R v Williams[2014] QDC 62

[2014] QDC 62

DISTRICT COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE DEVEREAUX SC

THE QUEEN

v.

WILLIAMS

and WILLIAMS

BRISBANE

4.31 PM, WEDNESDAY, 12 FEBRUARY 2014

RULING

HIS HONOUR:   The applicants are charged that on 9 December 2012 at Caboolture, they knowingly possessed child exploitation material, under section 228D of the Criminal Code. They apply for rulings as set out in Mr Mac Giolla Ri’s outline as follows: 

(1) that the term “someone” as used in section 207A of the Criminal Code necessarily implies that “someone” is a human person;

(2) to warrant a conviction the cartoon images said to be in the possession of the defendants must be proved beyond reasonable doubt to depict a human person;  and (3) in order to prove that the images depict a human person, it is not sufficient to prove that the cartoon images depict a representation of a human person or are merely human-like.

For the reasons that I will set out now, I am satisfied that the first two of those rulings could be made but not the last.

Both parties have submitted that I need not see the material to rule on this application on the basis that, primarily at least, it is a matter of law. So I have not seen the material, but I am told it consists of animated characters in a style of Japanese animation called Manga. The applicants submit that because the characters are “humanoid but obviously not human in the strict sense”, the material could not, as a matter of law, come within the definition of child exploitation material as that was defined at the time of the charge. The Prosecution submits that the material could, as a matter of law, come within the definition. Alternatively, the Prosecution submits the definition as amended by the Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Act 2013 applies and catches the material.

At the time of these charges, section 207A of the Criminal Code defined child exploitation material as,

“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 that:

(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.”

Section 207A includes this definition,

“Someone, in the context of a description or depiction, includes the body parts of someone, including, for example, someone's breast or genitalia.” 

The definition after amendment reads as follows,

“Child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years – …” 

The difference, obviously, between the provisions, is that the word “someone” is replaced by the terms “a person, or a representation of a person”.

Arguably, the words, ‘a representation of a person’ actually add nothing. I presume the new definition is to be read as though it states “describes or depicts a person, or describes or depicts a representation of a person …”. My copy of the Shorter Oxford Dictionary includes definitions of the word depict as follows:  “to draw, figure, or represent in colours;  to paint;  also, to figure any how;  (2) to represent or portray in words;  to describe graphically”.

To describe or depict a child, that is, someone who is, or apparently is a child under 16 is, by definition, to represent the child by description or depiction. If that’s right, it is difficult to see that the words “representation of a person” add anything.

It may be that the one depicted or described need not be a real person – see R v Campbell [2009] QCA 128. Whether section 207A in its original form (the form that applied when the applicants allegedly offended) included a fictional person was not in contest in Campbell, nor was it necessary to decide for the purposes of disposing of the appeal, which was allowed on other grounds. Neither party to this application argued that the definition in 207A does not include the depiction or description of a fictitious person, so I proceed on that basis, although I notice that the Canadian Supreme Court decision in R v Sharpe (2001) SCR 45, which was referred to in Campbell and also in the Western Australian decision in Holland v The Queen (2005) 222 ALR 684, concerned a provision so different from the Australian provisions under consideration in those cases and this as to be of no real guidance.

The Chief Justice in Sharpe set out relevant parts of the definition of child pornography which was the provision under consideration in that case. That definition includes the following: 

“(1) In this section, child pornography means:

(a) a photographic film, video or other visual representation, whether or not it was made by electronic or mechanical means:  (i) that shows a person who is or is depicted as being under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity or (ii) the dominant characteristic of which is depiction for a sexual purpose of a sexual organ or the anal region under the age of 18 years or;

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under this act.”

Given the breadth of that definition, it is hardly surprising that that Court strongly took the view that the legislative intention compelled the conclusion that a person under that definition included a fictitious person. Under that definition, child pornography includes material which advocates or counsels sexual activity. Code s. 207A does not so define child exploitation material, that is, the promotion – the advocacy or counselling of – child exploitation, is not within section 207A. It is the depiction or description of someone who is, or appears to be, a child under 16 that is proscribed.

The offences created by section 228A, 228B, 228C or 228D are not offences of conveying the idea of child exploitation. The definition in s. 207A requires the representation of a child by depiction or description. It is useful to notice that it is not necessary that the person depicted or described actually be younger than 16 years. The legislative purpose, then, is wider than to protect the child victims who are actually exploited in the making of the material. The purpose, one may infer, includes prohibiting the making, distribution and possession of material that looks like it depicts or describes a child under 16 being treated in the ways set out in section 207A. That is, child exploitation material, so far as it is a description,  is material that reads or sounds like - in other words, that generates in the mind of the reader or listener - the image of a child being treated in one of the ways set out in section 207A, or that depicts what looks like a child being so treated. More than “a person”, it must be “someone”.

Depiction surely can include a visual representation other than photography. How many celebrated portraits are far from photographic likenesses, but that they depict someone (a particular individual) is, usually, beyond doubt.

A drawing of someone could, if all other aspects of the definition are satisfied, amount to child exploitation material. On its face, the language of section 207A seems to require that the image be of a real individual – someone. But it is not possible to locate every described and depicted person. In practice, all that can be proved is that it looks like – “is or apparently is” – a child under 16 years and, once it is accepted that child exploitation material is what looks like child exploitation material, then it must follow that the depiction may be of an imagined person. So, if it is to be accepted that the “someone” could be an imagined or fictitious person, then whether an image amounts to a depiction of someone must be a matter of degree – a fact for the jury to decide, but it is difficult to imagine an animated cartoon could do so.

On the other hand, I expect one could not avoid liability by altering a photograph and asserting the image is of a fictional alien character. That might depend on the depiction of genitalia and breasts. I have already referred to the definition of “someone” in section 207A, which, notably, is unchanged by the amending legislation. But it is not enough, in my respectful opinion, to be a depiction of someone, that a drawing merely symbolises a child. I refer to the New South Wales single Judge decision in McEwen v Simmons (2008) NSWSC 1292 and also to the sentencing remarks of Judge McGill SC of this Court in R v Furse, 2 June 2011. I have had reference to both those learned sets of reasons.

As I was saying, it’s not enough that a drawing merely symbolise a person or a child. A fictitious, including animated, character might be designed as an expression of various human strengths or weaknesses, but whether the character’s image is a depiction of someone depends, in my view, on whether it looks like someone. So, for example, Homer Simpson might represent certain faults and triumphs exhibited by many men, but the character is not a depiction of someone. It is not a depiction of a flesh and blood person.

It seems to be common ground between the parties, consistent with some remarks made in the explanatory notes to the amending legislation, that the current definition would catch a cartoon drawing, provided the other elements of the definition of child exploitation material were made. It’s unnecessary for me to discuss that further, except to say that if it is to be accepted that a cartoon character “depicts a person or a representation of a person”, then that only demonstrates a clear difference between the law before and after the amendment. In my view, it would demonstrate a widening of the area of liability. It is a change which affects rights and ought not be read retrospectively. The need for certainty about the area of liability is strong. This is not a law about removing books from shelves or classifying films. It is a law which provides for heavy criminal sanctions.

Ultimately, I would think it most unlikely that a manga style animation of humanoid characters could be a depiction of someone who is, or appears to be, a child under 16 years. But I do not say that categorically, because I have not seen the images. So, in terms of the rulings sought, I am prepared to rule that the first two propositions are correct, although I understood them not to be in issue. That’s right, Mr White?

MR WHITE:   That’s so, your Honour.

HIS HONOUR:   The only issue then is whether I should make a ruling in terms of the third ruling sought, and I decline to do so. Now, that’s the end of my reasons. it’s really a matter for the parties what, if anything, is next to happen, whether any further application is to be made by either side.

MR WHITE:   That’s so, your Honour. Could the matter be listed for mention on Friday?

HIS HONOUR:   Yes.

MR WHITE:   That – I have my ruling. I’m satisfied what your Honour has said. I just – I’m concerned that the defence might now want your Honour to view the images ‑‑‑

HIS HONOUR:   Yes.

MR WHITE:   ‑‑‑but they’re no longer here to – Mr Mac Giolla Ri has gone – to decide that. Your Honour’s in trial, though, tomorrow?

HIS HONOUR:   Yes, a trial that is likely, I think, to go into Friday.

MR WHITE:   Is your Honour available past 4.30 again, tomorrow, if we email through the Associate?

HIS HONOUR:   No. Not tomorrow, but I – I can be here earlier on Friday.

MR WHITE:   Early on Friday?

HIS HONOUR:   Well, I could be here at 9 o’clock. Mr White, you’re in the Warwick callover on Friday.

MR WHITE:   That’s right, we are. What time’s that?  I’m not sure.

HIS HONOUR:   I think I’ve set that for 9.30 and it’s all – it’s probably all set up as people – phones and everything. So – but I could mention this at 9.15 and anything

that takes longer than 15 minutes, we’ll just have to stop ‑‑‑

MR WHITE:   But – would – but also, then, I would be – it takes 10 minutes to walk back and I’m – I’m the person appearing for the Warwick callover.

HIS HONOUR:   Sorry, say all that again.

MR WHITE:   If we appeared at 9.15, I wouldn’t then be – it would take more than 15 minutes, in my mind, but I wouldn’t then be at the phone to do the callover with your Honour and the defence solicitor’s ‑‑‑

HIS HONOUR:   You’re not going to be in court, for the callover?

MR WHITE:   No, no. I ‑‑‑

HIS HONOUR:   You’re going to be on the phone, are you?

MR WHITE:   Well, actually, no. Sorry, yes. So your Honour’s sitting, that day. I didn’t realise this.

HIS HONOUR:   I just thought I would be conducting that in Court and the phones would be – yes.

MR WHITE:   Then I will be – then I will be in your Honour’s court.

HIS HONOUR:   In court. Yes.

MR WHITE:   Yes.

HIS HONOUR:   So ‑‑‑

MR WHITE:   Can we do 9 o’clock?  Is that – this is all speculative, of course. I’m not sure if Mr Mac Giolla Ri will have more submissions to make.

HIS HONOUR:   Yes. Yes. Yes, I think Friday is fine, so, at this stage, do you – are you asking me to list it for mention on Friday?

MR WHITE:   At this stage, there’s a mention for the Mentions Court at 10 am. I know they’re sitting ‑‑‑

HIS HONOUR:   I see.

MR WHITE:   ‑‑‑and then, potentially tomorrow, you might receive an email from the parties ‑‑‑

HIS HONOUR:   Yes.

MR WHITE:   ‑‑‑to confirm if your Honour will still sit at 9am to view some material.

HIS HONOUR:   Yes. I’ll ask my associate to ask Auscript for the reasons that I’ve just given to be transcribed as soon as possible.

MR WHITE:   I think that would be very useful.

HIS HONOUR:   Given that there could be further application on Friday morning and that the trial is listed for next week.

MR WHITE:   That’s so.

HIS HONOUR:   And – but – so, are you asking me to list it on Friday at 9 o’clock, or just wait?  I’m available, if the parties wish that.

MR WHITE:   I think wait, and just have it – just have it listed for the mention – Mentions Court ‑‑‑

HIS HONOUR:   Yes.

MR WHITE:   ‑‑‑and then we’ll see what my learned friend makes of your Honour’s full reasons.

HIS HONOUR:   And did you say it’s already listed for mention?

MR WHITE:   No, no. It’s not, no.

HIS HONOUR:   Okay. So I’ll make that order.

MR WHITE:   Yes, your Honour.

HIS HONOUR:   I’m with you now. Okay. So I order that the indictment be mentioned on Friday the 14^th ‑‑‑

MR WHITE:   That’s so, your Honour.

HIS HONOUR:   ‑‑‑of February, legal representatives only required. Okay. Thank you for that.

______________________