The Commonwealth offence of possessing, controlling producing or supplying child abuse material

The New South Wales Police Force recently reported that on 22 May 2022, a 55-detective senior constable attached to a specialist command was arrested and charged with sexual assault, following an investigation by officers attached to the Professional Standards Command.

The report does not name the officer or give further details about the sexual assault allegations, save to say the matter is currently before the courts.

It adds that after further investigations, the officer – who was presumably granted bail for his sexual assault charge – was arrested at The Hills Police Station at around 10am on 12 August 2022 and charged with possessing or controlling child abuse material using a carriage service.

Again, details of the specific allegations have not been released, but the report does advise that the officer will appear in Downing Centre Local Court in relation to the fresh charges on 14 September 2022.

The report says the officer has been suspended from the police force without pay.

The offence of possessing, controlling, producing, supplying or obtaining child abuse material using a carriage service

The charge against the officer is contained in section 474.23 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

It is a Commonwealth offence (also known as a Federal offence), which means it applies throughout Australia.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. The defendant possessed, controlled, produced, supplied or obtained material
2. The material was child abuse material, and
3. The defendant intended by his or her conduct for the material to be used by him or her, or by another person, to use a carriage service for child abuse material, which is an offence under section 474.22 of the Act.

Section 474.22 is the offence of using a carriage service for child abuse material, which also carries a maximum penalty of 15 years in prison.

To establish that offence, the prosecution must prove beyond reasonable doubt that:

1. The defendant accessed material, caused material to be transmitted to him or her, or transmitted, made available, published, distributed, advertised, promoted or solicited material,
2. The defendant did so by use of a carriage service, and
3. The material was child abuse material.

What is a ‘carriage service'?

A ‘carriage service' is: ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy', which includes telephone calls, text messages and internet transmissions.

What is ‘material'?

‘Material' includes material of any form, or combination of forms, capable of constituting a communication.

What is the definition of ‘child abuse material' under the Criminal Code Act?

The Criminal Code Act 1995 defines ‘child abuse material' as that which depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:

1. Under 18 years of age, and
2. A victim of torture, cruelty or physical abuse.

Or:

Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:

1. Under 18 years of age, and
2. A victim of torture, cruelty or physical abuse.

Or:

Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:

1. Under 18 years of age, and
2. Engaged in, or appearing to be engaged in, a sexual pose or sexual activity whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.

Or:

Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:

1. A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
2. The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

A person who is, or is implied to be, under 18 years of age and who is:

1. Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
2. In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

1. A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
2. The breasts of a female person who is, or is implied to be, under 18 years of age.

Or:

Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:

1. A person who is, or appears to be, under 18 years of age, or
2. Part of the body of such a person.

Statutory defences to child abuse material charges

Under the legislation, the defendant must be found not guilty of the offence if he or she establishes ‘on the balance of probabilities' that the conduct:

1. Was of public interest, and
2. Did not extend beyond that interest.

The conduct can only be of public interest if, and only if, it was necessary for or of assistance in:

1. Enforcing a law of the Commonwealth, a State or a Territory,
2. Monitoring compliance with, or investigating a contravention of, such a law
3. The administration of justice, or
4. Conducting scientific, medical or educational research approved in writing by the AFP Minister.

The defendant's motives are irrelevant for determining whether the conduct was of public interest.

Defences for certain persons acting in the course of their duties

A defendant is also not criminally responsible if he or she was:

1. A law enforcement officer, or an intelligence or security officer acting in the course of his or her duties, and it was reasonable in the circumstances for the purpose of performing those duties,
2. Assisting the eSafety Commissioner to perform his or her functions under the Online Safety Act 2021, or
3. Manufacturing, developing or updating content filtering technology in accordance with an industry code or standard.

Attempts

The defendant cannot be found guilty if he or she attempts but fail to commit the offence.

Legal defences

General legal defence such as duress and necessity can also defeat child abuse material charges.

If the defendant raises evidence of such a defence, the prosecution must then disprove the defence beyond reasonable doubt.

If the prosecution is unable to do so, the defendant must be found not guilty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.