Production of child pornography

Section 68 of the Crimes Act 1958 (Vic) sets out the statutory offence of possession of child pornography. In Victoria, the maximum penalty is 10 years imprisonment. A finding of guilt may result in registration of the Sex Offenders Register.

Anything that you say in a police interview or to anyone else can potentially have consequences for the further conduct of your case. Seeking legal advice at the earliest opportunity is of vital importance in order to enable us to properly and expertly prepare a strategy to manage your matter.

To prove this offence, the prosecution must establish the following beyond reasonable doubt:

  1. The existence of a film, photograph, publication or computer game that is classified RC or X or X 18+ or would, if classified, be classified RC or X or X 18+;
  2. That film, photograph, publication or computer game 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;
  3. That the accused printed, or otherwise made or produced the film, photograph, publication or computer game; and
  4. That the action of the accused in so printing, making or producing the film, photograph, publication or computer game was intentional.

There are three essential points to note in relation to this offence.  The first is that it is not necessary for the prosecution to establish that the person portrayed in the film, photograph, publication or computer game was actually a minor.  The offence also covers a person who appears to be a minor, therefore the issue of whether a person is a minor or appears to be a minor is a question of fact for the jury to determine.

The second is that the offence is also capable of applying to fictional minors.  That is to say, characters in novels or dramatic works that are described as minors.

The third is that downloading child pornography from the internet onto a computer or other device may constitute the ‘making’ of a photograph or film and therefore the production of child pornography.