Installing a Device to Facilitate Observation or Filming

The offence of Install a Device to Facilitate Observation or Filming carries the maximum penalties of an $11,000 fine and/or 2 years imprisonment.

What does it mean to Install a Device to Facilitate Observation or Filming?

The offence of Installing a Device to Facilitate Observation or Filming is set out under section 91M of the Crimes Act 1900 (NSW) (the Act) and states: 

A person who, with the intention of enabling that person or any other person to commit an offence against section 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation or filming of another person, is guilty of an offence.

Maximum penalty—100 penalty units or imprisonment for 2 years, or both.

Meaning, anyone who installs a device or alters the fabric of a building to film a person engaged in a private act or to film a person’s private parts for the purpose of observing or filming them for sexual arousal is guilty of this offence.

Section 91N of the Act defines ‘film’ to include both photographs and videos and defines ‘private parts’ as:

(a)  a person’s genital area or anal area, whether bare or covered by underwear, or

(b)  the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

The following acts constitute the offence of Installing a Device to Facilitate Observation or Filming:

• Installing a hidden camera in a public toilet
• Installing a hidden camera in a change room at a lingerie store
• Creating a peep hole in a wall of a bathroom so you can look through it from outside the house

What Must be Proven?

For a person to be found guilty of Installing a Device to Facilitate Observation or Filming, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you installed a device; or
• That you constructed or adapted the fabric of a building;
• For the purpose of facilitating the observation or filming of another person;
• With the intention of committing an offence against section 91J, 91K or 91L of the Act.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This is a Summary Offence meaning it will be dealt with in its entirety in the Local Court.

What are Possible Defences?

The following defences may be available:

• You did not install the device to facilitate any observation or to film
• You did not construct or adapt the fabric of a building
• You had the consent of/genuinely believed you had the consent of the person being filmed or observed
• Duress 

Common Questions about the Offence of Installing a Device to Facilitate Observation or Filming

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

In NSW, a Court can impose any of the following penalties:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for Installing a Device to Facilitate Observation or Filming might jeopardise your job. 

Will I go to Gaol for an Install a Device to Facilitate Observation or Filming charge?

A Gaol sentence is possible with this offence but the likelihood of that being the outcome depends on the circumstances surrounding the offence.

What if the person in the images/videos consented?

Consent is a tricky legal term and can be read about here [LINK]

What if I installed a device in a car, not a building?

Any reference to a ‘building’ in this provision includes vehicles, vessels, tents and temporary structures.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.