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7.3.26 - Production of Child Pornography

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Commencement Information

  1. The offence of Production of Child Pornography (Crimes Act 1958 s68) commenced operation on 1 January 1996 (Classification (Publication, Films and Computer Games) (Enforcement) Act 1995 s2).
  2. This offence was amended by the Justice Legislation (Sexual Offences and Bail) Act 2004, to increase the relevant age of a child from "under 16" to "under 18". The revised age limit applies to offences alleged to have been committed on or after 18 May 2004.

    Overview of Elements

  3. Production of Child Pornography has the following five elements, each of which must be proven beyond reasonable doubt:
    1. The accused printed or otherwise made or produced a film, photograph, publication or computer game;
    2. The accused intended to print, make or produce that film, photograph, publication or computer game;
    3. That film, photograph, publication or computer game describes or depicts a person:

    a) engaging in sexual activity; or

    b) depicted in an indecent sexual manner or context;

    1. The person described or depicted in that way is, or appears to be, a minor; and
    2. The accused knew the nature of the film, photograph, publication or computer game, or was aware of its likely nature.

    Production of a Film, Photograph, Publication or Game

  4. There are two aspects to the first element:
    1. The accused must have printed or otherwise made or produced certain material; and
    2. The material printed, made or produced must have been a film, photograph, publication or computer game.
  5. The terms "printed", "made" or "produced" are ordinary English terms (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248).
  6. It has been held in England that a person who intentionally downloads a copy of a file from the Internet onto his or her computer produces or makes that copied file, because s/he causes it to exist (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13. See also DPP v Kear [2006] NSWSC 1145).[1]
  7. The definition of a "photograph" includes a photocopy or other reproduction of a photograph (Crimes Act 1958 s67A).
  8. Crimes Act s67A specifies that the terms "film", "publication" and "computer game" are to be given the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
  9. A "film" is defined to include any form of recording from which a visual image may be reproduced. This includes cinematographic films, slides, video tapes or video disks (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5).
  10. A series of separate images downloaded to a computer by a user may also be considered to be a "film" (DPP v Kear [2006] NSWSC 1145).
  11. A "computer game" is defined as a computer program capable of generating a display that allows for the playing of an interactive game[2] (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5A).
  12. Although a "publication" is defined as any written or pictorial material which is not a film, computer game or advertisement for a publication, film or computer game (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5), private expressions of thought intended exclusively for private use, and which are not intended or likely to be distributed or disseminated, are not publications (R v Quick [2004] VSC 270).
  13. Advertisements for publications, films or computer games are excluded from the definitions of those terms (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5). It therefore seems that a person who makes or produces an advertisement containing child pornography will only be guilty of this offence if the advertisement is photographic.

    Intention to Print, Make or Produce

  14. The second element of this offence requires the accused to have intended to print, make or produce the film, photograph, publication or computer game (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13).
  15. A person will therefore not be guilty of this offence if he or she unintentionally downloads a copy of a file from the Internet onto his or her computer (R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13. See also DPP v Kear [2006] NSWSC 1145).
  16. This may occur due to the way in which the Internet works. When a computer user views an image on the Internet, that image will automatically be copied to a "temporary Internet cache", where it will remain until the user deletes it, or until the computer overwrites the image after a certain period of time. If a particular user is unaware of the existence and operation of this cache, he or she cannot be said to have intentionally copied that image to his or her computer (R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145).[3]

    Sexual Activity or Indecent Sexual Context

  17. The third element of this offence requires the film, photograph, publication or computer game to depict or describe a person "engaging in sexual activity or depicted in an indecent sexual manner or context" (Crimes Act 1958 s67A).
  18. It is not necessary that the person be engaging in sexual conduct or adopting a sexual pose. It is sufficient if the depiction is of a sexual character, nature or context (Walls v R Vic CC 14/07/2003).
  19. It is not necessary that the depiction be of an event that has actually taken place. A fictitious account may depict or describe conduct constituting child pornography (R v Quick [2004] VSC 270).
  20. The people depicted in the material do not need to be real people. An account involving fictitious people described as minors will be sufficient for this element to be met (Holland v The Queen (2005) 30 WAR 231).
  21. In determining whether material is "indecent", it is necessary to apply contemporary standards and values. This must be assessed using community standards rather than the standards of any particular member of the jury (Walls v R Vic CC 14/07/2003; Phillips v SA Police (1994) 75 A Crim R 480; Crowe v Graham (1969) 121 CLR 375).
  22. The context and purpose of the act will also be relevant in determining whether it is indecent. An act done for a legitimate medical purpose may not be indecent even if the same act would be indecent if done for a prurient purpose (R v EG [2002] ACTSC 85; R v Court [1989] AC 28).

    Age of the Victim

  23. The fourth element of this offence requires a person depicted or described in the way outlined above to be, or appear to be, a minor (Crimes Act 1958 s67A).
  24. The age requirement for this section varies, depending on when the offence is alleged to have been committed:
  25. This element will be satisfied if the person depicted or described is under the relevant age limit, even if he or she does not appear to be so (Police v Kennedy (1998) 71 SASR 175).
  26. In determining whether the victim "appears to be" a minor, the jury is required to make its own assessment of his or her apparent age (Police v Kennedy (1998) 71 SASR 175).
  27. The jury must be satisfied that this element has been proven beyond reasonable doubt. Where the prosecution relies on the victim’s "apparent age", this means that the jury must be satisfied, beyond reasonable doubt, that the accused appears to be a minor (R v Wescott Vic CC 26/5/2005).

    Knowledge

  28. The fifth element of this offence requires the accused to know the nature of the film, photograph, publication or computer game (Police v Kennedy (1998) 71 SASR 175).
  29. The precise scope of this element has not yet been determined in Victoria. Following the principles in He Kaw Teh v R (1985) 157 CLR 523, it appears likely that the accused will have to have known, or been aware that it was likely, that s/he was printing, making or producing pornographic images of a minor.

    Exceptions

  30. Section 70AAA of the Crimes Act 1958 sets out exceptions to the offences of production of child pornography, procurement of minor for child pornography and possession of child pornography.
  31. Section 70AAA commenced on 3 November 2014, and applies to all proceedings, regardless of when the offence is alleged to have been committed (Crimes Act 1958, s626(5)).
  32. Whenever one of the four exceptions requires a belief by the accused on reasonable grounds, the accused has the burden of proving this matter on a balance of probabilities (s70AAA(7)). For other matters, the prosecution bears the burden of disproving the exception.

    Elements of the exceptions

  33. There are four exceptions in s 70AAA, one in each of subsections (1) – (4), and each exception applies only where:
  34. For the purpose of this Charge Book, it is assumed that the relevant time for ascertaining whether the accused is a minor is at the date of the commission of the alleged offence although this is not explicit in s70AAA, which states only that each exception applies ‘to a minor’.

    Section 70AAA(1)

  35. The first exception applies to child pornography of the accused him or herself. It is particularly relevant where a minor produces an intimate ‘selfie’. The exception applies where:

    Section 70AAA(2)

  36. The second exception applies to pornographic depictions of non-criminal acts between minors. Like all the exceptions, it is directed at behaviour that is not exploitative on the part of the accused.
  37. For example, the exception would apply to an image depicting the accused in an act of sexual penetration with another minor up to two years younger, where both are consenting to the act.
  38. The exception applies where:

    the youngest minor whose depiction makes the image child pornography.

  39. This exception does not apply if the image depicts a criminal offence punishable by imprisonment. However, the exception in subsection (3) may be applicable in such circumstances (see below).

    Section 70AAA(3)

  40. The third exception applies where the child pornography depicts a criminal offence and the accused is the victim of that offence.
  41. For example, the exception would apply to an image depicting the accused being raped.
  42. It requires that:

    Section 70AAA(4)

  43. The fourth exception applies to a pornographic depiction of a person other than the accused, and requires that the image does not depict a criminal offence punishable by imprisonment and the accused is not more than two years older than that person. This exception is most likely to apply where an accused produces an intimate image of another person and covers many instances of ‘sexting’.
  44. For example, the exception will apply to an image depicting a minor engaging in sexual activity if the accused believes on reasonable grounds that the minor depicted is younger than him or her by up to two years.
  45. The exception requires that:

    than the youngest minor whose depiction makes the image child pornography.

    Age of the youngest minor

  46. Section 70AAA(5)(a) specifies that the reference in s70AAA(4) to ‘the youngest minor whose depiction in the image makes it child pornography’ is to the age of that minor when the image was made or produced.
  47. Section 70AAA(5)(a) only applies for purposes of sub-s(4) and makes no mention of the identical phrase in sub-s(2). It is not clear why the clarification in sub-s(5)(a) would not apply equally to subs(2). For example, s70AAA(5)(a) is substantially replicated as s57A(7) of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995. But, in that version, both exceptions that use the phrase ‘the youngest minor whose depiction in the image makes it child pornography’ are included.

    Defences and Exemptions

    Classification by the OFLC

  48. The accused will have a defence if s/he printed, made or produced a film, a photograph contained in a publication, or a computer game which, at the time of the alleged offence:
  49. This defence does not cover non-photographic aspects of publications, or photographs which are not contained in publications (Crimes Act 1958 s68(1A). See also R v Quick [2004] VSC 270).
  50. It seems likely that the accused bears the onus of establishing this defence on the balance of probabilities. This was the position agreed to by the parties, and taken by the judge, in Walls v R Vic CC 14/07/2003, in relation to a similarly drafted defence to Possession of Child Pornography (Crimes Act 1958 s70).

    Law Enforcement

  51. The Act exempts the conduct of the following people who print, make or produce child pornography in the exercise of functions conferred under the Crimes Act 1958, any other Act, or the common law:

    a) A member or officer of a law enforcement agency;

    b) A person authorised in writing by the Chief Commissioner of Police who is assisting a member or officer;

    c) A person belonging to a class of persons who have been authorised in writing by the Chief Commissioner of Police assisting a member or officer (Crimes Act 1958 s68(2)).

 

Notes

[1] In Victoria, people who download images of child pornography are usually charged with Possession of Child Pornograpy (Crimes Act 1958 s70) rather than Production of Child Pornography.

[2] An "interactive game" is one where the way in which the game proceeds, and the result achieved at various stages of the game, is determined in response to the decisions, inputs and direct involvement of the player (Classification (Publications, Films and Computer Games) Act 1995 (Cth) s5).

[3] While this approach has not been expressly adopted in Victoria, it was referred to in R v Quick [2004] VSC 270 without disapproval.

[4] RC means "Refused Classification" (Classification (Publications, Films and Computer Games) Act 1995 s7).

Last updated: 8 December 2014

In This Section

7.3.26.1 - Charge: Production of Child Pornography

7.3.26.2 - Checklist: Production of Child Pornography

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.2 - Rape (From 1/1/92)

7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.7 - Indecent assault (Pre-1/1/92)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

7.3.10 - Sexual penetration of a child under 12 (From 1/7/17)

7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

7.3.14 - Sexual penetration of a 16 or 17 year old child (1/1/92 – 30/6/17)

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.23 - Sexual Offences Against Children (Pre-1/1/92)

7.3.24 - Production of Child Abuse Material

7.3.25 - Distributing Child Abuse Material

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography