R v Morcom - [2015] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MORCOM
[2015] SASCFC 30
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)
27 March 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - OBSCENE, INDECENT OR OBJECTIONABLE PUBLICATIONS OR REPRESENTATIONS - GENERALLY
Application for permission to appeal against convictions.
Gregory Morcom (the applicant) practised as a solicitor from a home office. Police attended there and found images of persons on computer equipment. This material included an image of a naked boy holding his penis and a naked girl touching her nipples kneeling side by side on a bed, and bearing a website address (image 6); an image of a naked girl standing in a gymnasium (image 2); an image of three naked girls standing in a shower (image 5); and three images of various numbers of naked boys and girls standing together at a beach with adults looking on from the background, and bearing a website address (images 1, 3, and 4).
The applicant was convicted by a Supreme Court jury of six counts of possessing child pornography contrary to s 63A, Criminal Law Consolidation Act 1935 (the Act). A single Judge refused permission to appeal against the convictions on the ground that the verdicts of the jury were unreasonable or cannot be supported having regard to the evidence. The applicant now applies to this Court for permission to appeal.
The application raises four questions. First, putting aside the matter of the age or apparent age of the persons depicted, was it open to the jury to find beyond reasonable doubt that the six images were “pornographic” within the meaning of s 62 of the Act? Second, was it open to the jury to find beyond reasonable doubt that images 5 and 6 depicted persons under or apparently under the age of 16 years? Third, was it open to the jury to find beyond reasonable doubt that the applicant was in possession of images 1 to 5? Fourth, was it open to the jury to find beyond reasonable doubt that the last two images were images of persons under or apparently under the age of 16 years?
Held per Peek & Blue JJ (granting permission to appeal but dismissing the appeal):
1. The two limbs of the definition of “child pornography” in ss 62(a) and 62(b) are to be construed objectively by reference to the content and attributes of the subject material and the circumstances of its production and intended use. The subjective intention of the producer of the subject material or of the person in whose possession it is found is irrelevant; the reference to “circumstances of its production and its intended use” in s 63C of the Act does not refer to the purely idiosyncratic intention of an accused person. R v Murdock [2009] SADC 109 disapproved. (at [18], [22]-[27], [42]-[43], [67]-[70]).
2.       Applying the objective test, it was open to the jury to find that images 1 to 6 were each “intended or apparently intended to excite or gratify sexual interest”. (at [72]-[75]).
3.       Although it was not open to the jury to find beyond reasonable doubt that the persons depicted in images 5 and 6 were actually under 16 years old, it was open to the jury to find that they were apparently under 16 years old. (at [77]-[78]).
4.       Accordingly, it was open to the jury to find that images 1 to 6 constituted “child pornography”. (at [78]).
5.       It was open to the jury to draw the inference beyond reasonable doubt from the circumstantial evidence that the applicant was in possession of each of the images. (at [81]-[82]).
6. It was not necessary for the prosecution to prove beyond reasonable doubt that the applicant knew that the persons depicted in each of images 1 to 6 were under or apparently under the age of 16 years. R v Clarke (2008) 100 SASR 363 followed. (at [85]).
7.       Permission to appeal granted but appeal dismissed. (at [87]).
Held per Stanley J (dissenting):
1. The definition of child pornography in s 62 Criminal Law Consolidation Act 1935 (SA) creates two paths to proof, namely, actual intention or apparent intention. (at [119]).
2.       It was open to the jury to be satisfied beyond reasonable doubt that the actual intention of the applicant in possessing the images was to excite or gratify sexual interest. (at [122]-[124]).
3.       In relation to counts 5 and 6, while on an objective evaluation of the evidence of the persons depicted, they might have been under the age of 16 years, it was open to the jury to find that the persons depicted were apparently under the age of 16 years. (at [138]).
4.       The jury, acting reasonably, should have entertained a doubt about the applicant’s knowledge of the existence of the images in counts 1 to 4 in the “JessPhone” folder on his computer and his possession of the image in count 5. (at [156]).
5.       Permission to appeal should be granted on ground 1. The appeal should be allowed, the verdicts on counts 1 to 5 quashed, and verdicts of acquittal entered in respect of each of these counts. The verdict of guilty in relation to count 6 should stand. (at [158]).
Criminal Law Consolidation Act 1935 ss 5, 5AA(1)(e)(i), Pt 3, Div 11A, 62, 62(a), 62(a)(i), 62(a)(ii), 62(b), 63, 63(a), 63(b), 63(b)(i), 63A, 63A(1)(a), 63A(b), 63A(2), 63B, 63C, 63C(1), 63C(2), 63C(3), 353; Classification (Publications, Films and Computer Games) Act 1995 (SA); Criminal Law Consolidation (Child Pornography) Amendment Act 2011 s 3; Controlled Substances Act 1988 ss 4, 33J, 33I(1), 33L(1)(a); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA); Customs Tariff Act 1987 (SA); Drugs Misuse Act 1986 (QLD) s 9, referred to.
R v Clarke (2008) 100 SASR 363, applied.
R v Murdock [2009] SADC 109 disapproved, not followed.
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131; Chinese Food and Wine Supplies Pty Ltd v Collector of Customs (1987) 72 ALR 591; He Kaw Teh v The Queen (1985) 157 CLR 523; Police v Kennedy (1998) 71 SASR 175; Police v Majchrak (2014) 120 SASR 192; Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, discussed.
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Fowler v Padget (1798) 7 TR 509; 101 ER 1103; Times Consultants Pty Ltd v Collector of Customs (Queensland) (1987) 76 ALR 313; M v R (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; R v Bellchambers (2011) 110 SASR 153; R v Dolfen [2011] SASCFC 45; R v Kennedy [2014] SASCFC 24; R v Woods [2011] SASCFC 71; R v Andrews [2010] SASCFC 5; R v Lindsay [2013] SASCFC 95; R v E, DJ [2012] SASCFC 6; R v Percy [2011] SASCFC 158; R v Mattsson [2011] SASCFC 114; R v Hore [2010] SASCFC 60; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Plaintiff M70/2011 v Minister for Immigration and Citizenship and Anor (2011) 244 CLR 144; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; K Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Phillips v Police (1994) 75 A Crim R 480; Vallance v The Queen (1961) 108 CLR 56; R v Khazaal (2012) 246 CLR 601; F, BV v Magistrates Court of South Australia & Anor (2013) 115 SASR 232; Davis v The Queen (1990) 50 A Crim R 55; Tabe v The Queen (2005) 225 CLR 418; Saad v The Queen (1987) 29 A Crim R 20; Sabourne v State of Western Australia [2010] WASCA 242, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"child pornography", "apparent age", "possession", "objective construction"

R v MORCOM
[2015] SASCFC 30
Court of Criminal Appeal: Peek, Blue and Stanley JJ

PEEK and BLUE JJ. Application for permission to appeal against conviction.
The applicant, Gregory Morcom, was convicted by a Supreme Court jury of six counts of possessing child pornography contrary to s 63A, Criminal Law Consolidation Act 1935 (the Act).[1] He now applies for permission to appeal against conviction.[2] The application raises four questions:
1.Putting aside the matter of the age, or apparent age, of the persons depicted in the subject material, was it open to the jury to find beyond reasonable doubt that the six images the subject of the charges were “pornographic” within the meaning of s 62 of the Act?
2.Was it open to the jury to find beyond reasonable doubt that the last two images were images of persons under or apparently under the age of 16 years?
3.Was it open to the jury to find beyond reasonable doubt that the applicant was in possession of the first five images?
4.Was it an element of the offence that the appellant knew that the persons depicted were under or apparently under the age of 16 years?
[1] Four of the counts were alleged to be aggravated, being images of children under the age of 14 years pursuant to s 5AA(1)(e)(i) of the Act. On count 2, the jury found the applicant not guilty of the aggravated charge but guilty of the basic offence of possessing child pornography.
[2] Permission to appeal was refused by a single Judge.
Background
As at 21 October 2011, the applicant was practising as a solicitor from his home, one room being used as an office. On that day, at about 6pm, police officers attended the premises in his absence and conducted a search. Ms Anja Markovic, a year 10 high school student undertaking work experience with the applicant, was then present.
Police officers observed a Toshiba laptop computer in the lounge room and, on the desk in the office, an HP Compaq desktop computer with a WD Elements 1.5 gigabyte external hard drive attached to it and an unconnected unbranded hard drive.
On the Toshiba laptop, there was recorded a user called “Greg”. In the Pictures shortcut, there was a folder entitled “tt” in which were 86 photo files, most being images of persons engaging in sexual activities. One was a JPEG file entitled “10t” being an image of a naked boy holding his penis and naked girl touching her nipples kneeling side by side on a bed; this file was the subject of count 6 (image 6). It bore a website address. It had been created on the laptop’s hard drive on 22 February 2011 and derived from another, unknown, source; it had previously been downloaded from an unknown source, probably the internet, on 21 December 2010 together with a series of other files over 15 days in December 2010.
On the WD hard drive attached to the HP desktop, a user called “GM Law” was recorded. In the My Pictures shortcut, there were nine folders, one entitled “Porn” and another entitled “JessPhone”. In the JessPhone folder were 16 photo files. The earliest file in that folder was a JPEG file entitled “3” containing an image of three naked girls in a shower; this file was the subject of count 5 (image 5). The same JPEG file also appeared in the Porn folder of the WD hard drive and the Porn folder of the unbranded hard drive; it had been downloaded into the JessPhone folder from an unknown external source on 25 March 2011 and then within minutes transferred into the Porn folder. Mr Sorrell, an information technology expert called by the applicant, expressed the opinion that the transfer was probably a manual transfer into the Porn folder.
On the WD hard drive in the JessPhone folder, there were also 15 BitMap Graphic (BMP) files. Nine were manifestly innocuous. The balance, images 11 to 16, were:
·a file entitled “untitled” being an image of six naked boys and girls standing in a front row and eight naked adults standing behind them in a back row at a beach;
·a file entitled “yiong2” being an image of a naked boy and girl standing together on what appears to be a diving board;
·a file entitled “yong2” being an image of seven naked boys and girls and one adult standing in a row in the foreground and several adults looking on at a beach and bearing a website address to be referred to as “RB” which was the subject of count 1 (image 1);
·a file entitled “yong4” being an image of a naked girl standing in a gym which was the subject of count 2 (image 2);
·a file entitled “young1” being an image of five naked girls standing in a row in the foreground and several adults looking on at a beach and bearing the website address “RB” which was the subject of count 3 (image 3);
·a file entitled “young3” being an image of eight naked boys and girls standing in a row in the foreground and several adults in a second row or looking on at a beach and bearing the website address “RB” which was the subject of count 4 (image 4).
Data contained in the HP desktop showed that images 11 to 16 had been created on the computer from an unknown external source on 26 July 2011.
The trial
At trial, the prosecution called witnesses including the following.
·Constable Lewis, one of the police officers who attended at the applicant’s premises on 21 October 2011, who gave evidence that there was no indication that there was a female living in the house.
·Dr Simon, an information technology expert, who gave evidence about the creation, modification and location of the relevant files on the various items of computer equipment.
·Dr Tham, a paediatric physician, who gave general evidence about difficulties in assessing the age of a person from his or her appearance or image.
The applicant called the following witnesses.[3]
·Ms Markovic, the year 10 student who undertook work experience in the applicant’s office for a week at the end of September and continued to undertake work in the office up to and after the attendance of the police on 21 October 2011.
·Professor Henneberg, an anatomist, who expressed an opinion about the approximate age of the persons depicted in the images.
·Mr Sorrell, an information technology expert.
[3] The applicant did not himself give evidence.
Are the images “pornographic”?
The first issue is whether (putting aside for the moment the age or apparent age of the persons depicted in the subject material) the evidence was capable of proving beyond reasonable doubt that the six images the subject of the charges were “pornographic” within the meaning of s 62 of the Act?
Introduction
There is a clear distinction between pornography describing, or depicting, only adults as its subject (adult-based pornography) and pornography wholly or partially describing or depicting children as its subject (child-based pornography). Speaking in general and historical terms, possession of adult-based pornography is not usually made the subject of the criminal law,[4] such possession being considered to be within the ambit of legitimate choice by adults.[5]
[4] There are exceptions, such as the possession or dissemination of a publication, film or computer game that has been classified under the Classification (Publications, Films and Computer Games) Act 1995 as a publication for which classification is refused (RC).
[5] The separate question of possession by children of adult-based pornography is not raised here.
In relation to child-based pornography, the history of legislation in this State is traced in detail by Bleby J in Police v Kennedy[6] and by this Court in R v Clarke.[7]If one thing is clear, it is that questions of defining what “child pornography” is, and determining the way in which it should be suppressed, involve very difficult questions of degree and balance. A number of fundamental principles must be borne in mind. One is the protection of children. Another is the principle that the criminal law punishes persons for their deeds, not their thoughts. Yet another is the need to avoid censorship or interference with legal, medical or scientific knowledge or artistic expression.
[6] (1998) 71 SASR 175, 178.
[7] (2008) 100 SASR 363.
The present legislation combines the issues of the nature of pornography and the involvement of children in pornography into a new statutory concept of “child pornography”. As at the date of the offences alleged, the relevant provisions of Part 3 Division 11A of the Act appeared thus:[8]
[8] As from 17 September 2011, the age in the definition of “child” has been increased from 16 to 17 years. See s 3, Criminal Law Consolidation (Child Pornography) Amendment Act 2011.
62—Interpretation
…
“child” means a person under, or apparently under, the age of 16 years;
“child pornography” means material—
(a)     that—
(i)     describes or depicts a child engaging in sexual activity; or
(ii)consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and
(b)     that is intended or apparently intended—
(i)     to excite or gratify sexual interest; or
(ii)to excite or gratify a sadistic or other perverted interest in violence or cruelty;
…
“material” includes—
…
(d)     any photographic, electronic or other information or data from which an image or representation may be produced or reproduced; or
(e)     any film, tape, disc, or other object or system containing any such information or data;
“pornographic nature” of child pornography means the aspects of the material by reason of which it is pornographic;
63—Production or dissemination of child pornography
A person who—
(a)     produces, or takes any step in the production of, child pornography knowing of its pornographic nature; or
(b)     disseminates, or takes any step in the dissemination of, child pornography knowing of its pornographic nature,
is guilty of an offence.
…
63A—Possession of child pornography
(1)     A person who—
(a)     is in possession of child pornography knowing of its pornographic nature; or
(b)     intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
…
(2)It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the applicant's possession unsolicited and that the applicant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.
…
63C—Pornographic nature of material
(1)In determining whether material to which a charge of an offence relates is of a pornographic nature, the circumstances of its production and its use or intended use may be taken into account but no such circumstance can deprive material that is inherently pornographic of that character.
(2)No offence is committed against this Division by reason of the production, dissemination or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge.
(3)No offence is committed against this Division by reason of the production, dissemination or possession of material that constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is no undue emphasis on aspects of the work that might otherwise be considered pornographic.
(4)     No offence is committed against this Division by reason of—
(a)     the possession or dissemination of a publication, film or computer game that has been classified under the Classification (Publications, Films and Computer Games) Act 1995 (unless it is classified as a publication for which classification is refused (RC)); or
(b)     the possession of a publication, film or computer game for the purposes of obtaining a classification under that Act.
Objective or subjective approach?

Section 62 of the Act defines “child pornography” as material that meets one of the two alternative requirements in paragraph (a) together with proof of one of the two alternative requirements in paragraph (b).[9]
[9] Section 62 contains a number of definitions, several of which contain lettered paragraphs. However for convenience of discussion, the lettered paragraphs of the definition of “child pornography” will herein be referred to as s 62(a) and s 62(b).
As to s 62(a), the primary meaning of “child pornography” appears in s 62(a)(i), namely that it “describes or depicts a child engaging in sexual activity”. However, if that primary meaning is not engaged, the prosecution may rely upon a secondary meaning in s 62(a)(ii) which is very wide, namely that child pornography “consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved”. If either of those two alternatives is satisfied, the prosecution must then also satisfy s 62(b) which provides that child pornography must also be “material that is intended or apparently intended (i) to excite or gratify sexual interest or (ii) to excite or gratify a sadistic or other perverted interest in violence or cruelty.”[10]
[10] Section 62(a)(ii) is clearly not involved in the present case and will not be the subject of analysis.
Thus child pornography in the form of an image is only produced if and when there is satisfaction of both of the following two limbs:
·the physical characteristic of depicting a child engaging in sexual activity (or the image is, or appears to be, that of a child or bodily parts of a child) and
·the functional or purposive characteristic of the material being intended or apparently intended to excite or gratify a sexual (or perverted violence or cruelty[11]) interest.
[11] As there is no suggestion in the present case that the images were intended or apparently intended to excite or gratify interest violence or cruelty, henceforth only sexual interest is addressed.
It is obvious that the first limb of the s 62 definition of child pornography clearly requires an objective examination of the physical characteristics of the subject material. The question whether this limb is satisfied is to be answered by the application of an objective test by the tribunal of fact and cannot depend on the state of mind of anyone else.
In relation to the second limb, the applicant contends that the test whether material is intended or apparently intended to excite or gratify sexual interest is to be determined objectively by reference to the content and attributes of the material and the context and circumstances of its production and intended use. We refer to this formulation as the objective construction of s 62(b). The applicant contends that the subjective intention of the producer of the material or of the person in whose possession the material is found is irrelevant to this limb of the physical elements of the offences created by Part 3 Division 11A of the Act.
The Director contends that material is intended or apparently intended to excite or gratify sexual interest if either such an intention is manifested by the objective circumstances or alternatively if there is no such objective intention but the defendant subjectively intends to use the material to excite or gratify a sexual interest. The Director contends that s 62(b) is to be construed as it was by Judge Muecke (as his Honour then was) in R v Murdock:[12]
… the words intended or apparently intended are properly construed to mean that I may, as a finder of fact, find that the material the subject of this case is child pornography if (a) the accused intended it to excite or gratify sexual interest when he produced or possessed it (taking into account the circumstances of its production or possession); or (b) it is either inherently pornographic, in the sense that it excites or gratifies sexual interest, or that an intention to excite or gratify sexual interest is apparent on the face of the material (taking into account the circumstances of its production or possession).
[12] [2009] SADC 109 at [79].
We refer to this formulation[13] as the subjective construction of s 62(b).
[13] And, in particular, the first part of the formulation.
We consider that the second limb of the s 62 definition of child pornography is limited to the functional or purposive characteristics of the material alleged to be intended or apparently intended to excite or gratify sexual interest. The phrase “intended or apparently intended” is a compendious concept and the question whether this limb is satisfied is to be answered by the application of an objective test analogous to the test generally applicable in contract;[14] satisfaction of this limb depends upon the application of an objective test by the tribunal of fact and cannot depend on the state of mind of anyone else. Our reasons for affirming the objective construction and rejecting the subjective construction follow.
The general requirement that offences clearly specify what is the proscribed act and what is the required accompanying mental intent
[14] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105-106 [25] (Gaudron, McHugh, Hayne and Callinan JJ).
Two related fundamental principles of the criminal law are as follows. First, persons are to be punished only for their deeds and not for their mere thoughts. Second, “(t)he intent and the act must both concur to constitute the crime”.[15] It is emphasised in such decisions as He Kaw Teh v The Queen[16] that knowledge of the wrongfulness of the relevant act(s) is usually a required ingredient of a statutory offence. In R v Clarke,[17] this Court recognised, in accordance with such principles, that s 63A requires the proof of an act of possession of child pornography concurrent with the required subjective element of “knowing of its pornographic nature”.[18]
[15] Fowler v Padget (1798) 7 Term Rep 509, 514; 101 ER 1103, 1106.
[16] (1985) 157 CLR 523.
[17] (2008) 100 SASR 363.
[18] It was held that such “pornographic nature” was to be construed as referring to the general pornographic nature of the material, but as not including the matter of the age of the persons depicted in the material. It was determined that the legislation manifested the intention that the required knowledge does not include knowledge of the involvement (or apparent involvement) of children and that a defence of honest and reasonable mistake as to the age of persons involved in the material is excluded.
The three offences concerning child pornography created by Part 3 Division 11A of the Act comprise the production,[19] the dissemination[20] and the possession of material constituting child pornography.[21] Each has as a common physical element that the material the subject of the production, dissemination or possession is child pornography. Similarly, the common mental element of each offence is the knowledge of the pornographic nature of the material.
[19] Section 63(a) of the Act. (Including taking a step in the production).
[20] Section 63(b) of the Act. (Including taking a step in the dissemination).
[21] Section 63A of the Act. (Section 63A(b) creates a fourth offence of obtaining access to child pornography (or taking a step towards obtaining access to child pornography intending to obtain access to child pornography). It can be ignored for present purposes.)
Division 11A of Part 3 of the Act proceeds on the basis that child pornography is created by being produced and thereafter it may be disseminated or possessed.[22] As an analogy, the three child pornography offences may be seen to correspond to the three offences of manufacturing,[23] supplying[24] or having possession[25] of a controlled drug contrary to the Controlled Substances Act 1988. These statutory drug offences all have as their subject matter a controlled drug (defined in terms of purely physical or biological characteristics)[26] whereas the child pornography offences have as their subject matter child pornography, which is defined in terms of a coincidence of physical characteristics and functional or purposive characteristics.
[22] The same person might produce and disseminate child pornography and such a person will usually, although not necessarily, also have possession of it.
[23] Section 33J, Controlled Substances Act 1988.
[24] Section 33I(1), Controlled Substances Act 1988.
[25] Section 33L(1)(a), Controlled Substances Act 1988.
[26] See s 4, Controlled Substances Act 1988; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
To pursue the analogy, if a person possesses white tablets, which he or she had bought and paid for on the representation of the seller that they contain methyl-amphetamine, but on analysis they are shown to contain only aspirin, a prosecution against him or her for possession of methyl-amphetamine will fail even though the mental state of the buyer required by the statute is clearly present.[27] Similarly, if a person possesses material that he or she subjectively considers to be child pornography, he will not be guilty of possession of child pornography contrary to s 63A of the Act unless that material satisfies the criteria of child pornography under the legislation.[28]
[27] And such a prosecution would fail even if the particular person were to be so incautious as to say to a police officer, after the analysis of the tablets, that he or she had taken some of them and had (through their placebo effect) received the same effect that he or she would have if they had in fact contained methyl-amphetamine.
[28] And such a prosecution would fail even if the particular person were to be so incautious as to say to a police officer that he or she intended to use such material for the purpose of sexual gratification.
Turning to the particular offence of possession of child pornography which is under consideration here, s 63A enacts an offence of the traditional type which prohibits possession of a class of physical items by reference to an intention or use which is to be objectively imputed to such items by reference to their content, attributes or features. Thus the s 63A offence specifies proof of the proscribed act of possession of material as defined in s 62, coupled with proof of the required mental element, namely knowing of its pornographic nature.[29] In conformity with general principle, the proof of the proscribed act of possession of material is separate and distinct from the question of the mental intent of the possessor.
[29] As explained in R v Clarke (2008) 100 SASR 363.
There are a number of specific textual indications in the legislation that confirm the objective construction. They include the following matters.
The words in s 63A “knowing of its pornographic nature”
The words in s 63A “[a] person who is in possession[30] of child pornography knowing of its pornographic nature” clearly predicate that the subject material must of itself actually have a pornographic nature.
[30] The same words “material…that is intended or apparently intended” govern each of the three offences of production, dissemination and possession; whether certain material is, or is not, “child pornography” must be adjudicated in the same way, whichever of the three offences is charged.
The only way that an inanimate object can have a pornographic nature is through the possession of certain attributes that, on objective examination, demonstrate that the subject material is within the s 62 definition of child pornography. Of necessity, an objective requirement is here being delineated. Knowledge of an objective state of affairs is required; an idiosyncratic intention to do something quite irrespective of the objective state of affairs is insufficient.
Further, the word “knowing” (as used in s 63A) predicates that the fact to be known does actually exist; a person can only know that an inanimate object has a pornographic nature if in fact it does have a pornographic nature. Thus the words in s 63A “in possession of child pornography knowing of its pornographic nature” of themselves require that the subject material does in fact objectively have a pornographic nature.
The s 62 definition of the words “pornographic nature”
The words “pornographic nature” used in s 63A are defined in s 62 thus: “‘pornographic nature’ of child pornography means the aspects of the material by reason of which it is pornographic”. Again, these words clearly predicate that the subject material must actually have aspects by which it is to be judged to be pornographic; these aspects must be physical and observable contents or attributes if the pornographic nature of the material is to be objectively judged by reference to them.
In other words, the question whether material is pornographic is to be judged by reference to observable physical aspects of the material. It follows that a judgment must be able to be made by a court on the basis of the objective appearance and attributes of the material as soon as it is produced. This may be most obvious in a prosecution for production of material, say in the context of material seized from the “factory”.
Of course, in many, if not most, prosecutions, it will be impossible to know, let alone to prove, who produced the subject material and what was the actual intention of that producer. However, the uniform adoption of the objective construction of s 62(b) obviates any need to prove any actual intention of a producer. The definition of child pornography in s 62 is common to each of the three offences of production,[31] dissemination[32] and possession[33] and there is no warrant for suggesting that characterisation of the material can change as it later passes through different hands.
[31] Section 63(a) of the Act.
[32] Section 63(b) of the Act.
[33] Section 63A of the Act.
The words in s 62 “material that is intended or apparently intended …”
When considering the words in s 62 “material that is intended or apparently intended …” it is critical to keep in mind (at least) two things.
The first thing is that one does not simply consider the words “intended or apparently intended” but rather the words: “child pornography” means material … that is intended or apparently intended …”. This is important because of the discussion immediately above relating to the correct approach to “material” (an inanimate object or item) and the necessity to consider its content or attributes in order to impute an intention or apparent intention.
The second thing to be kept in mind is that what is here under consideration is the matter of the proscribed act, in traditional terms, the actus reus and in more modern terms the objective elements[34] or physical elements[35] of the offence. The required mental element (or mens rea) is not here under consideration and remains as it is stated to be in ss 63 and 63A, namely “knowing of its pornographic nature”. Thus, the words “material … that is intended or apparently intended …” are fairly and squarely directed to defining the act proscribed by the legislation. They maintain the primary focus on the material itself and are not concerned with the accompanying mental element of the offence.
[34] For example, Criminal Law Consolidation Act 1935 ss 268, 269G.
[35] For example, Criminal Code (Cth), Part 2.2 Division 4.
So understood, the words intended or apparently intended do not reveal an intention to cut across the objective construction that is manifested by the considerations referred to above. Rather, these words are used in the context and advancement of the objective approach. They are directed to possible problems of proof of the proscribed act (the actus reus) that might arise if one only of the terms “intention” or “apparent intention” were used. Put in a slightly different way, the words are used ex abundanti cautela.
To illustrate, assume that only the word intention had been used in s 62. If it had to be established in a prosecution for “production of child pornography” that “the material manifests an intention [without the alternative of an apparent intention] to excite or gratify sexual interest”, it might be contended by the producer that his or her actual intention was not to “excite or gratify sexual interest”. A court might consider that it is possible that he or she did honestly (although quite unreasonably)[36] hold an intention other than to “excite or gratify sexual interest” and a question whether he or she could be convicted could therefore arise.
[36] In some cases, such an assertion might be rejected on a credibility basis, since a court may sometimes be justified in positively disbelieving a defendant’s evidence that he did not hold a particular intention. But in other cases, the court may consider that a defendant did in fact subjectively hold a particular belief or intention despite the fact that it would be quite unreasonable to do so.
Alternatively, assume that only the words apparent intention had been used in s 62. If it had to be established in a prosecution for “production of child pornography” that “the material manifests an apparent intention [without the alternative of an intention] to excite or gratify sexual interest”, it might be contended by the producer that his or her actual intention was not to “excite or gratify sexual interest”. If the court considered that it is possible that he or she did honestly (although quite unreasonably) hold an intention other than the apparent intention to “excite or gratify sexual interest”, a question whether he or she could be convicted in circumstances where his or her actual intention was contrary to the apparent intention could therefore arise.
However, if both sets of words (intention and apparent intention) are used in a compendious way ─ “that is intended or apparently intended (i) to excite or gratify sexual interest …” ─ such arguments are forestalled.
Thus the test remains an objective one: if the material itself manifests an intention or apparent intention to excite or gratify sexual interest, that intention to excite or gratify sexual interest will be established, irrespective of the “true intention” of the producer.
We therefore reject the Director’s contention that the words in the s 62(b) definition “is intended or apparently intended” create two alternative categories of child pornography, one created by reference to “apparent intention” and the other by reference to “actual intention”.
A consideration of similar legislative regimes
The present legislation does not define child pornography by reference to an actual intention or apparent intention of a particular individual but rather is of the common type which prohibits possession of a class of physical items by reference to an intention or use which is to be imputed to an item that has certain prescribed design features. A ready example of such legislation is that discussed in the recent decision of this Court in Police v Majchrak[37] which proceeded on the basis that, if a person is in possession of an article which answers the description of a prohibited article by dint of its nature (there a “knuckleduster”), it is no defence for the person to say that he or she did not intend to use the item for a particular purpose or indeed, to use it at all.[38]
[37] (2014) 120 SASR 192.
[38] The case was decided in favour of the applicant only on the basis that the item did not answer the statutory description of a “knuckleduster”.
In similar vein, a number of decisions concerning customs legislation deal with the classification of goods by reference to such matters as their intended purpose. The courts have adopted an objective test and have had regard to the imputed purpose of the producer based on the intrinsic nature of the article itself and the ordinary use to which such an article might reasonably be expected to be put. Thus in Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) Sheppard J stated:[39]
… I have borne in mind that it is the state or condition of the goods at the time of importation that is the determining factor. The test is an objective one. The purpose of the manufacturer or exporter on the one hand or the importer or use on the other can have no relevance. Otherwise rates of duty for identical articles would vary depending upon what their proposed use was to be. It is the intrinsic nature of the article itself which has to be considered. That is not to say, however, that it will not be relevant to take into account in determining the nature of an article and the question of whether it is in an unfinished or incomplete state the ordinary use to which such an article might reasonably be expected to be put. What ought to be left out of account is the particular purpose which an exporter or importer may have had in mind for the article in question.
(Emphasis added)
[39] (1980) 47 FLR 131, 155 (Fisher J agreeing at 143).

In Chinese Food and Wine Supplies Pty Ltd v Collector of Customs, Lockhart J stated:[40]
It is the goods themselves in the condition in which they are imported here to which it is generally necessary to look under the Tariff Act to determine the identification of goods for purposes of Customs duty: see Chandler & Co v Collector of Customs (1907) 4 CLR 1719; Re Gissing and Collector of Customs (1977) 1 ALD 144 at 146; and Re Tridon Pty Ltd and Collector of Customs (1982) 4 ALD 615 at 620ff. Conformity with this general approach is achieved in the case of Ch 30 if, on its proper interpretation, it is the therapeutic or prophylactic use to which the goods will be put in Australia to which the chapter is directed.
Whether the goods in suit properly fall within Item 30.03 of the Customs tariff is determined by an objective test not by the intentions of the manufacturer in China or of the exporter or the importer. The test is applied at the port of entry of the goods and at the time of entry. The characteristics of the goods, their get-up, colour, decoration, labelling and packaging are all relevant considerations. In some cases, a visual inspection of the goods and their packaging will disclose characteristics of the goods and enable a judgment to be made as to whether they are for therapeutic or prophylactic use. But visual inspection will not necessarily provide the answer in each case. Tests may have to be carried out and inquiries made to ascertain the relevant characteristics of the goods. …
(Emphasis added)
[40] (1987) 72 ALR 591, 599 (Woodward J and Ryan J agreeing at 592 and 600 respectively).
In Times Consultants Pty Ltd v Collector of Customs (Queensland), Morling and Wilcox JJ stated:[41]
The authorities make it clear that in determining what is the essential character of goods it is the state or condition of the goods at the time of importation that is the determining factor and that it is wrong to classify goods or to determine their essential character by reference to the purpose of the importer or of the purchaser. Regard must be had to the characteristics of the goods themselves, as they would present themselves to an informed observer: see Chandler & Co v Collector of Customs (1907) 4 CLR 1719 at 1729; Whitton v Falkiner (1915) 20 CLR 118 at 131; Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (1980) 47 FLR 131 at 155.
…
… That analysis demonstrates that the majority arrived at their decision that the magazine gave to the goods their essential character by having regard to such matters as the reasons the goods were put up in sets, the manufacturer’s purposes in taking that course, and the likely reactions of purchasers. His Honour was correct in his view that the majority misdirected themselves by turning their attention away from the goods themselves and deciding the question posed for their consideration by reference to such matters. The statement in the majority’s reasons that one of the principal factors pointing to the dominant component in goods “will be the use or function which the consumer or end user of the set will make of the combination” is an indication of the approach which they adopted. … (Emphasis added)
[41] (1987) 76 ALR 313, 327.
To similar effect, in Sharp Corporation of Australia Pty Ltd v Collector of Customs,[42] the Full Court of the Federal Court considered an appeal against a decision of the Administrative Appeals Tribunal concerning the appropriate classification of goods for the purposes of the Customs Tariff Act 1987 (Cth) by reference to the term “essential character”. The Tribunal referred to authority and concluded that:[43]
[a] consideration of those cases persuades the Tribunal that to ascertain the ‘essential character’ of any good or goods is a practical test to be applied objectively to the particular goods in question.
[42] (1995) 59 FCR 6.
[43] (1995) 59 FCR 6, 11.
On appeal to the Supreme Court of New South Wales, a single Judge took a different view. However, on further appeal the Full Court agreed with the approach taken by the Tribunal. Davies and Beazley JJ held that:[44]
[t]he expression “essential character” directs the attention of the decision-maker to the essence of the goods, to what they really are, and away from issues such as subjective purpose or how a particular person intends to use the goods in certain circumstances.
[44] (1995) 59 FCR 6, 14.
Radical outcomes associated with the subjective construction
The rejection of the subjective construction of s 62(b) is further confirmed by a consideration of the potential differing factual outcomes that may follow according to whether the objective or subjective construction of the legislation is adopted.
Take as an example, a male teenager, just under the age of 16 years,[45] who wishes to impress a girl of the same age at high school. He sends her an image of himself which shows him in a way that he considers would be attractive to her but does not depict him engaging in sexual activity and is not lewd or “pornographic” within its lay meaning. However, the fact is that he does intend to use the image to “excite the sexual interest” of the girl and wishes her to become his girlfriend. If a subjective intention to use the image to “excite the sexual interest” of the girl were sufficient to render the image “child pornography”, this male teenager (of whom there are countless examples) would be guilty of disseminating child pornography.[46]
[45] As from 17 September 2011, the age in the definition of “child” has been increased from 16 to 17 years. See s 3, Criminal Law Consolidation (Child Pornography) Amendment Act 2011.
[46] If one were to adopt a subjective construction, s 62(b)(i) would be satisfied since the intention of the boy was to “excite sexual interest” and s 62(a)(ii) would be satisfied since the image is of a child. (We consider s 63C below).
And what of the girl in the above scenario? Say she receives and views the image, and realises that the boy has sent it in an attempt to excite her sexual interest. Say she would rather like him to be her boyfriend and therefore elects not to delete the image (thus negating any defence under s 63A(2)). If material could be determined to be child pornography on the basis of a subjective intention of a particular person, the girl would be in possession of child pornography since both s 62(a)(ii) and (b)(i) would be satisfied.[47]
[47] If one were to adopt a subjective construction, s 62(b)(i) would be satisfied since she knew that the image was intended or apparently intended by the boy to “excite sexual interest” and s 62(a)(ii) would be satisfied since the image is of a child. (We consider s 63C below).
The possibility of such radical outcomes attendant upon the subjective construction is a strong indication in favour of the objective construction.
The particular intention of a defendant cannot alter the objective nature of the material
An important feature of the objective construction of s 62(b) is that, if a person possesses material which is within s 62(a) and its appearance and attributes do satisfy s 62(b), then the material will be “child pornography”. That person will be in possession of child pornography for the purposes of an offence against s 63A[48] irrespective of whether or not he or she intended to use the material for one of the purposes in s 62(b); indeed he or she will be guilty even if he or she positively intended not to use the subject material for either of those purposes. Thus material that does satisfy the definition of child pornography does not lose that status through the intention of the particular possessor of it.
[48] Subject to the requirement of “knowing of its pornographic nature” in s 63A(1)(a) considered below.
But just as material that does satisfy the definition of child pornography cannot lose that status through the intention of the particular person in possession of it, it is equally the case that material that does not satisfy the definition of child pornography cannot acquire the status of child pornography simply by reference to a peculiar sexual interest of a particular person.
To illustrate, if a person has a sexual interest in female shoes, and uses a picture of a left foot of a female, who happens to be a child, wearing a shoe to excite or gratify that sexual interest, that cannot sensibly produce the result that that picture thereby becomes an article of child pornography.[49] Similarly, a department store catalogue containing images of children in the context of promoting children’s wear, dropped in thousands of letter boxes, does not suddenly become a piece of child pornography because a particular person, when alone, uses such a catalogue to gratify a sexual interest in children.[50]
[49] But it presumably would constitute child pornography according to a subjective construction. Section 62(b)(i) would be satisfied since the person intended to “excite” or “gratify” his or her own sexual interest and s 62(a)(ii) would be satisfied since the material image “contains, the image of a child or bodily parts of a child”. (We consider s 63C below).
[50] Again, it presumably would constitute child pornography according to a subjective construction. Section 62(b)(i) would be satisfied since the person intended to “excite” or “gratify” his or her own sexual interest and s 62(a)(ii) would be satisfied since the material image “contains, the image of a child or bodily parts of a child”. (We consider s 63C below).
A person with such a sexual interest is not to be punished unless he or she does, or attempts to do, an act that is proscribed by the criminal law. If such a person gratifies that interest when alone through focusing on thoughts or memories or perhaps using some kind of aid such as images of children seen during regular television programming, he or she commits no offence. It is discordant to suggest that if he or she instead calls in aid a store catalogue dropped in the letterbox, he or she is now to be punished for a criminal offence on the basis that the catalogue has been transformed to “child pornography” (although everyone else in the same street, with the same delivered catalogue, remains in blissful ignorance of that fact).
Legislation must be specific and clear
There is an increasing trend to call for a broad and amorphous construction of criminal legislation with the express or implied justification that the police can be expected to show good judgment in their selective enforcement of it.
Such an approach does not take into account the fundamental importance of the rule of law and the doctrine of the separation of powers. It is expected that the legislature will prescribe clear legislation which informs the community exactly what is, and what is not, prohibited and not to abnegate its power and responsibility to a police force. It is expected that police officers will be asked to enforce a clearly delineated area of prohibition. It is not expected that individual police officers will be required to grapple with vague legislation, to have to formulate what they consider to be a reasonable area of enforcement and then to decide whether a particular case falls within such a formulated area.
Equally, it is not an answer to say, expressly or impliedly, that most police officers would not charge the teenage boy or girl in the example above. That might well be so, but such examples only constitute the end of a spectrum. The shoe fetishist, and the person with the department store catalogue, are simply further along that same spectrum. Some, but not all, police officers might charge a person on the basis of an unguarded answer that he or she had a particular intended use for an otherwise innocuous department store catalogue delivered in his or her letterbox. Whether such a charge is in fact laid might depend on the particular police officer’s moral beliefs, his or her view or suspicion that the particular person is a practising paedophile, or aspects of the person’s attitude when speaking to the police officer.
But the criminal law is not expected to be an uncertain, amorphous creature to be coloured in by reference to the attributes of the particular police officer involved and the particular person under police scrutiny. More particularly, Parliament is not to be taken to intend to enact such legislation of vague or uncertain meaning unless it does so in the plainest of terms.
Ultimately, when one looks at the subject material in the above postulated examples, one simply sees an image of a teenage boy showing off (not unusual) and an uninvited store catalogue dropped in the letterbox (also not unusual). Parliament would not have intended its legislation to be interpreted such that these items are to be declared to be child pornography within s 62.
If an objective construction of the legislation is adopted, it is clear that the appearance and attributes of such items simply do not objectively establish that the material is intended or apparently intended to do one or other of the things referred to in subparagraphs s 62(b)(i) or (ii). And, we stress, such items are not to be transformed to the status of child pornography by, for example, a serendipitous admission by a person that he or she had while alone used a shopping catalogue to gratify a sexual interest that he or she held.
Consideration of the objective nature of the material in the present case
The rejection of the subjective construction and the affirmation of the objective construction is an important matter for the argument of the applicant here, but this does not determine the appeal in his favour.
In applying the objective test to the question whether the present images are intended or apparently intended to excite or gratify sexual interest, one is both entitled and obliged to have regard to the objective context and circumstances surrounding the production of the material.
Section 63C relevantly provides:
(1)In determining whether material to which a charge of an offence relates is of a pornographic nature, the circumstances of its production and its use or intended use may be taken into account but no such circumstance can deprive material that is inherently pornographic of that character.
(2)No offence is committed against this Division by reason of the production, dissemination or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge.
…
(3)No offence is committed against this Division by reason of the production, dissemination or possession of material that constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is no undue emphasis on aspects of the work that might otherwise be considered pornographic.
…
Thus the objective circumstances of the production and intended use of material can be taken into account in determining whether it has the requisite pornographic nature. For example, material originally created for non-pornographic purposes might be appropriated by a producer and acquire a pornographic nature by a change in the context and circumstances which objectively demonstrate dissemination for the purposes of sexual excitement or gratification.
Similarly, sub-ss 63C(2) and (3) recognise and provide that material that in some circumstances would be pornographic is not so in circumstances in which it was produced for legal, medical or scientific knowledge purposes or artistic expression (such as depiction of the human form).
However, it is important to emphasise that the words in s 63C(1) “the circumstances of its production and its use or intended use may be taken into account” do not mean that a purely idiosyncratic intention of a particular person in relation to a particular item of material is sufficient to constitute an offence when an objective examination of the material in question could not support the conclusion that it is pornographic. Such an approach would lead to results that could not have been intended by Parliament such as the examples given above: the teenage boy sending and the teenage girl retaining the innocuous image; the shoe fetishist; and the person who puts a department store catalogue to other than the use obviously intended by the department store.
Rather, the correct interpretation of s 63C(1) is that the test whether material was produced for pornographic purposes is an objective one, taking into account the objective context and circumstances. This is again consonant with the requirement to prove a proscribed act (possession of material as defined in s 62) coupled with the required mental element (knowing of its pornographic nature). And, as noted above, the s 62 definition of “pornographic nature” (“the aspects of the material by reason of which it is pornographic”) clearly predicates that the subject material must have aspects by which it is to be judged to be pornographic; these aspects must be physical and observable contents or attributes if the pornographic nature of the material is to be judged by reference to them.
Was it open to the jury to find that images 1 to 6 were intended or apparently intended to excite or gratify sexual interest?
Thus we arrive at the ultimate question: Was it open to the jury to find that images 1 to 6 were intended or apparently intended to excite or gratify sexual interest?
Having full regard to the fact that the test to be applied is objective, and that it is not possible to supply missing objective ingredients by reference to serendipitous, subjective circumstances of the person who happens to possess the item at any particular time, it was open to the jury to find that images 1 to 6 were each intended or apparently intended to excite or gratify sexual interest.
As to image 6, while it does not actually depict sexual activity, the male and female, who are in close proximity to each other and on a bed, are obviously posed so as to draw attention to their sexual organs. It was clearly open to the jury to find that the image is objectively redolent of the required “intention or apparent intention to excite or gratify sexual interest”.
As to images 1, 3 and 4, each depict naked children and bear the website address “RB”. It is to be noted that the full website address (here referred to only as “RB”) was a combination of words suggestive of nudity (through obvious double entendre) and that the website was located in a foreign country. It was open to the jury to draw the inference from the nature of the images of bare children and their origin from this website address that the images had been produced or appropriated for the purposes of dissemination via the internet to users of the website who were strangers to the children or persons depicted in the images. It was open to the jury to conclude from the objective context and circumstances in which the images were produced, coupled with the nature and content of the images themselves, that they were produced with the intention or apparent intention of exciting or gratify sexual interest.
Images 2 and 5 again depict naked children but do not bear a website address on their face. Image 2 is entitled “yong4”, bearing a title in a series with the titles to images 1, 3 and 4. The nature, location and circumstances of each of images 2 and 5 is such that it was open the jury to conclude that each was produced or appropriated for the purposes of dissemination via the internet to users of the website who were strangers to the girls depicted in the images; it was open to the jury to conclude that they were produced with the intention or apparent intention of exciting or gratifying sexual interest.
Was it open to the jury to find beyond reasonable doubt that images 5 and 6 were images of persons apparently under the age of 16 years?
The applicant contends that it was not proven beyond reasonable doubt that image 5 or image 6 was of a child within the meaning of s 62, namely of a person under or apparently under the age of 16 years.[51]
[51] Particular b of the proposed ground of appeal complains that the verdicts are unreasonable or not capable of being supported by the evidence.

Expert evidence was called at trial by both the prosecution and the defence concerning the ability to determine a person’s chronological age from their appearance or image. Although it was not open to the jury to find beyond reasonable doubt that any of the persons depicted in image 5 or image 6 was actually under 16 years in light of the expert evidence, it was not essential for the jury to do so. Rather, the jury needed only to be satisfied that the persons were apparently under 16 years old; apparent age is a question of fact to be determined by the tribunal of fact on the basis of ordinary everyday experience and, in our view, it was open to the jury to find that the girls in image 5 and the girl in image 6 were apparently under 16 years old.
This aspect of the applicant’s challenge to the jury’s verdict is therefore not made out.
Was there sufficient evidence of possession of the images by the applicant?
In relation to counts 1 to 5, the applicant contends that it was not open to the jury to find beyond reasonable doubt that he was in possession of the images.[52]
[52] Particular b of the proposed ground of appeal complains that the verdicts are unreasonable or not capable of being supported by the evidence.
It was common ground at trial that, in order to be in possession of the images, it was both necessary and sufficient that the applicant knew of their existence on a computer and exercised control over them. The applicant contends that on the evidence it was not excluded as a reasonable possibility that the person Jess had downloaded the images from her mobile phone onto the applicant’s computer without his knowledge. He relies in particular upon the evidence given by Ms Markovic that:
·she had known the applicant for about 10 years
·she had undertaken work experience with the applicant from 9am to 5pm in the last week of September 2011 and later undertook work after hours at his office two or three times a week until October or early November 2011, being present when the police attended on 21 October 2011
·she had previously met Jess and understood her to be the applicant’s girlfriend who worked for him as a part-time assistant and stayed overnight intermittently with him
·she saw Jess at the office on two or three occasions in total over a period from late September 2011 to October or early November 2011 when she was working there
·she saw friends of the applicant using a desktop computer (although she did not say whether the applicant was present in the office on those occasions)
·she did not recall if she saw Jess during the week the police attended
·she generally used the desktop computer in the office, but on two occasions she used the laptop. She did not recall if she saw Jess on these occasions.
The prosecution case on the issue of possession was a circumstantial one relying on a number of circumstances including the following:
·the desktop, and the two external hard drives upon which the images were found, belonged to the applicant and were used by him for his practice
·the applicant lived in the house alone, although Jess stayed overnight intermittently
·the applicant had an interest in pornography as demonstrated by the adult pornography (other than the subject images) contained on his laptop
·images 1, 3 and 4 had been downloaded from the website “RB” and had not been taken with Jess’s mobile phone. Image 2 appeared to fall into the same category and there was no particular reason to believe that image 5 had been taken with Jess’s mobile phone.
·image 5 was similar in nature to image 6 which was on the laptop computer
·there was no particular reason to believe that a mobile phone would have been used to download images of naked children from the internet
·each of the images 1 to 5 were contained within the user GL Law and not any private directory assigned to Jess as user
·image 5 had been transferred, probably manually, from the “JessPhone” folder into the “Porn” folder contained on both the WD hard drive and on the unbranded hard drive.
In the present case, the individual circumstances did not need to be proved beyond reasonable doubt; the question is whether all of the circumstances considered together proved the case beyond reasonable doubt. We consider that it was open to the jury to draw the inference beyond reasonable doubt that the applicant knew of, and was in possession of, images 1 to 5 (as well as image 6).
This aspect of the applicant’s challenge to the jury’s verdict is therefore not made out.
Knowledge that the pornography depicted a child
Finally, the applicant contends in relation to counts 5 and 6 that it was necessary for the prosecution to prove beyond reasonable doubt that he knew that the persons depicted were under, or apparently under, the age of 16 years and that it was not open to the jury to find beyond reasonable doubt that he knew this.[53]
[53] This was not a particular of the proposed ground of appeal that the verdicts are unreasonable or not capable of being supported by the evidence but was argued by the applicant at the hearing of the application.
If the question had been free of authority, there would have been arguments both for and against construing ss 62 and 63A such that the pornographic nature of the material of which a defendant must be aware includes, as an integral component, knowledge of the involvement of a person under or apparently under the age of 16 years. However, in R v Clarke,[54] this Court held in a considered judgment that it is no part of the mental element of the offence that the defendant knew that children were involved.[55] The applicant did not contend that R v Clarke was decided per incuriam or identify any basis upon which this Court should regard itself as not bound by that decision.
[54] (2008) 100 SASR 363.
[55] (2008) 100 SASR 363, 371-376 [22]-[49], Doyle CJ (David J agreeing at 387 [106]), 384-387 [93]-[105] (Bleby J).
This final aspect of the applicant’s challenge to the jury’s verdict therefore fails.
Disposition of the appeal
We would grant permission to appeal but would dismiss the appeal.
STANLEY J:
Introduction
This is an application for permission to appeal against conviction.
The applicant was charged on Information with six counts of possessing child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Counts 1 to 4 were aggravated offences on the basis that the applicant knew the victim was, at the time of the offence, under the age of 14 years.[56] The charges related to images found on an office computer and a laptop computer found by police at the applicant’s premises.
[56] Section 5AA(1)(e) of the CLCA identifies the circumstances in which the aggravated form of offences under Part 3, Division 11A, may be committed, namely:
(e) the offender committed the offence knowing that the victim of the offence was, at the time of the offence—
(i) in the case of an offence against Part 3 Division 11A—under the age of 14 years;
(ii) in any other case—under the age of 12 years;
After a trial by jury the applicant was convicted by unanimous verdict of two counts of possessing child pornography.[57] By majority verdict he was convicted of three counts of the aggravated offence of possessing child pornography[58] and one count of possessing child pornography.[59] In relation to this last count (count 2) he was found not guilty of the aggravated offence but guilty of the alternative basic offence of possessing child pornography.
[57] Counts 5 and 6.
[58] Counts 1, 3 and 4.
[59] Count 2.
The applicant submits that the verdicts should be set aside as unreasonable or unsupported by the evidence. He does so on three grounds. First, on the ground that in relation to counts 1 to 5 inclusive it was not open to the jury to find beyond reasonable doubt that the applicant had the relevant images in his possession. Secondly, in relation to two counts of possessing child pornography, namely counts 5 and 6, it was not open to the jury to find beyond reasonable doubt that the images depict or appear to depict children under the age of 16. Thirdly, on the ground that in relation to each of counts 1 to 5 inclusive it was not open to the jury to find beyond reasonable doubt that the images the subject of those counts came within the definition of child pornography in s 62 of the CLCA and, in particular, they were intended or apparently intended to excite or gratify sexual interest.
A judge of this Court refused permission to appeal on grounds 1 and 2. The applicant sought permission from this Court to appeal. The applicant was granted permission to amend the grounds of appeal to add ground 3 on the hearing of the application before this Court.
Summary of facts
On the evening of 21 October 2011 police attended at the applicant’s residence. The applicant was not at the premises but present was a 16 year old year 10 student, Anja Markovic. The applicant was a solicitor who practiced from these premises. The premises included an office in which police located a desktop computer. Police searched the computer. A police officer followed a search sequence on the computer screen which led him to the allegedly pornographic images the subject of the charges in counts 1 to 5. Seven pornographic images were located on the computer within a folder entitled “JessPhone”. Photographs were taken of the computer images. Counts 1 to 5 relate to five of those images. The police also found at the premises a laptop computer. This was seized and subsequently examined and 86 photographic images were located on the computer. One of those images is the subject of count 6.
Approach on appeal
Section 353(1) of the CLCA provides:
(1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The High Court considered the principles applicable to whether a verdict is unreasonable or cannot be supported having regard to the evidence in M v R as follows.[60]
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict... The question is one of fact which the court must decide by making its own independent assessment of the evidenceand determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Citations omitted).
[60] [1994] HCA 63, (1994) 181 CLR 487 at 492 – 493.
The Court further said:[61]
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(Citations omitted).
[61] [1994] HCA 63, (1994) 181 CLR 487 at 494 – 495.
The test was explained by Hayne J, with whom Gleeson CJ and Heydon J agreed, in Libke v The Queen[62] in the following terms:[63]
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(Citations omitted).
[62] [2007] HCA 30, (2007) 230 CLR 559.
[63] [2007] HCA 30 at [113], (2007) 230 CLR 559 at 596 – 597.
This explanation has been applied by this Court on numerous occasions.[64]
[64] R v Bellchambers [2011] SASCFC 60, (2011) 110 SASR 153, R v Dolfen [2011] SASCFC 45, R v Kennedy [2014] SASCFC 24, R v Woods [2011] SASCFC 71, R v Andrews [2010] SASCFC 5, (2010) 107 SASR 471, R v Lindsay [2013] SASCFC 95, R v E, DJ [2012] SASCFC 6, (2012) 112 SASR 225, R v Percy [2011] SASCFC 158, R v Mattsson [2011] SASCFC 114, R v Hore [2010] SASCFC 60.
Ground 3: child pornography
It is convenient first to deal with ground 3. In relation to counts 1 to 5, was it open to the jury to find beyond reasonable doubt that the images the subject of those counts came within the definition of child pornography in the CLCA?
Section 63A is part of a scheme established by Division 11A of Part 3 of the CLCA. It includes s 63 which creates the offence of producing or disseminating child pornography.
Section 63A provides:
63A—Possession of child pornography
(1) A person who—
(a) is in possession of child pornography knowing of its pornographic nature; or
(b) intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
…
(2) It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant's possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.
(3) In determining whether an offence against subsection (1) is a first or subsequent offence, a court must treat a previous offence involving child pornography against any provision of this Division, or a corresponding previous enactment, as a previous offence.
At the relevant time s 62 of the CLCA defined “child pornography” as follows:[65]
Child pornography means material—
(a) that—
(i)      describes or depicts a child engaging in sexual activity; or
(ii)     consists of, or contains, the image of a child, or the bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and
(b) that is intended or apparently intended—
(i)      to excite or gratify sexual interest; or
(ii)     to excite or gratify a sadistic or other perverted interest in violence or cruelty;
[65] Section 62 of the CLCA was amended effective from 17 November 2011 to raise the relevant age from 16 years to 17 years.
The term “child” was defined as follows:
Child means a person under, or apparently under, the age of 16 years;
At that time s 62 defined the “pornographic nature” of child pornography to mean the aspects of the material by reason of which it is pornographic.
In this regard s 63C(1) provided:
(1)In determining whether material to which a charge of an offence relates is of a pornographic nature, the circumstances of its production and its use or intended use may be taken into account but no such circumstance can deprive the material that is inherently pornographic of that character.
The applicant submits that it was not open to the jury to find beyond reasonable doubt that the images in counts 1 to 5 came within the definition of child pornography. He submits that on an objective evaluation, it is reasonably possible that the material was not intended or apparently intended to excite or gratify sexual interest.
The applicant’s submission turns first on a matter of statutory construction. The principles applicable to statutory construction are authoritatively stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority:[66]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(Citations omitted).
[66] [1998] HCA 28 at [69], (1998) 194 CLR 355 at 381.
The court is required to consider the text, context and purpose of the statute to be construed.[67] Context includes the existing state of the law and the mischief the statute was intended to remedy.[68] In identifying the mischief to which a statute is directed it is permissible as an aid to statutory construction for the court to have recourse to extrinsic materials such as a Minister’s second reading speech.[69]
[67] Plaintiff M70/2011 v Minister for Immigration and Citizenship and Anor [2011] HCA 32 at [50] and [109], (2011) 244 CLR 144 at 176 – 177 and 194.
[68] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2, (1997) 187 CLR 384 at 408.
[69] K Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [51] – [53], (2009) 237 CLR 501 at 521 - 522.

In order to understand the significance of the issue of construction that arises on the appeal, I need to identify the relevant factual position because once the meaning of the statutory language is ascertained, the issue posed by the statute is a question of fact.
The image in count 1 is a photograph of seven naked prepubescent boys and girls standing on a beach with naked adults in the background in what appears to be a nudist camp. The image in count 2 is a photograph of a naked female apparently under the age of 16 years in a gymnasium. The image in count 3 is a photograph of five naked girls standing on a beach in what appears to be the context of a nudist camp. Four of them are clearly prepubescent. One of the girls appears to be older than the others but her appearance suggests that she is also prepubescent. The image in count 4 is a photograph of seven naked prepubescent boys and girls (except for hats) standing on a beach again in the context of what appears to be a nudist camp. The image in count 5 is a photograph of three naked pubescent teenage females standing in a shower.
All the images in counts 1 to 5 involve full frontal nudity. None of the images depict a child engaging in sexual activity. I leave to one side the question, which I will come to later in relation to count 5, as to whether the image depicts a child as defined in the CLCA.
There is no issue that the material consists of or contains the image of a child or the bodily parts of a child (subject to the qualification referred to in relation to count 5) so as to satisfy that part of the definition of child pornography in subparagraph (a)(ii).
Accordingly, the question of construction is the meaning of the statutory language “material that is intended or apparently intended to excite or gratify sexual interest” in subparagraph (b)(i) of the definition of “child pornography”.
The definition was inserted into the CLCA in 2004. In the second reading speech to the amending Act the Attorney-General, the Hon M J Atkinson MP said:[70]
The Bill broadens the definition of child pornography to include material that is intended, or apparently intended, to excite or gratify sexual interest… This will allow for the prosecution of offences where the material may be highly offensive but not overtly sexual…
The Bill defines child pornography by a 2 part test…
The second part of the test for child pornography material is that it must be material that is intended, or apparently intended, to excite or gratify sexual interest… This qualification will ensure that items clearly not intended to excite sexual interest, such as advertising brochures for children’s clothing and underwear, would not be caught by the definition.
Clearly, if material is intended (by any participant in the prohibited process) to excite or gratify a sexual or other specified interest, that participant’s behaviour will be caught … [T]he proposal in the Bill is not limited to that situation, nor should it be. It would be unduly onerous to require proof of the actual intention in every case. If the finder of fact finds that the intention to excite or gratify a sexual or other specified interest is apparent on the face of the material presented to it, the behaviour will also be caught.
[70] South Australia, Parliamentary Debates, House of Assembly, 26 October 2004, 561 – 563 (M J Atkinson, Attorney-General).
It is apparent from a consideration of the second reading speech[71] that the Parliament’s intention in amending the Act in relation to child pornography offences was to change the legal position as disclosed by the judgment of the Court of Criminal Appeal in Phillips v Police[72]. In Phillips Debelle J, with whom Mohr and Nyland JJ agreed, allowed an appeal from a conviction for possession of child pornography. The appellant was found in possession of video tapes of boys urinating in public lavatories and changing clothes in public areas. Under the legislation dealing with child pornography, as it stood at that time, the relevant test was whether the material was “indecent, immoral or obscene”. Debelle J decided that the legislation posed an objective test. The Act precluded consideration of the circumstances in which the material existed or was brought into existence, but not the nature and form of the material. He considered that pornography is the explicit description or depiction of sexual activity intended to stimulate erotic rather than aesthetic feelings. The ordinary meaning of child pornography, however, was extended under the legislation to include indecent material in which a child (whether engaged in sexual activity or not) is depicted or described in a way that is likely to cause offence to reasonable adult members of the community. He concluded that whatever else the video tapes of boys urinating and changing clothes might be called, it was not child pornography. Moreover, while the manner in which the films were made might be offensive, the matter, namely, the actual scenes depicted in the film, was not offensive to contemporary standards so as to be classified as indecent, immoral or obscene.
[71] See the remarks of the Attorney-General during the committee stage of the debate on the Bill, South Australia, Parliamentary Debates, House of Assembly, 8 December 2004, 1252 (M J Atkinson, Attorney-General).
[72] (1994) 75 A Crim R 480.
The decision in Phillips prompted the Parliament to amend the CLCA. The terms of the amending Act concerning child pornography were considered in R v Clarke.[73]Doyle CJ, with whom Bleby and David JJ agreed, said that the purpose of the amending legislation is to protect children from exploitation, degradation and humiliation through child pornography. The aim of the legislation is to reduce, and as far as possible eliminate, possession, production, supply and sale of child pornography. This is achieved by increasing penalties, introducing new offences and widening the definition of child pornography.[74]
[73] [2008] SASC 100, (2008) 100 SASR 363.
[74] [2008] SASC 100 at [18], (2008) 100 SASR 363 at 370.
Part of the underlying purpose in widening the definition of child pornography is to allow for the prosecution of offences where the material may be highly offensive but not overtly sexual. That is the work to be performed by subparagraph (a)(ii) of the definition of “child pornography”. Another part of the underlying purpose is to address difficulties of proof in relation to the intention of accused persons. This is achieved by allowing for the prosecution of accused persons, on the one hand, where it can be proved their production, dissemination or possession of such material was intended to excite or gratify sexual interest, and on the other hand, where the intention to excite or gratify sexual interest is apparent on the face of the material. The relevant intention is that of the accused person.[75] The relevant sexual interest could be that of the accused person but need not be. It is sufficient if the intention or apparent intention was to excite or gratify the sexual interest of any person. The definition addresses both these circumstances. It creates two paths to proof, namely, either actual intention or apparent intention.
[75] He Kaw Teh v The Queen (1985) 157 CLR 523.
Some assistance in construing the child pornography provisions is obtained from consideration of the terms of s 63C(1). The enactment of s 63C(1) changed the law as it existed when Phillips was decided. It permits consideration of the circumstances in which the material existed or was brought into existence. While s 63C(1) is concerned with the determination of whether material is of a pornographic nature, the determination of that question will inform the finding by the tribunal of fact of the intention of an accused person who produces, disseminates or possesses the material. Consideration of s 63C(1) assists in understanding the work the Parliament intended to be performed by both actual and apparent intention. In respect of actual intention, the tribunal of fact has the assistance of s 63C(1) in making a finding of the accused’s knowledge of the pornographic nature or otherwise of the material. The judge or jury can have regard to the circumstances of the material’s production, use or intended use for that purpose. In respect of apparent intention, however, the circumstances of the material’s production, use or intended use, cannot deprive it of its pornographic character if that is apparent on its face. It follows that a finding of apparent intention is to be made on the face of the material, uninformed by the circumstances of the material’s production, use or intended use. To put it in a different way, apparent intention cannot be inferred from a consideration of the circumstances of the production, use or apparent use of the material. Apparent intention is to be decided by an objective evaluation of the material only. By way of contrast, actual intention can be inferred from surrounding circumstances including but not confined to the circumstances of the production, use or apparent use of the material. An accused’s actual intention can be inferred from his or her conduct.[76]
[76] Vallance v The Queen (1961) 108 CLR 56 at 82; R v Khazaal [2012] HCA 26 at [100], (2012) 246 CLR 601 at 629.
If the tribunal of fact, whether judge or jury, is satisfied beyond reasonable doubt either (1) that the accused intended the material in his or her possession to excite or gratify any person’s sexual interest, including by reason of the circumstances of its production, use or intended use, or (2) it is apparent on the face of the material that the accused intended the material in his or her possession to excite or gratify any person’s sexual interest, because of its inherent pornographic nature, then, subject to excluding the exculpatory matters in s 63C(2), (3) and (4) or the establishment of the statutory defence in s 63A(2), the accused will be guilty of contravening s 63A.
Against this analysis I turn to consider whether the jury’s verdict is unsafe or unsatisfactory. Upon the whole of the evidence was it open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence of possessing child pornography? Must the jury have entertained a doubt that any of the images in counts 1 to 5 inclusive were intended or apparently intended by the applicant to excite or gratify sexual interest? If there is a reasonable doubt as to his guilt of the basic offence he cannot be guilty of the aggravated offence.
It is necessary to consider each count separately. In considering each count it is necessary to consider the two paths to proof, namely, actual and apparent intention. In relation to the former, the court must consider the application of the provisions of s 63C(1). In this context I note that relevant to a consideration of the circumstances of the production, use or intended use of the material in counts 1, 3 and 4, is that the images, on their face, appear to have been downloaded from a website called “RB”, and that the image in count 5, after being downloaded to the applicant’s computer, was copied to another folder on his computer entitled “Porn”. I consider it is also relevant that each of the images in counts 1 to 5 inclusive were found in the same folder on the applicant’s computer.
It is not apparent on their face that the images in counts 1, 3 and 4 are intended to excite or gratify sexual interest. They are beach scenes of naked prepubescent children seemingly photographed at a nudist camp. Apparent intention is to be decided by an objective evaluation of the material only. The images are not overtly or covertly sexual. An interest in exhibitionism is not necessarily a sexual interest. The naked display of the human body is not necessarily sexual. The purpose of this aspect of the criminal law is to protect children from exploitation, degradation and humiliation through child pornography. It is not to criminalise innocent photography of family or friends. Neither is it the purpose of the criminal law to prohibit the appreciation of the human form. It is at least a reasonable possibility that the images could have a purpose other than to excite or gratify sexual interest. However, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the actual intention of the applicant in possessing the images (if that was in fact the case, which I will come to shortly) was to excite or gratify sexual interest. Evidence of the circumstances of their production and intended use can be inferred from the identification of their provenance as coming from the “RB” website together with the fact that the images were found with other images of naked children, some apparently related and others apparently unrelated, in a computer folder. That is evidence from which an actual intention to excite or gratify sexual interest can be inferred. They are not the applicant’s holiday snaps. The intention of the person or persons who originally took the photographs is irrelevant. It is the intention of the accused which is relevant. There is nothing unsafe or unsatisfactory in that finding. In my view, it cannot be that the jury must have entertained a doubt that any of the images in counts 1, 3 or 4 were intended by the applicant (if they were in his possession) to excite or gratify sexual interest.
The position in relation to the image in count 5 is more problematic. The image is of three naked pubescent teenage females standing in a shower. The breasts and pubic region of the female in the foreground of the photo are clearly visible. The image is neither overtly or covertly sexual. On its face, it is only the depiction of the nude female form. As apparent intention is to be decided by an objective evaluation of the image only, I consider a jury must have entertained a reasonable doubt that the image was apparently intended by the applicant (if it was in his possession) to excite or gratify sexual interest. However, as with the images in relation to counts 1, 3 and 4, I consider that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the actual intention of the applicant in possessing the image (if that was in fact the case) was to excite or gratify sexual interest. Unlike the images in counts 1, 3 and 4, the provenance of the photograph cannot be identified. The image cannot be identified as having been downloaded from a particular website. Nonetheless, the image was transferred from one computer folder to another entitled “Porn”. That is a sufficient evidentiary basis from which an actual intention to excite or gratify sexual interest can have been inferred by the jury. Whether such an inference could have been drawn against the applicant depends on whether the evidence permitted the jury to find that he copied the image to the folder “Porn”. I will come to this question shortly.
Likewise, it is not apparent on its face that the image in count 2 is intended to excite or gratify sexual interest. The image is a photograph of a naked female apparently under the age of 16 years in a gymnasium. Again her breasts and pubic region are clearly visible. Considered in isolation the image is not overtly or covertly sexual. The naked display of the human body is not necessarily sexual. It is at least a reasonable possibility that the image could have a purpose other than to excite or gratify sexual interest. However, again, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the actual intention of the applicant in possessing the image (if that was in fact the case) was to excite or gratify sexual interest. Evidence of the fact that the image was found with other images of naked children in a computer folder, that image apparently unrelated to those other images other than that they depict naked children, gives rise to an inference from which that actual intention can be drawn. There is nothing unsafe or unsatisfactory in the finding that the applicant’s actual intention in possessing the image was to excite or gratify sexual interest. It cannot be said that the jury must have entertained a doubt that the image was intended by the applicant (if it was in his possession) to excite or gratify sexual interest.
I would dismiss ground 3.
Ground 2: were they children within the definition in the CLCA?
It is convenient to deal next with ground 2. In relation to counts 5 and 6, was it open to the jury to find beyond reasonable doubt that the images depict or appear to depict persons under the age of 16?
“Child” was defined at the relevant time to mean a person under, or apparently under, the age of 16 years.
In this case the prosecution did not seek to prove that the persons depicted in the images the subject of counts 5 and 6 were, as a matter of fact, under the age of 16. Instead, the charges were prosecuted on the basis that the persons depicted were apparently under the age of 16 years.
The definition of “child” in s 62 of the CLCA was considered by this Court in Clarke.[77] Clarke concerned the conviction of the appellant for contravening s 63B of the CLCA. Section 63B makes it an offence to procure a child to commit an indecent act. The issue was whether a defence of honest and reasonable mistake of fact was available. The appellant’s defence was that she believed the victims were over the age of 16. The Court held the defence was not available. The nature of the offence requires that the tribunal of fact makes its own assessment of the evidence and does not consider the opinion or the belief of the accused. In the course of his reasons, Doyle CJ[78] considered the phrase “apparently under the age of 16 years” in the definition of “child” in s 62. He held that whether a person is apparently under the age of 16 years is a question of fact to be determined objectively by the trier of fact, based on the evidence and using the trier of fact’s own experience and knowledge. He said:[79]
[T]he fact that the definition of “child” includes a person “apparently under the age of 16 years” makes plain, if that was necessary, that persons who disseminate or possess pornography may commit an offence if the person the subject of the pornography appears to be under the age of 16 years, even if there is no means of knowing or proving the actual age of the person. The reason for a provision of this kind is obvious. It will often be impossible to identify the person the subject of pornography, and so impossible to prove the person’s age.
[77] R v Clarke [2008] SASC 100, (2008) 100 SASR 363.
[78] David J agreeing at [106] and Bleby J coming to the same conclusion in separate reasons at [65].
[79] R v Clarke [2008] SASC 100 at [19], (2008) 100 SASR 363 at 370.
Doyle CJ approved the following passage in the reasons of Bleby J in Police v Kennedy where the Court considered an appeal against a conviction for possession of child pornography where the definition of “child” was in the same terms as s 62, as it stood at the time of the offence for which the applicant was convicted:[80]
[W]hether a person is apparently under the age of 16 is a question of fact to be determined by the magistrate. In that regard, the magistrate may or may not be assisted by the leading of expert evidence. However, ultimately the magistrate must exercise his or her fact-finding role. Where that involves, as it does here, a qualitative assessment of a person's apparent age, that will be a matter of judgment, based on all the evidence, and on which the magistrate will bring to bear his or her own experience, commonsense and judgment, in the same way as a member of a jury would be required to do if this were an indictable offence…
[80] (1998) 71 SASR 175 at 186.

In Kennedy Bleby J further said:[81]
The question of the apparent age of a person will always be a jury question. It will be for the finder of fact, if there is no evidence of actual age, to say whether a person is apparently under the age of 16. Expert evidence will seldom help. It may perhaps assist in reaching the factual finding as to whether a particular person is apparently under the age of 16 by reference to usual facial, bodily, genital and other features of children of various ages.
[81] (1998) 71 SASR 175 at 191.
He concluded that at the end of the day it is for the court and not an expert to decide whether or not the prosecution has proved beyond reasonable doubt that the victim is apparently under the age of 16.
It follows that a person can be convicted of an offence under s 63A even if the victim is in fact not under the age of 16, so long as the tribunal of fact is satisfied beyond reasonable doubt on the objective evidence that the victim is apparently under the age of 16.
In this case the jury heard evidence from two experts, Dr Tham, a paediatrician, and Professor Henneberg, an anatomist. Professor Henneberg gave evidence that you could determine an age range of persons from photographic evidence by reference to visible biological characteristics such as size, body shape and proportion, body fat distribution, breast enlargement and testes enlargement. He gave evidence that he considered the images in counts 5 and 6 and was of the opinion that each of the persons depicted was 16 years or older. Dr Tham gave evidence that there are various stages of human development but you cannot accurately identify the age a child from photographic evidence. Photographs do not enable a determination of the minimum chronological age of a person depicted in a photograph.
Having heard that evidence, consistent with the authority of Clarke and Kennedy, it was for the jury to make its own finding with respect to the apparent age of the persons depicted in the photographs the subject of counts 5 and 6.
In my view, because the issue of the apparent age of the victims in counts 5 and 6 is a jury question, the only basis upon which this Court should interfere with the constitutional role of the jury in making this finding of fact is if the Court considers it was not open to the jury to find on the objective evidence that the persons depicted were under the age of 16. That question is to be decided as at the time the images were created.[82] If this Court considers that on an objective evaluation of the evidence the persons depicted were capable of being under the age of 16, the jury’s finding was open. In those circumstances, it was open to the jury to be satisfied beyond reasonable doubt that the persons depicted were apparently under the age of 16. If, on the other hand, the Court considers that on an objective evaluation of the evidence the persons depicted were not capable of being under 16 years of age the verdict would be unsafe and unsatisfactory.
[82] F, BV v Magistrates Court of South Australia & Anor [2013] SASCFC 1 at [73] – [74], (2013) 115 SASR 232 at 256 – 257.
The position would be different if the definition of “child” did not refer to a person “apparently under the age of 16 years”. If the definition of child was simply a person under the age of 16 years then the role of this Court on appeal, on this ground, would be to ask whether there was a reasonable doubt a jury must have entertained that the persons depicted were not under the age of 16.
Having considered the images in relation to counts 5 and 6, I am satisfied that, on an objective evaluation of the evidence of the persons depicted, they might have been under the age of 16 years. I form that view on an overall assessment of their physical appearance. In this context I must address a submission put by the applicant that in making any finding as to whether the persons depicted in the photograph that is the subject of count 6, it was necessary to consider that this image was found on the applicant’s laptop with another 85 images all depicting adult pornography. The applicant submits that in this context, the jury should have had a reasonable doubt that the persons depicted in the photograph the subject of count 6 were under the age of 16. I reject this submission. The jury were to decide whether the persons depicted in the photograph were under or apparently under the age of 16 by reference only to the evidence of those persons not others. The requirement to consider context in s 63C(1) applies to the determination of whether material the subject of a charge is of a pornographic nature, not whether a person involved is a “child” as defined. Accordingly, it was open to the jury to find that the persons depicted were apparently under the age of 16 years. That finding is not unsafe or unsatisfactory.
I would dismiss ground 2.
Ground 1: possession
The applicant submits that in relation to counts 1 to 5 inclusive, it was not open to the jury to find beyond reasonable doubt that the applicant had these images in his possession. There is no complaint in relation to the applicant’s possession of the image in count 6. The images in counts 1 to 5 were found on the applicant’s home office computer.
In the criminal law, possession is best understood as a reference to a state of affairs in which there is the intentional exercise of physical custody or control over something.[83] In Davis v The Queen[84] Malcolm CJ said:
[P]ossession involves an intention to possess in the sense that it involves custody or control with knowledge.
[83] He Kaw Teh v The Queen [1985] HCA 43, (1985) 157 CLR 523 at 599.
[84] (1990) 50 A Crim R 55 at 64.
In He Kaw Teh v The Queen[85] Gibbs CJ reviewed the authorities in relation to possession and said:[86]
[W]here a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence (“in his possession”) themselves necessarily import a mental element.
[85] [1985] HCA 43, (1985) 157 CLR 523.
[86] [1985] HCA 43, (1985) 157 CLR 523 at 539.
These observations were cited in Tabe v The Queen[87] by Gleeson CJ in the course of considering the concept of possession in s 9 of the Drugs Misuse Act 1986 (Qld) and whether that concept involved, as an element, knowledge that the object possessed was a dangerous drug. He said:[88]
The fact in issue, knowledge, is not limited to knowledge gained from personal observation, or certainty based upon belief in information obtained from a third party, although those states of mind would suffice. The word “awareness” is sometimes used as a synonym. A belief in the likelihood, “in the sense that there was a significant or real chance”, of the fact to be known, will suffice.
(Citations omitted).
[87] [2005] HCA 59, (2005) 225 CLR 418.
[88] [2005] HCA 59 at [10], (2005) 225 CLR 418 at 424.
In Saad v The Queen[89] Mason CJ, Deane and Dawson JJ held that where it is necessary to show an accused person’s intention to possess a narcotic drug, that intent is established if he or she knew or was aware that an article intentionally in his or her possession comprised or contained a narcotic drug. Their Honours said:[90]
That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct.
[89] [1987] HCA 14, (1987) 29 A Crim R 20.
[90] [1987] HCA 14, (1987) 29 A Crim R 20 at 21.
For a person to be found guilty of possession of child pornography it is necessary to prove beyond reasonable doubt that he or she has knowledge of the existence of the material allegedly in the person’s possession. The applicant could not have been in possession of the child pornography material if he was not aware of it. Accordingly, it was necessary for the prosecution to prove that knowledge. That is knowledge of the fact the images in counts 1 to 5 were stored in his home office computer.
The requisite knowledge necessary for a charge of possession of child pornography to be established can be proved in a number of ways. First, if there is evidence that the accused has downloaded and viewed images of child pornography on his or her computer, that would prove possession. Second, if there is evidence that the accused has been informed by another person that that person has downloaded child pornography onto the accused’s computer, that would prove possession. But evidence of possession is not confined to actual knowledge on the part of an accused. There is a third way knowledge can be proved. A person known to the accused may have used the accused’s computer in the past, with the accused’s knowledge, for the purpose of downloading child pornography. If there is evidence the accused sees this person using his computer downloading something, it is open to the jury to infer that the accused is aware, based on past experience, that as a result there is a likelihood in the sense of a significant or real chance, that his computer now contains child pornography.[91]
[91] Sabourne v State of Western Australia [2010] WASCA 242 at [29].
The images in counts 1 to 5 were located on the applicant’s home office computer. They were found in a pathway that was the applicant’s business application, namely, GM Law / My Pictures / JessPhone. The evidence from the applicant’s computer expert, Dr Sorell, was that the images the subject of counts 1 to 5 contained in the “JessPhone” folder were consistent, but not conclusive, with having been transferred from an external device. This material was on the applicant’s computer from at least 25 March 2011. The evidence was that the image in count 5 was copied from the “JessPhone” folder to the “Porn” folder on the computer. The evidence was that this was done manually.[92]
[92] T 266.
Against this, the jury had to consider the evidence of Ms Markovic that a number of people had access to the home office computer of the applicant, including not just the applicant but Ms Markovic and the applicant’s friend Jess; that Ms Markovic had seen Jess using the computer; and that the “JessPhone” folder contained not just the images in counts 1 to 5 but other photos such as a dog and young women taking pictures of themselves.
It is convenient to deal discretely with the images in counts 1 to 4 from the image in count 5.
In my view, the evidence does not go so far as to prove that the applicant downloaded or transferred those images from an external device on his computer and viewed them. There is no evidence that falls within the second and third categories of proof of possession discussed above. There is no evidence that he was informed by another person that child pornography had been downloaded onto his computer. For that matter, there is no evidence that he had been informed that the images in counts 1 to 5 had been downloaded onto his computer. Nor is there any evidence upon which it was open to the jury to infer that the applicant was aware based on past experience that there was a likelihood in the sense of a significant or real chance that his computer contained child pornography. As to the first category, there is no direct evidence of the applicant downloading or viewing the images in counts 1 to 4. The prosecution’s case is circumstantial. The evidence that he downloaded or transferred these images from an external device is inferential. It depends on his ownership of the computer, its presence in his home and the pathway to the images through his business folder.
Given this evidence, was there a hypothesis consistent with innocence which the jury could not reasonably have rejected?
In my view, if the jury were to accept the evidence of Ms Markovic that Jess had used the computer, I consider it is a reasonable possibility that she might well have created a folder that she could use for her own purposes on the computer identifiable by reference to the source of that folder’s contents.
The prosecution submits that it was open to the jury to reject Ms Markovic’s evidence. It submits she was an unconvincing witness whose evidence was vague, inconsistent and sometimes contradictory.
Those criticisms were open on the evidence but that does not mean that the jury should have rejected the evidence Ms Markovic gave of Jess using the computer. She was unshaken in her evidence of the existence of Jess, that Jess was the applicant’s girlfriend and she had seen her using the computer. In my view, the prosecution has not excluded the possibility that the images in counts 1 to 4 were not downloaded by the applicant and that he was not otherwise aware of their existence on his computer. I consider the jury, acting reasonably, should have entertained a doubt about the applicant’s knowledge of the existence of the images in counts 1 to 4 in the “JessPhone” folder on his computer.
I consider the position in relation to the image in count 5 is different because of the copying of this image to the “Porn” folder. The manual transfer of this image from the “JessPhone” folder to the “Porn” folder is evidence that some person who used the computer had copied the image in count 5 and therefore viewed it. The issue is whether the evidence proves beyond reasonable doubt that the identity of that person is the applicant. While the pathway Work / Documents / My Pictures / Porn on the applicant’s computer might suggest it is more likely the applicant was that person, I consider it possible somebody else, who had access to his computer, might have copied the image, particularly given the evidence of Dr Sorell that the copying probably occurred within minutes of the transfer of the contents of the “JessPhone” folder onto the computer.[93] That makes it more than possible that whoever downloaded or transferred the contents of the “JessPhone” folder onto the applicant’s computer also copied the image in count 5 to the “Porn” folder. The prosecution did not exclude the reasonable possibility that it was someone other than the applicant who was responsible for copying the image to the “Porn” folder. It follows that I consider the jury must have entertained a reasonable doubt that it was the applicant who had copied the image to the “Porn” folder. Without being satisfied that the applicant was the person who copied the image to the “Porn” folder, the prosecution has not proved the applicant had the requisite knowledge of the presence of that image on his computer. Accordingly, I consider the jury must have entertained a reasonable doubt about his possession of the image in count 5.
[93] T 266.
For these reasons I consider that the verdicts in relation to counts 1 to 5 are unsafe and unsatisfactory. As the evidence is not capable of supporting the applicant’s conviction on counts 1 to 5 no question of an order for a new trial arises.
I would grant permission to appeal on ground 1. I would allow the appeal in relation to counts 1 to 5.
Disposition of the appeal
I would grant permission to appeal. I would allow the appeal and quash the verdicts on counts 1 to 5. I would enter verdicts of acquittal in respect of each of these counts. The verdict of guilty in relation to count 6 stands. I would remit the matter to the trial judge for resentencing.