7.3.25.2 - Checklist: Distributing Child Abuse Material

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Note: This checklist is drafted on the assumption that the prosecution relies on clause (i)(C) of the definition of child abuse material. The checklist must be modified if the prosecution relies on a different limb of the definition.

Three elements the prosecution must prove beyond reasonable doubt:

1. The accused intentionally distributed material; and

2. The material was child abuse material; and

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

Intentional Distribution of Material

1. Did the accused intentionally distribute material?

1.1. Is the item in question material?

If Yes, then go to 1.2

If No, then the accused is not guilty of

Distributing Child Abuse Material

1.2. Did the accused distribute that material?

Consider – A person can distribute material by publishing, exhibiting, communicating, sending, supplying or transmitting the material to another person. A person can also distribute material by making the material available to access.

If Yes, then go to 1.3

If No, then the accused is not guilty of

Distributing Child Abuse Material

1.3. Did the accused intend to distribute that material?

If Yes, then go to 2

If No, then the accused is not guilty of

Distributing Child Abuse Material

Child Abuse Material

2. Is the material child abuse material?

2.1. Did it describe or depict someone who was, or appears to be, under the age of 18 years?

Consider – The person described or depicted does not need to be a real person

If Yes, then go to 2.2

If No, then the accused is not guilty of

Distributing Child Abuse Material

2.2. Did the material describe or depict that person engaged in, or apparently engaging in, a sexual pose or sexual activity?

If Yes, then go to 2.3

If No, then the accused is not guilty of

Distributing Child Abuse Material

2.3. In the circumstances, would reasonable persons regard the material as being offensive?

If Yes, then go to 3

If No, then the accused is not guilty of

Distributing Child Abuse Material

Knowledge of the Accused

3. Did the accused know that the material was, or probably was, child abuse material?

3.1. Did the accused know the material described or depicted, or probably described or depicted, someone who was, or appeared to be, under the age of 18 years?

If Yes, then go to 3.2

If No, then the accused is not guilty of

Distributing Child Abuse Material

3.2. Did the accused know the material described or depicted, or probably described or depicted, that person engaged in, or apparently engaging in, a sexual pose or sexual activity?

If Yes, then go to 3.3

If No, then the accused is not guilty of

Distributing Child Abuse Material

3.3. Did the accused know that reasonable persons would, or probably would, regard the material as being offensive?

If Yes, then the accused is guilty of Distributing Child Abuse Material (as long as you have answered Yes to all previous questions)

If No, then the accused is not guilty of

Distributing Child Abuse Material

Last updated: 17 March 2020

See Also

7.3.25 - Distributing Child Abuse Material

7.3.25.1 - Charge: Distributing Child Abuse Material