Criminal Lawyers for Aggravated Filming a Person Engaged in a Private Act | Section 91K(3) Crimes Act 1900

Filming a person engaged in a private act without consent is an offence under section 91K(3) of the Crimes Act 1900 (NSW).

The section states that a person is guilty of the offence if he or she:

• Films another person who is engaged in a private act,
• Does so for sexual arousal or sexual gratification,
• Does so without the other person’s consent to being filmed for that purpose,
• Does so knowing the other person does not consent to being filmed for that purpose, and
• Does so in ‘circumstances of aggravation’.

A person is engaged in a ‘private act’ if:

• He or she is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and
• The circumstances are such that a reasonable person would reasonably expect to be afforded privacy.

‘Circumstances of aggravation’ are where:

• The person observed was under the age of 16 years, or
• The defendant constructed or adapted the fabric of any building for the purpose of facilitating the offence.

A ‘building’ includes a house or apartment, as well as a vehicle such as a car or truck, a vessel such as a ship or boat, a tent and any other such temporary structure.

The maximum penalty for aggravated filming a person engaged in a private act is 5 years in prison.

However, it is important to bear in mind that this is the maximum sentence that can be imposed, and that the court can apply any of the following penalties for the offence:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• A shorter prison term

However, an intensive correction order is not available where the person observed was under the age of 16 years.

For a person to be found guilty of aggravated filming a person engaged in a private act, the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond reasonable doubt:

• The defendant filmed another person while that person was engaged in a private act,
• He or she did so for sexual arousal or sexual gratification,
• He or she did so without the other person’s consent to being filmed for that purpose,
• He or she knew the other person did not consent to being filmed for that purpose, and
• That the conduct occurred in ‘circumstances of aggravation’, which means the person observed was under the age of 16 years and/or the defendant constructed or adapted the fabric of the building – which can include a motor vehicle, vessel, tent or other temporary building – to facilitate the offence.

A private act is state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity where the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.

The prosecution will fail if it cannot prove each of the elements to the required standard.

In addition to the requirement to prove each element of the offence, the prosecution must also disprove any of the following defences if properly raised:

• Duress, which is where you were threatened or coerced,
• Necessity, where the act was necessary to avert danger, and
• Self-defence, where you engaged in the act to defend yourself or another

It must disprove any such defences beyond all reasonable doubt.

Before you can be found guilty of filming a person engaged in a private act, the prosecution must prove beyond reasonable doubt that:

• You filmed another person who was engaged in a private act,
• You did so for your own sexual arousal or sexual gratification,
• You did so without the other person’s consent to being filmed for that purpose,
• You did so knowing the other person did not consent to being filmed for that purpose, and
• You did so in ‘circumstances of aggravation’, which means the person who was observed was under the age of 16 years and/or the defendant constructed or adapted the fabric of the building – which can include a motor vehicle, vessel, tent or other temporary building – to facilitate the offence.

There are a number of ways to defend the charge, including raising the fact that:

• The prosecution cannot prove you filmed the other person,
• The prosecution cannot prove the other person was engaged in a private act,
• The prosecution cannot prove the other person did not consent to the filming,
• The prosecution cannot prove you knew the other person did not consent,
• The prosecution cannot establish at least one ‘circumstance of aggravation’, and
• You have a valid legal defence which the prosecution cannot disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

If all except proof of a circumstance of aggravation exists, you may be found guilty of the lesser offence of ‘filming a person engaged in a private act’, which attracts a maximum penalty of 2 years in prison.

A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.

Your lawyer can also guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing.

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

1. Proven Track Record of Exceptional Results

   Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

   Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

   Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

   We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

   Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

2. Highest Level of Client Satisfaction

   We have the best and most comprehensive client review record of any law firm in Australia.

   Regular communication, accessibility and quality service are our team’s highest priorities.

   We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

   We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

3. Australia’s Most Awarded Criminal Law Firm
   

   We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

   The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

4. Fixed Fees
   

   We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

   We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

   Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

5. Free First Appointment
   

   For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

   We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

6. Specialist Lawyer Guarantee
   

   We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

   This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

7. All NSW Courts
   

   From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

   And we offer fixed fees for most criminal and traffic law cases throughout the state.

8. Accredited Specialists

   Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

   All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

   An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

   Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

   Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

9. Results-Focused Law Firm
   

   Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

   The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

   Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

   No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

   The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

10. Team of Lawyers Behind You
    

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

11. Familiar with Magistrates and Judges
    

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

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12. Convenience
    

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Parramatta, opposite the Justice Precinct carpark,
    • Liverpool, and
    • Sutherland.

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

A private act is state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity where the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.