Citation: Geoffrey William Leonard v Regina [2007] NSWCCA 197
Court: New South Wales Court of Criminal Appeal
Date: 3 July 2007
Judge(s): Spigelman CJ; James J; Hislop J
Background
The appellant operated a website on which he published material advocating for changes to laws governing sexual crimes against children. The Crown alleged that within a 124-page article published on that site, the appellant included edited police fact sheets and witness statements describing sexual acts he had committed on two boys, aged 13 and 16, in 1989. Those edited documents were alleged to constitute "child abuse material" within the meaning of s 474.22 of the Criminal Code (Cth), which prohibits using a carriage service to make such material available.
Before the trial commenced, the appellant applied to the District Court for a permanent stay of proceedings. Judge Morgan refused that application. The appellant then sought leave under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal that interlocutory decision to the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge erred in refusing a permanent stay on the basis that Crown evidence relating to the appellant's prior sexual conduct would unfairly prejudice him by revealing bad character.
- Whether s 474.22 of the Criminal Code, on its proper construction, could apply to text-only material such as edited police statements and witness accounts.
- Whether the "reasonable person" and "offensive" elements of the "child abuse material" definition introduced impermissible vagueness or uncertainty into the offence.
- Whether s 474.22 placed an impermissible burden on the constitutionally implied freedom of political communication, contrary to the principles established in Lange v Australian Broadcasting Corporation and Coleman v Power.
Decision
On the first ground, the court found the stay application was premature. No trial judge had yet ruled on whether prejudicial material should be excluded, what directions might be given to the jury, or how the defence would conduct the trial. The court noted that defence counsel might themselves seek to tender the entire document for context, and that pre-trial assessment of those questions was not yet possible.
On the second ground, the court rejected the argument that s 474.22 could not apply to text-based material. The definition of "child abuse material" in s 473.1 expressly extends to material that "describes" (not merely depicts) a person under 18 who is, or is implied to be, a victim of physical abuse. Spigelman CJ found the edited police statements fell comfortably within the statutory definition.
On the third ground, the court upheld the use of the "reasonable persons would regard as offensive" standard. That formulation was a well-established drafting device in this area of the law, and the factors listed in s 473.4 (including literary, artistic, or educational merit) provided sufficient guidance to ensure the provision was not unconstitutionally vague.
On the constitutional ground, Spigelman CJ accepted that parts of the published material amounted to political communication about law reform. However, the court held that s 474.22 did not impose an impermissible burden on that freedom. The "standards of morality, decency and propriety" factor in s 473.4 was only one consideration among several for the tribunal of fact, not a restriction on political speech as such. The court also drew on the Western Australian Court of Appeal's reasoning in Holland v The Queen, confirming that child abuse material laws of this kind target the harm in the material itself, not the political character of its framing.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that s 474.22 of the Criminal Code (Cth) applies to text-based material: the definition of "child abuse material" in s 473.1 expressly covers written descriptions, not only visual depictions.
- A permanent stay sought before trial on the basis of anticipated prejudice from bad character evidence will generally be refused as premature, where questions of admissibility and jury directions remain for the trial judge to determine.
- Where material has a political dimension, that characteristic does not immunise it from prosecution under child abuse material offences. The implied freedom of political communication is not infringed where the direct purpose of the statute is to address the harm in the material, not to restrict political debate.
- Under s 473.4, the "reasonable persons would regard as offensive" standard is applied by reference to multiple factors, including literary, educational, and scientific merit. This multi-factor structure was found to provide adequate guidance and to avoid unconstitutional vagueness.
- In dismissing the application, the court emphasised that leave to appeal under s 5F against an interlocutory refusal of a stay is not readily granted, and no sufficient basis for doing so existed here.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Criminal Code Act 1995 (Cth), Criminal Code ss 473.1, 473.4, 474.19, 474.22
Cases:
- Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
- Coleman v Power (2004) 220 CLR 7
- Holland v The Queen (2005) 30 WAR 231
Note: The High Court subsequently refused special leave to appeal on 24 April 2008.