AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Local Court 7 July 2014

NSW Police Force v X

[2014] NSWLC 23

Sexual offences
WORDS AND PHRASES "CHILD ABUSE MATERIAL" CRIMES ACT 1900 (NSW), S 91H(2)

Citation: NSW Police Force v X [2014] NSWLC 23
Court: Local Court of New South Wales
Date: 7 July 2014
Judge(s): Buscombe LCM

Background

The accused was charged with possessing child abuse material on 11 September 2011, contrary to s 91H(2) of the Crimes Act 1900 (NSW). Police executed a search warrant at his home and seized a laptop computer from the kitchen bench. It was an agreed fact that the accused was in possession of the computer and all images and data on it at the time.

Police analysis of the laptop identified a number of videos and still images alleged to constitute "child abuse material" as defined in s 91FB of the Crimes Act. The prosecution case rested primarily on the contention that the material depicted a child in a sexual pose, and in a way that reasonable persons would regard as offensive. The accused made a no case to answer submission at the close of the prosecution case.

Legal Issues

  • What meaning should be given to the word "offensive" in the definition of "child abuse material" in s 91FB of the Crimes Act 1900 (NSW)?
  • Does the approach to "offensive" taken by courts in interpreting s 471.12 of the Criminal Code (Cth) in Monis apply to s 91FB?
  • What constitutes a "sexual pose" for the purposes of s 91FB?
  • What circumstances may be taken into account under the phrase "in all the circumstances" when assessing whether material is offensive?
  • Whether the number of images or videos possessed may be taken into account in assessing offensiveness of a particular image?
  • Whether there was a case to answer on the evidence before the court?

Decision

Issue 1: The meaning of "offensive" in s 91FB

The Magistrate held that the word "offensive" carries no single definition applicable across all offence-creating provisions and must be construed according to its statutory context (at [41]). Drawing on the reasoning in Monis, and applying general principles of statutory construction from Project Blue Sky, the court concluded that for material to constitute child abuse material, reasonable persons must regard it in all the circumstances as being "significantly offensive" (at [57]).

The court reasoned that the possession of images of children is a common everyday activity, and the legislature was unlikely to have intended to criminalise it unless there was a significant degree of offensiveness, particularly given the maximum penalty of 10 years imprisonment on indictment (at [58]). The court also noted that the presence of ss 91FB(2)(b), (c) and (d), which require consideration of factors such as artistic and journalistic merit, indicate the legislature did not intend the ordinary dictionary definition of "offensive" to apply (at [60]). The court declined to follow Romeyko v Samuels and Norley v Malthouse as those cases involved different statutory provisions dealing with different terms (at [48]-[50]).

Issue 2: The meaning of "sexual pose" and the role of community standards

The court adopted the formulation from R v Silva that a "sexual pose" involves a deliberately-struck attitude that draws attention to the sexual aspects of the subject's identity or personality (at [67]). It is not necessary for the prosecution to establish that the child was aware of striking such a pose. The court held that contemporary community tolerance of the sexualisation of children in commercial or other contexts is not relevant to whether an image depicts a child in a sexual pose; that question turns on the content of the image itself (at [68]). Community standards remain relevant, however, to the separate question of whether reasonable persons would regard the material as offensive.

Issue 3: The phrase "in all the circumstances" and number of images

The court held that the number of images or videos possessed cannot be taken into account in assessing whether any particular image is offensive (at [63]). The phrase "in all the circumstances" includes the manner in which an image is held and any other material directly related to it, such as notes attached to or expressly linked to a specific image, but does not extend to unrelated co-possessed material (at [64]-[65]).

Issue 4: No case to answer

Applying these principles to the evidence, the Magistrate found that seven of the videos and seventeen of the still images on the laptop were each capable of amounting to child abuse material, having regard to the apparent age of the girl depicted, her clothing, her movements, and the focus of the filming or photography (at [71]-[98]). The no case submission was accordingly refused (at [100]).

Orders Made

  • Application that there is no case to answer refused.

Key Takeaways

  • For material to satisfy the definition of "child abuse material" in s 91FB of the Crimes Act 1900 (NSW), reasonable persons must regard it in all the circumstances as "significantly offensive" (at [57]). The ordinary dictionary definition of "offensive" does not apply without more.

  • The word "offensive" has no universal meaning across criminal offence provisions. Its construction depends on the statutory text, context, legislative history, and maximum penalty (at [41]).

  • A "sexual pose" involves a deliberately-struck attitude that draws attention to the sexual aspects of a child's identity or personality. Whether an image meets that description is assessed from the content of the image itself, not by reference to broader community tolerance of the sexualisation of children in commercial contexts (at [67]-[68]).

  • The number of images or videos in an accused's possession cannot be taken into account when assessing whether any individual image or video is offensive within the definition. Only material that directly refers to or is expressly linked to the specific item under consideration may form part of the relevant circumstances (at [63]-[65]).

  • Reasoning from Monis about the meaning of "offensive" in the Commonwealth Criminal Code is instructive but not directly transposable. The Local Court treated Monis as illustrating general principles of statutory construction, while acknowledging material differences in statutory context and purpose between s 471.12 of the Criminal Code and s 91FB of the Crimes Act (at [41], [59]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91FA, 91FB and 91H
- Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)
- Criminal Code (Cth), Part 10.6, ss 471.12, 473.1, 473.4, 474.19

Cases
- Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86
- Monis, Man Haron v R; Droudis, Amirah v R [2011] NSWCCA 231; 215 A Crim R 64
- Monis, Man Haron v R; Droudis, Amirah v R [2013] HCA 4; 249 CLR 92; 87 ALJR 340
- Norley v Malthouse [1924] SR(SA) 268
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841
- R v Serratore [1999] NSWCCA 377; 48 NSWLR 101
- R v Silva [2009] ACTSC 108; 232 FLR 444
- Romeyko v Samuels (1972) 2 SASR 529