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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Annetts v DPP (No2)

Details

AGLC: Annetts v Director of Public Prosecutions (No2) [2009] NSWDC 139
Case: [2009] NSWDC 139
Decision Date: 19 June 2009

CaseChat Overview and Summary

The matter before the court involved Annetts, the appellant, against the Director of Public Prosecutions, the respondent. The case revolved around a dispute pertaining to child pornography. Annetts was convicted for possessing images that were considered offensive to the standards of decency and were of a sexual nature. This conviction was challenged on appeal, with Annetts contending that the images in question were not offensive to a reasonable person and lacked a sexual context. The case was heard in the High Court of Australia.

The legal issues before the court were whether the images possessed by Annetts were offensive to the ordinary standards of decency and whether they were of a sexual nature. The court was required to determine whether the images in question warranted the conviction for child pornography. The central question was whether the images possessed an offensive quality and a sexual context that would justify a conviction under the relevant legislation.

The court, in its reasoning, considered the ordinary standards of decency and the nature of the images. It held that the images did not possess an offensive quality and were not of a sexual nature. The court found that a reasonable person would not find the images to be offensive and that they did not depict a sexual context. As a result, the court concluded that the images did not meet the criteria for child pornography under the legislation. Consequently, the appeal was upheld, the conviction was set aside, and Annetts was acquitted of the offence.

In light of the above, the court ordered that the appeal be upheld, the conviction be set aside, and Annetts be acquitted of the offence of possessing child pornography. This decision underscores the importance of evaluating the images in question against the ordinary standards of decency and determining whether they possess an offensive quality and a sexual context before a conviction can be justified under the relevant legislation.

Orders

Orders of the court

Appeal upheld. Conviction set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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