R v Ryan - [2024] NSWDC 274

District Court

New South Wales

Medium Neutral Citation: R v Ryan [2024] NSWDC 274
Hearing dates: 2/7/24, 3/7/24, 4/7/24, 8/7/24
Date of orders: 8/7/24
Decision date: 08 July 2024
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Verdict of Guilty.

Catchwords:
Crime – Judge alone trial – Verdict – Fail to comply with reporting obligations

Legislation Cited:
Child Protection (Offenders Registration) Act 2000

Cases Cited:
O’Neill v Commissioner of Police [2020] NSWSC 1805

Category: Principal judgment
Parties: NSW DPP – Crown
Robert Ryan - Accused
Representation: Mr T Buckingham for Crown
Ms B Kennedy for Accused

File Number(s): 22/328682
Publication restriction: Statutory non-publication of the identity of the complainant. The names of the complainant and her mother have been anonymised.

Judgment on verdict

In referring to the children and their mother in these reasons, I will use pseudonyms, and not their real names, so as to avoid the risk of the children being identified. I will refer to the mother of the children as “Ms Twigg”. I will refer to the older of the two children as “Donna” and to the younger child as “Rachel”.

The charge, and the nature of this trial

The Accused is charged on indictment with a single count in the following terms…

“Between 1 April 2022 and 2 November 2022, at Liverpool in the State of NSW, did without reasonable excuse fail to comply with his reporting obligations as a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW).”

His trial proceeded by Judge alone, pursuant to orders made by Hanley SC DCJ.
In this judgment I record my verdict, and reasons for reaching that verdict.
In reaching my verdict, I must take into account any warning, direction or comment which by law would be required to be given or made to a jury.

Elements of the alleged offence

The Accused is charged under s.17(1) of the Child Protection (Offenders Registration) Act 2000 (“the Act”).
Both the Crown and Defence made submissions about the elements of the offence, which ultimately were essentially consistent with each other.
Having considered those submissions, and s.17 of the Act, I conclude that the elements are as follows:-

That the Accused was a “registrable person” under the Act.

That the Accused was subject to reporting obligations under the Act;

That an obligation arose for the Accused to report a change in his “relevant personal information”.

That the Accused failed to comply with that obligation within 7 days of it arising.

Both the Crown and Defence accept that the offence in s.17(1) is one of strict liability.
However, subsection 17(2A) provides, in effect, that an Accused person will not be guilty of the offence if it is established on the balance of probabilities that they had a reasonable excuse for the failure to comply. Furthermore, subsection 17(3) creates a defence to the charge if it is established (presumably also on the balance of probabilities) that the person had not received notice, and was otherwise unaware of their reporting obligations.

Onus / Standard of proof / Presumption of innocence

The Crown bears the onus of proving the elements of the charge beyond reasonable doubt. The Accused is presumed to be innocent unless and until the Crown satisfies me beyond reasonable doubt of his guilt, by proving to that standard all the elements of the charge.
There is (subject to what I have said about subsections 17(2A) and 17(3) above), no onus on the Accused to prove anything, or to tender, call or give evidence.
The phrase “beyond reasonable doubt” is comprised of ordinary words and represents the highest standard of proof known to our law.

Onus – Standard of proof applicable to the Accused

Where an onus is cast upon the Accused, that onus will be discharged if the Accused establishes the matter on the balance of probabilities – in other words that the matter is more likely than not.

Assessing the evidence / Applying common sense

In assessing the evidence, and in determining whether the Crown has satisfied me of the guilt of the Accused, I must approach the task with an open and unbiased mind, act logically, rationally, and not capriciously. Although in carrying out that task, I should apply common sense, my verdict must be based only on the evidence called in the trial.
In assessing the evidence, I am expected to apply my common sense and general experience in life, and have regard not only to what was said in evidence, but also the manner in which the witnesses gave evidence.

Evidence given by alternate means

The child “Donna” gave evidence by means of CCTV from a remote witness room, and also had a support person present. The fact that she gave evidence in these ways is not a matter which affects the weight that is to be attached to her evidence. I approach her evidence in the same way as I approach the evidence of any other witness.

Circumstantial evidence direction

It was initially submitted on behalf of the Accused that a circumstantial evidence direction is required in this case. I have considered this argument but I do not accept it. The Crown case relies primarily upon evidence of there having been “contact” between the Accused and the child Donna. In order to prove that contact, the Crown relies not on circumstantial evidence, but on direct evidence, that being primarily the evidence of Donna and her mother, and the contents of text messages. The Crown then seeks to rely on this direct evidence of contact to prove that the Accused was “attempting to befriend” the child. In doing so, the Crown does not seek to rely on circumstantial evidence or a circumstantial case, but rather, it seeks to have the Tribunal of fact draw an inference from the direct evidence.
In my view therefore, a circumstantial evidence direction is not appropriate, and would confuse the real issues. In my view, a direction about inferences is sufficient, and appropriate.

Inferences direction

The Crown case involves an allegation that the Accused had contact with a child in circumstances where he was “attempting to befriend the child”. As there is no direct evidence, such as an admission, about whether or not the Accused intentionally engaged in conduct which was aimed at becoming friends with the child, the Crown case relies on me drawing an inference to that effect.
I am entitled to draw inferences of fact from other facts about which I am satisfied. However, I must take care in drawing an inference, and before doing so, I must be satisfied that it is a reasonable or rational inference in the circumstances. Furthermore, where the inference that is sought to be established is an inference consistent with guilt (as in this case) – I must examine that inference with great care, given the criminal standard which applies. Indeed, where (as here) the inference that is sought to be established is an inference consistent with guilt, I must not draw that inference unless it is the only rational or reasonable inference that is available in the circumstances.

Transcripts

A number of audio/video recordings were admitted in evidence, and transcripts of the words purportedly said in those recordings were marked for identification. The evidence however is the sound that is heard on the actual recordings, and any transcript is to be treated by me as no more than an aid.

Anti-bad character direction

The evidence discloses that the Accused has previously been convicted and imprisoned for sexual offences involving children. This evidence however was admitted only to provide relevant background or context, and the evidence must not be used against the Accused in any way. Nor can the evidence be used to support the Crown case.

The Accused’s version upon arrest

When arrested, the Accused said a number of things to police, and these were captured on body worn video (Exhibit 5). In that recording, the Accused did not deny that he had had contact with Donna, but effectively said that he did not understand that he had done anything wrong. Reliance was placed upon this version by Counsel for the Accused in arguing that, even if the Crown established that the Accused failed to comply with his reporting obligations, he had a reasonable excuse for that failure, because he did not understand his obligations to report contact with a child, or did not understand them with sufficient clarity.
Although the version given to police was not on oath, it is a version I must consider. If I accept it, then I would take that into account in determining whether a reasonable excuse has been made out (on the balance of probabilities). However, even if I have some concerns about the reliability of the Accused’s version, but I think it is probably correct, or that there is a reasonable possibility that it is correct, then I would take that version into account, along with any other relevant evidence, as providing some support for the Accused’s argument that he had a reasonable excuse.
If, on the other hand, I do not accept the Accused’s version (that he did not understand his reporting obligations), this does not necessarily mean that I would therefore find him guilty of the offence. Rather, I would simply put aside his version, and focus on the question (firstly) of whether the Crown has proven beyond reasonable doubt the elements of the offence, and if so, then (secondly) whether the Accused has (on the balance of probabilities) established that he had a reasonable excuse for failing to comply with his reporting obligations.

Lie by the Accused

It was submitted by the Crown that the Accused may have told a lie to police upon his arrest when he said “I didn’t invite anyone into my unit”, which was in response to a suggestion by the police officer that the Accused had invited the child Donna into his unit.
The Crown does not however rely upon this alleged lie as evidence of guilt, or as supporting a consciousness of guilt. Rather, the Crown relies on the alleged lie as going only to the credibility of the Accused’s version.
I direct myself therefore, that even if I am satisfied that the Accused told a deliberate lie, this cannot be used as evidence of guilt or as evidence that otherwise supports the Crown case. If it is to be used (and if I first find that it was a deliberate lie) then that use is limited to the credibility of the version given by the Accused upon his arrest.

Right to silence

The Accused after being arrested relied on his right to silence and declined to be interviewed when returned to the police station. The Accused also chose not to give evidence in this trial. He was perfectly entitled to exercise his right to silence in each of these ways.
The right to silence is an important right of all citizens, and the fact that the Accused exercised that right cannot be used against him, or in support of the Crown case in any way.
Nor can it be used to fill any gaps in the Crown case, and I must not speculate about what the Accused might have said if he had been interviewed by police, or had given evidence. The exercise of the right to silence in this way is completely neutral and I must simply disregard it.

THE EVIDENCE

I have considered all of the evidence in the trial. I provide below a summary of some of the more important parts of that evidence.

Ms Twigg

Ms Twigg is the mother of Donna, who was born in 2010. There is no dispute that during the period set out in the charge, Donna was 12 years of age. Ms Twigg also has a much younger daughter named Rachel, who remains in her care, as well as a number of other children who are not in her care, and who were not in her care during the period referred to in the indictment.
In March 2022, Ms Twigg, with Donna and Rachel, moved into residential unit number 1, in a block of units at Castlereagh St, Liverpool. The Accused at that time lived in unit 2 at the same address.
Ms Twigg said that she first met the Accused when she was moving into her apartment, when he came over and said hello. She was with her children and her own father at the time. After that time, she said that she had regular contact with the Accused, which she said was “every day”, and that he would usually be there when she went outside or downstairs. She said that on these occasions, Donna would mostly be with her.
She described one particular occasion when she was “downstairs” with Donna, and the Accused spoke to them about “Tik Tok” and how Donna had been naughty and going behind her mother’s back, and using Tik Tok while Ms Twigg was asleep. She could not recall when this event happened, but she said that during this conversation, the Accused touched Donna on the arm.
Ms Twigg said that at some stage she and the Accused exchanged telephone numbers and that after this they would regularly text each other.
She recalled another occasion, where she said that Donna was helping the Accused wash his car, so as to repay him for some money that Donna had received from him. She said that after the car washing had been done, she saw the Accused place his hand on Donna’s back. She could not recall however, when this car washing incident occurred.
Ms Twigg said that at some stage she spoke to Donna about the Accused touching her, but she could not recall the detail of the conversation, other than that she told Donna it was wrong.
She said that the Accused had asked her if she needed any help with money, and that after this, Donna would go to his unit, to ask to borrow money. She described another specific occasion when there were DVDs outside the unit block, where the Accused had spoken to Donna.
Ms Twigg identified a series of photographs (which became Exhibit 2 in the trial) of text messages between herself and the Accused between 27 August and 16 October 2022.
She was taken to one of those messages dated 27 August, in which the Accused had asked “How busy are you or Donna. I need assistance for about 5 minutes at my car”. She said that in response, she had given the Accused some help, but could not recall if Donna was with her at the time. She identified another series of texts on 14 September 2022, in which the Accused asked whether Ms Twigg was uncomfortable with Donna helping to wash the car, and she said that this related to the occasion when she saw the Accused touch Donna on the back.
She was taken to a message from the Accused dated 29 September 2022, where he asked “Do you want any meat and vegetables”, and she said that there were times when the Accused would provide her with food. She said that the Accused would get food “in a box” and that there was a lot of food, and he would ask if they wanted any. She said this happened more than once.
The witness was taken to an exchange of texts in which she asked to borrow $50 from the Accused, and she said that there were occasions when she borrowed money from him. She also identified some texts that occurred on 5 October 2022, in which the Accused asked “Does yous want a KitKat before bed”, and she said that she recalled Donna going to the Accused’s unit to get the KitKat, but she could not remember when in 2022 this happened. In another message, which was sent on 7 October, 2022, Ms Twigg said “I’m going to give you his (sic) $50 back because I feel bad taking it off you I’m very sorry for asking you for money all the time I shouldn’t be doing it”. She said that this was sent because she “kept on asking too much” (to borrow money) and that the Accused had told her she was not allowed to keep on borrowing all the time. She agreed that on this same day, the Accused had sent her a text asking if she wanted any fruit.
She was also taken to a message from the Accused dated 9 October, in which he said he had placed some “veggies” at her door, and she said this was an example of the Accused providing her with food. She identified another message from the Accused, which was dated 11 October and in which he apparently referred to his offer of some cheese, and in which he said “I thought Donna was coming back or I thought that is what she said”. She said however that she could not remember anything about this occasion.
Ms Twigg was taken to a message from the Accused dated 12 October in which he said “Have I done something wrong. You are not answering my texts. If I have done something wrong say so and I won’t bother you again.” She said, in relation to this message that “We stopped talking to him after that”, because it was getting “too full on” – by which she said she meant “with the food, talking to Donna all the time. Wherever we were he was there. The money, everything.” She said that the last conversation she had with the Accused was downstairs and that she told him “You need to stay away from me and my two girls and leave us alone.”
Ms Twigg also said there was an occasion when the Accused left some shredded coconut at her door, which was for Donna.
She explained that on 1 November 2022, she contacted police about the Accused.

Cross-examation

In cross-examination, Ms Twigg agreed that the Accused had allowed her to use his laundry and washing machine after she moved into the apartment block, as she did not have her own washing machine. She agreed that she would often ask Donna to knock on the Accused’s door to get the laundry key. She also agreed that later in time, the Accused helped her move a washing machine, which had been left behind by a tenant, into her own laundry.
She said, in relation to receiving food from the Accused, that he would knock on her door and leave food at the door. She agreed that Donna would go to the Accused’s apartment to ask for money, and that this was at Ms Twigg’s request.
It was put to the witness that she had not repaid to the Accused some borrowed money, and she agreed with this. She disagreed however that she had become worried that the Accused would become frustrated or angry with her over this. She did agree that the Accused had approached her and asked when she would pay back the money, to which she said she would give him back the money but she did not know when, and that this was the occasion on which she told the Accused to stay away from her and her daughters.
It was suggested to the witness that when police first came to her unit she told them only about the Accused “hassling” her about money, and said nothing about Donna, but she said she could not remember. It was also put to the witness that police had told her that the Accused was a convicted sex offender, but she denied this and said they are “not allowed” to do that.

Donna

The child Donna gave evidence from a remote room, pursuant to a direction made by me on 2 July 2024. Her evidence in chief was given in part by means of a video/audio interview conducted by police on 2 November 2022.
In that interview, Donna said that she had come to speak to police because of the Accused touching her. She described three particular incidents of touching. The first one, which she said happened probably 2 months earlier, occurred when she was downstairs with her mother, and the Accused hugged her by putting an arm around her back. The second time which she said occurred “last month” was when she was “going down with Mum” and the Accused put his arm around her and patted her on the back. In relation to the third occasion, she said that the Accused gave her a “proper hug”, and that this was while she was alone with him in his unit, and they were talking about the seasoning for some food. She said that on this occasion the Accused had asked her to come into his unit, and that she had done so, even though she felt awkward in that it was the “wrong thing to do”. She said that the hug had lasted probably about 5 seconds, and that she was in the Accused’s unit for probably about 2 minutes.
Also in her interview, she said “we do speak to him a lot”, and that “whenever I go downstairs he’s always there”, just walking around, going to his laundry or working on his car. She also said that she had been into the Accused’s unit two other times (apart from the “proper hug” occasion) and that on each occasion the Accused had asked her in. She said that on one of these occasions the Accused gave her a bag of lollies and that on the other he had asked her about using her Mum’s fryer.

In her oral evidence at trial, she said that she could not recall how many times she had spoken to the Accused, but that it was daily, and every day she would go downstairs. She spoke of an occasion, when her mother was also present, where she helped the Accused wash his car, and the Accused wrapped his arm around her shoulder. In relation to the third occasion where he had touched her, she said that she had knocked on his door to ask about “the seasoning”. She said that in relation to the occasion where the Accused gave her lollies, these were “Chupa Chupas”. She said that there were only three occasions where she went into the Accused’s unit, but that she had gone to the door at other times, and that on one of these occasions the Accused had given her a Kit Kat chocolate.

Cross-examination

In cross-examination, Donna said that the first “hug” involved the Accused patting her on the back, and that this was the occasion when they were washing the car. It was put to her that the idea of washing the car was her mother’s suggestion, but she disagreed and said it was the Accused’s suggestion.
She also said that the second touching incident occurred when her mother was present and the Accused had placed his hand on her back. In relation to the touching incident involving a discussion about “seasoning” she said that this related to a food kit that the Accused had given them, where she noticed that the seasoning was missing, and she suggested to her mother that she (Donna) go to the Accused to see if he had any.
She agreed in cross-examination that around this same time she had told the Accused that her mother could not pay back the money she owed him. She said that her mother started “backing away a bit” from the Accused, because she “didn’t want any more money off him”, and that the day before police came, her mother told the Accused “Don’t come near me or my daughters or I’m calling the police”. She said she thought that the Accused was upset with her mother and that her mother was also upset with the Accused.
She was asked in cross-examination whether, when police came to the unit (on 1 November 2022) they had told her that the Accused had been in trouble with police before. To this, she initially said “no”, but later in her cross-examination, she agreed that police had told her something about him being in trouble with them before. She said however that police did not say the Accused had been in trouble for doing things to children.
In cross-examination about the “seasoning” hug, she agreed with the suggestion that it was just a pat on the shoulder and not a “full on hug”. She also agreed that lots of the conversations that she had with the Accused were in the presence of her mother, and that the times that she went to the Accused’s door to borrow something was because she had been asked to do so by her mother. In relation to the three occasions where she had been inside the Accused’s unit, she said the following in cross-examination. That on the occasion where the Accused spoke to her about what he needed for the frying pan, it was he who had asked her to come inside and look at what was needed. She said that when she went into the unit and was given lollies, this was an occasion where she had gone to the Accused’s unit for some other reason. She could not remember however, who it was that suggested she enter the unit when there was discussion about “the seasoning”.

Leading Senior Constable Wyatt Martyn

Officer Martyn attended, along with Constable Mazrahullah, at the premises of Donna and her mother on 1 November 2022, after an issue had been reported by Ms Twigg to the police line. The content of the report was that the neighbour had been giving her child food, and giving the child hugs. He said that they attended the premises on two occasions that day, and that they had been approached by the Accused, and that in one of their conversations the Accused had said that he did not harass or approach Ms Twigg or her daughter.

Cross-examination

In cross-examination, the witness agreed that he could not provide specifics of what he had been told by Donna or Ms Twigg, apart from what was contained on the body worn video recording (Exhibit 3). He said however that he was confident that nothing was said about the Accused’s criminal history, “because of how serious it’s taken within the police and the level of confidentiality that it’s given.”

Constable Megan Green

The final witness in the Crown case was Constable Megan Green. In November 2022, she was employed in the Child Protection Register (CPR) Unit at Liverpool Police Station, and on 2 November 2022, she became the Officer in charge of the investigation in this matter. She explained that the Accused was a registrable person who was managed by the CPR Unit at Liverpool.
She said that after learning of the complaint to police, on 2 November 2022, she and another officer attended at Ms Twigg’s residence, but left a card, as she was not home. At about 5.20pm, Ms Twigg and Donna came to the police station, where an interview was conducted with Donna and a statement was taken from Ms Twigg. At about 7.30pm, she and Sergeant Foster attended the residence of the Accused, and arrested him. This process of arrest, and the conversation with the Accused at the time, was recorded by body worn video, and this became Exhibit 5 in the trial.
An agreed facts document (Exhibit 4) was tendered through Constable Green, which contained (among other things) various documents associated with the Accused’s registration and management under the CPR, and Constable Green was taken through most of these documents. Exhibit 4 and its attachments indicate that the Accused was notified of his status as a registrable person on 2 October 2021, when his reporting obligations were explained to him. Exhibit 4 notes that on certain dates, the Accused provided “relevant personal information” about himself, and information about changes in that information. It notes however that between 1 April 2022 and 2 November 2022, the Accused did not report as “relevant personal information” the name, date of birth, or address of Donna.

Cross-examination

In cross-examination, Constable Green was questioned about her understanding of various provisions of the Act, and the manner in which those provisions were enforced by police. She was asked about things she said to the Accused upon his arrest, including the fact that she told him that (on her understanding) he had to report any contact with a child.

Submissions

Crown submissions

The Crown submitted that the evidence supports the conclusion that the Accused ingratiated himself with Ms Twigg and her family by offering them help, including in the form of food and money. The Crown pointed to the evidence that Donna would frequently attend the Accused’s unit, that she entered his unit (on his invitation) on three occasions, was given a Kit Kat on an occasion when she went to his door, and that the Accused maintained a friendly and caring attitude towards Donna and her family. The Crown also relied on the three occasions where the Accused touched Donna, and argued that this, together with the other evidence supported the inference that the Accused was expressing his care and friendship towards her.
Based essentially on these matters, the Crown submitted that the Court would be satisfied beyond reasonable doubt that the Accused, in having contact with Donna, was “attempting to befriend” her, and that this enlivened his obligation to report his contact, and that in failing to do so, the charge was proved beyond reasonable doubt.

Defence submissions

On behalf of the Accused, it was argued (in part) that in order to prove that the Accused had contact in which he was “attempting to befriend” the child, the Crown has to prove that he had an intent to do so, and that he took positive steps towards achieving that end. It was argued that in order to amount to an attempt to “befriend”, it is necessary to prove more than incidental or one-off contact, and that even regular contact will not be enough if it is just friendly, neighbourly, or superficial in nature. It was argued that the contact needs to be engaged in with a conscious effort to create a relationship which has some element of trust and companionship, and is more than merely neighbourly, or one which involves (for example) idle chit-chat.
Ms Kennedy submitted that the evidence in this case is insufficient to amount to an attempt to befriend the child. She argued that the contact was friendly but superficial, that most of the contact with the child was not at the instigation of the Accused, and that any physical contact, and any occasions where the child entered the Accused’s unit, were not capable of supporting the conclusion that the Accused was “attempting to befriend” her. It was also submitted that there was, during a period of many months, no evidence of the Accused seeking to escalate the level of contact, by for example, inviting the child into his unit to watch television, seeking her telephone number, or inviting her on outings. To the contrary, it was submitted, the evidence points to merely superficial and friendly exchanges which do not indicate any intention to increase the contact to the level of a friendship.
It was further submitted that the text messages between the Accused and Ms Twigg are not consistent with the Accused seeking to befriend Donna, and that none of them were sent to Donna directly, and that those exchanged with Ms Twigg show that the Accused tended to leave items at her door, rather than knocking on the door and engaging with Ms Twigg or Donna.
In relation to the witness Ms Twigg, it was submitted that I would have concerns about her reliability, given her inability at times to recall various matters, and her apparent inability to answer various questions. It was submitted also that her evidence about contact with the Accused may have been “coloured” by information about the Accused’s criminal history which it was argued may have been disclosed to her by police.
Ms Kennedy further submitted that it was necessary for the Crown to point to a particular instance of contact. She submitted that to establish the offence, it is necessary for the Crown to identify the point in time at which the obligation to report arose, by reference to a particular event. It was argued that, as the failure to report must be temporally tied to a specific event, the offence is not an “ongoing” offence, but one that is complete at that time. It was argued that the Crown must prove beyond reasonable doubt “to the day” when the obligation to report arose, and thereby when the Accused failed to comply with that obligation. I will return to this argument later in these reasons.
The submission was also made on behalf of the Accused that even if I was satisfied that the evidence establishes that the Accused “attempted to befriend” the child, I would not find the offence proved, because the Accused had a “reasonable excuse”, as set out in s.17 (2A).

Consideration

As earlier noted, before the Crown can succeed in making out the charge, it must prove beyond reasonable doubt each of the elements of the alleged offence.
There is no dispute about the first element, because it is an agreed fact that the Accused was at the relevant time a “registrable person”.
There is no dispute about the second element, in that the Accused was subject at the relevant time to “reporting obligations”.
There is also no dispute about the fourth element, that the Accused did not report to the Commissioner the name, date of birth and address of the child.
However there is a dispute about the third element – of whether the Accused “failed to comply with his reporting obligations”.
In this regard, it was argued by the Crown that the Accused had “contact” with a child, that in doing so, he was “attempting to befriend the child”, and that this amounted to a change in his “relevant personal information” (within s.9 (1A)) - which he was required to report within 7 days (as required by s.11(1)(b)).
Subsection 9 (1A) is in the following terms:

(1A) For the purposes of this Act, the relevant personal information to be reported by a registrable person also includes the name, date of birth and address of each child (or other means of contacting each child) with whom the person has had contact, but only if the registrable person was—
(a) supervising or caring for the child, or
(b) visiting or staying at a household where the child is present, or
(c) exchanging contact details with the child (including providing the person’s contact details to the child), or
(d) attempting to befriend the child.

Subsection 9 (1B) of the Act provides that for the purposes of subsection 9 (1A), “contact” with a child includes the registrable person having:-

physical contact with the child (including by touching the child or being in very close physical proximity to the child), or
oral communication with the child (including communication that takes place in person, by telephone or by electronic means such as via the internet), or
written communication with the child (including communication that takes place by mail, by telephone or by electronic means such as email).

The Crown’s argument is that, in having “contact” with Donna, the Accused was “attempting to befriend the child”, and that, by reason of the terms of subs.9 (1A)(d), he was required to report the name, date of birth and address of the child to the Commissioner within 7 days.
The first step (or first “limb”) to the Crown’s argument, is the question of whether I am satisfied beyond reasonable doubt that the Accused had “contact” with Donna.
The second step (or second “limb”) is whether I am satisfied beyond reasonable doubt that in having “contact” with Donna, the Accused was “attempting to befriend” her.

Did the Accused have “contact” with the child?

There is no real dispute in this case about whether the Accused had “contact” with the subject child. The evidence about that contact comes primarily from Ms Twigg and Donna.
I have scrutinised the evidence of these two witnesses with care. I am conscious of the limitations of attaching too much weight to the demeanour of a witness. Nonetheless, I was assisted by having the opportunity of observing the two witnesses when they gave evidence. They were both, in my assessment, very unadorned, and plain speaking witnesses.
Ms Twigg is obviously a witness who struggles in various aspects of her functioning. This, as she acknowledged, includes limitations on her ability to read. It was also obvious in observing her give evidence that she is an anxious person and someone who has difficulties with her memory, and with understanding questions unless they are put in very simple terms. She had real difficulties in recalling even approximate dates, and in providing detail beyond the most basic. Her presentation was in many ways almost child-like. Nonetheless, she impressed me as being an honest, unsophisticated and straightforward witness. I did not detect any suggestion that she was attempting to embellish her evidence, or that she was at any time trying to do otherwise than provide her honest recollection. Clearly however, given Ms Twigg’s problems with memory and detail, it is necessary that I approach her evidence with some caution, especially in so far as it relates to dates, times and some other details about which her evidence lacked precision. However, most of Ms Twigg’s evidence (relating to contact between the Accused and Donna) was not the subject of challenge. Furthermore, much of her evidence receives considerable support from the evidence of Donna, and from the text messages in Exhibit 2.
Those text messages show that between 27 August and 11 October 2022, there was regular, friendly or “neighbourly” contact between Ms Twigg and the Accused, and that the Accused was providing a degree of support to Ms Twigg and her family, in the form of food, money and other assistance. The messages also show that there was a degree of mutuality in this relationship, with the Accused at times requesting and/or receiving assistance from Ms Twigg. Furthermore, the messages show that between the same date range, the Accused was also interacting in a friendly and/or supportive way with Donna. For example, in his text of 27 August 2022, he asked for assistance from either Ms Twigg or Donna. In later texts, he asked if Donna wanted a “Kit Kat”, and his text of 11 October 2022 shows that he had engaged in some activity with Donna that day or the previous day.
This evidence is consistent with the evidence that was given by Donna in the trial. Her evidence in chief included the police interview when she was aged 12, and her oral evidence in this trial, when she was aged 14. Although again I am cautious of attaching too much weight to demeanour, it was of assistance to me in having the opportunity to observe her as a witness. In my view, she was a fairly impressive witness, who answered questions in a frank and understated manner. She gave no indication of trying to embellish her evidence, and made appropriate concessions about matters of which she was unsure. In summary, I have no hesitation in accepting her as a witness of truth, and I accept the essence of the evidence she gave.
Having had regard to this, and all of the evidence, I am satisfied beyond reasonable doubt of the following matters:-
Firstly, that almost immediately after Ms Twigg and her children moved into the unit block, the Accused took steps to initiate contact with the family, by introducing himself to Ms Twigg.
Secondly, and commencing almost immediately thereafter, he had regular interactions with Ms Twigg and Donna, in and around the unit block.
Thirdly, that these interactions developed to a stage where the Accused exchanged telephone numbers with Ms Twigg, after which they messaged each other fairly regularly in a “neighbourly” manner, with the Accused often making offers to assist in buying food, and in providing other support to the family.
Fourthly, that as a product of his developing this relationship with the family, and by reason of his close residential proximity, the Accused had regular contact and interactions with Ms Twigg and with Donna. The Accused’s text message of Saturday 27 August 2022 - “How busy are you or Donna. I need assistance for about 5 minutes at my car” is an indication of just how familiar he had become with Ms Twigg and Donna by that stage. Another example is the Accused’s text message to Ms Twigg of 29 September 2022, in which he spoke about being “down” and lonely from time to time. Further examples are his texts of 5 October 2022 at 7.52pm in which he asked “Does Yous (sic) want a KitKat before bed” and another text three days later “Do you want a KitKat”. There is also his text of 10 October 2022 in which he said - “Ask Donna if she wants a KitKat. I know you don’t trust me so you had better come with her if it makes you feel better”.
Fifthly, I am satisfied beyond reasonable doubt that these interactions and contact extended to physical contact with Donna on three occasions. The first occasion was when the Accused patted Donna on the back during the “car washing” incident. I am also satisfied that, as Donna maintained in cross-examination, the car washing occurred at the Accused’s suggestion. Support for her evidence about this comes from the text exchange on 14 September in which the Accused said “If you don’t want Donna to help me wash my car I understand….”, and the response of Ms Twigg “No I am okay with it. I think it’s a good idea her washing your car”. Further support is provided by the text sent by the Accused on 27 August in which he said “How busy are you or Donna. I need assistance for about 5 minutes at my car”. Also, based on the text messages of 14 September 2022, I am satisfied that this car washing incident took place around that date. The second occasion of physical contact was when the Accused, in the presence of Donna’s mother, placed his arm around her and patted her on the back. The third occasion of physical contact occurred when Donna was alone with the Accused inside his unit, when she went there to inquire about the “seasoning”. While Donna initially said this was a “full on hug”, she accepted in cross-examination that it was “possible” that this was just a pat on the shoulder. This concession was made very late on the day when Donna was giving evidence, and at a time when she appeared to be having trouble remaining focussed. I had the distinct impression at that time that she was agreeing with some propositions, just to get the questioning over with. Nonetheless, given the inconsistency between the two versions she gave, I will proceed on the basis that this third incident was limited to touching in the form of a pat on the shoulder.

Sixthly, I am satisfied beyond reasonable doubt that the Accused’s interactions with Donna included three occasions where Donna was alone with the Accused in his unit, as a result of his invitation for her to come inside. One of those involved the Accused inviting Donna inside to get lollies, the second was when the Accused touched Donna’s back when she went to inquire about the seasoning, and the third was when she entered his unit in response to his request to borrow a cooking implement.
Seventhly, I am satisfied beyond reasonable doubt that the Accused’s interactions with Donna included at least one occasion where he gave her chocolate (in the form a Kit Kat), and that this was unexpected, as Donna had gone to the Accused’s door for some other purpose.
Having had regard to these findings, about which I am satisfied beyond reasonable doubt, I conclude that the Accused, over a period of at least several months, had “contact” with Donna. That contact included – oral communication with the child, being in very close physical proximity to the child, and physical contact in the form of touching her, as well as giving her gifts of money and confectionery.

Was the Accused (in having contact with the child) “attempting to befriend” her ?

There is no definition in the Act of the meaning of the phrase “attempting to befriend the child”, or of the individual words “attempting” or “befriend”.
The word “attempt” is a word that has a particular meaning under the criminal law, in the context of a person “attempting” to commit a criminal offence. However, in my view, it would not be appropriate to approach the word “attempting” where it appears in the expression “attempting to befriend the child” in that way. There is nothing in the terms of subsection 9 (1A) which indicates that the word is intended to be interpreted in a manner that isolates it from its position in the phrase “attempting to befriend”. Nor is there any indication in the Act that the provisions are aimed at creating some sort of inchoate criminal offence of “attempt”.
In my view, the words in the expression “attempting to befriend” are intended to have their ordinary English meaning, and I therefore approach them in that way.
According to the Macquarie online dictionary, the verb “attempt” means “to make an effort at; try; undertake; seek”. And, according to that same source, the verb “befriend” means “to act as a friend to; aid”.
According to the Oxford English online dictionary, the verbs “attempt” and “attempting” mean - “to make an effort, to use one’s endeavour to do or accomplish some action”, and the word “befriend” means “to act as a friend to, to help, favour; to assist, promote, further”.
In my view, the words “attempting to befriend the child” in s.9 (1A)(d) are to be interpreted as meaning that the person intentionally engaged in conduct which was aimed at becoming friends with the child.
The question of whether I can be satisfied beyond reasonable doubt that the Accused engaged in conduct that was aimed at becoming friends with Donna involves the drawing of an inference. The Crown says that I would draw that inference, based on all the evidence, and in particular the evidence about the frequency and nature of the Accused’s contact with the child.
As I have earlier set out, I am satisfied beyond reasonable doubt that, very shortly after Ms Twigg and her family moved into the unit block, there developed a relationship between the Accused and Ms Twigg’s family, which involved regular interactions with them. This relationship extended to the Accused exchanging phone numbers with Ms Twigg, after which they exchanged texts fairly regularly. The relationship included the Accused having frequent, almost daily, friendly contact with Donna, when she and the Accused would encounter each other in common areas around their adjoining units. It included the Accused giving or lending money to Donna, and then seeking that she help wash his car, during which the Accused touched Donna on the back. The relationship included the Accused touching Donna physically on two other occasions, one of which occurred when she was alone with him in his unit. None of this physical contact was invited by Donna or her mother. The Accused’s contact with Donna included him giving her chocolate, and Chupa Chup lollies, and offering her chocolate on at least one other occasion. Again, none of these actions were invited by Donna or her mother. And the relationship involved the Accused inviting Donna into his unit, where he was alone with her, on three occasions. The relationship included also the Accused’s actions in providing material assistance to Donna’s family generally, in the form of money and food, and the use of his laundry and washing machine, these being actions which also indirectly provided benefits to Donna.
I accept the submissions made on behalf of the Accused that “attempting to befriend” requires more than incidental or one-off contact, and requires more than just regular friendly but superficial contact. I agree that it requires more than just being “neighbourly”, or can be made out merely on the basis of a relationship involving “idle chit chat”.
However, the conduct of the Accused which I have set out above cannot be described as merely superficial or incidental, or as being only “idle chit chat”. Rather, the Accused’s conduct was constant, and was not aimed only at Ms Twigg. It included, over a period of some months, conscious and deliberate efforts to engage directly with, and create a friendship with, the 12 year old child, by having frequent friendly exchanges with her and her mother, by giving her money and confectionery, by touching her, and by inviting her into his home.
The Crown case, as I have earlier explained, relies on drawing an inference. Where, as here, the Crown invites the Court to draw an inference of guilt, that must be the only rational or reasonable inference. Having examined the evidence with care, I am satisfied beyond reasonable doubt that the Accused had contact with Donna, and that in doing so, he was attempting to befriend her.
It was argued by the Accused that in order to make out the offence, the Crown must prove “to the day” when the obligation to report (contact with a child) arose. While I accept that s.11 of the Act requires a registrable person to report any changes in relevant personal information within 7 days, the argument presented on behalf of the Accused is in my view overly technical. The approach advocated by the Accused might have some merit in a case where an accused’s contact falls within paragraphs (a), (b) or (c) of subsection 9 (1A), because those paragraphs refer to discrete events such as “supervising or caring for” a child, “visiting or staying at a household where the child is present” or “exchanging contact details” with a child.
In this case, however, the Crown, in the absence of any admission or other direct evidence that the Accused was “attempting to befriend” the child, relies on the combined effect of the Accused’s contact to support an inference that he was “attempting to befriend the child”. In such a case, it would be artificial to require the Crown to rely, in effect, upon a single “specific event”.
What must be proved is that there was a “change in the person’s relevant personal information”, and that the person did not report that change (as required by s.11(2)(b)) – within 7 days after the change occurred.
In this case, the change in the Accused’s relevant personal information was that he had had contact with a child in circumstances where (as I have found) he was “attempting to befriend” that child. In those circumstances, the Act required that within 7 days he report to the Commissioner of Police the child’s name, date of birth and address (or other means of contacting the child): s.9 (1A) and s.11.
I have earlier said that “attempting to befriend” a child requires proof that the person intentionally engaged in conduct which was aimed at becoming friends with the child. The question of whether an accused has engaged in such conduct is a question of fact, which will depend on the circumstances of the particular case. In some cases, the “attempt to befriend” might be demonstrated by a single act, for instance where a person approaches a child and says “let’s be friends”. In such a case, the Act would appear to require a registrable person to report that contact to the Commissioner of Police within 7 days.
In other cases, of which this case is an example, the registrable person’s conduct may be less overt. It may involve a process. That process might commence with some incidental contact, such as the child being present during interactions between the person and the child’s parents. That process might develop into one where the child and the registrable person become more familiar with one another by reason of the frequency and nature of the contact. In some cases, this process might evolve over days, but in many or most cases, it is likely to involve weeks or months. Also, while it might sometimes be the case that the registrable person has the intention, from the outset, to attempt to befriend the child, and engages from the outset in conduct with that aim, it is possible that in other cases, the intention to befriend, and conduct aimed at that object, does not arise until later in time.
Based on the evidence in the matter now before the Court, there arises a strong suspicion that the Accused engaged in conduct aimed at befriending Donna soon after he met her. But I do not consider that I can draw that inference beyond reasonable doubt.
However, I am satisfied, beyond reasonable doubt, that by no later than 11 October, 2022, the Accused had had contact with Donna which amounted to him intentionally engaging in conduct which was aimed at becoming friends with her. I have reached this conclusion based partly on the Accused’s text message of 11 October 2022, which in part said - “I thought Donna was coming back or I thought that is what she said”, which demonstrates that the Accused had had contact with Donna on that day or the previous day. The conclusion I have reached - that in having contact with Donna on 10 or 11 October 2022 in circumstances where the Accused was “attempting to befriend” her, is based not only on my consideration of the events of 10 – 11 October 2022, but on all of the evidence, and in particular, the Accused’s regular contact with Donna over a period of months, his giving or lending money to her, seeking that she help wash his car, touching her physically, asking her into his unit, and giving her confectionery.
I am satisfied beyond reasonable doubt therefore, that by no later than 11 October 2022, there had been a change in the Accused’s “relevant personal information” in that he had had contact with a child who he was attempting to befriend. I am further satisfied beyond reasonable doubt that the Accused failed to report that change in “relevant personal information” to the Commissioner of Police within 7 days.

Did the Accused have a “reasonable excuse” for failing to report?

The Accused has argued that even if the Court reached the conclusion that he failed to comply with his reporting obligations, the Court would nonetheless be satisfied that he had a “reasonable excuse” for that failure.
The onus of proving a “reasonable excuse” lies with the Accused: s.17(2A). However, the standard of proof that is cast upon the Accused is the balance of probabilities.
Subsection 17(2) sets out various matters to which the Court is to have regard when determining whether a registrable person had a reasonable excuse for failing to comply with their reporting obligations. I have had regard to those matters, as well as the specific submissions made on the Accused’s behalf.
In support of his claim to having a “reasonable excuse”, the Accused pointed to the following matters:-
First, that as Fagan J said in O’Neill v Commissioner of Police [2020] NSWSC 1805, the Act imposes on a registrable person onerous obligations to report a long list of personal particulars and a host of other data. It was submitted that the observations made by Fagan J illustrate the complexity of the obligations.
Secondly, it was submitted that, relevantly to the current trial, further complexity arises “from the introduction of subjective assessments such as the concept of ‘attempting to befriend’”.
Thirdly, reliance was placed on the evidence of Constable Green, who gave evidence in the trial, and was previously employed in the Child Protection Register Unit at Liverpool Police Station. It was submitted that even this officer, who had received training, and had worked in the CPR unit, was “unable, when asked, to correctly explain the reporting obligations in relation to contact with a child”. There is some merit in this submission, because Constable Green was of the understanding that any form of contact with a child must be reported, whereas subsection 9 (1A) provides that only certain types of contact need to be reported.
Fourthly, it was submitted that the Accused had a history of being compliant and cooperative with his reporting obligations, and that this was consistent with a person making a genuine attempt to comply, and consistent also with a genuine understanding that his contact with Donna was not reportable. In further support of this submission, it was argued that if the Accused had believed he was in breach of his reporting obligations, it is unlikely that he would have voluntarily provided his mobile phone and access code to police, knowing that it contained some details of his contact with a child.
Fifthly, it was pointed out that the Accused had reacted with apparent surprise at his arrest for failing to report, expressed confusion about what he had done wrong, and volunteered, against his interests, that “I speak to all of them” (ie., children). He also said that he thought that he did not have to report “brief contact” with a child. These aspects, it was argued, are consistent with his stated belief that his contact with Donna was not of a type that needed to be reported.
Based on these matters, and the various matters referred to in s.17(2), it was argued that the Court would be satisfied on the balance of probabilities that the Accused’s failure to comply with his reporting obligations was due to his failing to understand, or understand adequately, the nature of those obligations. Submissions were also made on the Accused’s behalf about the contents of some of the reporting obligation documents that were signed by him (attached to Exhibit 4). It was argued that parts of these documents did not state the obligations of a registrable person correctly, and that parts of the documents described police powers incorrectly.
I have taken all of these submissions into account. I make the following observations about the Accused’s claim to having a “reasonable excuse” for failing to comply with his reporting obligations.
Firstly, there is no suggestion that the Accused, by reason of his age, or any cognitive or other mental condition, was compromised in his ability to understand instructions, provided they were conveyed to him in reasonably clear terms.
Secondly, the Accused on 6 October 2021, signed the “Explanation of Conditions” document (Exhibit 4, Annexure C) in which he indicated (at paragraphs 26-27) that he understood that he had to report any contact with a child within 7 days. This represented an over-statement of the Accused’s obligations under the Act, because he was actually only required to report contact that occurred in certain situations. However, this error does not really assist the Accused in his claim to having a “reasonable excuse”, because the effect of this exaggerated description of the reporting obligation was that (in order to comply with it) the Accused ought to have reported any contact with Donna, regardless of whether or not he was “attempting to befriend” her.
Thirdly, there is the fact that, after 6 October 2021, the Accused attended the police station to report changes to his relevant personal information on three occasions before his arrest (21 October 2021, 23 November 2021, and 16 August 2022). This evidence demonstrates that the Accused understood, and remained conscientious about, at least some important aspects of the reporting obligations which had been explained to him.
Fourthly, there is the fact that on the morning of 11 October 2022, the Accused attended Liverpool Police Station, and was provided with the annual “Form 3” notice explaining his reporting obligations. That same day, the Accused made his annual report of relevant personal information, in which he made no mention of contact with any child. Furthermore, and also on that same day, the Accused signed an “Explanation of Conditions” document, in which he indicated that he understood all of the contents, including the following:-

26. If you have contact with any child, you must tell police within 7 days of that contact. Do you understand that ? (Answer - “yes”)
27. Contact is:
a. supervising or caring for the child,
b. visiting or staying at a house where children are present,
c. exchanging contact details with the child, or
d. attempting to befriend the child.
Do you understand that? (Answer – “yes”)
Contact includes:
physical contact, including touching and being near a child,
oral communication with the child whether it is in person, by telephone or by electronic means,
written communication with a child whether it be by mail or electronic means.
Do you understand that ? (Answer – “yes”)

Significantly, it was at 10am that same day that the Accused signed an “Acknowledgement form” in which he confirmed that his reporting obligations had been explained to him. And it was on that very same day, at 5.42pm, that the Accused sent to Ms Twigg a text message which read in part “I thought (Donna) was coming back or I thought that is what she said”. As I have earlier found, this text message demonstrates that the Accused had contact with Donna either on 10 or 11 October, 2022.
Having regard to the various matters which I have set out above, which include the fact that the Accused had had contact with Donna either the day before, or on the very same day that he attended the police station for his annual review, I am satisfied that the Accused understood his reporting obligations at all times that he had contact with Donna.
It follows that I am not satisfied on the balance of probabilities that the Accused has established a reasonable excuse for failing to comply with his reporting obligations. In fact, I am satisfied beyond reasonable doubt that he well understood those obligations, and that his failure to disclose to the Commissioner his contact with Donna was an intentional one.
I find the elements of the offence proven beyond reasonable doubt and I convict the Offender of the offence.

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Decision last updated: 08 July 2024

Medium Neutral Citation:	R v Ryan [2024] NSWDC 274
Hearing dates:	2/7/24, 3/7/24, 4/7/24, 8/7/24
Date of orders:	8/7/24
Decision date:	08 July 2024
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Verdict of Guilty.
Catchwords:	Crime – Judge alone trial – Verdict – Fail to comply with reporting obligations
Legislation Cited:	Child Protection (Offenders Registration) Act 2000
Cases Cited:	O’Neill v Commissioner of Police [2020] NSWSC 1805
Category:	Principal judgment
Parties:	NSW DPP – Crown Robert Ryan - Accused
Representation:	Mr T Buckingham for Crown Ms B Kennedy for Accused
File Number(s):	22/328682
Publication restriction:	Statutory non-publication of the identity of the complainant. The names of the complainant and her mother have been anonymised.