R v Williams - [2014] QDC 62

[2014] QDC 62

DISTRICT COURT OF QUEENSLAND
CRIMINAL JURISDICTION
JUDGE DEVEREAUX SC
THE QUEEN
v.
WILLIAMS
and WILLIAMS
BRISBANE
4.31 PM, WEDNESDAY, 12 FEBRUARY 2014
RULING

HIS HONOUR: The applicants are charged that on 9 December 2012 at Caboolture, they knowingly possessed child exploitation material, under section 228D of the Criminal Code. They apply for rulings as set out in Mr Mac Giolla Ri’s outline as follows:
(1) that the term “someone” as used in section 207A of the Criminal Code necessarily implies that “someone” is a human person;
(2) to warrant a conviction the cartoon images said to be in the possession of the defendants must be proved beyond reasonable doubt to depict a human person; and (3) in order to prove that the images depict a human person, it is not sufficient to prove that the cartoon images depict a representation of a human person or are merely human-like.

For the reasons that I will set out now, I am satisfied that the first two of those rulings could be made but not the last.

Both parties have submitted that I need not see the material to rule on this application on the basis that, primarily at least, it is a matter of law. So I have not seen the material, but I am told it consists of animated characters in a style of Japanese animation called Manga. The applicants submit that because the characters are “humanoid but obviously not human in the strict sense”, the material could not, as a matter of law, come within the definition of child exploitation material as that was defined at the time of the charge. The Prosecution submits that the material could, as a matter of law, come within the definition. Alternatively, the Prosecution submits the definition as amended by the Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Act 2013 applies and catches the material.

At the time of these charges, section 207A of the Criminal Code defined child exploitation material as,
“Material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is or apparently is a child under 16 years that:
(a) in a sexual context, including for example, engaging in a sexual activity; or
(b) in an offensive or demeaning context; or
(c) being subjected to abuse, cruelty or torture.”

Section 207A includes this definition,
“Someone, in the context of a description or depiction, includes the body parts of someone, including, for example, someone's breast or genitalia.”

The definition after amendment reads as follows,
“Child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years – …”

The difference, obviously, between the provisions, is that the word “someone” is replaced by the terms “a person, or a representation of a person”.

Arguably, the words, ‘a representation of a person’ actually add nothing.…

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 Williams

Details

AGLC: R v Williams [2014] QDC 62
Case: [2014] QDC 62
Decision Date: 12 FEBRUARY 2014

CaseChat Overview and Summary

The defendants, Williams and another person, were charged with possessing child exploitation material under section 228D of the Criminal Code. They applied for rulings on the meaning of the term “someone” as used in section 207A of the Criminal Code, and whether the cartoon images in their possession depicted a human person. The court was required to determine whether the term “someone” necessarily implies a human person, whether the images must be proved to depict a human person beyond reasonable doubt, and whether it is sufficient to prove that the images depict a human-like representation of a person. The court held that the term “someone” in section 207A of the Criminal Code necessarily implies a human person, and that to warrant a conviction the cartoon images said to be in the possession of the defendants must be proved beyond reasonable doubt to depict a human person. However, the court declined to rule that it is not sufficient to prove that the cartoon images depict a representation of a human person or are merely human-like. The court reasoned that the definition of child exploitation material in section 207A requires the representation of a child by depiction or description, and that it is not possible to locate every described and depicted person. However, the depiction must look like a child under 16 years and generate in the mind of the reader or listener the image of a child being treated in the ways set out in section 207A. The court held that it would be difficult to imagine an animated cartoon could depict someone in the required sense, but it did not say this categorically as it had not seen the images. The court held that it would be a matter for the parties to decide what, if anything, was next to happen, whether any further application was to be made by either side. The court ordered that the indictment be mentioned on Friday the 14th of February, legal representatives only required.

Orders