Annetts v DPP (No2)

[2009] NSWDC 139

Reported Decision: 9 DCLR (NSW) 311

District Court

CITATION:	Annetts v DPP (No2) [2009] NSWDC 139 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 May 2009
JUDGMENT DATE:	19 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Appeal upheld. Conviction set aside.
CATCHWORDS:	CHILD PORNOGRAPHY - offensive to reasonable persons - sexual context
LEGISLATION CITED:	Crimes Act (NSW) Section 91H(1) Crimes Act (NSW) Division 15B
CASES CITED:	Annetts v DPP (2008) NSWDC 242 Director of Public Prosecutions (NSW) v Annetts (2009) NSWCCA 86 Phillips v Police (1994) 75ACrimR 480
PARTIES:	Richard John Annetts Director of Public Prosecutions (NSW)
FILE NUMBER(S):	2008/12/1241
COUNSEL:	Mr Goldsworthy Ms Knowles
SOLICITORS:	Gells Lawyers Solicitor for Public Prosecutions

1. Reference should be made to my judgement in Annetts v DPP (2008) NSWDC 242. This matter has been referred back to me to be dealt with in accordance with the reasons of the Court of Criminal Appeal following a stated case (see Director of Public Prosecutions (NSW) v Annetts (2009) NSWCCA 86)

2. The evidentiary material said to be child pornography is contained in a DVD and consists of 20 clips of various lengths, the longest being about 5 minutes and the shortest being about 10 seconds. There are 8 clips which depict young boys, without clothing or only partially clothed in the process of dressing or undressing; 9 clips containing substantially blank material or material of no interest to anyone; and 3 clips containing pictures of young boys clothed in swimming shorts, towels or T-shirts. All were apparently taken in a swimming pool change room.

3. There is no doubt in my mind that the purpose for which these pictures were taken was for some sort of sexual gratification. That is evident from the secretive way in which the filming took place, the manner in which the filming took place and the way the defendant obviously pretended to be doing something other than filming these young boys. There was nothing artistic or informative about the pictures, such as may be the case, for example, in a documentary film.

4. The legislation makes it illegal to possess images of children, that would be regarded as offensive, in a sexual context. What exactly a sexual context is has not been defined however, being a criminal statute and carrying as it does a penalty of up to 10 years imprisonment, the words in question should be construed narrowly.

5. The Court of Criminal Appeal has given some indication of what might constitute a “sexual context.” McClelland CJ at CL said in DPP v Anetts 2009 NSWCCA 86 at paragraph 11 that “the question of whether the films depict boys in a “sexual context” must be answered after considering the content of the film itself. The content of the images contained in the video is relevant to the issue raised by the statute. The fact that all the images were of young boys and the camera has concentrated on their genitalia are both relevant to the questions whether or not the images depicted are of a person or persons in a “sexual context”…. a conclusion that the images depict persons under 16 in a “sexual context” may be informed by the number of images, the gestures of those photographed and the portion or portions of the body, including the genitalia, depicted.” At paragraph 12 he continued “All of the content of the images, including that the images were of young boys, concentrated on their genitalia and were taken over a period of time and …. were taken in a men’s change room, were relevant to the question of whether or not the material depicted a person in a “sexual context”.”

6. Section 91H(1) is in these relevant terms:- “child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person apparently under the age of 16 in a sexual context.” Whilst not relevant for present purposes, the section also makes it an offence if such material shows a young person under the age of 16
”(a) engaged in sexual activity, or
(c) is the victim of torture, cruelty or physical abuse (whether or not in a sexual context)”.

7. If I apply the eiusdem generis rule to statutory interpretation it is clear to me at least that the depiction of “persons in a sexual context” has to be considered in line with “child pornography”, persons “engaged in sexual activity” and/or persons “as the victims of torture, cruelty or physical abuse (whether sexual or not).” In that regard, how the fact that these pictures were taken in a change room can imbue them with a sexual context somewhat escapes me.

8. Of the 8 clips that actually show young boys with no clothing, 4 of them show very brief glimpses of them naked. The others show young boys fully or partially naked including their genitalia. They are simply of young boys getting undressed or dressed. One shot shows one boy who possibly has a partial erection but that did not occur in any sexual context. The pictures are taken, apparently from inside a bag, and they jump around at all angles and often photograph nothing of interest to anyone. I cannot see any attempts to concentrate on the genitalia although an early clip shows two boys basically from the waist down. However this seems to be accidental rather than deliberate. Clearly the defendant is trying to take pictures of young boys with no clothes on. Most of the pictures that show genitalia are full body shots. Indeed, I could not detect any attempt, or even opportunity the way the filming was done, for the camera to zoom in on genitalia.

9. Of course not only do the images have to be of young persons in a sexual context, the images also have to depict those young persons in a manner that would in all the circumstances cause offence to reasonable persons.

10. In the present case it could not be said that the camera concentrated on the boys genitalia. It also seems to me that the fact that someone else might gain a sexual gratification from something that could never be regarded as being in a “sexual context” cannot, without more - such as editing or enhancing, convert an otherwise non-sexual context into being of a sexual context.

11. I also have difficulty seeing why the length of time over which the filming took place can imbue the images with a sexual context. There are 20 clips only 8 of which show young boys with no clothes. The total time of those clips is approximately 16 minutes but that is just the length of the clips and does not reflect the amount of time anyone is depicted as being naked. For example the longest clip of about 5 minutes, shows 2 young boys changing but only very brief nudity of one of the boys and no nudity of the other, yet I have counted that clip as one of the 8 clips in which genitalia are visible.

12. What the defendant did was a gross invasion of privacy and I have no doubt that what he did, he did for the purpose of obtaining an immediate or delayed sexual gratification.

13. Apart from the present matter, that was considered by the Court of Criminal Appeal by way of stated case, there is only one other authority on point and that is Phillips v Police (1994) 75ACrimR 480. That case was not referred to or commented on by the Court of Criminal Appeal. Nor is it apparent that the court looked at the material in question. Phillips is a decision of the SA Court of Criminal Appeal. Whilst not directly equivalent because of some statutory differences the facts are remarkably similar. These facts are set out in the judgement of Debelle J who said in part as follows:-

14. “The matters the subject of these charges came to the notice of the police in this way. A member of the public had informed police officers that the appellant had been seen inside a block of public lavatories at Brighton beach taking a video tape film of boys while they were urinating. The lavatory is adjacent to the Brighton Surf Club and a lifesaving carnival for children under thirteen years of age was then being conducted. Police officers took possession of the appellant's video camera and the video cassette contained in it. They then went to the appellant's house where they seized a further six video tapes. For convenience I will call the video tapes "the films". The films were all made in public changing sheds or in public lavatories. They predominantly show men and boys of all ages dressing or undressing in public changing sheds or urinating at public urinals. The films are of several hours' duration.

S33(3) of the Act makes it an offence for a person to be found in possession of child pornography. There was no issue whether the appellant was in possession of the films.The only issue was whether the films were child pornography. "Child pornography" is defined by s33(1) in these terms:

"Indecent or offensive material in which a child (whether engaged in sexual activity or not) is depicted or described in a way that is likely to cause offence to reasonable adult members of the community." (emphasis added)

Generally speaking, at common law, when considering whether material is either indecent or obscene, all the circumstances and the setting in which the material is published are considered: Romeyko v Samuels at 560. Barwick CJ expressed the requirement in these terms in Crowe v Graham (1968) 121 CLR 375 at 379:

"In resolving such a question the manner and occasion of placing the matter before others as well as the significance of the matter itself must be considered and might in some circumstances be critical in resolving the question. Here, for example, sexual matters were referred to in the issues of the magazine in a way which might pass muster in a tap room or smoke concert but which, displayed in print to the reader of the magazine, could, in my opinion, be held to offend the modesty of the ordinary man."

Windeyer J expressed the same concept in these terms at 396- 397:

"It is an act in its setting and circumstances which constitute the offence. To publish or exhibit a particular picture or print might amount to a publication of indecent matter in one set of circumstances although in other circumstances this would not be so. When it is said that a print or picture is indecent because it is `an affront to modesty' what is meant is that it is of such a character that its publication in the way alleged is an affront to modesty."

The ordinary use of language suggests that, whatever else the films made by the appellant of men and boys urinating might be called, they are not child pornography. Pornography is the explicit description or depiction of sexual activity intended to stimulate erotic rather than aesthetic feelings: see Oxford English Dictionary. However, the ordinary meaning of child pornography has been extended and includes indecent material "in which a child (whether engaged in sexual activity or not) is depicted or described in a way that is likely to cause offence to reasonable adult members of the community"

It is not, I think, correct to describe the films as "scene after scene extending to several hours of video tape images of young boys dressing, undressing and urinating and thereby exposing their genitals." That description misrepresents the content of these films. Instead, as the analysis by counsel shows, the time in each film during which genitalia of boys is shown is a very small percentage of each film. It would be more correct to hold that there are hours of film showing men urinating or changing in public change rooms and thereby exposing their genitalia - but as I have said that is irrelevant for the purpose of this offence. I do not think it relevant to calculate the time occupied in each film by scenes of boys urinating whether genitalia is shown or not. The act of a boy urinating where the penis is not shown is not offensive to decent-minded members of the community. Neither is repetition of scenes of boys urinating where the penis is shown offensive by contemporary Australian standards. I respectfully agree with the learned magistrate that the films must be viewed as a whole. There may be occasions when that which is not offensive, when viewed alone, becomes offensive by dint of repetition. I do not think this is such an occasion.

However offensive might be the manner in which these films were made, the repetition of scenes of boys urinating, dressing and undressing is not, I think, offensive to contemporary standards in the Australian community. Other epithets might readily come to mind - "boring", "tedious" and "unedifying" are three. But it would, I think, be wrong to classify the films as indecent material.”

Nyland J said “I abhor the invasion of privacy and obvious prurient motive for the making of those films but I am enjoined by s33(4) to disregard those matters. The films are tiresomely iterative but I do not think they can be considered offensive to contemporary standards operating in the Australian community. I would not describe them as indecent material.”

Mohr J concurred.

15 As can be seen from the above, the facts are remarkably similar to the present case both as to what the offender was doing, his subject matter and the way in which he was detected. The difference in that case was the finding of a substantial quantity of additional material of a similar nature in his home as well as the statutory differences.

16 The principal reason for citing that case as I have is to illustrate the reasoning why that court came to the unanimous view that such material was not criminally offensive. Whilst I am not obliged to follow that case the arguments are persuasive and no reason has been advanced as to why I should depart from it by the DPP.

17 Having looked at the films in question I am firmly of the view that taking into account the matters referred to by the NSW Court of Criminal Appeal, these depictions of young boys apparently under the age of sixteen could not be considered to be in a “sexual context” nor, having regard to Phillips case, would they be regarded as being offensive, although the conduct leading to the films being taken could be so considered. But that is not how this legislation is framed.

18 What is depicted is what anyone who entered those change rooms would have seen at the time they entered. Loitering in change rooms or toilets for a prurient purpose has been and may be offensive conduct but even if the purpose of such loitering is specifically to look at under age children, that does not convert that behaviour to some sort of act of child pornography.

19 The legislation seems to me to be quite clear. It defines child pornography as being, relevantly, any material that depicts, in a manner that would cause offence to reasonable persons, a person under or apparently under the age of 16 in a sexual context. It is the material itself that has to be (a) offensive and (b) in a sexual context, not how it came into being. It is well to remember two things. Firstly, the legislation was designed to deal with child pornography. Pornography in general parlance is the explicit depiction of sexual activity intended to stimulate erotic rather than aesthetic feelings. The statutory definition somewhat expands the concept beyond what perhaps would not necessarily be regarded as pornographic. However what at first blush is not pornographic could become so in another context such as by editing or enhancing material or arranging it in association with other material. Secondly, whether material is in a sexual context has to be preceded by a depiction of that material in a manner that would cause offence to reasonable persons. Had stills of this material been developed and hung on the defendant’s walls, or edited to concentrate on the persons nudity and genitalia, or enhanced in some way or joined with other material, it could become an offensive depiction in a sexual context, but not, in my view, as it presently is.

20 The fact that the legislature thought fit to pass legislation specifically aimed at such behaviour reinforces the view that all such material will not necessarily come with the definition of child pornography but because the behaviour itself is deserving of condemnation a separate offence regime has been created. (see Crimes Act (NSW) Division 15B VOYEURISM AND RELATED OFFENCES - 1 Jan 2009).

21 The appeal is upheld on the grounds that the material is not child pornography as defined in that it would not cause offence to reasonable persons and does not depict persons in a sexual context. The conviction is set aside.

19/06/2009	-	s81H was referred to. Should be s91H instead - Paragraph(s) 6
19/06/2009	-	NSWCCA 36 should read NSWCCA 86 - Paragraph(s) 5