Proctor : June 2019
24 PROCTOR | June 2019 View course dates qls.com.au/pmc “The QLS PMC makes you consider what you need to implement in your practice to navigate the transition from employed solicitor to owner.” SAMANTHA MYEE STICKLAN Senior Associate, Macrossan & Amiet INVEST IN YOUR FUTURE Notes 1 For example, Crimes Act 1900 (ACT), s72C; Crimes Act 1900 (NSW), ss91P and 91Q; Summary Offences Act 1953 (SA), s26B/C; Summary Offences Act 1966 (Vic.), s41DA/ DB; Summary Offences Act 1923 (NT), s47(e-f); Criminal Code (NT), s208AB. Tasmania and WA have no statutory equivalents. See also Criminal Code Act 1995 (Cth), s474.17. 2 Turner v R  NSWCCA 304 at  and . John-Paul Mould is a Queensland barrister and Shane Ulyatt is an Associate Director at Greenhalgh Pickard Solicitors. CONSENT Consent is defined under s227A as meaning consent freely and voluntarily given by a person with cognitive capacity to give the consent. A person under 16 years of age is taken not to have consented. The Act is silent about whether consent of the victim must be expressed or can be implied, for example, by conduct. Is the consent of porn stars impliedly given for the distribution of images contained in their films, or for those images not contained in their films? It is also silent about whether consent once given can later be revoked, expressly or impliedly. DISTRESS The Act is silent about what is relevant in determining whether someone would be ‘distressed’. The South Australian legislation helpfully lists relevant factors such as the age and characteristics of the victim, whether the communication was anonymous or repeated, how widely it was circulated and the context in which it appeared. Could a person be held to be distressed if the image distributed was already published worldwide or to persons who had already seen it? Could a person be held to be distressed if the image was commercially available, but if a defendant distributed it to the person’s family knowing they had not seen it? When should the distress test be applied – at the date of distribution, upon revocation of consent or at the date of hearing? Interestingly, s223 (3) states that it is immaterial whether the person who distributes the image intends to cause, or actually causes, the other person distress. KNOWLEDGE The combination of the Queensland Act’s definition of consent and the absence of a person’s actual distress raises a very important question: Does the person depicted in the image actually need to know of the distribution of the image at all? Arguably, the use of the second limb imputes knowledge as a requirement – that is, how would a person be distressed in circumstances in which they did not even know about the image being distributed? On the other hand, actual distress is immaterial. If actual knowledge by the person whose intimate image is distributed is not a requirement, this potentially proscribes any intimate image, for instance, if someone receives and redistributes on Facebook an image involving someone they have never known, a practice extremely common in this day and age. It exponentially broadens the scope of potential offenders and takes the issues well beyond the mischief of punishing jilted lovers. The ACT and NSW equivalents are much clearer on how far their provisions extend. Sections 72C and 91P/Q respectively require that the alleged offender knows the other person does not consent to the distribution, or is reckless about whether the other person consents to the distribution. The SA version, however, is more constrictive and realistic, requiring knowledge or constructive knowledge on the part of the defendant that the victim does not consent to the distribution of the image. The situation is certainly not clear and requires urgent amendment. DEFENCES The new s223(4) of the Act provides that it is a defence to a charge of an offence if the defendant’s conduct constituted the offence for a genuine artistic, educational, legal, medical, scientific or public benefit purpose, and the person’s conduct was, in the circumstances, reasonable for that purpose. This raises some interesting queries as well: 1. If the images were distributed by a lawyer relying on the ‘legal’ defence to distribution in a trial in an attempt to discredit a witness during cross- examination, which attempt was later held to be unreasonable, could the lawyer then be charged with the offence? 2. What is ‘public’: the public at large, the Australian public, or the audience to whom the images are distributed? There is no definition provided in the Act. If ‘public’ was limited to the audience of the image, is the test to be applied objective, subjective, or both? If the latter, could the ‘public benefit’ defence be raised by merely giving evidence from the audience that they indeed benefited from the distribution of the image? 3. Why is no defence specifically available to intermediaries who host and make available content, such as internet service providers or social media platform providers? Certainly they could rely on s23 of the Code if they were unaware of the content. But what would be their culpability if it was brought to their attention and they still did not remove it? SUMMARY This new legislation needs a lot of work to avoid potential injustices and consequences it was clearly not enacted to address. If the questions raised in this article are not addressed by further amendment, then lawyers, prosecutors and magistrates will be left trying to interpret this law in the courtroom and that situation is definitely not of public benefit!