Page 5396 - Week 13 - Tuesday, 16 November 2010
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Example 3 in the explanatory statement discusses the case of a primary school teacher who becomes suspicious of her neighbour after seeing a graphic image on his home computer. She intercepts a parcel sent to that neighbour, opens the package and discovers that it contains a series of child pornography images. The teacher takes the package with a view to destroying the child pornography images at a later time.
The teacher in this example is not able to rely on the defence provided by section 43A because she cannot satisfy any of the three limbs. Firstly, she did not come into possession of the images as a result of her employment as part of the criminal justice system. Secondly, she cannot demonstrate that her possession of the images was for a law enforcement purpose as defined by section 43A(2). Thirdly, given that the first two limbs cannot be satisfied, it is not possible for the teacher’s possession of the images to be reasonable in all the circumstances for a law enforcement purpose.
I turn now to how the new defence will work in the event that a decision is made to charge an accused person with an offence relating to possession of a prohibited item. Section 58(2) of the Criminal Code states that a defendant who wishes to deny criminal responsibility by relying on circumstances where there is no criminal responsibility has an evidential burden in relation to the matter. Subsection (7) of section 58 further explains that an evidential burden means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
The new defence is one that falls within section 58(2) due to both the terms of the defence and because it will sit in part 2.3 of the Criminal Code. This means that a person seeking to rely on the defence will only be required to point to evidence that suggests a reasonable possibility that their possession of the item falls within the three limbs of the defence. The prosecution will then have to disprove those matters beyond reasonable doubt.
It is also important to note in a human rights jurisdiction that the introduction of the new defence is a positive step in human rights terms. The main aim of the defence is to provide a level of protection from prosecution to those working within the parameters of the criminal justice system which was previously absent. This will act to prevent the possibility of misconceived investigations or prosecutions and permit people to carry out their daily duties free from the concerns of coming into contact with prohibited items.
However, I do want to reiterate the government’s views concerning, in particular, vigilante groups. I want to assure members that this defence will not be available to those who try to enforce the law on their own account, whatever their motives. Great care has been taken to ensure that no loopholes exist in the defence which would allow the person on the street to avail themselves of it.
The intention is rather for the defence to be available to police officers, public prosecutors, defence advocates, technical experts, court staff including associates, and of course members of the judiciary.
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