Well, it seems that the first thing anyone should do if charged with uploading or downloading child abuse material, or indeed child pornography, is apply to the Australian Classification Board for a classification of the content.

Chris Illingworth, who was targeted by QLD's Task Force Argos, could have been spared a lot of discomfort if someone had done so as soon as he was charged, rather than waiting until the classification was made as a result of, ahem, someone submitting the URL of the footage to the ACMA to see what they would make of it.

The fact that the Classification Board gave the footage a classification if MA15+ means that in the board's view, the footage would not cause offence to a reasonable person. This didn’t strictly speaking mean that Chris’s charges had to be dropped, but had the CDPP continued, it would have been asking a jury to make a finding, beyond reasonable doubt, that contradicted that of the government appointed film censor.

The footage, which the Commonwealth Director of Public Prosecutions, has effectively said can be lawfully downloaded and watched, can be found here: http://www.youtube.com/watch?v=4vgzBe5b-dI

One has to wonder what could make members of a police force so hypersensitive that they regard as offensive, material that teenagers are allowed to watch.

Also somewhat puzzling is why the police thought that “physical abuse” (a term from the Commonwealth Criminal Code) includes something that might cause harm, even where no harm is demonstrated. This would even apply to footage of a child riding in a car without a seat belt on. I understand that they had to ask around before they even found an ‘expert’ who would say that it was child abuse.

It rather seems as if the police wanted a particular outcome, and were not overly concerned about what the law was actually there for.

Task Force Argos needs to get a grip, before they persecute another poor innocent.

The Police aren't Botanists. If they find pot they need to call a Botanist to confirm that the substance found is actually pot in order to charge with possession and/or supply, otherwise the case will be tossed...unless of course a Police officer is a qualified Botanist, as well.

Seems to me this case sounds a similar sort of thing. In order to figure out if something is offensive they need to know the classification of the content. How many cops do you think work for the classification board?.

How would you like your charges laid agianst you, by that method, or by guess work?.

Whether something is offensive or not for the purpose of the Criminal Code is not determined by the Classification Board. They're only making a determination under their own legislation. But in both cases (despite minor differences in wording), the issue is whether it would be offensive to a reasonable person.

That is something that the police should be able to judge, unless they are not themselves reasonable people. They certainly don't have to approach the Classification Board.

The underlying problem is that the word "offensive" is an absurdly vague term to be used in the definition of an offence carrying a ten year prison sentence, and case law isn't particularly helpful. The best I can divine is that to be offensive, something has to be more than something that people don't like, but be inclined to cause a significant emotional reaction. A significant emotional reaction will not be fleeting.

I think this is not understood (perhaps wilfully) by police generally, because using a lesser definition gives them more scope for charging people, not just on matters of child abuse material and pornography, but in relation to their everyday public conduct. Witness the police charge against Chas Licciardello.

http://en.wikipedia.org/wiki/Chas_Licciardello#Offensive_conduct_charges

Sylvia,

Thanks for posting this. I have been waiting to see for the outcome of the case.

The major disappointment for me in all this was the DPP displaying any interest in the case at all. They are lawyers. Surely they could figure out for themselves a jury is unlikely to think the video would cause "offence to a reasonable person". The MA15+ rating means it was a long, long way from meeting that standard, so I'd say the DPP's not being able to see it for themselves is borderline incompetence. Incompetence that put Chris through a lot of personal hardship. Lets hope there are no repeats.

Do you know who sent the URL to the ACMA?

Rstuart,

Yes, the fact that the Commonwealth DPP pursued the case for as long as it did is worrying. A degree of incompetence seems to be indicated. However, like any part of our bureaucracy, the CDPP presumably has senior officials and junior officials. Maybe this case was in the hands of a junior official who was unwilling to make the call to drop the case. Only when Fairfax (SMH and The Age) started asking questions about the MA15+ rating did anything happen, even though I'd already informed the CDPP a couple of weeks earlier.

You ask whether I know who submitted the URL. Well, yes, I do. It was me. But I can't claim any foresight as the outcome. After the case survived the committal hearing, I was quite incensed, and I starting sending URLs of various videos, including of the baby swinging video, that might be construed as child abuse material, to see whether I could cause the ACMA to start designating them as being prohibited material. My purpose was to demonstrate the kind of material that the proposed internet filter would ban. Amongst others, I sent stuff involving fights between teenage girls, and the Indian baby-dropping ritual that had been reported on the news. Both fit the definition of child abuse material at least as well as the baby swinging video does.

In fact, the ACMA took no exception to any of the URLs I sent, so in that sense I didn't achieve much, but when the MA15+ classification came back for the baby swinging video, I blinked, and thought "what does that do to the case - how can it continue?"

When I informed the CDPP, I just got a stock response along the lines of "We review all cases before trial." So even then, it seems the message hadn't got to a level where someone would act on it. The CDPP probably wish not that it had, because they could have avoided the appearance (and indeed actuality) of only acting when pushed by the media.

Sylvia Else: "You ask whether I know who submitted the URL. Well, yes, I do. It was me."

Awesome Sylvia, just awesome. Well done.