R v Morcom

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."