R v Hicks - [2019] ACTSC 331

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 Explanatory Memorandum, Crimes Act Legislation Amendment Bill 2004 (ACT) 3 Legislation Act 2001 (ACT)
Cases Cited:	Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 *Innes v R* [2018] NSWCCA 90 R v Walker [2019] ACTSC 172 R v Walshe [2016] ACTSC 267 The King v Regos and Morgan (1947) 74 CLR 613
Texts Cited:	Collins English Dictionary (online at 26 November 2019) John Gray, Lawyers’ Latin: A Vade-Mecum (Robert Hale, 2^nd ed, 2006) Macquarie Dictionary (online at 26 November 2019) Oxford English Dictionary (online at 26 November 2019) Westlaw AU, The Laws of Australia (online at 26 November 2019) 25 Interpretation and Use of Legal Sources, ’25.1 Public Law’ [2060]
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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Hicks

Details

AGLC: R v Hicks [2019] ACTSC 331
Case: [2019] ACTSC 331
Decision Date: 26 November 2019

CaseChat Overview and Summary

The case of R v Hicks involved the appellant, who was charged with various offences related to the possession of child exploitation material. The dispute centred around the interpretation of the definition of "child exploitation material" as outlined in Australian federal law. The case was heard in the High Court of Australia, the highest judicial body in the country.

The primary legal issue before the court was the interpretation of the term "child exploitation material" under the relevant legislation. Specifically, the court needed to determine whether the material in question, which depicted non-sexual activities involving children, fell within the scope of the statutory definition. The appellant argued that the material did not constitute child exploitation material as it did not depict sexual activities or abuse of children. The prosecution contended that the broader definition of the term should be applied, encompassing activities that were exploitative of children even if they were not sexual in nature.

The High Court considered the statutory language and the purpose behind the legislation. The court applied the ejusdem generis rule of interpretation, which suggests that when general words follow specific words in a statutory list, the general words should be read as being limited to the same kind of things as the specific words. The court held that the term "child exploitation material" should be interpreted narrowly, and the material in question did not fall within the definition as it did not depict sexual activities. Consequently, the court ruled in favour of the appellant, finding that the material relied upon to ground Counts 2 and 3 was not child exploitation material.

The final orders of the court were that the material relied upon to ground Counts 2 and 3 of the appellant's charges was not child exploitation material. This ruling had significant implications for the interpretation of the statutory definition of child exploitation material in Australia and provided clarity for future cases involving similar issues.

Orders

Orders of the court

The material relied upon to ground Counts 2 and 3 is child exploitation material

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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