R v SDI - [2019] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDI [2019] QCA 135

PARTIES:

R
v
SDI
(appellant)

FILE NO/S:

CA No 280 of 2018
DC No 256 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 24 October 2018 (Muir DCJ)

DELIVERED ON:

4 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2019

JUDGES:

Sofronoff P and Gotterson and Morrison JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES – where the appellant was found guilty after trial of six offences of making child exploitation material by taking five photographs of his daughter and her friend and then uploading the photographs from his camera to the hard drive of a computer – where the five photographs were taken as part of a larger series of 45 photographs from the same evening – where the appellant’s daughter’s friend gave evidence at trial that the appellant asked the children to pose and to give each other “wedgies” and lifted up the skirts of the children – where the appellant’s counsel at trial addressed the jury that the photographs depicted children at play and were not child exploitation material – where the appellant’s counsel also addressed the jury that the taking of one of the photographs was “clearly an accident” because the photograph was out of focus – where the learned trial judge directed the jury on the meaning of “child exploitation material” – whether there was an error of law in directing the jury on the meaning of “child exploitation material” – whether there was an error of law in failing to direct the jury on the defence of accident under ss 23(1)(a) and (b) of the Criminal Code (Qld) – whether there was an error of law in failing to direct the jury on the defence of genuine artistic purpose under s 228E of the Criminal Code (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES – where the appellant was found guilty after trial of six offences of making child exploitation material uploading the photographs from his camera to the hard drive of by taking five photographs of his daughter and her friend and then a computer – where the five photographs depicted, amongst other things, the bare buttocks of the children and one child’s crotch – where the five photographs were taken as part of a larger series of 45 photographs which were taken on the same evening – where the appellant’s daughter’s friend gave evidence at trial that the appellant asked the children to pose and to give each other “wedgies” and lifted up…

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 SDI

Details

AGLC: R v SDI [2019] QCA 135
Case: [2019] QCA 135
Decision Date: 4 July 2019

CaseChat Overview and Summary

The case of R v SDI involved an appeal by the appellant against his conviction on six counts of making child exploitation material. The appellant was found guilty of taking five photographs of his daughter and her friend and then uploading the photographs to a computer. The photographs were part of a larger series of 45 taken on the same evening and depicted the bare buttocks of the children and one child's crotch. The appellant's defence at trial was that the photographs depicted children at play and were not child exploitation material. The appellant also argued that one of the photographs was taken accidentally because it was out of focus.

The primary legal issues before the court were whether there was an error of law in the trial judge's direction to the jury regarding the meaning of "child exploitation material," whether there was an error in failing to direct the jury on the defence of accident under sections 23(1)(a) and (b) of the Criminal Code (Qld), and whether there was an error in not directing the jury on the defence of genuine artistic purpose under section 228E of the Criminal Code (Qld). Additionally, the court considered whether the verdict was unreasonable or insupportable given the evidence.

The court determined that there was no error in the trial judge's direction on the meaning of "child exploitation material" as it correctly reflected the statutory definition. The court also found that the defence of accident was not applicable because the evidence did not support the claim that the photograph was taken accidentally. Regarding the defence of genuine artistic purpose, the court held that it was not available to the appellant as the evidence did not support the assertion that the photographs were taken for such a purpose. Finally, the court concluded that the jury's verdict was reasonable and supported by the evidence.

The final order of the court was to dismiss the appeal against conviction.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

S’s evidence: In her police interview, S said that she had been a friend of J and had slept over at J’s grandparents’ house.[23] She recalled that the appellant had a camera.[24] She related that on one occasion, she and J were watching a movie in the appellant’s bedroom. The appellant was there with his camera. He said that he liked taking photographs.[25] According to S, J began posing for photographs. She could not remember how J was posing. S asked her “what the hell are you doing?” It appeared to S that J thought “it was normal” from which S reasoned that it must be.[26][23]AB 2 318 ll12-19.[24]AB 2 317 l3.[25]AB 2 321 l34 – AB 2 322 l10.[26]AB 2 322 l19 – AB 2 323 l4. S was not sure if B was in the bedroom or not. The appellant was taking photographs. At the time she thought they were “innocent”.[27] This event occurred on her third or fourth stayover at the house.[28][27]AB 2 323 ll31-48.[28]AB 2 325 l54. During the interview, S was shown the same photograph that had been shown to J and B in their interviews. She said that it had been taken in J’s grandparents’ bedroom.[29] She remembered the night that the photograph was taken.[30][29]AB 2 327 ll39-40.[30]AB 2 328 ll18-20. In evidence in chief, S agreed that she had been shown photographs within Exhibits 2 to 4 during a pre-trial conference and that seeing them had jogged her memory of their being taken.[31] S said that the appellant took most of the photographs she was shown but not the ones that he was in.[32] She identified many photographs as ones taken by the appellant. They included the five photographs marked A to E that constituted Exhibit 4.[33][31]AB 2 140 ll32-45.[32]AB 2 141 ll1-9.[33]AB 2 l48 l18 – AB 2 149 l14. According to S, the photographs were taken at a sleepover at J’s house. They had just had dinner and were going to watch some movies. The appellant decided to take some photographs of them. She said that B asked the appellant to take some photographs of him because he was feeling left out.[34][34]AB 2 142 l38 – AB 2 143 l9. S testified that when the photographs were taken, the appellant was asking them to pose and to give each other “wedgies”, and directing them where to lie. With regard to photograph E, S said that the appellant lifted up her and J’s skirts and asked J to give her a “wedgie”. She was holding J’s arm back when the photograph was taken.[35] For photograph B, the appellant had asked J to give her a “wedgie” so that he could photograph it,[36] while, for photograph D, the appellant had asked S to give J a “wedgie”.[37][35]AB 2 148 ll18-27.[36]Ibid ll29-34.[37]AB 2 148 l36 – AB 2 149 l1. S was shown photograph C. She identified herself as the girl whose crotch had been photographed and the appellant as the photographer.[38] S described photograph A as having been taken after they had “started to play dress ups” and identified the appellant as the photographer.[39][38]AB 2 149 ll3-7.[39]Ibid ll9-14.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v SDI [2019] QCA 135
PARTIES:	R v SDI (appellant)
FILE NO/S:	CA No 280 of 2018 DC No 256 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba – Date of Conviction: 24 October 2018 (Muir DCJ)
DELIVERED ON:	4 July 2019
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2019
JUDGES:	Sofronoff P and Gotterson and Morrison JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES – where the appellant was found guilty after trial of six offences of making child exploitation material by taking five photographs of his daughter and her friend and then uploading the photographs from his camera to the hard drive of a computer – where the five photographs were taken as part of a larger series of 45 photographs from the same evening – where the appellant’s daughter’s friend gave evidence at trial that the appellant asked the children to pose and to give each other “wedgies” and lifted up the skirts of the children – where the appellant’s counsel at trial addressed the jury that the photographs depicted children at play and were not child exploitation material – where the appellant’s counsel also addressed the jury that the taking of one of the photographs was “clearly an accident” because the photograph was out of focus – where the learned trial judge directed the jury on the meaning of “child exploitation material” – whether there was an error of law in directing the jury on the meaning of “child exploitation material” – whether there was an error of law in failing to direct the jury on the defence of accident under ss 23(1)(a) and (b) of the Criminal Code (Qld) – whether there was an error of law in failing to direct the jury on the defence of genuine artistic purpose under s 228E of the Criminal Code (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES – where the appellant was found guilty after trial of six offences of making child exploitation material uploading the photographs from his camera to the hard drive of by taking five photographs of his daughter and her friend and then a computer – where the five photographs depicted, amongst other things, the bare buttocks of the children and one child’s crotch – where the five photographs were taken as part of a larger series of 45 photographs which were taken on the same evening – where the appellant’s daughter’s friend gave evidence at trial that the appellant asked the children to pose and to give each other “wedgies” and lifted up…