R v Spargo
[2025] SADC 95
•25 July 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SPARGO
Criminal Trial by Judge Alone
[2025] SADC 95
Reasons for the Verdicts of her Honour Judge Matteo
25 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
The defendant is charged with two counts of making a communication with the intention of procuring a child to engage in, or submit to, sexual activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA), which offences relate to two different complainants. The defendant elected to be tried by judge alone.
On the prosecution case, the defendant made an electronic communication with the complainant the subject of each charge. The prosecution did not produce evidence of the electronic communications themselves. The prosecution relied upon the evidence of the complainants (and, in the case of count 1, other witnesses) to establish the effect of the communications.
The identity of the sender of the allegedly offending communication is in issue with respect to each count.
The prosecution contends that the similarities in the complainants' accounts raise the improbability of each complainant having independently fabricated, imagined or mistaken their allegations of receiving an offending communication from the defendant.
Held:
1. The evidence of the communications the subject of counts 1 and 2 is not cross-admissible.
2. The prosecution has not proved beyond reasonable doubt that the defendant sent the communications the subject of counts 1 and 2.
Verdicts:
As to counts 1 and 2: not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 63B(3)(a) and 63B(7)(b); Evidence Act 1929 (SA) ss 34M(3), 34P(2)(a), 34P(2)(b) and 34P(3), referred to.
R v Symons [2018] SASCFC 48; R v C, CA [2013] SASCFC 137; McRoberts v The King [2024] SASCA 92; Sexton v The Queen [2022] SASCA 73; Slape v The Queen [2022] SASCA 91, considered.
R v SPARGO
[2025] SADC 95Introduction
Dwaine Kenneth Spargo (‘the defendant’) is charged with two counts of making a communication with the intention of procuring a child to engage in, or submit to, sexual activity, contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The alleged offences relate to two different complainants. The defendant pleaded not guilty and elected to be tried by judge alone.
The particulars of the offences with which the defendant is charged are as follows:[1]
Count 1
Particulars
Dwaine Kenneth Spargo between the 1st day of January 2012 and the 30th day of June 2013 at Port Augusta, made a communication with the intention of procuring [KJB], a person under the age of 17 years, to engage in, or submit to, sexual activity.
Count 2
Particulars
Dwaine Kenneth Spargo between the 1st day of March 2017 and the 31st day of December 2017 at Roxby Downs, made a communication with the intention of procuring [PM], a person under the age of 17 years, to engage in, or submit to, sexual activity.
[1] Information Revision 2, filed 28 July 2023 (FDN 30).
The prosecution case in overview and issues arising
On the prosecution case, the defendant was a person with some familial connection to each complainant, but not a close relationship. In respect of each offence, the prosecution alleges that the defendant made an electronic communication with the complainant constituting the actus reus of the offence: in the case of KJB, by text message (count 1), and in the case of PM, by the Snapchat application (count 2).
KJB is the defendant’s niece. She alleges that when she was aged around 15 or 16 years, she made contact with the defendant by text message enquiring about a mobile phone which he was selling. She alleges that, by way of response, the defendant sent her a message to the effect that she could send him ‘nudes’ or sleep with him in lieu of payment for the phone.
PM used to live next door to the defendant’s sister. She alleges that when she was aged 15, the defendant added her on the Snapchat application and, not long after doing so, sent her a message asking her for ‘nudes’ and indicating that he would pay her money for them.
The prosecution has not produced evidence of either communication in the form of a record of the communication itself; rather, the prosecution seeks to prove the making of the communication in each instance by evidence of witnesses’ recollections of the form and content of the communication concerned. Therefore, on the prosecution case, the allegedly offending communications may only be described by their import or ‘gist’.
In respect of each offence, there is an issue as to whether the defendant is proven to the requisite standard to have been the person who made the subject communication. Further, in relation to count 1, it is in issue as to whether, at the relevant time, the complainant KJB was a child under the age of 17 years, or whether it is reasonably possible that she had already attained that age.
Elements of the offence
In order to prove the defendant’s guilt of an offence of making a communication with the intention of procuring a child to engage in, or submit to, sexual activity, the prosecution must prove each of the following elements of the offence beyond reasonable doubt:
1.The defendant made a communication.
2.The defendant did so with the intention of procuring a child under the prescribed age in relation to the defendant to engage in, or submit to, a sexual activity.
In respect of each offence charged, the prescribed age of a child in relation to the defendant is 17 years.[2]
[2] CLCA s 63B(7)(b).
‘Sexual activity’ can include the sending of explicit photographs.[3]
[3] R v Symons [2018] SASCFC 48 at [3]-[6], [12].
Principles of law to be applied – general legal directions
The defendant is presumed to be innocent of the offences. The defendant bears no onus. The prosecution bears the onus of proving the guilt of the defendant beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the defendant is possibly or probably guilty. The prosecution must exclude as a reasonable possibility any matter raised by or on behalf of the defendant which might affect proof of a charge.
I am to bring an open and unprejudiced mind to my consideration of the evidence and the ultimate question of whether the offence under consideration is proved by the prosecution beyond reasonable doubt. I am to consider the evidence and arrive at verdicts without sympathy for, or prejudice against, any party involved in the proceedings.
I am to give each offence separate consideration.
In assessing the evidence given by witnesses in the trial, I am to consider both their truthfulness and their reliability in determining whether I can rely upon the evidence given. I may also consider how the evidence of a witness fits with other evidence I find proved. I may accept or reject all or part of a witness’s evidence.
In respect of the witnesses KJB and PM who gave evidence with special arrangements in place, I do not allow those arrangements to influence the weight that I give to the evidence of those witnesses, nor do I draw any adverse inference against the defendant from the fact that those arrangements were in place.
I draw no inference against the defendant for exercising his right to remain silent at trial. I do not treat the defendant’s silence as constituting any admission or as a makeweight for the prosecution’s evidence.
I shall indicate further specific principles of law which I am to consider and apply in the course of my consideration of the evidence.
The prosecution case on count 1
Evidence of KJB
KJB was born on 8 July 1997, and therefore turned 17 on 8 July 2014.
KJB’s father is DJB, the half-brother of the defendant.[4] KJB has one older sister, CM, and two younger sisters.
[4] DJB and the defendant have the same mother, DB, but different fathers.
KJB was born in Port Augusta. At the age of four or five, KJB and her family moved to Craigmore, where they lived with her maternal grandmother, DB, DB’s partner and the defendant. After about one year, KJB and her family returned to live in Port Augusta. KJB gave little evidence about the defendant during the time she lived in Craigmore, saying only that he was roughly around 10 years old, possibly older, and that he lived in a caravan in the back yard. It is an agreed fact that the defendant was born on 8 June 1988,[5] therefore making him nine years older than KJB. KJB gave no evidence about the nature and extent of any contact or interactions which she had with the defendant while living in Craigmore. After leaving Craigmore and returning to Port Augusta, KJB said that she did not really have any contact with the defendant.
[5] Agreed facts (exhibit P1).
As to a resumption of contact with the defendant, KJB said that she just remembered him ‘randomly coming up to [DB]’s one time for Christmas’.[6] She could not recall what year it was, but said that she thought that she was ‘15, 16’[7] and that she and her partner, EJ, were living with her older sister, CM, at the time. It will be necessary to return to the significance of this detail in the course of analysing the timeline relating to receipt of the subject communication.
[6] T13.
[7] T13.
KJB said that all that she remembered about this Christmas was that she had a conversation with the defendant because he was at her grandmother’s house. The conversation was about a brand new phone which the defendant had at the time.
Some time after Christmas – ‘like a month apart’[8] – KJB contacted the defendant because he had an iPhone up for sale on Facebook, which she saw come up. It was implicit in KJB’s evidence that the iPhone was the new phone which the defendant had at Christmas. She said that this was at a time when ‘the iPhones first started to become very popular’.[9] At the time, KJB herself had a Samsung flip-phone, which was not a smartphone, and which required the user to switch between the text message inbox and sent box in order to follow a text message trail.
[8] T15.
[9] T14.
KJB made contact with the defendant by sending him a text message asking if she could buy his iPhone from him. KJB said that the defendant’s response to her enquiry was to ask who was awake in the house. She said that she replied that there was nobody awake in the house. KJB gave evidence that the exchange continued as follows:[10]
AI then got a response from Dwayne saying that I could send nudes or sleep with him instead of paying for the phone.
QAnd what was your response to that.
AI replied and said that he was my uncle and he shouldn’t be asking for that sort of stuff from me.
QI should’ve asked – those words you told us, those requests that were made of you about the nude pictures and sleeping with the accused, are they the precise words that you remember or are you saying what your general sense of those messages were.
ASo, I don’t remember it exactly word for word, but I do know it was along the line – like, he was asking for nudes or for me to sleep with him.
QWere there any further messages exchanged after you responded in the way that you told us you responded.
AAfter I said he shouldn’t be asking for them messages, for photos and stuff like that, he then said that nobody had to know.
[10] T16.
KJB said that she showed CM the messages, and that CM said not to stress about it because it was getting on at this stage, and that they could speak to their father in the morning. I interpolate that CM was not called to give evidence.[11] I am not to speculate about what evidence CM would have given had she been called. The prosecution did not seek to rely upon KJB’s evidence of showing the messages to CM as evidence of the making of an initial complaint of an alleged sexual offence pursuant to s 34M(3) of the Evidence Act 1929 (SA) (‘Evidence Act’).
[11] The investigating police officer gave evidence that CM was spoken to as part of the investigation, but that she did not provide a statement: T73.
KJB could not recall whether she showed the messages to EJ that night, or if he saw them in the morning. She said that she recalled asking EJ to take her to see her father in the morning. KJB’s evidence of showing CM and possibly EJ the messages is only relevant to an explanation of what transpired the following day, namely, that DJB was alerted and a confrontation of the defendant took place. I do not use KJB’s evidence of showing the messages to CM to support KJB’s evidence concerning the content of the messages.
KJB said that the following day, she and EJ went to her father DJB’s house and showed him the messages. She said that the three of them then went over to her grandmother DB’s house. In cross-examination, KJB said that no forewarning of this visit was given and that they ‘just rocked up there’.[12] KJB said that DB and the defendant were present when they arrived, and that they all sat around a table where KJB showed DB the messages that the defendant had sent her. KJB said that the defendant ‘tried to say that he was talking about a friend, but there was no mention of a friend’.[13] She explained that the defendant said that he was not asking her for nudes and to sleep with him, but that he was talking about one of her friends. KJB said that the defendant did not know any of her friends.
[12] T29.
[13] T17.
As to the timing of her receipt of the messages the subject of her evidence, KJB said, relative to asking EJ to take her to her father’s house the following morning, that EJ had ‘just got his Ps at this stage’.[14]
[14] T17; ‘Ps’ taken to refer to provisional driver’s license.
KJB was cross-examined closely as to her memory about her age at various points and her time estimates generally. KJB asserted (or repeated) with a level of confidence that she received the subject messages when she was ‘roughly around 15 or 16’.[15] She asserted that she remembered that she was with (as in, in a relationship with) EJ at the time. KJB said that she did not know what age the defendant was at the time of seeing him at the Christmas preceding receipt of the messages.
Timeline of relationship between KJB and EJ
[15] T21.
In cross-examination, the following timeline of KJB’s relationship with EJ was established:
1.KJB met EJ through friends. They just talked as friends for a while, and started officially dating a few months after that.[16]
2.EJ had his Ls[17] when they got together.[18]
3.About six months after KJB and EJ started dating, they moved in with KJB’s parents. KJB and EJ lived with KJB’s parents for about two years.[19]
4.KJB and EJ ceased living with KJB’s parents following a disagreement concerning the living arrangements, as a result of which KJB and EJ went to live with CM.[20]
5.KJB and EJ had been living with CM for a number of months before she received the subject messages.[21]
6.KJB and EJ were together for seven years.[22]
[16] T24.
[17] Taken to refer to learner’s permit.
[18] T24.
[19] T24.
[20] T24-25.
[21] T25.
[22] T21.
As can be seen, KJB relates her receipt of the subject messages to the time when she and EJ were living with CM and to EJ having ‘just got’ his Ps. For reasons which I will elaborate upon, those two events are temporally disconnected given the date on which EJ says that he got his Ps (around his 17th birthday on 11 December 2011) and the timeline of KJB and EJ’s relationship which had been ongoing for over two and a half years by the time of the receipt of the messages. In short, if EJ had his Ls when he and KJB started officially dating and got his Ps at around the age of 17, the adding of over two years to account for the period in which the couple lived with KJB’s parents before living with CM means that EJ could not have ‘just got’ his Ps a few months into living with CM.
Ultimately, KJB agreed in cross-examination that receipt of the messages possibly occurred in 2014.
In re-examination, KJB stated (necessarily incorrectly) that EJ got his Ps when he was 16 years old. She emphasised that she knew that when they first got together EJ had his Ls and that he had to wait for his birthday to be able to get his Ps. She described him being ‘only new to having his Ps’, which I took from an earlier question to relate to the occasion of EJ taking her to her father’s house following receipt of the subject messages. This re-examination did not resolve the incongruity in the witness’s evidence about the messages being proximate to EJ getting his Ps and while living at CM’s house over two years later. Re-examination of the witness did not in any way address the concession that the messages were possibly received in 2014.
Memory of the subject messages
In cross-examination, KJB acknowledged that she did not remember what the messages from the defendant said word for word, but said that she remembered the effect of them. She acknowledged that at the time, she did not spend a long time looking at the messages; she said that she just sort of read them, replied and did not want to look at them again. It was give or take ten years before she was asked by police to think about the messages again. KJB agreed that she said to police in 2022 that, ‘I went through all of my Facebook Messenger messages, and there were no messages between Dwayne and I, so the messages would have been over text’.[23] KJB conceded that this statement to police indicated that she was not initially sure that the subject messages were in the form of text messages until she had checked Facebook, but stated that she remembered that they were text messages. She also emphasised that she knew that they were text messages because she recalled at the meeting the following day trying to show her grandmother her replies but being unable to get into the sent box on her phone.
[23] T28.
As to the last mentioned matter, it emerged in cross-examination of KJB that, in addition to showing DB the text messages which the defendant had sent her, KJB also tried showing DB the text message replies which she had sent, but that she was unable to do so due to the age of the phone. She said that ‘if the sent box got overloaded, it would delete automatically’,[24] therefore, she was unable to show DB any of her reply messages. In cross-examination, KJB both agreed that the defendant denied having sent her any messages, and claimed that he said that the messages were meant about a friend. It is difficult to understand how those two propositions can stand together, however, the matter was not explored further or clarified. KJB also said that at the meeting, DB said that the defendant was talking about a friend. In re-examination, she said that DB made this statement after the defendant had said the messages related to a friend.
[24] T30.
Ultimately, KJB maintained in cross-examination that the messages asked for ‘nudes’ and for her to sleep with the sender. She said, ‘I don’t know how it was exactly written, but I do know those words were in there.’[25] She disagreed that it was possible that she misunderstood the messages or that she had a false memory about what they said.[26]
[25] T27.
[26] T31.
Evidence of EJ
EJ is the former boyfriend/partner of KJB. His date of birth is 11 December 1994, therefore he turned 17 on 11 December 2011. It may be seen that he is about two and a half years older than KJB. EJ said that he was about 16 years old and KJB was about 14 years old when they started having in relationship. He said that at the start of the relationship, he was just getting his license, meaning he was ‘getting [his] Ps soon’.[27]
[27] T49.
EJ gave evidence that he met the defendant at family gatherings, but that he did not know him well. He did not elaborate on the timing or nature of any of his interactions with the defendant.
EJ said that he and KJB lived together at KJB’s parents’ house, before moving to live at CM’s house. EJ did not give evidence in chief about the timing of these arrangements, other than to say that he thought he was at KJB’s parents’ house when he got his Ps (a matter about which he gave contradictory evidence in cross-examination, and to which I shall return).
EJ gave evidence that he and KJB were living at CM’s house when he became aware of an exchange of messages between KJB and the defendant on the topic of the purchase of a phone, which occurred the night before a visit with KJB’s father to the defendant’s mother’s house where the defendant was confronted. EJ gave evidence that he in effect observed the message exchange in real time while he was laying next to KJB in a bedroom at CM’s house and KJB showed him the messages. EJ said of the messages which he saw:[28]
So, there were some text messages which [KJB] was trying to buy a phone off him. There was, yeah, a few texts back and forward and then [KJB] was trying to ask him a price, so, how much, and then he started talking about photos, which we weren’t sure what he meant, and [KJB] showed me the messages and sort of just kept going along with it a little bit to – so made sure, like, that’s what he meant, and then he, yeah, said it a couple of different ways.
[28] T50.
EJ said that he could not remember the exact words used, but they were ‘along the lines of ‘Send pictures and I’ll give you the phone’.’[29] When asked if the messages said anything about the type of pictures, EJ said ‘nude pictures’.[30] EJ said that KJB was pretty angry in response to receiving these messages. He was pretty sure she told her parents, but said that he did not remember much from that night.
[29] T51.
[30] T51.
As to the timing of this event, EJ was unable to say what year or what time of year it was.
EJ gave evidence that the following day, he and KJB went to KJB’s parents’ house, before going over to DB’s house ‘to talk about it’.[31] It was implicit in EJ’s evidence that those who attended were himself, KJB and DJB; he was unable to recall whether ‘her’ (presumably referring to KJB’s) sister was there.[32] EJ was not asked, and did not say, whether the defendant was present, though in cross-examination he said that the defendant was definitely there.
[31] T52.
[32] T52.
EJ gave evidence that at that meeting, DJB explained to DB what had happened, and he believed that DB was shown the messages on KJB’s phone. EJ’s evidence in chief on the topic of the meeting was very brief and, for the most part, lacking in detail.[33]
[33] T52.
In cross-examination, EJ said that he thought that DJB might have telephoned ahead of the meeting to advise that they were coming. He said that he was just there for support and not part of any planning as to what was to occur. He agreed that his recollection as to precisely who was present was a bit hazy. He agreed that DJB said that he wanted to explain to DB what had happened, but could not recall whether DB asked to look at the defendant’s phone. EJ said that DB looked at both KJB and the defendant’s phones. With respect to KJB’s phone, and contrary to the evidence of KJB, EJ said that there was no problem with showing DB the reply messages sent by KJB. EJ said ‘there was a bit going on’.[34] EJ’s evidence on the topic of what transpired at this meeting struck me as uncertain, beyond the fact that a meeting took place. That being so, I have difficulty accepting his assertions about what, if any, phones were inspected.
[34] T56.
EJ gave no evidence about the defendant making any statement in the course of the meeting.
As to the timeline of his relationship with KJB, EJ said that he got his Ps at 17 years of age (therefore, some time on or after 11 December 2011) and that he and KJB started going out as boyfriend and girlfriend just before he got his Ps. He said that they went out for up to six months before moving in with KJB’s parents, and that they lived there for a couple of years before moving to CM’s house. I observe that, consistent with KJB’s evidence, there was an approximate period of two and a half years from around the time EJ got his P’s in late December 2011 or early 2012 before the messages were received (when they were living with CM). Thus the timeframe comes close to KJB’s 17th birthday in July 2014.
Evidence of DJB
DJB is the father of KJB. DJB’s mother is DB and his father has the surname ‘B’.[35] The defendant is DJB’s half-brother, having a different father with the surname Spargo.
[35] Being the same surname as KJB, DJB and DB.
DJB confirmed that he and his family moved from Port Augusta to Craigmore and back to Port Augusta when KJB was a child. I will not set out DJB’s evidence about the timing of these movements as I do not consider that it assists in resolving the key issue relating to the date on which the subject messages were received by KJB, and neither counsel submitted that historical movements were capable of bearing on this issue.
DJB gave evidence about the premises he was residing in when he became aware of an allegation of the defendant sending KJB messages. As I understood DJB’s evidence, the family moved into these premises when KJB was about 14 years old and he lived there for at least four years. It follows, on DJB’s evidence, that he became aware of the messages when KJB was aged between 14 and 18 years old.
DJB said that he became aware of the messages when KJB was 14 years old, in year nine at school and ‘going down the boyfriend track at that age’,[36] which he wasn’t happy about.
[36] T65.
DJB said that he became aware of the messages on an occasion when he came home from work and his wife and KJB were at the front door, and his wife said he needed to read some messages. DJB’s evidence was that the messages included:[37]
‘I’d love you to come and play with this, this would make you happy’, ‘Come and catch up and you wouldn’t believe what I could do for you’ and ‘I’d love you and it would be great for you to come and play with my dick and you wouldn’t believe what I could do for you’.
[37] T62-63.
DJB said that he rang his mother to say that he was coming over and to make sure that the defendant was there. He said that he and KJB then went to his mother, DB’s house, where they sat down at a table under the back veranda. DB called the defendant out. DJB said that he gave his mother KJB’s phone and that she ‘went through the messages’.[38] DJB said that DB then asked the defendant for his phone, instructed him to insert his PIN number and then ‘looked through the phone and she couldn’t see no messages from that phone at all to [KJB]’s phone’.[39] On DJB’s account, DB said, “Well, what can I do?”, and that was apparently the end of the matter.
[38] T61.
[39] T61.
With respect to the timeline of KJB and EJ’s relationship, DJB’s recollection was that they were not together very long, however, he acknowledged that due to the passage of time he may be mistaken about that. DJB explained that he was a truck driver and was away for a lot of his children’s lives. He had no recollection of KJB and EJ going to live with CM. Ultimately, DJB allowed for the possibility that he became aware of the messages a couple of years after KJB and EJ started going out as boyfriend and girlfriend.
Evidence of DB
DB is the mother of both DJB and the defendant.
DB gave evidence, in answer to leading questions from the prosecutor, that she lived at nominated premises in Port Augusta ‘between around 2011 and 2013’, and that a ‘family meeting’ about messages allegedly sent by the defendant to KJB took place at those premises.[40]
[40] T82.
As to the meeting, DB said that DJB and KJB came over. She did not think the defendant was there. She said that KJB ‘tried to show [her] messages on her phone that she was supposed to have received, but she couldn’t show [her] one message’.[41] DB was further questioned about KJB’s attempt to show her messages and gave evidence as follows:[42]
[41] T82.
[42] T82-83.
QYou said that you weren’t shown any messages. Could you tell us were you handed the phone to look at messages, or could you just tell us how it came that you weren’t shown messages and the discussion around that.
AJust where they come in and [DJB] said about with [KJB] getting messages on her phone, and then, like, I said ‘Well, show me the messages’ but she couldn’t show me one, one that was on there.
QDid she hand the phone to you, or did that not occur.
ANo.
HER HONOUR
QWhat did you mean when you said to me earlier that [KJB] tried to show you the messages on her phone.
AWell, she reckoned every time she got a message come – every time a message come in, those or whatever was on her phone would go off or something, I don’t know. I really didn’t get to – yeah. But when they were putting across that what she was supposed to have had on her phone and whatever, but she could not show me one, one that was on there, with a message that –
QIn what way did she try to show you.
AWell she was just saying that she can’t – that the messages are not on there so she can’t show me, yeah.
XN
QJust on from that, was there anything that [KJB] did in trying to show you the messages that you can remember.
ANo.
In cross-examination, DB said that she was not sure when the family meeting took place.
The prosecution case on count 2
Evidence of PM
PM was born on 18 February 2002. She grew up in Port Augusta. Between the ages of 10 and 15, PM lived with her father at a nominated address. CB,[43] the defendant’s sister, lived next door.
[43] Having the same surname as KJB, DJB and DB.
PM said that she knew the defendant as CB’s brother, and that the defendant would visit CB’s house ‘every now and then’.[44] PM did not know the defendant too well.[45]
[44] T34.
[45] T35.
At the age of 15, in 2017, PM moved to Roxby Downs, where she lived for six years.
PM gave evidence that in 2017, when she was 15 years of age, some months after she had moved to Roxby Downs, the defendant added her on Snapchat. PM said that his name came up as ‘Dwaine [B][46]’, and she recognised the surname – she thought it was CB’s brother. Being ‘added’ on Snapchat, PM explained, involved receiving a request to connect on the platform. PM had a Snapchat account at the time, and she accepted the request to be added.
[46] The same surname as CB.
PM said that the defendant (‘Dwaine [B]’) sent her a Snapchat message saying, ‘Hey, how’re you going?’ She was pretty sure that he said that he remembered that she lived next door to his sister. PM did not remember responding to that message, and said that not long after the initiating message, ‘he asked [her] for nudes and said that he would send a hundred bucks for it’.[47] PM blocked him right after, and so the messages did not continue.
[47] T37.
In cross-examination, PM agreed that the person who had communicated with her said that they were 30-something. She said that in order to create a Snapchat account, one needed to choose a user name and supply an email or phone number. She said that there was no way of accessing Snapchat messages after a period of time.
Further, in cross-examination, PM accepted that when she lived at the nominated address, her school friends knew where she lived, but she said that they did not come over.
Evidence of the police investigation – relevant to counts 1 and 2
Detective Brevet Sergeant Benjamin Hall took over the investigation from the previous investigating officer, Andrew McKinlay, who had since left the South Australia Police.
On 31 March 2022, police conducted a search of the defendant’s home address in Port Augusta, at which time a number of electronic devices were seized. Those devices were submitted to the Digital Evidence Section, which has the capability to extract contacts, messages, phone calls and photographs from mobile devices. A review of the defendant’s electronic devices yielded no evidence of value.[48]
[48] T73.
Detective Brevet Sergeant Hall gave evidence that each of CM and CB had been spoken to as part of the police investigation, and that neither had provided a statement.
Discreditable conduct – evidence across counts – similarity of account reasoning
The Director of Public Prosecutions filed a notice of intention to adduce discreditable conduct evidence in two categories for uses that relied upon propensity,[49] but did not advance either item of evidence for such a purpose at trial.
[49] Evidence Act 1929 (SA) s 34P(2)(b); Notice of Intention to Adduce Discreditable Conduct Evidence, filed 28 July 2023 (FDN 27).
The prosecution did, however, urge upon the court a process of reasoning whereby the evidence of the communication the subject of count 1 is admissible in determination of count 2, and vice versa, by invocation of similarity of account or improbability reasoning.
The defendant made no application for the charges to be tried separately.
In closing, the prosecutor submitted to the effect that, assuming that collusion or contamination as between the complainants is excluded, the similarities in their accounts are such that they raise, as a matter of common sense and experience, the improbability of each complainant having independently fabricated, imagined or mistaken their allegations of receiving a request for nude photographs from the defendant. I understood the prosecution to be submitting that similarity of account reasoning was applicable in proof of the identity of the maker of each communication, and their subject matter.
Where improbability reasoning is invoked, s 34P(2)(a) of the Evidence Act is engaged, such that the evidence constituting one count upon another may be admitted for a permissible use only if the probative value of that evidence outweighs any prejudicial effect it may have on the defendant.[50] In determining that question, regard must be had to whether the permissible use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.[51]
[50] Sexton v The Queen [2022] SASCA 73 at [117]; McRoberts v The King [2024] SASCA 92 at [31].
[51] Evidence Act, s 34P(3).
In R v C, CA, Kourakis CJ explained the rationale for improbability reasoning as a basis for the admissibility of the evidence of multiple complainants across charges of sexual offences as follows:[52]
The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury.
The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other.
[52] R v C, CA [2013] SASCFC 137 at [57]-[58].
Kourakis CJ summarised the question governing the admissibility of similarity of account evidence as being whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect.[53] His Honour added:[54]
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication… The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
[53] R v C, CA [2013] SASCFC 137 at [61].
[54] R v C, CA [2013] SASCFC 137 at [65].
In Slape v The Queen, the Court of Appeal, comprising Doyle, Bleby and David JJA said:[55]
The narrative accounts need not be strikingly similar to attain the requisite probative force. But in considering similarities in the narratives of the allegations made, the focus must be on the “peculiarity and detail” of those narrative accounts, rather than features that are commonplace and unremarkable. As the High Court said in Phillips v The Queen:
The similarities relied on were not merely not “striking”, they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with his conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.
[55] Slape v The Queen [2022] SASCA 91 at [58].
I mention briefly the evidence led by the prosecution, which I accept, negating any realistic prospect of collusion between KJB and PM. At the time of the trial, KJB was living in an area in the Northern Territory some 900 km from Darwin, and had been since about 2019. She provided a statement to police when she was in the process of moving to that location and after she was contacted by a police officer. KJB said that she knew of PM as someone who used to live next door to her father’s sister, CB, when she (KJB) was about 15 or 16 years old and they would kick a ball out the front of CB’s house. She had no contact with PM after that time and no discussion with PM about her evidence.
PM said that she knew KJB as someone who used to occasionally attend CB’s house. PM had no contact with KJB before speaking to the police. PM came forward to the police with her allegations after her (unidentified) friend came forward in relation to ‘inappropriate communications’ with the defendant.[56]
[56] T39, 41.
To the extent that there are similarities between the accounts of KJB and PM concerning the circumstances and content of communications believed by them to have been made by the defendant, I am satisfied that those are not the product of collusion between them or a process of subconscious contamination of recollection.
The similarities of account on which the prosecution relies in support of improbability reasoning are as follows:
1.That in each instance the defendant ‘leveraged’ an established familial connection with the complainant.
2.The same sexual activity was requested of each complainant insofar as ‘nudes’ were requested.
3.In each case the request was sudden.
4.In each case the request was ‘transactional’ in that the request was for sexual activity in exchange for something of value.
Item 1 assumes that the defendant was the sender of the subject messages, and therefore raises the improbability of the complainants giving similar accounts unless messages of the type they describe were actually received. Items 2-4, on the prosecution case as I understand it, additionally show a modus operandi which raises the improbability of two different offenders committing the offences in a very similar manner.
As the evidence of the complainants is sought to be relied upon in support of similarity of account reasoning, the focus of the analysis of the similarities in their accounts must be on the circumstances of the offending as described by each and the degree of similarity in their accounts.[57] While the circumstances of a complainant’s relationship with the defendant is not always irrelevant, what is important is how the relationship features in a complainant’s narrative of the alleged offending.[58]
[57] McRoberts v The King [2024] SASCA 92 at [39].
[58] McRoberts v The King [2024] SASCA 92 at [52].
As to the nature of the relationship between the defendant and each complainant, assuming for the purpose of this analysis that the defendant sent the subject communications, I do not consider that the evidence rises to the level of the defendant ‘leveraging’ an established familial connection in doing so. KJB was his niece who he recently encountered at a Christmas gathering and PM was his sister’s former neighbour. The evidence about each complainant’s relationship and interactions with the defendant was limited. Although a familial connection to the defendant can be identified, in the case of PM, it is quite removed. The evidence allows for a conclusion that each complainant was a person who the defendant happened to have at some point been acquainted with. I do not detect any aspect of the complainants’ narratives of the alleged offending which involves a positive or distinctly discernible ‘leveraging’ of the relationship, as the prosecution put it.
A difficulty in the prosecution reliance upon similarity of account reasoning in proof of identity in this case is that the prosecution submission effectively assumes that the defendant was the sender of the communications based upon the respective assertions of the complainants, in circumstances where identity is in issue.
The method by which each communication was made was different, one being via text message and the other being via Snapchat. The only commonality between the methods of communication is that (presumably) a mobile phone was used. This is a neutral and benign feature.
The prosecution characterisation of each communication as ‘sudden’ is to be seen in the different context in which each arose: in the case of KJB, the communication was essentially responsive to her making contact with the defendant for an express purpose (to enquire about purchasing his phone), whereas in the case of PM, the initiating communication was unsolicited. The most that can be said is that, once electronic contact was made, the request for sexual activity occurred without much further dialogue.
The request for ‘nudes’, particularly given that the mode of communication was from electronic device to electronic device, cannot in my opinion be characterised as unique – that is to say, I do not regard it as being the sort of similar detail which would make independent concoction improbable. The ‘transactional’ component is distinct in each case (exchange of phone for sale versus money) and is differentiated by the means by which it came up (in the context of a purchase initiated by the complainant versus an unsolicited offer of money). It is not unusual that a request for material of the type meeting the definition of ‘nudes’ would be accompanied by some encouragement in the form of an offer of something in return. It is also significant that the request was not limited in each case to ‘nudes’; in the case of KJB, on her account, there was also a request for physical sexual activity which is absent in PM’s account of the communication which she received.
I do not consider that there is a high degree of similarity of detail in the accounts of KJB and PM rendering it improbable that they could have independently fabricated, imagined or be mistaken about their accounts about receipt of the subject communications. At essence, each communication involved an electronic request for naked pictures (or ‘nudes’), which I consider to involve a base level of similarity that one might expect in a case of independent concoction. The requests arose in circumstances which involved discernible differences going to the alleged offending itself which seem to me to dilute the similarities which do exist. Upon a fulsome consideration and comparison of the respective accounts of KJB and PM as to the nature of the communications received and the circumstances in which they received them, I do not consider that the base level of similarity which relates to the request for ‘nudes’ outweighs the prejudicial effect of the evidence which, as Kourakis CJ observed in R v C, CA, lies in the antipathy to a defendant which multiple allegations may engender, and the potential for the tribunal of fact to be distracted from any defects and frailties in the evidence bearing directly upon the individual offences charged.[59]
[59] R v C, CA [2013] SASCFC 137 at [61]; and see Slape v The Queen [2022] SASCA 91 at [67].
I do not consider that the evidence of the communications the subject of counts 1 and 2 is cross-admissible on the basis of similarity of account or improbability reasoning. Accordingly, I decline to admit the evidence of the communications across counts, and I will not use the evidence for the purpose of evaluating the improbability of KJB or PM independently fabricating, imagining or being mistaken about their accounts about the receipt or content of the communications, or the identity of the sender.
Consideration – count 1 – communication with KJB
I start with an assessment of the evidence of KJB. I found KJB to be an honest witness insofar as it appeared to me that she was endeavouring to give evidence in a frank, unembellished and straightforward manner. KJB’s preparedness to acknowledge the limitations and frailties of her memory with the passage of time particularly underscored for me her commitment to providing the court with truthful evidence. I accept both that KJB was doing her best to recall the content of the communications, and that the communications left her with a strong impression which supports her recollection of the gist of what they stated or sought to convey. The objective fact is that KJB was called upon to give evidence about events, in particular her recollection of written words received via an electronic medium, which occurred as far back as 12 years earlier, and no less than a decade earlier. The words constituting the message(s) were not saved or otherwise recorded and are not available for independent evaluation.
On the whole, KJB’s evidence was relatively brief and not attended by significant amounts of detail. This was most pronounced in her description of her relationship and interactions with the defendant, which was rather cursory. Defence counsel makes the point, and it is a point well-made, that there is no evidence which contextualises or explains in any way how it is that, having not really had contact with the defendant from when she was a child living in Craigmore, after a conversation at a Christmas gathering, KJB would have the means of contacting the defendant by text message. It is not to say that it is impossible for KJB to have acquired the defendant’s mobile phone number, but there is no evidence of how she acquired it, why, whether she otherwise used it or if it was in the contacts of her own mobile phone. There is no evidence of KJB’s mobile phone number representing a contact on any of the defendant’s devices at the time of seizure, or of communications between their respective numbers having occurred. KJB’s evidence really involved a bare assertion that she made contact with the defendant by text message.
I make the observation that it is unusual that the defendant would make a communication asking for or suggesting sexual activity with his younger niece in the total absence of any preparatory or insinuating conduct, or evidence of any sexual interest, towards her. That is not to say that a sexual communication can never come entirely out of the blue; it is simply to highlight that on the evidence before me there is so very little material from which I can evaluate the nature and nuances of the relationship between the defendant and KJB. KJB’s account is simply that, having not long before conversed with the defendant about him having a new phone, and after becoming aware that he had put the phone up for sale on Facebook, she texted him about purchasing it, leading him to send her a message saying that she could send nudes or sleep with him instead of paying for the phone.
Digressing for a moment to consider the evidence of EJ, who confirms in a general way the receipt of incoming text messages to KJB’s mobile phone which related initially to the purchase of a phone then moved to a request for nudes, I make the observation that EJ, like KJB, simply asserts, without a clear basis for doing so, that the messages were from the defendant. As to the content of the messages, EJ does not support the aspect of KJB’s account that the communication included a suggestion of sleeping with the sender in possible exchange for the phone. It is unexplained, and unclear to me, what EJ meant when he asserted that KJB ‘just sort of kept going along with it a little bit’.[60] If, as he explained, that meant that KJB was checking the meaning of the messages, that detail does not find clear equivalent reflection in the evidence of KJB, who says that she replied that he was her uncle and should not be asking for ‘that sort of stuff’ from her. That implies remonstration, not going along with it.
[60] T50.
As to the content of the messages, I doubted the accuracy of DJB’s evidence on the topic of what he says he saw when they were brought to his attention. It is very difficult to reconcile his claim of messages including reference to, ‘come and play with my dick’, with what KJB and EJ consistently observed of the messages involving a request for nude pictures. Other than to confirm a sexual connotation, the evidence of DJB about the content of the messages does not assist me in evaluating their content or import. DJB’s evidence was that he got angry and frustrated on seeing the messages. As much is perfectly understandable in the context in which they were shown to him, that is, with a complaint that they had emanated from his brother to his daughter. There is no reason to think that DJB studied the messages. I allow for the possibility that DJB’s understandable anger and frustration may have clouded his perception or later recollection of what the messages themselves said. I prefer the evidence of KJB and EJ as to the content and import of the messages which they viewed, to that of DJB.
The content, import and context of the messages which were incoming to KJB were such that they led to KJB bringing them to the attention of DJB, and DJB in turn seeking a confrontational meeting with the defendant. That such a meeting transpired the following day, at least involving DJB and the defendant’s mother, tends to support that the messages observed by KJB, EJ and DJB were unequivocally sexually suggestive in nature.
As to what transpired at the meeting at the home of DB, it is difficult for me to make reliable factual findings as the evidence of all witnesses in attendance differed in some marked respects. The witnesses in attendance are consistent about KJB and DJB attending, and having a conversation with DB on the topic of alleged messages sent by the defendant to KJB. Of this much, I am able to be satisfied.
I am inclined generally to accept KJB’s evidence that the defendant was present at the meeting and that she showed DB the incoming messages on her mobile phone. It stands to reason that KJB, feeling aggrieved at the receipt of messages of the kind which she describes from her uncle, and having informed her father of the matter, should have wanted to convey her grievance in a way that included the showing of the messages to her grandmother, or at least an attempt to do so. I found KJB’s evidence about being unable to access her sent box messages to be compelling as a facet of how her Samsung flip phone at the time operated, and I detected an understandable and rational sense of frustration in the witness that she was unable to present those parts of the communication exchange to her grandmother. For similar reasons concerning the importance and memorability of the meeting to KJB personally, I accept her evidence that the defendant was present. No suggestion to the contrary was made to KJB. It is supported by DJB and the defendant’s presence at the meeting was, after all, key to DJB’s purpose in attending at his mother’s house for a meeting in the first place. I accept EJ’s evidence that he (EJ) was present at the meeting; as he saw himself as being there to support KJB, it is not a significant matter detracting from the defendant’s presence that EJ did not initially mention him being present. I note that he was not specifically asked about the defendant’s presence in evidence in chief, and that he said in cross-examination that the defendant was there.
I accept KJB’s evidence that, in apparent response to her showing DB the messages which the defendant allegedly sent her, the defendant tried to say that he was talking about one of her friends. For reasons which I have indicated, I consider that KJB was interested and invested in the outcome of that meeting so far as the making of her allegation was concerned. KJB’s evidence of the defendant making a response to the allegation while the message was presented to his mother rang true to me; it was a matter that KJB had naturally to have been interested in, and which was memorable to her. Her evident frustration at being unable to bring up her own return messages, which, if they were as she described them could have put paid to the friend claim, fits in with that scenario.
I found DB’s evidence about what took place at the meeting to be uncertain and unpersuasive. DB was not a confident witness. Her evidence was given in the briefest of terms with little detail to convince me that she had a reliable memory of what had transpired. It is striking, given the subject matter which was raised, that DB could not recall whether her son, who was the subject of the allegations, was even present. I gained the impression that DB wished above all to convey to me that KJB could not show her any incriminating message, having given evidence that KJB tried to show her messages on her phone that she was supposed to have received. When pressed for an explanation or description of what KJB did to try and show her messages on her phone, DB’s response, which related to KJB saying that the messages were not on there, did not really enable me to understand what took place. It is possible that the witness was referring to KJB’s inability to retrieve any of her sent box messages, but her evidence was not confined in this way or at all. I am not prepared to act upon DB’s evidence as establishing that there were no incoming messages on KJB’s phone because insofar as she asserted that KJB could not show her any message, I am unclear based on her account of what, if anything, transpired in furtherance of KJB attempting to do so. I found DB’s evidence to be too uncertain and lacking in coherent detail to be reliable.
The civilian witnesses to count 1 gave evidence of events occurring about a decade earlier. Their memories have admittedly faded and, as such, certain details are unable to be recalled or recalled with clarity. This has impacted the defendant’s ability to test their allegations, particularly concerning the electronic form, content and timing of the communications underpinning the charge. The communications have not been produced, and no evidence was presented about the existence or retrievability of KJB’s historical electronic communications. The defendant’s devices were seized for analysis over a decade after the charged period, and no evidence was presented as to what date range use of those devices pertained to. I accept, and take into account in determining whether the prosecution has proved count 1, that the defendant has been placed at a disadvantage in testing the prosecution case due to the passage of time such as it has apparently led to a loss of any relevant electronic evidence.
Based upon my evaluation and assimilation of the evidence of KJB, EJ and DJB, I am satisfied beyond reasonable doubt that there was an occasion when KJB and EJ were living with CM when KJB received an incoming text message from a number which KJB believed to be associated with the defendant in response to her enquiry about purchasing a mobile phone. I am satisfied beyond reasonable doubt that the incoming text message constituted or involved a request for KJB to send naked photographs of herself (or ‘nudes’) to the sender of the message in lieu of payment for the mobile phone. I am unable to be satisfied beyond reasonable doubt that the message made express reference, or clearly alluded, to KJB sleeping with or engaging in an act of sexual intercourse with the sender of the message, as this aspect is not supported by EJ who viewed the messages, and for whom a detail of that nature would be expected to be memorable as he was himself in a relationship with KJB at the time.
I consider that there is a high degree of probability that the defendant was the person who sent KJB the message requesting naked photographs in lieu of payment for a mobile phone, however, I find myself unable to be satisfied of that matter beyond reasonable doubt. As I have explained, there is extremely limited evidence substantiating or contextualising KJB’s assertion that it was the defendant who she was text messaging with at the relevant time. That assumes a particular significance in a case such as this where there is absolutely no electronic, digital or telecommunications evidence confirming the fact or means of an exchange as alleged. KJB is the only witness to link the defendant to the sale of a phone through the Christmas conversation, and the only witness to his apparent admission in the family meeting conversation to having sent a message to her (in reference to a friend). Whilst I generally believe KJB when she asserts that she was communicating with the defendant and that he made an acknowledgement of the text, the passage of time and complete lack of evidence to support KJB in these regards leaves me with a shadow of a doubt about whether the defendant made the communication the subject of count 1.
Moreover, I hold a doubt as to whether, at the time of the communication the subject of count 1, KJB was under 17 years of age. As I have sought to illustrate in my summary of the evidence of the prosecution witnesses on the topic of the timeline of the relationship between KJB and EJ, the life event of EJ getting his Ps (on or shortly after 11 December 2011) cannot stand in close temporal proximity to the couple living with CM when the text message was received, because the couple came to live with CM some two and a half years into the commencement of their relationship, which can be timed no more precisely than when KJB was about 14 years old. As both KJB and EJ agreed that there was a period of months, up to 6 months, before they moved in with KJB’s parents, that they lived with KJB’s parents for two years and that they were at CM’s house for a couple of months or more before the message was received, the timeline projects into 2014, and KJB turned 17 in the middle of that year. KJB conceded that the message could have been received in 2014, which cannot stand with her assertion that she was as young as 15, but may be consistent with her being 16. As I am unable to exclude the possibility of the message being received in 2014 after KJB turned 17, I hold a doubt that KJB was under the prescribed age in relation to the defendant.
The doubt which I hold regarding the age of KJB at the time of receipt of the text message communication about sending ‘nudes’, in conjunction with the doubt which I have about whether the defendant sent the communication, amounts to a reasonable doubt that the defendant is guilty of the offence. The law obliges me to give the defendant the benefit of that doubt.
I find the defendant not guilty of count 1.
Consideration – count 2 – communication with PM
I found PM to be an inherently honest and forthright witness, and I found her account to be clear and intelligible. Based upon her evidence, I am satisfied that in 2017 or 2018, when she was 15 or 16 years of age, she received a request from an entity on Snapchat utilising the name ‘Dwaine [B]’ to add her, and that she accepted that request leading to some limited messaging which effectively commenced with an enquiry about how she was. I am satisfied that shortly after, the entity utilising the name ‘Dwaine [B]’ sent PM a message asking her for ‘nudes’ in exchange for one hundred dollars. Thereafter, PM blocked that user and did not communicate further with them.
I am satisfied that PM genuinely believed that the message from ‘Dwaine [B]’ was from the defendant, however, the mere assertion of her belief does not prove that the defendant was the person who made the offending communication.
On the evidence before me, as given by PM, the only requirement for the creation of a Snapchat account involves the selection of a user name and the supply of an email or phone number. There is no evidence before me about whether email or phone number details are checked, substantiated or in any way linked to the user name details. It follows that any person could have created the Snapchat user account with the name ‘Dwaine [B]’. That the person remarked remembering the PM lived next door to his sister does not reveal esoteric knowledge which only the defendant, or some limited group of people, could have had.
As with count 1, the prosecution case on count 2 suffers from a lack of any electronic, digital or telecommunications evidence establishing or supporting that the defendant engaged with PM via the Snapchat platform. There is no independent evidence of the defendant being a user of that platform.
I am entirely unable to be satisfied that the defendant made the communication which PM received from the ‘Dwaine [B]’ Snapchat account. The prosecution has not proved beyond reasonable doubt that the defendant made the offending communication.
I find the defendant not guilty of count 2.
0
5
0