R v John Eric Cargnello

[2009] NSWDC 132

CITATION:	R v John Eric CARGNELLO [2009] NSWDC 132 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 June 2009
JUDGMENT DATE:	12 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	The Crown is granted leave to amend the indictment in this matter to included the offences charged in Counts 1 though 12 as proposed in the form of Indictment presented upon this application.
CATCHWORDS:	CRIMINAL LAW – procedure – information, indictment or presentment – amendment
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Customs Act 1901 (Cth)
CASES CITED:	R v Giam [1999] NSWCCA 53 R v Isaacs (1997) 41 NSWLR 374 R v Taufahema [2007] HCA 11
PARTIES:	The Commonwealth Director of Public Prosecutions John Eric Cargnello
FILE NUMBER(S):	2007/00016067
COUNSEL:	Mr T Game SC (CDPP) Mr M Thangaraj (Accused)

IN THE DISTRICT COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION

BENNETT SC DCJ

Friday 12 June 2009

2007/16067 – R v John Eric CARGNELLO

JUDGMENT ON APPLICATION TO AMEND INDICTMENT

Introduction

1 In this matter the Commonwealth Director of Public Prosecutions has commenced proceedings against the Accused, John Eric Cargnello, for offences related to child pornography.

2 The Crown now seeks leave pursuant to s 20 of the Criminal Procedure Act 1986 to amend the indictment by adding further counts. The Accused opposes the application.

3 The orders sought are set forth in a Notice of Motion filed on 23 March 2009. They are,

1. If required, leave be granted to amend the indictment in this matter pursuant to section 20 of the Criminal Procedure Act 1986,

2. Any other orders that the Court considers appropriate.

4 An affidavit in support of the application sworn by Melissa Catsanos on 23 March 2009 was also filed.

5 In light of the arguments advanced opposing the application it will be necessary to refer to the history of the investigation and the resultant prosecution.

The Development of the Prosecution’s Case

6 The Crown alleges that the Accused entered Australia by way of Sydney International Airport on 31 August 2006, carrying a lap top computer and a portable video player/recorder. Customs officers seized these items for examination.

7 On 5 September 2006 the Accused attended Customs House at the Sydney International Airport and was charged with an offence contrary to s 233BAB(5) of the Customs Act 1901 (Cth). This initial charge alleged the intentional importation of prohibited Tier 2 goods, namely, child pornography, in the form of digital images, video recordings, written text, and digital images attached to email, all of which were stored on the lap top computer.

8 The investigation undertaken included the submission of the lap top computer and the video player/recorder to Mr Colin Bulloch, described as a Customs forensic expert. He examined and interrogated these items.

9 In the Crown submissions in support of this application it is said at paragraph [30] that in the initial report from Mr Bulloch on 18 December 2008 there was reference to a document named “Badgirls.doc” and the file path to its location on the hard disc of the video player/recorder, discovered on 1 September 2006. The date attributed to the report cannot be correct. From the history of this matter it would seem that the correct date was 18 December 2006. I do not have the report in the material tendered on the application from which to confirm this, but I cannot envisage how the first report by Mr Bulloch would have been written so late as December 2008.

10 The initial report from Mr Bulloch did not enlarge upon the content of the document so named in the video player/recorder, or make any reference to child pornography or child abuse material stored on that device. There is reference to “objectionable material” on both devices in the statement of Customs Officer Jerez dated 19 October 2006. This notwithstanding, there was no charge preferred in respect of the material on the video player/recorder. I do not have a copy of the statement of that officer, and do not know whether the material so described was there further particularised.

11 The initial report of Mr Bulloch on 18 December 2006 included as Annexure F, 4 emails, dated 1, 5, 7 and 8 March 2000 respectively, upon which the Crown would rely to prove counts 8 through 11 in the indictment proposed in the present application. It is said that they were discussed in that report.

12 The Accused defended the charge, and on 30 and 31 August 2007 in committal proceedings Mr Bulloch faced cross-examination. The Accused was committed for trial on 26 November 2007. On 28 November 2007 he pleaded guilty upon arraignment, and the proceedings were adjourned for sentence. He was at this time represented by other counsel and solicitors.

13 On 18 April 2008 after arranging for other representation the Accused sought to withdraw his plea of guilty. Judge Hulme granted the application and the trial was appointed to 3 November 2008. I do not have the record of the application, but in the submissions of Senior Counsel for the Crown to her Honour Judge Sweeney, in the first application to amend, he noted that the basis of the application was that the Accused was not aware of the images or text discovered on the computer.

14 The Crown filed a Notice of Motion to vacate the trial from that date because of the unavailability of Mr Bulloch. On 10 October 2008 the trial was vacated from the appointed date and set down for hearing on 23 February 2009.

15 The Crown also gave notice of its intention to file a fresh indictment containing four counts in place of the single count upon which the Accused was committed trial. The four proposed counts were to be in respect of the same subject matter, but each count would be confined to the form in which the child pornography was found on the lap top computer. Thus, the first count would relate to still digital images, the second would relate to video recordings, the third to written text, and the fourth to emails with still digital images attached to them. The application to amend was appointed to 12 November 2008. Judge Sweeney granted the application. Mr Game of Senior Counsel represented the Crown on the application, with Mr Johnstone as his junior. Both counsel have been in the matter since before the committal hearing. Mr Bellanto of Queen’s Counsel with Mr Thangaraj appeared for the Accused. Mr Game and Mr Thangaraj argued the application before me.

16 In the course of the argument before Judge Sweeney counsel for both parties referred to the forensic expert retained to re-visit the work of Mr Bulloch, who was unlikely to be available to give evidence. The expert retained to replace Mr Bulloch is Mr Adam Daniel from a leading firm of accountants.

17 There are a series of reports from Mr Daniel. I have been provided with copies of reports of December 2008 and 14 January 2009, a file note of 20 February 2009 referring to those reports, and two further reports named respectively as a “Supplementary Technical Report Microsoft Outlook” and “Supplementary Technical Report Download Accelerator Plus” both bearing the date 25 February 2008. It would appear that this is an error, and that the date in each case should have been 25 February 2009. Lastly there is a report named “Supplementary Technical Report S317X03A” of March 2009. It is apparent that the investigation by Mr Daniel was in the nature of a work in progress that extended from the interrogation of the devices leading to his first report of December 2008, through to the most recent in March 2009.

18 On 25 November 2008 a Notice of Appeal from her Honour’s judgement was lodged, but this was not pursued. The appeal was to be heard on 17 February 2009 in the Court of Criminal Appeal, but according to the Crown it was abandoned. Before me the Crown pointed to this as an indication that the Accused abandoned his challenge to the first amendment, but Mr Thangaraj refuted this suggestion, explaining that the Accused had not changed his position but chose to defer the challenge to her Honour’s decision after the Crown gave notice of its intention to pursue the present application, to avoid waste of time and expense if there were a need to appeal from the decision required on this occasion.

19 In his report on 12 December 2008 Mr Daniel confirmed the child pornography previously found in the laptop computer, and in addition identified child pornography contained in the portable video player/recorder. As I understand matters, this is when the material was first described with any measure of detail, although, as I noted earlier there was reference to “objectionable material” discovered in the initial stages of the investigation. A copy of this first report from Mr Daniel was served on the Accused’s representatives that day. This material was not contemplated in the application argued before Judge Sweeney.

20 This report includes Appendix C wherein the internet history of the sites visited by the Accused appears. Although incomplete, it is said to provide a significant history of internet use between 1 March 2005 and 20 August 2006, the period covered by the proposed count 12.

21 There are errors in paragraphs [32] and [62] of the Crown submissions where reference is made to the report of Mr Daniel of 12 December 2009, six months from the present. Clearly this should be read as 12 December 2008.

22 On the 14 January 2009 Mr Daniel provided his further report with information regarding additional material on the laptop computer. This report was served on the Accused’s representatives that day. This material, described as child abuse material, was unknown before this and was not contemplated in the application argued before Judge Sweeney. Although the Crown adopted the description child abuse for this material, it said that it includes both child abuse and child pornography, both of which constitute Tier 2 goods the importation of which is proscribed.

23 On 30 January 2009 the Director wrote to the Accused’s representatives with a copy of a proposed indictment incorporating a further three counts; all seven counts refer to the child pornography alleged to have been found on the laptop computer and the video player/recorder. Before the Crown pursued an application to further amend the indictment with the inclusion of these three additional offences, Mr Daniel provided the two further reports of 25 February 2009 in which he discussed the applications “Outlook Express” and the “Download Accelerator” found on the computer and their use to access child pornography. The discussion includes reference to the emails upon which the Crown would rely for counts 8 through 11.

24 Before this, Mr Daniel was unable to open all of the email accounts using the “Microsoft Outlook” program. They were stored with password protection. The Crown wrote to the Accused’s representatives and asked for the password but it was not forthcoming, however Mr Daniel in the interim developed an algorithm to access the protected account and the emails. He could then view the file structure of the email account as the user would have viewed it and access the file “jcpersonal”. The sent items in that file, when sorted by date order, revealed emails sent in the name of the Accused and in the name “John Cutter”, and revealed the setting up by the Accused of email accounts in that other name.

25 The “Supplementary Technical Report Download Accelerator Plus” of 25 February 2009 is referred to in paragraph [63] of the submissions with reference to the date 27 February 2009. This appears to be an error. Relevant to the proposed count 12, it also includes a significant history of email sites visited including those that appear to involve child pornography, and reports that there are links between images of child pornography found to sites allegedly accessed by the Accused. Moreover, it is alleged that images and fragments of images recovered from unallocated space on the computer hard drive can be matched to the accessed sites.

26 Copies of the additional reports were sent to the Accused’s representatives on 25 February 2009 it is said, although I note that in paragraphs [55] of the Crown submissions the date 27 February 2009 is specified as when the paginated and chronological copy of the email material was served.

27 On 4 March 2009 a Notice of Motion to vacate the trial date was filed on behalf of the Accused to allow further preparation to respond to the additional material. This was granted and the trial is now to commence on 20 July 2009.

28 On 20 March 2009 the Crown served the further supplementary report from Mr Daniel bearing March 2009. The information provided includes the file paths he discovered. The Crown also provided what is described as a forensic copy of the personal video player/recorder. According to the Crown the video player/recorder appears to have been used to back up data from the laptop computer, but the 30 digital images contemplated in the proposed count 6 are not identical with images on the computer, although there is said to be some overlap. The 524 text stories on the computer differ from the 465 on the video player/recorder. The Crown said at paragraph [69] of its written submissions that a forensic copy of the laptop computer was also provided but I have not been able to determine when that occurred.

29 Upon the further discoveries by Mr Daniel and the spectre of offences they raised in addition to the original allegations of importation of child pornography that were until then the essence of the prosecution, the Crown contends that the indictment as presently constructed does not adequately address the entirety of the Accused’s criminality. By letter of 23 March 2009 the Crown notified the Accused’s representatives of its intention to seek leave to further amend the indictment. The letter enclosed a copy of the proposed indictment, particulars in support of the offences charged, and the notice of motion and affidavit in support.

The Proposed Indictment

30 The proposed indictment contains twelve counts.

31 Counts 1 to 4 are in those that were allowed by Judge Sweeney, and allege offences said to be contrary to s 233BAB(7) of the Customs Act. I have reviewed the legislation and it appears that the correct provision is s 233BAB(5) of the Act.

32 Count 1 relates to digital images depicting child pornography; Count 2 relates to videos depicting child pornography; Count 3 relates to text documents depicting child abuse; and Count 4 relates to emails with still digital image attachments depicting child pornography.

33 Count 5 is an additional offence alleged as a result of Mr Daniel’s investigation of the laptop computer in the course of which he accessed the “Outlook Express” application revealing emails to which text stories depicting child abuse were attached. This offence is also said to be contrary to s 233BAB(7) of the Customs Act. I believe that the correct provision is s 233BAB(5) of the Act.

34 Counts 6 and 7 are also offences said to be contrary to 233BAB(7) of the Customs Act alleged in respect of digital images depicting child pornography (count 6) and text documents depicting child abuse (count 7) found on the video player/recorder. Once again, I believe that the sub-section has been incorrectly identified, and it should be specified to be s 233BAB(5) of the Act.

35 Counts 8 through 11 are for offences contrary to s 50DB(1) of the Crimes Act 1914 (Cth) alleging that on or about 1 March 2000, 5 March 2000, 7 March 2000, and 8 March 2000 respectively, the Accused as an Australian citizen sent email with the intention of encouraging an offence against Part 111A of the Crimes Act, namely, sexual intercourse with a child under 16 outside of Australia, the act of sending the email in each case being reasonably capable of encouraging that conduct. The Crown has provided a summary of the conduct it alleges, the essence of which is that the Accused, using the name John Cutter, participated in a series of email discussions concerning child sex tourism using a code to mask the age of the children the subject of the discussions. The code employed, described in an email dated 10 January 2000, involved the allocation of a number followed by a minus sign to denote the age as 5 years less than the number, or two minus signs to denote the age as 10 years less than the number. The emails were found in the folder named “jcpersonal” in the laptop computer. They included enquiries regarding locations that offer young girls in Asia, meeting up in Cambodia, the differences between children aged 12 years and children aged 15 years, the nature of the sexual activity available, and where the children may be found in specified cities. This summary is not intended to be exhaustive of the emails to which the Crown points in support of these charges in addition to the specific emails upon which it relies for the proposed counts respectively dated 1, 5, 7 and 8 March 2000.

36 There is an incorrect reference to the date 8 March 2008 in paragraph [46] of the Crown submissions, that should be read as 8 March 2000.

37 Count 12 is for an offence contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) and alleges that between 1 March 2005 and 30 August 2006 the Accused used an internet service to access child pornography.

The Argument Before Judge Sweeney

38 It is of course not my task to second guess or review the decision of Judge Sweeney to allow the amendment sought in the application before her and I should not be thought to be doing so, but in light of what was presented in the present application it is appropriate that I refer to the submissions made to her Honour for they provide some indication of what one might infer to be the understanding of the Accused and his representatives regarding the devices that were the genesis of the investigation leading to his prosecution, and whether there is unfairness to the Accused should the present application be granted.

39 Mr Game informed her Honour of what he said was intimated to the Chief Judge when the trial date of 3 November 2008 was vacated, namely, that Mr Bulloch was unavailable and was unlikely to be available to give evidence, that there was the prospect that the Crown would not to call him in any event unless required by the defence for cross examination, and that he undertook to qualify another expert in place of Mr Bulloch who would perform the analysis he had undertaken. He added that another expert was retained, not an employee of Australian Customs, and the Crown had undertaken to serve his report before 7 or 8 December 2008. This was later corrected to 12 December 2008.

40 Mr Game added that there was no guarantee that the expert would produce the same findings as Mr Bulloch.

41 The arguments advanced in support of the amendment covered the following points:

1. Properly construed the term “goods” used in s 233BAB(5) of the C ustoms Act applied to the individual images and text items, and not to the device on which they were stored;

2. There is different criminality involved in respect of still images compared with transmitted or received email with still images, written text, and video recordings that might involve more serious misconduct toward the children depicted;

3. The Crown was entitled to bundle up in one charge images or text items of the same type, with a separate count for each category, to allow the Court the scope necessary to address at trial and on sentence the criminality involved in their importation;

4. One count embracing all of the items discovered would not allow the court the scope to properly deal with the totality of the criminality involved, but the four counts proposed would achieve appropriate balance, providing sufficient identification of the criminality involved in the individual counts without the risk of duplicity;

5. It was within the discretion in the Commonwealth Director of Public Prosecutions to select the offences upon which to indict an accused, and the court did not have the power to limit the Director in the exercise of that discretion, although it was recognised that the Court was obliged to ensure that the conduct of the trial was fair to the Accused;

6. The Crown could charge one offence for each individual item of child pornography, but was not bound to do so and should not do so where that course would not facilitate the due administration of justice or would risk oppression;

7. Upon the application to withdraw his plea of guilty it was said on behalf of the Accused that he did not know of the existence of child pornography; if the Crown anticipated correctly that this was to be the position taken at trial, there would be different forensic questions regarding the pathways by which the items were stored and accessed with the computer, depending upon the nature of the item;

8. Evidence of the Accused’s knowledge of the pornography would include the individual pathways to access the categories of child pornography, its storage in different places within the computer’s hard drive, and the times when individual items were created, stored, or accessed;

9. These aspects were the subject of extensive cross examination of Mr Bulloch at the committal hearing.

42 Senior counsel for the Accused dealt with the following points in his argument:

1. The nature of the documents from the newly retained forensic expert that might differ significantly from the product of Mr Bulloch’s work diminished the value of the cross examination of him at committal;

2. The distinctions drawn by the Crown between the groupings of the type of child pornography were not decisive;

3. Sections 233BAA and following in the Customs Act created offences of importation or exportation of the specified goods, whether as a single item or in multiples, and in either case there is but one offence, the importation or exportation of the proscribed goods;

4. The Crown was looking to facilitate proof of facts at trial and for sentencing by the creation of offences with no basis in law for doing so, with resultant unfairness and oppression;

5. The concerns ventured by the Crown to justify categorising the pornography with regard the pathways to store or access the pornography are apposite whether there is one count or multiple counts as proposed;

6. There is but one offence of importation;

7. It is improper to charge four counts, thereby exposing the Accused to a fourfold increase in penalty when in truth he is alleged to have committed but one offence.

The Present Application

43 In support of the inclusion of counts 5, 6 and 7 in the proposed indictment the Crown has repeated the submissions it made to Judge Sweeney, usefully summarised in terms that they avoid the issues of latent duplicity, ambiguity and uncertainty in respect of the jury’s verdict.

44 The Crown adds that the images contemplated in the proposed count 6, and the text contemplated in the proposed count 7, all discovered on the video player/recorder, are in most instances different to those on the lap top computer. In the case of the images there is some overlap. The Crown submits that separate charges, including for the identical images appearing in both devices, will not cause unfairness when it comes to penalty, because assessment of the totality of the Accused’s criminality, whether expressed in one count or more, will ensure that if convicted he does not suffer punishment greater than required by the objective gravity of the offending. The Crown submits that the existence of identical images on both devices does not deny the Director discretion to charge separately in respect of this material, stored on separate devices.

45 The Crown relies upon the opportunity given to the Accused to investigate the computer and the video player/recorder, forensic copies of which were provided with the particulars of the file paths to the offending material discovered by Mr Daniel.

46 With regard to the proposed counts 8 through 11 the Crown outlined the nature and content of the emails upon which it relies, including the specific emails constituting each offence. It provides the relevant legislation and the limitations it imposes upon prosecutions, none of which are engaged here. The Crown has already served this evidence upon the Accused and his representatives. The 4 critical emails were the subject of Mr Bulloch’s report of 18 December 2006 and served as annexure F to that report. They were again discussed in the report of Mr Daniels of 25 February 2009. The emails were found in three locations, namely, the computer, the video recorder, and on discs found in the Accused’s former matrimonial home. The evidence supporting these counts will largely fall from Mr Daniel. It is said that this will not lengthen the trial significantly.

47 The Crown submits that the inclusion of counts 8 through 11 will bring to account the criminal activity upon which the Accused is alleged to have engaged, and will meet the public interest in having this serious misconduct dealt with.

48 Although the offences were committed in the year 2000, their discovery was not until after the seizure of the devices on 31 August 2006 and their interrogation thereafter by those with the skills to access their holdings, who will be called to give evidence regarding the findings upon which all counts in the indictment depend. It is appropriate therefore that the charges be presented in the one indictment. There would be nothing to prevent the Accused being presented on a separate indictment, if that was an appropriate course, but the same evidence, or at least a significant part of it, would then be required in two separate proceedings. There is no unfair prejudice it is said, in having the evidence called in the one trial embracing all of the offences with which the Accused is charged arising from the material extracted from these devices.

49 Although the emails were served on the defence with the first Bulloch report of 18 December 2006, the commission of these offences and the charges upon which to bring them before the court were not property considered until the supplementary “Outlook Express” report of 25 February 2009. The Accused and his representatives have access to that material, and access to forensic copies of the devices provided to the forensic computer expert retained on behalf of the Accused.

50 The notification to the Accused and his representatives of the proposed charges on 23 March 2009, with the trial listed for 20 July 2009, provided ample opportunity for the Accused to prepare to meet the Crown case.

51 In respect of the proposed count 12 the Crown has provided the particulars of the relevant legislation, and the geographical jurisdiction is demonstrated. Once again the evidence in support of this charge will fall from Mr Daniel. For this reason, the submissions made in respect of counts 8 through 11 are apposite.

52 In conclusion the Crown provides the following points in support of its application:

1. It is for the Director to select the charges upon which to proceed;

2. The holdings on the computer and the portable video player/recorder the significance of which the Crown is now aware from the ongoing work of Mr Daniel, provides the measure of the entire criminality upon which the Accused is alleged to have engaged; this was not known or understood in all of its detail at the time of the application before Judge Sweeney;

3. The indictment prepared after the successful application to Judge Sweeney fails to meet the criminality discovered, focused as it is upon the importation of the child pornography found on the computer without regard to the further criminality exposed, which the proposed indictment will properly address;

4. The proposed indictment is upon the material that has already been served by the Crown on the Accused and his representatives. The inclusion of the charges proposed and the evidence to support them will not significantly lengthen the trial;

5. The Accused and his representatives have had notice of the proposed charges since the 23 March 2009, and the material upon which they rest well before that. A forensic copy of the laptop computer and of the video player/recorder was provided for the forensic expert retained on behalf of the Accused;

6. There has been a committal hearing of some limited value, but there is no injustice in proceeding without a further committal hearing; Mr Daniel will be available for cross examination before his evidence is presented to the jury if that is desired, without objection from the Crown;

7. The proposed counts will provide the Court with the scope to deal with the totality of the criminality alleged; and

8. The amendments are not in the circumstances unfair or oppressive.

53 The Crown also ventured the proposition that it is by no means unusual for the Crown to develop its case, and change direction from time to time within acceptable limits, as evidence is developed and the misconduct the subject of the prosecution becomes clearer, such as in this matter. He referred to R v Taufahema [2007] HCA 11 amongst other authority demonstrating the extent to which the Crown will be permitted to present its case differently to its first approach upon the discovery of additional material or a better appreciation of the significance of that which is already within its purview.

54 The affidavit of the Accused’s solicitor, Mr Christopher Watson, was read. He was cross-examined. He rehearsed the history of the proceedings, including that other solicitors and counsel represented the Accused in the committal hearing, and the representation attributed to the Crown then that a “complete brief of evidence” was available and to be presented to the court. He referred to the additional material upon which the Crown would rely at trial, and the progressive service of it as the proceedings have continued to evolve. The history of the proceedings to the present application is described, consistent with what I have provided above. There is no need to repeat that here, but I do note that the description provided does highlight the challenges the Accused and his present representatives have faced in their preparation to meet the Crown case as the Crown’s documents have been served progressively over time.

55 Mr Watson next refers to the letter received on 23 March 2009 informing him of the Crown’s intention to pursue the present application. He asserts that for the first time the Accused will be required to meet allegations of conduct alleged in respect of periods from 1 March 2000 to 8 March 2000 in the proposed counts 8 through 11, and from 7 March 2005 to 30 August 2006 in respect of the proposed count 12. He asserts the following difficulties:

1. The Accused, through his representatives, must now investigate the availability of evidence of access by others to the laptop computer and other equipment from which the items found on the laptop computer were sourced during the periods identified;

2. The expert retained on behalf of the Accused has not yet completed his work, which must be now more extensive if the proposed amendments are allowed;

3. Cross examination of Mr Daniel cannot take place until the expert reviewing his reports and assessing his investigations completes the task so that the Accused’s legal representatives are properly armed with the information required to properly test Mr Daniel’s evidence;

4. Business records of the company with which the Accused has been associated are destroyed after 7 years; the records for the year 2000 have already been destroyed. These include computer back up records, staff records, and other business records that are now not available to assist the Accused’s case in response to these additional charges;

5. The Accused is now denied entry to Canada and the United States of America since being charged in these proceedings; it is said that Mr Richter QC, who appeared upon the application to withdraw the plea of guilty, advised that travel to those countries is necessary for the preparation of the Accused’s case. As I understand this point, since the Accused cannot enter those countries to carry out investigations for evidence to support his case, the records of the company, if intact, would have enhanced significance.

56 Submissions on behalf of the Accused have once more addressed the separation of the importation allegations according to the form in which the material was found on the device and the more recent discovery of material in two different forms on the video player/recorder, charged in counts 1 through 7 in the proposed indictment.

57 Once more the history of the investigation and the proceedings is outlined. There is no need to repeat it.

58 Against that history it is said that for a number of reasons it is now unfair for the Crown to be permitted to proceed on these additional counts. Without wishing to do them injustice, I would summarise the submissions thus:

1. The Crown at first intended to proceed on a single count encompassing all of the alleged child pornography then known, and would have done so but for the need it had to make application to vacate the trial date because Mr Bulloch was ill and could not attend to give evidence. Thereafter, having given careful consideration to the matter, the Crown decided to proceed on four counts, separating the material the subject of the original charge according to the form in which it was found on the computer. Judge Sweeney allowed the amendment notwithstanding that there was no basis in law upon which the Crown ought to have charged four counts in lieu of the single count for the single offence of importation. It is said that it is not permissible to charge more than one offence for the piece of equipment upon which the material said to be child pornography or child abuse material was allegedly found;

2. The trial was set down for hearing on the four counts allowed by Judge Sweeney, but the Crown then served further material that required investigation on behalf of the Accused. The Crown consented to the trial date being vacated to allow the Accused time for further preparation. But for that, the trial would have proceeded on those four counts. Thereafter the Accused was given notice of an additional three counts, and thereafter the Accused was given notice of the indictment as presently proposed leading to the present application. For the Crown to have proceeded in this fashion and then be permitted to prosecute the Accused on this expanded indictment is unfair in itself;

3. The trial was appointed after the amendment was allowed, and the Chief Judge ordered that all material upon which the Crown intended to rely be served by 12 December 2008 so that the Accused would have sufficient time to prepare. With the further application to amend, adding eight counts to the four permitted by Judge Sweeney, there is now insufficient time to prepare to meet the Crown case; the trial date is 20 July 2009;

4. The fresh counts rely entirely upon material of which the Crown was aware in 2006; indeed the Crown asserts that the Accused is not prejudiced, for he has had access to the material for a long time. The same counsel have appeared for the Crown throughout;

5. There is no adequate explanation for the delay in charging the further offences. The explanation offered by the Crown on this application does not provide justification;

6. The fresh charges have not been the subject of a committal hearing at which the Accused would have been entitled to seek the opportunity to cross examine relevant witnesses, and ask the magistrate to consider discharging the Accused at that point in the proceedings;

7. The further charges will extend to unacceptable lengths the trial and the preparation required for the trial; and

8. With regard to counts 8 through 11:

a. there is a distinctly different time frame, in which offences of an entirely different nature are alleged; and

b. Exculpatory evidence is no longer available leaving incurable prejudice to the accused.

59 Submissions were also made in terms challenging the way in which the Crown now proposed to present its case in respect of the third count and fifth count, relying upon the material as child abuse material. The Crown informed me that the material contemplated by these charges could bear either description, but it has chosen to adopt the term “child abuse material” as more appropriate. It is said that the Crown had taken another view in respect of the third count when before Judge Sweeney, but even so, I do not see this as a reason not to grant the application before me.

60 The submissions also sought to re-visit the arguments before Judge Sweeney challenging the application for the inclusion of counts 5 through 7. Indeed the submissions include an assertion putting the Crown on notice that it should consider its position regarding the first four counts allowed by Judge Sweeney, for the Accused intends to appeal any conviction upon counts 1 through 5 upon the grounds that there should have been but one charge for the lap top computer, and if allowed, one further charge for the video player/recorder, and for the reasons advanced more generally, that there should not be any further charges permitted at all.

61 As indicated earlier, the counts 5 through 7 relate to additional material found on the computer, and images and text found on the video player/recorder.

62 I noted earlier that it is not my task to review the decision of Judge Sweeney in this application. However, I am required to consider the arguments in the context of the application made in respect of counts 5 through 7. In addition to the argument that there is inherent unfairness in the Crown wishing to do so, it is submitted that upon the proper construction of the legislation creating the offence charged in these counts there can be but one charge of importation of child pornography for each of the devices upon which it was allegedly found. My attention is taken to the provisions creating the offence.

63 Section 233BAB of the Customs Act provides relevantly,

(1) The regulations may provide that:
(h) items of child pornography or of child abuse material;
constitute tier 2 goods.
(2) The regulations must not specify an item for the purposes of subsection (1) unless:
(a) its importation is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations; or
(b) its exportation is prohibited, either absolutely or on condition, by the Customs (Prohibited Exports) Regulations.
(3) For the purposes of subsection (1) an item is taken to be an item of child pornography if it is a document or other goods:
(a) that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(c) that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(d) that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive
(4) For the purposes of subsection (1), an item is taken to be an item of child abuse material if it is a document or other goods:
(a) that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.
(4A)…
(5) A person is guilty of an offence against this subsection if:
(a) the person intentionally imported goods; and
(b) the goods were tier 2 goods and the person was reckless as to that fact; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
Maximum penalty: A fine not exceeding 2,500 penalty units or imprisonment for 10 years, or both.

64 Section 4 provides,

(1) In this Act except where otherwise clearly intended:
documents include:
(a) any paper or other material on which there is writing; and
(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) any paper or other material on which a photographic image or any other image is recorded; and
(d) any article or material from which sounds, images or writing is capable of being produced with or without the aid of a computer or of some other device.
goods means movable personal property of any kind and, without limiting the generality of the expression, includes documents, vessels and aircraft.

65 The definition of the term “documents” is inclusive. Thus, it is said that the Crown sought to rely upon the meaning attributed to the term in the Acts Interpretation Act 1901 (Cth) wherein s 25 provides,

In any Act, unless the contrary intention appears:
document includes:
(a) any paper or other material on which there is writing;
(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device.

66 This provision replicates all but paragraph (c) in the definition from the Customs Act. The submission that the definition is therefore wider does not appear to be justified.

67 The submissions then continue that the terms “article or material” appearing in paragraph (d) of the definition of the word “documents” must be interpreted to mean tangible items, such as the hard drives of the devices upon which the material was said to be found. The submissions challenge the Crown’s contention that the individual items of child pornography or child abuse revealed upon the interrogation of the devices were in each case an item of Tier 2 goods that could found a prosecution.

68 I have not been provided with authority in which the interpretation of the legislation has been discussed.

The Decision

69 I do not agree with the submission that the provisions should be construed so as to confine the Crown to one count of importation for each device upon which the offending material was found.

70 The Customs Act provides for the offence of importation of Tier 2 goods. It also provides for the specification in the regulations of items of child pornography or child abuse material as Tier 2 goods: s 233BAB(1). An item of child pornography or child abuse material must not be so specified unless the Customs (Prohibited Imports) Regulations or the Customs (Prohibited Exports) Regulations prohibit its importation or exportation either absolutely or on condition: s 233BAB(2). Prohibited is the importation of child pornography or child abuse material as Tier 2 goods: s 233BAB(5), whether set down on paper or in an electronic medium.

71 “An item is to be taken to be an item of …” child pornography or child abuse material if it is a “document” or “other goods” depicting a person or representation of a person apparently under the age of 18 years in specified circumstances: s 233BAB(3) & (4). The terms “goods” and “document” are defined. “Goods” include “documents”, and “document” in turn includes any article or material from which sounds, images or writing is capable of being produced with or without the aid of a computer or some other device.

72 The phrase, “An item is taken to be an item of …” used in s 233BAB(3) and (4) facilitates the proof of the offence in two respects.

73 First, those provisions specify what child pornography and child abuse material is to be taken to be. Items with such characteristics may be specified to constitute Tier 2 goods.

74 Secondly, of themselves a document or goods are not child pornography or child abuse material, but are to be taken to be so if they depict by sound, image, or in writing, child pornography or child abuse material. It is the depiction that is the gravamen of the offence. In an electronic device, such as a computer or a video player/recorder, the depictions are not readily available. The device must be activated, and the pathways to raise the depiction must be engaged to allow the depictions to be perceived.

75 I do not overlook that this is a criminal statute to be strictly construed, but with this in mind, in my opinion the legislation should not be read so as to confine the offence to the importation of the device upon which the offending material is depicted. To adopt the narrower approach is to ignore the terms of the definition given to “document” and its reference to sounds, images, or writing.

76 It is each depiction of child pornography or child abuse material, whether by sound, image, or writing, together with the device from which it is capable of being produced that is the item of child pornography or child abuse material. If there is more than one depiction, then each is an item of child pornography notwithstanding that it is capable of being produced from the same device. In my opinion these provisions must be read in this way.

77 I am therefore not persuaded that the Crown should for the reasons advanced confine itself to one count of importation for each device.

78 As to the argument that there is but one offence of importation, regardless of the manner in which the material is stored on the devices, or the differences in their presentation on the devices and methods to be employed to access them, I have revisited the discussion of the doctrine of duplicity in the selection of charges by the Chief Justice in R v Giam [1999] NSWCCA 53.

79 In the particular circumstances of this case, where there are groups of material identified by their form, and the means of access to them, and in light of the anticipated defence position that the Accused was unaware of the material on the devices, I believe there is merit in the Crown taking the course that it has. To do otherwise would make enormously difficult the task required of the trial judge, in accordance with the principles in decisions such as R v Isaacs (1997) 41 NSWLR 374, were there to be returned a verdict of guilty upon one global charge of importation for each device.

80 I agree with the Crown submission that it is appropriate to divide the charges in the manner proposed. Although the Accused bears the risk of facing multiple verdicts of guilty for the single importation of the entirety of the material discovered, the principle of totality would require that any sentences imposed be structured to reflect the true measure of the criminality involved, regardless of the number of charges.

81 In the application before me the submissions delivered orally focused primarily upon the suggested unfairness in allowing the Crown to expand the indictment as proposed. I do not agree that it is unfair to allow the Crown to amend the indictment. Of course it would have been desirable for the prosecution case to be identified precisely and definitively at the committal hearing, but that is not always possible, and in this case there is a clear explanation for the inability for the Crown to be in that position before it settled upon the indictment now proposed. The commission of the offence allegedly involved use of a computer and a video player/recorder that required interrogation by an expert qualified to do so. The expert first retained fell ill and was not available to give evidence. Another was retained, and in the course of his investigation he identified with greater precision and breadth the material in the devices, with the result that the Crown gained a better understanding of the scope of the criminality indicated by the material recovered. It is apparent that as material was uncovered, and its significance realised, the Accused and his representatives were provided with the product of the investigation, and kept informed of the course proposed by the Crown.

82 Access to email accounts was made more difficult, requiring the development of an algorithm with which to bypass the password protection that the Accused or his representatives did not provide when requested. I do not mean to imply that the Accused was obliged to do so, or that he should suffer some penalty for not surrendering the rights he has to put the Crown to proof and require them to provide the evidence. However, it does not follow that the decision taken not to provide that information, if it was available to the Accused, should be added to the factors supporting the argument that the Crown has acted unfairly.

83 It is said that there is difficulty for the Accused because he does not now have access to company records to which he might turn in support of his defence, which is of greater significance since he cannot return to the United States of America or Canada to make inquiries directly. However there is no material before me to show what evidence has been lost relevant to the defence case or disruptive to the Crown case, other than in the most general terms, or material to show with any precision how and to what extent the Accused will be disadvantaged thereby. I am not persuaded that actual disadvantage has been demonstrated.

84 Even if one were to deny this application, there would be no impediment to the Crown bringing a prosecution for the additional offences charged in counts 8 through 12 in the proposed indictment in further proceedings. This would involve a good deal of inefficiency, with much of the evidence in the first trial to be produced in the second proceedings if they were to be pursued.

85 I do not agree that the lost opportunity for a committal hearing upon the additional charges would cause the Accused such prejudice that application should be denied. The Crown will consent to a “Basha” hearing, to allow cross-examination of witnesses before they are presented to the jury.

86 Section 20 of the Criminal Procedure Act provides

20 Amendment of indictment
(1) An indictment may not be amended after it is presented, except by the prosecutor:
(a) with the leave of the court, or
(b) with the consent of the accused.
(2) This section does not affect the powers of the court under section 21.
(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

87 Section 21 is not relevant to the present application, although in light of the arguments developed it is possible that an application relying upon that provision might be pursued before the trial judge. I express no opinion either way.

88 For these reasons I shall grant leave to the Crown to amend the indictment as proposed.

The Orders

89 Pursuant to section 20 of the Criminal Procedure Act the Crown is granted leave to amend the indictment in this matter to included the offences charged in Counts 1 though 12 as proposed in the form of Indictment presented upon this application.

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22/12/2009 - Restriction removed - Paragraph(s) -