Citation: Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 31 March 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J
Background
The respondent was convicted in the Local Court of possessing child pornography under s 91H(3) of the Crimes Act 1900 (NSW). The material in question consisted of video footage he allegedly recorded using a concealed camera in a swimming pool change room, capturing boys (some clearly under 16) dressing and undressing. Some of the footage concentrated on the boys' genitalia, and the filming was carried out over approximately four hours.
The respondent successfully appealed his conviction to the District Court. The District Court judge found that the images depicted boys under 16 but not in a "sexual context" as required by the statutory definition. In reaching that conclusion, the judge excluded from consideration a range of circumstances surrounding the filming, including its secretive nature, the use of a disguised camera, and the alleged motivation of sexual gratification.
The Director of Public Prosecutions then required a case to be stated for determination by the Court of Criminal Appeal, asking whether the District Court judge had erred in law by treating those surrounding circumstances as irrelevant to the "sexual context" question.
Legal Issues
- Whether the motivation of the person making the film is relevant to whether material depicts a person under 16 "in a sexual context" under s 91H(1) of the Crimes Act 1900
- Whether the secretive or planned manner in which footage was recorded is relevant to that same question
- Whether the content of the images themselves, including which parts of the body were filmed and the composition of subjects depicted, is relevant to the "sexual context" question
Decision
The Court of Criminal Appeal held that the District Court judge was only partly correct. The judge was right to treat the test under s 91H(1) as an objective one, focused on the content of the material itself. The motivation of the photographer (for example, filming for personal sexual gratification) and the secretive method of recording are not relevant to whether the material constitutes child pornography. Those matters may illuminate the context in which filming occurred, but they do not bear on whether the images themselves depict persons in a "sexual context."
However, the Court found the District Court judge erred by also excluding from consideration certain matters that are properly part of the content analysis. Specifically, the fact that all subjects in the footage were young boys, that the camera concentrated on their genitalia, and that footage was taken over a period of time were all aspects of the content of the images and were directly relevant to whether persons under 16 were depicted "in a sexual context."
McClellan CJ at CL acknowledged that images focusing on the genitalia of young boys do not automatically establish a sexual context. Images made for medical or artistic purposes might be depicted in a different context altogether. However, factors such as the number of images, the portions of the body depicted, and any discernible gestures of those filmed are all legitimately part of the content assessment.
The Court did not itself determine whether an offence was proved on the facts. That question was remitted to the District Court for determination in accordance with the Court's reasons.
Orders Made
- The answer to the question in the stated case is yes, in part.
- The proceedings are remitted to the District Court to be dealt with in accordance with the Court's reasons.
Key Takeaways
- Under s 91H(1) of the Crimes Act 1900, the question of whether material depicts a person under 16 "in a sexual context" is an objective test, determined by examining the content of the material itself.
- A filmmaker's motivation (including alleged sexual gratification) and the secretive or planned manner of recording are not relevant to whether the resulting material constitutes child pornography.
- Content features, including the age and sex of all subjects depicted, the portions of the body shown (such as genitalia), and the number and duration of images, are all relevant matters when applying the objective "sexual context" test.
- The Court of Criminal Appeal confirmed that the District Court judge's approach was only partially correct: excluding extrinsic filming circumstances was sound, but excluding content-based factors from the images themselves was an error of law.
- Footage concentrating on the genitalia of young boys does not automatically satisfy the "sexual context" element. A court must consider all relevant content features together before reaching that conclusion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 91H(1) and s 91H(3)
- Criminal Appeal Act 1912 (NSW), s 5B
Cases:
No cases were cited in the judgment text provided.