Possession Of Child Abuse Material Accessed Using Carriage Service Laws

Ali Alghamdi, a 35-year-old Saudi national and PhD student at the University of New South Wales (UNSW), has been arrested and charged with accessing child abuse material. Alghamdi, who recently moved his wife and two young children to Sydney, was detained by sex crimes detectives at the UNSW campus in Randwick. Authorities allege he possessed more than 25,000 images and videos of child abuse, including material involving infants as young as two years old.

The material was reportedly found on encrypted messaging apps and across three email accounts, with one account alone containing nearly 650 gigabytes of illegal content. Forty-two files had been marked as favourites. When questioned, Alghamdi initially claimed he was unaware of the material and later stated he had downloaded it to report it to authorities.

The alleged offences occurred between May 2 and May 16, 2023, though Alghamdi's lawyer questioned whether he was in New South Wales during that time. His arrest followed an investigation by a police strike force monitoring the dark web for child exploitation content. The court described the material as "significantly depraved," and Magistrate Michael Barko remarked that a layperson would consider it worthy of a lengthy prison sentence.

Alghamdi applied for bail, but it was denied. He is currently in custody and is due to return to court in September.

Possessing Child Abuse Material Accessed Using Carriage Service Offences and Penalties

The Commonwealth Criminal Code Act 1995 (The Code) prescribes a maximum penalty of up to 15 years imprisonment to any person who possesses or controls child abuse material in the form of data held in a computer or contained in a data storage device, and who used a carriage service to obtain or access the material pursuant to section 474.22A of the Code.

The law here works in such a way that if a person is found to have possession or control of child abuse material in the form of data held in a computer such as a smart phone or smart device, or contained in a data storage device, then it is presumed that, unless the defendant proves otherwise, he or she obtained or accessed it and used a carriage service to obtain or access it.

The law shifts the legal burden of proof onto the defendant if the above is first proven, according to section 474.22A(3) of the Code.

The alternative offence to this is section 474.22(1) of the Code prescribing the same maximum penalty to any person who accesses child abuse material, or causes it to be transmitted to him or herself, or transmits ,makes available, publishes, distributes, advertises or promotes it, or solicits it, and does so using a carriage service.

Child Abuse Material Meaning

Child abuse material is defined in section 473.1 of the Code as material that depicts a person, or a representation of a person, who is or appears to be under the age of 18 years, and 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.

The definition of child abuse material extends to the following to also mean:

• material that describes a person who is or is implied to be under 18 years of age; and is or is implied 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.
• Material that depicts a person, or a representation of a person who is or appears to be under 18 years of age and who is engaged in or appears to be engaged in a sexual pose or sexual activity (whether or not in the presence of other persons); or is in the presence of a person who is engaged in or appears to be engaged in a sexual pose or sexual activity; and does this is a way that reasonable persons would regard as being in all the circumstances offensive.
• Material the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or a representation of such a sexual organ or anal region; or the breasts, or a representation of the breasts, of a female person who is, or appears to be under 18 years of age; in a way that reasonable persons would regard as being in all the circumstances offensive.
• Material that describes a person who is or is implied to be under 18 years of age and who is engaged in or is implied to be engaged in a sexual pose or sexual activity (whether or not in the presence of other persons); or is in the presence of a person who is engaged in or is implied to be engaged in a sexual pose or sexual activity; and does this in a way that reasonable persons would regard as being in all the circumstances offensive.
• Material that describes a sexual organ or the anal region of a person who is or is implied to be under 18 years of age; or the breasts of a female person who is or is implied to be under 18 years of age; and does this in a way that reasonable persons would regard as being in all the circumstances offensive.
• Material that is a doll or other object that resembles a person who is or appears to be under 18 years of age; or a part of the body of such a person; if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.

How to Prove This Offence

To prove the offence of possessing child abuse material accessed using a carriage service, the prosecution is required to prove beyond reasonable doubt each of the following four elements:

1. Possession or control of material: The defendant knowingly had the physical custody or control of the computer or data storage device containing the material to the exclusion of others not acting in concert. This applies where the defendant believed there was a real or significant chance that it was there, and in the case of having physical control of it, the defendant intended to exercise dominion and control over it or hand the legal right to exclude others from it; and
2. The material is "child abuse material": in the sense that the defendant was reckless as to the circumstances of it being child abuse material, namely, where he or she is aware of a substantial risk that the circumstances exist, and having regard to the circumstances known to him or her, it's unjustifiable to take the risk (this element can be established by proving knowledge that he or she is aware that it exists); and
3. The child abuse material is in the form of data held in a computer or contained in a data storage device; and
4. The defendant obtained or accessed it using a carriage service.

It is presumed that the defendant obtained or accessed the material by using a carriage service if it is proved that the defendant possessed or controlled child abuse material in the form of data held in a computer or contained in a data storage device. The defendant then bears the onus to prove on the balance of probabilities that he or she did not use a carriage service to obtain or accessed the material. If the defendant is able to successfully discharge this onus of proof, the charge will be dismissed resulting in an acquittal in favour of the defendant. Otherwise it will result in a finding of guilt.

A "carriage service" here means any service that transports communications, including landline phones, mobile phones, and the internet. It uses electromagnetic eagerly, via physical wires (guided media) or wireless (unguided media) to carry messages like calls, texts, emails, and social media posts. A carriage service covers all types of electronic communication.

Defences to Possession of Child Abuse Material Using a Carriage Service

A range of defences are available to an offence of possession of child abuse material using a carriage service, including any one or more of the following, which if applicable to a case, will result in a 'not guilty' verdict resulting in a complete acquittal:

1. Lack of Knowledge: Unaware of the existence of the child abuse material on your device in circumstances you could not reasonably be expected to have known your possession of it.
2. Unsolicited Possession: You came into possession of the material unsolicited and took reasonable steps to dispose of it as soon as becoming aware of its nature.
3. The material depicted is you.
4. Approved research: if possessing it was conduct necessary for or of assistance in scientific, medical or educational research, being written Attorney-General approved research for this purpose (provided that it does not contravene any conditions of the approval).
5. Public benefit or Law enforcement purposes: the conduct of possessing this material was of public benefit provided it does not extend beyond that. This includes for purposes of enforcing the law, administration of justice, or investigating a breach of the law. (Section 474.24 of the Code).
6. Age and Relationship: you possessed the child abuse material at the age of 18 years old in circumstances that a reasonable person would consider your possession of it as acceptable having regard to the circumstances of you coming into possession of it, your relationship with the person(s) depicted in the material
7. If you engage in this conduct in good faith for the sole purpose of assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021; or manufacturing or developing, or updating, content filtering technology (including software) in accordance with an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021; or an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021.
8. Duress: you will not be criminally responsible for possessing this material if you did it under duress, namely, when you reasonably believe that a threat has been made that will be carried out unless you commit this offence; and there is no reasonably way that the threat can be rendered ineffective; and the conduct is a reasonable response to that threat (section 10.2(1) of the Code).

Will I Go Onto The Child Protection Register?

The offence of possessing child abuse material is a registrable offence engaging the Child Protection (Offenders Registration) Act which automatically results in a convicted offender being placed onto the child protection register with ongoing reporting obligations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.