DPP v Drummond

[2008] NSWLC 10

Local Court of New South Wales

CITATION:	DPP v Drummond [2008] NSWLC 10
JURISDICTION:	Criminal
PARTIES:	Director of Public Prosecutions (NSW) Robert Ian Drummond
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	06/26/2008
MAGISTRATE:	Magistrate J Huber
CATCHWORDS:	Commit act of indecency towards - produce child pornography
LEGISLATION CITED:	Crimes Act 1900: 61N(1) 61N(2) 91H(2) 91H(3)
CASES CITED:	R v Chonka [2000] NSWCCA 466 R v Francis (1989) 88 Cr App R 127 R v Frederick John Barrass [2005] NSWCCA 131 R v Gillard (1999) 105 A Crim R 479 R v Harkin (1989) 38 A Crim R 296 R v Manson & Stamenkovic (1993) 10 Petty Sessions Review 4533 Regina v Michael John McIntosh (unreported, New South Wales Court of Criminal Appeal 26 September 1994)
TEXTS CITED:
REPRESENTATION:	Crown: Ms M. Cunneen SC of Counsel Accused: Mr P.J. Gow of Counsel
ORDERS:	Charge sequences 1 & 5 dismissed; Charge sequences 3 & 4 proved

1    The Accused, Robert Ian Drummond, has been charged with the following:

· Crimes Act 1900, Section 61N(1): Commit Act of Indecency towards a person under the age of 16 years

That at 4:16pm on 01/05/2007 at Brookvale he did commit an act of indecency towards BG a person then under the age of 16 years, to wit, 14 years of age

· Crimes Act 1900, Section 91H(2): Produce Child Pornography

That he did on the 1st of May 2007 at Warringah Mall Brookvale, did produce child pornography … to wit, 1 video recording of a 14 year old female

· Crimes Act 1900, Section 91H(3): Possess Child Pornography

That he did on the 12th May 2007, at his home … possess child pornography, that being a recording defined under section 91H(1) of the Crimes Act 1900 of a 14 year old female victim taken in a sexual context

· Crimes Act 1900, Section 61N(2): Commit Act of Indecency towards a person over 16 years

That he did between 12:01am on 30/01/2006 and 11:59pm on 30/11/2006 at Manly commit an act of indecency towards HYH a person above the age of 16 years

2 The offences are ones to which Section 259 and Schedule 1 and Schedule 2 of the Criminal Procedure Act 1986 applies. These provisions permit a prosecution for these offences to be dealt with before a District Court or a Local Court. An election to have the matter dealt with on indictment before the District Court lies with either the prosecution or the accused. Where no election is made by either party the matter remains within the jurisdiction of the Local Court. The Criminal Procedure Act provides that the maximum penalty that may be imposed by the Local Court for the section 61N charges is 12 months or a fine of 20 penalty units (s268(2)(b)); with respect to the section 91H charges, the maximum penalty is two years imprisonment or a fine of 100 penalty units (s267(2)&(3)).

3 Pursuant to section 578A of the Crimes Act 1900 a non-publication order was made and continues. Accordingly any reference to the complainants shall be by way of initials: “BG” and “HYH”.

4    The facts are not in dispute. All evidence was tendered either by way of statement, videotape or DVD. No Crown witness was required to give evidence in chief and none was cross-examined. No evidence was tendered on behalf of the Accused. The Accused did not give evidence.

5    On 1 May 2007 at about 4.15pm BG was standing in the check out queue at Priceline Warringah Mall with her mother. She was 14 years old and dressed in school uniform.

6    BG in her statement (ex 1) described the actions of the Accused which led to the Accused being charged with one count of Act of Indecency towards a child and the charges of Produce and Possess Child Pornography :

“ 7. the male that I had seen in the aisle previously with the white bag walked up behind me. He bent down and placed a white carry bag on the ground right next to my right foot. The man was standing really close … He was positioned directly behind me to the right about 30 centimetres away, really close. The front of his body was facing my back.


8. I looked down at the bag and saw a video camera inside. It was a small black camera with a relatively large lens. The camera appeared to be sitting in a box and the box looked like it had been cut out to fit the camera in. … The lens of the camera looked like it was pointed so it could see straight up my skirt.


9. The guy was kneeling down behind me when I looked down into the bag. He made it look like he was looking at a display of bags directly in front of him. He was touching the bags on the display but didn’t appear to be genuinely looking at them. He looked up at me as I was looking down directly into the bag. His eyes opened up really wide, he looked startled and scared. I moved away a bit and grabbed my skirt in an attempt to cover myself, I was really scared. He grabbed hold of the bag with his left hand, turned around, walked behind the rest of the cash registers and out through the front exit. …”

7    On 11 May 2007 police executed a search warrant at the Accused’s home. Amongst items seized was a VHS videotape containing images of BG filmed in the Priceline store.

8    It is clear from the videotape (Exhibit 22) that the images were recorded by a video camera positioned in the manner described by BG in Exhibit 1.

9    The footage shows a female wearing what appears to be a school uniform and white-framed sunglasses. It shows her legs, thighs and underpants covering her buttocks and genital area.

10    As a result of the same search warrant, police seized a DVD that shows images of HYH (Exhibit 23). Up until being shown the DVD by police, HYH had no idea that she had been filmed by the Accused.

11    In HYH’s statement (exhibit 3) she stated that she was able to identify herself from viewing the DVD. Further she was able to estimate by reference to the school uniform and the colour of her I-pod earphone that the images were shot between January and November 2006. HYH turned 16 in May 2006.

12    Exhibit 23 is the basis of the Accused’s second charge of “act of indecency”. There are no accompanying “child pornography” charges.

13    The footage taken at the Manly Council Library shows that the images were recorded using the same method described by BG.

14    The DVD shows a female in school uniform variously kneeling or sitting in front of bookshelves in a library reading/perusing the shelves. The footage follows her for approximately five minutes. The camera appears to be very close to her and is aimed primarily at her buttocks area. From time to time when she moves position the images include side shots of her face. After approximately five minutes, there is a fleeting image of the back of her left thigh above her knee. Until this moment there are no images taken from under or up her clothing.

15    When one views exhibit 23 in conjunction with answers given by the Accused contained in exhibit 21, the irresistible inference is that the Accused had been following HYH in an attempt to film up her dress.

16    Exhibit 21 is the statement of Detective Sergeant Ell who executed the search warrant on the Accused’s residence 11 May 2007. The search warrant procedure was video recorded. Exhibit 21 incorporates a transcription of questions of and answers given by the Accused.

17    Approximately twenty-one minutes into the search of the Accused’s residence, Detective Matenga found two VHS tapes in the laundry basket on a top shelf within the laundry.

18    Exhibit 21 includes the following questions and answers given by the Accused:

8. …Cairnes said, “what can you tell me about that?” Drummond replied, “That has some images on it of filming up skirt, those two.”


11. I said, “How did you do that?” Drummond said, “With a camera?”



17. I said, “Did you have your video camera secreted in anything?” Drummond said, “I did”


18. I said, “What was that?” Drummond said, “A paper bag”


21. I said, “Have you watched those?” Drummond said, “I have”


26. I said, “Describe the area of the body which you filmed.” Drummond said, “The lower part”


27. I said, “How was the camera in the paper bag?” …


28. …Drummond said, “Just facing up”


31. I said, “Am I correct to say that you had the video camera in the paper bag facing up so you could film under ladies (sic) skirts?” Drummond said “correct”


32. I said, “Is that for your sexual gratification?” Drummond said, “It is”


33. I said, “Have you distributed these to anyone?” Drummond said, “no”


34. I said, “Have you shown the to anyone else?” Drummond said, “No”


35. I said, “Have you downloaded these onto the internet?” Drummond said, “No”


37. I said, “Do you receive sexual gratification from making or by watching these?” Drummond said, “Probably by watching them”.


39. Detective Jackson said, “Did you say you had permission from the people you filmed?” Drummond said, “I did not”


40. Detective Jackson said, “So did they have any knowledge they were being filmed?” Drummond said, “They did not.”


42. I said, “How long did it take for you to make both these tapes? Drummond said, “Like I did it periodically”


43. I said, “What do you mean periodically?” Drummond said “one year to two years, over two years.”


45. I said, “And you have been downloading these onto a VHS tape?” Drummond said, “Yes”


113. I said, “Okay for the purposes of propriety I am going to have a look at this camera know (sic)…”


119. I said, “Right, (Viewing camera) – “second female … This appears to be in a library.” Drummond said “At Manly library.”


122. I said, “I think that we have seen enough”


144. I said, “…How often do you masturbate to it?” [ie the material generally] Drummond said: “How often do I masturbate to it? Once a month”

S. 61N Act of Indecency towards a person

(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.


(2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.

19    The Accused by way of both written and oral submissions argued that the Crown has failed to prove two essential elements:

· Firstly that the acts were acts of “indecency”; and

· Secondly that the legal test of “towards” is not is not supported by the facts.

20    In R v Manson & Stamenkovic (1993) 10 Petty Sessions Review 4533 at 4534 Gleeson CJ (with whom Clarke JA and Sully J agreed) summarised the relevant legal principles relating to taking photographs and an “indecent act”:

“The relevant legal principles can be summarised for the present purposes in the following way. (I take this summary from cases such as R v Harkin (1989)38 A Crim R 296, Reg v Court [1989] 1 AC28, Crowe v Graham (1969) 121 CLR 375 and Purves v Inglis (1915) 34 NZLR 1051 at 1053 . Each of those cases, of course, has to be read and understood in the light of the particular problem that arose for consideration.)


An indecent act is one which right-minded persons would consider to be contrary to community standards of decency”.


Gleeson CJ went on to state that:


“If …the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case.”

21    The test is an objective test.

22    Counsel for the Accused conceded that the Accused’s conduct was “offensive” to right minded persons. However it argued that it would not be so offensive to contemporary standards as to be “indecent” within the meaning of the section.

23    Counsel submitted that having regard to R v Harkin [supra] the Court must be satisfied that the Accused intended the images to have a sexual connotation: that is to obtain sexual gratification from it. Counsel argued that the sexual gratification must take place at the time of the act (ie the filming).

24    Madam Crown disagreed with his interpretation of R v Harkin noting that the need for the act to be accompanied by “some intention on the part of the assailant to obtain sexual gratification” (R v Harkin at p.301) is only required if the act alleged is “one which objectively does not unequivocally offer a sexual connotation”(at p. 301).

25    The Crown argued that even if the Court found that the act was equivocal, (which she submits it is not), the Accused by his own admissions contained in Exhibit 21 (see paragraph 17: Q/A 32,37,144 above) committed the act of filming BG and HYH with the “intention of obtaining sexual gratification”.

26    R v Manson & Stamenkovic and R v Harkin were considered and followed in Regina v Michael John McIntosh (unreported, New South Wales Court of Criminal Appeal 26 September 1994). Loveday AJ (with whom Badgery-Parker J and Bruce J agreed) stated at p.2:

To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances…The “surrounding circumstances” include the intention or purpose of the alleged wrongdoer.


…The circumstances of the photographing, … the position of the photographer, the direction the camera was pointed and the purpose of the photographing are all relevant in considering whether or not the photographing was an act of indecency.


…I have no hesitation in concluding that as a matter of law the answers given by the appellant in his interview with the police officer were relevant and admissible as evidence

27    Simply from a viewing of exhibit 22 (tape relating to BG) it is clear that the “act” had a sexual connotation: it is obvious from the footage that it is taken from underneath a female’s dress and shows her underpants covering her buttocks and genital area. There can be no suggestion that the “act” “does not unequivocally offer a sexual connotation” as per R v Harkin.

28    Even if I were not to be of this view, when one has regard to the “surrounding circumstances” as enunciated in R v McIntosh and the intention of the Accused at the time he took the images, I am satisfied that the Accused’s videoing of BG was an act of indecency.

29    I do not agree with Counsel for the Accused’s argument that the Accused had to receive sexual gratification at the time he took the images. The fact that he took the images in order to receive sexual gratification from accessing them at a later time is sufficient.

30    The actual images depicted of HYH, viewed on their own could possibly be regarded as equivocal. However, when one has regard to the “surrounding circumstances” I am satisfied that the Accused’s videoing of HYH was also an act of indecency.

31    The Crown alleges that the Accused committed an act of indecency towards both BG and HYH.

32    The distinction between an act of indecency with as opposed to towards was dealt with in R v Chonka [2000] NSWCCA 466 Fitzgerald JA & Ireland AJ stated at paragraph 46 that

… Broadly speaking, an act of indecency “with” another requires two participants in the indecent act, while an act of indecency “towards” another is committed by a person who acts indecently towards a non-participant.

33    In R v Frederick John Barrass [2005] NSWCCA 131, Hidden J. (with whom Dunford J and Simpson J agreed) stated at paragraph 29:

…in my view, the appellant’s act of indecency could fairly be said to have been committed “towards” the complainant for the reasons identified by Judge Norrish: he exposed and manipulated his penis in circumstances where he was within view of the girls and intended that they should see what he was doing.

34    The Court in R v Barrass considered and followed the decisions of R v Francis (1989) 88 Cr App R 127 and R v Gillard (1999) 105 A Crim R 479.

35    In R v Francis the offence of “gross indecency towards” was established where a man masturbated in the presence of two boys in the changing room at a swimming pool, knowing that they were watching and deriving added stimulation from the fact that they were watching. That is, his act amounted to a “gross indecency” towards provided that he was aware that the boys could see him and that he derived sexual satisfaction from that fact.

36    The Court of Criminal Appeal in R v Gillard applied the principle of R v Francis when it held at paragraph 63

…The intercourse, although not an indecent act in itself, became indecent when carried out in front of the young person with the invitation and encouragement to watch which were both directed to or in the direction of the young person.

37    Counsel for the Accused submited that

“the common thread in Barrass, Francis, Gillard and Chonka (each an example of conduct “towards” complainants) was that each accused performed some act in the complainant’s presence (or in the case of Chonka , said something to her over the telephone) which he or she intended that the complainant know about. That is, the accused intended the complainant know of the specific act in question.”

38    The Crown in its submissions disagrees with the argument that “towards” requires the non-participant complainant to be aware of the Accused. The Crown argued that an act of indecency can be towards a sleeping or drugged person. The Crown did not refer me to any cases in support of her submission.

39    There are, of course, a number of categories of offences against the person that do not require the victim to have the knowledge that a particular act is being committed. In the absence of any cases to refute those presented by the Accused, I cannot agree with the Crown’s blanket statement.

40    It is obvious from the evidence that the Accused did not intend for either BG or HYH to know that he was filming them. The camera was well hidden in the bag. As soon as he became aware that BG had noticed the video camera he grabbed the bag and ran out of the store. Were it not for the police intervention, HYH would never have become aware that she had been filmed.

41    As much as I have sympathy with the complainants and feel absolute disgust and loathing at the Accused’s actions, I am not satisfied that the Crown has proved the essential element of “towards” as required by the legislation.

42 It should be noted whereas the more serious offence under section 21G of the Summary Offences Act 1988 (filming for indecent purposes) also falls well short of capturing an offence of this nature, the Accused could have been found guilty of the lesser offences under section 4 of the Summary Offences Act 1988 and/or section 547C of the Crimes Act 1900 had they been laid.

43    The two charges of “commit and act of indecency towards a person” are dismissed.

(1) Definitions


In this section:


“child pornography” means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:


(a)


engaged in sexual activity, or


(b)


in a sexual context, or


(c) …


(2) Production or dissemination of child pornography


A person who produces or disseminates child pornography is guilty of an offence.


Maximum penalty: imprisonment for 10 years.


(3) Possession of child pornography


A person who has child pornography in his or her possession is guilty of an offence.


Maximum penalty: imprisonment for 5 years.


(4) Defences


It is a defence to any charge for an offence under subsection (2) or (3):


(a)


that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography, or

(b)


that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC), or


(c)


that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose, or


(d)


that the defendant was a law enforcement officer acting in the course of his or her official duties, or


(e)


that the defendant was acting in the course of his or her official duties in connection with the classification of the material concerned under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth.


(5) Defence to possession of child pornography


It is a defence to any charge for an offence under subsection (3) that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its pornographic nature, took reasonable steps to get rid of it.

44    The Crown is required to prove:

Firstly that the video footage depicts BG under (or apparently under) the age of 16; and


Secondly that the video footage depicts BG in a sexual context; and


Thirdly that the video footage depicts BG in a manner that would in all the circumstances cause offence to reasonable persons.

45    Counsel for the Accused argues that in order for the material (ie the video footage) to depict “a person under or apparently under the age of 16 years”, the age must be able to be determined from a viewing of the material alone.

46    There is no dispute that at the time the video was produced BG was fourteen years of age. Her birth certificate was tendered as exhibit 26.

47    The Oxford English Dictionary defines “depicts” as being: “to represent, as a painting or picture does”.

48    The Court must apply basic principles of statutory interpretation: unless otherwise specified, words are to be given their everyday meaning. Clearly exhibit 22 “depicts” a “person”. That person is BG. BG was under the age of 16 at the time the material was produced.

49    Section 91H(4)(a) provides a defence where a defendant did not know, and could not reasonably be expected to have known, that he produced or possessed child pornography. An example would be where a defendant took a photograph of a person who was under the age of 16 in circumstances which came within the definition of “child pornography”, yet he was unaware -- and could not reasonably be expected to have known -- that the person was in fact under the age of 16.

50    The Accused has not raised section 91H(4)(a). The fact that at the time he was a school teacher who came in contact with children and teenagers on a daily basis, combined with the fact that BG was in school uniform may account for his adopting the legal argument of “statutory interpretation” rather than relying on the defence provided by statute.

51    The Accused argues that the material does not depict BG in a “sexual context”. I disagree.

52    The video must be viewed in its entirety. It is obvious that the footage is taken via a concealed camera and is filmed up a female’s skirt. The material clearly depicts the legs, thighs, buttock, crotch area and underwear of a female in circumstances where she is unaware of being photographed until the last moment.

53    Finally, the Accused submits that the material “viewed on its own without reference to extraneous facts, would not cause offence to reasonable persons”.

54    The Act requires that the “material … in all the circumstances cause offence to reasonable persons”. “All the circumstances” include how and why the material came into existence. That is: taken via a concealed camera; up a schoolgirl’s uniform; to be viewed at a later time in order to assist in sexual gratification whilst masturbating.

55    It would be a sorry indictment on our community if the Court did not find that this would cause offence to reasonable persons.

56    I find the offences of producing and possessing child pornography proved.

Magistrate

26 June 2008