Page 5395 - Week 13 - Tuesday, 16 November 2010
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
The second category is intended to capture people who provide certain specialised services in respect of criminal cases but who are not strictly employees or appointed as members of a law enforcement or justice agency. For example, when the police are investigating a case involving child pornography they may engage the services of an IT specialist to assist them in examining a suspect’s computer. As a result, the IT specialist may come into possession of child pornography material. The terms used in this second category of “technical”, “professional” and “expert” have been chosen to capture the wide range of specialist services that may be needed in the investigation and prosecution of criminal cases.
The third category of people to whom the defence may be available are legal practitioners, their employees and those engaged by legal practitioners to provide certain services. This category recognises that people such as solicitors and barristers representing an accused person frequently come into possession of prohibited items, often as a result of being provided with such items by the prosecution as evidence in a case. This may lead in turn to employees of legal practitioners handling such items as part of their duties. Further, it is often the case that legal practitioners seek assistance from specialists in certain fields in the same way as do law enforcement and justice agencies. This third category is therefore drafted to capture the range of people who are legitimately involved in the preparation of an accused person’s defence.
Turning to the second limb of the defence, the requirement is that possession must be for a law enforcement purpose. It is therefore not enough for the person to have come into possession of the item in the course of their work in connection with the criminal justice system. The purpose of the possession must, in addition, be for a law enforcement purpose. The aim of this limb is to prevent use of the prohibited item outside the law enforcement process. To this end, section 43A(2) defines what is meant by a “law enforcement purpose”. This provision requires that the possession must be necessary for, or of assistance in enforcing a law of the commonwealth, a state or territory; monitoring compliance with or investigating a contravention of a law of the same jurisdictions; or the administration of justice.
In other words, this limb ensures that in the event of the reason or purpose for having the prohibited item changing to one that is outside the ambit of the provisions, the defence can no longer be used. For example, a forensic scientist who tests a knife for DNA in a murder inquiry would be acting within the terms of the defence. Removal of the knife from the laboratory to show a friend would be outside the scope of the provisions and the individual would not be protected by the defence.
The third and final limb of the defence is the requirement that possession of the material or thing be reasonable in the circumstances for a law enforcement purpose. This provides a final objective test. Even if a court is satisfied on the first two limbs of the defence, this final limb requires the court to look at all the circumstances of the possession and decide whether it is reasonable for a law enforcement purpose.
Examples of the way the defence will operate can be found in the explanatory statement to the bill. It would be useful to outline one of these examples.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video