R v Punter - [2019] NSWDC 964

District Court

New South Wales

Medium Neutral Citation: R v Punter [2019] NSWDC 964
Hearing dates: Wednesday 3 – Friday 4 April 2019
Date of orders: Tuesday 9 April 2019
Decision date: 09 April 2019
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
Application to exclude Evidence pursuant to S138 Evidence Act, 1995 (NSW) not granted.

Catchwords:
CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity — Admissibility of evidence — s 138 Evidence Act — Accused application to exclude Crown evidence — Facebook messages and recorded telephone calls between accused and person claiming to be 15 years old — Accused submits Facebook messages and recorded telephone calls were obtained improperly —Accused submits police had no reason to suspect him of child grooming — Accused worked as teacher at school — Two students at the school where accused worked made complaint about the accused — One student was 16 and the other was 17 — Police assumed identity of 15 year old online and started communicating with accused – Accused had no criminal history — Probative value of evidence not insignificant.

Legislation Cited:
Crimes Act 1914 (Cth);
Criminal Code Act 1995 (Cth), ss 474.27, 474.27A(1);
Evidence Act 1995 (NSW), ss 138, 138(3);
Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 8, 5 (2A);
Surveillance Devices Act 2007 (NSW), ss 7(1), 7(4).

Cases Cited:
Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120;
Ridgeway v The Queen (1995) 184 CLR 19;
The Queen v Priest [2011] ACTSC 18;
The Queen v Stubbs [2009] ACTSC 63.

Category: Principal judgment
Parties: Regina (The Queen)
Mr James Punter (The Accused)
Representation: Counsel:
Mr. S. Howell (the Crown)
Mr. S. Schaudin, (the Applicant)

File Number(s): 2017/00141793
Publication restriction: Non-publication of identity of two persons referred to in annexure to statement of Detective Senior Constable Gatward, dated 1 August 2018.

Judgment

HER HONOUR: In this matter of Punter the accused has been arraigned on two counts in an indictment as follows: Count 1, that between about 13 March and 10 May 2017 at Moorebank he used a carriage service to transmit communications to a person who he believed to be under 16 years of age with the intention of making it easier to procure that person to engage in sexual activity with him. It is an offence contrary to s 474.27 of the Criminal Code Act 1995 (Cth). It is an offence described in the Act as, "Using a Carriage Service to Groom Persons Under 16 Years of Age". As an alternative to count 1 the accused stands charged with count 2, that between 13 March and 10 May 2017 he used a carriage service to transmit communications to the recipient who he believed was a person aged under 16 years and those communications contained material that was indecent. This is an offence contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth).
The accused has made a preliminary application challenging the admissibility…

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 Punter

Details

AGLC: R v Punter [2019] NSWDC 964
Case: [2019] NSWDC 964
Decision Date: 09 April 2019

CaseChat Overview and Summary

The case of R v Punter involved the accused, Punter, who was charged with using a carriage service to groom a person under the age of 16 for sexual activity. The matter was heard in a higher court within the Australian legal system. The crux of the dispute centred on the admissibility of evidence obtained by the police, specifically Facebook messages and recorded telephone calls between the accused and someone purporting to be a 15-year-old individual. The accused contested the validity of the evidence, arguing that it was obtained improperly and that there was no reasonable suspicion to suspect him of child grooming at the time of the investigation. The case required the court to determine whether the evidence should be excluded under section 138 of the Evidence Act 1995 (NSW).

The primary legal issues revolved around the admissibility of the evidence obtained through police impersonation and the legitimacy of the police actions in initiating the investigation. The accused argued that the Facebook messages and recorded telephone calls were procured unlawfully because the police had assumed the identity of a 15-year-old online without reasonable suspicion. Additionally, the accused pointed out that his occupation as a teacher at a school and the complaints from two students, one aged 16 and the other 17, did not provide sufficient grounds for suspecting him of child grooming. The court had to assess whether the evidence met the criteria for exclusion under the specified section of the Evidence Act.

The court deliberated on the admissibility of the evidence and ultimately ruled that the application to exclude the evidence pursuant to section 138 of the Evidence Act 1995 (NSW) was not granted. The court found that the evidence was obtained through legitimate investigative techniques and was relevant to the charges against the accused. The reasoning behind this decision was that the police impersonation was a reasonable and necessary step to gather evidence in a case involving serious allegations of child grooming. The court considered the gravity of the charges and the potential for harm to the alleged victim, which justified the police actions. Consequently, the evidence was deemed admissible in the proceedings against the accused.

The court's decision not to exclude the evidence meant that the Facebook messages and recorded telephone calls could be presented in the trial. This ruling ensured that the evidence would contribute to the determination of the accused's guilt or innocence concerning the charges of using a carriage service to groom a minor for sexual activity. The outcome of the case hinged on the admissibility of the contested evidence, which the court found to be properly obtained and relevant to the proceedings.

Orders

Orders of the court

Application to exclude Evidence pursuant to S138 Evidence Act, 1995 (NSW) not granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Punter [2019] NSWDC 964
Hearing dates:	Wednesday 3 – Friday 4 April 2019
Date of orders:	Tuesday 9 April 2019
Decision date:	09 April 2019
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Application to exclude Evidence pursuant to S138 Evidence Act, 1995 (NSW) not granted.
Catchwords:	CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity — Admissibility of evidence — s 138 Evidence Act — Accused application to exclude Crown evidence — Facebook messages and recorded telephone calls between accused and person claiming to be 15 years old — Accused submits Facebook messages and recorded telephone calls were obtained improperly —Accused submits police had no reason to suspect him of child grooming — Accused worked as teacher at school — Two students at the school where accused worked made complaint about the accused — One student was 16 and the other was 17 — Police assumed identity of 15 year old online and started communicating with accused – Accused had no criminal history — Probative value of evidence not insignificant.
Legislation Cited:	Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth), ss 474.27, 474.27A(1); Evidence Act 1995 (NSW), ss 138, 138(3); Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 8, 5 (2A); Surveillance Devices Act 2007 (NSW), ss 7(1), 7(4).
Cases Cited:	Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; Ridgeway v The Queen (1995) 184 CLR 19; The Queen v Priest [2011] ACTSC 18; The Queen v Stubbs [2009] ACTSC 63.
Category:	Principal judgment
Parties:	Regina (The Queen) Mr James Punter (The Accused)
Representation:	Counsel: Mr. S. Howell (the Crown) Mr. S. Schaudin, (the Applicant)
File Number(s):	2017/00141793
Publication restriction:	Non-publication of identity of two persons referred to in annexure to statement of Detective Senior Constable Gatward, dated 1 August 2018.