R v C, D R (No 2)
[2023] SADC 48
•28 April 2023
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 15th day of July 2020 and the 24th day of July 2020 at Salisbury South and the other places, made a communication with the intention of procuring a child under the age of 17 years to engage in, or submit to, sexual activity.
Second Count
Statement of Offence
Producing Child Exploitation Material. (Section 63(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
The accused between the 15th day of July 2020 and the 24th day of July 2020 at Salisbury South and other places, produced child exploitation material, knowing of its pornographic nature.
The plea
The accused pleaded not guilty before me on 31 January 2023 and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of the offence.
Producing child exploitation material
To prove this offence, the prosecution must prove the following elements beyond reasonable doubt:
1.The accused produced, or took a step in the production of, material;
2.The material is child exploitation material;
3.The accused knew of its pornographic nature.
‘Material’ is defined to include any written or printed material. Child exploitation material is defined as meaning material:
(i)that –
(a) describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(b) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child under, or apparently under, the age of 17 years, or the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; or
(c) (without limiting subparagraph (B)) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child-like sex doll, or part of a child-like sex doll; and
(ii)that is pornographic in nature.
‘Pornographic nature’ is defined to mean:
—material is of a pornographic nature for the purposes of this Division if the material is intended or apparently intended—
(a) to excite or gratify sexual interest; or
(b) to excite or gratify a sadistic or other perverted interest in violence or cruelty.
When deciding whether material is ‘of a pornographic nature’, a tribunal of fact can take into account the circumstances in which the material is produced, used or intended to be used. These considerations cannot, however, deprive material that is inherently pornographic of that character.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 63C(1).
In R v Morcom, Peek and Blue JJ described the two limbs required to constitute child exploitation material as follows:[2]
·the physical characteristic of depicting a child engaging in sexual activity (or the image is, or appears to be, that of a child or bodily parts of a child) and
·the functional or purposive characteristic of the material being intended or apparently intended to excite or gratify a sexual (or perverted violence or cruelty) interest.
[2] R v Morcom (2015) 122 SASR 154; [2015] SASCFC 30, [17]. At the time, the Act used the language of “child pornography” rather than “child exploitation material”, but the applicable definitions were relevantly identical (subject to the references to child-like sex doll), so their description likely remains apt under the current legislation.
The first limb, depending on the physical characteristics of what is depicted, must be assessed objectively by the tribunal of fact and does not depend on anyone’s state of mind.[3]
[3] R v Morcom (2015) 122 SASR 154; [2015] SASCFC 30, [18].
The second limb must also be assessed wholly objectively, and a subjective intention to use the material to excite sexual interest is not relevant.[4] Thus, while a tribunal of fact may take the objective context and circumstances into account under s 63C, this does not mean the accused’s idiosyncratic subjective intentions can transform innocuous material into child exploitation material.[5]
[4] R v Morcom (2015) 122 SASR 154; [2015] SASCFC 30, [22].
[5] R v Morcom (2015) 122 SASR 154; [2015] SASCFC 30, [64]-[70].
The offence does not contain an element that the accused knew or believed that the child was under the age of 17.
Making a communication with the intention of procuring a child to engage in or submit to sexual activity
To prove this offence, the prosecution must prove beyond reasonable doubt all of the following elements:
1.The accused made a communication;
2.The accused did so with the intention of procuring a child under the age of 17 to engage in or submit to sexual activity while still under the age of 17.
The term “sexual activity” must be read in a way that gives effect to the purpose of the provision, which is to protect children from sexualisation. It includes behaviours, physical or verbal, which are capable of being sexually stimulating. It can include sending and receiving photographs or animations and engaging in discussions about them. It can also include discussing sexual touching.[6]
[6] R v Symons (2018) 130 SASR 503; [2018] SASCFC 48, [3]-[6]; SAN v The Queen [2020] SASCFC 35, [37].
To prove this offence, it is not necessary to prove that the recipient of the communication is, in fact, a child. The offence can be committed where the recipient is an adult posing as a child, provided the accused intended that the person he or she was communicating with was a child.[7]
[7] R v Barrie (2012) 218 A Crim R 448; [2012] SASCFC 124, [1], [36], [40] (but c.f. [96] (White J)).
However, the accused must make the communication with the intention that the child engage in sexual activity while still a child under the age of 17.
Issues in dispute
The only issue in dispute on count 1 was whether the prosecution has proved beyond reasonable doubt that the accused made the communication intending to procure a child to engage in or submit to sexual activity. The only issue in dispute on count 2 was whether the accused knew the child exploitation material was of a pornographic nature.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[8] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[8] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected to give evidence. In doing so, he assumed no onus. His evidence is to be treated in the same way as any other witness in the trial, but I can give him what credit I consider appropriate for adopting a course he was not obliged to adopt.
The evidence of the accused established that he was of good character. This evidence has probative significance in assessing the likelihood of the accused committing the offences charged and in assessing the credibility of his answers in the witness box and in his record of interview. Accordingly, I direct myself that I must bear in mind this evidence when considering whether I can draw from the evidence a conclusion as to the accused’s guilt. I direct myself that I can use this evidence in assessing the likelihood of the accused having committed either of the offences charged and in evaluating the credibility of any explanations he gave in the witness box and in his record of interview regarding the allegations.
Overview of the prosecution case
In 2020 Detective Brevet Sergeant Jacob O’Callaghan from the Joint Anti-Child Exploitation Team (JACET) was operating a profile on a website called Locanto. He created a fictional account on Lecanto purporting to be a woman named ‘E’. She was a 37-year-old woman living in Adelaide. E’s Locanto profile was entitled ‘Life’s Taboo Short Woodville – 37’ and said that she was ’37, real female into taboo, love family :-)’ which on the prosecution case was a winking smiley face emoticon.
On 18 May 2020, the accused initiated a conversation with E on Lecanto by sending her a message. The accused’s profile name was My3Babies. On the prosecution case, E made it clear to the accused form an early stage that she had an interest in sexual activity with children. E’s messages to the accused were very brief and repeatedly suggested that the accused stop corresponding with her if he was not interested in children sexually, as she was.
Despite this, the accused persisted in messaging E and said he was aroused by her sexual interest in children. He said he was also into puberty-aged girls and that they could have fun together. He sent a photograph of his penis to E and a photograph of the torso of a woman in underwear which he said was his wife.
E persuaded the accused to correspond with her on a different application, WhatsApp. On 14 July 2020, the accused contacted E on WhatsApp where their conversation continued. E said she had two daughters aged 8 and 12. E and the accused discussed their shared sexual interest in developing girls. On 20 July 2020, the accused described a sexual fantasy involving E, himself and a 12-year-old girl.
The accused asked E if she had pictures of her daughters’ friends. From 20 July 2020, the accused began describing a number of sexual acts he would perform on or in the presence of E’s youngest daughter Brie. The messages containing these descriptions are the subject of count 2.
In WhatsApp messages the accused described his intention to play card games with Brie to make her relaxed. Brie would determine where she was touched or licked, and the games would determine how many times she would be licked. The accused and E sent messages to each other about the details of the motel at which they would meet and who would pay for the room. The accused said he would bring a pack of cards for the card game he had described.
The accused asked E if she had ever touched Brie sexually before or penetrated her.
The accused and E made a plan to meet on Thursday 23 July 2020 at the Ibis Styles Adelaide Manor Hotel, 547 Main North Road, Gepps Cross (the ‘Ibis hotel’).
The prosecution case on count 1 is that the messages sent by the accused to E relating to her 8-year-old daughter were sent with the intention of procuring Brie to engage in or submit to sexual activity with either himself or E. In the alternative, the accused communicated with E intending to procure Brie to engage in or submit to sexual activity with E.
The accused and E continued to communicate via WhatsApp until about 11.43am on 23 July 2020 at which time the accused parked his car opposite the Ibis hotel and sent messages to E asking for a picture showing who was present in the hotel room and as confirmation that the meeting was not a set up. At about this time police present at the hotel moved to arrest the accused in the carpark opposite the hotel.
When arrested, a pack of playing cards was found in the accused’s pocket. Police checked the accused’s mobile phone and found that he had deleted the WhatsApp program he was using minutes earlier. The accused participated in a record of interview with police and admitted sending the communications but told police that he did not intend to have sex with a child. He also admitted writing stories about child sexual activity but said he did that because that was what E was interested in. When the accused gave evidence on the voir dire[9], he explained that he only told E that her sexual interests turned him on in order to keep her engaged. He said he never believed sexual activity would take place with Brie and denied describing sexual activity with Brie but said he was trying to keep E engaged.
[9] The accused’s evidence on the voir dire was tendered in the trial proper by the prosecution.
Police attended the accused’s house in Fulham Gardens. His wife was present and gave police an iPhone belonging to the accused. He said in his interview that the iPhone used to be his phone, but it now belonged to the children after work gave him a phone about 6 weeks earlier.
On the prosecution case the data from the phone showed that the accused accessed a page on Chaosads.com.au entitled ‘men seeking men’ in February 2020.
The evidence
A number of exhibits and oral evidence led for the purposes of an earlier voir dire hearing were tendered at the trial.[10] The following exhibits were tendered at the trial:
[10] A voir dire hearing took place in September 2022. A number of police officers gave evidence. The accused also gave evidence. I delivered a judgment setting out my reasons for refusing the accused’s application to exclude evidence: R v C, D R [2022] SADC 144.
MFIP1 E-Crime Disc containing extraction from iPhone
P2 Document containing data copied from MFIP1
P3 Detective O’Callaghan’s engagement log on Encanto
P4 Online Engagement Log on WhatsApp
P5 Data Extracted from iPhone showing web history
P6 Disc of Record of Interview Dated 23 July 2020
P6(a) Transcript of Record of Interview dated 23 July 2020
P7 Agreed Facts (Trial Proper)
P8 Booklet of Images of Samsung Galaxy A20 and messages on that phone
P9 Agreed Facts (Voir Dire)
The following facts were agreed at trial:
Agreed Facts on the Voir Dire
1.On 23 July 2020 a Samsung Galaxy A20 PPMS NO 21-A5869-1 was seized from the accused’s person at the time of his arrest. The WhatsApp Messenger application was installed on the mobile phone and was running at the time it was seized. The messages to and from Detective O’Callaghan sent between 11.17am and 11.44am shown on pages 46 and 47 of VDP4 had been deleted by the user of the phone. Data from these deleted messages was still intact on the mobile phone and they were recovered by police. All other written messages to and from Detective O’Callaghan were not present on the accused’s mobile phone and were not recovered by police.
Agreed Facts on the Trial
2.The phone number for the Samsung mobile phone (PPMS number 21/A51869-1) seized from the accused at the Ibis Hotel was 0427652763 and the subscriber to the service was LD&D Australia Pty Ltd.
3.On 23 July 2020, police attended [address redacted] Fulham Gardens, and seized an iPhone from the kitchen area. The iPhone was given PPMS number 21/A51869-3. The data was extracted by Constable Sam Sparvell from the Digital Evidence Section, who copied the data to a disc marked DES 2021-0126SS1.
Detective Brevet Sergeant Jacob O’Callaghan
Detective O’Callaghan is a member of SAPOL and part of the Joint Anti Child Exploitation Team (JACET). Members of JACET investigate child exploitation and related offences, using internet applications as part of those investigations. Detective O’Callaghan explained that the website Locanto is an online classifieds website, similar to the Trading Post. It has a worldwide reach and is signed up to by about eighty countries. In addition to different categories of items that can be bought and sold, there is also a dating and fetish groups component.[11]
[11] VD transcript 20.
WhatsApp is a social networking platform that allows messages to be sent and received in a private or group forum.[12]
[12] VD transcript 21.
A copy of the online engagement log was tendered: P3. Detective O’Callaghan’s assumed identity was a 37-year-old adult female. The advertisement he placed on Locanto included a title in the top left corner ‘lifes taboo short, Woodville – 37’. Further information was included in the advertisement: ’37 real female, into taboo. Love family ;-)’. Detective O’Callaghan described the emoji as a ‘winking smiley face’. There were other advertisements on the same page, including a picture of a woman but they were unrelated to his advertisement. [13]
[13] VD transcript 24-25.
The purpose in creating this profile was to engage with people online to investigate child exploitation material and related offences pursuant to ongoing covert approvals.[14]
[14] VD transcript 25.
On 18 May 2020, a person with the username ‘My3Babies’ sent a private message via the Locanto website which read, ‘Hey, where are you?’.[15] Detective O’Callaghan explained that where two ticks in dark shaded blue appeared that signified that the message he had sent had been received and opened.[16]
[15] Page 2, P3.
[16] VD transcript 27.
Detective O’Callaghan also received messages from ‘My3Babies’ on WhatsApp. He said he tried to encourage ‘My3Babies’ to use WhatsApp because that application helped to identify the user because a telephone number is provided.[17] The username ‘My3Babies’ that appears in the WhatsApp online engagement log, P4, was inputted by Detective O’Callaghan after he was given the accused’s mobile telephone number.[18]
[17] VD transcript 30.
[18] VD transcript 31.
Detective O’Callaghan said he communicated with ‘My3Babies’ on WhatsApp because:
He’d indicated through the Locanto chat that he was interested in sexually offending against a child. I suppose this was then just the progression of that communication to see what he was into. I don’t really know how to further answer that.[19]
[19] VD transcript 32, 1-5.
Arrangements were made with ‘My3Babies’ to meet at a hotel in Gepps Cross for the purpose of ‘My3Babies’ sexually offending against E’s fictional 8‑year-old child. The conversation leading up to this meeting commenced on 18 May 2020 on Locanto and moved to WhatsApp on 14 July 2020 until 23 July 2020 when the accused was arrested.[20]
[20] VD transcript 32.
In cross-examination, Detective O’Callaghan agreed that people used Locanto for the purpose of sexual liaison between adults and there was nothing about Locanto that focused on underage children.[21]
[21] VD transcript 43.
Detective O’Callaghan said that he knew nothing about the identity of ‘My3Babies’ other than his mobile telephone number throughout the course of the online conversation.[22] A subscriber check revealed the number related to a work issued telephone.[23] However, he did not know whether the accused was someone known to the police or not, or if he had ever committed any offences.[24]
[22] VD transcript 63.
[23] VD transcript 64.
[24] VD transcript 65-66.
Detective Brevet Sergeant David Thomas Townsend
On 23 July 2020, Detective Townsend was stationed at JACET and was on duty and attended an Ibis motel at Gepps Cross with other detectives. He arrested the accused and conducted a record of interview with him: VDP6.[25] The accused was searched, and a pack of cards and a Samsung mobile telephone was seized from him.
[25] VD transcript 101-103.
In the record of interview, the accused volunteered the following information and made the following admissions:
·He had communicated with E for a while on Locanto and WhatsApp.
·That he was at the Gepps Cross hotel to meet E and thought she was bringing her daughter.
·That he did not intend to have sex with E that day.
·That he did not think E would be into touching her own child.
·If he said anything about sexual activity with E’s child in a message to her she encouraged him to do so but he never intended to have sexual activity with her child.
·He thought it was E’s idea to bring cards.
·He deleted the messages from E because he had wife and family.
·His interest was only in E but she introduced involving her young child in sexual activity and pushed him towards it.
·He was interested in E because she was single and she looked quite good looking.
·He had no criminal record and a good job and had three children and was not interested in sexual activity with children.
·When he said he was open to taboo things he was trying to strike up a relationship and break down the barriers.
·He sent her a picture of his penis.
·When she said she was interested in 5-8 year old children and he said that it sounds good, and asked ‘in person or internet’ he was trying to strike up a relationship.
·When he said he was into puberty age he was trying to get introduced to E but not to involve children.
·The picture of a female was a picture of his wife.
·He was not sure he meant anything when he said ‘yes the body, more than anything, especially the sprouting titties, how much does it turn you on’.
·He had been ‘lured’ but at no point was he going to exploit a child.
·When he sent messages suggesting he was interested in sexual activity with a child that was to engage with E and not because he wanted to do that. He did not mean what he said and would never have carried it out.
·He did not believe that in this day and age a parent would molest their own child.
·He thought that if E turned up with her child, the child would go and play in the pool or spa. He never thought there would be a threesome.
·He agreed that his messages about what would happen with E’s child and whether she really wanted him to take her virginity were messages about sexual intercourse with E and the child but said that was not what he intended to happen. He was just trying to excite her and keep her interested. He was telling her what he thought she wanted to hear.
·His intention all along was to see and meet E and decide if she was attractive and they were compatible. If she was not good looking, he would have gone. He believed he had been lured to the hotel and he had let himself down by going there.
·He said that if he was into anything illegal, he would not have told E where he lived, what his real name was, given out his phone number, sent her a picture of himself and told her where he worked.
·He did not know that it was illegal to write stories about having sex with children.
Before he attended Gepps Cross, Detective Townsend had been told the accused’s name, date of birth, residential address and two mobile phone numbers. After the accused’s arrest, his home and work address were searched. A mobile telephone found at his home was seized. No child exploitation material was found on either of the mobile telephones seized from police, over and above the messages the subject of the charges (which were recovered after being deleted).[26]
[26] VD transcript 110-111.
The contents of the iPhone X located at the accused’s home address were extracted by an officer from Police Digital Evidence section. The disc containing the extraction was marked for identification: MFIP1. Detective Townsend created a document that contained data copied from the disc: Exhibit P2. Detective Townsend explained what each of the columns in P2 meant.[27]
[27] Trial transcript 22-24.
MFI P1 contained about 20,000 messages. Detective Townsend extracted those that he considered were relevant. The messages he thought were relevant included messages sent by the accused that contained emojis. Detective Townsend identified those messages in the witness box.[28]
[28] Trial transcript 26-29.
Exhibit P2 was 191 pages long and contained 1568 messages between 11 September 2018 and 2 July 2020, just under two weeks before the alleged offending commenced. The overwhelming majority of the messages in P2 were between the accused and his wife.
Detective Townsend was taken to the message on line 1222 in P2 which was a message from the accused’s wife that read:
You have upset me again [C, D R], you just don’t listen to me, even reading your message again this morning I haven’t said You have done anything wrong, I’ve simply asked you to message Matt in another way if that’s the kind of stuff that he, you or both talk about! I don’t want to see it because it upsets me and yes it does take me back to a place I don’t ever want to be again in my entire life, that doesn’t mean I’ve gone backwards, it’s just triggered memories I’d rather forget. It also upsets me knowing that he is doing to my best friend exactly what broke my heart, and I can’t cope with that and accept it without saying anything to her. I didn’t read your messages on purpose, you know they pop up on screen and I saw something about Kik, obviously I was going to read that given the history! I don’t want to argue at all, I simply told you how I felt and that I didn’t want to see that rubbish surely that’s a good think that I can do that, or can’t we talk openly about things anymore?!X
Detective Townsend said that Kik was an application used by people to meet each other for a variety of reasons. The majority of people who use it do so for legitimate purposes for meeting consenting adults generally for sex. A small proportion of people use it to meet up with people who have common interests. It is like a WhatsApp application because it can be used to create groups with up to 50 members who can all message each other. Kik is a useful application to find people in a local area. Consenting adults looking to meet people with the same sexual interests by inputting sexual terms. Child sex offenders use it to find teenagers or children.[29]
[29] Trial transcript 32-33.
Data extracted from the accused’s iPhone that showed the web history was tendered: Exhibit P5.
Cross-examination
Detective Townsend reviewed the data from the extraction of the accused’s iPhone on the weekend before the trial and after the voir dire application last year.[30] All of the messages between the accused and his wife in which the accused used an emoji were highlighted on P2.[31] Detective Townsend did not find any emojis in the accused’s messages that were the same as the purple devil emojis sent by E in P3 or P4.[32]
[30] Trial transcript 35.
[31] Trial transcript 36.
[32] Trial transcript 36-37.
A photograph was sent with message 383 from the accused in P2. It was a picture of a penis.
Re-examination
Detective Townsend said he revisited the data extracted from the accused’s phone because the Chaosad was brought to his attention, and he thought there might be evidence contrary to the accused’s evidence on the voir dire. When he had previously looked at the extraction data, he did not think it had any relevance.[33]
[33] Trial transcript 38.
The accused
The accused was born in Sheffield, England and came to Australia in August 2018. He and his family lived in Fulham Gardens.[34]
[34] VD transcript 154-155.
He separated from his wife, L, fifteen months before giving evidence. They have three children aged 22, 20 and 17. He has never felt sexually attracted to his children. His sons were involved in soccer and all three children were involved in swimming. He coached the teams his sons played in for four years ending in 2020. He also coached an under 13’s children’s team in England.[35]
[35] VD transcript 156-157.
When living in England, his wife ran an indoor play centre for children, from 2009. He and his wife purchased the centre together. He was required to undertake a criminal record check to work in that business.[36]
[36] VD transcript 157.
When the family moved to Australia, he worked as a warehouse manager and in June 2020 moved to another company where he worked as a supply chain manager. He has been involved in work encouraging disabled people into workplaces and was recognised with an award at Government House in December 2021.[37]
[37] VD transcript 158-159.
The accused said he had never felt sexually attracted to a child. He had looked at adult pornography on the internet but had never viewed pornography involving children or characters representing children.[38]
[38] VD transcript 160.
He was arrested on 23 July 2020 and his mobile telephones were seized. He did not have any pornographic material on either of his telephones. Prior to being arrested he had never been reported for any sort of offence, had never been disqualified from driving and had no criminal convictions. When he applied for a visa to come to Australia, he obtained an international police clearance.[39]
[39] VD transcript 160-162.
Before he came to Australia, his relationship with his wife was strained because he had had an affair with another woman.[40] That was the only time he had been unfaithful during his marriage.[41]
[40] VD transcript 162.
[41] VD transcript 163.
About six months before his arrest, the accused was told about Locanto by a colleague who was single and had met a woman on that site. He did not know that using Locanto could provide access to child exploitation material. He was interested in the adult personal ads. [42]
[42] VD transcript 164-165.
When he started looking at personal ads on Locanto he communicated with more than twenty women in May 2020. He did not meet any of them. He went on Locanto because he wanted to meet a woman for sex.[43]
[43] VD transcript 166-167.
He used the username ‘My3Babies’ on Locanto because that was his regular password since his third child was born.[44]
[44] VD transcript 168.
He saw pornography on Locanto but never child exploitation material.[45]
[45] VD transcript 169.
When he answered the advertisement in P3 he did not take particular notice of the title ‘lifes taboo short, Woodville - 37’. He realised Woodville was close to where he lived, and he assumed the age of the woman placing the advertisement was 37.[46]
[46] VD transcript 169.
The accused could not recall whether he saw an image of the woman placing the advertisement and he could not be certain if he immediately saw the words ’37 real female into taboo, love family’ or a smiley face.[47] He said he had to click on to that to see it, but he did not recall seeing it immediately. He pressed ‘contact’ which then let him type a message.[48]
[47] VD transcript 170.
[48] VD transcript 171.
The accused said he responded to the advertisement because he thought it was a 37-year-old lady who wanted something similar to what he wanted.[49] When he wrote the message in which he said he got nothing sexual at home and he wanted a lady to worship her body, he was sleeping in separate beds from his wife.[50]
[49] VD transcript 172.
[50] VD transcript 173.
The accused said he did not know what the emojis with devil faces were and they did not mean anything to him.[51] When he sent a message saying he was forty-four and fit he did so because she had said she was thirty-seven and into ‘yunger’. He thought she might have been looking for a man in his twenties. He was older than 44 but ‘was just bending the truth’,[52] because if she knew he was a bit older she might not be interested in him.[53]
[51] VD transcript 173.
[52] VD transcript 174.
[53] VD transcript 174.
When he said, ‘I’m not offended by taboo stuff?’ he thought taboo meant off limits or forbidden. He regarded himself as off limits because he was married. When he wrote ‘It sort of turned me on what you said, I’m open to taboo things!?’ he did not mean that but was just trying to keep her engaged. He was open to taboo things insofar as he was married but still prepared to have an affair.[54]
[54] VD transcript 175.
He sent a photograph of his penis to see if she was interested. He persisted with messaging her even though she asked him why he kept messaging her because he thought she was looking for the same thing but wanted someone younger than him. He had not conversed for that long with anyone else on Locanto.[55]
[55] VD transcript 176.
The accused regarded pornography as taboo. When he said, ‘I can be in to what you are just no considered it before?’ he did not think that related in any way to children. When he wrote, ‘Am open to things that turn me on, different things!!? X’ he was trying to keep her interested. When he wrote ‘I know, I like, girls or boys or both?’ he was asking whether she was interested in either or both. He said ‘girls’ meant women and ‘boys’ meant men. He had never felt attracted to men.[56]
[56] VD transcript 177-178.
The accused said he was not sure at the time what he thought ‘5-8 hbu?’ meant but said that looking at it now, it meant five to eight years old. When he asked how old she was, it was because he had probably forgotten he had asked her before. At that time, he was probably messaging a few other people.[57]
[57] VD transcript 178 - 179.
He sent a photograph of his wife’s body which his wife had sent to him when they were in Australia. He did this because he had asked whether E was into girls or boys or both. He kept communicating after sending this message because he thought he had a chance of meeting E for sex. Even though she responded ‘wtf…..i’m not a lesbian’ he wrote ‘I thought I would get your attention! You do like girls!! X’ to probe a bit further.[58]
[58] VD transcript 181-182.
The accused had never used WhatsApp before but was aware that his children had it. He understood that encrypted meant it was more secure and he thought she had asked him to switch to WhatsApp because he had already sent a couple of photographs and it was more private.[59] He gave E his work mobile telephone number because that was the only one he had. He thought that if he did not do so, the conversation would stop.[60] When asked why he did not stop at that stage, he said:
This particular person had got me hooked and I still felt there were a chance at meeting this particular lady. Like I said, the other advertisement it either fed doubt because they were not genuine, or it was somebody that wanted paying [sic] for services.[61]
[59] VD transcript 182-183.
[60] VD transcript 183.
[61] VD transcript 183, 28-32.
He thought that if he kept responding he would break down the barriers so that they could ultimately meet.[62]
[62] VD transcript 183.
After he started messaging E on WhatsApp he told her where he lived and his name because he had nothing to hide.[63]
[63] VD transcript 186.
In 2020, emojis did not mean anything to him and he had never sent a message with an emoji. He did not appreciate the significance of the emojis sent with the messages to him.[64]
[64] VD transcript 186.
He sent the WhatsApp messages while he was at work. He worked at a desk in an open plan office. He did not want to do this at home in case his wife caught him.[65]
[65] VD transcript 187.
When he went to the hotel at Gepps Cross, he was anticipating meeting a 37-year-old woman. He thought she had a daughter, Brie. He did not think that Brie would be at the hotel because he thought she would be engaged in activities in other parts of the hotel, like the pool or spa.[66] I asked him whether he thought Brie, an 8-year-old, would be in a pool or spa area unsupervised by her mother and he said he had not been to the hotel and did not know what the facilities were like and whether the rooms were around a pool complex.[67]
[66] VD transcript 188.
[67] VD transcript 190.
He did not know what this person would look like or what was going to happen at the hotel. He was nervous. He sent messages from the hotel carpark asking her to come out and meet him because he wanted to see what she looked like. He had standards and he wanted to make sure she was good looking.[68]
[68] VD transcript 189.
If the person he met was a 37-year-old woman and he found her attractive, he probably contemplated that he would have sex or be intimate with her in the hotel.[69] He was not confident this would happen because they needed to be compatible.[70]
[69] VD transcript 190.
[70] VD transcript 191.
He deleted the WhatsApp messages from his mobile phone so that his wife would not find them.
In cross-examination, the accused said he was looking for no strings attached sexual intercourse. He asked, ‘What you into?’ to find out if the person was interested in a male.[71]
[71] VD transcript 193.
The accused said he had not used other dating sites previously and had not heard of Tinder.[72]
[72] VD transcript 194.
The accused said he had no idea what the devil horn emojis meant and he could not see the horns on them. When she said ‘i’m 37…into yunger’ he thought she meant someone younger than 37. When she wrote, ‘i dont think u are understanding me….六’ the accused said that he could not see that the emojis were children, and he did not know what the emojis were intended to signify.[73]
[73] VD transcript 196.
The accused maintained that he did not realise that ‘not legal taboo’ meant children. He kept engaging with her because she kept engaging with him and at no point did she ask for money.[74]
[74] VD transcript 199.
The accused said he was intrigued by this person and why she had posted the advertisement in the first place. He was not intrigued by the interests she said she had in illegal taboo and family. He said he was lying when he said ‘it sort of turned me on what you said, I’m open to taboo things’.[75]
[75] VD transcript 201.
He was asked whether it would have mattered if she was a paedophile and he said it would and he would have stopped communicating with her if he knew she was into child sex. He said that she had not explained what the ‘not legal taboo’ was and that it could have been animals. However, he said if she had been into bestiality, he would probably have kept talking to her.[76]
[76] VD transcript 203.
The accused said he wanted to meet E because he was hoping to meet a lady for sex. He thought she was interested because she kept responding.[77]
[77] VD transcript 205.
He sent her a picture of his penis to see if she was interested in it. She did not respond.[78] She had not done anything to encourage him to send it to her. He was happy to keep talking to her because she engaged with him, and she had not gone into any detail about what she meant by ‘not legal taboo’.[79] The accused said he had never considered taboo sexual activity previously.[80] However, he then said he had considered ‘going behind’ his wife’s back for sexual pleasure and said that he believed that was taboo, because he was married.[81]
[78] VD transcript 206.
[79] VD transcript 207.
[80] VD transcript 208.
[81] VD transcript 209.
It was put to the accused that when he wrote ‘I know, I like, girls or boys or both?’ he did not mean women when he used the term girls. He answered, ‘Yes, that’s why I sent a picture of a woman and a man’.[82]
[82] VD transcript 209, 23.
When asked why he had not left the conversation by the time of the exchange of the messages on page 11 of P3, the accused said, ‘Because this is the only person that was engaging with me at that particular point.’[83] The other women wanted payment for services. He did not consider other dating websites as this is the one that had been recommended by his colleague.[84]
[83] VD transcript 209, 30-31.
[84]VD transcript T 209.
The accused said that when he received the message ‘5-8….hbu’ in response to his message asking how young she liked, he thought it was a joke. When he wrote, ‘Sounds good, in person or internet?’ he was just trying to keep her engaged.[85]
[85] VD transcript 211.
It was then put to the accused that when he responded to the message ‘i’m 37…. … wot ages u in to?’ by writing ‘I’m 40, like puberty age!’ he was not talking about adults. He said he was talking about adults who had been through puberty.[86] He agreed that if that was what he meant he could have said ‘I’m interested in adults’.[87] He was asked about this again later in evidence when he was asked questions about the message he sent, saying ‘I am into young girls, as I said around puberty! I’m sure we can have a little fun!?’:
[86] VD transcript 211.
[87] VD transcript 212.
QWhy would you need to say ‘around puberty’ if you were talking about an adult.
ABecause this particular person had mentioned on previous pages, on previous conversations and I had mentioned about puberty age so I were just being consistent with what I were talking to her about.
QYou knew puberty was a specific time in a person’s development, didn’t you.
ANo.
QWhy didn’t you say after puberty.
AI’m not sure.
QYou didn’t think puberty meant adult, did you.
AYes.
QBy ‘around puberty’ you meant you could go either side of puberty, didn’t you.
ANo.[88]
[88] VD transcript 227, 8-23.
The accused said he had been using a mobile phone from around the age of eighteen. He was not sure if his friends sent emojis to him and he had never received a message containing a semicolon with a round bracket at the end. He had received one in an email in the last two years.[89]
[89] VD transcript 216.
The accused said his wife never sent him messages with emojis but did use ‘xx’ or ‘xo’.[90]
[90] VD transcript 217.
The accused was then shown P8 which were images from the Samsung Galaxy A20 seized from him, which contained messages dated July 2020 from persons he knew, which contained smiley faces and a hand showing the okay sign. There was also a message from his wife that had a crying laughing face emoji and other messages with different face emojis[91] The accused said he did not know his wife used emojis and he never used them, and he did not know what they meant.[92]
[91] VD transcript 219.
[92] VD transcript 221.
The accused denied that when he wrote ‘in person or internet’ he was referring to [E] being interested in child pornography or sex with children.[93] The accused then gave the following evidence:
QAt this stage you knew that she had a sexual interest in children, didn’t you.
ANot really.
QWhat do you mean ‘Not really’.
AAt that point I didn’t.
QDid you suspect.
ANo, I didn’t, no.[94]
[93] VD transcript 222.
[94] VD transcript 223, 8-14.
The accused said he sent a picture of his wife because E had said she was into girls. He denied that her response, ‘wtf…..i’m not a lesbian’ was understood by him as confirmation that she was not into adult women but was interested in girls. He sent the message ‘You do like girls!! X’ to clarify it.[95] She then clarified it by saying she was not into women.[96]
[95] VD transcript 225.
[96] VD transcript 226.
When E messaged him saying she was north of the city, 5’9”, dark hair, not skinny but not fat he believed that. He believed she was into ‘yunger’ and not legal taboo, but he did not know what that meant.[97]
[97] VD transcript 229-230.
The accused denied that he was talking about his sexual interest in children when he wrote, ‘Me too, girls or boys?’ in response to her message ‘i like yung’ or when he nominated the age of eleven when she asked him what ages he was interested in.[98]
[98] VD transcript 230.
The accused denied he was referring to sex when he wrote ‘11?’ and said that this was a question in response. However, he said that he believed her when she replied ‘mmmmmm….yesssss’ but said he did not know she had a sexual interest in 11-year-old children and was not sure what they were discussing at that point. He explained that he was trying to send messages with content that she wanted to hear. His objective was to get her attention so he could meet her.[99]
[99] VD transcript 231-232.
The accused said he knew that the message ‘8-12’ meant girls aged 8 to 12 but he was not sure it was sexual.[100]
[100] VD transcript 232.
The accused said that he was not aware of the ages of the children to whom the message ‘jus the innocent looks….the sexy developing bodys….the nawty taboo….idk…’ referred. When I asked him if he thought she was talking about pubescent children he said ‘I probably thought post puberty’.[101] He said he did not know if she was talking about 17 or 18-year-olds. The accused continued to deny that he knew or believed she was talking about pubescent children, despite his response, ‘Yes the body more than anything especially the sprouting tits, mmm’ and that this message was just a ‘rewording’ of her message to him. [102]
[101] VD transcript 233, 35.
[102] VD transcript 234.
The accused said that he wrote, ‘What have you done? I’d love to, looked a little online but I do not know what is safe?’ because he had never looked at anything to do with children online. It was then put to him that he knew she was talking about children, and he gave the following evidence:
AWell, she’d told me on the previous page or previous page to that that she was into developing.
QSo you did know she was talking about children when she sent that message.
AChildren that were going through development.
QYes, which to your understanding would be people under the age of 17.
ANot necessarily.[103]
[103] VD transcript 234, 37-38; 235, 1-6.
The accused conceded that he probably knew she was talking about child pornography,[104] and he was willing to keep talking to her and tell her what she wanted to hear because she was the only person who was talking to him. However, he said that he did not think she really had an interest in child pornography and thought it was a test, ‘… and if I didn’t respond and keep engaged then there were no chance of me meeting her’.[105]
[104] VD transcript 235, 12-16.
[105] VD transcript 235, 37-38.
The accused said he knew she was talking about children, and he responded in the way he did because he thought, ‘… if we have these conversations then ultimately we meet is what I thought would happen’.[106]
[106] VD transcript 236, 34-35.
The accused denied that he wanted to see sexual pictures of her daughters’ friends when he wrote, ‘Do you look at your daughters friends? ... Have you got pics?’.[107]
[107] VD transcript 237-238.
The accused denied that he was trying to encourage her. However, he agreed that he was willing to continue talking about child sex but said he thought it was a test. He said he did not think she was really interested in child sex.[108] He said that although she indicated she was into child sex he did not believe that. He denied ever thinking about engaging in child sex and was aware that it was illegal.[109]
[108] VD transcript 239.
[109] VD transcript 240.
The accused denied that he was describing having sex with her 8-year-old daughter when he wrote, ‘Now that fuck g turns me on a lot! Would you want me to be inside her? ... Would you want her to see me cum?’. He insisted that he was telling her what she wanted to hear. However, he agreed that she was talking about having sex with an eight-year-old.[110]
[110] VD transcript 242.
The accused denied that the messages on page 18 were referring to sexual activity with her eight-year-old daughter Brie. However, he could not explain why he then wrote, ‘Did you make her cum? …’ and said he was just trying to keep her engaged.[111]
[111] VD transcript 245.
The accused continued to deny that he was sending messages about meeting up to have sex with children, even in a ‘fantasy way’.[112] Although the accused continued to deny that he was conveying in the message a sexual interest in the child, Brie, he agreed that to someone reading those messages that is the perception the person would have.[113]
[112] VD transcript 248, 249.
[113] VD transcript 252.
The accused was taken to his record of interview in which he told police that he did not ever think that a parent would allow their child to be touched sexually and it was put to him that he knew that some parents sexually abuse their children. He said he had never heard of parents sexually abusing their children.[114] He agreed that at the time he was sending the WhatsApp messages he knew that adults had been known to sexually abuse children. He had heard about child pornography but never seen it himself.[115]
[114] VD transcript 245-255.
[115] VD transcript 258.
The accused denied deleting the WhatsApp messages when he was in the hotel carpark because he thought he was about to be caught by police.[116]
[116] VD transcript 256.
Although the accused denied knowing that the messages were about having sex with children, he agreed that someone reading the conversation would think that.[117] He did not realise this was illegal but sent them because he thought that the person with whom he was communicating was interested in getting messages which described having sex with children.[118]
[117] VD transcript 258.
[118] VD transcript 261.
In re-examination, the accused said that he noticed the message ‘wtf….’m not a lesbian’ and knew that ‘wtf’ meant ‘what the fuck’. At the time he understood that lesbian meant a female and female relationship but there was no significance to him in terms of the ages of the females. The accused also said that he did not regard the photograph he sent of his wife as pornographic.
Exhibits P 7 and P9 were tendered. The facts agreed were:
1. The phone number for the Samsung mobile phone (PPMS number 21/A51869-1) seized from the accused at the Ibis Hotel was 0427652763 and the subscriber to the service was LD&D Australia Pty Ltd.
2. On 23 July 2020, police attended [address redacted] Fulham Gardens, and seized an iPhone from the kitchen area. The iPhone was given PPMS number 21/A51869-3. The data was extracted by Constable Sam Sparvel from the Digital Evidence Section, who copied the data to a disc marked DES 2021-0126SS1.
3. On 23 July 2020 a Samsung Galaxy A20 PPMS NO 21-A5869-1 was seized from the accused’s person at the time of his arrest. The WhatsApp Messenger application was installed on the mobile phone and was running at the time it was seized. The messages to and from Detective O’Callaghan sent between 11.17am and 11.44am shown on pages 46 and 47 of VDP4 had been deleted by the user of the phone. Data from these deleted messages was still intact on the mobile phone and they were recovered by police. All other written messages to and from Detective O’Callaghan were not present on the accused’s mobile phone and were not recovered by police.
Closing submissions
Prosecution
Mr Adams contended that the electronic communications sent by the accused established that he had an interest in child sex. The messages unequivocally conveyed an intention to attend the hotel to have sex with 8-year-old Brie. Mr Adams said that what the accused did when he arrived at the car park was further evidence of his intended purpose. Mr Adams argued that the messages sent by the accused were plainly pornographic descriptions of the child Brie and his evidence regarding his state of mind was absurd and implausible.
The accused’s stated purpose for being on Locanto, as set out in his messages to E, was to find a woman for sex. Mr Adams said that this may or may not be the truth, but the accused’s sexual interests and purposes were wider than that. Mr Adams pointed to the accused’s username, ‘My3Babies’ as a signal that he was interested in sexual activity with a child. Mr Adams conceded that there was some support for the accused’s evidence that this was his standard username across a variety of platforms in the messages to his wife in P2. It was a username he mentioned in messages to his wife, and this might tend against the inference Mr Adams suggested I should draw.
Mr Adams argued that the words on E’s Locanto account clearly conveyed her interest in incest and that this was what attracted the accused to her. Mr Adams said that the fact that the accused might also have been attracted to E as a woman did not mean his sexual interests did not include deviant interests. The accused’s initial messages included ‘what you into’ and were suggestive of past experience in communicating on Locanto and the use of this as a standard opening line. The fact that the accused sent a message saying he wanted to enjoy a lady and worship her body did not mean that this was true. If it was true, it did not exclude a dual interest in sexual activity with a child.
In relation to the use of emojis and the inferences I could draw as to the accused’s understanding of them, Mr Adams suggested that the context in which they were used and what they depicted conveyed a deviant sexual interest. Mr Adams referred to the ‘devil’ or ‘sinister’ face emojis and the emojis depicting young children and submitted that the accused must have understood that E was interested in sexual activity with children. Mr Adams urged me to reject the accused’s evidence that he did not know what the emojis signified because P2 established that he sent and received a variety of emojis when he communicated with his wife.
Mr Adams said that the accused’s message to E that he was ‘open to taboo things’ was truthful and that he persistently pursued E. He said that the accused’s evidence that he pursued E because he could not find any other women interested in him was implausible. Mr Adams suggested that I could use my common-sense to find that there would have been plenty of women on the internet who would have been interested in having sexual activity with the accused. Mr Adams said the accused persisted with E because he was interested in sexual activity with children. This was borne out by the accused’s willingness to describe in messages the sexual fantasies in which he and E would engage with E’s child Brie.
Mr Adams said that the accused sent a picture of his penis because of the fear of detection and the need to maintain plausible deniability at an earlier stage. This changed later when the accused developed a level of trust in E, and it became clear that E was transparent in her pursuit of involving the accused in sexual activity with her child. The accused had ample opportunity to walk away from the conversation but instead enthusiastically engaged in conversation with E regarding her interest in sexual activity with children.
Mr Adams conceded that the accused identified himself, gave E his mobile telephone number and told her where he lived and that this might seem naïve but by this stage he had been corresponding with E for a month and might have felt safe enough to do so. Mr Adams said that the accused sent a picture of his wife’s torso to test the waters and ascertain the breadth of E’s sexual interests.
Messages from the accused such as ‘do you like your pussy been licked’ and asking her for a picture of herself might show his interest in having sex with E but that did not mean that this was his only sexual interest. He told E that he was into young girls, ‘around puberty’. Mr Adams said I should reject the accused’s evidence that this was a reference to adult girls.
Mr Adams said the accused’s interest in the ages of E’s children, and whether E had photographs of them and played with herself often showed that he was trying to determine if she had children that they could sexually abuse.
By the time the accused moved to the platform WhatsApp to communicate with E, the only reasonable inference is that he was interested in discussing sexual activity with a child. Mr Adams said that the accused’s messages, ‘I just want something different and what you like really turns me on’ and that he masturbated thinking about ‘what we like’ established that he had a sexual interest in children. The accused did not hesitate to respond to E’s messages suggesting that they experience sexual activity with a child together and was prepared to describe sexual activity with a child in his messages to E.
The fact that the accused had sexual interests wider than pursuing sex with an adult female was borne out by his message to E that he was bored with his wife and wanted something different to get him excited and was ‘even contemplating touching another man’. It was also supported by P5 because this established that the accused searched a website called ‘Men Looking for Men in Adelaide, South Australia’. Mr Adams said I should find that the accused’s message, ‘The thought of making a girl have an orgasm so young really does get me so hard’ was the truth.
Mr Adams said I should reject the accused’s evidence that he did not believe for a minute that E wanted to have sex with her own daughter. The accused was gratifying his own sexual interest in children by describing having sex with Brie in the messages to E.
Mr Adams said that the messages from the accused asking when they ‘could do this’ and whether Brie would let them, showed a clear intent to carry out the fantasies he was describing. The fact that the accused came up with the idea of a card game was because he was thinking of a mechanism by which he and E could play with Brie and sexually abuse her. He wanted to know if Brie would be relaxed in a motel because he knew the booking of the motel was for the purpose of having sex with Brie. He also exhibited concern about Brie’s reaction and whether she would take offence, how they would get her to take her clothes off and whether E had put anything inside her already, thus demonstrating that he was thinking through how the sexual activity might unfold. The accused’s denial in evidence that he was discussing sexual activity with Brie in these messages was plainly untrue.
Mr Adams said that the accused’s requests to meet E for coffee, or to visit her at her house before going to the hotel was because he was concerned about being apprehended but did not realise at that point that he had done anything illegal. He became increasingly nervous in the face of E’s reluctance to send him a picture of herself. However, when she did send him a photograph of herself and he commented on her panties and the fact that she was hot, that did show a sexual interest in E. Mr Adams said that the messages that followed continued to reveal the accused’s interest in having sex with both E and Brie and that he believed E was sexually aroused by his messages. By the time the accused sent the messages ‘are you sure you want to do this’ and ‘you could have police there and we both have a lot to lose. Just very nervous’ it was clear that he had those concerns because he intended to have sex with Brie. Whilst in the carpark he asked E to come out and meet him. Mr Adams said there would be no need for such concern if all the accused intended to do was have sex with E.
Mr Adams then dealt with the accused’s actions in the carpark. He argued that he deleted the messages from his mobile phone because he was frightened of being apprehended. He had a pack of playing cards with him, thus evidencing an intention to carry out his plan to play cards with Brie to relax her.
Mr Adams submitted that there were parts of the accused’s interview with police which were implausible. The accused said he had never heard of parents abusing their own children.
Mr Adams said that the evidence established that the accused intended to procure Brie for sexual activity in his presence at the hotel or with E in his absence. Mr Adams referred me to Attorney Generals Reference (No 1) of 1975 [1975] 2 All ER 684 in which procure was defined as ‘to produce by endeavour’ and that where the crime is to be committed by another there need not be agreement as to the form which the offence should take. Accordingly, Mr Adams said that if the evidence established that the accused intended to procure E to have sex with Brie, he is guilty of the charge.
Mr Adams said it was beyond doubt that the accused had produced child exploitation material and I should find him guilty of count 2.
Defence
In relation to count 1, Mr Allen conceded that there was no dispute that the accused had made a communication (which included a series of communications). The second element, proof of the accused’s intention, was in dispute.
Mr Allen emphasised the accused’s good character, his lack of prior criminal convictions and the absence of any child exploitation material found on any of his electronic devices. Mr Allen said that the initial messages sent by the accused in P3 revealed that the accused was looking for a heterosexual encounter with an adult female and did not interpret the words used by E on her advertisement as indicating an interest in sexual activity with a child. Mr Allen said the subsequent messages showed that this interest did not wane, as evidenced by the fact that the accused sent a photograph of his penis and sent messages to E asking about whether she enjoyed cunnilingus.
Mr Allen said that the prosecution could not exclude the reasonable hypothesis that the communications between the accused and E occurred because the accused was hoping to have some form of sexual activity with E and was prepared to say whatever he thought might be necessary in order for this to occur. In other words, the accused was telling E what he thought she wanted to hear. Mr Allen conceded that the fact the accused brought a pack of cards to the hotel supported the prosecution case that the accused had a dual intention but said a reasonable inference that was open was that the accused brought the pack of cards as a means of proving to E that she could believe what he had said in his messages.
Mr Allen then addressed count 2. Mr Allen accepted that the communications relied upon by the prosecution described a child under the age of 17 years engaging in sexual activity and met the definition of being of a ‘pornographic nature’ because the communications were intended or apparently intended to excite or gratify a sexual interest. Accordingly, the only issue or element in dispute was whether the prosecution had proved that the accused knew that the communications were intended or apparently intended to excite or gratify a sexual interest. Mr Allen said that if I had a reasonable doubt about whether the accused knew that the communications were intended or apparently intended to excite or gratify a sexual interest, I would find him not guilty. Mr Allen conceded that if I accepted the accused’s evidence regarding his intention in making the relevant communications, namely that he did so because he wanted to keep E engaged and he was telling her what she wanted to hear, I could infer that the communications were intended to excite or gratify E’s sexual interest.
Finally, Mr Allen addressed the relevance of the text messages in P2. Mr Allen argued that I should not find that the accused deliberately misled the court when he said in evidence that he never used emojis when he messaged his wife. Rather, the phone from which the messages was extracted was an old phone and of the thousands of messages, only 22 of those sent by the accused contained emojis. Accordingly, the accused simply did not remember that on a handful of occasions he used an emoji in a text message. Mr Allen also said that the accused’s messages to his wife were often very sexualised and explicit, and I could infer from that he was accustomed to such language and it was therefore not surprising that he expressed himself in a sexualised manner in the messages to E.
Findings of fact on undisputed matters.
I make the following findings of fact on the undisputed evidence led at trial:
·Locanto is an online classifieds website similar to the Trading Post. It has a worldwide reach and is accessible in eighty countries. The website enables items to be bought and sold but includes a dating and fetish groups component. Locanto is used by adults to meet other adults for sexual activity.
·WhatsApp is a social networking platform that permits messages to be sent and received in a private or group forum.
·In the course of his duties and pursuant to ongoing covert approvals, Detective O’Callaghan created an advertisement on Locanto and assumed the identity of a 37-year-old female ‘E’. The advertisement included the title, ‘lifes taboo short, Woodville – 37’. Further information was included: ’37 real female, into taboo. Love family;-)’.
·On 18 May 2020, the accused, using the username ‘My3Babies’ started communicating with Detective O’Callaghan’s assumed identity, E, on Locanto. Those communications are contained in P3.
·The communications between the accused and E ceased on Locanto on 17 July 2020 and commenced at E’s request on WhatsApp on 14 July 2020 until 23 July 2020. Those communications are contained in P4.
·The accused was arrested in the carpark of the Ibis Hotel at Gepps Cross on 23 July 2020 and a pack of playing cards and a Samsung mobile telephone were found on him. The WhatsApp Messenger application was installed on the Samsung mobile telephone and was running at the time it was found. The messages to and from Detective O’Callaghan between 11.17am and 11.44am shown on pages 46 and 47 of P4 had been deleted by the accused. Those messages were recovered. All other written messages between the accused and Detective O’Callaghan were not present on the phone and were not recovered by police.
·The accused’s home and place of work were searched. A mobile telephone found at the accused’s home was seized. No other child exploitation material was found on any device in the accused’s possession.
·The contents of the iPhone X located at the accused’s home address were extracted by a police officer from the Digital Evidence Section. Some of the data extracted from the iPhone X was copied and is contained in P2. P2 is 191 pages long and contains 1568 text messages sent between 11 September 2018 and 2 July 2020, just under two weeks before the alleged offending commenced. The overwhelming majority of messages in P2 are between the accused and his wife, LC. The accused sent 20 messages in which he used an emoji. The accused’s wife sent 48 messages in which she used an emoji. None of the messages in P2 contain emojis that were the same as the purple devil emojis sent by E in P3 and P4. None of the emojis accompanying messages sent by E to the accused in P 3 were used by the accused in P2. The emojis used by the accused in P2 which correspond with the emojis accompanying messages sent by E to the accused in P4 were the following: 浪.
·The accused participated in a record of interview after being informed of his statutory rights: P6.
·The mobile telephone number provided by the accused during the communications with E was subscribed to by the accused’s employer and was for a work issued mobile telephone.
·The accused has no prior convictions and is a person of good character. During the period of the alleged offending, he was married with three children and had recently moved to Australia from England. He lived at Fulham Gardens.
Assessment of witnesses
Prosecution witnesses
I accept the evidence of Detectives O’Callaghan and Townsend. Their evidence was unchallenged and related to the circumstances of the covert operation and the accused’s arrest. The matters about which they gave evidence were uncontroversial. They were both experienced and competent police officers who discharged their duties in the investigation and resolution of this matter professionally.
The accused
In assessing the accused’s evidence and the answers he gave in his record of interview I have taken into account the evidence of his good character. His good character is relevant in two ways: in assessing the likelihood of the accused committing the offences charged and in assessing the credibility of his answers in the witness box and the record of interview. I have borne in mind this evidence when considering whether I can draw from the evidence a conclusion as to the accused’s guilt.
I have carefully reviewed the contents of P3 and P4. In the absence of the accused’s evidence and the answers he gave in his record of interview, the inferences that are clearly open from a fair reading of the communications are as follows:
·The advertisement placed on Locanto by Detective O’Callaghan and its terminology are sufficiently opaque that an unsuspecting user would not immediately or necessarily conclude that the person placing the advertisement was interested in sexual activity with children. This is particularly so given the Locanto website was a mainstream advertising platform and used by people all over the world for a variety of buying and selling purposes, in addition to its use as a dating platform.
·The initial messages sent by the accused in P3 reveal that the accused was looking for a woman with whom to have sexual activity and was asking questions in order to ascertain whether E was interested in meeting him for that purpose.
·The accused did not initially understand the significance of E’s messages that she was into ‘yunger’ and thought that she was looking for a man younger than the accused.
·The password used by the accused was not one which would necessarily indicate to another person that the accused was interested in sexual activity with children.
·The messages on pages 8 to 10 of P3 suggest that the accused wanted to meet E for sexual activity and believed that she might respond favourably. The fact that the accused sent a picture of his penis reinforces this inference.
·The accused did not immediately understand E’s reference to ‘not legal taboo’ as involving sexual activity with children.
·The accused made no effort to disguise his identity and revealed his appearance, his mobile telephone number, the suburb in which he lived and where he worked.
·E’s messages made it clear to the accused that she was losing interest in him despite his persistence and she had not reacted favourably to the picture of his penis.
·E’s messages to the accused in P3 revealed that unless he was interested in her sexual proclivities the communications were likely to end.
·By the time the accused started communicating with E on WhatsApp it was obvious to him that she was professing an interest in sexual activity with children and was looking for someone with whom she could pursue that interest.
·The messages from E in P3 and P4 did not foreclose the possibility of the accused having sexual activity with E but the context in which E was prepared to allow that to occur was with her daughter Brie present and involved in the sexual activity.
·The accused was titillated and sexually aroused by E’s professed sexual interest in children and her interest in the accused engaging in sexual activity with her own child. The accused enthusiastically and actively participated in the conversations during which a rendezvous was planned where the accused, E and Brie would engage in sexual activity.
·The accused was prepared to meet with E at a hotel believing that she was going to bring her child for the purpose of engaging in sexual activity with E and the accused. The accused devised a game to play with Brie which would encourage her to engage in sexual activity with him and E.
Discussion and findings
In considering whether count 2 has been proved beyond reasonable doubt, I have evaluated the accused’s evidence of his state of mind and intention against the objective evidence of the messages he sent to E as captured in P3 and P4.
I find the accused’s evidence of the reasons why he visited Locanto and responded to this particular advertisement to be reasonable and plausible. I accept his evidence that he did not know that Locanto was a site where he might be exposed to child exploitation material.
I accept the accused’s evidence that he visited the site following a recommendation from a work colleague who had met a woman on that site. I also accept his evidence that he was unhappy in his marriage and looking for a sexual relationship with another woman. His evidence on this topic is supported by the messages in P2 which reveal tensions in his relationship with his wife proximate to the period of the alleged offending.
I am not prepared to infer that the accused’s password was designed to signal or indicate to others that he was interested in sexual activity with children. No evidence was led to refute his explanation for the password he used. He gave this explanation to E when asked. His evidence that this was the password he regularly used in a variety of forums was supported by messages on this topic in P2.
I find that the initial messages sent by the accused in P3 were sent because he was looking for a woman with whom to have sexual activity and was asking questions in order to ascertain whether E was interested in meeting him for that purpose. I reject the submission by the prosecution that the manner in which the accused messaged E was to maintain plausible deniability.
The accused’s evidence that his wife never sent him messages with emojis and that he never used them and did not know what they meant is contradicted by the messages in P2 and P8. As against that, the accused did not use a single emoji in any of his communications in P3, P4 and P8. The accused used an emoji in only a very small proportion of messages in P2. Significantly, there is no evidence that the accused used the devil emoji or received a message containing a devil emoji, other than the messages sent by E. The responses of the accused to E’s message containing devil emojis suggest that he did not understand what she meant when she said she was into ‘yunger’. Further, accused’s message to E on page 7 of page 3 ‘what are the faces’ supports his evidence that he did not understand the significance of the emojis E was using.
I am not prepared to find that the accused deliberately misled the court when he gave evidence that his wife and he never used emojis when they messaged each other. The more likely explanation is that he had simply forgotten the relatively infrequent occasions when he and his wife had exchanged messages containing emojis.
I find that the accused at first had no idea what E meant when she said she wanted someone into the same as her and that she was into ‘yunger’. As much is apparent from his response, ‘…I’m a little older than you at 44 but keep fit and decent looking! What exactly are you after?’. When E wrote, ‘yung, yung ’ the accused’s response was ‘…Can’t you give me a try??’. I find that the accused at that time did not understand that E was referring to a sexual interest in children.
I find that between 18 May 2020 and 30 June 2020, the accused believed that E may be interested in him sexually and had not realised that E’s messages were intended to convey that she was interested in sexual activity with children. In that time period the accused sent 59 messages to E including a picture of his penis and in return she sent him 16. In 6 of those messages, E told the accused that they were not into the same things, that she was sorry to waste his time and she did not know why he kept messaging her. Given the persistence displayed by the accused during that time, I accept his evidence that he pursued E up until this point because he thought she was looking for the same thing has him but with someone younger than him. There is no evidence to refute his account that he had not communicated for that length of time with anyone else on Locanto and that the other advertisements appeared fake or required payment for services.
There is also no evidence to refute the accused’s account that he had not used any other dating sites, had not heard of Tinder and did not have sexual interests wider than heterosexual adult relations. P5 does not provide an evidentiary basis from which I would be prepared to infer that the accused accessed ‘Men looking for Men’ for the purpose of sexual activity with a male.
The naivety of the accused is apparent from the overall content of the messages he sent E. I find that the accused did not know what ‘not legal taboo’ meant when he wrote the messages on page 5 of P3 but was intrigued to know more. I find that at this point the accused wanted E to know he was interested in her and it was for this reason that he responded to her message ‘are you into it tho???’ by saying, ‘I can be, I know what you mean, I do like to be naughty!...’ and ‘It sort of turned me on what you said, I’m open to taboo things’.
I infer from the messages on pages 8-10 of P3 that the accused wanted to meet E for sexual activity and believed that she might respond favourably. The fact that he sent her a picture of his penis reinforces this inference. There is a great deal of explicit sexualised conversation in P2 between the accused and his wife. He had sent a picture of a penis to his wife in message 383 in P2 during a sexualised conversation. I infer and find that the accused sent to his wife in message 398 on 3 January 2019 the same or similar photograph of his penis as shown on page 10 of P3. In his record of interview, the accused said that he no longer had the shoes he was wearing in the photograph as they had holes in the bottom. I find that this photograph was one that the accused had stored on his phone from an earlier conversation with his wife. The transmission to E of a picture of his penis is a clear signal of his desire to have sexual activity with her.
I find that the accused was genuinely intrigued and titillated by E’s reference to ‘not legal taboo’ but did not yet realise that E was referring to sexual activity with children. I infer and find that it was clear to the accused when he received the message, ‘i dont really know why u keep messaging me…we are not into [sic] the same things’ that E was losing interest in him and had not reacted in any way to the picture of his penis. I find that this prompted him to write, ‘I can be in to what you are just no considered it before?’.
The accused demonstrated a high degree of persistence and sent repeated requests to meet E and have fun. He made sexually explicit suggestions to her (‘do you like your pussy been licked’) and was obviously frustrated when he was met with silence. He made no attempt to disguise his identity, the suburb in which he lived, his telephone number and where he worked. Later, on WhatsApp he sent a picture of his face to E.
Towards the end of the many unanswered messages from the accused on Locanto, E told him ‘u not even in to the same as me’. I find that it was clear to the accused that he had no prospect of meeting E or engaging in sexual activity with her unless he told her that he had the same interests has her. When he responded, ‘I am into young girls, as I said around puberty! I’m sure we can have a little fun’, E’s response was to inform him that she was ‘older’ and her daughters were ‘yunger’. In other words, E was conveying to the accused that his interest in girls who had hit puberty did not align with her interests.
By the time the accused commenced messaging E on WhatsApp, I find that he believed that the conversation with E would not result in them meeting unless he said he was into what she was into. It would have been apparent to the accused that his messages about his penis, about mutual sexual activity with E and whether she masturbated were met with either no response or disinterest. It is only when the accused included a sexualised reference to children that he received an enthusiastic response.
The accused’s messages have a desperate quality about them, imploring E to give him a chance, to meet him and have fun together. I accept the accused’s evidence that he continued to message E because he wanted to meet her and thought there was a chance that might happen. I find that the accused wrote the message, ‘Bored with my wife a d want something different to get me excited, was even contemplating touching another man!’ because he wanted to show E that he was open to what he thought was unconventional sexual behaviour. I am not prepared to infer from P5 that the accused had homosexual tendencies.
I find that the accused was so desperate to have a sexual liaison with E that he became increasingly prepared to say anything to suggest that he was open minded and willing to experiment in the hope that she would agree to meet him. I find that by the time the accused commenced communicating with E on WhatsApp he was still hoping to meet her for sexual activity but understood that she was conveying to him that she had an interest in sexual activity with children.
The messages on page pages 11 to 13 of P4 suggest the accused believed that E fantasised about sexual activity with young children. When she said she wanted ‘… to play for real…..’ the accused said ‘Me too, how can we do that?’ and continued asking to meet with E. I find that the accused’s willingness to engage in conversation in which sexual activity with E’s child Brie was planned and discussed was motivated by his desire to meet E.
Whilst I accept that the accused responded to E’s advertisement because he wanted to meet an adult woman for a sexual liaison, I find that when E introduced the topic of sexual activity with children, the accused was a willing and enthusiastic participant in the messages on that topic.
I found the accused’s answers in cross-examination to be unconvincing on the following topics:
·That when he wrote, ‘I know, I like, girls or boys or both?’ he meant women and men.
·That when he responded to the message, ‘i’m 37…. … wot ages u in to?’ by writing, ‘I’m 40, like puberty age!’ he was talking about adults who had been through puberty.
·That by the time he sent the message, ‘… In person or internet?’ he did not suspect that E had a sexual interest in children.
·That when he wrote, ‘… I know, I like, girls or boys or both?’ in response to E’s message ‘… i am in to yung….’ he was not referring to his sexual interest in children.
·That the message ‘8-12’ meant girls aged 8 to 12 but he was not sure this was sexual.
·That he thought E was referring to post pubescent children when she said, ‘jus the innocent looks….the sexy developing bodys….the nawty taboo….idk…’ and that he did not necessarily think this meant children under 17.
·That when he wrote Now that fuck g turns me on a lot! Would you want me to be inside her? ... Would you want her to see me cum?’ he was not describing having sex with an 8 year old.
·That the messages on page 18 of VDP4 were not referring to sexual activity with E’s 8-year-old daughter Brie.
I formed the impression that the accused gave this evidence because he had difficulty accepting the indisputable fact that he knowingly engaged in a conversation about having sexual activity with a child. He was forced to concede that a reader of the conversation on page 18 of P4 would construe it as a conversation about sexual activity with a child in which he had expressed a sexual interest in the child, Brie.
In his record of interview, the accused said that he engaged in these conversations because it was about ‘getting her interested’ and ‘getting her turned on’. This inference is open on a fair reading of the communications in P4, and I find that this was the accused’s intention. However, I do not accept the accused’s assertion in his record of interview that he was not sexually aroused during his communications with E.
The accused has given evidence on oath and participated in a record of interview. He has explained his state of mind and the reasons why he communicated with E in the manner that he did. I remind myself that the accused bears no onus. However, if I accept (or cannot reject as a reasonable possibility) his evidence that he did not intend to procure Brie to engage in or submit to sexual activity with him or E, then I must find him not guilty of count 1.
I find that the accused engaged in conversation regarding sexual activity with Brie because he believed that in so doing, he would maintain E’s interest in him, and she would agree to meet with him if he continued to suggest to her that he was as interested as she was in sexual activity with Brie.
On the morning of the accused’s arrest, the messages in P4 reveal that he was becoming increasingly concerned about the meeting with E. I find that by this time he was unsure whether E was legitimate or whether he was the victim of a hoax.
I am troubled by the accused’s message referring to the possibility that E may have the police at the hotel. At the time the accused sent this message, I find that he was concerned about the fact that he had sent messages to E in which he had discussed sexual activity with children. I am satisfied that he believed that this was conduct that would get him into trouble with the law. In his record of interview, the accused explained that all sorts of things were going through his mind at that point, including whether E had lured him there because she had a vendetta as a result of something happening to her children. Although the accused had signalled his intention to engage in extra-marital sexual relations from the time he responded to E’s advertisement and in furtherance of that intention had knowingly engaged in conversations about sexual activity with a child, I am not prepared to infer that his concerns about police attendance (which extended to deleting the WhatsApp messages immediately prior to his arrest) were because he had in fact been intending to engage in sexual activity with Brie or procure Brie to engage in sexual activity with E.
Although I have rejected some parts of the accused’s evidence as implausible or unconvincing, I am not prepared to reject his evidence that his sexual interest was in E and not her child Brie. The content and sequence of the messages sent by the accused in P3 and P4 do not enable me to exclude this state of mind as being a reasonable possibility. In arriving at this conclusion, I have also taken into account the evidence of his good character and the fact that no child exploitation material was found on any devices in his possession.
I find that the accused communicated a willingness to have sexual activity with Brie and E so that E would agree to meet him and engage in sexual activity with him. The sequence and content of the messages supports this conclusion. It would have been apparent to the accused when the following series of messages were exchanged that he may have achieved his objective:
[The accused] Ha ha yeah x
I’m nervous but looking forward to.it,
what you looking forward to most?
[E] EVERyTHING.….been wanting to try for sooo long…..
Hbu
[The accused] Seeing you both naked and licking you both and Brie cumming!
[E] omfg…….i hope that happens
[The accused] You like that?
Even if she doesn’t Mummy will!!
I am troubled by the fact that the accused took with him a pack of playing cards, but I cannot exclude the reasonable possibility that he did so simply because he had been asked by E to bring them and not because he intended to use them in the course of sexual activity with Brie. After careful consideration of all of the evidence, including that evidence of the accused that I accept or am unable to reject, I am not satisfied beyond reasonable doubt that the accused made the communications intending to procure a child to engage in or submit to sexual activity whilst still a child. I find the accused not guilty of count 1.
Did the accused produce child exploitation material?
I find that the following messages sent by the accused in P3 describe a child under the age of 17 years (‘Brie’- 8 years old) engaging in sexual activity and constitute material that is of a pornographic nature:
·Would you like to see her cum? I would be, lick her pretty deep’[119]
·Would you want me to be inside her? Would you want her to see me cum. I would love it, so tight it would make me cum so quick![120]
·Do you think she would like it? Would you cum, we could show her first by me licking you?...That could be really good, one lick for mummy, one lick for?[121]
·This is a bit different, we will literally be having sex with her, she may lose her virginity?[122]
·Oh ok, will show her oral, would you want her to taste me? How about kissing, what are your thoughts on that? We could all kiss each other, how would we get to take her clothes off. Ok have you put anything inside her already?[123]
·Do you really want me to take her virginity? Of course I would love to I don’t want to hurt her or ruin her first experience! If you could hold her hand that would be good?X.[124]
·Seeing you both naked and licking you both and Brie cumming.[125]
[119] Page 17.
[120] Page 17.
[121] Page 18.
[122] Page 25.
[123] Page 25.
[124] Page 26.
[125] Page 39-40.
I reject the accused’s evidence as unconvincing or patently implausible on the following topics:
·That when he wrote ‘Now that fuck g turns me on a lot! Would you want me to be inside her?..Would you want her to see me cum?’ he was not describing having sex with an 8 year old.
·That the following messages were not referring to sexual activity with E’s 8 year old daughter Brie: Do you think she would like it? Would you cum, we could show her first by me licking you?...That could be really good, one lick for mummy, one lick for?[126]
·That he did not really think E was interested in child sex.
·That he did not realise that E was talking about having had sexual activity with her daughter Brie.
·That he did not tell E in the messages that he was sexually interested in children or conveying a sexual interest in Brie.
·That he had never heard of parents sexually abusing their children.
[126] Page 18.
I accept the accused’s evidence on the following topics:
·That he thought E wanted to hear about child sex and he was willing to tell her what she wanted to hear.
·That when he sent the messages describing sexual activity with Brie he was not talking about meeting up to engage in sexual activity with a child.
·That he thought E was interested in getting messages containing a description of having sex with children.
I am satisfied beyond reasonable doubt that the messages referred to above were intended or apparently intended to excite or gratify sexual interest. The sexual interest intended to be excited or gratified need not be that of the accused (exclusively or at all) and in this case it was intended to be E, the recipient of the messages. I am satisfied beyond reasonable doubt that the accused knew of the pornographic nature of the messages because he wrote them and his purpose in doing so was to excite or gratify what he believed to be E’s sexual interest.
I find the accused guilty of count 2.
Verdicts.
Count 1 – not guilty.
Count 2 – guilty.
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