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7.11.5.3.1 - Possession of Child Pornography: Bench Notes1

Commencement Information

1. The offence of Possession of Child Pornography (Crimes Act 1958 s70) commenced operation on 1 January 1996.

2. This offence was amended by the Justice Legislation (Sexual Offences and Bail) Act 2004, to increase the relevant age of a child from “under 16” to “under 18”. The revised age limit applies to offences alleged to have been committed on or after 18 May 2004.

Overview of Elements

3. Possession of Child Pornography has the following three elements, each of which must be proven beyond reasonable doubt:

i) The accused knowingly possessed a film, photograph, publication or computer game;

ii) That film, photograph, publication or computer game describes or depicts a person:

a) engaging in sexual activity; or

b) depicted in an indecent sexual manner or context; and

iii) The person described or depicted in that way is, or appears to be, a minor.

Possession of a Film, Photograph, Publication or Game

4. There are two aspects to the first element:

iv) The accused must have knowingly possessed certain material; and

v) The material possessed must have been a film, photograph, publication or computer game.

Possession

5. The law relating to possession of child pornography is the common law of possession (R v Shew [1998] QCA 333; Police v Kennedy (1998) 71 SASR 175).

6. At common law, people have in their possession whatever is, to their knowledge, physically in their custody or under their physical control

1 This document was last updated on 8 December 2014. 1 (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185).

7. According to this definition, to prove that the accused possessed the relevant material, the prosecution must show that:

vi) The accused had physical custody of or control over that material;

vii) The accused intended to have custody of or exercise control over that material; and

viii) The accused knew the nature of the material, or was aware of its likely nature (R v Maio [1989] VR 281. See also He Kaw Teh v R (1985) 157 CLR 523).

Custody and Control

8. People may have possession of an item even though they are not carrying the item or do not have it on them, as long as they have physical custody or control over the item (R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120).

9. A person continues to be in possession of an item even if s/he forgets about its existence. In the absence of external intervention, once a person has possession of an item, s/he will continue to be in possession of that item until s/he takes some step to dispose of the item. The status of an item does not change with fluctuations in the memory of the possessor (Police v Kennedy (1998) 71 SASR 175; R v Buswell [1972] 1 All ER 75).

10. A person will generally not have possession of a film unless the user records or stores the film in some manner. This requires control over the recording, and capacity for subsequent viewing or reproduction (DPP v Kear [2006] NSWSC 1145).

Intention

11. A person will generally not have an intention to possess material that is automatically downloaded from the Internet onto his or her computer (R v Wescott Vic CC 26/5/2005; R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145).

12. This may occur due to the way in which the Internet works. When a computer user views an image on the Internet, that image will automatically be copied to a “temporary Internet cache”, where it will remain until the user deletes it, or until the computer overwrites the image after a certain period of time. If a particular user is unaware of the existence and operation of this cache, he or she cannot be said to intentionally possess the images stored there (R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145).

2 13. A person will therefore generally not be guilty of possession of child pornography if s/he simply browses Internet sites which contain pornographic images. S/he must intend to possess those images (R v Wescott Vic CC 26/5/2005).

Knowledge

14. It has not yet been determined in Victoria precisely what the accused must have known about the material in his or her custody or control.

15. Following the principles in He Kaw Teh v R (1985) 157 CLR 523, it appears likely that the accused will have to have known, or been aware that it was likely, that s/he possessed pornographic images of a minor.

16. It will be sufficient for the prosecution to prove that the accused once knew that s/he had the relevant material in his or her possession, even if s/he had forgotten about it. This is because a person continues to possess an object s/he has taken possession of, until s/he does something to rid him/herself of it (Police v Kennedy (1998) 71 SASR 175; McCalla v R (1988) 87 Cr App R 372).

Photograph, Film, Publication or Game

17. The material possessed by the accused must have been a photograph, film, publication or computer game (Crimes Act 1958 s67A).

18. The definition of a “photograph” includes a photocopy or other reproduction of a photograph (Crimes Act 1958 s67A).

19. Crimes Act s67A specifies that the terms “film”, “publication” and “computer game” are to be given the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 (Cth).

20. A “film” is defined to include any form of recording from which a visual image may be reproduced. This includes cinematographic films, slides, video tapes or video disks (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5).

21. A series of separate images downloaded to a computer by a user may also be considered to be a “film” (DPP v Kear [2006] NSWSC 1145).

22. A “computer game” is defined as a computer program capable of generating a display that allows for the playing of an interactive game2 (Classification (Publications, Films and Computer Games) Act

2 An “interactive game” is one where the way in which the game proceeds, and the result achieved at various stages of the game, is determined in response to the decisions, inputs and direct involvement of the player (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5). 3 1995 (Cth) s5A).

23. Although a “publication” is defined as any written or pictorial material which is not a film, computer game or advertisement for a publication, film or computer game (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5), private expressions of thought intended exclusively for private use, and which are not intended or likely to be distributed or disseminated, are not publications (R v Quick [2004] VSCA 270).

24. Advertisements for publications, films or computer games are excluded from the definitions of those terms (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5). It therefore seems that a person who possesses an advertisement containing child pornography will only be guilty of this offence if the advertisement is photographic.

Sexual Activity or Indecent Sexual Context

25. The second element of this offence requires the film, photograph, publication or computer game to depict or describe a person “engaging in sexual activity or depicted in an indecent sexual manner or context” (Crimes Act 1958 s67A).

26. It is not necessary that the person be engaging in sexual conduct or adopting a sexual pose. It is sufficient if the depiction is of a sexual character, nature or context (Walls v R Vic CC 14/07/2003).

27. It is not necessary that the depiction be of an event that has actually taken place. A fictitious account may depict or describe conduct constituting child pornography (R v Quick [2006] VSC 270).

28. The people depicted in the material do not need to be real people. An account involving fictitious people described as minors will be sufficient for this element to be met (Holland v The Queen [2005] WASCA 140).

29. In determining whether material is “indecent”, it is necessary to apply contemporary standards and values. This must be assessed using community standards rather than the standards of any particular member of the jury (Walls v R Vic CC 14/07/2003; Phillips v SA Police (1994) 75 A Crim R 480; Crowe v Graham (1969) 121 CLR 375).

30. The context and purpose of the act will be relevant in determining whether it is indecent. For example, an act done for a legitimate medical purpose may not be indecent, even if the same act would be indecent if done for a prurient purpose (R v EG [2002] ACTSC 85; R v Court [1989] AC 28).

4 Age of the Victim

31. The third element of this offence requires a person depicted or described in the way outlined above to be, or appear to be, a minor (Crimes Act 1958 s67A).

32. The age requirement for this section varies, depending on when the offence is alleged to have been committed:

 For offences alleged to have been committed on or after 18 May 2004, the person depicted or described in the relevant way must be under the age of 18 (Crimes Act 1958 s67A).

 For offences alleged to have been committed prior to 18 May 2004, the person depicted or described in the relevant way must be under the age of 16 (Justice Legislation (Sexual Offences and Bail) Act 2004 s4).

33. This element will be satisfied if the person depicted or described is under the relevant age limit, even if he or she does not appear to be so (Police v Kennedy (1998) 71 SASR 175).

34. In determining whether the victim “appears to be” a minor, the jury is required to make its own assessment of his or her apparent age (Police v Kennedy (1998) 71 SASR 175).

35. The jury must be satisfied that this element has been proven beyond reasonable doubt. Where the prosecution relies on the victim’s “apparent age”, this means that the jury must be satisfied, beyond reasonable doubt, that the accused appears to be a minor (R v Wescott Vic CC 26/5/2005).

Exceptions

36. Section 70AAA of the Crimes Act 1958 sets out four exceptions to the offences of production of child pornography, procurement of minor for child pornography and possession of child pornography.

37. Section 70AAA commenced on 3 November 2014, and applies to all proceedings, regardless of when the offence is alleged to have been committed (Crimes Act 1958, s626(5)).

38. Whenever one of the four exceptions requires a belief by the accused on reasonable grounds, the accused has the burden of proving this matter on a balance of probabilities (s70AAA(7)).

39. For other matters, the prosecution bears the burden of disproving the exception.

40. These exceptions are explained in Bench Notes: Production of child pornography and apply, with any necessary alterations, to this offence.

5 Defences and Exemptions

41. Section 70(2) of the Crimes Act 1958 specifies five defences to Possession of Child Pornography:

b) Classification by the Office of Film and Literature Classification;

c) Artistic merit or genuine medical, legal, scientific or educational purposes;

d) Belief on reasonable grounds that:

 The minor was 18 or older; or

 The accused was married to the minor;

e) The accused was not more than 2 years older than the minor; and

f) The accused was one of the minors depicted.

42. It seems likely that the accused will bear the onus of establishing these defences on the balance of probabilities. This was the position agreed to by the parties, and taken by the judge, in Walls v R (Vic CC 14/07/2003), in relation to the defence of artistic merit (s70(2) (b)).

43. Certain acts by law enforcement officers are also exempted from the offence (s70(4)).

Classification by the OFLC

44. The accused will have a defence if s/he possessed a film, a photograph contained in a publication, or a computer game which, at the time of the alleged offence:

 Was classified by the Office of Film and Literature Classification (OFLC) as being other than RC,3 X or X 18+; or

 Would, if classified by the OFLC, be classified as being other than RC, X or X 18+ (Crimes Act 1958 s70(2)).

45. This defence does not cover non-photographic aspects of publications, or photographs which are not contained in publications (Crimes Act 1958 s70(2). See also R v Quick [2004] VSCA 270).

Legitimate Purposes

46. The accused will also have a defence if s/he can prove on the balance of probabilities that the film, photograph, publication or computer

3 RC means “Refused Classification” (Classification (Publications, Films and Computer Games) Act 1995 s7). 6 game:

 Possesses artistic merit; or

 Is for a genuine medical, legal, scientific or educational purpose (Crimes Act 1958 s70(2)(b)).

47. The defence of artistic merit does not apply if the prosecution proves that the person depicted in the pornography was actually under the age of 18 (as opposed to simply appearing to be under 18) (Crimes Act 1958 s70(3)).

48. A person can only be “actually” under the age of 18 if they are a real person (rather than a fictitious person) (Walls v R Vic CC 14/07/2003).

49. “Artistic merit” is not defined in the Act and should be given its ordinary meaning (Walls v R Vic CC 14/07/2003).

50. For material to possess "artistic merit" it must possess a quality which gives it worth or value according to the standards of art. Art includes exercises in human creative skill and imagination. The expression “artistic merit” suggests an evaluation of the visual impression given by a work, but it does not restrict the assessment to visual impression without regard to the nature and purpose of the work (Walls v R Vic CC 14/07/2003; Kelly-County v Beers (2004) 207 ALR 421)).

51. An act is done for a “genuine purpose” if the purpose alleged by the actor is the actual purpose behind the act. Where an act is motivated by several purposes, the dominant purpose must be a medical, legal, scientific or educational purpose (Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284).

52. There have not yet been any decisions about the meaning of a “medical, legal, scientific or educational purpose”. These words are likely to be given their ordinary English meaning.

Belief on Reasonable Grounds

53. It is a defence to prove on the balance of probabilities that the accused believed on reasonable grounds that:

g) The minor was aged 18 years or older; or

h) The accused was married to the minor (Crimes Act 1958 s70(2) (c)).

54. For there to be reasonable grounds for a state of mind (such as belief), there must exist facts which are sufficient to induce that state of mind in a reasonable person (George v Rockett (1990) 170 CLR 104).

7 55. Where a jury finds that a person “appears to be” under the age of 18, it is likely that any belief of the accused’s that the person was aged 18 or over would be unreasonable. This limits the practical availability of the defence where the prosecution relies on the apparent age of the minor (Police v Kennedy (1998) 71 SASR 175).

Youth of the Accused

56. In relation to cases involving the possession of films or photographs, the accused may have a defence if:

 S/he personally made the film or took the photograph; or

 S/he was given the film or photograph by the minor involved.

57. In such cases, the accused will have a defence if s/he can prove on the balance of probabilities that when s/he made the film or took the photograph, or when she was given the film or photograph, s/he was not more than 2 years older than the minor was or appeared to be (Crimes Act 1958 s70(2)(d)).

Depiction of the Accused

58. It is a defence to prove that the accused was one of the minors depicted in the film or photograph (Crimes Act 1958 s70(2)(e)). See also “Exceptions” above.

Law Enforcement

59. The Act exempts the conduct of the following people who possess child pornography in the exercise of functions conferred under the Crimes Act 1958, any other Act, or the common law:

i) A member or officer of a law enforcement agency;

j) A person authorised in writing by the Chief Commissioner of Police who is assisting a member or officer;

k) A person belonging to a class of persons who have been authorised in writing by the Chief Commissioner of Police assisting a member or officer (Crimes Act 1958 s70(4)).

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