R v Dr

[2010] ACTSC 152

R v DR
[2010] ACTSC 152 (7 December 2010)

CRIMINAL LAW – use a child for the production of child pornography – meaning of the word ‘uses’ – whether active involvement of child is required – child need not be knowing participant – guilty verdict entered

CRIMINAL LAW – possession of child pornography – filming of a 15 year old girl getting in and out of shower – whether material substantially for the sexual arousal or sexual gratification of the accused – lies of the accused in taped record of interview – accused of diminished credibility – guilty verdict entered

Crimes Act 1900 (ACT), s 64, s 65, s 92NA (repealed)
Crimes Act 1900 (NSW), s 91L

R v Henrik Forsti [2010] ACTSC 85

No. SCC 54 of 2010

Judge:             Mathews AJ
Supreme Court of the ACT

Date:              7 December 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 54 of 2010
AUSTRALIAN CAPITAL TERRITORY )          

R

v

DR

ORDER

Judge:  Mathews AJ
Date:  7 December 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. A verdict of guilty be entered with respect of count 1 on the indictment.

1. A verdict of guilty be entered with respect of count 2 on the indictment.

1. The accused has pleaded not guilty on arraignment to the following charges:

1.   THAT between 1 May 2009 and 22 June 2009 at Canberra in the Australian Capital Territory that he did use a child, namely [the complainant] for the production of child pornography.

2.   THAT on 22 day of June 2009 at Canberra he intentionally possessed child pornography.

1. The accused elected to be tried by judge alone, and the trial proceeded before myself without a jury.  There was no dispute as to any significant factual aspect of the Crown case.  Indeed the entire prosecution case was presented by the tendering of statements and other exhibits.  No oral evidence was called by the Crown.  At the close of the Crown case the accused gave evidence.  This was the only oral evidence in the trial.

1. The background of the matter is as follows.  As at June 2009 the accused lived with his wife and her two children from a previous relationship.  They were the complainant, a 15 year old girl, and [J], a 12 year old boy.

1. On the evening of 22 June 2009 the accused left home to go to a rehearsal.  His wife was curious as to why he had been spending so much time watching his computer.  Accordingly, she logged into his computer and discovered a file containing videos of her 15 year old daughter getting in and out of the shower.  Her breasts and genital areas were clearly exposed.  It appeared that she did not know that she was being filmed.

1. It was apparent that the films had been taken in the ensuite bathroom attached to the accused’s and his wife’s bedroom.  The other bathroom in the house, which the two children generally used, had been under renovation for some time before then, and…