7.11.5.3.3 - Jury Checklist: Possession of Child Pornography

7.11.5.3.3 - Jury Checklist: Possession of Child Pornography

Three elements the prosecution must prove beyond reasonable doubt:

1.The accused knowingly possessed a [film/ photograph/ publication/ computer game]; and

2.The [film/ photograph/ publication/ computer game] describes or depicts a person engaging in sexual activity,or depicts a person in an indecent manner or sexual context; and

3.A person described or depicted in that way is, or appears to be, under the age of [16/18].[1]

Knowing Possession

1Did the accused knowingly possess a [film/ photograph/ publication/ computer game]?

1.1Is the item in question a [film/ photograph/ publication/ computer game]?

If Yes, then go to 1.2

If No, then the accused is not guilty of
Possession of Child Pornography

1.2Did the accused have physical custody or control over that [film/ photograph/ publication/ computer game]?

If Yes, then go to 1.3

If No, then the accused is not guilty of
Possession of Child Pornography

1.3Did the accused intend to have custody or exercise control over that [film/ photograph/ publication/ computer game]?

If Yes, then go to 1.4

If No, then the accused is not guilty of
Possession of Child Pornography

1.4Did the accused know that the [film/ photograph/ publication/ computer game] contained child pornography, or was the accused awarethat that was likely?

1.4.1Did the accused know that the [film/ photograph/ publication/ computer game] described or depicted someone who was under [16/18], or who appeared to be under [16/18], engaging in sexual activity?

If Yes, then go to 2.1

If No, then go to 1.4.2

1.4.2Was the accused aware that it was likely that the [film/ photograph/ publication/ computer game] described or depicted someone who was under [16/18], or who appeared to be under [16/18], engaging in sexual activity?

If Yes, then go to 2.1

If No, then go to 1.4.3

1.4.3Did the accused know that the [film/ photograph/ publication/ computer game] depicted someone who was under [16/18], or who appeared to be under [16/18], in an indecent sexual manner or context?

If Yes, then go to 2.1

If No, then go to 1.4.4

1.4.4Was the accused aware that it was likely that the [film/ photograph/ publication/ computer game] depicted someone who was under [16/18], or who appeared to be under [16/18], in an indecent sexual manner or context?

If Yes, then go to 2.1

If No, then the accused is not guilty of
Possession of Child Pornography

Child Pornography

2.1Does the [film/ photograph/ publication/ computer game] describe or depict a person engaging in sexual activity?

If Yes, then go to 3.1

If No, then go to 2.2

2.2Does the [film/ photograph/ publication/ computer game] depict a person in an indecent sexual manner or context?

Consider - Would an ordinary member of the community consider the depiction to be indecent, in light of our current standards of decency?

If Yes, then go to 3.1

If No, then the accused is not guilty of
Possession of Child Pornography

Age

3.1Is a person described or depicted engaging in sexual activity, or in an indecent sexual manner or context, under the age of [16/18]?

If Yes, then the accused is guilty of Possession of Child Pornography (as long as you have also answered Yes to questions 1.1, 1.2 and 1.3, Yes to any of questions 1.4.1, 1.4.2, 1.4.3 or 1.4.4, and Yes to either question 2.1 or 2.2)

If No, then go to 3.2

3.2Does a person described or depicted engaging in sexual activity, or in an indecent sexual manner or context, appear to be under the age of [16/18]?

If Yes, then the accused is guilty of Possession of Child Pornography (as long as you have also answered Yes to questions 1.1, 1.2 and 1.3, Yes to any of questions 1.4.1, 1.4.2, 1.4.3 or 1.4.4, and Yes to either question 2.1 or 2.2)

If No, then the accused is not guilty of
Possession of Child Pornography

1

[1] The relevant age is 16 for offences alleged to have been committed before 18 May 2004, and 18 for offences alleged to have committed on or after that date.