9.4.1 - Charge: Use of carriage service to access child pornography material

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When to use this charge

This charge may be used when the accused is charged with using a carriage service to access child pornography material under s474.19(1)(a)(i). Where other forms of conduct under s474.19(1)(a) are alleged, such as transmitting or soliciting child pornography material, the charge must be adapted.

I must now direct you about the offence of using a carriage service to access child pornography material. To prove this crime, the prosecution must prove the following four elements beyond reasonable doubt:

One – the accused intentionally accessed material.[1]

Two – the material is child pornography material.

Three – the accused was reckless as to the material being child pornography material.

Four – the accused used a carriage service to access this material.

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

Conduct

The first element the prosecution must prove is that NOA intentionally accessed material.[2]

In order to prove this part of the offence, the prosecution must prove two matters beyond reasonable doubt:

First, the prosecution must prove that NOA accessed the material.

Second, the prosecution must prove that NOA did so intentionally. This means [she/he] meant to access this material.

The prosecution argue that [refer to relevant prosecution evidence and arguments].

The defence disputes this, and say [refer to relevant defence evidence and arguments].

Child pornography material

The second element that the prosecution must prove is that the material is child pornography material.

The law provides many definitions of child pornography material. In this case, only one definition applies. You must consider these three questions.

One – Does it show a person under the age of 18 years?

Two – Is the person under the age of 18 in a sexual pose or engaging in sexual activity?

Three – Would a reasonable person regard the image as offensive, given all the circumstances?[3]

If you answer yes to each question, then the material is child pornography material.

To decide whether a reasonable person would consider something to be offensive, you must consider current community standards and values. Is it offensive when measured against the standards of morality, decency and propriety generally accepted by reasonable adults?

You must also consider the literary, artistic or educational merit, if any, of the material and the general character of the material. For example a photograph of a naked child in a medical journal may not be offensive, even though the same photograph may be considered offensive if it was in a pornographic magazine.

Age

[If the age of the person depicted is in issue, add the following shaded section]

As you have heard, the defence disputes that [identify relevant person] is or appears to be under 18.

Determining whether a person appears to be under 18 requires no special skill. For example, in your everyday life, you may look at a person and, based on their physical characteristics, estimate that they are over 50, or under 20. It is the same exercise here. The difference is that this is an element of the offence. You can only find this element proved if you are satisfied beyond reasonable doubt that the person is or appears to be under the age of 18.

The prosecution says that you can find that [relevant person] was under the age of 18, or appeared to be under 18 at the time the [relevant material] was created. [Refer to relevant prosecution evidence and arguments].

The defence dispute this, and say [refer to relevant defence evidence and arguments].

Recklessness

The third element relates to NOA’s state of mind.

The prosecution alleges that NOA was reckless as to whether the material [he/she] accessed was child pornography material. This means it must prove that NOA was aware of a substantial risk that the material was child pornography material and in the circumstances as s/he knew them to be, it was unjustifiable to risk accessing the materials.

[If the prosecution also alleges the accused knew or believed the material was child pornography material, add the following shaded section]

The prosecution will also prove this element if you are satisfied the accused knew or believed the material [he/she] accessed was child pornography material.

[Discuss relevant evidence or arguments].

Carriage Service

The fourth element that the prosecution must prove is that NOA accessed the material using a carriage service.

[Identify relevant service] is a carriage service. To prove this element, the prosecution must prove that NOA accessed the material using [identify relevant service].

[Discuss relevant evidence or arguments].

Defences

[If any of the defences in s474.21 are relevant, insert appropriate directions on that defence here. See Use of carriage service for child pornography material for guidance.]

Summary

To summarise, before you can find the accused guilty, you must be satisfied that the prosecution has proved the following four elements beyond reasonable doubt:

One – the accused intentionally accessed material.

Two – the material is child pornography material.

Three – the accused was reckless as to the material being child pornography material.

Four – the accused used a carriage service to access this material.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of using a carriage service to access child pornography.

Last updated: 18 June 2016

Notes

[1] If the prosecution relies on a different form of conduct, this element must be modified accordingly.

[2] If the prosecution relies on a different form of conduct, this element must be modified accordingly.

[3] This direction must be modified in cases where other aspects of the definition apply. See Use of Carriage Service for Child Pornography Material for guidance.

See Also

9.4 - Use of carriage service for child pornography material