Privacy Law and Policy Reporter
The appellant was convicted by a magistrate of two offences under the Summary Offences Act (the Act) of being in possession of child pornography in the form of video tapes. On appeal, the question was whether the tapes found in the appellant's possession are child pornography, as defined under s 33 of the Act.
The appellant had taken video film of boys and men dressing and undressing and urinating in public lavatories. After a member of the public contacted police the appellant was apprehended in a toilet block and his camera and tape seized. Police officers also seized six similar tapes from his home.
Child pornography is defined in s 33(1) as 'indecent or offensive material in which a child is depicted or described in a way that is likely to cause offence to reasonable adult members of the community'. Under s 33(4), the manner of collection is not relevant - 'the circumstances of the production, sale, exhibition, delivery or possession of material to which the charges relate will be regarded as irrelevant to the question of whether or not the material is indecent or offensive material'.
In his judgment Debelle J discussed at length whether the material was indecent, obscene or immoral. He found that the trial judge had erred in accepting a description of the video tapes which suggested that the tape recording was dominated by the act of urinating. In fact, this was only part of the footage on the tapes. He concluded that as a whole the tape could not be considered indecent material judged by contemporary standards in the Australian community and upheld the appeal.
The underlying issue in this case is the violation of privacy in a public place by means of video surveillance. There is, of course, no general protection for the right to privacy. Debelle J remarked, 'It cannot be said that there is anything inherently indecent in these scenes other than the fact that the appellant has invaded their privacy. The film constituted an appalling invasion of the privacy of the individuals filmed for no purpose other than to satisfy the prurient interests of the appellant'. However, the law was unable to provide any protection for the privacy of the individuals filmed on the video camera.