Stroop v Harris
[2017] ACTSC 294
•8 August 2017
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 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 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 |
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 light jumper and
three-quarter length tights and running shoes. The unusual features of the photographs are that they are directed to the crotch of the woman, they are taken at an angle and proximity which would not be normal, and her head and face are not included in the photograph.
The third photograph is of a 17-year-old college student taken on a tennis court near her college where she was undertaking activities with children from the childcare centre. She is shown squatting down near the net which appears to have been partially lowered so that some portion of the net was resting on the ground. The student is wearing a sports uniform, namely a collared t-shirt, shorts and running shoes. Once again the photo is taken from near the ground directed up towards the student’s crotch area.
In none of the photos is the genital area exposed. In neither case would the clothing that is shown covering the genital area appropriately be described as underwear.
There is no evidence as to precisely how the photographs were taken other than what can be inferred from the photographs themselves.
The appeal challenges the magistrate’s conclusion that a reasonable person would, in all the circumstances, consider the taking of photographs to be:
(a)an invasion of privacy; and
(b)indecent.
Section 61B
Section 61B of the Crimes Act provides:
61B Intimate observations or capturing visual data etc
(1) A person (the offender) commits an offence if –
(a) the offender –
(i) observes another person with the aid of a device; or
(ii) captures visual data of another person; and
(b) a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be –
(i) an invasion of privacy; and
(ii) indecent.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2) Strict liability applies to subsection (1)(b)(i).
(3) Absolute liability applies to subsection (1)(b)(ii).
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant
proves that the defendant –(a) believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person; or
(b) did not know, and could not reasonably be expected to have known, that the observing or capturing of visual data of the other person was without consent.
Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code, s 59).
(5) A person (the offender) commits an offence if –
(a) the offender observes with the aid of a device or captures visual data of –
(i) another person’s genital or anal region; or
(ii) for a female or a transgender or intersex person who identifies as a female – the breasts; and
Example
using a mobile phone to take photos of a woman’s underwear under her skirt or down the front of her blouse
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(b) a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be an invasion of privacy.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(6) Strict liability applies to subsection (5) (b).
(7) It is a defence to a prosecution for an offence against subsection (5) if the defendant
proves that the defendant –(a) believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person’s genital or anal region or
breasts; or(b) did not know, and could not reasonably be expected to have known, that the
observing or capturing of visual data of the other person’s genital or anal region or breasts was without consent.
Note The defendant has a legal burden in relation to the matters mentioned in s (7) (see Criminal Code, s 59).
(8) Subsections (1) and (5) do not apply to –
(a) an observation made by viewing data that was previously captured; or
(b) an observation or capturing of visual data –
(i) by a law enforcement officer acting reasonably in the performance of the
officer’s duty; or(ii) by a licensed security provider acting reasonably in carrying on a security
activity authorised under the security provider’s licence; or(iii) of a child or other person incapable of giving consent in circumstances in
which a reasonable person would regard the observing or capturing of visual
data as acceptable; orExample
taking a photograph or movie of a naked newborn relative
(iv) for a scientific, medical or educational purpose; or
Example
a patient consents to her doctor taking an image of a mole on her breast for the purpose of showing another doctor for a second opinion about the mole
(v) by a person in the course of reasonably protecting premises owned by the
person; or(vi) in circumstances or for a purpose prescribed by regulation.
(9) Nothing in subsection (8) prevents a person being found guilty of an offence under or
because of the Criminal Code, part 2.4 (Extensions of criminal responsibility).(10) In this section:
breasts, of a female or a transgender or intersex person who identifies as a female, means the person’s breasts whether covered by underwear or bare.
capture visual data – a person captures visual data of another person if the person captures moving or still images of the other person by a camera or any other means in such a way that –
(a) a recording is made of the images; or
(b) the images are capable of being transmitted in real time with or without retention
or storage in a physical or electronic form; or
(c) the images are otherwise capable of being distributed.
device does not include spectacles, contact lenses or a similar device when used by someone with impaired sight to overcome the impairment.
genital or anal region, of a person, means the person’s genital or anal region whether covered by underwear or bare.
law enforcement officer means –
(a) a police officer; or
(b) a member of the staff of the Australian Crime Commission established by theAustralian Crime Commission Act 2002 (Cwlth).
licensed security provider means a person who holds a licence under the Security Industry Act 2003.
security activity – see the Security Industry Act 2003, section 7.
A number of observations can be made about this provision.
First, there are two distinct offences: that established by s 61B(1) and that established by s 61B(5). The offence against sub-s (1) is a generally applicable provision which requires both indecency and “an invasion of privacy”. The offence created by sub-s (5) is specifically targeted at images of the breast, genital or anal region, but only when that region is naked or covered only by underwear.
Second, the concept of “an invasion of privacy”, which is an element of sub-s (1), is not defined.
Third, the legislature has demonstrated both by the express qualifications upon the offence provisions and also by the inclusion of the capacity to exempt additional conduct by regulation, a recognition that the general prohibitions may cover a wide range of circumstances and a concern that the legislation does not unwittingly cover conduct which would not be considered to warrant criminal sanction. No regulations have been made for the purposes of sub-s (8). The concern of the legislature is clearly articulated in the Explanatory Statement which I refer to in more detail below.
Fourth, the scheme of the section is to prohibit images of the breast, genital or anal area but only in circumstances where those areas are bare or only covered by underwear. Thus, for the purposes of sub-s (5), it is not an offence to take a photograph of the genital area if it is covered by clothes (other than underwear) or a swimming costume. The legislature appears to have recognised the impracticality of prohibiting the taking of images of the genital area of a person when that area is covered by ordinary clothing. It is only if the requirements of both indecency and an invasion of privacy are satisfied that such conduct will be criminalised by the more general provision in sub-s (1).
Fifth, conduct which is covered by s 61B may, in many cases, also be caught be s 60 of the Crimes Act – committing an act of indecency without consent. That provision may cover the taking of a photograph: for example Pellegrino v Harman [2016] ACTSC 366 at [32]-[34]. Section 60 contains no requirement for an invasion of privacy. No charge under that section was brought in this case.
The Explanatory Statement
The Explanatory Statement for the clause which became s 61B is unusually long, extending over 11 pages. Relevant to the present case it said:
New offence – section 61B(1) observe or capture indecent content etc
This amendment inserts a new offence of observing with a device or capturing visual data of another person where the content observed or captured is, in all the circumstances, an invasion of privacy and indecent.
The purpose of the amendment is to criminalise indecent observations or recordings of other people in situations where that person should be afforded privacy. The offence will ensure that the criminal law applies to conduct that amounts to an invasion of a person’s privacy where the observing or capturing of visual data of the other person is, in all the circumstances, indecent. This reflects the community’s expectation that certain private acts should not be subject to interference in this way.
The offences support the right to privacy at section 12 of the Human Rights Act which states that everyone has the right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily and not to have his or her reputation unlawfully attacked.
In the case of Soderman v Sweden the court considered Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; the right to respect for private and family life. The court held that a failure to implement legislation to prevent covert or non-consensual filming or photographing of an individual is a violation of that individual’s right to privacy.
As the range of acts that can potentially be covered is broad, the offence uses a number of mechanisms to limit its application as described below. The offence has been constructed to avoid inadvertent or accidental instances of the conduct. The Criminal Code, section 22 (Offences that do not provide fault elements) provides that a fault element of intention applies to a physical element that consists only of conduct. This means that the conduct of observing or capturing another person must be intentional. The offence is also constructed to apply to behaviour involving emerging technology. The term ‘capture visual data’ is defined to include a recording, images that are capable of being distributed as well as any images capable of being transmitted in real time with or without retention or storage in a physical or electronic form. The offence is also intended to apply to conduct such as live streaming using the internet where no recording is being made in the typical sense as the content is live and ends once the streaming stops and cannot be retrieved.
Some examples of the behaviour this offence protects against include:
· observing someone in a private act at a distance using binoculars;
· intentionally setting a phone to record in a change room;
· streaming live data of a person in circumstances where they could reasonably expect to be afforded privacy; or
· taking photos of other people having sex.
The offence is limited to instances where the conduct would constitute an invasion of privacy. Technological advancements and the development of sophisticated equipment continue to pose an ongoing threat to individual privacy. Ascertaining the scope of the legal right to privacy is difficult due to the ongoing tension between freedom of expression and the privacy rights of an individual. As a result, it is not possible to define the concept as the characteristics of privacy change over time to remain consistent with community values.
It is neither possible nor appropriate to define privacy as the concept of privacy can mean different things to different people and in defining ‘privacy’ the concept would lose its relevance.
In R v Broadcasting Standards Commission ex parte BBC [2001] QB 885 at [48], Lord Mustill attempted to define the essence of privacy as follows:
‘To my mind the privacy of a human being denotes at the same time the personal ‘space’ in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects that space from intrusion. An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate.’
Furthermore, the observing or capturing of visual data must be indecent as assessed according to the common law definitions of indecency. In this regard, the level of indecency will be assessed according to what is “contrary to the ordinary standards of morality of respectable people within the community”: R v Harkin (1989) 38 A Crim R 296 at 299 as well as the context of the “nature or quality of the act in itself”: Drago v The Queen (1992) 63 A Crim R 59 at 73.
New offence – section 61B(5) observe or capture genital or anal region
This amendment creates an offence of observing with a device or capturing visual data of another person’s genital or anal region, or female breasts when a reasonable person would in all the circumstances consider the observing or capturing of visual data to be an invasion of privacy.
This offence is intended to capture ‘upskirting’ and ‘down-blousing’ offences that now occur more often, in part due to advances in technology. As with s 61B(1), The Criminal Code, section 22 (Offences that do not provide fault elements) provides that a fault element of intention applies to a physical element that consists only of conduct. This means that the conduct of observing or capturing another person must be intentional.
Some examples of behaviour covered by this provision include:
· using a hidden camera to take upskirting photos;
· using a mirror to look under a woman’s skirt;
· directing and/or manipulating a security camera to be at such an angle that it shows female breasts (covered by underwear or bare);
· recording another person’s genital or anal region (covered by underwear or bare) using a video recorder; or
· live streamed and real-time upskirting video.
Purpose for observing with a device or capturing data – interaction with element of indecency
There is no requirement to prove that the image, however it was captured, was done for a sexual purpose. The reason for this is that the motivations for this conduct will only be known to the perpetrator, making it inappropriate to apply this element to the offence.
It is recognised that there is reasonable concern about people taking innocuous images and being charged with the offence at s 61B(1). In order to prevent this, the prosecution must prove, beyond reasonable doubt, that the content of the observation with a device or the capturing of visual data is indecent.
Indecency is to be assessed according to the common law definitions of indecent. In this regard, the level of indecency should be addressed according to what is “contrary to the ordinary standards of morality of respectable people within the community”: R v Harkin at 299, as well as the context of the “nature or quality of the act in itself”:” Drago v The Queen at 73.
The case of R v Harkin, defined indecency to mean ‘contrary to the standards of morality of respectable people within the community’: at 299. The Court went on to determine that ‘indecency’ may ‘derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas… The purpose or motive of the appellant in behaving in that way is irrelevant’ and the motive does not necessarily need to be sexual gratification’: R v Court [1989] 1 AC 28 at 35.
The definition of ‘indecency’ has intentionally been left to be defined by current case law to account for the fluidity of this concept. The importance of having a fluid definition of ‘indecency’ is to allow community values to properly determine what should and should not be considered indecent according to current community standards.
Although s 29 of the Human Rights Act states that the Act is only applied to Territory law, the Human Rights Act is applied to the overall offence. Consequently, s 30 of the Human Rights Act allows this offence to be interpreted though a human rights framework and it is expected that this will occur with all elements of the offence.
(footnotes incorporated as text)
Submissions
The appellant referred to the dicta of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [42]:
There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.
The appellant’s submissions were to the effect that there was, in the circumstances, no reasonable expectation of privacy. Counsel for the appellant submitted that unless there was a reasonable expectation of privacy it could not be concluded that the taking of the photograph amounted to an “invasion of privacy”.
The appellant contended that in each case the image was taken in a place which was relevantly public. The photographs at the childcare centre were taken of a parent collecting the child from that centre and hence there was no privacy as between the appellant and the victim arising from the place where the victim was when the photograph was taken. Similarly, the photograph of the college student was taken at a tennis court when the student was involved in an activity involving the children from the childcare centre. There was no privacy as between appellant and the victim arising from the place where the victim was when the photograph was taken.
The appellant accepted that the characterisation of the location in which the photograph was taken as private or public was not determinative of the question whether there was a reasonable expectation of privacy. He accepted that an expectation of privacy may be generated by the nature of the activity being undertaken. Activities such as changing clothes, going to the toilet or showering are examples of activities in which a person would have an expectation of privacy even if undertaken in a place that was open to the public.
The appellant submitted that neither of the victims were engaged in any activity that was meant to be unobserved or was intrinsically private. He submitted that observations might readily have been made of the first victim had she attended the gym in her activewear or of the college student had she travelled to college on a bus.
The appellant next submitted that the photos did not reveal any intrinsically private information about either of the alleged victims, contrasting the case with the facts in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; 2 AC 457. In that case the photograph disclosed the model Naomi Campbell leaving a Narcotics Anonymous meeting along with other persons who were part of the group. The conduct in the present case disclosed no relevant information that could be considered to be an invasion of the person’s privacy.
The appellant submitted that although neither victim expected to be photographed or consented to such a photograph, that subjective belief was not sufficient to establish an invasion of privacy. That conclusion should be more readily reached having regard to the proliferation of CCTV cameras and the ubiquity of smartphones.
Counsel for the respondent noted the statement in the Explanatory Statement that it was neither possible nor appropriate to define privacy and that the concept of privacy can mean different things to different people. The respondent submitted that the concept of “an invasion of privacy” did not require that the activity engaged in by the victim be a private activity. She contrasted that with the position under s 91K of the Crimes Act 1900 (NSW) which required that the person be engaged in “a private act”. She submitted that the indecent nature of the photographs, the proximity, and the angle from which the photograph was taken meant that it was reasonably open for the magistrate to find that the taking of each photographs was an invasion of privacy.
In relation to the ground of appeal directed to the finding of indecency, the appellant submitted that:
(a)there was nothing indecent about the human body per se;
(b)it was not sufficient to establish that the photographs offended against recognised standards of good taste: see R v EG [2002] ACTSC 85 at [6]; and
(c)while the conduct might be offensive and deserving of strong moral condemnation, it was not indecent.
The respondent submitted that the whether the capture of the visual data was indecent is to be determined in accordance with the standards of morality of respectable people in the community. Counsel submitted that the magistrate was correct to conclude the capturing of an image clearly aimed at the genital region of a woman otherwise innocuously engaged in a perfectly unremarkable activity was indecent.
This case
The magistrate was correct to conclude that the taking of the photograph was indecent in the Harkin sense: R v Harkin (1989) 38 A Crim R 296 at 299. The photograph was taken of the genital area of each victim from an angle and location which, even though each victim was clothed, had a sexual connotation and was contrary to the standards of morality of respectable people within the community. For the purposes of the statute, a reasonable person would in all the circumstances consider the capturing of the visual data to be indecent. This ground of appeal is therefore not made out.
The more substantial question in this case is whether or not the capturing of the image was “an invasion of privacy”.
In each case the photograph was taken in a place where the victim was and would have expected to have been observed by relative strangers. There was thus no expectation that that the person would not have been observed.
In each case the victim was dressed and hence only exposing to the view of strangers those parts of the body which they wished to. In so far as the photographs displayed their genital area, that area was covered with clothing. It was thus not a case where the prohibition in sub-s (5) was engaged.
The victims were not engaged in activities which would reasonably be considered to be private activities (examples of which are provided in the Explanatory Statement set out above).
The victims would not have expected to have been observed from the position or angle of the camera.
The question resolves itself to whether the taking of a photograph from a proximity and at an angle from which the victim did not anticipate being observed but did not involve any activity such as “up skirting” or “down blousing” by which parts of the body otherwise covered with clothing could be observed amounted to an “invasion of privacy”.
As the Explanatory Statement makes clear, a deliberate decision has been made to not define privacy in any fixed sense so as to permit the concept to accommodate changes in technology and changes in community values.
Notwithstanding this approach by the legislature, I do not consider that it is enough that the combination of indecency and lack of consent amounts to an invasion of privacy. Those requirements are reflected in other elements of the offence. The requirement for an invasion of privacy which has been inserted as a distinct element must add something to the requirements to establish the offence.
The two additional features, the proximity and the angle of the photograph, do not demonstrate an invasion of privacy. So far as images are concerned, proximity per se does not involve a breach of privacy. It will only be so if the circumstances are such that the proximity invades what would otherwise have been private. The angle at which the photographs were taken means that an arrangement of the victims body not otherwise observable (that is, looking up between the victims spread legs) was captured in the images. However given that this does not avoid the concealing effects of clothing (in contrast to “upskirting” or “down-blousing”) there is no invasion of privacy caused by the adoption of this angle. None of this is to suggest that proximity and angle are not significant for the issue of indecency, but that is a separate issue.
Reasonable members of the community would most likely consider the taking of these photographs to be indecent, inappropriate, demeaning, unpleasant or offensive but not an invasion of privacy. It would deprive the concept of privacy of much of its meaning if it were permitted to extend to such relevantly public situations.
Therefore because an element of the offences could not be established the appeal must be allowed.
Orders
The orders of the Court are:
1. The appeal is allowed.
2. In relation to each charge (CC16/9528, CC16/9530, and CC16/6253) the orders of the Magistrates Court (other than the order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)) are set aside and the following order made:
(a) The information is dismissed.
(b) The informant pay the defendant’s costs of the proceedings in an amount agreed by the parties pursuant to reg 4(1)(b) of the Magistrates Court Regulation 2009 (ACT) or, in default of the filing of an agreement under s 5 of that Regulation, within 14 days of the date of this order in an amount assessed by the registrar in accordance with the scale of costs as applied under regs 4(3)(b) and (c) of the Regulations.
3. The costs of the appeal are reserved.
4. Liberty to apply in relation to the costs of the appeal on 7 days notice.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 9 October 2017 |
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