"This decision by the Classification Board shows either that the criminal definitions [of child abuse material] are too broad, or that the police and the public prosecutors are overly enthusiastic in bringing criminal charges under those provisions"
September 3, 2009 - 11:31AM
Exclusive: Queensland Police want to send a father of four to jail for up to 20 years on child-abuse charges over a video the Federal Government's own censors have classified as MA15+.
Chris Illingworth, 61, from Maroochydore, was charged late last year with accessing and uploading child-abuse material after he published, on a video-sharing site, a video of a man swinging a baby around like a rag doll.
Despite having no involvement in the creation of the three-minute clip, he was committed to a trial by jury in the District Court on July 8. He faces a maximum penalty of 10 years' imprisonment for each of the two charges.
Illingworth's solicitor, Chelsea Emery, of Ryan and Bosccher Lawyers, has said that, if the case goes ahead, every Australian who surfs the net could be vulnerable to police prosecution.
But the Australian Communications and Media Authority, responding to a complaint about the video on July 9, sent the clip to the Classification Board, which classified the content MA15+.
Under the Classification Board's guidelines, the impact of MA15+ material "should be no higher than strong" and violence and strong themes "should be justified by context". MA15+ material is considered unsuitable for persons under 15 years of age.
"As a result of the Classification Board's decision, the content is not prohibited under the Broadcasting Services Act 1992," read a letter from ACMA, seen by this website.
Queensland Police has said any Australians who simply view the clip could face a maximum of 10 years in jail but today it refused to comment on the apparent disparity between its and the Classification Board's definition of child-abuse material.
"As the matter is currently before the courts it would be inappropriate to comment," a Queensland Police spokesman said.
The information on the Classification Board's classification decision has been passed on to the Commonwealth Director of Public Prosecutions. A spokesman said Illingworth's case would be reviewed.
"Following committal proceedings, the CDPP reviews all matters to determine whether they should proceed to trial," a spokeswoman said.
It is not suggested that the Classification Board's decision to give the content a relatively minor MA15+ rating will have any bearing on Illingworth's trial, but the case has caused much controversy because the clip has already been shown on numerous Australian and US TV news shows and can still be found online today.
The video, which cannot be shown for legal reasons, was just one of hundreds that Illingworth has uploaded to the Liveleak video sharing website as an administrator of the site.
"This decision by the Classification Board shows either that the criminal definitions [of child abuse material] are too broad, or that the police and the public prosecutors are overly enthusiastic in bringing criminal charges under those provisions," Nic Suzor, spokesman for the online users' lobby group Electronic Frontiers Australia, said.
The baby is laughing and smiling at the end of the clip, but the video has attracted criticism from child-welfare advocates because of how vigorously the man swings the baby by its arms.
In the Queensland Police brief of evidence, Susan Cadzow, specialist pediatrician at Royal Brisbane Children's Hospital, said she thought the clip represented child abuse.
"The child's demeanour at the end of the video would seemingly suggest that no significant injury has occurred. However, it does not exclude the presence of a [hidden] injury," Cadzow said in her statement.
Illingworth has described the clip as a "common interest story" and rejected any suggestions he was a child abuser or interested in such material.
He says he has been admitted to hospital several times since being charged and claims the stress of the case has exacerbated his health problems.
His lawyer, Michael Byrne, QC, has said he will argue that the video is not child-abuse material but "a training film for a Russian circus family".
"Our argument is that this is certainly not what the legislation was aimed at. It was aimed at the sexual abuse of children," he said in June.
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