R v Thompson [2009] ACTSC 23 (27 February 2009)

Last Updated: 16 March 2009

R v JOHN DESMOND THOMPSON

[2009] ACTSC 23 (27 February 2009)

EX TEMPORE JUDGMENT

No. SCC 175 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 27 February 2009

IN THE SUPREME COURT OF THE )

) No. SCC 175 of 2008

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

JOHN DESMOND THOMPSON

ORDER

Judge: Higgins CJ

Date: 27 February 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The accused be found not guilty.

1. I will simply say this. Mr Thompson is charged pursuant to s 64 of the Crimes Act 1900 (ACT), which refers to using a child for the production of child pornography. There is evidence from which it seems to me, it could be inferred, and indeed if I was required to I would, that the children who are referred to, been referred to in the evidence as G, but also the other young girl, were under 12. I am perfectly satisfied as to that.

2. The allegation is that Mr Thompson has used those children, in the sense of surreptitiously, or without overtly revealing himself, filmed them. That he certainly has done. The question is whether what he has produced is child pornography. That there is defined in subs 5 and has effectively two parts. For relevant purposes, it means anything that represents the sexual parts of a child substantially, and I leave aside the other two alternatives which are not relevant, for the sexual arousal or sexual arousal or sexual gratification of someone other than the child.

3. Whether or not this filming was in Mr Thompson’s mind, at the time when he filmed it, for his sexual gratification or not, I make no express finding about that. Although I would suggest there is evidence from which that inference could be drawn as far as the viewing itself is concerned. Whether the representation in the film could be so-regarded is something else, but I suppose, and I accept for this purpose, that it does not matter whether the purpose fails or not. In other words, if you take a film of a child with a view to later viewing it for sexual arousal then the mere fact that that does not happen or that it is ineffectual for that purpose for whatever reason is not a course to take anybody out of the section.

4. The real point here is whether the film actually represents the sexual parts of a child. In my view, having viewed the video, I cannot see any representation of any sexual part of a child. Certainly there is filming of where the sexual parts of a child might be, but, it is no more or less so than if the child was fully clothed. For that reason I think that the Crown has failed to make out an essential element of this particular charge.

5. I find the accused not guilty of it accordingly.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 13 March 2009

Counsel for the Crown: Ms Baker-Goldsmith

Solicitor for the Crown: Office of the Commonwealth DPP

Counsel for the Defendant: Mr J Sabharwal

Solicitor for the Defendant: Legal Aid Office (ACT)

Date of Hearing: 27 February 2009

Date of Judgment: 27 February 2009