R v Molloy - [2008] SASC 352

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v MOLLOY
[2008] SASC 352
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)
15 December 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE
Appeal against conviction - appellant convicted in the District Court of the offence of using a carriage service to make child pornography available - in summing up to the jury the learned trial judge suggested various routes by which the jury may arrive at a verdict of guilty or not guilty - whether the trial judge erred in directing the jury with respect to the onus of proof - whether the appellant's defence was adequately and accurately put to the jury - whether the appellant lost the chance of an acquittal.
Held: the trial judge's summing up to the jury adequately identified the facts and critical legal issues which arose during the trial - the trial judge clearly and accurately summarised the defence evidence and the defence case - the summing up as a whole would not have led the jury into error or any misunderstanding as to the onus of proof - appeal dismissed.
Criminal Code 1995 (Cth) - s 474.19(1)(a)(iv), s 474.19(1)(a)(i), referred to.
R v Smith [SASC] SASC 135, applied.
Murray v The Queen (2002) 211 CLR 193; R v Briske [2007] SASC 314; R v Woods [2008] SASC 335; R v Calides (1983) 34 SASR 355, discussed.

R v MOLLOY
[2008] SASC 352
Court of Criminal Appeal: Anderson, White and Kelly JJ

ANDERSON J. I would dismiss the appeal essentially for the reasons given by Kelly J.
I agree with the submission in reply from the Commonwealth Director of Public Prosecutions as to the relevance of the decision in R v Woods [2008] SASC 335 as relied on by the appellant in its supplementary submissions.
In particular I agree that Doyle CJ in R v Smith [2008] SASC 135 at [12] and [13] has accurately stated the requirement of a summing up on proof beyond reasonable doubt, which applies in this matter:
Doyle CJ stated:
[12]Mr White, counsel for Mr Smith on appeal, submits that the Judge was required to tell the jury that even if they were to reject Mr Smith’s evidence, that was not enough to support a guilty verdict. The Judge should have told the jury that they had to go further and accept the evidence of J as proof beyond reasonable doubt.
[13]The suggested further direction is a correct statement of the law. In some cases the circumstances might call for a direction along these lines. But it cannot be said that this further direction will always be necessary, nor was it necessary here. The ultimate question is whether the Judge adequately brought home to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Molloy

Details

AGLC: R v Molloy [2008] SASC 352
Case: [2008] SASC 352
Decision Date: 15 December 2008

CaseChat Overview and Summary

In the case of R v Molloy, the appellant was convicted by the District Court of using a carriage service to make child pornography available. The conviction was challenged on appeal, focusing on the trial judge's summing up to the jury. The primary issues for determination were whether the trial judge erred in directing the jury with respect to the onus of proof, whether the appellant's defence was adequately and accurately presented to the jury, and whether the appellant lost the chance of an acquittal due to any misdirection or non-direction by the trial judge.

The court considered the arguments advanced by the appellant's counsel, who contended that the trial judge's summing up contained errors and misdirections that could have misled the jury. Specifically, counsel argued that the trial judge's comments unduly focused on the appellant's credibility and suggested various routes by which the jury could arrive at a verdict of guilty or not guilty, potentially skewing the jury's understanding of the onus of proof. However, the court found that the trial judge's summing up, when read as a whole, adequately identified the facts and critical legal issues that arose during the trial. The trial judge clearly and accurately summarised the defence evidence and the defence case, ensuring that the jury was properly directed on the legal principles relevant to the case.

After thorough analysis, the court concluded that the trial judge's summing up was adequate and did not lead the jury into error or misunderstanding regarding the onus of proof. The court rejected the appellant's submissions, noting that isolated passages in a summing up should not be criticised without considering the context in which they were expressed. The court found no basis to accept the appellant's claims of misdirection or non-direction by the trial judge.

Therefore, the appeal was dismissed. The court upheld the conviction, confirming that the trial judge's summing up to the jury was sufficient and did not prejudice the appellant's right to a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

Before dealing with the arguments advanced on this appeal, it is helpful to summarise the relevant facts. Background On 19 December 2006, police went to the appellant’s home and seized his personal computer. An analysis of that computer revealed that it had on it a program known as an eMule program. That program enables files within it to be shared with other users. On 19 December 2006, an analysis of the computer showed that of 239 files shared, 43 were child pornography material. Those 43 files were the subject of the charge of using a carriage service to make child pornography available. The essence of the prosecution case was that the appellant, by operating the file sharing eMule program, was intentionally making those files available to others and at the time he was, at the very least, aware of the substantial risk that there was child pornography material on the file. The prosecution invited the jury to draw that inference from all of those circumstances, including the nature of the program and the manner in which the appellant had used it. At the time the police attended the appellant’s home on 19 December 2006, the computer was on, connected to the Internet and the eMule program was running. At the time there was no dispute that the appellant was an experienced computer user. One of the exhibits tendered at the trial was a program designed by the appellant. By virtue of the set-up of the file-sharing eMule program, the fact that it was operating meant that the appellant was making the files in his ‘shared files’ available to others. At the time when the police attended, the appellant was therefore making 43 child pornography files available to other users of the eMule program. Analysis of the computer revealed that the appellant had searched on the eMule program using terms such as ‘10yo’, ‘11yo’, ‘12yo’, ‘pre-teen’, ‘Pthc’, ‘Ptsc’, ‘young candid video’, etc. It was the prosecution case that the appellant must have been at least aware of the substantial risk that there was child pornography material on his files because he was in the habit of searching for and downloading child pornography, amongst other material. There was evidence before the jury that the eMule program is in fact quite simple to use. It is a program used to download video files over the Internet. When that program is loaded on a computer, which is connected to the Internet, the eMule user is connected to all other users who are similarly operating the program and connected to the Internet. eMule users can then copy each other’s files. That occurs by the user searching on a term or a keyword and the computer will then list those available files stored in the memory of other eMule users’ computers that correspond to the search term or keyword used. The user can then select a title or titles from that list, which results in the file being downloaded via the Internet on to their own computer. There was some further evidence that when the eMule program is opened, there are several tabs which can open different pages of the program. To initiate a search, the user selects the search tab and the search page opens and the user enters a search term. Results of the search are listed on that page and a file can be selected for downloading. The evidence was that a file may take some time to compile. Indeed, a larger file may take many days. The user can then monitor the progress of the file as it is downloading by opening the transfer tab. Once the download is complete, the program automatically sends the file into the shared files folder. To view the completed file, the user opens the ‘shared files’ tab and the title of the downloaded file will appear on that page. In the case of a video file, that video may be played by double-clicking the title name as it appears on the ‘shared file’ page.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J (dissent) WHITE J (dissent) KELLY J (dissent)

Counsel for the appellant also made the point, albeit faintly, that the trial judge’s comments in paragraph 34 of the summing up unduly focussed on the appellant’s credibility compounding the effect of what was said to be the trial judge’s misdirections. In that paragraph the trial judge advised the jury that the appellant’s credibility as a witness was challenged and remained in dispute. Once again when that comment is read in the context of the preceding direction which was a general direction about the assessment of witnesses and how the jury might approach that task, it can be seen that the trial judge’s comment was a statement of the obvious in an appropriate context. The appellant’s complaint about this sentence in the summing up illustrates the difficulty in subjecting to criticism isolated passages in a summing up divorced from the context in which the trial judge expressed them. For these reasons I cannot accept the appellant’s submissions.Conclusion On the facts here I consider that the trial judge’s summing up to the jury on the facts and legal issues for the jury’s determination was adequate in identifying the critical issues for the jury’s determination. I do not consider that the summing up as a whole would have led the jury into error or any confusion or misunderstanding by them as to the onus of proof. I would dismiss this appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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