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R v Murray Colin Stubbs

R v Murray Colin Stubbs

Case [2009] ACTSC 63 26 May 2009

Procuring a Person Under 16 for Sexual Activity

Using a Carriage Service to Transmit Offensive Communications

Discretion to Exclude Improperly or Illegally Obtained Evidence

Covert Operations

Undercover Police Operative

Assumed Identity

Public Importance of Investigation

Criminal Law

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R v MURRAY COLIN STUBBS
[2009] ACTSC 63 (26 May 2009)

CRIMINAL LAW – The Commonwealth Criminal Code 1995 (Cth) – procuring a person under 16 years of age to engage in or submit to sexual activity – using a carriage service to transmit offensive communications

EVIDENCE - Evidence Act 1995 (Cth) – discretion to exclude improperly or illegally obtained evidence – application to exclude telecommunications evidence – whether actions of police officer constituted “aiding and abetting” – whether actions of police officer constituted entrapment

EVIDENCE – covert operation – internet chat between undercover police operative and accused – overseas police officer – “controlled operations” – use of an assumed identity – appropriate principles and practice for the investigation of on-line grooming – public importance of such investigation – actions of police officer not unlawful

Commonwealth Criminal Code 1995 (Cth), ss 11.2(1), 473.1, 474.5(1)(b), 474.14(2), 474.17, 474.26, 474.27
Telecommunications Act 1997 (Cth), s 7
Evidence Act 1995 (Cth), s 138
Crimes Act 1914 (Cth), Pts 1AB, 1AC, 15 HB

The Holy Bible, Authorised Version, Matthew 18:6
Ridgeway v The Queen (1995) 184 CLR 19
Emanuele v Dau (1996) 84 A Crim R 197;
Dau v Emanuele (1995) 60 FCR 270
Bunning v Cross (1978) 141 CLR 54
R v Gajjar [2008] VSCA 268
R v McGrath [2006] 2 Qd R 58
R v Podger [2009] VCC
R v Tyrell [1894] 1 QB 710
R v Whitehouse [1977] 1 QB 868
Sundai Sloane (1990) 49 A Crim R 270
Albert Salem (1997) 96 A Crim R 421
Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 227 ALR 353
R v Ladocki [2004] NSWCCA 336
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43
R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104

No. SCC 240 of 2008

Judge: Higgins CJ
Supreme Court of the ACT

Date: 26 May 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 240 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

MURRAY COLIN STUBBS

ORDER

Judge:  Higgins CJ
Date:  26 May 2009
Place:  Canberra

THE COURT ORDERS THAT:

The application to exclude evidence be refused.

This is an application by the accused for a pre-trial ruling seeking the exclusion of certain evidence proposed to be led at trial.

By indictment dated 24 July 2008, the accused is charged on two counts:

… THAT between 21 August 2007 and 21 January 2008 at Canberra … [he] … being at least 18 years of age, used a carriage service to transmit communications to a person who [sic] he believed to be under the age of 16 years with the intention of procuring that person to engage in or submit to sexual activity with himself
AND FURTHER THAT between 21 August 2007 and 18 January 2008 he used a carriage service in a way that reasonable persons would regard as being in all the circumstances offensive.

On 5 February 2009, the accused entered pleas of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Murray Colin Stubbs

Details

AGLC: R v Murray Colin Stubbs [2009] ACTSC 63
Case: [2009] ACTSC 63
Decision Date: 26 May 2009

CaseChat Overview and Summary

In the case of R v Murray Colin Stubbs, the respondent faced charges under the Commonwealth Criminal Code 1995 (Cth) for procuring a person under 16 years of age to engage in or submit to sexual activity, and for using a carriage service to transmit offensive communications. The dispute was heard in the Federal Court of Australia. The primary issue before the court was whether the evidence obtained through covert police operations, including internet chat between an undercover police operative and the respondent, should be excluded due to improper or illegal acquisition. The respondent argued that the actions of the police officer constituted aiding and abetting, and that the operation amounted to entrapment.

The court examined whether the covert operation was conducted in accordance with appropriate principles and practices for investigating online grooming, which it deemed to be of public importance. The respondent contended that the undercover police officer's actions were unlawful, but the court found that the operation was properly controlled and the use of an assumed identity was justified. The court determined that the actions of the police officer did not constitute aiding and abetting or entrapment, and that the evidence obtained was admissible.

As a result, the court refused the application to exclude the evidence obtained through the covert operation. The reasoning of the court was based on the appropriate principles and practices for investigating online grooming, which it found to be of significant public importance. The court held that the actions of the police officer were lawful, and the evidence was properly obtained. Consequently, the application to exclude the evidence was dismissed, allowing the case to proceed with the evidence in question being admitted.

Orders

Orders of the court

The application to exclude evidence be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Murray Colin Stubbs [2009] ACTSC 63

Most Recent Citation

Tasmania v Wykes [2019] TASSC 18

Cases citing this decision · 3 of 3 shown

Tasmania v Wykes
[2019] TASSC 18 Para 6

…ough the exchange of electronic messages was something that an undercover police officer, posing as a 14-year-old boy, could have done. In R v Stubbs [2009] ACTSC 63, 228 FLR 221, which concerned evidence obtained by a police officer in New Zealand pretending to be a 14-year-old girl named Roxanne and arranging a…
R v Punter
[2019] NSWDC 964 Para 29

…gating charges contrary to s 474.27 of the Criminal Code Act 1995 (Cth). Both are decisions of the ACT Supreme Court. The first is The Queen v Stubbs [2009] ACTSC 63. The second is the decision of The Queen v Priest [2011] ACTSC 18.…
R v Navin Edwin (No. 2)
[2013] ACTSC 84 Para 1

…tion of, as a consequence of a contravention of, an Australian law is also without merit. A similar argument was rejected by Higgins CJ in R v Stubbs [2009] ACTSC 63. In merely providing the opportunity for the accused to commit an offence under s 474.17 of the Criminal Code (Cth), neither AB nor SM counselled or…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Gajjar
[2008] VSCA 268 Para 1

…I note that in R v Gajjar [2008] VSCA 268, police posing as a 14 year old girl operated that persona within a “chat room” called “Family Sex”. Gajjar pleaded guilty to communicating with the fictional girl to procure her to have sex with him. There was no suggestion that the inducements implicit in the “chat room”…
Gedeon v Commissioner of the New South Wales Crime Commission
[2008] HCA 43 Para 1

…an authorisation for a “controlled operation” or an assumed identity. As noted in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, the regime for such an authorisation is intended to apply to the importation and possession of illicit goods rather than to the case of illicit communicat…
R v Ladocki
[2004] NSWCCA 336 Para 1

…ed, has been amended to permit the authorisation of “controlled operations”. Similar legislation in New South Wales was considered in R v Ladocki [2004] NSWCCA 336. It was held that such legislation simply made clear that to breach the Code of conduct for the obtaining of an authorisation would not render the eviden…
Dau v Emanuele
[1995] FCA 995 Para 1

…proceedings stayed if the evidence is admitted but should have been excluded (see, for example, Emanuele v Dau (1996) 84 A Crim R 197; Dau v Emanuele (1995) 60 FCR 270). A decision to proceed by way of exclusion of evidence, or the grant of a stay, is a discretionary decision.…
Ridgeway v the Queen
[1995] HCA 66

…The Holy Bible , Authorised Version, Matthew 18:6 Ridgeway v The Queen (1995) 184 CLR 19 Emanuele v Dau (1996) 84 A Crim R 197; Dau v Emanuele (1995) 60 FCR 270 Bunning v Cross (1978) 141 CLR 54 R v Gajjar [2008] VSCA 268 R v McGrath [2006] 2 Qd R 58 R v Podger [2009] VCC R v Tyrell [1894] 1 QB 710 R v Whitehouse [1977] 1 QB…
Bunning v Cross
[1978] HCA 22 Para 1

…is defined by s 138 (1), (2) and (3). Generally, the matters there referred to are the same as those identified by the High Court in Bunning v Cross (1978) 141 CLR 54 as relevant to the exclusion of evidence illegally or improperly obtained.…
Robinson v Woolworths Limited
[2012] FWA 1179 Para 1

…An analogous case, it seems to me, is Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 227 ALR 353. In that case, authorities procured an underage girl to purchase cigarettes. It was a random selection of target outlets. Basten JA, Barr and Hall JJ concurring, concluded that the conduct in qu…
[1894] 1 QB 710
[1894] 1 QB 710 Para 1

…, notwithstanding that the underage person aids, abets or even procures the offending behaviour on the part of the adult (see for example, R v Tyrell [1894] 1 QB 710; R v Whitehouse [1977] 1 QB 868). It is a moot point whether that immunity would extend to an adult pretending to be such a child but there seems to…
[1977] 1 QB 868
[1977] 1 QB 868 Para 1

…age person aids, abets or even procures the offending behaviour on the part of the adult (see for example, R v Tyrell [1894] 1 QB 710; R v Whitehouse [1977] 1 QB 868). It is a moot point whether that immunity would extend to an adult pretending to be such a child but there seems to me to be no reason to suppose th…

Legislation cited in this decision · 4

Evidence Act 1995 (Cth)
138 2 mentions (from Para 1)
Telecommunications Act 1997 (Cth)
7 2 mentions (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 1)
Crimes Act 1961 (NZ)
1 mention