Director of Public Prosecutions v Osborn [2013] NSWLC 22

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Osborn [2013] NSWLC 22 Hearing dates: 24-25/7/2013 Decision date: 13 August 2013 Jurisdiction: Criminal Before: Magistrate Wahlquist Decision: Offences proved beyond reasonable doubt Catchwords: CRIMINAL LAW - filming person engaged in private act without consent - whether acts filmed for the purpose of obtaining sexual arousal or sexual gratification Legislation Cited: Crimes Act 1900 Summary Offences Act 1988 Cases Cited: R v DR [2010] ACTSC 152 Category: Principal judgment Parties: Director of Public Prosecutions Marc Osborn (defendant) Representation: Mr Watts for the defendant Mr Karpin for the DPP File Number(s): 2013/6483 Publication restriction: Non-publication order - identification of complainants

Judgment 1The Accused Marc Osborn has been charged with 3 offences pursuant to s 91K of the Crimes Act 1900. These are offences relating to filming a person engaged in a private act without their consent. The prosecution and defence agreed on most facts; they were tendered and marked as Exhibit 1. The agreed facts are that on 26 August 2012 the accused purchased on eBay an analogue clock which contained a concealed audio/visual recording device. The device was fitted with a motion detector, which enabled the camera to begin recording when it detected movement. The accused installed the device in his bedroom on a piece of furniture, which gave the camera a view of the bed. The accused installed the device for the purpose of filming himself engaged in sexual acts with women without their knowledge or consent. The defendant used the device on three occasions, being 5 September 2012, 7 September 2012 and 5 October 2012, to film himself engaging in sexual acts with 3 different women (the complainants). The women did not know they were being filmed and did not consent to being filmed; the defendant knew this. After the filming of the sex acts the defendant downloaded the films to his laptop (Exhibit 4). He then filmed parts of the footage on his Apple iPhone. 2There were statements tendered into evidence from the three complainants. The defendant met each of them on Internet dating sites. He would then commence messaging them either on mobile phone or on Internet chat sites. He told each of them that he was a police officer. LP said she felt safer knowing that he was a police officer. AR said she felt better meeting him for the first time knowing that he was a police officer. AR said they sent pictures of each other naked backwards and forwards and she told him not to show anyone. She said he replied something similar to 'I'm not that sort of person' and promised to keep the pictures confidential. 3A number of statements were tendered in evidence, which were not disputed in regard to the use of the footage on the iPhone. The defendant was a Senior Constable working at Gladesville Police Station. He also was the principal occupier of a home in the Gladesville area where he lived. He rented out rooms in his house to other police officers who lived outside Sydney but needed somewhere to stay while working as police officers at Gladesville Police Station. There were statements from each of these people (4 male police officers who worked at Gladesville Police Station) that they knew of the concealed clock camera and were told by the defendant that he used the device to film himself having sex with women. He showed each of these people film footage from his iPhone of him having sex with women on more than one occasion. There was also evidence of him showing other police officers at Gladesville Police Station film footage of him having sex with women. One police officer, John Jeffries (not one of the housemates), said he was shown 3 different videos of him having sex and saw some a number of times. He described the defendant showing him these videos in the company of other work mates. There was one where he said the woman was making extreme orgasmic sounds that the defendant would play without prompting for a laugh. He said the defendant had sent him a video of himself having sex with a woman. He said that when the defendant would talk about meeting up with a woman for sexual activities, he, Jeffries would say "videos?" in reference to videos that the defendant had shown him and they would laugh. Inspector Trundle said in his statement (Exhibit 2 tab 19) about the defendant, "9. Osborn was known and it was general conversation that he was entertaining several ladies and I had heard him using code words for women. I heard Osborn refer to women as "events" and the number of times with each woman as "incidents". "10. It was common knowledge around the police station that he was 'rooting his ass off.' I had heard that Osborn said 'I'll have a break at 50'. "Osborn started showing video's to other police. I personally never saw one but the topic of conversation around the station was 'have you seen Osborn's latest video.' " 4Section 91K provides: Filming a person engaged in private act (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. 5There is no dispute that: (a)The defendant filmed each of the complainants engaged in a private act being sexual acts (b)This was without the consent of each of the complainants. (c)The defendant knew that the complainants did not consent. The only issue is whether the filming was for sexual arousal or sexual gratification of the defendant or anyone else. 6The defendant gave evidence. He said that he had purchased the clock on eBay for the purpose of filming himself having sex. His marriage had ended in March 2012. He said he was the second oldest in his team at Gladesville Police Station and most of the officers in his team were in their mid 20s. He was renting rooms of his premises to other officers and they were all talking about what they had been doing on their days off, bragging about women. He was 41 years old and was trying to compete with the younger guys. He said he thought that they didn't believe him when he talked about having sex with women and dating. He gained this view from the occasional look or shrug he got. He said he filmed himself having sex with women to prove, "the old man's still got it" and to show his work mates the films. He agreed that he knew that the women did not know about the filming or consent to it. He said at the time he wasn't thinking about the women's feelings, his issue was proving himself. He acknowledged in hindsight he could see it was stupid both morally and ethically. He said he didn't make the films for sexual arousal or sexual gratification. He denied getting excited from knowing he was being filmed or from the fact that the woman didn't know she was being filmed. He admitted that he had viewed pornography on the Internet but said he had not made the films to watch later for sexual arousal or to make his own pornography. He denied getting sexual satisfaction from showing the films to mates. He agreed that some of the officers he'd shown had told him things such as they didn't want to see his private parts but he hadn't thought they were embarrassed or didn't want to see the films. 7He had downloaded the film from the camera to his laptop and then filmed parts of the films on his iPhone. It was the iPhone images that he was showing his mates. Both the film from the laptop, which showed the whole sexual encounter, and the films from the iPhone were in evidence. The films on the iPhone show part of the sexual encounter. The films on the iPhone are shorter and show actual sexual intercourse, are very explicit in regard to different sorts of sexual acts and appear to be close up images of the sexual acts. The defendant was asked as to why he chose these particular parts of the longer films to film on his iPhone and show his friends. He said he'd chosen one because of the noise being made by the woman and agreed that he chosen others to show full-blown sexual activities. Also on his phone were some still images of him having sex with the women, which came from the film. These were explicit images of the sexual act. The defendant said he couldn't recall selecting images to photograph and save separately. 8The issue for the court is, what was the defendant's motivation for making the film and showing it to his mates? There is no direct evidence of the motivation other than what the defendant told the court, so the Court must look to all of the circumstances of the defendant's behaviour and come to the conclusion that the only reasonable inference that can be drawn is the defendant made films for the purpose of sexual arousal or sexual gratification. One inference that can be drawn is that the purpose of making the films was to watch them for the purposes of sexual arousal. They are explicit and pornographic and that is the common use of pornography. In times before digital cameras and iPhones when going to the trouble of making and distributing a film was much more difficult there would have been little argument that only inference that could reasonably be drawn was that it was made for a pornographic or sexual arousal purpose. In this day and age it is acknowledged that the making of a film is much easier so with it expands the possibility of purpose. There is no direct evidence of sexual arousal and that is denied by the defendant. The issue seems to be whether what the defendant was doing in both making the films and then showing them to others was for the purpose of sexual gratification and what amounts to sexual gratification. The legislation in using two different definitions acknowledges that sexual arousal is different from sexual gratification. 9I will first go to the plausibility of the defendant's account that he took the films to show his work mates that he was having sex. The films on the iPhone are graphic and show more than just him having sex. They show the defendant in different sexual positions, performing a variety of sexual acts and of him bringing a woman to orgasm. They are extremely explicit. There are images on the laptop, which show the defendant having a sexual encounter, which are less explicit; these were not the ones he filmed on his phone and showed his workmates. There is also evidence from his housemates that they were aware of the defendant's entertaining woman as they were required to text him and tell him when they were going to be home so as not to cramp his style. The inference from the films on his iPhone that he took from the films captured on the secret clock camera are that his purpose was more than just that he wanted his work mates to know he was having sex. 10The films on the iPhone are short excerpts from the downloaded images showing the most explicit and adventurous parts of the sexual encounters. I do not think it is unreasonable to say that the defendant appears in the images as a competent, adventurous and virile lover who is able to satisfy a woman. The only reason I say this is because it clearly shows what he wanted to portray about himself and thus what his motivation was. He was portraying himself as a sexually adventurous and virile male in these films. The fact that the films show him in this way with a number of women adds to the strength of this being his intention. His motivation in making the films was not just to show his mates he was having sex with women but also to show him as a competent and virile sexual performer. There was in evidence a film from his iPhone, which was tendered as tendency evidence (Exhibit 10) where he can be seen having sex and he winks at the camera. The question is does him showing images of himself in this light provide him with sexual gratification? 11There was no evidence before the court of the psychological motivation for a person behaving as the defendant did so I propose to look at the meaning of the words "sexual gratification" as given in the dictionary, what limited case law there is, the second reading speech when the legislation was enacted in an attempt to obtain the legislative intention and apply common sense. 12The Macquarie Dictionary defines "gratify" as: 1. to give pleasure to (persons) by satisfying desires or humouring inclinations or feelings. 2. to satisfy; indulge; humour: to gratify desires; to gratify appetites "Gratification" as: 1. the state of being gratified; great satisfaction 2. something that gratifies; sources of pleasure and satisfaction. 3. the act of gratifying "Sexual" as: 1. of or relating to sex: the sexual organs 2. arising from the fact or condition of biological sex: a sexual stereotype 3. having sex or sexual organs, reproducing by processes involving both sexes, as animals or plants 4. sex drive or having the ability to arouse strong sexual interest. 13These definitions require "sexual gratification" to be the satisfying of desire which relates to one or more of the following: sex, the sexual organs, a condition of biological sex, having sex or sexual organs, sex drive or having the ability to arouse strong sexual interest. 14I have been directed to only one Australian case where "sexual gratification" was considered and I have been unable to find any others which are of assistance. In R v DR [2010] ACTSC 152, a case in the Supreme Court of the ACT, an element of the offence of using a child for production of child pornography required that the photography be substantially for the sexual arousal or sexual gratification of someone other than a child. The accused was the child's father who had filmed her in the bathroom and he argued that his purpose was voyeuristic only. Justice Mathews rejected this argument and in doing so referred to the nature of the films themselves, which focused on the genital region. 15I have been directed to the second reading speech for section 91K, which was introduced in 2008. The speech says nothing about what the parliament intended "sexual gratification" to include but the Attorney General did refer to the purpose of the legislation. "The bill further creates a new offence of filming a person's private parts, which criminalises the filming of a person's private parts in circumstances when he or she can reasonably expect not to be filmed. This captures such behaviours known as upskirting, which involves filming up a person's skirt for the purposes of obtaining sexual arousal or gratification. However, it will also cover situations in which a person's private parts are filmed when the person is engaged in a usually private act, but not necessarily in a private place, such as a public urinal. This surreptitious filming of people without their consent has become prevalent with the emergence of new technologies that allow anyone with a mobile phone to film another person without that person's consent, in inappropriate circumstances. It is important to send a clear message that such behaviour is not acceptable and will be taken very seriously by the courts." (Hansard page 11705, 11/12/2008) 16The second reading speech for s 91K's preceding section which was expressed in similar terms, being section 21G of the Summary Offences Act 1988, also does not provide an indication as to what parliament intended "sexual gratification" to include but did include the following statement; "Ultimately the proof of this offence will rely heavily on the types of images or recordings made and the locations in which the cameras are set up. The offence is also drafted in such a way as to catch those who produce these films for themselves or for the purpose of passing the recording on to another person." (Hansard page 6754, 27/2/2004) 17I am satisfied that the intention of the legislation as set out in both of the second reading speeches was to criminalise a new behaviour which invades people's personal privacy as a result of mobile phones and other small electronic recording devices. This was behaviour not previously contemplated by the criminal law and all the reasons for the behaviour also were not fully contemplated, the legislature did not simply require a motive of sexual arousal which is a more finite concept but added " sexual gratification" to cover a wider interpretation of motive. The speech indicates a desire on the part of the legislature to criminalise the filming of a person's private parts in situations where a person would not expect to be filmed and I am satisfied that I should give a wide interpretation to the phrase "sexual gratification". 18As I have previously said a clear inference that can be drawn from the defendant illicitly filming himself having sex is that it was for sexual arousal, a second inference has been raised by the defendant as to his motivation is that it was to show his workmates that he was having sex with different women, to prove that he could. The defendant has argued that this was not for sexual arousal or sexual gratification. I accept that there is evidence that supports the interpretation of his motive as being to "boast" to his workmates about his sexual encounters. The definition of sexual gratification as referred to earlier is that the court must be satisfied that the defendant was seeking to satisfy a desire, which relates to one of the definitions of "sexual" referred to. I am satisfied that he was seeking to satisfy a desire for his workmates to see him as sexually active and able to attract women and have sex. The very nature of that desire was sexual as defined, specifically it was to show that he had a strong sex drive and was sexually capable and attractive to women. The evidence from his workmates in the way he showed the films on his phone to them indicates that he obtained pleasure or gratification showing them the films of him having sex. He showed the films widely and without a request being made. The film where he winks at the camera while having sex indicates pleasure not only at what he's doing in the film but the fact that he knows he's filming himself and will watch the film or have others watch it later and that he feels good about himself. The gratification he is obtaining from making the films and showing them is clear from the evidence and his own evidence. What he is doing in the films is all about sex, the showing of the films to his workmates is gratification, and the two concepts are inextricably intertwined. For these reasons I am satisfied beyond reasonable doubt that the defendant filmed each of the complainants engaged in the private act of sex with him without their consent and knowing they were not consenting for the purpose of his sexual gratification. I find the defendant guilty of each of the offences. Magistrate J Wahlquist Downing Centre Local Court 13 August 2013