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7.3.26.1 - Charge: Production of Child Pornography

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I must now direct you about the crime of production of child pornography. To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:

One - NOA printed, made or otherwise produced [1] a [film/ photograph/ publication/ computer game].

Two - NOA intended to print, make or produce that [film/ photograph/ publication/ computer game].

Three - that the [film/ photograph/ publication/ computer game] describes or depicts a person engaging in sexual activity, or depicts a person in an indecent sexual manner or context.

Four - the person depicted or described in that way is, or appears to be, under the age of [16/18].[2]

Five - at the time the accused printed, made or otherwise produced the [film/ photograph/ publication/ computer game], s/he knew that it contained child pornography, or was aware that this was likely.

I will now explain each of these elements in more detail.

Film, photograph, publication or computer game

The first element that the prosecution must prove is that the accused printed, made or otherwise produced a [film/ photograph/ publication/ computer game].

There are two parts to this element, both of which must be proven beyond reasonable doubt:

 

Film, photograph, publication or computer game

[If it is not disputed that the relevant item is a film, photograph, publication or computer game, add the following shaded section]

In this case, it is not disputed that the [describe relevant item] is a [film/ photograph/ publication/ computer game],so you should have no difficulty finding this to be the case.

[If it is disputed that the relevant item is a film, photograph, publication or computer game, add the following shaded section]

[For cases involving films, add the following darker shaded section.]

The law says that a "film" is any form of recording from which a visual image may be reproduced. This includes [insert any relevant examples, such as slides, video tapes, cinematographic films].[3]

[For cases involving photographs, add the following darker shaded section]

"Photograph" is an ordinary English word and does not have any special legal meaning. [If it is alleged that the photograph is a photocopy or reproduction, add: For the purposes of this offence, it includes photocopies or other reproductions of a photograph.]

[For cases involving publications, add the following darker shaded section]

The law says that a "publication" is any published picture or piece of writing that is not a film, computer game or an advertisement. Because the writing or pictures must be "published", this definition does not include private expressions of thought which are not intended to be circulated or distributed to others – such as those contained in a personal diary or journal.

[For cases involving computer games, add the following darker shaded section]

The law says that a "computer game" is a computer program that is capable of generating a display that allows for the playing of an interactive game. That is, it is a visual computer program that a person is directly involved in playing. He or she makes various decisions, which are input into the computer. The way in which the game proceeds, and the results achieved at the different stages of the game, will be determined in response to the player’s input.

According to the prosecution, the [describe relevant item] is a [film/ photograph/ publication/ computer game], because [insert relevant prosecution evidence and/or arguments]. The defence denies this, claiming that [insert relevant defence evidence and/or arguments].

It is for you to determine whether the [describe relevant item] is a [film/ photograph/ publication/ computer game]. If you are not satisfied, beyond reasonable doubt, that it is, then you must find NOA not guilty of this offence.

Printed, made or otherwise produced

If you are satisfied that the [describe relevant item] is a [film/ photograph/ publication/ computer game], you must then determine whether NOA printed, made or otherwise produced that [film/ photograph/ publication/ computer game].

These are ordinary English words, which do not have a specific legal definition. It is for you to determine, based on all of the evidence, whether what NOA did was to print, make or otherwise produce the [describe relevant item].

[Insert relevant evidence and/or arguments].

It is only if you are satisfied that the prosecution has proven, beyond reasonable doubt, that NOA printed, made or otherwise produced the [describe relevant item], and that the [describe relevant item] is a [film/ photograph/ publication/ computer game] that this first element will be met.

Intention

The second element that the prosecution must prove is that the accused intended to print, make or otherwise produce the [film/ photograph/ publication/ computer game]. That is, you must be satisfied that NOA deliberately and not accidentally printed, made or produced the [insert relevant item].

[If it is alleged that the accused unintentionally downloaded a copy of a file from the Internet onto his or her computer, add the following shaded section][4]

In this case, the defence has argued that the relevant file was unintentionally downloaded onto his/her computer, and that s/he therefore did not intend to make or produce that file. [Explain relevant evidence.]

If a person is not aware that s/he is downloading a file to his/her computer, s/he cannot be said to have intended to make or produce a copy of that file. This element will therefore only be satisfied if the prosecution can prove, beyond reasonable doubt, that NOA was aware that the file was being downloaded, and intended to make or produce a copy of it.

Sexual Activity or Indecent Sexual Context

The third element that the prosecution must prove is that the [film/ photograph/ publication/ computer game] describes or depicts a person engaging in sexual activity, or depicts a person in an indecent sexual manner or context.

[If this element is not in issue, add the following shaded section]

In this case, it has not been disputed that the [describe relevant item] [describes or depicts a person engaging in sexual activity / depicts a person in an indecent sexual manner or context]. You should therefore have no difficulty finding that this element has been established.

[If this element is in issue, add the following shaded section.]

[If the relevant material does not show people engaging in sexual conduct, add the following darker shaded section]

For this element to be satisfied, it is not necessary that the people involved actually be engaging in sexual conduct, or adopting an explicitly sexual pose. It is sufficient if the depiction in the material is of a sexual character, nature or context.

[If the relevant material does not depict real people, add the following darker shaded section]

The people described or depicted in this way do not need to be real people. This element will be satisfied even if the people described as engaging in sexual activity, or depicted in an indecent sexual manner or context, are fictitious.

[If it is alleged that the material depicts a person in an indecent sexual context, add the following darker shaded section]

In this case, it is alleged that the [film/ photograph/ publication/ computer game] depicts a person in an "indecent" sexual manner or context. It is for you to decide whether this is so.

To determine whether something is indecent, you must consider contemporary community standards and values. That is, you must decide whether an ordinary member of the community would consider the depiction to be indecent, in light of our current standards of decency.

In making your determination, you must consider the context in which the [film/ photograph/ publication/ computer game] was produced, and the purpose of its production. For example, a photograph of a naked child in a medical journal may not be indecent, even though the same photograph may be considered indecent if it was in a pornographic magazine.

In this case, the prosecution contends that the [describe relevant item] [describes or depicts a person engaging in sexual activity / depicts a person in an indecent sexual manner or context] because [describe relevant prosecution evidence and/or arguments]. The defence denies this, arguing that [describe relevant defence evidence and/or arguments].

It is only if you are satisfied, beyond reasonable doubt, that the [film/ photograph/ publication/ computer game] does describe or depict a person engaging in sexual activity, or does depict a person in an indecent sexual manner or context, that this third element will be met.

Age

The fourth element that the prosecution must prove relates to the age of the [person / people] described or depicted in the way I have just outlined. For this element to be met, [he / she / one of them] must either be under the age of [16/18],or must appear to be under that age.[5]

These are alternatives. It is not necessary for the prosecution to prove that a person in the material is both under [16/18] and appears to be that young. It will be sufficient if they can prove one or other of these facts beyond reasonable doubt.

[If this element is not in issue, add the following shaded section]

In this case, it is not contested that a person in the [describe relevant material] is, or appears to be, under the age of [16/18].You should therefore have no difficulty finding that this element has been satisfied.

[If this element is in issue, and the prosecution has provided evidence of actual age, add the following shaded section]

In this case, you have heard evidence that NOV was under [16/18] when the [film/ photograph/ publication/ computer game] was produced. [Summarise relevant prosecution evidence.] The defence denies this, contending [summarise relevant defence evidence and/or arguments].

It is for you to determine if NOV was under [16/18] when the [describe relevant item] was made. If you find that s/he was, then this element will be met.

However, if you find that this has not been proven, you must then consider NOV’s apparent age in the [film/ photograph/ publication/ computer game].

Determining a person’s apparent age is something you probably do every day. For example, you may look at a person who you don’t know, and based on their physical characteristics you may estimate that they are over 50, or that they are under 20.

That is the same process that you need to apply here. You must carefully consider NOV’s appearance, and determine whether s/he seems to be under [16/18]. If you find, beyond reasonable doubt, that s/he does appear to be under that age, then this fourth element will be established.

[If this element is in issue, and the prosecution is relying on apparent age, add the following shaded section]

In this case, the prosecution has not provided any evidence that a person depicted in the material was actually under [16/18]. Instead, they have contended that this element has been met because [a person / people] in the [film/ photograph/ publication/ computer game] appear[s] to be under that age. You must therefore consider the apparent age of the [person/people] in the [film/ photograph/ publication/ computer game].

Determining a person’s apparent age is something you probably do every day. For example, you may look at a person who you don’t know, and based on their physical characteristics you may estimate that they are over 50, or that they are under 20.

That is the same process that you need to apply here. You must carefully consider the relevant material, and determine whether [the person / any of the people] depicted in it appear[s] to be under [16/18]. If you find, beyond reasonable doubt, that [he / she / at least one of them] does appear to be under that age, then this fourth element will be established.

Knowledge

The fifth element that the prosecution must prove is that, at the time the accused printed, made or otherwise produced the [film/ photograph/ publication/ computer game], s/he knew that it contained child pornography, or was aware that this was likely.

This requires the accused to have known, or to have been aware that it was likely that, the [film/ photograph/ publication/ computer game] described or depicted a person engaging in sexual activity, or in an indecent sexual manner or context.

It also requires the accused to have known, or to have been aware that it was likely, that [the person/at least one of the people] depicted in that way was under the age of [16/18], or appeared to be under that age.

In this case, the prosecution alleged that the accused had the relevant state of knowledge, because [insert prosecution evidence and/or arguments]. The defence denied this, arguing that [insert relevant defence evidence and/or arguments].

It is only if you are satisfied, beyond reasonable doubt, that the accused knew that the [film/ photograph/ publication/ computer game] contained child pornography, or was aware that this was likely, that this fifth element will be met.

Defences

[If any of the exceptions in s70AAA are relevant, insert appropriate directions on that exception / those exceptions here. See Production of Child Pornography for guidance]

[If the defence of classification is raised in respect of a film, a photograph contained in a publication or a computer game, include the following shaded section]

It is a defence to a charge of production of child pornography that the [film/ photograph contained in a publication/ computer game] would, at the time it was made, have been classified by the Office of Film and Literature Classification as being other than RC or X 18+.[6]

A [film/ photograph in a publication/ computer game] may be classified RC or refused classification if it depicts, expresses or deals with matters of sex in a way that offends against the standards of morality and decency generally accepted by the community. This is the highest classification available and will only be given if the material is so offensive that it should not be classified.

A [film/ computer game] may also be classified RC if it depicts or describes a person who is, or who appears to be, under the age of 18 in a way that is likely to cause offence to a reasonable adult.

A film will be classified X18+ if it is unsuitable for a minor to see and it contains real depictions of actual sexual activity between consenting adults which contain no violence, coercion or demeaning material that is likely to cause offence to a reasonable adult.

In applying these standards, you must consider community standards and values as they existed when the [film/ photograph in the publication/ computer game] was made or produced. You must decide whether an ordinary member of the community at that time would consider the material to be offensive.

The defence says that [describe relevant defence arguments]. The prosecution disputes this, saying that [describe relevant prosecution arguments].

This is one of those rare situations in which a matter must be proved by the accused. The prosecution must still prove all of the elements of the offence before you need to consider this defence. However, if you are satisfied that those elements have all been proven, it is defence counsel who must prove the requirements of this defence before you can find the accused not guilty.

Unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – the defence only needs to prove these requirements on what is called the "balance of probabilities". This is a much lower standard than that required of the prosecution when proving an offence. It only requires the defence to prove that it is more probable than not that the [film/ photograph contained in a publication/ computer game] would be classified as something other than RC or X18+.

[Insert any other defences that are open on the evidence here.]

Summary

To summarise, before you can find NOA guilty of production of child pornography, the prosecution must prove, beyond reasonable doubt:

One – That NOA printed, made or otherwise produced a [film/ photograph/ publication/ computer game]; and

Two – That NOA intended to print, make or produce that [film/ photograph/ publication/ computer game]; and

Three – That the [film/ photograph/ publication/ computer game] describes or depicts a person engaging in sexual activity, or depicts a person in an indecent sexual manner or context; and

Four – That the person described or depicted in that way is, or appears to be, under the age of [16/18]; and

Five – That, at the time NOA printed, made or published the [film/ photograph/ publication/ computer game], s/he knew that it contained child pornography, or was aware that this was likely.[7]

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of production of child pornography.

 

Notes

[1] If one or more of the terms "printed, made or otherwise produced" are not relevant in the context of a particular case, they should be removed throughout this charge.

[2] The relevant age is 16 for offences alleged to have been committed before 18 May 2004, and 18 for offences alleged to have committed on or after that date.

[3] The definition of a "film" excludes advertisements. If it is contended that the relevant item was an advertisement rather than a film, this issue will need to be addressed.

[4] It is unclear whether downloading a file from the Internet constitutes production. See Production of Child Pornography for further information.

[5] The relevant age is 16 for offences alleged to have been committed before 18 May 2004, and 18 for offences alleged to have been committed on or after that date.

[6] This charge assumes that the Office of Film and Literature Classification had not classified the item. If they have, then the charge will need to be modified accordingly.

This charge is based on the National Classification Code 2005 as on 30 July 2007, which contains X18+ classification rather than X classification. If the Code was different at the date of publication, the charge will need to be modified accordingly.

[7] The judge should also summarise any defences or exceptions that are in issue.

Last updated: 8 December 2014

See Also

7.3.26 - Production of Child Pornography

7.3.26.2 - Checklist: Production of Child Pornography