These days it is common for clients to attend my office after being charged with child pornography offences.
There are several different child pornography offences, under both Commonwealth and State law. I can defend you if you have been charged with any of these, including:
- Possession of child pornography
- Production of child pornography
- Encouragement of use of a website to deal with child pornography
- Using a carriage service for child pornography
- Using a carriage service to transmit indecent communication to person under 16 years of age
- Importation of child pornography (‘tier 2 goods’)
Sometimes you can successfully defend a child pornography charge by arguing that the material was not sexual in nature.
It is not child pornography under the Victorian Crimes Act unless it depicts a person who is, or appears to be, a minor engaging in sexual activity, or depicted in an indecent sexual manner or context.
Under the Commonwealth Act, the definition is a little more complicated. It is likely to be child pornography if it either:
- Depicts or describes a minor who is either in a sexual activity or pose, or in the presence of someone else involved in a sexual activity or pose
- Depicts a minor’s genitals or breasts in an offensive way
Different offences will require different elements to be proven. For example, importation of child pornography involves two concepts:
- That it is in fact child pornography that is being imported (e.g. on a telephone or laptop). This means it needs to meet the definition above.
- That the accused turned his mind to the fact that it was child pornography or was aware that there was a substantial risk that the images constituted child pornography.
Child pornography is usually discovered after the police have raided the Accused’s premises and seized the computer and phone. Occasionally it is discovered in another way, such as when customs police decide to search through a mobile device.
However, the material is discovered, the police then remove the hard-drive from the computer and attach the hard-drive to a special computer of their own.
A program on this computer then analyses the entire contents of the hard-drive which contains any item that was ever viewed although it hasn’t been saved. This means that even photographs which have been looked at simply as a matter of curiosity will then be downloaded by the police into a separate file to be provided to the Court, as evidence of possession of child pornography.
The charge of possession of child pornography involves knowing possession. I have been successful with cases such as this on the basis that if the file was not saved, the operator of the computer did not knowingly possess the material. After all, these images can only be viewed with the help of a special computer program which the police have and the client probably does not.
If you are facing any problems regarding child pornography charges, you should feel free to contact Brendan Wilkinson, Criminal Defence Lawyer.
Free first Consultation.
All clients will deal with Mr Wilkinson personally.