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7.3.24.1 - Charge: Production of Child Abuse Material

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This direction is designed for cases where the child abuse material depicts the child engaged in, or apparently engaging in, a sexual pose or sexual activity. If the prosecution relies on other limbs of the definition of child abuse material, then the direction must be modified.

I must now direct you about the crime of producing child abuse material. To prove this crime, the prosecution must prove the following three elements beyond reasonable doubt:

One – The accused intentionally produced material.

Two - The material is child abuse material.

Three - The accused knew that the material was, or probably was, child abuse material.

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

Produced material

The first element the prosecution must prove is that the accused intentionally produced material.

This requires the prosecution to show that the accused intentionally created[1] the photos[2] in question.

In other words, the prosecution must show that it was the accused who created the photos and that s/he did so deliberately and not accidentally.

[Refer to relevant evidence and arguments]

Child abuse material

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

The law provides that child abuse material comes in many forms. You must consider three questions:

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

Depicts or describes a child or someone who is or who appears to be a child

The first question requires the prosecution to show that the person depicted is a child or appears to be a child. For the purpose of this offence, a child is a person under the age of 18.

To prove this first part of the element, the prosecution says [identify relevant evidence and arguments]. In response, the defence says [identify relevant evidence and arguments].

As part of this element, you can take into account your own life experience about how young the relevant person appears to be. You can also take into account how that person is depicted. If the person is depicted as a child, then this part of the element would be proved, even if the person was actually an adult.

Subject matter of the material

The second question looks at what the material shows. It must show the person in a sexual pose or sexual activity.[4]

To prove this second part of the element, the prosecution says [identify relevant evidence and arguments]. In response, the defence says [identify relevant evidence and arguments].

Offensive to reasonable persons

The third question requires you to decide whether reasonable people would regard the material as being offensive in the circumstances.

For this question you must consider current community standards and values. You must decide whether it offensive when measured against the standards of morality, decency and propriety generally accepted by reasonable adults.

To prove this third part of the element, the prosecution says [identify relevant evidence and arguments]. In response, the defence says [identify relevant evidence and arguments].

Knowledge

The third element the prosecution must prove is that the accused knew that the material was, or probably was, child abuse material.

This requires the prosecution to prove the accused knew that the material contained, or probably contained, the three features that make something child abuse material.

That is, first, the accused knew that the material depicted, or probably depicted, a person who was or appeared to be under the age of 18 years; secondly, that the accused knew that the material depicted, or probably depicted, the person engaging in a sexual pose or sexual activity; and, thirdly, that the accused knew that reasonable persons would, or probably would, regard the material as being offensive in the circumstances.

[Identify relevant evidence and arguments]

Defences

[If the defence has raised any relevant defence or exception, insert appropriate directions on that defence or exception here.]

Summary

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

One – NOA intentionally produced material

Two – The material is child abuse material.

Three – NOA knew that the material was, or probably was, child abuse material.

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

Last updated: 17 March 2020

Notes

[1] If the prosecution relies on a different form of production, this should be modified accordingly.

[2] If the prosecution relies on a different form of material, this should be modified accordingly. In cases where the jury must determine whether the alleged child abuse material is “material” within the meaning of the Crimes Act 1958, the direction should be modified to instruct the jury about the definition of material and how it can apply that definition in the case.

[3] If the prosecution relies on a different limb of the definition of child abuse material, this question should be modified accordingly, such as by asking whether the material depicts the genital or anal region of a person, or the breast area of a person who is or who appears to be female.

[4 If the prosecution relies on a different limb of the definition of child abuse material, this question should be modified accordingly, such as by asking whether the material depicts the genital or anal region of a person, or the breast area of a person who is or who appears to be female.