R v Paul JAMES [2011] NSWDC 243

District Court New South Wales

Medium Neutral Citation: R v Paul JAMES [2011] NSWDC 243 Decision date: 08 August 2011 Before: Cogswell SC DCJ Decision: Evidence admissible. Catchwords: CRIMINAL LAW - Particular offences - child pornography offences - transmitting child pornography material by email, using a carriage service (Facebook) in an offensive way and possessing child pornography material - prejudicial evidence - whether evidence of email transmissions not the subject of any charges admissible? - judgment - evidence admissible - evidence not unfairly prejudicial - same kind of material the subject of charges - probative as the longer the period of transmission and greater the frequency, less likelihood someone other than account holder responsible - whether evidence of Google searches outside the dates of the charges admissible? - judgment - evidence admissible - evidence not unfairly prejudicial - only lessens the impact of a defence of lack of knowledge of material on computer - significant probative value - demonstrates someone using he computer had an interest in searching for pornography. Legislation Cited: Evidence Act 1995, s 137 Category: Principal judgment Parties: Regina (Crown) Paul James (Accused) Representation: Counsel: B Neild (Crown) T Phelan (Accused) File Number(s): DC 2010/154421

JUDGMENT 1Paul James was prosecuted for a series of child pornography offences. The offences included transmitting child pornography material using a carriage service in an offensive way and possessing child pornography material. There were 17 charges on the indictment. Fifteen of those related to transmitting child pornography material, 1 was using a carriage service in an offensive way and 1 was possessing child pornography material. 2The 15 charges of transmitting child pornography material each specified a date upon which that event occurred. The transmissions were all said by the prosecution to be by email. The use of the carriage service in an offensive way was by way of the use of Facebook. The possession of child pornography material was said to be contained on 2 computers owned by Mr James. 3Mr B Neild of counsel who appeared for the Commonwealth Director of Public Prosecutions tendered a series of documents which I marked VDA, VDB and VDC on the voir dire. Mr T Phelan of counsel who appeared for Mr James objected to the tender of that material. These are my reasons for the decision I made last week to admit the material. 4The main exhibit is VDC which contains a list of emails sent or received by Mr James from three email accounts which he admitted were in his name and which he used. Each of the transmissions or received emails, or almost all of them, related to child pornography material or photographs of Mr James himself in what has been described as various states of undress. 5Exhibit C comprises a large number of emails, some only of which resulted in charges which appear on the indictment. Others represent transmissions which were not the subject of any charges but which, it seems, could be regarded as criminal activity of a similar kind or of the same kind as that which was charged. 6Mr Phelan made clear in his opening statement to the jury and throughout the trial that there was no dispute on his client's behalf that the material said to be child pornography material was child pornography material and was offensive. There was no challenge about the transmissions or the presence of such material on his client's computer. 7What was always in issue in the trial was whether or not it was Mr James who was responsible for the transmission or possession of that material. Mr James' case was that he knew nothing about that material, and somebody else must have been responsible by using his computer. 8The 15 offences which appeared on the indictment - so far as the emails were concerned - ranged in date from 13 April 2010 to 2 June 2010. The transmissions fell outside and in between those dates. Mr Neild argued that the transmissions other than those on the indictment were relevant and admissible in order to meet a potential defence that someone was operating Mr James' computer over a confined period of time. 9Exhibit VDC shows material which was sent, being photographs of Mr James himself, from as early as 13 October 2009. The point made by Mr Neild was that it was unlikely that someone else would in some way be using Mr James' computer over such an extended period of time to send material which was linked to child pornography in the sense that the images of himself were sent at the same time as some of the child pornography images which were charged. The level of material which was received by Mr James' email accounts rebutted, so far as Mr Neild argued, a defence that Mr James had no idea that these emails were coming and going through his account. The traffic outside those items charged tends to prove that the person responsible was the account holder, namely, Mr James. 10Mr Phelan acknowledged the arguable relevance of the material, but asked me to exclude the material under s 137 of the Evidence Act 1995. He argued that I must refuse to admit it because its probative value was outweighed by the danger of unfair prejudice to his client. He argued that the additional material does not add a lot to the prosecution case, so that its probative value is slight given the wealth of material which the prosecution already relies upon. Many of the uncharged transmissions were the same as those charged. The material, the subject matter, would be repulsive to almost all members of the community and there would be prejudice flowing to his client. 11I was of the view that the probative value was more than slight in a case such as this where the accused denies knowledge of the offensive material being transmitted via his computer and suggests that it was somebody else. The longer the period over which the transmissions occurred and the greater the frequency at which they occurred make it in my opinion, as Mr Neild argued, less likely that somebody other than the account owner was responsible. And of course the material will be prejudicial because it demonstrates child pornography being transmitted over a longer period than that charged, but such prejudice is not unfair prejudice in my opinion because it is the same kind of material as that which Mr James has been charged with. The prosecution's argument specifically disavowed any reliance upon tendency. The jury clearly understood that position which is demonstrated by one of the questions which they asked. I do not regard the amount of material as overwhelming. 12Mr Phelan argued that the additional material might prompt speculation as to why they were not the subject of charges. But such speculation may have assisted his client, and in any event I think it unlikely that it would result in inappropriate speculation because the purposes of it being admitted were clearly argued by Mr Neild and were made the subject of directions by me. 13They are the reasons that I decided that exhibit VDC on the voir dire should be admissible. 14Another exhibit on the voir dire demonstrated that one of Mr James' computers was used to do Google searches which produced about nine searches which clearly related to child pornography material. 15As it happened one of Mr James accounts was a Gmail account and it emerged that his Gmail account automatically keeps searches which are made by Google. Gmail is an email facility provided by Google. Hence the searches of this criminal material were kept - perhaps unwittingly - by Mr James. 16As Mr Phelan pointed out, Gmail recorded every search whilst it remained open and never deleted any searches. The searches were outside the dates of the charges. The earliest was 30 May 2008. As Mr Phelan correctly pointed out, the specific details about the nine searches do not include any information about who was responsible for performing the searches. Anyone could have done the searches, unlike the emails which showed a sender or a receiver. So, as Mr Phelan pointed out, no one knows if someone else may have accessed the computer and undertaken the searches. The probative value was reduced and the unfair prejudice to his client increased. 17In my opinion the probative value was significant because it demonstrated that someone using the computer owned by Mr James had an interest in searching for child pornography. The prosecution case was that that person was in fact Mr James. Of course the material is prejudicial in the sense that it tends to point to Mr James' guilt but it was not prejudicial in the sense of being unfairly prejudicial. All it did in my opinion was to reduce the impact of the defence mounted by Mr James that he had no knowledge of that material being on his computer. 18I accept Mr Neild's argument that it demonstrated a far less likelihood that somebody else than Mr James might have been responsible for using the computer to access child pornography over such a long period of time. As he said, it is likely the person who has the account is the person who did the searches. He made it clear that it was not tendered as tendency evidence and I directed accordingly. 19For those reasons I decided to admit the other exhibits on the voir dire which went to the searches undertaken on Mr James' computer.