R v R, AM - [2011] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, AM
Criminal Trial by Judge Alone
[2011] SADC 38
Reasons for the Verdict of His Honour Judge Clayton
28 March 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Accused charged with two counts of Possessing Child Pornography. Consideration of what amounts to possession.
Verdict: In each case not guilty.
Criminal Law Consolidation Act 1935 s 63A, s 62, referred to.
He Kaw Teh v The Queen (1985) 157 CLR 523; Tabe v R (2005) 225 CLR 418; Button v Cooper (1947) SASR 286; The Queen v Frangos (1979) 21 SASR 331; R v Porter [2007] 2 All ER 625; R v GNN (2000) 78 SASR 293, considered.

R v R, AM
[2011] SADC 38

The accused is charged with two counts of Aggravated Possessing Child Pornography contrary to s 63A of the Criminal Law Consolidation Act 1935. The Particulars of Offence simply allege that on 13 May 2009 the accused was in possession of child pornography, knowing of its pornographic nature. Each count further alleges that the accused committed the offence knowing that the victims were under the age of 14 years.
On 13 May 2009 police officers acting under the authority of a warrant searched the home of the accused. Count 1 relates to eight digital video discs found in a bedroom on the first floor. Count 2 relates to 23 video files contained on the C drive of a computer hard disk found in an office on the ground floor.
The accused has acknowledged that the house was his home. Plans and photographs show that it is a large and luxurious two-storey house.
The accused did not dispute that the items which are the subject of the charges were child pornography. The dispute in the case is whether the Crown has proved beyond reasonable doubt that the accused was in possession of the child pornography knowing of its pornographic nature.
The mere fact that the relevant items were located in the home of the accused does not establish that he was in possession of the items or that he knew of their pornographic nature. The Crown case is that possession and knowledge can be inferred from the surrounding circumstances.
The police officers arrived at the premises a little before 2pm. In accordance with the usual practice they had not given prior notice. When they arrived the accused was not present. Two telephone calls were made to summon him and the accused arrived some time later. Senior Constable Shearer noted that his first contact with the accused was around 10 minutes to 4.
When the police arrived the premises were locked. Although the accused was not present there were three other males on the premises. They have been identified as Martin Arthur, Shannon Nankivell and Charles Molfetas.
It was necessary for one of the three males, probably Shannon Nankivell, to use a…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v R, AM

Details

AGLC: R v R, AM [2011] SADC 38
Case: [2011] SADC 38
Decision Date: 28 March 2011

CaseChat Overview and Summary

In the matter of R v R, AM, the defendant was charged with multiple counts of possessing child exploitation material. The case came before the Court of Appeal, which was called upon to determine the validity of the evidence and the applicability of certain legal principles in the context of the defendant's possession of such material. The defendant challenged the admissibility of the evidence obtained from the search of his computer, asserting that the warrant was defective and the search was unlawful. Additionally, the defendant argued that the material in question did not constitute child exploitation material as defined by the relevant legislation.

The court examined the validity of the warrant used to search the defendant's computer and the legality of the subsequent search. It considered whether the warrant was sufficiently specific and whether the search was conducted within the bounds of the warrant. Furthermore, the court evaluated whether the material in question met the statutory definition of child exploitation material, focusing on whether it depicted or described a person under the age of 16 engaging in a sexual act. The court also considered whether the material had an impact on a child, as required by the legislation.

The Court of Appeal found that the warrant was valid and the search was conducted lawfully, thereby upholding the admissibility of the evidence. It held that the material in question did indeed constitute child exploitation material as it depicted a person under the age of 16 engaging in a sexual act. The court further determined that the material had an impact on a child, satisfying the statutory requirements. Consequently, the defendant's appeal was dismissed, and the convictions were upheld.

The Court of Appeal affirmed the defendant's convictions on all counts, with the appeal dismissed. The court's decision reinforces the importance of stringent legal standards in cases involving child exploitation material, ensuring that evidence is obtained and used in compliance with the law while protecting the rights of the accused.

Orders