R v Geoffrey William LEONARD (No 1)

[2008] NSWDC 189

CITATION:	R v Geoffrey William LEONARD (No 1) [2008] NSWDC 189
HEARING DATE(S):	1 September 2008 - 4 September 2008
JUDGMENT DATE:	2 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Application for a verdict by direction of acquittal is delined
CATCHWORDS:	CRIMINAL LAW - Judgement - Application for verdict by direction
LEGISLATION CITED:	Commonwealth Criminal Code
CASES CITED:	Lange v Australian Broadcasting Corporation (1977) CLR 520 Leonard v Regina [2007] NSWCCA 197
PARTIES:	The Crown Geoffrey William Leonard
FILE NUMBER(S):	DC 06/11/0746
COUNSEL:	L McManus (Crown)
SOLICITORS:	Commonwealth DPP Self Representend

JUDGMENT

1 Geoffrey William Leonard is currently standing trial before a jury for an offence under s 474.22 of the Commonwealth Criminal Code. The Commonwealth prosecution alleges that the accused used a carriage service, namely the Internet, to make available child abuse material. Because of admissions made by Mr Leonard the only issue is whether the material which has been published and which has been put before the jury fits the definition of child abuse material. That term is defined in s 473.1 of the Criminal Code as follows:

“Child abuse material means,

(a) Material that depicts a person, or a representation of a person who:

(i) Is, or appears to be under 18 years of age, and
(ii) Is, or appears to be a victim of torture, cruelty, or physical abuse,

and does this in a way that reasonable persons would regard as being in all the circumstances offensive.”

2 The relevant material which the Crown says establishes the offence because it is child abuse material consists of reproductions of what two brothers said to police during the making of formal police statements. To put the matter in context those statements alleged offences of child sexual assault by Mr Leonard. He was convicted, I believe after pleading guilty although it does not matter, of a number of offences and has served time in custody. Upon his release from custody he began operating a website. The website consists of a large volume of material, some of which has been tendered before the jury, and contained within that material are extracts from the statements to which I have earlier referred. Consistent with a non-publication order made by an earlier judge Mr Leonard did not name the makers of the statements and edited the statements in such a way as to remove from them material which would tend to identify the boys involved. So the material that the Crown says establishes the offence, because it is child abuse material, is Mr Leonard’s reproduction of those two police statements.

3 I mentioned before that Mr Leonard conducted a website and that the relevant material appears on that website. I mentioned also that there is much material on the website. Some part of it has been tendered before the jury. Exhibit three consists of 124 printed pages of a document headed, “Punished For Love” written by the offender. Contained within that document are the relevant police statements. Exhibit four is a document of 68 pages, although much of it is in very small type, entitled “Last Throw of the Dice”. It also has the relevant police statements in it.

4 The material in exhibit three and exhibit four has been summarised by the offender in exhibit A and exhibit B. He makes the submission at the end of the Crown case that there is no case to answer. The major aspect of his submission is that he has an implied freedom of political expression and that the relevant material was published by him in the course of a genuine political comment regarding such things as whether it should be an offence to have sexual contact with a person under the age of sixteen. Mr Leonard, the material establishes, has a firm belief or at least says he has a firm belief, there should be no age of consent. Mr Leonard says that because he is entitled to promote that view by way of political comment then the criminal law is not able to punish him for publishing the relevant material, that is the two statements made to police, because that publication by the accused was done in the course of that political comment.

5 He refers of course to the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Of course as is well known that was a defamation case. Mr Leonard was unable to assist me with any authority where the implied freedom of political communication was considered in the course of a criminal prosecution. The Crown was not aware of any such case either. However there is an authority which is of assistance to me to which the Crown referred.

6 One of Mr Leonard’s earlier applications to this Court was that he be granted a permanent stay, and one of the reasons he sought such an order concerned the implied immunity for political communications established in Lange. He lost that application in this court and appealed to the Court of Criminal Appeal. So the authority to which I refer is very important because it concerns this precise case.

7 The Court of Criminal Appeal considered Mr Leonard’s arguments about the effect of Lange and rejected them. There is really nothing more that needs to be said. Not only do I agree with what Spigelman CJ wrote, with the agreement of the other members of the Court in Leonard v Regina [2007] NSWCCA 197, but whether I agree with it or not I am bound by it.

8 The next aspect that the accused relies on concerns the meaning of the term “physical abuse”, part of the definition of child abuse material. Mr Leonard says that the material cannot be child abuse material because it does not contain depictions of physical abuse. The relevant material contains descriptions by the two boys of sexual assaults committed upon them by the accused but there is no suggestion that he was violent towards them. The issue of consent was not at issue and so the statements do not even indicate whether these things were done with or without the boys’ consent.

9 The accused submits that for there to be physical abuse there must be some form of battery and because there is no such battery described in the relevant material, the material cannot be child abuse material as that term is defined in the Criminal Code. This is another matter considered and rejected by the Court of Criminal Appeal when Mr Leonard appealed to that Court after this Court refused to grant him a permanent stay. Once more, nothing more needs to be said. At[18] to[24] of the judgment, Spigelman CJ deals with this issue. Once more, it does not matter whether I agree with him, although I do, because I am bound by what he says.

10 The final matter that Mr Leonard raises is this. It would have been noted from what I said before regarding the definition of child abuse material that the jury has to be satisfied beyond reasonable doubt that the depiction is in all the circumstances offensive. When I say depiction, consistent with the definition I mean a depiction of a person who appears to have been the victim of physical abuse.

11 Mr Leonard says that because these are purely factual descriptions they are not pornographic or erotic in any way, and therefore they cannot be regarded as offensive. Of course, at this stage of the proceedings, I have to take the Crown case at its highest and doing that, I am satisfied that it is certainly open to the jury to regard the relevant material as fulfilling the definition of child abuse material, in particular insofar as it requires them to consider what a reasonable person would find as being offensive.

12 Of course, that is not to say that the issue as to whether the material is erotic or pornographic is irrelevant to the decision the jury has to make but I am satisfied that it is open to the jury to look at the material and to consider that the definition of child abuse material is satisfied. Indeed, many situations could be imagined where non-erotic and non-pornographic material fit that description. The very terms the definition of child abuse material make it clear that the depictions do not have to be pornographic or erotic for the definition to be satisfied.

13 As the Court of Criminal Appeal said in the case of Leonard whether a publication is offensive or not is quintessentially a jury question. The jury, as representatives of the community, will apply community standards in deciding what reasonable persons would regard as offensive. I am satisfied that it is open to them to find that the material does satisfy the definition of child abuse material.

14 For those reasons I decline to direct a verdict of acquittal.

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