R v Thomas (No 2) - [2023] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THOMAS (No 2)
Criminal Trial by Judge Alone
[2023] SADC 93
Reasons for the Verdict of her Honour Judge Tracey
20 July 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - GENERALLY
The accused is charged with dissemination and possession of child exploitation material offences.
Police located child exploitation material on an iPhone being a phone investigated in the course of allegations of unrelated offending.
Verdict: Guilty of counts 1, 2, 3 and 4.
Criminal Law Consolidation Act 1935 (SA) s 62; Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a); Criminal Law Consolidation Act 1935 (SA) s 63(b), referred to.

R v THOMAS (No 2)
[2023] SADC 93
Introduction

The accused, Jake Frank Thomas, is charged with the following offences:
First Count
Statement of Offence
Aggravated Disseminating Child Exploitation Material. (Section 63(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jake Frank Thomas on the 22^nd day of May 2020 at Macclesfield or another place, disseminated child exploitation material, knowing of its pornographic nature.
It is further alleged that Jake Frank Thomas committed the offence knowing that the child depicted in the child exploitation material was under the age of 14 years.
Second Count
Statement of Offence
Disseminating Child Exploitation Material. (Section 63(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jake Frank Thomas on the 22^nd day of May 2020 at Macclesfield or another place, disseminated child exploitation material, knowing of its pornographic nature.
Third Count
Statement of Offence
Aggravated Possessing Child Exploitation Material. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jake Frank Thomas on the 12^th day of March 2021 at Flaxley, possessed child exploitation material, knowing of its pornographic nature.
It is further alleged that Jake Frank Thomas committed the offence knowing that the child depicted in the child exploitation material was under the age of 14 years.
Fourth Count
Statement of Offence
Possessing Child Exploitation Material. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jake Frank Thomas on the 12^th day of March 2021 at Flaxley, possessed child exploitation material, knowing of its pornographic nature.
The matter was listed before me for trial, commencing on 23 May 2023. On the voir dire, the accused’s application to exclude evidence found by police on the accused’s phone was dismissed.[1] The matter proceeded to trial on 25 May 2023. At trial, the accused called no evidence and made no submissions.
[1] R v Thomas, reasons for ruling 23 May 2023.
Count 1 concerned the dissemination on 22 May 2020, of a video which was 9 seconds in length and showed a child of approximately 5-years of age performing fellatio on an adult male.
Count 2 concerned the dissemination on 22 May 2020, of an image via the messenger app KIK. This was an image of a child aged approximately 15 years, standing naked in a shower.
Count 3 concerned the accused’s possession of 2 videos and 9 images, all located on the mobile phone seized from the accused and showing children under 14 years of age at the time.
Count 4 concerned the accused’s possession of 8 photographs and 2 videos, all located on the mobile phone seized from the accused and categorised as basic images.
The prosecution called the investigating officer, DBS McClean.[2]
[2] T 72, 2.
The agreed facts were as follows:[3]
1.On 27 April 2021, the accused’s mobile phone was examined by Senior Constable Michael Wood, a qualified Digital Evidence Investigator, who performed a data extraction from the phone and from the SIM card. The relevant extracted data was copied to a disk and marked DES-2021-1220 MW1.
Definitions
2.“path” means the location of the file on the phone.
3.“file format” means the specific file type. For example, an image can be a jpg/jpeg, gif, png or raw.
4.“created” means the date of creation for the file. This is the date and time a file was created at that location (not necessarily the original creation date of the file itself).
5.“modified” means the date of the last modification for the file. This is the date and time, for the last time the file was opened, edited, and then saved. If a file is opened then closed, but not altered, the modified date and time entry may not change.
Elements of the Offences
[3] Exhibit P8.
Dissemination of child exploitation material.
To prove this offence, the prosecution must prove each of the following three elements beyond reasonable doubt:
1.The accused disseminated, or took a step in the dissemination of material;
2.The material is child exploitation material;
3.The accused knew of its pornographic nature at the time.
material includes—
(a)any written or printed material; or
(b)any picture, painting or drawing; or
(c)any carving, sculpture, doll, statue or figure; or
(d)any photographic, electronic or other information or data from which an image or representation may be produced or reproduced; or
(e)any film, tape, disc, or other object or system containing any such information or data;
disseminate—a person disseminates child exploitation material if the person—
(a) sends, supplies, sells, exhibits, distributes, transmits or communicates it to another, or enters into an agreement or arrangement to do so; or
(b)     makes it available for access by another (including access by means of a             computer) or enters into an agreement or arrangement to do so;
child exploitation material means material—
(a)—
(i)    that—
(A)describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(B)consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child under, or apparently under, the age of 17 years, or the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; or
(C)(without limiting subparagraph (B)) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child‑like sex doll, or part of a child‑like sex doll; and
(ii)     that is of a pornographic nature; or
(b)     that is a child‑like sex doll;
pornographic nature—material is of a pornographic nature for the purposes of this Division if the material is intended or apparently intended—
(a)     to excite or gratify sexual interest; or
(b)     to excite or gratify a sadistic or other perverted interest in violence or cruelty;
The aggravating factor in count 1 is that at the time the accused disseminated the material he knew that the children depicted were under the age of 14 years.
Possession of Child Exploitation Material
To prove this offence, the prosecution must prove the following three elements beyond reasonable doubt:
The accused had possession of the material;
1.The material was child exploitation material;
2.The accused knew of the pornographic nature of the material.
13 The aggravating factor in count 3 is that the children depicted were under the age of 14 years of age at the time.
Legal Directions
The prosecution bears the onus of proving the charged offences beyond reasonable doubt and the accused does not have to prove anything.
If, in these reasons I use the words proved, established, or satisfied, then I have meant in each case, proved beyond reasonable doubt.
I must assess each of the charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
The accused elected not to give evidence or call evidence[4]as was his right. The accused has a right to decline to give evidence and because that is his legal right, I must not draw any inference adverse to him, or the case that he has put forward because he has exercised that right. His silence does not constitute an admission against him and cannot be used to fill gaps in the evidence tendered by the prosecution.
[4] T 84. 29.
The Court heard evidence that police initially spoke to the accused in relation to a charge of arson and for which he was arrested. The charge did not proceed. The evidence was led to explain why police first spoke with the accused and seized his phone. I must not use the evidence to reason that because the accused was being investigated and charged for another offence that he is more likely to have committed the offences before me or is the type of person who is likely to have committed the alleged offences.
I understand that uncharged images and communications were found on the accused’s phone. I must not use the evidence to simply reason that because those images were found, this makes the accused more likely to have committed the offences before me, or that he is the type of person who is likely to have committed the alleged offences.
As the prosecution case rests upon circumstantial evidence, the accused cannot be found guilty of any charge unless the circumstances exclude any reasonable explanation consistent with innocence. To find the accused guilty of an offence, I must be satisfied, not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances I find proven enable me to draw. The approach to the circumstantial evidence in this case requires two steps. First to look at the items of circumstantial evidence the prosecution relies upon, and decide which facts are established by that evidence and then consider what inference or inferences I am prepared to draw from those facts. I am required to consider the combined strength of the facts I find have been established by the evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear and not be influenced by public opinion in relation to the matter.
Evidence of DBS McClean
DBS McClean said that the was recalled to duty in the early morning of 12 March 2021.[5] He attended a fire on Davidson Road, Flaxley. Also in attendance was Senior Constable Matthews and several CFS members including the accused.[6] As a result of a briefing from Senior Constable Matthews, he spoke to the accused and seized his mobile phone. DBS McLean was investigating who it was who had notified of the fire or ‘called the fire in’.[7]
[5] T 72. 16-22.
[6] T 73. 3-8.
[7] T 73. 27-29.
The accused was asked for the PIN code for the phone, which the accused provided, and DBS McClean unlocked the phone.[8] Prior to seizing the phone, the accused had retrieved it from his jacket pocket and shown police the call log to satisfy police he had not made the call notifying of the fire.
[8] T 73. 17-25.
The accused was arrested in relation to the fire and participated in a record of interview.
The accused’s iPhone was seized and provided to SAPOL’s digital evidence section on 22 March 2021. A data extraction of the phone was undertaken.
Ultimately the arson charges were discontinued.
DBS McLean said that on 28 April 2021 he received an email from the digital evidence section, informing him that child exploitation material had been located on the phone.[9] The accused was arrested on 29 April 2021 when his laptop computer was seized. No child exploitation material was found on that device.[10]
[9] T 74. 21-26
[10] T 74. 6-12.
DBS McClean prepared a document detailing the images and videos he had observed on the phone[11], identifying the categories of the material by reference to the Australian Child Abuse Categorisation Schema.[12]
[11] Exhibit P3
[12] Exhibit P2.
DBS McLean said that he found the KIK messenger app on the phone.[13] In that app police found several messaging conversations showing KIK chat with two other users, namely, ‘Dan Jones’(Jones) and ‘James Lolwing’(Lolwing). During the conversation with Lolwing an image was sent from the accused’s phone to Lolwing.[14] In a separate conversation with Jones, the same image was received by the accused’s phone from Jones.
[13] T 76. 33-38.
[14] T 77. 1-14.
Several images were in the photo gallery on the accused’s phone. Some images were in both the KIK app and in the photo gallery. DBS McClean described the method by which a user would have to copy or screenshot an image in the KIK app, for it to then be saved in the photo gallery.
DBS McClean produced a schedule of the data extracted from the messages sent and received from the KIK messenger app.[15] The document showed a conversation in the chat group titled ‘Teen ;) 7-17’.[16]
[15] Exhibit P4.
[16] T 78. 21.
In a message from the accused’s phone to Jones, child exploitation material was located within conversation between the accused and Jones. DBS McClean had prepared a document categorising the images and videos contained within that chat.[17] The categorisation of those images was completed in accordance with the National Child Exploitation Material Category Standard, which DBS McClean described as the previous version of the categorisation system used by police.[18] An image (described on Exhibit P5 as #29) was sent from the accused’s phone to Jones, where the receiver responded ‘That’s last one is nice (Exhibit P4, page 7, chat #2). A video (described on Exhibit 5 as #77) from the accused’s phone to Lolwing, where the receiver responded ‘Keep em coming lol’ (Exhibit P4 page 11, chat #8).
[17] Exhibit P5.
[18] Exhibit P6.
In conducting a review of the accused’s phone with a view to determining the owner, DBS McClean said that he found a number of selfie-type images of the accused together with images or photos of the accused with his daughter.[19] He found text messages between the accused and his ex-partner. He produced a copy of the photographs and images identifying the accused as the owner of the phone.[20]
[19] T 81. 5-8.
[20] Exhibit P7.
The photos also include a photograph of a Macclesfield CFS truck. In the contacts section of phone, the name Jake Thomas appears along with his associated email address. Within the Google Gmail app, the profile of the user of that account is described as Jake Thomas, with an associated email address. SMS text messages between the user of the accused’s phone appear with the phone number of the accused’s ex-partner and mother of his child. A subscriber check for the mobile phone was registered to the accused.
Prosecution Address
The prosecution case was that there could be no doubt that the iPhone seized by DBS McLean and then forensically examined, belonged to the accused given the photographs DBS McClean took of the contents of the phone.
Child exploitation material was located on the phone in different locations. Some were found in the messenger app KIK, and some were also stored in the accused’s photo gallery, requiring user input. Some images were stored solely in the photo gallery. Any suggestion that someone had accidentally sent all the images on one date, without the accused’s knowledge could be excluded.[21]
[21] T 85. 22-29.
The documents prepared by DBS McLean revealed various modification and creation dates. Many of the creation dates were consistent with the KIK messaging from 22 May 2020, with several accessed in January 2021. Photographs of the various text messages in Exhibit P7 showed that the accused was using his phone around that time and, sent a ‘happy birthday’ message on 29 May 2020 to someone it could safely be inferred, was the mother of his child.[22]
[22] T 86. 1-6.
There were also several images created and accessed on 22 February 2021 and some created on 12 June 2020. Accordingly, the prosecutor submitted, there was not one incident that might have an innocent explanation. The images were accessed and seen on multiple dates. The inference, the prosecutor urged upon me was that it was the accused who accessed the images and viewed them. It was, he argued, entirely implausible that it had been anyone other than the accused. The accused’s phone was locked and could not be accessed without the PIN.
As to the KIK messenger app, the messaging occurred on the phone and messages containing child exploitation material was both sent and received by another person. There were comments received by the recipients.
The prosecution argued that the evidence led by the prosecution establishes all counts beyond a reasonable doubt.
Defence counsel made no submissions.
Analysis
Given the evidence of DBS McLean, supported by the evidence in Exhibit P7, I am satisfied beyond reasonable doubt that the phone handed to police by the accused was a phone he used, and in his possession and control on 12 March 2021 and 22 May 2022.
There is no dispute and I find, that the accused’s phone was subjected to forensic analysis and that the data extracted was categorised by reference to the applicable standards.
I am satisfied that the material the subject of Counts 1 and 2 was possessed by the accused and was child exploitation material, intended or apparently intended to excite or gratify a sexual interest.
Further, I am satisfied based on DBS McClean’s unchallenged assessment, that on 22 May 2020 the accused disseminated a basic child exploitation image to Jones as alleged in Count 2 and disseminated an aggravated child exploitation video to Lolwing as alleged in Count 1. I am further satisfied from the nature and content of the conversations between the accused and Jones and Lolwing, that the accused knew of the pornographic nature of the material that was disseminated. I am satisfied that with respect to Count 1, the accused knew that the child depicted in the video was under the age of 14 years.
I am satisfied that the 9 photographs and 2 videos found on the accused’s phone and that the 8 photographs and 2 videos found on the accused’s phone were in the accused’s possession on 12 March 2021. I am further satisfied that the accused’s phone contained child exploitation material intended or apparently intended to excite or gratify a sexual interest, depicting children under the age of 14 as alleged in Count 3 and depicting children aged 14 or over as alleged in Count 4. I am further satisfied that with respect to Count 3, the accused knew that the child exploitation material the subject of Count 3, depicted children under the age of 14 years.
I reject as even a reasonable possibility that given the accused’s use of the phone and the various locations in which the child exploitation material was found, that the accused did not know of the existence of the child exploitation material on his phone or know the pornographic nature of the material the subject of Counts 3 and 4.
The circumstances exclude any reasonable possibility of the accused’s innocence and I find him guilty of counts 1, 2, 3, and 4.