R v Robertson

[2009] ACTCA 19

DIRECTOR OF PUBLIC PROSECUTIONS v JOHN DESMOND THOMPSON
[2009] ACTCA 19 (26 NOVEMBER 2009)

CRIMINAL LAW – reference appeal by Director of Public Prosecutions – whether question of law arose “at” or “in relation to” a trial – exchanges in transcript between judge and counsel do not give rise to a question of law – defective application for a reference appeal.

Supreme Court Act 1993 (ACT), s 37S
Crimes Act 1900 (ACT), s 64

Federal Court of Australia Act 1976 (Cth), s 30A
Crimes Act 1958 (Vic), s 450A

Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364

Idoport Pty Ltd v National Australia Bank Ltd (No 5) [2000] NSWSC 148
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Director of Public Prosecutions v G (1999) 85 FCR 566
R v M R (2000) 116 A Crim R 23

REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 3-2009
No. SCC 175 of 2008

Judges:         Gray P, Penfold and Buchanan JJ

Court of Appeal of the Australian Capital Territory
Date:            26 November 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 3-2009
  )          No. SCC 175 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:JOHN DESMOND THOMPSON

Interested Party

ORDER

Judges:  Gray P, Penfold and Buchanan JJ
Date:  26 November 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 3-2009
  )          No. SCC 175 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:JOHN DESMOND THOMPSON

Interested Party

Judges:  Gray P, Penfold and Buchanan JJ
Date:  2009
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. Section 37S of the Supreme Court Act 1993 (ACT) (the Act) provides a facility for the Director of Public Prosecutions (the DPP), among others, to make an application that the Court hear an appeal in relation to a question of law arising “at” or “in relation to” a trial where an accused person has been tried on indictment and acquitted.  The decision on such a reference appeal does not affect the verdict or decision given at the trial.

1. On 9 October 2008, John Desmond Thompson was charged with contravention of s 64(1) of the Crimes Act 1900 (ACT). The relevant parts of s 64 are as follows:

(1)A person commits an offence if—

(a)the person uses, offers or procures a child—

(i)for the production of child pornography; or

(ii)…; and

(b)the child is under 12 years old.

Maximum penalty:  1 500 penalty units, imprisonment for 15 years or both.

(2)Absolute liability applies to subsection (1) (b).

…

(5)In this section:

child pornography means anything that represents—

(a)the sexual parts of a child; or

…

substantially for the sexual arousal or sexual gratification of someone other than the child.

…

represent means depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.

1. Neither the Crimes Act nor any other relevant legislation appears to define “sexual parts”.

1. The specific accusation charged was that Mr Thompson, between 26 December 2007 and 15 January 2008, used two young girls, one aged three years and the other aged 20 months, for the production of child pornography.  Mr Thompson admitted that he filmed the two children, in the back yard of a property which adjoined his, on two video recorders between 1 December 2007 and 15 January 2008, and that the children were partly clothed or naked.

1. The charge was heard by Higgins CJ on 27 February 2009. Mr Thompson was acquitted. In a short judgment the Chief Justice first isolated the various elements of s 64 which arose for consideration in the case before him. The narrow foundation upon which the charge was then dismissed appears from the final two paragraphs in the judgment, as follows:

4.The real point here is whether the film actually represents the sexual parts of a child.  In my view, having viewed the video, I cannot see any representation of any sexual part of a child.  Certainly there is filming of where the sexual parts of a child might be, but, it is no more or less so that if the child was fully clothed.  For that reason I think that the Crown has failed to make out an essential element of this particular charge.

5.I find the accused not guilty of it accordingly.

1. The verdict of acquittal, we think, clearly turned upon a finding of fact. It does not matter whether the finding of fact was correct or incorrect. However, the DPP has contended that the Chief Justice must have proceeded upon an erroneous view of the matters which fell within the operation of s 64. In particular, he contended that the Chief Justice must have proceeded upon a number of premises, which were described as errors made by his Honour, which were identified in written submissions in support of the application as follows:

a)His Honour erred in holding that before an image fell within the definition of child pornography in sub section 64(5) of the Crimes Act 1900, there had to be something about the image that indicated that it was taken for sexual purposes;

b)His Honour erred in holding that a representation of:

a.the area between the naked child’s legs; or

b.the naked buttocks of a child; or

c.the naked chest area of a 3 year old and 20 month old female child,

was not a representation of the sexual parts of a child for the purposes of section 64 of the Crimes Act 1900;

c)His Honour erred in holding that to fall within the definition of child pornography there had to be a representation of a child posing, and the character of the posing had to be sexual in nature, or have a sexual connotation;

d)His Honour erred in holding that whether the accused in filming the children was sexually aroused had nothing to do with the case;

e)His Honour erred in holding that a representation of naked children could not be described in a meaningful sense as pornography, whatever the intent or perception of the person making the representation;

f)His Honour erred in holding that the particular images were not sexual in nature;

g)His Honour erred in holding that Exhibit 4 did not contain a representation of any sexual parts of a child.

Did the Chief Justice make any holdings?

1. Each of the alleged errors was said to emerge from exchanges in the transcript of proceedings between the Chief Justice and the representative of the Crown.  None was said to emerge from the judgment, although the alleged error (g) really amounted also to a challenge to the factual finding from which the verdict proceeded.

1. Observations made by judges in the course of a hearing are not judicial pronouncements.  Unless they involve some ruling (e.g. upon a question of admissibility of evidence) or are explicitly incorporated in a judgment as explaining the reasons for judgment or the outcome of a trial (as sometimes happens in a busy trial court in the course of the giving of an ex tempore judgment), observations made during the course of argument are not to be regarded as final, conclusive or dispositive, no matter how firmly they might appear to be expressed in the course of argument.  A judge may, on reflection, choose not to rely upon views expressed during argument, may have been persuaded by a response made by counsel, may, on reflection, have modified any view earlier expressed, or may not regard it as necessary to proceed upon some particular view of the facts or the law in order to dispose of the matters calling for decision. 

1. Although cases in which it has been necessary to refer to this fundamental principle of the operation of the Australian judicial system appear to be rare, some examples are the observations of Handley JA in Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364 at 371-2 (noting that the outcome of this case was reversed in the High Court for other reasons), the observations of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd (No 5) [2000] NSWSC 148 at [46] and the observations of MacPherson AJA and Ormiston AJA in Heydon v NRMA Ltd (2000) 51 NSWLR 1 at [387], [563] and [663].

1. Having examined the transcript of the hearing before the Chief Justice, we are satisfied that apart from alleged error (g), the matters described as errors were not “holdings” by his Honour in any sense of a concluded finding, and they cannot and should be not characterised as such.

Did any question of law arise at or in relation to the trial?

1. Before the enactment of s 37S of the Act, the facility for a reference appeal arose under s 30A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) when appeals from single judges of this Court were made to the Federal Court. Section 30A of the FCA Act permitted a reference appeal on “a question of law arising at or in connection with the trial”. The formulation is indistinguishable from that now in s 37S of the Act. In Director of Public Prosecutions v G (1999) 85 FCR 566 a Full Court of the Federal Court referred to similar provisions in the Crimes Act 1958 (Vic) (s 450A) and said (at [56]):

The procedure under s 450A is not designed or intended to answer hypothetical questions of law. Where a question raised invites an opinion of the Court of Appeal on a point of law not raised for the consideration of the trial judge and a point upon which he did not in any way pronounce, the question is hypothetical: Director of Public Prosecutions Reference (No 1 of 1992) [1984] VR 727 at 729.

1. Similarly, in R v M R (2000) 116 A Crim R 23 a Full Court of the Federal Court said (at [6]):

Section 30A of the Federal Court of Australia Act 1976 is not intended to oblige an appellate court to answer a question that is not a question of law or, though a question of law, is hypothetical in the sense that the question was not decided by the trial judge.  A question of law that was not decided by the trial judge at the trial is not a question of law ‘arising at or in connection with the trial’: DPP v G 85 FCR at 580.

1. We respectfully agree with the observations in those cases.  Section 37S of the Act does not provide an opportunity for answers to be sought to hypothetical questions which were not questions of law arising at or in relation to the trial which played a relevant part in the outcome of the trial.

1. In the present case, it is apparent that it was not necessary for the Chief Justice to decide the case on other than a narrow factual footing and that is the approach which he took. 

1. The matters to which we have referred expose two defects in the present application for a reference appeal.  The first is that the exchanges in the course of the hearing that are shown in the transcript do not reveal any question of law arising at the trial, and neither do they reveal any question of law arising in relation to the trial.  The second is that the outcome of the trial turned on a factual finding and not on any question of law.

1. In the circumstances, we are persuaded that it would not be appropriate to entertain the reference appeal which the DPP seeks to bring.  We dismiss the DPP’s application to do so.

   I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:      26 November 2009

Counsel for the Applicant:  Mr J White
Solicitor for the Applicant:  ACT Director of Public Prosecutions
Counsel for the Interested Party:  Mr J Sabharwal
Solicitor for the Interested Party:  N/A
Date of hearing:  13 August 2009 
Date of judgment:  26 November 2009