R v R, GS - [2017] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, GS
Criminal Trial by Judge Alone
[2017] SADC 136
Reasons for the Verdicts of Her Honour Judge Schammer
5 December 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
The accused made a recording on his mobile phone of his 14-year old step-daughter while she was naked in the shower. The accused watched a portion of the recording and deleted it only when confronted as to its existence by his wife, who had discovered it.
The accused alleges he produced (and possessed) the recording to satisfy a non-prurient curiosity as to his step-daughter’s physical development and that he did not at any relevant time turn his mind as to what others may have thought of the recording.
The accused is charged with the offence of aggravated producing child exploitation material and the offence of aggravated possessing child exploitation material.
The issues for determination are whether the recording is ‘child exploitation material’ as defined in s 62 of the Criminal Law Consolidation Act 1935 (‘the Act’) and whether at the time the accused made (and possessed) the recording, he did so knowing of the ‘pornographic nature’ of that material.
Verdict: the accused is guilty of both counts.
Juries Act 1927 s 7; Criminal Law Consolidation Act 1935 s 62, s 63(a), s 63A(1)(a), s 63C(1), referred to.
R v Morcom [2015] SASCFC 30, discussed.

R v R, GS
[2017] SADC 136
JUDGE SCHAMMER
Introduction

The accused, GR, is charged with one count of aggravated producing child exploitation material between 27 and 31 October 2015 and one count of aggravated possessing child exploitation material on 31 October 2015, the circumstance of aggravation in each instance being that the accused committed the offence knowing the child victim normally or regularly resided with him.
It is alleged that the accused used his mobile phone to record his 14-year- old step-daughter, P, taking a shower, without her knowledge, from outside the bathroom window of the family home at Kersbrook (‘the home’). The recording was made when P’s mother, the accused’s wife, was interstate attending a work conference. Upon her return, P’s mother saw the footage on the accused’s mobile phone and recorded it onto her mobile phone. Upon confronting the accused with what she had discovered, the accused apologised and deleted the footage from his mobile phone.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. The trial proceeded before me over two days commencing Tuesday 19 September 2017.
Legal Directions
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything and in particular it is not for the accused to prove that he did not commit the offence or offences as charged.
In these reasons if I use the words proved, established, or satisfied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v R, GS

Details

AGLC: R v R, GS [2017] SADC 136
Case: [2017] SADC 136
Decision Date: 5 December 2017

CaseChat Overview and Summary

The case of R v R, GS involved an accused who made a recording on his mobile phone of his 14-year-old step-daughter while she was naked in the shower. He watched a portion of the recording and deleted it only when confronted as to its existence by his wife, who had discovered it. The accused was charged with producing and possessing child pornography and child exploitation material, and the case was heard in a higher court. The primary issue for determination was whether the accused's actions constituted a criminal offence under the relevant statutes, given his claimed intention and state of mind at the time of the offence.

The court was required to consider the statutory definitions of child pornography and child exploitation material, and whether the accused's actions fell within those definitions. The court also had to examine the accused's state of mind and intentions, specifically whether he had a prurient interest in the material and whether he considered the impact of his actions on others. The court's task was to assess whether the accused's actions were criminal, despite his claim of non-prurient curiosity and lack of consideration for others' views.

The court held that the accused's actions constituted the offence of producing and possessing child pornography and child exploitation material. The court found that the statutory definitions were broad enough to include the accused's conduct, even if he did not have a prurient interest. The court emphasised that the focus should be on the objective nature of the material and the impact of the accused's actions, rather than his subjective intentions. The court found that the accused's actions were criminal, regardless of his state of mind or intentions, as they involved the production and possession of material that was inherently offensive and exploitative. The court accordingly found the accused guilty on both charges.

Orders