Citation: DPP v Timothy Patterson [2018] NSWLC 18
Court: Local Court of New South Wales
Date: 29 March 2018
Judge(s): Magistrate Farnan
Background
The defendant was a police officer who attended a work social function with colleagues, including the complainant. After the event, the two went to his hotel room and had consensual intercourse. Without the complainant's knowledge, the defendant used Snapchat to record two 10-second videos of that activity and immediately transmitted them to a group of eight male colleagues via a Snapchat group called "No Snitches".
A separate video was later recovered from deleted files on the complainant's phone. That footage showed the complainant engaged in a private sexual act with the defendant. She said she had not consented to being filmed at all; the defendant maintained that she had.
The defendant faced three charges of filming a person in a private act without consent for sexual gratification under s 91K of the Crimes Act 1900 (NSW), and one charge of using a carriage service to transmit offensive material under s 474.17 of the Criminal Code Act 1995 (Cth). He admitted each act of filming and accepted that the relevant acts were "private acts" within the meaning of the legislation.
Legal Issues
- Whether the complainant consented to the Snapchat filming (sequences 1 and 3), and whether the defendant knew she did not consent.
- Whether the purpose of the Snapchat filming was to obtain sexual arousal or gratification for the defendant or another person.
- Whether transmitting the Snapchat videos via the carriage service was offensive in all the circumstances (sequence 2, the s 474.17 charge).
- Whether the complainant consented to being filmed on her own phone (sequence 4).
- Whether, in relation to sequence 4, the defendant held an honest and reasonable but mistaken belief that the complainant had consented to filming.
Decision
Sequences 1 and 3: Snapchat filming
Magistrate Farnan found that the complainant did not consent to being filmed during intercourse and that the defendant knew she had not consented. The defendant himself acknowledged he did not tell her he was using Snapchat. The court was satisfied beyond reasonable doubt that the filming was for the purpose of the defendant's own sexual gratification or to enable others to obtain sexual gratification, noting particularly that the videos were immediately shared with a group of male colleagues.
Sequence 2: Using a carriage service to transmit offensive material
The court applied the test of how a reasonable person would regard the transmission in all the circumstances. Transmitting explicit footage of an identifiable colleague engaged in a private sexual act, without her knowledge, to a group of eight people was found to meet that standard. Witness reactions at the time, including expressions of disgust and comments such as "what the fuck's this", were consistent with that conclusion. The complainant's own consent (or lack of it) to filming was noted to be irrelevant to this charge.
Sequence 4: Filming on the complainant's phone
The court preferred the complainant's account that she had not consented and had told the defendant to put the phone down. The defendant's claim that she had verbally consented was rejected. No corroborating evidence supported his version, and the court found his account implausible in the circumstances.
Honest and reasonable mistake
Magistrate Farnan found that the defence of honest and reasonable mistake of fact did not arise on the evidence. The circumstances described by both parties were irreconcilable: either the complainant consented (his account) or she did not and told him so (her account). There was no evidential basis for a finding that the defendant honestly and reasonably but mistakenly believed she had consented. All four offences were proved beyond reasonable doubt.
Orders Made
• All four offences proved
Key Takeaways
- Under s 91K of the Crimes Act 1900 (NSW), the prosecution must prove beyond reasonable doubt that filming was for the purpose of sexual arousal or gratification, that the person filmed did not consent to filming for that purpose, and that the defendant knew she did not consent.
- A defendant's own admission that he did not inform the complainant he was using Snapchat was material to establishing both lack of consent and knowledge of that lack of consent.
- The defence of honest and reasonable mistake of fact does not arise unless there is an evidential foundation for it; where the only two accounts before the court are direct consent or direct refusal, no intermediate factual scenario supports the defence.
- Sharing explicit footage of an identifiable person engaged in a private sexual act with a group of colleagues via Snapchat, without that person's knowledge, was conduct a reasonable person would regard as offensive for the purposes of s 474.17 of the Criminal Code Act 1995 (Cth).
- Magistrate Farnan observed that new offences have since been enacted that would now more directly criminalise the non-consensual sharing of intimate images, reflecting the law catching up with conduct made possible by smartphone technology.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 91K (filming person in private act without consent)
- Criminal Code Act 1995 (Cth), s 474.17 (using carriage service to transmit offensive material); s 473.4
Cases
- Ball v McIntyre (1966) 9 FLR 237
- DPP v Osborn [2013] NSWLC 22
- Monis v R; Droudis v R [2011] NSWCCA 231