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Court of Criminal Appeal 11 May 2018

Innes v R

[2018] NSWCCA 90

Sexual offences
CRIMINAL LAW CONVICTION APPEAL NO FURTHER DIRECTIONS SOUGHT BY COUNSEL NO ERROR DEMONSTRATED NO ERROR DEMONSTRATED APPEAL DISMISSED

Citation: Innes v R [2018] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 11 May 2018
Judge(s): Johnson J (with Davies J and Lonergan J agreeing)

Background

The appellant was convicted following a trial in the Newcastle District Court on three counts of using a carriage service to transmit child pornography material, contrary to s 474.19(1) of the Criminal Code 1995 (Cth). The charges arose from online messaging exchanges the appellant had conducted, believing he was communicating with a 30-year-old single mother who had an 11-year-old daughter. In reality, the other party was a police officer operating under an assumed online identity.

Across 67 online exchanges spanning several months, the appellant transmitted detailed descriptions of sexual acts he wished to perform on the child and her mother. Three specific chat sessions formed the basis of the charges: conversations on 2 February, 8 July, and 14 July 2015. The descriptions in those chats were framed in future or aspirational terms, expressing what the appellant wanted to do when he eventually met the pair in person.

The appellant pleaded guilty at trial to three alternative counts of using a carriage service in a menacing, harassing, or offensive way (s 474.17(1)). The only contested issues at trial were whether the transmissions constituted "child pornography material" within the statutory definition, and whether the appellant was reckless as to that characterisation.

  • Whether the definition of "child pornography material" in s 473.1 of the Criminal Code extended to textual descriptions of future or intended sexual activity involving a child, or was limited to descriptions expressed in the present tense.
  • Whether the trial judge erred in refusing directed verdicts of acquittal on the three principal counts.
  • Whether the trial judge misdirected the jury on the fault element of recklessness required under s 474.19.
  • Whether the trial judge misdirected the jury, or failed to direct the jury adequately, on the drawing of inferences from the communications in evidence.

Decision

Ground 1: Definition of "child pornography material" and directed verdicts. The appellant argued the offence could not extend to communications describing future sexual activity. The Court rejected that construction. Applying orthodox statutory interpretation principles, Johnson J held that confining the definition to present-tense descriptions would lead to absurd results and would not promote the legislative purpose of protecting children from sexual exploitation. The transmitted material fell squarely within the statutory definition, and there was ample evidence to go to the jury. The trial judge was correct to refuse the directed verdicts.

Ground 2: Directions on recklessness. The appellant contended the jury directions on recklessness were inadequate. The Court found the directions were appropriate and accurately reflected the applicable fault element. Significantly, defence counsel did not seek any further direction on recklessness during the trial. The Court noted that the absence of any request for further directions weighed against the appellant's position on appeal.

Grounds 3 and 4: Directions on inferences. The appellant argued the jury was misdirected, or inadequately directed, on the drawing of inferences from the chat materials regarding the appellant's state of mind. The Court found no error in the inference directions. Again, defence counsel had not sought any further directions at trial. The Court reiterated the importance, confirmed in recent authority, of trial counsel making appropriate applications at the time. It was not an answer on appeal to suggest a further application would have been futile given the existing directions.

Overall. The Court dismissed the appeal on all grounds. Johnson J added that even had error been demonstrated under Grounds 2, 3, or 4, no miscarriage of justice would have resulted given the strength of the Crown case, and the proviso in s 6(1) of the Criminal Appeal Act 1912 would have been applied.

Orders Made

  • Leave to appeal against conviction granted (to the extent required).
  • Appeal against conviction dismissed.

Key Takeaways

  • The definition of "child pornography material" in s 473.1 of the Criminal Code 1995 (Cth) is not limited to descriptions of sexual activity expressed in the present tense. Descriptions of intended or future sexual acts involving a child can satisfy the definition.
  • A narrow construction that excluded future-tense descriptions would produce absurd results and undermine the legislative purpose of protecting children, providing a basis to reject such a reading under orthodox statutory interpretation principles.
  • No error was established in the trial judge's refusal of directed verdicts of acquittal where the transmitted material plainly fell within the statutory definition and there was sufficient evidence for the charges to go to the jury.
  • In dismissing grounds relating to jury directions on recklessness and inferences, the Court of Criminal Appeal reaffirmed that the failure of trial counsel to seek further directions at trial is a significant obstacle to raising those matters on appeal, and the suggestion that a further application would have been futile is not an adequate explanation for that omission.
  • Under the proviso in s 6(1) of the Criminal Appeal Act 1912, even a demonstrated misdirection will not result in a conviction being set aside where no miscarriage of justice has occurred, particularly where the Crown case is strong.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 473.1, 474.17(1), 474.19(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Acts Interpretation Act 1901 (Cth)
- Customs Act 1901 (Cth)
- Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No.2) 2004 (Cth)

Cases
- Beckwith v The Queen (1976) 135 CLR 569
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
- Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746
- Doney v The Queen (1990) 171 CLR 207
- Gent v R (2005) 162 A Crim R 29; [2005] NSWCCA 370
- Hill v R [2017] NSWCCA 138
- McEwen v Simmons (2008) 73 NSWLR 10; [2008] NSWSC 1292
- Monis v The Queen (2013) 249 CLR 92
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- The Queen v LK (2010) 241 CLR 177
- Towney v R [2018] NSWCCA 65
- Wilson v Anderson (2002) 213 CLR 401