DTL’s client was charged with intentionally recording an intimate act and distributing intimate images without consent. He entered a not guilty plea to recording an intimate act without consent, and pleaded guilty to distributing an intimate image without consent (our client uploaded the video the subject of the first charge, to Squirt.com, a subscriber website).
The issue in the case was whether our client knew or was reckless as to knowing that the complainant was not consenting to the recording of the intimate act.
Pursuant to s 91O of the Crimes Act 1900 (NSW), consent – means that the person “freely and voluntarily agrees to the recording…[and] it can be express or implied”.
The offence is two-limbed, meaning that the following elements must be successfully made out, beyond a reasonable doubt, for the defendant to be convicted:
- the recording and distribution of intimate images must be done “without the consent” of the complainant; and
- the defendant must have “known that the [complainant] did not consent to the recording / distribution or was reckless as to whether the person consented to the recording / distribution”.
The offence was introduced to the Crimes Act 1900 (NSW) in 2017 to recognise the “serious invasion and violation of a person’s privacy” that comes with non-consensual sharing of intimate images and image-based abuse”.
But our client’s circumstances were distinct from those in R v Damaso , in which a photograph of the complainant performing an intimate act was done secretly, or in R v Henry , where the defendant had sexually assaulted the complaint whilst intoxicated and had thereafter photographed her lying on a bed.
Instead, our client was operating under a reasonable assumption that the complainant was eager to film an intimate act between them and had, in fact, agreed to film the complainant following a request from the complainant. But the complainant said that the request was figurative and not an intention to be filmed.
While the Court determined that the first limb of the offence was made out, that is, the complainant was not, in fact consenting to being filmed, the Court found that because the complainant had, in fact, sent a message to the defendant saying “can you get a pic or vid of that” during a heated sexual exchange on WhatsApp, and in the lead up to a physical hookup that day.
Our client was operating on the basis that the complainant wanted to be filmed. He set up a camera accordingly and was in a rush to get to work when the complainant arrived late for the hookup. DTL’s criminal lawyers, led by Joanne Gallagher of Samuel Griffith Chambers, persuaded the Court to find that our client held an honest belief that the complainant was consenting.
Following this fantastic verdict, our client was sentenced for distributing an intimate image without consent. Our crime team led character evidence and a psychologist’s report that mitigated the offending. Our client had entered a guilty plea at the earliest opportunity, showed contrition and remorse, and gave honest evidence during the proceedings.
The charge of distributing the video was dismissed and the charge was dismissed without conviction.
DTL’s criminal lawyers have a reputation as not only winning lawyers in complex and indictable crime, but empathetic and supportive to clients experiencing the brutal effects of being accused of a criminal offence. We hold clients’ hands throughout the process and are on hand to answer questions, problem-solve and work on intelligence and evidence gathering, in collaboration. We love what we do and do not stop fighting.