Director of Public Prosecutions v Timothy Patterson

[2018] NSWLC 18

Local Court

New South Wales

Medium Neutral Citation:	DPP v Timothy Patterson [2018] NSWLC 18
Hearing dates:	19, 20 & 21 March 2018
Decision date:	29 March 2018
Jurisdiction:	Criminal
Before:	Magistrate Farnan
Decision:	Offences proved
Catchwords:	CRIMINAL LAW - filming person in private act without consent - using carriage service to transmit material that was offensive - word on word allegations
Legislation Cited:	Crimes Act 1900 (NSW) s 91K Criminal Code Act 1995 (Cth) ss 473.4, 474.17
Cases Cited:	Ball v McIntyre (1966) 9 FLR 237 DPP v Osborn [2013] NSWLC 22 Monis v R; Droudis v R [2011] NSWCCA 231
Category:	Principal judgment
Parties:	NSW Director of Public Prosecutions (prosecution) Timothy Patterson (defendant)
Representation:	Ms Cartwright, for the prosecution Mr Boe, for the defendant
File Number(s):	2017/268673
Publication restriction:	NON PUBLICATION ORDER for name of complainant and the police command and location at which she and the witnesses worked

Judgment

1. Timothy Patterson is before the court facing three allegations of filming a person in a private act without consent to filming for sexual gratification contrary to section 91K of the Crimes Act 1900 (NSW), and one allegation of using a carriage service to transmit material that was offensive contrary to section 474.17 of the Criminal Code Act 1995 (Cth).

2. Sequences 1 and 3 relate to 10 second films of consensual sexual intercourse between himself and the complainant which he transmitted to a Snapchat group via the Snapchat application on his phone.

3. Sequence 2 is an allegation of using a carriage service in a way a reasonable person would regard as offensive in all the circumstances. That relates to the communication of the two Snapchat films.

4. Sequence 4 relates to filming the complainant in a private act without consent for sexual gratification, which relates to filming on the complainant’s phone of her engaging in fellatio with him. That film was not communicated to anyone else.

5. The defendant has admitted each occasion of filming and that the act was a private act. For the purposes of each section 91K offence I need to be satisfied that the purpose of filming was to obtain sexual arousal or gratification for himself, and/or to enable another person to obtain sexual arousal or gratification, and that the complainant did not consent to filming for that purpose, and that he knew she did not consent for that purpose.

6. Mr Boe for the defendant has submitted that the prosecution case does not establish that the filming in respect of sequences 1 and 3 was for sexual arousal or gratification, and in respect of sequence 4 does not establish lack of consent, or no reasonable belief of consent, to filming. In respect of sequence 2 it is submitted that the prosecution has not proved that the use of the carriage service was offensive in all the circumstances.

7. These are criminal proceedings and the onus is on the prosecution to prove each element of each offence to my satisfaction beyond a reasonable doubt. There is no onus upon the accused to prove anything.

8. The prosecutor submits that even on the accused’s account I could find sequences one, two, and three proved but that if I do not accept the complainant’s account beyond a reasonable doubt I would find him not guilty of sequence four.

9. The question is whether on the evidence I have heard I am satisfied beyond reasonable doubt that this defendant has committed the offences which are charged before me, not whether he has done something morally reprehensible.

Background and matters not in dispute

10. On the night of 20 July 2017 a group of police officers including the defendant and the complainant attended a work social function at the Harborview Hotel in The Rocks. Both consumed alcohol there, left together, and ultimately went to his hotel room at about 10.45 p.m. They had consensual intercourse. While that was occurring the defendant recorded two explicit 10 second videos which he sent immediately to 8 male colleagues who were members of a Snapchat group called “No Snitches”. The complainant did not know he was using Snapchat. She went home after he left to meet up with colleagues who were still in the city at about midnight. Some of those colleagues included members of the “No Snitches” group, who had also been at the work function earlier in the night.

11. On 31 July 2017 the complainant was at work when she was told by a female colleague that a video of herself having intercourse with the defendant had been shared with other male officers. She made an immediate complaint to a senior officer.

12. Investigating police were able to recover a video from the deleted items on the complainant’s phone which showed her in an intimate act with the defendant for about 13 seconds. No video was recovered from the defendant’s phone.

13. The complainant says she did not agree to being filmed at all. The defendant says that she did. He does not dispute that she did not consent to those videos being shared with other people. He does not dispute that he did not tell her he was filming using Snapchat.

14. It is acknowledged that his behaviour in doing that without her knowledge or consent is morally to be condemned. New technologies have made it possible for anyone with a smartphone to share material like this quickly and easily. The abuse of these technologies has resulted in the criminal law having to catch up with behaviour that was just not possible even relatively recently. Since the date of these alleged offences new offences have been created that would now make sharing such images without consent clearly illegal without any question.

15. All of the members of the Snapchat group agreed that either no other material of this nature had ever been shared within that group before, or that they could not recall that happening. The group was said to be generally used to share things like pictures of cars, and work related chat.

16. The witnesses Ibrahim Soliman, Juan Galindo and James Patrick were members of the group, all attended the function, and all saw the Snapchat videos quite soon after they were sent. Michael Tiliacos was not a member of the group, but was shown the video by James Patrick when he received it, while walking along George Street in the city. He was told who was in it. His response was to say to James Patrick “Bro what the fuck’s this, you’re watching porno”. Another colleague described him as being “disgusted”. Catlin Billingham attended the function, she was not a member of the group but she saw the videos while standing next to Soliman and Galindo. She heard Galindo say something like “It’s fucked, hey?”.

17. Of the other members of the group, Brett Lamming, Michael Bell, Billy Reddy and Shane Drew received them the next day and watched them. Shane Drew knew the complainant and said he could identify her from what he saw. He also said her eyes were open. No one else said they saw that. Danny Eid denied having seen the videos.

18. The following day the defendant sent out messages to the group asking them not to pass on or tell anyone about the videos. By, at the latest, 27 July, when he was working with other witnesses in Location X, he was aware that people outside the group had seen the videos. He sent a message that day (Exhibit 19) to James Patrick which suggested he believed that Catlin Billingham had a copy of the footage, and that there was a “leak” in the group. Other witnesses were clearly aware of the existence of the footage and the identity of the woman involved either on the night or in the next few days.

19. The witnesses had varied understandings of the way in which Snapchat works, which may or may not have been correct. The following propositions appeared to be commonly accepted by most witnesses:

• At the time of this incident a video sent via Snapchat went for a maximum of 10 seconds.

• Once viewed, the viewer would have a few seconds to tap the video again in order to view it again, but apart from that facility the video would then disappear from the recipient’s device.

• It was not possible for the recipient to record it without other software or apps.

• If not viewed, the video would remain on the user’s device for a period which some witnesses understood to be 24 hours.

• A video recorded using Snapchat could be saved on the recording device, but that did not happen automatically.

• There is no evidence either of the Snapchat videos was saved by anyone.

Factual issues for determination

20. The first issue is whether I am satisfied beyond a reasonable doubt that the complainant did not consent to filming on the defendant’s phone using Snapchat (sequence 1 and 3) and that the defendant knew that she did not.

21. Secondly, if I find the defendant knew the complainant did not consent, then I need to determine whether I am satisfied beyond a reasonable doubt that the filming in sequences 1 and 3 was for the purpose of the defendant’s own or another person’s sexual arousal or gratification.

22. Thirdly, for sequence 2, I also need to determine whether what was sent via Snapchat was offensive in all the circumstances. The complainant’s consent to filming is irrelevant to that count.

23. Fourthly, am I satisfied beyond a reasonable doubt that the complainant did not consent to the filming on her phone (sequence 4).

24. Fifthly, if I am satisfied of the absence of consent in relation to sequence 4, am I satisfied beyond a reasonable doubt that the defendant did not make an honest and reasonable mistake of fact that is, that notwithstanding that she did not consent, he believed that she did.

The evidence

25. I do not have a transcript of the evidence given on 20 and 21 March 2018 and this summary is therefore taken from my notes.

26. The complainant said that when they got to the hotel room she put her bag on the chair next to the bed, set the alarm on her phone so she could get the last train home, and put the phone on the top of her bag. None of that is disputed.

27. Both the complainant and the defendant give an account of sexual intercourse starting with the complainant sitting on the side of the bed and the defendant standing in front of her. That is the location from which the video found on the complainant’s phone depicting fellatio was clearly taken. The defendant denies that he filmed that first interaction at all.

28. Both agree that they went from that position to ultimately having intercourse with the complainant lying on her back and the defendant standing at the foot of the bed. There was a second occasion of fellatio which the defendant says in the one he filmed. The complainant said that second occasion took place at the foot of the bed. The defendant suggested they were at the side of the bed. Both agree that ultimately they then had intercourse at the foot of the bed with the complainant again on her back and then on her hands and knees.

29. Exhibit 4 includes photographs taken by police of the hotel room, which support the account that there was a chair next to a small table beside the bed similar to that depicted in the video taken from the complainant’s phone, which I have viewed.

30. The complainant described sitting on the side of the bed and starting to perform oral sex on the defendant about a metre away from the chair where she had left her phone. She said “I felt him brush the hair from the side of my face a couple of times, he was holding me behind my head”. She described having her eyes closed. That action is depicted on the video.

31. She said “I looked up to see he had a phone in his hand, holding it like normal with his thumb on the screen”. She described the phone as black and said she could see the top half of the back, and that she could see his thumb moving on the front but couldn’t tell what he was doing. She said something like “What are you doing put your phone away” and said she thought it was a bit strange and that she didn’t even think he was filming, but that maybe he was texting the guys he was with. She denied that the accused said anything about filming or asked if he could film. She described him putting the phone down on the table the TV was on, which is at the foot of the bed. She denied seeing him at any point holding her phone. Clearly at some point he was.

32. The accused said that he did not have his phone out at all at that time. He said the video he took on her phone happened later.

33. The complainant described the sexual activity moving to intercourse in the missionary position. She said “I don’t know how it changed from there to the foot of the bed, but when we got to the foot I started performing oral sex again. She said after that she was lying down and he was standing. She said after that “I was on all fours facing the head of the bed with him behind me having intercourse”. She said he asked her to do anal sex and she said “I don’t do that” and that he asked two times least. She agreed in cross-examination that after she refused he did not make any effort to have anal intercourse. She described herself as lying on the bed after the intercourse finished still dizzy from alcohol.

34. She denied seeing a phone during intercourse at any time other than the first occasion described.

35. Two days later she was using her phone to look for a photo and says she found a video of herself performing oral sex on the accused. She described herself as being quite upset. She deleted it. That video was later able to be recovered by police (Exhibit 3).

36. She tried to look him up on Facebook to confront him about what that was about but said “I couldn’t find him in my list anymore”. The two had been Facebook friends since they met some time before in Goulburn. A few days after finding the video she said she had a friend find him on Facebook. After she was tagged by a mutual friend and his name did not come up in bold she realised that she may have been blocked by him.

37. The accused does not dispute that he blocked her on Facebook. He did not say why he did that.

38. On 31 July female officers told the complainant that other male police had seen images of her having sex with the defendant. She did not tell them of seeing a recording on her own phone of a similar kind. When that was put to her in cross examination she said “I wasn’t thinking of the recording on my phone, I was thinking of the embarrassment”. The evidence is that she was crying and very upset at the time. She denied forgetting about it, or making a conscious decision not to mention it. I infer that she did mention it in her statement a few days later.

39. That statement was made on 2 August 2017. The complainant agreed that in that statement she said that she made it clear to the defendant that she did not want to be recorded. She agreed that she made that statement and signed that statement knowing it to be incorrect, accepting as she did now that her evidence was not that she made clear to the defendant that she didn’t want to be recorded, but rather that there had been no discussion of that subject at all. Neither of her statements is in evidence. It appears that she corrected that account in a later statement.

40. The defence case, including that the defendant’s phone had a red and white cover, was put to the complainant. She said “the only phone I saw in his hand was a black one”. It was put to her that she was filmed for 3 minutes and 43 seconds on his phone and she denied that. She also denied being asked for consent to film.

41. The defendant gave evidence of recording the complainant after asking “Do you mind if I film us” and being told “I don’t care, do what you want.” He said that happened after she was lying on her back with him standing in front having intercourse. He said he filmed on his phone for 3 minutes and 43 seconds using the normal video function on his phone camera. He said he saw that video on his phone the next morning, played it for three or four seconds, then deleted it and also deleted it from the deleted items box as well. He said he was still in bed at the Hilton when he did that, and that he permanently deleted the video out of habit.

42. After that filming he said their position changed and he said “do you mind giving me a blow job” after which she handed him her phone. That is when he says he filmed the video that was found on the complainant’s phone. Implicit in his account is that they moved to the side of the bed, given that is clearly where the video found on her phone was filmed.

43. The purpose of recording on the complainant’s phone was, he said, “I had a recording on my phone, I asked if I could take one on hers, I knew she didn’t have a boyfriend and it was for her to keep for her enjoyment”.

44. He says that the Snapchat videos occurred after they had been in bed for 15 or 20 minutes, that they recommenced penile/vaginal intercourse, and he asked if he could film and she said yes. She denies that happened at all.

45. He agreed that he did not seek any consent to distribute but nevertheless after taking the first video he pressed the send button to the group “No Snitches”. He said “I wanted to send it to 3 particular people in the group”.

46. They then changed positions and he took the second video on Snapchat and sent it to the group as well.

47. In relation to his purpose in using Snapchat he said “It was to boast to the guys I was having sex and they weren’t”. He claimed that in Snapchat he made sure that the video was only from the neck down, and at an angle, so no one could be identified. He agreed however that he did not look before he sent it and that that could have been done.

48. The next day he had a conversation with James Patrick who asked him who was in the video, and he told him that it was the complainant.

49. He described sending messages to the group the next day saying something like “Boys it goes without saying don’t send the video on or show anyone, I don’t want any rumours to start or work to be involved”. There were further messages the next day, in particular, of people asking who the woman was.

50. He described being shocked to discover a female colleague Catlin (Billingham) had seen the video a few days later when they were working in Location X together and he wanted to know how she had found out. Her evidence is that he was angry, and wanted to know who had told her. He denied being angry.

51. After the complaint had been made and was being investigated he says he told Detective Foster that there was a video on his phone that he wanted it to be located because it would show that the complainant consented to being videoed. I declined to allow a case in reply in respect of that evidence, which was not put to Detective Foster. His statement making no reference to such a conversation was tendered without objection. It was certainly not disputed that the accused when first confronted with the allegations, after being cautioned, did say that there had been a video on his phone, and that he had deleted it. He did not say that he wanted police to find it because it would help his case. Generally speaking he exercised his right to silence. No adverse inference can be drawn from that, however what he did say is available to the prosecution in proving its case.

52. It was put to the accused that he took only short videos, so that he could hide the use of his phone from the complainant. He denied taking them for sexual pleasure. He denied that sending the videos to his friends increased his sexual arousal, and disagreed that boasting to his mates was arousing. He said that he took the 3 minute and 43 second video because the complainant agreed, and it was exciting and they both agreed. He did not accept that finding it exciting was for sexual arousal.

Issue one: Did the complainant consent to filming by the defendant using Snapchat?

53. Even if I am satisfied that the conversations as alleged by the defendant occurred I do not consider that they would amount to consent to the use of Snapchat to film for any purpose. That app has a particular purpose of sharing short videos with other people. Consent as a general proposition in criminal law requires that the giver of consent is informed about what they are consenting to. There is no suggestion in the evidence that the complainant was asked to consent to filming using Snapchat. Given the intimate nature of this act, such consent would need to be clear and unequivocal. I find that she did not consent to it. The defendant knew that she did not consent to being filmed using an app that created short videos for transmission to other people. He accepts that himself in his evidence.

Issue two: Was the Snapchat filming for the purpose of sexual arousal or gratification?

54. The defendant says that in respect of the Snapchat videos his purpose was merely to boast about the fact he was having sex to the persons in the Snapchat group, and not to enable himself or any of them to obtain sexual arousal or gratification.

55. As boasting is not a prohibited purpose, the question of consent for that purpose does not arise.

56. The accused himself was not depicted in any way that could identify him in the videos. He relied on inferences drawn by the recipients of the videos from his Snapchat account as to who the man in them was. If his sole purpose was to boast one might wonder why it was necessary to show the activity in sufficient detail in the video for some recipients to be able to identify the woman involved, rather than him. The explicit detail described by various witnesses is also inconsistent with being only for the purpose of boasting.

57. On behalf of the accused (at Para 21) it is submitted that in considering the purpose of the footage I need to take into account that it was very brief, non-permanent, reasonably believed to be non-identifying, and of limited explicitness. I accepted the footage was very brief and non-permanent (in this case). On the evidence I have heard, I do not accept that the accused reasonably believed it to be non-identifying. There is evidence the complainant was recognised. On his own account he readily told others who the woman was the next day. He had left the function with her. She worked with some of the recipients, who had also been at the function. Clearly she could be identified by the surrounding circumstances, if not from the video. The submission that it was of limited explicitness relies on accepting the evidence of some of the independent witnesses over others as to what they saw. Witnesses Bell, Tiliacos, Lamming, Galindo and Drew say they saw what can only be described as intimate detail. I have no hesitation in finding beyond a reasonable doubt that the Snapchat videos were explicit depictions of sexual intercourse.

58. The only decision to which I was referred on the question of the meaning of the term “Sexual gratification” also involved a police officer filming himself having sex with women and claiming that he did it to boast to his mates (DPP v Osborn [2013] NSWLC 22). Magistrate Wahlquist found that a wide interpretation should be given to the phrase “sexual gratification” (at [17]). That was not a case involving sharing of images at the same time as the sexual intercourse was taking place, however her Honour found that the defendant’s desire in that case to have his workmates see him as sexually active and able to attract women did amount to sexual gratification, even though the defendant referred to it as boasting. I agree with her Honour’s interpretation of the term. On that interpretation even boasting about sexual activity is capable of amounting to sexual gratification.

59. However, I do not accept the accused’s evidence that his purpose in sending the video was not for himself or the members of the group to obtain sexual arousal or gratification.

60. The fact of his sending the videos to eight other men while in the act of intercourse, of itself suggests that he was obtaining sexual gratification from doing that. The videos as described depicted explicit detail of the act of penile/vaginal intercourse in two different positions. At the same time as that intercourse was occurring he was using the phone to send video of it, in almost real-time, to the group of men. He had been socialising with a group including some of them less than an hour earlier. He met up with some of them later that night. His claim that his sole purpose in doing that was to boast is inherently improbable. He admitted in his evidence that he found filming himself in sexual activity exciting, although not sexually arousing, in respect of the longer video he says he took. I consider an easily available inference is that he was sexually excited or gratified by knowing that other men would observe that act as well, and that that was his purpose in taking the Snapchat films. I do not accept his evidence to the contrary.

61. It is sufficient that one of the purposes of the filming was to obtain sexual gratification or arousal himself. The prosecutor submits that I would also find that his purpose was to allow other members of the group to obtain sexual arousal or gratification, even if only fleetingly. Whilst there is no evidence of any member of the group obtaining such sexual arousal or gratification, that is not what is required to be proved.

62. These videos, albeit very short, contain explicit displays of sexual activity. Traditionally, men have used material of this nature to obtain sexual arousal or excitement. One of the witnesses described what he saw as “porno”.

63. I find beyond a reasonable doubt that the only reasonable inference in relation to the transmission of the images by Snapchat was that the accused himself obtained sexual arousal from doing that. His desire to share those images with his three identified mates was so that they could also possibly obtain sexual arousal or gratification from seeing it. I also find that he obtained sexual gratification from having his friends see him having intercourse and from boasting to them about that, which itself gave him sexual gratification.

Issue 4: Were the Snapchat videos offensive in all the circumstances?

64. Section 473.4 of the Criminal Code Act applies in determining whether material is offensive:

(1) The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) the literary, artistic or educational merit (if any) of the material; and

(c) the general character of the material (including whether it is of a medical, legal or scientific character).

65. There is no suggestion this material has any literary, artistic or educational merit, nor that it is of a medical, legal or scientific character. The only issue is whether it breaches the standards of morality, decency and propriety generally accepted by reasonable adults.

66. I am referred to the decision in Monis v R; Droudis v R [2011] NSWCCA 231 in relation to the sending of items by post, where in the Court of Criminal Appeal the provision was said to require per Bathurst CJ:

“the use be calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all circumstances. However, it is not sufficient if the use would only hurt or wound the feelings of the recipient. I accept that the word offensive in the Commonwealth Criminal Code Act is required to be given a narrow meaning. The Act creates criminal offences, and is not directed to things that are merely calculated or likely to cause hurt or injury to feelings. The hypothetical reasonable person has been said to be “reasonably tolerant and understanding, and reasonably contemporary in his reactions” (Ball v McIntyre (1966) 9FLR 237 per Kerr J)”.

67. For the purpose of this decision I consider that I am required to consider the mind of a person who knows of the communication and the circumstances, but is not personally affected by it. That is, it is not the view of the complainant or the recipient that matters, but rather of the hypothetical reasonable person. According to current standards of morality, decency and propriety accepted by reasonable adults is a man sending short sexually explicit videos of himself and a woman to eight of their male colleagues without her knowledge or consent an offensive use of an internet service?

68. The prosecution relies on recklessness in relation to offensiveness. In order to find the offence proved on the basis of recklessness I need to be satisfied beyond a reasonable doubt that the defendant was aware of the possibility that the material might be offensive but went ahead and shared it anyway.

69. The defendant was a member of this particular Snapchat group which he knew, on the evidence I have heard, had not previously been used for the transmission of videos of this nature. He was aware when he sent the films that notifications would appear on the recipients’ phones, and that the video would play when tapped. He was aware that some of those recipients were still out and about in the city. In fact, witnesses Patrick, Galindo and Soliman received the videos in George Street and in licensed premises. One of them was able to be seen by the witness Catlin Billingham over the shoulder of another witness. There was nothing accompanying the videos to suggest that any discretion should be exercised in their viewing by members of the group, as could have happened had there been any accompanying text.

70. The prosecution relies in part on the defendant’s actions the following day in saying “It goes without saying that the videos should not be shared”. Something that “goes without saying” is something to which the defendant has clearly turned his mind as a possibility, and I infer had turned his mind before he sent the videos. If this material was not offensive, it is difficult to see what other reason he might have had for not wanting others to know about it.

71. The defendant’s evidence in relation to the possibility that the videos could be offensive was particularly unpersuasive. He denied that anyone might find the videos offensive, shocking or disgusting. He denied that he was concerned about it getting out because it was offensive. He said “I said don’t show other people because that’s just how I phrased it”.

72. He denied that he knew that any of the recipients in the group knew the complainant even though he knew some of them worked at the particular police command at which she worked. He denied knowing there was any chance that people could recognise her. He did not agree that the sexual acts depicted were explicit. I do not accept that evidence. When it was put to him that the video of fellatio was explicit he said “I wouldn’t use that phrase”. Having seen that video played in closed court it is a word that seems entirely appropriate.

73. Ultimately he did agree in cross examination that those messages were sent specifically in relation to this content because he knew it was explicit, but he denied that it was because he knew it was offensive. He agreed that it was because it might give rise to a complaint, but again disagreed that that was because it was offensive.

74. Mr Boe submits that:

“the accused’s conduct cannot fairly or reasonably be described, at the time the conduct was committed, as likely to cause or arouse, let alone calculated to cause, reactions of a sufficiently serious nature, namely significant anger, significant resentment, or outrage or disgust or hatred, on the part of a reasonable person applying the standards of morality, decency and propriety generally accepted by reasonable adults having regard to all circumstances” (at 49).

75. I consider that the phrase “all of the circumstances” must include the circumstance that the accused knew that the recipients, or at least some of the recipients, of the Snapchat videos would be able to identify the female in the video whether by the content of the video, or by the surrounding circumstance of he having left the function with her a short time earlier.

76. The use of Snapchat to transmit explicit sexual material to a group of people, who have not specifically consented to the receipt of such material, is of itself capable of being sufficiently offensive to justify criminal sanction in my view. To do so without any warning of the nature of the material is particularly so. Although not determinative, that is reflected by the reactions of some recipients who were in the presence of other people at the time. Soliman gave evidence of trying to scroll through the notifications very quickly by double tapping them so that no one else would see them. I consider the only available inference is that he regarded them as offensive and he thought other people would too. That is a response that would be properly accepted as that of a hypothetical reasonable person. That others, or the accused, may not share that view is irrelevant. The videos may not have been calculated or intended to offend, but they were clearly likely to offend. The defendant knew that and went ahead anyway. The law generally restricts the distribution of such material to consenting adults. That is because in the general community it is regarded as offensive in the public domain.

77. I find the accused was aware that sending this material was likely to be offensive but that he went ahead and sent it via Snapchat not caring whether his act in doing that was offensive or not.

Issue four: Has the prosecution proved the complainant did not consent to filming on her phone.

78. The two accounts of the facts are so inconsistent that there is really no room for error or mistake except as to matters of minor detail. It is not a matter of whose account I consider to be more likely to be true. Only if I find beyond a reasonable doubt that the complainant is telling the truth and that the defendant is not can I find that she did not consent to filming at all, and in particular to filming on her phone. There is no issue that that filming was for the purpose of sexual gratification.

79. The complainant is the only witness who gives evidence of her lack of consent to filming. I am required in those circumstances to scrutinise her evidence with care. Although there was an immediate complaint once she became aware of the use of Snapchat to distribute the videos, that is equally consistent with having been made as a result of the distribution without consent, rather than with filming without consent.

80. They were both at least somewhat intoxicated. That may account for some of the differences in the detail of what is alleged to have happened. The defendant’s account is that he on at least three occasions asked the complainant if he could film her. She denies that happened at all.

81. The 3 minute 43 second video the defendant says he took is inconsistent with lack of consent. If I accept that the defendant took a video of that length then I would not accept that the complainant did not consent to it, as that is far too long to have been done surreptitiously with the phone in his hand. There is no independent evidence of that video’s existence. Subject to an argument I deal with shortly, the first time it was raised was in cross-examination of the complainant. She denied it happened.

82. I must take into account the complainant’s own admitted inconsistent first statement to police about the issue of how that lack of consent was communicated. In court and in her second statement she essentially said that the issue of filming was never raised. In her first statement to police she told them that she had made clear to the accused she did not want to be filmed.

83. The complainant impressed me as appearing to be generally a witness of truth. She made concessions where appropriate, and generally speaking there was consistency in her actions with the allegations. Her account of finding the video on her phone, deleting the video and attempting to contact the defendant on Facebook only to discover herself blocked was consistent with what she said happened.

84. The inconsistency between her initial police statement and her evidence in court was readily accepted by her in cross-examination, even though the first account that she made clear to him that she did not want him to film her is objectively consistent with her account that when she did see him with a phone she told him to put it away.

85. On the complainant’s account, the video which is the subject of sequence 4 must have been taken when she was sitting on the side of the bed engaging in fellatio with the accused the first time. On her account that only happened there once. From what is visible in the background of that video clearly that evidence as to where it was taken is correct, and to the extent that the accused initially gave evidence suggesting the filmed fellatio occurred at the foot of the bed it is inconsistent with the video recording. The recording is very short, and the complainant’s face is clearly visible in it with her eyes closed.

86. The complainant says that when she saw the phone in the accused’s hand, the phone was black. She says that her phone was pink. He says that his phone had a predominantly red case on it with an emblem of the Arsenal football club on the back. When his phone was seized by police on 3 August it is described as having a black case.

87. It was suggested to the accused in cross-examination that he had picked up the complainant’s phone in error. He disagreed. I do note he says that his phone was an iphone 7+ and her phone was an iphone 7. I consider it unlikely that he would have picked up her phone by mistake. Even if his phone was black on the night, the complainant’s was pink. I do not accept that that is even a reasonable possibility. However her phone was certainly in a position where he could easily reach it from his position at the side of the bed as shown in the video. It was right beside where he was standing.

88. It was submitted by Mr Boe that there is an inherent difficulty in accessing and using the complainant’s camera function on the phone without her cooperation. She gave evidence that the camera is available by swiping up from the bottom of the screen without needing to use any security code. The accused gave evidence that on his phone those features are accessed by swiping to the left. The phones are both iPhones. I would not accept that the accused would have been in any way inhibited from using the camera on the complainant’s phone. He knew that he could use his own iPhone camera without it having to be unlocked. Clearly he had some facility in manipulating his phone, given that he managed to take Snapchat video and send it to the group while in the act of having intercourse.

89. It was suggested to the accused that the reason he was so concerned about a “leak” in the group, during the conversation in Location X, was because he knew that the complainant had not consented to the videos. He said that was not correct, even though he knew she had not consented to the use of Snapchat. He said it was because he did not want her to be embarrassed by it. I do not accept that evidence. This was at a point where he had blocked her on Facebook, and had not attempted to contact her himself even though he knew that other female police were aware of the videos. His explanation defies logic.

90. The accused gave an account of having told Detective Foster that he had filmed only with the complainant’s consent, and that he had a video on his phone that he had deleted. He did not tell Detective Foster that he had filmed on the complainant’s phone, which on his account he clearly knew was the case. By the time of that conversation the defendant knew that an internal complaint had been made. He did not know what the complainant had told investigating police. He also did not tell Detective Foster or other investigating police that he had used Snapchat to film the complainant, even though he knew that he had. He was asked a particular question about whether he used his phone to film the activity or whether he used Snapchat, and he said “I took the video on my phone and I’ve deleted it”.

91. On his behalf it is submitted that what he told police about this video could not have been a reference to any of the recordings that are particularised in the prosecution case. That is true. It does not make what he told the police true. He knew he had taken those other videos, yet he failed to mention them at all. He knew that other people knew about them. His evidence was that he had deleted the video from his phone, and also from the deleted items folder. As a result, the existence of any such video could not be independently verified. The asserted length of that video is clearly inconsistent with having been taken without the consent of the complainant, unlike the videos which are able to be independently verified, which are all extremely short.

78. It does not help the defendant’s credit in relation to this alleged video that he mentioned something that could have been it to Detective Foster, while at the same time failing to mention both of the recordings that were already known to police when asked a direct question about them. I do not accept that he told Detective Foster that he wanted police to recover it because it would assist him. This was a Professional Standards investigation. Investigating police, noting the accused exercising his right to silence, took notes of what he did say. Those notes are in evidence. I do not accept that that the asserted conversation with Detective Foster, given by the defendant for the first time in his evidence, actually occurred.

79. In relation to sequence 4 the accused submits that his reason for filming the activity on the complainant’s phone was that he knew she was single and he thought she could use it later for her enjoyment. I regard that explanation as extremely improbable, and I do not accept it. The video only went for 13 seconds, consistent with having been taken surreptitiously rather than consensually. He does not suggest that she had asked him to film the activity, but on his own version says that he asked her if he could film it. His own evidence as to her response was not a response inviting him to use her phone to film the activity so that she would have a copy of it, but rather that he did that out of something approaching generosity towards her. That asserted motive is so inconsistent with his other behaviour towards the complainant that night and in the following days that I cannot accept it.

80. The impression given to me by the defendant in the witness box was that he was tailoring the answers that he gave to questions to avoid admitting anything that might give rise to criminal liability. That was clearly the case in relation to his refusal initially to admit that these videos were explicit, a fact that he ultimately accepted, and his ongoing denial that he knew there was a risk people might find them offensive.

81. The difficulties with the defendant’s evidence lead me to find that his evidence overall is either unreliable or wrong. I do not accept his evidence that he asked for the complainant’s consent to film at all. I do not accept he took a longer video on his own phone that he deleted the next morning. I do not accept that she handed him her phone for the purpose of filming.

82. Of course, there is no onus on the accused to prove anything and even rejecting his evidence I must still consider whether the complainant’s evidence can be accepted beyond a reasonable doubt.

83. I accept the complainant’s evidence that the first act of fellatio was the only one that took place at the side of the bed. That was what was filmed. I accept the complainant’s evidence that the defendant did not ask her if he could film it, even giving full weight to the accepted inconsistency in her first statement to investigating police. I consider her evidence that she told the defendant to put the phone away as amounting to the same thing as making clear she did not want to be filmed. There remains a question mark over her evidence about seeing a black phone. That may or may not have occurred. She may have been mistaken due to her intoxication. That unexplained issue does not lead me to have a doubt about her evidence that she did not know their activity was being filmed. With the exception of those two matters in my view the complainant’s evidence was unshaken and compelling.

84. The video is extremely short, it is graphic, it was taken very close to where the phone had been put. From his admitted actions the defendant clearly enjoyed filming himself in acts of intercourse. There is no evidence apart from that of the accused, which I have rejected, to support the case that the complainant did consent to filming.

85. I find that the complainant did not consent to being filmed on her phone and that the defendant did it without her knowledge or consent during the first act of fellatio as described by her.

Issue 5: Has the prosecution proved that the defendant did not have an honest and reasonable but mistaken belief that the complainant consented to filming?

100. In respect of sequence 4 it is submitted that a question of honest and reasonable mistake of fact arises. Where such an issue does arise, the onus is on the prosecution to prove beyond a reasonable doubt that an accused was not operating under an honest and reasonable but mistaken belief which would have made his conduct innocent.

101. There is nothing illegal about consenting adults filming intimate activity. However, it was not suggested to the complainant nor put explicitly in submissions that casual sexual relationships between consenting adults have got to the point where a person observing the other party to an act of sexual intercourse holding a phone should assume they are filming it. Both the accused and the complainant had iPhones, and the evidence is clear, if evidence be needed, that such phones can be used for a multitude of purposes.

102. I do not accept that the issue of honest and reasonable mistake even arises on the evidence. The only circumstance in which that issue could arise is if I do not accept that the complainant verbally consented to filming, as the defendant says she did, do not accept the complainant’s account that she told him to put the phone down, as she says she did, but find there is a possibility that the accused knew that the complainant had seen the phone and honestly and reasonably but mistakenly believed that she consented to being filmed. That is not what either of them says happened. There is no evidence on which such a finding could be open. I do not accept that honest and reasonable mistake arises at all.

103. I find the accused did not ask for the complainant’s consent to any of the filming. He did not mistakenly believe that she had consented. He filmed her for the purpose of his own or her sexual gratification. His sending the Snapchat videos to the group was an offensive use of the carriage service. I find all four offences proved.

C Farnan LCM

29 March 2018

Downing Centre Local Court

**********

Decision last updated: 26 July 2019