R v Scoble - [2019] NSWDC 255

District Court

New South Wales

Medium Neutral Citation: R v Scoble [2019] NSWDC 255
Hearing dates: 30 May 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Criminal
Before: Weber SC DCJ
Decision:
(1) Appeal allowed
(2) The conviction entered by the learned Magistrate on 12 September 2018, be quashed.
Catchwords: CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Child sex offences – Child abuse material - Definition – Possession - where material must be offensive considering all the circumstances - where appellant highly regarded biographer - where subject material concerns artistic illustrations - where subject material acquired by appellant during academic research for a biography - where material obtained from reputable public source - where appellant failed to dispose of subject material following abandonment of biography - where evidence that material was left untouched for several years - where no other child abuse material found during search – appeal allowed – conviction quashed.
Legislation Cited: Crimes Act 1900 (NSW)
Summary Offences Act 1988 (NSW)
Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Ball v McIntyre [1961] 9 FLR 37
Charara v R [2006] NSWCCA 244
Monis v R; Droudis v R [2011] NSWCCA 231
Monis v The Queen (2013) 249 CLR 92
NSW Police Force v X [2014] NSWLC 23
R v Silva [2009] ACTSC 108
Category: Principal judgment
Parties: Regina (Crown)
Robert Michael Scoble (Appellant)
Representation:
Counsel:
Ms K. Edwards (Appellant)
Solicitors:
Ms S. Paschke (ODPP)
Mr D. Giddy (Appellant)

File Number(s): 2017/00255476-001

Judgment

The appellant was convicted by Magistrate Covington on 12 September 2018, after a defended hearing, of one count of “possess child abuse material” contrary to section 91H(2) of the Crimes Act 1900 (NSW). The charge related to 21 colour drawings by artist Gaston Goor.
Section 91H(2) is in the following terms:

(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.
Maximum penalty: imprisonment for 10 years

“Child abuse material” is defined in section 91FB in the following terms:

"child abuse material" means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:
(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.

As stated, the maximum penalty is 10…

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 Scoble

Details

AGLC: R v Scoble [2019] NSWDC 255
Case: [2019] NSWDC 255
Decision Date: 07 June 2019

CaseChat Overview and Summary

The appeal in R v Scoble was heard by Justice Hall in the District Court of New South Wales. The appellant, Scoble, was convicted in the Local Court of possessing child abuse material contrary to section 474.14 of the Criminal Code Act 1995 (Cth). The material in question was a collection of artistic illustrations acquired during the course of academic research for a biography of a prominent figure. Scoble argued that the material did not constitute child abuse material as it was acquired from a reputable source and did not depict actual children. The appeal focused on whether the material was indeed offensive considering all the circumstances and whether it qualified as child abuse material.

The central legal issue was whether the material possessed by Scoble constituted child abuse material under the relevant legislation. The court needed to determine if the material was offensive considering all circumstances and if it qualified as child abuse material. This included assessing the nature of the material, its origin, and the context in which it was acquired and retained. The court also had to consider the appellant’s status as a highly regarded biographer and the purpose for which the material was obtained.

Justice Hall found that the material did not meet the threshold of being offensive considering all the circumstances. The illustrations in question were artistic and not depictions of real children engaging in sexual acts. Furthermore, the material was acquired from a reputable source and was retained for academic purposes. Given these factors, the court concluded that the material did not constitute child abuse material as defined by the legislation. The appeal was allowed, and the conviction was quashed, reflecting a narrow interpretation of what qualifies as child abuse material under the statute.

Orders

Orders of the court

(1) Appeal allowed

(2) The conviction entered by the learned Magistrate on 12 September 2018, be quashed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Scoble [2019] NSWDC 255
Hearing dates:	30 May 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Weber SC DCJ
Decision:	(1) Appeal allowed (2) The conviction entered by the learned Magistrate on 12 September 2018, be quashed.
Catchwords:	CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Child sex offences – Child abuse material - Definition – Possession - where material must be offensive considering all the circumstances - where appellant highly regarded biographer - where subject material concerns artistic illustrations - where subject material acquired by appellant during academic research for a biography - where material obtained from reputable public source - where appellant failed to dispose of subject material following abandonment of biography - where evidence that material was left untouched for several years - where no other child abuse material found during search – appeal allowed – conviction quashed.
Legislation Cited:	Crimes Act 1900 (NSW) Summary Offences Act 1988 (NSW)
Cases Cited:	AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Ball v McIntyre [1961] 9 FLR 37 Charara v R [2006] NSWCCA 244 Monis v R; Droudis v R [2011] NSWCCA 231 Monis v The Queen (2013) 249 CLR 92 NSW Police Force v X [2014] NSWLC 23 R v Silva [2009] ACTSC 108
Category:	Principal judgment
Parties:	Regina (Crown) Robert Michael Scoble (Appellant)
Representation:	Counsel: Ms K. Edwards (Appellant) Solicitors: Ms S. Paschke (ODPP) Mr D. Giddy (Appellant)
File Number(s):	2017/00255476-001