Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86 | Case summary

TUESDAY 31 MARCH 2009 DIRECTOR OF PUBLIC PROSECUTIONS v ANNETTS, Richard Judgment 1 McCLELLAN CJ at CL: The respondent was convicted in the Local Court of an offence against s 91H(3) of the Crimes Act 1900. That section provides that it is an offence for a person to have "child pornography in his or her possession." Section 91H(1) provides a definition of "child pornography" in the following terms: "Child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)." 2 The respondent successfully appealed his conviction to the District Court following which the Director of Public Prosecutions required a case to be stated for determination by this Court pursuant to s 5B of the Criminal Appeal Act 1912. The question provided in the stated case is as follows: "Did I err in law in concluding that the manner and circumstances in which the images in question were recorded, including the secretive nature of the filming and the concentration of the camera, in part, on the genitalia of the young persons filmed, was not relevant to whether the images depict a person, under the age of 16 'in a sexual context', pursuant to the definition of child pornography contained in s 91H(1) of the Crimes Act (NSW) 1900." 3 The essential issue raised by the stated case is whether, when the "material" in issue is a video film, the motivation of the person making the film and the circumstances in which it was made, other than the circumstances revealed by the film itself are relevant to the question of whether or not the images contained in the "material" are "child pornography" as defined. 4 The respondent was found to have in his possession video images, which he was alleged to have taken using a concealed camera, of boys, apparently and obviously, in some cases, under the age of 16, dressing and undressing in the change room of a local swimming pool. The primary judge said that the images showed "boys with no clothes on, others with some clothes on. There can be little doubt that some of the earlier images on the earlier footage on the exhibit concentrate on genitalia." His Honour expressed the view that there was "little doubt that the images were obtained secretively." 5 His Honour was urged by the prosecution to have particular regard to, four matters when determining whether or not the material constituted child pornography. Those matters were: the way the photos were taken - they were not taken openly. the concentration, in some of the images, on the genitalia on the young persons filmed. all of the images are of young boys. the camera was disguised and the filming activity was planned and took place over a period of approximately 4 hours. 6 The prosecution submitted to his Honour that it was appropriate to have regard to the reason for taking the images, which was suggested to be the respondent's own sexual gratification, as relevant to whether or not the material came within the definition. 7 The primary judge concluded that for the prosecution to succeed it must prove two matters, described as "essential ingredients of the offence". Firstly, it must prove that the material depicts a person under or apparently under the age of 16 in a "sexual context" and secondly that the manner of that depiction would in all the circumstances cause offence. His Honour concluded that the matters which the prosecution submitted to be relevant gong to the "rights and wrongs of the alleged behaviour" could not be considered. In reaching this conclusion his Honour excluded from his consideration the four matters to which I have earlier referred. His ultimate finding was that the images depicted boys under the age of 16 but "not in what could be regarded as a sexual context." 8 His Honour does not explain the reasons for his finding and, in particular, does not identify the matters of significance for his conclusion. His Honour remarked further: "It is essential to the Crown case to establish that the images depict persons apparently under the age of 16 in a sexual context. That applies whether they have got clothes on or not. In my view, that is not the case here and the Crown cannot prove, beyond reasonable doubt, that first essential ingredient of the offence." 9 Further explanation of his Honour's reasoning process is available from the stated case. After again relating the facts his Honour recorded the matters relevant to his determination. He repeated his stated approach to s 91H(3) and the two essential ingredients which the Crown had to prove. His Honour said that he "found that the images do depict persons apparently under the age of 16 but not in what could be regarded as in a sexual context." His Honour then said: "In making that finding I further determine that the test to be applied in considering whether the material depicts a person, under the age of 16, in a sexual context, is an objective test. In applying that objective test a judicial officer does not take into account the manner and circumstances in which the images were taken, including the following factors raised by the prosecution in the matter in question: (i) the fact that the images were taken over a period of time in the men's change room; (ii) the fact the images, in part, concentrated on the genitalia of young persons filmed, (iii) that all the images were of young boys; (iv) the disguising of the camera and the fact that the incident was obviously planned; (v) the reasons for taking the images, such as for sexual gratification. In my view, one simply looks at the images, in applying the objective test, in determining whether or not the images depict a person, under the age of 16, 'in a sexual context.' " 10 In my opinion his Honour was correct to determine that the question which the definition in s 91H raises is objective and is to be answered by considering the content of the material about which complaint has been made. The fact that the images were secretly recorded is not relevant to whether or not the material is child pornography. Furthermore, the reasons which motivated the photographer are not relevant. These matters may inform an understanding of the context in which the film was made but are not relevant to an understanding of whether or not the video depicts boys in a "sexual context." That question must be answered after considering the content of the film itself. 11 For that reason the content of the images contained in the video is relevant to the issue raised by the statute. The fact that all the images were of young boys and the camera has concentrated on their genitalia are both relevant to the question of whether or not the images depicted are of a person or persons in a "sexual context." Of course it may be that after consideration of the content of a video, including a video containing a sequence of images of the genitalia of young boys, it could not be concluded that the video depicts boys in a sexual context. The images may have been made for a medical or artistic purpose and are depicted in that context. However, a conclusion that the images depict persons under 16 in "sexual context" may be informed by the number of images, the gestures of those photographed and the portion or portions of the body, including the genitalia, depicted. 12 It follows that the primary judge's approach was only partly correct. Although the motivation of the photographer and the method he used to film the boys was not relevant all of the content of the images, including that all the images were of young boys, concentrated on their genitalia and were taken over a period of time, and, if this is apparent from the video, were taken in a men's change room were relevant to the question of whether or not the material depicted a person "in a sexual context". Whether, when these matters are considered, an offence is proved in the present case is not a matter for this Court. 13 The answer to the question asked in the stated cases is yes, in part. The proceedings should be remitted to the District Court to be dealt with in accordance with these reasons. 14 SIMPSON J: I agree with McClellan CJ at CL. 15 HOWIE J: I agree with McClellan CJ at CL. **********

Director of Public Prosecutions (NSW) v Annetts

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