Sections 91H and 91HA Crimes Act 1900 | Produce, Disseminate, Possess Child Abuse Material


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Being accused of producing, disseminating or possessing child abuse material is a serious allegation that can have serious implications for your reputation and future life.

However, a good first step to take is to understand the charges against you.

By doing so, you can put yourself in the best possible position when it comes to fighting the charges and protecting your innocence.

Section 91H of the Crimes Act 1900 deals with the offence of “production, dissemination or possession of child abuse material.”

It contains definitions for each of these actions, as well as a list of possible defences that you may raise to explain your actions and secure a verdict of “not guilty.”

Under section 91H:

  • “Production” refers to the creation of child abuse material; for example, filming, photographing or drawing a child who is engaged in a sexual pose or activity, or a child who is portrayed to be a victim of torture, cruelty or physical abuse. It can also refer to agreements that you have entered into to produce child abuse material.
  • “Dissemination” refers to the distribution, supply, exhibition or transmission of child abuse material – for example, sending child abuse material to others over the internet, or selling and distributing DVDs which contain child abuse material. It can also refer to agreements to supply, distribute, exhibit or transmit child abuse material.
  • “Possession” refers to cases where you had child abuse material under your custody and control, for example, where child abuse material is found on your computer or in your home.

If you are found guilty of either producing, disseminating or possessing child abuse material, you could face a maximum penalty of 10 years’ imprisonment.

However, it’s important to remember that this is a maximum penalty – which means that it will only apply in the most serious child abuse material cases.

With the help of our highly experienced specialist lawyers, you can fight the charges to escape a conviction.

We can also advise you of any defences to the charges, which, if accepted, will result in a finding of “not guilty.”

Examples of defences contained under section 91HA include:

  • Where you didn’t know, and could not reasonably have been expected to have known that you produced, disseminated or possessed child abuse material (for example, where someone else downloaded child abuse material onto your computer that you were unaware of).
  • Where you took all reasonable steps to get rid of child abuse material as soon as you became aware of it;
  • Where the child abuse material was for the purposes of scientific, medical or educational research that was approved by the Attorney General.

For a full list of defences, see the “What Does the Law Say About Child Abuse Material” section on our child abuse material page here.

You can also find out more about what constitutes “child abuse material” here.

The Legislation

Section 91HA contains defences for the offence of “production, dissemination or possession of child abuse material.”

These sections read as follows:

91H Production, dissemination or possession of child abuse material

(1) In this section:”disseminate” child abuse material, includes:

(a) send, supply, exhibit, transmit or communicate it to another person, or

(b) make it available for access by another person, or

(c) enter into any agreement or arrangement to do so.

“possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).

“produce” child abuse material includes:

(a) film, photograph, print or otherwise make child abuse material, or

(b) alter or manipulate any image for the purpose of making child abuse material, or

(c) enter into any agreement or arrangement to do so.

(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years.

91HA Defences
(1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.

(2) It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.

(3) Public benefit It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant:

(a) was of public benefit, and

(b) did not extend beyond what was of public benefit.

(4) Conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:

(a) enforcing or administering a law of the State, or of another State, a Territory or the Commonwealth, or

(b) monitoring compliance with, or investigating a contravention of, a law of the State, or of another State, a Territory or the Commonwealth, or

(c) the administration of justice.

(5) The question of whether a person’s conduct is of public benefit is a question of fact and the person’s motives for engaging in the conduct are irrelevant.

(6) Law enforcement officers: It is a defence in proceedings for an offence against section 91H that:

(a) the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and

(b) the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty.

(7) Classified material It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC).

(8) Approved research It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant:

(a) was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and

(b) did not contravene any conditions of that approval.

Why Sydney Criminal Lawyers?

At Sydney Criminal Lawyers, we have considerable experience winning serious sexual offence cases, including “child abuse material” cases.

Our expert knowledge of this complex area of the law has earned us the reputation of Sydney’s most experienced sexual offence lawyers.

Our Accredited Criminal Law Specialists can advise you of the steps you can take to fight the charges, as well as the defences that you can raise under the law.

In every case, we seek to have the charges dropped at an early stage by identifying problems with the prosecution case.

This means that our clients are often spared the time and expense involved in going to court.

If the prosecution refuses to drop the charges, we guarantee that you will be represented in court by our senior lawyers, who have extensive experience dealing with these kinds of cases.

Our specialist insight enables us to obtain outstanding results consistently, by presenting all evidence in a compelling manner.

Alternatively, should you wish to plead guilty, we will present your case in the most positive light to maximise your chance of obtaining the best possible outcome.

For a confidential discussion about your case, call us 24/7 on (02) 9261 8881 and book a FREE first conference with our specialist sexual offence lawyers.