R v Howell - [2022] SADC 124

District Court of South Australia
(Criminal)
R v HOWELL
Criminal Trial by Judge Alone
[2022] SADC 124
Reasons for the Verdict of her Honour Judge Schammer
14 October 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
During the course of his dealings with police with respect to an unrelated matter, the accused handed to police a Samsung mobile phone, being a phone he was carrying on his person and for which he was the registered user of the mobile number attached to that phone.
The Samsung phone was submitted for forensic analysis. The phone was found to contain 13 video files containing child exploitation material (CEM), ten of which were assessed as depicting children under the age of 14 years.
The accused was charged with one count of aggravated possessing CEM and one count of possessing CEM.
The Samsung phone also contained 31 image files containing CEM (uncharged) and materials relating to sentencing for CEM offending and child sexual abuse.
The accused denied any knowledge of the CEM found on the Samsung phone.
Held: Accused is guilty of both counts.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 62, referred to.

R v HOWELL
[2022] SADC 124
[Criminal]
Introduction

The accused, James Robert Howell, is charged with one count of aggravated possessing child exploitation material and one count of possessing child exploitation material.
The charges relate to material found on a black Samsung mobile phone (the Samsung phone), seized by police, from the accused, on 11 September 2019. On that phone were 13 video files containing child exploitation material (CEM), 10 of which depicted children under the age of 14 years.
The prosecution case is that the accused downloaded the 13 video files on 15 and 17 August 2019, and therefore that he knew of the existence of that material and exercised control over the material, such that it was in his possession.
The accused denies having any knowledge of the CEM found on the Samsung phone and thus denies the offending.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
Legal Directions
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything.
In these reasons, if I use the words proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt. If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains innocent and I must return a verdict of not guilty to that charge.
There are two charges on the Information dated 23 April 2021. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
With respect to each charge, if I am satisfied that there may be a rational explanation consistent with the innocence of the accused or I am unsure where the truth lies, then I must find that the charge has not been proven to the standard as required by the law and I must find the accused not guilty of that charge.
I must assess each witness as to their truthfulness and their reliability. I can reject or accept all or a part of a witness’s evidence.
The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and because that is his legal right, I must not draw any inference adverse to him or the case he has put forward because he has exercised that right. His silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of either offence beyond reasonable doubt.
The Court heard evidence that the police attended at the accused’s home for the purpose of speaking to him in relation to another potential charge relating to his purported communication with a child, which charge was not proceeded with. The evidence was led to explain why the police first attended at the accused’s property and why they searched the property at that time and seized certain property (including the Samsung phone). The evidence was also led to explain why police first interviewed the accused about matters pertaining to his use of the Samsung phone. I can use this evidence for those purposes. However, I must not use the evidence to reason, that because the accused was being investigated for this other potential charge, that the accused is more likely to have committed the offences and/or is the type of person who is likely to have committed the alleged offences, as to do so would deny him the presumption of innocence.
Similarly, there were 31 image files containing CEM also found on the Samsung phone. The accused is not charged with any offence relating to this material. This evidence was the subject of expert evidence from Mr Abdalla, as outlined later in these reasons, as to what they comprised, when they were modified and how they were created. From this evidence, the prosecutor submitted it could be inferred that a large number of the ‘thumbnail’ image files, bearing similar names to the video files, had been created when the accused loaded those video files into the VLC application on the phone, in order to watch those videos.
Further, Mr Abdalla gave evidence about the times/dates those image files were modified.
There was no dispute that the 31 image files were found on the Samsung phone. I am permitted to use the evidence in the way as submitted by the prosecutor, that is, to understand whether the video files containing CEM had been viewed, and if so when, and thus to make findings as to whether the accused was in possession of those video files. I am also permitted to use the evidence as to when those image files were modified to make inferences as to the circumstances in which the video files were modified. However, I must not use the evidence to simply reason that because these 31 image files containing CEM were also found on the Samsung phone, this makes the accused more likely to have committed the offences and/or is the type of person who is likely to have committed the alleged offences, as to do so would deny him the presumption of innocence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not be influenced by public opinion in relation to this matter.
The Charges
First Count
Statement of Offence
Aggravated Possessing Child Exploitation Material. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
James Robert Howell on the 11th day of September 2019 at Elizabeth North in the said State, possessed child exploitation material knowing of its pornographic nature.
It is further alleged that James Robert Howell committed the offence knowing that the children depicted in the child exploitation material were under the age of 14 years.
Second Count
Statement of Offence
Possessing Child Exploitation Material. (Ibid).
Particulars of Offence
James Robert Howell on the 11th day of September 2019 at Elizabeth North in the said State, possessed child exploitation material knowing of its pornographic nature.
Elements of the Offences
Count 1: Aggravated Possessing Child Exploitation Material
The prosecution must prove each element of the offence beyond reasonable doubt, namely:
1.The accused was in possession of material.
2.The material was child exploitation material (CEM).
3.The accused knew of the pornographic nature of that material.
4.The accused knew that the children depicted in the material were under the age of 14 years.
Count 2: Possessing Child Exploitation Material
The prosecution must prove each element of the offence beyond reasonable doubt, namely:
1.The accused was in possession of material.
2.The material was child exploitation material.
3.The accused knew of the pornographic nature of that material.
The Law
For reasons I will outline further in due course, I am satisfied beyond reasonable doubt that the Samsung phone seized from the accused contained CEM, within the meaning of s 62 of the Criminal Law Consolidation Act 1935 (the Act), namely the material found in the 13 video files.
I am further satisfied beyond reasonable doubt that 10 of those video files depicted children under the age of 14 years (aggravated files) and three video files depicted children aged 14 years or over (basic files).
The primary issue in dispute was whether the accused was in possession of the CEM.
In order to prove that the accused had possession of the CEM, the prosecution must prove that the accused had the power and intention to exercise control over the material. It is not necessary for the prosecution to prove that the accused had opened or viewed the material.
However, it is necessary for the prosecution to prove that the accused knew of the existence of the material. A person cannot be in possession of something if they do not know they have it. As such, the mere fact that the accused was in possession of the Samsung phone is insufficient. If the CEM came to be on the Samsung phone by the actions of a third party, of which the accused had no knowledge, he would not be in possession of the material.
As such, for the prosecution to prove the accused had possession of the CEM, it must prove that the accused had knowledge of the CEM, in that he knew that material was on the Samsung phone. In addition, the prosecution must prove that he intended to exercise some control over that material. The intended control could be as simple as retaining the material on his phone for someone to access or download in the future.
Counsel for the accused conceded that if the Court was satisfied beyond reasonable doubt that the accused was in possession of the CEM, that it could also be satisfied beyond reasonable doubt that he knew it was CEM.[1] This is not strictly the test. The third element of each charge requires the Court to be satisfied that the accused knew of the pornographic nature of that material.
[1] T 62.1-9.
However, for material to be CEM, it must be of a pornographic nature.
The Act defines ‘pornographic nature’ -
pornographic nature—material is of a pornographic nature for the purposes of this Division if the material is intended or apparently intended—
(a)to excite or gratify sexual interest; or
(b)to excite or gratify a sadistic or other perverted interest in violence or cruelty.
The Evidence
The prosecution called evidence from the following witnesses:
1.Detective Brevet Sergeant M Spiniello (Officer Spiniello).
2.Mr T Abdalla, Digital Evidence Specialist.
Both Officer Spiniello and Mr Abdalla gave their evidence in a straight forward manner. I am satisfied the evidence that they each gave was both honest and accurate. I accept their evidence.
During Officer Spiniello’s evidence, the following documents were tendered, without opposition:
Exhibit P1Disc containing a record of interview conducted with the accused on 18 September 2019.
Exhibit P3Disc containing all material extracted from the Samsung mobile phone, excluding the identified CEM.
Exhibit P4Table containing summary of aggravated CEM files found on the Samsung phone.
Exhibit P5Table containing summary of basic CEM files found on the Samsung phone.
Exhibit P7Metadata for the CEM located on the Samsung phone.
Exhibit P8Metadata for other material found on the Samsung phone.
Exhibit P9Metadata for selected Facebook Messenger calls located on the Samsung phone.
Exhibit P10 Disc containing a record of interview conducted with the accused on 29 July 2020.
In addition, the Court received as aides, the transcripts of the records of interview conducted with the accused on 18 September 2019 and on 29 July 2020 (respectively MFI P2 and MFI P11) and a summary of the National Child Exploitation Material Category Standard (MFI P6).
Officer Spiniello
The Search
Officer Spiniello gave evidence that on 11 September 2019 at about 7:30pm he attended at a property at Elizabeth North, with the intention of speaking to the accused about contact he had had with a child, Theo.
The accused was in a van (or bus) parked on the property and appeared to be residing in that van. There were three other people also in the van at the time police attended.
Police searched the property and seized four electronic devices. Three of those devices were located inside the van, namely two electronic tablets and a black Optus mobile phone. The fourth device seized was the Samsung phone, which was on the accused’s person. The accused provided a phone number and a PIN code for the Samsung phone. Officer Spiniello obtained a subscriber check for that number, which confirmed the accused was the registered user of that service.
Analysis of Items Seized
The four electronic devices were submitted for e-crime analysis on 17 September 2019. That analysis was conducted by Adrian Denwood from the Digital Evidence Section.
Officer Spiniello gave evidence of the results of that analysis.[2] He explained that no data was able to be extracted from one of the tablets or from the black Optus mobile phone. He said that he had looked at the Optus mobile phone himself prior to it being submitted for analysis and it appeared to have been factory reset, meaning that he was unable to view anything personal on that phone.
[2] In the absence of any objection.
The other electronic tablet contained no material of interest to police.
Officer Spiniello gave evidence that CEM was identified on the Samsung phone. In cross-examination, he confirmed that although he was able to look at the two tablets and the Optus mobile phone prior to them being sent to the Digital Evidence Section for extraction, he did not look at the Samsung phone. As such, it was not the case that Officer Spiniello looked at the Samsung phone, opened up the phone gallery and then found the CEM. Rather that material was identified and then viewed by Officer Spiniello utilising the material from the extraction performed on that phone.
Officer Spiniello viewed the material in order to categorise it in accordance with the National Child Exploitation Material Category Standard (the National Standard), being a system used widely in the classification of child exploitation material.
Officer Spiniello produced two tables containing a summary of the CEM files identified on the Samsung phone (Exhibits P4 and P5). Exhibit P4 is a table containing a summary of the image and video files which contained CEM assessed by Officer Spiniello as depicting children under the age of 14.
Exhibit P4 refers to 32 files, listed by file name, description of content and classification under the National Standard. The 22 files described as containing ‘screen captures’ of child exploitation material comprise image files and the 10 files described as ‘videos’ are video files.
Exhibit P5 is a table containing a summary of the image and video files which contained CEM assessed by Officer Spiniello as depicting children of or above the age of 14. Exhibit P5 is in the same format as Exhibit P4 and includes a description and classification of 9 image files and 3 video files.
When creating Exhibits P4 and P5, Officer Spiniello viewed the extracted material and was able to play the video files. He then described the content of those files from what he had seen.
Officer Spiniello also produced a table outlining the metadata for the CEM files found on the Samsung phone (Exhibit P7). As such, all of the file names listed on Exhibits P4 and P5 are also listed on Exhibit P7. The times referred to in Exhibit P7 are as they appeared in the extracted material, that is, ‘modified UTC+09:30’.
Officer Spiniello gave evidence that in addition to CEM, other items of interest were found on the Samsung phone. Again, this was material that he viewed from the extraction undertaken of the Samsung phone, rather than from opening the phone and viewing the material.
Exhibit P8 contains a summary of that material. The material included five decisions of the South Australian Court of Criminal Appeal, one of which related to an appeal against sentence for one count of aggravated production of CEM, one count of aggravated dissemination of CEM, one count of indecent assault and one count of being a party to the commission of an act of gross indecency. The other four decisions all relate to sexual offending.
The material also included a document with the file name ‘Maximum Penalties for Sexual Penetration with a Child Under 16 Consultation Paper.pdf’, being a consultation paper prepared by the Victorian Sentencing Advisory Council relating to the topic of sentencing for sexual penetration of children under the age of 16. It also included a document entitled ‘responding_to_problem_sexual_behaviour_in_children_and_young_people.pdf’being a set of guidelines prepared by the Department for Education and Child Development, amongst other agencies, to assist staff to respond effectively to instances of problematic sexual behaviour in children.
The Samsung phone was also examined to determine what phone calls were made to and from that phone, including phone calls made using the Facebook Messenger application. Exhibit P9 contains a list of selected Facebook Messenger calls extracted from the Samsung phone.
Records of Interview with the Accused
The accused was interviewed by Officer Spiniello on 18 September 2020 with respect to the unrelated matter (the first interview). On 29 July 2020 he was arrested for the alleged offending, at which time a further record of interview was conducted with him (the second interview).
During the first interview, the accused told the police that he had been communicating with Theo via Facebook, during the month of July 2019, maybe every day, for a couple of weeks. He said he had one Facebook account under the name ‘Jamie Peters’ and that he accessed Facebook by using the Samsung phone.
When the accused was asked how long he had had the Samsung phone, he said ‘A couple of months I’m sure’.[3] He said the phone was a Samsung Galaxy that he bought off a friend when that friend had upgraded their phone.[4] He said he had done some work on that friend’s car and also given him $200 in exchange for the phone.
[3] MFI P2 line 86.
[4] MFI P2 line 92.
The accused was asked if there was anything on the phone when he took possession of it and said ‘Nup’.[5]
[5] MFI P2 lines 99-100.
The accused was asked if anyone else used his phone and he said yes, ‘if anyone needs to make a call or whatever they can use the phone’.[6]
[6] MFI P2 lines 105-106.
He said he put a PIN code into the phone when he first got it and that he thought ‘maybe two or three people’ had access to that PIN code. When asked who those people were, the accused said they were ‘just friends’ but said he would rather not say who those friends were.[7]
[7] MFI P2 lines 103-112, 126-129.
During the second interview, the accused was given his formal rights and was told he was under arrest for having possession of CEM, being material found on the Samsung phone. The accused was asked to tell the police about that child pornography. The accused replied, ‘I don’t, I don’t know what you mean, I’ve no comment so’.[8] When asked what he meant by that, the accused said, ‘Yeah, I don’t understand what you’re saying is on my phone’.[9]
[8] MFI P11 line 38-39.
[9] MFI P11 line 41.

The accused was told that that the phone had been analysed and found to contain videos and pictures depicting child pornography. When he was asked to explain how the material got on his phone, the accused stated, ‘I don’t know’.[10]
[10] MFI P11 lines 42-47.
During the second interview, Officer Spiniello reminded the accused of what he had told him during the earlier interview, namely that when he purchased the phone, there was nothing on it. The following exchange occurred:[11]
[11] MFI P11 lines 50-77.
Q… How would the images and videos that I’ve described gotten onto the phone if you had nothing on there when you took possession of it?
AI have no idea.
QAlright. Well just explain for me how you use that phone prior to me having seized it.
AOh I just used it to surf the Web, and Facebook, phone calls, messages.
…
QWhen you surfed the Web what kind of stuff would you be looking at?
AOh just be Googling stuff on cars and motorbikes, it’s …
QAlright. Who else would’ve used your phone if anyone prior to me seizing it?
ANo one I’m aware of.
QWho else other than you if anyone knows the PIN code to your phone.
AOh a few people do.
QAnd who are those people?
AOh I can’t recall now.
QHow would they have known the PIN?
AI would’ve told them.
QAnd for what purpose would you have told them the PIN?
AIf they needed it to use it, to make phone calls or whatever.
The accused denied ever using the Samsung phone to visit pornographic sites, he denied ever having accessed or attempted to access child pornography and he denied having any interest in child pornography. He denied knowing where to locate child pornography, and said he was not aware of anyone who had accessed or tried to access child pornography.[12]
[12] MFI P11 lines 78-89.
The accused was asked if he had ever lent the Samsung phone to anyone while he was present or had he given the phone to anyone else. He said:[13]
[13] MFI P11 line 102.
Nah, well yeah, if I was working on the car or whatever somebody might’ve been using it, I’m not entirely sure.
He said he did not always keep the phone with him and that ‘it could just be in my room or whatever’.[14]
[14] MFI P11 line 130.
Mr Abdalla
Mr Abdalla is an unsworn police officer, employed by SAPOL as a digital evidence specialist. In that role he receives requests from different teams to examine electronic devices, using knowledge he has obtained, by way of a supervised internal training programme, as well as certified vendor training in the identification, preservation, analysis and presentation of digital evidence.
Mr Abdalla gave evidence about the metadata extracted from the Samsung phone, and specifically the information contained in Exhibit P7, being the metadata for the CEM found on the phone.
Exhibit P7 lists the CEM files found on the phone, identified by file name, file path and time and date modified. Mr Abdalla explained that a file with a name which includes the description ‘.mp4’ comprises both audio and video and is therefore a video (or multimedia) file. A file with a name which includes the description ‘.jpg’ is an image file only.
Mr Abdalla gave evidence that the ‘file path’ is the location of the file, in other words, where the file lives on the desktop.[15] He explained that the ‘modified date’ is the date upon which any modification was done to a file, for example, this is the date the file was either created or downloaded from the internet or saved to the device or edited in some way.[16]
[15] T 34.5-7.
[16] T 34.8-31.
Mr Abdalla confirmed that the ‘modified’ time on Exhibit P7 was expressed in South Australian time, being UTC+9:30 hours.[17]
[17] T 35.15-18.
There were 13 video files containing CEM found on the Samsung phone.
Mr Abdalla was asked to explain the metadata pertaining to the first video file listed on Exhibit P7. This is a video file with the file name ‘Snook.MP4’. Mr Abdalla stated that the file path for that file is ‘album 1’, located within the digital camera image (DCIM) folder on the phone, that is, an album created to host pictures and videos. The file had been modified on 15 August 2019 at 7:12:17am, but Mr Abdalla was unable to say how the file was modified at that time.[18]
[18] T 36.24-36.
As to the second file on Exhibit P7, file name ‘VID20190331 142846 099.MP4’, Mr Abdalla confirmed that this was a video taken by a mobile phone on 31 March 2019 at 2:28pm.[19] That file was found in the same DCIM folder, album 1. As with the first file, this file was modified on 15 August 2019 at 7:12:17am.[20] Mr Abdalla confirmed that this date could not refer to when that file was created, as it had been created some five months earlier, on 31 March 2019. As such, he stated that the date modified ‘could be a moving date’ and as the time and date modified was identical to the first file, this meant both files ‘could’ have been moved at the same time.[21]
[19] T 37.4-11.
[20] T 36.16-18.
[21] T 37.16-30.
In cross-examination, Mr Abdalla confirmed that he was unable to say, from the metadata on Exhibit P7, whether that video had been created by the same device on which it was found, that is, the Samsung phone.[22]
[22] T 47.33-35.
Mr Abdalla was then taken to the next ten files on Exhibit P7, all of which had a ‘modified’ date of 15 August 2019 between 7:12:22am and 7:12:52am. He agreed with a proposition put to him that this was ‘consistent with all 12 files being saved to the phone at the same time’.[23]
[23] T 37.37-38.2.
Mr Abdalla stated that the file path for third file on Exhibit P7, named ‘Yeahh_-_Videos_-_Cool_kidxxx.mp4’, showed that the file was housed in the download folder on the Samsung phone. He explained that when a file was downloaded from the internet, the first place it is saved is in the ‘download’ folder.[24] If a file is downloaded from the internet, and then moved to the digital camera image folder, it will have a file path of ‘DCIM’, rather than ‘Download’. However, the process of simply moving that file from the Download folder to the digital camera image folder will not affect the ‘modified’ date in the metadata for that file, which will remain the date the file was downloaded, unless the file is copied, and it is a copy of the file which then sits in the new location.[25]
[24] T 38.3-28.
[25] T 38.29-38; T 39.1-9.
In cross-examination, Mr Abdalla confirmed that the download folder was a separate folder to the digital camera image folder.[26]
[26] T 46.27-28.
In re-examination, Mr Abdalla confirmed that if a person took a photo with their phone, it would automatically be saved in the ‘DCIM’ folder. If the user then created an album, and moved that photo into the album, it would still be stored in the DCIM folder, but in a sub-folder within that folder. All photographs saved in, or moved into, the DCIM folder could be viewed on the phone’s gallery. Conversely, if a user used their mobile phone to download a photograph from the internet, it would automatically be stored in the download folder, such that it would not appear in the gallery, until it was moved to the DCIM folder.[27]
[27] T 55.6-32.
As to how documents stored in these two different locations (that is, the DCIM folder and the download folder) could be looked at, or downloaded, virtually simultaneously (or within seconds), Mr Abdalla gave the following evidence:[28]
[28] T 46.37-47.26.
AThe only thing I can think of is the first word that you see in the video file path, which is ‘storage’, that is the only thing that I can think of now which is the memory card of the mobile. It can be removed and used in a different device. So, if I am copying bulk files it can be done in one go and that will trigger the milliseconds between the files.
QSo it is possible that these have been put on the phone from an SD card.
ACorrect.
QThey were all on the SD card and then they have been moved into the phone and then the phone has put them in different places because they belong in different places.
AIn album 1.
QWhat about the download because that is also at 7.12am.
AYes. But the download one it came with a populated naming convention. That means the file was viewed at this time but the modification date, it could have been moved, it could have been copied, it could have been downloaded, it could have been any possibility of those.
QThose, if we look at the six, the first six that are in the download folder, for want of a better description, they have been modified in some way in that download folder or put into that folder all within eight seconds.
AYes.
QHow would that happen.
AI don’t know.
In re-examination, the following exchange occurred:[29]
[29] T 55.36-56.21.
QIf I went on the internet and selected a group of files and downloaded that group of files, would you expect them to have download times very close in time to each other.
ACorrect.
QIs this metadata therefore consistent with – just asking consistent – with the file name proposition that group of files was downloaded together and then some have been moved into the DCIM folder.
AIt will be based on the dates and times. So there will be very close to each other and the conclusion will be based on the dates and times.
QWhat I’m asking is, based on the metadata that we have for the first 12 videos.
A Yes
QIs this metadata consistent with a situation where that group of videos has been downloaded at the same time and saved in the download file and then some of those videos have been moved to the DCIM album one.
AIt could be.
QYou don’t have enough information to say definitely.
ANo.
QBut it’s consistent.
A It’s one of the possibilities.
In cross-examination, Mr Abdalla was asked about the fifth video file listed on Exhibit P7, named ‘VID-20150815-WA00037.mp4’. Mr Abdalla confirmed that the inclusion of the letters ‘WA’ meant this was a ‘WhatsApp’ video, although he could not say whether that video had been sent by, or received by, the Samsung phone.
From the file name, it was also apparent that the video had been created on 15 August 2015, but without looking at the file, Mr Abdalla was unable to say on which device the video had been created.[30]
[30] T 48.5-21; T 56.28-31.
The file path for the third video file on Exhibit P7 includes the name of that file in the metadata, immediately after the word ‘Download’. This is also the case for the fourth and fifth video files listed. By way of contrast, the file path for the sixth video file[31] does not include the file name after the word ‘Download’, rather a series of letters and numbers are listed. Mr Abdalla gave evidence that this meant that file was a cached version, meaning that the original version of that file had been viewed and then saved in a smaller size, so that when it was played it would be faster.[32] In cross-examination he clarified that by ‘faster’, he meant it would be faster to find the file on the phone, rather than the speed of playback being faster.[33]
[31] File name ‘33_33_33_33_33_33_33_33_33_russian_flow.3gp’.
[32] T 39.25-40.23.
[33] T 48.33-35.
The file path for the seventh, ninth, tenth and twelfth video files listed on Exhibit P7 were also consistent with those video files having been cached (and thus, necessarily, viewed).[34]
[34] T 40.24-33.
As to the thirteenth video file listed on Exhibit P7, entitled ‘Video.mp4’, Mr Abdalla gave evidence that this file was stored in the DCIM folder, and had been either downloaded, edited or modified in some way on 17 August 2019 at 6:00:10am.[35]
[35] T 40.34-41.22.
There were 31 image files containing CEM on the Samsung phone. Mr Abdalla gave evidence that the file path for the first eight of the image files listed, each of which contained a long series of numbers, followed by ‘.jpg’, demonstrated that these were all cached files, created when an original image was viewed in the ‘gallery’ application on the Samsung phone.[36] Those eight files all had a ‘modified’ date of 15 August 2019 between 7:29:20am and 7:29:56am.
[36] T 41.23-42.9; T 56.36-38.
As to the first such file, Mr Abdalla was asked what may have occurred at the time of modification. He stated:[37]
[37] T 42.10-16.
It might have been viewed at this time. It might have been modified at this time, it might have been downloaded at this time, or it might have been moved or copied at this time.
In cross-examination, Mr Abdalla was asked whether simply viewing an image would register a modification and he said, ‘No, viewing only will not trigger that.’[38] He confirmed that something else must have been done to those original image files on 15 August 2015 to record a modification.[39]
[38] T 50.6.
[39] T 50.7-15.
In re-examination, Mr Abdalla gave the following evidence:[40]
[40] T 57.1-6.
QSo in this case viewing the original file has created the thumbnail.
ACorrect.
QSo it is the viewing of that file which has triggered the modification date of the thumbnail.
A Correct.
He confirmed a thumbnail could not, itself, be viewed, as once the user clicked on the image of the thumbnail, it would take the user to the full-size version of that image.[41]
[41] T 57.7-13.
The remaining image files listed on Exhibit P7 all include in their file path the description ‘thumbs’ or ‘thumbnails’. Where the file path included ‘vlc’, this indicated that the file was created as a tiny image file when a video was loaded onto the VLC media player in the phone and viewed through that application. Where the file path included ‘DCIM’, as well as ‘thumbnails’, this indicated the file was a tiny image of another image file stored in the DCIM folder. All of these thumbnail images were created by the operating systems and applications on the phone.[42]
[42] T 42.27-45.5.
In cross-examination, Mr Abdalla explained that the eleventh and twelfth image files listed on Exhibit P7 (at bottom of page 2), were different files, stored in different locations, despite their names being very similar. The twelfth image file, the name of which included ‘.3gp(2).jpg’, was a copy of the eleventh file, which name included ‘.3gp.jpg’.[43]
[43] T 51.13-33.
Mr Abdalla was unable to explain how several image files could be modified at almost the same time.[44]
[44] T 52.13-16.
Mr Abdalla was asked where a user would go on the phone to view the thumbnails in order to play the original files. His answer was ‘temporary files’.[45] As to where those temporary files were, he said they could be accessed several different ways, depending on how tech-savvy the user was. If the file path included the letters ‘vlc’ then they could be viewed in the phone’s VLC application. If the file path included the letters ‘DCIM’ they could be viewed in the phone’s photo gallery.[46]
[45] T 52.17-21.
[46] T 52.35-53.37.
Mr Abdalla also gave evidence to explain Exhibits P8 and P9.
Exhibit P8 includes the metadata for other material found on the Samsung phone, that is, the five decisions of the Court of Criminal Appeal and the two papers, referred to at paragraphs 47 and 48 herein. Mr Abdalla gave evidence that the file path for each of these files, and the ‘modified’ time and date, demonstrated that the files were all either downloaded or moved into the ‘storage emulated download’ folder at the same time, namely on 15 August 2019 at 7:13:44am.[47]
[47] T 45.6-17.
In cross-examination, Mr Abdalla explained that each of these files was a ‘pdf’, meaning a document, and that they were all stored in the phone’s download folder. From simply looking at Exhibit P8, he was unable to say if any of those documents had been viewed.[48]
[48] T 54.10-18.
Simply opening a document to view it does not trigger a modification. Mr Abdalla could not say if that meant they had all been downloaded at the same time, notwithstanding each document had an almost identical modified date.[49]
[49] T 54.23-38.
Exhibit P9 is a list of selected Facebook Messenger calls extracted from the Samsung phone. Mr Abdalla confirmed that this data demonstrated that on 21 April 2019 at 1:34pm, there was a missed call from the Facebook account of Crystal Lee Hart to the Facebook account of Jamie Peters, that is, the account in the accused’s name.[50]
[50] T 45.18-24.
Closing Submissions
The prosecution case is that the Court can be satisfied beyond reasonable doubt that the child exploitation material on the Samsung phone was in the accused’s possession, both on the basis of direct evidence and inferences to be made from the metadata pertaining to the images and videos found on the phone.
The Samsung phone was on the accused and handed by the accused, to police, when they attended at his home on 11 September 2019. The accused was the subscriber of the phone service attached to that phone. The messages and Facebook calls on the Samsung phone, a selected number of which appear in the Exhibit P9, demonstrated that the accused was using the phone between 21 April 2019 and 1 September 2019.Further, the accused had admitted to police, during the first interview, that the Samsung phone was his phone and that he had purchased it from a friend a couple of months previously. When asked if there was anything on the phone when he took possession of it, he had stated no.
The prosecutor submitted that from the metadata, it could be inferred that 12 of the 13 video files containing CEM found on the phone, were downloaded at or about the same time on the morning of 15 August 2019. Further, it was submitted that it could be inferred that of those files, five were then moved and saved in the DCIM folder, in album 1. In this respect, the Court was reminded of the evidence of Mr Abdalla that simply moving the file from the download file to the DCIM folder, in order for it to be viewed in the gallery, would not affect the modified date, unless it was modified in some way or copied so as to create a new file.
Further, it was submitted that important inferences could be made from the evidence relating to the thumb nail image files.
In this respect, several of those image files had (effectively) the same name as the video files. The Court was asked to infer that the thumb nail images were created at the time those video files were loaded into the VLC media application of the phone, in order for those files to be viewed, at or about 2:04pm on 15 August 2019.
The prosecutor submitted that it could be inferred that the accused had used his mobile phone to download the videos in the morning of 15 August 2019 and that afternoon had then viewed some of those videos to create those thumb nail images.
It was submitted that notwithstanding the accused’s evidence that he had given the PIN code to the Samsung phone to two or three other persons, it was simply implausible that any person, other than the accused, had used the phone for these purposes. It was submitted that first, there was the sheer improbability of another person watching CEM on another person’s phone. Second, it was submitted that the accused’s account as to how he allowed others to use his phone also precluded this as a reasonable possibility, noting that the accused’s evidence was consistent with others borrowing the phone for short periods only, for purposes including making a phone call. The accused had not given evidence to suggest that he had ever lent his phone out for any extended period of time to anyone.
It was submitted that if, in fact, someone else had a fleeting opportunity to view CEM on the Samsung phone, this would not account for and could not explain the fact that the other material, namely the five Court of Criminal Appeal decisions, the sentencing paper and the guidelines, had also been found on the phone. It was submitted that these additional downloads must have been done by someone who had the phone for an extended period of time.

In such circumstances it was submitted that the Court could be satisfied beyond reasonable doubt that it was the accused who was in possession of the CEM.
Conversely, counsel for the accused submitted that although it was not in dispute that the accused was the primary user of the Samsung phone, the evidence fell short of proving beyond reasonable doubt that he was in fact the person that downloaded the materials and then either moved them into another location and/or watched them.
Counsel for the accused noted that the metadata for the video files containing CEM demonstrated that there were 12 files modified on 15 August 2019 at 7:12am within varying degrees of seconds. She submitted that there was no evidence to demonstrate precisely what had occurred at that time insofar as Mr Abdalla could not say whether these dates were consistent with when the files were downloaded, moved, changed or edited and she submitted that it was implausible for the Court to reach the conclusion that all of these files had in fact been downloaded within the same minute.
Counsel for the accused noted that the accused had volunteered to police the fact that he had given his PIN code to others and referred specifically to what he had told the police, namely that those others, being his friends, may use the phone to make a call ‘or whatever’. She submitted that this demonstrated a rather lackadaisical attitude by the accused to the use of his phone by others.
She further submitted that if in fact it was someone other than the accused who had downloaded the CEM onto the phone, it made sense that it was all happening on the one day within the same minute.
Counsel for the accused noted that Mr Abdalla was unable to say, for example, whether the images found on the phone, may have also been moved or saved onto any other device. She submitted that the fact the majority of the modification times and dates all occurred within a period of some 35 seconds, was in fact entirely consistent with someone else using the phone to access and load the CEM onto the device, in an opportunistic way.
She submitted that there was no evidence that the accused had used the phone to send a Facebook message or make a phone call at or about the same time as any of the modification dates. As such, there was nothing in the metadata that showed the Court that it was, in fact, the accused who was responsible for any modifications to the images. Rather at its highest, the evidence was simply to the effect that the device had been used for these purposes.
She submitted that in circumstances where the evidence supported a finding that the accused was careless with the use of his phone, the Court could not exclude as a reasonable possibility that someone else had been responsible for the CEM finding its way onto the Samsung phone and therefore that someone else, other than the accused, had possession of that CEM.
Further, insofar as it may have been submitted that even if someone else had downloaded the material, the accused must have known about it, there was no evidence as to how easily accessible the CEM was on the phone. For example, there was no evidence that Officer Spiniello had opened the gallery and seen any images containing CEM. It was submitted that the evidence fell short of demonstrating that the accused knew of the existence of the CEM on the Samsung phone, beyond reasonable doubt.
Findings of Fact
There is no dispute, and I find, that the Samsung phone, handed by the accused to police on 11 September 2019, was a mobile phone used by the accused, and in his possession on that date. The accused was the registered subscriber to the phone number applicable to that phone.
There is no dispute, and I find, that the Samsung phone was subjected to forensic analysis, and that from the data extracted from the phone, it was determined that there were 13 video files and 31 image files stored on the phone which contained CEM. Only the video files containing CEM are the subject of the charges.
I accept Officer Spiniello’s evidence, which was not challenged, that using the extracted material, he viewed the 13 video files containing CEM (and the 31 image files containing CEM) and categorised them having regard to their content by reference to the National Standard. I accept Officer Spiniello’s evidence, which was not challenged, that when viewing these files, he also categorised them by reference to the age of the children depicted in those files.
I am therefore satisfied beyond reasonable doubt that of the 13 video files containing CEM, ten of those files depicted children under the age of 14 (aggravated material) and three such files depicted children aged 14 or over (basic material). Of the ten aggravated video files, I am satisfied beyond reasonable doubt, based on Officer Spiniello’s unchallenged assessment, that those files depicted CEM within Category 4 of the National Standard, that is, they depicted penetrative sexual activity between children or between children and adults. The children depicted were all male or apparently male children.[51]
[51] Exhibits P4 and P5.
The accused made a number of admissions to police during the first and second interviews.
I accept the accused’s explanation to police that he purchased the Samsung phone from a friend. I accept what the accused told the police, namely that when he first took possession of the phone, it had nothing on it.
I am therefore satisfied and find beyond reasonable doubt that all of the CEM found on the Samsung phone was first stored on that phone after the accused first took possession of it.
I accept the accused’s explanation that he used the Samsung phone to surf the net, use Facebook, make phone calls and send messages, and that he sent messages through the Facebook Messenger application, using the name (or profile) ‘Jamie Peters’. I accept the accused’s statement that he only accessed Facebook through the Samsung phone, and not in any other way.
Having regard to Exhibit P9, I am satisfied that the accused used the Samsung phone, both to receive and send Facebook messages through Facebook Messenger, between, at least, 21 April 2019 and 1 September 2019. I am therefore satisfied and find beyond reasonable doubt that the Samsung phone was purchased by the accused from his friend on a date on or before 21 April 2019.
There is no dispute, and I find, that the Samsung phone required a PIN code in order for it to be used. I accept what the accused told the police in the first interview, namely that he put the PIN code on the phone when he first got it.
During the first interview, the accused was asked by police, ‘Does anyone else use your phone?’, to which he replied ‘Ah yeah. If anyone needs to make a call or whatever they can use the phone’.[52]
[52] MFI P2 lines 105-106.
In order to use the phone, the user needed to know the PIN code.
When the accused was then asked if anyone else had access to that PIN code, his response was, ‘Um, oh maybe two or three people I think’.[53] Neither the language used nor the manner in which the accused answered this question was convincing. On the accused’s version, the Samsung phone had only been in his possession for several months as at the date of the first interview, and, if he had given the PIN code to anyone, this ought to have been something fresh in his mind at that time.
[53] MFI P2 line 108, my emphasis.
The accused was not prepared to identify who those two or three people may be.
What the accused told the police about others having access to the PIN code, and thus the opportunity to use the Samsung phone, was not evidence given under oath, such that it could be tested under cross-examination.
During the second interview, the accused was asked specifically whether anyone else had used the Samsung phone prior to it being seized. He answered, ‘No one I’m aware of’.[54] However, thereafter he stated that ‘a few people’ knew the PIN code, that he could not recall now who those people were and that he would have told them the code, ‘[i]f they needed to use it, to make phone calls or whatever’.[55]
[54] MFI P11 lines 68-69.
[55] MFI P11 lines 70-77.
Later, during the second interview, the accused was asked, as to the Samsung phone:[56]
[56] MFI P11 lines 101-102.
Q… Have you just lent it to them while you’re present or have you ever given it to anyone else?
ANah, well yeah, if I was working on the car or whatever somebody might’ve been using it, I’m not entirely sure’.
The accused was also asked if anyone had access to his Facebook, to which he answered, ‘They have access to my phone – yeah’.[57]
[57] MFI P11 lines 113-116.
I have carefully analysed the answers given by the accused to police during the first and second interviews. I accept the accused was being truthful when he told the police that he did not keep the Samsung phone with him at all times and that sometimes it could be in his room ‘or wherever’.[58] It is not unusual for someone to not have their phone physically on them or with them at all times.
[58] MFI P11 line 130.
There were three other people in the van when police attended at the property on 11 September 2019 and Mr Spiniello gave evidence that the van appeared to be the accused’s living quarters. As such, it is theoretically possible that others had the ability to access the Samsung phone without the accused knowing about that access. However, the only way anyone could use the phone was if they knew the PIN code. If someone, other than the accused, was to use the phone at a time the accused was not there to tell them or remind them of the code, they would need to have remembered the PIN, or kept a record of it.
When the accused’s responses to police questioning about the potential use of his phone by others and who may know the PIN code are carefully considered, the answers given contain internal inconsistencies. For example, the accused’s answer, in the second interview, to the question as to whether anyone else had used the Samsung phone before it was seized, namely, ‘No one I’m aware of’,[59] is directly inconsistent with the other answers he gave to the effect that other people were allowed to use that phone.
[59] MFI P11 line 69.
Further, while the accused may simply have been trying to avoid providing a direct response, in the second interview, to the question asking him to identify who the ‘few people’ were who knew the PIN code (that response being ‘Oh I can’t recall now’),[60] I do not accept this answer was an honest answer. If, in fact, the accused had given the PIN to other people, one would expect him to recall who they were, given he must have been talking of events that had occurred relatively recently, and over a discrete period of only several months. Similarly, as previously stated, the accused’s answer to the question ‘Does anyone else have access to your PIN code’ in the first interview, namely ‘Um, oh maybe two or three people I think’,[61] was unconvincing in the sense that at that time, when the phone had only been in the accused’s possession for a few months, one would expect him to readily remember if he had given the PIN code to others and if so, how many people.
[60] MFI P11 lines 71-73.
[61] MFI P2 lines 107-108, my emphasis.
I am not satisfied as to either the credibility or the reliability of the accused’s answers to police questions as to whether anyone else knew or had access to the PIN code for the Samsung phone.
I remind myself that it is not for the accused to prove anything. The accused was entitled to exercise his right to silence and not give evidence. The accused was similarly entitled to maintain that right to silence during the first and second interviews. It is not for the accused to fill any gaps, if there are gaps, in the prosecution case. It is for the prosecution to prove the elements of each offence as charged, beyond reasonable doubt.
I am satisfied beyond reasonable doubt that the accused had possession of the Samsung phone at all material times between at least 21 April 2019 and the day it was seized by police (11 September 2019), in that he was aware of the phone and intended to exercise control over it, even if, at times, he was not physically carrying it, or it was in another room.
I am satisfied beyond reasonable doubt that as at 11 September 2019, the Samsung phone contained CEM, including 10 aggravated video files and three basic video files.
As previously stated, the first element of each charge requires the Court to be satisfied beyond reasonable doubt, that the accused had possession of the CEM, in the sense that he knew the CEM was on the phone and had the power and intention to exercise control over it.
This requires the Court to consider the following matters:
(a)whether it is reasonably possible that someone, other than the accused, downloaded the CEM onto the Samsung phone between the date the accused first took possession of the phone and the date it was seized by police, and
(b)whether it is reasonably possible that despite the Samsung phone being in the accused’s possession during that period, and him using the phone during that period, the accused did not know that the CEM was on the phone.
While Mr Abdalla could not say precisely what occurred on the time and date each of the video files containing CEM were last modified, his evidence was that something had to occur to the file at that time, to trigger the modification, namely the file was either created, downloaded, copied or saved to the phone. I accept that evidence.
While there was some potential inconsistency (or ambiguity) in Mr Abdalla’s evidence as to whether simply moving a file would trigger a modification, I am satisfied, after carefully considering his evidence, that simply moving a file would not trigger a modification, and it is only if the file was also copied during such a move, that it would register as ‘modified’.
I accept Mr Abdalla’s evidence that the second video file listed on Exhibit P7 was created on 31 March 2019 at 2:28pm, meaning that the process which caused that file to be modified on 15 August 2019 at 7:12:17am, was not its creation.
Of the 13 video files depicting CEM, 12 (including the second video file listed) were modified on 15 August 2019 between 7:12:17am and 7:12:52am. Given this is a period of only 35 seconds duration, it is difficult to conceive of a scenario whereby each of those files could have been modified, within that 35 second period, other than them all being either downloaded and/or saved to the Samsung phone at the same time, for example, by being saved or loaded onto the Samsung phone using an SD card, with some of those files being those including ‘DCIM” in their file path, then being moved from the download folder into the DCIM folder.
The first eight image files listed on Exhibit P7 were all modified on 15 August 2019 between 7:29:20am and 7:29:56am, a period of 36 seconds duration. Again, it is difficult to conceive of a scenario whereby each of those files could have been modified, within that 36 second period, other than them all being either downloaded and/or saved to the Samsung phone at the same time, for example, by being saved or loaded onto the phone using an SD card.
Notwithstanding the evidence is unclear as to precisely what was done to each of these files when they were modified, I am satisfied beyond reasonable doubt that someone was using the Samsung phone, and either downloading, saving, copying or otherwise modifying 12 of the 13 video files containing CEM on the morning of 15 August 2019 at approximately 7:12am. I am satisfied that the only reasonable inference from all of the evidence is that the same person was using the Samsung phone to either download, save, copy or otherwise modify the first of the eight image files listed on Exhibit P7, some 17 minutes later on that same day.
The five Court of Criminal Appeal decisions and the two documents as listed on Exhibit P8, were also all modified on 15 August 2019 between 7:13:40am and 7:13:44am. Having regard to the content of that material, and this timeframe, the only reasonable inference that can be made from all of the evidence is that the same person who used the Samsung phone to download, save, copy or otherwise modify the 12 video files and the eight image files containing CEM between 7:12am and about 7:30am on 15 August 2019, also used the phone, during this period, to download, save, copy or otherwise modify this other material.
This material must have been downloaded and saved on the phone by someone who intended to access the material. The material is quite lengthy and would take a reasonable period for someone to both read and digest. It is simply implausible that someone other than a regular user of a particular electronic device would choose that device to use for this purpose.
Further, there are seven image files containing CEM which bear the same file name as a video file containing CEM, but with the addition of the letters ‘.jpg’, to reflect the fact these files are images. Those image files include, but are not limited to, ‘!!!Beto 2 13Yo Boy Fucked By Man (1’47).MP4.jpg’, ‘#CamBrazil001-2-meninos bronzeados – lucas13.3gp.jpg’, ‘snook.mp4.jpg’ and ‘! 8yo boy molested and fucked deep on bed 20110227222129trndswnvpjtvfnlcn(1).3gp.jpg’. Each of those four image files were modified on 15 August 2019 between 2:04:43pm and 2:04:44pm.
I accept the evidence of Mr Abdalla that each of these four image files were ‘thumbnail’ files, created, in each case, as a tiny image file when the video file bearing the same name (absent ‘.jpg’) was loaded onto the VLC media player in the phone and viewed through that application. I am therefore satisfied that in each instance, these four image files were created when someone used the Samsung phone to watch the corresponding video file in the phone’s VLC application.
I am satisfied, having regard to all of the evidence, that the only reasonable inference that can be made, is that the same person who downloaded, saved, copied or otherwise modified the corresponding video files bearing these names, on 15 August 2019 between 7:12:17am and 7:12:52am, knowing those video files were available to be viewed on the phone, then watched those video files on the phone at or around 2:04pm the same day, thus resulting in the creation of the corresponding thumbnail image files.
I am therefore satisfied beyond reasonable doubt and I find that the same person was responsible for the actions which facilitated the modifications made to the various videos and images containing CEM during 15 August 2019.
I am satisfied beyond reasonable doubt that that person knew of the existence of the 12 video files modified on 15 August 2019 and did, in fact, exercise control over those videos, by watching at least some of them in the VLC application to create the corresponding thumbnail images.
Having regard to all of the evidence, I am further satisfied beyond reasonable doubt that the only reasonable inference available is that this person was the accused.
I refer to my earlier findings and observations. I am satisfied that it is simply not reasonably possible that someone, other than the accused:
(a)had access to the Samsung phone, at about 7:12am until about 7:30am on 15 August 2019 and then again at or about 2:04pm that same day, and
(b)knew and remembered, or had kept a record of, the PIN code to the Samsung phone, and
(c)determined to download or save or copy multiple CEM files onto the phone at that time, and then retain such files on that phone for later viewing by them, including moving some of those video files to the DCIM folder, when that phone did not belong to them, and
(d)downloaded the five Court of Criminal Appeal decisions and the two documents as listed at paragraphs 47 and 48 onto that phone, being a phone that did not belong to them, given the nature and size of that material.
The thirteenth video file listed on Exhibit P7 was modified on 17 August 2019 at 6:00:10am. This file has a file path which demonstrates it is stored in the DCIM folder of the Samsung phone. Having regard to my earlier findings, I am satisfied beyond reasonable doubt that the accused also knew of the existence of this file and intended to exercise control over it, by retaining it on the DCIM folder on his phone.

If I am wrong with respect to these findings, and someone, other than the accused, and unknown by the accused, was responsible for the 13 video files containing CEM finding their way onto his Samsung phone, then I am satisfied beyond reasonable doubt, in any event, that the accused must have known of their existence on his phone thereafter, having regard to what he told the police in the first and second interviews as to the manner in which he used the Samsung phone.
That is, the accused told the police that he only ever accessed Facebook via the Samsung phone. He said he used the Samsung phone to surf the net, to use Facebook, to make calls and for messages. Exhibit P9 demonstrates and I find that the accused used Facebook Messenger on the Samsung phone on both 31 August 2019 and 1 September 2019.
I am satisfied that the accused regularly used the Samsung phone during the period 15 August 2019 to 11 September 2019.
I am satisfied that those video files stored in the DCIM folder were able to be viewed in the gallery of the Samsung phone. If, someone other than the accused was responsible for the CEM being on the Samsung phone, which I reject in any event as not being a reasonable possibility, I am satisfied beyond reasonable doubt that the accused must have become aware of the existence of that material on the phone having regard to his continued use and possession of that phone during August and early September 2019, in any event.
Having regard to my earlier findings, I reject the accused’s explanations to police, namely that he had no idea how the CEM came to be on the Samsung phone, and that he knew nothing about the CEM, as not being a reasonable possibility. I further reject, as it not being a reasonable possibility, the accused’s claim that he had never accessed or attempted to access child pornography, his claim that child pornography was not something that would interest him and his claim that he did not know where to obtain child pornography, should he have wanted to.[62]
[62] MFI P11 lines 82-87.
I am satisfied, beyond reasonable doubt, that the accused was in possession of the 13 video files found on the Samsung phone containing CEM and that he knew 10 of those files depicted children under the age of 14, either because he had viewed the material and/or because of the names of some of those files. I am further satisfied beyond reasonable doubt that he knew of the pornographic nature of the material.
I am satisfied, on the basis of the evidence that I have accepted, that there is no reasonable explanation consistent with the accused’s innocence.
Conclusion
As to count one on the Information, I am satisfied beyond reasonable doubt:
1.The accused was in possession of material.
2.The material was child exploitation material.
3.The accused knew of the pornographic nature of that material.
4.The accused knew that the children depicted in the material were under the age of 14 years.
As to count two on the Information, I am satisfied beyond reasonable doubt:
1.The accused was in possession of material.
2.The material was child exploitation material.
3.The accused knew of the pornographic nature of that material.
Verdict
I find the accused guilty of both counts.