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Supreme Court 9 October 2006

Director of Public Prosecutions v Kear

[2006] NSWSC 1145

Sexual offences
CRIMINAL LAW POSSESSION OF CHILD PORNOGRAPHY IMAGES ON HARD DRIVE OF COMPUTER CHARGE DISMISSED IN LOCAL COURT NATURE OF "FILM" UNDER S 578B(2) NO ERROR OF LAW.

Citation: Director of Public Prosecutions v Kear [2006] NSWSC 1145
Court: Supreme Court of New South Wales
Date: 9 October 2006
Judge(s): Howie J

Background

The defendant subscribed to an overseas internet site and accessed it on multiple occasions between April and May 2003, viewing images that constituted child pornography. When police later executed a search warrant at his home, they discovered more than 5,000 thumbnail images and at least 247 larger images stored in the temporary internet cache folder on his computer's hard drive. The defendant had not intentionally saved any of those images.

The defendant was charged with possessing child pornography under s 578B(2) of the (then applicable) Crimes Act 1900 (NSW). A magistrate dismissed the charge, and the Director of Public Prosecutions (the DPP) appealed to the Supreme Court, seeking declarations that the magistrate had erred in law.

The prosecution ultimately did not rely on the cached images as the basis for the charge, conceding it could not prove the defendant knew they existed. Instead, it argued that the act of viewing the images as they were displayed on the computer monitor was itself possession of a "film" within the meaning of s 578B.

  • Whether the DPP's appeal raised a question of law alone, as required to ground the appeal.
  • Whether a visual image displayed on a computer monitor (as distinct from a recorded file) constitutes a "film" within the definition in the Classification (Publications, Films and Computer Games) Act 1995 (Cth), as incorporated by s 578B of the Crimes Act 1900.
  • Whether the defendant was in possession of child pornography by virtue of viewing images on screen, in circumstances where he did not know those images were also being recorded to his computer's cache.

Decision

Howie J upheld the magistrate's dismissal, finding no error of law. The central question was whether a visual image appearing on a computer monitor is itself a "film" under the Commonwealth classification legislation. That Act defined "film" to include any recording from which a visual image can be produced, and separately defined a "computer generated image" as one produced on a computer monitor from electronically recorded data.

The Court found that while jpeg files stored in the temporary internet cache could, in principle, constitute a "recording" and therefore a "film" for the purposes of s 578B, the prosecution had conceded it could not establish the defendant's knowledge that those files existed. Without that knowledge, possession of the cached files could not be made out.

Critically, the Court held that a visual image displayed on a monitor is not itself a "recording." The act of viewing an image on screen, without more, does not amount to possession of a film under the section. The definition of "film" requires a recording from which an image can be produced; the monitor display is the product of such a recording, not the recording itself.

Because the magistrate had been correct to find there was no prima facie case, the DPP's summons was dismissed. Howie J noted, however, that the magistrate's further finding that a jpeg file could never constitute a "film" was itself incorrect, though this error did not affect the outcome.

Orders Made

  • The summons was dismissed with costs.

Key Takeaways

  • Under s 578B(2) of the Crimes Act 1900 (now repealed), a visual image displayed on a computer monitor does not, by itself, constitute a "film"; the definition of "film" in the Commonwealth classification legislation requires a recording from which an image can be produced, not the displayed image alone.
  • A jpeg file stored in a computer's temporary internet cache can, in principle, qualify as a "recording" and therefore a "film" for the purposes of the child pornography possession offence, but only if the accused has knowledge of its existence.
  • Where a defendant views images on a website and those images are automatically cached without the defendant's knowledge, the prosecution cannot establish possession of the cached files on the basis of that viewing alone.
  • In dismissing the appeal, the Supreme Court distinguished between the mechanism by which an image is transmitted (the recording held on a remote server or in a local cache) and the act of viewing its output on screen, treating these as legally distinct for the purposes of the possession offence.
  • Howie J identified an error in the magistrate's reasoning (the conclusion that a jpeg file could never be a "film") but found that error immaterial to the outcome, illustrating that an appeal on a question of law alone will not succeed merely because a finding below contained some legal inaccuracy where the overall result was correct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 578B(2) (now repealed)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 56(1)(c), 59(2)
- Classification (Publications, Films and Computer Games) Act 1995 (Cth)
- Safety and Traffic Management Act (NSW), s 40(1)
- Pawnbrokers and Second-Hand Dealers Regulation (NSW), cl 18A

Cases:
- Director of Public Prosecutions v Belani (2005) 64 NSWLR 319
- Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343