7.3.27 - Possessing Child Abuse Material
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- Section 51G of the Crimes Act 1958 establishes that it is an offence to knowingly possess child abuse material. The section came into effect on 1 July 2017 (Crimes Amendment (Sexual Offences) Act 2016 s 2).
Overview of elements
- The offence requires that the prosecution prove three elements beyond reasonable doubt:
- The accused possessed material;
- The material was child abuse material
- The accused knowingly possessed child abuse material (Crimes Act 1958 s 51G(1)).
- The prosecution must prove the accused possessed the material in question (Crimes Act 1958 s 51G(1)).
- For information on the meaning of ‘material’, see 7.3.24 – Production of child abuse material.
- This offence uses the common law meaning of possession (see, in relation to similar legislation, R v Shew  QCA 333; Police v Kennedy (1998) 71 SASR 175). Possession requires proof that the accused has custody or control of material and an intention to possess that material (He Kaw Teh v The Queen (1985) 157 CLR 523; R v Maio  VR 281). For more information on those issues, see 7.6.3 – Possession of a drug of dependence.
- Once a person has possession of goods, he or she remains in possession of goods that are in his or her control, even if he or she has forgotten of the existence of those goods (Police v Kennedy (1998) 71 SASR 175).
- A person possesses electronic material if he or she controls access to the material. It is not necessary to show that the accused had physical possession of the material (Crimes Act 1958 s 51G(3)).
- Section 51G provides two examples on how possession of electronic material operates:
1 A has an online storage account for electronic material accessible with a username and password. A has control of what is stored in the account and can move material around within the account or delete material from the account. A has an electronic folder in the account that A has titled 'personal' in which A puts some electronic child abuse material. A knowingly has possession of child abuse material.
2 In an online chat A is given a password for a joint email account that is shared with multiple users that A doesn't know. A logs into the email account and views emails that contain child abuse material images. While logged in A has the ability to view, move or delete emails that contain child abuse material. A continues to access the email account to view images. A knowingly has possession of child abuse material.
- Examples are not exhaustive and may extend but do not limit the meaning of a provision (Interpretation of Legislation Act 1984 s 36A)(1)).
Child abuse material
- The second element the prosecution must prove is that the material is child abuse material (Crimes Act 1958 s 51G(1)).
- For information on the meaning of ‘child abuse material’, see 7.3.24 – Production of child abuse material.
Knowingly possessing child abuse material
- Section 51G requires that the accused must ‘knowingly’ possess child abuse material. This is consistent with the predecessor offence, which required proof that the accused knowingly possessed child pornography. While there have not been any cases on it, it is likely the requirement of knowing possessing requires proof that the accused knew the material was, or probably was child abuse material. As explained in 7.3.24 – Production of child abuse material, this requires proof that the accused knew the material met or probably met both the content limb and the offensiveness limb of the definition of child abuse material.
- It does not matter that electronic material was outside Victoria, provided the accused was in Victoria at the time of some of all of the conduct constituting the offence (Crimes Act 1958 s 51G(4)).
- Further, it does not matter that the accused was outside Victoria for some or all of the time of the conduct constituting the offence, as long as the electronic material was in Victoria (Crimes Act 1958 s 51G(5)).
Exceptions and defences
- The Crimes Act 1958 provides three exceptions and seven defences to the offence of possessing child abuse material (see Crimes Act 1958 ss 51J, 51K, 51L, 51M, 51N, 51O, 51P, 51Q, 51R, 51T).
- Three of the defences are only available if the accused has not distributed the child abuse material to a person other than the child depicted (Crimes Act 1958 ss 51P, 51Q, 51R), or at all (Crimes Act 1958 s 51O). Distribution for the purposes of these defences includes publishing, exhibiting, communicating, sending, supplying or transmitting the material or making it available to another person (Crimes Act 1958 s 51A(2)(b)).
- Most of the applicable defences are explained in 7.3.24 – Production of child abuse material. The exception is unsolicited possession under Crimes Act 1958 s 51T, which is described below.
- It is a defence for the accused to prove, on the balance of probabilities, that:
- The accused did not intentionally come into possession of child abuse material; and
- On becoming aware of having come into possession of child abuse material, the accused, as soon as practicable, took all reasonable steps in the circumstances to cease possessing the material (Crimes Act 1958 s 51T).
Last updated: 17 March 2020