At Chidiac & Associates, we provide experienced criminal defence representation to clients facing child abuse material allegations throughout Sydney and New South Wales. We approach these matters with discretion, thorough preparation and careful analysis of the Prosecution evidence.

What is Child Abuse Material?

The meaning of child abuse material is set out in section 91FB of the Crimes Act 1900 (NSW).

Broadly, it includes material that depicts or describes, in a way reasonable persons would regard as offensive in all the circumstances:

• a person who is, appears to be or is implied to be a child as a victim of torture, cruelty or physical abuse;
• a person who is, appears to be or is implied to be a child engaged in, or apparently engaged in, a sexual pose or sexual activity;
• a person who is, appears to be or is implied to be a child in the presence of another person engaged in, or apparently engaged in, a sexual pose or sexual activity; or
• the private parts of a person who is, appears to be or is implied to be a child.

Whether particular material falls within the statutory definition must be assessed according to the legislation and the circumstances of the individual case.

Production, Dissemination or Possession of Child Abuse Material

The principal NSW offence is contained in section 91H of the Crimes Act 1900 (NSW).

Under section 91H(2), a person who produces, disseminates or possesses child abuse material is guilty of an offence.

The maximum penalty is:

10 years' imprisonment

The legislation defines dissemination broadly and includes sending, supplying, exhibiting, transmitting or communicating child abuse material to another person, as well as making it available for access. It also defines possession of material in the form of data to include possession or control of that data.

What Does “Possession” Mean?

Possession can be a significant issue in cases involving digital material.

The fact that material is found on a device associated with an accused person does not necessarily resolve every issue concerning possession. Depending on the circumstances, relevant questions may include:

• who owned the device;
• who had access to it;
• whether the device was shared;
• where the material was stored;
• whether multiple user accounts existed;
• whether another person had access to relevant passwords or accounts;
• whether the accused knew the material existed; and
• whether the accused had possession or control of the relevant data.

These issues may be particularly important where material is located on a shared computer, cloud account, external storage device or account accessible by more than one person.

Elements of a Child Abuse Material Offence

To establish an offence under section 91H, the Prosecution must prove the relevant elements beyond reasonable doubt.

1. The Material Was Child Abuse Material

The Prosecution must establish that the material falls within the definition of child abuse material under the legislation.

The precise content of the material, and whether reasonable persons would regard it as offensive in all the circumstances, may be relevant to this assessment.

2. The Accused Produced, Disseminated or Possessed the Material

The Prosecution must establish the particular conduct alleged.

Depending on the charge, this may involve proving that the accused:

• produced the material;
• disseminated or made the material available to another person; or
• possessed or controlled the material.

The precise allegation and evidence relied upon will depend on the circumstances of the case.

3. The Prosecution Must Establish the Charge in Accordance With the Law

Child abuse material Prosecutions can raise significant issues concerning knowledge, access, possession and control.

The legislation also provides specific defences in certain circumstances. Whether a defence applies will depend upon the facts and evidence in the particular matter.

What Are the Penalties for Child Abuse Material Offences?

Under section 91H(2) of the Crimes Act 1900 (NSW), the maximum penalty for producing, disseminating or possessing child abuse material is:

10 years' imprisonment

A maximum penalty is the highest penalty available to the court. It does not mean that every person convicted of the offence will receive the maximum sentence.

The sentence imposed will depend upon the particular offence, the objective seriousness of the offending and the individual circumstances of the offender.

Relevant sentencing considerations may include:

• the nature of the material;
• the quantity of material;
• the period over which the offending occurred;
• whether the material was produced, disseminated or possessed;
• the extent of any dissemination;
• the degree of planning involved;
• the nature of the accused person's conduct;
• the person's criminal history;
• whether a guilty plea was entered;
• the person's personal circumstances; and
• prospects of rehabilitation.

Defences to a Child Abuse Material Charge

Being charged with an offence involving child abuse material does not mean that a person is guilty.

The Crimes Act 1900 (NSW) provides a number of specific defences and exceptions that may apply depending on the circumstances.

For example, section 91HA provides a defence where a person did not know, and could not reasonably have been expected to know, that they produced, disseminated or possessed child abuse material.

For possession matters, a defence may also be available where material came into a person's possession unsolicited and, as soon as they became aware of its nature, they took reasonable steps to get rid of it.

The legislation also contains other specific defences, including in certain circumstances involving conduct of public benefit, approved research and material depicting only the accused person. There is also a separate statutory exception relevant to certain possession by persons under the age of 18. The availability of any defence will depend on the precise facts of the case.

Digital Evidence in Child Abuse Material Cases

These matters frequently involve extensive digital and forensic evidence.

Police may seize and examine:

• mobile phones;
• computers and laptops;
• tablets;
• external hard drives;
• USB devices;
• cloud storage accounts; and
• other electronic storage devices.

The Prosecution may rely upon evidence such as:

• forensic examinations of devices;
• file and folder locations;
• metadata;
• download histories;
• internet browsing records;
• messaging applications;
• social media accounts;
• account records;
• communications;
• IP or other connection information; and
• evidence concerning access to particular devices or accounts.

At Chidiac & Associates, we carefully examine the digital evidence relied upon by the Prosecution, including issues concerning who had access to the relevant device or account and whether the evidence establishes the alleged possession, production or dissemination.

Shared Devices and Multiple Users

An important issue may arise where a computer, mobile phone, account or storage location was accessible to more than one person.

Relevant issues may include:

• whether the device was shared;
• whether multiple people had access to the premises;
• whether separate user accounts existed;
• who knew relevant passwords;
• whether another person could access the account or device; and
• whether the available forensic evidence can reliably connect the accused person to the alleged conduct.

Each case must be assessed on its individual facts and the evidence available to the Prosecution.

Defending a Child Abuse Material Charge

Depending upon the circumstances, issues that may arise in defending a charge include:

• the material does not fall within the statutory definition;
• the accused did not produce, disseminate or possess the material as alleged;
• the accused did not know the material existed;
• the accused did not know, and could not reasonably have been expected to know, the nature of the material;
• another person had access to the relevant device or account;
• there is insufficient evidence connecting the accused to the material;
• the material came into the accused's possession unsolicited;
• reasonable steps were taken to dispose of the material after its nature became known;
• the Prosecution's digital evidence is incomplete or unreliable;
• the forensic evidence does not establish possession or control; or
• a statutory defence or exception applies.

The Prosecution bears the burden of proving the offence charged. Each allegation and each element of the Prosecution case should be carefully examined.

Investigations and Electronic Devices

A child abuse material investigation may involve the execution of a search warrant and the seizure of electronic devices.

Police may seek to examine devices, access digital accounts or obtain information concerning communications and stored material. A person may also be asked to participate in an interview.

If you become aware that you are the subject of an investigation, obtaining legal advice before participating in a police interview can be important.

Early legal advice can assist you in understanding the allegations, the investigation and your legal position.

How We Can Help

Child abuse material allegations can involve complex legislation and significant amounts of technical and forensic evidence.

At Chidiac & Associates, we provide:

• confidential advice about the allegations;
• representation during police investigations;
• advice concerning police interviews;
• detailed analysis of Prosecution evidence;
• examination of digital and forensic evidence;
• assessment of issues concerning knowledge, access, possession and control;
• analysis of potential statutory defences and exceptions;
• representation at court appearances;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

Our approach is built on discretion, thorough preparation, careful legal analysis and strong courtroom advocacy.