Sun v Evans

[2009] WASC 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SUN -v- EVANS [2009] WASC 91

CORAM:   McKECHNIE J

HEARD:   17 MARCH 2009

DELIVERED          :   17 MARCH 2009

FILE NO/S:   SJA 1100 of 2008

BETWEEN:   DEBBIE ANN SUN

Appellant

AND

DARRYL WAYNE EVANS
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE T McINTYRE

File No  :MH 6321 of 2007

Catchwords:

Criminal law - Possession of child pornography - Whether evidence capable of proof beyond reasonable doubt - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Conviction quashed

Category:    B

Representation:

Counsel:

Appellant:     Mr J R Noble

Respondent:     Ms D E Quinlan

Solicitors:

Appellant:     Jeremy Noble

Respondent:     State Solicitor for Western Australia

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

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Shepherd v The Queen (1990) 170 CLR 573

1. McKECHNIE J:  On the uncontested evidence before the Magistrate the appellant had attended at the Canning Vale markets some time earlier than September 2007 and purchased some 120 DVDs from a Chinese man who traded out of the back of a white van.  It appears that some of the DVDs, probably a good many of them, were DVDs containing pornography which is not, of itself, an offence.  Some of them would appear to have contained elements of child pornography and a series of DVDs contained, according to the police officer who had to view them, images of bestiality.  There is no issue that bestiality is indecent and obscene material, the possession of which is an offence.

2. So it is that the appellant came to be charged that she had in her possession an indecent or obscene article, namely eight DVDs containing bestiality.  The matter went to trial on 3 November 2008 and the appellant was convicted and fined.  The appellant's explanation was advanced through a record of interview, not in oral evidence, but the Magistrate appears to have accepted what she said as an accurate account.

3. The appellant's explanation for purchasing the DVDs was that she asked the Chinese man if there were any rude ones as she wished to obtain them for her husband.  Her husband was apparently not interested in them and threw them in the bin.  She retrieved them, for purposes which are a little unclear, perhaps for obtaining a refund but also she said she placed them inside the house because at that stage there was an allegation of child sexual abuse against her husband and this would cause him to get in big trouble.

4. The case was therefore entirely a circumstantial evidence case and ground 1, as amended, is that:

   The evidence was incapable, as a matter of law, of permitting an inference of guilt to be drawn against the Appellant. 

   There follow the particulars which include that there was no evidence from which it could be inferred, as a matter of law, that the appellant had:

   i)viewed the eight DVDs;

   ii)seen the covers of the eight DVDs; or

   iii)known, even if she had seen the covers of the eight DVDs, that they contained indecent or obscene material in the form of bestiality.

5. As to i) there is no evidence that she had, in fact, viewed them.  She denied that she had viewed the particular DVDs and there was no evidence that she had.  The tests for circumstantial evidence are well known and set out in a series of cases referred to by the appellant and by the respondent that do not need any great elucidation by me.  It is enough to refer to Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573. In essence, before being able to be satisfied beyond reasonable doubt of the guilt of an accused (on circumstantial evidence) a tribunal, Magistrate or jury, must be satisfied that is the only inference to be drawn and be satisfied beyond reasonable doubt.

6. If there are alternative inferences then the inference cannot be drawn beyond reasonable doubt.  There is nothing complicated about circumstantial evidence.  It just involves a second step.  There are intermediate facts some of which need to be proved beyond reasonable doubt and some of which do not.  In the present case, absent any evidence that she had viewed the eight DVDs, an intermediate fact which needed to be proved beyond reasonable doubt was that she had seen the covers of the eight DVDs or at least some of them because unless she knew what it was that she had in her possession then the next step - that they contained indecent or obscene material in the form of bestiality - does not arise.

7. The Magistrate's reasons are brief but that is no criticism.  Brevity is usually to be applauded as in this case and it was a simple enough case.  The police had found 120 DVDs, undoubtedly in her possession, some of them as I have described contained bestiality and others did not.  The Magistrate made findings, some of which I have indicated.  One finding was there could only be one reason for a request for rude videos.  That clearly indicated an intention on the part of the accused to obtain DVDs with a sexual content.  She immediately perceived that the cover depicted the contents; that is, a child on the front of the DVD and it is an indication there are sexual activities involving the children.

8. He also found she flicked through and made a finding that she did.  So much may be accepted but that does not go in any way answering the question whether she knew there were images of bestiality.  The magistrate held, 'The accused was aware of the fact there was an allegation that her husband was sexually interfering with the daughter.'  She said on the video, 'I thought I would put them back and get him into really big trouble'.

9. The Magistrate then says:

   [The appellant] was aware of such a serious allegation as one involving sexual interference with her daughter, she must have been aware of the contents of the DVD if the sole purpose of putting them in the room was to get him into really serious trouble. 

   There is a mistake in the reasoning.  It was not necessary for her to be aware that the contents were specifically bestiality in circumstances where there was undoubtedly pornography and child pornography.  One cannot make the leap that therefore she must have known there was bestiality without some evidence of that fact.

10. That is the highest that the Magistrate's reasons came to establishing in his mind beyond reasonable doubt an inference that she knew the contents were of bestiality.  There is no direct evidence that she had ever observed the contents or the covers of the DVDs.

11. There is at best some equivocation that she may have, which is insufficient to ground proof beyond reasonable doubt.  The reasons put forward by the Magistrate are not the only inference of her knowledge of bestiality, being equally consistent with her knowledge that there was child pornography or even pornography on the DVDs which she returned to the house in order to get her husband into trouble.

12. There is no sufficient evidence to prove beyond reasonable doubt the intermediate fact that she had seen the covers of the DVDs.  Therefore the appeal must be allowed on that ground.  It is unnecessary for me to determine the third particular, namely, that if she had seen the covers of the eight DVDs, that they contained indecent or obscene material in the form of bestiality.  It is unnecessary for me to determine the second ground in relation to an error of fact as to the record of interview because taken at its highest the evidence is simply incapable of satisfying a tribunal beyond reasonable doubt that the accused had ever seen the particular eight covers out of the 120 DVDs she had purchased. 

13. The appeal is allowed and the conviction quashed.