Sabourne v The State of Western Australia
[2010] WASCA 242
•23 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SABOURNE -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 242
CORAM: PULLIN JA
BUSS JA
MAZZA J
HEARD: 5 NOVEMBER 2010
DELIVERED : 23 DECEMBER 2010
FILE NO/S: CACR 53 of 2010
BETWEEN: BRENDON MARK SABOURNE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WAGER DCJ
File No :IND 1688 of 2008
Catchwords:
Criminal law - Child pornography - Whether the appellant possessed child pornography - Knowledge necessary to prove possession - Whether trial judge's direction in accordance with law
Legislation:
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA)
Criminal Appeals Act 2004 (WA)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P J Urquhart
Respondent: Ms L Petrusa
Solicitors:
Appellant: Young & Young
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Carney v The State of Western Australia [2010] WASCA 90
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Clark v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R 1
Concord Council v Optus Networks Pty Ltd (1996) 131 FLR 294
Davies v The State of Western Australia [2006] WASCA 151
Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75
Hansen v The State of Western Australia [2010] WASCA 180
He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523
Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502
Littlejohn v Hamilton [2010] TASSC 4
Mowday v The State of Western Australia [2007] WASCA 165; (2007) 176 A Crim R 85
Police v Kennedy (1998) 71 SASR 175
R v Porter [2006] 1 WLR 2633
R v Tang [2008] HCA 39; (2008) 237 CLR 1
Saad v The Queen [1987] HCA 14; (1987) 61 ALJR 243
Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483
Tillman v Attorney-General (NSW) [2007] NSWCA 327; (2007) 70 NSWLR 448
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
PULLIN JA: This is an appeal against conviction.
The appellant was charged with five counts of possessing child pornography. The counts in the indictment, after some amendment at trial, read:
(1)On a date unknown between 1 January 2005 and 3 June 2008 at South Hedland, Brendon Mark Sabourne had in his possession child pornography, in the form of computer data.
(2)On a date unknown between 18 February 2006 and 3 June 2008 at South Hedland, Brendon Mark Sabourne had in his possession child pornography, in the form of computer data.
(3)On a date unknown between 15 March 2006 and 3 June 2008 at South Hedland, Brendon Mark Sabourne had in his possession child pornography, in the form of computer data.
(4)On a date unknown between 22 March 2006 and 3 June 2008 at South Hedland, Brendon Mark Sabourne had in his possession child pornography, in the form of computer data.
(5)On a date unknown between 13 April 2006 and 3 June 2008 at South Hedland, Brendon Mark Sabourne had in his possession child pornography, in the form of computer data.
The appellant was tried before Judge Wager and a jury in the District Court. The trial judge dismissed count 1 as the result of an application by the appellant that there was no case to answer. As to the other four counts, the jury returned a verdict of not guilty on count 2 and guilty on counts 3, 4 and 5. The appellant appeals against the convictions on the latter counts.
The charges were laid pursuant to the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (Act), s 60(4) which read:
A person who possesses or copies child pornography is guilty of a crime and is liable to imprisonment for 5 years.
Section 3 of that Act defined 'child pornography' as meaning:
[A]n article that describes or depicts, in a manner that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 years of age (whether the person is engaged in sexual activity or not).
The word 'possesses' was not defined in the Act.
Evidence
In March 2008 a Mr Sullivan, a computer technician employed at Norwest Communications in Port Hedland, received the appellant's Dell computer with instructions to upgrade the memory and to reinstall Windows XP. Mr Sullivan installed the new memory, took the hard drive from the appellant's computer, transferred all data on it to a Norwest Communications' computer, and then, after reinstalling the hard drive in the appellant's computer and reinstalling Windows XP, he transferred all of the copied data on the Norwest Communications' computer back onto the appellant's computer. In the course of this process he saw some 'suspicious' sounding video files and police were called. The police instructed Mr Sullivan to copy the suspicious information onto a CD or DVD which he did. He took the computer back to the appellant's home on 28 May 2008 and gave the CD or DVD to the police. This disk was subsequently lost by the police. Mr Sullivan said he scanned the appellant's computer for viruses and none were found.
Five days later, on 2 June 2008, police executed a search warrant at the appellant's home and seized the Dell computer. The appellant was interviewed during the execution of the search warrant at his house and this was recorded on video. During the course of that interview, the appellant admitted that the computer was his. Early in this interview he admitted that there were images of a pornographic or obscene nature on the computer but denied there was anything 'involving children or people under age'. However as the interview progressed, he was asked what the images were 'entitled' and he said :
Yeah. A lot of them were entitled, um, - um, like, underage or (indistinct) yeah.
However, he added that he was 'fairly confident' that 'nothing would come through like that'. He said that every file could have 'five or six names'. He was asked whether once he had downloaded 'these items' he had viewed them and he answered 'Yeah. Um, most of the time.' He was asked whether he was aware of the true content of the images or files that he was downloading and he answered 'Um, yeah'. He was asked whether he went back to view them and said 'Sometimes yeah'. He said that 'we've since deleted them'. The appellant's wife gave evidence that the day after the computer came back from Norwest, she saw pornographic material on the computer and deleted it.
A subsequent examination of the computer by police experts revealed that there were pornographic video clips the subject of counts 2, 3, 4 and 5 in the recycle bin on the computer. These were viewed by the police experts with three clicks on the mouse: 'open', 'highlight', 'restore'. As a result, there was no issue about the appellant's ability to access the material which in other cases has given rise to an issue about whether the accused controlled the images on a certain day. See for example Littlejohn v Hamilton [2010] TASSC 4 [17]. Four of these video clips located by the police experts were made the subject of counts 2, 3, 4 and 5. The file names in relation to the images the subject of counts 4 and 5 had titles suggesting that they contained child pornography.
The police experts were able to identify the dates when these four video files were downloaded. Somewhat strangely, in computer jargon, this is called inter alia, the 'modified' date. They were downloaded between February and April 2006. The first dates in counts 2 ‑ 5 in each case is the date the day before the day when the files were 'modified', ie downloaded, and the last date is the day after the computer was seized. The police also gave evidence that the files were located using search terms commonly known to be associated with internet searches for child pornography. The police experts gave evidence that there was no evidence consistent with use of the computer by third persons, ie persons other than the appellant and his wife.
The video file the subject of count 1 had to be recreated using special software. This count was dismissed by the trial judge on the no case application because it was not possible to say when the file was downloaded.
The appellant's wife also gave evidence that the appellant had told her that he had downloaded pornography, that she had never used the particular search engine which the appellant said he used to download pornography, and that the appellant had told her that he had used that search engine to get pornography. She gave evidence that she did not download pornography. She also gave evidence that when people looked after the house, when she and the appellant were on holidays, that they had the opportunity to access the computer, as did other people. However, there was no evidence that any of these other people had actually used the computer. The appellant did not give evidence at trial.
Submissions at trial
Counsel for the appellant submitted to the jury that the persons depicted in the images in relation to counts 2, 3 and 5 did not look like children under 16 years of age. He conceded that the participants in the images the subject of count 4, did look like children. He submitted that because other people had the opportunity to access the computer at the appellant's house and at Norwest Communications, that the jury should have a reasonable doubt about the appellant's guilt.
The trial judge's directions to the jury
During the course of directing the jury the trial judge said:
The second element or part that the State must prove beyond reasonable doubt is that Mr Sabourne had possession of the computer data the subject of the charge. So the particular video or videos the subject of a particular charge. So what does it mean to have possession? Well, the word possession is not defined in the law in a helpful way, but it's used in ordinary English to mean to have control of a thing. And a person can possess something by physically holding on to it, or a person can possess something without physically holding on to it. You've all probably got a car parked somewhere, in a car park or at home. Its yours, you possess it, but you're not physically holding onto it at the moment. So what's required is that the person has control of the thing, and an intention to possess it. And there are two requirements of this element of possession. Firstly, Mr Sabourne must know of the existence on his computer of the computer data that constitutes the child pornography. So he must know that its there on his computer, and he must know that its child pornography. For [at] law, knowledge means an awareness or a belief in the likelihood that the computer data of the images was on his computer, and was child pornography. So knowledge means an awareness or a belief in the likelihood that the data on his computer was on his computer, and was child pornography. And I'll explain to you very shortly how you determine a person's knowledge. But also when it comes to possession, the State must prove beyond reasonable doubt that Mr Sabourne had control over the computer data and the images. That is, that he knew it was there, that it got there (ts 219 ‑ 220).
The trial judge separately directed the jury that they were not to speculate about matters not the subject of evidence.
The jury returned the verdicts referred to above. It is possible that the jury concluded that the images in relation to count 2 did not involve persons who, to the jury, 'looked like children' as counsel for the accused at trial submitted and hence the verdict of not guilty on that count.
The grounds of appeal
The appellant, by the single ground of appeal, contends that the direction of the trial judge quoted above was erroneous in law. The ground of appeal reads:
1.The learned trial Judge erred in law in directing the jury as to the meaning of 'knowledge' required to establish possession.
Particulars
1.1Though the learned trial Judge directed that knowledge means an awareness or a belief by the Appellant of the likelihood that the computer data was:
(a)on the Appellant's computer; and
(b)was child pornography,
her Honour omitted to say that likelihood meant in the sense that there was 'a significant or real chance'.
The appellant's submissions
In support of this ground, counsel for the appellant referred to cases concerning the meaning of possession in relation to possession of prohibited drugs charges.
Reference was made by the appellant to Gleeson CJ's judgment in Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418 (a drug case) where his Honour stated:
The fact in issue, knowledge, is not limited to knowledge gained from personal observation, or certainty based upon belief in information obtained from a third party, although those states of mind would suffice. The word 'awareness' is sometimes used as a synonym. A belief in the likelihood, 'in the sense that there was a significant or real chance', of the fact to be known, will suffice [10].
See also Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502.
The appellant also referred to The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483, in which this court was invited to consider a question of law raised by the Attorney General, the question being:
On a charge of possession of a prohibited drug contrary to the Misuse of Drugs Act 1981 what degree of knowledge is required, inter alia, to establish 'possession'? Specifically, is actual knowledge required, or is it sufficient to establish an awareness or a belief in the likelihood - in the sense that there is a significant or real chance - that the item in question is a prohibited drug [8]?
Although the Misuse of Drugs Act 1981 defined the phrase 'to possess', it did not define or refer at all to the mental element involved in the concept of possession. The court in The State of Western Australia v R held that an element of knowledge had to be proved in order to prove possession of a prohibited drug. A majority, Steytler P and Pullin JA, were agreed on what knowledge and what level of knowledge had to be proved.
Steytler P held at [67] ‑ [68] of that case:
Returning to s 6(1)(a) of the WA Act, having regard for what has been said in the cases to which I have referred (which are of assistance in this respect, even though many of them arose in a different statutory context), it seems to me that knowledge (which might be equated with awareness, in this context) is established if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion.
Similarly at [214] it was stated (per Pullin JA):
In … my opinion … a Judge should always direct a jury that the prosecution has to prove that the accused had knowledge that they were in possession of the prohibited drug and that the word 'knowledge' means awareness or a belief in the likelihood, in the sense that there is a significant or real chance, that the item in question was a prohibited drug.
See also Davies v The State of Western Australia [2006] WASCA 151 [48].
By reference to these cases, the appellant submitted that by failing to qualify the word 'likelihood' by the words 'in the sense that there is a significant or real chance', the trial judge erred in law.
Knowledge
The offence created by s 60(4) of the Act requires proof that the accused 'possesses' child pornography. Possession in its ordinary meaning comprehends some 'degree' of knowledge; so to prove that a person 'possesses' child pornography, some degree of knowledge has to be proved by the prosecutor: Mowday v The State of Western Australia [2007] WASCA 165; (2007) 176 A Crim R 85 [54] (Pullin JA, McLure JA (agreeing on this point) & Buss JA agreeing with McLure JA) referring to The State of Western Australia v R (Steytler P) [26]; (Wheeler JA) [82]; (Pullin JA) [203], [206]. The 'degree' or the 'level' or 'quality' of knowledge necessary to establish possession was the main issue considered in The State of Western Australia v R [11], [202].
Before further discussing the meaning of knowledge, it is necessary to mention that one of the questions considered in The State of Western Australia v R was a question which does not ever arise in relation to a charge of possession of child pornography. It was whether the accused had to know that he had control or dominion over the particular drug nominated in the charge or whether the prosecution merely had to prove that he knew he had a prohibited drug. For example, if the accused was charged with possession of heroin, did he have to know what he had was heroin or would he be not guilty if he thought he was in possession of cocaine rather than heroin? On this question it was held in The State of Western Australia v R that it was necessary for the prosecution merely to prove that the accused had knowledge that he had control or dominion over a 'prohibited drug of some kind' (Steytler P) [50], (Pullin JA) [225] and [228]. Wheeler JA dissented on this point [83] but it is not necessary to discuss what her Honour's view was. A question like this does not arise in relation to a charge of possessing child pornography. The only issue in possession of child pornography cases is whether the person charged has control or dominion over the child pornography, with knowledge that it is child pornography.
The other question considered in The State of Western Australia v R was the point referred to the court. It is a question which may arise in relation to a charge of possession of child pornography. It was whether it is necessary for the prosecutor to prove 'actual' knowledge that the thing controlled was a prohibited drug or some lesser form of knowledge. The majority held that something less would do, namely a belief by the accused in the likelihood 'in the sense that there was a significant or real chance' of the fact in issue, namely that the accused had control or dominion over a prohibited drug of some kind: see Steytler P [67], Pullin JA [228]. Wheeler JA in dissent said that 'actual' knowledge was necessary [197].
The issue in this case is whether the omission of the words 'in the sense of a significant or real chance' in the trial judge's direction about the meaning of knowledge constitutes a miscarriage of justice, which justifies the setting aside of the appellant's conviction.
A person may acquire knowledge because the person's senses were directly exposed to the fact in question; ie by perception. Theætetus' first attempt at a definition was that 'perception is knowledge': Waterfield RAH, Plato: Theætetus (2004) 42. That may be what Wheeler JA meant when she referred to 'actual' knowledge. However, to acquire knowledge, that is to know something, involves more than merely perceiving it. Plato had Socrates explain this to Theætetus by saying that if that were so, then a person would know the existence of an object when he saw it but not know it when his eyes were closed (52). To have knowledge of something requires at least that information be perceived, that there be an assessment or judgment about what information has been perceived, that there exists memory of what was perceived and assessed and that there is an ability to recall the result of that process. The reliability or strength of the information perceived and upon which knowledge is based may vary from strong to weak. Direct perception of a fact is, in many cases, (but not always) the most convincing, reliable or strongest information leading to a person's knowledge or awareness or belief in the existence of a fact. Other information may lead to less certainty about the existence of the fact known but still constitute knowledge as defined in The State of Western Australia v R.
Several examples may assist to illustrate the point. The first example is one where a person downloads and views child pornography on a computer they control. The person then has information making them aware that they have possession of child pornography. It might be said that such a person has 'actual' knowledge. The fact that they perceive, ie see the images will afford the strongest possible basis for knowing they have possession of child pornography. The second example is one where a trusted friend informs a person that he (the friend) has downloaded child pornography onto the person's computer and the friend asks the person to keep control of the computer until they can view the images at a later time. The person's knowledge will not be as strongly based as in the first example but it will still establish that the accused knows or is aware of the likelihood that he possesses child pornography. The third example is one where the friend says nothing about what he has done, but in the past, he may to the person's knowledge, only have used the person's computer for the purpose of downloading child pornography. If the person sees the friend at the computer downloading something, the person may conclude, based on past invariable experience, that when the person takes his computer home there will be a likelihood in the sense of a significant or real chance, that the computer contains child pornography. This is a less certain basis for awareness of the fact than the first two examples but if that is the person's conclusion, then he would have knowledge as defined in The State of Western Australia v R.
The majority in The State of Western Australia v R made sure that 'knowledge' was not restricted to 'actual' knowledge, by adding the words 'awareness' or a 'belief' in the 'likelihood' that the item in question was a prohibited drug; and because in turn the word 'likelihood' may in one of its senses, be regarded as restricted to meaning 'probable' the majority made sure that the word 'likelihood' was not to be restricted only to knowledge based on a preponderance of evidence for, as opposed to the evidence against the fact in the mind of the accused. This was made clear by the addition of the words 'in the sense that there is a significant or real chance'.
The recognition that the words 'likely' or 'likelihood' may have two meanings has been recognised in other areas of the law. See for example discussion in the cases about the meaning of 'likely' in the phrase 'likely to affect the environment' in legislation governing the activities of telecommunication carriers: see Concord Council v Optus Networks Pty Ltd (1996) 131 FLR 294, 323 ‑ 324 where Dunford J said that 'likely' in that context does not mean 'more probable than not, but having a real chance or possibility'.
The issue in this case
As mentioned above, the two main issues the appellant raised or attempted to raise were, first, whether the appellant downloaded the images of child pornography or whether someone else did, and secondly, whether the participants depicted in the images 'looked like children'. If the jury concluded that it was the appellant and not others who downloaded the images and viewed them, then he had 'actual' knowledge. All the evidence pointed to it being the appellant who downloaded the child pornography. The appellant admitted that he downloaded video clips with file names suggesting 'underage' pornography and at least two of the file names did carry such titles. He admitted that 'most of the time' he viewed the pornography he downloaded. He admitted that he and his wife deleted files containing pornography and consistent with this, the video clips the subject of the charges were found by the police experts in the recycle bin. As a result, on the evidence in this case, the words 'in the sense of a significant or real chance' were unnecessary. There was nothing in the case suggesting that any other person downloaded child pornography. It was not prejudicial to the appellant to omit the words 'in the sense that there is a significant or real chance'. The omission of the words 'in the sense of a significant or real chance', disadvantage the prosecutor because without those words, the jury may regard 'likelihood' as meaning probable.
Disposition of the appeal
I hold to what I said in The State of Western Australia v R, which is that a judge should always direct a jury as indicated in [214] of my
reasons. That is the meaning of knowledge settled upon in this State by the majority in The State of Western Australia v R.
I am aware that some cases have suggested that an irregularity in a trial which does not affect the outcome is not a miscarriage of justice: see Weiss v The Queen [2005] HCA 81 [13] fn 11; (2005) 224 CLR 300 [13] fn 25; Carney v The State of Western Australia [2010] WASCA 90 [43]. However, my approach as explained in Carney [41] ‑ [48] and Hansen v The State of Western Australia [2010] WASCA 180 [9] is that any uncorrected irregularity or departure from a trial in accordance with law, constitutes a miscarriage of justice which brings into play s 30(4) of the Criminal Appeals Act 2004 (WA). As a result, leave to appeal should be granted, but the appeal should be dismissed.
BUSS JA: I have read the proposed reasons for decision of Pullin JA, with whom Mazza J agrees generally. I agree that the appeal should be dismissed. My reasons are as follows.
The facts and circumstances of the offending
The appellant was tried in the District Court, before Wager DCJ and a jury, on five counts in an indictment each of which alleged that he possessed child pornography, in the form of computer data, contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Act). The trial judge upheld a submission of no case to answer made by the appellant's trial counsel in respect of count 1. The jury returned a verdict of not guilty on count 2, and verdicts of guilty on counts 3, 4 and 5.
The appellant appeals against his conviction.
The material facts and circumstances are set out in the proposed reasons of Pullin JA. I will not repeat them except to the extent necessary to explain my reasons.
Section 60(4) of the Act
Section 60(4) of the Act reads:
A person who possesses or copies child pornography is guilty of a crime, and is liable to imprisonment for 5 years.
By s 3, in the Act, unless the contrary intention appears, 'child pornography' means 'an article that describes or depicts, in a manner that is likely to cause offence to a reasonable adult, a person who is, or who
looks like, a child under 16 years of age (whether the person is engaged in sexual activity or not)'.
The term 'possesses' is not defined in the Act.
The trial judge's direction in relation to possession
The trial judge directed the jury in relation to possession, relevantly, as follows:
So what does it mean to have possession? Well, the word possession is not defined in the law in a helpful way, but it's used in ordinary English to mean to have control of a thing. And a person can possess something by physically holding onto it, or a person can possess something without physically holding onto it. You've all probably got a car parked somewhere, in a car park or at home. It's yours, you possess it, but you're not physically holding onto it at the moment. So what's required is that the person has control of the thing, and an intention to possess it. And there are two requirements of this element of possession. Firstly, [the appellant] must know of the existence on his computer of the computer data that constitutes the child pornography. So he must know that it's there on his computer, and he must know that it's child pornography. For [at] law, knowledge means an awareness or a belief in the likelihood that the computer data of the images was on his computer, and was child pornography. So knowledge means an awareness or a belief in the likelihood that the data on his computer was on his computer, and was child pornography. And I'll explain to you very shortly how you determine a person's knowledge. But also when it comes to possession, the State must prove beyond reasonable doubt that [the appellant] had control over the computer data and the images. That is, that he knew it was there, that it got there (ts 219 ‑ 220). (emphasis added)
The ground of appeal
The appellant's sole ground of appeal is that the trial judge erred in law in directing the jury as to the meaning of the 'knowledge' required to establish possession.
On 25 June 2010, Mazza J ordered that the application for leave to appeal be referred to the hearing of the appeal.
The appellant's submissions
Counsel for the appellant complained that, although the trial judge directed the jury that 'knowledge' required an awareness or a belief by the appellant of the 'likelihood' that the computer data was:
(a)on the appellant's computer; and
(b)was child pornography,
her Honour omitted to say that the meaning of 'likelihood' was 'in the sense of there being a significant or real chance'.
According to counsel for the appellant, without the addition of the words 'in the sense of there being a significant or real chance', there was a danger the jury would have concluded from the word 'likelihood' that it was sufficient to convict if they were satisfied it was 'probable' the appellant had an awareness or belief that the computer data contained child pornography. It was argued by counsel that the phrase 'a significant or real chance' requires 'something more' than the state of being 'probable'.
The meaning of 'possession'
In He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, Gibbs CJ reviewed numerous authorities and then held:
[W]here a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ('in his possession') themselves necessarily import a mental element (539).
These observations were cited by Gleeson CJ in Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418 in the course of considering the concept of possession in s 9 of the Drugs Misuse Act 1986 (Qld) and whether that concept involved, as an element, knowledge that the thing possessed was a dangerous drug. His Honour went on to say:
The fact in issue, knowledge, is not limited to knowledge gained from personal observation, or certainty based upon belief in information obtained from a third party, although those states of mind would suffice. The word 'awareness' is sometimes used as a synonym. A belief in the likelihood, 'in the sense that there was a significant or real chance', of the fact to be known, will suffice (Saad v The Queen (1987) 61 ALJR 243 at 244; 70 ALR 667 at 668 ‑ 669 per Mason CJ, Deane and Dawson JJ) [10].
Brennan J said in He Kaw Teh that 'possession' implies 'a state of mind with respect to the thing possessed' (585).
Dawson J noted in He Kaw Teh that the intricacies of the concept of possession 'belong to the civil rather than the criminal law' (599). This observation was referred to with approval by Hayne J (Gummow, Heydon, Crennan & Kiefel JJ agreeing) in R v Tang [2008] HCA 39; (2008) 237 CLR 1 [147]. Hayne J said that, in the criminal law, 'possession' is best understood in the manner explained by Dawson J in He Kaw Teh, namely, as a reference to a state of affairs in which there is 'the intentional exercise of physical custody or control over something' (599).
Common cause in the appeal in relation to the term 'possesses' in s 60(4) of the Act
In the present case, it was common cause in the appeal between counsel for the appellant and counsel for the State that in s 60(4) of the Act 'possesses' implies an awareness or belief by the accused that there is a significant or real chance that the computer data in question is on the accused's computer and that the data contains child pornography. The parties proceeded before this court on the basis that the determination of the majority in The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483 (Steytler P & Pullin JA; Wheeler JA dissenting) in relation to the degree of knowledge required to establish possession of prohibited drugs, in the context of s 6(1) of the Misuse of Drugs Act 1981 (WA), should be applied, by analogy, to the term 'possesses' in s 60(4) of the Act. The appellant's ground of appeal and his counsel's submissions reflect this stance. Neither counsel for the appellant nor counsel for the State cited any cases which have considered the meaning of 'possession' in the context of offending involving the possession of computer data containing child pornography. See, for example, Police v Kennedy (1998) 71 SASR 175; R v Porter [2006] 1 WLR 2633; Clark v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R 1; Littlejohn v Hamilton [2010] TASSC 4. I will assume (without deciding), for present purposes, that the legal foundation on which the parties proceeded in the appeal is correct.
The decision in Mowday v The State of Western Australia
In Mowday v The State of Western Australia [2007] WASCA 165; (2007) 176 A Crim R 85, the appellant was convicted, after a trial before a judge and jury, on one count of possessing child pornography, in the form of computer images, contrary to s 60(4) of the Censorship Act 1996 (WA) (repealed), which is relevantly identical to s 60(4) of the Act. The appellant appealed to this court against his conviction.
Grounds 1 and 2 of the appeal alleged, in essence, that the verdict of guilty was unreasonable in that the State's evidence was incapable of establishing guilt beyond reasonable doubt. McLure JA (Buss JA agreeing) dismissed grounds 1 and 2. Pullin JA found that these grounds had been made out.
The court was unanimously of the view that ground 3, which alleged that the trial judge erred in law in his directions to the jury on the use of propensity evidence, was without merit.
Ground 4 alleged that the trial judge had erred in law in his directions to the jury on the meaning of 'possession'. The court was unanimously of the view that ground 4 had been made out.
Pullin JA said, in the course of considering ground 4:
What the jury had to be satisfied about in relation to possession was that the appellant had possession of the 27 pornographic images knowing or suspecting that the images were stored on the disks. As to knowledge see The State of Western Australia v 'R' [2007] WASCA 42.
The respondent conceded that the learned trial Judge erred in his direction on the concept of possession by erroneously applying the element of knowledge to the floppy disks per se as opposed to focusing on the element of knowledge on the contents of the floppy disks [54] ‑ [55]. (emphasis added)
McLure JA (Buss JA agreeing) said this in relation to ground 4:
I also agree with Pullin JA that the trial Judge erred in his direction as to what the prosecution had to establish to prove possession of the pornographic images. He should have directed the jury of the requirement as to the appellant's knowledge of the pornographic images on the disks [15].
Although McLure JA agreed with Pullin JA that:
(a)the trial judge had erred in his directions to the jury on 'possession'; and
(b)his Honour should have directed the jury that it was necessary for the State to prove the appellant's knowledge of the pornographic images on the disks,
McLure JA did not express agreement with Pullin JA's reasoning that what the jury had to be satisfied about in relation to possession was that the appellant had possession of the 27 pornographic images 'knowing or suspecting' that the images were stored on the disks [54]. Also, her Honour did not express agreement with his Honour's apparent view that the determination of the majority in R in relation to knowledge for the purposes of the possession of prohibited drugs under s 6(1) of the Misuse of Drugs Act applied to possession for the purposes of s 60(4) of the Censorship Act.
McLure JA held that the trial judge should have directed the jury of the requirement as to the appellant's 'knowledge' of the pornographic images on the disks, but she did not elaborate. Her Honour did not refer to 'suspicion'.
The meaning of 'likely'
The term 'likely' has a variable meaning. Its meaning is controlled or determined by the context in which it appears or is used.
In Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75, Kennedy J (Ipp & Wheeler JJ agreeing) referred to the meaning of 'likely' in the Australian Concise Oxford Dictionary. The first definition given is 'such as might well happen, or be or prove true, or turn out to be the thing specified'. The second definition given is 'probable'. As Kennedy J said, the first definition is obviously broader than the second [4].
In Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303, Bray CJ considered numerous authorities and then concluded that the ordinary and natural meaning of 'likely' is synonymous with the ordinary and natural meaning of 'probable' (309 ‑ 312). Both mean that there is more than a 50% chance of the event in question happening (309).
In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331, a Full Court of the Federal Court considered whether the respondents in concert had engaged in conduct that was 'likely' to have the effect of causing 'substantial' damage for the purposes of an action instituted by the appellant seeking an injunction and damages under s 80 and s 82 of the Trade Practices Act 1974 (Cth) in relation to s 45D of that Act. Deane J examined the meaning to be ascribed to 'likely'. His Honour said:
The word 'likely' can, in some contexts, mean 'probably' in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance ('an odds‑on chance', per Lord Hodson in Koufos v C Czarnikow Ltd ([1969] 1 AC 350, at p 410) and see, as to the meaning of the word 'probable', Eggleston Evidence, Proof and Probability (1978), p 10 et seq). It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to 'prone', 'with a propensity' or 'liable' (346).
In Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, the High Court interpreted 'likely' within the expression 'likely to cause … death' in s 157(1)(b) and (c) of the Criminal Code Act 1924 (Tas). Gibbs CJ was of the opinion that 'likely', in these provisions, meant 'probable' and not 'possible' (14). That, according to his Honour, was its natural meaning (14). Mason, Wilson and Deane JJ were of the view that 'likely' was used in the provisions in question with what they apprehended to be its ordinary meaning, namely:
[T]o convey the notion of a substantial ‑ a 'real and not remote' ‑ chance regardless of whether it is less or more than 50 per cent: cf Sheen v Fields Pty Ltd ((1984) 58 ALJR 93, at p 95) and Waugh v Kippen ((1986) 160 CLR 156, at pp 166 ‑ 167) (21).
In Saad v The Queen [1987] HCA 14; (1987) 61 ALJR 243, Mason CJ, Deane and Dawson JJ held that where it is necessary to show, for the purposes of s 233B(1)(ca) of the Customs Act 1901 (Cth), an accused person's intention to have a narcotic drug in his or her possession, that intent is established if he or she knew or was aware that an article intentionally in his or her possession comprised or contained a narcotic drug. Their Honours elaborated:
That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug (244). (emphasis added)
See also Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 ‑ 505 (Mason CJ, Deane & Dawson JJ); Tabe [10] (Gleeson CJ).
In other statutory contexts, 'likely' has been held to denote a high degree of probability, but not necessarily a degree of probability exceeding 50%. See TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109 [7] ‑ [12] (Callaway AP, Buchanan JA & Coldrey AJA agreeing); Tillman v Attorney-General (NSW) [2007] NSWCA 327; (2007) 70 NSWLR 448 [88] ‑ [90], [92] (Giles & Ipp JJA).
A 'real chance' has been described as one that is 'substantial, as distinct from a remote chance' (Chan Yee Kin v The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, 389 (Mason CJ)), or one that is not 'remote or insubstantial' (Chan (407) (Toohey J)) or 'a far‑fetched possibility' (Chan (429) (McHugh J)).
The directions to be given by trial judges
In Kural, a case concerned with the importation into Australia of narcotic goods contrary to s 233B(1)(b) of the Customs Act, Mason CJ, Deane and Dawson JJ said in relation to the necessity for the Crown to prove an intention on the part of the accused to import a narcotic drug:
Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct … What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases (504 ‑ 505). (emphasis added)
In Saad, Mason CJ, Deane and Dawson JJ emphasised once again that their comments in Kural and their comments in Saad (see [64] above) were not designed as a direction or instruction to be read by trial judges to juries. Rather, their comments were intended 'to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases' (244).
The merits of the ground of appeal
In my opinion, the word 'likelihood', in the trial judge's direction that 'knowledge means an awareness or a belief in the likelihood that the computer data of the images was on his computer, and was child pornography', would have been understood by the jury, in the context of her summing up as a whole, as 'probable', in the sense of more probable than not. In other words, her Honour's direction, in the context of her summing up as a whole, would have conveyed to the jury that they could not convict the appellant unless the State proved beyond reasonable doubt that he was aware or had a belief that it was more probable than not that the computer data in question was on his computer and that the data contained child pornography.
Counsel for the appellant's submission that the word 'likelihood', when used 'in the sense of there being a significant or real chance', requires 'something more' than the state of being 'probable', is without merit. The word 'likelihood', when qualified by the phrase 'in the sense of there being a significant or real chance', connotes the existence of a substantial chance, regardless of whether it is less or more than 50%. In other words, a chance may be 'significant or real' without necessarily involving a degree of probability of more than 50%.
The trial judge's direction did not disadvantage the appellant. It focussed the jury's attention on whether the State had proved to the criminal standard that the appellant was aware or had a belief that it was more probable than not that the data was on his computer and that it contained child pornography. The direction removed from the jury's consideration any assessment of whether the appellant was aware or had a belief that there was a 'significant or real' chance that the computer data in question was on his computer and that the data contained child pornography, even though the chance may have involved a degree of probability of 50% or less.
I am satisfied that no substantial miscarriage of justice has occurred.
Conclusion
Leave to appeal should be granted, but the appeal should be dismissed.
MAZZA J: I agree with Pullin JA that this appeal against conviction should be dismissed.
I agree with Pullin JA, for the reasons that he gives, that her Honour's direction advantaged rather than prejudiced the appellant.
However, I respectfully disagree that any uncorrected irregularity or departure from a trial in accordance with law constitutes a miscarriage of justice, which brings into play the proviso. While her Honour's omission to use the words 'in the sense of a significant or real chance' may be regarded as an irregularity, it was not such as to affect the outcome of the trial. In my opinion, the omission did not give rise to a miscarriage of justice, and certainly not to any substantial miscarriage of justice.
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