Possess or Control Child Abuse Material Obtained Using Carriage Service
It is an offence to possess or control child abuse material which was obtained or accessed using a carriage service. The offence of possess or control child abuse material obtained or accessed using a carriage service is contained in section 474.22A of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of 15 years imprisonment. As this is a Commonwealth offence, it applies in all states and territories.
When is the offence committed?
The offence is committed where a person:
- has possession or control of material;
- the material is data held in a computer or contained in a data storage device;
- the person used a carriage service to obtain or access the material; and
- the material is child abuse material.
What is Child Abuse Material?
Child abuse material includes material that describes or depicts a person, or a representation of a person who:
- is, or appears or is implied to be, under 18 years of age; and
- is or appears to be subject to torture, cruelty or physical abuse;
- Is in a sexual pose or engaging in sexual activity (or appears to be). This can be with another person but does not need to be; ]);
- Is in the presence of another person who is in a sexual pose or engaging in a sexual activity;
- The material is in way that a reasonable person would find offensive.
Child abuse material also includes material that describes or depicts, for a sexual purpose either:
- an actual, or a representation of, a sexual organ or the anal region of a person who either is, or appears to be under the age of 18; or
- an actual, or a representation of, the breasts,of a female person who is or appears to be under 18 years of age; and
- does so in a way that a reasonable person would consider offensive.
Child abuse material can include a doll or other object that resembles a person (or body part of a person) under the age of 18 where a reasonable person would consider that the doll or object is used to simulate sexual intercourse.
What Is a Carriage Service?
Control Or Possession of Data
Possess or control child abuse material obtained using carriage service includes having the material stored on a computer or electronic device such as a phone or an iPad. It also includes having control of data in a computer that is possessed by another person that may be inside or outside of Australia.
What must be proven?
In order for a court to find a person guilty of this offence beyond a reasonable doubt, the prosecution must prove:
- That the person had possession or control of material; and
- The material was in the form of data held in a computer or contained in a data storage device; and
- The material was child abuse material; and
- That the person engaged in the conduct voluntarily; and
- That the person intended to engage in the conduct of possession and control.
There is a presumption that if the Police prove the above, that the person used a carriage service to obtain or access the material.
The charge of possess orcontrol child abuse material obtained using carriage service may be validly defended by arguing that:
- The accused’s actions were of public benefit and did not extend beyond that; or
- The person was a law enforcement officer, intelligence or security officer performing their duties and the conduct was reasonable in the circumstances; or
- The conduct was engaged in,in good faith for the sole purpose of assisting the eSafety Commissioner to detect prohibited or potentially prohibited content
What is a Public Benefit?
To determine if the conduct is of public benefit the court makes a determination of the facts and does not consider the motives of the person.
The conduct is only of public benefit if:
- it is necessary for assistance in enforcing laws;
- it is necessary for monitoring compliance with or investigation a contravention of laws; or
- it is necessary for the administration of justice; or
- it is necessary for conducting scientific, medical or educational research that has been approved by the AFP Minister in writing.
As this offence carries a maximum penalty of 15 years imprisonment, it cannot be finalised in a summary jurisdiction. For New South Wales offences this means it must be finalised in the District Court. For ACT offences, this means it must be finalised in the Supreme Court unless the DPP elects for it to remain in the Magistrates Court. Victorian offences will be heard in the Victorian Magistrates Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.