R v John Eric CARGNELLO [2009] NSWDC 132

R v John Eric CARGNELLO [2009] NSWDC 132

Leave to amend the indictment was granted because s 233BAB of the Customs Act 1901 (Cth) permits the Crown to treat individual depictions of child pornography or child abuse material as items rather than limiting charges to one count per device; dividing the charges by form, device and access method was appropriate in the circumstances; and the accused had not demonstrated actual unfair prejudice sufficient to deny the application, given the explanation for the evolving forensic evidence, service of material, access to forensic copies, the available trial preparation time, and the Crown's consent to pre-jury cross-examination of witnesses.

Jurisdiction
Australia
Judgment Date
12 June 2009
Procedural Posture
Criminal Proceedings for Offences Related to Child Pornography / Crown Application for Leave to Amend Indictment Under S 20 of the Criminal Procedure Act 1986
Outcome
Application granted; Crown granted leave to amend the indictment.
Legal Topics
['amendment of Indictment' 'importation of Tier 2 Goods' 'child Pornography' 'child Abuse Material' 'duplicity' 'fairness and Prejudice to Accused']
['criminal Law' 'criminal Procedure'] ['amendment of Indictment' 'importation of Tier 2 Goods' 'child Pornography' 'child Abuse Material' 'duplicity' 'fairness and Prejudice to Accused']

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Procedural Posture

Criminal Proceedings for Offences Related to Child Pornography / Crown Application for Leave to Amend Indictment Under S 20 of the Criminal Procedure Act 1986

Legal Issues

  1. 1 ['Whether leave should be granted under s 20 of the Criminal Procedure Act 1986 to amend the indictment to include Counts 1 through 12.' 'Whether s 233BAB of the Customs Act 1901 (Cth) confines the Crown to one count of importation for each device on which alleged child pornography or child abuse material was found.' 'Whether the proposed additional counts would be unfair or oppressive because of delay, loss of committal opportunity, preparation difficulties, or alleged loss of evidence.' 'Whether the proposed counts should be divided by form of material, device, and means of access rather than charged globally.']

Ratio Decidendi

Leave to amend the indictment was granted because s 233BAB of the Customs Act 1901 (Cth) permits the Crown to treat individual depictions of child pornography or child abuse material as items rather than limiting charges to one count per device; dividing the charges by form, device and access method was appropriate in the circumstances; and the accused had not demonstrated actual unfair prejudice sufficient to deny the application, given the explanation for the evolving forensic evidence, service of material, access to forensic copies, the available trial preparation time, and the Crown's consent to pre-jury cross-examination of witnesses.

Court Disposition

Application granted; Crown granted leave to amend the indictment.

Orders

  • ['Pursuant to section 20 of the Criminal Procedure Act the Crown is granted leave to amend the indictment in this matter to included the offences charged in Counts 1 though 12 as proposed in the form of Indictment presented upon this application.']