R v MANGNOSON - [2009] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v MANGNOSON
[2009] SASC 16
Reasons for Decision of The Honourable Justice Vanstone
3 February 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Applicant charged with possession of child pornography - charge arose out of images of child pornography on phone owned by applicant - applicant denied knowledge of presence of images on phone - prior to trial the judge excluded from evidence other images on the phone which had the appearance of child pornography at invitation of defence counsel - applicant had stored and labelled pornographic pictures of partner on phone - prosecutor asked applicant why it was necessary to label pornographic pictures of partner if to the applicant's knowledge there were no other pornographic images on the phone - applicant denied that he labelled the images to distinguish them from other pornographic images - judge referred to this aspect of the applicant's cross-examination in summing up to the jury - applicant convicted - application for permission to appeal - whether judge's remarks in summing up invited use of a prohibited process of reasoning.
Held: there was nothing to suggest that the applicant was impeded in answering questions by reason of the exclusion of some images from the evidence - even in the absence of any reference to the relevant cross-examination in summing up it was open for the jury to reason in the manner attacked by the applicant - permission to appeal refused.
R v Fricker (1986) 42 SASR 436, considered.

R v MANGNOSON
[2009] SASC 16
Application for permission to appeal against conviction

VANSTONE J: This application is for permission to appeal against conviction for one count of possessing child pornography with circumstances of aggravation. Although the notice of appeal contains three grounds, there is, in fact, only one argument put in support of the application. That is, that the learned trial judge invited the jury to reason in an impermissible manner on the basis of passages in the applicant’s cross-examination, resulting in a miscarriage of justice. There is also an application for an extension of time within which to appeal.
The applicant was originally charged on one information in the District Court, sitting at Port Augusta, with the following:
1.     20 January 2007 - aggravated possessing child pornography;
2.     22 January 2007 - aggravated possessing child pornography;
3.     22 January 2007 - possessing child pornography.
The first two counts concerned pictorial material stored on two mobile telephones, both the property of the applicant. The third charge was based on possession of written material. As the learned trial judge ordered a separate trial in relation to count 3, it need not be further mentioned for present purposes.
On the day preceding the empanelment of the jury counsel for the prosecution informed the judge that a nolle prosequi would be entered in relation to count 2. Notwithstanding that, the court was advised that the prosecution wished to lead, in support of count 1, the evidence of the images which had formed the basis of count 2. Phone number 1, which was the subject of count 1, had stored on it the following images:
1.     (a)     non-pornographic images (such as family photographs);
(b)    pornographic images said to be from a registered Australian publication, but containing no images of women’s vaginas;
(c)    pornographic images which were said to have the appearance of being child pornography, but which were said to be from a registered Australian publication, namely Australian Rosie and therefore, presumably, not child pornography;
(d)    two pornographic images of the vagina of the partner of the applicant;
(e)    adult pornographic images from an unknown source, but not including images of vaginas;
(f)     pornographic images of a child, the subject of the charges.
The applicant admitted storing the images referred to in (a) to (d) above in the memory of this phone but denied any knowledge of the images referred to in (e) and (f) above.
Phone number 2, on which count 2 had been based, contained the following images:
2.(a) non-pornographic images (such as family photographs); and
(b) the same pornographic images having the appearance of being child pornography, from Australian Rosie referred to in 1(c) above.
Before the trial judge counsel for the applicant sought to have excluded any evidence of the contents of phone number 2 and also the material from Australian Rosie located on phone number 1. Counsel argued that there was prejudice associated with those images, since they had the appearance of being child pornography, even though they were from a registered publication. Defence counsel argued that any probative value which such evidence had was outweighed by its prejudicial effect. It was put to the judge by the prosecutor that all the evidence from both phones was relevant to show that the applicant knew of the presence of all the images in both phones, that he knew how to store such images in his phones and that he purposefully kept such images in that way. The judge upheld the objection and ruled inadmissible all the evidence relating to phone number 2, as well as the images from Australian Rosie on phone number 1.
The prosecution case was that phone number 1 was not found in the applicant’s possession, but rather in the bottle shop area of the Westlands Hotel in Whyalla on 20 January 2007. It was not in dispute that the applicant told police on the occasion of their visit to his home on 22 January that the telephone belonged to him and had been lost at that hotel two days earlier.
The applicant gave evidence before the jury. Of the images located on phone number 1, he admitted knowledge of the presence on the phone of all but the child pornography the subject of the charge, and the adult pornography from an unknown source, that is, 1(e) and 1(f). He said he was unable to account for the presence of those images in the memory of his phone.
As would be expected, the applicant was asked in detail in cross-examination about all the images on the first phone which were admitted into evidence. As mentioned, among the images stored in that mobile phone were two photographs which the applicant said were of his partner’s vagina. They were labelled to that effect. Counsel for the prosecution asked why it was necessary to label those photographs in that way if he only had two photographs of vaginas on his phone. Counsel suggested the reason must be to differentiate them from other photographs of vaginas also on his phone. The applicant was unable to provide a reason, but denied that his purpose was to distinguish those two photographs from other photographs of vaginas stored on the telephone. There was no objection to that cross-examination.
In his summing up the trial judge referred to and reiterated the force of those questions.
The grounds of appeal which the applicant seeks to agitate complain of the trial judge’s references to this evidence and prosecution argument based upon it. As I understand what is put to me, it is that since an exculpatory answer to the questions of the prosecutor might involve reference to the Australian Rosie material, the contents of which had been excluded, the line of questioning and, more particularly, the judge’s directions upon the evidence, left the applicant in a position whereby he was prejudiced. That prejudice, it is said, arose because had that material been before the jury, the applicant might have answered the questions by reference to it. He might have said that he labelled his partner’s photographs to distinguish them from the Australian Rosie photographs.
This argument needs to be considered in light of the relevant passages of cross-examination of the applicant.
Q.Photo 98 we have mentioned, that’s [your partner’s] vagina.
A.Yes, it is.
Q.You actually marked that with a heading, didn’t you, or a title.
A.98? Yes, I did.
Q.Read that out for us.
A.‘[My partner’s vagina]’.
Q.Why did you put that title on that photo.
A.I don’t know. I couldn’t tell you specifically why, except that’s a picture of what it is.
Q.You didn’t need to label it. If you only had two photos of vaginas on your phone, why did you need to label that that was [your partner’s vagina].
A.I didn’t need to label it, but I did.
Q.But you can’t give us any reason for why you labelled it.
A.No, I can’t.
Q.It wasn’t to differentiate it from other photos of vaginas on your phone.
A.No, it wasn’t.
Q.While we’re on that, photo 92, you also labelled.
A.Yes.
Q.What does that label say.
A.‘[My partner’s] puss’.
Q.Why did you label that photo.
A.Again, I didn’t be able to tell you.
It is also necessary to set out the judge’s directions on the point.
90He then spoke of the labels that he had placed on the two photographs of his partner’s vagina. He was asked why he felt it necessary to put those labels on the two photographs if there were no other photographs of vaginas on his phone. He said he had no need to label them, but he had just done it. He had not done it, he said, to differentiate them from any other photographs of vaginas. He agreed that he knew how to write labels. He otherwise explained how various of the family photographs had come into being and how they were used.
…
103Further, said Mr Crowe, you might consider why the accused would find it necessary or appropriate to not only photograph his wife’s vagina, but to keep it on the phone and then put a specific label identifying it as her vagina. Why would he need to do that, Mr Crowe said, if it was the only such photograph he had there?
At the conclusion of the summing up counsel for the applicant raised this topic with the trial judge. He complained that the summing up had gone further than the questions of the prosecuting counsel and had invited the jury, not only to consider the evidence as bearing on the applicant’s technical ability to label photographs, but also to demonstrate his knowledge of other photographs of vaginas in the phone’s memory. During discussion on the matter the judge invited the defence counsel to reopen his case so as to enable the applicant to give a more comprehensive answer to the questions, if appropriate. Defence counsel declined the invitation and applied for a mistrial. As is apparent, the application was refused. Defence counsel did not seek any further directions, putting the view that they would be of no assistance in curing the prejudice.
In my view these grounds of appeal are without merit. The questions asked by counsel for the prosecution were perfectly proper. They directly concerned the images on the mobile phone the subject of count 1 and the applicant’s storing and labelling of them. If responsively answering those questions involved the applicant revealing a matter which was either unlawful or discreditable to him, then the applicant cannot complain about that. Sometimes it is necessary for an accused person to refer to discreditable matters in explaining his conduct in relation to an alleged offence. R v Fricker (1986) 42 SASR 436 at 438-440 provides an example of such a situation. Had the applicant made reference to the Australian Rosie material stored on that telephone, then any prejudice which arose could have been cured by a direction of the trial judge. The fact that there was no objection is highly relevant. Counsel and his client are bound by the course of the trial.
Furthermore, I do not agree that the summing up took the matter any further than the cross-examination itself. As Ms McDonald, for the respondent, points out, even without the cross-examination and the references to it in the summing up, the jury would have been perfectly entitled to reason in the way the judge invited. It is all very well for counsel to reach agreement between them as to how certain evidence will be used – as apparently happened here – but such an agreement in no way impedes the judge and certainly has no impact on the jury, who may use evidence before it in any appropriate manner, subject to any direction of the judge.
A further relevant factor is that the answers given by the applicant in evidence in no way suggest that he was, in fact, impeded in answering these questions by reason of the exclusion of the Australian Rosie material. His position is stated quite clearly in the answers I have set out. There is nothing before me to show that he would have answered in a different manner had the excluded material been before the court. Indeed, counsel did not claim to be in possession of instructions to the effect that his client was impeded.
After hearing argument in support of this application and the respondent’s argument as well, I gave counsel opportunity to provide his client’s affidavit on this topic. None was forthcoming. In these circumstances the suggestion of prejudice is without basis.
I would refuse permission to appeal on these grounds.
Before leaving this matter I would add this. With great respect to the learned trial judge, my view is that the evidence of the Australian Rosie images and the contents of the second mobile phone were relevant and admissible in relation to the trial on count 1 and should not have been excluded from that trial. In my respectful opinion a judge should hesitate long before excluding any part of the evidence coming from a particular exhibit. To do so may well give the jury a distorted view of what remains. It may rob what remains of context and weight. It is particularly difficult for trial judges to appreciate at the outset of a trial the various ways in which aspects of the evidence may achieve prominence. These matters are always clearer in hindsight and indeed, I notice that in the course of argument following the summing up, the judge expressed some misgivings about his earlier ruling. The jury would have been assisted by knowledge that images, both innocent and lewd, were common to both telephones.
Accordingly, the application for permission to appeal is refused.
The application for permission to appeal was filed some seven weeks after the date of conviction. No adequate material explaining the delay was filed. In any event, since the application is to be dismissed as unmeritorious, it is appropriate to refuse to extend time.
The orders will be:
1. permission to appeal is refused;
2. an extension of time in which to appeal is refused.