Page 5392 - Week 13 - Tuesday, 16 November 2010
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Crimes Act 1900. At present, the only statutory defence to the possession of such material is that there were no reasonable grounds for the person charged to suspect that the material was child pornography. People working in the criminal justice system who have a valid reason for possessing child exploitation material clearly cannot use this defence as they have every reason to know that the material they are handling is, in fact, prohibited. The new defence is therefore particularly important to reassure such people that they are protected by the law.
Until now, criminal justice workers have relied on the sensible application of the law by the Director of Public Prosecutions and the police. It must be stressed that both ACT Policing and the DPP have always used their good judgement in these matters and that prosecutions are not brought inappropriately. Nevertheless, the government thinks it timely to put the issue beyond doubt and provide certainty to those operating in this crucial area.
The people the government seeks to protect are all intimately involved in the processes that make up the criminal justice system. Their involvement may stem from a variety of causes and it is particularly important to emphasise that it is not only those involved in the police and prosecution side of the criminal justice system who are entitled to invoke this defence. In drafting this defence the role that is played by those who administer justice and those who are involved in defending an accused person is fully acknowledged as deserving of protection.
I now turn to the question of where the defence will sit in the legislative framework. As I have already stated, the law often provides a defence in relation to the possession of prohibited items. It is generally the case that such a defence sits either within the legislative provision that prohibits the item or immediately following. An example of this would be the possession of a knife. Section 308 of the Crimes Act 1900 creates an offence of possessing an offensive weapon or disabling substance. A knife is an offensive weapon in that it can be used for injuring or incapacitating someone. However, within section 308 there is a defence to possession of a “reasonable excuse”.
Of course, it would be possible to amend all the provisions creating the offence of possession of a prohibited item to insert a defence specifically tailored for those involved in the workings of the criminal justice system. Indeed, many Australian jurisdictions do just that and there is nothing wrong with that approach. The ACT, however, is in the process of codifying the criminal law. This process commenced in 2001 with the enactment of the first Criminal Code.
The rationale of codification is to comprehensively enact an area of law so that it is both relatively easy to access and to understand by the ordinary person. Of course, the criminal law is a vast area of law to codify and it is very much a work in progress. However, it was important at an early stage for the code to provide a clear framework around which the remainder of the code would operate. This included a complete statement as to the general principles of criminal responsibility which would apply across the criminal law. Chapter 2 of the Criminal Code fulfils that requirement.
It was with this twin goal of accessibility and comprehensibility very much in mind that the decision was made that the proposed defence of lawful possession would fit
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