Annetts v DPP [2008] NSWDC 242

New South Wales District Court

CITATION: Annetts v DPP [2008] NSWDC 242

HEARING DATE(S): 29 October 2008

JUDGMENT DATE: 29 October 2008

EX TEMPORE JUDGMENT DATE : 29 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Williams DCJ at 1

Appeal upheld DECISION: Conviction set aside No order as to costs

CATCHWORDS: Words and phrases - "in a sexual context" - meaning of - secret filming of young boys in a change room - did images depict them "in a sexual context" - objective test

LEGISLATION CITED: s 91H(3) of the Crimes Act

CASES CITED: Phillip v The Police, 1994 75 ACrimR at 480

PARTIES: Richard John Annetts Director of Public Prosecutions

FILE NUMBER(S): 2008/12/1241

COUNSEL: Mr Goldsworthy for appellant Solicitor for Public Prosecutions

NB:- A CASE WAS STATED IN THIS MATTER AND HAS BEEN REPORTED AT DPP v Annetts (2009) NSWCCA 86

1. Mr Annetts appeals against a conviction for the possession of child pornography contrary to s91H(3) of the Crimes Act . The material said to constitute child pornography are video images apparently obtained via a concealed camera of boys apparently, and obviously in some cases, under the age of sixteen dressing and undressing in the change room of a local swimming pool. Some images show boys with no clothes on, others with some clothes on. There can be little doubt that some of the earlier images on the earlier footage on the exhibit concentrate on genitalia. There is also little doubt that the images were obtained secretively. 2. Child pornography is defined as any material that depicts or describes in a manner that would cause offence to reasonable persons, a person under, or apparently under, the age of sixteen, (a) engaging in sexual activity,