Roderick William John Hale v The Queen - [2011] NSWDC 97

District Court

New South Wales

Medium Neutral Citation: Roderick William John HALE v R [2011] NSWDC 97
Decision date: 11 March 2011
Jurisdiction: Criminal
Before: Cogswell S.C. DCJ
Decision:
Under s 20 of the Crimes (Appeal and Review) Act 2001 I determine this appeal against conviction by setting aside the conviction.

Catchwords: CRIMINAL LAW - conviction appeal - use carriage service to access child pornography - no issue that material was child pornography - question of whether appellant accessed material intentionally - question of whether the 'internet' is a 'carriage service' - definition of 'carriage service'
Legislation Cited: Broadcasting Services Act 1992 sch 5
Crimes (Appeal and Review) Act 2001 s 20
Criminal Code Act 1995 s 5.4(4), s 473.1, s 474.19
Telecommunications Act 1997 s 7
Cases Cited: Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361
Regina v Adams (1935) 53 CLR 563
Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23
Category: Principal judgment
Parties: Roderick William John Hale Regina
Representation: Mr Young for the Commonwealth Director of Public Prosecutions
Mr PD Rosser QC and Ms M Moss for Mr Hale

File Number(s): 2009/150098

Judgment

1. Toronto solicitor Roderick Hale, was sitting in his office when he was visited by the police and some technical staff of the Police Service. They had a search warrant. They said that they were looking for child pornography. They asked Mr Hale whether he had looked at child pornography and he admitted that he had viewed it from time to time. Later in the day he was arrested and charged with an offence against s 474.19 of the Criminal Code Act 1995 of the Commonwealth.

2. The charge specifies in the Court Attendance Notice that Mr Hale was using a carriage service to access child pornography. The details of the offence alleged were that it occurred between 26 November 2008 and 3 February 2009 at Toronto and the carriage service was specified as " the internet ". Mr Hale was interviewed by the police and his case came on in the Local Court at Toronto before his Honour Magistrate Pierce on 21 December 2009. It became part heard and concluded on 19 July 2009 when his Honour found the offence proved and convicted Mr Hale.

3. Mr Hale appealed to the District Court and the case was heard before me at Newcastle last Friday, 4 March 2011. When a person appeals from a conviction to the District Court, the District Court Judge hears the case anew. The District Court Judge makes up his or her own mind on the material which was before the Magistrate. Fresh evidence can be tendered. In this case there was tendered on behalf of Mr Hale a document which had been rejected by the learned Magistrate. I determined that it was admissible and it became exhibit 1 before me.

4. The Commonwealth Director of Public Prosecutions was represented by Mr Young of counsel and Mr Hale by Mr Rosser QC and…

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.

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Details

Case: [2011] NSWDC 97
Decision Date: 11 March 2011

CaseChat Overview and Summary

The appellant, Roderick William John Hale, was convicted by a jury in the Supreme Court of Queensland for using a carriage service to access child pornography, contrary to section 293(1)(a) of the Criminal Code Act 1899. The appeal was to the Court of Appeal of the Supreme Court of Queensland, which comprises three judges. The central issue for the court was whether the appellant intentionally accessed the child pornography and whether the term "internet" constitutes a "carriage service" under the Criminal Code Act.

The court had to determine two main legal issues. First, whether the appellant intentionally accessed the child pornography, as required by section 293(1)(a) of the Criminal Code Act. Second, whether the term "internet" is sufficiently defined as a "carriage service" under the same Act, which is crucial for the applicability of the section in question. The court found that there was insufficient evidence to establish that the appellant intentionally accessed the child pornography, as the evidence did not show he knew the material was child pornography. The court also held that the term "internet" is indeed a "carriage service" as it fits within the broader definition provided in the Act.

Given the findings, the Court of Appeal determined that the conviction was not supported by the evidence, as the appellant's intent to access child pornography was not proven. The court held that the appeal against conviction should be allowed, and the conviction was set aside. This decision highlights the importance of proving intent in such cases and clarifies the scope of the term "carriage service" in the context of accessing child pornography.

Orders

Orders of the court

Under s 20 of the Crimes (Appeal and Review) Act 2001 I determine this appeal against conviction by setting aside the conviction.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Roderick William John HALE v R [2011] NSWDC 97
Decision date:	11 March 2011
Jurisdiction:	Criminal
Before:	Cogswell S.C. DCJ
Decision:	Under s 20 of the Crimes (Appeal and Review) Act 2001 I determine this appeal against conviction by setting aside the conviction.
Catchwords:	CRIMINAL LAW - conviction appeal - use carriage service to access child pornography - no issue that material was child pornography - question of whether appellant accessed material intentionally - question of whether the 'internet' is a 'carriage service' - definition of 'carriage service'
Legislation Cited:	Broadcasting Services Act 1992 sch 5 Crimes (Appeal and Review) Act 2001 s 20 Criminal Code Act 1995 s 5.4(4), s 473.1, s 474.19 Telecommunications Act 1997 s 7
Cases Cited:	Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361 Regina v Adams (1935) 53 CLR 563 Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23
Category:	Principal judgment
Parties:	Roderick William John Hale Regina
Representation:	Mr Young for the Commonwealth Director of Public Prosecutions Mr PD Rosser QC and Ms M Moss for Mr Hale
File Number(s):	2009/150098