R v Matthews
[2019] SADC 120
•27 August 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MATTHEWS
Criminal Trial by Judge Alone
[2019] SADC 120
Reasons for the Verdicts of His Honour Judge Chivell
27 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Accused charged with four counts of possessing child exploitation material (counts 1 and 3 aggravated; counts 2 and 4 basic) arising from the discovery of material found on his iPad and on the desktop personal computer he used at his workplace – whether proof beyond reasonable doubt that the accused was knowingly in possession of the material.
Verdicts: Not guilty on count 1; Guilty on counts 2, 3 and 4.
Criminal Law Consolidation Act 1935 (SA) s 62, s 63A; Juries Act 1927 (SA) s 7, referred to.
R v Baftiroski [2018] SASCFC 83, considered.
R v MATTHEWS
[2019] SADC 120The Charges
James Keith Matthews is presented on an information alleging two counts of aggravated possessing child exploitation material (counts 1 and 3) and two counts of possessing child exploitation material (counts 2 and 4), contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA). Counts 1 and 3 are the aggravated form of the offence on the basis that it is alleged that Mr Matthews committed the offences knowing that the child depicted in the material was under the age of 14 years.
Counts 1 and 2 on the information relate to material stored on a desktop personal computer, or PC, seized by police, whilst counts 3 and 4 relate to images stored on an iPad seized by police.
During the trial, counsel for the Director of Public Prosecutions conceded that there is no evidence that there were any images which would give rise to the aggravated offence on the desktop PC.[1] Accordingly, my verdict on count 1 is ‘not guilty’.
[1] T 26.
Mr Matthews elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927 (SA). Mr Edward Stratton-Smith appeared for the Director of Public Prosecutions and Mr Matthews was represented by Mr Justin Wickens.
Issues
It is uncontentious that in early 2017, Mr Matthews was employed as a supervisor at solar installations company ‘Suntrak Solar’. It is the prosecution case that on 5 January 2017, the owner and director of the company, Mr Jason Edwards, was undertaking an update of the software installed on all desktop computers held at the premises. While undertaking this process on the computer used by Mr Matthews, he discovered files containing child exploitation material. Police attended at the premises on 6 January 2017. A number of photographs on the computer depicting children, and pornographic in nature, were identified by police. These images are the subject of counts 1 and 2 on the information. Police subsequently searched Mr Matthews’ residence. A number of electronic items, including an iPad, USB sticks and computer towers, were seized and analysed. Further child exploitation material was located on the iPad. These images are the subject of counts 3 and 4 on the information.
Much of the evidence in this trial related to how the child pornography may have been deposited on the electronic devices. There is no dispute that child exploitation material was downloaded onto the desktop computer used by Mr Matthews in his workplace, and onto his iPad.[2] The question is whether the prosecution has proved beyond reasonable doubt that Mr Matthews was knowingly in possession of that material.
[2] See defence counsel’s address at T 199.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.
However, I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence – he is to be regarded as innocent unless and until his guilt has been proven by the prosecution beyond reasonable doubt.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·The accused is under no obligation to give evidence. If he does not, no adverse inference may be drawn against him. If he does, he does not undertake any onus to prove or explain anything. That remains with the prosecution. His evidence is not to be discounted merely because he is the accused. That would deny him the presumption of innocence. His evidence should be assessed in the same way as that of the other witnesses.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Every element of each offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is not guilty.
·Mr Matthews is charged with four separate counts and each count must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other counts.
Circumstantial Evidence
The prosecution case in respect of each of the charged offences is circumstantial in nature.
I have reminded myself that the assessment of circumstantial evidence involves a consideration of each item of circumstantial evidence, and then an assessment of the totality of that evidence. Items which considered alone might have only slight probative value, may achieve greater significance when viewed in combination with other items of circumstantial evidence. An item, when considered alone, might be explained by coincidence, but when considered with other items of circumstantial evidence, such an explanation may be less satisfactory.
A conclusion of guilt beyond reasonable doubt may only be reached by circumstantial evidence if guilt is the only rational inference to be drawn from it. If a rational inference consistent with innocence is open on the evidence, then the prosecution has failed to prove its case beyond reasonable doubt, and the appropriate verdict is not guilty.
It is the defence position that there is a rational inference to be drawn from the evidence, which the prosecution has failed to disprove beyond reasonable doubt, that Mr Matthews was not the person responsible for downloading the pornographic material onto his iPad and workplace computer. Such an inference supports Mr Matthews’ evidence that he was not aware of the presence of the material on those devices, and therefore he was not knowingly in possession of the material. The central issue in the trial is whether this contention is correct. If it is, Mr Matthew is entitled to an acquittal of the charges.
Elements of the Offence
The elements of the offence of possession of child exploitation material are outlined in s 63A of the Criminal Law Consolidation Act 1935 (‘the Act’) as follows:
(1) A person who—
(a) is in possession of child exploitation material knowing of its pornographic nature; or
(b) intending to obtain access to child exploitation material, obtains access to child exploitation material or takes a step towards obtaining access to child exploitation material,
is guilty of an offence.
‘Child exploitation material’ is defined in s 62 of the Act to mean material:
(a) that—
(i) describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(ii) consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; and
(b) that is of a pornographic nature.
The images extracted from the relevant exhibits contain images of children under the age of 17 years and the bodily parts of the children, thus fulfilling the requirements of sub-paragraph (a) of the definition.
In assessing whether the images are ‘of a pornographic nature’, it is necessary to consider the definition of ‘pornographic nature’ in s 62 of the Act:
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.
As I have already mentioned, there is no dispute that the images described earlier constituted child exploitation material. The issue in this case is whether Mr Matthews was in possession of the child exploitation material.
Being in possession means having the power and intention to exercise control over something to the exclusion of all others (save for a joint possessor). The notions of power and intention to exercise control necessarily imply knowledge of the existence of the material in question.[3]
[3] R v Baftiroski [2018] SASCFC 83 at [30], per Nicholson J (Kourakis CJ and Parker J agreeing).
It is Mr Matthews’ case that he did not know of the presence of the child exploitation material on the two electronic devices in question. So the question before me is whether the prosecution has proved beyond reasonable doubt that he did have such knowledge.
The Evidence
The prosecution called evidence from the following witnesses:
·Mr Jason Edwards;
·Detective Brevet Sergeant Karla Debreceni;
·Senior Constable First Class Grant Jennings;
·Detective Senior Constable First Class Nathan Shepherd;
·Ms Elizabeth Davison; and
·Ms Zoe Blundell.
Mr Matthews elected to give evidence but called no other witnesses.
The Prosecution Case
Mr Jason Edwards
Mr Edwards said that in late 2016 and early 2017, he was the owner and director of Suntrak Solar, a business which sold and installed solar energy equipment. At all material times, Mr Matthews was an employee of the company. He was employed in a supervisory capacity; he had his own office in which there was a personal computer.
Mr Edwards gave evidence that at some time before 5 January 2017, he commenced a process of re-formatting the operating systems of all computers used in the business. This was done by backing up each computer’s files onto a separate hard drive, re-formatting the operating system on each device and restoring the data to the folders.
While undertaking this process on the computer in Mr Matthews’ office on 5 January 2017, Mr Edwards identified a folder stored on the computer’s desktop labelled ‘IPAD’. This contained a significant amount of data. He opened the folder and noticed that it contained pornographic material.
Upon discovering the pornographic material, he became concerned by the ages of the people depicted in the photographs. He abandoned the operating system upgrade and left work for the day.
He arrived at work at approximately 6 a.m. the next morning, 6 January 2017. He noticed evidence that somebody had attended the premises overnight. CCTV footage showed that Mr Matthews had attended the premises in the early hours of that morning. Mr Edwards checked Mr Matthews’ computer again, and noticed that the IPAD folder contained more material than it had contained the previous evening.
Mr Edwards sought counsel from a local police officer, Mr Jason Crocker, with whom he had a friendly relationship. Mr Crocker perused the files, and reported the matter to South Australia Police.
Mr Edwards said that the computer seized from his premises by police was in the office occupied by Mr Matthews. There was no apparent reason for any other employee in the organisation to use Mr Matthews’ computer. He conceded in cross-examination that regardless of whether other employees in the organisation were permitted to operate the computer in Mr Matthews’ office, it is possible that this occurred.
The prosecution submitted that the fact that the computer seized from Suntrak Solar was operated by Mr Matthews in his supervisory role at the company, is a piece of circumstantial evidence that Mr Matthews exercised control over the desktop computer. This circumstantial evidence speaks to Mr Matthews’ awareness of the presence of child exploitation material on his work device, and an intention to exercise control over it.
Detective Brevet Sergeant Karla Debreceni
Detective Brevet Sergeant Debreceni gave uncontroversial evidence as to the search of Mr Matthews’ premises, and as to the obtaining of photographs and exhibits.
Detective Debreceni was the designated exhibits officer for the search. She received and recorded exhibits found during the search. These included:
·an iPad found on a television cabinet in the lounge room;[4]
·four internal hard drives and a dock found on top of a computer tower in the lounge room;[5]
·various USB sticks and electronic equipment.
[4] See Exhibit P2, photos 28, 29.
[5] See Exhibit P2, photo 23.
Senior Constable First Class Grant Jennings
Senior Constable First Class Jennings is a digital evidence investigator stationed at the Electronic Crime Section of South Australia Police. He gave evidence as to the electronic analysis of several devices operated by Mr Matthews. He said that he identified files of interest, made forensically sound copies and categorised these copies in a program called ‘Nuix’. He subsequently provided the forensic copies to the investigating officer, who formed a view about the material, and tagged relevant files for extraction.
Senior Constable Jennings found child exploitation material on:
·the personal computer from Mr Matthews’ office;
·the iPad seized from Mr Matthews’ home;
·one of the four external hard drives in the dock seized from Mr Matthews’ house.
As I have said, the existence of the images on the devices is not an issue in dispute.
Detective Senior Constable First Class Nathan Shepherd
Detective Senior Constable First Class Shepherd was the investigating officer in this case. He gave evidence as to the search, arrest and interview of Mr Matthews.
During Detective Shepherd’s evidence, the images alleged to constitute child exploitation material were admitted into evidence.[6] I viewed the images in a closed court, and heard evidence from Detective Shepherd as to their categorisation.
Desktop PC Seized from Mr Matthews’ Office
[6] Exhibit P10.
Detective Shepherd gave evidence that a photo analysis was carried out regarding the computer seized from Mr Matthews’ office. Approximately 8,000 images were extracted from this computer; 58 images were identified as constituting child exploitation material. The images were distributed amongst folders named ‘Ipad 2’, ‘Ipad 3’, ‘Ipad 4’, ‘Ipad 5’ and ‘Personal Photos’, all of which were subfolders contained within a folder named ‘Personal’.[7]
[7] Exhibit P12.
Detective Shepherd assessed the child exploitation material as being in either category 1 or category 7.
Category 1 child exploitation material is defined as:
Depictions of children with no sexual activity – nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing on genital areas and/or solo urination.[8]
[8] Exhibit D13.
Category 7 is as follows:
Non-illegal child material (believed to form part of a series containing child exploitation material).[9]
[9] Ibid.
Detective Shepherd assigned 15 of the images as category 1 child exploitation material. He assigned another 43 images to category 7.
I reject Mr Stratton-Smith’s submission that category 7 images constitute child exploitation material.[10] The very words of the definition ‘non-illegal child material’ establish the contrary. The clear requirement in s 62 of the Criminal Law Consolidation Act that child exploitation material must be ‘pornographic in nature’ prohibits non-pornographic material being included. I exclude the category 7 images from my consideration of count 2.
[10] T 114.
Relating this evidence to the remaining charge on the information which relates to the images on the desktop computer:
·as to count 2 – basic offence – there were 15 images in category 1.
I accept that the images in category 1 described above constitute child exploitation material.
iPad seized from Mr Matthews’ home
Detective Shepherd said that he conducted a random review of the files which had been located on the iPad seized by police. He viewed about 1,000 images manually, and categorised 44 images as constituting child exploitation material. He considered that 41 of the images constituted category 1 child exploitation material, whilst the remaining three images constituted category 3 child exploitation material.
I have already given the definition of category 1. Category 3 child exploitation material is defined as follows:
Non-penetrative sexual activity between child(ren) and adult(s). Mutual masturbation and other non-penetrative sexual activity.[11]
[11] Exhibit D13.
Relating this evidence to the particular charges on the information:
·as to count 3 – aggravated offence – there were two images in category 3 and one image in category 1;
·as to count 4 – basic offence – there was one image in category 3 and there were 40 images in category 1.
I accept that the images in categories 1 and 3 described above constitute child exploitation material.
Ms Elizabeth Davison
Ms Elizabeth Davison, an electronic evidence specialist, gave evidence as to the analysis of each piece of equipment seized by police. She spoke about the various operating systems on each device and synchronisation between devices. She said that files located on Mr Matthews’ personal desktop computer were also located on his iPad.
Ms Davison gave further evidence as to the files located on Mr Matthews’ workplace computer, and their various timestamps. She said that the images located within ‘Ipad 2’, ‘Ipad 3’ ‘Ipad 4’ and ‘Ipad 5’ were created on 26 May 2016,[12] while ‘Ipad 7’, ‘Ipad 8’ and ‘Ipad 9’ were created on 24 December 2016.[13]. None of folders ‘Ipad 7’, ‘Ipad 8’ or ‘Ipad 9’ contained child exploitation material. She gave evidence that the relevant timestamps were indicative of a bulk copy process, whereby a large number of files was selected and copied from one device to the other at the same time.[14]
[12] T 100.
[13] T 101.
[14] T 100.
Constable Zoe Blundell
Constable Zoe Blundell gave evidence as to her attendance at Suntrak Solar, the seizure of Mr Matthews’ workplace computer and her review of CCTV footage from the premises.
The Defence Case
Mr Matthews elected to give evidence. I remind myself that:
·Mr Matthews was under no obligation to give evidence. He had the right to remain silent. No adverse inferences could have been drawn against him by virtue of his exercise of that right.
·The defence evidence should be assessed in the same way as the evidence of other witnesses in the case – in particular, the presumption of innocence applies when assessing Mr Matthews’ evidence.
·In electing to give evidence, Mr Matthews assumed no onus of proof. He was under no obligation to prove or explain or clarify anything. The onus to prove its case beyond reasonable doubt remained at all times on the prosecution.
Mr Matthews gave evidence that the workplace computer seized by police had been installed in his office. He used it to process incoming and outgoing email and to update Suntrak Solar’s Google Drive with details of solar installations carried out. He said that his colleagues were aware of the password on his workplace computer, that it was permanently switched on and that it was used occasionally by the apprentice and the electrician. He gave evidence that he would regularly attend at the office outside of working hours and would operate the computer at those times. He said that the iPad seized by police was often carried in his work vehicle, and that all employees at Suntrak Solar had access to this device.
Mr Matthews gave evidence that he created a ‘Personal’ folder on his workplace computer for the purpose of storing personal files transferred over from his iPad. He conceded that this contained adult pornography among other personal files which were contained within several subfolders. He denied ever downloading child exploitation material onto his workplace computer or his iPad.
Mr Matthews gave evidence about Suntrak Solar as at January 2017. He said that Mr Edwards was under-paying his employees, both as to wages and entitlements, and was failing to make employee superannuation contributions. He said that he resigned on one occasion due to issues with the company, but agreed to continue with his employment after a discussion with Mr Edwards in which he tried to have these issues addressed.
Mr Wickens submitted that the prosecution had failed to prove beyond reasonable doubt that there is no reasonable inference consistent with innocence available on the evidence; in particular, that there is no reasonable possibility that someone other than Mr Matthews put the child exploitation material on the iPad and that he unknowingly transferred that material to his desktop PC at work.
There is no doubt that Mr Matthews was on the premises at Suntrak Solar sometime after midnight on 6 January 2017,[15] and there is no doubt that he was operating the PC while he was there. He admitted as much.[16]
[15] T 11.
[16] T 164.
Mr Matthews admitted that he created the folder named ‘Personal’ and the ‘Ipad’ folders on the work PC,[17] although he was vague about how many, saying he created ‘at least seven’. He admitted that he used those folders to store photos transferred from his iPad to the desktop.[18] He then put the work-related photos in the work-related ‘Google Drive’ of the business. That required sorting the work-related photos from the personal photos.[19]
[17] T 159, T 175.
[18] T 175.
[19] T 175.
Mr Matthews’ evidence in which he denied being responsible for the search terms such as ‘tween model’ and ‘teen model’, scattered among the other searches which he did admit, was completely unconvincing.[20] These terms were all entered on his iPad, not the work computer.
[20] T 177-80.
Mr Matthews also denied that the images were transferred in bulk from his iPad to the desktop PC on the dates referred to by Ms Davison.[21] I also found his evidence about this completely unconvincing.[22]
[21] 26 May, 27 August, 24 December 2016.
[22] T 181-84.
Mr Wickens submitted that Mr Edwards lied when he said that the folder ‘Ipad 9’ was created overnight on 5-6 January 2017.[23] On his evidence, Mr Edwards did not look at ‘Ipad 9’ the next morning. There was no child exploitation material in that folder anyway. It makes no sense to suggest that Mr Edwards was lying in order to incriminate Mr Matthews if there was nothing incriminating in that folder.
[23] T 193.
As to whether Mr Edwards looked at ‘Ipad 1’, he said that he first noticed the images which caused him concern in the evening of 5 January 2017. He said he opened a folder called ‘IPAD’. He said it was ‘quite large’. He was not asked in examination, and did not say, which of the subfolders contained the images referred to.[24] He did not refer to ‘Ipad 9’ at any stage in his evidence.
[24] T 10.
The following morning, at about 6 a.m., Mr Edwards came to work. He saw from the CCTV system that Mr Matthews had been there the night before, ‘after midnight, I believe’.[25] He said that when he checked the ‘IPAD’ folder again, there was ‘more material than there was the night before’.[26] He did not say that the extra material was in ‘Ipad 9’ or in any other folder.
[25] T 11.
[26] T 12.
In cross-examination, Mr Edwards was asked whether he opened another folder ‘inside of (the ‘IPAD’ folder) and he said, ‘I believe so, yes’.[27] He was later asked if he opened a folder called ‘Ipad 1’ and he replied, ‘I’m not sure’.[28] In further cross-examination, Mr Edwards acknowledged that he may have referred to ‘Ipad 1’ in a statement given to the police shortly after the incident.[29]
[27] T 67.
[28] Ibid.
[29] T 68-70.
On the prosecution evidence, there was no child exploitation material in the folder, or subfolder, ‘Ipad 1’. The following passage then occurred:[30]
[30] T 73-74.
Q.What I suggest to you is that there was no material in iPad1 which falls into any category of child pornography. What do you say to that.
A.Well, what was I looking at?
Q.What I suggest to you is that you weren't looking at child pornography on that computer in the folder iPad1. What do you say to that.
A.I saw pictures within the folder I opened which I assume was called iPad1 or iPad, I don't know if it was iPad1 or iPad, I didn't take a lot of notice or add a number and what I saw I thought wasn't right. I was concerned if it was right or wrong.
Q.When your friend came later in the day, the police officer -
HIS HONOUR: Before you proceed, Mr Wickens. Do you say iPad1 is a subfolder to iPad?
MR WICKENS: Yes.
HIS HONOUR: Are you saying there is no child pornography in iPad, or iPad1?
MR WICKENS: In iPad1.
HIS HONOUR
Q.Do you understand that question.
A.Yes.
XXN
Q.There is a folder called iPad that you look at.
A.Yes.
Q.And there aren't any photographs or any thumbnails within that folder itself.
A.No, that has subfolders, it's the main directory then you've got all these subdirectories I guess you could call them.
Q.How it looks on the screen when you open the folder iPad is there is a whole pile of pictures of manila folders.
A.Yes.
Q.With names next to them.
A.Yes, exactly.
Q.Saying iPad1 or iPad 2.
A.Or new folder or whatever you want to call it, yes.
Q.It is in iPad1 that you accept don't you that you suggested to police that you saw these images.
A.I was referring to the whole iPad set-up, I wasn't referring to iPad1 or iPad 27, whatever you want to call it.
I reject Mr Wickens’ submission that Mr Edwards was lying in that passage. There is no dispute by the defence that there was child exploitation material on the computer Mr Edwards was looking at. It is clear that Mr Edwards saw child exploitation material there, and called the police officer he knew because he saw it. If he planted the child exploitation material there himself, there was no utility in lying about which subfolder he was looking at. He would have known which folder it was in because he put it there. He would hardly then deliberately lie to the police about which subfolder it was in.
I have no difficulty in accepting that when Mr Edwards was speaking to the police, if he did say ‘Ipad 1’ to the police officer taking the statement, it was an innocent error on his part.
Mr Wickens submitted that Mr Edwards had a motive to incriminate Mr Matthews in that the business was in trouble and the employees were unhappy that they were not receiving their entitlements. Mr Matthews was the ‘noisy employee who needs to be silenced’.[31]
[31] T 195.
Mr Edwards denied this, saying that Mr Matthews was a ‘valued employee’. He also said that Mr Matthews’ departure contributed to the demise of the business.[32]
[32] T 84.
Mr Matthews even went so far as to suggest that one of the photographs was of Mr Edwards’ niece, and that the photo had originally been on Mr Edwards’ computer.[33] This was clearly an attempt by Mr Matthews to corroborate his allegation that Mr Edwards had planted the child exploitation material on his computer. This is a very serious allegation which Mr Edwards emphatically denied.
[33] T 162.
In any event, I fail to see how the financial plight of the business would motivate Mr Edwards to deliberately incriminate Mr Matthews. Mr Matthews was clearly a senior employee who contributed much to the business. He was still working at the business at night-time during his holiday break in December-January 2017.[34] Mr Edwards did not evince any intention to get rid of Mr Matthews. Mr Matthews had a number of grievances, both his own and on behalf of the other employees, but I had the impression that Mr Edwards was trying to keep the business going, and getting rid of Mr Matthews would have made that even more difficult.
[34] T 144.
Mr Matthews admitted that there was ‘adult’ pornography on his desktop PC at work which he had put there. It had come both from his personal iPad and from searching on the PC using a browser. The child exploitation material was contained within the files entitled ‘Personal’, ‘Ipad 2’, ‘Ipad 3’, ‘Ipad 4’ and ‘Ipad 5’. Mr Matthews had transferred all of these files to the desktop PC at work. The presence of the child exploitation material throughout these files is a piece of strong circumstantial evidence that Mr Matthews was aware that the child exploitation material was there. It is also strong circumstantial evidence that none of Mr Matthews’ co-employees or Mr Edwards would have created it, since the iPad files all came from Mr Matthews’ iPad, not from the desktop PC.
There is no evidence that Mr Edwards had access to Mr Matthews’ iPad, although the evidence is that Mr Matthews left it in his car, and it is conceivable that he did have such access. There is some evidence that other employees used it on worksites to take photographs etc., but it is not credible that the apprentices or trade assistants or other tradesmen would download child exploitation material onto Mr Matthews’ personal iPad, without his knowledge, so that those images would be scattered among his personal folders, and then be transferred to his work PC.
There is also strong circumstantial evidence that Mr Matthews was aware of the contents of those folders. The child exploitation material was stored among other personal photographs. Mr Matthews said that there would be a sorting process before he transferred work-related material to the Google Drive. There is a very strong inference that Mr Matthews would have seen those images on several occasions as he dealt with this material.
The evidence of Ms Davison is strong circumstantial evidence that the images in the iPad folders were transferred to the desktop PC in bulk rather than separately. This gives rise to a strong inference against the suggestion that the child exploitation material was ‘planted’ in those folders, one at a time.
The records of the many bookmarks and searches contained in Exhibit P9 also contradict the suggestion that this material was planted. It is difficult to conceive how another person would ‘plant’ so much material into Mr Matthews’ iPad – the opportunities to do so would have been limited, whereas Mr Matthews had unlimited time to use his equipment in that way.
Conclusion
Having regard to the strength of the circumstantial evidence, I conclude that there is no reasonable possibility that anyone other than Mr Matthews downloaded the child exploitation material onto his iPad, and that Mr Matthews then ‘unknowingly’ transferred it to his desktop PC.
I find that I am satisfied beyond reasonable doubt that Mr Matthews was knowingly in possession of the child exploitation material.
I find counts 2, 3 and 4 proved beyond reasonable doubt.
My verdicts are:
Count 1 – Not guilty
Count 2 – Guilty
Count 3 – Guilty
Count 4 – Guilty
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