District Court New South Wales Medium Neutral Citation: Adam Geoffrey Hansell v R [2016] NSWDC 35 Hearing dates: 15 March 2016 Date of orders: 01 April 2016 Decision date: 01 April 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: The appeal against conviction is dismissed Catchwords: CRIMINAL LAW – conviction appeal – finding of guilt – conviction – film person in private act without consent – aggravated film person in private act without consent – inference EVIDENCE – circumstantial evidence OFFENCE – elements of offence established – conceded elements - element in dispute - purpose of gratification or sexual arousal OTHER – USB camera – filming – other purposes for filming Legislation Cited: Crimes Act 1900 ss 91K(1), 91K(3) Crimes (Appeal and Review) Act 2001 s.18(1) Cases Cited: R v Hodge (1838) 2 Lewin 227 at 228, Howie v Budd [2003] TASSC 49 at [9] and Edwards v R (1993) 178 CLR 193 and Shepherd v R (1990) 170 CLR 573 Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Category: Principal judgment Parties: Adam Geoffrey Hansell (Appellant) Regina (Respondent) Representation: Counsel: Mr S Boland (Appellant) Solicitors: Blair Criminal Lawyers (Appellant) C Hyland, Solicitor for Public Prosecutions (Repsondent) File Number(s): 2014/00121157 Judgment 1. Adam Geoffrey Hansell (the appellant) appeals against convictions entered by Ms Burns LCM at Downing Centre Local Court on 25 August 2015. On that day he was convicted of three counts of film person in private act without consent contrary to section 91K(1) Crimes Act 1900 and two counts of aggravated film person in private act without consent contrary to section 91K(3) Crimes Act 1900. 2. The appellant was the owner of residential premises in Cammeray (the premises). The appellant leased the bedrooms of the premises to a number of people (the residents) on a shared accommodation basis. On a date prior to 22 April 2014 the appellant placed a USB motion activated camera device (the camera) in a toilet in the premises. The camera was detected by one of the residents secreted in a pot plant near the basin in the toilet on 22 April 2014. The existence of the camera was reported to the police. 3. The camera was examined. There were 29 video files stored on it. The files contained video footage of the residents and other people using the toilet in the approximate period of 1 March 2104 to 22 April 2014. 4. The police executed a search warrant at the appellant's home and located other recording devices of a similar nature to the camera and other video footage of the residents and other people using the toilet where the camera was located and the main bathroom of the premises. The aggravated offences involved the filming of persons under the age of 16 years. 5. The police also located video footage taken in a public toilet that was used by both males and females. It can be inferred from the sound recording on the footage that the toilet was in licensed premises. 6. The appellant declined to be interviewed by the police. 7. The only issue on the appeal is whether the prosecution had proved beyond reasonable doubt an element of the offence that the filming was done for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification. The appellant had conceded in the Local Court that the other elements were established beyond reasonable doubt. 8. The counts for which the appellant was convicted included adult males, adult females and 2 children being 1 male and 1 female. The Relevant Law 1. The applicable principles to be applied in determination of the appeal are as follows. 2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]; 3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]; 4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]; 5. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. Material considered on the appeal 1. The prosecution tendered a bundle including the witness statements tendered in the Local Court, the transcripts of the proceedings before the Local Court and the video footage, together with an aide memoire describing the various video footage relevant to each of the offences. 2. No witnesses were required for cross-examination in the Local Court. The matter proceeded by way of submissions. The appellant was acquitted of a number of counts where the prosecution could not prove that the person filmed did not consent. Analysis of the magistrate's reasons 1. The magistrate noted that the prosecution case was a circumstantial one. She correctly directed herself that before coming to a finding of guilt she had to be satisfied beyond reasonable doubt that the circumstances were consistent with the appellant having committed the offence and that she was required to exclude any other rational conclusion consistent with the appellant's innocence, quoting from R v Hodge (1838) 2 Lewin 227 at 228, Howie v Budd [2003] TASSC 49 at [9] and Edwards v R (1993) 178 CLR 193 and Shepherd v R (1990) 170 CLR 573. 2. The magistrate relied the following facts that were established on the evidence. 3. First she relied on the video footage of the appellant using the toilet and exposing his penis in what she found to be a sexualised fashion to the camera after doing so. 4. Second, she relied on the appellant's knowledge that by placing the camera in the toilet that he would be filming persons using the toilet, without their knowledge and that he intended to do so. 5. Third, that there was no explanation for filming persons using the toilet. 6. Fourth, there was no evidence from which any other rational conclusion could be drawn that was consistent with the appellant's innocence. 7. The magistrate concluded from those facts that the appellant filmed the persons using the toilet for the purpose of sexual arousal or sexual gratification. She correctly pointed out that the fact that he may have filmed some people who did not fulfil that purpose for him was irrelevant. The appellant's submissions 1. The appellant submitted both in the Local Court and on appeal that there was no evidence that the filming was done for the purpose obtaining of sexual arousal or sexual gratification. 2. The appellant submitted that there was no evidence of the appellant's sexual persuasion and thereby it could not be inferred that he would obtain sexual arousal or sexual gratification by viewing the footage of particular victims. 3. The appellant submitted that there were other possibilities for filming in the toilet and bathroom of the premises including that the appellant may have been concerned about drug use in the premises or that he may have wanted to extort the residents or publicly humiliate them by possessing the footage. Consideration 1. Having conducted an independent review of the evidence I am in agreement with the magistrate's conclusion on the element of the offence that was in issue. 2. It was open to the magistrate to find that on the basis of the facts established by the evidence, to conclude or infer that the prosecution had proved the element of the offence beyond reasonable doubt. That is sufficient to reject the appellant's no evidence submission. 3. In my view there are additional reasons for the magistrate's conclusion, ie other than those stated by her. Those reasons are as follows. 4. A number of clips of the footage depict the appellant taking careful steps to align the camera. The footage depicts the alignment of the camera to focus on the seat of the toilet. For example, the camera is positioned in the public toilet footage and the toilet in the premises at about knee height pointed at the area of the toilet seat. In much of the footage the person using the toilet is depicted only below the waist, ie the camera is focussed on the genital area of the person using the toilet. I infer from all of the footage tendered that the alignment of the camera was deliberate. It follows that the appellant intended to film the genitals of persons using the toilet. The footage of the shower in the main bathroom of the premises is similarly deliberately aligned. There is a clear available inference that the filming of sexual organs is for the purpose of sexual arousal or sexual gratification. 5. The concept of sexual gratification is much wider than sexual arousal. "Gratification" is defined in the Macquarie Dictionary as a source of pleasure and satisfaction. I agree with the magistrate that the footage of the appellant exposing himself to the camera was a sexual act. I infer that act was filmed so that it could be watched later and it was intended to be a source of pleasure or satisfaction. 6. The submission relating the filming being undertaken to monitor drug use in the premises can be rejected on the basis of the possession of the film of the public toilet. It is clear from the evidence, that was admitted in the Local Court without objection, that the appellant's filming of persons in toilets was not limited to filming the residents and visitors to his own premises. 7. Whilst there may be a number of other possibilities as to why the appellant filmed the victims using the toilet, I cannot not think of any that I would consider to be a reasonable possibility or one that is consistent with innocence in this case. 8. For the reasons expressed I am satisfied beyond reasonable doubt that the filming was done for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification. Orders 1. The orders I make are: 1. The appeal against conviction is dismissed. ********** 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: 04 April 2016