R v Melville

[2009] QDC 436

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

1. 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.

1. The images form exhibits 6,7,9,10,11 & 12. 

1. 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

1. It follows there are 3 essential elements that must be proved to satisfy the definition of child exploitation material.

1. 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.  

1. The second requirement is that the material depicts such a child in one of the 3 categories set out in paragraphs (a) to (c).

1. The final requirement is that the way the child is depicted is“likely to cause offence to a reasonable adult”.

1. “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…