R v Richards (No. 2) - [2016] SADC 2

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS (NO. 2)
Criminal Trial by Judge Alone
[2016] SADC 2
Reasons for the Verdict of His Honour Judge Millsteed
20 January 2016
CRIMINAL LAW
Trial by judge alone - accused charged with three counts of aggravated making a communication for a prurient purpose with the intention of making a child (a person under 17 years of age) amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (CLCA) - each offence alleged to be aggravated by reason of the accused knowing that the alleged victim was under 14 years of age (s 5AA(1)(e) CLCA) - charges based on internet chat room text messages sent by accused to a police officer pretending to be a 13 year old girl - accused requested complainant to appear on webcam wearing only her panties (count 1) and to expose her vagina (count 2) - while masturbating accused talked to the complainant about his penis slipping into her vagina - following the completion of prosecution case held that accused had no case to answer on each of the aggravated offences because the complainant was not in fact a child but had a case to answer in relation to each of the basic offences - rejection of defence submission that trial judge was obliged to immediately enter verdicts of acquittal with respect to aggravated offences and that such verdicts automatically negatived basic offences - trial proceeded on basis that the only offences in issue were the basic offences - accused gave evidence - no dispute that each communication was for a prurient purpose - accused contended that he did not intend to make a child amenable to sexual activity because he believed that the complainant was an adult female - held that accused made communications with requisite intent - defence contended that the intended activities alleged in counts 1 and 2 did not amount to sexual activities for purposes of s 63B(3)(b) - argument rejected - accused acquitted of charged offences alleged in counts 1 and 2 but in respect of each count found guilty of basic offence - in relation to count 3 prosecution contended that the accused intended to make the complainant amenable to sexual activity involving sexual intercourse - held that prosecution had failed to prove allegation - whether accused could be convicted of count 3 on basis of merely engaging in sexualised talk with complainant - accused found not guilty of both aggravated and basic offences alleged in count 3.
Criminal Law Consolidation Act, 1935 s 63B(3)(b), referred to.
Petty v Maiden (1991) 173 CLR 95; R v Trimboli (1979) 21 SASR 577; R v Soteriou (2013) 118 SASR 119; F, BV v Magistrates Court of South Australia and Another (2013) 115 SASR 232; Edwards v R (1993) 178 CLR 193; Eades v DPP (NSW) (2010) A Crim R 136; R v Clarke (2008) 100 SASR 363; R v C, M [2014] SASCFC 116; R v Finnigan (No. 3) [2015] SADC 166; R v Barlow [2014] SADC 197; R v Richards [2015] SADC 44; R v Barendregt [2008] SADC 35; R v Coutts [2006] UKHL 39, 4 All ER 353; Benbolt v The Queen (1993) 60 SASR 7, considered.

R v RICHARDS (NO. 2)
[2016] SADC 2
INTRODUCTION

The accused, Stephen Christopher Richards, was tried before me sitting without a jury on three counts of ‘Aggravated Making A Child Amenable to Sexual Activity’, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act, 1935 (CLCA).[1] The offences were alleged to have been committed on 22 May 2013 (count 1) and 19 June 2013 (counts 2 and 3).
[1] The accused elected to be tried by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The particulars of each count alleged that the accused ‘made a communication for a prurient purpose with the intention of making a child under the prescribed age [17 years] amenable to a sexual activity’, which constitutes a ‘basic offence’ under s 63B(3)(b). The particulars further alleged that the offence was aggravated by the accused having ‘committed the offence knowing that the victim of the offence was under the age of 14 years at the time of the offence’.
For the reasons set out herein, I have reached the conclusion that the prosecution has failed to establish the element of aggravation alleged in each count and that the accused must therefore be acquitted of each of the charged aggravated offences. However, I am satisfied beyond reasonable doubt that the accused committed the basic offences alleged in counts 1 and 2 and that convictions should be entered in respect of those offences. For reasons that are best discussed later, the accused must be acquitted of the basic offence alleged in count 3.
OVERVIEW
Prosecution Case
At the time of the alleged offences, the accused was 52 years of age and lived with his wife and four children at Burnside. On five occasions between 5 May 2013 and 19 June 2013, inclusive, the accused used a computer in his home to communicate with a person identified as ‘emma1999perth’ (‘Emma’) through an exchange of text messages via Internet chat room applications called ‘ICQ chatrooms’ (‘ICQ’) and ‘Skype Messenger’ (‘Skype’).[2]
[2] ICQ and Skype are client server applications that utilize the Internet as a gateway in order to allow two or more computers to connect directly enabling the users of the computers to ‘chat’ in real time by exchanging text messages seen only by the sender and the recipient. Skype has the capability of adding identified users to a contact list, which enables a user to ascertain when contacts are on-line and their status: see Statement of Mark David Grima dated 25 June 2013 (Exhibit P1) at p2.
Unbeknown to the accused, Emma was a fictional character created by Senior Constable David Grima of the Sex Crime Division of the West Australian Police with the objective of catching persons using internet chatrooms to groom children for sexual purposes. The police officer portrayed ‘Emma’ as Emma Sharpe, a 13 year old school girl from Wembley, Western Australia born on 2 December 1999. For ease of expression, I will refer to Grima as Emma.
The three counts were based on discussions the accused had with Emma on the last two occasions they communicated. Each charged communication was alleged to have been made for a prurient purpose and with intention of making Emma amenable to sexual activity. The prosecution alleged that:
·on 22 May 2013 the accused asked Emma to appear on webcam dressed only in her panties (count 1);
·on 19 June 2013, he discussed with Emma the possibility of her pulling her panties to one side so that he could see her vagina (count 2);
·on 19 June 2013, he talked to Emma about his penis slipping into her vagina (count 3).
Defence Case
The accused admitted that he engaged in the online communications with Emma. In relation to the communications which are the subject of the charges, he conceded that they were made for a prurient purpose but denied that they were made with the intention of making a ‘child’ amenable to sexual activity. He said he believed Emma was an adult female posing as a child for sexual fantasy purposes.
The defence further argued that conduct which would have involved Emma posing in her panties (count 1), and displaying her genitalia (count 2), did not constitute ‘sexual activity’ under s 63B(3)(b). In relation to count 3, the defence conceded that Emma having sexual intercourse with the accused would constitute sexual activity for the purposes of s 63B(3)(b) but submitted that the prosecution had failed to establish that the accused intended to make Emma amenable to such conduct.
APPLICABLE LAW
Before discussing the evidence in more detail it is appropriate to set out the relevant law.
Fundamental Principles
In reaching my decisions I kept in mind the following fundamental principles:
·The Defendant is presumed innocent of each of the charged offences and of uncharged acts alleged against him.
·The Prosecution bears the onus of proving beyond reasonable doubt the Defendant’s guilt in respect of each of the charged offences. This onus of proof also applies to the uncharged acts. The Defendant carries no onus.
Good character
The accused gave evidence that he has no prior convictions. In the light of this evidence I treated the accused as a person of good character. In accordance with the principles expressed in R v Trimboli[3] I have had regard to the accused’s good character in assessing his credibility as a witness and in determining whether guilt has been proved.[4]
Legislation
[3] (1979) 21 SASR.
[4] See also Melbourne v R (1999) 164 ALR 465.
Section s 63B(3)(b) is contained in Part 3, Division 11A (‘Child Pornography and Related Offences [ss 62-63C]’), which relevantly provides:
62—Interpretation
In this Division—
…
private act means—
(a)     a sexual act; or
(b)     an act involving an intimate bodily function such as using a toilet; or
(c)     an act or activity involving undressing to a point where the body is clothed only in undergarments; or
(d)     an activity involving nudity or exposure or partial exposure of sexual organs, pubic area, buttocks or female breasts
prurient purpose-a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else.
…
63- Production or dissemination of child exploitation material
…
63A- Possession of child exploitation material
…
63B—Procuring child to commit indecent act etc
(1)A person who-
(a)incites or procures the commission of an indecent act by a child under the prescribed age in relation to that person; or
(a)acting for a prurient purpose-
(i)causes or induces a child under the prescribed age in relation to that person to expose any part of his or her body; or
(ii)makes a photographic, electronic or other record from which the image, or images, of a child under the age of 17 years engaged in a private act may be reproduced,
is guilty of an offence.
Maximum penalty:
(a)for a basic offence – imprisonment for 10 years;
(b)for an aggravated offence – imprisonment for 12 years.
(2)Subsection (1) applies whether the acts alleged to constitute the offence-
(b)occur in private or in public; or
(c)occur with or without the consent of the child, or the child’s parent or guardian.
(3)A person who –
(a)procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or
(b)makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,
is guilty of an offence.
Maximum penalty:
(a) for a basic offence-imprisonment for 10 years;
(b) for an aggravated offence-imprisonment for 12 years.
…
(7) For the purposes of this section, the prescribed age of a child in relation to a person is –
(a) if the person is in a position of authority in relation to the child – 18 years ; or
(b) in any other case – 17 years.
The terms ‘basic offence’ and ‘aggravated offence’ are defined in the CLCA as follows:
5-Interpretation
(1)In this Act-
aggravated offence - where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);
basic offence - where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA);
...
Section 5AA identifies various circumstances of aggravation that will convert a basic offence into an aggravated offence. Those circumstances include, in the case of an offence under Pt 3 Div 11A, where the offender committed the offence knowing that the victim was at the time of the offence under the age of 14 years (s 5AA(1)(e)). Pursuant to s 5AA a person is taken to know that the victim was under the age of 14 years ‘if the person, knowing of the possibility that [that fact] is true, is reckless as to whether it is true or not’.
Elements of offence
For the accused to be found guilty of a basic offence under s 63B(3)(b), the prosecution was required to prove beyond reasonable doubt the following elements:
·The accused made a communication.
·The communication was made for a prurient purpose, as defined in s 62.
·The communication was made with the intention of making a child under the prescribed age (17 years) ‘amenable to sexual activity’.
It should be observed that the expression ‘sexual activity’ is not defined in Div 11A and its meaning, in that context, has not been judicially determined before. The meaning that I would attribute to this expression is discussed later.
For the accused to be found guilty of an aggravated offence under s 63B(3)(b) (as charged in each count) the prosecution was required to further prove that the accused committed the basic offence knowing, or being reckless as to the fact, that the ‘victim’ of the offence was, at the time of the offence, under the age of 14 years (s 5AA(1)).
Section 34P
No charges were brought against the accused in relation to the first three communications. However, they contained discussions arguably amounting to discreditable conduct for the purposes of s 34P of the Evidence Act 1929 (SA) because they were of a prurient nature.
The defence did not file in advance of trial a Discreditable Conduct Notice seeking the exclusion of the evidence or argue at trial that the evidence was inadmissible under s 34P. The evidence was apparently and rightly treated by counsel for the prosecution and the defence as admissible under s 34P. The first three communications were relevant and admissible on the following bases:
·First, as background evidence to explain the circumstances which resulted in the accused communicating with Emma on the fourth and fifth occasions and to put into context the nature of their ongoing discussions. Used in this way the first three communications were relevant for non-propensity reasoning purposes and were admissible under s 34P(2)(a) because the probative value of the evidence significantly outweighed any prejudicial effect that it may have had on the accused.[5]
·Secondly, to assess the credibility of the accused’s claim that by the time of the charged communications he believed Emma was an adult female. In order to determine that issue it was appropriate to have to the totality of the accused’s communications with Emma. Used in this way the first three communications were again relevant for non-propensity reasoning purposes and were admissible under s 34P(2)(a) because their probative value significantly outweighed any prejudicial effect that it may have had on the accused.
·Thirdly, proof that the first three communications were made by the accused for a prurient purpose and with intention of making Emma amenable to sexual activity was relevant in the determination of the charged communications for particular disposition or propensity reasoning purposes. Such a sexually related interest in Emma was relevant to an assessment of whether he committed the charged offences. The evidence was admissible under s 34P(2)(a) for these purposes because it had strong probative value which significantly outweighed any potential prejudice to the accused.
Indeed, in the result I was satisfied beyond reasonable doubt that the first three communications, standing alone, established that the accused had a prurient interest in Emma and was intent on grooming her for sexual purposes. However, I reminded myself that such proof was not a substitute for proof beyond reasonable doubt that the accused committed the offences with which he is charged (‘anti-substitution warning’).[6]
[5] In a trial by judge alone there is little scope for arguing that relevant evidence should be excluded on the grounds of prejudice. As King CJ observed in Abrahamson v The Queen (1994) 63 SASR 139 at 143:
The principle that a judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force. The learned judge in this case was quite able to discard any prejudicial effect of evidence of this kind and to focus on such probative weight as he considered that it properly bore.
[6] See R v Soteriou (2013) 118 SASR 119 Vanstone J at [39]-[40] and authorities discussed therein.
The three counts were also cross-admissible for each of the purposes outlined above. In relation to each count which I found to have been established I gave myself an anti-substitution warning before considering the remaining count or counts.
THE TRIAL
The trial commenced on 27 January 2015. Mr J Powell appeared as counsel for the Director of Public Prosecutions (SA) and Mr D Edwardson QC and Mr S Abbott SC appeared as counsel for the accused. The prosecution did not call any witnesses but with the consent of counsel for the accused, tendered the statements of prosecution witnesses[7] and other exhibits, including printouts of the online communication logs between the accused and Emma,[8] photographs sent to Emma by the accused,[9] a DVD of the accused during one of the communications,[10] a DVD of the accused’s interview with police[11] and a transcript of the record of interview.[12]
[7]    Statement of Mark David Grima dated 25 June 2013 (Exhibit P1); Statement of David Townsend dated 23 December 2014 (Exhibit P2).
[8]    Communication logs for 5 May 2013 (Exhibit P4), 8 May 2013 (Exhibit P5), 15 May 2013 (Exhibit P6) 22 May 2013 (Exhibit P7) and 22 June 2013 (Exhibit P8).
[9]    Exhibit P9.
[10] Exhibit P9A.
[11] Exhibit P10.
[12] Exhibit P11.
After the prosecution closed its case, Mr Edwardson submitted that the accused had no case to answer in relation to each of the charged aggravated offences because Emma was not a child under the age of 14 years (s 5AA(1)). He further submitted that in relation to each count it was not open to the prosecution to pursue a conviction for the cognate basic offence under s 63B(3)(b) because:
·the basic offence had not been specifically pleaded in the information as an alternative charge;
·the CLCA made no express provision for such an alternative verdict; and,
·the common law rule which allows for a person to be convicted of a lesser offence contained within a charged offence (‘common law alternative verdict rule’) could not be invoked because it had been impliedly displaced by the CLCA, at least in relation to offences under s 63B.[13]
[13] The common law rule provides that a person charged with an offence, under the common law or statute, may be convicted of an alternative offence not specifically charged in the information if it is of the same character as the offence charged, and its elements are subsumed in the elements of the charged offence: see Cameron (1983) 8 A Crim R 466 at 467-468; McLaren (1997) 92 A Crim R 301; Winner (1989) 39 A Crim R 180 at 181.
On 23 March 2015 I delivered a written ruling on the no case submission.[14] In accordance with the decision of the Full Court in F, BV Magistrates Court of South Australia,[15] I found that the accused had no case to answer in relation to each of the charged aggravated offence because s 5AA(1)(e) requires the victim to be under age of 14 years. In other words, it is not sufficient that the victim ‘appears’ to be under that age. Because Emma was in fact an adult the element of aggravation could not be established. However, I concluded that the common law ‘alternative verdict rule’ applied to aggravated offences under s 63B(3)(b) and that, with respect to each count, the accused had a case to answer for the cognate basic offence.
[14] [2015] SADC 44.
[15] See F, BV Magistrates Court of South Australia (2013) 115 SASR 232 at [52]-[53] Kourakis CJ, [135], [138] Gray J.

On 2 April 2015 Mr Edwardson submitted that my written ruling failed to address an additional argument which he believed he had put on 27 January 2015. The effect of the additional argument was that upon finding that the accused had no case to answer in relation to each of the aggravated offences I was bound to immediately acquit the accused of those charges. It was further suggested that such acquittals would prevent the prosecution from proceeding against the accused with respect to the cognate basic offences even if the common law alternative verdict rule applied.
While I accept that Mr Edwardson may have intended to put this additional argument, I do not believe that he did. If he had, it was with respect, done in such an obscure manner that it was buried under the argument that I dealt with in my written ruling. Indeed, Mr Edwardson fairly conceded that he had been less than clear. In any event, I gave him an opportunity to develop the additional argument.
On 10 April 2015 I heard submissions from counsel on the additional argument.
On 24 April 2015 I delivered a brief oral ruling which I have elaborated upon in the Appendix to these reasons. I ruled that I was not obliged to immediately deliver verdicts of not guilty in relation to the aggravated offences and, even if I was so required, the verdicts would not operate as acquittals with respect to the alternative basic offences. However, out of an abundance of caution I declined to immediately enter a verdict of acquittal on each of the aggravated offences and directed that the trial proceed on the basis that I would ultimately acquit the accused of those offences. For all practical purposes, the trial proceeded with respect to the basic offences.
Due to listing difficulties, a common occurrence in this Court, the trial could not resume until 5 June 2015. On that day, the accused gave evidence. No other witnesses were called by the defence. The evidence was completed, and counsel delivered their closing addresses, on the same day.
I turn to canvass the evidence in more detail.
PROSECUTION CASE
First communication - 5 May 2013
At 9:06am on 5 May 2013 Senior Constable Grima joined a chat room on an online social network website called ‘ICQ Chat’ using the screen name ‘emma1999perth.’
At 10:04am ‘Emma’ was contacted by the accused using the screen name ‘James_Adel.’ and a text based conversation ensued. Shortly after commencing the conversation, the accused asked ‘Emma’ if she was born in 1999. She replied ‘yep’ and told him that she was born on 2 December.[16] ‘Emma’ enquired about the accused’s age. He replied that he was 35 and probably too old for her.[17]
[16] Exhibit P4 Page 4.
[17] Exhibit P4 Page 4.
The accused subsequently established that ‘Emma’ used the Skype Messenger application (‘Skype’). He asked to be added to her list of Skype contacts and sent her his Skype address ‘[email protected]’. The accused then asked ‘Emma’ what she looked like and she replied ‘umm ok just simple.’ ‘Emma’ added that she had straight long brown hair.[18] ‘Emma’ then confirmed that she would immediately add the accused to her Skype contacts. The accused then discontinued the conversation on ICQ.
[18] Exhibit P4 Page 5.
At 10:12am the accused then sent a message on Skype thanking Emma for adding him to the list. He enquired about her plans for that day. She told him that she was going to an Australian Rules football game. Following a discussion about their favourite football clubs, the accused initiated the conversation set out below:[19]
[19] Exhibit P4 page 6.
James P: You started to describe yourself...like to tell me more?
Emma: Ummm like wat
James P: What you look like!
Emma: Umm brown hair
James P: Mm
Emma: Long n str8
James P: Mmm...slim?, not slim? Eye colour?
Emma: Green
Emma : Umm im about 48 i think
...
James P: Are you in high school or still primary
Emma : High this yr yr 8
James P: Okay. Like it?
Emma: Yeah
Emma: Im learnin guitar n piano
Emma: n skool has gud music progrma
James P: Ah so you ar musical too. Do you have a boyfriend?
Emma: Nahno bf
Emma: My bestie does
James P: Do you like some boys?
Emma: Not reeely
Emma: Some r ok i gues
James P: Yes. Do you have a pic you could send me? Pleeeezzz! (You don’t have to of course!)
Senior Constable Grima then sent the accused a photograph of the face of a 13 year old girl.[20] When the accused received the image he said to ‘Emma’ ‘Got it. Cute.’[21] The conversation ended with the accused stating that he hoped they would soon communicate again.
[20] Exhibit P4A.
[21] Exhibit P4 page 6.
Second communication - 8 May 2013
On 8 May 2013, Senior Constable Grima went online in the Skype application, again posing as ‘Emma.’
At 6:12pm the accused initiated contact with ‘Emma’ on Skype. He initially discussed with her how she had been and whether she had enjoyed the football. He proceeded to ask ‘Emma’ for another photograph and discussed the appearance of her school uniform:[22]
[22] Exhibit P5 pages 3-4 and T 26 lines 2-14.
James P:    Mmm. I don’t suppose you have another pic you could send me?
Emma:       u seen myp ic
James P:    Yes... you sent it to me. Ta. I was just wondering if you had another. It’s okay if not.
Emma:       ive only got lik 2 on my lappy
Emma:       did i send u both
James P:    No... just the close up of your face.
Emma:       oh o
Emma:       k
James P:    What are you doing now? Presumably not homework!!
Emma:       nah just chillin b4 dinner
James P:    Ah ok. Do you wear a uniform to school?
Emma:       yep
James P:    What is it?
Emma:       wat u mean
James P:    Is it shirt and dress etc?
Emma:       yep
James P:    Do you like it?
Emma:       oh its ok
James P:    Most kids don’t like wearing a uniform.
Emma:       oh its ok
James P:    short skirt or not too bad?!
Emma:       oh just normal i gues
James P:    Mm.
Emma:       our colours r like red blu yellow
Emma:       but depends
Emma:       somtimes white shirt
James P:    Okay.. Crows colours!
Emma:       skool dress is green
Emma:       just mixture
Emma:       but its ok
Emma:       i gues
James P:    Does the skirt come down to your knees?
Emma:       pretty much
The accused then diverted the conversation to a discussion about what Emma was having for dinner. He then enquired about the underwear she wore under her school uniform:
James P:    Ah okay. You enjoy it. I had better be going too. Ummm...
James P:    .. red, blue and yellow knickers too? ;)lol
Emma:       cya
James P:    Have a good night.
The conversation concluded at 6.33pm.
At 7:12pm the accused contacted Emma on Skype and established that she had finished dinner and was practising her guitar. He asked her if she was ‘still in uniform’. She told him that she wasn’t because it was 7:30pm. He asked if she was in her ‘pjs’. She said that she wasn’t and he replied ‘too early eh?’. The conversation then ended.
Third communication - 15 May 2013
One week later at 6:25pm on 15 May 2013 the accused had a further conversation with ‘Emma’ on Skype. He enquired how she had been and discussed the weather and her netball activities. He then asked whether she was doing her homework and she replied that she was practising music. He proceeded to establish that she had her own room and that she was alone in the room at the time.
The following exchange then occurred:
James P:    May I ask what you are wearing?
Emma:       trackies
Emma:       dark blue
Emma:       bit cold here
Emma:       but was nice 2day
James P:    Mm. You need to keep warm. Can’t sit around the house in a netball skirt!
Emma:       lol
James P:    What’s planned for the wekend?
Emma:       ummm idk few days away
James P:    what’s idk?
Emma:       guess
James P:    Ummm... I know!...
James P:    I don’t know!
Emma:       very gud
James P:    Thank you. I make a good student!
Emma:       lol
Emma:       hey remind me how old r u
James P:    Too old! (28)
Emma:       2 old 4 skool
Emma:       wow double me
Emma:       even more
Emma:       im 13
James P:    Yep. It’s okay if you don;t want to chat. I’ll understand.
Emma:       oh ur ok
James P:    Thanks. Ever chat to any weirdos?
Emma:       sumtimes i just igrnoe them
James P:    That’s best. I have to admit I like chatting with you.
Emma:       aww tx
James P:    you are most welcome!
The accused then switched the topic to a discussion about Emma’s plans for the weekend. During the ensuing conversation ‘Emma’ asked the accused to remind her of his age. He said ‘Too old! (28).’[23] She again confirmed that she was 13 years of age. The accused told her that he would understand if she didn’t want to chat to him anymore but she said that he was ok.[24] He asked Emma whether she had ever chatted to ‘weirdos’. She said that she ignored them. He told her that was the best thing to do and added: ‘I have to admit I like chatting to you’. The accused then returned to the topic of what Emma was wearing:
[23] Exhibit P6 page 5.
[24] Exhibit P6 page 5.
James P:    So...
James P:    apart from trackie daks... what else?
Emma:       huh
James P:    as in what else are you wearing?
Emma:       jumper n socks
James P:    Yep... warm and comfy.
Emma:       yep
James P:    Lying on bed or at desk?
James P:    (I’m trying to form a mental image of you.)
Emma:       lol
Emma:       im sitting on my bed actualy
James P:    I see... I hope you have good posture!
James P:    I’ll have to go soon. Grrr.
Emma:       oh ok
James P:    Things to get done for tomorrow.
James P:    Chatting here is a bit of a luxury!
James P:So.... trackies, jumper, socks.... what else?;) Only joking... you don’t have to answer that!
The conversation concluded a short while later at 6:46pm.
Fourth communication - 22 May 2013 (count one)
At 6:19pm on 22 May 2013 the accused communicated with ‘Emma’ on Skype. He began by discussing with Emma the weather and established that she had just finished dinner. He further discussed with Emma her participation in netball trials for the school team. He then initiated the following conversation:
James P:May I ask you a personal question?
Emma:ummm ok
James P:Do you ever look at sexy stuff on the web?
Emma:umm wat do u mean
James P:you know...hot things...sex things.
Emma:nah i havnt
James P:ok. Some do and some don’t!
Emma:even at 13
Emma:imi not 14 til dec
James P:Ah ok.
Following further conversation about the accused’s age, and that of Emma’s brother, the accused told Emma that he had been ‘looking at hot stuff’ before she came online. She asked ‘how come?’. He replied that it was exciting and invited Emma to ask him more questions. However, she changed the topic to a discussion about his occupation and football.
The accused then redirected the conversation to a discussion about her underwear:
James P:What are you wearing tonight?
Emma:trackies and jumper its cold
Emma:whos ur fav player
James P:Umm...
James P:Nahas.
James P:Nick Nat Nui is pretty good too!
Emma:yeah he is
Emma:he won the game last wkend
James P:Yep.
Emma:nahas isn’t he like the real fast runner
James P:He is. Speedy and gifted.
Emma:yea
James P:May I ask another personal question?
Emma:ok i gues
James P:What are you wearing under your trackie daks?
Emma:undies of course
James P:What colour?
Emma:white
Emma:y
James P:Curious. I like to know. May I ask what style?
Emma:style
Emma:just plain
James P:Thanks for telling me. :) It’s a bit of a turn on.
Emma:huh reeeely
James P:Yes... reeeeelllyyy!
Emma:oh
James P:Probably cos I sort of can picture you in them.
Emma:haha
James P:How do you feel hearing that?
Emma:um idk never been asked dat b4
The accused then asked Emma about whether she ever got ‘curious about sex”. She replied ‘not reeeeely’. He proceeded to establish that she had never seen a ‘guy’s penis’ and suggested that she might like to one day. When Emma asked whether that was normal the accused replied: ‘Yes it is. Just like me asking about your undies…some guys like to show girls themselves too’. He said that talking to her like that was turning him on and that he had become ‘hard’. When ‘Emma’ asked what he meant, he replied ‘stiff and aroused.’ He then had the following conversation with Emma:[25]
James P: Ever heard the term “horny”?
Emma: Kinda but not sur I understand
James P: It means feeling sexually aroused. I am now and my penis is big and hard. (Sorry if that’s a bit too honest!)
Emma: omg crazy
James P: lol… It feels nice though.
[25] Exhibit P7 page 5.
The accused then discussed the possibility of Emma revealing her underwear:
James P:    Ever seen a guy’s...you know?
Emma:       u r like talkin funny 2nite
Emma:       in lik riddles
James:       I mean...seen a guy’s...penis.
Emma:       oh nop
James P:    Ah ok.
James:       You migh like to one day.
Emma:       is it normal 2
James P:    Yes it is. Just like me asking you about your undies.
James P:    Some guys like to show girls themselves too.
Emma:       wow reely
Emma:       i didtn no
Emma:       gues im only new 2 chat
James P:    Mm. They do.
Emma:       well Emily put me onto chat she is my bestie
Emma:       she is 13 as well like me
Emma:       but she didn’t tel me bout dat
James P:    I see. She may be too embarrassed perhaps.
Emma:       mayb don’t no
James P:    web cams make it easy I guess.
Emma:       oh ok
James P:    It turns me on talking to you about this!
Emma:       oh ok y
James P:    I’m ummm...
James P:    ... hard ;)
Emma:       hard work u mean?
James P:    No.... stiff and aroused.
James:       Know what I mean?
Emma:       ummm not sur
Emma:       think im dizzy lol
James P:    lol!
James P:    Ever heard the term “horny”?
Emma:       kinda but not sur i understand
James P:It means feeling sexually aroused. I am now and my penis is big and hard. (Sorry if that’s a bit too honest!).
Emma:omg crazy
James P:lol
James P:It feels nice though.
Later, after being told that Emma’s mother was still doing the dishes with her brother the accused asked: ‘Show me your panties please Em.’ He invited her to start the ‘cam call’ when she was ready. Emma insisted that she was shy but said that she would attempt the connection. It is this request by the accused for ‘Emma’ to reveal herself in her underwear that forms the basis of count one.
Senior Constable Grima manipulated the webcam application on the police computer so that ‘Emma’ could not be seen by the accused though he could be seen via his webcam. The accused complained that he could only see ‘a white blurry haze’ and Emma suggested that her webcam may have been damaged by her brother. The accused then sent a photographic image of himself which he had put on his profile page. The image was a frontal one which showed him from the neck down wearing only blue male underpants (Exhibit P9).[26] The accused then suggested that Emma try and fix the problem with her webcam and terminated the conversation at 7:41pm.
[26] The accused said in cross-examination that the image was one that he had sent to women during previous online communications: T59-60.
Fifth communication - 19 June 2013 (counts 2 and 3)
At 6:12pm on 19 June 2013 the accused communicated with Emma on Skype. The accused’s initial questions focussed on general matters such as how Emma was progressing with her netball trials and music practice. At 6:20pm the accused asked whether she had worked out the problem with her webcam. Emma told him that her brother David had dropped it and that it remained unrepaired. Immediately after ascertaining that Emma was alone in her room, the accused asked whether she would like to see a picture of him. He then sent a photographic image of himself wearing a shirt and tie which was taken when he was about 37 or 38 years of age.[27]
[27] Exhibit P1 page 11 and Exhibit P8 page 10.
At 6:42pm the accused sent ‘Emma’ another two photographic images which had been taken on an earlier occasion and had been stored by the accused in his computer.[28] Both were frontal images depicting him from the waist down wearing only underwear. The first image showed him in blue male underwear.[29] In the second image he was wearing loose fitting white female panties with his scrotum partially exposed.[30]
[28] T 64 lines 7-27.
[29] Exhibit P8 page 13 and Exhibit P1 page 12.
[30] Exhibit P8 page 15 and Exhibit P1 page 12.
At 6:45pm the accused asked ‘Emma’ if she was still alone and inquired whether she would like to see him in his ‘undies’ on webcam. She suggested that he wait for a ‘sec’ because her brother was still around. The accused said that he had to be quick because he had to go to the shops. He then activated his webcam and appeared on Emma’s computer screen standing in his computer room wearing a grey jumper and blue jeans with a brown belt. He lowered his jeans to reveal his green underpants which bore a wet spot in his genital area. He told Emma that he was ‘getting a bit excited’. She replied:’ my face is sooo red’.[31] The accused terminated the conversation a short time later at 6:56pm.
[31] Exhibit P8 page 18.
The accused resumed contact with Emma on Skype at 7:42pm. He asked whether Emma had stopped blushing and then proceeded to question her about what she was wearing:
James P:    May I ask what you are wearing?
Emma:       trackies n jumper pretty cold here now
James P:    Yes… Winter.. brrrrr
James P:    And underneath>
James P:    ?
Emma:       huh
Emma:       of coruse
James P:    panties? what colour?
Emma:       oh pink
James P:    Mm. nice.
James P:    brief style?
Emma:       wat
James P:    your panties
Emma:       just normal i gues
James P:    okay.
James P:    I’d love to see them!
Emma:       oh how
James P:    I know I can’t… broken cam.
The accused went on to ask Emma if she wanted to see his penis. She expressed concern that her mother might walk into her room. She added: ‘im 13 im not use to it’. The accused informed Emma that her reaction was normal and then engaged her in the following conversation (8:16-8:17pm):[32]
James P:    If your cam was working maybe one day I would ask to see you.
Emma:       u see my pic rite?
James P:    Ask to see you in your panties...with your legs apart.
James P:    Yes...I have seen your face.
Emma:       omg sounds sooooo crazy
Emma:       now dat wld give me a red face
James P: ha! You could perhaps even pull your panties to one side and let me see your pussy. ;)
[32] Exhibit P8 page 6.
The accused’ suggestion that ‘Emma’ might reveal herself in this manner on webcam forms the basis of count two.
The accused subsequently suggested to Emma that she might want to see more of him. He activated his webcam and appeared on Emma’s screen sitting behind a desk dressed in a top and blue jeans. He opened his jeans, exposed his erect penis, masturbated and told Emma that he felt good. He then switched off webcam (8:39pm) and continued his conversation with Emma on Skype as set out below:[33]
[33] Exhibit P8 page 8.
James P:    If I keep doing it I’ll cum.
Emma:       doesn’t dat like um hurt
James P:    no…it feels really nice
Emma:       oh ok
James P:    It’s hard...just wanting to slide it into a pussy. ;)
Emma:       omg ouch
James P:    It’s ok...you’d get wet and it would slip into you.
James P:    I had better go Em.
Emma:       oh ok
This further exchange is the subject of count three.
Subsequent attempts to contact ‘Emma’
When communications between the accused and ‘Emma’ came to an end, the accused continued to attempt to communicate with her when he saw that she was logged onto Skype, but she did not respond.[34]
[34] On one occasion, that being 26 June 2013, the accused sent a message 'Hi Em' and also sent two emoticons followed by a message 'Hellooo' to Emma (see Exhibit P2, Appendix C). During cross-examination, the accused said he spoke to Emma four or five times in total (T 17, lines 1-26).
Police interview
At 7:40pm on 19 July 2013 Detective David Townsend, a member of the Sexual Crime Investigation Branch (SCIB) of the South Australia Police, attended the accused’s home with other members of the SCIB and conducted a videotaped interview with the accused in the course of which he was arrested for the present offences.

The accused admitted that he communicated with Emma but asserted that he believed that she was older than she claimed. The accused said that he did not make any efforts to confirm whether Emma was in fact only 13 years of age but considered that she spoke in a way attributable to a person who was older than 13.[35] He admitted receiving a photograph of ‘Emma’ but did not attach any significance to it.[36] He said that he told ‘Emma’ he was 28 years old to protect his identity[37] and used the name ‘James’ to give himself a sense of anonymity.[38] At one point he remarked that he used a pseudonym because he was conscious of not giving away too much on the internet.[39]
[35] Exhibit P11 page 6 lines 18-24.
[36] Exhibit P11 page 7 lines 1-3.
[37] Exhibit P11 page 7 lines 4-12.
[38] Exhibit P11 page 12 lines 25-28.
[39] Exhibit P11 page 6 lines 1-6.
During the interview he said[40]:
...some of the conversations we had yes were um er um intimate to an extent um and I’m not trying to make any excuses here cos I guess you know I shouldn’t have done it but I, I just felt from the way this person was …talking or chatting we never actually spoke we only did the text the words thing but um, I I didn’t think a great deal of it and gave up on talkin to her er um two or three weeks ago and that was it and I honestly did not have any intent of thinking this is a 13 year old person and gee this would be fun it just didn’t occur to me um she said she was 13 I thought well ok we’ll go along with it, I I that’s it.
[40] Exhibit P11 page 6 lines 10-17.
The accused said that he did not find the number ‘1999’ in ‘Emma’s’ online username indicative of her being born in 1999.[41] He was pressed as to why he selected ‘Emma1999Perth’ as a person with whom to engage in an online chat:[42]
[41] Exhibit P11 page 12 lines 1-4.
[42] Exhibit P11 page 13 lines 3-30.
QIn the very first time that you speak to this person um within a couple of minutes they tell you well you ask were you born in 1999 and they say yes December 2.
AMm.
QSo from that point on why did continue talking to them.
AI guess I shouldn’t have um er um er you know operated on the base of caution and accepted that that was the case um I just didn’t um because the person Emma I was talking to seemed like a cheerful pleasant person who wrote quite well and so i continued um chatting with her.
QYou say-sorry, you say that they wrote quite well.
AYes.
QWhat do you.
AEr well they didn’t use um um um slang language um they were quite um um descript not descriptive what’s the word verbose if you like they could talk about things in a reasonably mature fashion so that why I didn’t think this person was really 13.
QAll right well most of the conversation that i have read is around netball try outs and um learning to play the guitar and piano.
AHm.
QIt doesn’t seem to me to be something that mature adults would be speaking about.
AEr no but I understand and I don’t do this but I understand that some people do what they call role play where assume the identity of someone else who is younger or older than themselves um and I just thought if this person wants to do that then I will just go along with it cause I am interested in Netball myself don’t play but score for the team that’s it.
QUm.
ALook I’m not a bad guy I just got caught up in the damn thing.
The accused agreed that he showed his penis to ‘Emma’ via webcam but denied masturbating.[43]
[43] Exhibit P11 page 8 lines 16-32 and page 9 line 1.
Accused’s evidence
The accused gave evidence consistent with his record of interview except in two respects to which I will refer in a moment (see [85] points 1, 10).
In examination-in-chief, the accused said that he began communicating with Emma on 5 May 2013 (first communication) because he was curious to find out why the number ‘1999’ had been included as part of her user name. He said that in his experience persons using chat-rooms rarely put a reference to a year at the end of their on-line name.[44] The accused agreed that he was informed by Emma that she was born in 1999 but suggested that he suspected that Emma was in fact an adult female posing as a young teenager. He agreed that during the first communication he received from Emma a photograph of a young girl but claimed that he did not believe that it was in truth an image of her. He said:[45]
[44] T 8-9.
[45] T 10-11.
My first reaction was ‘That’s an interesting photograph’, it was not a photograph that I thought a young girl certainly would have sent, given that they generally send photographs of themselves in social situations with friends etc. and to me it was almost the sort of photograph that a woman who was fantasizing would have presented to me …
The accused testified that he continued communicating with Emma because he wanted her to reveal that she was in fact a ‘mature woman’. He insisted that by the time he communicated with her on 15 May 2013 (third communication) he was ‘absolutely positive’ that this was the case.[46] The reasons the accused gave for reaching this conclusion were as follows:[47]
People - from experience I found that people who go to these chat rooms anonymously wish to play out a fantasy situation and I felt that’s what was happening here. The tone of the language and the style of the language used throughout the entire communication was a parody of a young teenager’s style of communication, it was almost laughable in some instances and there was some inconsistencies in the conversations that took place right from the start. In fact, my third conversation led me to be absolutely positive that this was an adult.
[46] T 9-12.
[47] T 9.
The accused also suggested that the transmission that occurred over webcam during the fourth communication on 22 May 2013 supported his belief that Emma was an adult. As earlier stated, during the fourth communication Emma’s webcam was manipulated so that she would not have to reveal herself in her underwear. In relation to that transmission the accused gave the following evidence:[48]
QWere you ever able to see Emma on Skype.
AI saw a – the answer is, yes, I saw a fuzzy grey image.
QDid that fuzzy grey image appear in any way to be consistent with the image depicted in the photograph that had been sent to you earlier.
ANot at all, no.
QAs a consequence of that, what was your state of mind as far as who Emma was, what age and so on.
AEmma was an adult that looked nothing like the photograph that had been presented to me.
[48] T 13.
The accused insisted throughout his evidence that he believed that Emma was an adult and that if he had known or believed that she was a child he would have terminated his communication with her.[49]
[49] T 9, 13.
The accused further asserted that that he did not gain any sexual gratification from communicating with Emma until the fifth communication on 19 June 2013. He explained:[50]
It was not until the fifth conversation where what I was writing was really for my benefit. I was so fed up with the tone of the conversation over the previous conversations and the woman’s reluctance to become her real self that I started to type this stuff really as a, if you like, a stimulant to myself.
[50] T 11.
However, later in examination-in-chief the accused said that he began to gain sexual satisfaction from communicating with Emma during the fourth communication. He was asked when and how he gained sexual gratification from the communications. He replied:[51]
That was towards the end of the last two conversations. Aside from watching and being frustrated by the battle that was being written by the Emma character, at that same time I was looking at adult-related material on the computer which was increasing my arousal and I was typing what I typed as an adjunct to not just seeing what was on the computer, but as a stimulant to myself.
[51] T 13.
The accused was subjected to a careful and searching cross-examination, features of which I will refer to later. He maintained that he initially suspected that Emma was a female adult and that by the time the offences were allegedly committed he firmly believed that she was in fact a mature woman. He effectively admitted that the specific discussions which are the subject of the charges were conducted by him for a prurient purpose. He said that:
·he asked Emma to show him her panties because he wanted to see her on webcam dressed only in her panties which he would have found sexually arousing (count 1);[52]
·he suggested to Emma that she might like to pull her panties to one side one day because he hoped that she might engage in such conduct and that such behaviour was a ‘turn on’(count 2);[53] and
·he discussed his penis slipping into her vagina while he was sexually aroused and masturbating (count 3).[54]
[52] T 55, 58.
[53] T 66-67.
[54] T 67-68.
Even if the accused had not made such admissions I would have inferred from the nature of the conversations and the surrounding circumstances that each of the charged communications was made for a prurient purpose.
The accused agreed in cross-examination that his denial to the police of having masturbated during the fifth communication was incorrect as demonstrated by the film of the incident tendered in evidence.[55] In effect he said that he was embarrassed to reveal that he performed that act when questioned by police in the presence of his wife.[56] I should point out that I have not used the accused’s lie to police as a discrete item of circumstantial evidence probative of guilt but rather as a piece of evidence relevant to an assessment of his credibility as a witness.[57]
[55] Exhibit P9A.
[56] T 68-69.
[57] See Edwards v R (1993) 178 CLR 193.
The issues
With respect to each count there was no dispute that the accused communicated with Emma for the purposes of self-sexual arousal and thus acted for a prurient purpose. The critical issue in relation to each charge was whether the accused intended to make a child (a person under the age of 17 years) amenable to sexual activity.
Two further issues were:
·whether in relation to each of counts 1 and 2 the alleged intended ‘sexual activity’ in fact amounted to a sexual activity for the purposes of s 63B(3)(b); and,
·whether in relation to count 3 the accused intended to make Emma amenable to the form of sexual activity alleged (sexual intercourse with the accused or self-masturbation).
I turn to consider each of those issues.
Did the accused intend to make a ‘child’ amenable to activity?
I reject the accused’s claim that he believed that Emma was an adult. I regard his story as inherently improbable. I am satisfied beyond reasonable doubt that from the time he first communicated with Emma he believed that he was dealing with a 13 year old girl. I infer from this belief[58] and the nature and content of the communications that he intended to communicate with a child i.e. a person under 17 years of age.
[58] Belief falling short of actual knowledge may sustain an inference of intention: see Kural v The Queen (1987) 162 CLR 502 at 505 (Mason CJ, Deane and Dawson JJ); Saad v The Queen (1987) 61 ALJR 243 at 244 F-G (Mason CJ, Deane and Dawson JJ).
The information provided to the accused during the first communication indicated that she was a thirteen year old school girl born on 2 December 1999 who lived with her parents and younger brother. No information was conveyed to the accused during the ensuing communications that served to contradict the personal profile of Emma with which he had been provided. Indeed, during the fourth communication Emma reiterated that she was 13 following an enquiry from the accused.
Furthermore, the language used by Emma and the topics she discussed were in the nature of what one would be expect from a young teenager. For the accused’s part, the manner in which he spoke to Emma was consistent with him believing that she fell into that age category. At no time did he make any remarks during the communications that suggested otherwise.
The accused’s evidence was laced with fanciful explanations and internal contradictions. Specific aspects of the accused’s evidence that I consider reflect adversely on his credibility as a witness and the truthfulness of his account are as follows:
1The accused was cross-examined on his assertion that he first communicated with Emma because he was curious to find out why the number ‘1999’ constituted part of her user name. He initially conceded that prior to contacting Emma he considered that the most likely explanation was that number represented the year of her birth.[59]
[59] T 19.
However, under further cross-examination he denied that that was the case and suggested that it was only one of several competing possibilities he considered at the time. When pressed to identify the other possibilities he suggested, feebly in my view, that 1999 may have been a reference to a 1970s television show called ‘Space 1999’ or a reference to the song by the pop artist Prince, ‘party like its 1999’.[60]
[60] T 19.
It should also be observed that the accused’s evidence that at the time he considered that the number 1999 possibly represented or more than likely represented Emma’s year of birth is to be contrasted with his statement to police that he did not believe that it was ‘indicative’ of her year of birth.[61] Furthermore, at no time did he mention to the police the possibility of the number being a reference to a pop song or s television show.
[61] Exhibit P11, page 12 lines 1-4.
2The accused said in cross-examination that, after he was informed by Emma that she was born on 2 December 1999, he pressed on with the first communication because he wanted to establish whether she had been truthful about her age.[62] However, he never asked Emma to confirm that she had told him the truth. Nor did he ask questions that could sensibly have assisted him in that regard. His subsequent questions were directed at establishing the general nature of her appearance (colour of her hair and eyes and whether she was slim) and whether she attended high school or primary school and had a boyfriend.
[62] T 23.
3The accused said that he did not believe that the photograph he received from Emma during the first communication depicted the person with whom he was communicating but rather assumed that it was a ‘random photograph’ sent by a woman acting out her sexual fantasy. However, he never indicated to Emma during the first communication, or indeed during any of the communications, that he did not believe that it was a genuine photograph or that he thought she was play acting. With respect to this lack of enquiry, the accused suggested that he did not want to offend Emma or destroy her fantasy,[63] an explanation inconsistent with his claim that he wanted to establish her true identity.
[63] T 32.
4Under cross-examination the accused said that by the end of the first communication he was ‘almost certain’ that Emma was a ‘mature woman’ though she had provided no information in the course of the conversation to indicate that.[64] In essence, the accused was constrained to say that he did not believe that Emma was a child because she spoke like a child! The relevant passages in cross-examination were as follows:[65]
[64] T 31.
[65] T 27-28.
QIs there anywhere that we can see in the initial chat that you say revealed to you that this might be a parody.
AYes. Every response or every statement written by the Emma character is full of abbreviations and short cuts to proper words.
HIS HONOUR
QSorry, could you explain to me what you mean by that when you go to the first page of Exhibit P4A.
AYes. The second-to-last statement where she writes “Me 2 only maybe 3 times”, the responses given by Emma on that first page are clipped and abbreviated.
XXN
QSo what.
AI have two daughters of my own. I know that when young people are communicating with adults they often want to be seen as being older than their years and want to talk properly.
QSo how did that lead you to a belief that she may have been older.
ABecause this Emma character was constantly writing in a fashion – as a parody of a 13-year-old, using all the slang and abbreviated terms that she could think of.
QIsn’t that precisely how children communicate by these sort of chat sites, in an abbreviated way.
AWith their cohort of the same age group, I’m sure they do but, as I said, not with adults.
QAnd you base that, what, on the communications you’ve had with your daughters.
AWell, yes.
QAnything else.
ANo.
The accused’s evidence on this topic was patently weak.
5The accused was cross-examined about his claim that by the end of the second communication he positively believed that Emma was a mature woman. He fancifully suggested that he reached this conclusion after Emma had informed him that she was playing her guitar while speaking to him:[66]
[66] T 46.
QWhen did that realisation come to you.
AAt the end of the second conversation.
QWhereabouts.
AWell, I don’t write that in the conversation, but at the end of the second conversation there was a reference to – towards the end you’ll notice that at 7.23:56pm.
QLet’s just be clear about what you’re looking at, is this Exhibit P5.
AP5, p.4, 7.23:56pm she was telling me she’s been doing guitar practice and I respond ‘Okay, gee, type and play at same time, wow’. To me that confirmed in my mind that this adult woman was making up this fantasy and that that was just another example of something being rather ridiculous.
QBecause she could hold a guitar in her lap and send messages at the same time.
ACorrect.
6The accused contended that during the first three communications he did not engage Emma in discussions for a prurient purpose, and that he was merely trying to ascertain her true identity. This claim does not sit comfortably with the fact that:
·during the first communication, he questioned Emma about her general appearance, requested a picture of her and queried whether she liked boys;
·during the second communication, he questioned Emma about her school uniform, whether the skirt came down to her knees and whether she was wearing knickers of a certain colour under her skirt; and,
·during the third communication, he asked Emma what she was wearing other than her ‘trackies, jumper and socks’ and sought to establish whether she was lying down or on a bed because he was trying to form a mental image of her.
7As earlier stated, the accused effectively admitted that the specific discussions which are the subject of the charges were conducted by him for a prurient purpose. However, these were isolated concessions in a sea of denials that other obviously sexually related discussions had been prompted by him for prurient purposes. I was left with the distinct impression that he wanted to falsely minimise the extent of his perverted behaviour. For example:
·During the fourth communication, the accused enquired about what underwear Emma had on. In cross-examination he maintained that he was not sexually stimulated by the enquiry.[67] However, the fourth communication reveals that prior to making the underwear enquiry he had questioned Emma about whether she had ever looked at ‘sexy stuff on the web’ and after establishing that she was wearing white underwear said “thanks for telling me…it’s a bit of a turn on’. When cross‑examined in relation to this apparent inconsistency the accused suggested that he lied to Emma about being turned on because he believed that the nature of the lie would encourage Emma to reveal that she was a mature woman.[68]
[67] T 49.
[68] T 49-50.
·During the fourth communication, the accused enquired about whether Emma had ever seen a man’s penis. In cross-examination the accused lamely insisted that this enquiry was not for a prurient purpose but rather was an attempt by him ‘to have this woman come out of her sexual fantasy’.[69] Subsequently, when pressed on the point he was effectively forced to concede that the entire conversation was part of a plan to expose his penis, as he later did.[70]
[69] T 52-53.
[70] T 53-54.
8The accused’s communications with Emma reveal a clear pattern. In relation to each of the communications in which discussions of a sexual nature occurred the accused first engaged in discussions of an innocent nature (for example, about the weather and Emma’s homework, netball and music activities) before proceeding to question her about sexually related matters. The pattern is consistent with that of a man carefully raising matters with a person he believes to be young and sexually naïve - approaching his task in a manner that will not spook her into terminating the communications. The pattern is less easily reconciled with a man engaging a mature woman in discussions designed to reveal her identity or to facilitate unrehearsed sexual fantasy role playing.
9The accused was careful during the communications, in particular the last three, to ensure that Emma was alone in her room when they engaged in sexually related discussions.
10The accused was cross-examined about his denial to the police of having masturbated during the fifth communication:
QJust by the way, you told the police, didn’t you, that you didn’t masturbate, do you recall saying that to the police.
AI do.
QWhy did you tell the police that.
AI was in a state of shock. I had my wife sitting next to me, a number of factors, of course, children in the house and my – it came out as an incorrect statement.
QWell, it was a lie, wasn’t it, was that what you mean.
AWell, my will to lie means a deliberate attempt to mislead, it was not a lie.
QAs I said.
MR EDWARDSON: Let him finish the answer.
HIS HONOUR
QYou said it was not a deliberate attempt to mislead.
AThat is correct.
QIs there anything else you wish to add to that answer.
AIt was not a lie.
Although the accused doggedly maintained that he what he said to the police was not a lie, in my opinion, it is perfectly obvious that it was. I accept that he was embarrassed in front of his wife and may have denied masturbating for that reason. As I earlier remarked I have not used the lie as evidence probative of guilt. However, the lie and his unwillingness to admit on his oath that he had sought to mislead the police reflects adversely on his credibility as a witness.

I was left in no doubt that the accused’s story that he believed that Emma was a mature woman was untrue. The irresistible inference to be drawn from the whole of the evidence is that he was fooled into believing that he was communicating with a 13 year old girl. I was satisfied beyond reasonable doubt that all of the communications were made for a prurient purpose and with the intention of engaging Emma in sexual activity.
Did the intended activity alleged in counts 1 and 2 constitute ‘sexual activity’?
I turn to Mr Edwardson’s submission that the intended activities of Emma appearing on webcam dressed only in her panties (count 1) and pulling her panties to one side to expose her vagina (count 2) do not constitute ‘sexual activities’ for the purposes of s 63B(3)(b).
Defence submission
Mr Edwardson stressed that s 63B(1)(a) makes it an offence for a person to incite or procure the commission of an ‘indecent act’ by a child. He submitted that s 63B draws a distinction between an ‘indecent act’ and ‘sexual activity’ and thus it must have been Parliament’s intention to confine the latter to activities that do not involve indecent acts. He argued that the intended activities alleged in counts 1 and 2 should be construed as indecent acts rather than sexual activities. He suggested that the expression ‘sexual activity’ is confined to acts of sexual intercourse and indecent assaults perpetrated against a child. He submitted that ‘if the communication really is an invitation to the child [for example] to either self-masturbate or expose themselves to the individual that would fall within s 63(1)(a)’.[71]
Rejection of submission
[71] Closing address T 92-100.
As I earlier pointed out ‘sexual activity’ is not defined in Div 11A and its meaning, in that context, has not been judicially determined before. The expression is used in other parts of the CLCA but I do not believe those provisions are of any assistance in determining its meaning for the purposes of Div 11A.[72]
[72] The other references to 'sexual activity' are as follows:
- Section 69 provides that it is an offence for a person to commit 'bestiality'. Bestiality is defined to mean 'sexual activity between a person and an animal'.
- Section 46 defines the concept of consent to 'sexual activity' for the purposes of offences contained in Div 11 (rape s 48), unlawful sexual intercourse (s 49) etc. Section 46(1) states that for the purposes of that section 'sexual activity includes sexual intercourse'.
In my opinion, there is no warrant for giving ‘sexual activity’ anything other than its ordinary meaning. As a matter of ordinary language the expression refers to any activity that is sexually related or has a sexual connotation. In my view, it necessarily includes sexually related ‘indecent acts’ performed against an alleged victim or by the alleged victim (including exposure of genitalia and posing in underwear).
In determining whether an activity is a sexual activity for the purposes of s 63B(3)(a) the objective of the alleged offender is relevant and may be critical in characterising the act as a sexual activity or otherwise. For example, an adult male who asks a female child to undress may not be involved in a sexual activity if he is a medical practitioner and she is a patient. However, even in that circumstance it would possible for him to incite a sexual activity if his real motive were not professional, but personal, involving sexual gratification.[73]
[73] See Eades v DPP (NSW) (2010) 203 A Crim R 136 (NSWCA) at [9].
In the present case, each of the charged communications was made for a prurient purpose. Having regard to the accused’s motive, as well as the nature and circumstances of his communications, I am satisfied beyond reasonable that the intended activities of Emma posing in her underwear and exposing her vagina constituted sexual activities for the purpose of s 63B(3)(b).
Further reasons for rejecting submission
In my view, Mr Edwardson’s submission that the presence of the expression ‘indecent act’ in s 63B(1)(a) reflects a legislative intention to limit the meaning of ‘sexual activity’ in s 63B(3)(b) is inconsistent with the construction of s 63B and the policy underpinning its enactment.
Policy
As the Second Reading Speech by the then Attorney-General on the Bill makes clear, the purpose of the legislation is to protect children from exploitation, degradation and humiliation through child pornography and related offences:[74]
On 30 August 2004, the Commonwealth passed amendments to the Criminal Code Act 1995 (Cth) that created offences for using the internet for the purposes of disseminating, accessing or downloading child pornography and child abuse material. The Commonwealth drafted the amendments so that the States and Territories would also be able to legislate in this area without running into constitutional problems.
The Bill will reflect some of the Commonwealth internet provisions with some minor amendments. Nowadays, pederasts search through chat rooms, newsgroups and other internet services to find children to prey upon. Some pederasts use pornographic images as part of the manipulation process to entice children into so-called ‘positive’ sexual encounters with adults.
The Bill will introduce new offences of communicating with a child with the intention of procuring a child to engage in, or submit to, a sexual activity, and communicating, for a prurient purpose, with the intention of making a child amenable to sexual activity. The offences are drafted as separate offences, which is appropriate, given that grooming is a preparatory offence and procuring involves more substantial acts.
[74] South Australia, Parliamentary Debates, House of Assembly, Tuesday 26 October 2004 at 561 (The Hon MJ Atkinson).
In R v Clarke[75] Doyle CJ stressed that there could be no doubt about the seriousness of the evil at which Div 11A was aimed.[76] The aim being:[77]
to reduce, and as far as possible eliminate, possession production supply and sale of child pornography. In part this was by increasing penalties, and in part by the introduction of new offences [including the offences contained in s63B].As well, the definition of child pornography was widened.
[my insertion]
Construction of s 63B
[75] (2008) 100 SASR 363.
[76] (2008) 100 SASR 363 at [18].
[77] (2008) 100 SASR 363 at [19].
Section 63B(1) creates two basic offences of ‘inciting or procuring the commission of an indecent act by a child’ (s 63B(1)(a)); and, acting for a prurient purpose to ‘cause or induce a child …to expose any part of his or her body’ (s 63B(1)(b)(i)) or to make an image ‘of a child …engaged in a private act’ (s 63B(1)(b)(ii)).
The offences created by s 63B(1) are choate offences which proscribe conduct that results in:
·the commission of an indecent act by a child (s 63B(1)(a));
·exposure by a child of any part of his or her body or the making of an image of a child engaged in a private act (s 63B(1)(b)).
As earlier set out the term ‘private act’ is defined in Div11A, s 62 to mean:
·a sexual act;
·an act involving an intimate bodily function such as using a toilet; or
·an act or activity involving undressing to a point where the body is clothed only in undergarments; or
·an act or activity involving nudity or exposure or partial exposure of sexual organs, buttocks or female breasts.
As earlier stated, ‘indecent act’ is not defined in Div 11A. I was not referred to any authorities dealing with its meaning in the context of s 63B(1) and I am not aware of any.
An analogous provision, s 61N(1) of the Crimes Act 1900 (NSW), creates the offence of inciting a person under the age of 16 years to commit an act of indecency. Eades v Director of Public Prosecutions (NSW)[78] confirmed the principle, expressed in earlier authorities, that the identification of an act as indecent is an objective question to be determined by reference to the standards of decency held by right thinking members of the community.[79]
[78] (2010) A Crim R 136.
[79] (2010) A Crim R 136 at [7].
In R v C, M[80] the Court of Criminal Appeal (SA) held that this test also applied to an offence of indecent assault under s 56 of the CLCA but further held that in order to be indecent the conduct must involve ‘an element of sexual lewdness, often referred to as a sexual connotation’.[81] For the purposes of the present case, I am prepared to assume that that is also a requirement for the offence of ‘inciting or procuring the commission of an indecent act by a child’ (s 63B(1)(a)).
[80] [2014] SASCFC 116.
[81] [2014] SASCFC 116 Peek J at [19] (Blue and Stanley JJ agreeing).
In accordance with the abovementioned authorities, an ‘indecent act’ for the purposes of the offence contained in s 63B(1), is an act with a sexual connotation which in the opinion of the trier of fact is indecent having regard to the standards of decency held by right thinking members of the community. Obviously the test is broad and may catch a wide range of acts with a sexual nature including a person stripping down to his or her underwear or exposing his or her genitalia (the intended activities alleged in counts 1 and 2).
The point is illustrated by the decision in Eades. In that case the appellant was charged with inciting a person under the age of 16 years to an act of indecency towards him, contrary to the Crimes Act 1900 (NSW) s 61N(l), on the basis that he sent text messages in which he encouraged the complainant to send him a photograph of herself naked, which she did. In determining whether that act of the complainant constituted an act of indecency the magistrate held that he could not take the context in which the act took place including the motivation and desires of the respondent. The Director appealed against the decision to a single judge who allowed the appeal. The appellants appeal from that decision to the Court of Appeal (NSW) was dismissed. The Court of Appeal held that the intention of the respondent was relevant in determining whether the sending of the photograph constituted an act of indecency. There was no doubt that when the accused’s sexual desire was taken into account that the complainant’s conduct in sending a photograph of herself naked, qualified as an indecent act.
I turn to the construction of s 63B(3). This sub-section creates three basic offences. First, procuring a child to engage in, or submit to, a sexual activity (s 63B(3)(a)). Procuring means to produce by endeavour and by taking appropriate steps to produce its happening.[82] In other words a procurer is someone who succeeds in causing the principal to perform the act. The offence is choate in nature.
[82] Re: Attorney-General’s Reference (No 1 of 1975) [1975] QB 773.
The remaining two basic offences:
·making a communication with the intention of procuring a child to engage in, or submit to, a sexual activity (s 63B(3)(a)); and
·making a communication for a prurient purpose with the intention of making a child under the prescribed age amenable to a sexual activity (s 63B(3)(b));
make criminal, conduct of a specified kind if it is carried out with a specified intention and purpose.[83] In other words these are inchoate offences.
[83] R v Barrie [2012] SASFC 124 White J at [73].
As a matter of ordinary language, the adjective amenable means ‘responsive, tractable, capable of being won over’,[84] ‘disposed or ready to answer, yield, or submit; submissive…’[85]. In the context of s 63B(3)(b), it is evident that conduct makes a child ‘amenable’ to sexual activity essentially involves grooming a child so as to make the child more responsive to the possibility of taking part in sexual activity. Counsel for the prosecution and the defence did not suggest otherwise.
[84] Australian Oxford Dictionary, Oxford University Press, Australia and New Zealand, 2^nded.
[85] Macquarie Dictionary, Macquarie Dictionary Publishers, Sydney Australia, 6^th ed.
The distinction drawn between choate and inchoate offences and their different spheres of operation in s 63B is significant. If Mr Edwardson’s argument were to be accepted it would mean that s 63B would fail to catch people who, using the internet or otherwise, seek for prurient purposes to entice children to undress or to expose their genitalia, anus or female breasts. A potentially significant amount of deviant and damaging grooming of children would go unchecked. Considering that the policy of Div 11A is to protect children from sexual exploitation it is improbable that Parliament would have intended this result. Given the evident purpose of s 63B there is no reason to give ‘sexual activity’ the narrow construction contended for by Mr Edwardson.
Furthermore, if his argument were to be taken to its logical conclusion the expression ‘indecent act’ (as used in s 63B(1)(a)) should be read down to exclude acts involving bodily exposure by a child and ‘private acts’ because they are separately dealt with in s 63B(1)(b)(i) and (b)(ii), respectively. That cannot be right.
As earlier stated, I would construe ‘sexual activity’ as referring to any activity that has a sexual connotation. Although my interpretation of ‘sexual activity’ would include acts that could be characterised as ‘indecent’ (for the purposes of s 63B(1)(a)) and acts involving bodily exposure by a child (for the purposes of s 63B(1)(b)), that presents no difficulty because those provisions have different spheres of operation to s 63B(3).
I note that in addition to s63B(3)(b), the provision under which the accused is charged, the meaning of sexual activity is also relevant to two other offences contained in Div.11A; namely, producing or disseminating ‘child exploitation material’ (s 63) and possession of ‘child exploitation material’ (s63A).
Section 62 provides the following definition:
child exploitation material means material –
(a) that-
(i)describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or
(ii)consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which a child has been or appears to have been involved; and
(b) that is of a pornographic nature.
This definition draws a distinction between material describing or depicting a child engaging in ‘sexual activity’ and material containing the image of a child or who appears to be a child or of the bodily parts of such a child and which is of a pornographic nature. In my opinion the definition of ‘child exploitation material’ as contained in s 62(a)(ii) is directed at situations where it may be impossible to determine from the image of a child or bodily part of a child (for example an infant’s vagina) that the child was engaged in a sexual activity. I would not narrowly construe the definition of sexual activity in s 63B just because of the statutory drafting of s 62(a)(ii), which is concerned to ensure that a photograph of genitalia, absent further explanation or context, may still constitute child exploitation material even though sexual activity may not obviously be apparent.
Before I leave this topic there is one other matter to which I should refer. The Second Reading Speech by the Attorney-General observed that the Commonwealth had passed amendments to the Criminal Code Act 1995 (‘the Code’) by creating offences for using the internet for the purposes of disseminating, accessing or downloading child pornography and child abuse material. The Attorney-General went on to state that the Bill ‘will reflect some of the Commonwealth internet provisions with some minor amendments’.
The Commonwealth provisions inserted in the Code included s 272.15, which make it an offence to groom a child to engage in sexual activity outside of Australia.
The Dictionary in the Code defines ‘sexual activity’ in a broad manner. It states:
sexual activity means:
(a) sexual intercourse; or
(b) any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or bodily actions or functions (whether or not that activity involves physical contact between people).
I was not referred to the Code or to any case law dealing with the above definition of ‘sexual activity’. However, it seems clear that the Code’s definition of sexual activity encompasses a wide range of activities of a sexual or indecent nature including activities of the type contemplated in counts 1 and 2.
It is arguable that in enacting s 63B Parliament intended ‘sexual activity’ to have a similar meaning. However, I have serious reservations as to whether the provisions in Div.11A and their counterparts in the Code can properly be regarded as in pari materia given the differences between the provisions.
As I stated in R v Finnigan (No. 3), in the context of discussing the pornography provisions in Div 11A:[86]
Although there may have been a general intention to follow the Commonwealth legislation, it is apparent from the Attorney General’s remarks that it was also intended that the state legislation would depart from the Commonwealth legislation in certain respects. In the light of those remarks, and the significant differences between the state and Commonwealth legislation in relation to the offence of ‘accessing of child pornography’, I do not believe I can derive any assistance from the Commonwealth provisions.
[86] [2015] SADC 166 at [92].
In the circumstances I do not believe that I should, or need, go beyond the confines of Div 11A, and the legislative policy underlying its enactment, in determining the meaning of ‘sexual activity’. I reiterate that for the purposes of s 63B the expression encompasses, in my view, all activities that have a sexual connotation.
In the result, I am satisfied beyond reasonable doubt that the accused discussed with Emma the idea of her posing in her underwear (count 1) and exposing her vagina (count 2) for his sexual arousal or gratification. Given the accused’s motive and all of the surrounding circumstances I have no difficulty in finding that that those intended activities were sexual in nature and therefore constituted sexual activity for the purposes of s 63B(3)(b).
Did the accused intend to make Emma amenable to the form of sexual activity alleged by the prosecution in relation to count 3?
In relation to count 3 Mr Powell opened the prosecution on the basis that the sexual activity to which the accused intended to make Emma amenable was an act of sexual intercourse (penile/vaginal). It should be recalled that the allegation is based on the following remarks made by the accused while masturbating:
James P:    It’s hard...just wanting to slide it into a pussy. ;)
Emma:       omg ouch
James P:    It’s ok...you’d get wet and it would slip into you.
In cross-examination the accused gave the following evidence as to his reasons for speaking to Emma in that manner:[87]
[87] T 73.
QYou were speaking about you having sex with her, weren’t you.
AYes.
QThat’s plain, isn’t it.
AYes.
QWhy were you speaking about you having sex with her.
ABecause this is a woman who is indulging in a fantasy and I was hoping that she would be getting excited by this and would assume that the conversation involved her.
QSo whoever this was, the idea that you wanted her to think about was the idea of her having sex with you, is that what you mean.
AYes.
The prosecution argued that this passage indicated that the accused was planting in Emma’s mind the idea of having sexual intercourse with him in the future. I reject this argument. I did not construe the accused’s evidence in that way. I understood the accused to be saying that he engaged in the impugned talk for the purpose of sexually exciting both himself and Emma at the time but not for the purpose of grooming her for a later act of intercourse.

Indeed, the accused later said in cross-examination that having sexual intercourse with Emma was not a possibility he contemplated at the time.[88] As Mr Edwardson argued the mere fact that the accused lived in Adelaide and that Emma lived in Perth made it unlikely that he had future sexual intercourse in mind. I consider that it is reasonably possible that the accused’s evidence on this topic is the truth of the matter.
[88] T 75.
But does this mean that he is not guilty of count 3?
In my view, the prosecution took an unnecessarily restrictive view of what could constitute sexual activity for the purposes of count 3. It was open to the prosecution to argue that the accused spoke about wanting to slide his penis into her pussy while he was masturbating because he was seeking to elicit from her a response that would sexually excite him while performing that act. In other words, getting Emma to verbally excite him by engaging in ‘dirty talk’ while he masturbated (or even if he was not masturbating) would constitute a sexual activity for the purposes of the legislation.
I note that in R v Barlow[89] Smith DCJ found that the accused was not guilty of an offence under s 63B(3)(b) because it was reasonably possible the accused was ‘merely involved in a sort of unilateral phone sex and was content with that, and in particular had no intention of further involving the complainants’. I respectfully agree with that view. However, if the accused had for a prurient purpose engaged in ‘phone sex’ with the intention of getting the child to engage in a mutual sexualised phone conversation that would, in my view, constitute a breach of s 63B(3)(b). In other words, a sexual activity may be purely verbal.
[89] [2014] SADC 197.
I note that in the New South Wales decision of R v White (1989) 18 NSWLR 332 which discussed ‘sexual activity’ in the context of the prohibition of questions regarding a complainant’s sexual activity under s 409B(3)(a)(i) of the Crimes Act 1900 (NSW) (since repealed), the Court comprising Gleeson CJ, Carruthers & Badgery-Parker JJ, said (at page 341) that there may be cases where conversation is of itself sexual activity.
Taking up this point, in Bolton v Western Australia [2007] WASCA 277 Steytler P, with whom Buss and Miller JA agreed, said (at [42]):
“... the question may turn on the character and nature of the sexual conversation. For example, if one person was to describe to another, even in graphic terms, some sexual activity engaged in by third parties that she or he had happened to observe, merely for the purpose of informing the other party of what had happened and without any sexual motive, the conversation itself would not amount to a sexual experience on the part of the first person with the second. On the other hand, a conversation in which one person describes graphic sexual activities with the purpose of sexually stimulating the other party to the conversation may amount to a sexual experience of the first person with the second.”
There are however two reasons why I am not prepared to convict the accused of count 3 on the basis outlined above. First, both the prosecution and the defence submitted that I would not need to consider whether mere sexualised talk is sufficient. Neither the prosecution nor the defence came prepared to argue the point. With the benefit of submissions I might have been persuaded to take a different view.
Furthermore, to convict the accused of count 3 on the basis of mere sexualised talk would smack of duplicity because the entire fifth communication was of a sexualised nature including the specific aspect of the communication the subject of count 2. Put another way, although I am satisfied beyond reasonable doubt that that aspect of the communication was directed at making Emma amenable to performing the specific act of posing in her underwear it was also, very obviously, a communication of a sexualised nature. To convict the accused of count 3 on the more general basis would involve an element of doubling up.
It should be observed that Mr Powell submitted, correctly in my view, that in order to establish the commission of an offence under s 63B(3)(b) the prosecution is not obliged to prove that the accused person intended to make the child amenable to any specific form of sexual activity. It is sufficient that the accused intends to engage the complainant in some form of sexual activity. I am in no doubt that the accused intended to make Emma amenable in the future to some form or forms of sexual activity hence his multiple attempts to contact her after the fifth communication. But once again, it would not be appropriate to convict the accused on count 3 on such a generalised basis because it would similarly involve an element of duplicity for the entire fifth communication, which includes count 2, could be construed in that manner.
Verdicts
Count 1:
·Aggravated offence - not guilty.
·Basic offence - guilty.
Count 2
·Aggravated offence - not guilty.
·Basic offence - guilty.
Count 3
·Aggravated offence - not guilty.
·Basic offence - not guilty.
APPENDIX
Introduction
Following Mr Edwardson’s initial no case submission I ruled that the accused had no case to answer on each of the charged aggravated offences because the prosecution could not make out the element of aggravation. However, I concluded that the common law alternative verdict rule applied and that in relation to each count the accused had a case to answer for the basic offence: see written ruling R v Richards [2015] SADC 44 and [30] herein. This appendix deals with the ‘additional argument’ subsequently put by Mr Edwardson and elaborates on my oral reasons for rejecting it.
The argument
The additional no case argument mounted by Mr Edwardson was based on two propositions:
·first, that upon finding the accused had no case to answer in relation to each of the aggravated offences I was bound to immediately acquit the accused of those charges; and,
·second, that by reason of the acquittals the prosecution could not proceed on the alternative basic offences. In other words, the acquittals would bring the trial to an end before the defence was required to commence its case.
I considered that both propositions should be rejected. However, out of an abundance of caution I delayed entering verdicts of acquittal with respect to the aggravated offences until now.
Reasons
The common law rule is well established. It provides that a person charged with an offence, under the common law or statute, may be convicted of an alternative offence not specifically charged in the information if it is of the same character as the offence charged and its elements are subsumed in the elements of the charged offence.[90]
[90] See fn 14 and authorities cited therein.
Juries regularly return guilty verdicts on lesser offences at the conclusion of a trial pursuant to the common law alternative verdict rule. Although it would appear, from counsels’ research and my own, that there is a dearth of appellate authority on the point I see no reason in principle why a trier of fact should not be able to consider a basic offence under the common law alternative verdict rule where the judge has ruled that the accused has no case to answer with respect to the greater offence (regardless of whether the directed verdict of acquittal is entered immediately after the no case ruling or later).
Put another way, for the purposes of the common law alternative verdict rule I see no legitimate distinction between a jury finding an accused person not guilty of the greater offence following a consideration of all the evidence and the jury entering a directed verdict of acquittal on the greater offence immediately following a successful no case submission. In either case, the jury should be allowed to consider the alternative basic offence provided there is evidence warranting its consideration and no relevant unfairness would be visited upon the accused.
I am fortified by Judge Tilmouth having reached the same view in R v Barendregt.[91] In a trial by judge alone, his Honour found the accused not guilty of causing serious contrary to s 23 of the CLCA but guilty of the alternative charge of causing harm pursuant to s 24. Defence counsel submitted in his closing address that the judge was not entitled to consider the lesser charge for the reasons advanced by Mr Edwardson in the present case. The submission was rejected. His Honour said:[92]
[91] [2008] SADC 35.
[92] [2008] SADC 35 at [60]-[61].
A submission was mounted by Mr Niarchos for the accused that the medical evidence disclosed “no case to answer” in relation to this count. Whether that is so, is perhaps, a moot point. He submitted that a necessary consequence was that any alternative offence could not be left, had a verdict of acquittal by direction been delivered before the defence embarked upon its case. No authority was cited for such a sweeping proposition. No principle comes to mind suggesting such a consequence and no logical reason for that course, suggests itself.
The fact of the matter is that at common law, or pursuant to s25, alternative offences are available for reasons discussed later. Providing no unfairness to the accused arises, those alternatives would have been left to a jury in the event that a directed verdict of “not guilty” on the s23 charge was delivered. Furthermore, it was plainly the intention of Parliament, embodied in s25, to enable a conviction upon a “specified lesser offence”, if fairly open on the evidence: Byrne v Godfree.[93] That being so, ultimately nothing turns on that point.
[93] (1997) 96 A Crim R 197.
(my underlining)
An acceptance of Mr Edwardson’s argument would be inimical to the interests of justice in that it would prevent a trier of fact from determining whether an accused person has committed a basic offence, (in respect of which there is sufficient evidence to support a conviction), merely because the greater offence was no cased. As Lord Bingham observed in R v Coutts[94] in reviewing the fundamental principles underpinning alternative verdicts:[95]
[94] [2006] UKHL 39, [2006] 4 All ER 353.
[95] [2006] UKHL 39, [2006] 4 All ER 353 at 359-360.
In any criminal prosecution for a serious offence there is an important public interest in the outcome (R v Fairbanks [1986] 1 WLR 1202, 1206). The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved too have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge…
Mr Edwardson argued that a passage in the judgment of King CJ in Benbolt v The Queen[96] supported his submission that self-directed verdicts of acquittal on the aggravated offences at the close of the prosecution case should automatically have prevented the prosecution from proceeding on the alternative basic offences. In Benbolt the accused was tried on a charge of indecent assault. The Court held that the trial judge had erred in failing to leave to the jury the alternative verdict of attempted indecent assault. King CJ considered that the doctrine of autrefois acquit provided another consideration in favour of judges leading to the jury any alternative verdicts which may be open on the evidence. After reviewing the authorities concerning the doctrine of autrefois acquit King CJ said:[97]
[96] (1993) 60 SASR 7.
[97] (1993) 60 SASR 7 at 17.
I think that the authorities which I have discussed establish the following propositions:
1.    A general verdict of not guilty to a count in an information operates as an acquittal not only of the offence charged but of all offences which could have been the subject of alternative verdicts on that count and autrefois acquit may be pleaded in bar to any subsequent charge alleging any such offence.
2.    A verdict of not guilty is a general verdict notwithstanding that the judge may not have left some or all of the legally available alternatives to the jury.
3.    If a jury finds a verdict of not guilty of the offence charged, or a verdict of not guilty of the offence charged and one or more of the legally available alternative offences, but disagrees as to another alternative, there is a partial verdict only, limited to the verdicts of not guilty, and the accused may be tried again on a charge of the offence concerning which the jury disagreed.
4.    A jury is obliged to comply with the judge’s direction to consider alternative verdicts and is not entitled to insist on returning a general verdict.
5.   A jury has the legal power to return any verdict open on the information irrespective of whether it has been left to them by the judge.
Mr Edwardson submitted that, in accordance with para 1 above, a directed verdict of acquittal on an aggravated offence would constitute a general verdict and operate as an acquittal not only of the charged aggravated offence but also of the alternative basic offence.
There is no substance in this argument. The doctrine of autrefois acquit is founded on the principle that a person cannot be convicted for a crime in respect of which he or she has previously been acquitted or could have been acquitted.[98] As King CJ explained in an earlier passage in Benbolt:[99]
[98] See Connelly v DPP [1964] AC 1254 Lord Morris at 1305-1306.
[99] (1993) 60 SASR 7 at 15.
A general verdict of not guilty on a count in an information acquits the accused of the offence charged and of all offences of which he could lawfully have been convicted on the count in the information. If there is a partial verdict only, because the jury has disagreed on an alternative verdict, the acquittal does not operate in respect of the aspect which has not been disposed of by reason of the disagreement: Director of Public Prosecutions v Nasralla [1967] 2 AC 238; R v Hearn [1970] Crim LR 175; Re Shipton [1957] 1 WLR 259. In the absence of a disagreement, however, the verdict of not guilty must be regarded as negativing not only the crime charged but all crimes of which the jury could lawfully have convicted the accused on that information.
In the present case, a directed verdict of acquittal on an aggravated offence would not have automatically negatived the basic offence because the latter was not an offence of which the accused could lawfully have been convicted. The accused could only have been lawfully convicted of the basic offence if it was available for consideration by the trier of fact. In truth a directed verdict of acquittal on an aggravated offence following the close of the prosecution case operates as a ‘partial verdict’ in relation to the element of aggravation. Even where a trier of fact considers an alternative lesser offence, an acquittal on the greater offence does not negative it if the jury are hung on the lesser offence.
In R v Carroll[100] McHugh J explained the public policy considerations underpinning the doctrine. His Honour said:[101]
[100] (2002) 213 CLR 635.
[101] (2002) 213 CLR 635 at 672.
It is a fundamental rule of the criminal law “that no man is to be brought into jeopardy of his life, more than once, for the same offence”. If the prosecution attempts to do so, the accused may plead that he has already been convicted (autrefois convict) or acquitted (autrefois acquit) of the same matter. The rule is an aspect or application of the principle of double jeopardy whose “main rationale ... is that it prevents the unwarranted harassment of the accused by multiple prosecutions”. Policy considerations that go to the heart of the administration of justice and the retention of public confidence in the justice system reinforce this rationale. Judicial determinations need to be final, binding and conclusive if the determinations of courts are to retain public confidence. Consequently, the decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct.
It could hardly be said that allowing the prosecution to proceed on basic offences for which there was a case to answer would amount to ‘unwarranted harassment’. On the contrary, the interests of justice would not be served if the prosecution was denied the opportunity to proceed in relation to them.
The further contention that I should have entered a verdict of acquittal immediately after the close of the prosecution must be rejected. In a jury trial following a successful no case submission the judge will, where there is a further count to go to the jury, generally direct the jury to return a verdict of not guilty immediately on the submitted count, but the judge may wait until the summing-up. However, such a count held over to the summing up cannot be revived by further evidence.[102]
[102] J.B.Bishop, Criminal Procedure, 2nd ed Butterworths at 507; R v Plain [1967] 1 WLR 565 (CA).
In my view this principle applies with equal force where a judge finds that the accused has no case to answer with respect to a charged aggravated offence. The judge may wait until the summing up to direct the jury to a return a verdict of not guilty following their deliberations. Such an approach causes no relevant unfairness to the accused if no further evidence is allowed to revive the aggravated charge.
Mr Edwardson relied on the decision of the Court of Criminal Appeal (SA) in R v MJJ[103] as supporting his two propositions. The appellant was charged, inter alia, with an offence of unlawful sexual intercourse. The complainant gave evidence of the appellant having touched her breasts and vagina but did not claim that the accused had sexual intercourse with her. The trial judge failed to direct the jury to acquit on the charge of unlawful sexual intercourse but left for their consideration the alternative verdict of indecent assault purportedly pursuant to s 75 of the CLCA. This provision empowers a jury to return a verdict of indecent assault if it is not satisfied that the accused is guilty of unlawful sexual intercourse.[104]
[103] (2013) 117 SASR 81.
[104] If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse, or an attempt to commit rape, compelled sexual manipulation or unlawful sexual intercourse, the jury -
(a) is not satisfied that the accused is guilty of the offence charged; but
(b) is satisfied that the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the 'lesser offence'),
the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.
The appellant was convicted of indecent assault. The Court (Kourakis CJ and Vanstone J; Gray J dissenting on this point) quashed the conviction on the basis that the trial judge erred in leaving the alternative verdict of indecent assault.
Kourakis CJ considered that s 75 is premised on there being a case to answer on the charge of unlawful sexual intercourse because only then would the question of the jury’s satisfaction of the guilt of the accused on either the primary or alternative offence arise. His Honour explained:[105]
[105] (2013) 117 SASR 81 at [68].
If there be no case to answer, the jury is directed, as a matter of law, to acquit at the end of the prosecution case. No occasion arises for the jury, at the time it is given the direction to acquit, to consider whether the charge has been proved beyond reasonable doubt, because the jury has been directed that the evidence is incapable of proving the offence beyond reasonable doubt. Moreover, at the time that the jury is directed to acquit, the jury is not, procedurally, in the position contemplated by s 75 of the CLCA to be satisfied that the accused has committed the alternative offence of indecent assault because, at that time, the defence case has not yet been given.
However, Kourakis CJ went on to say:[106]
[106] (2013) 117 SASR 81 at [70]-[72].
I doubt that s 75 of the CLCA allows for a trial to proceed on an uncharged alternative after the Court has ruled that there is no case to answer on the offence charged. Only a strained reading of the text could yield that result.[107] I accept that the very policy considerations on which s 75 of the CLCA is based apply almost as strongly to allow the trial to proceed on the alternative charge when there is no case to answer on the pleaded charge as they do when there is a case to answer on both the pleaded, and the alternative, offence. However, it is by no means absurd to limit the application of the policy to the field of operation so strongly suggested by the text of s 75 of the CLCA, which is when the jury is also considering its verdict on the pleaded count. There are fundamental conceptual difficulties in allowing the alternative to go to the jury when there is no case to answer on the primary charge. It is difficult to see a basis on which a Judge could decline to rule on a no case submission which is not only properly made, but correct as a matter of law. Once a Judge has directed an acquittal on the primary charge at the end of the prosecution case, it is equally difficult to see how the Court could remain seized of the alternative charge.
[107] The provision considered in Byrne v Godfree (1997) 96 A Crim R 197, in which it was held that a trial could proceed on the alternative charge even though there was no case to answer on the pleaded count, is in materially wider terms than s 75 CLCA.
To my mind, the better solution to the conundrum lies in the power of the Court to amend an Information to substitute a count charging indecent assault for the count charging unlawful sexual intercourse.[108] There is an important limitation on the exercise of that power just as there is on the power to return an alternative verdict. The conduct of the accused on which the alternative charge of indecent assault is based must be the same conduct on which the charge of unlawful sexual intercourse was based. If the same conduct, save for the issue of whether that conduct resulted in intercourse, is charged then it can be accepted that the charge of unlawful sexual intercourse in general terms puts the accused on trial for both the pleaded charge and on the lesser alternative of indecent assault.[109] If that is right, then there is arguably a power to amend the charge to plead the alternative if there is no case to answer on the primary offence.   Of course, it may, in a particular case, still be unfair to leave the alternative to the jury.
[108] Ayles v R (2008) 232 CLR 410 at [7] per Gleeson CJ; [50] per Heydon J; [69]; [75] per Kiefel J.
[109] R v Fitzpatrick (1988) 50 SASR 10.
It is not necessary for me to express a concluded opinion on the question of the power of the Court to continue a trial on the alternative of indecent assault when there is no case to answer on the charged count of unlawful sexual intercourse only because there is no evidence that the conduct alleged resulted in penetration. Whatever the position might be in such a case, it is my view that a trial cannot proceed on a charge of indecent assault based on different conduct to that which was the subject of the unlawful sexual intercourse charge.
It is evident from the quoted passages that the Chief Justice did not express a concluded view as to whether a court has the power to continue a trial on an alternative charge available under s 75 in circumstances where the judge has found no case to answer. The basis of his Honour’s decision to quash the conviction was that the provision did not allow for a person to be convicted of indecent assault based on ‘different conduct to that which was the subject of the unlawful sexual intercourse charge’.
Vanstone J agreed that s 75 was premised on there being a case to answer on the charge of unlawful sexual intercourse. She concluded that the appellant was entitled to have the benefit of a directed acquittal on that charge at the close of the prosecution case and that once that occurred s 75 could have no application.[110]
[110] (2013) 117 SASR 81 at [257].
Gray J dissented on the point. He considered that the alternative verdict was available under s 75 and that no unfairness had been caused to the appellant because the indecent assault was implicit in the allegations of charge of unlawful sexual intercourse.[111]
[111] (2013) 117 SASR 81 at [202]-[211].
I do not accept Mr Edwardson’s argument that MJJ is authority for the proposition that upon a finding of no case to answer on an aggravated offence the judge must immediately direct a verdict of acquittal and stop the trial proceeding on the basic offence. No binding view was expressed by the Court as to a trial judge’s power to continue a trial on an alternative lesser charge available under s 75 in circumstances where the judge has found no case to answer with respect to the greater charge and more significantly the Court did not consider the position at common law.
Furthermore, it should be observed that the Chief Justice suggested that where a trial judge concludes that there is no case to answer on a count charging unlawful sexual intercourse ‘the better solution to the conundrum [raised by s 75] lies in the power of the court to amend the information to substitute a count charging indecent assault’. This proposed solution is unnecessary under the common law alternative verdict rule because the elements of the lesser offence are contained in the greater offence. In the CLCA an aggravated offence and its cognate offence are created by the same provision. As in the present case, an information alleging an aggravated offence pleads first the particulars of the basic offence and then separately the alleged element of aggravation. If a no case submission succeeds on the element of aggravation the count, in so far as the basic offence is concerned, remains intact. The Chief Justice’s suggested solution to the difficulties that may arise under s 75 implicitly supports the view that I have reached.
Fairness
Mr Edwardson further submitted that as a matter of fairness the prosecution should not be allowed to rely upon the basic offences because the prosecution did not open on them as alternative verdicts that might arise for my consideration.
It is well established when the prosecution does not open on any alternative verdict, and only attempts to raise it for the first time after the close of the prosecution case and after the judge has intimated that he proposes to rule in favour of a submission of no case to answer on the charges specified in the information, it may then be unfair to permit consideration of the alternatives.[112] An accused person should not be put at a disadvantage by putting an allegation that they have committed another offence.[113]
[112] R v Van Bay Che (1988) 50 SASR 1 at 7 (Perry J)
[113] R v Lillis [1972] 2 QB 236 at 242.
However, as Perry J observed in R v Van Bay Che:[114]
[114] (1988) 50 SASR 1 at 8.
It may not always be necessary for counsel for the Crown to open to the jury on the alternatives, unless in the particular circumstances the jury’s consideration of the evidence might be assisted if they were to be told of all the alternatives at the start. What is important, in order to avoid the possibility of procedural unfairness, is that the accused should be put on notice of precisely what he is facing, before the trial gets underway.
In the present case the accused knew that the prosecution contended that he committed the basic offences because it was essential for the prosecution to prove those offences before he could be convicted of the aggravated offences. The accused has suffered no relevant unfairness.
For the reasons expressed above it was proper in my view to find that the accused had a case to answer with respect to the basic offences and for the trial to proceed on that basis after I had ruled that he had no case to answer with respect to the aggravated offences.