The Queen v Finnigan (No. 2) - [2015] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
THE QUEEN v FINNIGAN (NO. 2)
[2015] SADC 55
Ruling of His Honour Judge Millsteed
9 April 2015
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant charged on information with obtaining access to child pornography (count 1), contrary to s 63A(1)(b) of Criminal Law Consolidation Act 1935 (CLCA) and attempting to obtain access to child pornography (count 2), contrary to s 63A(1)(b) and s 270A of CLCA - application for a stay of proceedings on count 2 on the ground that it charges an offence unknown to the law - whether Parliament evinced an intention to exclude the application of s 270A (the offence of attempt) by enacting the offence of taking a step towards obtaining access to child pornography (s 63A(1)(b)) - argument rejected - application for a stay refused.
Criminal Law Consolidation Act 1935 (SA) ss 5AA(1)(e), 63A(1)(b), referred to.
F, BV v Magistrates Court of South Australia (2013) 115 SASR 232; The Queen v Finnigan [2014] SADC 34; R v Palaga (2001) 80 SASR 19; R v Randylle (2006) 95 SASR 574; Question of Law Reserved (No 1 of 2003); Re Avory (2003) 87 SASR 392; Britten v Alpogut [1987] VR 929; The Queen v Irwin (2006) 94 SASR 480; R v P, NJ [2003] SASC 308, considered.

THE QUEEN v FINNIGAN (NO. 2)
[2015] SADC 55
Introduction

The accused is charged on an information filed ex officio, by the Director of Public Prosecutions (SA) (“the DPP”) with obtaining access to child pornography (count 1) and attempted obtaining access to child pornography (count 2).[1] This is the third information filed in this Court by the DPP in respect of this matter and, hereinafter, will be referred to as the “third information”. The accused has applied for an order permanently staying count 2 as an abuse of process of the Court upon the ground that it is foredoomed to fail because it charges an offence unknown to the law. The application is rejected for the reasons set out in this ruling.
[1] First Count
Statement of Offence
Obtaining Access to Child Pornography. (63A(1)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Bernard Vincent Finnigan on or about the 24th day of December 2010 at Sefton Park, intending to obtain access to child pornography, obtained access to child pornography.
Second Count
Statement of Offence
Attempted Obtaining Access to Child Pornography. (Sections 270A and 63A(1)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Bernard Vincent Finnigan on or about the 12th day of April 2011 at Sefton Park, intending to obtain access to child pornography, attempted to obtain access to child pornography.
Prosecution case: an overview
On 19 April 2011 police searched the accused’s home at Sefton Park pursuant to a general search warrant and seized an Apple Macintosh Pro laptop computer (“the Apple computer”) and a Sony laptop computer (“the Sony computer”). The accused was arrested on the following day.
The two computers were examined by members of the South Australian Police Sexual Crime Investigation Branch (SCIB) and the Electronic Crime Section (ECS). The charges brought against the accused are based on the results of police analyses of the internet browsing histories stored in the computers’ hard drives. For the purposes of the present application it is not in dispute that there is sufficient evidence from which it can be inferred that the accused was the person who used the computer on each of the occasions the subject of the charges.
Police analysis of the Sony computer established that at 4.13pm on 24 December 2010 the Google “autocomplete feature” on the computer was used to search for a certain term and by so doing the accused acquired a list of Google search results (hyperlinks).[2] The analysis further revealed that over the next few minutes he clicked on a number of the listed hyperlinks and obtained access to eleven websites.[3]
[2] When using the Google Autocomplete feature, a list of search suggestions is automatically displayed as the user types in a search term. The search results are displayed after the user either selects one of the search suggestions or completes typing the search term.
[3] For the purposes of the present application it is not in dispute that there is sufficient evidence from which it can be inferred that the accused was the person who used the computer on each of the occasions the subject of count 1 and count 2.
An ECS analyst succeeded in partially rebuilding six of the websites to show their pictorial and textual content at the time they were accessed on 24 December 2010. Four of the rebuilt websites contained pornographic images of children. The prosecution contends that it can be inferred from these facts that the accused obtained access to child pornography on 24 December 2010 as charged in count 1 in the third information.
Police analysis of the Apple computer established that on 12 April 2011 a certain search term was entered into the Google search engine which resulted in the accused accessing three websites.[4] The police were unable to rebuild the websites to show their content at the time they were accessed on 12 April 2011. However, on 2 May 2013, they undertook searches on the internet using the same search term that had been used on 12 April 2011 and were able to access pornographic images of persons apparently under the age of 16 years. On 24 September 2013 police accessed websites with the same names as the three websites accessed on 12 April 2011. Two of the three websites accessed by police contained pornographic images of children. The prosecution contends that it can be inferred from these facts that the accused attempted to obtain access to child pornography on 12 April 2011 as charged in count 2 in the third information.
[4] The details of the search term and websites are suppressed from publication by virtue of the order referred to in fn 2.
History of proceedings
On 24 September 2013 the accused was committed for trial in this Court on one count of aggravated obtaining access to child pornography and five counts of aggravated taking a step to access child pornography, contrary to s 63A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). In each count, the alleged aggravating circumstance was that prescribed by s 5AA(1)(e)(i) of the CLCA, namely, that the accused “committed the offence knowing that the victim of the offence was, at the time of the offence, ... under the age of 14 years”.
The accused applied to the Full Court of the Supreme Court of South Australia for judicial review of the order of committal contending that the aggravating circumstance could not be applied to the charges of taking a step to access child pornography because in each instance there was no ascertainable victim and therefore no evidence which could prove the victim’s age. The accused further argued that s 5AA(1)(e)(i) required the prosecution to prove that the child depicted in the subject pornography was under 14 years at the time the pornography was accessed by the accused and not when the image was created.
The Full Court (Kourakis CJ and Gray J; Vanstone J dissenting)[5] held that the aggravating element provided by s 5AA(1)(e)(i) applied to offences under s 63A including the offence of taking a step to obtain access to child pornography and that the victim of an offence against s 63A(1)(b) is the person depicted in the pornographic image. Kourakis CJ and Gray J further held that s 5AA(1)(e)(i) requires that the person depicted in the image be under the age of 14 years at the time the image was created. The Full Court, however, set aside the order of committal and remitted the matter to the committing magistrate, Mr Smart SM, for further consideration because he had misconstrued the elements of the aggravated offences. In the course of their judgments the members of the Full Court made observations as to the elements of the basic offence of taking a step to obtain access to child pornography to which I will refer later.
[5] F, BV v Magistrates Court of South Australia (2013) 115 SASR 232.
On 21 May 2013, Mr Smart SM committed the accused for trial in this Court on a single count of aggravated obtaining access to child pornography.
On 12 June 2013 the DPP filed ex officio an information for arraignment on 17 June 2013 (the first information) charging the accused with aggravated possessing child pornography (count 1) and taking a step to access child pornography (count 2), contrary to s 63A(1)(a) and s 63A(1)(b) CLCA, respectively.
On 17 June 2013 the accused filed an application, pursuant to Rules 14 and 15 of the District Court Rules, for an order that proceedings on the first information be permanently stayed as an abuse of process. The accused was not arraigned and the application for a stay was subsequently set down for hearing before me.
The hearing of the application took place on 25 October 2013.
The particulars of the grounds of the application in relation to count 1 were that in order to make out an aggravated offence against s 63A(1)(a) within the meaning of s 5AA(1)(e) (i), it was necessary for the prosecution to prove that the victim of the offence was, at the time of the offence, under the age of 14 years. Counsel for the accused, Mr M. L. Abbott QC, submitted that the prosecution could not rely upon the mere appearance of the children depicted in the images to prove that they were under 14 years of age at the time the images were created.
The particulars of the grounds of the application in relation to count 2 were that in order to make out an offence against s 63A(1)(b) it is necessary for the prosecution to prove that the “step” alleged to have been taken would have led to child pornography. Mr Abbott argued that there was no evidence that the steps the accused is alleged to have taken would have led to such material. He pointed to evidence given at the accused’s committal hearing by the investigating officer, Detective Brevett Sergeant Trevor Rea. In the course of cross-examination, Det. Rea conceded that pornographic websites are constantly being added to, and deleted from, the internet. The same search term used months apart may lead to different websites. Websites accessed through the use of a certain search term may not exist when the same search term is used months later. Furthermore, the content of individual pornographic websites may change. New images may be posted on a website and others taken down.
Mr Abbott argued that in the circumstances it could not be inferred that the accused’s use of a search term on 12 April 2011 would have yielded the same results obtained by police when they used the search term approximately 12 months later or that the websites the accused is said to have accessed on 12 April would have contained the same pornographic images as those displayed when the websites were accessed by police 18 months later (or that they were even the same websites).
On 5 March 2014 I delivered my ruling and published my reasons.[6] I rejected the accused’s application in relation to the first count but granted his application in relation to the second count. In relation to count 1, I found that the prosecution could rely upon the appearance of the children depicted in the images to prove that they were under 14 years of age. Although I considered the prosecution’s reliance on the images to be questionable, I was unable to say that a reasonable jury could not be satisfied beyond reasonable doubt that some of the images depicted children under 14 years of age.
[6] Finnigan v R [2014] SADC 34.
In relation to count 2, I accepted Mr Abbott’s submission that the charge was foredoomed to fail because the prosecution could not establish that the accused took a step that would necessarily have led to child pornography. However, I observed that it was arguable that if the accused entered a search term or accessed websites with the intention of obtaining access to child pornography then his conduct might constitute an offence of attempting to obtain access to child pornography or attempting to take a step towards obtaining access to child pornography even if the material he ultimately accessed did not contain such material. Because counsel had not made full submissions on the point I declined to express a concluded view unless and until the DPP filed a fresh information charging such an offence.
On 18 March 2014 the DPP filed, ex officio, an information for arraignment on 24 March 2014 (“the second information”) charging the accused with aggravated obtaining access to child pornography (count 1) and attempted obtaining access to child pornography (count 2).
On 21 March 2014 the accused filed an application, pursuant to Rules 14 and 15 of the District Court Rules, that the second information be stayed permanently stayed as an abuse of process on the following grounds:
2.1Taking the Prosecution case at its highest, the Prosecution case is foredoomed to fail because:
2.1.1in relation to count 1 on the Information:
a)in order to make out an aggravated offence against section 63A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) within the meaning of section 5AA(1)(e)(i) of the CLCA, it is necessary for the Prosecution to prove that the victim of the offence was, at the time of the offence, under the age of 14 years;
b)the evidence upon which the Prosecution relies in order to prove the existence of a victim who was, at the time of the offence, under the age of 14 years, is incapable of allowing a jury to reach a conclusion as to the victim’s age or, alternatively, the evidence is so unreliable that it should be excluded;
2.1.2in relation to count 2 on the Information:
a)section 270A of the CLCA does not apply to section 63A(1)(b) of the CLCA insofar as that section provides for an offence of obtaining access to child pornography;
b)accordingly, count 2 does not allege an offence known to law.
On 22 July 2014 the DPP filed, ex officio, the third information, charging the accused with obtaining access to child pornography (count 1) and attempted obtaining access to child pornography (count 2). By filing the third information, the DPP abandoned its allegation that count 1 was aggravated by the accused “knowing that the victim of the offence was, at the time of the offence, under the age of 14 years”. Accordingly, the accused’s application for a stay of proceedings in relation to count 1 became redundant. However, the application in relation to count 2 remained alive.
The accused’s application for a stay of count 2 was heard on 28 July 2014 and I reserved my decision.
On 31 July 2014 the accused’s trial on the third information was listed to commence on 13 April 2015.
Legislation
Before I elaborate on the accused’s application it is necessary to set out the relevant legislation.
As earlier set out, the accused is charged in count 2 with attempted obtaining access to child pornography, contrary to ss 270A and 63A(1)(b) of the CLCA.
Section 63A is contained in Pt 3, Div 11A of the CLCA which was inserted by Act No. 52 of 2004. At the time of the alleged offences, Div 11A relevantly provided:
62—Interpretation
In this Division—
child means a person under, or apparently under, the age of 16 years;
child pornography means material—
(a)that—
(i) describes or depicts a child engaging in sexual activity; or
(ii) consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and
(b) that is intended or apparently intended—
(i) to excite or gratify sexual interest; or
(ii) to excite or gratify a sadistic or other perverted interest in violence or cruelty;
...
material includes—
(a) any written or printed material; or
(b) any picture, painting or drawing; or
(c) any carving, sculpture, statue or figure; or
(d) any photographic, electronic or other information or data from which an image or representation may be produced or reproduced; or
(e) any film, tape, disc, or other object or system containing any such information or data;
...
63A—Possession of child pornography
(1) A person who—
(a) is in possession of child pornography knowing of its pornographic nature; or
(b) intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
Maximum penalty:
(a) for a first offence—
(i) if it is a basic offence—imprisonment for 5 years;
(ii) if it is an aggravated offence—imprisonment for 7 years;
(b) for a subsequent offence—
(i) if it is a basic offence—imprisonment for 7 years;
(ii) if it is an aggravated offence—imprisonment for 10 years.
...
(my underlining)
It is plain that s 63A(1)(b) creates two offences: first, obtaining access to child pornography; and second, taking a step towards obtaining access to child pornography. For the purposes of the second mentioned offence, the expression “taking a step towards” is not defined in the CLCA.
Section 270A provides for the offence of attempting to commit an offence. The section, which was enacted[7] before the introduction of Div 11A, states:
[7] Section 270A was enacted by Act No 107 of 1981.
(1)   Subject to subsection (2), a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence.
(2)   Where under a provision of any other Act, or any other provision of this Act, an attempt is constituted as an offence, this section –
(a)does not apply in relation to that offence; and
(b)does not operate to create a further or alternative offence with which a person who commits the former offence might be charged.
(3)   The penalty for an attempt to which this section applies shall be as follows:
(a)in the case of attempted murder or attempted treason, the penalty shall be life imprisonment or imprisonment for some lesser term;
(b)where the penalty or maximum penalty for the principal offence (not being treason or murder) is life imprisonment, the penalty for the attempt shall be imprisonment for a term not exceeding twelve years;
(c)in any other case, the penalty for the attempt shall be a penalty not exceeding a maximum of two-thirds of the maximum penalty prescribed for the principal offence.
(4)   Where the principal offence is an indictable offence, an attempt to commit that offence shall also be an indictable offence; where the principal offence is a minor indictable offence, an attempt to commit that offence shall also be a minor indictable offence; and where the principal offence is a summary offence, an attempt to commit that offence shall also be a summary offence.
The elements of an “attempt” are not defined in the CLCA but are informed by the common law to which I will turn in a moment.
The argument
The accused’s argument is summarised in his written “Outline of Argument” as follows:
20.Part 3 of Division 11A was inserted into the Act by Act No 52 of 2004. In the Second Reading Speech, the then Attorney—General made the following remarks regarding s63A:
63A - Possession of child pornography
New section 63A provides that it is an offence to possess child pornography knowing of its pornographic nature. It will also be an offence to obtain access to child pornography with intention to obtain access or to take any step towards obtaining such access…
21.It is submitted that the words used by the Honourable Attorney-General are of critical importance because it was obviously parliament’s intention that the offence of taking any step towards the obtaining of ‘such access” i.e. the access that would have been obtained and charged via the completed offence constituted by the first of the two offences in s63A(1)(b) had such attempt been successful.
...
24.If section 270A applied and having regard to the terms of Section 63A(1)(b) and 270A, there would be theoretically four different charges that could be laid against a prospective Defendant, namely:
24.1      obtaining access to child pornography;
24.2      taking a step towards obtaining access to child pornography;
24.3      attempting to obtain access to child pornography;
24.4      attempting to take a step towards obtaining access to child pornography.
…
26.In our submission the third and fourth alternatives are not charges known to law because for the reasons set out below:
26.1      the second charge above is, properly construed, an “attempt” of the first option        above;
26.2      accordingly, the third possible alternative above is not an offence known to law;
26.3although it need not be determined for the purpose of the Defendant’s Application, the fourth possible alternative is also not an offence known to law – it is, like the third possible alternative, akin to an “attempt of an attempt” or an attempt of an inchoate offence.
27.As previously submitted, Section 63A(1)(b) creates two separate offences, namely:
27.1      the offence of obtaining access to child pornography; and
27.2      the offence of taking a step towards obtaining access to child pornography.
28.    The latter offence constitutes the “attempt” of the former and as a consequence therefore, Section 63A(1)(b) already contains what Section 270A describes as an “attempt constituted as an offence” of the offence of obtaining access to child pornography.
29. It follows that Section 270A does not apply to Section 63A(1)(b) (insofar as that Section creates an offence of obtaining access to child pornography). In other words, Section 270A does not operate to create a further or alternative offence with which the Defendant might be charged.
30.    Accordingly, the Defendant cannot be charged with an “attempt to obtain access to child pornography” pursuant to Section 270A because:
30.1 Section 270A does not apply to Section 63A(1)(b);
30.2      the offence charged is not one known to law;
30.3the “attempt” of an “obtains access” charge is the offence of “takes a step towards obtaining access to child pornography”, being the very offence which has been dismissed by this Honourable Court.

The accused’s argument may be put as follows. The offence of taking a step towards obtaining access to child pornography is wide enough to include what would constitute an attempt to obtain access to child pornography. Indeed, it is sufficiently wide to embrace what would amount to an offence of attempting to take a step towards obtaining access to child pornography. For that reason, Parliament has evinced an intention to exclude the application of s 270A to offences under s 63A(1)(b).
Consideration
Section 270A(2) is limited to provisions which in terms constitute an offence of attempting to commit another offence (for example, s 256(1) of the CLCA).[8] Section 63A(1)(b) does not create an offence of attempt and thus does not have the effect of negating the operation of s 270A(1). However, as Doyle CJ observed in The Queen v Palaga:[9]
That conclusion does not necessarily dispose of the point. Parliament might well provide for an offence in such a manner as to indicate an intention to exclude the application of s270A to that offence. This could occur whether or not s270A (2) applies.
[8] R v Palaga (2001) 80 SASR 19 at [61] Doyle CJ.
[9] (2001) 80 SASR 19 at [63].
In my view, it cannot be said that Parliament has evinced an intention to exclude the offence of attempt from s 63A(1)(b) if the offence of taking a step fails to cover all conduct that would be embraced by an attempt to either obtain access to child pornography or take a step towards obtaining access to child pornography. In other words, if the offence of attempt is left with work to do there is no reason in logic or principle for concluding that it has been displaced by necessary implication. For this reason, it is necessary to consider the elements of the offence of taking a step towards obtaining access to child pornography and those which would comprise an attempt to commit such an offence.
Elements of taking a step offence
Section 63A(1)(b) requires that a person takes a step towards obtaining access to child pornography (the conduct element) with the intention of obtaining access to child pornography (the mental element).
In F, BV the members of the Full Court expressed conflicting views on what was required to satisfy the conduct element. Kourakis CJ said:[10]
I turn next to the alternative limb of s63A(1)(b) of the CLCA. The conduct proscribed is taking a step towards obtaining access to child pornography. The step must advance, in a sufficiently material way, the offender along the path of obtaining access to pornography. If the step is not a material step, in a series of steps, which if all taken would yield access to child pornography, the conduct element has not been proved.
The conduct element, as I would define it, requires more than taking a step which is apt to yield access to child pornography. The basic offence is not one of engaging in conduct which is calculated to yield access to child pornography. To “take[s] a step towards obtaining access” implies the existence of child pornography which can be accessed by a series of steps of which the conduct engaged in by the offender is one. In most cases a step which is apt to access child pornography will be such a step. An obvious case in which the difference may be material is the case of a decoy, electronic or otherwise, established by police. An offender who mistakenly believes that he is taking a step to obtain child pornography but is actually being entrapped by the decoy may be guilty of an attempt, if the conduct is sufficiently proximate, but is not guilty of the completed offence. In this respect, s63A of the CLCA can be contrasted with s 63B(3)(b) of the CLCA.
[10] (2013) 115 SASR 232 at [49]-[50].
Gray J held that the elements of a taking a step offence under s 63A(1)(b) were an intention to obtain access to child pornography and taking a step towards obtaining access to child pornography.[11] However, he did not define the nature of the step that must be taken in order to satisfy the conduct element.
[11] Ibid [123], [132].
Vanstone J expressly adopted the ‘apt to yield’ test which was rejected by the Chief Justice. Her Honour said:[12]
I consider that the elements of the offence of taking a step towards obtaining access to child pornography (s63A(1)(b)) as they stood at the time of the alleged offences are as follows:
1. that the accused took a step towards obtaining access to child pornography (being material describing or depicting a child under or apparently under the age of 16 years); (The words “towards obtaining access” mean that the step taken would have to be apt to lead to access to child pornography).
2. that he did so intending to obtain access to child pornography.
[12] Ibid [178].
There is, as I pointed out in Finnigan v R, a clear difference between the tests formulated by Kourakis CJ and Vanstone J. To illustrate the difference I provided the following example:[13]
Taking a step that involves keying words into a search engine may be apt to lead to child pornography but may not necessarily lead to that result. For example, the words ‘child pornography’ may be ‘apt’ to lead to child pornographic material but conceivably result in access to a range of non-pornographic sites such as sites discussing the evil of such material.
[13] Finnigan v R [2014] SADC 34 at [65].
In Finnigan v R, I adopted the construction of the conduct element as expressed by Kourakis CJ in F, BV. I have not changed my mind as to the correctness of that construction. In support of his construction, the Chief Justice cited, immediately after the passage underlined above, R v Randylle[14] which considered the elements of the statutory offence of “taking part” in the manufacture of a controlled drug contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA)(CSA).
[14] (2006) 95 SASR 574.
Section 32(1), which has since been repealed, stated:
(1) A person must not knowingly –
(a)Manufacture or produce a drug of dependence or a prohibited substance; or
(b)Take part in the manufacture or production of such a drug or substance; or
(c)Sell, supply or administer such a drug or substance to another person; or
(d)Take part in the sale, supply or administration of such a drug or substance to another person; or
(e)Have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
The meaning of “take part” in subs (1) was informed by subs (4), which provided:
(4)Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person –
(a)     Takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b)     Provides or arranges finance for any such step in that process; or
(c)     Provides the premises in which any such step in that process is taken, or suffers or permits any such step in the process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
In Randylle the Court of Criminal Appeal, following Question of Law Reserved (No 1 of 2003); Re Avory,[15] held that a distinction must be drawn between merely preparatory acts and acts which can properly be regarded as taking a step in a process of manufacture. Doyle CJ (with whom Layton and David JJ agreed) said:[16]
The reference to a step in the process of manufacture directs attention to conduct which leads towards or has the purpose of manufacture. The relevant conduct must be a step in the process. That does suggest a distinction between acts or conduct that precede the process of manufacture and acts or conduct that are part of the process of manufacture.
[15] (2003) 87 SASR 392 at [92], [100].
[16] R v Randylle (2006) 95 SASR 574 at [37].
There is, as Kourakis CJ implicitly acknowledged in F, BV, no sound reason for taking a different approach in relation to the basic offence of taking a step under s 63A(1)(b) of the CLCA. The step taken by an offender must be one which is more than merely preparatory in nature. It must advance in a sufficiently material way the offender along the path of obtaining access to child pornography. The step must be one in a series of steps which if undertaken would yield access to child pornography. Any step taken by an accused person which answers this description will satisfy the conduct element.
Accordingly, the elements of the basic offence of taking a step towards obtaining access to child pornography may be expressed as follows:
1.   The accused person intended to obtain access to child pornography.
2.   The accused person intentionally took a step towards obtaining access to child pornography.
3.   The step taken was a material step in a series of steps which, if taken, would have yielded access to child pornography.
As I earlier pointed out, the charge of taking a step to obtain access to child pornography brought against the accused in count 2 of the first information, was foredoomed to fail because the prosecution could not establish that the accused took a step in a series of steps which, if taken, would have led to child pornography.
Attempt
As earlier stated, the elements of an “attempt” under s 270A are not defined in the CLCA but are informed by the common law. The common law has generally drawn a distinction between preparing to commit a crime and attempting to commit it. In Britten v Alpogut[17] Murphy J defined an attempt at common law as follows:[18]
[A] criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.
[17] [1987] VR 929.
[18] [1987] VR 929 at 938.
This definition was approved by the Court of Criminal Appeal (SA) in The Queen v Irwin and, thus, represents the law in this State.[19] Accordingly, an attempt is committed when a person takes some step or steps towards the commission of a particular offence, which go further than mere preparation to commit the offence and which may fairly be described as sufficiently proximate to the commission of the offence.[20] Difficulties may, of course, arise in determining where an accused person’s conduct falls on the continuum between non-criminal conduct (mere preparation) towards the criminalisation of attempts (sufficiently proximate) to finally culminate in a completed offence[21] but this is not an issue in the context of the present argument.
[19] (2006) 94 SASR 480 at 485.
[20] See R v P, NJ [2003] SASC 308 at [111] (note Mullighan J used the expression “immediately connected” rather than “sufficiently proximate”).
[21] D. Caruso and others South Australian Criminal Law, LexisNexis Butterworths Australia, 2014 at [8.18].
A controversial area of the common law concerns the circumstances in which a person may be found guilty of an attempt to commit an offence where it was impossible to commit the completed offence. As Bray CJ observed in The Queen v Collingridge:[22]
Possibly the most difficult question of the many difficult questions involved in this branch of the law is the question of whether the crime of attempt has been committed when for one reason or another it was not possible in the circumstances for the accused to have achieved his object by the means which he adopted. Examples of hypothetical problems in this area, dear to the hearts of casuists and examiners, are firing an unloaded gun believed to be loaded, administering a harmless substance believing it to be poisonous or an insufficient quantity of real poison believed to be enough, stabbing a dead man believed to be alive, or a block of wood believed to be a human being, firing in the direction where the intended victim is believed to be but is not in fact, and similar questions, arising perhaps more frequently in theory than in fact.
[22] (1976) 16 SASR 117 at 118.
In Haughton v Smith[23] the House of Lords considered that the question of whether a person may attempt to commit an offence in circumstances of impossibility depends upon the nature of the circumstances giving rise to the impossibility. The principle in Haughton v Smith was succinctly summarised by Bleby J in R v Irwin:[24]
The appellant’s argument has its roots in the House of Lords decision in Haughton v Smith, particularly the reasons of Lord Hailsham LC in which his Lordship did not entirely adopt but did refer extensively to the analysis of the law of attempt in the judgment of Turner J of the New Zealand Court of Appeal in R v Donnelly. In summary, the principle which can be distilled from Haughton v Smith is that attempts fall into at least three categories. In one type of case, the accused fails to complete the crime because of ineptitude inefficiency, because the means employed are insufficient or because he or she is somehow interrupted and unable to complete the offence (“insufficient means”). In another type of case, the accused does everything which he or she sets out to do, believing it to amount to a crime, when as a matter of law the actions do not constitute any offence (“legal impossibility”). In the third category, the accused is unable to complete the offence because, regardless of the means adopted, it would be physically or factually impossible to do so (“factual impossibility”). According to the decision in Haughton v Smith, only the first type of case, insufficient means, could properly lead to conviction for an attempt.
[23] [1975] AC 476.
[24] (2006) 94 SASR 480 at [10].
Until the decision in Irwin the courts in this State followed Haughton v Smith.[25] In Irwin the accused was convicted of attempted aggravated robbery based on his conduct in demanding money from the victim though the victim had no money on him. The Court dismissed the appeal and refused to follow Haughton v Smith in respect of the distinction drawn between factual impossibility and impossibility due to insufficient means. Bleby J (with whom Duggan and Anderson JJ agreed) said:[26]
More importantly, attempts to classify various types of attempt into particular categories has been shown to be wanting. The concept of a defence of factual impossibility is flawed and has been resoundingly condemned by judges, legislatures and commentators alike in numerous jurisdictions. There can be no ethical distinction between an offender who fails to complete a crime due to insufficient means and one who fails because of physical impossibility. The common law should reflect this. To allow such a distinction would be to endorse a technical, theoretical concept which produces unjust and inconsistent practical results. It would be contrary to common sense and would ignore community expectations that an offender who, with the requisite intention, takes sufficiently proximate steps towards the commission of a crime should be held accountable for his or her actions
[25] R v Collingridge (1976) 16 SASR 117; R v Kristo (1989) 39 Crim R 86.
[26] (2006) 94 SASR 480 at [30].
Overlapping offences
It must be accepted that there is a considerable overlap between an attempt to commit an offence under s 63A(1)(b) and a taking a step offence. However, it is clear, in my view, that the former covers conduct that is not covered by the latter; for example, the offence of taking a step may not embrace conduct which is intentionally directed at accessing child pornography where the means employed by an accused person are insufficient to achieve that objective or where, regardless of the means adopted, it would be physically or factually impossible to do so.
If a person places a written order for child pornography but posts it to the wrong address or places an order over the internet for such material but keys in the wrong website (examples of insufficient means) or, unbeknownst to the accused, the website has since closed down or has deleted child pornographic material from its holdings (examples of physical impossibility) such conduct would not involve taking a step that would yield access to child pornography. However, in my view, any such behaviour would clearly constitute an attempt to access such material.
In my view, it is improbable that Parliament would have intended to exclude the offence of attempt from s 63A(1)(b) knowing that the offence of taking a step would fail to cover all forms of conduct amounting to an attempt. It must be remembered that the obvious purpose of Div 11A is the protection of children from exploitation, degradation and humiliation through child pornography.[27] Plainly, the Division was introduced to widen and strengthen the laws governing child pornography and related offences. This is made clear by the Second Reading Speech delivered by the Attorney-General on the Bill which introduced Div 11A:[28]
The bill will make amendments to the Criminal Law Consolidation Act and consequential amendments to the Summary Offences Act. The amendments will move the child pornography offences from the Summary Offences Act into the Criminal Law Consolidation Act, the aims of the provisions being the protection of children from exploitation, degradation and humiliation remain. Child pornography is a heinous exploitation of children, and the demand for such materials fuels its production and supply. The purpose of these amendments is to reduce and, as far as possible, eliminate the possession, production, supply and sale of child pornography.
These amendments will increase the penalties for the offence of possession of child pornography and for the production or dissemination of child pornography. The bill will introduce new offences of procuring and grooming a child for the purpose of engaging in sexual acts, and filming or photographing children for prurient purposes. The increase in penalties for child pornography offences is in line with moves in other jurisdictions to increase penalties for these offences.
[27] R v Clarke (2008) 100 SASR 363 at [19] Doyle CJ.
[28] Hansard, 26 October 2004 at 561.
The conclusion that I have reached accords with the view expressed by Kourakis CJ in F, BV that “an offender who mistakenly believes that he is taking a step to obtain child pornography but is actually being entrapped by the decoy may be guilty of an attempt, if the conduct is sufficiently proximate, but is not guilty of the completed offence”.
The decision in The Queen v Palaga[29] provides further support. One of the issues the Court of Criminal Appeal was called upon to determine in that case was whether the offence of attempting to produce cannabis plants was an offence known to the law. The appellant’s argument was similar to that advanced by the accused in the present case. He contended that s 270A of the CLCA did not apply to the offence of producing cannabis contrary to s 32(1)(a) of the CSA because an attempt to commit such an offence amounted to taking part in production of cannabis contrary to s 32(1)(b) having regard to the expanded meaning of ‘take part in’ contained in s 32(4).
[29] (2001) 80 SASR 19.
Doyle CJ (Nyland J concurring) rejected the argument for the following reasons:[30]
In the present case, I accept that s 32(4) covers conduct that might well amount to an attempt to commit an offence against s 32(1), were s 32(4) not enacted. But, of itself, this is of little significance. Parliament is at liberty to define an offence widely without necessarily being taken to intend to displace the operation of a provision such as s 270A.
I also accept that s 32(4) covers much of the ground that would otherwise amount to an attempt to commit an offence against s 32(1), but that is as far as one can go. Apart from that, there is no other indication to be found in s 32 of an intention to exclude the operation of s 270A of the CLCA. One would expect a reasonably clear indication of Parliament’s intention to exclude the operation of such a fundamental provision as s 270A. I can find no indication other than the fact that, as I am prepared to accept, a good deal of ground that would otherwise be covered by the offence of attempt is probably covered by s 32(4). In my opinion there is no reason to conclude that Parliament intended to exclude the operation of s 270A in relation to s 32 of the Act. This conclusion is supported by the fact that s 32(4) affects the meaning of s 32(1)(b), and not s 32(1)(a), the source of the completed offence the subject of the second offence.
[30] (2001) 80 SASR 19 at [64]-[65] Gray J rejected the appellant’s argument in a separate judgment at [145]-[147].

The former Chief Justice’s reasoning applies with equal force to the argument advanced by the accused in the present case. While the offence of taking a step contrary to s 63A(1)(b) covers much of the ground that might well amount to an attempt to commit an offence against that provision there is no indication of an intention to exclude the operation of s 270A. Indeed, as I have pointed out, an acceptance of the accused’s argument would leave unpunished some forms of conduct that would otherwise be covered by the offence of attempt. Section 270A was already in existence when Div 11A was enacted and applied to the statutory precursors of Div 11A. Given that the Division was introduced to widen and strengthen the laws governing child pornography and related offences one would, to borrow the words of Doyle CJ, expect a reasonably clear indication of Parliament’s intention to exclude the operation of such a fundamental provision as s 270A.
Furthermore, I am of the view that even if I have erred in concluding that that the offence of taking a step requires proof that the accused’s conduct would have yielded access to child pornography - which would be contrary to the accused’s submission in Finnigan v R - and that the conduct charged in count 2 of the third information could amount to the offence of taking a step, it does not follow that the prosecution may not proceed on the attempt charge. This point was touched on by Doyle CJ in Palaga:[31]
Does it matter if the conduct here charged as an attempt might have been charged, instead, as the offence of taking part in the production of cannabis? I pose this question because, contrary to the submission by Ms Kelly, counsel for the Director, I consider that in the present case the offence of taking part in the production of cannabis might have been charged. Just as planting a cannabis seed and watering it might be considered to be taking part in the production of cannabis, because the planting and watering would be to take a step in the process of production of cannabis in the form of plants, so in the present circumstance the treatment of the cuttings might well be regarded as taking a step in the process of producing cannabis plants from the cuttings. I am by no means satisfied that it was not open to the Director to charge Mr Palaga with an offence under s 32(1)(b).
However, it is unnecessary to decide the point. In my opinion, even if Mr Palaga could have been charged with taking part in the production of cannabis, it remained open to the Director to charge him as the Director did. In principle, it is no objection to a charge of attempting to commit offence A, that the facts alleged disclose the commission of offence B, being a completed offence. For example, it is no objection to a charge of attempted murder that the facts alleged amount to the offence of assault or assault occasioning actual bodily harm. Here, the offence charged is attempting to produce cannabis. By a parity of reasoning, it is no objection that the facts relied upon might amount to the offence of taking part in the production of cannabis. The principal offence for the purposes of the attempt, and the other completed offence, are different offences.
[31] (2001) 80 SASR 19 at [66]-[67] see also the observations of Kourakis CJ in The Queen v Pirgousis [2012] SASCFC 127 at [14].
For these reasons the application for a stay is rejected. The trial will proceed on both counts contained in the third information.