Law on Filming a Person’s Private Parts in NSW

By Sahar Adatia and Jimmy Singh.

A Sydney man who served a 12-year jail sentence for terrorism offences now finds himself on charges of filming up the skirts of two women in Kmart stores.

It is reported that in January 2020, Mazen Touma allegedly committed the offences, some two months are completing his parole.

Back in 2008, Mr Touma faced the NSW Supreme Court where he pleaded guilty to four counts relating to preparing for a terrorist act.

The charges related to his involvement in sourcing ammunition and explosives for the “Pendennis Nine” faction, which intended on carrying out terrorist attacks in Sydney and Melbourne.

In 2017, Mr Touma was released on parole – a move which had the support of the NSW police commissioner, based on the offender’s involvement in the prison deradicalisation program.

But now, Mr Touma finds himself charged with two counts of recording people’s private parts without their consent and two charges aggravated by doing the acts with the intent of obtaining sexual arousal or gratification.

It is alleged the man bent down with his mobile phone and either filmed, or tried to film, the private parts of one woman at Kmart at Bondi Junction and another Kmart store in Chatswood.

Mr Touma Granted Bail on Charges of Recording People’s Private Parts Without Consent

On 30 March 2020, Mr Touma faced NSW Supreme Court for charges of allegedly recording people’s private parts without consent, where Justice Peter Hamill granted him bail.

Prosecutor Alex Poulos described the current case as being like “chalk and cheese” when compared to Mr Touma’s background and criminal history.

However, the past conviction was still a relevant matter in the case because his strict parole expired two months before his alleged up skirting offence.

“Only two months after he was allowed to be a person of the community at liberty, he was detected acting in this way and charged with these offences,” Mr Poulos said.

“It is possibly too much to say the two events are connected causally, but it is a concern that only less than two months into his life post-parole, he’s come to the notice of police once more.”

Mr Poulos asserted there was a “strong inference” that Mr Touma “did the offence, or that he was attempting to do the offence”.

Nevertheless, he conceded no images were obtained from Mr Touma’s phone after it was seized by police.

Police allege thought that there is CCTV footage showing the first incident of Mr Touma filming up a woman’s skirt.

But the camera in the second store did not capture the “critical moment”.

Meanwhile, a security officer has alleged that he witnessed Mr Touma leaning over with his mobile, insinuating he was filming up the skirt of the customer.

Justice Hamill Determines Alleged Offence May Be “Attempt” at Highest with No Images on Phone

With no images found on Mr Touma’s phone, Justice Hamill said the alleged offence was only an attempt.

“The prosecution has acknowledged the absence of images on the phone … so at its highest (the alleged offence) may be an attempt,” the judge said.

He noted that this would still be a very serious invasion of privacy.

Justice Hamill acknowledged the Crown did not suggest Mr Touma may revert to his previous form of criminality, but proposed he may attempt to interfere with justice by tracking down the security officer.

He granted bail with conditions he labelled as paralleling those of house arrest.

These conditions include a person depositing $40,000 in cash as a surety, Mr Touma reporting to police three times a week, Mr Touma not leaving his residence except for instances such as a medical emergency and refraining from using the camera on any device.

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Law on Filming a Person’s Private Parts in NSW

A ‘private part’ is a person’s genital or anal area (regardless of it being bare or covered with underwear). It also includes the breasts.

In contrast, a “private act” refers to situations where the person being filmed is in a state of undress, using the toilet, shower or bath, is engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity – circumstances in which a reasonable person would reasonably expect to be afforded privacy in that situation.

The law prescribes a penalty of up to 2-years jail or $11,000 fine, or both for filming the private part(s) of another person in order to obtain (or enable someone else to obtain) sexual gratification or arousal.

This offence is only committed if this occurs in a situation in which a reasonable person would reasonably expect the person’s private parts could not be filmed, without consent, knowing there was no consent (section 91L(1) Crimes Act 1900 (NSW)).

This offence is considered a ‘summary offence’ which means it can only be dealt with in the Local Court, not District Court. The Local Court is restricted in ever imposing a maximum penalty of up to two years jail- although it rarely imposes a maximum penalty.

This offence will be aggravated if this occurs in ‘circumstances of aggravation’ under section 91L(3) which carries a penalty of up to 5-years jail.

‘Circumstances of aggravation’ is when it occurs in a situation where the person who is filmed was a child (under 16 years old) or the offender had constructed or adapted the fabric of a building in order to facilitate the offence.

The aggravated offence is a table 1 indictable offence which means it can be elected to be dealt with in the higher court, namely the District Court (instead of the Local Court). The District Court has power to impose a maximum penalty of more than two years jail- however, it rarely imposes the maximum sentences.

The same penalties apply for attempting to commit these offences.

In contrast, click here for an outline on the penalties for filming a person in a private act.

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