NSW Police Force v X

Relevant Provisions of the Crimes Act

1. Section 91H(2) of the Crimes Act provides: "A person who ... possesses child abuse material is guilty of an offence."
2. The offence when dealt with on indictment carries a maximum penalty of 10 years imprisonment, with the Local Court's jurisdictional limit being 2 years imprisonment.
3. No issue as to the element of possession has been taken on the no case submission.
4. "Child abuse material" is defined in s 91FB of the Crimes Act. The provision provides: "91FB Child abuse material - meaning (1) In this Division: child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are: (a) a person's genital area or anal area, or (b) the breasts of a female person." [Emphasis added.]
5. It was not submitted on behalf of X on the no case submission that there was no evidence that a child was depicted in the images and videos the subject of the charge; see the definition in s 91FA of the Crimes Act. "Material" is defined in s 91FA to include, "...any film, printed matter, data or any other thing of any kind (including any computer image or other depiction)." Nor was it submitted that there was no evidence of "material" as that term is defined.
6. It is not suggested by the prosecution that any of the material the subject of the charge falls within the definition in s 91FB(1)(a) of the Crimes Act. Nor is it suggested by the prosecution that any of the material depicts a child engaged in, or apparently engaged in, a sexual activity either on his or her own, or in the presence of another.
7. The prosecution alleges primarily that the videos and images depict a child engaged in, or apparently engaged in, a "sexual pose" and in a way that reasonable persons would regard as being offensive. In relation to some of the material, the prosecution alleges that it depicts the private parts of a child and in a way that reasonable persons would regard, in all the circumstances, as being offensive.
8. The components of the definition of "child abuse material" are as follows: 1. material that depicts one of the matters in ss 91FB(1)(a) - (d) of the Crimes Act; and, 2. In a way that reasonable persons would regard as being, in all the circumstances, offensive, giving consideration to the matters in subs (2).

The Meaning of "Offensive" in s 91FB(1)(a) of the Crimes Act

The Parties' Submissions

1. Much of the debate on the no case application focused on the appropriate meaning of the word "offensive" in s 91FB of the Crimes Act.
2. X submits that to be "offensive" the material "should arouse significant anger, resentment, outrage, disgust, or hatred in the mind of a reasonable person": X's written submissions at [17]. X submits that the approach taken by Bathurst CJ in Monis, Man Haron v R; Droudis, Amirah v R [2011] NSWCCA 231; 215 A Crim R 64 ("Monis") and a number of the judges of the High Court in Monis [2013] HCA 4; 249 CLR 92; 87 ALJR 340 in relation to the term "offensive" in s 471.12 of the Criminal Code (Cth) should be adopted in relation to the term "offensive" in s 91FB of the Crimes Act.
3. X points to the fact that the maximum penalty provided, being 10 years imprisonment, suggests that the provision was intended to apply only to material that has a higher degree of offensiveness. X submits that the approach in Monis to "offensive" ensures that material which evokes a trifling reaction or a moderate degree of offensiveness will not be caught by the provision.
4. X also calls in aid decisions made under different statutory schemes as indicating that what is required is a significant or substantial degree of offensiveness; being, Romeyko v Samuels (1972) 2 SASR 529 at 560 (Bray CJ) and Norley v Malthouse [1924] SR(SA) 268 at 269.
5. The prosecution submits that the approach taken in Monis ought not be followed, given it involved a different statutory context, and that the definition of the term "offensive" depends in part upon the statutory context in which it appears. The word "offensive" appears in many offence creating provisions and the meaning to be given to the word depends upon its statutory context. The prosecution argues that in Monis there were particular aspects of the provision being construed which led to the construction that was adopted. The prosecution points to the fact that the construction of the provision was in the context of a constitutional challenge, and that the provision had a different legislative history and was directed to a different statutory purpose, as being all reasons why the particular approach to the word "offensive" was taken in that case. In particular, the prosecution points to the fact that the provision in Monis concerned the day-to-day task, the sending of mail, whereas the subject of the current provision is the possession of child abuse material. The prosecution submits that it is consistent with the regulation of a common task that a higher degree of offensiveness would be necessary to make out the offence.

Resolution of the Competing Submissions

1. I think it is important to have regard to general principles of statutory construction of which Monis is but one example, in determining the meaning of "offensive". In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841, McHugh, Gummow, Kirby and Hayne JJ referred to a number of relevant principles at [69] and [78]: "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. ... However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [Footnotes omitted]
2. Prior to considering the various judgments in Monis, I note the following dictionary definitions of "offensive".
3. Relevantly, the Macquarie Dictionary defines "offensive" as including: "[C]ausing offence or displeasure; irritating; highly annoying; disagreeable to the sense; repugnant to the moral sense, good taste, or the like; insulting."
4. The Oxford English Dictionary definition includes the following: "Hurtful, harmful, injurious; ...[D]ispleasing; annoying; insulting; Causing painful or unpleasant sensations; used esp. in reference to taste or smell or sight, or to the moral sensibilities: disgusting, nauseous, repulsive."
5. The dictionary definitions show that the word is capable of having a very wide meaning. The issue that the courts have confronted over time in considering various criminal offence provisions is how wide a meaning should be given to the word in the particular statutory context under consideration.
6. In considering the judgments in Monis it is important to note that the provision under consideration concerned a provision in a Commonwealth statute being the Commonwealth Criminal Code. In essence s 471.12 of the Criminal Code provides that it is an offence carrying a maximum penalty of 2 years imprisonment to use a postal or similar service in a way that "...reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive." In relation to s 471.12, there is no definition of "offensive" nor is there any provision similar to s 91FB(2) of the Crimes Act requiring certain matters to be taken into account in determining whether or not in all the circumstances the material is offensive.
7. Bathurst CJ in the Court of Criminal Appeal in Monis at [45] concluded that for the use of a postal service to be offensive within the meaning of s 471.12 it is necessary that the use be calculated or likely to cause significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances. It is not sufficient if the use would only hurt the feelings or wound the feelings of the recipient in the mind of a reasonable person.
8. His Honour arrived at that conclusion after reviewing a number of the authorities which have dealt with offences of offensive behaviour. His Honour's analysis of those cases noted at [35] that the courts have consistently emphasised the need to consider words such as "offensive" or "insulting" in conjunction with associated words, in other words, the textual context. His Honour also noted at [35] that in the earlier cases, which were decided before the High Court had developed the constitutional implied freedom of political communication, the courts had interpreted the sections concerned so that they did not unduly fetter political debate.
9. His Honour noted that the penalty associated with the provision was 2 years imprisonment, considerably greater than that for offensive behaviour. The Chief Justice also noted that the provision extended to private communications, and that if the provision extended to communications which a reasonable person considered would tend to wound the recipient, a great deal of private communication would be caught by the provision. His Honour was of the opinion at [40] and [41] that it would be unlikely that the legislature intended such conduct would attract a 2 year prison sentence.
10. The Chief Justice also considered at [42] that the fact that "offensive" was used in conjunction with the words "menacing" and "harassing" suggested that "offensive" was directed to conduct more serious than using the postal service to wound or hurt the feelings of a recipient.
11. Allsop P expressed at [70] agreement with the Chief Justice's decision and "with much of his reasoning". His Honour, however, also provided his own reasons for reaching the same conclusion. The President noted at [73] that the offence carried a penalty of 2 years imprisonment and that it would be wrong to attribute to Parliament an intention to criminalise conduct to such an extent unless it was of a serious character.
12. Like the Chief Justice, the President considered that the textual context was of significance. The nearby words "menacing" and "harassing" both have an element of personal direction at the recipient of the post and, at [73], have a serious quality of "objectionability [sic] in civil society".
13. The President also considered that the provision should be read, if possible, in a way that will not offend the implied freedom of political communication found in the Commonwealth Constitution ("the Constitution").
14. The President held at [79] that s 471.12 of the Criminal Code required that the use of the service be offensive in a "serious way", and ultimately adopted at [91] the meaning proposed by the Chief Justice.
15. McClellan CJ at Common Law appears to have reached the conclusion that a higher level of offensiveness was required to be proved under the provision. His Honour considered at [118] that, "[a] political communication which in the ordinary meaning of the word is offensive does not fall within the section". His Honour's view was primarily reached by having regard to the acceptance of the robust nature of legitimate political and governmental communication guaranteed under the Constitution.
16. In the High Court in Monis, French CJ was of the opinion that "offensive" in the provision required a high level of offensiveness to be shown before an offence was made out. In that regard, His Honour considered at [20] the fact that a criminal sanction was imposed and that the use of the postal or similar services may include a communication affecting freedom of expression. His Honour endorsed at [59] the construction which the judges of the Court of Criminal Appeal had given to the provision.
17. Hayne J adopted at [90] and [91] the approach taken by Bathurst CJ to the term "offensive". His Honour made the observation after reviewing authorities which dealt with different statutory contexts that, "[no] single definition of 'offensive' was or is apt for every different form of crime. Much turns on the context which the word 'offensive' is used." In arriving at his conclusion as to the meaning of "offensive" in the provision, His Honour considered at [161] the fact that the word was used in conjunction with the words "menacing" and "harassing" was of significance, together with the fact the offence was punishable by imprisonment for 2 years.
18. Heydon J at [236] did not specifically address the construction issue and adopted the reasoning of French CJ and Hayne J in determining the case.
19. Justices Crennan, Kiefel and Bell reached a different conclusion from the other judges in relation to the constitutional issue that was before the Court, and in the course of doing so did specifically consider the meaning to be given to "offensive" in the statutory provision under consideration. Their Honours were of the opinion at [336] that s 471.12 of the Criminal Code "...relates to a degree of offensiveness at the higher end of the spectrum, although not necessarily the most extreme. Words such as 'very', 'seriously' or 'significantly' offensive are apt to convey this."
20. Their Honours observed at [309] that the modern approach to statutory construction, particularly in relation to general words, required that the context be considered in the first instance. Their Honours considered that the grouping of "offensive" with "menacing" and "harassing" suggested that what is "offensive" is to have a quality at least as serious in effect upon a person as the other words convey. Their Honours said at [310], "[t]he words 'menacing' and 'harassing' imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person's safety. For consistency, to be 'offensive', a communication must be likely to have a serious effect upon the emotional well-being of an addressee." [Footnotes omitted]
21. In arriving at their conclusion, their Honours also had regard at [311] to the fact that the maximum penalty provided for was significant. Their Honours also had regard to the principle that there is a presumption that Parliament does not intend to pass beyond constitutional bounds. In doing so, their Honours had regard at [327] to the implied constitutional freedom of political communication, which was a central issue in Monis.
22. In my opinion what flows from the judgments in Monis both in the Court of Criminal Appeal, and in the High Court is as follows. There is no single definition of "offensive" that can be applied to all offence creating provisions. The text of the provision is the starting point when construing any particular provision where the word "offensive" is an element of the offence. The context in which the word appears is a matter of importance to the construction of the term. The maximum penalty for the offence concerned is also to be considered. Where the provision concerns conduct that is the subject of a constitutional guarantee, there is a presumption that the Parliament did not intend to pass a law beyond constitutional bounds. The legislative history of a provision should also be considered in determining the meaning of such a general word.
23. I turn then to consider the legislative history of s 91FB(1) of the Crimes Act.
24. Immediately prior to the introduction of the current provisions concerning the definition of child abuse material, the relevant provisions of the Crimes Act provided as follows: "91H Production, dissemination or possession of child pornography (1) Definitions "child pornography" means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child: (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) Production, dissemination or possession of child pornography A person who ... possesses child pornography is guilty of an offence. Maximum penalty: imprisonment for 10 years. ... (4) Defences It is a defence to any charge for an offence under subsection (2): ... (c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant's conduct was reasonable for that purpose, or ..."
25. The Child Pornography Working Party ("Working Party") in 2009 conducted a review, inter alia, of the above provisions. As a consequence of that review, the Parliament passed the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW) in 2010. The Working Party made a recommendation, which the Parliament adopted, that the provisions in the Crimes Act be amended to be in substantial conformity with similar Commonwealth provisions.
26. The reason for repealing the "artistic purpose" defence was stated by the Working Party in its review, Working Party Report at 22, as follows: "The inclusion of the defence acknowledges that artistic merit is subjective, and that whilst it may in certain circumstances cause offence to reasonable persons, it may also have genuine artistic merit. The defence recognises that but for the artistic purpose it was created, the material may fall foul of the child pornography provisions. However, these considerations should operate in determining whether or not a piece of work is child pornography, rather than as a defence. The circumstances in which a work was produced are important in determining whether a piece of work is exploitative in nature, or more rightly considered a piece of art."
27. The Commonwealth provisions that were being referred to were ss 473.1 and 473.4 of the Criminal Code. Those provisions are in Pt 10.6 of the Criminal Code which includes provisions which create offences concerning child pornography and carriage services.
28. The changes to the Crimes Act did not result in a direct mirror of the definition provisions contained in the Criminal Code. The Criminal Code maintains a distinction between child abuse material and child pornography. No such distinction is made in the Crimes Act. The Crimes Act also provides that journalistic merit is to be considered in determining whether material is offensive, whereas the Criminal Code provisions do not. The Criminal Code, like the Crimes Act, does not contain a definition of "offensive".
29. I referred earlier to the fact that X called in aid of the construction argument the cases of Romeyko v Samuels (supra) and Norley v Malthouse (supra). I do not consider that a great deal of assistance can be derived from those cases. Norley v Malthouse (supra) involved an appeal to the South Australian Supreme Court from a conviction by a Special Magistrate of an offence of using "indecent" language under s 63 of the Police Act (SA). Napier J stated that language is indecent if it is highly offensive to the recognised standards of common propriety. The case concerned an entirely different statutory provision and did not concern the construction of the word "offensive".
30. Romeyko v Samuels (supra) concerned an appeal from a conviction by a Special Magistrate of an offence of sending by post a postal article which had therein words, marks or designs of an indecent, obscene, blasphemous, libellous or grossly offensive character, contrary to s 107 of the Post and Telegraph Act 1901-1970 (Cth). The written submissions on behalf of X drew attention to p 560 of the judgment of Bray CJ. At that page His Honour set out a number of propositions which His Honour considered had been settled by earlier High Court authority in relation to the test of indecency. His Honour there stated, "I think with some hesitation, that it is also necessary that they should offend to a substantial degree." Again the case concerned a different statutory provision and the observations to which attention was drawn were in relation to a consideration of the meaning of the word "indecent".
31. Perhaps of more significance are the observations His Honour made at 565 - 566 where His Honour considered the meaning of the term "grossly offensive" which was one of the terms used in the offence creating provision. At 566 His Honour said, "[e]ven, however, if the material had been properly held offensive, the next task would have been to see whether the adverb 'grossly' was also applicable. I agree with the learned Judge that 'grossly offensive' means offensive to a very substantial degree." "Offensive" in s 91FB of the Crimes Act is not qualified by the adverb "grossly", hence His Honour's observations were made in relation to a different statutory and textual context. In making reference to the different textual context and the presence of the adverb, I have not overlooked the comments made by Creenan, Kiefel and Bell JJ in Monis at [313] and [314]. The case for those reasons is of very limited assistance in resolving the construction issue that I must decide.

​​​​​​​The approach taken in R v Silva [2009] ACTSC 108; 232 FLR 444

1. I was not referred to, and could not find, any NSW court decision dealing with the definition of "child abuse material" in the Crimes Act. I was referred to the decision of R v Silva [2009] ACTSC 108 (Penfold J). That case concerned an offender who had pleaded guilty to the offence of using a carriage service to access child pornography in contravention of s 474.19 of the Criminal Code. In the course of determining the facts for sentencing, Penfold J was called upon to consider whether or not certain material fell within the definition of child pornography. In doing so Her Honour considered ss 473.1 and 473.4 of the Criminal Code.
2. In terms of what reasonable persons would find offensive, Her Honour considered that "reasonable persons" meant reasonable members of the Australian community in 2009, being the year Her Honour was deciding the case. In terms of the Crimes Act, I consider that the reasonable person test means reasonable members of the NSW community, given that a state statute is being considered.
3. On the issue of what is meant by "offensive" Her Honour noted the content of s 473.4 of the Criminal Code and considered at [33] that provision, "requires a recognition of what appear to be general community standards of what can be tolerated in the community at large in art, literature and particularly mass media (including what is tolerated by people who would not necessarily regard particular standards as acceptable in their own lives) including the matters already mentioned in relation to community tolerance of various approaches to children and sexuality." Her Honour had earlier in her judgment when considering the phrase "[i]n a sexual pose" observed at [26], "… the Australian community in 2009, with a small number of vocal exceptions, appears to tolerate a wide range of activity, often in commercial contexts, that undeniably involves the sexualisation of young children, whether this involves young children flirting with each other in television advertisements or the sale of padded bras for [prepubescent] girls."
4. In my opinion, Her Honour's comments about the sexualisation of children in advertising and other contexts are matters to be taken into consideration on the question of whether or not reasonable persons would regard the material concerned as offensive.
5. On that issue I have considered the evidence that X tendered as EX 5 in these proceedings of certain videos that can be found on the YouTube website by using a computer in Australia. The weight to be given to that material in terms of reflecting Australian community standards is limited in my opinion, given I know almost nothing about the origin of the material, or to what extent it might be thought to represent community standards in Australia or in New South Wales by virtue of the number of times it has been played. I do not accept that the fact there is no evidence that the relevant authority has taken steps to have the material removed impacts upon the weight I should give that material on this issue. I do not even know if that material has been drawn to the attention of the Australian Communications and Media Authority.
6. As will be seen, in my opinion, the issue of whether or not a child is depicted as being in a sexual pose is not dependent upon a consideration of the degree to which contemporary society tolerates the sexualisation of children.

Conclusion as to the Meaning of "Offensive" in the Definition of Child Abuse Material in s 91FB (1)(a) of the Crimes Act

1. In my opinion, for material to constitute child abuse material the material must be such that reasonable persons would regard it, in all the circumstances, as being significantly offensive.
2. The provision, while not concerned with an activity affected by a constitutionally guaranteed freedom, does criminalise a common everyday activity. That common everyday activity is the possession of images, and material which contains depictions of children. Many, if not all, members of the community possess images of children on a regular basis and through a variety of mechanisms. They may possess images of children by way of family, school, or sporting photographs or videos. They may possess images of children through the possession of newspapers, magazines or through other forms of media. In my opinion, the legislature is unlikely to have intended to criminalise the possession of images of children, given the frequency with which such images are possessed, unless there is a significant degree of offensiveness associated with the image. This is particularly so where the maximum penalty provided for the offence when prosecuted on indictment is 10 years imprisonment.
3. In relation to the significance of the maximum penalty to the determination of the meaning of "offensive", I have had regard to what a number of the judges in Monis said about its relevance in the context of that case. I also acknowledge that in applying some of the reasoning from Monis, that the Court of Criminal Appeal and the High Court were dealing with a different statutory provision, and that the word "offensive" appeared there in a different textual context. I have also had regard to the fact that the provision under consideration here may be thought to have as one of its implied statutory purposes, the protection of children from sexual exploitation.
4. I am also of the opinion that the presence of ss 91FB (2)(b), (c) and (d) of the Crimes Act indicates that the legislature did not intend that the ordinary dictionary definition of "offensive" should apply to the definition of "child abuse material". The definition of "offensive" would not usually require consideration of whether the material had any artistic or journalistic merit, yet that is to be considered in determining whether or not material is offensive. In my opinion, the presence of the subsection supports a construction that something more than the usual definition of "offensive" is to be applied.

What is Encompassed by the Phrase "In All The Circumstances?"

1. In R v Silva (supra), Penfold J considered the meaning of the phrase "in all the circumstances" in the context of s 473.1 of the Criminal Code. Her Honour appears to have rejected at [31] any suggestion that the presence of other "more obviously pornographic images" was relevant to determining whether or not a particular image or video was "offensive". According to Her Honour at [31] it was, "the depiction, being the deliberate creation of the image as such ... that must be assessed for offensiveness, not the location or apparent use of that depiction."
2. The relevance of the number of images or videos to the determination of whether material was "offensive" was the subject of submissions before me. A similar issue had arisen in Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86 ("Annetts"). The definition that was under consideration was that contained in the earlier version of the current provision, which I have set out earlier in this judgment. McClellan CJ at Common Law, with whom the other judges of the Court of Criminal Appeal agreed, considered that whether or not the material showed children in a "sexual context" was to be determined after considering the content of the material. His Honour was of the opinion that a conclusion as to whether material showed children in a "sexual context" might "be informed" by the number of images possessed. His Honour did not expand on how that conclusion might be informed.
3. His Honour's observations in Annetts are clearly distinguishable as His Honour was dealing with a different statutory definition which had different components. I do not consider the number of images of films or data can be taken into account in determining if a particular image, film or data is offensive within the meaning of the provision.
4. In my opinion the phrase "in all the circumstances" includes at least the manner in which a particular image or film or data is held. This may include any other material possessed by an accused which draws attention to particular aspects of a particular image or film or data. What I mean in that regard is perhaps best illustrated by way of an example. If an accused was found to be in possession of a photograph of a single naked boy under 16 years of age not engaged in a sexual act but had attached to it a note commenting on the boy's penis in some lewd way, the note, in my opinion could be taken into account in determining whether or not the image was "offensive" within the meaning of the section. To possess one image of a naked boy under 16 years of age not engaged in a sexual act might, arguably, not be offensive. To attach a note, however, making a lewd comment about the boy's penis could, in my opinion, be taken into account in determining whether or not the image was offensive. The note would fall within the circumstances that could be taken into account as it is directly related to the image and what it depicts. Similarly, if on an accused's computer there were notes commenting upon specific photographs or videos held on the computer, those notes could be taken into account in determining whether the particular photo or video was offensive.
5. The presence of other films or images or data can only be taken into account in determining that a particular image, film or data is offensive, in my opinion, if they directly refer to, or are expressly linked in some way to the image, film or data to which the definition is being applied. If they do, then they form part of the circumstances that may be taken into account in determining whether the particular image, film or data is offensive. I take this approach because of the presence of the word "depict" in the definition which, as will shortly be seen, in my opinion focuses upon the particular image, film or data being considered.

What is Meant by the Phrase, "Depicts a Child … in or Apparently in a Sexual Pose"?

1. In considering the word "depicts", Penfold J in R v Silva (supra) referred to the Macquarie Dictionary definition of "depict" being, "to represent by or as by painting; portray; delineate; to represent in words; describe". Her Honour was of the view that "depict" implied some intention on the part of the maker of the image. In Her Honour's opinion at [24] the word "depict" would not, "cover images, even including images of naked or scantily clad children, that appear to have been taken with completely innocent intentions." Her Honour was of the opinion at [24] that it was not appropriate to consider where the relevant images were obtained from but "purely the images themselves and the kinds of circumstances in which such images might have been created."
2. In relation to the phrase "sexual pose" I adopt what Penfold J said in R v Silva (supra) at [29], that it involves "a deliberately-struck attitude that draws attention to the sexual aspects of the subject's identity or personality". As Her Honour makes clear, it is unnecessary for the prosecution to establish that the child concerned knew or was aware that he or she was striking a sexual pose. What I understand Her Honour to mean is that by examination of the item concerned the Court is to consider if there is an inference that the child was captured in a pose of a sexual nature; i.e. one that draws attention to the child's sexual identity or personality.
3. In my opinion, and with respect to Her Honour, Her Honour's comments about the contemporary Australian community tolerance of the sexualisation of children in certain contexts, in particular commercial contexts, do not have any role to play in determining whether or not an image depicts a child in a sexual pose. If an image captures a child in a pose which draws attention to the child's sexual identity then it depicts a child in a sexual pose, in my opinion. The relevance of contemporary standards in relation to the sexualisation of children in commercial and other contexts, such as artistic or journalistic contexts, is relevant to an assessment of whether or not reasonable persons would regard a particular item as "offensive".
4. The manner in which I have approached the material relied upon by the prosecution here is in accordance with my analysis of the statutory provisions set out above.

The Videos

1. Some 20 videos were played before me and relied upon. I understand another 14 are relied upon although they are duplicate copies of the 20 that were played. A girl appears alone in each of the videos. She is not naked in any of the videos but appears in different states of dress. There is no direct evidence of her age but in my opinion appears to be between 11 and 14 years old. It appears to me highly likely that it is the one girl in each of the videos, although I cannot be certain in that regard. Music of varying types accompanies each video and the girl says nothing. On each of the videos from time-to-time a cartoon image of a monkey with a peeled banana appears along with the words, "New Star Jemma".
2. In my opinion seven of the videos are capable of amounting to child abuse material. They are as follows.
3. Match 683. Index 226 Jenna 001. This shows a young girl, between approximately 11 and 14 years old riding an exercise bike in a bikini. The bottom of her bikini is extremely short and pulled up very tight. The video is shot from essentially behind the bike. The girl repeatedly lifts herself off the seat of the bike to expose her bottom and looks back at the camera in a provocative manner. While she is riding the bike the focus of the filming is on her bottom. Later in the video she gets off the bike and rolls on the floor. It can be seen that her bikini bottom has been pulled very tightly up her bottom. She rolls on the floor lifting her leg up repeatedly while looking at the camera and exposing her crotch area. Again there appears to be in the filming an emphasis on the girl's bottom. In my opinion, given the age of the girl, how she is dressed and her movements, it is open to conclude that the video depicts her in a sexual pose and is offensive.
4. Match 686. Index 230 Jenna 004. This video shows a young girl between approximately 11 and 14 years of age in a very small bikini doing various activities on gym equipment. In my opinion when regard is had to the smallness of the bikini, and the movements of the girl on the equipment, it is open to conclude that during the video the girl has adopted a sexual pose. I also consider given her apparent age, the movements she engages in and the smallness of her bikini, that it is open to conclude that the video is offensive.
5. Match 687. Video index 2008: Jenna 005. This video depicts a young girl of similar age to the other videos dressed in a pink jumper and with pink high heeled boots. She is wearing a very small white bikini bottom which appears to have been pulled up tightly against her bottom. She does movements over some sort of stool or chair and on occasions the girl is seen to cuddle a dog. In my opinion when regard is had to the movements of the girl in the video, in particular during the last portion of the video, and the smallness and positioning of her bikini bottom, it is open to conclude that during the video the girl at some points adopts a sexual pose. In my opinion when regard is had to the girl's apparent age, the smallness and positioning of her bikini bottom and her movements, which appear to be designed for frequent shots of her crotch and bottom, it is also open to conclude that the video is offensive.
6. Match 690. Video 227 Jenna 008. This video shows a girl of similar age to that in the other videos dressed in a pink tutu and under garment. When she is first filmed the tutu is not fitted properly and the girl's crotch and bottom are shown to the camera. She then endeavours to pull the tutu down at the front and the back. She is only partially successful. She dances and rolls on the floor and exposes her crotch and bottom repeatedly to the camera. In my opinion given the way the tutu is worn and the movements of the girl, it is open to conclude that it shows her on occasions in a sexual pose. I also consider that it is open to conclude that it meets the definition of offensive.
7. Match 691. Video 229 Jenna 009. The video shows a girl of similar age to that depicted in the other videos. Again she is dressed in a tutu and is wearing a top. While the tutu is worn correctly at the front, it is not worn correctly at the back, and is worn in a way where the girl's bottom can be seen. Her undergarment is worn in such a way that one of the cheeks of her bottom remains uncovered throughout the video. She performs dancing and movements with a hoola hoop and her crotch and bottom areas are frequently exposed to the camera. It is open, given what is depicted in the video, to conclude that it depicts the girl in a sexual pose, and is offensive.
8. Match 692. Video 235 Jenna 010. This video shows a girl of similar age to the other videos dressed in a top and either panties or bikini bottom performing various movements over a couch. He panties/ bikini bottom is very small and pulled up very tight at the rear partially exposing the cheeks of her bottom. Throughout the video she frequently exposes her crotch and bottom areas to the camera and this appears to be deliberately done. In my opinion it is open to conclude that the video captures the girl in a sexual pose and is offensive.
9. Match 700. Video Index 227 Jenna 016. This video shows a girl of similar age to that shown in the other videos, and outside in a blue check dress and black panties. She does dance routines against a stone wall. From about 2.51 minutes into the video, on numerous occasions she moves in such a way to expose her crotch area to the camera. It appears to be deliberately done. In my opinion given the content of the video, but in particular from 2.51 minutes, it is open to conclude that the video depicts the girl in a sexual pose and is offensive.
10. In my opinion the balance of the videos relied upon by the prosecution are either not capable of being seen as depicting the girl in a sexual pose, or are not offensive as I have construed that term. While a number of them do at times include shots of the girls' crotch area, the girls in those videos are not depicted in clothing which specifically has been worn in a way where the crotch or bottom area is accentuated. Nor are the number of shots of the crotch and bottom areas anywhere near the frequency of the videos which I consider are capable of being considered child abuse material.

The Still Images

1. In my opinion the following still images are capable of amounting to child abuse material.
2. File Index 8. The girl, given the facial expression and the manner in which her legs are spread, is capable of being considered in a sexual pose. I also consider the image is capable of being considered offensive as I have defined that term. She is shown wearing a very tight fitting bikini bottom and her legs are positioned so that there is an emphasis in the photo on her bottom and crotch areas.
3. File Index 15. The child is photographed wearing extremely short and tight shorts. The photograph is taken in a manner which emphasises the girl's crotch area.
4. File Index 17. This is a photograph looking down the front of a young girl so that her breasts can be partially seen. In my opinion it is capable of being construed as a photograph of a child in a sexual pose as well as a photograph of her private parts, being her breasts. The photograph is also capable of being considered offensive. The girl's breasts are very substantially exposed in the photograph.
5. File Index 23. This appears to be the same girl as in File Index 8 wearing the same clothes, being a bikini. Given the manner in which the girl's body is displayed, in particular how her legs are positioned and her facial expression, I am of the opinion it is capable of amounting to child abuse material.
6. File Index 46. This shows a girl in very short and tight shorts. The shorts have been pulled up so far that the top of the cheeks of her bottom can be viewed. In my opinion it is capable of amounting to child abuse material.
7. File Index 62. This also shows a girl in very short and tight shorts. The shorts have been pulled up so far that the top of the cheeks of her bottom can be viewed. In my opinion it is capable of amounting to child abuse material.
8. File Index 65. This shows a girl in a bikini. She is lifting up one of her bra straps. The photograph is taken so that one can see her crotch underneath another part of the garment. In my opinion when one has regard to the facial expression, and the positioning of the arm and legs, it is capable of amounting to child abuse material.
9. File Index 69. This also shows a girl in very short and tight shorts. The shorts have been pulled up so far that the top of the cheeks of her bottom can be viewed. In my opinion it is capable of amounting to child abuse material.
10. File Index 70. This shows a girl in a white bikini. The bottom of her bikini has been pulled very tight in the crotch area and an outline of her vaginal area can be seen in the photograph. In my opinion it is capable of amounting to child abuse material.
11. File Index 143. This also shows a girl in very short and tight shorts. The shorts have been pulled up so far that the top of the cheeks of her bottom can be viewed. In my opinion it is capable of amounting to child abuse material.
12. File Index 149. This shows a young girl in a red dress with white panties on. She looks directly at the camera and has clearly been positioned in a way so that she is photographed so that her panties can be seen. In my opinion it is capable of amounting to child abuse material.
13. File Index 160. This photograph shows a young girl with her legs lifted and apart so that her crotch is the focus of the photograph. She is wearing yellow panties. When regard is had to the facial expression, the manner in which her legs are placed and the angle of the photograph, in my opinion it is capable of amounting to child abuse material.
14. File Index 164. This also shows a girl in very short and tight shorts. The shorts have been pulled up so far that the top of the cheeks of her bottom can be viewed. In my opinion it is capable of amounting to child abuse material.
15. File Index 179. This depicts a girl in a bikini. The bottom of her bikini is very small and the cheeks of her bottom are fully exposed in the bikini. In my opinion it is capable of amounting to child abuse material.
16. File Index 182. This shows a girl sitting on a chair with her legs apart wearing a top and either panties or a bikini bottom. The bikini bottom or panties are extremely tiny and her crotch area is almost fully exposed. Given her facial expression, the position of her legs and the smallness of the bikini bottom or panties, I am of the opinion the image is capable of amounting to child abuse material.
17. File Index 190. This shows a young girl crouched on a chair. Her legs are positioned so that her crotch area can be fully seen. That is the apparent focus of the photograph. Given her facial expression, the position of her legs and the apparent focus of the photograph, I am of the opinion the image is capable of amounting to child abuse material.
18. File Index 191. The image here appears to be of the same girl who is in File Index 179 and in a very similar, but slightly different pose. For the reasons I gave in relation to File Index 179 I am of the opinion the image is capable of amounting to child abuse material.
19. File Index 201. This shows an image of a young girl sitting with her legs to the side on some type of stool. She is wearing very tight and small red shorts. Much of her bottom is exposed. He bottom is in my opinion the apparent focus of the photograph. Given her facial expression, the placement of her legs, the very short and tight shorts and the focus of the photograph on her bottom, I am of the opinion the image is capable of amounting to child abuse material. She appears to be the same girl in images File Index 46,143 and 164.
20. In my opinion the balance of the photographs do not exhibit such features whereby they are capable of being considered child abuse material. They do not have the features of the photographs which I have concluded are capable of amounting to child abuse material.
21. For these reasons the no case to answer submission is rejected. Magistrate M Buscombe Downing Centre Local Court 7 July 2014 ********

Amendments 26 February 2015 - Citation "4 SASR 465" and "SASR" changed to "2 SASR 529" and "SR(SA)" Paragraph: 18

"Romeyko" changed to "Norley v Malthouse (supra)" Paragraph: 48

"Norley" changed to "Romeyko v Samuels (supra)" Paragraph: 49

Anonymisation of accused as "A" in judgment body changed to "X" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2015