R v Patel

[2021] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v PATEL

Criminal Trial by Judge Alone

[2021] SADC 18

Reasons for the Verdict of her Honour Judge Fuller 

26 February 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON

CRIMINAL LAW - EVIDENCE

Trial by Judge Alone - accused charged with two counts of making a communication for a prurient purpose with the intention of making a child amenable to sexual activity - accused alleged to have communicated on a social media application in a group ‘Gay teens Adelaide’ with an undercover police officer posing as a 14 year old boy by sending him messages that involved sexualised conversation and requests to meet with the 14 year old boy for sexual activity – Count 1 involved series of communications on one day – Count 2 involved series of communications over a 5 week period – during course of messaging in Count 1 accused asked undercover police officer ‘whats your real age’ – difference in content and nature of communications after this question was asked - accused told police that he thought it was a prank and to his knowledge had not been communicating with a child and that he had no sexual interest in children – accused did not give evidence but called evidence of good character.

Verdicts: Not guilty on both counts

Criminal Law Consolidation Act 1935 (SA) ss 62, 63B(3)(b); Evidence Act 1929 (SA) s 34P; Criminal Investigation (Covert Operations) Act 2009 (SA), referred to.
R v Symons (2008) 273 A Crim R 180; San v R [2020] SASCFC 35; R v Richards (2016) 125 SASR 341; R v Barrie [2012] SASCFC 124; R v G [2015] SASC 186; Azzopardi v R (2001) 205 CLR 60; R v Weetra (2010) 108 SASR 232; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438, considered.

R v PATEL
[2021] SADC 18

R v PATEL

Criminal

The Charge

1. The accused was arraigned before me on the following Information:

   Tushar Kishorbhai Patel is charged with the following offences:

   First Count

   Statement of Offence

   Communicating with the Intention of Making a Child Amenable to Sexual Activity. (Section 63B (3) (b) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Tushar Kishorbhai Patel on or about the 31^st day of March 2019 at Blair Athol or other places, made a communication for a prurient purpose with the intention of making a child under the age of 17 years, amenable to sexual activity.

   This is a prescribed offence within the meaning and for the purposes of Section 38 of the Child Safety (Prohibited Persons) Act 2016.

   Second Count

   Statement of Offence

   Communicating with the Intention of Making a Child Amenable to Sexual Activity. (Ibid)

   Particular of Offence

   Tushar Kishorbhai Patel between the 1^st day of April and the 7^th day of May 2019 at Blair Athol or other places, made a communication for a prurient purpose with the intention of making a child under the age of 17 years, amenable to sexual activity.

   This is a prescribed offence within the meaning and for the purposes of Section 38 of the Child Safety (Prohibited Persons) Act 2016.

   The plea

2. The accused pleaded not guilty to the charges 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 each offence

3. The elements of the offences charged under s 63B (3) (b) Criminal Law Consolidation Act 1935 (CLCA) are:

   1.The accused made a communication;

   2.He did so for a prurient purpose;

   3.He did so with the intention of making a child under the prescribed age (that is a person under the age of 17 years)[1] amenable to sexual activity.

   [1]    A child under the prescribed age is defined in s 63B as a child under the age of 17 years.

4. Each element must be proved beyond reasonable doubt.

   ‘Sexual activity’

5. The expression ‘sexual activity’ in s 63B (3) (b) is not statutorily defined. In R v Symons (2018) 273 A Crim R 180 Kourakis CJ, with whom Kelly J agreed, observed:

   It is a compound expression which should not be restricted to the narrower denotation which the word ‘activity’ might carry in isolation. The connotation of the compound expression is much wider because of the broadness of its adjectival descriptor. ‘Sexual activity’ should be given its ordinary meaning which includes many behaviours, whether physical or verbal, which are capable of being sexually stimulating. In the construction of s 63B (3) of the Act, the narrowness with which a criminal offence provision is generally construed must give way to the public interest in protecting children from sexualisation. The risks which might otherwise arise from a wide construction of a criminal offence provision are much reduced in the case of s 63B (3) of the Act because of the specific intent required by the fault element of the offence.

   The manifest purpose of s 63B (3) is to proscribe the sexualisation of children by adults. That sexualisation is a serious societal mischief in itself and can, and does, commonly lead to the commission of sexual assaults of the kind prescribed by Part 3, Division 11 of the Act (Division 11).[2] [Emphasis added].

   [2]     R v Symons (2018) 273 A Crim R 180 at [3] – [4].

6. Intimate conversations about sex or engaging in sexualised conversation are a sexual activity for the purposes of s 63B (3):[3]

   If a child is persuaded to send or receive digital pornographic images, be they photographs or animations, and engage in discussion about them, I see no difficulty in describing the exchange as sexual activity. If that be so, the exchange of texts alone cannot be distinguished from it.[4]

   [3]     R v Symons (Ibid) at [5]; San v R [2020] SASCFC 35 at [37] per Kourakis CJ, with whom Stanley and Lovell JJ agreed.

   [4]     R v Symons (Ibid) at [6].

7. In R v Richards (2016) 125 SASR 341, Kourakis CJ observed:

   Whether or not an activity is a sexual one is a question of fact which will be informed by the life experience of the tribunal of fact. The context in which the activity occurs will be important. That context includes all of the manifestations of the conduct which are perceptible by the parties to the communication or any one of them. The context, importantly, includes the absence of circumstances which provide a valid reason for the communication…In that respect, the context will also include the prurient purpose of the accused. That purpose is likely to be a very important factor, but it will not be determinative.[5]

   [5]     R v Richards (2016) 125 SASR 341 at [24].

8. Activities may be plainly sexual in whatever context they occur or may not be sexual at all, irrespective of the context. However, there will be activity, including internet conversations, which may or may not be characterised as sexual activity depending on the surrounding circumstances.

   ‘To make a child amenable’

9. To make a child amenable is to influence the child to yield, submit or cooperate. The conduct must be deliberate.[6] The prosecution is not required to prove that the person to whom the communication is made is in fact a child. The essence of the offence is the making of a communication with the relevant intention.[7]

   [6]     R v Richards (Ibid) at [21] per Kourakis CJ.

   [7]   R v Barrie [2012] SASCFC 124 per Vanstone J at [36] – [40]; White J posited two constructions with respect to the issue of the defendant’s intention; firstly that the inquiry is wholly subjective and concerns only the defendant’s subjective state of mind and whether the defendant has the requisite state of mind in relation to a person who seemed to the defendant to be under the prescribed age or, secondly, the defendant will have the proscribed intention if, objectively, having regard to the circumstances as they appeared to the defendant to be, he intended to make a person apparently under the prescribed age amenable to sexual activity. His Honour said that it will be open to the trier of fact to conclude that, whether considered subjectively or objectively, the recipient of the communications was, to the maker of them, a person apparently under the prescribed age.

   ‘For a prurient purpose’

10. A prurient purpose must accompany the conduct intended to make a child amenable to sexual activity. A prurient purpose is defined in s 62 CLCA  as follows:

    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 of providing sexual arousal or gratification for someone else.

11. Where the conduct involves trying to engage the child in sexual conversation or texting, the prurient purpose is to obtain instant sexual gratification from the conversation itself. In other cases, where the intention is to make the child amenable to physical sexual activity, the prurient purpose may be a delayed one.[8]

    [8]     San v R [2020] SASCFC 35 at [36] Kourakis CJ.

    ‘Communication’

12. The conduct element of the offence is the making of a single communication or a series of connected communications. A single offence is committed by making that communication, even if an accused has a multiplicity of sexual conduct in mind.[9] Often, the communication itself will refer to sexual activity, but that need not be so. The communication may, on its face, be quite innocuous, but nonetheless be made with the intention of making a child amenable to sexual activity.[10]

    [9]     San v R (Ibid) at [5], [32] per Kourakis CJ.

    [10]   San v R (Ibid) at [35] per Kourakis CJ.

    Overview of the prosecution case

13. Both charges arise from a police undercover operation.

14. A detective exercising approval granted under the Criminal Investigation (Covert Operations) Act 2009 joined a free instant messenger application known as ‘Kik’ and then joined a public group called ‘Gay teens Adelaide’ portraying himself as a 14-year-old boy. At trial, the detective referred to his username by the pseudonym JPO-02. A person, alleged by the prosecution to be the accused, also a member of the group ‘Gay teens Adelaide’ and with a username of ‘Ku.tush’ and a vanity name of ‘Prince Cool’, engaged in a series of connected communications comprising a private conversation with JPO-02 involving an exchange of messages on Kik.

15. The private conversation the subject of count 1 commenced on 31 March 2019 around 17:31 and concluded on the same day, around 21:39. The private conversation involving a series of connected communications the subject of count 2 commenced on 1 April 2019 around 11.24am and continued until 7 May 2019, although not always on consecutive days during this period.

16. The prosecution case on count 1 is that the accused posted a message to the public group ‘Gay teens Adelaide’ asking ‘anyone up for fun’. When JPO-02 responded, a private messaging conversation commenced. The prosecution alleges that the accused was looking for someone in that group who would be interested in having sexual activity with him. When JPO-02 tells him he is a 14-year-old male, the accused sends further messages to JPO-02 in order to arrange a meeting. The accused asks JPO-02 if he is ‘top or bottom’, which the detective understood to be a reference to JPO-02’s preferred mode of engaging in homosexual sex. After this there are, on the prosecution case, clear references to the sexual activity that the accused intends to have with JPO-02 and numerous requests for pictures of JPO-02’s body, including a picture of his lips, and information regarding JPO-02’s physique.

17. As the conversation continues into the early evening of 31 March 2019, the accused and JPO-02 agree to meet on Thursday after school. The accused tells JPO-02 to change out of his clothes before coming over and suggests to JPO-02 that they spend two hours together. Towards the end of the conversation the accused asks JPO-02, ‘whats your real age’. The prosecution case is that this question does not permit an inference that the accused believed JPO-02 was over 17 years of age but that, even if it did, the accused continues to engage JPO-02 in conversation after being reminded that JPO-02 is 14 and asks him if he stills wants to meet. Thus, the prosecution case is that the accused is nevertheless guilty because he continued to communicate with JPO-02 for a prurient purpose and with the intention of making JPO-02 (a child) amenable to sexual activity.

18. The prosecution case on count 2 is that, although the communications between 1 April 2019 and 16 April 2019 are not overtly sexual, they demonstrate the accused’s ongoing desire to meet with JPO-02. The prosecution case is that it can be inferred from the communications on 31 March 2019 that the accused’s ongoing desire to meet with JPO-02 is for the purposes of engaging in sexual activity with him. On 23 April 2019, the accused tells JPO-02 to come to his house ‘now’ and when JPO-02 says he cannot, the accused asks for his address. When JPO-02 tells him his mother will go ‘mental’ if he attends, the accused then asks for a ‘half pic’ of JPO-02 and then a ‘body pic’ and then ‘send me something’, ‘anything’. The accused tells JPO-02 he wants to hear his voice.

19. There are further requests to meet and the accused tells JPO-02 not to wear his school uniform because he is ‘still underage’, and people will notice. Eventually, after JPO-02 fails to meet the accused as arranged, JPO-02 promises to meet him on 7 May 2019 and tells the accused he will pretend to be sick and then go to the accused’s place when his mother leaves for work.

20. The accused was arrested by police at his home on 7 May 2019. At the time, he was on the toilet with his mobile telephone in his hand and the Kik application was open. The accused was given his rights, did not request an interpreter and then participated in a video-taped record of interview whilst still at his house. He told police he thought it was a ‘prank’ and that he ‘was totally, like not wanted to do anything…because he was 14’. He told police that ‘the way that person talk with me for, at the first place, talking with me that as a legal age. Then he declared he’s 14, so that’s why I was like “Okay I can’t do anything, and so we can’t meet’.

21. The accused said that even if he had met with JPO-02, he never thought about sexual activity because that was not ‘under’ his ‘criteria’ and he did not ‘do any physical activities with the kids’. He told police that he had been a teacher in India, and he knew his ‘duty’. He said he was concerned when JPO-02 told him he had been bullied and that was the reason he kept talking to him and that he was okay with meeting him ‘for talk’. The accused said that he was gay and that ‘teens’ to him meant 16-20 years old and he thought the legal age was ‘after 16’. He said he had never had sex with a 16-year-old and that he did not go ‘for like below age…area’. The accused told police three times JPO-02 had told him he would meet with him but did not show up, so he thought it was a just a prank.

22. The police seized and examined the accused’s laptop and two mobile phones and found no evidence of any communications of a sexual nature with children.

    General directions

23. 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,[11] 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.

    [11]   R v G [2015] SASC 186.

24. 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.

25. The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[12]

    [12]    Azzopardi v R (2001) 205 CLR 60 at [51] and R v Weetra (2010) 108 SASR 232 at [67].

26. I must assess each witness as to truthfulness and reliability. I must determine whether I can rely upon the evidence the witness gives. I can reject or accept all or a part of the witness’ evidence.

27. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.

    The evidence

28. I turn to examine the evidence led by the prosecution in more detail.

29. The following exhibits were tendered:

    P1: Online engagement log containing conversation between Ku.tush and JPO-02.

    P2: Still photographs of the accused’s mobile phone taken on 7 May 2019.

    P3: Audio-visual record of interview footage taken on 7 May 2019.[13]

    P4: Photographs taken of accused’s mobile phone showing user details.

    P5: Official academic transcript of accused issued by University of South Australia on 20 November 2019.

    P6: Plan of granny flat at 2 Sylvia Avenue, Blair Athol.

    P7: Booklet of 24 photographs of premises at 2 Sylvia Avenue, Blair Athol taken on 7 May 2019.

    P8: Bundle of screenshots from video TKP-3 taken by Detective Summers on 7 May 2019.

    P9: Statement of agreed facts.

    [13]   The transcript of this interview was marked for identification: MFI P3A.

30. In exhibit P7 the following facts were agreed:

    1. The accused was born on 22 September 1990.

    2. Between 15 February 2019 and 7 May 2019 the mobile phone number 0426 712 209 was subscribed to Tushar Kishorbhai Patel of 2 Sylvia Street, Blair Athol. It is a Vodaphone service.

    3. The Samsung mobile phone seized by Detective Summers from the accused’s person on 7 May 2019 had an International Mobile Equipment Identity (IMEI) number of 35834008277368. This IMEI number matches the IMEI number recorded by Vodaphone for the mobile phone number 0426 712 209.

1. The prosecution called three witnesses, all of whom were police officers.

2. Detective Brevet Sergeant Jacob Patrick O’Callaghan (Detective O’Callaghan) gave evidence that in 2019 he was stationed with the Joint Anti-Child Exploitation Team investigating online child sexual abuse. He undertook the role of online covert operative.[14]

   [14]   T 12, 11-21.

3. On 31 March 2019, Detective O’Callaghan was maintaining a number of covert social networking profiles in order to conduct investigations in relation to suspected offences against the CLCA, in particular, grooming offences such as communicating to make a child amenable to sexual activity.[15] Detective O’Callaghan was authorised under the Criminal Investigations (Covert Operations) Act 2009 to make contact with persons via the internet and interact with them for the purposes of gathering evidence.[16]

   [15]   T 12, 22-37.

   [16]   T 13, 1-8.

4. One of the social networking profiles Detective O’Callaghan was maintaining was on an application called ‘Kik’. Kik is a social networking platform designed to allow users to communicate with each other primarily on a mobile telephone via text, multi-media, or via audio or video call.[17] The Kik application is free to download but requires users to input their personal details including a first and last name, a username, email and password. The username is fixed, and the user is able to set a profile photograph.[18] The first and last name is known as a ‘vanity name’ and can be changed at any time.[19]

   [17]   T 13, 9-24.

   [18]   T 14, 33-38; T 15, 1-37.

   [19]   T 16, 1-13.

5. Detective O’Callaghan explained that the Kik application has a search function which enables a user to enter a search term and find a public group. The group sizes are capped at 50 people per group and the members in each group can all communicate with each other by posting to the group.[20] Members of the group can engage another member in private conversation.[21]

   [20]   T 16, 21-38.

   [21]   T 17, 19-22.

6. On 31 March 2019, Detective O’Callaghan was maintaining a profile on Kik with a username that, for the purposes of the trial, he referred to as JPO-02.[22] JPO-02 was holding himself out to be a 14-year-old male child living in South Australia. JPO-02 was a member of the Kik group ‘Gay teens Adelaide’.[23]

   [22]   T 17, 23-38.

   [23]   T 18, 2-13.

7. Whilst a member of Gay teens Adelaide, Detective O’Callaghan had contact with another member going by the username ‘Ku.tush’ and the vanity name ‘Prince Cool’.[24] The account ‘Ku.tush’ was created 213 days prior to 31 March 2019.[25] Detective O’Callaghan took a screenshot of the title page of the public group Gay teens Adelaide.[26] He also took a screenshot of a message posted by Ku.tush to the group on 31 March 2019, which read ‘Anyone up for fun?’.[27] The time at which the screenshot was taken is recorded at the bottom of the screenshot and was 17:49:25. The screenshot records that the message from Ku.tush was posted ‘26 minutes ago’ and accordingly the time of that message was 17:23. Detective O’Callaghan, as JPO-02, responded to that message by posting a response, ‘Hi’, to which Ku.tush responded ‘Hi’.[28]

   [24]   T 18, 32-38.

   [25]   T 26, 9-11; Exhibit P1, Count 1 tab, page 1.

   [26]   Exhibit P1, page 1.

   [27]   Exhibit P1, page 2.

   [28]   T 24, 9-23; Exhibit P1, page 2.

8. Following the exchange of these messages, Ku.tush commenced a private messaging conversation with JPO-02.[29] The conversation commenced with Ku.tush writing, ‘Hi’ and JPO-02 responding, ‘Hey’. Ku.tush then wrote, ‘what’s up dude’ and JPO-02 responded, ‘Nm-hbu’. Detective O’Callaghan explained that this meant ‘not much, how about you’.[30] After Ku.tush said he was at home and JPO-02 responded, ‘same’ Ku.tush wrote, ‘looking for fun. Nu. Which suburb are you in?’. JPO-02 responded, ‘Mawson lakes – asl?’. Detective O’Callaghan explained that ‘asl’ was an acronym for ‘age, sex, location’ and he had used this acronym when communicating with others on Kik.[31] He said that this acronym was a common start-up conversation and a notification of homosexuality.[32]

   [29]   Exhibit P1, Count 1 tab, page 2 ff.

   [30]   T 27, 31-38; Exhibit P1, Count 1 tab, page 2.

   [31]   T 28, 9-25; Exhibit P1, Count 1 tab, page 3.

   [32]   T 31, lines 2-9, T 67, 20-30.

9. Ku.tush responded, ‘Travel? 26 nu Blair Athol’. JPO-02 wrote, ‘14m’. The ‘m’ was a reference to ‘male’. In a further series of messages Ku.tush asked JPO -02 if he wanted to come over and JPO-02 referred to not being able to drive, having to ask his mother if he could go out, and how she treated him like a child. JPO-02 asked, ‘Wot exactly are we gonna…do’. Ku.tush replied, ‘What you like?? R u top or bottom’. Detective O’Callaghan explained what was meant by that phrase based upon his training and experience:

   It's to signify with homosexual males who is going to be giving it, who is going to be receiving, so the top would be the one inserting their penis into the bottom’s bottom.[33]

   [33]   T 30, 1-3.

10. Detective O’Callaghan was taken through Exhibit P1 and asked to identify the dates and times of various messages and the meanings of certain acronyms. He confirmed that although JPO-02 and Ku.tush had exchanged mobile telephone numbers, there were no communications, by text or phone call from either of them.[34]

    [34]   T 42, 11-19.

11. In cross-examination, Detective O’Callaghan confirmed that the messages in P1 from Ku.tush referring to ‘Henna’ were references to a form of temporary body art and had nothing to do with videos, movies or under age sex.[35] Detective O’Callaghan confirmed that the term ‘twink’ refers to a  homosexual male in the late teens (17 and upwards) to early twenties who have some adolescent features.[36] In an online setting involving conversations between homosexual men, it is typically older homosexual men who look for ‘twinks’ and vice versa.[37]

    [35]   T 49, 27-33.

    [36]   T 50-51.

    [37]   T 52, 20-38; T 1-9.

12. Detective O’Callaghan was cross-examined about role playing and explained that this involved people taking on different personas or characters and talking to others who do the same.[38] He said that where he had interaction with people who wanted to role play online, it has never been the case that they had engaged him in role play without first inquiring if that is something he wanted to do.[39]

    [38]   T 53, 20-24.

    [39]   T 62, 13-18.

13. I asked him how he would know whether a member of the chat group Gay teens Adelaide had determined unilaterally to play the role of someone who they were not, and with a fictional age, and he responded:

    I suppose just through experience, the way that people chat online. I mean there’s no – you’re not going to know definitively unless you’re standing in front of them, talking to them because it’s the internet and effectively it can be anyone on the other end, until you get there, and the chat is there…[40] [Emphasis added]

    [40]   T 62, 28-33.

14. Detective O’Callaghan said that someone pretending to be somebody who they are not is a different situation from role playing.[41]

    [41]   T 63, 10-18.

15. Detective O’Callaghan agreed that the chat that went on between members of the group Gay teens Adelaide was, on occasions, overtly sexual.[42] He also said that there were other members of this group who posted messages in which they identified themselves as males under the age of 17, but he could not say how many did this.[43]

    [42]   T 59, 15-21.

    [43]   T 61, 4-13.

16. Detective Brevet Sergeant Craig Zetter (Detective Zetter) was the next witness. In May 2019, he was stationed at the Special Crimes Investigation Section. On 2 May 2019, he was briefed on the investigation into the accused. He viewed the results of a subscriber check on mobile telephone number 0426712 209 and ascertained that the service was subscribed to by the accused. He obtained the accused’s current residential address and 5 days later attended a briefing with some other officers from the same Section regarding the planned arrest of the accused.[44]

    [44]   T 69-70.

17. Detective Zetter was designated the role of arresting officer and Detective Chay Summers (Detective Summers) was the exhibits officer. On 7 May 2019, at 9.10 am he, Detective Summers and a number of other police officers attended 2 Sylvia Avenue, Blair Athol. A video camera was activated prior to arriving at the premises.[45]

    [45]   T 71.

18. The accused was located in a granny flat at the rear of the premises and in possession of a mobile telephone.[46]Detective Zetter directed Detective Summers to take photographs of the screen of the mobile phone. The Kik application was open on the phone and the profile of JPO-02 was displayed on the screen.[47]

    [46]   T 72, 6-13.

    [47]   T 72, 24-38; T 73, 1-25; Exhibit P2.

19. Detective Zetter arrested the accused, gave him his arrest rights and then interviewed him on camera. The audio-visual record of interview was tendered and played at the trial and a transcript was marked for identification.[48] I will discuss the contents of that record of interview in more detail later in these reasons.

    [48]   T 74, 1-21; Exhibit P3, MFI P3A.

20. Whilst at the premises, a search was also conducted. The mobile phone found on the accused was seized and examined. Detective Zetter was unable to identify any users of the Kik application who were holding themselves out as being underage.[49] Detective Zetter also read some of the conversations that the accused had on Kik with other persons. He discovered that the accused had used the phrase ‘top or bottom’ a number of times.[50]

    [49]   T 78, 1-24.

    [50]   T 78, 26-38; T 79, 1.

21. Detective Zetter took two photographs of the mobile phone, a Samsung Galaxy, J5 pro which showed the IMEI number and email address associated with the phone.[51] Detective Zetter understood that Ku.tush had told JPO-02 that he lived in Blair Athol a short walk from Chicken Chef and that he was at university studying a Master’s degree. Detective Zetter said that there was a Chicken Chef restaurant 300 metres from 2 Sylvia Avenue, Blair Athol.[52] Detective Zetter obtained an official academic transcript of the accused from the University of South Australia on 20 November 2019 which confirmed that the accused was studying a Master of Management (arts and cultural management).[53]

    [51]   T 79. 9-32; Exhibit P 4.

    [52]   T 80.

    [53]   T 81, 13-30; Exhibit P5.

22. Whilst at 2 Sylvia Avenue, Blair Athol, Detective Zetter determined that there were two other males living in the granny flat with the accused. Also found in the accused’s bedroom was a HP laptop and another mobile phone, a Lava brand.[54] Those devices were seized and later examined but nothing relevant to the charges was located.[55]

    [54]   T 82, 21-38.

    [55]   T 82, 36-38; T 83, 1-9.

23. In cross-examination, Detective Zetter said that the E-crime analysis of the two mobile telephones included over 9000 pages of material. He looked through that material.[56] There was nothing to indicate that any of the users, with whom the accused had been engaged in conversation, were children.[57] The examination of the contents of the laptop did not reveal any evidence of an attempt to communicate with children. There was no other evidence obtained in the search of the accused’s premises that indicated any interest in children.[58]

    [56]   T 87, 24-38.

    [57]   T 88, T 89, 14-25.

    [58]   T 90, 8-17.

24. Detective Zetter stayed with the accused after his arrest and whilst he was in the cells and then escorted him to hospital because he became concerned about his mental health. He was checked by a psychiatrist and then returned to the cells.[59] In re-examination, Detective Zetter said he was told by a mental health team that the accused was suffering from a situational crisis rather than an underlying mental health condition.[60]

    [59]   T 90, 18-35.

    [60]   T 91.

25. Detective Summers was the last witness. On 7 May 2019, he attended a briefing conducted by Detective Zetter in relation to the planned arrest of the accused. He was told that the accused was suspected of having communicated with a police operative who was holding himself out as a 14-year-old boy.[61]

    [61]   T 92, 9-23.

26. Detective Summers was allocated the role of executing his general search warrant and the role of exhibits officer.[62] At 9.10am, he and other officers attended 2 Sylvia Avenue, Blair Athol. He executed his general search warrant and searched the premises.[63] He drew a plan of the layout of the premises which included a main house and a granny flat.[64]

    [62]   T 92, 28-35.

    [63]   T 92, 36-38; T 93, 1-6.

    [64]   T 93, 7-9, 24-27; Exhibit P6.

27. Once inside the granny flat, Detective Summers found the accused in the toilet, sitting on it while holding his mobile phone. Detective Summers seized the phone and saw that the Kik application was open and the username ‘Prince Cool’ and the username for JPO-02 were displayed. He was then directed by Detective Zetter to take photographs of the screen of that phone.[65]

    [65]   T 95-96.

28. Detective Summers took photographs of some areas in the granny flat and the premises itself.[66]The photographs taken in the accused’s bedroom show a Lava brand mobile phone, a Metro bus pass, a HP laptop, a proof of age card, a University of South Australia card, a MasterCard debit card, passport and a visa all in the accused’s name.[67]

    [66]   T 97, 4-10; Exhibit P7.

    [67]   Exhibit P7.

29. After seizing the mobile phone the accused was found holding, Detective Summers examined it to see if there was any evidence of children at risk. He recorded his examination of the phone on the video camera.[68] Screenshots were later taken from that recording.[69]

    [68]   T 100, 28-38.

    [69]   T 101, 7-14; Exhibit P 8.

30. When Detective Summers examined the phone, he could see a number of different conversations within Kik. The groups or persons listed were:

    w     AdelaideGayBeats
    w     Tattoo’s and piercings Adel…
    w     Adelaide Gay Fun
    w     Adelaide Gay Chub & Chase…
    w     Gay Adelaide Under 20’s
    w     Adelaide bi couple fun
    w     M A
    w     Gay Stream
    w     C PM OPEN
    w     Gay teens Adelaide
    w     Daniel D
    w     Andrew Smith

31. Page 3 of the screenshots taken by Detective Summers[70] shows a conversation between the accused and ‘john adam’ in which the user ‘john adam’ asked ‘bottom or top’ and the accused responded, ‘any body pic?’.

    [70]   P8.

32. Page 4 of the screenshots shows a conversation between ‘KK’ and the accused. The accused asks, ‘ R u top or bottom’ to which KK responds ‘Vers. You?’. The accused responds, ‘Top’. After KK replies ‘ok’ the accused writes, ‘Hmmm. What you like on bed? Any pic? There. ????’

33. On pages 5 and 6 of the screenshots there is a profile picture of Michael Smith, who is listed as being added by the accused to the group ‘Adelaide Gay Fun’. The screenshot shows a conversation between the accused and Michael Smith in which the accused writes, ‘Hi There’. After Smith replies, ‘Hi’, the accused asks, ‘Where r u Ru top or bottom’. Smith replies, ‘Vers top you?’. The accused writes, ‘Cool Your cock pic M at Blair Athol’.

34. On page 7 of the screenshots is a conversation between ‘Jake W’ and the accused in which the accused asks, ‘what you looking for’ and Jake W replies, ‘anything’. The accused asked for his suburb and age and when Jake W replies, ‘Andrews 22’ the accused writes, ‘Blair Athol 26 Ru top or bottom’.

35. Finally, page 8 of the screenshots shows a conversation between ‘DC’ and the accused in which the accused asks, ‘your age’ and DC responds, ’27 You’. The accused writes, ’26 R u top or bottom’. DC replies, ‘not sure what that means I’m straight I just like dicks ☺’. The accused writes, ‘Cool You can have my cock Worship it Play with it’.

36. In cross-examination, Detective Summers agreed that in his initial inspection of the phone he did not find any conversations that involved children on the accused’s phone. He disagreed that the accused was playing the video game ‘Candy Crush’ on his phone when it was first seized.[71]

    [71]   T 103, 24-28.

    The defence case

37. The accused elected not to give evidence but called one witness, Brenton Robert Sandford. He gave good character evidence on behalf of the accused. He said that he was a retired teacher and had known the accused since December 2017.[72]

    [72]   T 108, 4-9.

38. Mr Sandford said he knew a large group of people who knew the accused and he gave the following evidence regarding the accused’s reputation amongst that group of people:

    …he’s much loved because he’s very sensitive and caring and very honest and is empathic and has proved that he’s willing to look after members of that group.[73]

    [73]   T 108, 14-16.

39. Mr Sandford confirmed that this group of people were aware of the charges the accused faced and that their opinion of his reputation and character had not changed. Mr Sandford said his personal view of the accused was that he was extremely honest with his feelings.[74]

    [74]   T 108, 17-28.

40. In answer to questions from me, Mr Sandford explained that the group of people comprised his father and brother, his sister and her husband, their two children and their spouses.[75]

    [75]   T 108, 30-32.

41. In cross-examination, Mr Sandford said he met the accused on the ‘Grinder app’ which is an application where adult males contact each other for company.[76] Mr Sandford said he was not familiar with Kik and had not seen the private messages the accused had sent on Kik.[77]

    [76]   T 109, 4-10.

    [77]   T 109, 29-34.

42. In re-examination, Mr Sandford said that he had read all the Kik messages that related to the charges against the accused and they did not change his opinion of the accused’s character or reputation.[78]

    [78]   T 109, 36-38; T 110, 1-8.

43. The evidence of Mr Sandford was good character evidence. It was not challenged by the prosecution. I accept the evidence given by Mr Sandford and I consider that it has probative significance in assessing the likelihood of the accused committing the offences charged and in assessing the credibility of his answers in the record of interview.

44. 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 his record of interview regarding the allegations.

    Addresses of counsel

45. Mr Dawes, for the prosecution, argued that the prosecution has proved beyond reasonable doubt the first element of each count, namely that the accused had made a communication, involving a series of connected electronic communications. Mr Dawes summarised the circumstantial evidence establishing that it was the accused who made the communications in P1. This element was not disputed.

46. In relation to the second element of each count, that the communication was made for a prurient purpose, Mr Dawes relied upon the inferences that could be drawn from a plain reading of the messages sent by the accused to JPO-02.

47. In relation to the third element of each count, that the accused intended to make a child under the age of 17 amenable to sexual activity, Mr Dawes relied upon the inferences that could be drawn from a plain reading of the messages sent by the accused to JPO-02. He contended that the sexual activity, to which the accused intended to make a child (JPO-02) under the age of 17 amenable, was both sexualised conversation and the sexual activity the accused intended to engage in, if JPO-02 met with him in person. He also contended that if I was satisfied of the accused’s intention to meet with the JPO-02 to engage in sexual activity and/or satisfied of the accused’s intention to engage JPO-02 in sexualised conversation, this would establish the requisite prurient purpose for the communication.

48. Mr Dawes emphasised that the contextual setting for the communications was the membership by both the accused and JPO-02 of Gay teens Adelaide. He said it should be inferred that members of the group were likely to be gay, and would either be gay teenagers or persons with an interest in gay teenagers. Accordingly, it should be inferred that when the accused posted ‘anyone up for fun’ he was referring to some form of sexual activity with a member or members of the group. This inference is fortified by the contents of the private messages that the accused then sent to JPO-02 which included ‘looking for fun’ and asking JPO‑02 what suburb he was in. Mr Dawes argued that the only conceivable reason for asking in what suburb JPO-02 lived was because the accused wanted to meet him in person. At this point, JPO-02 introduced the acronym ‘asl’ which Detective O’Callaghan said was a common start up conversation and a notification of homosexuality.

1. Mr Dawes relied heavily upon the undisputed fact that, early in the messaging sequence, JPO-02 told the accused he was a 14-year-old male (‘14m’), followed up by multiple references to his mother, being required to ask her if he could go out and her treating him like a child even though he was 14 and not a baby. He argued that it is apparent from the accused’s message, ‘but your mum told you not to go out then’ that the accused believed he was communicating with a 14-year-old male who lived with his mother. Mr Dawes’ submitted that when JPO-02 asked, ‘do I need to bring anything’ and the accused responded, ‘nah I got everything’, the accused must have interpreted this as a reference to the equipment JPO-02 should bring for the purposes of engaging in sexual activity.

2. Mr Dawes argued that when JPO-02 asked, ‘wot exactly are we gonna…do’ the accused, based on the unchallenged evidence of Detective O’Callaghan and the messages in P8, undeniably refers to sexual activity when he responded, ‘what you like?? Ru top or bottom?’ When met with the response that JPO-02 had never actually done anything before, the accused explained that they will see how it goes and they could stop if he did not like it. Mr Dawes also argued that the accused intended to make JPO-02 amenable to sexualised conversation by referring to sexual activity.

3. Mr Dawes contended that the accused’s request, ‘Can. i see any nude’ was plainly a communication for a prurient purpose and with the intention to make JPO-02 (whom the accused believed was a 14-year-old boy) amenable to sexual activity. The request for pictures was repeated by the accused 14 times during the conversation, including a request for a picture of his lips. When the request for pictures was not met, the accused asked JPO-02 to describe his physique and then describes his own physique.

4. Mr Dawes argued that when the conversation turned to non-sexual matters, principally JPO-02 being bullied at school and the accused comforting him and encouraging him to get help, the accused was attempting to build trust and rapport with JPO-02. Thus, when JPO-02 asked the accused to explain, ‘which way does top go again?’ the accused’s response, ‘will teach you everything, ok?’ evidenced his intention to engage in sexual activity with JPO-02. The accused then repeated his request for JPO-02 to send him pictures of himself. Mr Dawes contends that the accused’s question, ‘what study you gonna do after your year 12’ demonstrated that he believed that JPO-02 was underage.

5. When the accused was unable to secure JPO-02’s attendance at his house that night, the discussion turned to meeting at another time. They agreed to meet on Thursday after school and the accused told JPO-02 to change his clothes first. When JPO-02 asked him how long he would be at the accused’s house, the accused said, ‘up to you How many hours you wana stay’. After JPO-02 said ‘like how long things take’, the accused suggested, ‘Lets spend 2 hours together’. Mr Dawes argued that this is a clear reference to the time the accused expected the sexual activity to take.

6. The conversation then reverted to the subject of bullying, and it is after this that the accused wrote, ‘And whats your real age’. Mr Dawes contended that I should not infer from this question that the accused suspected that JPO-02 was not a child, because it was equally supportive of an inference that the accused suspected JPO-02 was younger than 14. Mr Dawes also argued that, when JPO-02 replied, ‘14 Is that still ok?’ the accused was well on notice that JPO-02 was 14. He knew that it was a crime to have sex with JPO-02 because he wrote, ‘its not legal age to have sex tho’.

7. Mr Dawes argued that the accused’s subsequent messages suggesting that he had thought JPO-02 was 24, were feeble, nonsensical and contradictory.

8. Mr Dawes argued, that even if the words, ‘whats your real age’ leave open the reasonable possibility that the accused did not believe that JPO-02 was a child, and therefore the earlier communications were not accompanied by the requisite intention to make a child amenable to a sexual activity, the balance of the communications in count 1 prove the charge. This is because the accused told JPO-02 he could meet him and there was further discussion about when a meeting could take place. Mr Dawes asked me to infer that the reference to meeting has the same connotation as the earlier references to meeting, namely for sexual activity.

9. Mr Dawes also argued that the evidence in support of count 2 is admissible under s 34P of the Evidence Act 1929 on count 1 as it is evidence of the accused’s sexual interest in JPO-02 (a person the accused believed was a child) and a propensity to act on that sexual interest. It passes the test in s 34P (2) (a) and (b) and, sitting as a Judge alone, the requirement in s 34P (3) is satisfied. Mr Dawes, in his written submissions, said:

   If the trier of fact first finds proved that the accused made a communication for a prurient purpose with the intention of making JP0-02 amenable to sexual activity in either Count 1 or Count 2, then the trier of fact may use that as evidence of a clear sexual attraction to JP)-02. As much is implicit in finding that count proved, because it would require a finding that the accused acted with an intention of satisfying his or her own desire for sexual arousal or gratification when making that communication. Further it requires the trier of fact to have first found that the accused knew he was communicating with a child and that he intended to make that child amenable.

   Such a finding provides strong, if not irrefutable, evidence that the accused was sexually attracted to JPO-02 because if he were not, he could not intend to satisfy his sexual arousal by communicating with JPO-02.

   The prosecution submits that Counts 1 and 2 are cross-admissible in relation to each other charge as circumstantial evidence of the accused’s sexual attraction to JPO-02 and his tendency to act upon it when the opportunity presented.[79]

   [79] Prosecution Written Submissions on Discreditable Conduct Evidence, [16], [17], [24].

10. In respect of count 2, Mr Dawes argued that the accused’s ongoing requests for pictures, to hear JPO-02’s voice and to meet with JPO-02, evidenced his intention to make JPO-02 amenable to sexual activity. Further, Mr Dawes argued that the accused’s request that JPO-02 not wear his school uniform, otherwise he would get in trouble, gives rise to an inference that he intended to engage in sexual activity with him without detection. Mr Dawes also contended that the evidence on count 1 is admissible under s 34P on count 2 as evidence of a sexual attraction to JPO-02 and a propensity to act upon that sexual attraction.

11. Of the accused’s record of interview, Mr Dawes said that the accused was attempting to distance himself from any suggestion he was engaging in sexualised conversation with a child, or intending to have sexual activity with a child. When the accused told police that he, ‘totally not wanted to do anything. It is because he was 14, he’s mentioned’ Mr Dawes said this is inconsistent with the messages in P1.

12. Mr Dawes argued that the accused’s explanation that he thought it was a prank should be interpreted narrowly as meaning the accused thought JPO-02 would not show up at his house for sexual activity, rather than meaning that the accused thought JPO-02 holding himself out to be a 14-year-old was a prank. In any event, Mr Dawes argued that the accused was lying when he told police this.

13. Mr Mead, for the accused, argued that the evidence raises the reasonable possibility that the accused did not believe that he was communicating with a child under the age of 17, namely a 14-year-old boy. Absent proof that the accused believed that the person with whom he was communicating was a child, the prosecution cannot establish that any communications, even if proved to have been made for a prurient purpose, were accompanied by an intention to make a child under the age of 17 amenable to sexual activity.

14. Mr Mead emphasised that the accused’s message, ‘what’s your real age’ is a question asked at a time when, on the prosecution case, the accused was committing the offence. This is different from an ex post facto explanation. The inference to be drawn from that question can only be that the accused did not believe JPO-02’s account of being 14 years old, or he had not read correctly the messages in which JPO-02 asserted he was 14, or a combination of the two. If either or both are a reasonable possibility, then the prosecution will not have proved the third element in relation to the communications that precede this question in count 1.

15. Mr Mead argued that the communications which post-date this question are not communications for a prurient purpose and that the nature of these communications are such that I should infer that the accused still did not believe that he was communicating with a 14-year-old boy and believed that it was a ‘prank’. He contrasted the nature of the messaging prior to this question with the nature of the messaging afterwards, in which there are no references to sexual activity or nude pictures. Indeed, when JPO-02 asked what they were going to do when they met, the accused responded, ‘not sure’. On another occasion when asked what he was doing the accused told JPO-02, ‘was doing henna’ and told him, ‘will show you when you are here’.

16. Mr Mead argued that an inference arising from the accused’s request that JPO-02 not attend his house in school uniform otherwise it would cause him trouble, is that, if JPO-02 was indeed a child, he did not want to be wrongly accused of meeting a child for a sexual purpose.

17. Mr Mead also argued that the accused specifically disavowed any intention to meet with JPO-02 for the purposes of sexual activity when he said, ‘it’s not the legal age to have sex tho’. 

18. Mr Mead also relied upon the statements made by the accused in his record of interview, in particular, that he mentioned on two occasions that he thought it was a ‘prank’.

19. When police attended, Detective Zetter told the accused, ‘we’ve got information that you were trying to entice a child to come to your house for sexual activity’.[80] Mr Mead emphasised the fact that, at no time, did the police tell the accused that he was in fact communicating with an adult undercover police officer.

    [80]   MFI P3A, page 8, lines 16-18.

20. After his rights and the search warrant were explained the accused was asked whether he had any questions of police. The accused answered ‘Oh, not really. Because I thought it’s just a prank’.[81] When asked, ‘what about the sexual activity though’ the accused replied, “I know, um, I was totally like not wanted to do anything. It’s because he was 14, his, he mentioned.’[82]

    [81]   MFI P3A, page 14, line 6.

    [82]   MFI P3A, page 14, lines 19-21.

21. The accused then went on to say that the only child he had been talking to on his phone was JPO-02, ‘because he mentioned his age…and that’s why I know it’s 14 years’.[83] Finally, the accused is asked how he was feeling, and he replied:

    [83]   MFI P3A, page 18, lines 4-6.

    AI really don’t know, it’s I’m just overwhelmed.

    QYeah

    AI, I thought it’s just a prank.

    QOkay.

    AAnd because I never spoke with any, as, as from my knowledge.

    QYep.

    AI never spoke with any kid.

    QOkay

    AWho is on Kik…[84]

    [84]   MFI P3A, page 23, lines 4-12.

22. In his record of interview the accused also said this:

    Because the way that person talk with me for, at the first place, talking with me that as a legal age, that he was in a legal age. Then he declared he’s 14, so that’s why I was like “Okay, I can’t do anything, and so we can’t meet’ and he was talking about his story.[85]

    [85]   MFI P3A, page 19, lines 28-31.

23. Mr Mead also argued that, in respect of the bulk of the communications before the question ‘what’s your real age’, they have not been proved to have been made for a prurient purpose. For example, the question, ‘r u top or bottom’ was a request for information so the accused could ascertain whether he was likely to have any interest in communicating with JPO-02 for a prurient purpose.

24. Mr Mead also emphasised the undisputed fact that no evidence of sexualised communications with children was found on any of the devices belonging to the accused, in circumstances where he was clearly not forewarned about police attendance. Mr Mead also contrasted the sexualised messages in P8 that the accused sent to other adult males with the content and nature of the messages to JPO-02 after the accused asked the question ‘what’s your real age’. The messages in P8 are blunt and relate solely to sexual activity, sexually explicit photographs or meeting for the purposes of sexual activity.

25. Finally, Mr Mead said that JPO-02 was in fact role playing. This fact, when combined with Detective O’Callaghan’s evidence that, through experience, it is not possible to definitively determine if a person is who they hold themselves out to be online, because ‘effectively it can be anyone on the other end’, supports the hypothesis that the accused thought JPO-02 was pretending to be someone he was not.

26. In relation to the application under s 34P, Mr Mead contended that the use of the evidence in this way was novel, because evidence of a specific sexual attraction to a complainant, and therefore a propensity to act upon that sexual attraction when the opportunity arose, has only been considered in the authorities in situations where there is an existing relationship between two people who have met and know each other.

27. Mr Mead argued that, in any event, the communications in count 2 do not meet the test in s 34P (2) (a) as their probative value does not substantially outweigh their prejudicial effect because they are not sexual or sexualised.

28. Mr Mead argued that the evidence on count 1 is not cross-admissible for propensity purposes on count 2, because I should find that it is a reasonable possibility that the accused did not believe he was communicating with a person who was in fact a 14-year-old boy.

    Findings on undisputed matters

29. I found each of the police witnesses to be credible and reliable. Most of the evidence that they gave was not challenged. I accept the opinion evidence of Detective O’Callaghan regarding the explanation for the acronyms that appear in P1. I accept his evidence regarding his experience of how role-playing occurs online, and that each participant is aware that the other is playing a role, although in the circumstances of this case, I do not regard that evidence as relevant.[86] There is no evidence before me from which I could infer that the accused was role playing or that he believed that JPO-02 was role playing in the way that term was explained by Detective O’Callaghan.

    [86]   This aspect of Detective O’Callaghan’s evidence was challenged by defence counsel, but there was no challenge to his expertise and experience.

30. I make the following findings of fact on the unchallenged evidence called in the prosecution case which I accept as credible and reliable:

    ·The accused was 28 years of age at the time of the alleged offences.

    ·The accused was living at 2 Sylvia Avenue, Blair Athol at the time of the alleged offences.

    ·The accused had a Samsung mobile phone with the number 0426 712 209 and was using that mobile phone service at the time of the alleged offences.

    ·The accused had the application Kik on his Samsung mobile phone and was a member of the group Gay teens Adelaide in March, April and May 2019.

    ·JPO-02 was a member of the group Gay teens Adelaide in March, April and May 2019.

    ·The accused’s username on Kik was Ku.tush and his vanity name was Prince Cool.

    ·In 2019 the accused was a student at the University of Adelaide studying a Master of Management (Arts and Cultural Management).

    ·The accused identified as homosexual man.

    ·On 7 May 2019, the accused was in possession of the Samsung mobile phone, a Lava Brand mobile phone and a HP laptop.

    ·The accused sent the private messages in P1 to JPO-02 under the vanity name Prince Cool and username Ku.tush between 31 March 2019 and 7 May 2019.

    ·The accused received the private messages in P1 sent by JPO-02 between 31 March 2019 and 7 May 2019.

    ·The accused sent and received the messages in P8 and was a member of the Kik groups listed in P8.

    ·The accused used the term ‘top or bottom’ in private messages in P1 and P8 and when he did so he was referring to the preference of a homosexual man for either inserting his penis into a male’s bottom or having a penis inserted into his.

    ·The private messages in P8 are sexualised conversations with consenting adults.

    ·The accused is not an Australian citizen and his native language is not English. He was the holder of a Visa permitting him to live and study in Australia. He learnt English when he came to Australia in 2017.

    ·At the time police attended 2 Sylvia Avenue, Blair Athol on 7 May 2019 the accused was on the toilet using his Samsung mobile phone and the Kik application was open.

    ·The laptop and two mobile phones belonging to the accused were examined by E-Crime and there was no evidence located of the accused communicating with any children.

    Analysis – count 1.

31. Based on the findings of fact I have made, I am satisfied beyond reasonable doubt that the accused made a communication (comprised of a series of connected electronic communications) on 31 March 2019. Accordingly, I am satisfied beyond reasonable doubt of the first element of count 1.

32. I am satisfied beyond reasonable doubt that, prior to the point in time when the accused asked ‘what’s your real age’ the accused made the communications which are in bold in the table below on 31 March 2019 for a prurient purpose:

Reference	From accused	Response from JP-02
P1, pages 7-12	Hoo k That’s cool	Wot exactly are we gonna…do
	What you like?? R u top  or bottom?	Well….i never actually done anything before…
	I see We will see how i tt goes If you dont  like it We will stop I don’t  wana force to.anyone	Cool…
	Can.i see any nude Just curious	Are u a top or bottom normally?
	Top mostly But like cuddle Too	Okies….
	N u	So which way does top go again?
	Lol will teach you everything okay	Okies…. but does it hurt
	I will not do anything  which will make you  pain Now its okay??	Wots ok?
	I will not gonna do anything which include pain in it	Okies…good  Do u live with someone else or just u?
	Can i see your body pic No face Just body You can crop the face	Idk….that scates me a bit Is it ok if we wait til I get there
	I dont want your face Okay Fine	Thnx 
	But you can at least  tell me your body type tho	Oh…im skinny and about 170cm tall Wbu?
P1, Page 16	Which street r u in If you  come now Then  i can get u uber (thinking emoji)	I cant now…its 2 late…mum says I cant go out  Soz… I thort dinner would b quicker
P1, Pages 23-24	Can i request for something Please  dont say no	Urm…okies
	Can i see your lips Please You can crop pic and send me Just wana see I will delete it after see it	Let me think about it…
	Come.on	Maybe tomorow
	Its not a big deal M not asking u for full face tho
P1, Pages 28-30	How do u no if u r a top or a bottom?
	Its hard question I dont have  any answers	Oh…soz
	You. Will get to know about it	Are u still going to teach me tho?
	Okay i.will	  
	Send me any pic  of you tho Not face Please	Maybe 
	Come on Don’t  treat me like  that
P1, Page 34-35	Thursday you can come if you want	Like after school?
Yep If you wanr	  
P1, Pages 35-37	So after Scholl u will go home Then come?	Or I could take clothes to change to after school
	What you gonna  tell your mum?	Well….how long will i be at ur housr for?
	Up to you How many hours you wana stay?	Idk….what do u want to do
	Lets see.how its goes I dont know either U there?	I dont know how long…like how long things take?
	Lets spend 2 hours together Is it fine	Okies… That will be cool coz mum will b fine wit me getting home till just after 6 anyway Im like excited n nervus

1. In making this finding, I have relied upon my finding that the accused identified as homosexual (as he admitted in his record of interview) and the messages in P8, which demonstrate a sufficiently contemporaneous interest in communicating with other homosexual males online in a sexualised way and about sexual activity. I have also relied upon my finding that the person with whom the accused was communicating (JPO-02) was also member of the group Gay teens Adelaide and the fact that homosexuality was a descriptor for that group. I have also relied upon the evidence of Detective O’Callaghan that the acronym ‘asl’, which JPO-02 used when the private messages with the accused commenced, was a common start-up conversation and a notification of homosexuality. The response of the accused indicates that he knew and understood this.

2. However, I am not prepared to make any finding regarding the composition, or likely composition, of the group Gay teens Adelaide. Other than the evidence that it was comprised of a group of 50 people, two of whom were adults (the accused and JPO-02) there is no evidence of the actual identities, gender, age or sexual inclination of the other 48 members.[87] Although the name of the group might suggest it is comprised of gay teenagers who live in Adelaide, it is equally possible that it is comprised of members who are attracted to gay teenagers living in Adelaide or members posing as gay teenagers living in Adelaide.

   [87]   In P1, there is a message from ‘malewhore’ who writes ‘looking for longterm dom’. In the absence of any further evidence, I am not able to draw any inference regarding this member’s gender, age or sexual inclination.

3. In the absence of any further evidence regarding the composition of this group, I am not prepared to make any finding as to the meaning of the term ‘teens’, and whether that was intended to have a meaning restricted to teenagers who were in fact 17 years or over or included any person aged 13 to 19.[88] Accordingly, I am not prepared to infer that the accused joined this group because he had any interest in males under the age of 17 years. 

   [88]   The accused was also a member of ‘Gay Adelaide Under 20’s’ which, as a group descriptor, is equivalent to ‘Gay Teens Adelaide’. No evidence was led of the composition or membership of this group and no evidence was led to suggest that the accused had communicated with any person in that group apparently under the age of 17.

4. The request for a nude picture of JPO-02 is clearly for a prurient purpose and not part of an information gathering exercise. I have found that the requests for ‘body’ pictures, and body type are communications for a prurient purpose because they were preceded by a request for a nude picture. I infer and find that the request for a nude picture was ongoing but repeated in different forms, such as the request for a ‘body pic’, information about body type and then ‘any pic’. Given this context, I infer and find that the request for a picture of JPO-02’s lips was for a prurient purpose. The use of the word lips has a different connotation from ‘mouth’ or ‘face’ and, in the context of the preceding communications, I infer that that it was considered by the accused to be an erogenous zone. 

5. I have found that the communications in which the accused discussed meeting JPO-02 were for a prurient purpose, because the surrounding communications establish that the purpose of the meeting was to engage in sexual activity.

6. The compelling inference arising from the communications listed in the table in paragraph 110 is that the accused was sending them for the purpose of satisfying his own desire for sexual arousal, either by engaging in sexualised conversation, or for the delayed purpose of engaging in the sexual activity mentioned.

7. In relation to the messages ‘anyone up for fun’ and ‘looking for fun’, I am not satisfied that these communications were made for a prurient purpose. In my view, they are a neutral inquiry, leaving it to the person responding to determine the course and tone of any further communication.

8. In relation to the balance of the communications preceding the question ‘what’s your real age’,[89] I am not satisfied that they were made for a prurient purpose. The content is not sexual and nor is the language sexualised. I reject the submission that the accused was trying to build trust and a rapport with JPO-02. I am unable to exclude the reasonable possibility that the accused’s purpose in engaging in a lengthy conversation with JPO-02 about bullying was because of a genuine concern for JPO-02.

   [89]   P1, page 44.

9. The accused said in his interview that he was a little worried about JPO-02 ‘because hearing the bully, people take the wrong action’[90] and that during the time he was a teacher in India he had one case where a child was bullied and became totally depressed.[91] He said he was worried and that people who are bullied can ‘take the wrong action…such as committing suicide’. His stated concern is borne out by the numerous messages in P1 in which the accused discussed the bullying with JPO-02 and gave him advice about what to do. The accused drives this conversation, not JPO-02.

   [90]   MFI P3A, page 20, lines 3-4. The transcript of the accused’s response in line 3 is inaccurate. He said ‘So that’s why I was a little worried about that person because hearing the bully, people take the wrong action’ and not ‘So that’s why I was a little worried about that person because you’re in the bully people take the wrong action’.

   [91]   MFI P3A, page 20, lines 10 – 14. The transcript of the accused’s response at line 10 is inaccurate. The accused said ‘Yes, because of during my teaching job I had one case’ and not ‘Yes, because of I doing managing job I had one case’.

10. There may be more than one purpose for the making of a communication. The fact that I have found that the accused made the communications listed in the table in paragraph 110 for a prurient purpose does not prevent me from finding that the accused had another or dual purpose in making those communications.  Having considered all of the communications comprising count 1 as a whole, and paying particular regard to the question ‘what is your real age’, I find that the accused had a dual purpose in making the communications in which he requests pictures and asks to meet JPO-02. That dual purpose was for the purpose of assessing the accuracy of the information that JPO-02 was giving him.

11. In respect of the communications that I have found were made for a prurient purpose prior to the question ‘and whats your real age’ I am satisfied that they were made with the intention of making JPO-02 amenable to sexual activity. That sexual activity was comprised of sexualised conversation and physical sexual activity, in the event that the accused and JPO-02 met in person.

12. However, for the reasons that follow, I am not satisfied beyond reasonable doubt that the accused believed that JPO-02 was a child under the age of 17 years at the time he made these communications. Accordingly, I am not satisfied that, when he made those communications, he intended to make a child under the age of 17 amenable to sexual activity. The prosecution has not proved the third element of this offence.

13. The question ‘and what’s your real age’ is a question the accused asked after a significant number of messages had been exchanged with JPO-02. The obvious and compelling inference arising from the question is that the accused did not believe JPO-02’s assertion that he was 14. I infer from this question and find that the accused did not believe that JPO-02 was who he was holding himself out to be. This is supported by what the accused told police in his record of interview:

    Because the way that person talk with me for, at the first place, talking with me that as a legal age, that he was in a legal age.[92]

    [92]   MFI P3A, page 19, lines 28-31.

14. Having regard to the content of all of the messages sent by JPO-02 prior to the accused asking him for his real age, I consider it plausible, and a reasonable possibility, that the accused did not believe JPO-02 when he said he was 14. One of the earliest messages from JPO-02 is ‘asl’. This message bears the hallmarks of a message sent by a seasoned user; it is a message which is blunt and has a particular meaning and connotation. The use of this acronym by JPO-02 does not sit comfortably with the subsequent messages from JPO-02 portraying himself as a naïve 14-year-old, and completely unaware of what is meant by ‘top or bottom’ or having ‘never actually done anything before’.

15. In addressing the accused’s state of mind, Mr Dawes made this submission:

    Such an experienced user of these applications, in my submission, would have realised swiftly that the person on the other side was not in fact an adult pretending to be a child.[93]

    [93]   T 142, 12-15.

16. The fact of the matter, however, is that the person ‘on the other side’ was in fact an adult pretending to be a child.  I consider that an experienced user such as the accused is the sort of person who might well have suspected that JPO-02 was not who he claimed to be. Further, in an online setting where JPO-02 was completely unknown to the accused, it is not unreasonable to expect that he would not simply accept as accurate some or all of the information being given to him by JPO-02. A person communicating with another person in this particular online setting will have a cloak of anonymity which permits and enables the creation of a fictitious persona or identity; in Detective O’Callaghan’s words ‘it can be anyone on the other end’.

17. I do not accept Mr Mead’s submission that it is reasonably possible that the accused misread, or somehow missed, the two messages in which JPO-02 referred to being 14 years old. In addition, much of the conversation focused on JPO-02 living at home with his mother and going to school, and the accused asked him what he planned to study after he finished year 12. The question ‘and what’s your real age’ is the very question a person would ask if he did not believe what he was being told. I find that that the accused accurately read JPO-02’s messages in which he said he was 14, but did not believe him.

18. I cannot exclude the reasonable possibility that when the accused was making the communications I have found to be for a prurient purpose, the accused was unsure of JPO-02’s real identity and age but was proceeding on the basis that he was communicating with someone who was an adult, whether that be an adult teenager or someone older.

19. When the accused asked, ‘and what’s your real age’ and was met with the response, ‘14 Is that still ok?’, the messages that follow give rise to an inference that he then became concerned that he had been discussing meeting for sexual activity with someone who may have been underage. It was for this reason that the accused immediately responded ‘Its not legal age to have sex tho’. I infer and find that this message and the use of the 5 emojis bearing medical masks was for the purpose of emphasising to JPO-02 that sexual activity was now off the table.

20. The accused then told JPO-02 that he had misread his earlier message, ‘forgot’ about his age, made a mistake, and was also doing work on his laptop and could not concentrate on everything.[94] I agree with Mr Dawes that these were nonsensical and contradictory excuses and the accused was not being truthful, but I am not satisfied that the accused fabricated this account because he believed all along that he had been engaging in sexualised conversation and suggesting sexual activity with a child and was trying to explain away his conduct. Rather, I find that the accused had become concerned about the possibility that JPO-02 was in fact a child with whom he had been unwittingly communicating in a sexual manner.

    [94]   P1, pages 45-49.

21. In making these findings, I have taken into account the contents of the record of interview. After watching the interview carefully, a number of times, I have formed the view that the accused was answering the questions without guile or obfuscation. He freely gave the pin number for his phone to police and did not appear to be concerned about the police searching his room or his electronic devices. I have also taken into account the good character evidence in my assessment of the record of interview.

22. The answers the accused gave demonstrate that his English is not perfect and that, at times, he used words that were not necessarily appropriate for the meaning he intended to convey. Examples include, ‘I was just looking for fair conversation’, ‘as from my knowledge’, ‘talking with me that as a legal age, that he was in a legal age’, ‘I’m not sure what I actually talk with that person’, ‘it’s not my, under, like, criteria.’

23. At the time the accused was asked if he had any questions for the police, he had already been told that the police had information that he had tried to entice a child to come to his home for sexual activity. Accordingly, it is highly likely that the accused would have then (erroneously) believed that JPO-02 was in fact a child.

24. I find the following exchanges to be examples of the accused reflecting upon his conduct on the assumption that, as police told him, JPO-02 was a child:

    QWhat I’m worried about is if there’s any photographs of children.

    ANo

    QOf if you’ve sent photographs to children

    AOh, on this stage, I’m not sure.

    QYeah

    ABut I hope I, I didn’t.[95]

    Q…Are you talking to any other children on the phone.

    AI really don’t know because this is the only one which I, this is the only one.

    QWhat do you mean the only one. How do you know it’s the only one.

    ABecause he mentioned his age.

    QOh, okay.

    AAnd that’s why I know it’s 14 years.[96]

    [95]   MFI P3A, page 19, lines 21-26.

    [96]   MFI P3A, page 18, lines 1-6.

25. Later the accused told police that he was not sure if he had sent photographs to children because the way that JPO-02 talked to him in the first place led him to believe that he was ‘a legal age’ but later JPO-02 told him he was 14.

26. At the conclusion of the interview, the accused said:

    AI, I thought it’s just a prank.

    QOkay.

    AAnd because I never spoke with any, as, as from my knowledge.

    QYep.

    AI never spoke with any kid.

    QOkay.

    AWho is on Kik…[97]

    [97]   MFI P3A, page 23, lines 6-12.

27. I find that the accused continued the communications with JPO-02 after he asked the question, ‘what’s your real age’ for two reasons: firstly, although not convinced that JPO-02 was who he said he was (but sufficiently worried about the prospect that JPO-02 was a child to alter the manner in which he communicated with him), he nevertheless had a genuine concern for JPO-02 because of the allegations of bullying and his own experience as a teacher in India, and secondly, that he was trying to determine who JPO-02 in fact was.

28. In his record of interview the accused said this about meeting JPO-02:

    ASo I was, even if I meet him, I would go for a coffee or something, I never thought about those things, so –

    QOkay

    ABecause it’s not my, under, like, criteria, I don’t do, do any physical activities with the kids.

    QOkay

    AI was a teacher

    QYeah

    AAnd I know my duty

29. I am not prepared to find that the messages sent by the accused after he asked the question ‘and what’s your real age’, in which he told JPO-02 they could still meet and asking if JPO-02 still wanted to meet, were sent for a prurient purpose. In light of my finding that the accused had told JPO-02 that they could not engage in sexual activity because he was 14, I find that the accused’s message, ‘still wana meet me’ was intended ascertain whether JPO-02 he still wanted to meet him despite the fact that there would be no sexual activity if it transpired that he was in fact 14. 

30. It follows that I am not satisfied beyond reasonable doubt of the third element of count 1 and the accused must be found not guilty.

31. The further consequence of this conclusion is that the evidence led in respect of Count 1 is not cross-admissible under s 34P (2) (a) or (b). Accordingly, it is not necessary for me to decide the interesting question of whether previous communications constituting an offence against s 63B (3) (b) stand on the same footing as evidence of previous sexual offending and are therefore admissible as evidence of a sexual attraction to JPO-02 for the purposes of s 34P (2) (b).

    Analysis – count 2

32. I am satisfied beyond reasonable doubt that the accused made a communication (comprised of a series of connected electronic communications) between 1 April and 7 May 2019.

33. For the reasons that follow, I am not satisfied beyond reasonable doubt that any of the series of connected electronic communications were made for a prurient purpose.

34. In evaluating these communications and drawing inferences regarding the accused’s purpose in making them, I have had regard to my findings about the accused’s state of mind in respect of the communications the subject of count 1. The communications the subject of count 2 follow on from the communications in count 1 and I have evaluated them in the context of the findings I have made in respect of the communications on 31 March 2019.

35. The communications from pages 51-63 of P1 are conversational and innocuous. They are self-evidently not sexualised conversation.

36. The communications from pages 64 – 71 relate to the accused asking JPO-02 whether they are still meeting and JPO-02 offering various excuses for either not replying or not being able to meet the accused.

37. When the accused wrote, ‘U are not gonna meet’ and JPO-02 replied, ‘Well…I want to… ☹️’, and ‘I thort u didnt want to meet me anymore tho…’ the accused told JPO-02 to ‘come now’. [98] The accused did not, explicitly or implicitly, suggest that any sexual activity would occur at any such meeting. Further, when JPO-02 told the accused that he could not get to his house, the accused replied, ‘whats your address’. JPO-02 responds, ‘U cant come here….mum would go mental   ’[99] If the purpose of the meeting was to engage in sexual activity with a person the accused believed to be under the age of 17 years, it would be unlikely that the accused would suggest meeting at the house at which JPO-02 lived with his mother.

    [98]   P1, page 71.

    [99]   P1, pages 71-72.

38. In my view, what the accused then wrote is telling:

    Okay

    Okay

    Send me half pic of u

    Otherwise i will think you don’t wana meet

    Dont give me excuse

    

    Up to u

    M ready to meet u[100]

    [100] P1, page 72.

39. It is clear from this message that the request for a ‘half pic’ was being used by the accused as a test to determine whether JPO-02 would in fact meet him. The accused did not request a nude picture or a picture of any erogenous zone. When JPO-02 pushed back at the idea of sending a picture and said it scared him, ‘Coz u might not want to meet me then’ the accused responded:

    I dont care u are fat

    Just wana see you

    That’s it

    Or slim

    …

    Or athletes

    Just wana see u

    Leave it

    I think you are not keen to meet

    M.not asking for face.[101]

    [101] P1, pages 73-74.

40. I infer from these further messages that the accused simply wanted to see a picture of JPO-02 and was not linking the picture to anything other than a determination of whether JPO-02 was actually going to meet him. When the accused then said, ‘just send me body pi pic’[102], I am not prepared to infer that the use of the word body was sexual as it derives its context from the message immediately beforehand, ‘M. not asking for face’.

    [102] P1, page 74.

41. The accused’s frustration is evident in the last series of messages in this particular conversation:

    Send me something

    ?

    Anything?

    No?

    Let me. know when u are meeting me[103]

    [103] P1, page 75.

42. The next series of messages includes one in which the accused wrote, ‘Good evening babe’.[104] ‘Babe’ is an affectionate form of address which is typically used for someone with whom a person has a sexual or romantic relationship. The only other occasion upon which the accused used this term was in a message in the series of messages the subject of count 1. The accused wrote, ‘Say bab’ and when JPO-02 responded, ‘Bab?’, the accused replied, ‘Sorry Dude’.[105] The immediate correction of ‘bab’ (which I infer was ‘babe’ without the ‘e’ as the likely result of a typographical error) to ‘Dude’ suggests that the use of the term ‘babe’ was in error. In those circumstances, and having regard to the absence of any other use of that term, I cannot exclude the reasonable possibility that the use of the word ‘babe’ was a typographical error.

    [104] P1, page 76.

    [105] P1, page 32.

1. The next series of messages[106] do not have any sexual content or overtone. When JPO-02 introduced the topic of his mother ‘murdering’ him if she knew what they were discussing, the accused’s response, ‘Lol She will not You are over thinking it That’s it’ is equivocal and I am not prepared to infer that the accused’s response was any form of acknowledgment of wrongdoing.

   [106] P1, pages 76 – 78.

2. When the accused again asked, ‘we gonna meet?’ JPO-02 replied, ‘I want to…wot are we gonna do’ but the accused did not respond to this question. When arrangements are firmed up for JPO-02 to come Wednesday morning before sports day, the accused told him, ‘don’t come in school uniform tho’. JPO-02 repeated his question, ‘Wot are we goona do ’. The accused replied:

   Not sure

   I dont know how you looks so[107]

   [107] P1, page 82.

3. The accused had previously told JPO-02 he did not care what he looked like when he repeatedly asked for a picture of JPO-02. If, as the prosecution contends, the accused believed JPO-02 was under the age of 17 and he intended to make him amenable to sexual activity, this is a curious response. I find that the accused was responding carefully to JPO-02 and putting him on notice that until he saw him in person and ascertained his true identity and age, he would not be drawn on what would happen.

4. The accused later repeated the request, ‘you can come But don’t wear school uniform’ and explained that if he did, ‘it will casuse me trouble’, ‘U are still under age Hope u know that People will notice if u come in school uniform.’[108] Mr Dawes has urged me to infer that the accused made this request because he intended to engage in sexual activity with JPO-02 without detection. I am not prepared to draw that inference. In context, this request is equally consistent with the accused ensuring that if JPO-02 actually turned up to meet him, and was in fact a child, the accused would avoid questions being asked of him as to why he was meeting with a school child. The accused made a similar request in the messages the subject of count 1, at a time when I have found that he did not believe that JPO-02 was a child under the age of 17.

   [108] P1, pages 83-84.

5. When JPO-02 asked ‘Do I need to bring anything? I never met a guy online before…’, the accused replied:

   Nope Nothing

   Y what you wana bring for me

   藍 藍 藍 藍 藍[109]

   [109] P1, page 86.

6. In context, I am not prepared to infer that these messages were understood by the accused to be referring to bringing items connected with, or for the purposes of sexual activity.

7. When the accused told JPO-02, ‘Wana hear your voice’ he explained:

   I wanted to hear u

   U always try to avoid when i have request[110]

   [110] P1, page 88.

8. I find that the request to hear JPO-02’s voice was not for a prurient purpose but, rather, because the accused was still not convinced that JPO-02 was who he was holding himself out to be, or that he would in fact meet with him.

9. The next series of messages[111]are innocuous and relate to JPO-02 being back at school and the accused back at university and the fact that the accused is an international student sharing a house with two others. JPO-02 asked the accused the following questions about his housemates:

   Will they be there tomorrow?

   Are they boys or girls?

   [accused replied ‘Boy’]

   Are they…like…do they like boys or girls.[112]

   [111] P 1, pages 88-95.

   [112] P1, page 94.

10. In my view, the question ‘do they like boys or girls’ was intended by Detective O’Callaghan, posing as JPO-02, to provide the accused with the opportunity to discuss the sexuality of his housemates and possibly lead into a discussion about sexual activity. However, the conversation did not take this course because of the way in which the accused responded:

    Accused: What do you mean

    JPO-02: Dw…

    Accused: Dw??

    JPO-02: Dont worry

    Accused: Ok[113]

    [113] P1, page 95.

11. I consider that there are two inferences that can be drawn from this exchange; either the accused genuinely did not know what JPO-02 meant by this question or he was being careful not to be drawn into a discussion about sexual activity because of his uncertainty about the identity of JPO-02 and whether he was in fact a child.

12. The next series of messages commence when the accused told JPO-02, ‘I was waiting for u And u didn’t came ’. JPO-02 then told the accused his phone was confiscated and apologised profusely, begged the accused not to hate him and to give him one more chance and promised him he would come to meet him. The accused’s responses are less than enthusiastic; he told JPO-02 he would let him know, then told him that he was moving out, ‘So i don’t know whether we will meet or not’. The accused told JPO-02 if he did not come over the next day ‘then i.can’t meet’. [114]

    [114] P1, pages 95-100.

13. Ultimately, JPO-02 told the accused, ‘I will defs be there tomorrow’ and later told him he was at school ‘jus thinkin bout tomorrow ’[115]. The accused responded:

    If it actually happen.[116]

    [115] P1, pages 100-101.

    [116] P1, page 101.

14. In my view, the response of the accused is consistent with his explanation in the record of interview that he thought this was a ‘prank’. It is clear from the content and context of the messages the subject of count 2, that the accused was consistently sceptical of JPO-02 and whether JPO-02 would meet him as arranged or promised.

15. I find that the accused did not, at any stage, believe JPO-02 was 14 years of age and suspected that he was an adult, but was uncertain as to his true age and identity. I find that the accused continued his attempts to arrange a meeting with JPO-02 in order to determine who he in fact was. I find that the accused was circumspect and cautious in the messages he sent to JPO-02 for two reasons; firstly, because he was not sure if it was a ‘prank’, secondly, if JPO-02 was in fact a 14-year-old boy, he did not want to engage in any inappropriate behaviour or conversation with him, particularly given the allegations of bullying that JPO-02 had made.

16. I find that none of the messages sent by the accused between 1 April 2019 and 7 May 2019 involve sexualised conversation or refer to sexual activity. The second and third elements of the charge have not been proved.

    Verdicts

17. I find the accused not guilty of counts 1 and 2.