District Court New South Wales Medium Neutral Citation: Hanna v Director of Public Prosecutions [2022] NSWDC 491 Hearing dates: 18 October 2022 Date of orders: 21 October 2022 Decision date: 21 October 2022 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal upheld – conviction set aside – appellant found Not Guilty. For orders see [62]. Catchwords: All grounds appeal – possess child abuse material – application to adduce fresh evidence - statutory interpretation – consideration of what constitutes "offensive" material in context of child abuse material as per s91FB – standards of morality, decency and propriety. Legislation Cited: Crimes Act 1900 (NSW). Crimes (Appeal and Review) Act 2021 Criminal Code 1995 (Cth) Evidence Act 1995 (NSW) Cases Cited: Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244 Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146 Lunney v DPP (2021) 105 NSWLR 236; [2021] NSWCCA 186 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298, (2021) 106 NSWLR 430. Monis v R; Droudis v R 256 FLR 28; [2011] NSWCCA 231. Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 NSW Police Force v X [2014] NSWLC 23 R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 R v Silva (2009) 232 FLR 444; [2009] ACTSC 108 Category: Principal judgment Parties: Hanna v Director of Public Prosecutions (NSW) Representation: Crown: Ms L Goodwin Appellant: Mr M Johnston SC Ms K Edwards File Number(s): 21/158437 Publication restriction: Nil. Decision under appeal Court or tribunal: Sydney Local Court Jurisdiction: Criminal Date of Decision: 09 May 2022 Before: Covington LCM File Number(s): 21/158437 JUDGMENT ON APPEAL 1. The appellant appeals his conviction and sentence on 9 May 2022 in the Local Court on one charge of possess child abuse material pursuant to s91H(2) of the Crimes Act 1900 (NSW) ("the Crimes Act"). The particulars of the offence in the Court Attendance Notice were that between 5:45am and 8:00am on 19 May 2021 at Potts Hill the appellant did possess child abuse material. 2. The proceedings before the learned Magistrate concerned three videos located on the appellant's phone. This appeal however was concerned with only one of those videos (referred to by the learned Magistrate as Video 2). It was in respect of that video that the appellant was convicted. On appeal, there is no issue that he possessed the video, the only issue is whether what was depicted in the video constituted child abuse material. 3. Child abuse material is defined in s91FB of the Crimes Act which provides as follows:- 91FB Child abuse material--meaning (1) In this Division-- "child abuse material" means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive- (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include-- (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). 1. The video was 2 minutes and 12 seconds in length. It shows two adults having sexual intercourse with the female on top of the male, facing away from the male who is lying down on a bed. The male is naked and the female has a shirt on but is naked from the waist down. A young child enters the bedroom at which point the female holds her hand up towards the child in a manner meant to stop the child from entering. The child entered the room and was given a torch by the female and for the bulk of the duration of the video the child is facing away from the couple and utilising the touch. At one point the adults kiss while the child is looking in the opposite direction. The child then climbs onto the bed and onto the back of the female whilst the male appears to protectively hug the female so as to cover up the fact of the sexual intercourse occurring. After a very short time the child is kissed by the male and then gets off the bed and leaves the room. 2. There is no issue that the child was in the presence of another person engaged in a sexual activity so as to comply with s91FB(1)(c). The question to be determined is whether having regard to the standards of morality, decency and propriety generally accepted by reasonable adults and the general character of the material, the video depicts material "in a way that reasonable persons would regard as being, in all the circumstances, offensive". Preliminary issue – Application to adduce fresh evidence 1. The appellant by Notice of Motion filed on 10 October 2022 sought an order pursuant to s18(2) of the Crimes (Appeal and Review) Act 2012 ("CARA") that leave be granted to rely upon fresh evidence in the appeal, being a report of Dr Dianna Kenny dated 7 October 2022. Dr Kenny is a highly qualified psychologist specialising in infant and child development. 2. "Fresh evidence" is defined in s3(1) of CARA to mean, in relation to appeal proceedings, "evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen". 3. S18(2) of CARA provides that fresh evidence may be given, only by leave of the court which may be granted "only if the court is satisfied that it is in the interests of justice that the fresh evidence be given". 4. The appellant submitted that the definition of fresh evidence set out above has a broader meaning than the conventional understanding of "fresh evidence", ie, evidence which was not available at the original trial, and could not have been obtained then in the exercise of reasonable diligence, relying on McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298, (2021) 106 NSWLR 430. 5. The appellant submitted that the phrase "interests of justice" which is not defined in CARA, are words of the widest possible reference which enliven a discretionary judgment. Here the appellant submitted that the interests of justice favoured the admission of fresh evidence for the following reasons:- 1. The report of Dr Kenny was highly probative of matters relevant to the appeal, particularly her expert evidence as to the child's age, the relationship between the child and the adults in the video, whether the child was aware of the sexual activity the adults were engaged in and whether that activity had any impact on the child, whether the child displayed any distress or trauma or whether there were signs of exploitation or harm to the child. 2. The evidence was relevant to the threshold test of whether the video was, in all of the circumstances, offensive within the meaning of s91FB. 3. The fresh evidence was obtained on the advice of counsel who was not counsel in the Local Court Hearing. 4. The evidence was obtained promptly once a court order was obtained approving Dr Kenny's access to the video, and 5. Dr Kenny was available for cross-examination if required. 1. Learned Senior Counsel appearing for the appellant submitted that the report was relevant for the factors to be taken into account pursuant to s91FB(2)(a) and (d), which would be taken into account in determining the ultimate issue, ie, whether the material depicted was what reasonable persons would regard as being, in all of the circumstances, offensive. 2. The Crown opposed the application but accepted the fact that the evidence was not available at the Local Court Hearing was not a bar to leave being granted. The Crown submitted that the evidence was not admissible as expert evidence. Rather, what was involved here was a quintessential jury question involving an objective test as to the reasonable person, and the expert evidence could not inform that. Otherwise the evidence went to the ultimate issue. The Crown accepted the expertise of Dr Kenny and did not require an adjournment for the purpose of obtaining expert evidence in response to her report if leave were granted, but did require her for cross-examination. 3. Having read the report of Dr Kenny dated 7 October 2022 I found that she was eminently qualified by academic qualification, training and experience to express the opinions outlined in the report as to the estimate of the child's age, inferences to be drawn from the child's demeanour including the child's relationship to the adults depicted in the video, whether the child remained unaware of the nature of the activity which the adult's were engaging, whether the child showed evidence of distress or trauma and whether he was the subject of abuse, exploitation or harm in anyway. 4. Given the Crown's concession as to Dr Kenny's expertise I found that the opinions expressed in her report were admissible pursuant to s79 of the Evidence Act 1995 (NSW), and further as a matter of discretion it was in the interests of justice that her report be adduced into evidence. 5. I therefore granted leave for the fresh evidence to be given pursuant to s18(2) of CARA, and the report will be referred to as Exhibit 1 on the appeal. The nature of the conviction appeal under s11 of CARA 1. The appeal was by way of a re-hearing based on the transcript of evidence before the learned Magistrate and the exhibits in the Local Court together with the fresh evidence outlined above. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury and I am to form my own judgement of the facts on the basis of the evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court see Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244 per Mason P at [18]. 2. I have also read the remarks of the learned Magistrate in his judgment of 9 May 2022. 3. In Lunney v DPP (2021) 105 NSWLR 236; [2021] NSWCCA 186 the Court of Appeal held that the scope the appeal is to be determined by reference to the issues identified by the parties. The direction in s18 of the Act as to the nature of such an appeal does not require the District Court to undertake a complete review of the whole of the evidence and form it's own view as to the applicant's guilt regardless of the issues raised by the appellant. 4. It follows that the extent of the review required in an individual case depends on the circumstances of the case and the type of the error alleged (see [44]). 5. Thus the issue here was narrowed to whether the video referred to above constituted child abuse material as defined in s91FB of the Crimes Act, and these reasons deal with that issue. The onus remains on the Crown at all times to prove the offence beyond reasonable doubt, and there is no onus of proof on the appellant at all. The evidence 1. As the issue on the appeal was narrowed much of the evidence before the learned Magistrate is not relevant to the issue to be determined on the appeal. That evidence included evidence of a work colleague of the appellant, a Ms Moseley, to whom he showed the video. She gave evidence that she could not watch the video because it made her feel sick and that she said to the appellant after she watched it, "that's child abuse". She gave further evidence that he agreed with that comment, although that was in issue in the proceedings. 2. In his reasons for judgment the learned Magistrate outlined what was depicted in the video in terms not dissimilar from what I've outlined above. It was taken at night, it was depicted in black and white and there is no audio. 3. In Exhibit 1 Dr Kenny opined that the child shown in the video was "probably in the vicinity of two years of age+". She acknowledged the limitations involved in assessing the video but further opined that an inference was available that the adults in the video are the child's parents. This was based on the following:- 1. The child's demeanour of familiarity and comfort with the adult female. 2. The child's proximity-seeking to the mother and the ease with which the two communicate and interact about the objects of the child's interests. 3. Upon his entry into the bedroom, the mother raises her hand in a gesture of "stop" which the child observes but ignores after a momentary hesitation and then climbs onto the bed, in a manner of seeking his mother's attention, indicating a feeling of safety in his mother's presence. 4. Mother and child interact with mother re-directing her attention away from the sexual activity towards the child. 5. The ease with which the child climbs in between the couple. 6. The gesture of affection from the father and his protective action in shielding the child from the couple's sexual activity. 1. Dr Kenny further opined that the child depicted in the video remained unaware of the nature of the activity in which the adults were engaging, as demonstrated by the following:- 1. The age of the child is such that he, in all likelihood, did not have a conceptual understanding of the sexual act. 2. The child was focused on his torch and interacting with his mother. 3. The child had his back turned away from the sexual activity for its duration. 4. The child was unselfconscious about the scene into which he had stumbled. This behaviour is expectable of a child that age waking in the night, seeking contact and reassurance from his parents. 5. The child showed typical, developmentally normal egocentricity in his behaviour and interests i.e., he was unconcerned about what his parents had been doing prior to his entry into their bedroom and was focused on obtaining contact with his mother and interacting with her. 1. Dr Kenny further opined that the child appeared oblivious to the sexual activity of the adults and was for the most part faced away from them exploring the room with the torch; he showed no evidence or distress or trauma and was comfortable in the presence of the adults. Dr Kenny opined that there was no evidence in the child's demeanour or in the adult's actions that the child was the subject of abuse, exploitation, or harm either physically or psychologically and that the child was not part of a child sex abuse scenario. 2. Dr Kenny commented that at no time did the adults attempt to include the child in their sexual activity although they continued to engage in it. When the child climbed between the adults, the male protectively shielded him where he remained for a very short period at his mother's back before climbing down from the bed. Dr Kenny commented that the father kissed the child affectionately on the cheek and assisted him from the bed, following which he left the room. 3. It was Dr Kenny's opinion that the child showed no interest in the adult's sexual activity and did not witness the sexual act. Whilst he would have seen the female's face and clothed torso, he would not have seen her naked lower body or presumably the thrusting movements shown in the video. Neither adult touched the child in a sexual manner nor did the child touch either of the adults in a sexual manner. Rather, Dr Kenny opined that the child was "proximity-seeking with the couple, primarily the female" who she inferred was the child's mother. This behaviour was characterised as being "developmentally normal for children of this age". 4. Dr Kenny concluded that there was no sexualised behaviour displayed by the child and what was observed was "well within normal limits of parent-child interactions". 5. In cross-examination Dr Kenny was asked about her assessment of the age of the child as being "2 years+". When asked what the upper limit of the age of the child would be, she answered "I don't think the upper limit would be 3 and a half to 4 years." She qualified that answer by giving evidence that the child was at least 2 years old however the limitations on the assessment was that the video was very blurry with no sound. Whilst the child may have been under two years it was more likely that he was over two years of age. 6. Dr Kenny qualified her evidence further by saying the limitations were compounded by the quality of the video, its impact on an assessment of the child's ethnicity, although he appeared to be Caucasian, and that there was no indication of language development, namely, vocabulary which would have enabled her to be more accurate. 7. Dr Kenny was also cross-examined about the inference she drew that the two adults were the child's parents. She accepted that there were other inferences available but the strongest inference in her opinion was that the adults were the primary care givers, or parents of the child. 8. In respect of her opinion that there was no evidence of abuse, exploitation, or harm Dr Kenny accepted that there were limitations given that there was no sound to give context to the video. Dr Kenny gave evidence that there was context, namely, that the child walked in and out of the room voluntarily and that was one part of the context she took into account. In relation to the child climbing between the two adults Dr Kenny was asked whether she accepted that showed a curiosity about either the adults or what they were doing. She denied that, opining that the child wanted to be part of and close to the adults. She described that as a "filial kind of activity", meaning he wanted a sense of belonging and of being noticed and receiving attention from his parents. The appellant's submissions 1. The appellant relied on a detailed and thorough outline of submissions in relation to the construction of the word "offensive" as it appears in s91FB. The appellant referred to the construction given to it by Buscombe LCM (as his Honour then was) in NSW Police Force v X [2014] NSWLC 23. There, his Honour held that there was no single definition of "offensive" and the context in which the word appears in the legislation is a matter of importance to it's construction. The maximum penalty for the offence concerned is also to be considered. His Honour stated at [60]:- "I am also of the opinion that the presence of s91FB(2)(b), (c) and (d) of the Crimes Act indicates that the legislature did not intend that the ordinary dictionary definition of "offensive" should apply to the definition of "child abuse material". The definition of "offensive" would not usually require a consideration of whether the material had any artistic or journalistic merit, that is to be considered in determining whether or not material is offensive. In my opinion, the presence of the subsection supports a construction that something more than the usual definition of offensive is to be applied." 1. The appellant referred to R v Silva (2009) 232 FLR 444; [2009] ACTSC 108 where Penfold J considered the meaning of the phrase "in all the circumstances" in the context of s473.1 of the Criminal Code 1995 (Cth). 2. The appellant also referred to Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146 where the Court of Criminal Appeal considered the proper construction of intentionally carrying out a sexual act "towards" a child under the age of 10 years pursuant to s66DC(a) of the Crimes Act. In that case Dhanji J referred with approval to R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 at [62]-[63] where the Court held that consensual sexual intercourse between a husband and wife was not indecent and therefore was not an act of indecency if it took place in the presence of a young person. It only became indecent when carried out in front of the young person with an invitation or encouragement to watch were both directed to or in direction of the young person. 3. The appellant submitted that the learned Magistrate erred in finding the offence proved beyond reasonable doubt because there was no evidence that the video could be characterised as significantly offensive. The following reasoning of the Magistrate was submitted to be in error:- 1. First, his Honour remarked, "[it]t would be far less offensive for example if [the female] was not facing the door, the child had come in and the couple were taken by surprise by the child and then stopped." This analysis fails to take account of the fact that the couple did stop having active sex when the child walked in, and the woman raised her hand to prevent the child from moving closer; 2. Secondly, his Honour stated, "the child spent the majority of the time in front of the female but later went around to the area where penetration was occurring. This again in my view makes the video more offensive." There was no mention, however, of the male's active and protective shielding of the child from seeing any penetration (a point expressly noted in the Kenny Report at [18]-[20]); nor did the couple engage in active sex when the child climbed onto the bed – instead, the father affectionately and gently removed the child and directed him away from the bed; and 3. Thirdly, his Honour noted, "even kissing during that activity makes the video more offensive." With respect, that conclusion is unreasonable. It is normal for parents to kiss one another; in the ordinary course this would be a healthy gesture of affection between parents and a positive act for a child to witness. Nor did the Magistrate address the issue that it is not apparent the child saw that kissing given that it was dark, and the child was facing away and evidently distracted by the torch. 1. The appellant also submitted that the learned Magistrate erred by failing to engage or deal with a number of submissions made by the appellant's Counsel at trial. Those submissions included that there was no active participation by the child, no sense of voyeurism in terms of deliberately exposing the child to the sexual activity and the fact that there was active shielding of that activity from a very young child. It was submitted that it was incumbent on the learned Magistrate to provide reasons for rejecting those submissions. 2. The appellant relied on the following matters which should be taken into account as comprising all of the circumstances depicted in the video:- 1. The time of day (around 10.30pm at night), and the environs of the sexual activity, being the adults' bedroom (which has all the hallmarks of an ordinary room, including a bed and clothing and shoes on the floor); 2. The room was very dark, with poor visibility (or "near total darkness" to the human eye") 3. The child is very young (in the vicinity of 2+ years) (Kenny Report at [10]; 4. From the child's demeanour and engagement with the adults, it can be inferred that they are his parents (Kenny Report at [11]); 5. The parents stop having active sex when the child walks into the room; indeed, the woman (apparently, the mother) puts her hand up in a 'stop motion', seeking to indicate to the child not to enter any further; 6. The parents ensure that the child is either looking away from them, engaging in conversation with the woman, or otherwise distracted at all times; 7. When the child climbs onto the bed, the man closes the gap between his body and the woman's body so that no genitalia can be seen, nor the point of penetration; 8. The child is, at all times, fully clothed in his t-shirt and either underpants or a nappy/diaper; 9. The child does not appear to be concerned or distressed by his parents' behaviour; 10. There is no evidence whatsoever that the child is being abused or sexually exploited. The parents do not attempt to engage the child in a sexual act; and 11. There is no evidence that the parents are engaged in the sexual act due to the presence of the child, or are otherwise deriving sexual pleasure from any exposure to the child. 1. The appellant also relied on the following opinions of Dr Kenny:- 1. The child was unaware of or oblivious to the nature of the sexual activity the adults were engaged in; 2. The child "showed no evidence of distress or trauma and was comfortable in the presence of these adults"; 3. The mother demonstrated appropriate child centredness during interactions; 4. There was "no evidence in the child's demeanour or the adults actions that he was the subject of abuse, exploitation or harm in either the physical or psychological respect"; 5. The child was not part of a child abuse scenario, and walked into the primal scene of his parents engaging in sexual intercourse; 6. At no time did the adults attempt to include the child in their sexual activity; 7. The child did not witness the sexual act specifically; 8. When the child climbed onto the bed "the male ceased sexual activity and attempted to shield the child from his genitalia and the fact that he was engaged in sexual intercourse with the female adult"; 9. Finally, "there was no sexualised behaviour displayed by the child" 1. Having regard to the context and all of the circumstances, it was submitted the video was not offensive within the meaning of s91FB. The appellant submitted that as stated in Silva, supra, at [38] the test of offensiveness is informed by standards of morality, decency and propriety generally accepted by reasonable adults and must include a spectrum of tolerance, including "what is tolerated by people who would not necessarily regard particular standards as acceptable in their own lives". The appellant therefore submitted the Magistrate erred in finding beyond reasonable doubt that the video was "in all of the circumstances, offensive". 2. In his oral submissions learned Senior Counsel for the appellant rehearsed the written submissions. It was submitted that the standards of morality, decency and propriety generally accepted by reasonable adults as referred in s91FB(2)(a) must vary due to the circumstances of each case. There could be no opprobrium if the child is not aware of sexual activity being carried out relying on DPP v Presnell, by analogy. Here, it was submitted the child did not engage in and was unaware of the sexual activity at all times. Further the adults attempted to shield the child from that activity. At first, the female had put her hand up when the child first entered the room indicating for him not to enter. Thereafter the child was given a torch and was facing away from the adults for much of the two minutes depicted. When the child did come close the male was shown to protectively shield the child from the sexual activity. A reasonable person would not consider what was depicted in the video to be offensive rather what the child did was no more than filial in character, and what occurred was appropriate conduct. 3. It was submitted that it was not unheard of for children to come into the bedroom of his parents whilst they were having sex, but here no attempt was made to exploit the child or make the child aware of that activity. This was relevant to s91FB(2)(d) and the general character of the material. It was submitted the video was not attempting to focus on the child but rather the child's presence was entirely inadvertent. The room was dark when the child entered and the court could not be satisfied how much the child would have seen. There were no objective circumstances that could be characterised as abusive and therefore the video was not relevantly offensive. 4. Learned Senior Counsel rehearsed his submissions in respect of the authorities referred to above and submitted that the construction of "offensive" must be linked to the purpose of the Act, namely, to protect children from abuse. Here, rather than being offensive it could be argued that the adults were protecting the child from abuse. 5. It was submitted that the Magistrate was in error by failing to consider whether what was depicted in the video was in its context child abuse material. The findings outlined above were made in error and therefore he misdirected himself as to the relevant test. 6. The appellant relied on Dr Kenny's opinion set out above. Whilst she had conceded in cross-examination that there might be other possibilities there was no evidence of physical or psychological harm whatsoever and the court would be satisfied that the child was not aware at all of the sexual activity that was taking place. Given the opinions of Dr Kenny, applying the objective test a reasonable person would not find the material offensive and the appellant should be found Not Guilty of the offence. The Crown's Submissions 1. The Crown also relied on a detailed and thorough outline of written submissions. The Crown referred to well-established principles of statutory construction focusing attention on the language of the relevant provision, which was not in issue. The Crown submitted that s91FB(1)(c) does not require evidence of actual abuse, harm or exploitation of any child depicted in the material although it accepted that this may elevate the seriousness of the child abuse material and by extension, the objective seriousness of any related charge. 2. The Crown submitted that s91FB(1)(c) and the surrounding provisions capture a broad range of material. 3. In response to the appellant's reliance on R v Silva and DPP (NSW) v Presnell, the Crown submitted that neither case informed the "standards of morality, decency and propriety generally accepted by reasonable adults" as set out in s91FB(2)(a). Those cases dealt with different offences. In respect of the alleged errors in the learned Magistrates reasons the Crown submitted as follows:- 1. When his Honour's reasons are read in their totality, he clearly did have regard to the fact that active sexual intercourse stopped at certain points. His Honour speaks of the "continuation" of sexual activity, including stating that the couple "repeatedly continue to have sex whilst the child is present". His Honour also references penetration; it is clear from the video that the couple did not separate, and penetrative intercourse is depicted throughout. On this basis, it is submitted that sexual intercourse did continue for the entirety of the video, albeit it is accepted that what could be regarded as active sexual intercourse stopped at times. 2. While his Honour did not reference the conduct of the male after the child "went around to the area where penetration was occurring", his Honour's reasoning exposes that he was concerned with the continuation of penetrative sexual intercourse (regardless of active movements) in circumstances where the child moved around the room and then came to be in direct physical contact with the two adults at the point where penetration was continuing to occur. 3. It was respectfully submitted that his Honour's conclusion that "even kissing during the activity makes the video more offensive" is not unreasonable. This was an act of intimacy in the presence of the child in the context of the couple repeatedly continuing active sexual intercourse. The fact that it occurred despite the child's continued presence and proximity to the couple, regardless of whether he was aware or not, was a matter properly taken into account by his Honour. 1. The Crown submitted that the learned Magistrate did not err in finding the offence proven by reasonable doubt. In finding that the video depicted material that reasonable persons would regard in all the circumstances as significantly offensive the Crown noted:- 1. The repeated continuation of sexual intercourse for a not insignificant period of time when the child was in very close proximity to the same bed 2. Whilst the child was not depicted as being actively engaged in the sexual activity, and at times the couple stopped actively engaging with each other, penetration continued when the child climbed between the two adults. 3. The couple engaged in a further act of intimacy, namely, kissing. 4. The young age of the child highlights his vulnerability. 5. The Crown submitted that actual abuse, trauma or exploitation did not need to be featured to meet the definition of child abuse material although it would naturally increase the offensiveness of the material. 6. The Crown submitted that overall the video would still be considered by a reasonable person to be significantly offensive when the cumulative effect of the above circumstances were taken into account. 1. In respect of the second ground of appeal, namely, that the Magistrate erred in failing to engage with the defence submissions and gave inadequate reasons the Crown submitted that the Magistrate clearly engaged with counsel's submissions, particularly in respect of the legal test to be applied in determining if the video was offensive in all the circumstances. In fact the learned Magistrate made clear at the end of his remarks the he had given careful consideration to the parties submissions. 2. In her oral submissions, the Crown submitted that the real point of distinction between the parties was found in the purpose of the legislation, namely, whether a finding must be made that the material was significantly offensive. 3. The Crown submitted that the video fell squarely within s91FB(1)(c) and what made it offensive was that ultimately a combination of all of the things shown in the video. That included the continuous nature of the sexual activity including the thrusting in the presence of the child. The Crown conceded that for the bulk of the time the video was exposed the child was facing away from the adults and it was not suggested by the Crown that the child was actively engaged. Rather, it was the continuous nature of the sexual activity that was offensive and was the type of conduct contemplated by the section. The Crown submitted that the learned Magistrate did properly apply the relevant test and in concluding that the offence was proved beyond reasonable doubt. 4. The Crown also submitted that notwithstanding the general nature of the video that was taken at night-time and was relatively dark, there was some visibility, namely, the adults were able to see the child and the child able to see them. 5. The Crown also submitted that ultimately the opinions of Dr Kenny constituted matters that could be inferred from the video. It was not necessary that there be evidence of harm but rather the depiction of the child in the video could amount to exploitation of the child and therefore a reasonable person would objectively find the video offensive. Determination 1. I accept the Crown's submission that on it's terms the video and what is depicted within it comes within s91FB(1)(c), namely, that it depicts a child in the presence of another person who is engaged in sexual activity. However, that subsection is not to be read disjunctively and for the offence pursuant to s91H(2) to be established beyond reasonable doubt the trier of fact must be satisfied that in all of the circumstances the material depicting that must be found to be "offensive". The test is an objective one and s91FB(2) prescribes matters that are to be taken into account in determining that objective test. Relevantly that includes:- (2)(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and …. (d) the general character of the material (including whether it is of a medical, legal or scientific character). 1. In Monis v R; Droudis v R (2011) 256 FLR 28; [2011] NSWCCA 231 Bathurst CJ held that the word "offensive" as it appears in s471.22 of the Criminal Code (Cth) requires the material "should arouse significant anger, resentment, outrage, disgust, or hatred in the mind of a reasonable person." This definition was adopted by various members of the High Court in Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4. In that judgment French J observed that "offensiveness" is a protean concept, the definition of which depends on the statutory context in which it is used and that thresholds may be higher or lower as determined by that context (see [47]). 2. In NSW Police Force v X, Buscombe LCM in considering s91FB of the Crimes Act said at [75]:- "In my opinion, for material to constitute child abuse material the material must be such that reasonable persons would regard it, in all the circumstances, as being significantly offensive." 1. The parties to the appeal adopted that construction of s91FB(1), and having regard to what Bathurst CJ said in Monis, so do I. Also relevant is the maximum penalty of ten years imprisonment. 2. Having viewed the video evidence I accept the opinions of Dr Kenny that there was no engaging in, or awareness of, the sexual activity between the consenting adults, by the very young child when he entered the bedroom that was in darkness. For the bulk of the duration of the video, which was a little over two minutes the child's focus was not on the adults at all, but rather he was facing away from them and using a torch. During the only interaction with the adults, he did climb onto the bed and sat between them however, the male clearly shielded him from the act of sexual intercourse that had been occurring. I reject the Crown's submission that it was the continuation of the sexual intercourse whilst the child was in the room, notwithstanding that the child is not actively engaging with the adults at all, that satisfied the objective test and established proof that the material was offensive so as to amount to child abuse material. 3. I find that the learned Magistrate did fall into error in the three ways outlined by the appellant. First, by his finding that it would have been far less offensive if the female was not facing the door, the child had come in and the couple were taken by surprise and then stopped the sexual activity. That was an irrelevant consideration and could only be speculative. Secondly, the learned Magistrate erred by finding that the child spent the majority of the time in front of the female but later went around to the area where penetration was occurring, by failing to mention that the male shielded the child from viewing penetration at that time. Thirdly, the Magistrate erred by characterising the kissing shown in the video as making the video "more offensive". Whilst this occurred, it did so at a time when the child was facing away and distracted by the torch. It would not be considered offensive at all according to standards of morality, decency and propriety accepted by reasonable adults. 4. Having regard to all of the circumstances, and applying standards of morality, decency and propriety generally accepted by reasonable adults to the extent that I can, what was depicted in the video was a very young child of a approximately 2-3 years of age who is clearly not aware of, or in anyway engaged in, the sexual activity that was taking place between consenting adults at a time when he entered the darkened room at night. I therefore find that in all of the circumstances the video did not constitute material that a reasonable person would regard as being offensive and therefore it did not constitute child abuse material. Orders 1. I make the following orders:- 1. The conviction appeal is upheld. 2. I set aside the conviction ordered by the learned Magistrate on 9 May 2022. 3. I find the appellant Not Guilty of the offence pursuant to s91H(2) of the Crimes Act 1900. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2022