R v Melville[2009] QDC 436

DISTRICT COURT OF QUEENSLAND

1. [1]
   The accused is charged with an offence of possession of child exploitation material under section 228(1) of the Criminal Code. The prosecution relies upon 6 images found in a cupboard at the defendant’s home. The accused seeks a ruling pursuant to section 590AA that the 6 images do not fall within the definition of child exploitation material in section 207A.

2. [2]
   The images form exhibits 6,7,9,10,11 & 12.

3. [3]
   Section 207A relevantly provides:

child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years—

(a) in a sexual context, including for example, engaging in a sexual activity; or

(b) in an offensive or demeaning context; or

(c) being subjected to abuse, cruelty or torture

4. [4]
   It follows there are 3 essential elements that must be proved to satisfy the definition of child exploitation material.

5. [5]
   The first requirement is that the material depicts “someone who is, or apparently is, a child under 16 years”. There is no argument about the apparent age of the children.  The defence concedes that the children appear to be under the age of 16 years. 

6. [6]
   The second requirement is that the material depicts such a child in one of the 3 categories set out in paragraphs (a) to (c).

7. [7]
   The final requirement is that the way the child is depicted is“likely to cause offence to a reasonable adult”.

8. [8]
   “Material” is defined in section 207A to include not just images but also text.    Each of the 6 exhibits comprises a single page with a photograph on it. They appear to be downloaded emails.  The text is brief and bland.  The prosecution does not suggest that anything material flows from the text.  The photographs are small, no more than 7 ½ by 5 ½ cm.  They are group shots. The behaviour depicted appears to be normal childhood interaction: bowling, talking and engaging in class or a cafeteria. The only unusual aspect is that the boys are naked. They appear relaxed with their nudity.  There is nothing shown that could constitute “abuse, cruelty or torture”, with the consequence that paragraph 9(c) of the definition has no application.  Similarly, the crown conceded that paragraph (a) is excluded because the children are not depicted in a “sexual context”. The crown relied upon paragraph (b) of the definition, namely the depiction of a child “in an offensive or demeaning context”.

9. [9]
   Given that paragraph (b) is the only possible category of relevance to the present exhibits, to meet the definition a photo would need to show a child “in an offensive or demeaning context” in such a way “to cause offence to a reasonable adult”.  “Offensive” is defined in the Shorter Oxford Dictionary as “causing offence; giving or liable to give offence; displeasing; annoying; insulting; disgusting; nauseous” and in the Macquarie Concise Dictionary as “repugnant to the moral sense, good taste, or the like”.  As for a “demeaning context”, demeaning is defined as “ that demeans; demean one’s dignity” and “demean” is put as “ lower in dignity or status, humble.”

10. [10]
    The crown prosecutor conceded that the subject matter of the photographs “in itself may not be regarded by a reasonable adult to be offensive or demeaning.”  He argued instead that the “taking of the photographs and the placing of them on the internet or making them available to the general public is capable of being offensive and demeaning.”

11. [11]
    There is no evidence before me that the accused took the photographs or distributed them in any way. But even if there was such evidence, the conduct of the accused is irrelevant to the definition of “child exploitation material” in section 207A. The definition concerns only what is described or depicted in the material. What is described or depicted in the material is the only thing to be assessed. It is an objective test. Further, under the legislative scheme, the conduct of an accused will only arise for consideration if and when the material is proved to be child exploitation material. A person cannot be guilty of an offence relating to child exploitation material^[1] unless the material is in fact “child exploitation material” within the meaning of the definition in section 207A.  Once the test for child exploitation material is satisfied, the conduct of an accused will isolate what, if any, offences^[2] or defences apply.

12. [12]
    Because the test in section 207A is limited to an assessment of the material, the concession by the crown is fatal to its case. The crown prosecutor accepted that if the present exhibits were in a family album they would fail the test for child exploitation material. In so doing he implicitly acknowledged that the intrinsic nature of the material fails the test. Under section 207A that must be the end of the matter. The surrounding circumstances are irrelevant. It is not a shifting classification process.

13. [13]
    There are defences in section 228 E for conduct that has a legitimate purpose, such as a genuine legal, medical or scientific purpose. It is important to understand that the defences do not operate to change the classification of child exploitation material. Any child exploitation material remains child exploitation material but section 228E recognises that association with it by the person with the defence will be justified in certain specified circumstances. In such circumstances, the person with the defence may lawfully engage in conduct with the child exploitation material, but possession or distribution of the same child exploitation material by anyone who does not have a defence will constitute an offence.

14. [14]
    It was submitted on behalf of the crown that circumstances of the accused’s possession of the material suggested that he had a sexual interest in the photographs. That may well be so, but again the accused’s purpose is irrelevant to the wholly objective test in the definition. Some paedophiles will find any image of a child, even a fully clothed child, to be erotic. A perverted reaction however does not define child exploitation material. The standard specified in section 207A is the standard of a “reasonable adult” in relation to the intrinsic nature of the material. 

15. [15]
    A “reasonable adult” is to be determined by contemporary standards. As modern society has become more aware of the issue of child abuse, attitudes have properly become more protective towards children. The crown however did not submit that standards have tightened to the point that the mere image of a naked child might be considered offensive in the absence of an inappropriate context. Indeed, naked children are depicted in artwork and in film footage still readily available to the public. The South Australian Court of Criminal Appeal observed that:“…the actions of a young child at the beach dropping his bathers and urinating on the sand might even be shown on national television on “Australia’s Funniest Home Video Show” without any suggestion that such a scene would be regarded as offensive by the general community.”^[3]  Although that observation was made in 1994, it remains valid today. The present exhibits do not extend to bodily functions and the moments captured in the photographs appear to be purely innocent.

16. [16]
    If parliament chose to outlaw naked pictures of children it could do so in simple terms. The essential components set out in the Code for child exploitation material are more complex. For images of underage children to be caught by the definition, the material must satisfy 2 essential elements. Although ostensibly relying upon paragraph (b) of the definition, the crown did not argue that any of the children are depicted in an “offensive or demeaning context” on the face of the 6 photographs.  If the evidence is not capable of proving that critical element, it follows that the material is not capable of satisfying the definition of child exploitation material.  Accordingly, exhibits 6,7,9,10,11 and 12 must fall outside of the definition of child exploitation material in section 207A of the Code.

17. [17]
    Exhibit 1 was also the subject of the application. It is in a different category to the other photographs. It is a close framed, full frontal, nude shot of a small boy, perhaps no older than 10 years old. He appears posed for the camera with his mouth around a flute. On the day of the hearing I dismissed the application in respect of exhibit 1 because I was satisfied that it is capable of falling within the definition of child exploitation material. It is open to a jury to conclude on the face of exhibit 1 that the boy is depicted in a sexual context and in a way likely to cause offence to a reasonable adult.

18. [18]
    The defence application is upheld only in respect of exhibits 6, 7, 9, 10, 11 and 12.