NSW Police Force v X [2014] NSWLC 23

Local Court New South Wales

Medium Neutral Citation: NSW Police Force v X [2014] NSWLC 23 Hearing dates: 12 , 13 June 2014 Decision date: 07 July 2014 Jurisdiction: Criminal Before: Buscombe LCM Decision: Application that there is no case to answer refused. Catchwords: WORDS AND PHRASES - "child abuse material" - Crimes Act 1900 (NSW), s 91H(2) Legislation Cited: Crimes Act 1900 (NSW), ss 91FA, 91FB and 91H Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW) Criminal Code (Cth), Part 10.6, ss 471.12, 473.1, 473.4, 474.19 Cases Cited: Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86 Monis, Man Haron v R; Droudis, Amirah v R [2011] NSWCCA 231; 215 A Crim R 64 Monis, Man Haron v R; Droudis, Amirah v R [2013] HCA 4; 249 CLR 92; 87 ALJR 340 Norley v Malthouse [1924] SR(SA) 268 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841 R v Serratore [1999] NSWCCA 377; 48 NSWLR 101 R v Silva [2009] ACTSC 108; 232 FLR 444 Romeyko v Samuels (1972) 2 SASR 529 Category: Procedural and other rulings Parties: NSW Police Force (Prosecutor) X (Defendant) Representation: D McMahon (Prosecutor) P Strickland SC and R Mathur (Counsel for the Defendant) Nyman Gibson Stewart (Solicitor for the Defendant) File Number(s): 2013/275765

JUDGMENT 1. The accused, X, is charged with an offence under s 91H(2) of the Crimes Act 1900 (NSW), in that it is alleged that he possessed child abuse material on 11 September 2011. On that day the police executed a search warrant at X's residential premises and seized his silver MacBook Pro computer from the kitchen bench. It is an agreed fact that at that time X was in possession of the computer and the images and data contained therein. 2. X's laptop was the subject of examination and analysis by the police. The police allege that a number of videos and still images on the computer constitute "child abuse material" as that term is defined in the Crimes Act. 3. Senior Counsel on behalf of X has submitted that there is no case to answer. 4. The test to be applied at the conclusion of the prosecution case when it is submitted there is no case to answer is well known. It was said in R v Serratore [1999] NSWCCA 377; 48 NSWLR 101 at [127]: "In determining whether there is a case to answer, the question to be decided is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted: May v O'Sullivan (1955) 92 CLR 654 at 658. In considering such an application, the judge does not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case: R v Towers (1984) 75 FLR 77 at 79; Doney v The Queen (1990) 171 CLR 207 at 214-215; R v R (1989) 18 NSWLR 74; and in a case of circumstantial evidence, such as the present, a finding of no case to answer is not open if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be postulated: R v JMR (1991) 57 A Crim R 39 at 44." [Emphasis added.] 1. In deciding whether there is a case to answer the prosecution's case is to be taken at its highest. There is still a case to answer even if the prosecution's evidence is tenuous, inherently weak or vague: DPP v Elskaf [2012] NSWSC 21 at [47]. 2. These principles were recently re-affirmed by the Court of Criminal Appeal in R v RMC [2013] NSWCCA 285 at [41].