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Court of Criminal Appeal 27 January 2017

Jimenez v R

[2017] NSWCCA 1

Sexual offences
LEAVE TO APPEAL AGAINST CONVICTION REFERRAL TO COURT OF CRIMINAL APPEAL POSSESSION OF CHILD PORNOGRAPHY FEDERAL AND STATE JURISDICTION ERROR AS TO RELEVANT LAW CONVICTION QUASHED.

Citation: Jimenez v R [2017] NSWCCA 1
Court: Court of Criminal Appeal, New South Wales
Date: 27 January 2017
Judge(s): Hoeben CJ at CL; Adams J; R A Hulme J

Background

The appellant pleaded guilty in the Local Court in January 2010 to possessing child pornography contrary to s 91H(2) of the Crimes Act 1900 (NSW). The charge arose after he was stopped at Sydney Airport and found to be carrying a USB stick containing 53 images depicting a female whose age was estimated by the examining officer as approximately 12 to 14 years. He was convicted and fined $6,600.

The appellant subsequently sought leave in the District Court to withdraw his guilty plea, arguing he had received wrong legal advice and believed the images depicted a person over 18. That application was refused. He then applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction.

In May 2016, Garling J found there was a genuine doubt about the appellant's guilt arising from legal errors made throughout the proceedings, and referred the matter to the Court of Criminal Appeal under s 79(1)(b) of the same Act.

  • Whether the Local Court and District Court applied the correct age threshold when dealing with the State offence of possessing child pornography under s 91H(2) of the Crimes Act 1900 (NSW)
  • Whether the appellant's guilty plea was entered under a fundamental misapprehension about an essential element of the offence
  • Whether the conviction should be quashed, and whether an acquittal or a remittal was the appropriate outcome

Decision

The central error in this case was straightforward but significant. Under s 91FA of the Crimes Act 1900 (NSW), "child" is defined as a person under 16 years of age for the purposes of the relevant State offences. However, the equivalent Commonwealth offence under the Criminal Code Act 1995 (Cth) uses a threshold of under 18 years. Throughout the Local Court proceedings and the District Court appeal, the Magistrate, the District Court judge, and the legal representatives on both sides operated on the mistaken assumption that the relevant age was under 18, not under 16.

Adams J found that this error infected every critical stage of the proceedings. The Magistrate sentenced the appellant on the wrong legal basis, and the District Court refused leave to appeal by asking whether the images depicted someone under 18, rather than the legally correct question of whether the depicted person was under 16. Because the wrong question was asked at every stage, neither court properly assessed the essential element of the offence.

The Crown argued that various statements made by the appellant to police amounted to admissions that the person appeared to be under 16. The Court found those statements were not entirely consistent, with the appellant referring to different ages at different times, and concluded it was not in a position to determine which admissions should be treated as determinative. Critically, the primary evidence, the USB stick containing the images, had been mislaid and was no longer available.

R A Hulme J agreed that quashing the conviction was required. He noted that remitting the matter to the Local Court for further hearing, while technically available, would be futile given the loss of the primary material. The Court determined the appropriate course was to bring proceedings to an end by entering a verdict of acquittal.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed and verdict of acquittal entered

Key Takeaways

  • A conviction under s 91H(2) of the Crimes Act 1900 (NSW) requires proof that the material depicted a person under 16 years of age, not under 18. The two age thresholds reflect the distinction between the State offence and the equivalent Commonwealth offence under the Criminal Code Act 1995 (Cth).
  • The Court of Criminal Appeal confirmed that a guilty plea entered under a fundamental misapprehension about an essential element of the offence cannot stand, even where all parties, including both counsel and the presiding judicial officers, shared that misapprehension.
  • Where the wrong legal question is applied at every stage of proceedings, including sentencing and an appeal against conviction, the resulting conviction is vitiated and cannot be rehabilitated by reference to findings made under that incorrect legal framework.
  • Loss of the primary evidence, in this case the images themselves, was treated as a decisive practical obstacle to remittal. The Court held that rather than returning the matter to the Local Court for a proceeding that was bound to be discontinued, it was appropriate to enter an acquittal directly.
  • Under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), a matter referred to the Court of Criminal Appeal following a successful s 78 inquiry is disposed of as an appeal against conviction under s 6(2) of the Criminal Appeal Act 1912 (NSW), including by entry of an acquittal where appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 91H(2), 91FA
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6(2)
- Criminal Code Act 1995 (Cth), ss 473.1, 474.19(1)(a)(i)
- Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)

Cases:
- Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635
- R v Boag (1994) 73 A Crim R 35
- R v Thalari [2009] NSWCCA 170