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

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…

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 Patel

Details

AGLC: R v Patel [2021] SADC 18
Case: [2021] SADC 18
Decision Date: 26 February 2021

CaseChat Overview and Summary

In the matter of R v Patel, the respondent was charged with two counts of making a communication for a prurient purpose with the intention of making a child amenable to sexual activity. The alleged offences occurred on a social media application in a group called ‘Gay teens Adelaide’, where the respondent communicated with an undercover police officer who was posing as a 14 year old boy. The respondent was alleged to have sent messages that involved sexualised conversation and requests to meet with the 14 year old boy for sexual activity. The first count involved a series of communications on one day, while the second count involved a series of communications over a five-week period. The respondent asked the undercover police officer what his real age was during the course of the messaging in Count 1, which resulted in a difference in the content and nature of the communications. The respondent claimed that he thought it was a prank and that, to his knowledge, he had not been communicating with a child and had no sexual interest in children. The respondent did not give evidence but called evidence of good character.

The legal issues that the court had to decide were whether the respondent was guilty of the two counts of making a communication for a prurient purpose with the intention of making a child amenable to sexual activity. The court had to consider the evidence presented, including the messages exchanged between the respondent and the undercover police officer, and the respondent’s evidence of good character. The court also had to consider the question of whether the respondent had the intention of making a child amenable to sexual activity, which was a key element of the offence.

The court found that the respondent was guilty of the two counts of making a communication for a prurient purpose with the intention of making a child amenable to sexual activity. The court found that the respondent had sent messages that involved sexualised conversation and requests to meet with the 14 year old boy for sexual activity. The court found that the respondent had the intention of making a child amenable to sexual activity, which was a key element of the offence. The court rejected the respondent’s claim that he thought it was a prank and that he had no sexual interest in children. The court found that the respondent’s evidence of good character did not outweigh the evidence of the messages exchanged between the respondent and the undercover police officer.

The court sentenced the respondent to a term of imprisonment, with a non-parole period of six months. The court also ordered that the respondent be placed on the sex offender register for a period of ten years. The court noted that the offences were serious and that the respondent’s conduct had caused significant harm to the undercover police officer, who was posing as a 14 year old boy. The court also noted that the respondent had no previous convictions and had called evidence of good character.

Orders