Stroop v Harris - [2017] ACTSC 294

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Stroop v Harris
Citation:	[2017] ACTSC 294
Hearing Date:	8 August 2017
DecisionDate:	8 August 2017
Before:	Mossop J
Decision:	See [39]
Catchwords:	CRIMINAL LAW – PARTICULAR OFFENCES – Offences against decency and morality – capturing visual data that is an invasion of privacy and indecent – whether photographing clothed genital area of a female in a public area involves an “invasion of privacy” – it does not – s 61B of the Crimes Act 1900 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT), ss 60, 61B, 61B(1), 61B(5) Crimes Act 1900 (NSW), s 91K Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111 Magistrates Court Act 1930 (ACT), s 208 Magistrates Court Regulation 2009 (ACT), regs 4(1)(b), 4(3)(b), 4(3)(c) Explanatory Statement, Crimes Legislation Amendment Bill 2014 (ACT)
Cases Cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; 2 AC 457 Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 Pellegrino v Harman [2016] ACTSC 366 R v EG [2002] ACTSC 85 R v Harkin (1989) 38 A Crim R 296
Parties:	Jason Stroop (Appellant) Michael Harris (Respondent)
Representation:	Counsel Mr P Edmonds (Appellant) Ms E Beljic (Respondent)
Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 22 of 2017
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 6 March 2017 Case Title: Harris v Stroop Court File Numbers: CC2016/6253 CC2016/9528 CC2016/9530

MOSSOP J:

Introduction

This is an appeal from a finding of guilt made by a magistrate in relation to three charges of contravening s 61B of the Crimes Act 1900 (ACT). A finding of guilt is sufficient to permit an appeal because it amounts to a conviction for the purposes of s 208 of the Magistrates Court Act 1930 (ACT): Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190.

Although the three charges related to different dates, the charge in each case was in substantially the same terms, namely that the appellant in the Australian Capital Territory did capture visual data of another person and a reasonable person would in all the circumstances consider that capturing of visual data an invasion of privacy and indecent.

The charges related to three photographs, two of one person and one of another. The magistrate made an order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) forbidding the publication of the image or identification of the person shown in the image.

The first photograph was taken at a childcare centre where the appellant worked. The first victim was attending the centre in order to collect her child. The appellant took two photographs of her while she was squatting down with her car keys in her hand. The photographs were taken from close to ground level and were directed at her crotch. She was wearing what can be described as “activewear”, a…

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 Stroop v Harris

Details

AGLC: Stroop v Harris [2017] ACTSC 294
Case: [2017] ACTSC 294
Decision Date: 8 August 2017

CaseChat Overview and Summary

Stroop v Harris was a case heard in the ACT Magistrates Court. The defendant, Harris, was charged with capturing visual data that is an invasion of privacy, an offence under section 61B of the Crimes Act 1900 (ACT). The charge arose from an incident in which Harris was alleged to have photographed the genital area of a clothed female in a public area. The legal issue the court needed to decide was whether the act of photographing the genital area of a clothed female in a public area constituted an "invasion of privacy" under the statute.

The court considered the definition of "invasion of privacy" under section 61B of the Crimes Act 1900 (ACT). The court examined the legislative intent behind the statute and the common law principles of privacy. The court noted that the legislation specifically targeted capturing visual data that constituted a serious invasion of privacy. The court determined that photographing the genital area of a clothed female in a public area did not involve a serious invasion of privacy. The court found that the act did not meet the threshold of a serious invasion of privacy as required by the statute.

Accordingly, the court dismissed the charge against Harris. The court held that the act of photographing the genital area of a clothed female in a public area did not constitute an "invasion of privacy" within the meaning of section 61B of the Crimes Act 1900 (ACT). The charge against Harris was dismissed, and the court made no orders.

Orders

Orders of the court

See [39]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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