R v Symons

Case [2018] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SYMONS

[2018] SASCFC 48

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)

12 June 2018

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION

Appeal against convictions of unlawful sexual intercourse by a person in authority, two counts of procuring a child to engage in sexual activity (in one case by a person in authority) and six counts of causing or inducing a child to expose her body by a person in authority.

The appellant was a volunteer State Staff Officer (Grade 4) working in the State head office in the major events section of St John Ambulance.  His responsibilities included planning certain major events. 

In April and August 2012, the appellant engaged in Facebook conversations with the first complainant A.  A was a St John volunteer and was 16 and 17 years old at the time of the conversations respectively.  The subject matter of the conversations included sexual matters.  These conversations were the subject of count 1 procuring a child to engage in sexual activity and count 3 procuring a child to engage in sexual activity by a person in authority.

In August 2012 the appellant and A engaged in sexual activity in the appellant’s car.  The complainant gave evidence, disputed by the appellant in cross-examination, that the appellant inserted fingers in her vagina.  This was the subject of count 2 unlawful sexual intercourse by a person in authority.

In October 2012, at the request of the appellant, A sent to him by Facebook three photographic images of her naked.  This was the subject of counts 4 to 6 causing or inducing a child to expose her body by a person in authority.

In 2013 during a St John event, the appellant and A engaged in a sexual activity.  This was the subject of count 7 sexual intercourse with a child under 18 by a person in authority.  The trial Judge acquitted the appellant on this count because it was likely that the incident occurred after A turned 18.

In May 2013, at the request of the appellant, the second complainant B sent to him by Snapchat three photographic images of her naked. B was a St John volunteer and was 17 years old at the time.  This was the subject of counts 9 to 11 causing or inducing a child to expose her body by a person in authority.

The appellant appeals or seeks permission to appeal against the convictions on the following grounds:

1.    In respect of the counts of procuring a child to engage in sexual activity, the Judge erred…

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R v Symons [2018] SASCFC 48
Case
[2018] SASCFC 48
Decision Date

CaseChat Overview and Summary

The appellant, R, appealed against convictions for various offences, including procuring a child to engage in sexual activity, causing or inducing a child to expose her body, and unlawful sexual intercourse. The dispute centred on the interpretation of "sexual activity" and "exposing" under the *Criminal Law Consolidation Act 1935* (SA), and whether the evidence supported the verdicts. The appeal was heard by Kourakis CJ, Kelly and Blue JJ.

The court was required to determine several legal issues. Firstly, whether purely verbal communications, specifically "sexting" via Facebook, could constitute "sexual activity" for the purposes of procuring a child under section 63B(3)(a) of the Act. Secondly, whether the electronic transmission of images of naked body parts to the appellant amounted to an act of "exposing" under section 63B(1)(b)(i). Thirdly, whether the appellant held a position of authority for the purposes of certain charges. Finally, the court considered whether the verdict for unlawful sexual intercourse was unreasonable or unsupported by the evidence.

The Full Court allowed the appeal in part. It found that the trial judge erred in concluding that the Facebook communications alone constituted "sexual activity" as contemplated by the Act, noting that the judge had not provided reasons for construing "sexual activity" to extend to pure communications and had found that the exchanges did not amount to sexual activity from the complainant's perspective. Consequently, the convictions on counts 1 and 3 (procuring a child to engage in sexual activity) were set aside, and verdicts of acquittal were substituted. The appeal was dismissed in respect of all other counts.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appeals and seeks permission to appeal against the convictions on the following grounds:1.In respect of the two counts of procuring a child to engage in sexual activity, the Judge erred in finding that: (a) the term “sexual activity” as used in section 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (the Act) can be satisfied by purely verbal communications; (b) the communications that were the subject of the counts amounted in the circumstances of the case to sexual activity within the meaning of that provision.[4]2.In respect of the six counts of causing or inducing a child to expose her body, the Judge erred in finding that:(a) sending of an electronic image of naked parts of the body to the appellant via the Internet can constitute an act of “exposing” as used in section 63B(1)(b)(i) of the Act;(b) the actions of the complainant the subject of each count amounted in the circumstances of the case to exposing.[5]3.In respect of the eight counts in which it was alleged that the appellant was in a position of authority, the Judge erred in finding that the appellant was in a position of authority for the purpose of proof of those counts.[6] 4.In respect of the count of unlawful sexual intercourse, the verdict of guilty was unreasonable or incapable of being supported having regard to the evidence.[7][4] Ground 3 - permission to appeal granted.[5] Ground 5 - permission to appeal granted.[6] Ground 4 - permission to appeal granted.[7] Ground 1. The ground is expressed as being that the verdict was “unsafe and unsatisfactory” but this does not accord with the language of section 353 of the Criminal Law Consolidation Act 1935 (SA) - permission to appeal referred to Full Court.Background The appellant was born in 1987. He was engaged as a volunteer by St John between 2000 and 2014 (when he became an employee of St John). In April 2012 he was promoted to the rank of State Staff Officer (Grade 4) working in the State head office in the Major Events section as an Event Planner. An Event Planner had responsibility for planning a major event. This included deciding which St John staff would attend the event (considered in further detail below); and in some cases deciding the specific roles to be performed by St John attendees (in other cases roles were assigned by the Event Commander or by the Event Planner and Event Commander in conjunction). In some cases the Event Planner also performed the role of Event Commander or another commanding or supervisory role on the day of the event but in other cases the Event Planner did not attend the event. St John staff were almost entirely volunteers supplemented by a few paid employees. St John was a hierarchical organisation using para-military ranks for volunteers. A staff member was obliged to follow an order given by a higher ranking officer even if not in the same chain of command. The ranks were as follows:·Commissioner;·Superintendent (grade 1);·Group Leader (grade 2 or 3);·State or Regional Officer (grade 3 or 4);·Divisional Officer (grade 5 or 6).·Sergeant;·Corporal;·Private.

Evidence

Evidence Before The Court

The trial commenced on 22 May 2017 and was completed with closing addresses on 7 June 2017.The evidence The prosecution called A and B to give evidence. The prosecution also called F who gave evidence about her conversation with A summarised above. The prosecution called Mr Jackson and Ms Whitehead. The prosecution called Renee Mamys, the State Cadet group liaison to the Major Events section, and Melissa Oudshoorn, an ad hoc member of the Major Events section. Ms Mamys and Ms Oudshoorn were friends of the appellant and the trial Judge considered that they demonstrated a degree of partisanship towards him and expressed reservations about their evidence. The prosecution called three other St John staff members who gave relatively minor evidence. The prosecution called Detective Brevet Sergeant Ben Marsland who gave evidence concerning material obtained from the appellant’s computer and mobile phone and statements and material taken from the complainants. The appellant did not give evidence or call any witnesses.The reasons for judgment The Judge addressed general matters and then addressed the charges in chronological order.Procuring a child to engage in sexual activity In relation to the charge of procuring a child to engage in sexual activity (count 1), the Judge identified the third and contested ingredient as being that the appellant made the communication with the intention of procuring A to engage in sexual activity. The Judge set out the essence of the Facebook conversation of 23-24 April 2012 relied on by the prosecution and observed that the prosecution case was that it was the engagement in Facebook exchanges in itself that amounted to the sexual activity intended by the appellant. The Judge had earlier referred to the appellant’s contention that “sexual activity” connoted a physical activity as opposed to a communication. The Judge implicitly rejected that contention and accepted that the communications themselves comprised a sexual activity from the perspective of the appellant (what the Judge called “sexting”) but the Judge did not give any reasons why as a matter of construction “sexual activity” extended to pure communications. The Judge concluded that it was proved beyond reasonable doubt that the appellant made the communication with the intention of procuring A to engage in sexual activity, namely sexual communications with lewd content. The Judge said:I find it proved beyond reasonable doubt that in engaging in lewd or sexually explicit Facebook conversations with [A], the accused’s motivation was to obtain sexual gratification. Specifically, in relation to the communications the subject of count 1, I find that he engaged in the conversation for that motive. Specifically, I find that the accused sought, and obtained, sexual gratification by communicating in lewd or sexually explicit terms with [A]; and in particular, by having her respond to him in lewd terms. Plainly, I find he obtained sexual gratification from those ‘dirty talk’ exchanges between [A] and himself. I conclude that he obtained sexual pleasure and gratification by participating in that activity, commonly referred to as ‘sexting’ although in this case, strictly, it is by Facebook messaging rather than text messaging.…I note that in both the count 1 charged conversation and the Facebook exchanges leading up to it, the accused displays a determination to channel the conversations to sexual topics. He also encourages the complainant to continue with exchanges in this vein. In my view, the inference is overwhelming that he prolongs the conversation in order to prolong the gratification he obtains from making these types of communications to [A]. The conversation is not necessarily aimed at persuading her to meet up with him and engage in any activity; or even for her to engage in any activity during these Facebook exchanges. In my view, the content of the conversations demonstrates that he needs her involvement in the exchanges; and he seeks to prolong her engagement in the conversations; for the primary reason that he takes sexual pleasure from making and receiving the lewd and sexually explicit communications contained in them. In so doing, he acted with the intention of procuring her to engage in that sexual activity.…I am not persuaded that the Facebook exchanges amounted to sexual activity from [A]’s perspective.

Decision

Reasons for decision

The appellant did not give evidence or call any witnesses.The reasons for judgment The Judge addressed general matters and then addressed the charges in chronological order.Procuring a child to engage in sexual activity In relation to the charge of procuring a child to engage in sexual activity (count 1), the Judge identified the third and contested ingredient as being that the appellant made the communication with the intention of procuring A to engage in sexual activity. The Judge set out the essence of the Facebook conversation of 23-24 April 2012 relied on by the prosecution and observed that the prosecution case was that it was the engagement in Facebook exchanges in itself that amounted to the sexual activity intended by the appellant. The Judge had earlier referred to the appellant’s contention that “sexual activity” connoted a physical activity as opposed to a communication. The Judge implicitly rejected that contention and accepted that the communications themselves comprised a sexual activity from the perspective of the appellant (what the Judge called “sexting”) but the Judge did not give any reasons why as a matter of construction “sexual activity” extended to pure communications. The Judge concluded that it was proved beyond reasonable doubt that the appellant made the communication with the intention of procuring A to engage in sexual activity, namely sexual communications with lewd content. The Judge said:I find it proved beyond reasonable doubt that in engaging in lewd or sexually explicit Facebook conversations with [A], the accused’s motivation was to obtain sexual gratification. Specifically, in relation to the communications the subject of count 1, I find that he engaged in the conversation for that motive. Specifically, I find that the accused sought, and obtained, sexual gratification by communicating in lewd or sexually explicit terms with [A]; and in particular, by having her respond to him in lewd terms. Plainly, I find he obtained sexual gratification from those ‘dirty talk’ exchanges between [A] and himself. I conclude that he obtained sexual pleasure and gratification by participating in that activity, commonly referred to as ‘sexting’ although in this case, strictly, it is by Facebook messaging rather than text messaging.…I note that in both the count 1 charged conversation and the Facebook exchanges leading up to it, the accused displays a determination to channel the conversations to sexual topics. He also encourages the complainant to continue with exchanges in this vein. In my view, the inference is overwhelming that he prolongs the conversation in order to prolong the gratification he obtains from making these types of communications to [A]. The conversation is not necessarily aimed at persuading her to meet up with him and engage in any activity; or even for her to engage in any activity during these Facebook exchanges. In my view, the content of the conversations demonstrates that he needs her involvement in the exchanges; and he seeks to prolong her engagement in the conversations; for the primary reason that he takes sexual pleasure from making and receiving the lewd and sexually explicit communications contained in them. In so doing, he acted with the intention of procuring her to engage in that sexual activity.…I am not persuaded that the Facebook exchanges amounted to sexual activity from [A]’s perspective.

Ratio Decidendi

Legal Principle Established

A did not deny deleting the chats and hence did not falsely deny their deletion. It was open to the Judge to find that, on the assumption that she deleted the chats, she did not do so for a sinister purpose.Holistic consideration A gave evidence for three days and was cross-examined for two days. In considering whether it was not open to the Judge on the evidence to accept her as a witness of credit or that penetration occurred on 27 August 2012, it is necessary to consider the whole of her evidence as well as the whole of the evidence in the case relevant thereto. In making that assessment, it is necessary to consider the cumulative weight of all of the matters raised by the appellant, even if one or some of them are not sufficient in themselves to justify the conclusion sought by the appellant but it is also necessary to consider the evidence as a whole. The Judge had the considerable advantage of hearing and seeing A give evidence over three days. Take into account all of the matters raised by the appellant addressed individually above, and on an overall assessment of the evidence, there is no basis on which it can be concluded that the Judge ought not to have been satisfied beyond reasonable doubt that she was a witness of credit and that penetration occurred on 27 August 2012, Permission to appeal should be granted on this ground but this ground is not established.Conclusion I would grant permission to appeal on ground 1. I would allow the appeal on ground 2 and dismiss the appeal on the other grounds. I would set aside the convictions on counts 1 and 3 and substitute verdicts of acquittal. I would dismiss the appeal on all grounds in respect of all other counts.