R v Clough
[2020] SADC 160
•13 November 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLOUGH
Criminal Trial by Judge Alone
[2020] SADC 160
Decision of His Honour Judge Boylan
13 November 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Accused, who has a significant intellectual disability, charged with aggravated offence of possessing child exploitation material - all objective elements of offence proved beyond reasonable doubt.
Mentally unfit to stand trial - dispute whether material the subject of the charge was pornographic.
Held: Material was pornographic and object of the elements of the offence established.
Criminal Law Consolidation Act 1935 s 62, referred to.
R v Morcom (2015) 122 SASR 154, considered.
R v CLOUGH
[2020] SADC 160Reasons for finding objective facts proved
Trevor John Clough is a 60-year-old man who is charged with an aggravated offence of possessing child exploitation material after being found with two photographs of a young girl naked. Mr Clough was born with a significant intellectual disability and there is no doubt that he is mentally unfit to stand trial. I made a finding accordingly. The court must now determine whether the objective elements of the offence have been proved. At Mr Clough’s election, I sat without a jury to hear evidence and submissions on that issue. Having done so, I am satisfied that the prosecution has proved the objective elements of the offence beyond reasonable doubt. I now give my reasons for so deciding.
The charge is as follows:
Statement of Offence
Aggravated Possessing Child Exploitation Material (Section 64A(1)(a) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Trevor John Clough on the 15th day of June 2018 at Prospect possessed child exploitation material, knowing that the child depicted in the child exploitation material was under the age of 14.
Undisputed facts
For more than 20 years, the accused has lived in supported residential accommodation. In June 2018, one of Mr Clough’s carers found, under Mr Clough’s pillow, the two photographs the subject of this charge. The police were called, the photographs seized, Mr Clough was interviewed and charged.
I now describe the seized material. It comprises two photographs trimmed to about equal size, stuck together with adhesive tape and inserted, side-by-side, in a small frame. Written on the back of the frame in black texta, are the words “Emma is a rude girl”. Each photograph is of the same girl standing in front of a wooden paling fence. In each photograph, she is standing upright and is naked. One photograph is a full-frontal view, showing the girl looking straight at the photographer with her arms by her sides. The other is a full rear-view, with the girl’s arms bent at the elbow so that her hands are in front of her. In that photograph, she is facing the fence. Near her, on the ground, is a pair of underpants. Their position and appearance is exactly the same in each photograph. In those circumstances, I am satisfied that the photographs were taken on the same occasion.
The law
The prosecution must prove the following three objective elements:
(1) that the accused was in possession of the material;
(2) that the material comprised or contained child exploitation material, as defined;
(3) that the material depicted a child under 14 (to prove the circumstance of aggravation).
The first and third of those elements are conceded. Only the second is in issue. The sole question for me, is: has the prosecution proved beyond reasonable doubt that he material comprises child exploitation material?
“Child exploitation material” is defined.[1] For the purposes of this case, it is material that:
(1)consists of the image of a child under 17 years; and
(2)is of a pornographic nature.
[1] Criminal Law Consolidation Act (1935) s 62.
There is no doubt that the child depicted in the photographs is under 17. I find that she is about five or six years old.
“Pornographic nature is also defined.[2] Material is of a pornographic nature if it is intended or apparently intended to excite or gratify sexual interest.
[2] Ibid.
In determining whether the material is of a pornographic nature, I may take into account the circumstances of its production and its intended use.[3]
[3] Ibid s 63C(1).
Whether or not the material is pornographic is to be judged by reference to the observable physical aspects of the material. The test is objective.[4] In determining the issue before me, I have had regard only to the observable physical characteristics of the two photographs as they appear in the frame. I have not had any regard to what the accused said in his interview, to the words written on the back of the frame, or to the fact that the material was found under his pillow.
[4] R v Morcom (2015) 122 SASR 154 at [33].
The accused’s counsel submitted that the photographs are not pornographic; they do not focus on the girl’s genitals or on her buttocks; they are photographs of a naked child the likes of which may be found in many family photo collections.
I do not accept that submission. It is true that parents often take photographs of their children naked – in the bath, at the beach, playing under a garden sprinkler, by way of examples. But such photographs are about the children depicted in them. Not so with these two photographs. They are not about the girl; they are about her body. That is especially plain from the fact that one of the photographs is a rear-view photograph. That is not a photograph to capture a moment in a child’s life. The girl is posed standing upright, with her back to the camera, facing a wooden fence, her face hidden, her arms and hands positioned so that there is a full view of her buttocks. The photograph is not intended to tell the viewer anything about the girl. Its theme is not the girl but her body: nudity for nudity’s sake. The juxtaposition of the two photographs further emphasises the effect of nudity for nudity’s sake in each of them.
I am satisfied beyond reasonable doubt that the material the subject of this charge is intended to excite or gratify sexual interest.
I am satisfied beyond reasonable doubt that all the objective elements of the offence charged have been proved and I record my finding to that effect.
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