A Wollongong man, previously convicted of possession of child abuse material, has been acquitted of a fresh charge, after the photo he took of a young girl in her swimmers at Wombarra was deemed to not fall under the definition of child abuse material.
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Glenn Butler walked free from Wollongong Local Court yesterday after he was found not guilty of producing and possessing child abuse material.
He spent nine months behind bars without bail waiting to defend the allegations.
The court heard Butler was placed on the Child Protection Register after he was sentenced to 12 months in custody for possessing child abuse material in 2020.
He was released and on parole at the time he took the photo at Wombarra on February 7 this year.
Butler was at the beach and was walking his bike when he "surreptitiously" took a photo of three girls who were sitting on a picnic blanket in their swimmers with his mobile phone, police alleged.
One of the girls had her legs open.
The parents and family members of the children, who were sitting behind them, confronted Butler and made a citizen's arrest before police were called.
Butler volunteered to go back to the police station where he admitted to officers that he probably took the photo to use for "sexual gratification".
The court case centered around whether or not the photo fell within the definition of child abuse material, which under the Crimes Act states the material depicts the private parts of a person, either bare or covered by underwear.
The prosecution also had to prove beyond reasonable doubt that the material was depicted in a way that a reasonable person would regard as being offensive when assessing the standards of morality, decency and propriety generally accepted by reasonable adults.
In court, police prosecutor Sergeant David Weaver said Butler was aware of the restrictions placed on him under the register.
Sgt Weaver said Butler admitted in the police interview that he should not have taken the picture but he took the "opportunity", and recognised he needed "help".
Sgt Weaver submitted a swimsuit covered the child's private area and that was "no different to being covered by underwear", adding that a reasonable person would find such an image "offensive".
Defence lawyer Paul Paine said the definition in the Crimes Act was "clear" and "inclusive" and only referred to underwear not swimwear.
"The sergeant says there is very little difference between underwear and swimwear but that is a matter for Parliament to debate," he said.
Mr Paine also raised the point that they officers at the time of Butler's arrest were not confident the photo constituted child abuse material.
He also cited previous case law that said the motivation, in this case sexual gratification, behind producing child abuse material was not "relevant".
Magistrate Susan McGowan said the community, and "understandably" the families of the girls, were concerned about people who took photos of children.
She said the photo would be considered offensive by a reasonable person because it was not taken by the girls' mother or father but by a random person who had gotten off his bike.
Magistrate McGowan noted the girls were not posed in a sexually explicit way by Butler when he took the photo, and that whatever he was going to do with the photo was not relevant in her determination.
She could not find the photo fell within the definition of the legislation as the girl was wearing swimmers not underwear before both charges were dismissed.
Butler had previously pleaded guilty to loitering in a public place when he took the photo and Magistrate McGowan sentenced him to a 12-months community corrections order, noting his limited record, he was on parole and had already served nine months in jail.
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