R v TSOLOMITIS - [2012] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TSOLOMITIS
Criminal Trial by Judge Alone
[2012] SADC 12
Reasons for the Verdict of His Honour Judge Barrett
17 February 2012
CRIMINAL LAW - PROCEDURE - VERDICT
The accused was charged with aggravated possession of child pornography. Police found large volumes of pictures and movies of child pornography on his computer. The defendant denied knowing of the existence of the pornography. He called evidence of good character.
Held: In the circumstances the prosecution was not able to exclude access by unknown persons to the accused's computer.
Verdict: Not guilty
Criminal Law Consolidation Act 1935 s 63A(1)(a), referred to.

R v TSOLOMITIS
[2012] SADC 12
Reasons for Verdict

The accused is charged with one count of aggravated possession of child pornography contrary to s 63(A)(1)(a) of the Criminal Law Consolidation Act 1935. There is no dispute that many thousands of images and movies depicting child pornography were found on the accused’s computer which police seized from his office in the Riverland on 22 March 2009. There is no dispute that some of the children depicted were under 14, thus making the possession of such material an aggravated offence. The dispute in the case is the accused’s knowledge of the existence of the pornography on his computer. The accused gave evidence denying such knowledge. The prosecution adduces circumstantial evidence which it says excludes any rational explanation other than the accused’s guilt.
Background
The accused is a 39 year old man who lives on a fruit block some 3 kilometres outside Renmark with his wife and three children aged 11, 9 and 5. For about 6 and a half years, between October 2000 and April 2007, he ran a computer repair business called Solly’s Computers, first from his house, then, from about 2003, in a shed at the back of the house which he converted into an office. He ran the business on his own. At times, either when a job was beyond his expertise or when he had too much work, he would employ the services of a Mr Tolhurst who had a similar business in Berri, some 20 kilometres away. Both the accused and Mr Tolhurst had once had pilot’s licences and shared an interest in a computer game which simulated flying aeroplanes. The prosecution called Mr Tolhurst as a witness. There is some difference between the prosecution and the defence about the frequency and extent of Mr Tolhurst’s access to the accused’ computer. The accused’s wife appears to have used the accused’s computer for banking and occasional internet purposes such as Google searches. Both the accused and his wife gave evidence that she was less familiar with computers than he was.
At some stage, apparently towards the end of the time during which the accused ran the computer business, there were two work experience students aged about 18 and 21 at the office. One was there for 3 months and the other for 1 month. The accused’s children used only a computer kept in the house. The accused closed his computer business in about April 2007. For a few weeks after that he said he worked for a friend on that friend’s fruit block. After that, and until sometime after the police seized his computer and arrested him on 22 March 2009, the accused worked as a truck driver.
Circumstantial evidence
Police seized the accused’s computer (Exhibit P5) and sent it to their E-Crime section for analysis. A former employee of the E-Crime section, Ms Josephine Ryan, gave evidence of results of the analyses carried out in that section. Ms Ryan worked in the E-Crime section for about 5 years. She has certificates in Microcomputer Support and Microcomputer Management. She has received on-the-job training. Her job in this section was to assist police in investigations which involved computer analysis. She was not a police officer, but was an expert employed to assist police.
The prosecution case against the accused is essentially in two bodies of evidence. The first is evidence tending to show that the accused had exclusive access to the subject computer. Other potential users of the computer are, on the prosecution case, excluded as being in a position to acquire and store the pornography. The accused’s wife had insufficient knowledge of computers to acquire and store it. The children were too young and did not have access to the relevant computer. The work experience students had too little opportunity. Mr Tolhurst had too little opportunity as well. He was rarely left alone with the computer. On the Crown case, only the accused had the opportunity and expertise to acquire and store the material.
The second body of evidence relates to the location of the material in the computer. There are several aspects to the evidence of the location of pornography. Ms Ryan said that the pornographic material was effectively “hidden” in the computer. The computer had four hard drives numbered HD1 to HD4. The material was found in only two of the hard drives, HD1 and HD2. The prosecution produced two excel spreadsheets[1], setting out extracts from the search of the hard drives HD1 and HD2. The spreadsheets were prepared using only a few extracts from a vast volume of original material observed on the computer. It is not necessary to describe in great detail the contents of the spreadsheets. They demonstrate that the pornographic material was found at what might be described as the bottom of several layers of folders. Only someone with a real familiarity with computers would know how to open all of the folders and only someone knowing of, or suspecting, the existence of the pornographic material would take the trouble to do so. Two of the sites were commercially available flight simulator files. They were the games that the accused had purchased and which simulated the flying of an aeroplane. Both the accused and Mr Tolhurst gave evidence that they both played those games although Mr Tolhurst said that it occurred only on a couple of occasions. Beyond the flight simulator files were two further files. The first was entitled “Giga” and then the second was “Solly”, a variation of the accused’s surname which he said was his nickname or the name many people knew him by.
[1] Marked MFI-P2 and MFI-P3
There were four such folders – Solly1, Solly2, Solly3 and Solly 72. The accused agreed that his birth year was 1972. The accused incorporated the name Solly in his email account and on the personal number plates of his car. The name was the name of his business. The prosecution submits that in this way the accused has personalised a file only one or two files removed from the pornography. The prosecution asked rhetorically why would anyone but the accused personalise the files in that way. (The accused responded by asking rhetorically, why would he incriminate himself by the use of his own name?).
Ms Ryan’s evidence, together with the agreed facts, leads me to conclude that the spreadsheets offer no assistance in establishing when someone might have accessed the pornographic material, despite one of the columns in each of the spreadsheets being headed “last accessed”. Most of the items in that column show an identical time and date. One explanation for that might be that there was a block virus scanning incident. In other words a virus scanning device programmed into the computer might have scanned all of those items at once resulting in the entries in the spreadsheets. That is not the only explanation, but because it is a plausible one, I would not be able to conclude that the spreadsheet identifies when someone last accessed the material.
There are other entries in the spreadsheet marked MFI-P3 about which there is some doubt. In the column headed “File created” there are dates which go back to 2002. Those entries must be wrong because Mr Nitschke for the prosecution announced that it was an agreed fact that none of the hard drives on the accused’s computer would have been available for purchase in 2002. It was further agreed that HD1 would not have been available for purchase until at least 2008.
Ms Ryan gave evidence about the possible explanations for those earlier entries but the fact remains that I would have to regard the dates in that column as unreliable.
In this way I cannot rely on the accuracy of the “File created” column and the “Last accessed” column.
In fact the spreadsheets offer no evidence implicating the accused apart from the folder bearing the names “Solly” or variations of that name.
Access
In cross-examination Ms Ryan was asked whether the accused’s computer could have been accessed remotely, by which I took the questioner to mean, could it be accessed by someone not in close proximity to the computer. The question was put several times. I set out two exchanges between Mr Boucaut SC and Ms Ryan (T57, lines 25-38):
QIf it were wireless as opposed to dial-up could the computer be remotely accessed.
AIt’s not my area of expertise at all. I know that it’s absolutely possible to be using the internet connection if it’s not protected so someone could be stealing the band width by using via that computer the internet but –
QHow does one do that.
AIt it’s not protected, if you have a wireless-enabled laptop computer or a desktop computer and it will look for wireless connections, like, for instance, if you go to McDonald’s you can use their internet just by switching your computer on, your computer has a look for available wireless networks and if that wireless network isn’t password protected in any way you could use that.
and (T66, line 6 to T67 line 3):
QYou mentioned that wireless broadband, the effect of your evidence was one of connotations of it being wireless was that a computer may be accessed remotely.
AI actually don’t think I said that.
QI thing you might have.
AI talked about the internet service being accessed but I also said, and I would like to say it again, it’s not an area that we explored in this particular investigation or that I have any particular experience in.
QYou have no experience in whether a computer can be accessed remotely or not.
AI know that they can but it’s not an area that I have any experience in.
QHow do you know that they can.
ABecause it’s a tool that we use through work, so it certainly can be done but it would mean – and it’s not anything to do with the wireless – it’s the fact that the computer has an internet connection irrespective of whether it’s dial-up, wireless, so it can be remotely accessed.
QWe all know I think that the internet can be - even I know that the internet can be accessed pretty well no mater where you are providing you know a few little details.
AWhat I’m saying is that by virtue of the computer accessing the internet it then has a network connection and could be accessed.
AIn other words it could enable somebody remote from the computer to actually access the computer and put material onto it.
QThat’s correct.
ADo you say that it doesn’t matter whether it’s wireless broadband or dial-up for that purpose.
QThat’s correct.\
AIs it easier with wireless broadband.
QI have no experience in this area.
In my view that evidence leaves open the possibility of someone remote from the accused’s computer gaining access to it. The evidence remains unclear about what difficulties there would be for someone to remotely place the pornographic material on the accused’s computer. It may be quite difficult and therefore quite unlikely. Further, it is not clear how difficult it would be for someone to remotely view the pornography so placed. The prosecution evidence does not answer these questions.
I would think it remarkable and unlikely that someone would remotely lodge this quantity of pornography on to the accused’s computer simply to incriminate him. I would regard it as less remarkable and less unlikely that someone might remotely lodge the pornography on to the accused’s computer if that person could then view it whenever he chose. That way the person might at lease reduce, if not illuminate, the chance of being detected in possession of the pornography. I would still regard that possibility as an unlikely one because it runs the risk of the accused becoming aware of the existence of the material and deleting it. Nevertheless, on the evidence adduced by the prosecution, I cannot exclude this hypothesis as a rational one. The prosecution evidence does not tell me how difficult it would be for someone to do this. It leaves open that possibility
The accused denied knowing anything of the pornography. He called evidence of good character. Two witnesses spoke of his reputation for honesty. I bear that evidence in mind when considering his credibility as a witness.
Conclusion
In the circumstances of this case I cannot be satisfied beyond reasonable doubt that the accused knew of the pornography that was found on his computer. Accordingly I find the accused not guilty of the charge of aggravated possession of child pornography.