What is filming a Person’s Private Parts?
It is where a person films another person’s private parts without consent. Some examples may include:
- installing hidden cameras in places such as bedrooms/ public toilets/ change rooms etc; and
- film a woman up their skirt, ‘up skirting’.
The Law
Definitions provided by Crimes Act 1900 (NSW),
- section 91I(1) — “private parts” means a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
- section 91I(3) –”filming” means the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later).
The law in relation to filming a person’s private parts is found in section 91L(1) of the Crimes Act 1900(NSW), which states:
A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person‘s private parts, in circumstances in which a reasonable person would reasonably expect the person‘s private parts could not be filmed–
- without the consentof the person being filmed to being filmed for that purpose, and
- knowing that the personbeing filmed does not consent to being filmed for that purpose,
is guilty of an offence, and carries a maximum penalty of 100 penalty units or imprisonment for 2 years, or both.
The aforementioned offence under section 91L(1) is a summary offence. Section 91L(2) is the aggravated offence which carries a maximum penalty of imprisonment for 5 years.
What is the “circumstances of aggravation”?
- the person whom the offender filmed was a child under the age of 16 years, or
- the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.
What must the prosecution prove?
Since filming a person’s private parts is a criminal offence, the burden of proof lies on the prosecution.
The prosecution must prove the accused’s guilt beyond reasonable doubt.
To establish filming a person’s private parts, the prosecution must prove each of the following matters beyond reasonable doubt:
- the filming is for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification;
- filmed private parts of another person;
- it was filmed in circumstances in which a reasonable person would reasonably expect the person‘s private parts could not be filmed; and
- without the consent of the person, or knowing that the person being filmed does not consent to being filmed for the purpose of sexual arousal or sexual gratification.
If you are charged with the offence of filming a person’s private parts what are your options?
National Criminal Lawyers have been successful in defending a number of filming a person’s private parts charges where the prosecution could not establish each of the element’s offence. We have also achieved a number of non-convictions for this offence.
NCL offer the following options for those who have been charged with filming a person’s private parts under section 91L Crimes Act 1900 (NSW):
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
- NCL will plead not guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.
Fequently Asked Questions
If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.
Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.
Our lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.
Filming a person’s private parts can be punished with a prison sentence of up to 100 penalty units or imprisonment for 2 years, or both. (If the victim is over the age of 16) and/or up to a prison sentence of 5 years (If the victim is under or equal to the age of 16).
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.
A Defended Hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.
Some of the possible defences available for those charged with filming can include:
- you did not commit the act;
- the act was not done towards another person;
- the act was done with the consent of the person filmed;
- If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
- If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green v The Queen [2011] HCA 49, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:
“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law. (click here to read full article)
Judicial Information Research System provided that 58% of offenders received a Community Correctional Order, and 8.3% received a penalty of prison time.
In NSW, a court can impose any of the following penalties for the offence of filming another person’s private parts:
- Full time Imprisonment;
- ICO with a home detention condition available;
Community Correction Order (CCO);
- Fine;
- Conditional release Order (CRO);
- Section 10
Our client was an 18-year-old Nepalese student from Campbelltown.
Our client was charged with 36 charges of film person’s private part without consent.
Police alleged that our client was walking around the Campbelltown shopping centre and filming up the skirts of various females. The ages of these females could not be ascertained.
Police were alerted to our client when a school student complained that she thought he was filming up her skirt. Our client was ultimately arrested, and charged with the offences. His mobile telephone was examined, and a number of videos were located; the subject of the charges.
Our client sought expert legal advice from our lawyers. Given the nature of the proceedings, we advised our client to enter a plea of not guilty. Our client received the brief of evidence containing all the materials police will rely upon to try to establish the charges against our client.
After an extensive and thorough review of the evidence police had served, we wrote to the police seeking the withdrawal of all charges on the basis that police could not prove either that our client had an intent for sexual gratification, nor could they prove who the victims’ were. We wrote an extensive submission to police urging that if the charges were not withdrawn, we would be seeking our client’s legal costs to be paid if the matter was to proceed further.
Police rejected our proposal.
Accordingly, the matter is proceeded to a defended hearing in the Local Court. At the Local Court hearing, police witnesses were cross-examined, and ultimately no evidence was given by any alleged victim in respect of the filming. The schoolgirl who initially alerted police to our clients alleged criminal conduct was cross-examined in respect of her observations. Ultimately, it was established, through an analysis of our client’s mobile phone, that he did not film the school girl who made the complaint to police.
Police were unable to establish the key elements of the remaining charges, and accordingly all charges were dismissed by the Court.
On the basis of our previous proposal to police to withdraw the charges prior to the hearing, we made an application for costs in respect of proceedings for police to pay our clients legal fees. After lengthy submissions, the Court granted our clients legal fees and noted the prosecutors’ unreasonable conduct in respect of the hearing and failure to consider our prior written submission.
Our client was not convicted of any charges, and his legal fees were paid for by police.
Why National Criminal Lawyers?
There are three reasons to choose National Criminal Lawyers:
1. Your best chance to get the result you’re after
We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.
2. How a Senior Defence Lawyer Can Help You Deal With Criminal Charges
No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.
3. National Criminal Lawyers are the best defenders of your rights
At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.
If you have been charged with any Acts of Indecency offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.
Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.
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