Shah v The Queen [No 2] - [2021] WASCA 103

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SHAH -v- THE QUEEN [No 2] [2021] WASCA 103
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   14 OCTOBER 2020
DELIVERED          :   17 JUNE 2021
FILE NO/S:   CACR 244 of 2017
BETWEEN:   SARDAR ALAM SHAH
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   DAVIS DCJ
File Number            :   IND BUN 175 of 2016

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of one count of possession of child exploitation material contrary to s 220 of the Criminal Code (WA) - Whether the appellant did not have a fair trial - Whether the guilty verdict was a result of an incorrect description of the material - Whether the guilty verdict was unreasonable or could not be supported on the evidence adduced at trial - Whether the appellant suffered a miscarriage of justice as a result of the conduct of his trial counsel

Legislation:

Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(1)
Community Protection (Offender Reporting) Act 2004 (WA), s 6
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 220, s 221A(2)
Evidence Act 1906 (WA), s 32

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	R A Abbas
Respondent	:	D Renton

Solicitors:

Appellant	:	R & J Lawyers Pty Ltd
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Gibbs v The State of Western Australia [2018] WASCA 68
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Huggins v The State of Western Australia [2018] WASCA 61
Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
Shah v The Queen [2019] WASCA 110
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Wells v The State of Western Australia [2017] WASCA 27

JUDGMENT OF THE COURT:

This is an appeal against conviction.
The appellant was charged on indictment in the District Court that, on 6 October 2014, at Perth at a Commonwealth place, namely Perth Airport, he had in his possession child exploitation material, contrary to s 220 of the Criminal Code (WA) (the Code), read with s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth).[1]
[1] BGAB 1.
On 20 September 2017, after a two‑day trial before her Honour Judge Davis and a jury, the appellant was found guilty of the charge and duly convicted of it.[2]
[2] ts 192.
On 9 November 2017, her Honour fined the appellant $3,000 and made a spent conviction order.[3] Pursuant to s 6 of the Community Protection (Offender Reporting) Act 2004 (WA), as a result of his conviction, the appellant became a reportable offender.
[3] ts 225.
On 29 November 2017, the appellant, then acting in person, filed a notice of appeal against conviction. On 21 February 2018, he signed a discontinuance notice in relation to this appeal. On 7 August 2019, this court set aside the discontinuance notice and reinstated the appeal against conviction. This court also refused applications for an extension of time to appeal against sentence and to challenge the appellant's status as a reportable offender.[4]
[4] Shah v The Queen [2019] WASCA 110.
The appellant relies on four grounds of appeal which allege miscarriages of justice, various errors of law on the part of the trial judge and that the verdict was unreasonable and cannot be supported on the evidence. The question of leave to appeal on these grounds was referred to the hearing of the appeal.[5]
[5] Order of Mazza JA dated 8 September 2019; WAB 4.
For the reasons that follow, none of the grounds has any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal against conviction dismissed. Our reasons for these conclusions are as follows.

An overview of the cases presented at trial

The Crown case at trial was that, on 6 October 2014, the appellant was at Perth International Airport intending to travel to Pakistan via Thailand. While being processed through customs, the appellant was stopped and his belongings were examined by Australian Customs and Border Protection officers. One of the officers asked to see the appellant's mobile telephone. The appellant produced his Apple iPhone and unlocked it. The Customs officer scrolled through some videos which were on the WhatsApp application. The Customs officer found an 89‑second pornographic video depicting a male child between the age of 2 and 3 years, engaging in sexual activity with an adult female.[6] A forensic examination of the appellant's mobile telephone revealed that, on 1 September 2013, the appellant received a substantial number of WhatsApp messages from a person known as Jagdeep, including the video. The Crown did not allege that the appellant solicited the video. However, the forensic examination revealed that, on 4 October 2013, the appellant sent the video to a person named Rai.[7]
[6] ts 217.
[7] ts 219.
The appellant took part in two interviews with Customs officers on 6 October 2014. Edited versions of these interviews were tendered at trial as part of the Crown case. In these interviews, the appellant made admissions, including that he was aware of the video on his mobile telephone and that his friend, Jagdeep, had sent it to him for fun. The appellant also said that he had watched the video.[8]
[8] ts 217 - 218.
At trial, the appellant did not dispute that the video was on his mobile telephone. His counsel formally admitted, pursuant to s 32 of the Evidence Act1906 (WA), that 'the material that was found on [the appellant's] phone is child exploitation material'.[9]
[9] ts 103.
The appellant testified in his own defence. In essence, the defence case was that, notwithstanding the admissions he made in his interviews with the Customs officers, he did not know about the video that was on his mobile telephone and therefore he did not possess it. The second, and the main, issue in the trial was whether the appellant had proved, on the balance of probabilities, the defence under s 221A(2) of the Code, which provides that:
221A. Defences and exclusions for s. 217, 218, 219 and 220
…
(2)It is a defence to a charge of an offence under section 220 to prove that -
(a)the material to which the charge relates came into the accused person's possession unsolicited; and
(b)as soon as the accused person became aware of the nature of the material the accused person took reasonable steps to get rid of it.
As the Crown accepted that the video came into the appellant's possession unsolicited, the real issue in connection with s 221A(2) was whether the appellant, as soon as he became aware of the nature of the material, took reasonable steps to get rid of it.

The evidence adduced at trial

Mr Ezio Zanella, a Customs officer, testified that, on 6 October 2014, he was on duty at the Perth International Airport. He said that he took the appellant aside as he passed through Customs and asked him various questions. Mr Zanella asked to see the appellant's mobile telephone. The appellant gave him the telephone and unlocked it. As Mr Zanella was scrolling through some videos he saw one which he 'deemed' inappropriate. The appellant was immediately cautioned.
Mr Zanella conducted the first interview with the appellant which commenced at about 8.20 am on 6 October 2014. An edited version of the video was played to the jury, who were also given a transcript.
In the first interview, the appellant said, in essence:
(a)The video had been on his telephone for 'maybe nine months[,] maybe one year'.[10]
(b)He had watched it 'a long time ago'.[11]
(c)The video was sent to him by Jagdeep for fun.[12]
[10] BGAB 110.
[11] BGAB 109.
[12] BGAB 110.
The second interview, which commenced at about 9.20 am on 6 October 2014, was tendered through Mr Zanella. An edited version of that interview was played to the jury.[13] The second interview was conducted by Customs officers Mr James Riley (who was the principal case investigator) and Mr Dalio Baldassar. The appellant told the officers that he and Jagdeep were taxi drivers working in the Bunbury area.[14] Jagdeep sent the video to him via the WhatsApp application. Jagdeep sent the video 'for fun'.[15] After some prevarication, the appellant admitted that he watched the video on his mobile telephone when it was sent to him 'a long time ago'.[16] The appellant repeatedly said that he did not know how to delete the video from his telephone.[17] The appellant said that he thought the video was 'rubbish'.[18] He denied that he had sent the video to anyone else.[19]
[13] ts 57.
[14] Second interview transcript, page 18.
[15] Second interview transcript, page 15.
[16] Second interview transcript, page 13.
[17] Second interview transcript, page 13.
[18] Second interview transcript, page 16.
[19] Second interview transcript, page 14.
Mr Kevin McGee, a computer forensic officer who was employed by the Australian Customs and Border Force in 2014, forensically examined the appellant's mobile telephone and extracted data from the device using software and hardware designed for this purpose. Mr McGee prepared an extraction data report which was then handed to the principal investigating officer, Mr Riley.
The extraction report prepared by Mr McGee was tendered in the evidence of Mr Riley.[20]
[20] ts 73.
The effect of Mr Riley's testimony in examination‑in‑chief was that (1) the video the subject of the charge had been sent by Jagdeep to the appellant's mobile telephone via the WhatsApp application on 1 September 2013, and (2) the same video had been sent from the appellant's mobile telephone to the contact number said to be Rai's via WhatsApp on 4 October 2013.[21] Mr Riley noted that the video had been saved on two different locations in the appellant's mobile telephone, including within the WhatsApp media library.[22]
[21] ts 72. See exhibit 5; BGAB 33.
[22] ts 72 - 73.
Mr Riley explained that deletion activity was recorded in the extraction report.[23] He said that he bookmarked all of the entries within the WhatsApp application that were identified as having been deleted.[24] Mr Riley said that this was possible because things are not necessarily removed from a mobile telephone when they are deleted and, as such, the extraction software can sometimes recover deleted messages either in full or in part. Mr Riley said that, in the present case, the data recovered from the phone only contained information of the date and time stamp, but not the content of the deleted message.[25] Mr Riley testified that there was no indication that the video had been deleted as, first, it was still stored on the device and, second, its file name was recorded in the extraction report. Mr Riley said that all that could be seen from the extraction report was that there had been deletion of some items from the WhatsApp application.[26]
[23] Exhibit 8; BGAB 94 - 102.
[24] ts 80.
[25] ts 81.
[26] ts 82.
In cross‑examination, Mr Riley agreed that the child exploitation video received on 1 September 2013 was number 26 of a series of about 40 messages which came into the phone through the WhatsApp application at the time.[27] Mr Riley also agreed that the video file which had been sent to Rai was one of three messages apparently sent from the appellant's mobile telephone at 'one and the same time'.[28]
[27] ts 86.
[28] ts 88.
The Crown case concluded at the end of the first day of the trial.
Shortly after proceedings commenced on the second day of the trial and prior to the appellant giving evidence, defence counsel made admissions pursuant to s 32 of the Evidence Act, being:
(a)The material that was found on the appellant's mobile telephone was child exploitation material.
(b)The child exploitation material was located in the appellant's Apple iPhone which was seized on 6 October 2014.
(c)The child exploitation material located on the phone comprised an 89‑second video 'depicting a male child, aged between 2 and 3, engaging in sexual activity with an adult female'.[29] Defence counsel added, 'to reiterate, I think we had that description from Mr Riley yesterday who saw the material'.
[29] ts 103.
The appellant testified to this effect:
(1)He was born in Pakistan in October 1974 and came to Australia with a limited education in 2003. In 2011 or 2012, he became an Australian citizen.[30]
(2)On 6 October 2014, he was intending to travel to Pakistan for the Eid festival. At the airport, Australian Customs and Border Force protection officers found some material on his mobile telephone.[31]
(3)The material had been sent to him by a man he knew as Jag or Jagdeep.[32]
(4)Jagdeep and another friend, Rai, were listed in his contacts on his mobile telephone.[33]
(5)He first viewed the video the subject of the charge 20 to 25 days after it had been sent to him. The appellant said that he viewed it two or three times. The appellant described it as 'a porn movie and it's [a] wrong movie you know'.[34] The appellant said that he deleted it by going to the WhatsApp application, clicking on the message that contained the video and pushing 'delete'.[35]
(6)He told the Customs officers in his second video interview that the reason he could not delete the video was:[36]
I said that because - because I deleted it from WhatsApp and I deleted [indistinct] so I don't know much about that. Because they came up. I think because I already delete it, so they will comes up again or whatever, and that's why I said I don't know how to delete it. Because I deleted it and it's come again or something.
(7)He denied sending the video to Rai. If it was sent to Rai, it was sent accidentally.[37]
[30] ts 104 - 108.
[31] ts 113.
[32] ts 114.
[33] ts 116 - 117.
[34] ts 120.
[35] ts 120.
[36] ts 121.
[37] ts 121 - 122.
The appellant repeated his assertion that he did in fact delete the video from the WhatsApp application and also claimed that he thought that he had deleted the video from the gallery file on his mobile telephone. When asked by the trial judge to explain how he deleted the video from the gallery he said:[38]
Yes, because I delete from WhatsApp and I think - I think I deleted gallery as well because the - when the movie come by WhatsApp, its have a - they goes to telefolders - WhatsApp, gallery and, I think, camera. So that time I don't know that, but when I see that, I - I deleted WhatsApp and I deleted on the - see the gallery, so I delete off gallery as well after that.
[38] ts 122 - 123.
As we understand the appellant's evidence‑in‑chief, it is to this effect:
(1)He deleted the video the subject of the charge from the WhatsApp application after viewing it 'two or three times' around 20 days to one month after receiving it.
(2)He then deleted the video from his mobile telephone gallery.
(3)His statements made in the interviews prior to trial to the effect that he could not delete the video or did not know how to, were meant in the sense that he did delete the video but, as it 'came up again' when the Customs officer searched his phone, something did not work.
(4)He knew that the video was a 'porn movie' and was 'a wrong movie'.
(5)He did not send the video to Rai. However, if the video was sent to Rai, it was sent accidentally.
Under cross‑examination, the appellant said that when the video was first sent to him, '[he] didn't see properly'.[39] He reiterated that, 'Twenty days or 25 or one month maybe' after receiving the video from Jagdeep he watched it two or three times and then deleted it.[40] He denied viewing the video 'properly' when it was first sent to him, although he watched it in full on that occasion and did not attempt to delete it.[41]
[39] ts 137.
[40] ts 137.
[41] ts 155.
The appellant was challenged by the Crown prosecutor as to whether he had deleted the video from his mobile telephone. The appellant repeated that he deleted the video from the WhatsApp application and added that, at that time or shortly after, he deleted the video from the gallery facility as well.[42] The appellant expressly agreed that in September 2013 he knew how to delete things from the WhatsApp application.[43] (It appears from the cross‑examination at ts 139 that the gallery and the camera roll are the same thing.)
[42] ts 138.
[43] ts 154.
Under cross‑examination, the appellant testified that in 2013 he knew a 'little bit' about how to send a video via the WhatsApp application.[44] He further agreed that, on 11 September 2013, he twice sent videos to Jagdeep.[45]
[44] ts 139.
[45] ts 140 - 142.
The appellant maintained that he did not send the video the subject of the charge to Rai, saying, 'I don't know that - about that'.[46]
[46] ts 142.
The Crown prosecutor referred the appellant to entries in the download report which indicated that on each of 2, 5 and 6 September 2013 the appellant had received a video (not the video the subject of the charge) from Jagdeep which was subsequently forwarded to Rai. The appellant denied forwarding any of these videos to Rai.[47]
[47] ts 151 - 156.
The appellant denied propositions put to him by the Crown prosecutor that, having heard evidence at trial that the child exploitation video Jagdeep sent him on 1 September 2013 was the same video sent from the appellant's phone to Rai on 4 October 2013, he made up his evidence that 25 days to one month after receiving the video he tried to delete it. The appellant also denied that, while he could have deleted the video the subject of the charge, he chose not to do so.[48]
[48] ts 157 - 158.

Discussions between trial judge and counsel

Prior to the Crown prosecutor and defence counsel making their final addresses to the jury, the trial judge, at some length, foreshadowed the legal directions that her Honour intended to deliver to the jury in her summing up. Neither counsel took any material exception to the matters raised by her Honour.

The summing up

Her Honour gave accurate and correct directions to the jury as to the elements of the charge. Her Honour told the jury, in accordance with the admission made by defence counsel, that there was no issue that the video file the subject of the charge constituted child exploitation material.[49]
[49] ts 174.
Her Honour instructed the jury that an issue for them to decide was whether the Crown had proved beyond reasonable doubt that the appellant possessed the video. Her Honour said that there were 'two sub‑parts of this element of possession', the first being that the appellant must have had possession of the material at the time he was apprehended at the Perth International Airport on 6 October 2014. Second, that the appellant must have known or been aware that the material he possessed was child exploitation material.[50]
[50] ts 174.
Her Honour then gave the jury detailed directions as to the element of possession which are not challenged by the appellant. Her Honour said:[51]
There are three requirements of this element of possession which the Crown has to prove beyond reasonable doubt. First, the [C]rown has to prove that Mr Shah knew of the existence of the video file which was found on his iPhone. In order for him to possess the video file, he must have known of its existence at the relevant time which, in this case, is when he was apprehended at the Perth [I]nternational [A]irport on 6 October 2014. A person cannot intend to have control or dominion over the material or material like this if he does not know of the material's existence.
Therefore, proof of knowledge of the existence of the video file is an essential prerequisite to the Crown proving that Mr Shah had an intention to possess that video file. Knowledge in this context means that Mr Shah had an awareness or a belief in the likelihood in the sense that there is a significant or real chance that he had that video file on his iPhone. Secondly, [the Crown] must prove that Mr Shah had control over the video file. And, thirdly, [the Crown] must prove that he had the intention to exercise control over that video file. And the control and the intent to exercise control must be in existence at the same time.
[51] ts 175 - 176.

Her Honour directed the jury that the main issue relevant to the element of possession was whether, as at 6 October 2014, the appellant knew of the existence of the video file on his mobile telephone.[52] Her Honour drew to the jury's attention the appellant's evidence that once he realised the video was 'a porn movie and it was wrong' he deleted it.[53]
[52] ts 176.
[53] ts 181.
The learned trial judge directed the jury that, if they were satisfied beyond reasonable doubt that the appellant possessed the video file, the Crown would have proved the elements of the charge. Her Honour instructed the jury that this would not be the end of the matter because the jury would also need to consider whether the appellant had proved, on the balance of probabilities, that (a) the material to which the charge relates came into the appellant's possession unsolicited, and (b) as soon as the appellant became aware of the nature of the material, he took reasonable steps to get rid of it.[54]
[54] ts 180.
Her Honour directed the jury that there did not appear to be an issue that the file came to the appellant unsolicited.[55] However, the appellant was also required to prove, on the balance of probabilities, that, as soon as he became aware of the nature of the video file, he took reasonable steps to delete it or get rid of it.
[55] ts 181.
Her Honour directed the jury that they may be satisfied on the balance of probabilities that the appellant received the video file unsolicited, but they may not be satisfied that, as soon as he became aware of its nature, he took reasonable steps to get rid of it.
Her Honour comprehensively and fairly summarised the prosecution and defence cases.
After the jury retired to consider its verdict, the prosecutor took no exception to the summing up.[56] Defence counsel raised a matter which, for the purposes of this appeal, was of no moment,[57] otherwise he took no exception to the summing up.
[56] ts 189.
[57] ts 189 - 191.

Ground 1

Ground 1 asserts that the appellant did not have a fair trial. The ground is supported by six particulars. The particulars are not succinct.
Particulars (a), (b) and (e), in effect, allege that the evidence adduced at trial that the appellant sent the video the subject of the charge to Rai was irrelevant because the Crown charged the appellant with an offence under s 220 of the Code alleging possession of child exploitation material, and chose not to charge the appellant with an offence under s 219(2) of the Code in relation to distribution of child exploitation material. The appellant complains that her Honour erred by not instructing the jury to ignore this 'irrelevant' evidence.
Particulars (c) and (d), in substance, focus on Mr Riley's evidence, to the effect that, although the extraction report revealed that messages had been deleted from the WhatsApp application on the appellant's mobile telephone, it was not possible to know the content of all of the deleted messages. The particulars, in effect, assert that this evidence gave rise to a reasonable possibility that the offending video could have been among the files he deleted. The appellant claims that her Honour erred by failing to give the jury the following direction:[58]
You have heard the evidence that there was a deletion activity and that it was not possible to tell which video was or was not deleted and that the offending video might be among the deleted videos and that mistakes may sometimes be made by the persons in ensuring the offending video was deleted even where they are confident that such deletion was undertaken.
[58] WAB 6.
Particular (f) complains that the learned trial judge 'failed to direct her mind and accordingly failed to give directions to the jury regarding the description of the video in the context of the appellant and his friend's culture'. The particular goes on to assert that the learned trial judge:[59]
failed to draw the jury's attention to the cultural perceptions and attitudes towards child pornography that may have affected the jury's assessment of the question whether the appellant did not know, and could not reasonably be expected to have known, that the material to which the charge relates describes [child exploitation material].
[59] WAB 7.

Ground 1 - disposition

Ground 1 is devoid of merit.
As to particulars (a), (b) and (e), simply because the appellant was not charged with an offence contrary to s 219(2) of the Code does not mean that evidence that the appellant had disseminated or distributed the video to Rai was irrelevant to the proof of the charge brought against the appellant.
Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[60] The evidence that the appellant had disseminated the offending video to Rai was relevant in at least two respects. First, proof that the appellant sent the offending video to Rai assisted in proving the prosecution's case that the appellant possessed the video because it tended to show that the appellant knew of its existence on his mobile telephone and that he exercised control over it. Second, the evidence undermined the appellant's defence under s 221A(2)(b) of the Code that as soon as he became aware of the nature of the material he took steps to get rid of it. On the appellant's evidence, he watched the offending video on the day he received it and, at the latest, one month after receiving it from Jagdeep on 1 September 2013. The extraction report established that the offending video was sent to Rai on 4 October 2013. If the appellant was responsible for sending the offending video to Rai on that date, this fact would contradict his testimony that once he viewed the offending video he deleted it immediately.
[60] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2].
We observe that experienced defence counsel did not take any issue with the admissibility of the dissemination evidence.
Having regard to the matters referred to in [49] and [50] above, her Honour was not required to warn the jury of the 'irrelevance' of questions relating to the dissemination of the offending video.
As to particulars (c) and (d), Mr Riley's evidence did not necessarily give rise to a reasonable doubt about whether the offending video had, as the appellant claimed in his evidence, been deleted. Mr Riley's evidence was only part of the evidence adduced by the prosecution to show that the appellant had not deleted the offending video from his mobile telephone as he claimed. A powerful contrary piece of evidence was that the appellant had, in fact, disseminated the offending video to Rai. As we have already explained, the extraction report showed that the video file the appellant received from Jagdeep on 1 September 2013 was sent to Rai on 4 October 2013, and this evidence tended to contradict the appellant's claim that he had deleted the offending video from his mobile telephone. Of course, it cannot be ignored that the offending video was on the mobile telephone when it was found by Customs officers on 6 October 2014.
In her summing up to the jury, the learned trial judge expressly referred to defence counsel's submission that 'Mr Riley could not say what had been deleted from the WhatsApp application. The deleted items, Mr Devlin submitted to you, did not take you anywhere because you didn't know what had been deleted'.[61]
[61] ts 186.
In our opinion, her Honour was not obliged to do more. Specifically, she was not required to give a direction in the terms set out at [45] above. Once again, it is pertinent to observe that defence counsel took no exception to the way in which the trial judge dealt with the issue of the deletion of the offending video.
Finally, there is nothing in particular (f). Implicit in the particular is the doubtful proposition that whether material comes within the definition of child exploitation material may require a consideration of the alleged offender's subjective 'cultural perceptions and attitudes towards child pornography', an issue not raised at trial. In any event, the only evidence of the appellant's 'cultural perceptions and attitudes' was that when he viewed the offending video 'properly', he described it as being 'a wrong video'. The trial judge was not required to draw the jury's attention to matters raised by particular (f).
Ground 1 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 2

Ground 2 alleges that the guilty verdict was a result of an incorrect description of the video provided by the prosecution.
On its face, the ground involves a speculative assertion as to the jury's reasoning and cannot succeed. We will take ground 2 to allege that the appellant suffered a miscarriage of justice as a result of what is alleged to be an inaccurate description of the video the subject of the charge.
The ground is focused on the evidence of Mr Riley in examination‑in‑chief, in which he described the content of the offending video. Mr Riley's description is as follows:[62]
So the video consists of an adult female who's lying on a bed with her legs spread, appears like she's wearing underwear. She has got - there is approximately a two-year-old boy who is - appears to be wearing nappies. He has his penis exposed over the top of the nappy. He's between her legs and she's moving him towards her and he's thrusting towards her vaginal area - or vagina and she's basically encouraging the conduct and he's sort of thrusting back and forth in sort of a sexual - sexual way, I guess, and then a couple of times during the - the clip she also grabs his head and moves it towards her groin area.
[62] ts 84 - 85.
The offending video was, unsurprisingly, not played to the jury during the trial. Defence counsel did not cross‑examine Mr Riley to suggest that the description was in any way inaccurate. At no point in the trial was Mr Riley's description alleged to have been inaccurate. As we have already observed, the appellant admitted that the offending video constituted child exploitation material.
It may be thought that in order to make out the claim that Mr Riley's evidence was incorrect, the appellant would have sought to adduce, as additional evidence in the appeal, the video itself. However, this was not the approach adopted on behalf of the appellant. It was not suggested that viewing the video would demonstrate the inaccuracy of Mr Riley's description of its content.
The appellant's assertion that Mr Riley's evidence was 'incorrect' is solely based on the description of the video given by her Honour when she sentenced the appellant.
The relevant part of her Honour's sentencing remarks relied upon in the appellant's written submissions is incomplete and apt to mislead. It fails to include her Honour's express acknowledgment that she viewed the video and that Mr Riley's description of the video is accurate.[63] The description her Honour gave was consistent with the evidence of Mr Riley.
[63] ts 220.
In his oral submissions,[64] counsel for the appellant appeared to suggest that, having regard to the admission made (pursuant to s 32 of the Evidence Act) that the video constituted child exploitation material, Mr Riley's evidence was unnecessary and unfairly prejudicial to the appellant. This submission cannot be accepted. The admission was made after Mr Riley's evidence. Further, the description occasioned no unfairness to the appellant.
[64] Appeal ts 7.
Ground 2 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 3

Ground 3 is in these terms:
The conviction was against the evidence and findings of the [p]rimary [j]udge.
The particulars to the ground and the written submissions make no reference to the evidence adduced at the trial. They refer only to findings made by her Honour when sentencing the appellant. As developed in the written submissions, the ground is hopeless. This is because a guilty verdict delivered by a jury is incapable of being impugned by the factual findings made by a judge when sentencing an appellant. In any event, and to ensure that there is no doubt on the point, her Honour's findings of fact in sentencing the appellant were not inconsistent with the jury's guilty verdict and did not undermine it.
Ground 3 can only survive as a valid ground of appeal if it is understood as alleging that the guilty verdict was unreasonable or could not be supported on the evidence adduced at the trial: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The respondent addressed the ground in this way in its written submissions.
In his oral submissions, counsel for the appellant effectively accepted[65] that the issue raised by ground 3 was whether it was open to the jury to fail to be satisfied on the balance of probabilities that if the appellant took reasonable steps to get rid of the child exploitation material from his mobile telephone, he did so as soon as he became aware of the nature of the material.
[65] Appeal ts 4.
Counsel for the appellant referred this court to parts of the appellant's evidence, which he said was to the effect that the appellant attempted to delete the offending video from the WhatsApp application and the gallery. Counsel also referred to the evidence of Mr Riley to the effect that data apparently deleted may, for technical reasons, remain stored on a mobile telephone.
The relevant legal principles to be applied to a ground under s 30(3)(a) of the Criminal Appeals Act are well established. They derive from M v The Queen[66] and other High Court authorities, including Jones v The Queen;[67] Libke v The Queen;[68] SKA v The Queen;[69] R v Nguyen[70] and R v Baden‑Clay.[71] The relevant principles have been accurately summarised in decisions of this court in cases such as Wells v The State of Western Australia[72] and Gibbs v The State of Western Australia.[73] We adopt the statements of principle made in Wells and Gibbs.
[66] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493.
[67] Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439, 450.
[68] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.
[69] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
[70] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33].
[71] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308.
[72] Wells v The State of Western Australia [2017] WASCA 27 [13] ‑ [14].
[73] Gibbs v The State of Western Australia [2018] WASCA 68 [28] ‑ [36].
It is enough for present purposes to:
(a)repeat the statement made by Hayne J (Gleeson CJ & Heydon J relevantly agreeing) in Libke:[74]
It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt. (original emphasis) (footnotes omitted)
(b)acknowledge that an appellate court must not disregard or discount the consideration that, relevantly to this case, the jury is the body entrusted with the primary responsibility of determining guilt or innocence, bearing firmly in mind that it had the benefit of having seen and heard the witnesses;[75] and
(c)acknowledge that, while it is a serious step to set aside a jury's verdict of guilty, the appellate court must do so if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.[76]
[74] Libke [113].
[75] M v The Queen (493).
[76] M v The Queen (494 - 495).
Before the jury could deliver a verdict of guilty, it was required to consider whether the appellant had discharged the onus that was cast upon him by s 221A(2) of the Code. This court must consider whether it was open to the jury to find that the Crown had established, beyond reasonable doubt, the elements of the charged offence, and whether it was open to the jury to fail to be satisfied, on the balance of probabilities, of the dual requirements of the defence under s 221A(2) of the Code.
Dealing with the elements of the offence, it was well open to the jury to find that all of the elements of the charged offence had been proved beyond reasonable doubt.
There can be no room for doubt that the offending video was, having regard to the admission made pursuant to s 32 of the Evidence Act, child exploitation material. This admission is consistent with the evidence of Mr Riley referred to at [59] above.
The evidence of Mr Zanella, the appellant's admissions in his video records of interviews, the extraction report and the appellant's testimony at trial overwhelmingly showed that the offending video was, on 6 October 2014, stored on the appellant's mobile telephone. The unchallenged evidence of Mr Riley, supported by the extraction report, showed that the offending video had been sent to the appellant by Jagdeep using the WhatsApp application on 1 September 2013 and had been disseminated to Rai on 4 October 2013. Having regard to the evidence of Mr Zanella, it was evidently easy to locate the offending video on the appellant's mobile telephone.
The effect of the appellant's out‑of‑court statements and his sworn testimony at trial was that he viewed the offending video when it was first sent to him by Jagdeep (albeit, he claimed, not properly at this stage), but sometime later - variously given as 20 days, 25 days, about one month after he had received it - he viewed the video two or three times and realised that it was a 'wrong' video.
The combined effect of the evidence summarised in [76] ‑ [77] above supported a strong circumstantial case that the appellant had both knowledge and control of the offending video and an intention to possess it.
It was well open to the jury to reject the appellant's testimony that, at the time he was apprehended, he did not know that the offending video was on his mobile telephone because he had deleted it. His evidence on this point was to the effect that, when he properly viewed the offending video, he realised it was a 'wrong' video and he deleted it immediately. An obvious difficulty with this evidence is that, on 4 October 2013, apparently after he viewed and deleted the video, he sent it to Rai. The dissemination of the video is plainly inconsistent with his testimony that he deleted it.
The appellant's denials that he had sent the video to Rai were contradicted by the extraction report and the evidence of Mr Riley. The appellant's claim that perhaps he had accidentally sent the video to Rai was highly improbable given that he had, on other occasions in September 2013, sent videos to Rai via the WhatsApp application. The appellant's further denials that he had sent these other videos to Rai were farfetched. It was open to the jury to conclude that the appellant made these farfetched denials because to admit that he had sent other videos to Rai would have undermined his claim that he had not sent the offending video to him or had done so accidentally.
It was open to the jury to conclude that the credibility of the appellant's exculpatory testimony was adversely affected by the statement in his second record of interview,[77] which was inconsistent with the evidence he gave at trial to the effect that he did know how to delete videos from the WhatsApp application.[78]
[77] Second interview transcript, page 13.
[78] ts 121 - 123.

Upon our analysis of the trial record, it was well open to the jury to conclude that, on 6 October 2014, the appellant possessed the offending video which constituted child exploitation material. As to the defence under s 221A(2) of the Code, while the evidence demonstrated that the appellant did not solicit the video, it was well open to the jury to conclude that the appellant had not shown, on the balance of probabilities, that he had, in fact, taken reasonable steps to get rid of the offending video. Alternatively, if he did take reasonable steps, he did not do so as soon as he became aware of the nature of the material.[79]
[79] See [77] above.
In our opinion, the verdict of guilty was not unreasonable or unsupported on the evidence. It was, in our view, well open on all the evidence. There is no significant possibility that an innocent person has been convicted. Ground 3 has no reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 4

Ground 4 alleges that 'the incompetence of defence counsel led to a substantial miscarriage of justice'.[80] The written submissions in support of this ground are brief and may be quoted in full:[81]
23.The appellant described the video as child pornography and stated that he thought it was a porn movie. However, it was the result of the questions unnecessarily repeated and unreasonably asked by the appellant's counsel which confused and mislead [sic] the appellant into stating that the video was a child pornography or a porn movie.
24.It can very well be argued that in this case the conduct of counsel has deprived the accused of a fair trial according to law which resulted in a miscarriage of justice.
[80] WAB 9.
[81] Appellant's written submissions, pars 23 - 24; WAB 14.
The relevant legal principles applicable to a ground of appeal which alleges that an appellant has suffered a miscarriage of justice as a result of the conduct of his or her counsel are well established. They were set out in Huggins v The State of Western Australia.[82] We incorporate, without repeating, this statement of principles.
[82] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [381].
The allegation that the appellant's description of the offending movie as 'child pornography', 'a porn movie' and a 'wrong movie' arose in the following portion of the appellant's examination‑in‑chief, which involved defence counsel, the trial judge and the appellant:[83]
[83] Respondent's written submissions, par 62; WAB 41; ts 119 - 120.
COUNSEL:   Firstly, how did you react to that?
MR SHAH:   I think wrong movie.
COUNSEL:   All right.
JUDGE:   Sorry. I missed that. You thought it was a what movie?
MR SHAH:   A wrong movie, like ‑ ‑ ‑
JUDGE:   Wrong?
MR SHAH:   Silly, silly. Or silly or wrong - what ‑ ‑ ‑
COUNSEL:   Perhaps you just describe it the best way you can.   What did you think when you saw that movie?
MR SHAH:   I think it's silly.
COUNSEL:   That's okay. Just take your time, Mr Shah. We don't have to rush. You said that you thought it was a silly movie?
MR SHAH:   Child pornography is something (indistinct) silly.
JUDGE:   I'm sorry.
COUNSEL:   What - yes. Thank you.
JUDGE:   I missed that too.
COUNSEL:   Thank you, ma'am.
JUDGE:   What did you just say?
MR SHAH:   I think it's a porn movie and it's wrong movie, you know.
JUDGE:   You thought it was a porn movie and it was wrong?
MR SHAH:   Yes.
COUNSEL:   So when you thought that, what did you do?
MR SHAH:   I just delete it.
Contrary to the appellant's submissions, it is plain that the appellant's description of the video was not as a result of any confusing or misleading questions asked by defence counsel. The relevant descriptions of the movie were the appellant's own descriptions.
We accept the respondent's written submissions that the questions asked of the appellant by defence counsel in examination‑in‑chief were relevant to the facts in issue and were responded to by the appellant. Where the appellant's answers were unclear, defence counsel and, indeed, the trial judge, sought clarification from the appellant. It is difficult to sustain an allegation that he was confused by the questioning of counsel when the first answer he gave on the subject was, 'I think wrong movie'. Defence counsel asked the appellant to describe the movie in 'the best way you can'. Defence counsel told the appellant to take his time and not to rush.
Nothing defence counsel did in this exchange constituted a material irregularity in the trial, let alone one that gave rise to a significant possibility that the irregularity affected the outcome.
Further, having read the transcript of the trial, defence counsel, in the face of a strong prosecution case, made appropriate concessions, fought the case on the real issues, made objectively reasonable forensic decisions, and properly put the appellant's defence. He did not act incompetently and his conduct did not give rise to a miscarriage of justice.
Ground 4 should not have been argued. It has no reasonable prospect of succeeding. Leave to appeal should be refused.

Conclusion and orders

None of the grounds of appeal have merit. The appeal must be dismissed. The orders that we would make are as follows:
(1)Leave to appeal is refused on all grounds.
(2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
17 JUNE 2021