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District Court 21 October 2022

Hanna v Director of Public Prosecutions

[2022] NSWDC 491

Sexual offences
ALL GROUNDS APPEAL POSSESS CHILD ABUSE MATERIAL APPLICATION TO ADDUCE FRESH EVIDENCE STATUTORY INTERPRETATION

Citation: Hanna v Director of Public Prosecutions [2022] NSWDC 491
Court: District Court of NSW
Date: 21 October 2022
Judge(s): Mahony SC DCJ

Background

The appellant had been convicted in the Local Court on 9 May 2022 of one charge of possessing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW). The conviction arose from a video found on his phone, approximately two minutes and twelve seconds long, depicting two adults engaging in sexual intercourse while a very young child entered the bedroom, was given a torch, and for most of the video faced away from the couple before briefly climbing onto the bed and then leaving.

The sole question on appeal was not whether the appellant possessed the video, which was conceded, but whether the content of that video constituted "child abuse material" as defined in s 91FB of the Crimes Act. Specifically, the question was whether the video depicted material that reasonable persons would regard as offensive in all the circumstances, having regard to standards of morality, decency and propriety generally accepted by reasonable adults.

Before the appeal was heard, the appellant applied to adduce fresh expert evidence from Dr Dianna Kenny, a highly qualified psychologist specialising in infant and child development. That evidence addressed the child's age, awareness of the sexual activity, relationship to the adults, and whether the child showed any signs of abuse, exploitation or harm.

Legal Issues

  • Whether leave should be granted under s 18(2) of the Crimes (Appeal and Review) Act 2021 to admit fresh expert evidence from Dr Kenny
  • Whether the video depicted "child abuse material" as defined in s 91FB of the Crimes Act, specifically whether it depicted material that reasonable persons would regard as offensive in all the circumstances
  • Whether the learned Magistrate erred in his factual findings and reasoning in concluding that the offence was proved beyond reasonable doubt

Decision

Issue 1: Fresh Evidence Application

The District Court granted leave to admit Dr Kenny's report as fresh evidence. The court found Dr Kenny eminently qualified to opine on the child's approximate age, the child's relationship to the adults, whether the child was aware of the sexual activity, and whether there was any evidence of abuse, exploitation or harm (at [13]). The Crown did not contest her expertise. The court was satisfied it was in the interests of justice to admit the report under s 18(2) of CARA, and the report was received as Exhibit 1 on the appeal (at [14]-[15]).

Issue 2: Construction of "Offensive" Under s 91FB

The court accepted that s 91FB(1)(c) was technically satisfied because the video depicted a child in the presence of persons engaged in sexual activity (at [55]). However, the court held that the subsection cannot be read disjunctively. The prosecution must also prove beyond reasonable doubt that the material is "offensive" in all the circumstances, applying an objective test informed by community standards (at [55]). Drawing on Monis v R and NSW Police Force v X, the court adopted the construction that material is offensive only if it would arouse significant anger, resentment, outrage, disgust or hatred in the mind of a reasonable person (at [56]-[58]).

Issue 3: Magistrate's Errors and the Objective Test

The court found that the Magistrate erred in three distinct respects. First, his Honour speculated, irrelevantly, that the video would have been less offensive if the couple had stopped intercourse when the child entered, a consideration that was both speculative and irrelevant (at [60]). Second, his Honour failed to account for the fact that the male shielded the child from viewing penetration when the child climbed onto the bed (at [60]). Third, his Honour treated the kissing shown in the video as making it more offensive, when that kissing occurred while the child was facing away and distracted by the torch (at [60]).

Issue 4: Overall Conclusion

Accepting Dr Kenny's opinions, the court found the child was approximately two to three years old, unaware of the sexual activity, not engaged with the adults for most of the video, and showed no evidence of distress, trauma or harm (at [59], [61]). The court rejected the Crown's argument that the mere continuation of sexual intercourse while the child was present in the room, without active engagement by the child, was sufficient to satisfy the objective offensiveness test (at [59]). The court concluded that the video did not constitute child abuse material because a reasonable person would not regard it as offensive in all the circumstances (at [61]).

Orders Made

  • The conviction appeal is upheld
  • The conviction entered by the learned Magistrate on 9 May 2022 is set aside
  • The appellant is found Not Guilty of the offence under s 91H(2) of the Crimes Act 1900

Key Takeaways

  • Under s 91FB of the Crimes Act 1900, satisfying the technical elements of a subsection (such as a child being present during sexual activity) is not alone sufficient to establish child abuse material. The prosecution must separately prove, beyond reasonable doubt, that the material is "offensive" in all the circumstances by reference to community standards of morality, decency and propriety (at [55]).

  • The District Court confirmed that the word "offensive" in s 91FB requires material that would arouse significant anger, resentment, outrage, disgust or hatred in the mind of a reasonable person. That threshold is not met merely because sexual activity continues in the same room as a very young child who is unaware of it and not engaged with the adults (at [56]-[59]).

  • Fresh expert evidence under s 18(2) of CARA may be admitted on appeal even where the evidence could have been obtained for the original hearing, provided the court is satisfied it is in the interests of justice to do so. The threshold is not the traditional strict "fresh evidence" standard (at [9], [14]-[15]).

  • Factual findings made in the course of the offensiveness assessment must engage with all the material circumstances shown in the evidence. The Magistrate's failure to account for protective conduct by one adult toward the child, and reliance on speculative comparisons, constituted identifiable error (at [60]).

  • Expert psychological opinion on a child's developmental stage, awareness and demeanour is admissible under s 79 of the Evidence Act 1995 (NSW) to inform, though not determine, the objective offensiveness question in child abuse material proceedings (at [13]-[14]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW).
- Crimes (Appeal and Review) Act 2021
- Criminal Code 1995 (Cth)
- Evidence Act 1995 (NSW)

Cases
- Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244
- Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146
- Lunney v DPP (2021) 105 NSWLR 236; [2021] NSWCCA 186
- McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298, (2021) 106 NSWLR 430.
- Monis v R; Droudis v R 256 FLR 28; [2011] NSWCCA 231.
- Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
- NSW Police Force v X [2014] NSWLC 23
- R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21
- R v Silva (2009) 232 FLR 444; [2009] ACTSC 108