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Court of Criminal Appeal 30 May 2008

Clark v R

[2008] NSWCCA 122

Also reported as (2008) 185 A Crim R 1
Sexual offences
CRIMINAL LAW PRESCRIBED SEXUAL OFFENCE CROSS EXAMINATION OF COMPLAINANT UNREPRESENTED ACCUSED COURT

Citation: Clark v R [2008] NSWCCA 122
Court: New South Wales Court of Criminal Appeal
Date: 30 May 2008
Judge(s): Bell JA, Barr J, Buddin J

Background

The appellant was convicted in the District Court following a trial before Garling DCJ, sitting without a jury, on three counts: attempting to procure a child over 14 for pornographic purposes; inciting the same child (then under 16) to commit an act of indecency; and possessing child pornography. The first two counts arose from an incident on 4 December 2004, in which a 14-year-old boy accepted a lift from the appellant and was taken to his home, where he was shown a disc containing images of naked boys and was propositioned about participating in a similar production. The third count arose from a police search in January 2005, which uncovered pornographic images of boys on two hard drives at the appellant's home.

The appellant was unrepresented throughout the trial. He appealed against all three convictions and sought leave to appeal his sentences.

  • Whether the indictment on the first count was correctly framed by reference to the relevant version of the Crimes Act 1900 in force at the time of the alleged offence
  • Whether the trial miscarried because the unrepresented appellant was required to provide a written draft of proposed cross-examination questions concerning the complainant's sexual reputation, experience, or activity (under provisions of the Criminal Procedure Act 1986)
  • Whether the court-appointed questioner was properly absent during the complainant's evidence-in-chief, and whether requiring the appellant to provide draft cross-examination questions before the complainant gave evidence caused a miscarriage of justice
  • Whether the conviction on the third count (possession of child pornography) was unreasonable or unsupported by the evidence, given that the relevant files had been "deleted" from the hard drives
  • Whether the correct legal test for intentional possession was applied in relation to data that existed on a computer hard drive but had been deleted and required specialist recovery

Decision

The court upheld the convictions on the first two counts. It found that the various procedural complaints about the conduct of the trial, including the management of cross-examination of the complainant under the Criminal Procedure Act 1986, did not produce a miscarriage of justice. The trial judge had taken continuous care to protect the rights of the unrepresented accused and had offered timely guidance throughout the proceedings.

On the third count, the court quashed the conviction and directed a verdict of acquittal. The critical issue was whether the appellant could be found to have been in intentional possession of child pornography that existed only as deleted data on a hard drive, recoverable only by specialist forensic analysis. The court concluded that the prosecution had not established, to the required standard, that the appellant knew of the existence of the deleted files or knew that they were capable of being retrieved. Without that knowledge, the mental element required for intentional possession was not made out, and the verdict on that count was unreasonable.

On the sentence appeal, the Crown conceded that the sentencing judge had mistakenly treated the maximum penalty for the first count as ten years' imprisonment, when the correct maximum under the applicable version of s 91G of the Crimes Act 1900 was five years. The court accepted this concession and reduced the sentence on the first count accordingly. The finding of special circumstances, justifying a parole period exceeding one-third of the head sentence, was upheld on the same grounds identified by the trial judge: the appellant would serve his sentence in protective custody, these were his first terms of imprisonment, and he would require special assistance upon release.

Orders Made

  • Appeal against conviction allowed in part
  • Conviction on the third count quashed; verdict of acquittal entered on that count
  • Leave to appeal against sentence granted; appeal allowed in part
  • Sentence on the first count quashed; substituted sentence imposed: non-parole period of one year and six months commencing 12 December 2006 and expiring 11 June 2008, with a balance of term of one year and six months expiring 11 December 2009
  • Appellant directed to be released to parole on 11 June 2008

Key Takeaways

  • Possession of data on a computer hard drive requires proof that the accused knew of the existence of the relevant files and knew they were capable of being retrieved; the mere presence of recoverable deleted data is insufficient to establish intentional possession.
  • A conviction will be unreasonable where the evidence does not support the mental element of the offence charged, even where the physical element (data present on a drive) is technically established.
  • Procedural difficulties arising from an unrepresented accused in a prescribed sexual offence trial, including compliance with the cross-examination restrictions in the Criminal Procedure Act 1986, do not automatically produce a miscarriage of justice where the trial judge takes active steps to protect the accused's rights.
  • Sentencing courts must apply the maximum penalty that was in force at the time of the offence, not any subsequently amended maximum; applying the wrong maximum will vitiate the sentence on that count.
  • Under the Crimes Act 1900, the relevant version of s 91G applicable to an offence of procuring a child for pornographic purposes is determined by the date on which the offence is alleged to have occurred.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 7, 91G, 91H
- Criminal Procedure Act 1986 (NSW), ss 3, 37, 38, 293, 294A, 294C
- Evidence Act 1995 (NSW), ss 94, 97, 98, 190(2)(b)
- Criminal Justice Act 1988 (England), s 160

Cases:
- R v MSK and MAK [2004] NSWCCA 308
- R v McGarvey (1987) 10 NSWLR 632
- R v Dimian (1995) 83 A Crim R 358
- Kesavarajah v Queen (1994) 181 CLR 230
- R v Presser [1958] VR 45
- R v Mai (1992) 26 NSWLR 371
- R v Prasad (1979) 23 SASR 161
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen [2002] HCA 53
- He Kaw Teh v R (1985) 157 CLR 523
- R v Porter [2006] Crim LR 748
- Atkins v Director of Public Prosecutions [2000] Cr App R 248