Citation: Hale v R [2011] NSWDC 97
Court: District Court of New South Wales
Date: 11 March 2011
Judge: Cogswell SC DCJ
Background
The appellant was a solicitor who was visited by police executing a search warrant at his office. When asked whether he had accessed child pornography, he admitted to doing so. He was subsequently charged under s 474.19 of the Criminal Code Act 1995 (Cth) with using a carriage service to access child pornography material.
The charge specified that the relevant carriage service was "the internet." The appellant was convicted in the Local Court at Toronto on 19 July 2009, following a part-heard hearing before Magistrate Pierce.
The appellant appealed to the District Court, which heard the matter afresh. Additional documentary evidence, previously rejected by the Magistrate, was admitted at the appeal hearing.
Legal Issues
- Whether the charge was duplicitous (that is, whether it improperly rolled two offences into one)
- Whether "the internet" falls within the statutory definition of a "carriage service" under the Telecommunications Act 1997 (Cth)
- Whether the prosecution had established the required fault element, namely recklessness, concerning the nature of the material accessed as child pornography
Decision
Duplicity: The Court ruled at the outset that the charge was not duplicitous. This issue was resolved before the substantive hearing and did not affect the ultimate outcome.
Fault element: The Court examined the record of police interview closely. The appellant had admitted, over a period of four to five years, to clicking on links expecting the downloaded material to be child pornography, and confirmed that expectation was borne out. His explanation that he had been researching on behalf of a client was not accepted as displacing intentional access. The Court was satisfied beyond reasonable doubt that the appellant intentionally accessed material constituting child pornography as defined in s 473.1 of the Criminal Code.
The carriage service question: The critical issue turned on whether "the internet" constitutes a "carriage service" as charged. The Criminal Code dictionary defines "carriage service" by reference to the Telecommunications Act 1997, which in turn defines it as a service for carrying communications. The appellant argued that the internet is a protocol, not a service, and that carriage services merely provide access to it. The Court agreed. Reading across the Telecommunications Act 1997 and the Broadcasting Services Act 1992 (particularly Schedule 5), the Court concluded that Parliament drew a deliberate distinction between the internet and a carriage service. The two are not the same thing.
The Court noted that, to the extent any ambiguity remained, the principle from Regina v Adams (1935) 53 CLR 563 applied: where penal legislation admits more than one meaning, the construction that does not extend the criminal category should be preferred. Because the charge specified only "the internet" as the carriage service and no application was made to amend the Court Attendance Notice, the charge did not disclose the offence as required. The conviction was set aside.
Orders Made
- The appeal against conviction was allowed under s 20 of the Crimes (Appeal and Review) Act 2001
- The conviction was set aside
Key Takeaways
- The District Court held that "the internet" and a "carriage service" are legally distinct concepts under the combined scheme of the Telecommunications Act 1997 and the Broadcasting Services Act 1992, and that charging a defendant with using "the internet" as the specified carriage service is insufficient to make out an offence under s 474.19 of the Criminal Code.
- A failure to amend the Court Attendance Notice to identify a proper carriage service was fatal to the prosecution's case, even where the underlying conduct was otherwise established.
- Under s 474.19 of the Criminal Code, recklessness is the fault element for the circumstance that accessed material constitutes child pornography. By operation of s 5.4(4), proof of intention also satisfies that element.
- Where penal legislation is capable of more than one meaning and no clear resolution emerges from the statutory context, the construction that does not extend criminal liability should be preferred, following Adams (1935) 53 CLR 563.
- Admissions made to police in a record of interview, including acknowledgements of deliberately seeking and downloading child pornography over several years, can ground a finding of intentional access even where the defendant later offers an alternative explanation.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 5.4(4), 473.1, 474.19
- Telecommunications Act 1997 (Cth), s 7
- Broadcasting Services Act 1992 (Cth), sch 5
- Crimes (Appeal and Review) Act 2001 (NSW), s 20
Cases
- Regina v Adams (1935) 53 CLR 563
- Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361
- Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23