The NSW Offence of Intentionally Recording an Intimate Image Without Consent

A 61-year old teacher at a Christian school in the Sydney suburb of Wahroonga was arrested last week over allegations of filming school students on the grounds of his place of employment, before being charged with five counts of intentionally recording an intimate image without consent.

At around 12 pm on 3 November 2026, New South Wales police officers attended a home on Dharug and Guringai land in Hornsby where the teacher lives, after receiving reports that devices at the property contained child abuse material. A review of one USB stick allegedly identified females being covertly filmed in public, whilst further videos located is said to have contained footage of girls on school property.

A crime scene was then established at the Hornsby home, and a warrant was executed, which turned up more electronic devices that officers seized for forensic examination. Further analysis of these devices located more footage recorded at the school in Wahroonga, where the man was still working as a teacher.

The 61-year-old was initially taken to a hospital for assessment on being confronted by law enforcement. And on being discharged on 5 November, he was hauled into Hornsby police station and charged with the five offences, along with two further counts of producing child abuse material and possessing child abuse material.

The teacher was refused bail at Hornsby Local Court on 6 November, and he is set to appear before the same court on Wednesday, 18 November 2026.

Nonconsensual recording of intimate images

The 61-year-old teacher is facing five counts of intentionally recording an intimate image without consent under section 91P of the Crimes Act 1900 (NSW), which carries a maximum penalty of 3 years prison time and/or a fine of $11,000.

To establish this crime beyond a reasonable doubt, the prosecution must show that the accused was intentionally recording footage, that the images captured were intimate images, that the filming was done in a nonconsensual manner or without the knowledge or permission of the person captured, or the accused was reckless to whether the person captured on video was consenting.

Subsection 91P(2) of the Crimes Act further stipulates that the approval of the NSW Director of Public Prosecutions must be obtained before prosecting a person under the age of 16 years with intentionally recording an image without consent.

Section 91N defines “intimate image material” as images that “a reasonable person would reasonably expect to be afforded privacy”. This includes an image of the individual’s private parts or engaging in a private act, or an altered image appearing to show private parts or engagement in an intimate act or an image simulating the individual’s private parts or being engaged in a private act.

This section of the Crimes Act further defines “private parts” as a person’s genitals or anal area, whether naked or while wearing underwear, as well as “the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed”.

Further, this section defines “engaged in a private act”, as involving an individual in a state of undress, or when using the toilet, showering or bathing, or when engaged in a sexual act of a kind not usually done in public, or engaged in any other like activity.

The meaning of consent in respect of the section 91P offence is set out in section 91O, where it’s confirmed that if a person “freely and voluntarily agrees to the recording, creation or alteration” of such footage, then they consent to it. Consent on one occasion, however, doesn’t automatically lead to consent on another.

People under 16 or individuals without the capacity to consent, can’t consent to recording of an intimate image. If a person is unconscious or asleep, they can’t consent to such a recording. And if a person consents because of threat of force or terrorism, or because they are unlawfully detained, then this does not actually comprise consent.

Statutory exemptions and defences

Section 91T of the Crimes Act contains a number of statutory exemptions, which if involved an act that has triggered a charge under section 91P, results in the person charged not being criminally liable.

Such circumstances include when an act was done for genuine medical or scientific purposes, or the act was done by a law enforcement officer for genuine enforcement purposes, or the conduct was required by a court or otherwise, it was reasonably necessary for the purposes of legal proceedings.

This section then lists the factors that would lead “a reasonable person” to consider the conduct of the accused person is “acceptable”, in terms of the section 91P offence. These include the nature and content of the image, the circumstances in which it was recorded, created, altered or distributed, along with the age, intellectual capability and vulnerability of the person captured.

Further factors that can cause a reasonable person to consider the conduct acceptable are the degree to which the accused person’s actions affected the privacy of the person in the image, and the relationship between the accused and the person captured in the image.

There are also a number of legal defences available to argue against a charge of intentionally recording an intimate image without consent. If such a defence is raised and supported by the evidence at trial, then the prosecution must prove beyond a reasonable doubt that the defence doesn’t hold, in seeking to progress a conviction.

The defence of duress sees an accused arguing that they committed their criminal act in order to avoid a threat made against themselves or a loved one being carried out. In terms of a charge of intentionally recording an intimate image without consent, the argument might be that another individual had threatened to harm the defendant unless they went and captured an intimate image.

Necessity is another defence open to a section 91P charge, which involves an accused putting to the court that they carried out their actions in order to avoid a much greater peril from occurring. So, in the case of intentionally recording an intimate image without consent, the argument might be that an individual threatened to blow up a shopping mall unless the accused provided such an image.

The defence of mental impairment or cognitive impairment is another key defence that can be argued against this offence. This defence provides that a person is not criminally responsible for the conduct that comprised the crime if they were suffering from a mental impairment, a cognitive impairment or both at the time the offending occurred.

Revenge porn and deepfakes

The Crimes Amendment (Intimate Images) Bill 2017 inserted division 15C into part 3 of the Crimes Act. This included the creation of three new offences: the section 91P offence, the offence of distribute intimate image without consent, under section 91Q, along with the section 91R offence of threatening to record or distribute intimate image.

Then NSW attorney general Mark Speakman explained during his 24 May 2017 second reading speech on the bill, that the laws within it addressed the rising issue of “the non-consensual sharing of intimate images”, which is also referred to as “revenge porn”. And these laws were needed to address the rising issue of revenge porn, which was being facilitated by advances in technology.

The Crimes Amendment (Intimate Image and Audio Material) Bill 2025 was passed in September last year, and it specifically altered the laws under division 15C, to address the rising phenomenon of “digitally generated intimate images and sexually explicit audio material”, which are commonly referred to as deepfakes. Such imagery and audio are being facilitated by artificial intelligence.

The most significant amendment was the addition of the section 91PA offence, which involves altering images or audio or using a simulated person to create an intimate image or audio material.

Section 91N of the Act defines a “simulated person”, as a person “depicted in a digitally generated image or in digitally generated audio that either expressly purports to be a genuine depiction of an identifiable real person, or so closely resembles an identifiable real person that a reasonable person who knew the real person would consider the image or audio to be a genuine depiction” of them.

“Deepfake material, in the context of intimate images, commonly refers to realistic sexually explicit material which is wholly created or generated by digital means—including through generative AI technology—without the consent of the person who the image is intended to represent,” NSW attorney general Michael Daley said in his second reading speech on this bill in August 2025.

“Because deepfakes are intended to deceive by design, their distribution and creation can be harmful, in the same way that it is harmful when real intimate images are recorded and shared without consent,” the state’s chief lawmaker added.

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