Child pornography. The traps you can fall into.
Written by Bill Doogue. Partner, Doogue + George Defence Lawyers.
For those with little understanding of the law in relation to possession of child pornography, there are a number of ways they can be ensnared and end up on the wrong side of the law. Often, well-meaning people exercise errors in judgement that could certainly see them charged with the offences of possessing or creating child pornography.
To illustrate this point, recently my client, who is a teacher, was charged with possession of child pornography under Section 70 of the Crimes Act 1958. The allegation was that he had been downloading extremely low level child pornography on his work computer network. There were under 10 images that were in dispute. These allegations were denied, as he had never intentionally downloaded any child pornography and the charges were subsequently withdrawn. There were some complicated arguments about what the Police Brief actually established. We and our forensic computing expert asserted nothing at all was established by the Police Brief.
The really important lesson, good reader, was the subsequent problems caused by the well-meaning people involved.
In the end, the school only had a list of URLs that had been accessed. They did not actually have any material that was on their computers at the point of time that they first made the call that our client had downloaded child pornography material. One obvious problem with this, is that a URL is just a place holder and many sites often change the content on pages. As we do on this site occasionally.
What the school IT person did to remedy the lack of images was to run a report that downloaded the image related to what they had on their report. In essence, going to the URL and downloading images, including images alleged to be child pornography, even though they were images he instructed that he had never even viewed. Obviously this meant that the IT person was, in fact, downloading child pornography. The fact that it was done for the purposes of providing a report is not a defence to that charge. The manager had tasked that person specifically to download the images. So, the IT person was arguably guilty of downloading child pornography as well as the manager for tasking that person to download child pornography.
The manager then asked the employee to save some of the images onto a memory stick so that he could show it to the Headmaster. Again, at that point they have both committed the offence of producing child pornography because they have created a copy of the child pornography. And again, there is arguably no defence to this charge if they were prosecuted for it. They knowingly had made a copy of what they believed to be child pornography.
The manager then takes the child pornography on a memory stick to show it to the Headmaster. The Headmaster, again, thinking that he was doing the right thing inserted the memory stick into his computer and had a look at some of the images so that he could know what he was dealing with and the nature of the content. It is understandable for a lay person to think that this was acceptable because they feel they need to be satisfied as to the nature of the images before terminating someone’s employment. However, under the Crimes Act, they clearly have committed the offence of possessing child pornography. The person has knowingly possessed it. They have looked at a series of images that they have been told are of child pornography. The only defence that you could have is under Section 70 (4) where it gives an indemnity to any member or officer of the law enforcement agency, the person authorised in writing to assist a member or officer, or person belonging class authorised in writing by the Chef Commissioner of Police. There is no exemption for the well-meaning person. They have still committed the offence of possession of child pornography.
The natural consequences of alleging child pornography against a person then occurred. That is, the school then provided a copy of the material to an independent third party and discussed it with their Lawyers. The investigators then provided a report saying that they considered there was child porn images on the computer. They then have also committed child porn offences.
Leaving aside the fact that they could not actually prove the charges, it just goes to show how easily people can fall into error of possessing child pornography and involving other people in it. The lesson for Educators, Headmasters and IT staff is that this is not a matter for them to investigate. If there is an allegation of child pornography being possessed by somebody or being downloaded on computers, then it is imperative the Police are contacted immediately.
Doing otherwise puts them in the terrible position of possibly being charged with possessing child pornography, because they did not understand the law that applied. You may think that this is fanciful but we have acted for a solicitor whom the Police asserted that they were going to charge with distributing child pornography for attaching a child porn related letter from a Father to a Family Court Affidavit. Fortunately, sense prevailed in that matter and the Lawyer was never charged.
In the case detailed previously, imagine the damage of the reputation of the school if all of the parents were to wake up to see that the headmaster of a prestigious school has been charged with possession of child pornography.
Even if ultimately the charges were dismissed or a diversion occurred the damage to the organisation would be incalculable.