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District Court 21 November 2023

R v Fagundez (No 2)

[2023] NSWDC 526

Sexual offences
CRIME POSSESSION OF CHILD ABUSE MATERIAL MENTAL ELEMENT STRICT LIABILITY OFFENCE STATUTORY CONSTRUCTION CLEAR LANGUAGE REQUIRED

Citation: R v Fagundez (No 2) [2023] NSWDC 526
Court: District Court of NSW
Date: 21 November 2023
Judge(s): Newlinds SC DCJ

Background

The accused stood trial, by judge alone, on two counts relating to child abuse material found on a mobile phone seized during the execution of a search warrant. Forensic analysis by the Crown's expert identified images and a video on the phone that constituted child abuse material as defined under s 91H of the Crimes Act 1900. The central question was whether the material was genuinely in the accused's possession in any legally meaningful sense, given that much of it was stored in locations inaccessible to an ordinary user.

At the close of the Crown's case, the accused made a no-case-to-answer submission. The legal test for such an application, as established in May v O'Sullivan, is not whether the accused ought to be acquitted on the evidence as it stands, but whether the accused could not lawfully be convicted on that evidence taken at its highest.

A companion ruling, R v Fagundez (No 1) [2023] NSWDC 508, had earlier excluded evidence relevant to Count 2. The Crown conceded that ruling left it with no evidence capable of supporting a conviction on that count.

Legal Issues

  • Whether the offence of possessing child abuse material under s 91H of the Crimes Act 1900 contains a mental element requiring the accused to know that child abuse material is on the device.
  • Whether the 2010 amendment incorporating the definition of "possess" from s 308F of the Crimes Act removed that mental element and converted the offence into one of strict liability.
  • Whether the Court of Criminal Appeal decision in Clark v R remained good law after that amendment, as endorsed by Bellew J in DPP v Hughes.
  • Whether the no-case-to-answer submission should be upheld on Count 1 and Count 2.
  • Whether a costs certificate under s 3 of the Costs in Criminal Cases Act 1967 should be granted on the basis that the prosecution was unreasonably commenced or maintained.

Decision

Issue 1: The mental element of s 91H and the effect of the 2010 amendment

The court held that the offence of possessing child abuse material under s 91H requires proof that the accused knew the device contained child abuse material (at [53]). This mental element was established by the Court of Criminal Appeal in Clark v R, where it was held that the legislature had not discernibly intended to criminalise unknowing possession (at [31]-[32]). The court found that the 2010 amendment incorporating s 308F into s 91H did not alter that position. The Second Reading Speech showed no intention to reverse Clark or create a strict liability offence; rather, s 308F was incorporated to assist in proving the physical element of possession of data, which is an otherwise artificial concept (at [37]-[39]).

Issue 2: The status of DPP v Hughes

The court analysed the Supreme Court decision in DPP v Hughes and concluded that Bellew J had endorsed and applied the mental element established in Clark, finding that the magistrate below had overstated what that element required (at [50]). The Crown's submission that Hughes should not be followed because Bellew J had not considered s 308F was rejected. Even on the assumption that both this court and Bellew J were wrong about the amendment's effect, the court held it was bound by Hughes to apply Clark as good law post-2010 (at [51]-[52]).

Issue 3: No case to answer on Count 1

The Crown's expert had concluded that, by the time the phone was seized, the images and video were stored in locations not intended to be accessed by a user, and that a user would likely be unaware of their presence (at [14]-[15]). The Crown conceded it had led no evidence of the mental element the court found to be required (at [54]). The court directed acquittal on Count 1 (at [55]). As an alternative basis, the court found the Crown's own expert evidence had in effect established the statutory defence in s 91HA(1), namely that the accused did not know and could not reasonably be expected to have known he was in possession of child abuse material (at [56]-[57]).

Issue 4: No case to answer on Count 2

Count 2 failed for the same reasons as Count 1 and additionally because the earlier evidentiary ruling left the Crown with no evidence capable of supporting a conviction. The court directed acquittal on Count 2 (at [58]).

Issue 5: Costs certificate

The accused applied for a certificate under s 3 of the Costs in Criminal Cases Act 1967, arguing the prosecution was unreasonably commenced and maintained. The court refused the application (at [70]). Although the prosecution was found to be legally untenable in this court, the legal question was not so clear-cut as to make bringing it unreasonable, particularly given the Crown's arguable point about the 2010 amendment (at [63]-[65]). The court noted that the only mechanism available to the DPP to test or challenge an adverse legal ruling is to run a case and appeal. In relation to the alternative reasoning about the Crown's own expert evidence, the court acknowledged that had that been the only issue, there may have been grounds for a finding of unreasonableness in relation to some images, but the overall circumstances did not justify granting the certificate (at [67]-[69]).

Orders Made

  • The accused was found not guilty on both Counts 1 and 2 on the indictment dated 8 March 2023.
  • The accused's application for a certificate under s 3 of the Costs in Criminal Cases Act 1967 was refused.

Key Takeaways

  • A conviction for possessing child abuse material under s 91H of the Crimes Act 1900 requires proof that the accused knew the device contained such material. The District Court confirmed this mental element, following the Court of Criminal Appeal's decision in Clark v R and Bellew J's analysis in DPP v Hughes (at [31]-[33], [53]).

  • The 2010 amendment incorporating the definition of "possess" from s 308F into s 91H did not convert the offence into one of strict liability. The court found that amendment was directed at proving the physical element of possession of data, not at removing the knowledge requirement established in Clark (at [37]-[39]).

  • Where the Crown's own expert evidence establishes that material was stored in locations inaccessible to an ordinary user and that the user would likely be unaware of its presence, the Crown cannot prove the mental element of possession and may, on one construction, have affirmatively established the s 91HA(1) defence (at [14]-[15], [56]-[57]).

  • A prosecution that is found to be legally doomed in the court where it is brought is not automatically one that was "unreasonably commenced" for the purpose of s 3 of the Costs in Criminal Cases Act 1967. Where the relevant legal question was genuinely arguable, the prosecution's decision to run the case to create an avenue for appeal does not amount to unreasonable conduct (at [63]-[65]).

  • Under the no-case-to-answer test from May v O'Sullivan, the question is whether the accused could not lawfully be convicted on the Crown's evidence taken at its highest, not whether acquittal is the likely outcome. That standard governed the court's analysis of the sufficiency of the Crown case here (at [3]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 , s 3
- Crimes Act 1900 , ss 7, 91H (1) – (3) , 91HA , 308, 308F (1) – (4)
- Criminal Procedure Act 1986 , s 132(1)

Cases
- Clark v R [2008] 188 A Crim R 1
- DPP v Hughes [2017] NSWSC 492
- He Kaw Teh v The Queen [1985] HCA 43, 157 CLR 523
- May v O’Sullivan (1995) 92 CLR 654
- R v Fagundez (No 1) [2023] NSWDC 508