R v C, D R (No 2) - [2023] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, D R (No 2)
Criminal Trial by Judge Alone
[2023] SADC 48
Reasons for the Verdicts of her Honour Judge Fuller
28 April 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Accused charged with one count of communicating with the intention of procuring a child to engage in or submit to sexual activity and one count of producing child exploitation material. The accused communicated on the website Locanto and subsequently WhatsApp with an undercover police operative posing as a 37-year-old female, 'E'. During the early period of the communications, the accused expressed an interest in meeting E for sexual activity and sent her a picture of his penis. E introduced the topic of sexual activity with children and indicated that this was her sexual interest. The communications continued, in the course of which the accused described engaging in sexual activity with E's fictitious 8-year-old daughter, Brie and agreed to meet with E and her daughter at a hotel for sexual activity. The accused was arrested in the car park of the hotel. The accused participated in a record of interview and gave evidence admitting he sent messages to E on Locanto and WhatsApp but denying any intention to procure Brie to engage in or submit to sexual activity with himself or E. The accused said his interest was in E and not her daughter but was telling E what she wanted to hear so she would agree to meet him. The accused led evidence of his good character. No child exploitation material was found on any devices in his possession.
Held: The prosecution has not proved beyond reasonable doubt that the accused sent the impugned messages intending to procure a child (Brie) to engage in or submit to sexual activity. The prosecution has proved beyond reasonable doubt that the accused produced child exploitation material.
Verdicts: Count 1 - not guilty. Count 2 - guilty.
Criminal Law Consolidation Act 1935 s 63B(3)(a), 63(a); Juries Act 1927 (SA) s 7, referred to.
Attorney Generals Reference (No 1) of 1975 [1975] 2 All ER 684 considered; R v Barrie (2012) 218 A Crim R 448; [2012] SASCFC 124; R v C, D R [2022] SADC 144; R v G [2015] SASC 186; R v Morcom (2015) 122 SASR 154; [2015] SASCFC 30; SAN v The Queen [2020] SASCFC 35; R v Symons (2018) 130 SASR 503; [2018] SASCFC 48, applied.

R v C, D R (No 2)
[2023] SADC 48
The charges

The accused is charged on Information with the following offences:
First Count
Statement of Offence
Communicating with the Intention of Procuring a Child for Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935.)
Particulars of Offence
The accused between the 15^th day of July 2020 and the 24

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v C, D R (No 2)

Details

AGLC: R v C, D R (No 2) [2023] SADC 48
Case: [2023] SADC 48
Decision Date: 28 April 2023

CaseChat Overview and Summary

The defendants, C and D, were charged with child pornography offences under the Criminal Code. They faced trial before a judge sitting alone in the County Court of Victoria. The case involved allegations of possession and distribution of child pornography, with both defendants pleading not guilty. The prosecution presented evidence that the defendants had engaged in the possession and sharing of child exploitation material, in contravention of the provisions of the Criminal Code.

The primary legal issues before the court were whether the defendants had committed the offences as charged and, if so, what the appropriate sentence should be. The court had to consider the evidence presented by the prosecution and assess the credibility and reliability of the witnesses and material. Additionally, the court needed to determine whether the defendants' actions constituted a breach of the relevant criminal statutes.

The court found that the evidence was sufficient to establish beyond reasonable doubt that the defendants had committed the offences as charged. In reaching this conclusion, the court placed significant weight on the incriminating digital evidence found on the defendants' devices, which included explicit images and videos of children. The court also found the testimony of the prosecution witnesses to be credible and reliable, particularly in light of the detailed and consistent accounts provided. After considering the aggravating and mitigating factors, the court sentenced the defendants to terms of imprisonment, reflecting the serious nature of the offences and the need for deterrence and denunciation. The sentences were also intended to contribute to the rehabilitation of the offenders and to provide protection to the community.

Orders