Possess Child Pornography – Copine Scale – not guilty plea – defended hearing - not guilty

Published 24 Oct 2011

Criminal Lawyers – Sydney and Parramatta Offices

Criminal Matter – Criminal Offence – Possess Child Pornography – Copine Scale – not guilty plea – defended hearing - not guilty

Nyman Gibson Stewart

Criminal Defence Lawyers

Rural Local Court (country court not disclosed)

Represented by Solicitor: Shaun Mortimer

Facts – Our client, who was a medical professional, was visited by Police at his home address on suspicion of possessing child pornography. In so doing, without seeking legal advice, our client voluntarily gave police custody of his external hard drive, believing that it contained no child pornography. The Police analyzed the hard drive, and located both videos and pictures which were alleged to show children engaging in various sex acts. These items were ranked as high as 9 on the COPINE Scale. Our client was interviewed by Police, again without seeking legal advice, and made vague admissions to having previous knowledge of this material, but believing that he had deleted it once becoming aware of its nature. Our client was charged with Possession of Child Pornography under section 91H of the Crimes Act 1900, and pleaded not guilty to the offence.

Result – The matter proceeded to a hearing in the Local Court. After thoroughly considering the manner in which the Police investigation was conducted, it became clear that the process employed by the Police to locate the computer files was potentially unreliable. The external hard drive taken from our client was left for a considerable period of time (some months) in an open storage area of the Police Station, with no security. The hard drive was analyzed  on Police computer system which, it was found, provided no guarantee that the system was not capable of corrupting other storage devices, and transferring computer files onto the external hard drive in question inadvertently in the analytical process. Ultimately, the allegation that child pornography was found was presented by a Police Officer who under cross examination agreed that he had no understanding of how the system employed by the Police to analyze the hard drive actually worked. It was ultimately submitted to the Magistrate that the evidence gathered by the Police was too unreliable and unsatisfactory to be used against our client. The Magistrate agreed with these submissions, and accordingly dismissed the charge against out client.  Our client, who would have lost his career, let along faced a lengthy custodial penalty, was relieved with the result.