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 key to give the police officers access.
The doors to the bedroom and the office where the relevant items were found were also opened with the use of the key prior to the return home of the accused. The evidence does not disclose who opened the doors but it is clear that at least one of the other three males had a key and free access to the rooms.
Senior Constable Shearer and Detective Brevet Sergeant Talbot searched the upstairs bedroom which was described as the master bedroom. They lifted the bed and under some bedding found a box containing 11 discs. They also found other items including a DVD player, other discs and videos.
There are photographs of the bedroom which show clothing hanging on a rack. Senior Constable Shearer looked at the clothing but his evidence do did not identify the owner. The evidence did not identify the occupant of that bedroom.
Senior Constable Shearer searched another bedroom on the first floor and a storeroom but found nothing of interest.
Later that day Senior Constable Shearer received another four DVD discs which had also been found in the upstairs bedroom from Detective Sergeant O'Reilly. He viewed the discs, two of which showed children involved in sexual activities. Those two discs were labelled "DD 10" and "111".
Detective Brevet Sergeant Talbot and Senior Constables Shearer, Jamieson, Fraser, Bourne, and Strange all participated in the search of the "office" on the lower level. Mr R was also present. Some of those persons came and went as the search proceeded.
In the drawers of a filing cabinet detective Brevet Sergeant Talbot found some envelopes containing cash. He showed them to Mr R and then replaced them. He could not say how much money was in each of the envelopes.
Underneath a desk in that office the police officers found a hard plastic box containing five computer hard drives which have been referred to in this case as follows:
·    A Western Digital hard disk-Item 33.
·    A Quantum 3.5 series hard drive with a lengthy serial number ending in the figures 618-Item 34.
·    Another Quantum 3.5 series stamped with the number ending in the figures 202-Item 35.
·    A Seagate Barracuda serial number3HEOBRYO-Item 36.
·    Another Seagate Barracuda hard drive serial No. 3HEOAKIF-Item 37.
On top of a computer tower which was identified as Item 48 the police officers located a Kingston Data Traveller, a 16 GB Flash drive and an 8 GB SanDisk Flash drive.
Photographs taken in the office show a plaque and documents relating to businesses connected with Mr R. The Crown relies upon those photographs to prove a connection between Mr R and the room. I accept the Crown submission as to the plaque and the documents but I do not think that the photographs take the matter beyond the obvious fact that the office was a room in Mr R's home.
The computer hard disks found in the plastic container (Items 33 to 37 inclusive) were taken to the Electronic Crime Section for examination. A further disk (Item 66 - exhibit P15) was made containing extracts from those hard disks and the discs found in the computer tower. Reports printed from Item 66 described three videos located on Item 36. They are summarised in a table prepared by Senior Constable Jamieson. The table which is exhibit P16 includes the file name, a description of the content, and Senior Constable Jamieson's estimate of the age of the persons shown in the video. Senior Constable Jamieson prepared similar tables in relation to other exhibits.[1]
[1] Exhibit P17.
Senior Constable Jamieson also printed a report in relation to video images contained in Item 37. That report summarised 23 files and included a similar table setting out the filename, the content and the estimated age.[2]
[2] Exhibit P18.
Senior Constable Jamieson also viewed the images on the disk that was received from E-Crime (PCHD1). He described that as a deleted pictures file. He gave evidence that the images in Item 37 appeared to be the same as or stills from the video files.
Senior Constable Jamieson inspected the disk CHBRI1.3 which he retrieved from the PPMS. The number "111" had been marked on that disk. He prepared a table of what he observed setting out filenames, a description of what he viewed under "content and his estimate of the age of the persons". He has highlighted videos that he believed to be similar to videos which he had previously viewed on other discs.
Senior Constable Jamieson also inspected Item 20 from the PPMS receipt which was marked "DD10" and he prepared a similar table setting out filename, content and his estimate of the age of the victim. He highlighted areas shown on the hard drive marked PPMS Item 37 which he believed were also on the videos seized from a bedroom and marked CHBRI 1.4 and CHBRI 1.5.
Senior Constable Jamieson confirmed that when the police officers arrived Mr R was not present, but that there were three males who had free rein of the house. Those three other males were not interviewed. No attempt was made to determine whether any of the other males had access to the office or any other room in the house.
In the report referred to by Senior Constable Jamieson there is a reference to images which had been deleted from hard drives and then retrieved by E‑Crime. Senior Constable Jamieson said that no enquiries were made of E‑Crime to determine whether the retrieved files could have been accessed by somebody in the know.[3]
[3] T 81.
Cross-examination of Senior Constable Jamieson established that there was a period of over five minutes between when the police officers first rang the doorbell and when they gained access and that it was possible that there was a conversation amongst the police officers about concerns that the people within the house might be hiding things because of the delay between when the police officers arrived at the house and when they gained access. Later he acknowledged that a period of 10 minutes and 18 seconds passed before the police actually gained access to the house.[4] He acknowledged that people can move items from one location to another during a delay in gaining access.
[4] T 81.
None of the exhibits that were seized were submitted for fingerprint identification or DNA analysis, although Mr R was fingerprinted and a buccal swab was taken to obtain his DNA.
The other occupants of the house were not questioned as to their knowledge of or access to the computer equipment or discs.[5]
[5] T 83.
Senior Constable Jamieson was referred to the report which is exhibit P16. It shows that the first file had been created on 20 January 2004 and had last been accessed on 16 August 2004. No investigation was made as to where the accused was on those dates. He said that no investigation was made as to whether the accused had access to any items of material that were recovered.[6] Senior Constable Jamieson did not know whether any investigation was made as to who had access to the items, how old the hard drives were, or whether there were previous owners who had used the hard drives.[7]
[6] T 86.
[7] T 86.
E-Crime only analysed the hard drives. The video recordings which were seized were not submitted to E-Crime and no analysis has been carried out as to the circumstances in which the files came to be on the discs.[8]
[8] T 86.
Detective Sergeant O'Reilley examined the DVDs marked CHBRI1.2 and saw what appeared to be child pornography. On 2 June 2009 O'Reilley again examined the 11 discs marked CHBRI1.2 and saw that on discs marked CHBRI1.2.6 to 1.2.11 there was child pornography. There was no child pornography on the discs marked 1.2.1 to 1.2.5. He prepared a table setting out the content of what he observed and the estimated age of the persons in the videos. He looked at all the videos. His table is exhibit P19.
Dr Yi–Chi Lin is an evidence support officer at the Electronic Crime Section of the South Australian Police. He has undertaken studies in the area of computer science and has finished Bachelors and Masters degrees and a PhD. He said that as an evidence support officer his work involves computer forensics or retrieving evidence from a computer. He has worked for SAPOL for about 2½ years.
Dr Lin said that when a file is deleted from a computer the file information and the file can either remain on the computer or it can be over written. If it is overwritten it is not possible to retrieve the file, although sometimes a file will still be available although the information about it has been over written.[9]
[9] T 96.
Dr Lin examined the computer hard disks which had been seized by the police and he prepared a report.[10] The results of his analysis can be summarised as follows:
[10] Exhibit P20.
·       On the Western Digital hard drive Item 33 there was no date or time information, no operating system accounts and no relevant information.
·       On the Quantum Fireball hard disk Item 34 there was a Microsoft Windows 98 operating system. The registered owner for that system in the hard disk was shown as (R). Dr Lin gleaned that information from the Windows registry file but was not able to say who had entered the information. The installation date of that operating system was 10 October 2001. There was no other information that was relevant on that file.
·       On the Quantum Fireball hard disk which was Item 35 there was no date and time information operating system or accounts. Dr Lin was looking for relevant material relating to children. On Item 35 he located the deleted files which were picture files. There was no Windows data for the pictures. It was not possible to determine any information about when the files came to be on the computer or when they were altered or deleted.
·       On the Seagate hard disk which was Item 36 there was no date and time information, operating system or accounts. Dr Lin did find some files which were "possibly of evidentiary value" which appeared to be video files but the files had been deleted.[11] The last date that the file was accessed was 16 August 2004. Dr Lin could not identify the way in which the file was accessed.
·       The Seagate hard disk which was Item 37 had no date and time information operating system or accounts. The disc contained files which had been saved in the full path. He did not determine how the information came to be on the computer. All the video files that are referred to in that particular report were saved on the computer and were not deleted.
·       The computer tower which was Item 48 was examined. There were four hard disks in that computer.
oThe first hard drive was identified as PCHD1. There were no operating systems and no accounts. Seven files which appear to have been deleted previously were retrieved for possible evidential value.
oThe second hard drive (PCHD2) had a Microsoft Windows XP operating system. The registered owner was simply described as "owner". The installation date was 9 May 2009 and the last shutdown time was 12 May 2009. There was an account called "Tony" in that computer. The account identifies a user. The last logon in the name "Tony" was 12 May 2009.
oNeither of the other two hard drives PCHD3 and PCHD4 contained any relevant information.
oThere was no relevant information on either of the two USB devices.
[11] T 102.
In cross-examination Dr Lin said that in PCHD1 there were seven files of possible evidentiary value which appeared to have been deleted previously. That deleted material was no longer visible using the Windows operating system. Dr Lin agreed that with a Windows operating system once a file is deleted from the users perspective the file is gone forever. If that hard drive had been purchased from a person who had previously deleted the seven files a subsequent user operating Windows may never know that hard drive contained seven deleted files of a pornographic nature.[12] The purchaser would have no way of knowing simply by looking at Windows. Dr Lin could not say when the seven files had been deleted.
[12] T 110.
Of the four hard drives taken from the computer tower only PCHD1 had files of evidentiary value, but they had been deleted and there is no way of knowing how long the files had been on the hard drive, when they were deleted, or who was responsible for putting them on the drive or deleting them.[13]
[13] T 112.
Dr Lin said that once the file was deleted Windows would never recognize it and it could never be read or accessed in any way by a Windows operating system. In order to access those seven files one would need special knowledge with special equipment.[14] A normal person using Windows could never identify the existence of the previously deleted files.
[14] T 113.
Child Pornography
For present purposes what amounts to "child pornography" is defined by s 62 of the Criminal Law Consolidation Act 1935 as follows:
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;…
I must be satisfied of all of the elements of the offence. The accused did not challenge the classification of the relevant items as child pornography. The evidence of the police officers satisfies me that the Crown has proved beyond reasonable doubt that the relevant items are child pornography within the meaning of the Act.
Possession
The Crown must prove that the accused was in possession of the child pornography.
Possession and ownership are different concepts. In order to have possession of an object a person must at the relevant time intentionally have control over the object. The questions to be considered are knowledge, custody and control of the relevant items.
In He Kaw Teh v The Queen (1985) 157 CLR 523 Gibbs CJ said:
…where 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…
In Tabe v The Queen (2005) 225 CLR 418 Gleeson CJ said at 423:
…Lord Diplock said that in ordinary usage, "one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control". The concept of "knowledge", however, is imprecise. This, no doubt, is why Aickin J spoke of "sufficient knowledge of the presence of the drug" in Williams v The Queen. The answer to a question as to what constitutes "sufficient knowledge" for possession depends upon the purpose for which, and the context in which, the question is asked…
In the same case Callinan and Heydon JJ said at 446:
The majority of the court in He Kaw Teh concluded that in the absence of a sufficient indication of contrary intention, knowledge of the accused that he or she had custody of the prohibited goods is a necessary ingredient of an offence of having possession of those goods; the word "possession" necessarily imports a mental element…
There is no contest that the house in which the items were discovered was the home of the accused. However that fact is not sufficient to establish possession.
On the topic of the proof of possession the remarks of Mayo J in Button v Cooper (1947) SASR 286 are instructive. His Honour said:
As to proof of possession, the relationship may be inferred from acts that are consistent therewith, and that are inconsistent with any more remote association. Such acts may be proved by direct or circumstantial evidence, or by admission, and may be disclosed by the person charged in the course of conversation…
In The Queen v Frangos (1979) 21 SASR 331 at 336.9 King CJ referred to the requirement that:
…In general, there is possession for this purpose where there is physical custody or control of the thing, together with the knowledge on the part of the accused that the thing is in his physical custody or control (Director of Public Prosecutions v Brooks [1974] AC 862.
In the same case Walters J said at 339:
Although what does constitute possession may vary according to each set of circumstances, and according to the context in which the word "possession" is used, it seems to me that in order to prove possession, it must ordinarily be shown that the possessor had the thing in his physical custody or control under circumstances which demonstrated that he had a conscious mental recognition of the thing’s presence, and that he was assenting to being in custody or control of it…
In order that a person should have exclusive physical control of an article, some knowledge or intention in him is necessary to associate him with the article, but this mental element extends no further than that inherent in such control, namely, the intention to have exclusive physical control of the article itself, or some other article, or some place wherein it is in fact carried or contained or located…

A person can have physical possession of an item notwithstanding that is not in his "manual custody" where it is on premises occupied by him.
The requirement for the Crown to prove knowledge to make out the offence presently under consideration is greater than is the case with other offences charging possession because in this case the Crown must prove that the accused was in "possession of child pornography knowing of its pornographic nature…".
A feature of the present case is that the child pornography is contained on the hard disks of a computer or DVDs. It has been held that a person is only in possession of computer images on the hard drives of computers if at the relevant time the person has the ability to retrieve those images.[15] In this context the evidence of Dr Lin is relevant.
[15] R v Porter [2007] 2 All ER 625.
In the present case the Crown must prove beyond reasonable doubt that the accused had knowledge of the relevant items, that he intended to exercise custody or control of the items, that he knew of their pornographic nature and the aggravating feature that the victims were under the age of 14.
There is no admission by the accused which establishes possession. The question therefore is whether possession of the relevant items and knowledge of their pornographic nature can be inferred from the facts which have been proved. Each count must be considered separately.
Count One - The DVD’s found in a Bedroom
There is no direct evidence that the accused knew of the presence of the DVD’s under the bed in the bedroom.
The fact that the DVD’s were found in a bedroom in the home of the accused is not by itself sufficient to establish possession.
The evidence does not establish that the bedroom was occupied by the accused. There is no evidence that the clothes hanging in the bedroom belonged to the accused and there is no evidence of other items which might connect the accused with the bedroom.
There is no DNA evidence. There is no fingerprint evidence.
There is no direct evidence that the accused was aware of the presence of the DVD’s found under the mattress and the four DVD’s found inside a chest of drawers.
There is evidence of three other persons being in the house, at least one of whom had a key to the bedroom.
Mr Edwardson QC relied upon the decision of R v GNN (2000) 78 SASR 293. In that case the fact that heroin was found in a house occupied by the accused was not of itself enough to establish possession. At 297 Doyle CJ referred to the importance of identifying the basic legal concepts involved - possession, knowledge, custody and control. His Honour said that the trial judge should have directed the jury that in order to convict the accused they would have to exclude the possibility that the accused had merely acquiesced in another person hiding heroin in her kitchen, in the sense of merely permitting him to conceal his heroin in her house.
The Chief Justice said that on the facts of that case the jury should have been told specifically that proof that the accused knew that the heroin was hidden in her kitchen did not establish that she was in possession of it. His Honour said:
The jury should have been told that they would also need to be satisfied either that she had hidden the heroin there herself, and was intending to exercise or assert control over it, or that the heroin had been hidden there by one of the men at her request, she intending thereafter to assert control over it. In that context it would be appropriate to warn the jury that possession by Ms GNN was not established by proving that she allowed one of the men to hide his heroin in her house.
The present prosecution case falls short of the case against Ms GNN. In the present case there is no evidence that the accused had actual knowledge of the presence of the relevant items.
In my opinion there is no evidence from which an inference can be drawn beyond reasonable doubt that the accused had knowledge of the presence of the relevant items. Additionally the Crown has not disproved the reasonable possibility that the items had been placed in the bedroom by one of the other occupants of the house.
I accept the submission of Mr Edwardson QC that the prosecution has not excluded any innocent hypothesis beyond reasonable doubt. As he said no attempt was made by the police officers to interview the three other persons in the house.
On count one the verdict must be not guilty.
Count 2 - Hard Drives located in the "Office"
When the police arrived at the property the "office" was locked. It was unlocked by one of the occupants of the house other than the accused. Accordingly at least one person other than the accused had access to the "office".
I have no difficulty in finding that the accused did use the "office". Apart from the wooden plaque and the paperwork depicted in photographs the "office" was a room in his home. However use of the "office" by the accused does not establish that he was the only person who used the "office" and it does not establish that the accused was in possession of every item in the room.
Five internal hard drives were located in a plastic container under the desk. They include Items 34, 35, 36 and 37.
The disc which contains the pornographic material which is the subject of count 2 is Item 37 which contains 23 video files. The contents of those files are described in exhibit P18.
Item 35 had previously contained 33 video files and Item 36 had previously contained three video files, but those files had been deleted. Dr Lin gave evidence that those images were not accessible in that computer. For that reason I hold that the images which had been deleted were not in the possession of the accused at the relevant time.[16]
[16] R v Porter.
For the same reason I find that the seven picture files on Item 48 (PCHD1-one of the hard disks taken from the computer tower) which had been deleted were not in the possession of the accused because they were not accessible.[17]
[17] R v Porter.
However that is not the end of the matter because there were 23 video files on Item 37 which had not been deleted and were accessible. It is those 23 video files on Item 37 which constitute the child pornography alleged to give rise to count 2. The items other than Item 37 are relevant because the Crown relies upon them to draw an inference that the accused had knowledge, custody and control of Item 37.
One further matter which the Crown relied upon was that the seven images on the hard disk Item 48 (PCHD1) which had been deleted include some images which are to be found on Item 37. There is no evidence as to how either the hard disk Item 48 (PCHD1) or the DVD which is Item 37 was created. I cannot see how the fact that videos saved on the hard disk which is Item 37 are the same as images which had been deleted from the hard disk Item 48 (PCHD1) implicates the accused.
In her opening the prosecutor said that the Crown case was that the accused had physical possession of the items. She said that the office was his, that it contained papers and documents relating to his business interests, the office was locked and it wasn't accessible to other persons within that address. The prosecutor said that the accused had physical control of that particular disk and, moreover, the prosecution case was that he knew that those discs were on that particular hard disk. For reasons which I already set out I find that the evidence does not make out that case.
The prosecutor placed emphasis upon the fact that (R) was the registered owner of the operating system on a Quantum Fireball Hard Disk (Item 34) and there was in the same plastic box which contained that item another hard disk which had previously deleted images of child pornography together with images of child pornography. Item 37 was found in that box.
The prosecutor submitted that possession of the images of child pornography by the accused can be inferred from the physical location of the discs and the surrounding circumstances.
For present purposes the specific question is whether the accused had possession of Item 37 which contained the 23 video files which are the subject of the charge.
As is the case with the items which are the subject of count one, there is no direct evidence that the accused had knowledge of Item 37, there is no fingerprint evidence, there is no DNA evidence and the other occupants of the house were not questioned about the relevant items.
Item 34 and PCHD1 are relevant to the Crown’s allegation that the accused was in possession of Item 37. The Crown case is that because (R) is described as a registered owner of the operating system on Item 34, "Tony" is described as the owner of PCHD1 and those two items were located in the vicinity of Item 37, an inference should be drawn that the accused was in possession of Item 37.
There is no evidence that Item 34, the Quantum Fireball hard disk with respect to which (R) was shown as the registered owner of the operating system, had ever contained child pornography.
Seven files had been deleted from PCHD1, the hard disk on which the owner is described as "Tony", although those seven files were not capable of being read.
The defence relies upon R v GNN for count 2 also.
The Crown case with respect to count 2 is stronger than count one because of the references to (R) on Item 34 and a reference to "Tony" on PCHD1.
The fact that the five hard discs were located in a container under a desk in an office used by the accused is not by itself sufficient to establish possession. To apply the reasoning of the Chief Justice in R v GNN[18] the court would need to be satisfied that the accused had placed Item 37 in the box himself and was intending to exercise or assert control over it.
[18] At 298 para 26.
There is no direct evidence that the accused knew of the existence of Item 37 and there is no evidence that the accused knew of the contents of Item 37 or of its pornographic nature.
The Crown has not excluded the reasonable possibility that the box containing the five discs or Item 37 had been placed in the office by one of the other occupants of the house.
The operating system on Item 34, the hard drive which contains a reference to (R), was installed on 10 October 2001. There were no relevant files or information on that hard drive.
The hard drive upon which count 2 depends (Item 37) does not have an identified user.
I do not accept the submission of Mr Edwardson QC that if you went specifically searching for the deleted files on hard drive Item 37 you would not be able to access and identify the existence of the videos.[19] My interpretation of the evidence of Dr Lin is that if a person connected the hard drive to Microsoft Windows that person would have the capacity to extract those video files.[20] However that finding is not decisive of the case.
[19] T 131.
[20] T 116.
Ultimately the question is whether at the time the items were located the physical proximity of Item 37 (which contains the pornographic material) to Item 34 (of which the owner is described as (R)) and the hard drive PCHD1 (which contains references to "Tony") is sufficient evidence from which to draw an inference beyond reasonable doubt that the accused knew of the existence of Item 37 and intended to exercise control over that item.
In my opinion the evidence is not sufficient to draw the necessary inference. Also the Crown has not excluded the other reasonable possibility that the hard drive Item 37 had been placed in the container by some other person.
The evidence falls short of proving that the accused had possession of any pornographic material.
One count 2 also there must be verdict of not guilty.