R v Shore - [2013] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SHORE
[2013] SADC 135
Judgment of His Honour Judge Barrett
11 October 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
The applicant sought to set aside his guilty pleas to accessing and possessing child pornography on the ground, inter alia, that he had a defence to the charges viz. that he had no prurient interest in the pornographic material. He wished only to pray for, or heal, or save the children depicted.
Held: It is not a defence to charges pursuant to s 62A of the Criminal Law Consolidation Act to assert a lack of prurient interest.

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The applicant sought to set aside guilty pleas on the grounds, inter alia, that he entered the pleas under duress and under a misunderstanding about the ingredients of the offences.
Held: The applicant failed to persuade the court of duress or misunderstanding.
Criminal Law Consolidation Act 1935 s 62, s 63A, s 63C, s 64B, referred to.
R v Campbell [2012] SASCFC 44, considered.

R v SHORE
[2013] SADC 135
R v SHORE
Judge Barrett
Reasons for Ruling

The applicant seeks to have set aside his guilty pleas in this court to one count of aggravated accessing child pornography (count 1) and four counts of aggravated possession of child pornography (counts 2 to 5). The guilty pleas were entered on 5 July 2012 after a ruling was delivered by a Judge of this court hearing a voir dire. The ruling was adverse to the applicant. The Judge declined to exclude evidence of items containing child pornography from the trial. The accused was represented at the time by an experienced practitioner, Mr Blair Tremaine.
Upon the ruling being delivered the applicant conferred with Mr Tremaine. Mr Tremaine has sworn an affidavit dated 3 July 2013 to the effect that after the adverse ruling on the voir dire he discussed the situation with the applicant. Mr Tremaine obtained signed instructions from the applicant that he would plead guilty to four counts of aggravated possession of child pornography (counts 2 to 5) and would plead guilty to count 1 if it was changed from an allegation of aggravated possession of child pornography to aggravated accessing child pornography. The Information was amended accordingly and the five guilty pleas were entered. The allocutus was administered and the matter was adjourned to the following day for submissions.
On 6 July the applicant told Mr Tremaine that overnight he had taken advice from a friend, and, as a result, he wanted to withdraw his guilty pleas, appeal against the voir dire rulings and change solicitors. Mr Tremaine was given leave by the Judge to withdraw from acting for the applicant.
The applicant was unrepresented before me. I asked him if he wanted to obtain representation but he said he did not. The applicant puts forward several reasons why he should be given leave to withdraw his guilty pleas. They are:
First, he says that he entered his guilty pleas under duress. He explained that by duress he meant that he was worn down by the proceedings to the point of exhaustion and, by reason of suffering from dyslexia and Aspergers syndrome, he pleaded guilty to escape what he described as:
The stress, the indignity, the hell that they were putting me through. I wanted it to go away.
Second, the applicant says that he has a defence to the charges. The defence is not that he did not access child pornography (count 1), or possess child pornography (counts 2 to 5), but rather that he did not have the requisite criminal intent. He said that his principal purpose in viewing the child pornography, which he agreed he had been doing for “maybe a couple of years”, was to heal the children depicted by praying for them. I asked the applicant whether there was a sexual purpose for his viewing the material. At first he replied “that belongs in the sanctity of the privacy of my home, it’s a matter between myself and God”. I asked him further whether there was a sexual ingredient in his watching the child pornography. He replied:
Of course there was. There was a sexual ingredient in the horrendous situation those children found themselves and I have seen first-hand the effect of that upon a person whom I love very much.
Throughout his submissions the applicant said that he lacked the criminal intent to commit the offences.
The applicant then said:
My motive was not prurient but it was at assisting the children involved.
I put to the applicant that he had just conceded that there was a sexual ingredient in his watching the images. He replied:
The whole of life is sexual your Honour, even flowers, they have reproductive organs. One can’t shutter one’s self off from reality. One just does one’s best to alleviate suffering wherever one sees it.
Second, the applicant said that he was threatened with the possibility of a long term in prison. He said that he was told that if he did not plead guilty there was a likelihood that he would receive a much heavier sentence.
Mr Tremaine annexed to his affidavit of 3 July 2013 three sets of instructions signed by the applicant. The first was dated 25 November 2011. The applicant there instructed Mr Tremaine that he wished to plead not guilty to the five charges. There were several detailed bases upon which the applicant wished to mount a defence. Summarised, those bases were:
That the applicant was not acting rationally at the time of accessing the child pornography due to the side effects of medication prescribed for him.
He had saved the images of young naked girls if they looked happy but deleted the images if they looked unhappy. He felt, in a delusional way, that he was saving the girls.
The second set of instructions was dated 3 July 2012. That set instructed Mr Tremaine that the applicant wished to plead not guilty and it acknowledged advice about giving evidence on the trial and the “preliminary argument”.
The third set of instructions, dated 5 July 2012 instructs Mr Tremaine that the applicant wishes to plead guilty to the five charges. It appears from Mr Tremaine’s affidavit that the accused was then re-arraigned and when re-arraigned on the first count, he demurred, disputing the charge. The matter was further adjourned for discussions, after which count 1 was amended to accessing child pornography. The accused pleaded guilty to that count and the four other counts of possessing child pornography. The instructions dated 5 July are in two parts. The first part, at the foot of which is the accused’s signature, instructs a guilty plea to all five charges as originally laid. It is plain that a paragraph was added below that relating to the instruction to plead guilty to count 1 if it was amended. Another signature then appears beneath the last paragraph.
All three sets of instructions acknowledge that the applicant has read the instructions.
The third set of instructions includes the passage:
3.I have been advised that to be guilty of the charges in each case I had to knowingly possess the child pornography knowing of its pornographic nature. I have been advised that it is a defence to the charges in each case for me to prove (on the balance of probabilities) that the child pornography material came into my possession unsolicited, and that as soon as I became aware of the material and its pornographic nature, I took reasonable steps to get rid of it.
4.I instruct that on 26 May 2008 (and earlier) I did knowingly possess child pornography (as defined) knowing of its pornographic nature as the charges allege. I instruct that although initially I did not solicit child pornography, after initially receiving child pornography I did solicit it and as soon as I became aware of the material and its pornographic nature, I did not take reasonable steps to get rid of it. It was my intention to go through the child pornography and delete what I termed “nasty (or explicit) images and keep innocuous images for use as a focus for prayer for those children (and adults also)”.
This matter has had a long history. The applicant was arrested on 26 May 2008. He first appeared in the Adelaide Magistrates Court on 19 August 2008 represented by Mr Stephen Ey. He was first arraigned in this court on 1 June 2009 represented by Tim Clarke and Associates. The arraignment was adjourned on that occasion and on three subsequent occasions before he was finally arraigned on 17 July 2009. On that occasion he stood mute and not guilty pleas were entered. There were then five directions hearings during which the court was told that the applicant was examined by the psychiatrist, Dr Raeside, to assess his fitness to plead. On 24 February 2010 the court was told that it would not be alleged that the applicant was unfit to plead.
At a further directions hearing on 23 March 2010 the matter was listed for trial on 5 October 2010. The trial was not reached on the day fixed and the matter was re-listed for trial on 6 June 2011. At a directions hearing on 3 June 2011, a solicitor from Tim Clarke and Associates was given leave to withdraw from acting for the applicant on the basis that she had been instructed to put to the court a defence for which there was no legal basis. The matter was re-listed for trial on 4 August 2011. Mr Tremaine was instructed by the next directions hearing in June 2011. The matter was not reached again because the prosecution had a problem with witness availability. The matter was taken out of the list and re-listed for hearing on 28 February 2012. A special directions hearing was held on 5 September 2011, but the matter was not resolved. The trial was not reached again and on 6 December 2011 was re-listed for trial on 2 July 2012. The voir dire commenced on 3 July 2012. There have been a number of delays since 6 July 2012 before I heard this present application to set aside the guilty pleas on 27 September 2013.
Circumstances in which guilty pleas may be set aside
Before me the applicant submitted that he was making a unilateral withdrawal of his guilty pleas. The law does not allow such a withdrawal at this stage of the proceedings. The applicant entered his guilty pleas before Judge Chivell on 5 July 2012. The allocutus was administered and the court embarked upon the sentencing process. The prosecutor tendered the applicant’s antecedent report. Mr Tremaine said that he needed time to prepare submissions on penalty and for that purpose he might need to obtain medical reports. It appears that some reports had already been obtained but further reports might be required. The matter was adjourned to the following morning to see if Mr Tremaine was going to be ready by then to make sentencing submissions.
In R v Campbell [2012] SASCFC 44, the Court of Criminal Appeal reiterated the law on the subject of the setting aside of guilty pleas. Gray J, with whom the other members of the court agreed, gathered together longstanding authorities bearing on the circumstances in which guilty pleas may be set aside. Application must be made to the court to have the pleas set aside. As his Honour observed the courts adopt a cautious approach to allowing a change of plea. That approach is based upon the public interest that the law has in the finality of proceedings [16].
The onus is on anyone applying to set aside a guilty plea to establish that a miscarriage of justice would occur if leave was not granted. Such a miscarriage could occur in a number of circumstances. One of the first considerations is whether there is a substantial issue to be tried. In other words, is there a plausible defence to the charge? Other considerations include improper pressure placed upon a defendant to plead guilty and a mistake or misunderstanding on the part of the defendant as to what conduct has to be proved to make out the offence.
These last considerations focus, in this case, on the interactions between the applicant and Mr Tremaine.
I turn first however to the question of a plausible defence.
Plausible defence
The applicant does not deny that in respect of count 1 he accessed child pornography, and in respect of counts 2 to 5, he possessed child pornography. He does not dispute that he knew that the material was pornographic in nature. He does not dispute that in respect of each count there were depicted children, some of whom were aged under 14 years. This knowledge renders each offence an aggravated offence.
What the applicant does dispute is the mental element of the charge. He asserts that he did not possess a criminal mind or a criminal intent in respect of each charge. His purpose he says in viewing the pornographic material over a number of years, was to pray for, or heal or save the children depicted.
It is necessary to consider what mental element needs to be proved by the prosecution to establish offences against section 63A of the Criminal Law Consolidation Act. All five charges arise from section 63A. Counts 2 to 5 are breaches of placitum (a) and count 1 is a breach of placitum (b). Section 63A says nothing about the requisite state of mind of the offender. That section is to be distinguished from 64B which proscribes the procuring of children to commit indecent acts. Section 64B(a) proscribes absolutely the inciting of a child under the prescribed age to commit an indecent act etc. Section 64B(b) proscribes the inducing of a child to expose any part of his or her body or to take inter alia photographs of children for a prurient purpose. The legislation obviously anticipated that one might cause children to do certain acts for a completely innocent purpose, hence the requirement for proof of a prurient interest. There is no such requirement in relation to the offences of accessing and possessing child pornography pursuant to section 63A.
Subject to section 63C, the proscription against accessing and possessing child pornography pursuant to section 63A is absolute.
“Child pornography” is defined in section 62:
s 62—Interpretation
In this Division—
child pornography means material—
(a)     that—
(i)    describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(ii)     consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such 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;
It is plain that the intention (or apparent intention) to excite or gratify sexual interest (and other interests) in placitum (b) is not the intention of the viewer of child pornography. It is the intention of the producer of the material. There is no suggestion in this case that the material accessed or possessed by the applicant was not child pornography.
The only defence to which the applicant might conceivably be referring when he speaks of his motive for viewing the child pornography is to be found in section 63C. That section effectively provides that no offence is committed by persons whose legal and legitimate occupation necessarily requires them to view child pornography. Such persons include police officers, bona fide researchers and people giving legal advice. Sub-section (2b) says:
No offence is committed against this division by reason of the production, dissemination or possession of material in good faith by a person acting reasonably for the purpose of providing genuine child protection or legal advice.
To bring himself within the exemption contemplated by sub-section (2b) there would have to be a reasonable possibility that the applicant was acting reasonably for the purpose of providing genuine child protection. His assertion that he had been viewing child pornography for a number of years for the purpose of praying for, or healing or saving the children would have to be considered. It would be no doubt for the prosecution to prove beyond reasonable doubt that his actions were both not reasonable and were not for the purpose of providing genuine child protection. The fact that, on his account, the applicant took no action beyond prayer for the children would have to be considered. The fact that he had been viewing the material for years would be relevant. His ambivalence about his purpose is evidenced by his answers to my questions in court about there being a sexual component of viewing the material would also be taken into account.
In the context of applying to set aside his guilty pleas the applicant must satisfy me that there exists a substantial issue to be tried. In the circumstances of this case I find that there is no substantial issue to be tried. The purported defence is in my view without merit. The purported defence was referred to in the written instructions that Mr Tremaine was given, but it would have been very appropriate for Mr Tremaine to advise the applicant that such a purported defence had no prospects of success. The prosecution would, in my view, inevitably be able to prove beyond reasonable doubt that the applicant’s actions were not reasonably for the purpose of providing genuine child protection. There is no serious issue to be tried.
I turn to the questions of undue pressure and possible misunderstanding.
Duress and misunderstanding
The applicant relies on his submissions before me and on affidavits he swore on 30 October 2012 and 11 September 2013. There is a good deal of discursive material in each of the affidavits but I refer to the paragraphs which appear to encapsulate claims he makes about entering his guilty pleas under duress and entering them with a misunderstanding about the true nature of the charges. I gave the opportunity to the applicant to give sworn evidence before me to clarify the bases for his claims, but he declined to give evidence. He told me that he had been threatened with gaol, by which I took him to mean that Mr Tremaine had threatened him with gaol. In paragraph 7(d)(ii)(1) of his affidavit of 30 October 2012, the applicant asserted that Mr Tremaine had told him that he should plead guilty to the charges because if he did not the police would “throw the book” at him and he would “go to gaol for possibly years”, whereas if he pleaded guilty he would “in all likelihood only receive a minor sentence and a bond....”. In paragraph 12 of his affidavit sworn on 11 September 2013 he said that he signed instructions to Mr Tremaine “under forbearance and sufferance out of frustration, exhaustion and fear but not freely or willingly”. In paragraph 31 he said that he felt pressured by Mr Tremaine to plead guilty and in paragraph 32 he said that he was mentally and physically drained at the time of giving those instructions.
In paragraph 21 he speaks of the misunderstanding that he entertained when he entered the guilty pleas.
In that paragraph he said:
When advising me to plead guilty Tremaine at no time explained that pleading guilty to possession would be construed as a de facto plea of criminal intent, nor as “aggravated possession.
In his affidavit sworn on 3 July 2013 Mr Tremaine specifically denies these allegations.
The applicant’s assertion that he was told by Mr Tremaine that if he pleaded guilty he would receive only a light penalty is at odds with the advice contained in the first and third written instructions to Mr Tremaine. (The second instructions relate only to aspects of the voir dire.)

As is the usual practice the instructions contain advice which the client acknowledges having read and understood. The first instruction is typed. In the first instruction dated 25 November 2011 paragraphs 2 to 4 relate to advice about guilty and not guilty pleas and consequent sentences. These paragraphs read as follows:
2.I have been advised that the five charges are serious charges and that the maximum penalty for each alleged offence is a term of imprisonment for 7n years. I have been advised that if I am found guilty of the five charges and it was found that I had possessed over 2,000 images and 39 movie files that were all porno as alleged, it is likely that I will be sentenced to a term of imprisonment for all the offences of between about 3 years and 4 years (head sentence) with a non parole period (time to be served) of between about 18 months and 2 years. I am advised that the prison sentence is unlikely to be suspended, but this is a matter of discretion for the Judge.
3.I have been advised that the prison sentence is unlikely to be suspended if I am found guilty after a defended trial, and that even on a guilty plea to the five charges it is probable the sentence will not be suspended (but a suspended sentence is more likely on a guilty plea than after an unsuccessful trial).
4.I have been advised that a Court will usually give a discount (reduction) off a prison sentence when a guilty plea is entered, but the closer to the trial date the guilty plea is entered then the less the discount will be. A guilty plea entered on the trial date I have been advised may attract only a very small discount or no discount at all. I have been advised that I cannot receive a longer sentence because a guilty plea was not entered by me, but I will not receive any discount if I plead not guilty and I am then found guilty of any or all of the five charges.
Paragraph 14 reads:
I have read and understand these instructions before signing.
I think it is plain that the applicant did read and understand those instructions. An alteration is made in handwriting to the typed paragraph 1 and it is initialled by the applicant.
The third instruction dated 5 July 2012, the day on which the guilty pleas were entered is handwritten. Paragraph 5 has been altered and initialled. Paragraph 5 was plainly written before the applicant was arraigned after the ruling on the voir dire and the subsequent discussion with Mr Tremaine. Before alteration, paragraph 5 read:
I instruct that I will now plead guilty to each and all of the five child pornography charges against me. I understand that I am at risk of receiving an unsuspended gaol sentence by entering guilty pleas.
Paragraph 6 reads:
I have read these instructions before signing.
The applicant’s signature appears below paragraph 6.
Below the signature there is what is obviously a revised instruction following the arraignment. At the arraignment the applicant demurred about count 1. Despite his instruction he did not plead to count 1 when it was read out. There was a further adjournment and further discussion which resulted in the revised instruction, paragraph 7 and the subsequent guilty plea to the amended count 1 and the unamended counts 2 to 5. A further signature by the applicant appears below the revised instruction paragraph 7. The revised instruction paragraph 7 reads as follows:
I further instruct that although I am not guilty of count 1 (relating to the desk top computer), I am guilty of having accessed child pornography on the desk top computer between 29 March 2007 and 26 May 2008 and I will plead guilty to that charge.
There is a further signature below that instruction.
In addition the revised instruction in paragraph 7, paragraph 5 had to be altered to reflect the amendment to count1. Pertinently, the first instruction paragraph 5 read:
... I will now plead guilty to each and all of the five child pornography charges.
The amended paragraph 5 reads:
I will now plead guilty to each and all of 4 child pornography (counts 2 to 5) charges.
It is really very clear that Mr Tremaine took care to fully and cautiously advise the applicant of the consequences of his change of plea. It is equally clear that the applicant understood those consequences, despite his later assertions to the contrary.
I turn to the suggestion by the applicant that he misunderstood the advice he was given. As I have said, in paragraph 21 of his affidavit of 11 September 2013, the applicant asserted that Mr Tremaine never explained to him that pleading guilty to possession “would be construed as a de facto plea of criminal intent, nor as aggravated possession”.
In the third instruction, there is set out plainly and correctly the ingredients of the offence of possessing child pornography. I will not set out those instructions but the legal advice there contained is, in my view, correct and I find that the applicant had read the advice. Insofar as the applicant had or has any misunderstanding about the legal ingredients that have to be proved to make out an offence of accessing or possessing child pornography it is his present misunderstanding about the requirement of the prosecution to prove that he had the criminal intent or a prurient interest in the material.
I elaborate on my earlier discussion about the ingredients of those offences. The scheme of section 63B of the Criminal Law Consolidation Act, the section dealing with procuring a child to commit indecent acts etc, is to require proof of a prurient interest where actions involving children might have an innocent purpose, such as for example, photographing them. There is no requirement to prove a prurient interest is the procuring of child to commit an indecent act. Procuring a child for that purpose is proscribed absolutely.
The scheme of section 63A, the section creating the offences to which the applicant has pleaded guilty, is to proscribe absolutely the possessing and accessing of child pornography. There is no requirement to prove a prurient interest. There is a separate provision in section 63C for the exculpation from criminal liability of persons whose legitimate work necessarily involves them in handling child pornography. Such persons and their legitimate purposes are exhaustively specified in that section.
The applicant is wrong as a matter of law when he asserts that to establish his guilt of accessing or possessing child pornography the prosecution must prove that he had a guilty or criminal mind or that he had an intent in the sense that he had a prurient or sexual interest in the material. The only state of mind which the prosecution had to prove was that he knew the pornographic nature of the material. He does not dispute that. He knew perfectly well that the material was pornographic. No other mental element had to be proved by the prosecution.
Further, as I have already indicated, the applicant had no prospects of bringing himself within the descriptions of the persons and purposes referred to in section 63C.
In my view the applicant did not enter his guilty pleas under any misapprehension or misunderstanding about the law. Subsequent to his pleas he has asserted a mistaken view of the law and he continues to assert it in this application.
Findings
I am satisfied that on 5 July 2012 the applicant entered guilty pleas to charges of possessing and accessing child pornography without there having been any improper pressure brought to bear on him to enter those pleas. I find that in addition there is no serious question to be tried. He has no defence to the charges. I find that he entered those guilty pleas having been properly advised of the ingredients of the charges and of the consequences for him of pleading guilty to those charges.
I dismiss the application to set aside the guilty pleas.