Solicitors:
Ms S. Paschke (ODPP)
Mr D. Giddy (Appellant)
File Number(s): 2017/00255476-001
[2]
Judgment
The appellant was convicted by Magistrate Covington on 12 September 2018, after a defended hearing, of one count of "possess child abuse material" contrary to section 91H(2) of the Crimes Act 1900 (NSW). The charge related to 21 colour drawings by artist Gaston Goor.
Section 91H(2) is in the following terms:
(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.
Maximum penalty: imprisonment for 10 years
"Child abuse material" is defined in section 91FB in the following terms:
"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.
As stated, the maximum penalty is 10 years imprisonment.
The appellant appeals from the decision of the learned Magistrate.
The appeal was heard on 30 May 2019.
The appeal was by way of a re-hearing based on the transcript of evidence before the learned Magistrate. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court - see Charara v R [2006] NSWCCA 244 per Mason P at [18].
I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned Magistrate in his judgment of 12 September 2018. I note that I am bound to observe the "natural limitations" where the appeal is conducted by reference to the documentary record - see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [5] per Basten JA. That said, these principles do not loom large on the appeal, as the evidence below was largely uncontroversial.
The drawings the subject of the conviction are explicit and no doubt confronting to some people. The drawings show adolescent boys engaging in group sex at school and associated settings. The boys are partially dressed and some pictures show genitals, penetrative sex, use of objects and ejaculation. It was common ground at the hearing that the activity depicted was consensual, and that the drawings do not show any distress, coercion, abuse of power or age imbalance.
The facts underlying the appeal are unusual. The circumstances in which the drawings were obtained are also unusual. It was accepted by the learned Magistrate that the pictures were obtained by the appellant during academic research for a biography. The appellant is an internationally recognised biographer specialising in biographies of gay artists and authors. He has a first class honours degree and university medal from UNSW, a doctorate in literary history from Sydney University and received a scholarship to study at Oxford University where he became President of the Student Union in 1975. In 2015, the appellant was elected a Fellow of the Royal Historical Society. Reviews of his work in the New York Times, Times Literary Supplement and Washington Post were tendered at the hearing.
The appellant gave evidence in the hearing and was cross-examined about how he came to possess the drawings. In his judgment, the learned Magistrate stated:
"[h]e was acquiring these various pieces of material to write a biography on Roger [Peyrefritte]. There is no doubt that the images in Sequence 1 were acquired in pursuit of that biography and I have no hesitation accepting the entirety of the accused's evidence in relation to this issue" (T2:4.30).
That evidence to which His Honour refers, can be distilled as follows: the appellant was researching a biography of Roger Peyrefritte, a well-known French author best known for his book "Special Friendships". This was a novel depicting chaste love between school boys at a boarding school (T1:11.40). The illustrator of the hard copy version of "Special Friendships" was an artist called Gaston Goor. Both men were gay and became life-long friends and collaborators (T1:13).
While researching the biography, the appellant became aware of rumours that Gaston Goor had privately sent an alternative, sexually explicit, version of the drawings which appear in "Special Friendships" to Roger Peyrefritte. He understood from the rumours that the explicit drawings were a kind of private joke between the author and the illustrator, depicting what the boys were "actually getting up to" while they were at school (T1:15.15-30). He had understood there was only one copy of the illustrations in existence (T1:14.19).
In around 2002, the appellant saw a book of drawings drawn by Gaston Goor called "Collages" advertised for sale on the website of Elysium Press (T1:16.35). The appellant had previously purchased rare books from Elysium Press, and considered it a reputable publishing business specialising in rare books by gay authors (T1:21). The advertisement for "Collages" said that the drawings were connected to the Peyrefritte illustrations for "Special Friendships" and the appellant immediately purchased a copy (T1:16.35). The prospectus (the introduction signed by David Deiss) referred to the connection between Mr Goor and Mr Peyrefritte, but contrary to the rumours the appellant had heard, stated that the drawings had been commissioned by Mr Peyrefritte (T1:15.50).
The appellant ultimately did not complete the biography after reading more of Mr Peyrefritte's later works, concluding he was an unpleasant person and his later books were "sleazy", and in one case, blasphemous (T1:22.5,28.15). He left his research on his computer hard drive, and the drawings remained stored (and untouched) on a shelf in the appellant's home for five years (T1:21.15). The drawings were seized on 26 July 2017 during the execution of a search warrant.
The drawings were tendered in their packaging as Exhibit 2 in the hearing below, and before me. It is apparent they are in pristine condition in a box and wrapped in the original tissue paper packaging. The appellant gave uncontested evidence that the drawings were not shown to any other person (T1:30.30).
The appellant is now 70 years old and has no prior convictions of any kind. No other child abuse material was located during the search.
The hearing below proceeded by way of both Agreed Facts and tender of the drawings. The appellant also gave evidence and was cross-examined. As noted above, his explanation for acquiring the drawings was accepted by the Magistrate in its entirety.
Mr Simon Taafe, a professional art valuer, gave evidence about the commercial value of the Gaston Goor drawings (low to mid hundreds of dollars). He described the prints as "limited edition" and said that the manner of their presentation as tendered enhanced their value (see especially T1:42.15). He explained the commercial significance of the packaging and the use of a prospectus and colophon as devices to enhance value (T1:35-36.40).
[3]
The Magistrate's Decision
It is helpful to set out Magistrate Covington's factual findings, as they are uncontroversial. His Honour found:
The drawings depicted boys who appear to be under 16 engaged in sexual activity (T2:5.45).
The drawings are explicit and some depict penises, group sex, mutual ejaculation and use of objects for sex (T2:6.20).
The appellant is an internationally highly respected biographer who has been honoured for his published work (T2:2.5-10,2.40).
The appellant bought the material on the internet while researching a biography on Roger Peyrefritte (T2:2.20,5.25).
The purpose of the purchase was in pursuit of research for the biography and, accordingly, not for sexual gratification (T2:2.20, 2.40, see also 5.25, 9.15, 10.10).
The drawings were painted with artistic skill by a known artist and were commercially valuable (T2:6.16).
The drawings were not produced in a way that involved children being abused or exploited (T2:5.25).
The material itself did not depict any exploitation of children (T2:5.25).
The learned Magistrate accepted as persuasive, the decision of Buscombe LCM (as His Honour then was) in NSW Police Force v X [2014] NSWLC 23 which had traced the legislative history of the provisions and examined a series of relevant authorities including Monis v The Queen (2013) 249 CLR 92 and Ball v McIntyre [1961] 9 FLR 37. His Honour agreed that the legal test was whether the drawings were "significantly offensive", namely offensive in a manner more serious than the definition of "offensive conduct" in the Summary Offences Act 1988 (NSW) and such as to arouse "significant anger, resentment or disgust in the mind of a reasonable person". This formulation was derived from the judgment of Bathurst CJ in Monis v R; Droudis v R [2011] NSWCCA 231 at [45], His Honour's formulation meeting with approval in the High Court.
[4]
The Appellant's Case
The appellant submitted that private possession of this type of drawing (ie skilfully artistic drawings of consensual sex between teenage schoolboys linked to a book about chaste schoolboy love) obtained for legitimate research purposes, falls outside both the statutory definition, and the statutory purpose of protecting children from abuse, harm and exploitation.
The appellant further submitted that:
1. The statute makes repeated reference to "all the circumstances" which requires assessment of the totality of the possession, beyond the drawings in isolation, and in this case includes:
1. why the drawings were produced, including the connection to a published literary work, and possibly an interplay between gay artists and collaborators;
2. the private nature of the possession and the fact that they have never been viewed by another person;
3. the storage of the images in pristine condition in original packaging on a shelf, suggesting that they were rarely accessed;
4. the absence of any evidence of sexual motivation or gratification (including no notes or annotations or sexualised comment);
5. the absence of any other child abuse material in the appellant's home;
6. the fact that no children were harmed or exploited in production of the images; and
7. the fact that the drawings were obtained in the course of legitimate and appropriate biographical research by an established scholar.
1. The Magistrate made positive findings relevant to the factors in section 91FB(2) which lists the matters to be taken into account in deciding whether reasonable persons would regard the material as being, in all the circumstances, offensive, namely:
1. The drawings did not depict exploitation of children (which can be considered relevant to standards of morality, decency and propriety in section 91FB(2)(a)).
2. The drawings were artistic and skilfully drawn and had commercial value (relevant to artistic merit in section 91FB(2)(b)).
3. The drawings were obtained in the course of a legitimate journalistic (in this case, biographical) endeavour concerning Roger Peyrefritte (relevant to artistic, educational and journalistic merit in section 91FB(2)(b) and the general character of the material as research product in section 91FB(2)(d)).
The appellant also submitted that this form of interplay between author and illustrator is of public interest. This is particularly the case when reported by a distinguished biographer known for his skilful treatment of biographical "ephemera" and for exploring collaborations between artists including obscure artists (see "The Times" Literary Supplement Ex 4). The appellant also submitted that the disjunction between publicly acceptable depictions of school boy love and the reality of explicit, joyful sexual activity is also a matter of artistic and journalistic public interest and merit.
The appellant's ultimate submission was that the drawings are likely to be considered to be explicit and confronting by some, but benign and even amusing by others, when understood in proper context. When all of the circumstances are taken into account, as required by the statutory test, the drawings could not be regarded beyond reasonable doubt as significantly offensive, that is to say arousing significant anger, resentment, outrage, disgust or hatred in the mind of a reasonable person.
[5]
The Crown's Case
The Crown accepted that the subject works had artistic merit, but submitted that that merit was limited.
The Crown pointed out that the link between the material and the book "Special Friendships" was tenuous, and that the book had no sexual illustrations by Gaston Goor. The Crown also pointed out that the explicit drawings were part of a private joke between the author and illustrator and were not for wider distribution.
As to educational merit, the Crown pointed out that while the initial acquisition of the material was for research purposes, that research purpose disappeared when the plan to write the Peyrefritte biography was abandoned by the appellant.
The Crown pointed out that some books purchased for the purposes of the project were sold on the abandonment of the biography project, while the subject images were not.
Finally, it submitted that there should be no issue of journalistic merit in the proceedings as the subject images were produced as a private joke, and that there was no public interest attaching to the images.
I agree with that submission.
[6]
Consideration
The crux of the appeal is the issue as to whether, pursuant to the provisions of section 91FB(2) of the Crimes Act 1900 (NSW), a reasonable person would regard the material as being offensive.
It is clear from the chapeau to section 91FB, that the hypothetical reasonable person must be in possession of all the relevant facts.
It was common ground between the parties that the concept of "offensive" is to be applied in the manner suggested by Bathurst CJ in Monis v R; Droudis v R [2011] NSWCCA 231 at [44] where His Honour said:
…it is necessary that the use be calculated or likely to arouse 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 or wound the feelings of the recipient, in the mind of a reasonable person.
In my view, a reasonable person in all the circumstances would consider:
1. That the material was purchased for the purpose of a proposed biography.
2. That the appellant was a highly regarded biographer with considerable academic qualifications.
3. That the appellant's work had been critically reviewed by reputable journals.
4. That the material, after the abandonment of the biography project for which it was acquired, was left untouched on the shelf in the appellant's home where it remained untouched in its pristine, near-new condition.
5. That the material was obtained from a reputable public source, and presented in an elaborate "collector's item" manner.
The only negative factor which may militate against a finding that a reasonable person would not regard the material as offensive, is that after the biography project was abandoned, the appellant did not dispose of the illustrations.
The appellant conceded that this fact was "in the mix" in determining offensiveness for the purposes of section 91FB.
The appellant's failure to sell the illustrations at the time of selling the other material obtained by the appellant for the purposes of the biography project, was explained by the appellant in the following manner at the defended trial at T30.14-23 (emphasis added):
Q: You agree, just going back a moment in relation to the Gaston Goor - sorry, the Peyrefitte literature, you said before when he became too - they were pretty sleazy and you got rid of them, did you get rid of the Gaston Goor literature as well?
A: I only had one Gaston Goor - sorry, I had two. I had the cleaner illustrations, if you call them that and these illustrations and when I was doing my catalogue, the reason I only sold the non-sexual illustrations because what I was doing was selling books with text by Peyrefitte. The other illustrations we're talking about here, have nothing to do - have not text by Peyrefitte so there was no point putting them in a catalogue of Peyrefitte's written work.
I accept that this was the case.
I should also add in this regard that it was not put to the appellant that he retained the material for any sexual purpose.
In R v Silva [2009] ACTSC 108, Penfold J emphasised the importance of context in which the relevant material was produced or obtained. At [24], Her Honour stated:
It seems to me that "depict" is an active verb implying some intention on the part of the maker of the image. It would not cover, for instance, an accidental image such as a water stain that could be seen as resembling a sexual organ. Nor, in the context of child pornography, would the word cover images, even including images of naked or scantily clad children, that appear to have been taken with completely innocent intentions (it would be a rare family album that does not contain photographs of young children in the bath). Among other things, this means that images that are otherwise unobjectionable should not be found to have taken on the character of child pornography by reason of possibly having been made available to people with an interest in child pornography…
The context which I have set out above militates strongly against the appellant's conviction.
The images are certainly confronting and most definitely not likely to be appreciated by a significant percentage of the population. However, that is not the test, as the Legislature cannot be presumed to intend that material that offends any segment of the community is to be significantly criminalised with an offence carrying a 10 year maximum jail sentence.
I have concluded therefore, that the Crown has not proved beyond reasonable doubt that the material the subject of the charge would be regarded in all the circumstances by a reasonable person as being offensive.
Thus, I allow the appeal, and quash the conviction entered by the learned Magistrate on 12 September 2018.
[7]
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Decision last updated: 13 June 2019