7.3.27.2 - Checklist: Possessing 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 possessed material; and

2. The material was child abuse material; and

3. The accused knowingly possessed child abuse material.

Possessing material

1. Did the accused possess 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

Possessing Child Abuse Material

1.2. Did the accused have the material in his or her custody or control?

If Yes, then go to 2

If No, then the accused is not guilty of

Possessing 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

Possessing 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

Possessing 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

Possessing Child Abuse Material

Knowingly possessing child abuse material

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

Possessing 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

Possessing 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 Possessing Child Abuse Material (as long as you have answered Yes to all previous questions)

If No, then the accused is not guilty of

Possessing Child Abuse Material

Last updated: 17 March 2020

See Also

7.3.27 - Possessing Child Abuse Material

7.3.27.1 - Charge: Possessing Child Abuse Material