DPP v Timothy Patterson [2018] NSWLC 18

Local Court New South Wales

Medium Neutral Citation: DPP v Timothy Patterson [2018] NSWLC 18 Hearing dates: 19, 20 & 21 March 2018 Decision date: 29 March 2018 Jurisdiction: Criminal Before: Magistrate Farnan Decision: Offences proved Catchwords: CRIMINAL LAW - filming person in private act without consent - using carriage service to transmit material that was offensive - word on word allegations Legislation Cited: Crimes Act 1900 (NSW) s 91K Criminal Code Act 1995 (Cth) ss 473.4, 474.17 Cases Cited: Ball v McIntyre (1966) 9 FLR 237 DPP v Osborn [2013] NSWLC 22 Monis v R; Droudis v R [2011] NSWCCA 231 Category: Principal judgment Parties: NSW Director of Public Prosecutions (prosecution) Timothy Patterson (defendant) Representation: Ms Cartwright, for the prosecution Mr Boe, for the defendant File Number(s): 2017/268673 Publication restriction: NON PUBLICATION ORDER for name of complainant and the police command and location at which she and the witnesses worked

Judgment 1. Timothy Patterson is before the court facing three allegations of filming a person in a private act without consent to filming for sexual gratification contrary to section 91K of the Crimes Act 1900 (NSW), and one allegation of using a carriage service to transmit material that was offensive contrary to section 474.17 of the Criminal Code Act 1995 (Cth). 2. Sequences 1 and 3 relate to 10 second films of consensual sexual intercourse between himself and the complainant which he transmitted to a Snapchat group via the Snapchat application on his phone. 3. Sequence 2 is an allegation of using a carriage service in a way a reasonable person would regard as offensive in all the circumstances. That relates to the communication of the two Snapchat films. 4. Sequence 4 relates to filming the complainant in a private act without consent for sexual gratification, which relates to filming on the complainant's phone of her engaging in fellatio with him. That film was not communicated to anyone else. 5. The defendant has admitted each occasion of filming and that the act was a private act. For the purposes of each section 91K offence I need to be satisfied that the purpose of filming was to obtain sexual arousal or gratification for himself, and/or to enable another person to obtain sexual arousal or gratification, and that the complainant did not consent to filming for that purpose, and that he knew she did not consent for that purpose. 6. Mr Boe for the defendant has submitted that the prosecution case does not establish that the filming in respect of sequences 1 and 3 was for sexual arousal or gratification, and in respect of sequence 4 does not establish lack of consent, or no reasonable belief of consent, to filming. In respect of sequence 2 it is submitted that the prosecution has not proved that the use of the carriage service was offensive in all the circumstances. 7. These are criminal proceedings and the onus is on the prosecution to prove each element of each offence to my satisfaction beyond a reasonable doubt. There is no onus upon the accused to prove anything. 8. The prosecutor submits that even on the accused's account I could find sequences one, two, and three proved but that if I do not accept the complainant's account beyond a reasonable doubt I would find him not guilty of sequence four. 9. The question is whether on the evidence I have heard I am satisfied beyond reasonable doubt that this defendant has committed the offences which are charged before me, not whether he has done something morally reprehensible.