R v Shew - [1998] QCA 333

IN THE COURT OF APPEAL [1998] QCA 333
SUPREME COURT OF QUEENSLAND

C.A. No. 13 of 1998

Brisbane
[R. v. Shew]

T H E Q U E E N

KEITH DOUGLAS SHEW

(Applicant) Appellant
McMurdo P.
Pincus J.A.
Jones J.

Judgment delivered 23 October 1998
Joint reasons for judgment of McMurdo P. and Jones J., separate reasons of Pincus J.A. concurring as to the orders made.
APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:

CRIMINAL LAW - “Knowingly” having possession of child abuse computer game - unsafe and unsatisfactory conviction - Failure of accused to give evidence.
Classification of Computer Games and Images Act 1995 s.26(3).
Counsel: Mr P. Feeney for the appellant
Mrs L. Clare for the respondent
Solicitors: G.R. Brown, Solicitor, for the appellant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date: 6 October 1998

JOINT REASONS FOR JUDGMENT - McMURDO P. & JONES J.

Judgment delivered 23 October 1998

1 On 11 December 1997 the appellant was convicted of the offence that he knowingly had possession of a child abuse computer game. He was sentenced to 12 months imprisonment.
2 He appeals against that conviction on the ground that there was insufficient evidence in respect of the element of knowingly having possession of the relevant games and further on the general ground that the conviction was unsafe and unsatisfactory.
3 The offence is prescribed by s.26(3) of the Classification of Computer Games and Images Act 1995 and is in the following terms -
"26(3) A person must not knowingly have possession of a child abuse
computer game.
Maximum penalty - 250 penalty units or imprisonment for 2 years."

4           The Act provides definitions for "possession" and "child abuse computer game". The relevant statutory definition of possession is as follows -
"possession", of a computer game, includes -
(a)         custody or control of the computer game; and
(b)        an ability or right to obtain custody or control of the computer game."

5           In respect of the element that the offending material fell within the definition of "child abuse computer game", the appellant admitted that the contents of the disks the subject of the trial contained a child abuse computer game (R22/5). Notwithstanding the above admission, the prosecution adduced evidence that a large collection of offending images were contained on the computer disks - some 172 images in all. It would have been reasonable for the jury to find that a large number of these fell within the definition which the learned trial judge explained during his summing up. No challenge was made by the appellant that this material did not fall within the definition. Consequently it is not necessary to refer to the terms of that definition and the associated definitions on which it depends.
6           Ultimately the only issue at the trial was whether the appellant "knowingly had possession" of the offending material.
7           The evidence adduced relative to that issue is in very short compass…

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 Shew

Details

AGLC: R v Shew [1998] QCA 333
Case: [1998] QCA 333
Decision Date: 23/10/1998

CaseChat Overview and Summary

In the case of R v Shew, the appellant was charged with the offence of possessing a computer game that depicted child abuse material. The matter was heard and determined in the Court of Criminal Appeal in Victoria. The primary issue before the court was whether the conviction was safe and satisfactory, given the appellant's failure to provide evidence during the trial. The court was also required to consider whether the evidence presented was sufficient to prove the appellant's knowledge of the nature of the material in the computer game.

The court noted that the appellant chose not to testify, which meant that the only evidence against him was the evidence of the police officers and the expert witness. The court emphasised that a conviction cannot be based solely on circumstantial evidence unless it is so strong that it excludes every other reasonable hypothesis. The court concluded that the evidence presented did not establish the appellant's knowledge of the nature of the material beyond reasonable doubt. The court found that the conviction was unsafe and unsatisfactory, as the prosecution failed to prove the essential element of the offence – that the appellant "knowingly" had possession of the computer game.

The appeal was allowed, and the conviction was quashed. The court did not consider it necessary to order a retrial, as the evidence presented was not sufficient to prove the appellant's knowledge beyond reasonable doubt. The court's decision highlights the importance of the prosecution proving all elements of an offence beyond reasonable doubt, and the court's cautious approach to convictions based on circumstantial evidence.

Orders