Craig Anthony Chenhall v Jeffrey David Mosel

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Southwood J
• Judgment Date: 17 April 2013
• Neutral Citation: [2013] NTSC 19
• Docket Number: FILE NO: JA 35 of 2012 (21135192)
• Date: 17 April 2013

[2013] NTSC 19

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Southwood J

FILE NO: JA 35 of 2012 (21135192)

Between:

Craig Anthony Chenhall

Appellant

and

Jeffrey David Mosel

Respondent

REPRESENTATION:

Counsel:

Appellant: P Elliott

Respondent: D Morters

Bahar v R (2011) 255 FLR 80

R v Birks (1990) 19 NSWLR 677

Browne v Dunn (1829) 3 Sim 23; (1829) 57 ER 907

Edwards v The Queen (1993) 178 CLR 193

R v Fenlon (1980) 71 Cr App R 307

R v Grant [1975] 2 NZLR 165

The Queen v Hancock [2011] NTCCA 14

R v Karabi [2012] QCA 47

M v The Queen (1994) 181 CLR 487

R v MAP [2006] QCA 220

R v Morrow (2009) 26 VR 527

Nominal Defendant v Clements (1960) 104 CLR 476

R v Oliver & Ors [2003] 2 Cr App R(S) 15

R v Robinson [1977] Qd R 387

Criminal Code s 125B

Justices Act s 176A

Sentencing Act s 78BB

JUSTICES APPEAL — Appeal against conviction — appellant's evidence differing from questions put in cross-examination — whether discrepancy may be regarded in evaluating the evidence — lies — recent invention — fresh evidence — whether conviction was supported by the evidence — appeal against conviction dismissed — appeal against sentence — minimum maximum penalty — manifestly excessive — appeal against sentence allowed

REASONS FOR JUDGMENT

(Delivered 17 April 2013)

Introduction

1 On 20 April 2012 the appellant was found guilty by the Court of Summary Jurisdiction of possess child abuse material contrary to s 125B(1)(a) of the Criminal Code (NT). He was convicted and sentenced to imprisonment for two months, to be suspended after he had served seven days in prison.

2 The appellant has appealed against both his conviction and his sentence. There were six grounds of appeal pleaded against conviction.

• 1. The finding of guilt was against the weight of evidence.

• 2. The trial magistrate erred in his application of the test for, and categorisation of, lies capable of establishing evidence of guilt.

• 3. The trial magistrate erred in finding beyond reasonable doubt that the evidence of the witness Setter could be used to establish the lies told by the accused.

• 4. The trial magistrate erred in finding that the versions of the witness Setter and the accused as to the contents of their telephone conversation were irreconcilable.

• 5. The trial magistrate erred in law in treating the cross-examination of the witness Setter as being capable of drawing inferences adverse to the appellant.

• 6. The hearing miscarried in that the prosecutor submitted to the trial magistrate that the evidence of the appellant about his use of the floppy disk was a recent invention, when the prosecution had in its possession, or access to, evidence that the appellant had stated, more than six months before the hearing, that he used a floppy disk.

3 The appellant acknowledged that grounds 2 and 3 were in effect the same ground of appeal and ground 4 was abandoned.

4 During the appeal, the appellant also applied to tender, as fresh evidence, the transcript of a directed interview of the appellant that was conducted by the police for disciplinary reasons on 25 October 2011. During the directed interview, the appellant said that many years ago he had downloaded child pornography onto a floppy disk for the purpose of reporting the child pornography to Elio Valente who was a police officer working in the computer crime section. He maintained that this was the only involvement he had ever had with child pornography. The purpose of applying to tender this evidence was to support ground six of the appeal and demonstrate that the trial in the Court of Summary Jurisdiction had miscarried.

5 There are two grounds of appeal against the sentence. First, the trial magistrate erred in his application of the principles set out in The Queen v Hancock. 1 Second, the sentence imposed by the trial magistrate was manifestly excessive.

Section 125B(1)(a) of the Criminal Code

6 So far as is relevant to this appeal, s 125B(1)(a) of the Criminal Code (NT) states that a person who possesses child abuse material is guilty of a crime and is liable, in the case of an individual, to 10 years imprisonment. Child abuse material means material that depicts, describes or represents in a manner that is likely to cause offence to a reasonable adult, a person who is a child or who appears to be a child: engaging in sexual activity; in a sexual, offensive or demeaning context; or being subject to torture, cruelty or abuse.

7 The elements of the offence are:

• 1. The person has under his (or her) custody or control in any place child abuse material.

• 2. The person is aware or has knowledge that he (or she) has custody or control of child abuse material. That is, the person knows that the material in his (or her) custody or control is material of a particular kind, namely, child abuse material.

8 To possess something is neither an act nor omission. It represents the passive consequence of a prior act, namely, the act of acquisition of possession. 2

The prosecution case at trial

9 The prosecution case at trial was that the appellant was a member of the Northern Territory Police Force who had been seconded to the Australian Federal Police. On 8 October 2011 he brought to work a USB drive which contained 11 images of child abuse material. It was discovered and interrogated by another police officer who found the 11 images of child abuse material.

10 In order to prove the appellant was aware the USB drive contained child abuse material, the prosecution relied on lies that it alleged the appellant told his superior officer, Superintendent Mark Setter, during a telephone conversation they had on 11 or 12 October 2011. The prosecution maintained that the appellant lied when he told Superintendent Setter that he downloaded the child abuse material many years ago so that he could report the website that contained the child abuse material to Officer Elio Valente who was working in the computer crime section of the Northern Territory Police Force. The prosecution case was that by so doing the appellant was initially trying to avail himself of the defence provided by s 125B(2)(a) of

the Criminal Code (NT). 3 However, the appellant abandoned this defence when he realised that Officer Valente left the Northern Territory Police Force in 2002 and the USB drive came into use in 2008

11 The lies alleged to have been told by the appellant, and the use to be made of those lies by the prosecution were particularised during Counsel for the respondent's opening address in the Court of Summary Jurisdiction. He made it clear that the evidence about the appellant's lies showed a consciousness of guilt and constituted implied admissions.

12 Counsel for the respondent opened the prosecution case as follows.

The [appellant] was working as an Australian Federal Police Officer on secondment from the Northern Territory Police on a shift which spanned 8 and 9 October 2011. He finished his shift on the morning of 9 October 2011.

He brought with him at the beginning of the shift a USB drive and he left that drive on the desk that he was working at. The USB drive was found by another officer. It was examined and found to contain 11 images which are child abuse material. The prosecution says that the [appellant] was aware of the presence of the material on the USB drive. He was therefore in the possession of that material when he brought it to the Darwin office of the Australian Federal Police on 8 October 2011.

On 9 October 2011 the USB drive was found by Roland Kubank, a fellow officer. Officer Kubank saw that it was a non-issue USB drive so he interrogated it and found 11 images of child abuse material. As a consequence he immediately reported his find to his supervisors. Also on the USB drive was some material which

identified the accused as the person who had been in possession of the USB drive.

The accused's next shift was on 11 October 2011. At the start of the shift, he was told of the discovery of the USB drive and the child abuse material. He was told about these matters by Detective Foley from the Northern Territory Police Force in the presence of Superintendent Mark Setter, who is the Australian Federal Police officer in charge of airport policing.

The accused's locker was searched and nothing was found. The accused was then escorted from the premises by Superintendent Setter.

During the evening of 11 October 2011 the accused telephoned Superintendent Setter. Superintendent Setter missed the call, but he saw that he had missed the call and he telephoned the accused. There was a discussion between them during which the accused said that, while he was searching the net, he had inadvertently stumbled across some material which he was concerned was child abuse material. The accused saved the material for the purpose of bringing it to the attention of a fellow member who he said was working in the area of investigation of child abuse. The member he nominated was Elio Valente.

The accused will make certain formal admissions. The admissions are as follows.

• 1. The accused brought the USB drive to the Australian Federal Police office at the Darwin Airport. The accused left the USB drive on a desk.

• 2. The USB drive is the same one that was subsequently analysed by Sergeant Windebank.

• 3. There are 11 images on the USB drive that are child abuse material.

• 4. Elio Valente's last day of active duty in the Northern Territory Police Force was 23 June 2002.

• 5. The USB drive was not in operation until the third or fourth week of March 2008

So given admissions 4 and 5, the accused was lying when he provided an explanation to Superintendent Setter about how these images came to be on the USB drive, or the reason for them...