Previous Topic

Next Topic

Book Contents

Book Index

7.3.28.1 - Charge: Possession of Child Pornography

Click here to obtain a Word version of this document for adaptation

I must now direct you about the crime of possessing child pornography. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - NOA knowingly possessed a [film/ photograph/ publication/ computer game].

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

Three - the person depicted or described in that way is, or appears to be, under the age of [16/18].[1]

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

Possession of a film, photograph, publication or computer game

The first element that the prosecution must prove is that the accused knowingly possessed 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]. [2]

[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.

Possession

If you are satisfied that the [describe relevant item] is a [film/ photograph/ publication/ computer game], you must then determine whether NOA knowingly possessed that [film/ photograph/ publication/ computer game].

According to the law, people are said to have in their possession whatever is, to their knowledge, physically in their custody or under their control. This definition of possession requires the prosecution to prove three matters beyond reasonable doubt.

First, the prosecution must prove that the accused had physical custody of, or control over, the [describe relevant item].

[If the case involves internet browsing, add the following shaded section]

In relation to the Internet, this means that a person will not possess material that they merely look at, or "browse", on a website. To possess that material, a person must do something to take control over it. That is, s/he must do something that gives him/her the ability to control the viewing and reproduction of the relevant material.

Second, the prosecution must prove that the accused intended to have custody or exercise control over the [describe relevant item].

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

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 possess 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 possess 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 possess it.

Third, the prosecution must prove that the accused knew that the [describe relevant item] 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.

[If there is a dispute over whether the accused had physical custody of the item, add the following shaded section]

NOA does not need to have been carrying the [describe relevant item], or to have had it on him/her, to have had it in his/her possession. S/he will have been in possession of whatever was, to his/her knowledge, in his/her custody or under his/her control, even if it was not with him/her.

[In cases of joint possession, add the following shaded section]

It is possible for more than one person to possess an item – so long as they each meet all of the requirements I have just mentioned.

[If the accused claimed to have forgotten that s/he possessed the relevant material, add the following shaded section]

You have heard evidence in this case that [summarise relevant evidence]. If you find that NOA never knew that s/he possessed the [describe relevant item], then clearly this element will not be satisfied, for s/he will neither have intended to possess it nor have known of its sexual nature.

However, if you find that NOA once knew that s/he possessed the [describe relevant item], but had simply forgotten about it, then this element may be satisfied. It will be satisfied if you decide that NOA once had an intention to possess the [describe relevant item], knew of its sexual nature, and continued to have custody and control over it.

This is because, according to the law, a person continues to have an intention to possess an item s/he has taken possession of in the past, unless s/he take steps to get rid it. His/her possession of that item does not vary according to whether s/he remembers s/he has it or not.

In this case, the prosecution alleged that NOA was knowingly in possession of [describe relevant item and insert relevant evidence]. The defence responded [insert any relevant evidence or arguments].

Summary of First Element

To summarise, for this first element to be met, the prosecution must prove:

  1. That [describe relevant item] is a [film/ photograph/ publication/ computer game]; and
  2. That NOA knowingly possessed that [film/ photograph/ publication/ computer game]. That is, s/he had physical custody or control of it, s/he intended to have such custody or control, and s/he knew that it contained child pornography, or was aware that this was likely.

It is for you to determine, based on all of the evidence, whether all of these requirements have been met. It is only if you are satisfied that the prosecution has proven each of them, beyond reasonable doubt, that this first element will be established.

Sexual Activity or Indecent Sexual Context

The second 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 second element will be met.

Age

The third 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. [3]

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 third 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 third element will be established.

Defences [4]

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

Even if you find that the prosecution has proven all three elements of this offence, NOA will not necessarily be guilty of this offence. This is because there are certain circumstances in which a person is allowed to possess child pornography. That is, they have a defence to the charge.

[If the defence of artistic merit is open on the evidence, add the following shaded section]

Of relevance to this case, the law says that NOA will have a defence to this offence if s/he can prove that the [describe relevant item] possesses artistic merit.

This is an ordinary, English term, which does not have a specific legal meaning. It is for you to determine whether [describe relevant item] has artistic merit.

In deciding this, you should consider the nature of the item and the context in which it was possessed. You may also consider factors such as whether the [describe relevant item] exists to appeal to the aesthetic, rather than erotic, tastes of those who view it, and whether it is a product of human creativity and imagination. However, these are only guides. It is your decision to make, taking into account all of the evidence.

[If the defence of genuine medical, legal, scientific or educational purpose is open on the evidence, add the following shaded section]

Of relevance to this case, the law says that NOA will have a defence to this offence if s/he can prove that s/he possessed the [describe relevant item] for a genuine [medical/ legal/ scientific/ educational] purpose.

This is an ordinary English phrase, which does not have a specific legal meaning. It is for you to determine, based on all the evidence, whether NOA genuinely possessed the [describe relevant item] for a [medical/ legal/ scientific/ educational] purpose. That must have been their dominant purpose for having that material.

[If the defendant claims to have believed on reasonable grounds that the minor was aged 18 years or older, add the following shaded section]

Of relevance to this case, the law says that NOA will have a defence to this offence if s/he can prove that s/he believed on reasonable grounds that the person depicted or described in the [describe relevant material] was aged 18 or older.

This requires the defence to prove that NOA believed that the person depicted or described in the [describe relevant material] was aged 18 or older. It also requires the defence to prove that NOA had reasonable grounds for that belief. For there to be reasonable grounds for a belief, you must be satisfied that the belief was based on facts which would have caused a reasonable person to believe the same thing.

This is one of those rare situations in which a matter must be proved by the accused. It is defence counsel who must prove to you that [the item possessed artistic merit / NOA possessed the item for a genuine [medical/ legal/ scientific/ educational] purpose / NOA believed on reasonable grounds that the person was aged 18 over].

This means that, if you are satisfied that the prosecution has proven all of the elements of the offence, you must find NOA guilty unless s/he can prove that s/he met all the requirements of [one of] the defence[s].

However, unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – defence counsel 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 element of an offence. It only requires defence counsel to prove that it is more probable than not that the [item possessed artistic merit / NOA possessed the item for a genuine [medical/ legal/ scientific/ educational] purpose / NOA believed on reasonable grounds that the person was aged 18 or over].

In this case, defence counsel argued that [describe relevant defence evidence and/or arguments]. The prosecution rejected these arguments, contending that [describe relevant prosecution evidence and/or arguments].

[Insert any other relevant defences here.]

Summary

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

One – That NOA knowingly possessed a [film/ photograph/ publication/ computer game]. That is:

Two – 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

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

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

[If a defence is open on the evidence, add the following shaded section]

However, even if the prosecution has proven each of these elements to you, NOA will not be guilty of this offence if s/he has proven that it is more probable than not that [the item possessed artistic merit / NOA possessed the item for a genuine [medical/ legal/ scientific/ educational] purpose / NOA believed on reasonable grounds that the person was 18 or over].

 

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.

[2] 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.

[3] 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.

[4] If the defendant relies on Crimes Act 1958 s.70(2)(a) (Classification other than RC, X or X18+), then the jury must be directed on this defence. Charge: Production of Child Pornography contains a sample charge for this defence.

Last updated: 8 December 2014

See Also

7.3.28 - Possession of Child Pornography

7.3.28.2 - Checklist: Possession of Child Pornography