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Offences – Observe or Record Private Act or Part

s227A Criminal Code 1899 makes it an offence to observe or record a private act or part.

What the prosecution must prove.

The prosecution must prove beyond reasonable doubt that:

1. The defendant observed or visually recorded another person in circumstances where a reasonable adult would expect to be afforded privacy.

2. The observation or visual recording was done without the other person’s consent;

3. The other person was in a private place or engaging in a private act or the recording was of the genital region whether bare or covered by underwear, and.

4. The observation or visual recording was made for the purpose of observing or visually recording a private act.

What it means.

The offence extends to observing or recording by any means and includes watching, taking photographs or filming.

There is no offence if the complainant consents to the observation or visual record.

There is no offence unless it was reasonable to expect privacy irrespective of consent. A nudist in a public place must reasonably expect to be observed. They may not consent to being filmed but doing so is not an offence.

A private act is defined to include:

• showering or bathing;

• using a toilet;

• another activity when the person is in a state of undress (naked, genitals, anus or female breasts exposed, only in underwear);

• intimate sexual activity that is not ordinarily done in public.

The available defences.

Consent

The usual penalties.

The maximum penalty for the criminal offence of Observe or Record Private Act or Private Parts is 2 years imprisonment.

The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a role in defining the seriousness of an offence. The maximum penalty is hardly ever imposed.

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