R v DALY
[2021] SADC 131
•26 November 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DALY
Criminal Trial by Judge Alone
[2021] SADC 131
Judgment of her Honour Judge Tracey
26 November 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with four counts of communicating for a prurient purpose and with the intention of making a child amenable to sexual activity - communications with a covert operative - circumstantial prosecution case - identity of offender in dispute.
Verdicts: Guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(b); Evidence Act 1929 (SA) s 34P(2)(b); Criminal Investigation (Covert Operations) Act 2009 (SA), referred to.
R v Symons [2018] SASCFC 48; San v The Queen [2020] SASCFC 35; Quist v The Queen [2021] SASCA 106, applied.
Dent v The Queen [2021] SASCFC 4; R v Baden-Clay (2016) 258 CLR 308, discussed.
R v DALY
[2021] SADC 131
The accused is charged with four counts of communicating for a prurient purpose with the intention of making a child amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act1935 (SA).
He pleaded not guilty to all charges and elected for a trial by judge alone.
The Prosecution Case
The prosecution alleged that on four occasions, over a 15-month period, the accused made a series of online communications to a police officer who was representing himself as a 13, and later, 14-year-old girl. The communications were made on a social media application called Kik, using a particular username ‘finite22’ and a particular profile name, of ‘noone’. During these conversations the accused engaged in intimate conversations about sex and sent more than 10 explicit photographs of himself. He asked the girl to send intimate pictures of herself on multiple occasions, described himself masturbating whilst speaking to the girl and provided masturbation instructions, including instruction on how she should touch her vagina.
On the prosecution case the accused’s communications were unambiguous, clearly related to the sexual gratification of the accused and/or of that of a child and, therefore, could only have been made for a prurient purpose and with the intention to make the girl amenable to the sexual activity he had described to her.
The prosecution case relied wholly on circumstantial evidence.
Count 1 concerned communication on 24 June 2018, where finite22 sent a photograph of his partially exposed penis saying it is a tease and gave a step‑by‑step guide to female masturbation. Another photograph of an erect penis was sent together with a video of an adult female masturbating.
Count 2 concerned communication on 16 July 2018, where finite22 pressured the operative to send a picture of herself and the operative expressed hesitation. Finite22 sent a picture of his exposed erect penis against a background of a grey couch, very similar to a couch later located in the accused’s house.
Between July 2018 and February 2020, finite22 and the operative corresponded frequently, and the tone of that conversation was often overtly sexual.
Count 3 concerned communication on 20 February 2019 where finite22 asked the operative if she had masturbated before bed and told her he had ‘come’ thinking of her lots of times and fantasised what they would do if they cuddled up in bed together. Again, finite22 sent a photograph of his erect penis, telling the operative that it was taken of himself masturbating. He also sent a picture of his naked chest and groin area where his pubic hair was visible but not his penis.
Later in this conversation the operative said she was at school and finite22 asked her to go to the bathroom and send him a picture of herself in uniform.
Count 4 concerned communications on 28 April 2019, which occurred toward the end of communications with the operative. Leading up to this conversation the operative told the accused she recently found a boyfriend. The accused told her she would soon be experimenting with him and asked if she had seen the boyfriend’s penis. Finite22 sent a selfie taken in his bathroom mirror, with numerous identifying characteristics visible in the photograph. He sent pictures of his penis and described how the operative should go about sexually pleasuring her new boyfriend. The communications on this date finished with the accused telling the operative he would be ‘coming’ thinking about her in five minutes time.
The last communication was sent on 15 May 2019. On 14 June 2019, police attended the accused's home address and arrested him for the subject offending.
The prosecution called Detective David Townsend who was the operative maintaining the authorised covert online profile on Kik, and Detective Brevet Sergeant Chadbourne who arrested the accused and was the investigating officer.
The Defence Case
No evidence was called on the defence case. His case was that I could not be satisfied that the accused had sent the communications the subject of each count and that in any event, I could not be satisfied that the accused intended to make the child in the communications amenable to sexual activity.
Elements of the offence
The prosecution must prove beyond reasonable doubt each of the following elements:
1.The accused made a communication.
A communication includes an electronic communication and need not be to a child.
2.The communication was made for a prurient purpose.
A person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or with the intention of providing sexual arousal or gratification for someone else. The prosecution alleges that the accused held either or both of these intentions when making the communications the subject of the charges.
3.The communication was made with the intention of making a child under 17 years amenable to sexual activity.
‘Amenable’ means to influence the child to yield, submit or cooperate. In R v Symons[1] it was held that sexual activity should be given its ordinary meaning, which includes the many behaviours, whether physical or verbal, which are capable of being sexually stimulating. As such sexual activity is not confined to physical activity.
In Symons it was also held that intimate conversations about sex are not just a prelude to sexual activity, they are sexual activity in themselves, that is, sexualised discussions are sexual activity for the purposes of the charge. Further, in a communication or series of communications the accused may have the intention to make a child amenable to more than one sexual activity and a charge alleging such a series of communications is not duplicitous.[2]
[1] [2018] SASCFC 48.
[2] San v The Queen [2020] SASCFC 35 [31]-[32].
General Directions
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the charges lies wholly on the prosecution. The accused is not obliged to prove that he did not commit the offences. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict the accused of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him because of his exercise of that right. Before the accused is convicted of any offence, the prosecution must prove beyond reasonable doubt each element of the offence. If there is an explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must be found not guilty of the charge under consideration.
As the prosecution case rests upon circumstantial evidence, the accused cannot be found guilty of any charge unless the circumstances exclude any reasonable explanation consistent with innocence. To find the accused guilty of an offence, I must be satisfied, not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances I find proven enable me to draw.
The approach to the circumstantial evidence in this case requires two steps. First to look at the items of circumstantial evidence the prosecution relies upon, and decide which facts are established by that evidence and then consider what inference or inferences I am prepared to draw from those facts. I am required to consider the combined strength of the facts I find have been established by the evidence.
There was evidence from photographs found by police on the accused’s phone that he was someone familiar with illicit drugs. That evidence was relevant on the prosecution case to explain why the accused may have been concerned to have his phone searched by police and provide a false passcode. It would be impermissible to reason that because of any familiarity or use of illicit drugs the accused was a person of general bad character and therefore more likely to have committed any of the charged offences. I have not reasoned in that way.
While the prosecution filed a discreditable conduct notice pursuant to s 34P(2)(b) in relation to cross-admissibility of the charged acts and evidence demonstrating a specific sexual attraction and a tendency to act in furtherance of that attraction, I found that the strength of the circumstantial evidence was such that I have not used the evidence in that way.
Agreed Facts[3]
[3] Exhibit P5.
The following facts were agreed.
1. The accused was born on 16 June 1989 in Wellington, New Zealand.
Vodafone
2. Between 19 February 2018 and 16 May 2019 mobile phone number 0430 878 860 was a Vodafone service subscribed to by the accused.
3. When a subscriber to an Internet Service Provider (“ISP”) logs onto the internet using a device the ISP assigns the user a unique Internet Protocol (IP) address. Vodafone Australia is one such ISP. Vodafone Australia maintains records of IP addresses it assigns to subscribers when the subscriber logs onto the Internet.
4. The following table shows IP addresses that were used to log onto the internet and to access the Kik account “finite22” on particular dates.
Date
IP address
30 April 2019
120.20.25.91
7 May 2019
120.20.174.17
10 May 2019
120.20.9.127
5. Each of the above IP addresses was owned and assigned to the subscriber by Vodafone Australia. Each of the above IP addresses was subscribed to by the accused and recorded against an address of 23W 18-28 Main Street, Mawson Lakes SA 5095.
Digital items seized from accused’s residence
6. The following items were seized from the accused’s residence on 13 June 2019 by police.
PPMS Item
Description
Location seized
19/B64518-1
Samsung SM-G955F mobile phone
Loungeroom on couch
19/B64518-2
Clear mobile phone cover
Master bedroom on bed
19/B64518-3
Acer Aspire V5 laptop computer
Bedroom 2 (set up as office/wardrobe) on desk
19/B64518-4
Apple iPhone 5 mobile phone
Loungeroom in drawer of TV cabinet
19/B64518-5
Huawei tablet
Kitchen on bench
19/B64518-6
Western Digital hard drive
Bedroom 2 (set up as office/wardrobe)
7. Items 1 and 3-6 were submitted to the Digital Evidence Section (DES) for their contents to be extracted.
8. On 27 August 2019 DES officer Robert Neville attempted to extract the contents of the Samsung SM-G955F mobile phone and the Huawei tablet. Both were locked by pin codes unknown to SAPOL and as such their contents could not be extracted. The Western Digital hard drive was found to be broken and as such its contents could not be extracted.
9. The Acer Aspire V5 laptop computer and Apple iPhone 5 mobile phone’s contents were extracted and subsequently reviewed by police. Nothing relevant was located on either device.
10. On 26 July 2021 the Samsung SM-G955F mobile phone was resubmitted to DES. On this date DES officer Andrew Soltes successfully extracted the contents of this phone and made this extraction available to Detective Chadbourne.
Evidence of Detective Sergeant Townsend
Detective Townsend had worked within the Joint Antichild Exploitation Team, known by the acronym JACET, which he described as a team of State and Federal Police, digital forensic experts and intelligence investigators who are primarily focused investigating child exploitation offences that have an online element.[4]
[4] T 12.4-25.
In February 2018, he was authorised under the Criminal Investigation (Covert Operations) Act 2009 (SA) to maintain a covert profile on the social media application Kik, to conduct investigations in relation to suspected offences contrary to child exploitation material and related offences.[5]
[5] T 12.26-13.13.
During his time at JACET he used the application Kik most days over a three‑year period while conducting online operations.[6] He would predominantly use the application on a mobile phone.[7] When he used Kik he downloaded the application through the Google Play Store.[8] Within Kik, there is the ability to transmit written messages and photographs and, at the relevant time in this case, also videos.[9]
[6] T 14.10-11.
[7] T 14.22-24.
[8] T 15.10-14.
[9] T 17.9-17.
When he had downloaded Kik to a device, he was required to pick a unique username, however there was no requirement to provide a mobile phone number.[10] The operator chooses both a username and a profile name.[11] While the username remains constant and cannot be changed, a profile name can be changed.[12]
[10] T 17.30-18.1.
[11] T 17.14.
[12] T 18.2-15.
Within Kik, there are public groups which can accommodate up to 50 different profiles.[13] Detective Townsend described it as like a chat forum that is private for those 50 people.[14] A Kik user can search public groups to ascertain which group they would like to join.[15] Once a group is joined, the profile names of the other members can be viewed.[16]
[13] T 18.18-20.
[14] T 18.20-22.
[15] T 18.27-29.
[16] T 19.2-4.
In February 2018, he was maintaining a profile on the Kik application, with a profile name described as DTT001, holding himself out to be a 13-year-old female residing in Adelaide.[17] His profile photo was set as a picture of a child in a school uniform.[18] A copy of the Kik communication between finite22 and Detective Townsend was tendered.[19]
[17] T 19.36-20.19.
[18] T 20.30-33.
[19] Exhibit P2.
He and finite22 first spoke on 20 February 2018 when finite22 initiated contact in a private message on Kik.[20] The messages related to topics such as parents and school, and Detective Townsend described himself as a 13-year-old girl attending school.[21] Finite22 responded he was too old to be talking to someone of that age and said he was 20.[22] Finite22 said he lived at ‘Mawsons’ and next to Parafield Airport.[23]
[20] T 21.15-24.
[21] Exhibit P2, Tab 20.2.2018 – 18.6.2018, screenshots 2-4; T 24.21-33.
[22] Ibid screenshots 5-6; T 25.12-14.
[23] T 26.31-38.
By June 2018, finite22 had introduced a strong sexual flavour to the conversation, sending an unsolicited video of himself masturbating his penis to ejaculation,[24] which he also described. A screenshot of the video showed finite22 wearing grey trackpants and carpet in the background.[25]
[24] T 28.33.
[25] T 28.34-29.6.
Detective Townsend explained that ‘IP address’ meant internet protocol address.[26] An IP address is a number that is provided by an internet service provider to individual computers or devices so that traffic that is being sent over the internet can know where the information has come from and where to send a reply.[27] Each device will receive its own IP address.[28] Detective Townsend confirmed an IP address is a number used by a device to access the internet and logged showing that it was that device that accessed the internet.[29]
[26] T 49.9.
[27] T 49.12-16.
[28] T 49.16-17.
[29] T 49.18-22.
An IP address can be static or dynamic.[30] A static IP address remains the same when a user disconnects from the internet and then reconnects.[31] A dynamic IP address is provided by the IP service provider each time a user connects.[32] Detective Townsend confirmed that with a dynamic IP address, the IP address might be different on each occasion a connection is made and that internet service providers keep a record of the IP address.[33]
[30] T 49.23-24.
[31] T 49.26-30.
[32] T 49.30-32.
[33] T 49.33-50.9.
‘VPN’ means virtual private network.[34] A VPN is like a home network where you could have multiple devices using the same internet connection – all the devices on the same internet connection can talk to each other.[35] A VPN is a network that only people who are given access by way of a password can access.[36]
[34] T 50.10-13.
[35] T 50.15-18.
[36] T 50.18-21.
Detective Townsend said use of a VPN does not mean that the user’s real IP address is not visible.[37] It is sent to the provider of the VPN who collects the IP address but then encrypts the data and sends it back out from their server which will produce a different IP address.[38] Detective Townsend said that if it was a company in Australia and he knew who the VPN provider was, he could go to that provider and access records, if they exist, of who had that IP at the particular time.[39] He said that many of the VPNs advertise that they do not keep records, making it harder to be tracked and thereby more attractive to some users.[40]
[37] T 50.25-27.
[38] T 50.27-31.
[39] T 50.31-35.
[40] T 50.35-37.
Detective Townsend confirmed it is possible to connect to the internet via a VPN, using software installed on a device.[41] He explained that the software is unique to each different company, which all have their own individual settings, but in his experience, you can go into the application, pick a location that you want to connect to, where the VPN is hosting their server, or it can be set it up so they make the connection automatically.[42] Detective Townsend used the example of people wanting to access television programs on a streaming service in another country who use a VPN which connects them to a server in that country that effectively tricks the streaming service into thinking that they were a local user, allowing them access to the programs in that other country.[43] Detective Townsend confirmed that from the overseas streaming service’s perspective, they are receiving an incoming IP address that appears to be originating locally and records an overseas IP address, rather than the IP address in Adelaide.[44]
[41] T 50.38-51.2.
[42] T 51.4-10.
[43] T 51.26-33.
[44] T 51.34-52.3.
When sending a photograph, there are options as to the source used for the photograph. Detective Townsend was able to select a picture from a gallery, which appeared as if it were a ‘live’ picture and sent finite22 an image of a girl in a school uniform.[45] He used various methods to try and capture the IP address of finite22 on a different platform to gather more intelligence but was unsuccessful.[46]
[45] T 40.31-4.31, Exhibit P2, Tab 9.7.2018 – 5.8.2018, screenshots 61-3.
[46] T 45.30-46.8.
The message he sent to finite22 on 15 May 2019 was recorded as having been sent but not read.[47] During the investigation, Detective Townsend made an inquiry of the company that runs Kik regarding details held by that company that related to finite22.[48] Kik provided some documents in response. In his experience, when a request is made for information from Kik regarding records concerning a particular user, Kik take down the profile of that user.[49] That the message sent on 15 May 2019 never changed to indicating that it was delivered, indicated to him that the profile finite22 had been shut down subsequently.[50]
[47] T 46.28-31.
[48] T 46.32-35.
[49] T 47.5-10.
[50] T 47.11-17.
Following his request that Kik provided him documents relevant to finite22, Detective Townsend received Kik subscriber data which was tendered as a business record of Kik.[51]
[51] Exhibit P3.
The Kik records were generated on 23 May 2019 and showed the user details recorded were ‘noone noone’; an email address which was described on the document as ‘unconfirmed’; the username ‘finite22’; the version of the application being used, starting with 15.11; and, that the application was downloaded from Google Play.[52]
[52] Ibid.
Various ‘user location’ were captured by Kik which Detective Townsend agreed indicated that the user of finite22 had been connecting from IP addresses not just in Australia but in various foreign countries and cities.[53] Checks on the IP addresses found that all except three referred to just two different cloud-based internet providers which have servers world-wide.[54] Further research revealed the IP addresses were being used by a VPN provider, which meant that either the user was actually in that location, or it was made to appear that was the case.[55]
[53] T 54.1-5.
[54] T 54.10-13.
[55] T 54.13-22.
Investigations into the three entries were provided to Vodafone for an IP address check.[56] The response indicated that Vodafone recorded the accused at his Mawson Lakes address where he was arrested, with his correct birth date and mobile phone number.[57]
[56] T 55.2-11.
[57] Exhibit P4; T 57.1-14.
Detective Townsend was referred the message ‘Cheekaboo’ sent at 8.42pm on 30 April 2019 (‘the Cheekaboo communication’).[58] Detective Townsend confirmed that the Vodafone records show that on 30 April 2019, the same date that the Cheekaboo communication was occurring, the IP address subscribed in the accused’s name contacted the internet.[59]
[58] Exhibit P2, Tab 19.2.2019 – 15.5.2019, screenshot 55.
[59] T 57.25-35.
In cross examination, Detective Townsend agreed the email address recorded in the Kik records for finite22 was described as ‘unconfirmed’.[60] While the profile picture for finite22 was uploaded on 23 August 2018, that was in US time and would therefore have been 24 August 2018 in Australian time.[61] He confirmed the ‘Registration time stamp’ indicated, in US time, a registration of 1 December 2016, and noted users are not required to upload a picture straight away.[62]
[60] T 58.7-10.
[61] T 58.15-23.
[62] T 58.24-26.
Detective Townsend was unable to say what ‘install date’ noted on the Kik records specifically meant.[63] He confirmed there appeared to be a ‘registration’ made on 1 December 2016 but could not recall how far back he asked for records and was therefore unsure if there was any activity before the date about which he had asked.[64]
[63] T 58.37-59.3.
[64] T 59.4-8.
Detective Townsend went on to say that the records seemed to indicate that the Kik application was installed on the device SMG955F[65] on 14 May 2019 and accepted this date is after the date of charged offending.[66]
[65] UTC registration client info brand=Samsung’ and ‘Model-SM-G955F’ matches the make and model of the phone seized from the accused when he was arrested.
[66] T 59.10-19.
Detective Townsend confirmed that reference in the Kik document to ‘Challenge’ with an equals sign is meaningless to him and that he had no understanding of the meaning of ‘Registration since install’.[67] When asked about the entry ‘Log in since install 31’, Detective Townsend said he assumed that the person logged in and out of the Kik application on their phone, like any messaging app.[68]
[67] T 59.36-60.3.
[68] T 60.4-12.
The Kik records showed use of the accused’s IP address through Vodafone on 29 April 2019 at 22:40:22 seconds.[69] This entry was followed by a time on the same date of 22:40:37 seconds, which Detective Townsend agreed was another IP address he believed to be used through a VPN.[70] When asked whether that information implied that Kik was being connected on the IP address for the entire duration between 22:40:22 and 22:40:37, Detective Townsend agreed that did not mean it had to be connected to that particular IP address for the duration of the 15 seconds, as the entry was just a point in time capture of an IP address.[71]
[69] Exhibit P3.
[70] T 60.24-27.
[71] T 60.28-61.2.
Detective Townsend was referred to a screenshot of the only activity between himself and finite22 on 30 April 2019,[72] where the times of the activity were recorded as 8.42pm and 9.12pm Detective Townsend said the Kik records in Exhibit P3 did not show that finite22 was talking to him, but rather that he could be talking to anyone on Kik.[73]
[72] Exhibit P2, Tab 19.2.2019 – 15.5.2019, screenshot 55.
[73] T 61.15-21.
Detective Townsend agreed that an entry dated 6 May 2019 UTC, would be just after midnight on 7 May 2019, Adelaide time and there was no message that accorded with that time.[74] He said someone could have logged in at that time and stayed logged in and not captured the IP address again.[75] If there was a connection beforehand, they could have stayed logged in.[76]
[74] T 61.30-62.19.
[75] T 62.19-21.
[76] T 62.21-23.
He agreed that a connection can be made via a VPN such that it is difficult to trace where the person is who logs in.[77] In this case, he was unable to say where the person was at the point of any access via a VPN.[78] He did not attempt to contact the VPN provider to find out as they appeared to be based overseas, and in his experience, any attempt would be unsuccessful.[79] Detective Townsend said that the entries showed that Kik had captured that user using those IP address at those particular times.[80] He was unsure whether that meant they logged in at that specific time.[81]
[77] T 62.24-33.
[78] T 62.34-37.
[79] T 62.37-63.1.
[80] T 64.14-16.
[81] T 64.16-17.
He agreed the records from the Vodafone documentation[82] showed that there were three different IP addresses that had been assigned to the accused but did not identify the one specific device that was used. Rather it said that it was someone using the accused’s internet account.[83] They would have to know the username and any password that is on there to access the account.[84]
[82] Exhibit P4.
[83] T 64.18-26.
[84] T 64.26-27.
He agreed that while there was a password on the accused’s phone at the point of arrest, he had no knowledge of whether there was a password at an earlier time.[85] He agreed that a phone could be set up with a personal hotspot allowing other devices to access an internet service provider without involving the actual physical device of a person, provided they were in range.[86]
[85] T 64.28-32.
[86] T 64.33-65.1.
Detective Townsend agreed that with respect to the final identified Vodafone IP address on 10 May 2019[87] there was no contact between finite22 and himself that corresponded to that point in time.[88]
[87] Exhibit P2, Tab 19.2.2019 – 15.5.2019, screenshot 58.
[88] T 65.2-10.
Detective Townsend was asked about the concept of ‘blue-snarfing’, which was described to him as when a Bluetooth engaged device and the information on that device can be accessed by others.[89] Detective Townsend said that he had no understanding of how that would work.[90]
[89] T 65.18-24.
[90] T 65.25-26.
As to any awareness through training and experience, that there are mechanisms that people may use to hack into computers or devices to get information, Detective Townsend said his training would suggest that it is generally when the person at the other end does something to allow access as opposed to someone hacking in.[91] In the majority of cybercrimes, a link would be sent which when clicked on by the receiver, would allow access to the person sending the link.[92] He agreed that this was similar to the tactic that he had tried to employ with ‘finite22’.[93]
[91] T 65.27-34.
[92] T 65.34-37.
[93] T 65.38-66.3.
Detective Townsend said he could not comment on other devices discovering and obtaining information from Bluetooth enabled and discoverable devices and said he had no knowledge of how that could be done.[94]
[94] T 66.5-10.
In re-examination, Detective Townsend agreed someone could access the internet using the IP details in the Vodafone documentation[95] if they were within range of the accused’s mobile IP address, which he described as a short distance and from his experience, not kilometres away.[96]
[95] Exhibit P4.
[96] T 66.15-67.5.
With the consent of defence counsel, Detective Townsend was recalled to give evidence. He said that since giving evidence, he had received a further business record from Kik entitled ‘Kik’s Subscriber Data Glossary’ (‘the glossary’).[97] The document was said to having been last revised in April 2018.[98]
[97] Exhibit P18; T 102.10-13.
[98] T 102.24-27.
The glossary stated that Kik ‘collect IP address information up to 30 days old. This information is provided by third parties and isn't verified by Kik’.[99] This was consistent with the information contained in Exhibit P3 as the entries commence on 24 April 2019 and conclude on 14 May 2019.[100]
[99] Exhibit P19; T 102.34-37.
[100] T 103.8-12.
The glossary stated that ‘email addresses may either be confirmed or unconfirmed’ and by reference to Exhibit P3, Detective Townsend confirmed that email address of ‘[email protected]’ was ‘unconfirmed’.[101]
[101] T 104.8-10.
As set out in Exhibit P3, Kik noted that the username is unique, can never be replicated, can never be changed or altered and will never contain spaces, emoticons or special characters.[102]
[102] T 103.32-36.
The glossary referred to ‘Profile Pic URL’ and noted ‘link to the user’s current profile and background picture’. There were two links for the profile photo, one for a large sized profile photo and one for a thumbnail.[103] On Exhibit P3 there is a heading ‘Profile_Pic_URL’. Consistent with the glossary, the first entry is a file ending ‘orig.jpg’ and immediately below that, the equivalent photograph is referred to but in a thumbnail size ‘thumb.jpg’.[104] From Exhibit P3, the version of Kik used here started with 15.11.[105]
[103] T 104.22-25.
[104] T 104.29-35.
[105] T 104.36-105.2.
Kik described the registration time stamp as being in coordinated universal time, UTC time, which Detective Townsend agreed was not US time, but rather, a specific time upon which time can be added to reach time in Australia.[106]
[106] T 105.3-9.
‘User locale’ is the language typeset on the user’s device, recorded on Exhibit P3, as EN_u, which Detective Townsend said was a generic way to represent Australia on the internet.[107]
[107] T 106.1-8.
Under the heading ‘Registration Client Info’ information about the country code, the device type model and prefix is recorded.[108] Here, Kik records a prefix differentiation between Android and iPhone devices; with Android as CAN and iPhone as CIP.[109] ‘Device Type’ in the glossary confirms the different acronyms of the device used and refers to CAN as an Android device.[110] Exhibit P3 showed that in relation to all the different IP addresses, in each instance the prefix is CAN, indicating an Android device used on each and every occasion.[111]
[108] T 106.15-18.
[109] T 106.19-22.
[110] T 107.8-11.
[111] T 106.24-29.
The glossary refers to the date and time of IP addresses being recorded in UTC time, but the ‘Timestamp’ recorded in something referred to as Unix time.[112] Kik appears to direct the reader to an online converter that will convert Unix time.[113]
[112] T 106.30-36.
[113] T 106.37-107.2.
Detective Townsend agreed that when looking at the time stamps for the IP entries, on their face, we are not able to tell, without doing a conversion process, when that ‘bind’ (recent IP address) was recorded by Kik.[114]
[114] T 107.3-7.
‘Port Numbers’ is defined as ‘the port number that the Kik application (client) connects from. This is a unique port number that corresponds to the IP address provided’.[115] Detective Townsend agreed that it was through providing remote port information to Vodafone that he received the subscriber checks for the IP address in the accused’s name.[116]
[115] T 107.12-16.
[116] T 107.17-23.
The Kik glossary refers to time stamp in the recent IP addresses as expressed in Unix time.[117] With respect of those different IP logs there is, under the time stamp column, a 13-digit number starting with 15.[118] There is a 13-digit number starting 15 recorded against the install date entry under ‘Registration Client Info’ on Exhibit P3.[119]
[117] T 108.4-7.
[118] T 108.8-12.
[119] T 108.13-17.
Enlarged copies of some of the photographs in Exhibit P2 were produced by Detective Townsend.[120]
[120] Exhibit P19; T 109.22-27.
The video of a male masturbating to completion[121] which had been received by Detective Townsend was played in court for the purposes of comparing aspects of the vision with the photographs taken of the accused’s house.[122]
[121] Exhibit P20.
[122] Exhibit P11.
In further cross-examination, Detective Townsend agreed that by reference to the glossary, Kik undertake no verification process with respect to their provision of IP addresses requested from them.[123] Detective Townsend agreed that Kik’s disclaimer in their documentation read as Kik being unprepared to confirm the accuracy of any of the IP addresses and that when Kik capture the IP addresses, it does not necessarily correspond with a message being sent or received.[124]
[123] T 111.5-9.
[124] T 111.10-27.
Detective Townsend agreed that in the course of his experience at JACET, he had occasions where people endeavouring to communicate, either to himself or to an actual child, have not used a photo of themselves but rather a photo of someone else for the purpose of that communication.[125]
[125] T 112.31-37.
He agreed that sending a hyperlink to finite22 designed to enable him to access an IP address, is a type of practice commonly referred to as phishing.[126] Detective Townsend explained that had the link been clicked on, the end result would be a record very similar to the Kik records, that is, potentially an IP address or device type.[127] While he had no experience of cybercrime involving the clicking on a link to generate access more broadly to a device, as distinct from just providing the same type of material that is in the IP records, Detective Townsend said that was something that people report.[128]
[126] T 112.38-113.9.
[127] T 113.10-17.
[128] T 113.18-25.
He agreed that the type of crime reported concerned generic emails that appear to come from a legitimate source and if clicked on cause a computer to crash.[129] He was unable to give any details or figures relating to reports to police of identity theft as that was dealt with by a specific section within SAPOL.[130]
[129] T 113.26-31.
[130] T 113.32-114.1.
Detective Brevet Sergeant Chadbourne
DBS Chadbourne was currently stationed at JACET and allocated the investigation in this matter in June 2019.[131]
[131] T 69.4-12.
On 14 June 2019 she attended the accused’s home address, a unit at Mawson Lakes.[132] The disc of the recording taken during the police attendance was tendered,[133] as was a transcript of the accused’s interview with police.[134]
[132] T 69.13-15.
[133] Exhibit P6.
[134] Exhibit P7.
Photographs were taken of the accused’s body on the day of his arrest, some of which were taken in her presence.[135] In respect of the image of the upper torso of the accused, she had observed a slight horizontal line across the bellybutton of the accused, a small amount of hair running vertically from the bellybutton to the groin, and a small scar on the outer left lower arm.[136] She agreed the photographs taken showed the accused to be circumcised.[137]
[135] Exhibit P8; T 72.9-14.
[136] T 72.27-73.2.
[137] T 73.15-17.
A mobile phone, Samsung SM-G995F and a clear mobile phone case were seized from the accused.[138] Photographs of the accused’s house were taken,[139] and various items seized, including items of clothing.[140]
[138] Exhibits P9-P10; T 73.18-30.
[139] Exhibit P11.
[140] T 75.4-7.
The phone seized by police was later submitted to the Digital Evidence Section who were able to extract the contents of the phone,[141] using technology to access the phone without the relevant passcode.[142] An extraction report was prepared[143] and 24 images extracted from the accused’s phone were tendered.[144]
[141] Exhibit P5, Agreed Fact 10.
[142] T 79.9-18.
[143] Exhibit P12.
[144] Exhibit P13.
During DBS Chadbourne’s review of the phone, she ascertained that the Kik application had been deleted from the accused’s phone.[145] In the installed application section of the phone, it appeared that Kik was installed on the device on 9 October 2018 and two VPN applications were installed.[146]
[145] T 81.1-5.
[146] Exhibit P14; T 81.9-13.
A map showing the location of the accused’s residence, referrable to other locations of interest, namely Parafield Airport, Bunnings Parafield, and Parafield Plaza Supermarket was tendered.[147]
[147] Exhibit P15.
In cross-examination, DBS Chadbourne said that it was not her understanding that physical examination of the phone did not show the Kik application was installed at any point.[148] She said she could only go by what the Digital Evidence Section extracted from the phone and that was the information that the Kik application was purchased and subsequently on that device on that date.[149]
[148] T 98.17-26.
[149] T 98.32-37.
She relied on the information under the ‘Installed Applications’ section but could not answer where it said it was ever used.[150] She disagreed with the proposition that there was no evidence that supports the proposition that that application was ever actually installed.[151] She said that it was her understanding from the report that the Kik application was purchased and installed at the same time.[152]
[150] T 98.38-99.5.
[151] T 99.6-9.
[152] T 99.9-16.
When asked whether she agreed that the report itself just referred to a purchase date and listed no installed date, DBS Chadbourne said that she could see from the report that the time stamp in the heading of ‘Purchase Date’ installation date is the same column.[153] When asked if that logically meant then that same time stamp would refer to the deleted date appearing in the same column, DBS Chadbourne said that was what that column stands for.[154] She said she could not answer whether what is recorded under ‘Time Stamp’ refers to the date upon which that application was deleted from the phone.[155]
[153] T 99.20-24.
[154] T 99.25-28.
[155] T 99.29-33.
DBS Chadbourne said that the block of units where the accused lived was a multi-storey dwelling.[156]
[156] T 99.34-36.
She agreed that as part of her work at JACET she had experience with people looking to communicate using images that are not actually of themselves but are of someone else.[157] She agreed it was not necessarily an uncommon thing in her experience for people to use a different photo to the one of themselves.[158]
[157] T 100.6-11.
[158] T 100.12-16.
She agreed that on the accused’s phone were 20,000 or so photos overall, from which the 26 photos were extracted and a lot of the photographs involved fairly generic shots of symbols that might be of interest to somebody ‘into’ symbols or religious iconography.[159]
[159] T 100.21-29.
Some photos contained on the accused’s phone clearly appeared to be cannabis and there were images of the accused smoking something which may appear consistent with smoking some sort of illicit substance.[160]
[160] T 100.30-36.
Analysis
The accused submitted that I cannot be satisfied that it is the accused shown in the images that were sent by finite22 to Detective Townsend. In particular, defence counsel submitted that having regard to what he described as relatively weak and generic evidence, the prosecution case was incapable of proving the accused’s identity as the person shown in the communications beyond reasonable doubt. Furthermore, that even being satisfied that it was the accused in the images sent to Detective Townsend, I could not be satisfied that it was the accused who made the communications. I could not exclude the reasonable possibility that someone else accessed images of the accused at some point for their own purpose or that someone else was using the accused’s internet account. Furthermore, the evidence set out in the Kik records and extraction report could not be linked to any of the particular communications that made up the charges. Defence counsel reminded me there is no onus on defence to put forward positive evidence regarding cybercrime or hacking and submitted that it is sufficient to appreciate that these can occur.
In particular defence counsel argued that I could not be satisfied of the identity of the person communicating with Detective Townsend given:
·The email address, the Kik records describe, was unconfirmed.[161]
·There was no evidence as to whether, at any time, the unverified IP addresses associated with the accused’s phone occupy times at which Kik was being logged into or that the generation of an IP address is considered a ‘bind’.[162] A bind is not generally associated with sending or receiving a Kik message.[163] Particular care is required given Kik being unprepared to verify the truth, accuracy or validity of the IP addresses and that even if those IP addresses were accurate, they do not in any way relate to some actual act of communication utilising Kik and none of the actual times relate to any of the charged acts.[164]
·Exhibit P3 did not establish that the IP addresses listed were being used to access the Kik application. Kik collect IP addresses up to a 30 day period, and which are not verified by Kik.[165] That is, Kik do not attest to the accuracy of those IP addresses.[166] There is no other support for the proposition that the IP addresses can provide any circumstantial link to the accused.[167] Even if it were so, defence characterised the evidence as weak circumstantial evidence.[168]
·The IP addresses were not linked to any of the charged acts and in the absence of any direct evidence, I could not be satisfied that any of the accused’s IP addresses relate to any of the charges.[169] That is, that it simply must have been the accused on all other occasions accessing the Kik application through a VPN.[170]
·While there were two VPNs found on the accused’s phone, there was no evidence that the VPNs were utilised by the accused.[171] Furthermore, there was no evidence as to when the VPNs were installed.[172] Detective Townsend agreed that use of a VPN could mean that the user of the IP address was in another country, which stood as a real barrier to proof beyond reasonable doubt.
·At the four times the relevant offending was alleged to have occurred, the best evidence that can be given is that by completely unverified IP addresses that are VPNs, and no indication can be given as to where that person was in the world.[173]
·There was no evidence otherwise that this was some deliberate or accidental plot against the accused and the evidence did not exclude the reasonable possibility that other people had direct or indirect access to the accused’s phone in the absence of knowing any security information with respect to that phone.[174]
·There was no relevant correlation between the IP addresses and no correlation between the message sent on 9 May 2019, as distinct to any photograph that was taken on the accused’s device in and around the same time, to suggest that must somehow have been related.[175] It would be if later a similar image had been sent but that is not the case.[176] There was also no correlation between the date of 10 May 2019 in the Vodafone documentation and any contact between finite22 and Detective Townsend. Detective Townsend confirmed that there was no contact between finite22 and himself on 10 May 2019.[177]
[161] T 161.3-4.
[162] T 161.4-9.
[163] T 161.9-11.
[164] T 161.12-24.
[165] T 140.31-34.
[166] T 140.37-141.4.
[167] T 141.5-12.
[168] T 141.13-14.
[169] T 141.15-19.
[170] T 141.32-37.
[171] T 141.37-142.2.
[172] T 142-.15-17.
[173] T 158.25-31.
[174] T 160.35-161.2.
[175] T 150.38-151.9.
[176] T 150.9-11.
[177] T 65.2.10.
The prosecution argued that in the absence of some totally unexplained phenomenon, such as a remote hacker, the evidence points to the accused alone as having accessed and used the finite22 account on the three dates when connected to IP addresses through Vodafone.[178] In the prosecution submission, there was simply no evidence before me on the issues involving access by someone other than the accused and if there was some calculated plot to frame the accused, why crop out the accused’s face from the images sent to Detective Townsend.[179] What are the chances, the prosecution submitted, that the person plotting such a scheme just so happened to find a police officer posing as a 13-year-old girl, realising an intention to get the accused into trouble.[180] If someone other than the accused was using the accused’s phone or another device, why use the virtual private networks?[181]
[178] T 121.9-13.
[179] T 134.27-30.
[180] T 134.31-35.
[181] T 134.36-38.
The prosecution submitted that if someone other than the accused was using the Kik account for the entire period, why send photographs of the accused’s body, and not their own or that of another person.[182] In reply, defence counsel argued that in this type of dangerous and unknown online activity, people do not send faces.[183] It was more consistent with wanting to maintain a sensible profile that is not going to lose you a potential target that you would follow through with that and just leave it to torsos and other bits of body.[184]
[182] T 134.25-27.
[183] T 158.3-7.
[184] T 158.7-11.
I accept that there are cases where people have used another’s phone for the purposes of these sorts of communications and that as defence counsel argued, those endeavouring to do so, may well not want to use any image that resembles themselves. I accept Detective Townsend’s evidence that people are known to use photographs of others in place of their own and that people within a certain range can connect to another person’s phone. DBS Chadbourne agreed the accused lived in a large multi-storey group of units.[185]
[185] T 99.36.
In my view, however, the defence argument that there was another person or persons using the accused’s phone or another of his devices to communicate with Detective Townsend is not credible for a number of reasons. If someone other than the accused was using the accused’s phone there would be no need for the use of a VPN as the IP address would in any event be linked to the accused. A calculated plot to implicate the accused does not sit at all with the cropped images that were sent. No directly identifying information was communicated. As was submitted by the prosecution, that someone wanting to harm the accused or doing so just for fun, got so lucky they found a police officer posing as a 13-year-old girl, enabling them to fulfill their intention to get the accused into trouble, was entirely improbable.
Defence counsel cross-examined DBS Chadbourne regarding her evidence regarding whether the Kik application, while purchased, had actually been installed and/or used on the accused’s phone.[186] In her evidence-in-chief, DBS Chadbourne had said that she had ascertained that the Kik application had at some time before the accused’s arrest, been deleted from the phone.[187] She said that the extraction report showed that the application had been installed on 9 October 2018.[188] She said she had looked at the phone and had corroborated that installation date.[189] After giving that evidence she had the opportunity to examine the phone again and found that in fact examination of the phone did not reveal that the application was currently installed.[190] She said that it was not her understanding that there was no evidence that the application had never been installed.[191] She said:
I can only go by what the Digital Evidence Section extracted from the phone and that was the information that the Kik application was purchased and subsequently on the phone on that date.[192]
[186] T 98.17-26.
[187] T 81.6-8.
[188] T 81.9-13.
[189] T 81.24-35.
[190] T 98.17-24.
[191] T 98.24-31; T 99.6-9.
[192] T 98.34-37.
DBS Chadbourne said it was her understanding that the application was purchased and installed at the same time.[193] In answer to questions regarding how she came to be of that view, DBS Chadbourne said that the report showed a purchase date and installation date in the same column.[194] As defence counsel identified, the words ‘deleted date’ also appeared in the same column,[195] which made the evidence of DBS Chadbourne nonsensical.
[193] T 99.14-16.
[194] T 99.22-24.
[195] T 99.25-28.
The prosecution submitted that the evidence of DBS Chadbourne that the Kik application had been deleted from the accused’s phone was unchallenged by defence.[196] In reply, defence counsel submitted that none of the evidence given by DBS Chadbourne regarding the deletion of the Kik application could be relied upon, given her answers in cross-examination regarding the data in exhibit P12.[197] Furthermore, the ‘purchase date’ in no way accorded with the Kik data in Exhibit P3, which indicated that the finite22 username account was activated as from 2016, with the alleged offences commencing well before the purported purchase date of the app with respect to the accused’s phone.[198] There was, defence counsel submitted, no evidence that Kik was ever installed on the device and further, how could the purchase date of October 2018 be reconciled with the registration date of 2016, when there were multiple conversations between finite22 and Detective Townsend prior to the purchase date.[199]
[196] T 148.7-10.
[197] T 148.10-149.15.
[198] T 149.16-23.
[199] T 149.24-37.
I note that the information regarding the purchase of the Kik application on 9 October 2018, in the Extraction report, comes under a heading of ‘Installed Applications’. It would seem logical that the application was found to have been installed on the accused’s phone. While there is no other evidence available to me on the issue and my role is not to speculate as to what might provide an explanation for the purchase date post-dating the commencement of the communications between finite22 and Detective Townsend, I accept that the evidence established that on 9 October 2018, the Kik application was purchased from the Google Play Store using the accused’s phone. It is in my view, wholly improbable that the accused knew nothing about the finite22 profile and nothing about the Kik application given the date or registration in 2016.
In assessing the evidence, I have taken into account the criticisms raised by defence as to what has been characterised as a paucity of evidence linking the accused to the alleged offending, particularly as regards the Kik material. While there may be further matters that could have been investigated regarding the material provided by Kik and those that arise in the extraction report, none of the matters raised by defence have provided a rational explanation consistent with the accused’s innocence, when I have assessed the evidence that is before me.
The evidence of DBS Chadbourne was that the Kik application had been deleted from the phone at some unknown time prior to the accused’s arrest and I have been satisfied that the application was installed on the accused’s phone at some point in time. I accept the submission by prosecution that the accused may well have been aware that his Kik account had been shut down, causing him to be concerned enough to remove the Kik account from his devices at some time thereafter.[200]
[200] T 127.2-30.
The Kik records in Exhibit P3 list IP addresses used by finite22 to access their Kik account for the 30 days prior to 23 May 2019. Connection to Kik through the listed IP addresses had mostly been made using one of two VPN providers, which Detective Townsend conceded had not been followed up.[201] Relevantly, in my view, the accused’s mobile phone was found to have two VPN applications installed. Three of the IP addresses that were listed were used to log into the internet and access finite22’s Kik account on 30 April 2019, 7 May 2019 and 10 May 2019. Each of those IP addresses was subscribed to by the accused from Vodafone Australia.[202] I am satisfied that the evidence established that in the 30 days before 23 May 2019, an IP address subscribed to by the accused was used to access the finite22 account. The Kik records do not in my view, cause me to raise any doubt that the accused’s phone was used to connect to the Kik application, despite there being no specific date and time that corresponds to the alleged communications.
[201] T 62.34-38.
[202] Exhibit P5, Agreed Facts 4-5.
In my view, the male body depicted in the images sent to Detective Townsend closely match the photographs police took of the accused’s body and certain features in the background of the sent images are consistent with features of the accused’s house, photographed by police and seen in the accused’s arrest and interview video.[203] While defence counsel submitted that nothing could be drawn from the fact the accused is circumcised, given the possibility of foreskin on an uncircumcised penis simply being retracted,[204] there is no evidence of a retracted foreskin on any of the very close-up, enlarged images of the penis.
[203] Exhibits P6, P11.
[204] T 155.8-17.
Police took a photograph of a desk in the accused’s house with distinct black metal legs.[205] In the video of a male masturbating one of the black metal legs is seen in the background.[206]
[205] Exhibit P11 photo 3.
[206] Exhibit P20.
On 24 June 2018, an image was sent to Detective Townsend showing the base of a penis under the waistband of grey trackpants.[207] While I accept the pants are not unique or particularly distinctive, I accept they are like trackpants found at the accused’s home.[208]
[207] Exhibit P2, Tab 18.6.2018 – 9.7.2018, screenshot 34; T 31.3-5.
[208] Exhibit P11 photos 5-7.
On 28 June 2018, an image was sent to Detective Townsend showing a right hand on a penis.[209] In the enlarged version of this photograph,[210] a grey rug is seen on the floor, like that seen in a photograph taken of the accused’s lounge room. A wooden television cabinet with circular metal handles is visible in the background, identical to the TV cabinet shown in photographs of the accused’s house and in the arrest video.[211]
[209] Exhibit P2, Tab 18.6.2018 – 9.7.2018, screenshot 62.
[210] Exhibit P19.
[211] Exhibit P6.
In a message sent to Detective Townsend on 16 July 2018, there is an image of an erect penis, with the subject of the photograph appearing to be in a reclined position.[212] Comparison of that image (particularly in the enlarged format), with the arrest video shows a similar coloured grey couch in the accused’s house and very similar to that in the foreground of the sent image.
[212] Exhibit P2, Tab 9.7.2018 – 5.8.2018, screenshots 14-5.
In a message sent on 27 November 2018,[213] an image was sent which showed a narrow vertical line of pubic hair running from the belly button to the groin area. I accept, as was submitted by defence counsel, that there is nothing unique or distinctive about this feature, other than it is at least consistent with photographs taken by police of the accused, particularly the photograph on page 7.
[213] Exhibit P2, Tab 6.11.2018 8.12.2018, screenshot 10.
Images sent to Detective Townsend showed a pair of red, white and black Nike shoes being worn by the person whose body is being photographed.[214] Defence counsel submitted that the shoes are different to those found at the accused’s house and there is nothing distinctive about a shoe with a white sole.[215] While the enlarged photographs of the shoes worn by the person being photographed look black at the heel base, it is obvious that the pants of the wearer are partly covering the shoe. The red heel is plainly visible. In my view, the shoes appear identical to shoes found at the accused’s house.
[214] Ibid screenshots 10, 14.
[215] T 153.19-20.
Messages sent on 11 April 2019 and 24 April 2019, include two ‘selfie’ photographs taken in a mirror. The prosecution argued that the mobile phone reflected in the images, while not distinctive, are a colour and shape, which matches the phone and the clear cover seized from the accused.[216] In my view, the images of the phone are not sufficiently clear to make such an assessment.
[216] T 131.13-17; Exhibit P9.
Of particular importance in my view, are images sent to Detective Townsend, which are clearly taken from within the accused’s bathroom. In messages sent on 28 April 2019,[217] the location of the mixer-tap, sink and the circular overflow for the sink, identically match features in the accused’s bathroom. A distinctive red cleansing puff is shown in the image, identical to the location of such a sponge in photos taken of the accused’s bathroom. A bottle of hand soap is reflected in the mirror of the image, and photographs from the accused’s bathroom show a bottle of hand soap that is similar if not identical to that in the image, as is the location of the towel on the towel rail.
[217] Exhibit P2, Tab 19.2.2019 – 15.5.2019, screenshot 44.
Defence counsel accepted the bathroom fixtures and the location of items in the bathroom depicted in the images sent to Detective Townsend were all matters generally consistent with photographs of the accused’s bathroom.[218] He submitted that there was no evidence led with respect to the layout or otherwise of any other units in the block where the accused resided.[219] He conceded defence could not reconcile that some of the sent images are consistent with some of the photos taken from the accused’s phone and have striking similarities, but submitted the evidence could not be elevated to a conclusion that it must have then been the accused, sending the images as distinct to a reasonable possibility that someone else may have sent those particular images.[220]
[218] T 154.12-16.
[219] T 154.17-20.
[220] T 154.25-33.
In messages sent on 11 April 20019,[221] the waistband of the pants worn by the male in the image are distinctively Adidas brand. While I accept that Adidas trackpants were found in the accused’s house, given the prevalence of such clothing, little weight can be attributed to this coincidence.
[221] Exhibit P2, Tab 19.2.2019 – 15.5.2019, screenshots 39-40.
Saved on the accused’s phone gallery were what could be described as very particular types of photographs which included numerous photographs taken by the accused of himself wearing no shirt, posing in front of a mirror in his bathroom and numerous photographs of an erect penis. The photographs bear a striking similarity to the photographs sent to Detective Townsend.
The accused’s phone was passcode protected. Defence argued the accused living alone did not exclude persons who may have visited over the relevant period using the phone.[222] There was no evidence that a passcode for the phone had existed prior to the accused’s arrest which would have prevented someone other than the accused accessing the phone. The accused told police that ‘generally’ people did not have access to his devices,[223] and was not specifically asked in relation to the time of the alleged offending, therefore raising, on defence counsel’s submission, a reasonable possibility that others may have had access to the phone.[224] I note that when asked if anyone else knew the ‘pin number’ for his phone he said ‘No. I don’t know’.[225]
[222] T 142.18-23.
[223] Exhibit P7, page 7, lines 28-31.
[224] T 143.18-23.
[225] Exhibit P7, 7.32-8.1.
The accused provided police with an incorrect passcode to his phone. I find that it would be illogical to conclude that the accused did not know the passcode for his phone, having admitted to police that it was his phone. DBS Chadbourne gave evidence that there were photos of cannabis on the accused’s phone and photos of him smoking an illicit substance.[226] Those photographs, coupled with the other selfies and pictures of a penis that are on the phone provide, in the prosecution submission, a rational explanation as to why the accused would not want the police to have access to his phone. The prosecution submitted there was a possibility that the accused knew there were photographs of cannabis on his phone and of him smoking a substance.[227] Photographs taken in the accused’s house show cannabis, scales and a bong.[228] The prosecution submitted that if it were the case that the accused was worried about a little bit of cannabis on his phone or some images of him smoking cannabis, the accused equally would have been worried about what was in his home.[229] He would, in the time he heard police banging on his door to when he opened the door, surely have taken steps to destroy some of that evidence.[230] The prosecution submitted the stronger inference was that the accused was worried about what would and what would not be found on his phone, namely that Kik had been purchased on the device but since deleted, in addition to the numerous photos of him posing in front of his bathroom mirror shirtless.[231] While I accept the evidence could be used circumstantially as pointing to the accused’s knowledge of what was on his phone, where the usual rules concerning proof of the facts and inferential reasoning applies, I have not found the evidence compelling or of a sufficient strength to make use of it as the prosecution has suggested.
[226] T 100.30-36.
[227] T 135.23-25.
[228] Exhibit P11.
[229] T 135.26-30.
[230] T 135.38-136.5.
[231] T 136.6-11.
The three occasions the accused’s IP address accessed Kik are all dates during the time that Detective Townsend was in conversation with finite22 and occurred shortly before the accused’s arrest when he told police that he lived alone,[232] had done so for at least a couple of months,[233] that his phone was password protected and was not aware of anyone else using his phone, although I note he said that was the case as far as he knew.[234]
[232] Exhibit P7, 7.21-22.
[233] Ibid 7.24.
[234] Ibid 7.32-8.1.
I am satisfied that the user of finite22 circumstantially identified himself not just with photographs but with things that he said to Detective Townsend. For example, finite22 told Detective Townsend he lived near locations that are within a close distance to the accused’s address. Finite22 described living at ‘Mawsons’;[235] at ‘Mawson lakes area’;[236] ‘near Parafield Airport’;[237] and ‘near the Bunning’s’[238] and said he shopped at a supermarket in Parafield Gardens.[239] Finite22 told Detective Townsend he lived near the Mawson Lakes station, close to the accused’s address. Detective Townsend was told finite22 was of Kiwi descent.[240] The accused was born in Wellington, New Zealand.[241]
[235] Exhibit P2, Tab 18.6.2018 ‘ADELAIDE TEENS’, screenshot 2.
[236] Exhibit P2, Tab 18.6.2018 – 9.7.2018, screenshot 60.
[237] Exhibit P2, Tab 18.6.2018 ‘ADELAIDE TEENS’, screenshot 3.
[238] Ibid.
[239] Exhibit P2, Tab 9.7.2018 – 5.8.2018, screenshot 44.
[240] Exhibit P2, Tab 18.6.2019 – 9.7.2018, screenshot 56.
[241] Exhibit P5, agreed fact 1.
Defence counsel argued that reliance on this information depended on whether there was a reasonable possibility that the person sending the messages was in that same area, if those things were being said truthfully, or, whether they were otherwise using some aspects that they knew about the accused, to give some credence to a false identity that they had created.[242] Furthermore, a significant portion of the Australian population are of Kiwi descent.[243] While I accept that finite22 also told Detective Townsend he was 20 years of age when the accused is aged around 28, it can be well understood that someone communicating with a 13‑year-old in the manner alleged in this case may well want to portray themselves as closer in age to the child. In my view, the personal details provided to Detective Townsend are circumstantial evidence that goes to the issue of whether the accused was the person communicating as alleged. I have found that the description of himself as a ‘Kiwi’ is of significant weight.
[242] T 155.18-27.
[243] T 155.28-30.
In my view, photographs in the accused’s gallery on his phone provided particularly compelling evidence that it was the accused and not someone else accessing Kik. On 20 February 2019, two intimate images were sent to Detective Townsend.[244] On 27 March 2019 another image was sent via Kik.[245] On 9 April 2019, an image was taken on the accused’s phone of the accused’s body. On 11 April 2019 an image of a male torso in a bathroom mirror was sent to Detective Townsend.[246] On 18 April 2019 there is an image on the accused’s phone that is strikingly similar to that sent on 11 April 2019.[247] On 28 April 2019, a further intimate image of a penis was transmitted to Detective Townsend.[248]
[244] Exhibit P2, Tab 19.2.2019 – 15.5.2019, screenshots 5-6, 9-10.
[245] Ibid screenshots 30-31.
[246] Ibid screenshots 38-40.
[247] Ibid screenshots 43-44.
[248] Ibid screenshots 46-47.
The accused had taken intimate images using his own mobile phone before and after very similar intimate images were sent to Detective Townsend, which I accept tells strongly of the accused being responsible for both, and strongly against someone other than the accused just happening to hack into the accused’s phone in between dates where the accused takes photographs of his own body, on the same device.
It is in my view, of significance that none of the images sent by finite22 to Detective Townsend match an image saved to the accused’s phone. Had someone other than the accused sent the images, the person who sent the images subsequently deleted that image prior to the accused’s arrest. It would in my view be highly improbable for someone other than the accused to delete the image from the gallery in those circumstances, and more likely to be the case that the accused sent the photo from his own gallery and thereafter deleted the image.
In a conversation between finite22 and Detective Townsend on 9 May 2019, finite22 sent a message to Detective Townsend at 6.26pm.[249] At 6.29.59pm, the accused’s phone is used to take a photograph of a male chest, of a person, who I am satisfied is the accused,[250] strongly corroborating the suggestion that the accused is using the phone to communicate with Detective Townsend and take the photograph of himself.
[249] Ibid screenshots 58.
[250] Photograph page 4 of Exhibit P13 – showing male torso on couch with cushion of same fabric as shown in video of the accused’s arrest in Exhibit P6.
As the prosecution submitted, if it were not the accused who sent the 6.26pm message but it was the accused who took the image at 6.29pm, then the unknown party using Kik just happened to have access to the Kik account within three minutes of the accused being in possession of his phone.[251]
[251] T 123.35-123.2.
Finite22 sent 12 gallery photos and two live photos.[252] Typically live photographs are identified by the word ‘Camera’ at the top of the image and gallery photographs identified by the word ‘Gallery’. Detective Townsend utilised a separate application where pictures sent from the gallery would appear to finite22 as live photographs.[253] I accept that it would be hard to imagine a reason for anyone choosing to send a fake live photograph other than a police officer acting as a covert operative.
[252] T 125.1-4.
[253] T 38.34-39.7.
Defence counsel argued that someone using images not of themselves, would purport to somehow try to establish they are genuine.[254] That Detective Townsend could himself generate fake ‘live’ images allowed for the reasonable possibility that the photos sent to Detective Townsend were equally fake and there was no evidence to show that the images sent to Detective Townsend were deleted from the accused’s phone’s gallery.[255] I find that it is improbable for someone to use a fake live photograph when that person is not the owner of the phone and not sending an image of themselves. If the phone was being used by someone other than the accused, there would be no need for that person to be concerned as to the risk of being detected by sending an image because it was not their phone.
[254] T 147.26-32.
[255] T 147.33-148.4.
I accept that the most compelling inference to be drawn from this evidence is that the two live photographs were taken contemporaneously by the person using Kik as they were sent. The live photograph sent on 31 July 2018,[256] while not of particularly good quality, shows a male torso and a horizontal line running across the belly button and band of narrow pubic hair running down toward the penis from the belly button. The image, as the prosecution has submitted, shows a strong similarity to other images sent by finite22 and to the accused's torso and penis as seen in the photographs in Exhibit P15.
[256] Exhibit P2, Tab 9.7.2018 – 5.8.2018, screenshot 78.
There was in my view, a ‘flow’ in the communication between finite22 and Detective Townsend. Defence counsel argued that any so-called flow in the conversation must be assessed with respect to the IP addresses and the lack of any evidence of a particular device being used and that at all relevant times, for the purposes of the four counts, VPNs were being used and there was no evidence that access could not have been had to some previous conversation, by someone else.[257]
[257] T 156.26-157.21.
The communication took place over a 15-month period and I find that there is a perceptible flow to the conversation from one date to another. Often the conversation picks up from where it was left strongly suggesting there is one person using the finite22 account. There is an inherent unlikeliness in the same person posing as finite22 being able to maintain the consistency and flow that is evident throughout the 15 months of communications.
There is in my view, significance in the photo extracted from the accused’s photo gallery of an image which included the words ‘Eyes of Infinity’.[258] An identical image, without the words ‘Eyes of Infinity’, was selected as the profile picture for finite22’s account.[259] The username finite22 has been in place since the Kik profile was created and cannot be changed. The Kik records show a registration time stamp of 30 November 2016, when the profile was registered, and that username selected. I accept the word ‘finite’ in finite22’s username bears some resemblance to the word ‘Infinity’ as shown in the accused’s gallery photo.
[258] Exhibit P13, p16.
[259] Exhibit P2, Tab 5.10.2018 – 5.11.2018, screenshots 1-2.
As identified by the prosecutor, there were no communications between Detective Townsend and finite22 between 13 August and 5 October 2018. As at 13 August 2018, finite22’s profile picture is an image of a male’s chest. On 5 October 2018, that image has changed to the ‘Eyes of Infinity’ photograph, which is also on the accused’s phone. That someone other than the accused registered the Kik account in 2016, and then happened to come across a photograph saved in the accused’s gallery entitled ‘Eyes of Infinity’ is highly improbable.
Conclusion
The prosecution will have failed to prove their case if, after I have considered all of the evidence, there remains a reasonable possibility of the accused’s innocence, or a rational explanation consistent with his innocence. To find the accused guilty based entirely on circumstantial evidence as in this case, I must be satisfied that his guilt is the only rational and reasonable inference to be drawn from the facts that I find proven.
As recently discussed in Quist v The Queen[260]
It is critical not to fall into a trap of simply considering each piece of circumstantial evidence in isolation. As Kelly J noted in Dent v The Queen,[261] ‘[i]t has been emphasised often enough that this is an inappropriate way to evaluate the strength of a prosecution case based on circumstantial evidence’.[262] The High Court has reiterated this caution on a number of occasions. It is sufficient to note its recent statement in R v Baden-Clay:[263]
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
It may well be that no one piece of circumstantial evidence was capable of proving guilt beyond reasonable doubt. However, the totality of the circumstantial evidence was capable of supporting a path of reasoning to guilt. The verdict was not unreasonable or incapable of being supported having regard to the evidence.
[260] [2021] SASCA 106.
[261] [2021] SASCFC 106.
[262] Dent v The Queen [2021] SASCFC 4 [101].
[263] (2016) 258 CLR 308 [47].
There are, I accept, varying strengths to be attached to the evidence before me, however the united force of the evidence is such that I am satisfied that the person in the photographs sent by finite22 is the accused.
In my view, the only proper and rational inference to be drawn, having regard to the circumstantial evidence, was that it was the accused who communicated with Detective Townsend as alleged. The evidence before me, taken together, overwhelmingly excludes the possibility that it is anyone other than the accused who is communicating with Detective Townsend as alleged.
As set out earlier in these reasons, while the defence does not dispute that the communications can be characterised as having been made for a prurient purpose, he denies that the prosecution have proven that it was the accused’s intention to make the child amenable to sexual activity.
Defence counsel submitted that I could not exclude a reasonable possibility that, given the basic fantasy nature that cyber activity occupies where people purporting to be something that they are not, that the accused accepted what was being said. There was, in the defence counsel’s submission, a reasonable possibility that it was simply communication with an adult for the purpose of fantasy.
To prove that the accused knew he was sending these communications to a child, the prosecution pointed to the profile operated by Detective Townsend which showed a profile picture of a girl in school uniform, who was a member of the Kik public group ‘Adelaide Teens’, who told finite22 she was 13 years old, in year 8, lived at home with her mother and attended school.
It is in my view plain from the nature and content of the conversations between the accused and Detective Townsend that the accused held the relevant intention to make the child amenable, that is, to influence the child to yield, submit or cooperate. That police had created a fantasy in posing as a child, was not in my view, to the point. The conversations contained no suggestion of fantasy or role playing, indeed throughout, there are very mundane and ‘conversational’ features that do provide a proper basis to exclude the suggestion that this was fantasy on the part of the accused, or that he at any time thought he was not communicating with a child. I am satisfied that in relation to each of the charged offences, the accused intended, at the very least, to make who he thought was a child, amenable to sexualised conversation.
I do not accept, even as a reasonable possibility, the accused was not the person communicating with Detective Townsend as charged. I find that I am satisfied beyond reasonable doubt that the accused communicated with Detective Townsend, for a prurient purpose with the intention of making a child amenable to sexual activity. I exclude any rational hypothesis, as suggested by the defence, that someone other than the accused communicated with Detective Townsend.
I find the accused guilty of counts 1, 2, 3, and 4.
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