R v Dr
[2010] ACTSC 152
•7 December 2010
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Crimes Act 1900 (ACT), s 64, s 65, s 92NA (repealed)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:
A verdict of guilty be entered with respect of count 1 on the indictment.
A verdict of guilty be entered with respect of count 2 on the indictment.
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.
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.
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.
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.
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 the children had been using the ensuite.
The accused’s wife immediately went to the ensuite and found a camera sitting in a magazine rack on the ground next to the toilet. She recognised the camera as one which had been given to her husband a few months earlier. She then took the computer to the Woden Police Station where she made a statement to the police.
The accused was arrested later that night and a record of interview was taken in the early hours of the following morning. In it the accused vehemently denied that he had deliberately taken photos of the complainant in the ensuite. He said that he had left the camera beside the toilet because he was trying to work out how to operate it whilst he was in the toilet. However, he had never succeeded in discovering how to turn it on or off. He assumed that the films of the complainant must have been taken when he had unintentionally left the camera running. He explained the fact that the films had been put onto his computer by saying that he wanted to use the card from the camera for the Tomtom in his car. He saw that there were files on the card, and in order to clear the card he “dumped” the files onto his D drive. He had no idea, he said, what the files contained. He expressed disbelief at the turn that events had taken, and said that he was “shattered” that it had happened.
The explanation given by the accused in his record of interview was thoroughly refuted by information which subsequently came to light. It transpired that the accused had frequently suggested to the complainant that it was time for her to go and have a shower, but said that he needed to use the toilet first. He used this opportunity to turn the camera on, and then returned sometime after she had left, in order to turn it off. The complainant’s younger brother [J] became suspicious about the placement of the camera and considered the possibility that the accused might be using the camera to photograph them, although it had never been on when he went to the shower. The night before the whole matter came to light, on 21 June, [J] went to the toilet immediately after the accused had been there and before the complainant came in for her shower, and found that the camera was on. He proceeded to turn it off. This was also recorded on film.
Furthermore, an analysis of the accused’s computer showed that the films were not all transferred at the same time, as he had said in his record of interview. It became clear that the files had been transferred to his laptop on numerous different occasions.
Given this background, it is not surprising that the accused did not adhere to this version of events when he gave evidence at the trial. Indeed he admitted that he had lied in his record of interview, saying that he did so to protect himself because he had done something “morally wrong”. He said that the first video of the complainant in the bathroom was taken inadvertently. He did not know how the images came to be on the camera, but having seen them he became interested in the voyeuristic aspects of these films. From then on he used to go to the bathroom before the complainant was to have her shower and turn the camera on. He conceded that the images contained graphic shots of the complainant’s genitalia, but denied that he had derived any sexual gratification or arousal from watching them. He was merely interested, he said, in seeing how she behaved when she thought that no one was watching her.
Two issues were raised by the defence at the trial. Both related to the terms of the legislation which created the offences with which the accused was charged, namely ss 64 and 65 of the Crimes Act 1900 (ACT). Those sections, as relevant here, are as follows:
64 Using child for production of child pornography etc
...
(3) A person commits an offence if—
(a)the person uses, offers or procures a child—
(i)for the production of child pornography; or
(ii)for a pornographic performance; and
(b)the child is 12 years old or older.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
(4) Strict liability applies to subsection (3) (b).
(5) In this section:
child pornography means anything that represents—
(a)the sexual parts of a child; or
(b)a child engaged in an activity of a sexual nature; or
(c)someone else engaged in an activity of a sexual nature in the presence of a child;
substantially for the sexual arousal or sexual gratification of someone other than the child.
...
65 Possessing child pornography
(1)A person commits an offence if—
(a)the person intentionally possesses pornography; and
(b)the pornography is child pornography.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
(2)Absolute liability applies to subsection (1) (b).
(3)It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds for suspecting that the pornography concerned was child pornography.
(4)In this section:
child pornography—see section 64 (5).
Mr Archer, who appeared for the accused, submitted first that the accused did not “use” the complainant for the production of child pornography within the terms of s 64(3). This is a matter of law, which goes to the first count only. Secondly, he submitted that, given the accused’s evidence, the films did not constitute “child pornography” under ss 64 or 65.
It is apposite to deal first with Mr Archer’s second submission. If it were successful, it would provide a complete answer to both charges against the accused.
Was the material “child pornography”?
It is not disputed that the videos in question depict the sexual parts of the complainant, within the meaning of s 64(5)(a). The only issue is whether the material was used substantially for the sexual arousal or sexual gratification of the accused. As indicated, the accused gave evidence in which he denied that his interest in these films had any sexual element at all.
This brings me to say something about the films themselves. There were 18 in all, which were taken on 18 different occasions. I watched eight of them and was then informed by both counsel that the remaining films were generally of the same nature and were accurately described by Constable Banford in a statement which was in evidence before me.
In all 18 films, the camera was positioned in a magazine rack on the floor beside the toilet. The camera was pointing upwards and in a slightly slanting direction. The bathroom itself was a small one, so that the camera was able to record most of the complainant’s activities whilst she was preparing for her shower and drying and dressing herself afterwards.
The positioning of the camera meant that there were graphic images of the complainant’s genitalia. Her breasts were also revealed, albeit to a lesser extent. Her face and facial expressions were, in the most part, not particularly obvious at all, given the positioning of the camera. This description is a general one, and there were some exceptions to this. In one sequence in particular, the complainant’s face was seen clearly; she was mouthing words in an apparently angry manner. However this was something of an exception. In many of the films, the positioning of the camera meant that the complainant’s face was obscured by the remainder of her body, whereas some images showed graphic views of her genital area.
I should say at the outset that I totally reject the accused’s assertion that these films were taken for mere voyeuristic purposes, without any element of sexual prurience. There are many reasons for reaching this conclusion. One of the major ones is the nature of the films themselves. If the accused had really wanted to observe the complainant’s overall behaviour when she thought no one was watching her, one would expect him to have chosen a place and/or manner of doing so which revealed her general behaviour. There was a great deal of repetition in the films in fact taken, with most of them showing the complainant undressing before she went into the shower, and then towelling herself and dressing after she came out. As already indicated, the placement of the camera meant that there was an emphasis on her genital region, with her face often being obscured by the rest of her body. Indeed, the films revealed very little of the subject’s overall behaviour, but provided significant images of her genitalia. This being so, it defies belief, in my view, that any person would want to make or watch these films for anything other than prurient sexual purposes.
In any event, the accused comes before the Court as a person of greatly diminished credibility. I accept Mr Archer’s submission that the fact that the accused lied during his record of interview should not be used as evidence of consciousness of guilt so as to bolster the Crown case against him. However, it clearly reflects very adversely on his overall credibility. The film of the accused’s record of interview was played in Court, and I was struck by the accused’s vehemence and apparent sincerity when he expressed amazement at the fact that the files he had downloaded onto his computer happened to contain images of his naked step-daughter. He has since acknowledged he was lying at that time, and has put before the Court an exculpatory version which frankly defies credulity.
In the circumstances I have no difficulty in finding beyond reasonable doubt that the films in question constitute child pornography in that they represent the sexual parts of the 15 year old complainant, substantially for the sexual arousal or sexual gratification of the accused.
This finding is sufficient to enable a conviction to be entered in relation to the second charge in the indictment, namely that the accused intentionally possessed child pornography, for the accused has admitted that he was in possession of these films at the relevant time.
Meaning of the word “uses”
I turn now to the second matter raised by the defence. This relates to the meaning of the word “uses” in s 64(3)(a). It is a matter of law, and goes only to the first charge in the indictment, namely that the accused “did use a child ... for the production of child pornography”. (Emphasis added)
The defence submission, briefly, is that the word “uses” in s 64(1) should be construed so as to require the child’s active involvement in the production of the pornography. In this respect, Mr Archer submits that the word “uses” should be construed in accordance with the genus of the other terms used in that section (“offers” and “procures”).
In support of this submission Mr Archer provided written submissions in which he referred to the history of s 64. Until its introduction in 2004 the relevant provision was s 92NA (later renumbered s 64). It is unnecessary for present purposes to quote this section in full. Put very succinctly, it created an offence for a person who “employs or permits the employment” of a child to engage in a sexual act. It therefore related to the situation now covered by s 64(5)(b) and (c), and possibly s 64(3)(a)(ii). However, there was no legislative equivalent to the provision which is relevant in this case, namely s 64(3)(a)(i), as I shall discuss shortly.
The defence submissions went on to quote from the judgment of Gray J in R v Henrik Forsti [2010] ACTSC 85. That was a judge alone trial involving charges under the previous legislation. His Honour, in discussing the legislation, said:
119.The prosecution sought to say that the definition of “employ” was the use of the complainant’s services that the complainant, as the subject, was “used”. However, no consideration appears to have been given to the “service” aspect of the definition. That is, the section seems to me to incorporate the notion that some obligation needs to be undertaken by the subject by way of “service” whether under contract or by way of duty or obligation to fulfil the requirement that there be a use of the service of a person so as to constitute employment.
120.It may be noted that the present s 64 of the Crimes Act, which replaced s 92NA and its renumbered equivalent, makes it an offence if a person “uses, offers or procures” a child for the production of child pornography. That seems to me to indicate a limitation in the notion of employ in the earlier provision which the replacement provision sought to overcome.
121.In any event, there is, to my mind, a clear ambiguity as to the extent that the expression “employs” is intended to cover. That is exacerbated by the expression “whether for reward or not”. It seems to me that the purpose of the provision is satisfied by ensuring that those persons who, in some way, press into service a person under 16 years of age in making the depictions proscribed by s 92NA as criminally responsible for such actions. In my view, the section does not require that the use of an unwitting subject should also necessarily be the subject of criminal sanction (cf R v Adams (1935) 53 CLR 563 at 567-8; Beckwith v R (196) 135 CLR 569 at 576). I would limit the ambit of the section to those who, in some way, engage for employment the person under 16 years rather than merely make use of that person.
The defence submissions take issue with Gray J’s comments at [120] and submit that there was no obvious intention to change the meaning and scope of s 92NA when the new s 64 was introduced in 2004.
This submission, however, apparently overlooks the fact that the particular provision giving rise to the first charge in the indictment had no legislative predecessor. The offence of “child pornography” under the previous legislation related to children engaged in “an act of a sexual nature”, which was defined as meaning “sexual intercourse or an act of indecency.” Even giving a very broad meaning to the phrase “an act of indecency”, it would not include the depiction of the sexual parts of a child undressing herself in preparation for a shower and dressing afterwards.
It follows that there is no assistance to be gained from an analysis of the legislative history of s 64. The particular provision which is relevant here had no legislative predecessor in the ACT.
The defence submissions go on to suggest that if the word “uses” in s 64 were to be given a broad interpretation so as to include the use of an unwitting subject, it would place the ACT at odds with most other Australian jurisdictions in relation to the treatment of the filming of private non-sexual acts. In this regard, the submission pointed out that the approach taken in other jurisdictions has been to create a separate head of liability for such acts, outside the rubric of child pornography. For example, in 2008 a new provision was inserted in the Crimes Act 1900 (NSW) which made it an offence to film another person’s private parts without the consent of that person. If the person in question is a child under the age of 16 years, the maximum penalty is five years imprisonment.
I have difficulty in understanding this submission. I do not see that an argument promoting a narrow interpretation of s 64 is assisted in this case by reference to the legislation in other jurisdictions. Indeed, the contrary is the situation. For if a restricted meaning were to be attached to the word “uses” in s 64, as urged by the defence, it would put the ACT at much greater odds with other jurisdictions than if that word were to be interpreted broadly. This is because s 64 constitutes the ACT statutory equivalent to the NSW s 91L. Certainly, s 64 stipulates a higher maximum penalty. However, both provisions create the same offence, namely that of filming another person’s private parts without his or her consent. If s 64 were to be given the limited scope as urged by the defence, then it would result in a legislative “lacuna” in the ACT compared with other Australian jurisdictions.
It follows, in my view, that an analysis of the legislation in other jurisdictions would, if anything, favour the adoption of a broader interpretation of s 64 as urged by the Crown.
Thus far my discussion of this issue has been restricted to a consideration of the defence submissions. It is clear from what I have said that I do not consider that they provide any compelling reason for adopting the narrow construction of s 64 for which they contend. If anything, the contrary is the case.
With this background I turn to consider the terms of the legislation itself. This is, of course, the primary task of any judge embarking on an exercise of statutory interpretation.
Put simply, the charge against the accused is that he ‘used’ the complainant for the production of child pornography. On its face, there is nothing to restrict this provision to a situation where the child is a knowing agent as opposed to an unwitting one. The word “use” is defined in the Macquarie Online Dictionary as follows:
1. to employ for some purpose; put into service; turn to account: use a knife to cut; use a new method.
2. to avail oneself of; apply to one’s own purpose: use the front room for a conference.
3. To expend or consume in use: his car uses a lot of oil.
4. To act or behave towards, or treat (a person) in some manner.
5. To exploit (a person) for one’s own ends.
6. To utter (words) or speak (a language).
7. To operate or put into effect.
The first and second meanings are potentially relevant to s 64, for they each refer to the use of a person or object to achieve a particular outcome. In neither of these meanings is there any hint of a suggestion that the person being used to achieve the outcome should be a witting agent. Quite the contrary, for the illustrations refer to the use of objects, and thus make it perfectly clear that the opposite is the case.
A similar conclusion is reached if one considers the context in which the word ‘uses’ appears in section 64. The section creates an offence if a person ‘uses, offers or procures’ a child for the production of child pornography. It would significantly and unnecessarily restrict the scope of this provision if the offence of ‘offering’ a child for pornographic purposes was restricted to the offering of a child who was a knowing participant. The same can be said in relation to the “procuring” of a child for pornographic purposes. It is almost inconceivable that these offences were intended to be restricted to situations where the child was a witting or knowing agent in the transaction.
In my opinion, every relevant consideration supports the proposition that the word ‘uses’ in section 64 should be given its ordinary meaning, and should not be restricted in the manner suggested by the defence. There is nothing inherent in the word itself, or in the context in which it appears in the legislation, which suggests that the child should be a knowing participant in the production of the pornographic material.
I am accordingly satisfied beyond reasonable doubt that the accused ‘used’ the complainant for the production of child pornography and is therefore guilty of the first count in the indictment.
I formally enter a verdict of guilty in relation to both counts in the indictment.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Mathews.
Associate:
Date: 7 December 2010
Counsel for the Crown: Mr J Lawton
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: Kamy Saeedi Lawyers
Date of hearing: 18 November 2010
Date of judgment: 7 December 2010