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”)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] SADC 55
Decision Date: 9 April 2015

CaseChat Overview and Summary

The applicant was charged with obtaining access to child pornography and attempting to obtain access to child pornography. The matter was brought before the court on an application for a stay of proceedings on the second count, which alleged the offence of attempting to obtain access to child pornography. The applicant argued that the charge was invalid as the offence of attempting to obtain access to child pornography was unknown to the law. The applicant contended that the Parliament had evinced an intention to exclude the application of the offence of attempt by enacting the offence of taking a step towards obtaining access to child pornography.

The court considered whether Parliament had intended to exclude the application of the offence of attempt by enacting the offence of taking a step towards obtaining access to child pornography. The court examined the relevant statutory provisions and found that the Parliament had not evinced such an intention. The court held that the offence of attempt was not excluded by the offence of taking a step towards obtaining access to child pornography. The applicant's argument was rejected, and the application for a stay of proceedings was refused.

The court held that the applicant's charge for attempting to obtain access to child pornography was valid. The court rejected the applicant's argument that the charge was unknown to the law and found that Parliament had not intended to exclude the application of the offence of attempt by enacting the offence of taking a step towards obtaining access to child pornography.

The court made no orders for a stay of proceedings on count 2 of the information.

Orders