Vincent Anthony Antonielli v The Queen

[2017] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0037

VINCENT ANTHONY ANTONIELLI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2017
DATE OF JUDGMENT:	27 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 164
RULING APPEALED FROM:	DPP v Antonielli (Unreported, County Court of Victoria, Judge Quin, 12 February 2016)

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CRIMINAL LAW – Application for leave to appeal – Whether making of forfeiture order in relation to certain items valid – No nexus between relevant items and commission of ‘the offence’ – Error conceded – Forfeiture order invalid – Issue of return – Child pornography identified on each item – Impractical to identify and delete offending material – No order for return of items ­– Confiscation Act 1997 ss 3, 32, 33­ – Crimes Amendment (Sexual Offences) Act 2016, considered – Gollan v Nugent (1988) 166 CLR 18, considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms K Judd QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

1. I agree with Whelan JA.

WHELAN JA:

1. On 11 February 2015 the applicant pleaded guilty to one charge of possession of child pornography.  The particulars to the charge on the indictment read:

ANTONIELLI possessed 1500 images of child pornography located on the Vantex NextStar CX External USB Hard Drive and Western Digital External USB Hard Disk Drive.

1. On 10 December 2015 the applicant was sentenced.

1. On 12 February 2016 the prosecution applied for a forfeiture order under s 32 or, in the alternative, a disposal order under s 77 of the Confiscation Act 1997 (‘the Act’).  The applicant was unrepresented at the hearing of that application.

1. The items sought to be forfeited or disposed of were set out in a schedule annexed to the application.  There were 10 items listed.  They had been seized by police from the applicant’s residence.  They were:

1.        ‘Nexstar’ external hard drive

2.        WD external hard drive

3.        External ‘Nexstar’ hard drive and power supply

4.        ‘Mitac’ tower PC

5.        Silver colored PC tower

6.        External ‘Seagate’ portable hard drive

7.        Dell ‘Vostro’ laptop and case with power supply

8.        Compact flash card

9.        Gateway solo laptop with power supply

10.      Dell optiplex GX280 desk top PC

1. The indictment containing the charge to which the applicant pleaded guilty was the third indictment filed concerning the seized items.  The first indictment had contained four charges which had not been particularised by reference to any particular items seized.  The particularised items on the charge on the indictment to which the applicant pleaded guilty were items 1 and 2 on the schedule to the application. 

1. The sentencing judge ordered the forfeiture of all 10 items.  The judge said:

Mr Antonielli pleaded guilty to having possession of child pornography, however I was informed that the images relied on by the prosecution in the plea related only to the child pornography found on Items 1 and 2.  That does not take away though from the undisputed evidence [led from the police informant] that there was at least one item of child pornography in respect of each of the items thereby listed and thereby was used in connection with the commission of the offence of possession of child pornography.

Alternatively, it was a method by which … the material could be viewed and thereby had the relevant connection to be tainted property.[1]

[1]Transcript of Proceedings (12 February 2016) 27.1–27.14.

1. The forfeiture of items 1 and 2 was not contentious.  Those items were the subject matter of the offence to which the applicant pleaded guilty.  Items 3 to 10 were contentious.  The judge ordered their forfeiture because she considered that the presence of child pornography on each item meant it ‘thereby was used’ in connection with the offence, and on the alternative basis that each item was ‘a method’ by which the material which was the subject of the offence could be viewed. 

1. The applicant seeks leave to appeal against the making of the forfeiture order in relation to items 3 to 10.

Progress of the application

1. The prosecution’s position from the outset was that the forfeiture order made under s 33 of the Act in relation to items 3 to 10 should not have been made. The prosecution position was fully set out in its Response to Applicant’s Written Case dated 9 June 2016. In a Memorandum to the Court of Appeal dated 14 June 2016, counsel for the respondent summarised the position as follows:

8.In short, items 3 – 10 did not fall within the definition of ‘tainted property’ — the definition of ‘tainted property’ requires a nexus to be established between the relevant property and commission of ‘the offence’ proven (and not ‘any offence’ that might have been committed but not proven).

See Chalmers v R (2011) 37 VR 464, at 479–480.

9.As to the first basis of the ruling, the judge stated that as at least 1 item of child pornography was found on items 3 – 10, and that fact alone satisfied the requisite nexus.  That conclusion is not open — there was no evidence that items 3 – 10 were used to store or view the images located on items 1 – 2.

10.Likewise, the second basis to the ruling is also without evidentiary foundation.  True it is that some of the items 3 – 8 could be used to view the images found on items 1 – 2, but there is no evidence that this did occur.  Furthermore, this strand of reasoning could not be used to justify forfeiture of all of the relevant items — as some items could not be used to view images on items 1 & 2.

10.The Court should grant the applicant the relief he seeks — the forfeiture order varied to remove items 3 – 10 on Schedule.

12.In allowing the appeal, the Crown seeks an order staying the return of items 3 – 10 (3 months) to allow Victoria Police E-Crime Unit reasonable time to delete the pornographic material prior to its return to the applicant.

1. On 23 June 2016 the application first came before this Court.  Following a short hearing the matter was adjourned, with liberty to apply on reasonable notice, in order for the parties to enter discussions to reach an agreement regarding the return of items 3 to 10.  

1. A significant obstacle to the return of the items then emerged.  The prosecution maintained that there was child pornography on each item but that the process of identifying it and deleting it before its return was impractical as such a process would take an inordinate amount of time and resources.  It was suggested that it would require one person to work on the matter full time for approximately one year. 

1. The parties engaged in discussions.  There was a conference held with a judicial registrar. 

1. During the course of this process the prosecution formed the view that there was no child pornography on item 8 (the compact flash card) and that that item could be returned to the applicant.  No agreement was reached in relation to the other items.

1. On 1 December 2016 the matter came before me for a mention hearing.  The Court was advised that item 8 would be returned.  The application was fixed for hearing on 13 June 2017.  The applicant collected item 8 from the police the same day.

1. On 5 December 2016 the applicant emailed the Court of Appeal registry and the Solicitor for Public Prosecutions to advise, in summary, that he had collected the compact flash card (item 8) and ‘used some file recovery software’ which had revealed the presence of what he thought was child pornography on that flash card.  Attached to the applicant’s email were a number of screen shot images showing files containing JPEG documents.  The applicant maintained the images had not been produced or saved by him.

1. The police subsequently attended the applicant’s residence and regained possession of the flash card (item 8).  Further examination of the flash card revealed that the applicant’s advice was correct. 

1. On 13 June 2017 the application for leave to appeal was heard.  The application proceeded on the basis that if leave were granted the appeal should be determined immediately. 

Proposed ground of appeal

1. The applicant seeks leave to appeal on the ground that the sentencing judge erred in law in ordering that items 3 to 10 be forfeited pursuant to s 33 of the Act. The applicant submits that items 3 to 10 do not fall within the definition of ‘tainted property’ under s 3 of the Act.

1. As indicated, the prosecution conceded that the sentencing judge had fallen into error in the manner identified by the applicant.

1. The prosecution concession was properly made.  It is important to explain why that is so. 

Relevant provisions of the Act

1. Section 32(1) of the Act provides:

If an accused is convicted of a Schedule 1 offence, the DPP … may apply to the Supreme Court or the court before which the accused was convicted of the offence for a forfeiture order in respect of tainted property.

1. The applicant was convicted of an offence listed in Schedule 1.

1. Section 33(1) of the Act provides as follows:

On an application under section 32(1), if the court is satisfied that the property is tainted property in relation to the offence, the court may order that the property … be forfeited to the Minister.

1. The term ‘tainted property’ is defined in s 3 of the Act. The prosecution sought the forfeiture order relying on paragraph (b)(i) which reads:

(b)       in any other case, property that, in relation to an offence—

(i)   was used, or was intended by the accused to be used in, or in connection with, the commission of the offence.

Application of the Act to items 3 to 10

1. The applicant pleaded guilty to an offence constituted by the possession of child pornography on items 1 and 2.  These items plainly fell within the definition of ‘tainted property’;  they were used in the commission of the offence.  They were never contentious. 

1. The remaining items in the schedule, however, do not fall within the definition of ‘tainted property’.  The definition of ‘tainted property’ requires a nexus to be established between the relevant property and commission of ‘the offence’ of which the accused is convicted. 

1. As the prosecution conceded, there was no evidence that items 3 to 10 were used to store the images located on items 1 and 2.  If this had been proven, the necessary nexus would have been present, as the various items would then have been used ‘in connection with’ the commission of the offence.  But there was no evidence of that.  The first basis upon which the judge ordered forfeiture was not open on the evidence. 

1. Likewise, as the prosecution conceded, the second basis for the judge’s ruling was also without evidentiary foundation.  The items could not be forfeited because they ‘could’ be used in connection with the offence.  The legislation provided for forfeiture where they were used or were intended to be used.  While some of the items in question could have been used to view the images found on items 1 and 2, there was no evidence that they had been so used.  An inference that the necessary nexus existed because the applicant had intended to use the relevant items to view the images found on items 1 and 2 was also not open as there was no evidentiary foundation for it.

Relevant contents of items 3 to 10

1. An affidavit of Timothy David Hewitt, Digital Forensic Manager of the Victoria Police E-Crime Squad, sworn 9 June 2017 was filed during the hearing which exhibited what were sworn to be samples of child pornography found on each of the contentious items.  The applicant was given an opportunity to view the original affidavit and the exhibits in the courtroom prior to the commencement of the hearing.  When asked by the Court whether he agreed that some of the images were child pornography, he agreed ‘some of it’ was and said ‘I don’t want anything returned back to me that’s got child pornography on it’.[2]

   [2]Transcript of Proceedings, 13 June 2017, 8. 

Prosecution submissions on the hearing

1. Without resiling from the concession that the judge had been in error in making the forfeiture order under s 33 of the Act, the prosecution contended that the Court should either:

(a) make a forfeiture order pursuant to s 70AA(2) of the Crimes Act 1958; or

(b) adjourn the hearing of the appeal to a date after 1 July 2017, and then make an order pursuant to s 51X of the Crimes Act 1958.

1. In the course of oral submissions, senior counsel for the prosecution withdrew the submission on the first alternative.  

1. The second alternative relates to new provisions of the Crimes Act 1958 inserted by the Crimes Amendment (Sexual Offences) Act 2016.[3]  The amending legislation received royal assent on 6 September 2016.  The relevant provisions do not come into operation until 1 July 2017.[4]

   [3]Crimes Amendment (Sexual Offences) Act 2016 s 16.

   [4]Ibid s 2.

1. The new provisions enable a court to make what is termed a ‘child abuse material disposal order’.  The relevant provisions read:

51W    Application for child abuse material disposal order

(1)The Director of Public Prosecutions or a police officer may apply to a court for a child abuse material disposal order in respect of a seized thing, or of electronic material contained in a seized thing, that —

(a)   was the subject of a criminal proceeding for a child abuse material offence in relation to which —

(i)the charge was discontinued, withdrawn or permanently stayed; or

(ii)the person charge was acquitted or found not guilty (including because of mental impairment) of the charge; or

(iii)the charge was dismissed; or

(iv)the person charged was released on an undertaking under section 75 of the Sentencing Act 1991; or

(b)   was not the subject of a criminal proceeding.

…

51X     Child abuse material disposal order

(1)On an application under section 51W, the court may order that the seized thing, or the electronic material contained in the seized thing, to which the application relates be —

(a)   forfeited to the State; and

(b)   destroyed or disposed of in a manner determined by the court and specified in the order.

1. ‘Child abuse material’ is broadly defined in s 51A of the Crimes Amendment (Sexual Offences) Act 2016 and includes child pornography as currently defined in s 67A of the Crimes Act 1958.

1. These new provisions will enable an order to be made where charges have been discontinued or withdrawn, and in relation to material not the subject of any criminal proceeding.  They will also empower the court to order forfeiture of a ‘seized thing’ which contains ‘electronic material’ of the requisite kind. 

1. In oral submissions, senior counsel for the prosecution submitted that the new provisions will operate retrospectively as they are procedural in nature and do not create a new criminal offence. The submission advanced was that this Court should set aside the forfeiture order that was made and adjourn the further hearing of the matter to a date after 1 July 2017, at which point the Director of Public Prosecutions would seek an order from this Court under the new provisions. Senior counsel for the prosecution accepted that s 51W sets out procedural requirements which were arguably inconsistent with that course.

Applicant’s objective

1. During the course of the hearing it became apparent that the applicant’s principal objective in pursuing his application was not to obtain the return of the contentious items but rather to demonstrate, by the process required for their return, that the police were unable to detect and properly characterise child exploitation material.  He wishes to establish what he sees as police incompetence in this regard as a means of eventually re-opening his conviction and withdrawing his guilty plea, which he now regrets.[5]  Much of the written submission he filed is directed to the issues of police competence in identifying child pornography and the circumstances of his guilty plea and his conviction.

   [5]Transcript of Proceedings, 13 June 2017, 9–10, 15–16, 19.

1. Based upon the applicant’s expressed position, senior counsel for the prosecution submitted that the application is an abuse of process and ought to be dismissed.  Senior counsel qualified this submission by acknowledging that the prosecution had conceded that the forfeiture order should not have been made and that that order would have to be corrected.

Relevant findings and conclusions

1. The possession of child pornography is an indictable offence.[6] 

   [6]Crimes Act 1958 s 70.

1. On the basis of the material before us, and what the applicant said in the hearing, I am satisfied that:

(1)       The forfeiture order made 12 February 2016 must be varied so as to exclude items 3 to 10.  Ordinarily, such a variation would entitle the applicant to the return of those items. 

(2)       Items 3 to 10 contain child pornography.  It is likely each item does contain at least one instance of child pornography.  The applicant does not want items containing child pornography returned to him. 

(3)       The process of recovering and deleting the child pornography from items 3 to 10 would be extraordinarily costly, and impractical.   

(4)       The applicant’s real concern, and his real objective, is not to recover items 3 to 10, but rather through the process of recovery, to expose what he contends to be police incompetence, with a view to seeking to re-open his conviction. 

Gollan v Nugent

1. Prior to the hearing, at the Court’s instigation, the registry alerted the parties to the High Court’s decision in Gollan v Nugent.[7]  Gollan v Nugent and the current matter have this in common; both concern situations where the police find themselves in possession of pornographic material without any legislative basis to retain or destroy it.

   [7](1988) 166 CLR 18.

1. Gollan v Nugent concerned an action for trespass, detinue and conversion brought against two policemen and a Justice of the Peace.  It was alleged that the two policemen had unlawfully seized certain items pursuant to an invalid warrant issued by the Justice of the Peace.  The search warrant purported to authorise the seizure of items relating to the ‘Australian Paedophile Support Group’.  The plaintiffs sought the return of the items and damages. 

1. The issue which was before the High Court was whether the defendants’ pleading had raised an arguable defence.  In deciding that issue the majority (Deane, Dawson, Toohey and Gaudron JJ) confined their analysis to the following question:

whether it is an arguable defence to say that if the articles in question are returned to the plaintiffs, they intend to use them to commit offences under the Indecent Articles and Classified Publications Act …[8]

[8]Ibid 43.

1. The majority held that the law does not penalise criminal intent devoid of any criminal act.[9]  For this reason, they held that the relevant pleading raised no reasonable defence.[10]  The majority did, however, grant leave to re-plead that the items in question were indecent, obscene, immoral or otherwise of such a nature that relief should be refused.  The majority considered that defence to be arguable.[11]  In this regard they referred to the case of Bowmakers Ltd v Barnet Instruments Ltd[12] and quoted the following passage:

In our opinion, a man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the defendant’s possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim.

…

It must not be supposed that the general rule which we have stated is subject to no exception.  Indeed, there is one obvious exception, namely, that class of cases in which the goods claimed are of such a kind that it is unlawful to deal in them at all, as for example, obscene books.  No doubt, there are others, but it is unnecessary, and would we think be unwise, to seek to name them all or to forecast the decisions which would be given in a variety of circumstances which may hereafter arise.[13]

[9]Ibid 48.

[10]Ibid 49.

[11]Ibid 50.

[12][1945] KB 65 (‘Bowmakers’).

[13]Ibid 71–2 (emphasis added).

1. The majority did not decide whether the passage quoted had application to the case before them as the argument had not been considered by the court below.[14]

   [14]Gollan v Nugent (1988) 166 CLR 18, 49.

1. Brennan J (as he then was), in dissent, approached the case from a wider perspective.  He did not confine his analysis to the issue raised by the particular pleading.

1. Brennan J considered whether possession could be ‘unlawful’ on public policy grounds. In considering this question he referred to the principle that ‘no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act’,[15] and came to the following conclusion:

The lawfulness of possession or of entitlement to possession on the one hand and the availability of a remedy to protect that possession or to vindicate that entitlement on the other are reciprocal: lawfulness implies the availability of a remedy; conversely unavailability of a remedy implies unlawfulness.  This reciprocity reflects the way in which the court reconciles two duties which would otherwise be in conflict: the first, the duty of the court to grant relief in accordance with the legal, equitable or statutory right which the plaintiff seeks to enforce; and the second, the duty of the court not to assist in the fulfilment of an immoral or illegal purpose.  The first of these duties is qualified by the second.  And thus a person in possession or entitled to possession of goods is held not to be in or entitled to lawful possession if possession is held or sought in order to effect an immoral or unlawful purpose.[16]

[15]Ibid 30.

[16]Ibid 36–7.

1. As to cases where possession was itself unlawful, Brennan J said:

There are, of course, many instances … where possession of a thing is unlawful in the sense that it breaches the criminal law and such possession cannot found a course of action. [17] 

[17]Ibid 32.

Resolution of this application

1. Leave to appeal should be granted and the appeal should be allowed.  The forfeiture order made 12 February 2016 should be set aside and in lieu thereof an order confined to items 1 and 2 should be made. 

1. Otherwise, I would make no further order. 

1. It is not appropriate to adjourn the matter in the expectation of an application under s 51W of the Crimes Act 1958.  The relevant provisions are not in force.  When they come into force the procedures provided for in the legislation should be followed, if any such application is to be made. 

1. Items 3 to 10 cannot be returned in their current state and the applicant does not want them returned in their current state.  If the applicant seeks to compel their return, the principles discussed in Gollan v Nugent will need to be addressed. 

1. I would not make any order which would have the effect of compelling the police to undertake the process of review and deletion necessary to put items 3 to 10 into a state where they could be returned.  I would not do that because in the absence of such an order there is no obligation on the police to undertake that process, because of the cost involved, and because the applicant’s purpose is not principally to recover the items but rather to expose what he sees as police incompetence. 

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