavours to ensure that technological advances do not enable persons to evade the law, it does not, in doing so, abandon simple representations such as handwriting. In addition, the use of the word “depict” I think confirms this interpretation. As pointed out by the accused “depict” is defined in the Macquarie Dictionary as “to represent by or as by painting; portray; delineate; to represent in words; describe” (emphasis added) (written submissions at [14]).
The Oxford English Dictionary specifically includes, as part of the definition of depict, “[t]o represent or portray in words” (online at 26 November 2019, def 2).
I think my approach is consistent with that taken in the New South Wales Court of Criminal Appeal in Innes v R [2018] NSWCCA 90 where it was argued that the definition of “child pornography material” could only apply to activity taking place in the present and not possibly in the future. The appellant relied on a statutory principle of strict interpretation. The argument was rejected. Johnson J said this at [58]:
The Crown submitted that the principle of statutory construction that penal statutes are to be construed strictly has little bearing on the interpretation of paragraph (c) of the definition in s.473.1. The principle is a rule of last resort and one which must give way to a Court’s duty to ascertain and give effect to the purpose of the legislature as expressed in the language enacted by Parliament: Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 at 576 (Gibbs J). Where, as the Crown submitted applies here, the purpose and intention of the legislation is clear the principle cannot unduly restrict the ambit of the relevant offence and definition provisions.
Returning to the ejusdem generis rule I am also of the view that, besides being no more than a guide to statutory construction, the rule probably does not apply here in any event. This is because the modes referred to in the definition do not amount to an identifiable genus.
A genus is a “class of similar things” (Collins Dictionary, online at 26 November 2019). Here there are a selection of different types of publication listed in an endeavour to achieve an all-encompassing definition. The Oxford English Dictionary defines a genus in this way:
A class or kind of things which includes a number of subordinate kinds (called species n.) as sharing in certain common attributes; a general concept. (online at 26 November 2019, def 1)
This definition highlights my view to the extent that the listed modes are diverse and not subordinate to any overarching mode. The accused correctly referred to the modes as a “smorgasbord”, emphasising their variety rather than their membership of a class. The intent to be all-encompassing is confirmed, in my view, by the concluding words “or anything else”.
I think the observations of Latham CJ in The King v Regos and Morgan (1947) 74 CLR 613 at 623 are applicable here:
The rule is that general words may be restricted to the same genus as the specific words that precede them. Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. (citations omitted)
My conclusion is therefore that the handwritten material relied upon to ground Counts 2 and 3 is child exploitation material.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 26 November 2019 |
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Amendment
29 November 2019 Excerpts of [9] and [10] redacted.
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