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, (b) in a sexual context or (c) as the victim of torture, cruelty or abuse whether or not in a sexual context. Having viewed the material in question it is quite clear that the images do not fall within paras (a) and (c) of the definition. 3. The Crown can therefore only succeed in the prosecution if the images could be described as depicting persons under 16 in a sexual context. The words sexual context are not defined and I have been unable to find authority that expands upon possible meanings, although the expression has been referred to in a number of cases by reference to the definition either in the Crimes Act or in other acts in other states. A case of Phillip v The Police, 1994 75 ACR at 480, which Mr Goldsworthy has referred to in his submissions, whilst helpful in discussing the way in which what might be regarded as otherwise non-sexual activities can be viewed, does not really address the specifics of the New South Wales legislation. In that case, amongst other things, Debelle J, in referring to the material that the court was looking at there, said that there were parts of the films which showed naked boys in the act of changing but that they did not constitute "indecent" material. That was a case apparently involving the secret filming of young boys in a toilet block. 4. The Crown argues that the films in the exhibit constitute child pornography for a number of reasons. Firstly, the way in which the photographs were taken, that is they were not taken openly. Secondly, the concentration, certainly at times, on the genitalia of the young persons filmed. Thirdly, all of the images, and there are a lot of parts of the video that do not contain anything, are of young boys. Fourthly, the camera was disguised and obviously the whole effort was planned, having regard to the number of sequences that are on the exhibit and the time over which the sequences were taken, which the Crown has indicated was some four hours or so. 5. It is suggested that the court can look at the reason for the taking of the images which, the Crown suggests in this case, is the offender's own sexual gratification and that the court would reject a finding that they were taken because of an artistic interest in nudity. I would not disagree with categorising the events leading up to the taking of these photographs in the way in which the Crown has suggested. 6. However it is important to look at the legislation. In order to succeed in the present case the prosecution must firstly prove that:- one , the material depicts a person under or apparently under the age of sixteen in a "sexual context". two , that the manner of that depiction would in all the circumstances cause offence. 7. There are two hurdles that the Crown has to get over. Firstly, establishing that the material depicts a person in a "sexual context" and secondly that such depiction is in effect offensive. Without going into the rights and wrongs of the alleged behaviour, the test that I have set out in one is an objective test and does not depend upon, in my view, the types of issues referred to by the Crown. The images do depict persons apparently under the age of sixteen but normal dressing and undressing could not in my view be regarded as being "in a sexual context". It is quite apparent, except in some instances, that the children were unaware of what was happening, although I get the impression that at times they certainly had a bit of a suspicion that something untoward was going on. 8. It is essential to the Crown case to establish that the images depict persons apparently under the age of sixteen "in a sexual context". That applies whether they have got clothes on or not. In my view, that is not the case here and the Crown cannot prove beyond reasonable doubt that first essential ingredient of the offence. Therefore the appeal should be upheld and the conviction set aside. 9. It is unnecessary for me to consider whether or not the material was offensive and it is unnecessary for me to consider the other arguments raised as to the issue of whether this material should be excluded under ss 137 or 138 of the Evidence Act because of alleged illegality of various degrees and descriptions. 10. It is perhaps worthwhile noting that the government is intending to pass legislation that will specifically deal with this type of behaviour and make it an offence and is also in the process of increasing the penalties for child pornography offences. 11. GOLDSWORTHY: There is an application for costs under section 70 of the Crimes Appeal and Review Act 2001. Your Honour would be familiar with that Act because it is just a re-drafting of the other acts in terms of costs under section 218 and so on of the Criminal Procedure Act. For the reasons your Honour has said this was a case that could never have succeeded. In my submission there were myriad problems with the second case. The first brace of cases, that's the resist arrest and so on were stopped half way through the prosecution case by the prosecutor, the second charge was withdrawn very fairly by this prosecutor and we have the other matter that your Honour has addressed your mind to now which could not, with this legislation, have been made out. In my submission this is a proper case under section 70 to award costs because in my submission under 71B, the proceedings were initiated without reasonable cause. I think I'm in the correct section, although that is referring to the Local Court. I think there's a sister section which also refers to the District Court. If your Honour needs to your Honour can also go to subparagraph C which refers to the unreasonably failing to investigate or investigate properly section. I won't address quantum at this stage until your Honour makes a decision in relation to costs generally but in my respectful submission given the way that the cases have unfolded these matters ought to have been reviewed by someone in the lower court and withdrawn before they started. HIS HONOUR: I'm only dealing with the matters that are on appeal apart from anything else. GOLDSWORTHY: I'd ask for costs for that. GOODWIN: Your Honour I submit that it's not an appropriate matter in which costs ought be awarded against the prosecution. The appeal has been upheld and the Crown has failed based on an issue which was a factual one. It wasn't for example an issue at law which might have been able to have been predicted earlier prior to the prosecution getting under way. In my submission particularly in the absence of any guiding case law or authority on that point, the prosecution has done nothing which would render it in a position for which the subsections of section 70 have been legislated to account for. Unless I can be of any further assistance. 12. HIS HONOUR: I am not prepared to make an order for costs. The reasons are as follows. When the matter was in the Local Court his Honour, in dealing with this issue, whether the material in question came within the definition, said this; "In relation to the two issues where this material must depict these things, (a) engaged in sexual activity or (b) in a sexual context, I guess that in relation to (a) that is clearer as to what that might mean. In relation to both these matters neither side have produced any case law in relation to this particular definition on these points. In relation to (a), apart from the video clip number 4 which depicts two boys changing, there is an Asian boy or apparently Asian boy has an erect penis and that is featured on the particular video clip and it seems that there may well be some laughter or something about that. That is the only one of the twenty video clips that could possibly fall into category (a). But putting that aside, in relation to category (b), firstly as matters are in the alternative, that is (a) or (b) or (C) but (C) is not relevant in a sexual context. Clearly as I said there are no referred cases but firstly there are a number of issues that I believe I should consider and take into account in coming to a conclusion in my view that these are in a sexual context. I've already said that these are children going about their very innocent business, performing an innocent activity. But the fact is they are being recorded and the record is the video and the video is recorded in such a way in my view that it would amount to a sexual context. There is secondly clearly the predatory and covert nature of the way the videos have been taken, this is demonstrated by the videos themselves. Clearly the camera is being secreted and as such a lot of the footage is dark or the video recorder is obviously covered with something, possibly a towel or the like and it's difficult for the photographer to take clear shots and remain undetected. Thirdly, the fact that clearly the videos in a number of instances have been focussed on the genital areas of the children. I've already spoken about the video number 4, it is one where the video continues to be focussed on particularly this Asia boy with the erect penis but in other of the videos and some shots, only the genital area is seen. The next point is that the video is directed towards the boys changing and often is focussed on the boy with for example a towel around him and the operator continues and you can see on the video it is focussing on the boy getting changed and perhaps at the end there is a glimpse at the boys genital area on the video clip. That is what I would describe as sort of some anticipation on the part of the person taking the video to get that shot and in that context clearly in my view there is a sexual context when one views the video. Lastly on this point, the fact that the operator persisted with this activity of obtaining twenty video clips over a long period of time, 9.37 approximately in the morning until 12.21 on the particular day in question. When one looks at the totality of exhibit 3 which is the questioned material, I have no hesitation at all in coming to the view that the material as a whole would fall into category (b), taking into account all those issues." 13. His Honour then goes on to deal with the issue of offensiveness. I have come to a different conclusion to that of his Honour. Whether I am right or wrong I guess remains to be seen because there is in effect no authority, certainly no New South Wales authority, on the topic. The case of Phillips , which is a South Australian case, would tend to suggest that this type of material would not be regarded as being "offensive". However that is a different issue as to whether or not it could be said, objectively, that the material depicts persons "in a sexual context". I have held that the methodology and motives of the person taking the video are irrelevant for that purpose. His Honour felt differently. 14. I am not satisfied that costs should be awarded on the basis that either the proceedings in the Local Court were initiated without reasonable cause; or in bad faith; or were conducted by the prosecutor in an improper manner. I make no order as to costs. oOo 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.