7.11.5.1.1 - Production of Child Pornography: Bench Notes[1]
Commencement Information
1. The offence of Production of Child Pornography (Crimes Act 1958 s68) commenced operation on 1 January 1996 (Classification (Publication, Films and Computer Games) (Enforcement) Act 1995 s2).
2. This offence was amended by the Justice Legislation (Sexual Offences and Bail) Act 2004, to increase the relevant age of a child from “under 16” to “under 18”. The revised age limit applies to offences alleged to have been committed on or after 18 May 2004.
Overview of Elements
3. Production of Child Pornography has the following five elements, each of which must be proven beyond reasonable doubt:
i) The accused printed or otherwise made or produced a film, photograph, publication or computer game;
ii) The accused intended to print, make or produce that film, photograph, publication or computer game;
iii) That film, photograph, publication or computer game describes or depicts a person:
a) engaging in sexual activity; or
b) depicted in an indecent sexual manner or context;
iv) The person described or depicted in that way is, or appears to be, a minor; and
v) The accused knew the nature of the film, photograph, publication or computer game, or was aware of its likely nature.
Production of a Film, Photograph, Publication or Game
4. There are two aspects to the first element:
i) The accused must have printed or otherwise made or produced certain material; and
ii) The material printed, made or produced must have been a film, photograph, publication or computer game.
5. The terms “printed”, “made” or “produced” are ordinary English terms (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248).
6. It has been held in England that a person who intentionally downloads a copy of a file from the Internet onto his or her computer produces or makes that copied file, because s/he causes it to exist (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13. See also DPP v Kear [2006] NSWSC 1145).[2]
7. The definition of a “photograph” includes a photocopy or other reproduction of a photograph (Crimes Act 1958 s67A).
8. Crimes Act s67A specifies that the terms “film”, “publication” and “computer game” are to be given the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
9. A “film” is defined to include any form of recording from which a visual image may be reproduced. This includes cinematographic films, slides, video tapes or video disks (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5).
10. A series of separate images downloaded to a computer by a user may also be considered to be a “film” (DPP v Kear [2006] NSWSC 1145).
11. A “computer game” is defined as a computer program capable of generating a display that allows for the playing of an interactive game[3] (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5A).
12. Although a “publication” is defined as any written or pictorial material which is not a film, computer game or advertisement for a publication, film or computer game (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5), private expressions of thought intended exclusively for private use, and which are not intended or likely to be distributed or disseminated, are not publications (R v Quick [2004] VSCA 270).
13. Advertisements for publications, films or computer games are excluded from the definitions of those terms (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5). It therefore seems that a person who makes or produces an advertisement containing child pornography will only be guilty of this offence if the advertisement is photographic.
Intention to Print, Make or Produce
14. The second element of this offence requires the accused to have intended to print, make or produce the film, photograph, publication or computer game (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13).
15. A person will therefore not be guilty of this offence if he or she unintentionally downloads a copy of a file from the Internet onto his or her computer (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13. See also DPP v Kear [2006] NSWSC 1145).
16. This may occur due to the way in which the Internet works. When a computer user views an image on the Internet, that image will automatically be copied to a “temporary Internet cache”, where it will remain until the user deletes it, or until the computer overwrites the image after a certain period of time. If a particular user is unaware of the existence and operation of this cache, he or she cannot be said to have intentionally copied that image to his or her computer (R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145).[4]
Sexual Activity or Indecent Sexual Context
17. The third element of this offence requires the film, photograph, publication or computer game to depict or describe a person “engaging in sexual activity or depicted in an indecent sexual manner or context” (Crimes Act 1958 s67A).
18. It is not necessary that the person be engaging in sexual conduct or adopting a sexual pose. It is sufficient if the depiction is of a sexual character, nature or context (Walls v R Vic CC 14/07/2003).
19. It is not necessary that the depiction be of an event that has actually taken place. A fictitious account may depict or describe conduct constituting child pornography (R v Quick [2006] VSC 270).
20. The people depicted in the material do not need to be real people. An account involving fictitious people described as minors will be sufficient for this element to be met (Holland v The Queen [2005] WASCA 140).
21. In determining whether material is “indecent”, it is necessary to apply contemporary standards and values. This must be assessed using community standards rather than the standards of any particular member of the jury (Walls v R Vic CC 14/07/2003; Phillips v SA Police (1994) 75 A Crim R 480; Crowe v Graham (1969) 121 CLR 375).
22. The context and purpose of the act will also be relevant in determining whether it is indecent. An act done for a legitimate medical purpose may not be indecent even if the same act would be indecent if done for a prurient purpose (R v EG [2002] ACTSC 85; R v Court [1989] AC 28).
Age of the Victim
23. The fourth element of this offence requires a person depicted or described in the way outlined above to be, or appear to be, a minor (Crimes Act 1958 s67A).
24. The age requirement for this section varies, depending on when the offence is alleged to have been committed:
· For offences alleged to have been committed on or after 18 May 2004, the person depicted or described in the relevant way must be under the age of 18 (Crimes Act 1958 s67A).
· For offences alleged to have been committed prior to 18 May 2004, the person depicted or described in the relevant way must be under the age of 16 (Justice Legislation (Sexual Offences and Bail) Act 2004 s4).
25. This element will be satisfied if the person depicted or described is under the relevant age limit, even if he or she does not appear to be so (Police v Kennedy (1998) 71 SASR 175).
26. In determining whether the victim “appears to be” a minor, the jury is required to make its own assessment of his or her apparent age (Police v Kennedy (1998) 71 SASR 175).
27. The jury must be satisfied that this element has been proven beyond reasonable doubt. Where the prosecution relies on the victim’s “apparent age”, this means that the jury must be satisfied, beyond reasonable doubt, that the accused appears to be a minor (R v Wescott Vic CC 26/5/2005).
Knowledge
28. The fifth element of this offence requires the accused to know the nature of the film, photograph, publication or computer game (Police v Kennedy (1998) 71 SASR 175).
29. The precise scope of this element has not yet been determined in Victoria. Following the principles in He Kaw Teh v R (1985) 157 CLR 523, it appears likely that the accused will have to have known, or been aware that it was likely, that s/he was printing, making or producing pornographic images of a minor.
Exceptions
30. Section 70AAA of the Crimes Act 1958 sets out exceptions to the offences of production of child pornography, procurement of minor for child pornography and possession of child pornography.
31. Section 70AAA commenced on 3 November 2014, and applies to all proceedings, regardless of when the offence is alleged to have been committed (Crimes Act 1958, s626(5)).
32. Whenever one of the four exceptions requires a belief by the accused on reasonable grounds, the accused has the burden of proving this matter on a balance of probabilities (s70AAA(7)).
30. For other matters, the prosecution bears the burden of disproving the exception.
Elements of the exceptions
33. There are four exceptions in s 70AAA, one in each of subsections (1) – (4), and each exception applies only where:
· the accused is a minor, and
· the child pornography is an image.
34. For the purpose of this Charge Book, it is assumed that the relevant time for ascertaining whether the accused is a minor is at the date of the commission of the alleged offence although this is not explicit in s70AAA, which states only that each exception applies ‘to a minor’.
Section 70AAA(1)
35. The first exception applies to child pornography of the accused him or herself. It is particularly relevant where a minor produces an intimate ‘selfie’. The exception applies where:
· the accused is a minor,
· the child pornography is an image,
· the image depicts the accused alone or with an adult, and
· the image is child pornography because of its depiction of the accused.
Section 70AAA(2)
36. The second exception applies to pornographic depictions of non-criminal acts between minors. Like all the exceptions, it is directed at behaviour that is not exploitative on the part of the accused.
37. For example, the exception would apply to an image depicting the accused in an act of sexual penetration with another minor up to two years younger, where both are consenting to the act.
38. The exception applies where:
· the accused is a minor,
· the child pornography is an image,
· the image depicts the accused with another minor,
· the image does not depict a criminal act punishable by imprisonment, and
· the image is child pornography either because of:
a. the depiction of the accused, or
b. the depiction of the other minor if, at the time the offence was alleged to be committed, the accused–
· Is not more than two years older, or
· Believes on reasonable grounds that he or she is not more than two years older
than the youngest minor whose depiction makes the image child pornography.
39. This exception does not apply if the image depicts a criminal offence punishable by imprisonment. However, the exception in subsection (3) may be applicable in such circumstances (see below).
Section 70AAA(3)
40. The third exception applies where the child pornography depicts a criminal offence and the accused is the victim of that offence.
41. For example, the exception would apply to an image depicting the accused being raped.
42. It requires that:
· the accused is a minor,
· the child pornography is an image,
· the image depicts the accused alone or with another person,
· the image depicts an act that is a criminal offence, and
· the accused is a victim of that offence.
Section 70AAA(4)
43. The fourth exception applies to a pornographic depiction of a person other than the accused, and requires that the image does not depict a criminal offence punishable by imprisonment and the accused is not more than two years older than that person. This exception is most likely to apply where an accused produces an intimate image of another person and covers many instances of ‘sexting’.
44. For example, the exception will apply to an image depicting a minor engaging in sexual activity if the accused believes on reasonable grounds that the minor depicted is younger than him or her by up to two years.
45. The exception requires that:
· the accused is a minor,
· the child pornography is an image,
· the image does not depict the accused,
· the image does not depict a criminal act punishable by imprisonment, or the accused believes on reasonable grounds that it does not, and
· the accused–
· Is not more than two years older, or
· Believes on reasonable grounds that he or she is not more than two years older
than the youngest minor whose depiction makes the image child pornography.