R v Athans
[2021] SADC 1
•15 January 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ATHANS
[2021] SADC 1
Judgment of her Honour Judge S David
15 January 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
Accused charged with four counts of procuring a child to engage in or submit to sexual activity – working as a promoter of underage events and disc jockey – allegedly sent explicit photographs of an exposed penis on ‘Snapchat’ to four young females – uncharged act of sending explicit image to another female aged 17 years – alleged offending occurred from April 2016 to July 2017 – explicit photographs no longer in existence - identity of offender in dispute – whether evidence directly relevant to each charge proved accused was the offender – striking similarities and cross-admissibility of counts.
Verdicts: guilty of all counts.
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence Act 1929 (SA) ss 13A(12), 34CB, 34M(4)(a) and 34M(4)(b), referred to.
R v Symons [2018] SASCFC 48; Sutton v The Queen (1984) 152 CLR 528; Hirst v Police [2006] SASC 244, considered.
R v ATHANS
[2021] SADC 1
Criminal
Nicholas Emmanuel Athans (‘the accused’) is charged with four counts of Procuring a Child to Engage in, or Submit to, a Sexual Activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act, 1935. The accused is charged on Information dated 16 April 2019 as follows.
First Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Nicholas Emmanuel Athans on the 3rd day of April 2016 at Ridleyton or another place, procured [DN], a child under the age of 17 years, to submit to a sexual activity.
Second Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid).
Particulars of Offence
Nicholas Emmanuel Athans between the 19th day of December 2016 and the 24th day of December 2016 at Ridleyton or another place, procured [RF], a child under the age of 17 years, to submit to a sexual activity.
Third Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid).
Particulars of Offence
Nicholas Emmanuel Athans on the 16th day of January 2017 at Ridleyton or another place, procured [KW], a child under the age of 17 years, to submit to a sexual activity.
Fourth Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid).
Particulars of Offence
Nicholas Emmanuel Athans between the 12th day of July 2017 and the 15th day of July 2017 at Ridleyton or another place, procured [BD], a child under the age of 17 years, to submit to a sexual activity.
The matter proceeded by way of trial by judge alone. There were evidentiary rulings made prior to the trial which are published separately.[1] I now publish reasons for the verdicts I deliver.
[1] Rulings dated 24 March 2020.
By way of background, the accused was the owner of ‘The Yeah Hard Entertainment’ business, which promoted and organised underage dance parties. He also worked as a disc jockey. At the time of the alleged offending from April 2016 until mid-July 2017, the accused was aged 21 to 22 years old. The four complainants were aged from 14 to 16 years old, and there was evidence of an alleged uncharged act involving a girl aged 17 at the relevant time.
The accused is alleged to have communicated with all the complainants via social media. He initially contacted three of the complainants on Facebook Messenger after obtaining their details from an event his company was promoting. The accused allegedly asked each complainant to contact him on a Snapchat account associated with him, and via that account the accused sent each complainant one or more ‘snaps’ containing an explicit image of a person lying on a bed with his penis exposed.
The accused was interviewed by police in respect of one of the complainant’s allegations on 19 January 2017. He was not arrested at that time. The police attended at the accused’s home on 7 February 2017. On that date, the accused was arrested, charged with criminal offences, and placed on a bail agreement which relevantly precluded him using social media and associating with underage females. The police searched the premises and seized the accused’s mobile telephone. Police prepared a plan of the premises and took photographs of the accused’s bedroom. I excluded the evidence obtained from the accused’s mobile telephone in the exercise of my discretion for unfairness.
On 10 August 2017, the accused’s home was again searched, and items were seized from the accused’s bedroom including underwear consistent with those worn by the person depicted in the explicit images.
During the trial, the prosecution adduced evidence from the four complainants: DN, RF, KW and BD, and from EW against whom an uncharged act was allegedly committed, and her friend, SK. There was also evidence called from an electronic evidence expert, Dr Grant Wigley, and Detective Brevet Sergeant Jeremy Byers of e-Crime who reviewed call charge records of a mobile telephone service associated with the accused. The investigating officer, Detective Matthew Turtle, also gave evidence as to the investigation of the charges.
In respect of the defence case, the accused exercised his right not to give evidence but called Ms Mar Noordin, an expert in digital evidence management.
There was no dispute at trial that the offences, and uncharged act, were committed by someone. The issue in dispute was whether the prosecution had proved that the accused was the offender for each offence.
Elements of the offence
The offence of Procuring a Child to Engage in a Sexual Activity has three legal elements, each of which the prosecution must prove beyond reasonable doubt. They are:
1.The accused procured a person to engage in or submit to sexual activity. The term ‘sexual activity’ includes sending explicit photographs, such as a photograph of a penis, animations or sexual memes and engaging in discussions about them.[2]
2.The other person is a child under the prescribed age. In this case, the prescribed age is a person under the age of 17 as there was no allegation that the accused was in a position of responsibility in respect of any of the complainants.
3.The accused intended to procure a person to engage in, or submit to, sexual activity.
[2] R v Symons [2018] SASCFC 48 per Kourakis CJ, Kelly J.
As outlined earlier, the issue in dispute at trial was the identity of the offender. There was no dispute that by sending a photograph(s) of a penis to each complainant, or in the case of KW, a photograph of a penis and a sexually explicit meme, a person had committed the charged offences. The question was whether the prosecution had proved beyond reasonable doubt that the accused was the offender.
Legal Directions
I apply the following principles in reaching my verdicts.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each charge lies wholly upon the prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt is sufficient. It is not enough for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of any offence, the prosecution must prove beyond reasonable doubt each element of the offence. In these reasons, if the words ‘proved’, ‘established’ or ‘satisfied’ are used, this means to a standard of proof beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must be found not guilty of the charge under consideration.
The accused elected not to give evidence. That was his right. The accused’s silence cannot be used against him. It is impermissible to treat the accused’s silence as an admission or to use his silence to fill any gaps in the prosecution's evidence. The accused’s silence does not make the prosecution's evidence stronger or more persuasive, and to use his silence against him, in practical terms, would deprive him of his right to remain silent. It is for the prosecution to prove each charge beyond reasonable doubt. Further, the accused adduced expert evidence from Ms Noordin. The fact the accused has done so, does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence.
There was initial complaint evidence from each complainant. DN gave evidence that she first disclosed the allegations to BD, in a group chat named ‘Dick Sucking 101’ (‘DS 101’).[3] RF said that she first disclosed the allegations to her brother.[4] There was no evidence called from her brother. KW first complained to her mother, RD, who was called as a witness. BD made an initial complaint to DN in the Facebook group ‘Adelaide Memes for Burnside Teens’.[5] The evidence of each witness’s complaint is potentially relevant to show how the allegations first came to light, and as evidence relevant to the degree of consistency of their conduct.[6] The evidence of complaint is not admitted as evidence of the truth of their statements.[7] There may be varied reasons why an alleged victim of a sexual offence has made a complaint about sexual offending at a particular time to a particular person. That said, there was no dispute that someone committed the offences so the complaint evidence does not assume the same importance it would otherwise.
[3] Exhibit P10, pp 1-16.
[4] T 184.
[5] Exhibit P47.
[6] Evidence Act, 1929 (SA) s 34M(4)(a).
[7] Evidence Act, 1929 (SA) s 34M(4)(b).
The prosecution also adduced evidence from EW of an uncharged act which occurred in mid-2017, when the accused allegedly sent her a photograph of an exposed penis from a Snapchat account. At the time she received the explicit image, EW was 17 years old, thus no offence was committed. If it is accepted beyond reasonable doubt that the explicit image was sent by the accused to EW from a Snapchat account, the uncharged act can be permissibly used as relevant to establishing the striking similarity between all of the alleged unlawful conduct (charged and uncharged) so as to warrant a conclusion that the offender on each occasion was the same person. If it was established that the same person committed all the alleged unlawful conduct, evidence that the accused was the offender on the uncharged occasion was probative and cross-admissible in proof of the charged offences. That is not to reason that the accused had a particular propensity to commit the charged offences. It would also be impermissible to reason that the accused is a man of general bad character and therefore more likely to have committed any of the charged offences. It would also be wrong to assume that the accused is necessarily guilty of any of the charged offences.
There was evidence adduced of uncharged occasions on 22 April 2016 and 23 April 2016 when the accused allegedly sent other explicit images of an exposed penis on the same Snapchat account to DN. That evidence was relevant to prove the identity of the offender as the accused. The more often the same Snapchat account was used to send explicit images of an exposed penis, the more likely it was that the images were sent by a person associated with that account rather than an irregular user. Further, the evidence provided the complete narrative and context to DN’s allegations and was relevant to explain some of the inconsistencies in her evidence. Again, that is not to reason that the accused had a particular propensity to commit the charged offences. Nor can the evidence be used to reason that the accused is a man of general bad character and therefore more likely to have committed any of the charged offences. It would also be wrong to assume that the accused is necessarily guilty of any of the charged offences.
There was evidence that the accused breached his bail conditions imposed in February 2017 by continuing to use social media applications and by participating in work related activities with children. That evidence was relevant to explain why the accused may have allegedly told others (either via a person ‘Kimmy’ or under the pseudonym of ‘Kimmy’) that he was no longer using Facebook. It would be impermissible to reason that in breaching his bail conditions the accused was a man of general bad character and therefore more likely to have committed any of the charged offences because of that evidence, or as evincing a consciousness of guilt. I have not reasoned in that impermissible manner.
The alleged offending occurred from 3 April 2016 to 15 July 2017. The charges proceeded to trial in 2020. During the interim period, the police did not seize the mobile telephones used by the complainants, and electronic material was not extracted from them and a forensic copy was not made of that material. The delay has resulted in a significant forensic disadvantage to the accused in that electronic data extracted from a mobile device is superior in recording information about the communications compared with screenshots taken of various messages, for the reasons elicited by Ms Noordin.[8] Further, the complainants’ memories have faded and the accused has lost the ability to test and challenge the detail of their accounts. The significant forensic disadvantages to the accused caused by the delay must be considered when deciding whether the prosecution has proved the case on each charged offence.[9]
[8] T 389-391.
[9] Evidence Act, 1929 (SA) s 34CB.
Special arrangements were put in place for KW, without objection. A screen was placed between KW and the accused whilst she was giving her evidence. It is impermissible to draw any adverse inference against the accused because of such arrangements, and the arrangements must not cause any extra or undue weight to be attached to KW’s evidence.[10]
[10] Evidence Act, 1929 (SA) s 13A(12).
There was expert evidence presented at trial. The prosecution adduced evidence from Dr Wigley as to computer operating systems and the workings of the Snapchat and Facebook social media applications. Defence counsel called evidence from Ms Noordin about digital evidence management and the functioning of social media applications. Evidence was also adduced from Mr Byers as to the call charge records of a telephone service associated with the accused. There was no dispute as to the qualifications or expertise of the witnesses. The usual rule is that a witness can only give evidence of facts and is not permitted to express any opinions or conclusions drawn from those facts. One exception to that rule is that a properly qualified expert can express an opinion on matters within his or her expertise. In assessing expert evidence, it is for the trier of fact to decide what evidence to accept and the weight to place upon the evidence. As with any witness, the expert evidence can be accepted or rejected, and the evidence is not to be blindly adopted because the witness is an expert in the relevant field.
The prosecution case on each count relied on circumstantial evidence to prove the identity of the offender; that is, the accused sent the explicit image or communication the subject of the charge. There are two steps in approaching a circumstantial case: first, to consider the facts upon which the prosecution relied and decide what facts are established by the evidence; and second, to consider what inference or inferences can be drawn from the established facts. The latter step requires a consideration of the combined strength of the facts established by the evidence. There cannot be a guilty verdict on a charge unless the circumstances exclude any reasonable explanation consistent with the accused’s innocence.
As to the process of inferring facts, an inference can only be properly deduced from the evidence rather than making guesses or engaging in speculation. Furthermore, before an adverse inference can be drawn as to the guilt of an accused person, there must be no rational hypothesis or explanation consistent with the accused's innocence. If there exists another rational hypothesis or explanation, the accused must be found not guilty.
Each charge must be considered separately. The evidence relevant to each charge must be isolated and considered separately in deciding whether the prosecution has proved that charge beyond reasonable doubt. It is obviously impermissible to reason that because the accused is guilty of one of the counts, if so proved, he is therefore necessarily guilty of any of the other counts.
Prosecution evidence
I now turn to the prosecution evidence. Again, the contentious issue on each charge was whether the prosecution had proved beyond reasonable doubt that the offender was the accused.
Count 1 - DN
It is alleged that the accused on 3 April 2016 procured DN to submit to sexual activity, namely viewing one, or all, of a series of images depicting a penis beneath underwear or an exposed penis.
DN was born on 25 December 2000.
On 2 April 2016, DN sent a message on Facebook Messenger to ‘Nick’ on an account which in 2019 was named ‘Nick Papia’.[11] DN said that when she first started communicating online with the person, the name of the Facebook account was ‘Nick Athans’.[12] She said that the name of the Facebook account changed to ‘Nick Anthems’ in September 2017, and to ‘Nick Papia’ in 2019.[13]
[11] Exhibit P9.
[12] T 124-125.
[13] T 124-125.
The user of the Facebook account had posted in the ‘Yeah Hard Entertainment’ group asking for promoters.[14] She did not know this person at the time, but after expressing interest in becoming a promoter, she was added to the ‘Yeah Hard Entertainment’ Facebook group chat.[15] From the group, DN could click on the person’s profile to message the person directly.[16] The person responded by providing a mobile number: [ 835].[17] DN saved the mobile number.[18] DN suggested using iMessage (a function on iPhones where messages are sent via the internet) because she was out of credit.[19]
[14] T 82.
[15] T 83-84.
[16] T 84.
[17] T 86.
[18] T 86-87.
[19] T 86.
On 3 April 2016, at 2.15 am, DN sent a text message to the mobile number ending in 835.[20] The person responded asking what she was up to, and said: “it’s Nick (smile emoji)”.[21] DN replied: “Just in bed, can’t sleep (sad emoji) what about you? x”.[22] The user sent messages saying: “Nothing gorgeous I’m so bored”, “Snapchat me (wink emoji)”, “nick.atonik”, “xx” (smile face), “Or don’t reply haha”.[23] DN replied: “sorry aha, will add you now hehe”.[24] She added the username on Snapchat and the user accepted the request.[25]
[20] T 87.
[21] Exhibit P7, p 1.
[22] T 87-88, Exhibit P7, p 1.
[23] T 89, Exhibit P7, p 2.
[24] Exhibit P7, p 2.
[25] T 89.
DN messaged her friends at 2.17 am on Facebook Messenger in the group chat ‘DS 101’.[26] She was messaging her friends whilst simultaneously messaging ‘Nick’ on iMessage, and later the user of ‘Nick.Atonik’ on Snapchat.[27]
[26] T 87-88, Exhibit P10.
[27] T 87-88, 89.
DN said that the user of ‘Nick.Atonik’ sent her a photo as a ‘snap’ with something along the lines of “Hey x” written on it.[28] She replied by saying “hello”.[29] DN said she then received a photo of the user in bed.[30] The photo was taken at night time with a flash.[31] She said there were white coloured bedsheets and a white coloured doona on the bed.[32] The person was wearing tight blue bike-short style Calvin Klein underwear with an elastic band.[33] DN said she could see the outline of a ‘slightly erect’ penis.[34] The image was displayed for no longer than three seconds before she clicked on the image to make it disappear.[35] She thought there was text accompanying the image but she could not recall what it said.[36]
[28] T 89-90.
[29] T 90.
[30] T 90.
[31] T 90.
[32] T 90.
[33] T 90-91.
[34] T 91.
[35] T 90-91.
[36] T 91-92.
DN said that she immediately told her friends in the group chat that she had received a photograph from the user of ‘Nick.Atonik’ in his underwear. She wrote: “OHMYGODHELP”, “He sent me a snap of his undies”. [37] She then wrote: “Oh no he just sent me a snapchat”, “HAHAHA omg he was wearing CK undies”.[38] DN said that the group chat members were the first persons to whom she complained about the explicit photograph. She agreed that she told police on 8 September 2017 that Freya Stevens was the first person she told but said that this was wrong.[39]
[37] T 101, Exhibit P7, p 6.
[38] Exhibit P10, p 8.
[39] T 141-142.
DN said that ‘Nick’ sent her an iMessage stating: “Snap me back? X”.[40] He then sent a further four messages saying: “Soooo”, “We should hang”, “Right now”, “[D]”.[41] She replied: “Ugh my parents would kill meeee”.[42] ‘Nick’ replied: “Sneak out (winky emoji)” and “Stay on Snapchat” to which DN responded: “I choose life”. [43] He said: “Not going to snap me back” and “Okay, no worries”.[44]
[40] T 97, Exhibit P7, p 2.
[41] T 97, Exhibit P7, p 2.
[42] T 97, Exhibit P7, p 3.
[43] T 97, Exhibit P7, p 3.
[44] T 98, Exhibit P7, p 3.
DN said she received a further two explicit images from the Snapchat account of ‘Nick.Atonik’. The images were taken in the same bedroom as the first image with the flash on.[45] She believed the images were captioned with something along the lines of ‘Nine and a half inches’ or ‘Do you want nine and a half inches’.[46] She said she could see the person’s penis, which was erect or at least mostly erect.[47] She described the genital area as shaven.[48] The person was not wearing any underwear[49] and he was sitting or lying on a bed on which there were white bedsheets.[50] The images were on the screen for no more than three to four seconds before she clicked or tapped the screen and made the images disappear.[51] She said she was uncomfortable receiving the images.[52] DN said she did not respond to the images on Snapchat.[53] However, in cross-examination, she said she could now not recall whether she had responded to the images.[54]
[45] T 98.
[46] T 98, 99.
[47] T 99.
[48] T 100.
[49] T 99.
[50] T 99.
[51] T 100.
[52] T 139.
[53] T 98, 139.
[54] T 141.
DN said she was sent another image on Snapchat captioned “D come here now”.[55] She could not describe the image. DN was sent another image with a caption along the lines of “Is this too kinky for you”.[56] She could not describe the image. She told her friends about these images in the group chat.[57]
[55] T 101.
[56] T 101-102.
[57] T 102.
DN said she received another three photographs of an exposed penis.[58] She described the person as having dark pubic hair.[59] She said that the images were a bit clearer than the previous two.[60] She believed each image was captioned with a flirty message but she could not recall exactly what they said.[61] She said she could not see the face of the person in any of the images, and there was nothing in the images themselves which identified the accused as the person in the images.[62]
[58] T 102.
[59] T 153.
[60] T 103.
[61] T 102-103.
[62] T 153.
DN clarified that she received a total of six images of a penis that night: five images of an exposed penis and one image of a penis beneath underwear.[63] She agreed that she told police on 8 September 2017 that there were six images of a penis plus another image of underwear.[64]
[63] T 158.
[64] T 159.
DN sent messages to the group chat in which she complained of having received the explicit images. She said: “he sent me another snap brb”,[65] then “omg the snapchat he captioned it [DN] come here now”, “WHAT DO IXSAY”,[66] then “He’s like is this too kinky for you”,[67] then “OMG he just sent me 2 dick pics”, “Shaved”, “he was like”, “9.5 inches”, “And Imlike lol”, “Nah ur not black”, “But its thich” “Thick*”.[68] She then wrote: “He just messaged me again and was like”, “Sooo we should hang”, “Like right now”.[69] She then wrote: , “He sent me 3 more pictures”, “And I take back what I said about it being thick”.[70] She then wrote: “Like before he showed like half of it and it was a bit blurry”, “And then I got 3 clear photos”, “And Im like nahhhh”.[71]
[65] Exhibit P10, p 9.
[66] Exhibit P10, p 10.
[67] Exhibit P10, p 11.
[68] Exhibit P10, pp 11-12.
[69] Exhibit P10, p 13.
[70] Exhibit P10, p 15.
[71] Exhibit P10, p 15.
From 22 April 2016 to around 9.30 am on 23 April 2016, DN received further explicit images sent from the Snapchat account of ‘Nick.Atonik’.[72] DN could not see the face of the person in the images.[73] She said that the images were unsolicited and she was shocked at having received them.[74]
[72] T 102-103.
[73] T 153.
[74] T 103, 161.
On 23 April 2016 at about 10.00 am, DN received a chat from the ‘Nick.Atonik’ Snapchat account saying: “I genuinely would like to get to know you hence why I picked you for promo team (smiley face emoji) xo”.[75] She replied: “If you want to get to know me start by not sending like 14 pics of your undies that a lot a good way to get to know someone ahahahaha (emoji). You seem pretty chilled though. Actually, Demasi picked me for promo team?? Ha ha”.[76] She took a photograph of the chats and sent them to a friend.[77] In evidence, DN clarified that when she spoke of a person ‘Demasi’, she was referring to Nick Demasi of the Yeah Hard Entertainment Group.[78]
[75] T 106, Exhibit P14.
[76] T 106-107, Exhibit P14.
[77] T 105, Exhibit P14.
[78] T 107.
DN said she then received more messages from the same account. She took a photograph of the messages.[79] The messages said: “I thought you were well older. Nick sent me all these people and then I picked some and you were one of them”.[80] She replied: “Legit? Ha ha I'm 15, how old are you anyway?”.[81] He said: “21 lol”, to which she replied: “Oh ha ha”.[82] She then received a further message saying: “I thought you were 17 ha ha”, to which she replied: “Jesus (laughing/crying emoji)”.[83]
[79] Exhibit P14.
[80] T 107-108.
[81] T 108.
[82] T 108.
[83] T 108.
She clarified that the messages of which she took photographs and exhibited as P14 were sent and received after she received multiple explicit photos on 22 to 23 April.[84]
[84] T 108.
On 23 April 2016, at around 11.00 to 11.30 am, DN received an image from the Snapchat account of ‘Nick.Atonik’ or saw a Snapchat story by that account with an image of a person in the driver’s seat of a vehicle on a road.[85] She could not see the person’s face.[86] The image was captioned with something like ‘Off to the football’.[87]
[85] T 109.
[86] T 125.
[87] T 109.
On 7 August 2016 at 10.27 pm, DN received a message from the Facebook account of ‘Nick Papia’ saying: “Oh hey xx”.[88]
[88] T 110, Exhibit P9, p 2.
On 25 August 2016 at 6.31 pm, DN received a message from the Facebook account of ‘Nick Papia’ saying: “Haha hey xx”.[89] She replied two hours later saying: “Haha how are uu xx”.[90] The person replied: “Good thanks gorgeous! What have you been up to? X”.[91] She did not respond.[92]
[89] T 110, 111, Exhibit P9, p 2.
[90] T 111, Exhibit P9, p 2.
[91] T 111, Exhibit P9, p 2.
[92] T 111, Exhibit P9.
On 5 October 2016 at 11.04 pm, DN sent the same Facebook account a screenshot image from a Facebook page of ‘Toilet Cleaner at Nick Athans’ with a message saying: “OMG you're funny AHAHA”.[93] She received a reply of a thumbs up emoji to which she replied: “classy”.[94]
[93] T 112, Exhibit P9, p 3.
[94] T 112, Exhibit P9, p 3.
On 6 October 2016, from 3.17 to 3.55 pm, DN received messages from the same Facebook account which included a wink/heart emoji and a message saying: “Stalking me are you? (wink emoji)”.[95] She replied: “yeah bulk”. DN explained that she may have accidentally or jokingly liked one of the posts or photographs on the account’s profile and this is what she understood stalking to mean.[96] She sent a message to the account saying: “ahaha what have you been up to” and received a reply: “DJ’ing, making heaps of music and travelling heaps also”.[97] She responded: “Don’t you dj at some clubs on hindley hahaha” and received a reply: “yep”. She asked: “which clubs maybe ive seen you??”, and the reply was: “HQ Complex, Magic City, Bump and Grind”.[98] She said: “Ohhh, I haven’t been to those” to which the reply was: “Haha lol”.[99]
[95] T 112, Exhibit P9, p 3.
[96] T 112.
[97] Exhibit P9, p 5.
[98] Exhibit P9, p 5.
[99] T 112, Exhibit P9, pp 5-6.
DN then sent a message asking if there were ID scanners for clubs called Magic City and Bump & Grind.[100] She later sent messages asking about how to obtain fake identification for her friend, to which she received a reply: “I don't know will cost you (wink emoji)”.[101] She sent a further message saying: “Tell me more” to which she received a reply: “Snapchat me”, “NickAthansAus”.[102] She then sent a message saying she did not have access to Snapchat, and sent her mobile telephone number. She received a reply: “Just texted”, to which she responded with a thumbs up.[103]
[100] T 113, Exhibit P9, p 6.
[101] T 114, Exhibit P9, p 7.
[102] T 114, Exhibit P9, p 7.
[103] T 114, Exhibit P9, p 8.
On 8 December 2016 at 6.34 pm, DN received messages from the same Facebook account: “Check your inbox from Nick Athans”, “this is my private account haha”.[104] DN said that a person could operate a public and private Facebook account and it was possible to have different privacy settings on different accounts.[105] She also agreed that it was possible to create an account in another person’s name using that person’s photographs and information.[106]
[104] T 114-115, Exhibit P9, p 8.
[105] T 115.
[106] T 130-131, 146-147.
On 2 July 2017 at 10.16 pm, DN received a message from the same Facebook account saying: “Cute match (wink emoji)”[107] She did not reply.[108] DN said that this message was a reference to a ‘match’ on the Tinder dating application.[109] She said that she was able to sign up for Tinder, her profile name was ‘D’ and she was recorded as being 111 years old.[110] She said she found ‘Nick’ on Tinder, and because of their previous communications, she thought it would be funny to ‘swipe right’ and see if they would match, which they did.[111] She agreed that a ‘match’ meant each of the parties had swiped right to indicate approval.[112] She could not really recall what picture ‘Nick’ had on his Tinder profile, but she thought it was a professional photograph taken at a party or nightclub.[113] She said the image looked very similar to other photographs that she had seen online of the person she believed to be Nick Athans .[114]
[107] T 116, Exhibit P9, p 8.
[108] T 117.
[109] T 116.
[110] T 116.
[111] T 116.
[112] T 116.
[113] T 117.
[114] T 117.
On 18 July 2017 at 1.40 am, DN sent a message to the same Facebook account: “Hey ahaha I was just wondering about the forms for AP because there’s no rep for my school”.[115] She clarified in evidence that ‘Nick’ and another girl were hosting the [ ] School Formal after party (referred to in her message as ‘AP’), which was to be held on 29 July 2017. She said that ‘Nick’ and another girl were ‘hosts’ on the Facebook event page and she recognised his name.[116] DN received a response which made a reference to a tinder match. She sent a further message in relation to a consent form for the after party which needed to be signed.[117] She received a further message saying: “Yeah? So come for a drive”, which she declined.[118] DN then received a message saying: “Come see me DJ at Red Square this week x” to which she replied: “I'm banned from Reds HAHAHAHA”.[119] In evidence, she clarified that she had been asked to leave Red Square Nightclub because she was underage so she no longer attended the nightclub.[120] There were further messages from the same Facebook account during which the person told her to “Hand your form into [D]” and “You know I’m hosting the AP yea?”.[121]
[115] T 117, Exhibit P9, p 8.
[116] T 118.
[117] T 118, Exhibit P9, p 10.
[118] T 118-119, Exhibit P9, p 11.
[119] T 119, Exhibit P9, p 11.
[120] T 119.
[121] T 119, Exhibit P9, p 13.
On 29 July 2017 at 8.16 pm, DN sent a message to the same Facebook account saying: “Hey, my friend and I really wanna come tonight and I was wondering if there’s any way my friend can sneak in? Xx”.[122] She said in evidence that her message related to the [ ] School Formal after party which was being held on 29 July 2017.[123] She received a reply: “Hey $50 at the door. Make sure you bring the form signed. xxxxxxxxxx”.[124] DN responded: “Is there any other way? X”, “Please X”. She received a reply: “Make an offer”, to which she replied: “Give me an idea”.[125] DN then received a message: “What’s your Snapchat?”, and she provided it.[126] She then received the messages: “Added”, “Talk there”, “You take so long to reply”, to which she replied: “I messaged you”, “Open!”.[127]
[122] T 119, Exhibit P9, p 13.
[123] T 119.
[124] Exhibit P9, p 13.
[125] T 119-120, Exhibit P9, p 14.
[126] T 121, Exhibit P9, p 14.
[127] Exhibit P9, p 14.
DN said she then received a few Snapchats. She could not recall the images she was sent but she said that the person ‘was trying to insinuate something sexual, like, do something sexual with me, like, ask me to hook up with him or something like that’ in the caption or messages.’[128] In cross-examination, she accepted that she said in her statement on 8 September 2017 that she couldn’t recall what Snapchat account the images were sent from that night. She agreed she also told police that the person Nick Athans had two Snapchat accounts: ‘NickAthans’ and ‘NickAthansAus’.[129] She explained that when she provided a statement to police she had forgotten about the Snapchat account named ‘Nick.Atonik’.[130]
[128] T 121.
[129] T 147.
[130] T 147.
DN went to the [ ] School after party which was held at The Producers Bar on Grenfell Street. She said she arrived at around 12.00 am.[131] She said the after party was shut down at around 1.00 to 1.30 am, but she and her two friends remained there for between 30 minutes to one hour trying to find a way home.[132] She said she saw the person she believed to be Nick Athans about 15 to 20 minutes after the party was shut down and recognised him from the photographs she had seen of him online.[133] This was the first time she had seen him in person. DN said he tapped her on the shoulder, and said something along the lines of “So you did make it in then”.[134] She said that he was leaving the venue quite quickly, and appeared like he was rushing out.[135]
[131] T 122.
[132] T 148-149.
[133] T 122-123.
[134] T 123.
[135] T 123.
It was suggested to DN in cross-examination that she never saw the accused that night, and she disagreed.[136] When shown Exhibit P11 (a photobook of images taken from the Facebook account of ‘Nick Papia’), she identified the account as the one in which she was exchanging the messages as shown in Exhibit P9.[137] DN said that prior to the formal after party she had seen quite a few of the photographs on that Facebook profile, and they depicted the person she saw at the formal.[138]
[136] T 149.
[137] T 123.
[138] T 123-124.
As to the topic of contamination or collusion, DN agreed that she and BD talked about Nick Athans in 2017.[139] She said that BD told her that Nick had started talking to her and sending her photos so she and BD were talking ‘smack’ (or badly) about him and making fun of him.[140] DN agreed that she and EW had a very small conversation on Facebook after the [ ] School Formal during which they were also talking ‘smack’ about Nick Athans.[141]
[139] T 149-150.
[140] T 150, 157.
[141] T 168-169.
Count 2 - RF
It is alleged that the accused between 19 and 24 December 2016 procured RF to submit to sexual activity, namely viewing an image of an exposed penis.
RF was born on 11 December 2002.
On 20 December 2016 at 9.03 pm, RF received a message from an account on Facebook Messenger later named ‘Nick Christos’ saying: “Felt like owning that other chick lol”.[142] RF said that when she received the message, the Facebook account was named ‘Nick Athans’, although she could not remember the exact spelling.[143] This was the first communication she received from this account.[144] RF sent a message to the user saying: “Nikky?? oh fuck yeah chill as”.[145] She said this message was in reference to a person by the name of ‘Nikky’ who had made an unkind comment on RF’s post in the Summer City event Facebook page.[146] RF said the user sent her a friend request.[147] She scrolled through the Facebook account of ‘Nick Athans’, and saw photographs of a male disc jockey, the same male with friends, and birthday messages posted for his birthday.[148] In evidence, RF was shown the Facebook profile of Nick Papia (in Exhibit P11 at page 1), and she said that the same photograph was on the ‘Nick Athans’ Facebook profile in 2016.[149] She accepted the friend request from the Facebook account of ‘Nick Athans’. She then received messages: “Let me know when you want tickets gorgeous z”, “x”, “They’re selling heaps quick so get them ASAP Xx”, to which she replied: “... yes will do, how much? Xx”.[150] She received a reply: “They’re $15 each! (Smiley emoji)”, “Snapchat me?”, “NickAthansAUS”, “xx”.[151] She said: “thank you. Ok, easy xx”.[152]
[142] T 173, Exhibit P2, p 1.
[143] T 174.
[144] T 174.
[145] T 173, Exhibit P2, p 1.
[146] T 172-174.
[147] T 175.
[148] T 175.
[149] T 175-176.
[150] T 176, Exhibit P2, p 2.
[151] T 177, Exhibit P2, p 3.
[152] Exhibit P2, p 3.
In December 2016, RF had a Snapchat account in the name of ‘[RF]’[153]. She added the username ‘NickAthansAUS’ and the person using the account accepted.[154] They had a general conversation during which the user sent her a message: “Feeling a bit cheeky, are you”.[155] She said she did not reply to this message.[156]
[153] T 177.
[154] T 177.
[155] T 178.
[156] T 178.
RF said that on the following day, she had another ‘general conversation’ with the user of the same Snapchat account. She sent a message: “Hey how are you”, to which she received a reply: “Feeling a bit cheeky are you”.[157] She said she responded: “No I'm not cheeky”.[158] The person asked her what she was doing that night to which she responded: “Going out with my mum”.[159] She then received a photograph of a car stereo with a caption asking if she would like to go for a drive.[160] She could not see the person’s face in the image.[161] RF said that about 30 minutes later, she received another photograph with a caption: “If you send me something I will give you free tickets”, to which she responded: “I don't need tickets, I have money”.[162] RF said she received an image around the same time of a person’s penis, which was displayed on her screen for 10 seconds.[163] She said she could see an exposed penis and the person’s underwear was pulled down to this knees.[164] She said the underwear was dark in colour but she was unsure of the brand of underwear. She thought they had a thick band around the top with writing on the band but she was unsure of what it said.[165] She described them as ‘normal jocks’, with a leg to the jocks, but that they were not boxer-shorts.[166] RF said she could not see the person’s face nor could she identify anything else in the image as being familiar.[167]
[157] T 178.
[158] T 178.
[159] T 178.
[160] T 178-179.
[161] T 179.
[162] T 179.
[163] T 179, 182.
[164] T 179.
[165] T 179-180.
[166] T 180-181.
[167] T 186.
As to the person’s room, RF said she could see a cupboard in the background, and a mirror and a desk. The desk had a television and laptop computer on top of it, and was positioned at the end of the bed.[168] She drew a plan of the layout of the bedroom.[169] She could not recall anything about the appearance of the bed. She described the desk as a ‘plain desk’.[170] She said the television was a medium size but she could not describe its brand or type. She could not recall whether the laptop was to the left of the television.[171] She described the wardrobe as dark in colour with multiple different coloured browns, as if it had been stained, with a mirror in the middle.[172] She said that she had never been inside the bedroom of Nick Athans.[173]
[168] T 181.
[169] T 181, Exhibit P18.
[170] T 181.
[171] T 182.
[172] T 182.
[173] T 186.
RF said she did not reply to the message and she did not receive any further messages from the Snapchat account or Facebook account of ‘Nick Athans’.[174] RF said that before having received the explicit image, she received a photograph of a face, although she could not recall the exact date or over which social medium she received the photograph.[175] She recalled seeing the side of a person’s face in the photo. The person had black hair which was shorter on the sides and had chubby cheeks.[176] She said the person in this photograph was the accused, whom she recognised from pictures on his Facebook profile which she had viewed earlier.[177] She could not recall whether there was any text associated with the image.[178]
[174] T 182.
[175] T 182, 183.
[176] T 182.
[177] T 182.
[178] T 182.
RF first told her older brother about receiving the explicit image.[179] She agreed that she told KW on Facebook Messenger that ‘the guy hosting (the Summer City event) is some weirdo, sending me nudes’,[180] but she said that KW was not the first person she told about it.[181]
[179] T 184.
[180] Exhibit P3.
[181] T 183-184.
Count 3 - KW
It is alleged that the accused on 16 January 2017 procured KW to submit to sexual activity, namely viewing one, or all, of a series of images depicting a penis beneath underwear or exposed and viewing a sexual meme.
KW was born on 11 August 2002.
In January 2017, KW ‘liked’ the Yeah Hard Entertainment page on Facebook. She clicked ‘going’ on the Facebook event for Summer City.[182] The promotional poster/image had appeared in her Facebook newsfeed a week or so before the event, which was held on 18 January 2017.[183] She attended the event.[184]
[182] T 189.
[183] T 189.
[184] T 189-190.
A couple of days prior to the Summer City event, KW received a message from the Facebook account of ‘Nick Athans’ asking if she was coming to his party (although the Facebook account appeared as ‘Nick Christos’ at the time the messages were photographed on 23 January 2017).[185] She accepted the message request and replied that she was attending the event.[186] KW said that she added the account of ‘Nick Athans’ as a friend on Facebook.[187] She then received a message from the ‘Nick Athans’ Facebook account: “Have you got tickets yet?”.[188] She replied that she did not have tickets because she ‘got stood up’ when she went to buy them.[189] The person asked her to “Snapchat me” and provided her with a Snapchat account of ‘NickAthansAUS’.[190] She said that she added the account within minutes.[191] Her Snapchat username was “[K]”.[192]
[185] T 190-192.
[186] T 190.
[187] T 192.
[188] T 193.
[189] T 194.
[190] T 194.
[191] T 194.
[192] T 194.
KW said that on 16 January 2017, she received a message of a blank screen on Snapchat from the account of ‘NickAthansAUS’.[193] She said that a couple of hours later,[194] she received an image of a person driving with the caption: “Driving home”.[195] KW said she could not see the person’s face.[196] She said she then received a meme that said: “When you want some head so you jet ski out in the middle of nowhere and you tell her to suck it or swim back”.[197] She replied: “Oh”.[198] The person sent her a question mark, to which KW replied: “I think it’s a bit odd because of my age and you’re a lot older than me”.[199] The person ignored her.[200] KW said she thought she had offended the person and that she was not going to be able to go to the party, so she apologised.[201] She received a message saying: “Do you want free tickets?”[202] She replied: “yes”[203] and she received a message asking: “What will you do for me?”[204]
[193] T 194-195.
[194] T 195.
[195] T 194-195.
[196] T 196.
[197] T 194.
[198] T 201.
[199] T 201.
[200] T 201.
[201] T 201.
[202] T 202.
[203] T 202.
[204] T 202.
KW said that later that night, a couple of hours after having received the jet ski meme, she received two ‘snaps’ of images from the same Snapchat account. She said the first image was of a person ‘laying down in bed with the quilt off him but his underwear still on’. The person was holding his erect penis through his underwear.[205] She could not see an exposed penis in the first image.[206] The next image was of the person’s exposed penis.[207] KW said she could see the person’s legs and his exposed erect penis, including pubic hair.[208]
[205] T 203-204.
[206] T 203.
[207] T 196, 204.
[208] T 203-204.
KW said that there was a small flat screen television on a stand at the foot of the bed, although she could not see anything else on the stand.[209] She could not see the bed frame.[210] She said the bedcovers were black or grey.[211] She described the person’s underwear as grey with a white band with no name, and she said they were like tight shorts.[212]
[209] T 202-203.
[210] T 202.
[211] T 202.
[212] T 203.
KW said that after having received the explicit images, she did not respond.[213] She only saw the images for a few seconds because she ‘skipped’ them away.[214] She said she received messages from the Facebook account of Nick Athans on the following day about tickets.[215]
[213] T 204.
[214] T 204.
[215] T 196, 204-205.
In cross-examination, KW agreed that she initially told police that she received the meme after the explicit photographs, and it was not until her second statement to police that she said that she first received the meme.[216] She agreed it was possible that she used cannabis on the day she received the explicit photographs and meme.[217] She agreed she was unable to see the face of the person in the two penis photos, and there was nothing in the background that was familiar to her.[218]
[216] T 211-212.
[217] T 212.
[218] T 213.
KW agreed that on 16 January 2017, RF told her that she had received ‘nudes’ from the host of Summer City.[219] KW said that she thought the messages between her and RF occurred after she received the image of a person driving, but before she received the meme and explicit photographs.[220]
[219] Exhibit P3, p 2.
[220] T 208.
KW attended the Summer City event on 18 January 2017.[221] She said that she recognised the DJ at the event as the person shown on the Facebook profile page of the account ‘Nick Athans’.[222]
[221] T 206.
[222] T 206-207.
KW said the first person to whom she spoke to about the meme and explicit images was her mother.[223] She thought she did so on the same day she received them, or on the next day.[224] She said she told her mother that a promoter for the Summer City event or party had been messaging her and had sent her a ‘dick photo’.[225] She could not recall having shown her mother any of the messages or images she had received from the person.[226]
[223] T 209.
[224] T 209.
[225] T 209.
[226] T 209.
RD gave evidence.[227] She said that about four years ago, when KW was 14 years old, KW told her about some messages she had received on Snapchat.[228] RD agreed KW went to an under-age event called ‘Summer City’ in January 2017.[229] She said KW told her about the messages in the days leading up to the event.[230] RD said that she saw the messages and a couple of images on KW’s mobile telephone. She said that KW showed her the messages when she was in bed with her son, after she had fallen asleep reading him a bedtime story.[231] Her son was two or three years old at the time.[232] She said he would usually go to bed around 8.30-9.00 pm.[233] She said she was half asleep and she brushed off the messages at first as she did not realise what KW was showing her.[234] She put her hand over the phone to cover it and said: “Err. Do not show me that” and “I do not want to see. Delete it [K], don't reply to it, don't acknowledge it”.[235] RD said she saw a person’s body and a penis. She described it as a ‘dick pic’.[236] She said KW told her that someone had just sent it to her. She initially thought it was just some ‘young punk’ around KW’s age.[237]
[227] T 214.
[228] T 214.
[229] T 214.
[230] T 214.
[231] T 214.
[232] T 215.
[233] T 215.
[234] T 214.
[235] T 214-215.
[236] T 215.
[237] T 215.
RD said that after she got out of her son’s bed, she went outside to smoke.[238] KW approached her at around 10.30 to11.00 pm and they had a conversation.[239] She said it was late and very dark outside.[240] She said KW told her the photos were sent to her on Snapchat by a ‘promoter guy’ from the event.[241] She said KW said the person had sent her messages asking her if she had tickets to the event yet, and if not, he could give her tickets.[242] She said he then asked KW to add him on Snapchat, as he had searched for her on Snapchat but could not find her.[243] She said KW said she added him on Snapchat and then received the explicit images.[244] She said KW showed her a ‘picture message’ of a female on a jet ski.[245] She couldn’t remember the exact wording, but she said it depicted women poorly.[246] RD said that she called Crime Stoppers for advice, and she and KW then went to the police station.[247]
[238] T 215.
[239] T 216.
[240] T 216.
[241] T 216.
[242] T 216.
[243] T 216.
[244] T 216.
[245] T 216.
[246] T 216.
[247] T 217.
In cross-examination, RD said she saw the picture of the jet ski meme before her conversation outside with KW.[248] She conceded that she may not have a good recollection of detail due to the time which had now passed.[249] She conceded that she could not say exactly when her son went to bed that night, but she said it would have been around 8.00 to 8.30 pm.[250] She disagreed that it would have been earlier or from 8.30 to 9.00 pm.[251] As to the image of a penis, she agreed that the penis was exposed and pulled out of a pair of jocks, which she said was like ‘brief jocks’.[252]
[248] T 217.
[249] T 217.
[250] T 217.
[251] T 218.
[252] T 218.
Count 4 - BD
It is alleged that the accused between 12 and 15 July 2017 procured BD to submit to sexual activity, by viewing one, or all, of a series of images depicting a penis beneath underwear or exposed, and by sending sexually explicit text messages.
BD was born on 16 February 2001.
During the evening of 13 July 2017, and into the early hours of the following morning, BD received a series of unsolicited messages from a Snapchat account named ‘Nick Athans’.[253] BD took screenshots of the messages.[254] However, she conceded that that her screenshots were not a complete record of the messages.[255]
[253] T 223-224.
[254] Exhibit P5.
[255] T 246.
BD received a message which said: “Oh heyyy x”, “So ... (smile and devil emojis)”, “What are you doing?”, “We should hang”, “I’m so bored right now x”.[256] She responded: “I'm so sleepy haha”, to which he replied: “I’ll make it worth while though .. (winky or smirk emoji)”. She then responded: “But like sleep”.[257] BD then received a message saying: “9 and a half inches though.. (devil emoji, tongue emoji)”, to which she replied: “Are u sure”.[258] She then received a message: “Do you want me to show you”. She responded: “Are you sure it’s not like 7”.[259] BD then received messages saying: “I just have to make sure I eat your tight wet pussy until you cum and squirt all over my face, to make sure you’re nice and wet (smirk emoji, devil emoji)”, “Its 9”, “9 and a half inches”, “I’m 6 foot 3, size 14/15 shoes (smirk emoji)”, “If you don’t believe me I’ll show you Gaga”, “Haha”.[260] She responded by saying “Bahaha nah all G” which she explained meant ‘all good’.[261] The person then sent her a messages saying: “Missing out hard”, “Are you keen or na?”, “Like even to hang another time? Haha”, “Do you want me to leave you alone?”.[262] BD said that she responded by saying something like “na that’s all good” or “All good, I’m just tired”, although that response was not saved by her.[263] The person then wrote: “Oh yeah. Good excuse, if you don’t text me you won’t come see me DJ at Red Square (wink emoji, devil emoji)”, to which she replied “I’m too young to see you there”.[264] The person then sent a message saying: “No one has to know that”, to which she replied: “I can't get in otherwise haha”.[265] The person then sent messages saying: “Can’t you”, “Oh forgot”, “I don’t DJ here or anything. I can’t just walk whoever I want in … (smirk emoji)”, “You know you didn’t have to lie yea”, “You could have just said no to texting me”.[266] BD said she would have replied with something along the lines of ‘No, all good’, but she did not save any other chats between herself and the user.[267]
[256] T 223, Exhibit P5, p 1.
[257] T 224, Exhibit P5, p 1.
[258] T 224, Exhibit P5, p 1.
[259] T 224-225, Exhibit P5, pp 1-2.
[260] Exhibit P5, p 2.
[261] T 225, Exhibit P5, p 2.
[262] Exhibit P5, p 2.
[263] T 225-226, 251.
[264] T 226, Exhibit P5, p 3.
[265] T 226, Exhibit P5, p 3.
[266] T 226; Exhibit P5, p 3.
[267] T 226.
BD agreed that a person can now delete a chat on Snapchat, however she said that this function was not available at the time of the conversation.[268] BD also said that if a chat is deleted by a party, a notification is sent that it was deleted to the other party.[269]
[268] T 252.
[269] T 252.
BD said that she does not know how the person using the Snapchat account of ‘Nick Athans’ came to contact her.[270] She agreed that any Snapchat user could send her a message by clicking on her profile,[271] and a person would be able to find her Snapchat account through her Tinder profile.[272] BD said that after she received the Snapchat messages, she looked through Facebook to see if she could find anything on a person ‘Nick Athans’.[273] She saw photographs of a person purporting to be Nick Athans on Facebook.[274] Some of those photographs are shown on the Facebook profile of ‘Nick Papia’ in Exhibit P11.[275]
[270] T 226.
[271] T 227.
[272] T 245.
[273] T 227.
[274] T 229.
[275] T 229.
BD agreed that the person sending the Snapchat messages is recorded in her account as ‘x Nick Athans’.[276] She agreed that you can edit someone’s username on Snapchat so that it can display something different than the username of the sender.[277] She said that she added an ‘x’ in front of all her friends, and that she had a practice of doing so.[278]
[276] T 226-227, Exhibit P5.
[277] T 227.
[278] T 267-268.
BD said that on 13 July 2017, she received a video on Snapchat which panned quickly from a person’s face to a road, indicating that the person taking the video was driving or in a moving vehicle.[279] The flash was on and the person had his face in the video for a second.[280] The camera taking the video switched from the front camera to the back camera and the video was then of the road.[281] She opened the video prior to opening the Snapchat messages, but she was unsure which she received first.[282] She said the person initially shown in the video was same person purporting to be Nick Athans on Facebook (and as shown in Exhibit P11).[283]
[279] T 228.
[280] T 228-229.
[281] T 228.
[282] T 228-229.
[283] T 229.
In the early hours of 14 July 2017, BD received two explicit images from the Snapchat account of ‘Nick Athans’. This was during the same period that she was sending and receiving messages from a person using this account.[284] She did not save the images.[285] The first image was of a person’s non-erect penis in blue Calvin Klein underwear.[286] The underwear was pulled down just under the person’s genitals.[287] The penis was exposed and the person was holding it with one hand, although she was not sure which hand.[288] She described the underwear as ‘electronic blue’ in colour, with a white waistband which contained the words ‘Calvin Klein’.[289] The image was taken with the flash on and the penis was highlighted by the flash.[290] The person who took the photograph was holding his penis to the side.[291] BD could not see anything in the background.[292] As to the second image, the person who took the photograph was again holding his exposed erect penis.[293] BD could not recall any text on the images.[294] She said she looked at the first image for two seconds before she ‘skipped’ it, and the second image for not even a second.[295]
[284] T 229-230.
[285] T 230.
[286] T 230.
[287] T 230.
[288] T 230.
[289] T 230.
[290] T 230-231.
[291] T 230.
[292] T 230.
[293] T 231.
[294] T 231.
[295] T 232.
BD said both images were received after she said: “Bahaha nah all G” and before the person replied: “Missing out hard” in the messages.[296]
[296] T 231-232.
In cross-examination, BD did not accept that she previously told police that the images arrived before the “Bahaha nah all G” message and that this message was a response to the pictures.[297] She agreed that she told police in her statement of 1 September 2017 that the person sent her two or three photographs.[298] She said she was now sure that she received two photographs, but at the time of providing the police statement, she was not sure.[299] She agreed that she could not see the face of the person who was taking the photographs of the explicit images nor were there any identifying features that allowed her to recognise the person.[300]
[297] T 247.
[298] T 249-250.
[299] T 250.
[300] T 261-262.
On 2 August 2017 from 6.33 pm, a person using the Facebook account ‘Nick Anthems’ sent BD a series of messages.[301] She replied to some of the messages but agreed that she did not save all of her replies.[302] The user spoke about being defamed.[303] She agreed that she and a few other girls had posted some comments about Nick Athans which were ‘not nice’ in the ‘Adelaide Memes for Burnside Teens’ Facebook group.[304] The user wrote: “I’ve been essentially defamed for nothing and fired from a position I worked so hard to get … for nothing”, to which BD responded: “Oh yeah you know, sending dick pics of your 9 and a half inch to 16 year olds and now denying it saying you were hacked whilst you’ve had a girlfriend this whole time. Yeah nothing”.[305] BD explained that her response was a reference to the explicit images she received on 13 and 14 July 2017.[306]
[301] T 232, Exhibit P6.
[302] T 236.
[303] T 237, Exhibit P6, p 8.
[304] T 237.
[305] T 237-238, Exhibit P6, p 8.
[306] T 238.
In cross-examination, BD agreed that she had not saved the entire conversation of 13 and 14 July 2017. However, she said that she did not delete any messages before taking screenshots of them, nor did she deliberately withhold any messages from the police.[307]
[307] T 266.
BD agreed that before 13 July 2017, DN had mentioned the name Nick Athans, and told her that he was a disc jockey and he was to host the [ ] School Formal after party.[308] She said they discussed the ‘poor’ afterparty following the event.[309]
[308] T 222.
[309] T 222-223.
BD said that the first person she told about the explicit images was DN.[310] She did so on Facebook, firstly through the ‘Adelaide Memes for Burnside Teens’ group chat and then in private messages.[311] BD said that DN posted something in relation to Nick Athans on the ‘Adelaide Memes for Burnside Teens’ Facebook page and BD responded by saying: “He sent me multiple dick pics I feel victimised”.[312] This comment was posted on 1 August and was BD’s first comment in the Facebook group.[313] She posted a further comment on 6 August saying: “I regret not screenshotting his 10 snaps of his ‘hard’ ‘not hard’ and my personal favourite ‘side angle’”.[314] She said she was referring to the two explicit images she had received on Snapchat. She said the comment about 10 images was an exaggeration, which she did for fun.[315]
[310] T 239, 242.
[311] T 242.
[312] T 242-243, Exhibit P48.
[313] T 243, Exhibit P47.
[314] T 243, Exhibit P47.
[315] T 243.
Uncharged acts – EW
EW was born on 24 April 2000.
On or around 1 April 2017, EW received a screenshot on Facebook Messenger from her friend SK.[316] The messages were in relation to organising a venue for the [ ] School Formal after party.[317] The formal was to be held on 29 July 2017. The messages contained a phone number, which EW added to her contacts under the name ‘Nick Athens’.[318] She did not know at the time how to spell his name, but made an educated guess.[319] A few days later, a meeting was arranged with Nick Athans on Facebook or by text message to discuss the after party.[320] EW could not recall exactly who contacted him to organise the meeting, however, she thought it could possibly have been in a group chat with herself, SK, DL and Nick Athans.[321] She and DL met the accused at a coffee shop in Norwood, where they spoke for three hours about the event.[322] EW identified the accused in court as the person she met with and knew as Nick Athans.[323] They decided that afternoon that they would use the accused’s services.[324]
[316] T 291, Exhibit P13.
[317] T 289-290, Exhibit P12, p 1.
[318] T 291, Exhibit P12, pp 1-2.
[319] T 291.
[320] T 292.
[321] T 292.
[322] T 292.
[323] T 293.
[324] T 294.
At the end of the meeting, the accused said he could show them potential venues, which included a Christmas tree farm in the Adelaide Hills and a caryard garage in Wingfield.[325] From 4.00 to 6.00 pm, they attended venues, before returning to Norwood.[326]
[325] T 293.
[326] T 294.
EW gave evidence that the accused created a Facebook group chat named ‘Kings AP’ in which members of the organising committee spoke to him every day or couple of days about the event.[327] EW could not locate any record of this chat on her mobile telephone as she had left the group and deleted the group chat as she was upset with how the formal after party had turned out.[328] There was also a Facebook group chat with EW, SK and the accused, which was created by SK.[329]
[327] T 294.
[328] T 295.
[329] T 295, Exhibit P12.
As to organising the after party, EW said that the accused set the prices and advertised it on Facebook.[330] He also created a consent form for the event for people to have signed by a parent, agreeing to their child drinking alcohol at the event.[331] Along with the consent form, attendees were required to provide their money in an envelope, or transfer money into the accused’s bank account.[332] She said they would collect a certain number of envelopes and meet up with the accused regularly, and provide him with the consent forms and money they had collected.[333]
[330] T 297.
[331] T 297.
[332] T 297.
[333] T 298.
On the night of their first meeting at a coffee shop,[334] EW said she and the accused talked privately on Snapchat.[335] EW said she received a request from the accused on Snapchat after she had returned home from their meeting.[336] She received the Snapchat request at around 8.00 pm.[337] EW said she did not give the accused the details of her Snapchat account.[338] She had provided him with her telephone number.[339] EW said she believed that the accused added her once her telephone number was added to his contacts, because the request said ‘Added from contacts’.[340] EW had not previously communicated with the accused via Snapchat.[341]
[334] T 298-299, 313-314.
[335] T 295.
[336] T 298-299.
[337] T299.
[338] T 298.
[339] T 300.
[340] T 298.
[341] T 299.
She said the accused sent her a ‘snap’ of himself, in which she could see his face. EW said she could only see half of his face.[342] He was sitting at the end of his bed, and she could see the wall behind him, as well as a wooden bedframe.[343] She replied with a snap of her drinking milk from the carton, and they continued to communicate with each other with about four or five messages sent each way.[344]
[342] T 300.
[343] T 300-301.
[344] T 300.
EW could not recall the name of the Snapchat account from which she received the photograph because it had the name under which she had saved the accused in her contacts.[345] She said this would have been ‘Nick Athens’.[346]
[345] T 301, 311-312.
[346] T 301, Exhibit P12, p 2.
EW said she received another snap from the same account about a minute or two later, which was a photograph taken from a person’s chest, with the camera facing away from the body and which showed a male body in navy blue jocks.[347] There was writing on the image, but EW said she did not read it as she did not want to look at the image and she wanted to get rid of it.[348] She said the image was displayed for about one second and she did not look at it for very long.[349] She said the person was in bed, and there was a navy blue fitted bottom sheet and a grey navy blue and little white line chequered doona.[350] The person had a larger body and was very hairy, with hair on his legs and stomach.[351] He had an olive complexion.[352] He was wearing navy blue, tight fitting boxer shorts which she said resembled bike shorts.[353] She believed they had a black waistband and she did not see any writing on any part of the underwear.[354] EW said she could see the outline of the person’s genitals through the bike shorts, and his penis was not erect.[355] She could not see the face of the person in the photo.[356] EW said that she could see a wooden bed frame ‘like a big wooden plank and a little ball or a sphere on top on each of the two stools’.[357] She said she could also see a wooden chest of drawers with a plasma screen TV on top of it.[358] She said the bedhead was a dark wood, and she believed the chest of drawers was also this colour.[359] The television was situated directly at the foot of the bed and straight ahead of the person’s legs.[360]
[347] T 301.
[348] T 301.
[349] T 301.
[350] T 301-302.
[351] T 302.
[352] T 302.
[353] T 302.
[354] T 302-303.
[355] T 303.
[356] T 315.
[357] T 301-302.
[358] T 302, 304.
[359] T 316.
[360] T 302.
After having received the photograph, EW said she removed the account from her Snapchat.[361] There were further meetings between EW and the accused following this Snapchat exchange during which they did not discuss what had had happened.[362]
[361] T 304.
[362] T 304.
In cross-examination, it was suggested to EW that in her statement signed on 20 May 2019, she said she received the explicit image on 25 May 2017, after the accused collected her, DL and SK from school so they could see a venue at Wingfield.[363] EW explained that she was not really sure when it took place, but she now believed it was after they went to Wingfield.[364] She said she was confused because they went to look at venues in his car on two occasions, and she knew that she received the explicit image after one of those occasions[365]
[363] T 312-313.
[364] T 313-314.
[365] T 314.
EW agreed that she had never been inside Nick Athans’ bedroom.[366]
[366]T 315.
EW also gave evidence of an occasion about a month or two before the [ ] School Formal when she and SK met up with the accused to give him some consent forms, and he suggested that they all go out for dinner to acknowledge their hard work.[367] She could not recall the exact date this occurred.[368] EW said they went to a restaurant on Rundle Street and she drove them there.[369] SK was seated in the front seat and the accused was in the back seat.[370] On the way there, the accused spoke about a 16th birthday party in November 2016, at which he was the disc jockey and which EW had attended as a guest.[371] EW said that the accused told her that she was drunk and that she had wanted to give him sexual favours.[372] EW said that the accused also asked her and SK which of them wanted to ‘fuck him’, to which they both said ‘no’.[373] EW said that she and SK tried to change the conversation but the accused kept trying to discuss sexual matters, so they ended sitting in silence.[374] EW disagreed with the suggestion that there was no discussion of any inappropriate sexual matters in her car that evening.[375]
[367] T 317.
[368] T 316.
[369] T 305, 317.
[370] T 305, 317.
[371] T 305.
[372] T 305, 304.
[373] T 305, 318.
[374] T 318.
[375] T 317.
On 2 August 2017, EW received a message on Facebook Messenger from a person using the account ‘Nick Papia’ asking her to call him.[376] EW said that she had previously communicated with the accused on a Facebook account in the name of ‘Nick Anthems’. She assumed he had changed its name to ‘Nick Papia’ as he was able to message her straightaway so they must have been ‘friends’.[377] This exchange took place after the [ ] School Formal. She told him she did not want to talk to him.[378]
[376] T 308.
[377] T 308.
[378] T 308.
In cross-examination, EW was shown a photograph of Facebook messages from the ‘Nick Anthems’ account.[379] She agreed the accused sent her a message saying: “I told all of you where I had to go, I was DJ’ing elsewhere at 1. I told DL I was leaving whilst she was on stage”.[380] EW responded: “SK and I were never informed you wouldn’t be there”.[381] She agreed that the contents of the message were consistent with the accused needing to be elsewhere before the police turned up to shut down the after party and was consistent with his absence when the police arrived.[382]
[379] T 309, Exhibit D24.
[380] T 310, Exhibit D24.
[381] Exhibit D24.
[382] T 310-311.
SK also gave evidence. She said that in 2017, she was 16 years old and in year 11 at [ ] School.[383] In early 2017, she had discussions with EW and DL about organising an after party for the year 11 formal.[384] SK said she used her Facebook account to message an account in the name of ‘Nick Athans’ to see if he had a venue for an after party.[385] There was no response to her message, so she thought it was the wrong account. She sent another message to a Facebook account called ‘Nick Anthems’.[386] She said she looked through the ‘Nick Anthems’ account before sending the message and she saw photographs of a disc jockey including as a profile photograph.[387] She said that same account had been re-named ‘Nick Papia’ by 3 July 2017, when screenshots were taken of the messages.[388] She sent a message to the ‘Nick Anthems’ account explaining that she was talking to other hosts.[389]
[383] T 319.
[384] T 319.
[385] T 319.
[386] T 320.
[387] T 321.
[388] T 320.
[389] T 321.
About a week after her messages to the Facebook account of ‘Nick Athans’, a person called ‘Kimmy’ replied to her message and said Nick Athans was not on Facebook. She also received a message from ‘Kimmy’ promoting ‘Nick’ as the best in Adelaide. ‘Kimmy’ provided her with a phone number [ 835] to contact him.[390]
[390] T 320-321, Exhibit P13.
She replied that she would talk to him soon.[391]
[391] T 322.
SK said that she sent a message to the mobile telephone number and received a reply from ‘Nick’ saying he could help them find a venue.[392] She agreed that a group chat named ‘After Formal Party’ was established on Facebook shortly before 14 May 2017.[393] The group members were herself, EW, DL and the accused.[394] She said the accused later sent the group chat another telephone number for him, which may have ended in 222.[395]
[392] T 322.
[393] T 324.
[394] T 324.
[395] T 322-323.
SK said that she met the accused about three or four times.[396] As to the first time she met him, SK said she, EW and the accused went to look at warehouses in Wingfield. She said they all met up in a car park near Foodland in Norwood and they drove to look at potential party venues.[397] She said this meeting occurred at the end of April, and maybe a month and a half before the formal in July 2017.[398]
[396] T 325.
[397] T 325.
[398] T 325.
SK said that her second meeting with the accused was with EW to drop off consent forms and money so he could pay a deposit for the event.[399] She believed that on this occasion they travelled in EW’s car to the city to have dinner.[400] She thought the accused made a comment like “Which one of you wants to fuck me?”.[401] She said that she and EW were ‘weirded out’ by his comment.[402] She could not remember the detail of any subsequent meeting with the accused.[403]
[399] T 327.
[400] T 328.
[401] T 328.
[402] T 328.
[403] T 328.
On 29 July 2017, SK arrived at the after party venue at about 10.30 or 11.00 pm.[404] She said the accused was already at the venue when they arrived.[405] She said the accused told them on the night that he would have to leave early at around 12.30 or 1.00 am for another work commitment.[406] She said that at around 1.30 or 2.00 am, the police attended and shut the party down.[407] She said she did not see the accused following the arrival of police.[408] As to any Facebook contact she had with the accused on the night of the formal, SK believed she sent him a message after the police arrived asking him where he was, but she did not think she ever received a response.[409]
[404] T 328.
[405] T 328.
[406] T 328-329.
[407] T 329.
[408] T 329.
[409] T 331.
SK said that on the night of the formal, she saw messages from DN[410] which had been forwarded to the after formal party group chat by the accused.[411]
[410] Exhibit P25, p 211.
[411] T 332.
As to the Facebook account ‘Nick Anthems’, SK sent a message to the accused on 26 July 2017 asking for his bank account details, which he provided.[412]
[412] T 331, Exhibit P13, p 5.
Police Investigation
Detective Turtle commenced an investigation into some of the allegations on 19 January 2017, after RD contacted the police.
Detective Turtle interviewed the accused on 19 January 2017.[413] The accused was not arrested at that time. During the interview, the accused said that he owned the business ‘Yeah Hard Entertainment’ which promoted underage events, and that he worked as a disc jockey.[414] He said Yeah Hard Entertainment has a public Facebook page.[415] He said that he also had a personal Facebook page in the name of ‘Nick Anthems’.[416] He said that he used the Yeah Hard Entertainment Facebook page to promote all the events because he did not want to use his personal profile.[417] He said all his personal sales were made from the public Facebook page.[418] He told others to message him on the Yeah Hard Entertainment Facebook page. The accused agreed that to his knowledge, other persons do not use his personal Facebook account.[419]
[413] T 338, Exhibit P29.
[414] Exhibit P29, Exhibit P29A, pp 3-4.
[415] Exhibit P29, Exhibit P29A, p 7.
[416] Exhibit P29, Exhibit P29A, p 7.
[417] Exhibit P29, Exhibit P29A, p 7.
[418] Exhibit P29, Exhibit P29A, p 8.
[419] Exhibit P29, Exhibit P29A, p 8.
The accused agreed that he had two Snapchat accounts: one called Nick Athans for personal promotion and his work as a disc jockey, and the other called Yeah Hard Snapchat.[420] The login details of the latter account was known to two other persons.[421] The accused said that he had not logged into the Nick Athans Snapchat account for a while.[422] He denied using Snapchat to send an explicit image or a meme to a 14-year old girl (KW).[423] He denied he had the Snapchat or Facebook applications on his mobile telephone, but rather he accessed them through the Safari browser.[424] He agreed he promoted an event called Summer City on the previous day, 18 January 2017.[425]
[420] Exhibit P29, Exhibit P29A, p 9.
[421] Exhibit P29, Exhibit P29A, p 10.
[422] Exhibit P29, Exhibit P29A, p 10.
[423] Exhibit P29, Exhibit P29A, p 10.
[424] Exhibit P29, Exhibit P29A, p 14.
[425] Exhibit P29, Exhibit P29A, pp 16-17.
At that time of the interview, the police had not taken a statement from any of the complainants. Police did not seize the accused’s mobile telephone.[426] After the interview, police continued their investigations. A statement was taken from KW on 23 January 2017.[427] On that date, police also took photographs of Facebook messages on KW’s mobile telephone.[428]
[426] T 66.
[427] T 66.
[428] Exhibit P1.
Detective Turtle took a statement from RF on 1 February 2017.[429] He also took some photographs of Facebook messages on her mobile telephone.[430]
[429] T 67.
[430] Exhibit P2.
On 7 February 2017, Detectives Turtle and De Silva attended at the accused’s home in Ridleyton.[431] A floorplan was produced of the premises.[432] Police searched a bedroom which was marked bedroom 3 on the floor plan. They also took photographs of the bedroom.[433] Inside the bedroom, police located a desk and computer which was situated against a wall at the foot of a bed.[434] When facing the desk, there are brown curtains to the left of the desk.[435] When facing the bed, it is in the centre of the room with a bedside table to the left side of the bed. A mobile telephone was retrieved from the top of the bedside table and seized by police.[436] It was an Apple iPhone 6S with a front and rear camera.[437] There was a chest of drawers with a mirror on top situated alongside the right-hand wall of the room. The accused’s brother was also at the premises. He came out from another bedroom, marked bedroom 1 or 2 on the floor plan.[438]
[431] T 68.
[432] Exhibit P30.
[433] Exhibit P4.
[434] T 70-71.
[435] T 70.
[436] T 72.
[437] T 339.
[438] T 73.
Later that day, the accused was arrested and charged with criminal offences.[439] An arrest photograph was taken of the accused which recorded his height as about 1.95 metres or 6 foot 3 inches.[440] The accused was released on a bail agreement of which it was a condition that he not use Facebook, Facebook Messenger, Snapchat or any other social media communication application. It was also a condition that he not engage in any child related work activities.[441]
[439] T 74.
[440] Exhibit P39.
[441] Exhibit P28.
Following the [ ] School Formal after party on 29 to 30 July 2017, police officers stationed at the licensing enforcement branch of the South Australia Police attended at the accused’s home address in the suburb of Ridleyton on 10 August 2017.[442] Police searched the same bedroom that was searched by Detective Turtle on 7 February 2017.[443] In the bedroom, police located at least three pairs of male underwear on the floor and chair within the bedroom. All underwear located was of a boxer/trunk style with waistbands.[444] Photographs were taken of the bedroom on 10 August 2017,[445] and of an invoice for disc jockey services which were taken from the family computer located near the dining area of the house.[446] A video of the search was also made at the time, and still images were taken from the video.[447] The chest of drawers which had previously been alongside the right wall was now situated to the right-hand side of the desk.
[442] Exhibit P40, Agreed Facts, para 13.
[443] Exhibit P40, Agreed Facts, para 14.
[444] Exhibit P40, Agreed Facts, para 15.
[445] Exhibit P40, Agreed Facts, para 16, Exhibit P37, pp 1-18.
[446] Exhibit P40, Agreed Facts, para 16, Exhibit P37, pp 19-23.
[447] Exhibit P38, Exhibit P40, Agreed Facts, para 17.
On 1 September 2017, Detective Turtle obtained a statement from BD.[448] He took photographs of saved Snapchat conversations with ‘Nick Athans’ dated 13 July to 14 July 2017.[449] On 1 September 2017, BD emailed police screenshots of Facebook messages with ‘Nick Anthems’ dated 2 August 2017.[450]
[448] T 74.
[449] T 74, Exhibit P5.
[450] T 75, Exhibit P6
On 8 September 2017, Detective Turtle took a statement from DN.[451] On that date, she provided police with iMessages received from ‘Nick’ on 3 April 2016.[452] DN also produced Facebook messages with the account of ‘Nick Anthems’.[453] On 12 April 2019, Detective Turtle photographed Facebook messages from the Nick Papia page which were dated from 2 April 2016 to 30 July 2017.[454] He also took photographs of Facebook messages from the ‘DS 101’ group chat.[455] On 16 April 2019, Detective Turtle accessed the Facebook page of ‘Nick Papia’ from which he obtained photographs.[456]
[451] T 74.
[452] T 75, Exhibit P7.
[453] Exhibits P8A and P8B.
[454] T 76-77, Exhibit P9.
[455] T 77, Exhibit P10.
[456] T 78, Exhibit P11.
On 20 May 2019, Detective Turtle obtained a statement from EW, as well as photographs of Facebook messages on her mobile telephone.[457] On 3 July 2019, SK provided police with a statement, and photographs were taken of Facebook messages exchanged with the accounts ‘Nick Athans’ and ‘Nick Papia’ dated 1 April to 1 July 2017.[458]
[457] T 78, Exhibit P12.
[458] T 79, Exhibit P13.
Detective Turtle also recognised the two pages in Exhibit P17 as containing the name of Nick Demasi.[459]
[459] T 344, Exhibit P17.
On 27 July 2020, Detective Turtle spoke with the accused’s brother, Anastasios Athans, and requested that he provide a statement to police. He declined to do so.[460] Detective Turtle described Anastasios Athans as being of Mediterranean appearance, approximately 22 to 25 years of age, and of a slimmer build than the accused. Detective Turtle said that the appearance of the accused’s brother had not changed from when he saw him during the search of the accused’s home in February 2017.[461]
[460] T 345.
[461] T 346.
In cross-examination, Detective Turtle agreed that he did not seize any mobile telephones or electronic devices from the complainants, and he did not organise for those devices to be examined by e-Crime, so that a forensic copy could be made of the content of those devices.[462] He also agreed that when he viewed the ‘Nick Papia’ Facebook profile, there was a post from Nick Papia dated 16 January 2017 at 2.37 pm which stated: ‘Nick Papia is with Emma Field and two others in Murray Bridge, South Australia’.[463]
[462] T 346-347.
[463] T 348, Exhibit D36.
Other investigations - agreed facts
On 16 January 2016, a couple of hours after KW added the Snapchat account to her contacts, she received messages in which the user asked her if she wanted free tickets to the event and “what will you do for me”.
KW also described receiving a ‘snap’ of a person driving with the caption ‘driving home’. Next, she received a meme[571] which said:
When you want some head so you jet ski out in the middle of nowhere and you tell her to suck it or swim back.
[571] Exhibit P20.
Later that night, at about 7.00 pm, she received two explicit photographs: the first was of a person lying down in bed, with the quilt off him, his underwear still on and holding his erect penis; the second was of the same person with his underwear pulled down to his knees and his penis exposed. In both photographs, the person was wearing grey, tight trunk underwear with a white band at the top with no writing on the band. That underwear is consistent with the underwear seized from the accused’s bedroom during the police search in August 2017. Whilst the type of underwear described by KW and found in the accused’s bedroom is a common type of underwear, it is still a feature of the evidence consistent with, and supportive of the accused having sent the explicit image, but I do not place any great weight upon that feature of the evidence for the reasons outlined earlier.
In the background of the photograph, KW said there was a small flat screen television on a stand at the foot of the bed. That description of the room is largely consistent with the accused’s bedroom as shown at the time of the police searches in February and August 2017. Although KW provided little detail as to the layout of the room, as much is explained by her evidence that she only viewed the explicit image for a couple of seconds before ‘clicking’ it away.
The accused also had an interest in jet skis to the extent that his profile photograph on his Facebook page (as at April 2019) depicted him seated on a jet ski,[572] and he was associated with another Facebook post involving jet skis.[573]
[572] Exhibit P11.
[573] Exhibit D36.
KW first disclosed the allegations to her mother. I consider that her complaint supports her credibility as to the fact that she received the explicit meme and explicit images (of which there was no dispute). However, defence counsel submitted that the inconsistency between KW’s evidence that she did not show her mother the explicit images or the meme, and RD’s evidence that she did, undermined KW’s credibility and reliability on other topics, as did her admission that she was smoking cannabis that day. Further, RD described the person as wearing ‘brief jocks’ in the explicit images, not tight-fitting trunks.
I accept the credibility and reliability of KW’s evidence generally, and more specifically that she was originally communicating with the user of a Facebook account named ‘Nick Athans’, that she received the images from a Snapchat account in the name of ‘NickAthansAUS’ and her evidence describing the explicit images. I do not consider that KW’s lack of recall that she showed her mother the explicit images undermined her evidence on other topics, nor the fact she had smoked some cannabis. KW only viewed the images for a short period of time, she understandably did not wish to study them, and she may well have forgotten showing the images to her mother, given that it was common ground between KW and RD, that KW described the nature and content of the images to RD. As to RD’s evidence that she saw brief jocks in the images, that is explained by the fact she waved the images away and only fleetingly looked at them.
Defence counsel also referred to a Facebook post dated 16 January 2017 at 2.37 pm[574] and submitted that if the accused was at Murray Bridge at that time, he was unlikely to be back in Adelaide at about 7.00 pm sending explicit images from his bedroom. However, Dr Wigley gave evidence that the date and time recorded alongside a photograph posted on Facebook is the date and time when it was posted and not necessarily when the photograph was taken. In any event, I do not consider that the accused being in Murray Bridge on 16 January 2017 at 2.37 pm rendered it unlikely that he sent the explicit meme and images from his bedroom at about 7.00 pm the same evening, given the close proximity of Murray Bridge to Adelaide.
[574] Exhibit D36.
I have not overlooked defence counsel’s submission that KW’s account was contaminated by her earlier communications with RF.[575] On 16 January 2017, RF told KW that she had received ‘nudes’ from the host of Summer City. That occurred after KW received the image of a person driving, but before she received the meme and explicit photographs, and before her statement to police on 23 January 2017. There is very little detail in the messages sent by RF to KW about the content of the images. Indeed, it was KW who asked whether the person’s name was ‘Nick’. Further, there was no dispute that KW had in fact received a sexual meme and explicit images the subject of the charge. In those circumstances, it is difficult to ascertain any scope for contamination of KW’s evidence. I have not used the views expressed by RF, and the views expressed on behalf of her brother, in the messages to reason that the accused is a ‘bad person’ or that he is more likely to have committed the offence.
[575] Exhibit P3.
On the evidence directly relevant to count 3, I am satisfied beyond reasonable doubt that the accused was the user of the Snapchat account of ‘NickAthansAUS’, who sent the explicit meme and explicit images of a penis to KW. In reaching this conclusion beyond reasonable doubt, I do not consider it is reasonably possible that any other person, be it Nick Demasi, the accused’s brother, or another person, has set up a fake Facebook page to communicate with KW, or accessed the Snapchat account of ‘NickAthansAUS’ and sent the explicit images. I have excluded that possibility on the basis that the user must have had the ability to source tickets to give away, had a business interest in the event, and known the password for the Snapchat account of ‘NickAthansAUS’. The person must have also had access to a room of a similar layout as the accused and worn similar underwear. Further, the person wanted to ultimately meet up with KW, and in those circumstances, if she had taken him up on the offer, it was inevitable the real identity of the person would be discovered. Given those matters, I do not consider it a reasonable possibility that a person other than the accused sent the explicit images to KW.
For the reasons outlined above, I am satisfied that the accused was the offender. There was no dispute that the other elements of the offence have been proved, and I am so satisfied. Accordingly, I find the accused guilty of count 3.
Count 4
As to count 4, BD was contacted directly on her Snapchat account on 13 July and 14 July 2017. BD said she received unsolicited messages from an account in the name of ‘Nick Athans’. BD saved some of the communications and later took screenshots of them.[576] BD had no previous communications with the account of ‘Nick Athans’ or a person named ‘Nick Athans’ on Snapchat or any other social media platform.
[576] Exhibit P5.
BD received a video clip of a person’s face. The person taking the video then switched to using the rear camera to show the road, indicating that the person was driving or on a drive. BD viewed the video clip for a second. She said the face of the person initially shown in the video was that of the accused. BD also received two explicit images which she did not save. The first image was of an exposed flaccid penis. The person was wearing electronic blue Calvin Klein underwear with a white band on which the brand name was written. The underwear was pulled down just below the genital area. The photograph was taken in a bedroom, but she could only see a bed. In the second image, the person was holding his erect penis. She looked at the first image for about 2 seconds, and the latter image for less than a second.
I am satisfied beyond reasonable doubt that the accused sent the explicit images of a penis to BD for the following reasons.
First, the Snapchat account was in the name of ‘Nick Athans’. The accused admitted in his police interview that his Snapchat account contained his full name. Whilst it was BD who re-named the Snapchat account in her contacts as ‘x Nick Athans’ as shown in the exhibits P5 and D21, she said that she renamed all her contacts in that way. In my view, that does not detract from her evidence that the messages came from an account in the name of ‘Nick Athans’, and if anything it reinforces it because she renamed the account accordingly. Defence counsel submitted that given BD had never met the accused, had no previous communications with the accused or The Yeah Hard Entertainment, and the communications were unsolicited, the name she assigned to the account is an assumption on her part. I do not accept that argument because BD’s conversations with DN were almost a year earlier, and it was her practice to routinely rename the person with whom she was communicating in the manner she described.
Second, the driving video clip was taken with an electronic device with a front and a rear camera. The accused had a mobile telephone with a rear camera which he showed police during the interview in January 2017, and was later seized by police in February 2017. Further he posted an image of a car taken with a rear camera on 27 July 2017.[577]
[577] Exhibit P25, pp 181-182.
Third, the person in the explicit images was wearing underwear consistent with the type of underwear seized from the accused’s bedroom on 10 August 2017.
Whilst an iPhone with a rear camera and tight-fitting bike short type underwear are not uncommon items, they are still features of the evidence consistent with, and supportive of, the accused having sent the explicit images, but I do not place any great weight upon those aspects of the evidence.
Fourth, the content of some of the messages is consistent with the accused being the sender; in particular, the user saying: “I’m 6 foot 3”, that being the accused’s height as recorded on his arrest,[578] and “Oh yeah, Good excuse, if you don’t text me you won’t come see me DJ at Red Square (emoji)”, a venue at which the accused had worked as a disc jockey.
[578] Exhibit P39.
I have not taken into account BD’s evidence that she received a video clip showing the accused’s face. I consider that there is a danger in acting on that evidence for the following reasons: BD only viewed the video clip for a few seconds, the video clip was not saved and is no longer available, and at the time of having received the video clip she had never met or spoken with the accused in person nor had any communication with him on any social media platform. It was only after having received the video clip and explicit images that she looked through Facebook, and found a Facebook account in the name of ‘Nick Anthems’ and recognised the person shown in photographs on that account as the person depicted in the video clip she received on 13 July 2017.
BD first disclosed the allegations to DN on the Facebook page ‘Adelaide Memes for Burnside Teens’ on 1 August 2017.[579] I have taken into account the inconsistencies in her complaint, namely that she said: “I regret not screenshotting his 10 snaps of his ‘hard’, ‘not hard’ and my personal favourite ‘side angle’”, which is inconsistent with her evidence as to the number and content of the explicit images she received. I consider that her inconsistency is explained by her youth and the fact she was communicating on a group chat with other girls, which may have made her prone to exaggeration at that time. I do not consider that the reliability of her evidence was undermined as to the description of the images or the name of the Snapchat account from which she received the communications.
[579] Exhibit P47.
I have not overlooked other inconsistent statements by BD. In particular, BD said in her statement to police on 1 September 2017 that the person sent her two or three explicit photographs. She said she was now sure it was two, but at the time of providing the police statement, she was unsure. Further, BD said in evidence that after having received the explicit messages, she would never have sent a message along the lines of ‘I’ll text you tomorrow’. Yet, she agreed that she said in her police statement that she had sent such a message. BD could provide no explanation for the inconsistency. Those matters individually or looked at cumulatively are explained by: the fact that a couple of months had elapsed between the alleged offence and providing a statement to the police; and BD was on numerous social media platforms and active in their use and she may have been confused as to the extent of her communications with the accused.
Defence counsel also submitted that BD had posted some comments on the Facebook group ‘Adelaide Memes for Burnside Teens’ which suggested she had a particular antipathy for the accused which made it more likely that she had assumed that the explicit messages were sent by the accused. That in turn was said to have infected her evidence as to having received the explicit images from the Snapchat account ‘Nick Athans’. I do not accept that argument. Her antipathy to the accused is equally explained by her subsequent disdain of the unsolicited explicit images he sent her, particularly when she discovered that, in her words: “you have a girlfriend”.
As to the suggestion that BD’s evidence was contaminated by communications by DN in the ‘DS 101’ group chat in April 2016, of which BD was a member,[580] I do not consider that a reasonable possibility as BD did not complain to DN about receiving explicit images until August 2017, so over a year later. It is noteworthy that both BD and DN had to be contacted by the police to provide statements rather than approaching the police themselves.
[580] Exhibit P10.
Statutory defence
Defence counsel submitted that s 63B(4) of the Criminal Law Consolidation Act 1935 was engaged.
Section 63B(4) relevantly states:
It is a defence to a charge under subsection (1)(a), (1)(b)(i) or (3) (other than where the defendant was in a position of authority in relation to the child) if the defendant proves that—
(a) the child was, on the date on which the offence is alleged to have been committed, of or above the age of 16 years; and
(b) the accused—
(i) was, on the date on which the offence is alleged to have been committed, under the age of 17 years; or
(ii) believed on reasonable grounds that the child was of or above the age of 17 years.
As at 13 and 14 July 2017, BD was 16 years old. Defence counsel relied on evidence that BD was on Tinder (an adult dating site where you are required to be 18 years old) and that BD ‘matched’ with the accused. Further, the topic of BD’s age did not emerge during the communications on 13 and 14 July 2017 until after the explicit images were sent. Thus, defence counsel submitted that there was evidence on the prosecution case that the accused (if I was satisfied that he was the sender) believed on reasonable grounds that BD was of or above the age of 17 years at the time of the fourth count. I am not so persuaded. The accused knew in early July 2017 from his dealings with DN that a person could be younger than 18 years of age and have a Tinder account. There are pictures on the Facebook accounts of BD and DN which suggest she may be older than 16, however there is no evidence that the accused looked at those images. I am not persuaded on the balance of probabilities that the accused held a belief that BD was 17 years or older at the time he committed the offence.
For the reasons outlined above, I am satisfied that the accused was the offender. There was no dispute that the other elements of the offence have been proved, and I am so satisfied. Accordingly, I find the accused guilty of count 4.
Uncharged Act
As to the uncharged act involving EW, I am satisfied that the accused sent the explicit image. I have reached that conclusion for the following reasons. First, EW said she received a contact request from the accused on Snapchat at about 8.00 pm, after she had returned from meeting him to discuss the [ ] School Formal after party. She could not recall the name of the Snapchat account from which the request was sent, but it had said: ‘Added from contacts’. EW said that Nick Athans was in her contacts, and the Snapchat account came up under the name she had saved the accused under in her contacts (Nick ‘Athens’). She did not have to do anything on Snapchat to save it to her contacts.[581]
[581] T 301.
Second, once she accepted the request, the user sent her a ‘snap’ of a photograph of himself, in which she could see half of his face. She recognised the person as the accused. The accused was known to EW, and she had met him in person on at least one occasion before she received the photograph. They continued to communicate by exchanging messages. On the basis of EW’s recent contact with the accused, and that she received the photograph in the context of ongoing communications with that person, I accept EW’s evidence that the photograph depicted the accused’s face. It is significant that she received the photograph of the accused only two or three minutes prior to the explicit image, making it unlikely that another user sent those explicit images.
Third, EW received a snap of a photograph facing away from the person of a man’s body in tight fitting, navy blue underpants, like ‘bike shorts’, with a black waist band. She could see the outline of his genitals through the underwear. The underpants worn by the person are consistent with those seized from the accused’s bedroom during the police search on 10 August 2017. Notwithstanding that this type of underwear is not uncommon, it is still a feature of the evidence consistent with, and supportive of, the accused having sent the explicit image, but I do not place any great weight upon that aspect of the evidence. Further, her description of the person having a larger body and being of an olive complexion is consistent with the build and colouring of the accused at the time of his arrest.
Fourth, EW also described the person as seated on a bed with a navy blue sheet on the bottom and a grey navy blue white checked doona cover. She described the bed as wooden. This does not match the appearance of the accused’s bed which is blue. She also said that there was a chest of drawers at the foot of the bed which had a plasma screen television on top of it. EW’s description of the bedroom depicted in the explicit image was largely consistent with the accused’s bedroom and the inconsistencies between her evidence and the photographs of the accused’s room are adequately explained by the fact she quickly ‘tapped’ the image away and only looked at the image for one second.
EW gave evidence that in a subsequent meeting with the accused and SK, he asked them “which one of us wanted to fuck him”. They both said no. SK also gave evidence that the accused made a comment which she described in broadly similar terms, to them. On the basis of both witness’s evidence, I am satisfied that the accused did so. That evidence is relevant to show the accused introduced a sexual context to his association with EW, which potentially renders it more likely that he sent the explicit image of his penis. However, I do not place any weight on this piece of evidence as it may well have been an unsavoury throw-away line by a young man, which was said without any serious sexual interest in its recipient. I have also not reasoned that the accused is a bad person or more likely to have committed any of the offences because of his distasteful conduct.
In accepting EW’s evidence, I have taken into account defence counsel’s criticisms of EW’s evidence as to her lack of detail when describing the explicit image, which I consider is explained by the short time during which she viewed the image. I also do not consider it unlikely that she would have continued to have contact with the accused had she received the explicit image. The accused was heavily involved in the organisation of the [ ] School Formal after party for which EW bore much responsibility. She was on the organising committee. It would have been difficult for her to extricate herself from the committee and distance herself from the accused given the event was to be held in late July.
Cross- admissibility
I am satisfied on the evidence directly relevant to each charge that the accused sent the explicit image or images the subject of each charged offence. Accordingly, it is not necessary to consider the cross-admissibility of the evidence. However, had that been necessary, I would have concluded that there was a striking similarity in the manner each charged offence, and the uncharged act against EW was committed, and that the offender on each occasion was the same person. Upon that conclusion being reached, evidence that the accused was the offender on any one of the charged occasions or the uncharged act was relevant and probative in proving the other charged offences. The evidence was not cross-admissible to establish that the accused had a particular propensity to send images on social media of an exposed penis to young females. It was relevant and probative in the following way. Once it was established that one person committed all of the charged offences and the uncharged act, the evidence that the accused was the offender on one of the other counts or uncharged act was relevant and probative in proving the count under consideration, and evidence that he was the offender on the occasion under consideration was relevant and probative on the other counts. If used for that purpose and in that way, the permissible use of the evidence substantially outweighed any prejudicial effect, and the permissible use of the evidence could be kept sufficiently separate and distinct from the impermissible use.[582]
[582] Sutton v The Queen (1984) 152 CLR 528, 560 per Deane J; Hirst v Police [2006] SASC 244 at [69] per Duggan J.
I reached the conclusion that one person committed all the charged offences and the uncharged act on EW because of the following ‘striking’ similarities:
1.Each complainant (except BD) initially had contact with the offender after accessing The Yeah Hard Entertainment Facebook page or posting on the Summer City event page hosted by The Yeah Hard Entertainment.
2.The offender contacted each complainant (except BD) using a Facebook page which at that time was named ‘Nick Athans’ or ‘Nick Christos’.
3.Each complainant was asked by the offender to contact him on a Snapchat account containing the name Nick: DN on an account named Nick.Atonik; RF and KW on an account named ‘NickAthansAUS’; and BD on an account named ‘Nick Athans’. In respect of EW, the Snapchat account came up under the name ‘Nick Athans’ or ‘Nick Athens’ as saved in her contacts.
4.The offender offered each complainant promotional work or free tickets or access to an event hosted by The Yeah Hard Entertainment, or to an event at which the accused was a disc jockey. In respect of EW, he was already organising an event with her.
5.The offender sent each complainant at least one explicit image of a male lying on a bed with his penis exposed, and in respect of EW of his penis in underwear.
6.In each image the male was wearing tight underwear with a leg and waistband which resembled bike shorts.
7.The offender sent all the complainants (but not EW) a video clip of a person driving or a video clip taken within a moving vehicle, and he asked them to go for a drive with him.
8.The offender indicated to each complainant that he wanted to meet up with her and he made sexually suggestive comments to her. In respect of EW, he subsequently made a sexual comment to her in person.
I have considered the submissions by defence counsel about the generic nature of the common alleged offending. However, I am satisfied beyond reasonable doubt having regard to all the circumstances that there are striking similarities between the evidence directly relevant to each count, and that one person committed all the charged offences and the uncharged act. That being so, the evidence that the accused was the offender on each count is relevant in proof of the other counts. Notwithstanding that conclusion, the evidence directly relevant to each charge was sufficient to establish beyond reasonable doubt that the accused was the offender on each count, and I have not considered it necessary to adopt that process of reasoning in reaching my verdicts.
Verdicts
Accordingly, I find the accused guilty of counts 1-4.
4
4
1