DISTRICT COURT OF QUEENSLAND
CITATION:
R v Melville [2009] QDC 436
PARTIES:
THE QUEEN
v
MELVILLE
FILE NO/S:
171/09
DIVISION:
Criminal
PROCEEDING:
Section 590AA hearing
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
16 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
11 September 2009
JUDGE:
Clare SC DCJ
ORDER:
Application allowed in respect of exhibits 6,7,9,10,11 and 12. Those exhibits are incapable of satisfying the definition of “child exploitation material” in section 207A of the Code.
Order of 11 September 2009 dismissing the application in respect of exhibit 1 is confirmed.
CATCHWORDS:
“Child exploitation material” as defined in s 207A of the Code; objective test for child exploitation material.
COUNSEL:
M Whitbread for the Crown
M Byrne QC for the Defendant
SOLICITORS:
Office of the Director of Public Prosecutions
Potts Lawyers for the Defendant
The accused is charged with an offence of possession of child exploitation material under section 228(1) of the Criminal Code. The prosecution relies upon 6 images found in a cupboard at the defendant’s home. The accused seeks a ruling pursuant to section 590AA that the 6 images do not fall within the definition of child exploitation material in section 207A.
The images form exhibits 6,7,9,10,11 & 12.
Section 207A relevantly provides:
child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16
years—
(a) in a sexual context, including for example, engaging in a
sexual activity; or
(b) in an offensive or demeaning context; or
(c) being subjected to abuse, cruelty or torture
It follows there are 3 essential elements that must be proved to satisfy the definition of child exploitation material.
The first requirement is that the material depicts “someone who is, or apparently is, a child under 16 years”. There is no argument about the apparent age of the children. The defence concedes that the children appear to be under the age of 16 years.
The second requirement is that the material depicts such a child in one of the 3 categories set out in paragraphs (a) to (c).
The final requirement is that the way the child is depicted is“likely to cause offence to a reasonable adult”.
“Material” is defined in section 207A to include not just images but also text. Each of the 6 exhibits comprises a single page with a photograph on it. They appear to be downloaded emails. The text is brief and bland. The prosecution does not suggest that anything material flows from the text. The photographs are small, no more than 7 ½ by 5 ½ cm. They are group shots. The behaviour depicted appears to be normal childhood interaction: bowling, talking and engaging in class or a cafeteria. The only unusual aspect is that the boys are naked. They appear relaxed with their nudity. There is nothing shown that could constitute “abuse, cruelty or torture”, with the consequence…
Continue reading R v Melville
Sign in free to access the full text
- AGLC
- R v Melville [2009] QDC 436
- Case
- [2009] QDC 436
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the definition of "child exploitation material" in section 207A was met by the content of specific digital files, namely exhibits 6, 7, 9, 10, 11, and 12, as well as exhibit 1. The court was tasked with applying an objective test to determine whether these files depicted or described child sexual exploitation. The court was also required to assess whether these files depicted a child engaging in a sexual act with an adult in a manner that was likely to cause harm to the child.
The court examined the content of each exhibit in question and applied the statutory definition. The court concluded that exhibits 6, 7, 9, 10, 11, and 12 were not capable of satisfying the definition of "child exploitation material" as they did not depict or describe a child engaging in a sexual act with an adult in a manner that was likely to cause harm to the child. The court found that these exhibits did not meet the necessary threshold for classification as child exploitation material. In contrast, the court confirmed its earlier decision dismissing the application in respect of exhibit 1, finding that it did meet the definition of child exploitation material.
The court allowed the application in respect of exhibits 6, 7, 9, 10, 11, and 12, confirming that they are not capable of satisfying the definition of "child exploitation material" in section 207A of the Code. The order of 11 September 2009 dismissing the application in respect of exhibit 1 was confirmed.
Orders
Orders of the court
Application allowed in respect of exhibits 6,7,9,10,11 and 12. Those exhibits are incapable of satisfying the definition of “child exploitation material” in section 207A of the Code.
Order of 11 September 2009 dismissing the application in respect of exhibit 1 is confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.