R v Morcom

Case [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…

Continue reading R v Morcom

Sign in free to access the full text

Details
AGLC
R v Morcom [2015] SASCFC 30
Case
[2015] SASCFC 30
Decision Date

CaseChat Overview and Summary

The applicant, Gregory Morcom, sought permission to appeal against his conviction by a Supreme Court jury on six counts of possessing child pornography, contrary to s 63A of the *Criminal Law Consolidation Act 1935* (SA). The appeal raised questions regarding whether the jury could have reasonably found the material to be "pornographic," whether the depicted persons were apparently under 16 years of age, whether the applicant possessed the first five images, and whether knowledge of the depicted persons' age was an element of the offence.

The court was required to determine the meaning of "pornographic" within the context of the Act, considering whether an objective or subjective intention was relevant. It also had to assess whether the evidence supported a finding of possession beyond reasonable doubt, particularly in light of the applicant's contention that another individual may have placed the images on his computer without his knowledge. Finally, the court considered whether the offence required the applicant to know that the individuals depicted were under or apparently under the age of 16 years.

The court reasoned that the definition of child pornography under the Act, and similar legislative regimes, required an objective construction. It held that the "intended or apparently intended" wording in the definition did not create alternative categories based on subjective intention, but rather referred to an intention or use to be imputed to the item based on its prescribed design features and ordinary use. Applying this objective test, the court found that the classification of goods, including prohibited items, is determined by their intrinsic nature and the ordinary use to which they might reasonably be put, rather than the specific intentions of the possessor. The court also considered the circumstantial evidence presented by the prosecution regarding possession, which included the applicant's ownership and use of the computers and hard drives, his living alone, and the presence of adult pornography on his laptop, contrasting this with the applicant's reliance on the evidence of Ms Markovic regarding the potential involvement of "Jess."

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

BLUE JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BLUE JJ

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).