Not prohibited material - baby swinging video
Sylvia Else
prosecution.
http://www.youtube.com/watch?v=4vgzBe5b-dI
I am advised by the ACMA that this content has been classified MA15+
This means, inter-alia, that according to the classification board the
content does not
"(b) describe or depict in a way that is likely to
cause offence to a reasonable adult, a person
who is, or appears to be , a child under 18
(whether the person is engaged in sexual
activity or not);"
Now, the Commonwealth Criminal Code relevantly describes child abuse
material as being
"(a) material that depicts a person, or a representation of a
person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or
physical abuse;
and does this in a way that reasonable persons would regard as
being, in all the circumstances, offensive;"
The wording is different, buf if it's not likely to cause offence to a
reasonable person, it's difficult to see how it could be regarded as
offensive by a reasonable person.
This doesn't prevent the QLD police continuing, because there is no
provision in the Commonwealth legislation for such a classification
being a defence (as there is in QLD state law).
But it does make a mockery of it. Not that that changes much.
Sylvia.
Epsilon
No. The Qld police and the Qld DPP are still as thick as bricks. It also
doesn't say much for the Commonwealth DPP, who has some responsibility in
matters of Commonwealth criminal law.
Sylvia Else
I've forward the ACMA's reply to me to the Commonwealth DPP, with
reference to the Illingworth case.
Sylvia.
Sylvia Else
Interestingly, for a couple of my more recent submissions, the ACMA
appears not to have asked the Classification Board for a classification,
and has simply made its own assessment.
Perhaps they've got wise to my real motivation for making the
'complaints', or have simply realised which way the Board is going on
these. Having got a classification for the baby swinging video, I had in
any case stopped making submissions, given that I've achieved my purpose.
In particular, there was no classification obtained for the Indian
Infant Throwing Ritual:
http://www.youtube.com/watch?v=ZqwV8o5j2Kg
which I thought had a clearer element of abuse (though still not within
the meaning of "Child Abuse Material" in the Criminal Code, IMHO). At
least in this clip the children were evidently unhappy with the
proceedings, which was not the case with the baby-swinging clip.
Sylvia.
Epsilon
You do realise that certain people might take the view that you have
committed a serious criminal offence by posting that URL. The fact that
such people are a thick as bricks is neither here nor there, of course.
Sylvia Else
I'm have some confidence that the NSW DPP has more sense than those in
another state whose intellectual traits you correctly describe, and no
element of the alleged offence would have been committed in that other
state.
Apart from that, I don't see what offence is committed by posting a URL
to material, even if that material is child abuse material.
Sylvia.
Noodle
> http://www.youtube.com/watch?v=ZqwV8o5j2Kg
And everyone went on and on and on about Michael Jackson, and his
"baby out the window" incident!
I don't know which one is worse - having a baby bouncing off a sheet,
or having Fans catch the baby out of MJ's hands?!?!
:-)
Noodle
Sylvia Else
> Hello.
>
>> http://www.youtube.com/watch?v=ZqwV8o5j2Kg
>
> And everyone went on and on and on about Michael Jackson, and his
> "baby out the window" incident!
I always thought that was an overreaction anyway. He had a good grip on
the child. Compare with those who push children in strollers down
escalators - it only takes one slip....
Sylvia.
Sylvia Else
The CDPP has responded to me:
"I refer to your email in relation to the prosecution of Mr Illingworth
for offences against the Criminal Code. Mr Illingworth has been
committed by the Magistrates Court of Queensland to stand trial in the
District Court. The CDPP has conduct of this prosecution.
Following committal proceedings, the CDPP reviews all matters to
determine whether they should proceed to trial. That process will be
followed in this matter. The CDPP makes decisions in relation to
prosecutions in accordance with the Prosecution Policy of the Commonwealth."
It's not clear when the CDPP acquired conduct of the prosecution, but if
it proceeds to trial, it's because the CDPP hasn't a clue.
Sylvia.
Epsilon
It's always an interesting situation where the CDPP takes charge of a case
started by someone other than the CDPP or the AFP. Typically, non-federal
cops or a third party busy-body.
The likelihood is, as you say, that the CDPP hasn't a clue, until the case
actually gets to court in Queensland.
Now that the situation of federal involvement is clearer, there is some
potential for political pressure. The federal pollies and the A-G will say
that the CDPP is independent etc, etc, but the CDPP is still a Commonwealth
agency, and not bound in any way by the odd views of the Queensland
child-protection cops..
Sylvia Else
I've made some further representations to the CDPP in the light of the
fact that it has conduct of the case. I can imagine that in cases that
are not in the public eye, the CDPP may in practice not be aware of the
relevant facts until the matter gets to court. However, even CDPP
delegates must have some awareness of the facts of this case just from
the media, and would, if they'd had any sense, already have been
wondering whether this case should even have been started.
> Now that the situation of federal involvement is clearer, there is some
> potential for political pressure. The federal pollies and the A-G will
> say that the CDPP is independent etc, etc, but the CDPP is still a
> Commonwealth agency, and not bound in any way by the odd views of the
> Queensland child-protection cops..
As you say, the pollies will say it's out of their hands.
I've tried to interest the media, but I suspect they're too concerned
about contempt of court sub-judice considerations to print anything.
I wonder it Illingworth's brief is aware of the MA15+ classification.
Sylvia.
Epsilon
Only in Queensland.
> I wonder it Illingworth's brief is aware of the MA15+ classification.
Who knows?
Sylvia Else
Well, I've managed to let Illingworth know.
Sylvia
Sylvia Else
This has finally hit the media
Sylvia.
Marts
> This has finally hit the media
>
> <http://www.smh.com.au/technology/technology-news/over-the-top-childabuse-video-rated-ma15-20090903-f95t.html>
Not that it'll make any difference. Police are known to be stubborn to the point
where it costs people dearly and the taxpayers, likewise.
All we can hope for is that the doctor who made the silly claim is ostracised by
her peers and that natural justice will prevail - she ends up treating druggies
at some halfway house.
And that the guy in question is awarded costs or that he has the option to sue
the arse off whoever instigated this bullshit.
Epsilon
What's this "we" stuff?
The reality is that the police can and do charge all sorts of people for all
sorts of offences. The person charged simply has to wear it.
Sylvia Else
> Sylvia Else wrote...
>
>> This has finally hit the media
>>
>> <http://www.smh.com.au/technology/technology-news/over-the-top-childabuse-video-rated-ma15-20090903-f95t.html>
>
> Not that it'll make any difference. Police are known to be stubborn to the point
> where it costs people dearly and the taxpayers, likewise.
Though in this case the decision is not in the hands of the QLD police,
but the Commonwealth DPP, who are now, finally, apparently reviewing the
case.
The QLD police elected not to prosecute under state law, perhaps because
they knew that under that law the Classification Board could kill the
case stone dead by doing what it has done, which is to classify the
material as other than RC. This suggests a rather cynical forum shopping
exercise.
>
> All we can hope for is that the doctor who made the silly claim is ostracised by
> her peers and that natural justice will prevail - she ends up treating druggies
> at some halfway house.
>
> And that the guy in question is awarded costs
That would be very unusual.
or that he has the option to sue
> the arse off whoever instigated this bullshit.
>
Sueing is problematic as well. The best that can really be hoped for is
an independent judicial inquiry into how a law abiding citizen got
dragged through the courts when even a modicum of commonsense indicated
that he'd done nothing wrong.
Sylvia.
Epsilon
> Marts wrote:
>> Sylvia Else wrote...
>>
>>> This has finally hit the media
>>>
>>> <http://www.smh.com.au/technology/technology-news/over-the-top-childabuse-video-rated-ma15-20090903-f95t.html>
>>
>> Not that it'll make any difference. Police are known to be stubborn
>> to the point where it costs people dearly and the taxpayers,
>> likewise.
>
> Though in this case the decision is not in the hands of the QLD
> police, but the Commonwealth DPP, who are now, finally, apparently
> reviewing the case.
>
> The QLD police elected not to prosecute under state law, perhaps
> because they knew that under that law the Classification Board could
> kill the case stone dead by doing what it has done, which is to
> classify the material as other than RC. This suggests a rather
> cynical forum shopping exercise.
More a case of cynically selecting the offence to be charged rather than
forum shopping.
>> All we can hope for is that the doctor who made the silly claim is
>> ostracised by her peers and that natural justice will prevail - she
>> ends up treating druggies at some halfway house.
>>
>> And that the guy in question is awarded costs
>
> That would be very unusual.
>
> or that he has the option to sue
>> the arse off whoever instigated this bullshit.
>>
>
> Sueing is problematic as well. The best that can really be hoped for
> is an independent judicial inquiry into how a law abiding citizen got
> dragged through the courts when even a modicum of commonsense
> indicated that he'd done nothing wrong.
That situation can happen when police initiate the prosecution, and the
accused has to wait until the DPP considers the case. In this instance,
it's the Queensland police using a federal offence, which means that the
Commonwealth DPP in Brisbane has to stir itself. Pigs might fly.