By Sam Hartridge
The applicant was found in possession of a USB with photos of a young girl at Sydney airport.
This matter was an application to the Supreme Court for review of a local court conviction under Crimes Act 1900 (NSW), s 91H(2) – possess child abuse material. The offender applied for leave to appeal to the District Court, which was denied. So he applied the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001.
The relevant age for someone to be a ‘child’ for the purposes of this offence is 16 years old. However, the situation was confused by the charging under s 474.19(1)(a)(i) of the Criminal Code – the relevant age for this offence being 18 years old. This charge was later withdrawn.
In the Local Court, and in the District Court, the proceedings were conducted on the basis that, for the purposes of the Crime Act offence, relevant age of the child depicted in the material was 18 years old. In the Local Court, the applicant pleaded guilty and was sentenced on this basis. He then applied to the District Court for leave to traverse his plea – on the basis that he believed the person in the pictures was over 18. This application was rejected because the District Court found, beyond reasonable doubt, that the pictures depicted someone below the age of 18. This was enough to dispose of the application because the age of the victim was the only issue that would be litigated in the Local Court. Thus the finding removed any reason to remit the matter.
Errors of law
The NSW CCA found that “both the Magistrate and the trial judge were acting upon a misapprehension as to the relevant law.” This meant that “even were the conviction to stand, the sentence must be quashed as vitiated by the error of law” because the applicant wasn’t sentenced for the offence to which he pled. Similar reasoning applied to the District Court decision. The refusal of leave was based on addressing the wrong question.
Admissions implicit in plea
In the CCA, the Crown had submitted that over the course of the matter, the applicant had made admissions about the age of the person in the photos. These included submissions made in the Local Court that “she is aged between 14 and 16 years.” In this respect the Magistrate concluded that she “would be between the ages of 12 and 16, early to mid-teenage years.”
The CCA found that In light of the fact that proceedings were conducted on the erroneous assumption that the relevant age was 18, “[t]he admission of fact … implicit in his plea was that the child was under the age of 18 years [and] the plea could not be regarded as an admission that the child was under the age of 16 years. Accordingly the court found that “that the plea of guilty was not really attributable to a genuine consciousness of guilt: R v Boag (1994) 73 A Crim R 35 at ; R v Thalari  NSWCCA 170.”
So the decision to reject the application to withdraw the plea was vitiated by an error of law.
Unfortunately – and somewhat troublingly – the USB containing the photos was lost at some point. This meant that remission of the matter to the Local Court for re-hearing, re-sentencing or prosecution under the Commonwealth provision would be pointless. If the leave was granted for the plea to be withdrawn, the issue would be the age of the person in the photos. If leave was not granted to withdraw the plea, the applicant would need to be re-sentenced anyway because of the Magistrate’s error of law – and age of the victim would be relevant for the sentencing.
Finally, the CCA considered a potential prosecution in the absence of the material, either under the Crimes Act or the Commonwealth Legislation. The court observed that in some circumstances this might be possible, but that this was not such a case
Ultimately, this case underscores the importance of reading the legislation, and paying attention to detail. The CCA took a rather dim view on the fact that several legal practitioners failed to note the relevant age. As RA Hulme JA noted in his concurrence, “[i]t is unfortunate that this misapprehension permeated the entire proceedings in the Local Court and the District Court.”