McEWEN v SIMMONS & ANOR [2008] NSWSC 1292

McEWEN v SIMMONS & ANOR [2008] NSWSC 1292

The court held that the word 'person' as used in the relevant statutory definitions included fictional or imaginary characters, such as those depicted in cartoons, and the fact that the figures departed from realistic representation did not preclude them being persons within the statutory meaning. The Magistrate did not err in finding the depictions were of persons for the purposes of the offences. Accordingly, the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
08 December 2008
Procedural Posture
Appeal / Final Judgment on Appeal From Conviction in Local Court
Outcome
Appeal dismissed
Legal Topics
['child Pornography' "interpretation of 'person' in Statutory Offences" 'application of Legislation to Fictional Characters' 'pictorial Versus Literary Representation']
['criminal Law'] ['child Pornography' "interpretation of 'person' in Statutory Offences" 'application of Legislation to Fictional Characters' 'pictorial Versus Literary Representation']

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Procedural Posture

Appeal / Final Judgment on Appeal From Conviction in Local Court

Legal Issues

  1. 1 ["Whether cartoon depictions of fictional characters (modelled on 'The Simpsons') constitute depictions of a 'person' within s 474.19(1)(a)(i) Criminal Code Act 1995 (Cth) and s 91H(3) Crimes Act 1900 (NSW)" 'Whether the statutory offences apply to imaginary or fictional representations and not just real persons']

Ratio Decidendi

The court held that the word 'person' as used in the relevant statutory definitions included fictional or imaginary characters, such as those depicted in cartoons, and the fact that the figures departed from realistic representation did not preclude them being persons within the statutory meaning. The Magistrate did not err in finding the depictions were of persons for the purposes of the offences. Accordingly, the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['Each party to pay its own costs.']