The right to party!

The prosecution of a nameless teen, where every development in an otherwise mundane case is carefully tracked by the Victorian media, goes on and the teen’s fighting:

A VICTORIAN teen accused of producing child porn and creating a public nuisance will fight the charges in the Children’s Court. The eastern suburbs boy, 17, faced the court today ahead of a two-day contested hearing booked for August. His defence laywer told the court the public nuisance charge was unusual. The police prosecutor agreed he couldn’t find any other court matters where this charge had been laid.

The court heard five police and six civilian witnesses would be called to give evidence at the hearing, including a partygoer who made a statement to police about crowd behaviour. A handy-cam allegedly used to film a couple involved alleged sex acts was handed to police by the teen’s step-father, the defence lawyer told the court. The boy is charged with one count each of creating a public nuisance and producing child pornography. A magistrate extended his bail. He will appear again in court on August 18.

The teen may be able to take advantage of Victoria’s Charter. As I suggested when the teen was first charged, the bringing of major charges in a case like this seems quite weird.

Dodgy parties, if they merit criminal prosecution at all, can be charged with all manner of summary offences, including ‘playing at a game to the annoyance of anyone‘, ‘footpath obstruction‘ and abetting ‘drunken disorderliness in a public place‘, as well as some standard offences relating to being drunk or offensive. All these offences carry fines or tiny terms of imprisonment. So, why have the police instead dug through the list of common law crimes for the rarely (if ever) used offence of ‘public nuisance’, which carries a maximum of five years imprisonment? The decision to prosecute smacks of an attempt to teach the lad a lesson and obstruct his dealings with the media. And that raises the interesting question of the interaction of these provisions:

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

21(2) A person must not be subjected to arbitrary arrest or detention.

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Victoria Police, of course, are a public authority. So, there seems to be an argument that bringing the charge of public nuisance scarcely seems to fit with the teen’s best interests and, depending on their motivation, might be arbitrary (at least if the teen was arrested.) While the House of Lords recently cast some doubt on whether charging decisions can limit rights, their reasoning (such as it was) may be of limited relevance to Victoria, where courts are exempted from the Charter. So, the burden of keeping discretionary criminal justice compatible with human rights falls to the police. For this reason, I’m also dubious that the mere availability of the charge under Victorian law provides the police with a defence under Charter s. 38(2).

And what about the charge of producing child pornography? Well, any film of one or more minors (or even apparent minors) involved in ‘sex acts’ fits the definition of child pornography. 

child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context

And, unless the teen is quite an artiste with his handicam, he can’t rely on the Commonwealth Classification Board to save the day with a PG rating. Alas, he’s part of a weird trend (and a disturbing statutory quirk) in Victorian prosecutions:

TEENAGERS are becoming major makers of child pornography in Victoria, new statistics show. Statistics reveal adolescents last year outnumbered middle-aged men two to one as the main offenders in child porn production. Youths 10 to 14 were among the alleged offenders. But new sentencing statistics have revealed that possession-of-child pornography cases coming before the courts overwhelmingly involve adult men. All 197 offenders dealt with by magistrates in the past three years for possession were men. They were aged 18 to 73, and almost a third were between 35 and 45.

Detective Inspector Chris O’Connor said that youths risked being convicted by sharing nude images of their peers using new technology. “It provides the environment for curious kids to come across it or accidentally come across the material,” Insp O’Connor said. “In the first instance, we can put a lot of it down to innocence and naivety, but there will always be people with a propensity to seek out child abuse images no matter what age.” In a recent case an eight-year-old was questioned by police in country Victoria over naked pictures found on a mobile phone but no charges were laid. A youth was charged with producing child pornography after a teen party over summer.

Victoria Police data reveals more 15 to 19-year-olds were stung for child porn production than any age group last year. Twenty in that group were processed for the crime, compared with just 10 aged between 45 and 54. The spike coincided with the notorious Werribee DVD case in which 11 boys were charged over a shocking home movie circulating in the suburb.

An eight-year old? Well, at least he or she is safe from prosecution. But this news article completely failed to pick up on the reason why kids are getting charged with procuring child porn while only adults are getting charged with possessing child porn. The key is these defences:

70(2) It is a defence to a prosecution for an offence against subsection (1) to prove-…

(d) that the defendant made the film or took the photograph or was given the film or photograph by the minor and that, at the time of making, taking or being given the film or photograph, the defendant was not more than 2 years older than the minor was or appeared to be; or

(e) that the minor or one of the minors depicted in the film or photograph is the defendant.

These defences are clearly designed to stop prosecutions of kids for shooting films of eachother, presumably just like our teen party animal did. But here’s the catch: these defences only apply for the offence of possessing child pornography, and don’t apply for the offences of producing or procuring child pornography (which both carry penalties of ten years in prison.)

Now, of course, this is nuts: why on earth are kids allowed to possess a film that they made, but are not allowed to make it? This seems to be a bizarre legislative stuff-up – dating to a 1995 amendment – and police and prosecutors have been taking advantage of it ever since. This strikes me as a potential case for application of the interpretation mandate, applying both the right to freedom of expression (see here for a nuanced discussion from the Canadian Supreme Court) and the right of children to protection to read s70(20(d) as applying to all the child pornography offences. A bold reading, to be sure, but also one that overcomes a patent – and dangerous – absurdity. Now, equally, you could also argue that, as the Werribee DVD case shows, the defences may be too wide as well (although perhaps other crimes could have covered hat case.) So, perhaps a declaration of inconsistent interpretation would be a better remedy, hopefully prompting the government to take a fresh look at these bizarre provisions.

Over to you, nameless teen. Time to cause another riot.

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