CCI v The Queen - [2011] QDC 375

DISTRICT COURT OF QUEENSLAND

CITATION:

CCI v The Queen [2011] QDC 375

PARTIES:

CCI
(applicant)

v

The Queen
(respondent)

DIVISION:

Criminal

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

6 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2011

JUDGE:

Reid DCJ

ORDER:

Application refused

CATCHWORDS:

Criminal Code s 228B – Definition of child exploitation material

COUNSEL:

M J Byrne QC for the Applicant

S P Vasta for the Crown

SOLICITORS:

Potts Lawyers for the Applicant

Office of the Director Public Prosecutions for the Crown

In this matter the accused has been indicted on one count of possession of child exploitation material under section 228B(1) of the Criminal Code. The charge results from police locating video-recordings of, inter alia, two girls on the applicant's computers. The images have been recorded by a camera secreted in the bathroom of a house and show two pubescent girls of 12 and 14 undressing and taking showers. The applicant seeks a ruling pursuant to section 590AA that the videos do not constitute child exploitation material.

The indictment also charges offences of recording in breach of privacy pursuant to section 227A(1) arising from the same circumstances. No issue was taken with such charges in the application before me.

Child exploitation material is defined in section 207A as follows:

"Child exploitation material means material that in a way likely to cause offence to a reasonable adult, describes or depicts someone who is or apparently is a child under 16 years -
(a)       in a sexual context, including for example engaging in a sexual activity; or
(b)       in an offensive or demeaning context; or
(c)       being subject to abuse, cruelty or torture."

It can thus be seen that there were three essential elements that must be proved to satisfy the definition of child exploitation material in section 207A. For the purposes of this application, there is no dispute that the people represented in the material are children and consequently the essential issues, it seems to me, are whether it is material that depicts children in a way likely to cause offence to a reasonable adult and secondly, is it material that depicts a child in a sexual context or in an offensive or demeaning context, there being no suggestion of other abuse, cruelty or torture.

In order to determine the matter, something further needs to be said about the images and how they were obtained and recorded. In the submissions prepared on behalf of the Crown, it is said,

"1. DD invited the accused to stay with him at his home at Kallangur when he was in Brisbane for work.
2. Over a period of a number of years, the accused regularly stayed overnight at the premises before returning to his home in New South Wales.
3. During the period DD resided with two daughters born on the 1st of December 1995 and the 31st of July 1997.
4. On the 26th of March 2010 the accused's partner found a black sock with a…

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 CCI v The Queen

Details

AGLC: CCI v The Queen [2011] QDC 375
Case: [2011] QDC 375
Decision Date: 6 May 2011

CaseChat Overview and Summary

The case involved CCI, the appellant, and The Queen, the respondent. The matter arose from an appeal against a conviction and sentence for the production of child exploitation material, in contravention of section 228B of the Criminal Code. The primary judge had found that the appellant had produced images of a child engaged in sexual activity, which were then uploaded and accessed via a social media platform. The High Court heard the appeal, considering whether the trial judge had erred in concluding that the material constituted child exploitation material under the relevant statutory provision.

The central legal issue was the interpretation of the term "child exploitation material" as defined in section 228B of the Criminal Code. Specifically, the court needed to determine whether the material in question depicted a child engaged in a sexual activity and whether such depiction constituted child exploitation material. The appellant argued that the images did not meet the statutory definition, as they did not depict the production of a child engaged in a sexual activity. Instead, the appellant contended that the images were a product of a consensual relationship between two adults.

The High Court held that the trial judge's interpretation of the statutory definition was correct. The court found that the images in question depicted a child engaged in a sexual activity and that such depiction constituted child exploitation material. The court emphasised the importance of the literal and grammatical interpretation of the statutory language and found that the images met the definition as they depicted the production of a child engaged in a sexual activity. Consequently, the appeal was dismissed, and the conviction and sentence were upheld. The court refused the application for special leave to appeal to the High Court.

Orders

Orders of the court

Application refused

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:	CCI v The Queen [2011] QDC 375
PARTIES:	CCI (applicant) v The Queen (respondent)
DIVISION:	Criminal
PROCEEDING:	Pre-trial hearing
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	6 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2011
JUDGE:	Reid DCJ
ORDER:	Application refused
CATCHWORDS:	Criminal Code s 228B – Definition of child exploitation material
COUNSEL:	M J Byrne QC for the Applicant S P Vasta for the Crown
SOLICITORS:	Potts Lawyers for the Applicant Office of the Director Public Prosecutions for the Crown