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7.3.26.2 - Checklist: Production of Child Pornography

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Five elements the prosecution must prove beyond reasonable doubt:

  1. The accused printed, made or otherwise produced a [film/ photograph/ publication/ computer game]; and
  2. The accused intended to print, make or otherwise produce that [film/ photograph/ publication/ computer game]; and
  3. 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
  4. A person depicted or described in that way, is or appears to be, under the age of [16/18] [1]; and
  5. The accused knew that the [film/ photograph/ publication/ computer game] contained child pornography, or was aware that that was likely.

 

Production of a [Film / Photograph / Publication / Computer Game]

1. Did the accused print, make or otherwise produce a [film/ photograph/ publication/ computer game]?

1.1 Is the item in question a [film/ photograph/ publication/ computer game]?

If Yes, then go to 1.2

If No, then the accused is not guilty of
Production of Child Pornography

1.2 Did the accused print, make or otherwise produce that [film/ photograph/ publication/ computer game]?

If Yes, then go to 2

If No, then the accused is not guilty of
Production of Child Pornography

Intention

2. Did the accused intend to print, make or otherwise produce that [film/ photograph/ publication/ computer game]?

If Yes, then go to 3.1

If No, then the accused is not guilty of
Production of Child Pornography

Child Pornography

3.1 Does the [film/ photograph/ publication/ computer game] describe or depict a person engaging in sexual activity?

If Yes, then go to 4.1

If No, then go to 3.2

3.2 Does the [film/ photograph/ publication/ computer game] depict a person in an indecent sexual manner or context?

Consider - Would an ordinary member of the community consider the depiction to be indecent, in light of our current standards of decency?

If Yes, then go to 4.1

If No, then the accused is not guilty of
Production of Child Pornography

Age

4.1 Is a person described or depicted engaging in sexual activity, or in an indecent sexual manner or context, under the age of [16/18]?

If Yes, then go to 5.1

If No, then go to 4.2

4.2 Does a person described or depicted engaging in sexual activity, or in an indecent sexual manner or context, appear to be under the age of [16/18]?

If Yes, then go to 5.1

If No, then the accused is not guilty of
Production of Child Pornography

Accused’s Knowledge or Awareness

5. Did the accused know that the [film/ photograph/ publication/ computer game] contained child pornography, or was the accused aware that that was likely?

5.1 Did the accused know that the [film/ photograph/ publication/ computer game] described or depicted someone who was under [16/18], or who appeared to be under [16/18], engaging in sexual activity?

If Yes, then the accused is guilty of Production of Child Pornography

(as long as you have also answered Yes to questions 1.1, 1.2 and 2, Yes to either question 3.1 or 3.2, and Yes to either question 4.1 or 4.2)

If No, then go to 5.2

5.2 Was the accused aware that it was likely that the [film/ photograph/ publication/ computer game] described or depicted someone who was under [16/18], or who appeared to be under [16/18], engaging in sexual activity?

If Yes, then the accused is guilty of Production of Child Pornography

(as long as you have also answered Yes to questions 1.1, 1.2 and 2, Yes to either question 3.1 or 3.2, and Yes to either question 4.1 or 4.2)

If No, then go to 5.3

5.3 Did the accused know that the [film/ photograph/ publication/ computer game] depicted someone who was under [16/18], or who appeared to be under [16/18], in an indecent sexual manner or context?

If Yes, then the accused is guilty of Production of Child Pornography

(as long as you have also answered Yes to questions 1.1, 1.2 and 2, Yes to either question 3.1 or 3.2, and Yes to either question 4.1 or 4.2)

If No, then go to 5.4

5.4 Was the accused aware that it was likely that the [film/ photograph/ publication/ computer game] depicted someone who was under [16/18], or who appeared to be under [16/18], in an indecent sexual manner or context?

If Yes, then the accused is guilty of Production of Child Pornography

(as long as you have also answered Yes to questions 1.1, 1.2 and 2, Yes to either question 3.1 or 3.2, and Yes to either question 4.1 or 4.2)

If No, then the accused is not guilty of
Production of Child Pornography

 

Notes

[1] 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.

Last updated: 28 February 2008

See Also

7.3.26 - Production of Child Pornography

7.3.26.1 - Charge: Production of Child Pornography