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 then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt. If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains innocent and I must return a verdict of not guilty to that charge.
There are two charges on the Information dated 23 September 2016. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
With respect to each charge, if I am satisfied that there may be a rational explanation consistent with the innocence of the accused or I am unsure where the truth lies then I must find that the charge has not been proven to the standard as required by the law and I must find the accused not guilty of that charge.
I must assess each witness as to their truthfulness and their reliability. I can reject or accept all or a part of a witness’s evidence.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution. I remind myself that even if I reject the evidence presented by the defence in its entirety, that fact does not bolster, nor strengthen the prosecution case. It remains for the prosecution to prove each element of the offence (and in this case, offences) charged beyond reasonable doubt.
I heard evidence in this case that the accused is now 53 years of age. He is a person who has not previously been convicted of a criminal offence and is previously of good character. He trained as a teacher and until his arrest for this alleged offending worked full-time as a year 12 teacher and SACE coordinator at a private school, after having worked successfully as a school teacher for approximately 25 years in what was an unblemished career. The accused gave evidence he had never been charged with any other offending and had never been the subject of any complaints to teaching authorities with respect to his behaviour towards students.
I must bear in mind the accused’s previous good character when considering whether I am prepared to conclude from the evidence a finding (or findings) of guilt. I must bear it in mind as a factor affecting the likelihood of him having committed the offences as charged and in assessing the credibility of the explanations given by him as to his conduct.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.
The Charges
First Count
Statement of Offence
Aggravated Producing Child Exploitation Material. (Section 63(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
GR, between the 27th day of October 2015 and the 31st day of October 2015, at Kersbrook, produced child exploitation material, knowing of its pornographic nature.
It is further alleged that GR committed the offence knowing that the child of the offence normally or regularly resided with him.
Second Count
Statement of Offence
Aggravated Possessing Child Exploitation Material. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
GR, on the 31st day of October 2015, at Kersbrook, possessed child exploitation material, knowing of its pornographic nature.
It is further alleged that GR committed the offence knowing that the child of the offence normally or regularly resided with him.
Elements of the Offence
Count 1: Aggravated Producing Child Exploitation Material
The prosecution must prove each element of the offence beyond reasonable doubt, namely:
1The accused produced or took a step in the production of child exploitation material;
2That he did so knowing of the pornographic nature of that material.
The circumstance of aggravation is that the accused knew at the time he committed the offence that the child victim of the offence normally or regularly resided with him.
Count 2: Aggravated Possessing Child Exploitation Material
The prosecution must prove each element of the offence beyond reasonable doubt, namely:
1The accused was in possession of child exploitation material.
2That he did so knowing of the pornographic nature of that material.
The circumstance of aggravation is that the accused knew at the time he committed the offence that the child victim of the offence normally or regularly resided with him.
The accused acknowledges that he used his mobile phone to record his step-daughter, P, taking a shower while she was naked and without her knowledge (‘the recording’) on or about 29 October 2015, at which time P was aged 14. Further he agrees that at the time he made the recording his wife was interstate and his other step-daughter was staying with her father, meaning only he and P were residing in the home at the time and he was responsible for P’s care.
He admits that he then watched a small portion of the recording and retained the recording on his mobile phone until he deleted it upon being confronted by his wife with respect to the recording.
The issue in dispute is whether the material is ‘child exploitation material’ and whether at the time of producing and possessing the material the accused knew of its ‘pornographic nature’.
The accused claims that his sole purpose in making the recording and then viewing a portion of it was to satisfy a curiosity he held as to P’s adolescent development, a curiosity he claims was fuelled by comments made to him by his wife as to that development.
The accused denies any prurient interest in the material. The accused denies the material is of a pornographic nature having regard to his intentions when producing and possessing it. If the material is of a pornographic nature, the accused denies any knowledge of that fact.
The Evidence
The prosecution called evidence from the following witnesses:
1JB, P’s mother (and the accused’s now ex-wife);
2Ms M Walker;
3Detective Brevet Sergeant S Leary (‘Officer Leary’).
The accused gave evidence but called no other witnesses.
Exhibit P7 comprised agreed facts namely:
1The results of the analysis of the accused’s laptop indicate that the accused had used the following keywords in Google searches:
‘man caught videotaping stepdaughter in shower Australia’ and
‘man caught videotaping stepdaughter in shower’.
2It was dark in Kersbrook at the time the accused made the video of P in the shower.
Documentary evidence
The recording made by the accused was not in evidence. There was no dispute that the accused deleted the recording upon being confronted as to its existence by JB.
The accused’s mobile phone and laptop were seized by police on 7 February 2016. Upon analysis, there were no images or videos of apparent child exploitation material found on the accused’s laptop.
As to the accused’s mobile phone, the deleted recording was not recovered. Analysis of the mobile phone revealed the existence of two files which were remnants of the recording, described by Officer Leary as being ‘thumbnails’ of parts of that recording, but no other images or videos of apparent child exploitation material.
JB used her mobile phone to record a copy of (part of) the recording when she discovered it on the accused’s mobile phone. JB’s copy of part of the recording was downloaded by her onto a USB. This was then copied onto an encrypted disc by SAPOL Electronic Crime Section. That disc was played to the court and tendered as Exhibit P6.
Exhibit P3 is a still shot of the accused’s mobile phone taken by Officer Leary from JB’s USB, to show an image of the recording on the accused’s mobile phone which depicts the date Thursday 29 October 2015 and the time 8.31 pm. By reference to Exhibit P3, the length of the recording was 11 minutes and 21 seconds.
By reference to Exhibit P6, the recording was clearly taken from outside of the home’s main bathroom window. The recording depicts P, completely naked in the shower, at a time when she is not wearing her glasses. The recording appears to conclude at a time after P has at least partially dressed after finishing her shower. The recording is quite still in the sense that the device used to record it does not obviously move during the recording.
The vision of P in the shower is captured such that her entire body is effectively the only thing captured by the footage, with there being no obstructions between P and the camera, albeit a towel can be seen hanging on the left hand side on a towel rail outside the shower. The recording has an appearance which suggests that particular care was taken to ensure the camera lens was situated in precisely the correct location, at the correct height, angle and range to capture such vision, with the top of P’s head positioned at the very top of the vision and her feet at the very bottom.
Officer Leary attended at the home in May 2016 for the purpose of taking the photographs numbered 7 to 21 of Exhibit P4.
Photographs 19 and 20 depict the shower in the home’s main bathroom, being the same shower seen in the recording.
Officer Leary said he stood outside of the home at the window to take these photographs. He explained that photograph 20 was taken by him while standing in the same location he was when he took photograph 19, but holding his mobile phone closer to the window.
There was a flyscreen on the bathroom window both at the time the accused made the recording and when Officer Leary took the photographs. The small squares of the flyscreen can be seen in the recording and are even more apparent in photograph 19. They are not readily discernible in photograph 20.
Oral Evidence
JB gave evidence that in October 2015 her daughter P was in Year 7 and because of multiple disabilities had been held back in primary school while her twin sister progressed to secondary school.
JB described P’s disabilities as including severe vision impairment in the nature of monocular vision, with no peripheral vision in her ‘good eye’ and an astigmatism in that eye, meaning P’s vision was blurry unless she was wearing her glasses. JB said that in addition P suffers from autism spectrum disorder, a sensory processing disorder and dyslexia. This evidence was not challenged.
JB and the accused commenced their relationship in about May 2008 and from about November 2009 until late 2015 (when they separated) they lived together at the home with P and her twin sister. The couple were married for about four years.
At various times during the relationship the accused’s children also lived with the couple at the home.
JB gave evidence that she attended a conference in Perth from Wednesday 28 October 2015 until Friday 30 October 2015. While she was away, her daughter L went to stay with L’s father. P stayed at the home with the accused, although P’s father transported her to and from some after school activities on both the Wednesday and Thursday late afternoons/evenings.
She said she spoke to the accused by telephone at approximately 7.30 pm Adelaide time on Thursday 29 October 2015. She said he sounded odd on the phone and described the conversation as strange.
JB said she arrived home from the conference at around 11.30 pm on Friday 30 October 2015. Her two daughters were with their father for the weekend, so the accused was the only other person at the home. He was asleep in their bed in the main bedroom. She got into the same bed and tried to initiate a conversation with him but he was not very talkative. She recalled he had said he had a cold. Sometime during that night the accused got up and went to sleep in another bed, as he would occasionally do.
JB agreed with a proposition put to her in cross-examination that the accused’s seemingly odd behaviour may have been the result of him simply being ill.
She said the next day the couple went out to breakfast together. She described the accused’s demeanour as ‘odd’ and said that she had not seen him behave like that at all during their relationship.
JB’s recollection was that after breakfast they visited a plant shop. She had then dropped the accused home and gone to do some more shopping alone at Golden Grove.
When she finished shopping she returned to the car and saw that the accused had left his mobile phone and wallet in the centre console. JB said that because she felt something was odd, she decided to pick up the phone and look at it.
She acknowledged that she had looked at the accused’s phone at times before, that she had occasionally used the accused’s phone to make calls and that the accused did not keep a passcode on his phone, meaning it was easily accessible to her.
JB said that when she swiped on the screen of the mobile phone an image from the recording came up and covered approximately one third of the screen. She clicked on that image and the recording commenced to play. She recognised the tiles from her main bathroom and realised the recording was of P taking a shower in the main bathroom of the home. Later in her evidence she recalled seeing little squares on the recording and realising those squares were the flyscreen on the bathroom window, meaning the recording had been made from outside of that window.
JB explained that, not surprisingly, she was ‘freaking out’. She tried unsuccessfully to send a copy of the recording from the accused’s mobile phone to her phone, as she was concerned to retain a copy of it, but she was unable to do so. As such she decided to use her own phone to record what could be seen on the recording on the accused’s mobile phone.
JB gave evidence that she was unable to watch the entire recording and she did not make her own record of the entire recording, meaning not all of the recording is depicted on Exhibit P6.
She rang a close friend, Ms Walker, who lived nearby and then drove to Ms Walker’s home. She asked Ms Walker to watch the recording for her, to the end, as she had been unable to do so. She said she watched Ms Walker watch the entire recording.
Ms Walker gave evidence that JB had called her and then visited her one day in October 2015. She said JB had shown her a black mobile phone, which looked similar to the phone tendered as Exhibit P3 and had asked her to watch a recording on that phone from the start to the finish. She said she had done so. She believed the recording had gone for eight minutes or more.
She described the recording as commencing with P already in the shower and that it concluded after P had got out of the shower, had dried herself and dressed.
She could not be ‘exactly clear’ but she believed the recording had ended when P was dressed and standing up. She thought she could recall seeing P put on her school uniform and also sit down and put on her shoes. In cross- examination she confirmed that the recording did not show P leave the bathroom and when challenged as to whether the clothes P had put on were in fact her school uniform she stated she was 99 per cent sure it was a school uniform although she added that she was not familiar with P’s uniform.
The two women then discussed what JB’s options were. JB then drove back to the home, arriving there at around 5.00 to 5.30 pm.
JB gave evidence that when she arrived home the accused was there. She confronted him about what was on his mobile phone and could recall saying words to the effect of ‘Can you tell me why there is a video of P on your phone?’[1] She said that in response the accused was ‘quite distressed and panicked and sort of anxious and he said ‘I’m sorry’’.[2]
[1] T22.37-38.
[2] T23.2-3.
She said the accused then said ‘I was walking past the window’.[3] He stood up, walked over to his phone, picked it up and said ‘There, I’ve deleted it now, it’s gone’.[4]
[3] T23.6.
[4] T23.10-11.
In cross-examination JB agreed with a proposition that in response to her question about the recording the accused had said he was just walking past and that the window was open.[5]
[5] T40.1-2.
JB said that she had asked the accused what he was thinking when he made the recording and that he replied that ‘he wanted to see how P was developing, something along those lines’.[6]
[6] T23.23-24.
JB explained that she and the accused had discussed her twins’ development, including their physical development, many times in the past. In cross-examination she said these discussions were initiated by the accused and she could not recall having ever initiated a discussion herself with the accused about the development of P’s breasts.

JB said that about three to four months prior to her discovering the recording she had refused to have any further such discussions with the accused because she was concerned about some of the questions the accused was asking her about P. She acknowledged she had not included this in her police statement.
JB gave evidence that the accused had never expressed to her any concerns he had about either girls’ physical development, he had never said anything to her to suggest he thought their development was abnormal or that their development needed to be monitored.
JB said that later that night the accused had left the home for a period of time but had returned thereafter. He had taken his mobile phone with him.
While he was gone, JB went into the main bathroom and saw that the curtain on the bathroom window was propped open by about eight to 10 cm by a small jar of bath salts. She took photographs of this and provided those photographs to police. Two of those photographs are reproduced as photographs 1 and 2 of Exhibit P4. She said the jar of bath salts was usually kept on the ledge around the bath and not on the window ledge. In cross-examination she agreed she rarely used the main bathroom and that she had a cleaner, meaning she could not say when the bath salts had been positioned on the window ledge or by whom.
JB said that she had told her daughters many times to open the main bathroom window when they were showering to stop mould, as in her experience they regularly showered with the window closed. She said there was a key to that window although she could not say whether it was usually kept in the window or not.
JB gave evidence that when the accused returned home that night she had a further conversation with him about the recording. She said she was ‘a little bit hysterical’ and probably yelling. The accused said words to the effect that he was going to kill himself or he wanted to kill himself.[7]
[7] T32.22-23.
She had asked to look at the accused’s phone again and this time she was unable to access it as he had put a passcode on it. She asked him to give her the passcode and to delete the passcode from the phone, both of which he did.
She looked at the phone and described seeing that a whole lot of ‘icons’ that had previously been at the top of the screen were now gone and the recording had been deleted. She thought these icons were ‘apps’ but in cross-examination she agreed she could not say whether or not the icons she had seen were there to indicate that messages were waiting or emails had been received. She had a recollection for searching for ‘Facebook’ on the accused’s phone and not being able to find it.
In cross-examination JB agreed with a proposition that her relationship with the accused had deteriorated in the 12 months or so prior to the discovery of the recording. There had been many arguments and the accused had stated he was considering moving out. However she denied she was distrustful of the accused or insecure about the relationship and denied regularly looking at his phone.
The couple separated shortly after JB discovered the recording.
The accused admitted making the recording.
He gave evidence that while initially his relationship and then marriage with JB was good, after a few years he had not been happy and had contemplated leaving the relationship. He denied experiencing any sexual frustration at the time of the alleged offending.
The accused described JB as being insecure in the relationship and because of that insecurity he had not kept a passcode on his phone. He said JB would occasionally use and/or look at his phone.
He said he had a good relationship with JB’s twin daughters. As he was a teacher they were often left in his sole care during school holidays and he took them camping twice without JB. JB did not dispute this.
He said that during his relationship and marriage with JB the couple had regular discussions about the twins, including discussions about their physical development. He said JB would talk often about her hope that the girls would both have large breasts.
He said JB went into quite graphic descriptions of the twins’ breasts and that she would frequently initiate conversations of this nature. He said this topic was still being discussed between them as at October 2015.
The accused gave evidence that when JB travelled interstate in the last week of October 2015 he was under a lot of stress and that week was the busiest week of the year for him. It was the last teaching week for the year 12 students before they finished and prepared for exams. In addition, in his role as SACE coordinator he had taken on a lot of additional work. He was also studying to complete a Leadership Development Program. He had concerns about his relationship with JB and the couple were preparing to sell the home to move into another property.
He said that it was in this context that he had made what he later said was a ‘spur of the moment stupid decision’[8] to make the recording.
[8] T83.16-17.
The accused gave evidence that he was involved in organising a final assembly for the year 12 students which included an act which required some sort of pretend guns. He said he knew his son, who had previously lived at the home, had either a cap gun or water pistol. He looked in his son’s (former) room to search for a toy pistol but could not find one. P was home with him at the time.
When he could not find a toy pistol in that room he decided to look in the shed. The shortest route to get to the shed was to walk through the laundry and down a path on the left hand side of the house towards the rear yard. The laundry had an external sliding door, which can be seen in the foreground of photograph 9 of Exhibit P4 (albeit that photograph is taken in a direction looking back towards the front of the house). The shed is depicted in a photograph taken by the accused sometime after October 2015 and tendered as part of Exhibit D2.
The accused gave evidence that when he walked out of the laundry door he walked into a clothes horse that had been left outside that door on the path by JB. He then dismantled the clothes horse, a process which took a minute or two. In doing so he said he noticed the bathroom window was open, it being the window immediately to the left and adjacent to the laundry door as one exited through that door. He saw P in the shower through that open window. He said that window was often left open.
The accused was asked whether previously he had moved the jar of bath salts onto the interior window ledge so that it held back the window curtain slightly and he denied doing so.
The following exchange occurred during examination-in-chief:[9]
[9]    T74.35- 75.27.
Q     What did you do.
ABy this stage, I mean, basically over many years the curiosity of what J was describing to me basically got to me and I said ‘I wonder what she does look like from all the conversations we’d had’.
Q     What did you do as a result.
AI had my phone in my pocket, I took it out of my pocket, put it up against the window and pressed play.
Q      What did you do then.
AI went – proceeded on to the shed and went looking for the cap gun and the water pistols.
Q     What was your intention in putting the camera there and pressing play.
A     To see what P looked like.
Q     Why were you interested in that.
AAs I said, because of curiosity and because of all of the conversations we’d had in the past, I mean, basically I was a bit curious, but also I was stupid, it was a stupid thing to do and I shouldn’t have done it.
Q     Did you have a sexual interest in P.
A     Not at all.
Q     Have you had a sexual interest in any children.
A     No.
Q     Did you make the recording because of any sexual interest in P.
A     No, no, not at all.
In cross-examination the accused repeated that he had made the decision to film P on his phone to see what P looked like. He said JB had described in detail the size of P’s breasts, the nipples and the colour and he wanted to see this for himself.
In cross-examination he initially denied ever initiating any discussions with JB about the twins’ breasts, but then qualified that to say he may have initiated about 5 per cent of such conversations.
He said he did not know how developed P’s breasts were until he saw them on the recording.[10]
[10] T87.4.
The accused explained that he then went to the shed, found a toy gun and returned back down the path to the laundry door. He saw the bathroom light was off and that P had finished showering. He grabbed his phone, switched it off and went inside. He then watched some television and after P went to bed he continued with some study.
He said about a half an hour later he had had enough of study. He knew he would be getting up at 4.30 am the next day for ‘muck up day’, so he turned on the television for 10 minutes or so before he went to bed.
The accused gave the following evidence with respect to the recording:[11]
During such time I did flick my phone on and I looked at probably for a minute or two max. I got distracted with what was on the TV and I basically put it down and that was the last I’d seen of that video.
[11] T77.8-12.
He denied that his sexual interest was excited while viewing the recording.
He explained that when JB returned from interstate the following night he was feeling very run down, he had a ‘rotten cold’ and was tired having got up so early. JB had started snoring which prompted him to get up from the bed they shared together to go and sleep in the spare room.
He said the next morning he and JB went out for breakfast. He was still feeling unwell and was feeling sad about their plans to sell the home, but there was nothing special or different about their interactions that morning.
They bought some plants, returned home and both spent some time gardening at the home before JB decided to go out again to do some more shopping. JB was gone for longer than he had anticipated.
He said when she had been gone for such a long time he decided to give her a call to find out where she was so he went inside to look for his phone.
He was asked in examination-in-chief:[12]
Q     Did you find it anywhere.
A     No.
Q     Did that cause you to form any conclusion.
AInitially no and then the penny dropped, I thought maybe – I remembered the videotape then after a while.
[12] T80.27-31.
He then realised he had left his mobile phone in the car and as she had been out for so long he suspected she may have looked at his phone.
The accused described the conversation that occurred when JB arrived home in very similar terms to that as described by her. He agreed he had told JB he was going past the window while P was in the shower and that is when he recorded her. He had said he was sorry and deleted the recording straightaway. He was not cross-examined as to whether later that evening he had said words to the effect that he was either going to, or wanted to, kill himself.
Later that evening he had gone out for a short time and it was his recollection he had gone to buy JB some alcohol. Upon his return JB had asked to go through his phone again and he said by this time he had put a passcode on it, something he had never done before. She had asked him to open the phone, which he did and he gave it to her. He denied having deleted anything from his phone during the period from when he deleted the recording and when JB looked through his phone again that evening and explained that he ‘was not tech savvy’.[13]
[13] T82.20.
As to the recording, he said he had intended to delete it virtually straight after it was made and had not intended for anyone else to see it. He denied having made any other similar recordings, either of P or any other child.
He said that at the time he made the recording he had not thought about what other people might think of it.[14]
[14] T83.16-20.
In cross-examination the accused was asked why he needed to film P, rather than simply look through the open bathroom window to see her. He explained that he did not want her to see him looking at her through the window. He also said he had only ‘a glance’ through the window before starting the recording. This had not satisfied ‘his curiosity’ because it was just a ‘fleeting glance’ and that his eyesight was not that great[15] and he could not see her body properly through the window.
[15] T87.34-36.
The accused denied a proposition that because of P’s visual disability she could not have seen him had he remained looking at her through the window.
He said he failed to take into consideration the fact she did not have her glasses on and that it was dark outside.
The following exchange occurred in cross-examination:[16]
Q Why did you keep the film on your mobile telephone.
AAs I said, I had forgotten all about it and from my previous comments I’d had a very, very busy couple of days and so I didn’t even have a chance to think about going back to it and as I said before, I’d forgotten all about it until J approached me.
Q When did you forget about it.
AI would say soon after I had looked at it for about a minute or two and that was it, I’d basically had other things on my mind and I went to bed and that was it.
[16] T89.25-34.
During further cross-examination the accused explained that another reason why he decided to film P was because he could not see her body properly through the window, as he was not wearing his glasses when he went to the shed.
The following exchange occurred in cross-examination:[17]
[17] T91.1-15.
Q     How was your view of P naked improved by filming it.
A     Well, the film itself you can actually zoom up, can’t you, on the camera.
Q     So you were intending to do that.
AI, I hadn’t thought about these things, like you’re trying to put words in my mouth. I hadn’t thought about those ramifications down the track or whatever.
QBut you say that your intention when you filmed through the window was to – was it to capture her naked so you could see properly for yourself what she looked like naked.
A     That’s right.
QSo what were you intending to do once you had made that film, zoom in, put your glasses on.
A     Yeah, probably put my glasses on, yeah.
The accused agreed that when he had watched the recording for one to two minutes his ‘curiosity’ had been satisfied as he had been able to get a proper view of what P looked like naked.
He was then asked, why he did not then delete the recording after viewing it for those one to two minutes. The accused’s response was that he was distracted by what was on television and did not touch his phone again before going to bed.[18] He said he did not think of deleting it then. He denied he had retained it in order to watch it again down the track.
[18] T92.5-7.
Later in cross-examination the accused explained that he had intended to delete the recording straight away, but he reiterated that he had become distracted and had forgotten about it.
The accused was asked the following in cross-examination:[19]
[19] T98.33-99.5.
QAt the time did you consider that if some other man was to view the video that you had filmed, he would find it sexually exciting to some degree.
A     No, I didn’t consider that at all.
QDid you consider at the time that you might, that some other man, if he was to see that video, would find it sexually gratifying at all.
A     No, I did not consider that at all.
Q     And is that because you just didn’t turn your mind to it.
A     I didn’t think about it, no.
The accused was not challenged in cross-examination as to his description of leaving his mobile phone propped up against the outside of the bathroom window so as to commence and make the recording, then leaving it there, while he searched the shed, returning some time later to stop the recording and retrieve his phone.
The Law
‘Child exploitation material’ is defined in s 62 of the Criminal Law Consolidation Act 1935 (‘the Act’) to mean material:
(a) that—
(i)describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(ii)consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; and
(b)that is of a pornographic nature;
The recording contains an image of a child under the age of 17 years and the bodily parts of such child, thus fulfilling the requirements of sub-para(a) of the definition.
The issue in dispute is whether the recording is ‘of a pornographic nature’ and if so, whether at the time of producing and possessing the recording the accused knew of its ‘pornographic nature’.
‘Pornographic nature’ is defined in s 62 of the Act namely:
pornographic nature—material is of a pornographic nature for the purposes of this Division if the material is intended or apparently intended—
(a)to excite or gratify sexual interest; or
(b)to excite or gratify a sadistic or other perverted interest in violence or cruelty;
Further s 63C(1) of the Act states:
63C—Material to which Division relates
(1)In determining whether material to which a charge of an offence relates is of a pornographic nature, the circumstances of its production and its use or intended use may be taken into account but no such circumstance can deprive material that is inherently pornographic of that character.
Section 63 of the Act also contains a number of potential defences to the offences as charged, none of which are relied upon, or available, to the accused.
During their closing addresses, both counsel referred to the decision of the Court of Criminal Appeal in R v Morcom.[20]
[20] [2015] SASCFC 30.
In Morcom the Court of Criminal Appeal determined how to properly construe the definition of the phrase ‘child pornography’, which previously appeared in s 62 of the Act (in lieu of the phrase ‘child exploitation material’).
At that time, s 62 of the Act defined ‘child pornography’ to mean material:
(a)    that-
(i)      describes or depicts a child engaging in sexual activity; or
(ii)     consists of, or contains the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and
(b)    that is intended or apparently intended –
(i)      to excite or gratify sexual interest; or
(ii)     to excite or gratify a sadistic or other perverted interest in violence of cruelty.
Further, at that time s 62 of the Act included the following definition:
‘pornographic nature’ of child pornography means the aspects of the material by reason of which it is pornographic.
Section 63C(1) of the Act was, at that time, in identical terms to its present wording.
The amendments to s 62 did not materially alter the substance of what was previously defined to be ‘child pornography’ and is now defined to be ‘child exploitation material’. As such the observations and findings of the court in Morcom as to the interpretation of what was then s 62 (and s 63C) of the Act remain relevant and I am bound by them.
In Morcom the majority (Peek and Blue JJ) held that the question whether material was intended or apparently intended, to excite or gratify sexual interest was to be determined objectively.
Peek and Blue JJ stated at [22]:
[22] We consider that the second limb of the s 62 definition of child pornography is limited to the functional or purposive characteristics of the material alleged to be intended or apparently intended to excite or gratify sexual interest. The phrase “intended or apparently intended” is a compendious concept and the question whether this limb is satisfied is to be answered by the application of an objective test analogous to the test generally applicable in contract, satisfaction of this limb depends upon the application of an objective test by the tribunal of fact and cannot depend on the state of mind of anyone else…

At [31], Peek and Blue JJ state further that:
…a person can only know that an inanimate object has a pornographic nature if in fact it does have a pornographic nature.
Further at [37], Peek and Blue JJ state:
….Thus the words “material …that is intended or apparently intended…” are fairly and squarely directed to defining the act proscribed by the legislation. They maintain the primary focus on the material itself and are not concerned with the accompanying mental element of the offence.
And at [42]:
Thus the test remains an objective one: if the material itself manifests an intention or apparent intention to excite or gratify sexual interest, that intention to excite or gratify sexual interest will be established, irrespective of the “true intention” of the producer.
In other words, there are two separate and distinct enquiries, is the material of a pornographic nature and if so, at the relevant time(s), did the accused have knowledge of its pornographic nature.
Peek and Blue JJ stated at [54] that if the material itself manifests an intention or apparent intention to excite or gratify sexual interest, the intention to excite or gratify sexual interest will be established, irrespective of the actual intention of the producer or possessor of the material.
They then went onto consider how s 63C of the Act then fit with that finding.
At [65], Peek and Blue JJ stated:
In applying the objective test to the question whether the present images are intended or apparently intended to excite or gratify sexual interest, one is both entitled and obliged to have regard to the objective context and circumstances surrounding the production of the material.
As such the majority held at [67] that the objective circumstances of the production and intended use of material can be taken into account in determining whether it has the requisite pornographic nature and finally, at [70], that the correct interpretation of s 63C was that the test is an objective one, taking into account the objective context and circumstances.
Stanley J held a different view, namely that the definition of ‘child pornography’ created two paths to proof, namely actual intention or apparent intention[21] and that s 63C(1) was intended to assist the tribunal of fact in making a finding of the accused’s knowledge of the pornographic nature or otherwise of the material, in the sense that the judge or jury can have regard to the circumstances of the material’s production, use or intended use for that purpose.[22]
[21] R v Morcom at [117].
[22] Ibid at [118].
In Morcom, the Court of Criminal Appeal was dealing with material which included an image of three naked girls in a shower. That image was found in a folder on a computer and the same jpeg file for the image was found in another folder on the same computer marked ‘Porn’. The computer contained other images of naked children which bore a website address ‘>
Peek and Blue JJ held that the nature, location and circumstances of the image were such that it was open to the jury to conclude it was produced or appropriated for purposes of dissemination via the internet to users of a website who were strangers to the girls and that it was open to the jury to therefore conclude they were produced with the intention or apparent intention of exciting or gratifying sexual interest.
Of that image, Stanley J stated at [123]:
The image is of three naked pubescent teenage females standing in a shower. The breasts and pubic region of the female in the foreground of the photo are clearly visible. The image is neither overtly or covertly sexual. On its face, it is only the depiction of the nude female form. As apparent intention is to be decided by an objective evaluation of the image only, I consider the jury must have entertained a reasonable doubt that the image was apparently intended by the applicant (if it was in his possession) to excite or gratify sexual interest. However…I consider that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the actual intention of the applicant possessing the image (if that was in fact the case) was to excite or gratify sexual interest…
He also noted that the naked display of the human body is not necessarily sexual.
Closing addresses of counsel
Both closing addresses focussed on the law and the interpretation given to then s 62 of the Act in Morcom.
The prosecutor submitted that I could be satisfied beyond reasonable doubt that the recording was ‘of a pornographic nature’.
He referred to the objective test as outlined by the majority in Morcom and submitted that the fact that the accused may have had some non-prurient curiosity in his mind at the time of producing and possessing the recording was ‘no defence’ if the objective fact of it being of a pornographic nature is established. In this respect it must be noted that the accused’s intention in this respect was not raised as ‘a defence’ to the charge – and I remind myself it is not for the accused to prove or rebut anything in this matter - it is for the prosecution to prove each element of the offence beyond reasonable doubt.
Having regard to what was said by the majority in Morcom, I have taken this submission to mean that if the recording is objectively of a pornographic nature, the accused’s intention at the time of his production or possession of it, namely to satisfy a non-prurient curiosity, cannot make it otherwise.
The prosecutor invited me to consider my approach to answering the question ‘is the recording of a pornographic nature’ in three stages. He asked me to first consider only the physical and observable contents of the material and to disregard both the accused’s intention and the relevant circumstances surrounding the production and possession of the recording, when determining if objectively it was pornographic in nature.
He submitted that if I did so I must conclude beyond reasonable doubt that the recording is inherently pornographic in nature, satisfying a necessary component of the first element of each charge, namely that the recording was ‘child exploitation material’.
To respond to what Stanley J said in Morcom, namely that the naked display of the human body is not necessarily sexual, the prosecutor submitted that the recording:
1Is a clear resolution film in focus throughout, made deliberately to capture the subject;
2Depicts the very private act of taking a shower in circumstances where P expected privacy;
3Depicts P while she is completely naked;
4Is of a physically mature and sexually attractive girl;
5Was filmed in an intrusive manner;
6Was filmed in secret; and
7Was apparently over 11 minutes in length (by reference to Exhibit P3) and definitely over eight minutes in length (by reference to Exhibit P6).
Having regard to these factors it was submitted that I could be satisfied beyond reasonable doubt not only that the recording was objectively inherently pornographic in nature but that it had been made for a prurient purpose.
He said that whatever was my finding at the first stage, I should then undertake a second stage of enquiry and consider not only the recording but the circumstances of its production and intended use, to determine whether objectively, the recording is ‘of a pornographic nature’. It was submitted that having regard to the undisputed evidence, having done so, I could be satisfied beyond reasonable doubt that the recording is inherently pornographic in nature.
In this respect the prosecutor referred to the fact the recording was made at an opportune time when JB was interstate and he was alone in the home with P. It was made at night when it was dark and given P’s visual disabilities (and lack of glasses) at a time when she could not have seen the accused outside the bathroom window. The accused was P’s stepfather and had viewed the recording in private. He intended to delete the recording as he did not want it to be discovered. He knew what he had done was wrong.
Finally, irrespective of my findings at stages one and two, it was submitted there was a third stage of enquiry, namely I should consider and make findings about the facts in dispute. It was submitted I should reject as absurd the accused’s evidence that he had a non-prurient curiosity in P’s development, being the reason for his production and possession of the recording and instead find that his intention in producing and possessing the recording was to excite or gratify sexual interest.
It was submitted that the accused was an educated man, an experienced teacher, and that it was absurd that having seen P through the window he acted out of some curiosity that had nothing to do with a sexual interest.
On his own evidence the accused had been given ample details as to P’s development, and what she looked like, by JB, including specific details as to the size of her breasts and the colour of her nipples. He had plenty of information that should have been enough to satisfy any non-prurient curiosity. There was no suggestion there was anything unusual or concerning about P’s development to arouse a non-prurient curiosity. Any alleged ‘curiosity’ satisfied by the accused in producing and possessing the material could only, in the circumstances, be a sexual curiosity, to excite or gratify the accused’s sexual interest.
It was submitted that while it may conceivably be possible to accept that in taking a quick look (or peek) through the window at P naked in the shower, the accused was acting to satisfy a non-prurient curiosity, the fact he went further and made a lengthy recording of her, and then watched it in private, dispels any claim that that was his intention.
Further it was submitted that the accused’s claim that he had not deleted the recording as he had become distracted and forgotten about it simply could not be believed having regard to what he had done and what he must have known, given his role, about the gravity of what he had done.
It was submitted that if I found the accused had produced and possessed the recording to excite or gratify sexual interest, then I must also find beyond reasonable doubt that the accused had knowledge of the pornographic nature of the material. However, absent such a finding, if I accepted that there was a reasonable possibility that the accused did not turn his mind to whether, considered objectively, the recording was of a character to excite of gratify sexual interest, then I must acquit him.
Defence counsel prepared and relied upon a written outline of argument which was supplemented by oral closing submissions.
It was submitted that it had not been proved beyond reasonable doubt that the recording, considered objectively, was ‘intended or apparently intended to excite or gratify sexual interest’, meaning I could not be satisfied that the material was ‘of a pornographic nature’ as defined in the Act.
It was argued the recording was simply that of a naked pubescent girl in the shower (similar to image 5 in Morcom), displaying nothing sexual in P’s actions and no sexualised behaviour. Further, unlike image 5 in Morcom, there was no evidence the recording had been disseminated or was intended for dissemination or to be viewed by anyone other than the accused, nor was it part of a collection of similar images, rather it was a ‘one-off’.
Further, or in the alternative, if the approach of Stanley J in Morcom was adopted, it was submitted that the prosecution had not established that the accused intended the material on the recording to excite or gratify sexual interest. In this respect it was argued that the recording did not contain any focussing or ‘zooming in’ on P’s genital area, it simply depicted her naked in the shower. There was no evidence (absent the recording) that the accused had any paedophilic tendencies, with no child exploitation material located upon later analysis of his mobile phone or laptop computer.
The accused denied any sexual interest in P or in any child and denied making the recording because of a sexual interest in P and it was submitted his denials should be accepted.
It was submitted that the accused’s claim that he had made the recording to satisfy his curiosity as to P’s development, rather than for any prurient purpose or interest, was consistent with him making the ‘on the spot decision’ to film when he saw P through the window and then using his phone, which was readily accessible to JB, to make the recording. In this respect he noted that it had not been put to the accused in cross-examination that he had pre-planned the filming and that I should accept the accused’s explanation as to how he came to see P from outside the window and the circumstances surrounding it, in the absence of evidence to contradict those surrounding circumstances.
Further, counsel submitted that the accused’s claimed purpose in making the recording was consistent with him viewing it for only a minute or two, such that his curiosity was then satisfied, he became distracted and forgot to delete the recording, as was his original intention. The fact the accused had admitted looking at the recording was suggested as indicative of him being candid with the court.
In answer to the question why it was necessary to film P, rather than simply look at her through the window to satisfy his curiosity, the accused had said this was for two reasons – because he did not want her to see him looking at her and he could not see her clearly through the window. It was submitted by defence counsel that this was logical, because it would have been necessary for the accused to put his face right up to the window for him to see properly through the flyscreen.
As to the question of the accused’s knowledge of the pornographic nature of the recording, it was submitted that as the accused’s purpose in making the recording was only to satisfy his curiosity, his evidence that he had not turned his mind to what anyone else may think of the recording was reasonable.
It was argued that the prosecution had not established that at the time of making the recording the accused had consciously turned his mind to the question of whether or not the recording was of a pornographic nature, namely whether it was intended or apparently intended to excite or gratify sexual interest, nor had it proved that the accused had formed a positive belief and therefore knew the recording was of a pornographic nature. It was submitted there was no direct evidence to prove this or circumstantial evidence from which this could be inferred to the requisite standard of proof.
It was submitted:
…with respect to knowledge, it’s not an issue whether he thought it was morally wrong or right. The issue is much more precise. If your Honour doesn’t exclude as a reasonable possibility that his intent was to satisfy his curiosity and not to gratify or excite a sexual interest then of course he wouldn’t know or believe that it was of a pornographic nature.
Assessment of the Witnesses
There was very little contentious in the evidence given by Ms Walker and Officer Leary. I accept their evidence, both as to reliability and credibility, save that I consider that Ms Walker has simply assumed, rather than actually remembered, that what she observed near the end of Exhibit P6 was P dressing in her school uniform. In light of this I am not satisfied that she can also clearly remember (rather than has simply assumed) that the recording ended just after P had fully dressed.
Again, much of JB’s evidence was also uncontentious. It was my impression that JB was both an honest and reliable witness, doing the best to recount the circumstances of what must have been a very traumatic time in her life.
There were several aspects of JB’s evidence which require specific consideration.
JB described the accused’s behaviour as ‘odd’ following her return from interstate and before she found the recording.
On the accused’s own evidence he was unwell, he had just had the busiest week of his year and, as a law-abiding citizen and experienced and reputable teacher, he had just made (and watched part of) a recording of his naked 14-year-old step-daughter taking a shower. In such circumstances it is perfectly understandable why his presentation may have seemed ‘odd’ to JB, irrespective of what the accused’s claimed intentions were with respect to the recording and his recollection of his own behaviour. JB’s perception of the accused appearing odd and unlike what she had seen of him before is not inconsistent with him otherwise reacting or behaving in a way which is perfectly understandable in light of the undisputed evidence.
JB denied initiating any conversations with the accused as to her daughters’ development and maintained that although there were such discussions, these were initiated by the accused. She added that some three to four months before she discovered the recording that she had ceased having such discussions with the accused as she was concerned about some of the questions he was asking her. She agreed that she had not included this in her police statement.
Although the accused was not the father of JB’s daughters, the four of them had lived together as a family unit for several years, covering the period from when both P and her twin sister were young girls to teenagers. In those circumstances one would expect there may be a discussion of some type from time between JB and the accused, as husband and wife, as to the fact the girls were growing up, the changes in their bodies meaning different items of clothing needed to be purchased, what that meant in terms of changes in social life, attention from boys and the like.
I anticipate that there were discussions between the couple which in some way related to the girls’ physical development, that were initiated by JB, despite her denials.
Further since discovering the recording, JB has been required to reflect on some of the discussions she had with the accused. I consider it likely she has analysed those discussions to see if there was something about them which should have prompted her to suspect that the accused may act in the manner he did such that she could have prevented him from having the opportunity to do so. It is not unexpected that JB, who is likely to carry some guilt with respect to what happened, may now be convinced that there were comments made by the accused that indicated he may have the propensity to act as he did. I consider it likely that JB has ruminated over those discussions and that her perception of exactly what was said may be coloured by the trauma of subsequent events.
As such, I do not accept JB’s evidence that she never initiated a discussion about the girls’ development or her evidence (not contained in her police statement) that she was concerned about the content of some of the conversations initiated by the accused several months before the relevant events.
However, these matters do not otherwise cause me to doubt the reliability or credibility of JB’s evidence, noting that in most respects it was, in any event, undisputed.
A matter that was in dispute was the accused’s claim that there was almost an obsession on the part of JB with her daughters’ physical development, P’s breast size and a tendency for JB to graphically detail and discuss these matters with the accused. JB denied this and I accept her denial. There was nothing unusual or abnormal about P’s development that could be understood as the basis for any such obsession. JB’s shock at discovering the recording and her reaction to it is seemingly at odds with that of someone who was ready and willing to discuss her daughter’s physical attributes with others in the manner as claimed by the accused. The accused’s description of JB’s comments in this respect painted her as someone who was eager to share intimate and personal details about her daughters with others and to in effect, invade their privacy. Her reaction following the discovery of the recording was that of a mother horrified at the invasion of her daughter’s privacy and concerned to ascertain the reasons for it.

It was suggested that the accused did not have a passcode on his mobile phone because JB was very insecure in the relationship and often looked at his phone. It was also submitted that if the accused knew the recording was of a pornographic nature he would not have used his mobile phone to make the recording, given it was so readily accessible by JB.
JB acknowledged that from time to time she had used the accused’s mobile phone if hers was unavailable and that she had occasionally looked at his phone. However, it was apparent from JB’s evidence as to what she saw on the accused’s phone when she found it in the car, how she tried unsuccessfully to send the recording to herself and her lack of knowledge as to what she called ‘the icons’ on that phone, that she was not particularly familiar with it. Her familiarity with it is consistent with her evidence and inconsistent with the more frequent use (or frequent observations of the phone and its contents) as described by the accused.
Perhaps more importantly, there is no dispute the accused made the recording using his mobile phone. Irrespective of whether the recording is of child exploitation material (and irrespective of the accused’s knowledge of this), the accused must have known (and by reference to his evidence, did know) that what he did was morally wrong, a gross invasion of P’s privacy and breach of trust, at the very least. Nevertheless he elected to make the recording on a mobile phone that he knew contained no passcode and could be accessed by JB. This suggests either that, as the accused maintained, he intended to delete the material straight away but forgot to do so, or alternatively that he thought it was unlikely JB would in fact access his phone and see the material or he was prepared to take the risk that JB would do so.
In my view the frequency with which JB did (or did not) access the accused’s mobile phone is irrelevant in the circumstances, given there was no dispute she had the ability to and did in fact access it and no dispute that the accused used his mobile phone to make the recording.
JB’s recollection of the accused’s response to her, upon being confronted with the fact of the recording, was consistent with that of the accused. She acknowledged he had apologised and immediately deleted the recording. She remembered him saying he ‘was walking past the window’ and something along the lines of wanting to see how P was developing.
She conceded she could not say when or who had moved the bath salts onto the window ledge in the bathroom and that she had told her daughters many times to keep the bathroom window open.
Although JB may be mistaken as to whether or not she helped the accused in the garden before driving to the shops by herself on that Saturday afternoon, given what otherwise occurred on that day, this potential lack of memory for what is an otherwise insignificant detail is of little relevance.
The accused was not obliged to give evidence. As I have said, the accused is not required to prove anything or rebut anything. In giving evidence he exposed himself to cross-examination and should be given credit for doing so.
Having said that, my impression of the accused was that much of his evidence was self-serving, manufactured to paint himself in the very best light and to justify or somehow excuse his conduct.
At the time of the alleged offending, the accused was a 51-year-old step-father and father, employed by a Lutheran school as a teacher in a position of trust, responsibility and authority, with no previous criminal history nor any history of any disciplinary action against him. He was undertaking further study in the nature of a Leadership Development Program, to further his skills and enhance his ongoing career prospects. I have carefully considered these factors in assessing the accused’s credibility and whether there is cause for me to have a reasonable doubt as to any of the elements of the offences as charged.
On the critical issue as to why the accused made and retained the recording, I reject the accused’s evidence that his intention in producing and possessing the recording was to satisfy a non-sexual or non-prurient interest in P’s development. Such evidence is quite simply absurd and totally implausible.
In making such a finding I am very mindful of the accused’s previous good character and his apparently unblemished career as teacher.
There are many aspects of the accused’s evidence that are simply unbelievable.
JB gave evidence that P has a severe vision impairment. She said P cannot see at all out of one eye and has no peripheral vision and an astigmatism in the other eye meaning without her glasses everything is blurry. This evidence was not disputed.
It was dark when the accused made the recording. The accused claimed that he made the recording because he did not want P to see him through the window and he could not see P properly through the window. There was a flyscreen on the window. The accused was outside, in the dark, looking inside to a well-lit bathroom. He said his eyesight, although poor, was good enough for him to make the journey to the shed to search for a toy gun without his glasses.
P was concentrating on having a shower. She was not wearing her glasses. It is likely, and I find having regard to the recording and photographs 1 and 2 of Exhibit P4, that the curtain covered most of the main bathroom window at the time of the recording as depicted in those photographs, save for the small gap created by the presence of the bath salts on the window ledge. That part of the window which was not otherwise covered by the curtain was to the far right hand side of the window when viewed from P’s position in the shower.
Even if the curtain was not in precisely the same position at the time of the recording, it is likely it was in a similar position, there being no reason why it would have been opened more fully and the unlikelihood of the same, given the purpose of the curtain was effectively to ensure the privacy of the bathroom occupants. I also note the accused’s evidence that there was only a ‘small gap’ in the window that he could see through.
The presence of the curtain over most of the window, the limited portion of the ‘uncovered’ window and its position vis-a-vis P, the fact it was light in the bathroom and dark outside and P was concentrating on what she was doing, are all such that it was very unlikely P would or indeed could see the accused through the window. When P’s known significant visual impairment is added to that equation, the circumstances were such that the accused must have known and I find that he did in fact know, that it was almost impossible for P to be able to see him looking at her through the bathroom window. I reject his evidence that he simply did not take these factors into consideration at the time, these factors being self-evident.
The accused gave evidence that after seeing P through the window having her shower, he dismantled the clothes horse and that his curiosity got to him. When asked what he then did he stated:[23]
[23] T74.36-75.7.
ABy this stage, I mean, basically over many years the curiosity about what J was describing to me basically got to me and I said ‘I wonder what she does look like from all the conversations we’d had’.
Q What did you do as a result.
AI had my phone in my pocket, I took it out of my pocket, put it up against the window and pressed play.
Q What did you do then.
AI went – I proceeded on to the shed and went looking for the cap gun and the water pistols.
The accused was not cross-examined as to precisely how he made the recording.
He was cross-examined about what he had seen through the window, to which he acknowledged that he could see P in the shower, he knew it was her but he said he could not see her properly because ‘it was just a fleeting glance’.
The footage on the recording is very still, consistent with the accused’s mobile phone being propped on something stable throughout the during of the filming, rather than it being held by the accused and therefore liable to move from time to time.
However, the recording is such that the camera used to film it was positioned at the perfect angle, height and location to capture what was appropriately centred and focussed vision of the entirety of the shower enclosure. To capture the footage that was in fact captured required deliberate care on the part of whoever positioned and operated the camera, so as to ensure the footage in fact showed what it was intended to show, namely full length vision of P naked in the shower. To achieve this, the camera operator must have done much more than have a ‘fleeting glance’ at the subject being filmed. The camera was deliberately positioned with great care to depict as much as possible of P’s naked body. This is particularly so when regard is had to the fact that there is a sloping ledge outside the window, which must have added in some way to the difficulty in positioning and stabilising the mobile phone.
Further, the black squares of the flyscreen while able to be seen on the recording, are considerably less obvious than, for example, the black squares in photograph 19 of Exhibit P4, taken by Officer Leary from a short distance back from the window. As such, the accused’s mobile phone must have been at a distance much closer to the window than the camera held by Officer Leary at the time he took photograph 19, and the accused must therefore have been required to focus, position and centre the camera when his own face was in close proximity to the window. If the accused was genuinely concerned that P was able to see him through the window, he ran that very same risk by doing this.
I reject the accused’s evidence that he had only a ‘fleeting glance’ of P through the window. That evidence was simply untrue and given so as to detract from the significance of the accused’s actions.
By reference to Exhibit P3, the recording runs for over 11 minutes. In taking the time to properly position and focus the camera, the accused could (and would) have captured footage of several seconds (or perhaps more) of his intended subject. If, as the accused claims, he needed to record P, rather than simply look at her through the window as he could not see properly, to satisfy his curiosity, several seconds of footage was all that was needed.
The accused gave evidence that he watched the recording ‘for one to two minutes max’ and that this was sufficient to satisfy his curiosity.
Exhibit P6, which comprised a large part of, but not the full recording, was played to the court. P’s body and its physical characteristics are readily apparent from what can be seen on that vision. It is difficult to understand how the accused’s curiosity could not have been satisfied after watching five, 10, even 20 seconds, of that vision. The fact that on the accused’s own evidence he claims to have (only) watched one to two minutes of vision is, in my view, inconsistent with his claimed intention of satisfying a non-prurient curiosity.
It was submitted that as the accused had admitted watching some of the recording this was evidence of him being candid to the court. However, had the accused denied watching the recording, the immediate question which may then have remained unanswered would be, why did he make the recording? If he had made it, but did not watch it, what was he intending to do with it? As such, the accused’s acknowledgement that he watched the recording does not, in my view, bolster the reliability or credibility of his evidence.
Having apparently satisfied his curiosity, the accused claims he became distracted by something on the television, stopped watching and then forgot about the recording. I reject this evidence as being completely implausible.
I find the accused knew that what he had done was wrong (putting aside for the moment the question of whether or not he knew the material was ‘of a pornographic nature’). Irrespective of how tired or unwell he was, or overwhelmed with work or other worries, he had just crossed a line he knew he should not have crossed and recorded his naked step-daughter in the shower. How this could slip his mind is unfathomable, particularly noting that some time elapsed between the accused watching the recording and when he made the ‘spur of the moment stupid decision’ to make the recording. Not only did he make the ‘spur of the moment stupid decision’ to record P, he then later, watched and then did not delete the recording despite on his evidence that his curiosity had been satisfied from what he had watched.
The accused forgot to retrieve his mobile phone from the car after they returned home on the Saturday morning, indicating that at the relevant time he was prone to lapses in memory. However, forgetting to pick up your phone is one thing. I do not accept the accused’s explanation that he had forgotten that he had made a recording of his step-daughter, naked in the shower.
Despite claiming to feel unwell and very stressed, it is inconceivable that the accused simply forgot about the recording having regard to the circumstances it was made and the fact he was a well-educated mature man, who from his role well knew what was, and was not, at the very least, morally appropriate behaviour.
Upon being confronted by JB following her discovery of the recording, it was not disputed the accused’s explanation did include words to the effect that he had done so because he was going past the window and he wanted to see how P was developing.
This is seemingly consistent with the accused’s evidence to the court as to why and how the recording came about.
However, the accused gave evidence that when JB had not returned from shopping in a timeframe he had expected, he had gone to look for his phone to make a call to check if everything was alright. He then realised his phone was not there and that he had left it in the car. He was asked in examination-in-chief:[24]
[24] T80.29.
Q     Did that cause you to form any conclusion.
AInitially no and then the penny dropped, I thought maybe – I remembered the videotape then after a while.
QWell you say you remembered the videotape, what did the penny drop about – I was more asking about the phone itself. You’d looked for it inside.
A     Yep.
Q     Was there any further train of thought you then had as to where it might be.
A     Yes, I thought I must have left it in the car.
Q     Had you put a passcode on the phone.
A     No.
QBy the time J came home, did you have a state of mind or suspicion about why she might have been so long.
A     I thought she may have looked through my phone, yes.
As such, the accused knew, prior to being confronted by JB, that there was a possibility JB had seen the recording. He had some time (although precisely how long is unknown) to prepare for any confrontation arising from that having in fact occurred.
I do not doubt the accused wanted to see how P was developing and his claimed response is consistent with that. Why he wanted to do so, in other words, whether he simply held a non-prurient curiosity as he claims, is another issue.
For the reasons I have identified above I have significant concerns as to the accused’s reliability and credibility.
Findings of Fact
I make the following findings of fact, in addition to those referred to earlier in these Reasons, which are relevant to the matters in dispute.
The accused is a mature heterosexual male. He has no prior convictions and at the time of the alleged offending was a well-respected educator. He had not been the subject of any complaints or disciplinary action in that role.
On Thursday 27 October 2015 at approximately 8.30 pm the accused made a recording of his then 14-year-old step-daughter, P, naked in the shower. He used his mobile phone to do so.
The recording was in excess of 11 minutes in length.
The recording was made at a time when the accused was home alone with P. JB was interstate on a conference and P’s sister was staying elsewhere with her father. The accused was busy at work during that week, it being the last week of the school year for Year 12s before exams.
The recording was made from outside the bathroom window. It was dark outside at the time. P was in the well-lit main bathroom of the home. The window was open, and other than a very small gap, similar to that depicted in photograph 1 of Exhibit P4, the window was covered by a sheer curtain. There was a flyscreen on the window.
The recording depicts P fully naked taking a shower.
The vision of P in the shower is captured such that her entire body is effectively the only thing captured by the footage, with there being no obstructions between P and the camera, albeit a towel can be seen hanging on the left hand side on a towel rail outside the shower. The recording has an appearance which suggests that particular care was taken to ensure the camera lens was situated in precisely the correct location, at the correct height, angle and range to capture such vision, with the top of P’s head positioned at the very top of the vision and her feet at the very bottom.
It is apparent from the recording that P was unaware she was being filmed. P has vision in only one eye and suffers from an astigmatism in her good eye meaning she has no peripheral vision and her vision is very blurry unless she is wearing her glasses. P was not wearing her glasses at the time of the recording.
The accused, having lived with P since approximately 2009 and having spent considerable time with her, knew of P’s visual disability.
The accused was outside the home in the vicinity of the main bathroom window. Having regard to my concerns as to the accused’s reliability and credibility I am unable to make a finding as to why and how he came to be in that location.
The accused was in possession of his mobile phone when he saw P having a shower through the gap in the curtain of the open bathroom window.
I am unable to make any finding as to who opened the bathroom window or how the curtain came to be pushed apart to create the gap.
The accused then carefully positioned his mobile phone in such a way as to be in the appropriate position to capture fully focussed and clear, full length vision of P naked in the shower. This must have taken more than several seconds to do so and required him to take particular care when positioning and focussing the camera.
The accused knew that in light of the prevailing circumstances and P’s visual disability it was virtually impossible for her to have seen him through the window.
Even if he did not have such knowledge, the accused in any event took the time to properly position and focus the camera on his mobile phone, thus creating the very same risk he claimed he wanted to avoid, namely the prospect of being seen by P.
Later that same night the accused watched at least one to two minutes of the recording.
The accused did not delete the recording immediately after having watched it.
The accused knew his mobile phone was readily accessible by JB, as it was not passcode-protected and she had looked at and/or used his phone from time to time. Nevertheless he chose to use that device to make the recording.
From time to time before the date of the recording the accused and JB had had general discussions about JB’s daughters’ development. Some of those discussions were initiated by JB, some by the accused. I am unable to make findings as to the precise matters discussed.
When JB returned home from her conference it was her impression that the accused was acting in an odd manner. On Saturday 31 October 2015, the couple went out to breakfast together and visited a garden store to buy plants. The accused inadvertently left his mobile phone in the car thereafter. JB then went alone in the car to do further shopping, leaving the accused at home.
JB saw the accused’s mobile phone in the car. The mobile phone was not passcode-protected. As she felt something was odd, she looked at the phone. She swiped on the screen and saw an image from the recording which covered approximately one-third of the screen. She pressed ‘play’ and realised the recording was of P naked in the shower in the main bathroom of the home. JB tried unsuccessfully to send a copy of the recording to her own phone.

JB used her own mobile phone to record a copy of part of the recording. She then went to visit her friend, Ms Walker who viewed the entirety of the recording.
As JB was away much longer than expected, the accused attempted to locate his mobile phone to call her, but could not find it. He realised he had left his mobile phone in the car and that JB may have seen the recording.
JB returned home to confront the accused as to why he had made the recording. He said words to the effect that he had done so as he was walking past the window and he was interested in P’s development. The accused apologised and deleted the recording from his phone. Sometime later he left the home for a period of time, taking his phone with him. When he returned, JB asked to look at his phone and in the interim period the accused had put a passcode on the phone. At JB’s request he removed the passcode. JB then looked at the phone and saw that some ‘icons’ that she had previously noticed on it were missing.
The accused and JB separated shortly after the date JB discovered the recording.
Police seized the accused’s mobile phone and laptop computer on 7 February 2016. Forensic analysis of the computer revealed no evidence of the accused having accessed or produced child exploitation material. Forensic analysis of the accused’s mobile phone revealed only two files being remnants or ‘thumbnails’ of the recording and no (other) evidence of the accused having accessed or produced child exploitation material.
Applying the law to the facts
I refer to my analysis of the findings of both the majority and Stanley J in Morcom.
The issues in dispute are whether the recording is ‘child exploitation material’ and if so, whether at the time of producing (and possessing) the material, the accused knew of its ‘pornographic nature’.
I remind myself that it is for the prosecution to prove each element of the offences as charged beyond reasonable doubt and that the accused is not required to prove, or disprove, anything.
Having regard to the reasoning of the majority in Morcom, I must apply an objective test as to whether the recording is ‘intended or apparently intended’ to excite or gratify sexual interest and in doing so am both ‘entitled and obliged’ to have regard to the objective context and circumstances surrounding the production of the material.
I have been unable to make a specific finding as to why the accused left the home through the laundry door and came to be in the position he was outside the bathroom window at the time P was taking her shower.
If, despite the accused’s denials, when he left the home through the laundry door he did so with the express intention of recording P through the bathroom window, that would be a factor supporting a finding that the accused made the recording to excite or gratify his own sexual interest and therefore intended it to ‘excite or gratify sexual interest’. However, if, as the accused claims, he found himself fortuitously in this position for the reasons described by him, in any event he used this as an opportunity to make and retain the recording. The question remains to be answered, why he did so, rather than step away and continue going about his intended tasks.
The accused knew it was virtually impossible for P to see him through the window in light of the prevailing circumstances (as previously listed) and her visual disability.
As previously outlined, for the accused to film what is seen on the recording he must have taken some time and particular care to properly position, stabilise and focus his mobile phone to do so. In that time he must have had cause to look through the lens of the camera on the phone when it was positioned very close to the window. As a result, any impediment to the accused’s ability to properly see P’s naked body because of the impact of the flyscreen was necessarily lessened, such impediment being more apparent when one is further away from the flyscreen.
If, as he claims, the accused remained unable to see P’s body properly because of his poor eyesight, sufficient footage could have been obtained of P from a short period of filming, during which time the risk of the accused being seen by P was no greater than it was during the time he took to focus and position the camera. Instead the accused saw fit to leave the camera running.
Having done so the accused then watched between one to two minutes of the recording. Although he claimed this ‘satisfied his curiosity’, he did not immediately delete the recording and instead retained it.
For the reasons as previously outlined I reject as completely implausible the accused’s claim that having become distracted by the television on the Thursday night, he then forgot about the recording until such time as JB returned home late after doing her shopping on the Saturday.
The accused lived with P at the time the recording was made and had done so for around six years. He must have seen her from time to time wearing items of clothing such as t-shirts, bathers and pyjamas, from which the size of P’s breasts must have been readily apparent to him. He did not need to see P naked to have an appreciation of the size of her breasts.
There was no suggestion or indication that there was anything abnormal about P’s physical development or anything unusual about it.
On the accused’s evidence, albeit evidence I have rejected, JB had spoken to the accused at length as to the size of P’s breasts and nipples and the colour of her nipples. If the accused was told such information, as he claims, then there was nothing more to be curious about. He knew the relevant details, as he had been told about them. The accused acknowledged that it was these characteristics that he wanted to see for himself. The accused’s desire to see P’s naked body was so he could scrutinize the size of her breasts, the size of her nipples and the colour of her nipples.
I reject the accused’s evidence that this was a non-sexual or non-prurient curiosity noting:
(a)The accused made the recording at night when he was home alone with P and JB was away interstate.
(b)The recording was made deliberately to capture full-length footage of P, a well-developed 14-year-old girl, naked in the shower at a time when the camera was effectively hidden from P’s view and she was innocently going about the personal and private experience of showering.
(c)The length of the recording.
(d)The accused viewed the recording for one to two minutes, when having regard to what is depicted in the recording, the accused could have seen clearly the size of P’s breasts and nipples and the colour of those nipples by watching only several seconds of the recording.
(e)The accused did not delete the recording after viewing it.
In making the recording the accused acknowledged this meant he could ‘zoom in’ on aspects of it, albeit he did not go so far as to admit he had done so.
Despite his denials to the contrary and despite his claim to have no sexual interest in P (or other children), I reject the accused’s evidence as to why he made the recording, namely to satisfy a non-prurient curiosity as to P’s development.
I am satisfied beyond reasonable doubt that the accused made the recording to excite or gratify his own sexual interest and that the recording was therefore ‘intended or apparently intended to excite or gratify sexual interest’.
I am satisfied that there is no reasonable explanation to the contrary. I exclude as a reasonable possibility that the accused’s intention in making the recording was only to satisfy his curiosity and not to gratify or excite a sexual interest.
In making this finding I have had particular regard to the accused’s prior good character and have carefully scrutinised all of the evidence to ascertain if there is a reasonable hypothesis consistent with the accused’s innocence.
I have had particular regard to the fact that no other child exploitation material was found in the accused’s possession such that there is no evidence of the accused having any (other) paedophilic tendencies and that there is no evidence that this was other than an isolated incident. In addition there was no evidence he disseminated or intended to disseminate the recording.
I am mindful of Stanley J’s comments in Morcom that not all images of naked persons are ‘pornographic’ and of the fact that the recording itself does not show any sexualised behaviour, nor does it ‘zoom in on’ or otherwise highlight any of P’s body.
The recording consists of, or contains, the image of the bodily parts of a child under the age of 17 years.
The accused made the recording to excite or gratify his own sexual interest, meaning the recording is material ‘intended or apparently intended…to excite or gratify sexual interest’.
The recording is ‘of a pornographic nature’ within the meaning of the Act.
The recording is ‘child exploitation material’ within the meaning of the Act.
The accused made the recording and therefore produced child exploitation material.
The accused retained the recording on his mobile phone and had the intention and power to exercise control over the recording. He was in possession of the recording between the time he filmed the recording and the time he deleted it, after being confronted about it by JB, despite leaving it in the car for that period of time meaning it was accessible by JB. The accused was in possession of child exploitation material.
As I find that the accused made the recording to excite or gratify his own sexual interest, at the time he produced the recording and at the time he was in possession of the recording, he knew of the pornographic nature of the recording.
The accused knew that P, the child of the offending, normally or regularly resided with him.
The prosecution has proved each element of each of the offences as charged beyond reasonable doubt.
Verdict
I find the accused guilty of both counts.