Stewart v County Court of Victoria
[2018] VSC 58
•15 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00461
| VERN STEWART | Plaintiff |
| v | |
| THE COUNTY COURT OF VICTORIA | First Defendant |
| and | |
| ROSS JOHN HILL | Second Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2018 |
DATE OF JUDGMENT: | 15 February 2018 |
CASE MAY BE CITED AS: | Stewart v County Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2018] VSC 58 |
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CATCHWORDS
JUDICIAL REVIEW AND APPEALS – Appeal to County Court concerning conviction for knowingly possessing child pornography – Alleged failure to grant adjournment – Claim of denial of procedural fairness by Judge – Inability of plaintiff to obtain internet access – Not relevant to conviction or penalty – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Stewart in person | |
| For the Defendant | Ms D Karamicov | Office of Public Prosecution |
HIS HONOUR:
Introduction
Mr Vern Stewart applies for judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) of a conviction for possessing child pornography. He was convicted of one count of possession of child pornography in breach of s 70 of the Crimes Act 1958 (Vic) in the Magistrates’ Court at Melbourne on 8 March 2016, and fined $1,500 plus costs. He then appealed to the County Court.[1] The appeal was listed for hearing on 20 May 2016.
[1]See County Court Act 1958 (Vic) s 53A.
Two days before the appeal was to be heard, Mr Stewart successfully sought an adjournment to obtain legal representation. Subsequently, the hearing of the appeal was again adjourned at his request to 19 September 2016 so he could obtain legal representation. The appeal ultimately came on for hearing on 30 November 2016 with Mr Stewart remaining unrepresented. His complaints are that on 30 November 2016, no adjournment was granted and that he was unable to obtain a computer internet connection in the courtroom. The hearing of the appeal proceeded, and he was again convicted. The penalty imposed by the Magistrates’ Court was left undisturbed.
Judicial review under O 56
Mr Stewart seeks judicial review under O 56 by way of an order of certiorari. To succeed he must show jurisdictional error, an error on the face of the record, or a denial of procedural fairness in the judgment of the County Court. He also must persuade this Court to exercise its discretion in his favour.
Hearing on 30 November 2016
The hearing of the appeal on 30 November 2016 can be briefly outlined. After the appeal was called on for hearing, the Judge explained the nature of an appeal to Mr Stewart, who pleaded not guilty. The prosecutor called the informant to give evidence. The informant was the only prosecution witness and stated, in substance, that during a visit to Mr Stewart’s house on 2 May 2011 he found images on a computer and hard drive. They included 11 (Category 1) images of non-sexual activity, 33 (Category 2) images of child non-penetrative activity, 10 (Category 4) images of child-adult penetration, and 10 (Category 7) images which are not illegal but connected in some way with the other images as classified under the Australian Child Exploitation Material Categorisation Scheme. When photographs of the images were produced to the Court, Mr Stewart viewed the photographs and stated that he had not seen them before. They had, however, been provided to his legal representative during the Magistrates’ Court hearing.
Mr Stewart gave evidence and was cross-examined. He said that he was one of the administrators of an adult website which operated by way of file transfer. The images were uploaded to his computer as a receiver and as offsite storage. He estimated that there were over a million files on the seized computer. He said that he did not consider the images to be child pornography. He said that he didn’t know they were there, because of the vast volume of images which had been remotely transferred onto his computer. In cross examination, Mr Stewart agreed that other people have access to his website and can upload and store material on it.
The prosecutor relied on Mr Stewart’s record of interview with the informant at the Lilydale Police Station on 24 June 2011. In the record of interview, Mr Stewart explained that the website was divided into 30 different sections including sections entitled ‘kinky’, ‘fetish’, ‘hardcore’, ‘softcore’ and ‘babe’. Mr Stewart said that he ran the ‘babe’ section which included only single girls.
In summary, the Judge held that the charge was proven, having regard to the fact that Mr Stewart ran a website that presented materials of a sexual nature and was responsible for the material on his computers. Mr Stewart had knowledge and control over the computer, hard drive and website, and the nature of the images displayed.
As to the nature of the images presented, the Judge said that he did not have any doubt upon viewing the material that it was child pornography.
Affidavits
In support of his application, Mr Stewart relies on his own affidavits of 10 February 2017 and 15 September 2017. The County Court of Victoria, named as the first defendant, submits to any orders of the Court in this proceeding.[2] The second defendant, Senior Constable Hill, relies on the affidavit of Ms Fiona Martin, senior solicitor and Acting Deputy Manager in the Specialised Sex Offences Unit of the Office of Public Prosecutions. Ms Martin exhibits a copy of the transcript of the hearing on 30 November 2017 (‘the transcript’).
[2]See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
Mr Stewart’s first affidavit
In his first affidavit, Mr Stewart deposes that his appeal was mentioned at about 10:30am on the hearing day. The Judge stood the matter down and referred the appeal for hearing in another courtroom. Mr Stewart said that at about 11:30am he had a telephone conversation with a staff member, who he advised that he required internet access. She informed him that this was not provided by the Court. He instead obtained a ‘dongle’ to provide internet access, returning to the Court at approximately 12:00pm. He says he was assisted by the Judge’s tipstaff to connect the laptop but the cabling appeared to be incompatible. The Judge came on the bench and heard the appeal.
Mr Stewart asserts in his first affidavit that he explained to the Judge that he could not connect to the Court’s audio-visual system or the internet and that he needed to do this in order to present his evidence. He claimed that he indicated to the Judge that he was not happy to proceed with the appeal if he could not show the evidence on his laptop, and that ‘the hearing of the appeal continued despite [his] protestations’. He also claimed that the refusal of the Judge to allow him an opportunity to present the evidence he wished to rely on was a denial of procedural fairness and natural justice.
The transcript of the hearing
The transcript is the best evidence of what took place at the hearing. The transcript differs from Mr Stewart’s recollections as deposed in his two affidavits. I accept the version contained in the transcript.
The transcript of the hearing does not support Mr Stewart’s claims or his account of what transpired before the Court.
Contrary to Mr Stewart’s claim, he did not apply for any adjournment of the hearing on 30 November 2016. In fact, he made no application for an adjournment at any stage on this day.
As for his need to access the internet during his evidence, the transcript records that he sought to demonstrate his opposition to child pornography. What he said was ‘I’ve been an advocate against child pornography. I have got evidence to prove that but I can’t hook up into your computer system to show you…’
The issue before the Court, however, was not whether Mr Stewart was an advocate for or against child pornography, but whether he was knowingly in possession of child pornography when his home was visited by police on 2 May 2011. Mr Stewart’s purpose in accessing the internet was not relevant to the main issue. To assist him in giving evidence, the Judge asked Mr Stewart why he said that the material was not child pornography. The Judge effectively invited Mr Stewart to give his evidence, and state his case on this issue, with questions and answers from Mr Stewart occupying in excess of two pages of transcript. Mr Stewart did not at any stage say that he needed access to his computer or the internet to challenge whether the images produced by the informant and obtained from his computer were child pornography.
At the end of his evidence in chief, Mr Stewart was asked by the Judge whether there was anything else he wanted to say. He replied ‘not that I can think of’. He did not advert any need to access the internet.
After the evidence had concluded, the Judge invited Mr Stewart to say whatever he liked. Mr Stewart then said: ‘[He] did have this printed material but they weren’t allowed last time … I was going to take you to the actual website to show you that this existed, and my attempts to … overcome the application of this material to our website…’
The Judge allowed Mr Stewart to produce the material. He highlighted to the Judge the top left corner of one image, which stated: ‘We need to do something about these creeps’. Insofar as it can be understood, this submission was to a similar effect as the point made earlier by Mr Stewart, namely that he was opposed to the publication of child pornography.
Mr Stewart did not suggest at any stage that his desired access to his website on the internet was directed to proving that the images complained of by the prosecution were not child pornography. Rather, as I have said, he intended to make the point that he was opposed to child pornography. He then added that with 153,189 files or images estimated to be on one machine, the volume was so large that it was physically impossible for him to check the machines for anything that had been file transferred to him.
Mr Stewart’s second affidavit
Having been provided with a copy of the transcript, Mr Stewart swore a second affidavit on 15 September 2017. In this affidavit, he conceded that he had mistakenly stated that he had asked for an adjournment during the hearing on 30 November 2016. In fact, he had sought an adjournment on 19 September 2016, which was granted to assist him obtain legal representation on the basis that it was the last adjournment that he would be given.
He also said that his submission to this Court now was that he was not represented by legal counsel, and that his lack of understanding of legalities, plus technical problems within the courtroom prevented him from providing evidence that he believes would have altered the Judge’s decision.
Mr Stewart’s submission
Mr Stewart submitted before me that he wished to use his computer at the hearing on the 30 November 2016 to access model listings, names or aliases, and obtain the dates of images from external databases in order to assist him to prove that the young women depicted in the images were not under the age of 18 years.
The immediate difficulty, however, with this submission is that it is a new submission not made to the Judge who heard the appeal. It is not found in the transcript of the hearing of the appeal, or in any material before the Judge. It is raised for the first time in the application to this Court.
Any investigation of the names, aliases and ages of the young women depicted in the images would clearly have required an adjournment so that an investigation could be undertaken by Mr Stewart, and by the informant. Such an investigation would have involved unknown overseas destinations.
Recently, the Court of Appeal said:
Broadly speaking, a court is extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them. However, an entitlement to make submissions will always be qualified by a requirement that those submissions are relevant to the issue at hand. Refusing a party permission to advance irrelevant submissions is no more a denial of natural justice than refusing a party permission to adduce irrelevant evidence. The assessment is one of ‘practical injustice’. In order to determine whether there has been any unfairness, it is necessary first to consider the extent to which the alleged unfairness may have had an impact on the outcome of the proceedings and, where that possibility arises, whether the extent of the impact can be assessed on appeal. In other words, would further information possibly have made any difference to the outcome?[3]
[3]Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [106] (citations omitted).
Decision
It is clear that Mr Stewart’s claims must fail. There is no practical injustice. He has not established any denial of procedural fairness or any other legal basis for the making of an order of certiorari for the following reasons:
(a) while he had sought and been granted adjournments on two occasions to assist him to obtain legal representation, he made no application for an adjournment on 30 November 2016;
(b) there was no contest before the Judge that the images produced by the prosecution had been obtained from Mr Stewart’s computer at his home following the visit by the informant on 2 May 2011;
(c) Mr Stewart admitted that he was one of the administrators of the website conducted from his computer, and that images were automatically uploaded to his computer. Appropriately, the prosecution referred the Court to the decision of the High Court of Australia in He Kaw Teh v The Queen;[4]
[4](1985) 157 CLR 523.
(d) he also admitted that there were very large numbers of images uploaded to his computer and that it was difficult, if not impossible; to screen and ‘clean’ what was uploaded;
(e) the Judge was satisfied in the circumstances that the images were knowingly possessed by Mr Stewart whether he had seen the specific images or not. Even if he had seen the images, he would not have removed them as he did not consider them to be child pornography;
(f) as the case was presented by Mr Stewart, the main contest was whether the images recorded in photographs produced by the prosecution and taken from Mr Stewart’s computer were child pornography. The Judge encouraged Mr Stewart to fully present his evidence. After hearing from the parties, and viewing the material, the Judge concluded that they were. It was plainly open to him to do so;
(g) Mr Stewart had ample opportunities to persuade the Judge that the images obtained from his computer were not child pornography;
(h) while Mr Stewart did seek to access the internet, it was for a different purpose, namely, to demonstrate that he was an advocate against child pornography;
(i) this information was not material to the proof of the charge before the Judge and made no difference to his conviction. In any event, Mr Stewart informed the Court of his position, and the circumstances he considered relevant;
(j) Mr Stewart did not inform the Judge that he desired to access the internet in connection with the ages of the young women in the images or the dates when the images were made. Even if he had, it is difficult to see how this unsworn hearsay information could be admissible evidence. Verification of any information obtained in this way in accordance with the rules of evidence would have been difficult, or impossible, particularly as it is likely that the images were made overseas;
(k) as far as penalty is concerned, the Judge left the $1,500 fine imposed by the Magistrates’ Court undisturbed. It was not controversial. I am not satisfied that access to the internet had any material significance as to penalty; and
(l) in any event, Mr Stewart informed the Judge about his control of the website and the involvement of others. He had a full opportunity to inform the Court of any matters affecting penalty.
Conclusion
For the reasons given, I am not satisfied that there was a denial of procedural fairness or an error of law by the Judge. I am not satisfied that there is any proper basis for the prerogative order of certiorari or for setting aside the decision of the Judge under O 56.
The originating motion will be dismissed.
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