CCI v The Queen [2011] QDC 375

DISTRICT COURT OF QUEENSLAND CITATION: CCI v The Queen [2011] QDC 375 PARTIES: CCI (applicant) v The Queen (respondent) DIVISION: Criminal PROCEEDING: Pre-trial hearing ORIGINATING COURT: Brisbane District Court DELIVERED ON: 6 May 2011 DELIVERED AT: Brisbane HEARING DATE: 6 May 2011 JUDGE: Reid DCJ ORDER: Application refused CATCHWORDS: Criminal Code s 228B – Definition of child exploitation material COUNSEL: M J Byrne QC for the Applicant S P Vasta for the Crown SOLICITORS: Potts Lawyers for the Applicant Office of the Director Public Prosecutions for the Crown In this matter the accused has been indicted on one count of possession of child exploitation material under section 228B(1) of the Criminal Code. The charge results from police locating video-recordings of, inter alia, two girls on the applicant's computers. The images have been recorded by a camera secreted in the bathroom of a house and show two pubescent girls of 12 and 14 undressing and taking showers. The applicant seeks a ruling pursuant to section 590AA that the videos do not constitute child exploitation material. -- 1 of 8 -- The indictment also charges offences of recording in breach of privacy pursuant to section 227A(1) arising from the same circumstances. No issue was taken with such charges in the application before me. Child exploitation material is defined in section 207A as follows: "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 subject to abuse, cruelty or torture." It can thus be seen that there were three essential elements that must be proved to satisfy the definition of child exploitation material in section 207A. For the purposes of this application, there is no dispute that the people represented in the material are children and consequently the essential issues, it seems to me, are whether it is material that depicts children in a way likely to cause offence to a reasonable adult and secondly, is it material that depicts a child in a sexual context or in an offensive or demeaning context, there being no suggestion of other abuse, cruelty or torture. In order to determine the matter, something further needs to be said about the images and how they were obtained and recorded. In the submissions prepared on behalf of the Crown, it is said, "1. DD invited the accused to stay with him at his home at Kallangur when he -- 2 of 8 -- was in Brisbane for work. 2. Over a period of a number of years, the accused regularly stayed overnight at the premises before returning to his home in New South Wales. 3. During the period DD resided with two daughters born on the 1st of December 1995 and the 31st of July 1997. 4. On the 26th of March 2010 the accused's partner found a black sock with a hole in it and a card written by the accused. As a result she undertook a search of his computer and located images of the older child naked in the bathroom at the house. 5. Forensic analysis of the computer revealed a total of 36 videos depicting the two girls naked in the bathroom at the house. Of those videos, 25 were active and saved under a named file path. The remaining 11 videos were located in the trash directory of the computer under a different file path. 6. In respect of the 25 active videos it is said that the accused had created an i- movie project entailed, 'Yellow-tail Kingfish'. The movie contained a fishing video depicting the accused, followed by blank tape, followed by adult pornography after which there were the 25 separate videos depicting each of the girls in the bathroom." When interviewed by police the accused admitted he had made a cover for his Canon digital camera by cutting a black sock in half and placing a small hole in the toe section large enough for the camera lens to protrude and placed a piece of carpet over the lens of the camera to hide its shiny face, exposing the iris only. He then placed the camera covered by the black sock into a bag containing toiletries and other effects. He placed the bag containing the camera into the bathtub in the bathroom of the -- 3 of 8 -- premises with the intention of recording images of at least one of the children, the older one, naked. Subsequently the accused videoed and edited the recorded footage keeping only the parts of the recordings in which the children appeared naked or undressing. It is said that the camera was deliberately angled up towards the floor level such that at times it captured close-up shots of the girls’ genitals. This occurred in circumstances where the accused repeated the exercise on a number of occasions and, so it's said, was well aware of the type of images likely to be captured. Furthermore, the subject images had been edited and saved so that they constituted approximately 40 minutes of continuous footage of the girls undressing or naked with no intervening periods of what was described as “innocent footage”. The accused is said to have made admissions that he kept only the images or footage where the girls appeared naked. There was a description in the Crown submissions of the 25 images and a number are said to have shown one or other of the girls either bending over exposing their genitals from behind, lifting their leg exposing genitals or exposing their genitals as they towelled off. No doubt this was related to the position of the camera in the bathtub. During the course of submissions, I asked counsel for the applicant whether the general description of the images in the Crown's submissions was correct or whether I needed to view the images and it was conceded the description of the images was -- 4 of 8 -- generally correct. The submission for the applicant relied essentially on a decision of R v Melville per Clare SC DCJ, of 11 September 2009, and also on an earlier South Australian decision of Phillips v South Australian Police (1994) 75 ACR 480; 1994 SASC 4848. The South Australian case concerned a charge in respect of being found in possession of child pornography pursuant to South Australian legislation. Child pornography was defined by section 33(1) of the Summary Offences Act 1953 (SA) which provided: "child pornography is defined as: "Indecent or offensive material in which a child (whether engaged in sexual activity or not) is depicted or described in a way that is likely to cause offence to reasonable adult members of the community." In that case there a number of images of boys and men urinating and otherwise engaged in activities in public change rooms and lavatories in South Australia. At paragraph 60 of the judgment Debelle J, with whom Mahr and Nilond J agreed, said: "However offensive might be the manner in which these films were made the repetition of scenes of boys urinating, dressing and undressing is not, I think, offensive to contemporary standards in the Australian community. Other epithets might readily come to mind - 'boring', 'tedious' and 'unedifying' are three but it would, I think, be wrong to classify the films as indecent material." In Melville, her Honour Judge Clare determined that a number of still images of -- 5 of 8 -- naked boys engaged in what might be considered usual daily activities engaged in at school, bowling, et cetera, but when naked, did not come within the definition of child exploitation material. She did however determine that a full-frontal nude shot of a small boy, perhaps no older than 10, posing for a camera with his mouth around a flute was capable of falling within the definition of child exploitation material. I was told by Mr Byrne, counsel for the applicant, and I accept, that the particular nature of that shot meant that there was a strongly suggestive sexual element to it. In the case before me, it's my view that one must consider how the material depicts the girls. In my view, it is relevant that - (a) the material is of pubescent girls shown in the nude; (b) the material is depicted in a way which clearly indicates numerous episodes of showering spliced or otherwise dealt with in a way such that the girls are shown to be continuously nude or undressing with no intervening "innocent shots", to adopt the words of the Crown Prosecutor's submission; (c) the images are taken from such an angle that it captures close-up shots of the girls' genitalia on a number of occasions; (d) the images are depicted, that is shown or represented, in a video file containing also adult pornography suggesting their depiction is for sexual gratification of the viewer or perhaps for the person who prepared or photographed the videos; (e) the depiction is of girls apparently unaware of their being photographed. I might add that this latter issue was one that the crown did not place reliance -- 6 of 8 -- upon. (f) In respect of the issue concerning the juxtaposition of the material immediately after adult pornography on the or allegedly on the defendant's website I note that the definition of context in the shorter Oxford dictionary handed to me as part of submissions by the counsel for the applicant defines context as, "The part or parts immediately preceding or following a passage or word as determining or helping to reveal its meaning; the surrounding structure as determining the behaviour of a grammatical item, speech, sound et cetera; ambient conditions; a set of circumstances in relation to circumstances." In my view, it is not appropriate to view the images divorced from the physical context in which they were found, that is on a file following adult pornography. In my view - this has some similarities to the depiction of, for example, girls, perhaps even clothed girls, following a film title such as “Sluts I Have Known”. The images could not be divorced from the context in which they are found. So too in my view, the context in which they are shown, apparently unaware of the camera's presence, is of relevance despite the Crown's disavowal of this issue. One might compare the situation in this case for example, to that of a model or actress clearly aware of being so photographed. Her awareness might mean that the material was depicted in a way unlikely to cause offence and further might not be material depicting such a person in an offensive or demeaning context. But in my view, that can be contrasted with the situation in this case. -- 7 of 8 -- In my view, the decision in R v. Melville to which I have referred is materially different from the present because of the difference between the images in that case and this. Similar considerations in my view do not appear to have applied in that case. I do note however that her Honour found the photo referred to at paragraph 17 was, as I've said, capable of representing child exploitation material. In the circumstances I find the images allegedly taken, dealt with and stored by the defendant on his computer are capable of being child exploitation material and it should be left to the jury to decide the question. In the circumstances, the application is dismissed. -- 8 of 8 --