R v Niland [2005] ACTSC 23 (10 March 2005)

Last Updated: 11 May 2005

R v NAZARETH NILAND

[2005] ACTSC 23 (10 MARCH 2005)

EX TEMPORE RULING

No. SCC 112 of 2004

Judge: Higgins CJ

Supreme Court of the ACT

Date: 10 March 2005

IN THE SUPREME COURT OF THE )

) No. SCC 112 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

NAZARETH NILAND

ORDER

Judge: Higgins CJ

Date: 10 March 2005

Place: Canberra

THE COURT RULES THAT:

1. each and every charge be dismissed;

2. the accused be found not guilty of each and every charge;

3. the suppression order be vacated;

4. all exhibits may be uplifted;

5. there be no public access to exhibits 6 to 10.

1. A no case to answer submission has been made in respect of each of the five counts. Mr Archer, counsel for the accused, has submitted there is no evidence which otherwise would be fit to go to a jury on matters that are essential to the prosecution case. The prosecution case was that each of the images referred to in each of the five counts was displayed on the screen and deliberately displayed on screen by the accused so that he might view those images.

2. For the purpose of this argument, I am prepared to accept that such an action on the part of the accused would have constituted the offence complained of, namely, possessing an image created by other means than a photograph, film or whatever.

3. However, the evidence of the Crown's expert leaves this situation: that one cannot tell from the image which is recorded in the cache file or on the WIN file in the program files on the C drive, that that was the image which this accused, assuming he caused the WIN file to be there to be saved, displayed for the various reasons Mr Thompson gave.

4. That is enough to dispose of each of the counts. In addition, in relation to counts 2 and 3, there is not even any evidence that the accused himself was at the internet café on those days. The fact that computer 13 may or may not have been used on those days to record images, certainly does not prove that he did it. To so assume would be to assume that nobody else is interested in this sort of material and I certainly cannot make that assumption. There is no evidence that he was there and hence there cannot be any prima facie evidence on that ground either in relation to counts 2 and 3.

5. In relation to count 1, there is evidence that he was at computer 13 some of the time at least. The problem with that, of course, is that the time and date stamps are unreliable and may only be a guide. Whether they were reset or not reset perhaps could have been found from an examination of the hard drive but nobody thought to undertake that particular venture either.

6. And again, of course, that is effected by the same problem effecting each of the counts, namely, that it is not able to be concluded, certainly not beyond reasonable doubt, nor even, one would think, on the balance of probabilities that a site such as that, which would have been the source of these images, could be said to be upfront, as it were, in displaying on the screen that which is stored in the cache accepting that, of course, there was a storing both in the WIN file and on the cache.

7. Of course, one cannot say what it was that was on the screen. And for those reasons, and I might add too, it may perhaps make it a little worse, that when the hard drive on computer 13 was examined it seems that it was - I am not sure if this also applied to the other, but it was affected by viruses, one of which had been a virus that allowed remote control of the computer by some internet site or sites.

8. It was inactive at the time when Mr Thompson looked at it but it does not follow from that, of course, that it was inactive at the earlier point of time when it is alleged that the accused, on 7 September, had access to the computer.

9. All in all I must say, it is a most inadequate case on any view of it. I really have no option but to dismiss every charge and find the accused not guilty on each of them and I do so.

10. Mr Archer, in case you are asking about it, I do not think there is any need further to continue with the suppression order.

11. MR ARCHER: No I probably could not put a good reason to your Honour to continue.

12. HIS HONOUR: Well, I vacate that order as of today. I direct, Mr Khan, that the exhibits may be uplifted, and I am not going to allow public access to exhibits 6 to 10. They will remain sealed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 6 April 2005

Counsel for the prosecution: Mr D Sahu Khan

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the accused: Mr K Archer

Solicitor for the accused: Legal Aid Office (ACT)

Date of hearing: 10 March 2005

Date of judgment: 10 March 2005