Possession of Child Abuse Material in NSW: What the Law Says and How to Respond to a Charge

If you are being investigated for possessing child abuse material, you need urgent legal advice. Police may seize your devices, examine digital data and ask you to participate in an interview. What you say and what happens to the evidence can significantly affect your case.

This article explains the general law in NSW. It is not case-specific legal advice. You should speak with an experienced criminal defence lawyer before answering questions or making decisions about your matter.

1. What is child abuse material in NSW?

Child abuse material is defined in section 91FB of the Crimes Act 1900 (NSW). It may include material that depicts or describes, in an offensive way, a person who is or appears to be a child:

• As a victim of torture, cruelty or physical abuse.
• Engaged, or apparently engaged, in sexual activity or a sexual pose.
• In circumstances involving the display of private parts in a manner covered by the legislation.

The definition can apply to different forms of material. This may include:

• Photographs and videos.
• Digital files and images.
• Drawings or other visual representations.
• Written or other material that describes conduct covered by the definition.

The legal question is not simply whether a file has an offensive name or appears in a particular folder. The material must be assessed against the statutory definition and the surrounding evidence.

You can read the current NSW legislation on the NSW legislation website.

2. What offence applies to possession in NSW?

The main NSW offence is found in section 91H of the Crimes Act 1900 (NSW).

Section 91H makes it an offence to produce, disseminate or possess child abuse material. The maximum penalty is 10 years’ imprisonment.

“Dissemination” is broader than selling or sending a file to another person. It may include transmitting, communicating, supplying, exhibiting or making material available for access.

Production can also extend beyond taking an original photograph. Depending on the facts, it may involve creating, filming, photographing, printing or manipulating material.

A possession charge is different from a charge of production or dissemination. However, police may allege more than one offence if the digital evidence suggests that files were downloaded, created, transmitted or made available to another person.

Your lawyer will need to identify:

1. The exact section and charge on the court attendance notice or bail paperwork.
2. Whether the allegation is a NSW offence, a Commonwealth offence, or both.
3. The date range and devices or accounts said to be involved.
4. Whether police allege possession only or additional conduct.

3. What must the prosecution prove?

The prosecution must prove each element of the offence beyond reasonable doubt.

For a possession allegation, the prosecution will generally need to prove that:

• The material was legally classified as child abuse material.
• You possessed or controlled the material.
• You knew, or the relevant legal test is otherwise satisfied, in relation to the material and your possession of it.

Owning a phone, computer or hard drive is not automatically the same as possessing every file found on it.

The prosecution may rely on evidence such as:

• User accounts and passwords.
• File paths and folder structures.
• Download history.
• Search history and browsing data.
• Metadata and timestamps.
• Messages or online conversations.
• Device usage patterns.
• Evidence linking a particular person to a cloud account.
• Admissions allegedly made during a police interview.

The prosecution must still establish the connection between you and the material. That connection can be disputed where a device or account was shared, compromised, accessed by another person or used without your knowledge.

4. How can possession arise through a phone, computer or cloud account?

Possession does not require you to have printed material in your hands.

Under the NSW legislation, possession can include possession or control of data. This means police may allege possession where material is found on:

• A mobile phone or tablet.
• A desktop or laptop computer.
• An external hard drive or USB device.
• A memory card or other storage media.
• A downloads folder.
• A messaging application.
• An email account.
• Cloud storage or an online account.
• A peer-to-peer file-sharing folder.

However, the existence of a file on a device does not answer every legal question.

You may have a possible defence issue where:

• The device was used by several people.
• Another person had access to the account.
• The material was downloaded automatically by software.
• A file was sent to you without your request.
• The material was located only in temporary or cached data.
• The file was deleted and was not accessible in its original form.
• Your account or device was hacked or compromised.
• You did not know the material was present.

These issues require detailed forensic analysis. Do not assume that a police report accurately explains how a file came to exist on a device.

5. Does accidental or mistaken possession provide a defence?

Possibly, depending on the evidence.

The prosecution may have difficulty proving possession where you did not know the material was present or did not have the ability to access or control it.

The circumstances may also be relevant where material was received unexpectedly. Section 91HA of the Crimes Act contains statutory defences dealing with particular situations, including lack of knowledge and certain unsolicited material.

If you unexpectedly receive material:

• Do not forward it, copy it or screenshot it.
• Do not continue opening or examining it.
• Do not contact the sender about the allegation without legal advice.
• Obtain urgent advice about preserving evidence and making any appropriate report.

If police have already contacted you or seized your devices, do not delete files or attempt to wipe accounts. Deleting, destroying or altering evidence may create additional legal problems.

A mistaken belief about a person’s age may not resolve the matter. The statutory definition can include material depicting a person who appears or is implied to be a child. The exact content, context and available evidence must be assessed by a lawyer.

6. What happens during a police investigation?

Police may investigate through online intelligence, reports from technology companies, undercover operations or evidence obtained from another device or account.

They may apply for and execute a search warrant at your home, workplace or another premises. During a search, police may seize:

• Phones and computers.
• Tablets and gaming devices.
• USB drives and external hard drives.
• Cameras and memory cards.
• Documents and passwords recorded on paper.
• Other devices capable of storing or accessing data.

Police may then conduct a forensic examination. The examination may involve deleted material, browser history, application data, cloud synchronisation, account activity and communications.

You should:

• Ask to see the warrant where appropriate.
• Do not physically obstruct a lawful search.
• Do not volunteer explanations about the devices.
• Do not consent to additional searches without legal advice.
• State clearly that you want to speak with a lawyer before answering questions.

Your rights can depend on the circumstances. You generally have a right to silence and a right to obtain legal advice before a police interview. There may be exceptions to the right to silence for particular information, and Commonwealth laws may provide additional powers in some investigations.

For more information about general police powers, you can read the Legal Aid NSW guidance on police powers.

7. Can police force you to unlock your phone or provide a password?

Do not assume that you must provide a password. Do not assume that police can never require assistance.

The answer may depend on:

• Whether the investigation involves NSW or Commonwealth offences.
• Whether police have obtained a specific order.
• Whether the data is stored locally or remotely.
• Whether the device is encrypted.
• The precise legislation being used.

Commonwealth investigations may involve section 3LA of the Crimes Act 1914 (Cth), which can allow an order requiring assistance to access data in particular circumstances. Failing to comply with a valid order may itself have consequences.

You should ask police what power they are relying on and obtain urgent legal advice before providing access credentials or participating in an interview.

Greenfield’s computer crime lawyers in Sydney understand the importance of digital evidence, device attribution and forensic analysis.

8. Could a Commonwealth charge also apply?

Yes. If the alleged conduct involved the internet or another carriage service, you may face a Commonwealth charge under the ** Criminal Code Act 1995 (Cth)**.

Section 474.22A concerns possessing or controlling child abuse material obtained or accessed using a carriage service and held as computer data. The maximum penalty is 15 years’ imprisonment.

A mandatory minimum sentence may apply in limited circumstances, including where the offence was committed after 23 June 2020 and the person has a relevant prior child sexual abuse conviction. This is highly fact-specific.

The Commonwealth Director of Public Prosecutions explains child exploitation offences. Your lawyer should check whether any Commonwealth charge is properly available and how overlapping charges should be dealt with.

9. What penalties and long-term consequences can apply?

A conviction under section 91H can result in imprisonment. The outcome depends on the facts and the court’s assessment of the objective seriousness and your personal circumstances.

Sentencing may take into account:

• The number and type of files.
• The number of children represented.
• The period of possession.
• Whether the conduct involved downloading, production or dissemination.
• Whether files were organised or systematically collected.
• The seriousness of the material.
• Your criminal history.
• Your plea and timing of any guilty plea.
• Your remorse, rehabilitation and treatment.
• Your mental health and other relevant personal circumstances.
• Whether you complied with bail and reporting obligations.

A conviction may also have consequences beyond the sentence. Relevant offences may trigger obligations under the ** Child Protection (Offenders Registration) Act 2000 (NSW)**. The position is not identical in every matter. Exceptions may apply, including in some cases involving children or non-conviction orders.

You can review the current Child Protection (Offenders Registration) Act, but you should obtain legal advice about the consequences of your particular charge and proposed plea.

10. What should you do if police contact or charge you?

Take these steps immediately:

1. Do not participate in a police interview before obtaining legal advice.
2. Do not delete, alter, destroy or move digital evidence.
3. Do not contact other people involved in the investigation.
4. Do not discuss the allegation on social media or messaging platforms.
5. Keep all police paperwork, bail documents and court dates.
6. Tell your lawyer about every device, account and person who may have had access.
7. Ask your lawyer to consider the warrant, forensic process, account attribution and admissibility of evidence.
8. Obtain advice about bail, the appropriate court and whether the charge should be defended or resolved by a plea.

These cases are serious, but a charge is not a finding of guilt. The prosecution must prove its case, and there may be meaningful issues concerning knowledge, possession, control, attribution, digital evidence and the lawfulness of the investigation.

If you are in Sydney and police have contacted you, searched your premises or charged you with possessing child abuse material, contact Greenfield Criminal & AVO Defence Lawyers urgently. Our criminal defence team can advise you about your rights, communicate with police where appropriate and develop a defence strategy based on the evidence in your matter.

This article provides general information about NSW and Commonwealth law as understood at the time of publication. It is not legal advice and does not replace advice from a qualified criminal defence lawyer who has reviewed your circumstances.