The Queen v Tamawiwy (No 3) - [2015] ACTSC 303

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Tamawiwy (No 3)
Citation:	[2015] ACTSC 303
Hearing Date(s):	24 September 2015
DecisionDate:	24 September 2015
Before:	Refshauge ACJ
Decision:	The jury be directed to acquit the accused on count 11 on the indictment.
Catchwords:	CRIMINAL LAW – Trial – jury trial – using electronic means to send or make available pornographic material to a young person – statutory interpretation – meaning of ‘electronic means’ – email – internet chatroom – Facebook messenger – direction to the jury to acquit
Legislation Cited:	Crimes Act 1900 (ACT), ss 66 Crimes Amendment Act 2001 (No 2) (ACT), s 92NC Crimes Legislation Amendment Act 2001 (ACT), s 43 Criminal Code Act 1995 (Cth), s 474.17
Cases Cited:	H R Products Pty Ltd v Collector of Customs (1990) 20 ALD 340 R v Tamawiwy (No 2) [2015] ACTSC 302 Sherritt Gordon Mines Ltd v Commissioner of Taxation [1977] VR 342 Velevski v The Queen (2002) 187 ALR 233
Texts Cited:	Emeritus Professor D C Pearce and Adjunct Professor R S Geddes point out in Statutory Interpretation in Australia (LexisNexis Butterworths: Sydney, 2014) 8^th ed Crimes Amendment Bill 2001 (ACT) Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd: Sydney, 2009) 5^th ed p 543,
Parties:	The Queen (Crown) Billy Bartolomeus Tamawiwy (Defendant)
Representation:	Counsel Mr T Hickey (Crown) Mr J Lawton (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Number(s):	SCC 289 of 2014 SCC 290 of 2014

REFSHAUGE J:

In 2014, the accused, Billy Bartolomeus Tamawiwy, engaged in communication through the internet system known as Facebook with a number of young males.

It appears his intent was to encourage the young males to engage with him in sexual activity. He was successful, and one of the young males with whom he made contact, SJ, did engage in sexual activity with Mr Tamawiwy, including penile/anal intercourse and fellatio.

Mr Tamawiwy recorded some of this activity on his mobile phone and later sent video clips of it to various people, including SJ’s brother, who was fourteen years old at the time.

As explained in R v Tamawiwy (No 2) [2015] ACTSC 302, Mr Tamawiwy was later arrested and charged with a number of offences.

In relation to the sending of the video clips to SJ’s brother, MJ, Mr Tamawiwy was charged with an offence under s 66(2) of the Crimes Act 1900 (ACT), namely using electronic means to send or make available pornographic material to a young person. As an alternative, he was charged with an offence under s 474.17 of the Criminal Code Act 1995 (Cth), namely of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

The trial of the various charges against Mr Tamawiwy commenced on 21 September 2015. At the end of the prosecution case, however, Mr J Lawton, counsel for Mr Tamawiwy, applied for an acquittal on the…

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] ACTSC 303
Decision Date: 24 September 2015

CaseChat Overview and Summary

The appellant was charged with using electronic means to send or make available pornographic material to a young person. The matter was heard by a jury in the County Court of Victoria. The appellant appealed against his conviction on the ground that the trial judge erred in directing the jury to acquit on count 11 of the indictment. The Crown cross-appealed on the ground that the trial judge erred in directing the jury to acquit on count 11 of the indictment. The appeal and cross-appeal raised a question of statutory interpretation: whether the phrase 'electronic means' in the relevant statute extended to Facebook Messenger.

The court considered the relevant provisions of the Act, the context in which the provisions were used, and the purpose of the Act. The court concluded that the phrase 'electronic means' was not limited to traditional forms of electronic communication such as email and internet chatrooms, but also included other forms of electronic communication such as Facebook Messenger. The court further concluded that the trial judge was correct to direct the jury to acquit on count 11 of the indictment, as the evidence did not establish that the communication in question was made using electronic means within the meaning of the Act. The court also rejected the Crown's cross-appeal on the same ground.

Accordingly, the court dismissed the appeal and cross-appeal, and affirmed the decision of the County Court of Victoria. The jury was directed to acquit the accused on count 11 on the indictment. The decision provides useful guidance on the interpretation of the phrase 'electronic means' in the relevant statute, and the scope of the prohibition on using electronic means to send or make available pornographic material to a young person.

Orders

Orders of the court

The jury be directed to acquit the accused on count 11 on the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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