Citation: R v Geoffrey William Leonard (No 1) [2008] NSWDC 189
Court: District Court of New South Wales
Date: 2 September 2008
Judge(s): Berman SC DCJ
Background
The accused was standing trial before a jury on a charge under s 474.22 of the Commonwealth Criminal Code for using a carriage service (the internet) to make available child abuse material. He had previously been convicted of child sexual assault offences involving two brothers. Following his release from custody, he established a website on which he published, among other material, reproductions of the formal police statements made by those brothers describing the offences committed against them.
The accused had edited the statements to remove identifying information, consistent with a non-publication order previously made. Because he admitted publishing the material, the sole issue at trial was whether that material fell within the statutory definition of "child abuse material" under s 473.1 of the Criminal Code.
At the close of the Crown case, the accused (who was self-represented) applied for a verdict by direction of acquittal, arguing there was no case to answer.
Legal Issues
- Whether the accused's implied freedom of political communication provided a defence to the criminal charge, given his stated purpose of advocating against age of consent laws
- Whether the published material depicted "physical abuse" within the meaning of the statutory definition, where the statements described sexual assault but not violence
- Whether material that is neither erotic nor pornographic can satisfy the requirement that a reasonable person would regard it as offensive in all the circumstances
Decision
On the implied freedom of political communication, the court noted that the accused could not point to any authority applying the Lange principle in a criminal prosecution. That gap did not assist him, however, because the NSW Court of Criminal Appeal had already considered and rejected precisely these arguments when the accused appealed an earlier refusal of a permanent stay in Leonard v Regina [2007] NSWCCA 197. Berman SC DCJ stated that he agreed with the Chief Justice's reasoning in that decision and, in any event, was bound by it.
On the meaning of "physical abuse," the accused argued that the definition required some form of battery and that the statements contained no such description. Again, the Court of Criminal Appeal had addressed and rejected this argument at paragraphs 18 to 24 of Leonard v Regina. The District Court declined to revisit the point, noting it was bound by that determination.
On the question of offensiveness, the accused contended that purely factual, non-erotic and non-pornographic descriptions could not be regarded as offensive by a reasonable person. The court, applying the standard of taking the Crown case at its highest at this stage of proceedings, found it was plainly open to the jury to conclude the definition was satisfied. The court noted that the statutory definition does not require material to be pornographic or erotic, and that what a reasonable person would find offensive is quintessentially a jury question.
The application for a directed verdict of acquittal was declined.
Orders Made
The application for a verdict by direction of acquittal was declined. The trial was to continue before the jury.
Key Takeaways
- The District Court confirmed it was bound by the NSW Court of Criminal Appeal's earlier ruling in the same matter that the implied freedom of political communication (as recognised in Lange) does not provide a defence to a criminal charge of making child abuse material available via the internet.
- Under the Commonwealth Criminal Code's definition of "child abuse material," a depiction of sexual assault can constitute "physical abuse" even where no violence or battery is described, as the Court of Criminal Appeal had previously determined.
- Material need not be erotic or pornographic to satisfy the offensiveness element of the child abuse material definition; the statutory test turns on what a reasonable person would regard as offensive in all the circumstances.
- On a no-case submission, the relevant standard is whether the Crown evidence, taken at its highest, is capable of satisfying a jury of guilt beyond reasonable doubt; it is not the judge's role to pre-empt the jury's assessment of disputed factual questions.
- Whether published material crosses the threshold of community offensiveness is, per the Court of Criminal Appeal, quintessentially a question for the jury as representatives of the community.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code, ss 473.1 and 474.22
Cases:
- Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
- Leonard v Regina [2007] NSWCCA 197