R v Fagundez (No 2) [2023] NSWDC 526

R v Fagundez (No 2) [2023] NSWDC 526

The offence created by Crimes Act 1900 s 91H includes a mental element requiring proof that the Accused knew the device in his possession contained child abuse material. The Crown tendered no evidence proving that element for Count 1, and the Crown conceded there was no evidence capable of supporting a lawful conviction on Count 2 because of an earlier evidentiary ruling. The Accused therefore had no case to answer and was found not guilty on both counts. A costs certificate was refused because, although the prosecution failed, the Crown's legal and evidentiary positions were not so clear cut or untenable as to make the prosecution unreasonably commenced or maintained.

Jurisdiction
Australia
Judgment Date
21 November 2023
Procedural Posture
Criminal Prosecution for Possession of Child Abuse Material / Judge Alone Trial; No Case to Answer Submission at Conclusion of Crown Case; Post Acquittal Application for Costs Certificate
Outcome
Accused found not guilty on Counts 1 and 2; application for a certificate under Costs in Criminal Cases Act 1967 s 3 refused.
Legal Topics
['possession of Child Abuse Material' 'mental Element' 'strict Liability' 'no Case to Answer' 'direction to Acquit in Judge Alone Trial' 'certificate Under Costs in Criminal Cases Act 1967 S 3']
['criminal Law' 'criminal Procedure' 'statutory Interpretation' 'costs in Criminal Cases'] ['possession of Child Abuse Material' 'mental Element' 'strict Liability' 'no Case to Answer' 'direction to Acquit in Judge Alone Trial' 'certificate Under Costs in Criminal Cases Act 1967 S 3']

Case Brief

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Procedural Posture

Criminal Prosecution for Possession of Child Abuse Material / Judge Alone Trial; No Case to Answer Submission at Conclusion of Crown Case; Post Acquittal Application for Costs Certificate

Legal Issues

  1. 1 ['Whether the Crown evidence taken at its highest could support lawful convictions on two counts of possessing child abuse material contrary to Crimes Act 1900 s 91H.' 'Whether Crimes Act 1900 s 91H, as amended to incorporate the definition of possession or control of data in s 308F(2), makes possession of child abuse material a strict liability offence or requires proof that the Accused knew the device contained child abuse material.' 'Whether the Crown expert evidence showed that the images were stored only in locations not intended to be accessed by a user and of which a user would likely be unaware.' 'Whether, if the Accused was acquitted, a certificate should issue under Costs in Criminal Cases Act 1967 s 3 on the basis that the prosecution was unreasonably commenced or maintained.']

Ratio Decidendi

The offence created by Crimes Act 1900 s 91H includes a mental element requiring proof that the Accused knew the device in his possession contained child abuse material. The Crown tendered no evidence proving that element for Count 1, and the Crown conceded there was no evidence capable of supporting a lawful conviction on Count 2 because of an earlier evidentiary ruling. The Accused therefore had no case to answer and was found not guilty on both counts. A costs certificate was refused because, although the prosecution failed, the Crown's legal and evidentiary positions were not so clear cut or untenable as to make the prosecution unreasonably commenced or maintained.

Court Disposition

Accused found not guilty on Counts 1 and 2; application for a certificate under Costs in Criminal Cases Act 1967 s 3 refused.

Orders

  • ['In relation to Counts 1 and 2 on the Indictment dated 8 March 2023, on which the Accused was arraigned on 20 March 2003, the Accused is found not guilty.' 'Application of the Accused for a certificate pursuant to s 3 of the Costs in Criminal Cases Act 1967 refused.']