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District Court 7 June 2019

R v Scoble

[2019] NSWDC 255

Sexual offences
CRIME APPEAL AND REVIEW BY PERSON CONVICTED AGAINST CONVICTION CHILD SEX OFFENCES CHILD ABUSE MATERIAL DEFINITION

Citation: R v Scoble [2019] NSWDC 255
Court: District Court of New South Wales
Date: 7 June 2019
Judge: Weber SC DCJ

Background

The appellant was a 70-year-old internationally recognised biographer with no prior convictions, specialising in biographies of gay artists and authors. While researching a biography of French author Roger Peyrefritte in around 2002, he purchased 21 explicit colour drawings by artist Gaston Goor from a reputable online bookseller. The drawings depicted adolescent boys engaging in sexual activity and were understood to be privately commissioned illustrations connected to Peyrefritte's well-known novel "Special Friendships."

After the appellant abandoned the biography project, the drawings remained in their original packaging, untouched on a shelf in his home for approximately five years. They were seized during the execution of a search warrant in July 2017. No other child abuse material was found in the search.

A Magistrate convicted the appellant of possessing child abuse material under section 91H(2) of the Crimes Act 1900 (NSW). The appellant appealed to the District Court, which conducted a rehearing on the transcript of evidence from the Local Court.

  • Whether the 21 drawings constituted "child abuse material" within the meaning of section 91FB of the Crimes Act 1900 (NSW), specifically whether a reasonable person would regard them as offensive "in all the circumstances"
  • Whether the legal test required that material be "significantly offensive" rather than merely offensive to some segment of the community
  • Whether the full context of acquisition, purpose, and retention was relevant to the "offensive in all the circumstances" assessment

Decision

The central question was whether the drawings met the statutory definition of "child abuse material," which requires that the material depict or describe, in a way that reasonable persons would regard as offensive "in all the circumstances," a child engaged in sexual activity (among other categories). The District Court accepted the Magistrate's finding that the applicable standard required "significant" offensiveness, not merely material that offends any segment of the community. The Court noted that the legislature could not be presumed to intend that material offending some community members should attract a maximum penalty of 10 years' imprisonment.

The Court examined the full circumstances surrounding the drawings. It accepted the Magistrate's uncontroverted findings: the appellant was a highly credentialed academic; he purchased the material from a reputable publisher during legitimate research; the purpose was not sexual gratification; the drawings depicted no distress, coercion, abuse of power, or exploitation; no child was harmed in their creation; and the material had artistic and commercial value. The drawings were found in pristine condition, undisturbed for years, and had never been shown to another person.

Relying on R v Silva [2009] ACTSC 108, the Court emphasised that context of acquisition is relevant to the characterisation of material. In that case, Penfold J observed that images otherwise unobjectionable do not become child pornography merely because they are made available to those with an interest in such material. The District Court applied similar reasoning here, finding that the totality of circumstances militated strongly against the conviction.

The Court concluded that the Crown had not proved beyond reasonable doubt that a reasonable person would regard the material as offensive in all the circumstances. The appeal was allowed and the conviction quashed.

Orders Made

  • The appeal was allowed.
  • The conviction entered by the Magistrate on 12 September 2018 was quashed.

Key Takeaways

  • Under section 91FB of the Crimes Act 1900 (NSW), material only constitutes "child abuse material" if a reasonable person would regard it as offensive "in all the circumstances." The test is not satisfied merely because some segment of the community finds the material offensive.
  • The District Court confirmed that the standard of offensiveness in this context requires something more than ordinary offence, consistent with the serious maximum penalty of 10 years' imprisonment attached to the offence.
  • Context of acquisition and purpose of possession are relevant considerations. Drawings obtained from a reputable commercial source during legitimate academic research, stored untouched for years, and never shared with others, occupied a materially different position than material obtained for prurient purposes.
  • A finding that images are "certainly confronting" and unlikely to be appreciated by many people does not, without more, satisfy the statutory test for child abuse material.
  • Where no other child abuse material is found during a search, and there is uncontested evidence of a legitimate academic purpose, those facts form part of the overall circumstances a court must weigh in applying the statutory definition.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91FB, 91H(2)
- Summary Offences Act 1988 (NSW)

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Ball v McIntyre (1961) 9 FLR 37
- Charara v R [2006] NSWCCA 244
- Monis v R; Droudis v R [2011] NSWCCA 231
- Monis v The Queen (2013) 249 CLR 92
- NSW Police Force v X [2014] NSWLC 23
- R v Silva [2009] ACTSC 108