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Phillips v Police

Phillips v Police

Case [1994] SASC 4848 22 November 1994

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COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(1), DEBELLE(2) AND NYLAND(3) JJ

CWDS
Criminal law - child pornography - Appellant video-taped men and young boys urinating and changing in public toilets and changing rooms - appellant charged with being in possession of child pornography - whether scenes of boys were indecent, immoral, or obscene - meaning of "indecent" - statute deems circumstances of the production and possession to be irrelevant - scenes of boys not inherently indecent - appeal allowed. Summary Offences Act, 1953 533(1), (3) and (4). R v Bryant (1984) 2 Qd.R. 545; Norley v Malthouse (1924) SASR 268; Drago v The Queen (1992) 8 WAR 488; R v Harkin (1989) 38 ACrimR 296; R v Court (1989) 1 AC 28; R v Manson (17/2/93, unreported, CAANSW); R v Stanley (1965) 2 QB 327 and R v Greater London Council; Ex Parte Blackburn
(1976) l WLR 550, applied. A-G v Huber (1971) 2 SASR 142; R v Close (1948) VLR 445; Romeyko v Samuels (1972) 2 SASR 529; Robertson v Samuels (1973) 4 SASR 465; Popow v Samuels (1993) 61 SASR 513 and Crowe v Graham (1968) 121 CLR
375, discussed.

HRNG ADELAIDE, 21 July 1994 #DATE 22:11:1994

Counsel for appellant: Mr S Tilmouth QC with
Ms V Hodgeman

Solicitors for appellant: Armour And Co

Counsel for respondent: Mr D Whittle

Solicitors for respondent: Crown Solicitors Office

ORDER
Appeal allowed.

JUDGE1 MOHR J I agree.

JUDGE2 DEBELLE J The appellant was convicted by a magistrate of two offences of being in possession of child pornography, namely, some video tape films, contrary to s.33(3) of the Summary Offences Act, 1953 ("the Act"). He appealed to a judge of this Court who dismissed the appeal. From that decision, he appeals by leave to this Court.

2. The only question is whether the video tapes found in the appellant's possession are child pornography as that expression is defined in s.33 of the Summary Offences Act, 1953 ("the Act"). Whatever other fault there may be in his conduct, the only issue is whether the films are child pornography.

3. 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…

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.

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Details

AGLC: Phillips v Police [1994] SASC 4848
Case: [1994] SASC 4848
Decision Date: 22 November 1994

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia was asked to decide whether the video tapes in the possession of the appellant were child pornography under the Summary Offences Act, 1953. The Full Court was required to consider whether the video tapes were indecent material in the context of the definition of child pornography. The Full Court found that the films were not inherently indecent as defined in the Act. The Full Court held that the scenes of boys urinating did not offend contemporary community standards of decency. The Full Court found that the repetition of such scenes was not offensive by contemporary Australian standards. The Full Court concluded that the films did not constitute indecent material. The Full Court allowed the appeal and quashed the convictions.

Orders