R v Symons
[2018] SASCFC 48
•12 June 2018
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 in finding that “sexual activity” can be satisfied by purely verbal communications and that the communications amounted to sexual activity.
2. In respect of the counts of causing or inducing a child to expose her body, the Judge erred in finding that sending an electronic image can constitute an act of “exposing” and that the complainant’s actions amounted to exposing.
3. In respect of the 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.
4. In respect of the count of unlawful sexual intercourse of which the appellant was found guilty, the verdict was unreasonable or incapable of being supported having regard to the evidence.
Held:
1. Per Kourakis CJ (Kelly J agreeing): ‘Sexual activity’ should be given its ordinary meaning which includes the many behaviours, whether physical or verbal, which are capable of being sexually stimulating. To limit the term ‘sexual activity’ to ‘physical activity’ alone would deny s 63B(3) a significant element of its utility (at [3]-[7]).
Per Blue J, dissenting: The term ‘sexual activity’ refers to physical activities and not to verbal communications (at [104]). The Judge should have found the appellant not guilty of counts 1 and 3 (at [105]).
2. Per Kourakis CJ (Kelly J agreeing): In each of the Facebook conversations the subject of counts 1 and 3, the appellant engaged in a sexual activity and made communications with the intention of procuring A to engage in a sexual activity (at [8]-[9]).
3. Per Blue J (Kourakis CJ and Kelly J agreeing): Sending an electronic image of naked parts of the body via the Internet is capable of constituting an act of ‘exposing’ within the meaning of section 63C(1)(b)(i) of the Act (at [113]).
4. Per Blue J (Kourakis CJ and Kelly J agreeing): The Judge did not err in finding that the appellant was in a position of authority in respect of A and B at the time and for the purposes of each count in respect of which it was alleged that he was in a position of authority (at [137]).
5. Per Blue J (Kourakis CJ and Kelly J agreeing): The verdict of guilty of unlawful sexual intercourse (count 2) was not unreasonable or incapable of being supported having regard to the evidence (at [184]).
6. Per Kourakis CJ (Kelly J agreeing): The appeal should be dismissed (at [2]).
Per Blue J, dissenting: The verdicts of guilty of counts 1 and 3 should be set aside. The appeal should otherwise be dismissed (at [186]).
Criminal Law Consolidation Act 1935 (SA) ss 49, 63B, 267, 270, referred to.
Fox v Percy (2003) 214 CLR 118; M v The Queen (1994) 181 CLR 487, considered.
R v SYMONS
[2018] SASCFC 48Court of Criminal Appeal: Kourakis CJ, Kelly and Blue JJ
KOURAKIS CJ: I would grant permission to appeal on ground 1 but dismiss the appeal on that same ground for the reasons given by Blue J. I would dismiss the appeal on grounds 3, 4 and 5 for the reasons given by Blue J.
However, I would also dismiss the appeal on ground 2. My reasons follow.
The expression ‘sexual activity’ in s 63B(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act) is not statutorily defined. It is a compound expression which should not be restricted to the narrower denotation which the word ‘activity’ might carry in isolation. The connotation of the compound expression is much wider because of the broadness of its adjectival descriptor. ‘Sexual activity’ should be given its ordinary meaning which includes the many behaviours, whether physical or verbal, which are capable of being sexually stimulating. In the construction of s 63B(3) of the Act, the narrowness with which a criminal offence provision is generally construed must give way to the public interest in protecting children from sexualisation. The risks which might otherwise arise from a wide construction of a criminal offence provision are much reduced in the case of s 63B(3) of the Act because of the specific intent required by the fault element of the offence.
The manifest purpose of s 63B(3) is to proscribe the sexualisation of children by adults. That sexualisation is a serious societal mischief in itself and can, and does, commonly lead to the commission of sexual assaults of the kind prescribed by Part 3, Division 11 of the Act (Division 11).
In the context of the mischief which the section addresses, it is significant that the legislature did not define ‘sexual activity’. The lack of definition is a recognition of the difficulty in defining the very wide range of sexual behaviours which might be engaged in by adults, or in which they might have a prurient interest. Special contexts, like medical discussions, aside, intimate conversations about sex are not just a common prelude to sexual touching, but a sexual activity in itself. Indeed, a global international telecommunications industry has been built on it. Turning to the particular child abuse focus of s 63B of the Act, it is the experience of the criminal courts of this State that in many cases of child sexual abuse, talking to children about sex, often using visual aids, is commonly used to ‘groom’ them before subjecting them to sexual assaults. To limit the term ‘sexual activity’ to ‘physical activity’ alone would deny s 63B(3) of the Act a significant element of its utility.
This Court can, and indeed should, take judicial notice of the legitimate community concern about children engaging in the practice known as ‘sexting’. One salient aspect of that concern is the misuse by adults of access to children through social media to persuade or trick them into engaging in sexualised communications. Moreover, it is difficult to see why the manual manipulation of an electronic device is not an activity, and why the content of the messages produced by that manipulation does not allow it to be described as sexual activity. If a child is persuaded to send or receive digital pornographic images, be they photographs or animations, and engage in discussion about them, I see no difficulty in describing the exchange as sexual activity. If that be so, the exchange of texts alone cannot be distinguished from it.
Little can be made of the analogy between the terms ‘procures’ and ‘communication with the intention of procuring’ in s 63B(3)(a) and the general provisions for accessorial and ancillary liability found in ss 267 and 270A of the Act. The legislature must have intended s 63B to prohibit behaviour which is not caught by the application of the general accessorial and ancillary provisions of the Act to the sexual offences in Division 11. Therefore the manifest purpose of s 63B of the Act appears to be to extend the reach of the criminal law to behaviours other than facilitating offences of that kind, and which fall within the broad meaning of the expression ‘sexual activity’.
Turning to the conversations in issue in this case, I deal first with the Facebook exchanges which are the subject of Count 1, which took place in the afternoon of 23 April and into the early hours of 24 April 2012. The afternoon Facebook discussion in which the appellant asked A whether she had been sexually touched, handled a penis, performed fellatio, or masturbated, amounted to ‘sexual activity’. The appellant’s questions were asked with the intention of procuring A to respond by describing sexual touching, and because the questions were themselves sexually explicit, it constituted a sexual activity to which the appellant procured A to submit by engaging her to participate in the exchange. A also engaged in the activity because her answers, albeit often monosyllabic and reluctant, formed part of the exchange in which the appellant asked further sexually explicit questions. In the night-time Facebook exchange, the appellant’s request that A tell him what she would be thinking, and what she would want him to do to her if he was with her, was communication made with the intention of procuring A to engage in sexual activity by describing sexual touching. As it turned out, A declined.
The Facebook exchanges which were the subject of Count 3 took place 5 August 2012. In the course of the exchanges the appellant urged A to question him about the sexual contact he desired to have with A. By so doing, the appellant made a communication with the intention of procuring A to engage in the sexual activity of discussing a sexual encounter. A complied with that request. The appellant then proceeded to recount forms of sexual contact in which he desired to engage with A. Those communications too were made with an intent to procure A to engage in sexual activity. They were also a sexual activity which A, again reluctantly, submitted to by staying online and reading the appellant’s messages.
With respect to the offence created by s 63B(1)(b) of causing or inducing a child to expose himself or herself for a prurient purpose, I make the following additional observation to the reasons given by Blue J.
The provision does not prescribe the way in which the exposure is effected. In particular, it does not require temporal contemporaneity between the exposure and the viewing. Given the prevalence of, and mischief created by, electronic forms of audio-visual communications, particularly on social media, no limit should be drawn or imposed as to the form or temporal sequence of the exposure. It can be accepted that causing or inducing a child to simply undress in private without any attempt to have the child take, and then forward, an image may not contravene s 63B(1)(b) of the Act even though it may, for the reasons I have just given, constitute an offence against s 63B(3)(a) of the Act. However, if a child is induced to undress in an attempt to have the child take an image in order to forward it at some later time to another person or device or online platform, an offence of attempting to cause or induce a child to expose himself or herself will have been committed, even if the image is not sent.
KELLY J: I agree that the appeal should be dismissed for the reasons given by Kourakis CJ.
BLUE J: This is an appeal and application for permission to appeal against convictions for one count of unlawful sexual intercourse by a person in authority,[1] two counts of procuring a child to engage in sexual activity (in one case by a person in authority)[2] and six counts of causing or inducing a child to expose her body by a person in authority.[3]
[1] Criminal Law Consolidation Act 1935 (SA) subsection 49(5).
[2] Criminal Law Consolidation Act 1935 (SA) section 63B(3)(a).
[3] Criminal Law Consolidation Act 1935 (SA) section 63B(1)(b)(i).
The appellant was at the material times between 2012 and 2014 a volunteer with St John Ambulance Australia (South Australia) Inc (St John) holding the rank of State Staff Officer (Grade 4) working in the State head office in the Major Events section as an Event Planner.
The complainants A and B were volunteers with St John. At the time of the conduct the subject of count 1, A was 16 years old. At the time of the conduct the subject of all other counts, A and B (as the case may be) were each 17 years old. Due to their age, the conduct the subject of all counts except count 1 was only capable of comprising a criminal offence if the appellant was at the time in a “position of authority” with respect to the complainant.
On 23-24 April 2012 and on 5 August 2012 the appellant and A engaged in certain Facebook conversations. These were the subject of counts 1 and 3 respectively, procuring a child to engage in sexual activity. The prosecution case was that each conversation was sexual in nature, was engaged in by the appellant for sexual gratification and comprised a “sexual activity” within the meaning of section 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (the Act) and the appellant procured A to engage in the sexual activity.
On 27 August 2012 the appellant and A met up. A gave evidence, disputed by the appellant in cross-examination, that the appellant inserted fingers into her vagina. This was the subject of count 2, unlawful sexual intercourse by a person in authority.
On 9-10 October 2012 the appellant and A engaged in certain Facebook conversations. The appellant asked A to take three photos of her body and send them to him, which she did. This conduct was the subject of counts 4, 5 and 6, causing or inducing a child to expose her body by a person in authority.
On 10 March 2013 the appellant and B engaged in certain Facebook conversations. The appellant asked B to take three photos of her body and send them to him, which she did. This conduct was the subject of counts 9, 10 and 11, causing or inducing a child to expose her body by a person in authority.
In 2013 there was an occasion on which the appellant inserted fingers into A’s vagina. This incident was the subject of count 7, sexual intercourse with a child under 18 by a person in authority, which was alleged to have occurred on 25 April 2013.
The trial of the appellant proceeded before a Judge sitting alone in the District Court. The Judge found that the appellant was in a “position of authority” with respect to each complainant at the time of each count. The Judge accepted the evidence of A and B and found that the conduct the subject of each count occurred in accordance with their evidence. However, in respect of count 7, the Judge acquitted the appellant because the Judge found that it was likely that the incident occurred in November 2013 after A had turned 18.
The Judge held that the term “sexual activity” in section 63B(3)(a) of the Act can be satisfied by purely verbal communications and that the communications the subject of counts 1 and 3 amounted to sexual activity. The Judge found the appellant guilty of these two counts.
The Judge held that sending an electronic image of naked parts of the body can constitute an act of “exposing” within the meaning of section 63B(1)(b)(i) of the Act and the actions of the complainant the subject of counts 4, 5, 6, 9, 10 and 11 amounted to exposing. The Judge found the appellant guilty of these six counts.
The Judge was satisfied beyond reasonable doubt that the alleged conduct the subject of count 2 occurred in accordance with the evidence of A. The Judge found the appellant guilty of this count.
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.
Volunteers were divided into adults, cadets and juniors. Adults were 18 years old or over. Cadets were 11 to 18 years old. Juniors were eight to 11 years old. Cadets were probationary members, probationary cadets, cadet privates, cadet corporals, cadet sergeants and cadet leaders with adult officers in charge.
St John employed some paid employees. There was a Chief Executive Officer. There was a General Manager of Operational Services, reporting to the CEO. This position was filled from January 2013 onwards by Kerry Whitehead. There were some other employees.
St John staff were assigned to a division, a region or to State level. There were about 50 adult and 40 cadet divisions in the State. Each division (eg Blackwood) belonged to a particular region (eg Metro South). There were eight regions in the State.
The appellant reported to Cliff Pinkard, Group Leader Major Events and Emergency Management (grade 2 or 3).[8] Mr Pinkard focused on Emergency Management and high level administration, generally leaving to the appellant responsibility for planning major events. A paid employee, Heather McAllister, provided support amongst others to the Major Events section.
[8] The evidence does not identify his grade but as observed above Group Leaders were either grade 2 or 3.
Mr Pinkard reported in turn to Peter Jackson, the State Superintendent (grade 1). Mr Jackson in turn reported to the Commissioner Ray Grieg.
The role of the Major Events section was to plan St John attendance and operations at major State-wide events such as the Big Day Out, Clipsal 500, WOMAD, Anzac Day dawn service, Anzac Day march, Royal Show, Christmas pageant, schoolies week etc.
Actual operations at an event were under the control of an Event Commander also known as the Silver Commander. A Deputy Commander also known as the Bronze Commander reported to the Event Commander. The Silver Commander reported to the Gold Commander (State Duty Officer) but the Gold Commander was usually off-site in reserve and only called on in an emergency. Supervisors reported to the Commanders.
Cadets were required to attend St John events, camps and divisional meetings for 60 hours per annum.
The first complainant A was born in June 1995. She joined St John as a probationary member in February 2008 at the age of 12. She met the appellant at a St John camp in March 2012 when she was 16. They became Facebook friends on 26 March 2012. Her Facebook account was in her birth name (the first Facebook account).
Between 27 March and 22 April 2012 the appellant and A engaged in several Facebook conversations. During the conversations the appellant tended to steer the conversations towards sexual subject matters.
On the afternoon of 23 April 2012 between 5.06 pm and 5.58 pm (the afternoon Facebook conversation) and the late evening of 23-24 April 2012 between 11.36 pm and 12.51 am (the night-time Facebook conversation) the appellant and A engaged in two Facebook conversations. These conversations were the subject of count 1, procuring a child to engage in sexual activity. The prosecution case was that the appellant thereby made communications with the intention of procuring A to engage in a sexual activity, namely to engage in the sexual conversation for his sexual gratification. A was 16 years old at the time of these Facebook conversations.
On the late evening of 5 August 2012 between 11.25 pm and 11.53 pm the appellant and A engaged in a Facebook conversation. This conversation was the subject of count 3, procuring a child to engage in sexual activity by a person in authority. The prosecution case was that the appellant thereby made communications with the intention of procuring A to engage in a sexual activity, namely to engage in the sexual conversation for his sexual gratification. A was 17 years old at the time of this Facebook conversation.
On the late evening of 27 August 2012 at about 11.30 pm the appellant picked up A from her home in his car and drove to an area near a train line where he parked the car. The appellant touched A’s breasts. A gave evidence, disputed by the appellant in cross-examination, that the appellant inserted two fingers in her vagina. This was the subject of count 2, unlawful sexual intercourse by a person in authority.
Shortly after that evening, A spoke to her friend F by telephone at about midnight. She told F that the appellant had picked her up from her house and they had gone for a drive and parked. She told F that the appellant had touched her on her breasts and on her leg and in her vagina, using the words according to F “he fingered her”.
On the late evening of 9 to 10 October 2012 between 9.20 pm and 12.33 am the appellant and A engaged in a Facebook conversation. It was agreed that she would take a photo of herself wearing only bra and undies and send it to him. He requested that she send it by Facebook. She took the photo and sent it to the appellant by Facebook. He asked her to take a photograph of her naked from behind and send it to him. She did so. He asked her to take a photo of her breasts and send it to him. She did so. This conduct was the subject of counts 4, 5 and 6, causing or inducing a child to expose her body by a person in authority.
In 2013 during a St John event, A and the appellant were both present at the St John Communications Centre at Camden Park. When A walked out of the communications room, the appellant followed her, guided her to the wall, put his hand down her pants and inserted two fingers into her vagina. This incident was the subject of count 7, sexual intercourse with a child under 18 by a person in authority, which alleged that the incident occurred on Anzac Day. The Judge acquitted the appellant on this count because the Judge found that it was likely that the incident occurred on the day of the Christmas pageant in November 2013 after A had turned 18.
At some point (by June 2014) A started using her grandfather’s surname (her new name) rather than her father’s surname (her original name). At some point A opened a second Facebook account (the second Facebook account) and later (by June 2014) changed it into her new name.
Between June and September 2014 the appellant and A engaged in several Facebook conversations. They included sexualised messages passing between them and A seeking to meet up with the appellant for social or sexual purposes in respect of which he failed to meet up with her.
The second complainant B was born in June 1995. She joined St John as a probationary member in August 2008 at the age of 13. She met the appellant at a St John event when she was about 14. They became Facebook friends in September 2010 when she was 15.
On the evening of 10 March 2013 between 7.08 and 10.54 pm the appellant and B engaged in a Facebook conversation. The appellant asked B to take a picture of her breasts and send it to him. The appellant downloaded Snapchat, established a username and told B so that she could send a photograph to him. She took a picture of her breasts and sent it to the appellant by Snapchat. The appellant asked her to take a video of her breasts and send it to him. She did so. The appellant asked her to take another picture of her breasts and send it to him. She did so. This conduct was the subject of counts 9, 10 and 11, causing or inducing a child to expose her body by a person in authority.
On 11 October 2014 A reported conduct by the appellant to senior officers at St John. On the same day she was interviewed by Senior Constable Vallo. On 16 October 2014 Detective Marsland attended at her house and downloaded the content of her first Facebook account from her computer.
In October 2014 the police attended at the appellant’s house and seized his computer and mobile phone from which they later extracted Facebook conversations with A and B and the three photos of A that are the subject of counts 4, 5 and 6.
In January 2015 B was interviewed by the police.
In August 2015 the appellant was charged with the offences summarised above. In addition he was charged with a second count of unlawful sexual intercourse by a person in a position of authority in relation to A (count 7) and one count of communicating with the intention of making a child amenable to sexual activity in respect of B (count 8).[9] He was acquitted by the trial Judge of these two counts.
[9] Criminal Law Consolidation Act 1935 (SA) subsection 63B(3)(b)).
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.
The Judge considered that communications between the appellant and A simultaneously comprised communications made with the intention of procuring her to engage in sexual activity and the engaging in the sexual activity so intended. The Judge did not for example consider that some communications were made with the requisite intention and others were made by way of engaging in sexual activity. This reflected the manner in which the prosecution had conducted its case.
In relation to the charge of procuring a child to engage in sexual activity by a person in authority (count 3), the Judge identified that the offence comprised four ingredients. The Judge found the first and fourth ingredients, namely that the appellant made a communication with A and A was under the age of 18 years at the time, proved beyond reasonable doubt. There was no contest about these two ingredients.
The Judge found that the second ingredient, that the appellant was in a position of authority in relation to A at the time, was proved beyond reasonable doubt. This was in contest and the Judge’s reasons for reaching this conclusion are addressed below.[10]
[10] See [118]-[121] ff below.
The Judge found that the third ingredient, that the appellant made the communication with the intention of procuring A to engage in sexual activity, was proved beyond reasonable doubt. The Judge set out the essence of the Facebook conversation of 5 August 2012 relied on by the prosecution. The Judge’s reasons for his conclusion were the same as in respect of count 1. The Judge said:
The third ingredient that he made the communication with the intention of procuring [A] to engage in or submit to sexual activity. I shall not repeat what is contained in paragraphs 66 to 69. Plainly, the engaging in this Facebook conversation by the accused, was a sexual activity. I infer from the content of the conversation itself that he was having the conversation for the purposes for his sexual gratification...
It is equally plain that during this conversation the accused had the intention of procuring [A] to engage in the sexual activity by responding to the accused’s communications to her. I accordingly find this third ingredient is made out.
Unlawful sexual intercourse
In relation to the first charge of unlawful sexual intercourse by a person in authority (count 2), it was not in dispute that on 27 August 2012 the appellant picked up A from her home in his car and drove to an area near a train line, where he touched her breasts. The Judge found that A was an honest and reliable witness in relation to the events of 27 August 2012 notwithstanding the extensive submissions by the appellant attacking her honesty and reliability. The Judge was satisfied beyond reasonable doubt that digital penetration occurred. The Judge was satisfied that the appellant was a person in authority for the same reasons as in respect of the charge of procuring a child to engage in sexual activity by a person in authority (count 2).
In relation to the second charge of unlawful sexual intercourse by a person in authority (count 7), A gave evidence that she and the appellant were present at the St John Communications Centre at Camden Park during an event. She said that the appellant followed her out of the communications room and put his hand down her pants and inserted his fingers into her vagina. She said that this occurred on Anzac Day in 2013 (which was before she turned 18). It was put to her in cross-examination that the incident occurred at the Christmas pageant in November 2013 (after she had turned 18) and she initially disagreed. The Judge was not satisfied beyond reasonable doubt that the incident occurred on Anzac Day and found that it was likely that it occurred at the Christmas pageant. The Judge acquitted the appellant of count 7. The Judge found that A was honestly mistaken and this mistake did not adversely affect her credit or cause him to experience a reasonable doubt in respect of count 2.
Count 8 alleged that the appellant made a communication for a prurient purpose with the intention of making a child, B, amenable to sexual activity. The Judge was not satisfied beyond reasonable doubt that this offence was proved. This had no impact on the other counts.
Causing or inducing a child to expose her body
In relation to counts 4, 5 and 6 relating to A, the Judge found the ingredient that the appellant was a person in authority at the time proved beyond reasonable doubt for the same reasons as in respect of the charge of procuring a child to engage in sexual activity by a person in authority (count 3).
In respect of the ingredient that the appellant caused or induced A to expose her body, there was no contest about the communications between the appellant and A that led to her sending the three photos to the appellant (which were all in writing on Facebook) or the content of the photos (which were tendered). There was no dispute that the appellant caused and induced A to send the three photos to him. The Judge was satisfied beyond reasonable doubt that A took the photos during the Facebook conversation and was induced by the appellant to do so. While this was in dispute at trial, it is not an issue on appeal.[11]
[11] This finding was critical to the Judge’s finding of guilt because merely causing the complainants to send to him images when he had not caused the putative exposure captured on the image would not amount to an offence against section 63B(1)(b)(i). Notwithstanding the wording of appeal ground 5, the Judge did not hold otherwise.
The principal issue in respect of this ingredient was whether the taking and sending of the three photos amounted to “exposure” within the meaning of section 63B(1)(b)(i). The Judge held that “exposure” does not require a person to be physically present and see the complainant’s body in person and that it was sufficient that the image of the complainant’s body be taken and transmitted electronically via a medium such as Snapchat. The Judge said:
Defence argue in relation to counts 4, 5 and 6 that even on those findings, there has been no exposure by [A] of her body. As I understand the argument it is that in order for [A]’s actions to amount to exposing her body, someone would need to be physically present and observing when she exposed the relevant part of her naked body. Whereas in this case, she was alone in her bedroom and only exposed her body to the camera feature of her laptop. I consider the defence argument has merit if it is applied only to what she did prior to sending the images via Facebook. Up to that point, what she did had not enabled anybody else to see her body.
I consider that by sending the images to the accused, [A] exposed her body. Strictly, it was an image or depiction of her body that she exposed to the accused. However, I consider it would be an unrealistic and implausible interpretation of the word expose, to require that it be exposed directly to the eye of the observer. Would it not be exposing the body if the observer was filming it and therefore only seeing the image on the device being used; or was in another room or another place, observing an image being transmitted by CCTV or Skype, or similar?[12]
[12] Footnote omitted.
The Judge found the ingredient that the appellant was acting for a prurient purpose proved beyond reasonable doubt. This is not challenged on appeal.
In relation to counts 9, 10 and 11 relating to B, in respect of the ingredient that the appellant caused or induced B to expose her body, although the photos and video were not tendered, the Judge accepted B’s evidence about them, which was corroborated by the Facebook communications. Otherwise, the Judge found the ingredients proved beyond reasonable doubt for the same reasons as in respect of A.
Communicate with intent to procure A to engage in sexual activity
The appellant contends that the Judge erred in finding that it was proved beyond reasonable doubt that he engaged in the communications the subject of each of counts 1 and 3 with the intention of procuring A to engage in a “sexual activity”.
The appellant contends that the “communication” and the intended “sexual activity” the subject of section 63B(3)(a) are separate matters. The appellant contends that “sexual activity” referred to in the provision is an act as opposed to mere words.
The appellant contends in the alternative that the Judge erred in finding that the words passing between the appellant and A amounted to “sexual activity” and hence erred in finding beyond reasonable doubt that he had the requisite intent.
The respondent takes issue with each of these contentions.
Section 63B(3)(a) provides:
A person who—
(a)procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or …
is guilty of an offence.
Subsection 63B(7) defines “the prescribed age of a child in relation to a person” to be 18 years when that person is in a position of authority in relation to the child and otherwise 17 years. For ease of expression, I will refer to “a child under the prescribed age in relation to that person” simply as a child.
Section 63B(3)(a) creates two separate offences or forms of offence[13]:
1. to procure a child to engage in or submit to a sexual activity;
2.to make a communication with the intention of procuring a child to engage in or submit to a sexual activity.
[13] As nothing in this appeal turns on this distinction, for ease of expression I refer to these two offences or forms of offence as separate offences.
The first offence (the procurement offence) requires it to be established that the child actually engages in (or submits to) a sexual activity. However it does not create an offence of engaging in a sexual activity with a child. Rather it merely creates an offence of procuring engagement in (or submission to) the sexual activity.
In contrast, the second offence (the communication with intent offence) does not require any sexual activity. It merely requires that the defendant intend to procure such sexual activity.
The common law recognised two different types of criminal liability ancillary to a principal offence. The first was the liability of accomplices: persons who aided, abetted, counselled or procured the commission of a principal offence themselves committed an offence at common law. Persons who aided or abetted were persons who were present at the commission of the principal offence assisting or encouraging its commission.[14] Persons who counselled or procured usually acted in advance of the commission of the principal offence assisting or encouraging and not present at its commission.[15] Accessorial criminal liability is now effected by section 267 of the Act which refers to a person who “aids, abets, counsels or procures the commission of an offence”.
[14] Georgiani v The Queen (1985) 156 CLR 473 at 493 per Mason J. Persons who being physically present aided or abetted a felony were classified as “principals in the second degree” in contrast to persons who counselled or procured the commission of the offence in advance, who were classified as “accessories before the fact”. This distinction was not drawn in the case of misdemeanours or treason. See Bronnit & McSherry Principles of Criminal Law 4 ed (2017) [7.10] and [7.25].
[15] Georgiani v The Queen (1985) 156 CLR 473 at 493 per Mason J. See Bronnit & McSherry Principles of Criminal Law 4 ed (2017) [7.10] and [7.25].
The second type of ancillary liability was an attempt,[16] conspiracy[17] or incitement[18] to commit a principal offence. In this case the principal offence did not need to be actually committed: it was sufficient that there was an intention that it be committed. In the case of attempt, ex hypothesis the principal offence was not committed. Criminal liability for attempt is now effected by section 270A of the Act. Conspiracy and incitement are still common law offences in South Australia.
[16] See Bronnit & McSherry Principles of Criminal Law 4 ed (2017) [8.15].
[17] See Bronnit & McSherry Principles of Criminal Law 4 ed (2017) [8.85].
[18] See Bronnit & McSherry Principles of Criminal Law 4 ed (2017) [8.175].
The procurement offence is committed by a person who “procures” a child to engage in (or submit to) a sexual activity. This is the same word as is used in section 267 to create criminal liability by a person who procures the commission of an offence. The concept of procurement is the same concept in both provisions.
The communication with intent offence is committed by a person who communicates with the intention of procuring a child to engage in (or submit to) a sexual activity. It is similar to the concept of an attempt the subject of section 270A of the Act. In both cases it is the intention that is critical rather than the commission of an actual offence.
The structure of subsection 63B(3), and in particular the creation of the separate offences of procurement and communication with intent, shows that the “communication” and the intended “sexual activity” the subject of section 63B(3)(b) in the case of the communication with intent offence are separate matters.
In relation to the Facebook communications the subject of count 1, the relevant passages passing between the appellant and A in the afternoon conversation (which I have numbered for easy identification) are as follows:
1 A im bisexual
2 APP mmm so?
3A some people care, my mum doesn’t know she thinks its disgusting so its kind of hard to trust certian people … don’t want people to hate me because of it
4 APP you been with a girl yet?
5 A kindaa
6 APP tell me about it?
7 A mm just hookup (kiss)
8 APP how old was she and who would you rather male or female
9 A 17, umm its the person more than male or female I guess
10 APP are you wanting to try more things
11 A when i find the right person
12 APP need to just try having fun!?
13 A i do have fun ahhaha
14 APP how?
15 A going to gigs, music festivals, drinking with mates I dunno ahha
16 APP sexual fun??
17A i swear sex is on your mind 24/7. well your a guy… so i guess yes. eh sometimes
18 APP sometimes what?
19A sometimes, depending who im with. I currently do not have a bf/gf so im not doing anything.
20 APP what have you done? just between you and me
21 A ask me and ill say yes or no.
22 APP finger
23 A sortaa
24 APP ?what you mean sortaa
25 A with clothes on
26 APP ha?
27 A id probably call it being felt up with clothes on..
28 APP feel good?
29 A yeaa
30 APP given a BJ or touched a guy knob
31 A nope
32 APP touch self
33 A mm not telling that one, too personal ahaa
A next
34 APP common just for fun no judging
APP be open :)
35 A nope:) sorry
36 APP so can I guess you do
37A not at all, you can think what you want but im not telling you either way.. I never said yes or no. Not all girls do, not all girls dont.
38 APP lol ok
APP any questions for me?
39 A you already told a few weeks back
40 APP ok you pretty open to try most things with someone you love
41 A yea probably
42 APP anal?
43 A mm not sure
44 APP why only a maybe
45 A I find it a bit weird to be honest
46 APP might love it
47 A dunnoo
48 APP think you might try it ?
49 A its not something I want to do yet
50 APP lol true so what would be something you keen to try soon?
51A honestly its not something im planning, if it happens it happens.. I dunno ahah
52 APP must be something you really want to try?
53 A hahah im patient, like I said im waiting for the right person :)
54 APP ok cool
APP shit I just got called into work
APP chat later
The relevant passages passing between the appellant and A in the night-time conversation are as follows:
55 APP HOME SWEET HOME
56 A hey
57 APP hru
58 APP sorry for all the full on questions
APP but im happy you trust me with the bi thing?
59 A in a really shit mood
…
60 APP no no you say something FUN then I will
APP ?? ;)
APP mmm
61 A if I was with you right now what would you be thinking
62 A :P
63 APP ‘God Im a lucky man
64 A lol
A ;) now you go
65 APP well if you where here what would you want me to do to you?
APP fun answer
66A my honest answer is cuddle cause I feel like shit, when im in the mood other stuff, probably just burst your bubblee ahha sorry im not in the mood
67 APP naked cuddle or clothed
APP ?
APP remember let go all in the name of fun
68 A I cant let go though, Im not in the mood its not exxciting me
69 APP well how could i excite you then
APP ?
APP ?
APP take you mind off things
70 A think im gonna go to bed. Im sorry i cant tonight.
71 APP look i just dont get it at all
APP btw you do look hot in a bikini btw
72A look the thing is I think your looking for someone to have a good time with, I dont want that. I want something serious.. Im sorry I just cant do it.. there is too many factors involved and I know you said let loose but its not that easy. your probably a great guy I just cant do this for many reasons. Im sorry, not see each other at st john things.
A if we do then you’re an adult and i will respect you as an adult leader but nothing more. im sorry it’s a tough time for me and i just cant do it, im sorry if ive lead you on at all but i just cant anymore. take care and ill see you round
The Judge found that these exchanges contained an actual sexual activity from which the appellant derived gratification (being the intended sexual activity the subject of the communications with the intention of procuring sexual activity). The Judge found that these exchanges contained communications by the appellant with the intention of procuring an actual sexual activity. However the Judge did not identify which exchanges comprised the former and which comprised the latter. This reflected the prosecution case which made no such distinction.
Starting with the text of section 63B(3)(a), it refers to sexual “activity”. In ordinary language, an activity connotes an act or action of some kind as opposed to merely talking. The words “act”, “action” and “activity” are inter-related and commonly refer to doing as opposed to talking.
Thus the Macquarie Dictionary includes the following relevant definitions:
Act n. 1. Anything done or performed; a doing; deed
Action n. 1. The process or state of acting or of being active. 2. Something done; an act; deed.
Activity n. 1. The state of action; doing.[19]
[19] Macquarie Dictionary, 7th ed (2017) page 14.
Likewise the Oxford English Dictionary includes the following relevant definitions:
Act sb. 4. The process of doing; acting, action, operation
Action sb. 1. The process or condition of acting or doing (in the widest sense), the exertion of energy or influence; working, agency, operation.
a. Of persons. (Distinguished from passion, from thought or contemplation, from speaking or writing.)
Activity n. 1. The state of being active; the exertion of energy, action.[20]
[20] Oxford English Dictionary 2nd ed (1989) pages 123, 127-128 and 130.
Section 63B(3)(a) also refers to “engaging in or submitting to” the sexual activity. The use of the verbs “engage” and “submit” strongly suggests that the activity is an act as opposed to mere words. It is inapposite to describe a person as submitting to sex talk. The concept of a child engaging in a sexual activity suggests that the child actively participates in the activity; whereas the concept of a child submitting to a sexual activity suggests that the child is a passive participant. These concepts connote actions rather than mere words.
Turning to the immediate context of section 63B(3)(a), it forms part together with paragraph (b) of subsection 63B(3). Subsection 63B(3) relevantly provides:
A person who—
(a)procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or
(b)makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,
is guilty of an offence.
The offence created by section 63B(3)(b) is known colloquially as “grooming” and the reference to “sexual activity” in that context suggests that the activity is an act rather than mere words.
Turning to the broader context of section 63B as a whole, the other offences created by section 63B are the offences created by subsection 63B(1) as follows:
A person who—
(a)incites or procures the commission of an indecent act by a child under the prescribed age in relation to that person; or
(b) acting for a prurient purpose—
(i) causes or induces a child under the prescribed age in relation to that person to expose any part of his or her body; or
(ii) makes a photographic, electronic or other record from which the image, or images, of a child under the age of 17 years engaged in a private act may be reproduced,
is guilty of an offence.
The offence created by section 63B(1)(a) refers to an indecent act. The reference to an act clearly connotes an action as opposed to mere words. The offences created by section 63B(1)(b)(i) and (ii) involve actions rather than mere words. The fact that these offences involve actions rather than mere words supports the offences created by subsection 63B(3) involving actions rather than mere words. Moreover the reference in section 63B(1)(a) to procuring or inciting the indecent act is the same concept as the reference in section 63B(3)(a) to procuring a sexual activity.
Turning to the context of section 63B within the Act as a whole, section 49 creates offences of having sexual intercourse with a child (under 18 years old when the defendant is in a position of authority in relation to the child and otherwise under 17 years old). Sections 56 and 57 create the offence of indecent assault in respect of which a child (under 18 years old when the defendant is in a position of authority in relation to the child and otherwise under 17 years old) is incapable of consenting. Sexual intercourse and indecent assault comprise sexual activities within the ordinary meaning of those words. The reference in section 63B(3)(a) to a sexual activity is apt to refer to physical activities of this type as opposed to mere words.
When the new offences enacted by subsection 63B(3) were created in 2004,[21] the legislature did not create an offence of engaging in sex talk with a child, nor did any such offence already exist. If it had been the legislature’s intention to create an offence of procuring, or communicating with the intention of procuring, engagement in sex talk with a child, it may be expected that the legislature would have created a substantive offence of engaging in sex talk with a child. It would be very incongruous if the legislature created ancillary offences without creating a principal offence.
[21] By the Criminal Law Consolidation (Child Pornography) Amendment Act 2004 (SA).
Turning to the evident purpose of section 63B(3)(a), it was to criminalise preparatory steps to causing a child to engage in a prohibited sexual activity such as sexual intercourse or indecent assault. Such steps would not be caught by the existing ancillary offences because ordinarily they would be too remote to constitute attempts and there is no principal or co-offender with whom the defendant could be conspiring or aiding and abetting. It was not the evident purpose of section 63B(3)(a) to criminalise sex talk.
Before the new offences enacted by subsection 63B(3) were created in 2004, it was not a criminal offence to engage in sex talk. It would require a very clear indication of legislative intent to take the novel and very substantial step of extending criminalisation from physical acts to purely verbal communications. If the construction advanced by the Director is correct, if two teenagers each aged 16 years and 11 months freely and willingly engage in, and procure each other to engage in, sex talk, they each commit an offence. While such teenagers engaging in sex talk may be regarded as undesirable, it is altogether a different thing to make it a criminal offence punishable by imprisonment for up to ten years.
In addition, when the subject matter of an offence is physical activity (such as indecent assault), it may be expected that at least in the rump of cases a relatively clear line can be drawn between a sexual activity comprising criminal conduct and other activity that does not comprise criminal conduct.[22] By contrast, in the realm of communications, it may be expected that in many cases it would be very difficult to draw a line between a communication characterised as sexual and a communication not so characterised and even more difficult to draw a line between a communication motivated by sexual gratification and one that is not. Again, to take the case of two teenagers each aged 16 years and 11 months engage in communications, it would be very difficult to draw the line between a sexually motivated sexual communication which comprises a criminal offence and one which does not. While many hypothetical examples can be imagined, the position might be illustrated by considering the text of the exchanges between the appellant and A set out at [87] and [88] above. Assume hypothetically that the exchanges stopped at any given point (for example at exchange 17 or 33 or 54), it would be difficult to characterise whether the exchange is a sexual activity of not.
[22] This is not to deny that in some cases a physical touching considered in isolation might be ambiguous and the question whether it is sexual will depend on context and intention. However these cases are comparatively rare.
On its proper construction, the reference in section 63B(3)(a) to a “sexual activity” does not extend to sex talk.
This ground of appeal is established. It is unnecessary to consider the appellant’s alternative ground of appeal that the Judge erred in finding that the communications the subject of counts 1 and 3 amounted in the circumstances of the case to sexual activity.
The convictions on counts 1 and 3 should be set aside and acquittals substituted.
Causing or inducing a child to expose her body
The appellant contends that the reference in section 63B(1)(b)(i) to a child exposing his or her body is a reference to exposing his or her body within the direct sight of another person and does not encompass an exposure to another person via an electronic medium such as Snapchat or Facebook. This raises a single issue of law as to the proper construction of section 63B(1)(b)(i) that affects the convictions on counts 4, 5, 6, 9, 10 and 11.
Section 63B(1)(b)(i) provides:
A person who—
…
(b) acting for a prurient purpose—
(i) causes or induces a child under the prescribed age in relation to that person to expose any part of his or her body; or
…
is guilty of an offence.
Starting with the text of the provision, the ordinary English meaning of the verb “expose” is not confined to exposure to direct sight. The Macquarie Dictionary relevantly defines “expose” to mean:
4. To present to view; exhibit; display[23]
[23] Macquarie Dictionary, 7th ed (2017) page 531.
Likewise the Oxford English Dictionary relevantly defines “expose” to mean:
II. To present to view; to put forth.
6. a. To exhibit openly; to display to the public gaze.
…
c. To disclose, display, allow to be seen.[24]
[24] Oxford English Dictionary 2nd ed (1989) page 578.
Section 63B(1)(b)(i) only creates an offence when the defendant is acting for a prurient purpose. This acts as a limitation upon the scope of the activities rendered criminal. A purpose will be no less prurient if the exposure is via an electronic medium such as Facebook or SnapChat.
Turning to the context of section 63B(1)(b)(i), the fact that paragraph (b)(ii) refers to making a photographic, electronic or other record tends to suggest that section 63B encompasses non-physical modes of conveyance. The fact that section 63B forms part of Division 11A which addresses child exploitation material and related offences and includes sections 63 and 63A relating to the production, dissemination and possession of child exploitation material also supports this construction.
Turning to the evident purpose of section 63B(1)(b)(i), it is to protect children against exploitation by causing or inducing them to expose their bodies. The evident purpose applies as much to exposure of a child’s body transmitted by a television camera to a large viewing audience (the camera being operated remotely) as it does to exposure of a child’s body to a single person in the same room.
On the proper construction of section 63B(1)(b)(i), the reference to exposure is not confined to a child exposing his or her body within the direct sight of another person and encompasses exposure to another person via an electronic medium such as Facebook or Snapchat.
This ground of appeal is not established.
Position of authority
The appellant contends that in respect of the eight counts in which it was alleged that he was in a position of authority (all but count 1), the Judge erred in finding that he was in a position of authority for the purpose of the proof of those counts.
Section 49 (the subject of count 2) and section 62 (the subject of the remaining counts) both extend the basic offence in respect of a child under 17 years old to apply in respect of a child under 18 years old if the defendant is in a position of authority in relation to that child. Each section defines “position of authority” in the same terms as follows:[25]
[25] Subsection 49(6). Subsection 62B(6).
For the purposes of this section, a person is in a position of authority in relation to a child if—
(a)the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or
(b)the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or
(c)the person provides religious, sporting, musical or other instruction to the child; or
(d)the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or
(e)the person is a health professional or social worker providing professional services to the child; or
(f)the person is responsible for the care of the child and the child has a cognitive impairment; or
(g)the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or
(h)the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
The prosecution relied exclusively on paragraph (h) of the definition, contending amongst other things that the appellant at the time of each offence had the authority to determine whether the complainant would attend future State events (major events) and thereby determine significant aspects of her terms and conditions of employment.
The Judge made factual findings concerning major event selection. The Judge implicitly accepted the evidence of Superintendent Jackson that there were 40 to 50 major events per year. The Judge accepted the evidence of Superintendent Jackson that in his role as an event planner the appellant had authority to decide that a particular person could attend the event or not attend the event and had authority to make the decision at the end of the day whether a particular person attended the event. The Judge also accepted the evidence of Superintendent Jackson that St John staff were required to undertake a certain amount of hours per year at St John events. Superintendent Jackson gave evidence that there were many more local and regional events than major events, there being in the order of 5,000 events in total per year. However the major events were more popular resulting in competition for places.
The Judge accepted the evidence of Ms Whitehead that from January 2013 onwards the event planning group comprised Mr Pinkard and the appellant and that other persons were brought in to assist the planning on an ad hoc basis for a particular event. A computer application “Survey Monkey” was used to enable St John staff to volunteer to attend at a particular event. The Divisional Supervisor in the chain of command above an applicant could veto eligibility of an applicant to attend an event. Subject to that, the appellant as the event planner for an event had authority to decide which members attended a planned event.
The Judge referred to the evidence about the planning of roles to be performed by attendees at major events (often called “rostering” in the evidence). However the Judge rejected the prosecution’s contention that the appellant’s involvement in relation to such roles resulted in his being in a position of authority and the evidence and Judge’s findings concerning such roles need not be further considered.
The Judge reached the following conclusions:
Based upon the evidence of Superintendent Jackson and Kerry Whitehead, which I accept, I find that the accused’s role in this position gave him authority both individually, and as a member of the Major Events Group, to determine the selection or non-selection of cadets, including each of the complainants, to major events throughout that period. I find that this authority to select or not select any cadet, including the complainants, for major events, amounted to the authority to determine significant terms or conditions of their volunteer employment with St John. I specifically make that finding for each of the complainants, for the period between their seventeenth and eighteenth birthdays.
I accordingly find that throughout that period of time, by dint of his formal position within the St John operational hierarchy as an Event Planner on the Major Events Group, the accused was in a position of authority as defined in s 49(5a)(f) and s 63B(6)(f) of the Act, in relation to each of the complainants.
The appellant refers to evidence given by Ms Oudshoorn that she assisted in relation to the planning of approximately 25 major events in 2012 and 2013 and that to her knowledge these were all of the major events in those years and implicitly contends that the Judge erred in accepting Superintendent Jackson’s evidence about major event numbers. However, Ms Oudshoorn was a close friend of the appellant and the Judge considered that she demonstrated a degree of partisanship towards the appellant. The Judge was entitled to prefer the evidence of Superintendent Jackson over the evidence of Ms Oudshoorn in this respect.
The appellant submits that, on its proper construction, the definition of “position of authority” is confined to persons in a supervisory capacity over the child in question. The appellant submits that, as he was not in the chain of command leading up from either complainant, he was not in a supervisory capacity and therefore not in a position of authority in relation to them.
This submission must be rejected. Paragraph (h) refers to a “person who has the authority to determine significant aspects of the child's terms and conditions of employment”. A person who has such authority would not necessarily be in a supervisory capacity over the child. Conversely a person who is in a supervisory capacity over the child will not necessarily have authority to determine significant aspects of the child's terms and conditions of employment. Paragraph (h) is not addressed to supervisory capacity but to terms and conditions of employment (including dismissal from employment). In addition there are other paragraphs contained within the definition, such as paragraph (e) addressing health professionals providing professional services to the child, who will not be (or not necessarily be) in a supervisory capacity.
The appellant refers to the fact that the Judge accepted that it is a requirement of the section that the defendant hold the position of authority at the time of the actus reus, ie when the act is performed. The appellant contends that the Judge erred in finding that this was satisfied in respect of each of the relevant counts. The appellant contends that the authority to determine who would or would not attend an event only existed at the time the nominations came in from Survey Monkey and positions were filled and the prosecution did not attempt to prove the time frame when allocations of attendees were made vis a vis each count. The prosecution did not attempt to prove that there were occasions when the number of applicants exceeded the number of positions available.
The Judge was correct in accepting that it is a requirement of the section that the defendant hold the position of authority at the time the act is performed. However, the relevant enquiry is dictated by the wording of paragraph (h), which provides that a person is in a position of authority if:
the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
The focus of paragraph (h) is upon authority to determine terms and conditions of or terminate employment: it is not on whether the person actually exercises that authority. Thus if a person has authority to terminate the child’s employment, it does not matter that the person never exercises that authority. Moreover in a substantive sense paragraph (h) is forward looking: the concern is that the fact that the person has authority to determine terms and conditions of or terminate employment in the future may lead the child to agree to act or acquiesce in acting in a manner in which the child would not otherwise do so.
Accordingly, to take as an example counts 4, 5 and 6 in respect of which the actus reus occurred on 27 August 2012, it would not matter if the attendees at the forthcoming Royal Show had already been determined on that date and the next major event was not due for selection until the end of September 2012. What is relevant is whether the appellant had authority on that date to determine future attendance at major events.
In relation to the appellant’s contention that the prosecution did not prove that there were occasions when the number of applicants exceeded the number of positions available, Superintendent Jackson gave evidence that there were such occasions and contrasted the position with local and regional events. Superintendent Jackson did not identify for which specific major events there was an excess of applicants but the prosecution was not required to prove this at that detailed level. It was sufficient that there was a prospect that there would be future major events at which the number of applicants would exceed the number of places available and hence a selection would need to be made.
The appellant contends that, to the extent that he was involved in determining attendees at major events, his authority was too minor to amount to authority to determine significant aspects of the complainant’s terms and conditions of employment. He points to the evidence that major events comprised only a very small proportion of total events (12 events according to Ms Oudshoorn, or even 40 to 50 events according to Superintendent Jackson, out of approximately 5,000 events per year); the State Cadet Officer or Divisional Superintendent could permit or prevent a person attending a major event; and a decision only needed to be made by the appellant if there was an over-subscription by applicants for that event.
In relation to the proportion of major events to total events, Superintendent Jackson gave evidence that St John staff were required to attend a minimum number of events per year to maintain “efficiency”. This was 60 hours per year in the case of adults (in addition to 12 meeting nights and completing the skills maintenance program). Cadets were required to attend a total of 60 hours per year, which could comprise not only events but also meeting nights or other engagement with the organisation. Superintendent Jackson gave evidence that attendance at major events was popular amongst St John staff compared to attendance at smaller less significant events and hence there was competition for attendance at major events. This is not surprising. Because St John staff were assigned to divisions, any given staff member would not be eligible to attend most of the 5,000 events per year conducted by the organisation State wide because the great majority of those events would be conducted by other divisions or other regions. Given the desirability of attendance at major events, the mere ratio of major events to total events does not prevent the appellant’s authority being “significant”.
Ms Oudshoorn and Ms Mamys gave evidence that the State Cadet Officer had authority to decide that cadets in general could not attend a particular event (for example in relation to Schoolies week). Ms Oudshoorn gave evidence that a St John staff member’s Divisional Superintendent could veto the attendance of a particular staff member at a particular event for want of qualifications or disciplinary reasons. The mere fact that attendance at major events could be vetoed by other persons exercising different criteria and from different perspectives does not entail that the appellant did not have authority to determine attendance at major events for which he was the event planner.
The mere fact that a particular event would not necessarily be over-subscribed does not, for the reasons given above, entail that the appellant did not have authority to determine attendance at major events for which he was the event planner.
The appellant makes an overarching submission that the Judge erred in concluding that, by reason of his role in relation to determination of the attendees at major events, he had the authority to determine significant aspects of A’s terms and conditions of employment as at the date of each alleged offence (5 August 2012, 27 August 2012, 9 October 2012) or of B’s terms and conditions of employment as at 10 March 2013.
Organisation charts tendered by the prosecution show that, leaving aside the appellant and Mr Pinkard, in the second half of 2012 Mr Hawkins and Mr Wright were working in the major events group. Superintendent Jackson gave evidence that Mr Pinkard focused on higher level functions and the appellant was second in charge of that group. The evidence established that the appellant performed the event planning role for a substantial proportion of the major events. Ms Whitehead gave evidence that by 2013 the major events group comprised only Mr Pinkard and the appellant and Mr Pinkard focused on high level functions and emergency response. While evidence was given that other persons (providing assistance on an ad hoc basis) were involved in rostering of attendees to specific roles at major events, this does not affect the primary role of determining who attended at major events in the first place.
In the case of paid full-time employment, the hours of work per week are likely to be determined in advance and not to vary from week to week. The person who determines that number of hours per week will ordinarily have authority to determine significant aspects of the employee’s terms and conditions of employment. In the case of casual employment, hours of work per week may well be determined on a week to week basis. The person who determines how many hours per week an employee works will ordinarily have authority to determine significant aspects of the employee’s terms and conditions of employment. Paragraph (h) specifically contemplates that a child may be working in a voluntary capacity. In such a case, the person who determines which events a child attends may well have authority to determine significant aspects of the child’s terms and conditions of employment.
Having regard to the findings made by the Judge and all of the relevant evidence, it was open to the Judge to find that as at the date of each alleged offence the appellant had authority to determine future attendance by each of the complainants at a substantial portion of future major events and that the appellant had authority to determine significant aspects of each complainant’s terms and conditions of employment.
This ground of appeal is not established.
Conviction on count 2 unreasonable
The appellant contends that his conviction of unlawful sexual intercourse on count 2 is unreasonable or incapable of being supported having regard to the evidence.
It is common ground on appeal that the approach to be taken by an appellate court was articulated (albeit in the context of common form civil appeal provisions) by the High Court in Fox v Percy,[26] in which Gleeson CJ, Gummow and Kirby JJ said:
[26] [2003] HCA 22, (2003) 214 CLR 118.
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in . . . operation”.
… If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[27]
[27] At [23], [25]-[29] [footnotes omitted].
Earlier in M v The Queen[28] in the context of the common form criminal appeal provision Mason CJ, Deane, Dawson and Toohey JJ had said:
[28] (1994) 181 CLR 487.
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
It was with those considerations in mind that some members of this Court have
thought it necessary to qualify the statement by Barwick CJ in Ratten v. The Queen that:"It is the reasonable doubt in the mind of the court which is the operative factor".
Barwick CJ went on to say:
"It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration."
The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot
But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.[29]
[29] At 493-495. (Footnotes omitted).
It is important to bear in mind that, when credit is in issue, as juries are daily directed, ordinarily it is open to the trier of fact to reject the evidence of a witness on one topic and even find that the witness deliberately lied on that topic and yet accept the evidence of the witness on another topic. Of course, again as juries are daily directed, the trier of fact will need to consider the implications of rejecting the evidence of a witness on one topic for the witness’s credit generally and in respect of the witness’s evidence on the other topic.
The appellant contends that there were inconsistencies in and other aspects of A’s evidence that should have caused the Judge to doubt her honesty and hence credit and to have a reasonable doubt about whether penetration occurred on 27 August 2012. The appellant groups these matters under three broad headings: matters relating to credit generally; A’s evidence relating to the incident in the Communications Centre the subject of count 7; and A’s alleged suppression of communications with the appellant in 2013 and 2014.
There was no dispute at trial that on the late evening of 27 August 2012 the appellant picked up A from her home in his car, drove to an area near a train line, parked the car and touched A’s breasts. The critical issue in dispute was whether the appellant inserted fingers in A’s vagina. There was no suggestion that A may have been mistaken about this and hence no issue as to the reliability of her evidence. The sole issue was as to her credit and honesty: was she truthfully describing what occurred or was she making it up? The focus of the appellant’s submissions on appeal is therefore on the Judge’s favourable credit finding as to A’s evidence.
Ultimately it is necessary to make a holistic assessment having regard to the whole of A’s evidence and evidence of other witnesses said to be inconsistent with or relating to her evidence to determine whether, as the appellant contends, it was not open to the Judge to accept that she was an honest witness and/or to accept her evidence about penetration having occurred on 27 August 2012. However it is necessary first to consider each matter relied upon by the appellant as impeaching her credit.
Matters relating to credit generally
The appellant identifies five aspects of A’s evidence relating to her credit generally that he contends ought, either themselves or in conjunction with the other aspects of her evidence referred to under the other two headings, to have caused the Judge to entertain a reasonable doubt as to her credit and as to whether penetration occurred on 27 August 2012.
The first matter identified by the appellant is that in A’s first statement to the police in October 2014 she said that she did not speak to the appellant on Facebook for about a month after 27 August 2012; whereas in cross-examination she was shown Facebook exchanges between the appellant and herself and agreed that the appellant contacted her on Facebook on 2 September 2012.
The second matter identified by the appellant is that in November 2013 A told a Facebook friend that the appellant had starting talking to her when she was 16, in September 2014 she told another friend on Facebook that when she was 15 the appellant picked her up in his car at 11 o’clock at night and took her to a train line, in October 2014 in her first statement to the police she said that she was 15 when the appellant began Facebook communications with her and in May 2015 she told Facebook friends in a group chat that she had been receiving attention from an older guy at 15. However an attack on A’s credit founded on the age she initially reported to the Police is not supported by her first statement as it is clear that this was a result of a miscalculation. In the second paragraph she states that she was 12 when she joined St John in 2007 (which is consistent with her date of birth in June 1995) yet in the next sentence she says that she was 15 in 2012. As she nominated the correct year for her initial interactions with the appellant, it is clear that the misstatement of her age was a result of miscalculation rather than an attempt to mislead. The Judge said that he had had regard to all of the detailed and trenchant criticisms of A’s credibility and reliability made by counsel for the appellant and made the observation that he did not consider the matters pointed to by the defence assumed the significance contended for. The Judge then said:
I had ample opportunity to carefully observe [A] during a fairly prolonged stay in the witness box. To the limited extent that demeanour assists in assessing credibility, I found her to be an honest witness, doing her best to give a truthful and accurate account of events. Of course, from time to time she was shown to be mistaken in her recollection, relating to such things as dates, or other precise details of events occurring over a number of years. However, in the content and delivery of her evidence, including under cross-examination, she came across to me as truthful.
When A had the Facebook conversation with her friend in September 2014 and gave her first statement to the police in October 2014, it was more than two years after the events of 27 August 2012. It was not inherently implausible that two years later her recollection was that there had been no Facebook contact for about a month after the car parking incident when in fact it was just less than one week. Nor is it inherently implausible that her recollection of her age when Facebook communications began with the appellant or the car parking incident occurred was inaccurate. She gave evidence that she was not good with dates. It was open to a trier of fact to find that these matters did not reflect adversely on her credit or even on her reliability in relation to events as opposed to time periods.
The third matter identified by the appellant is that in her evidence in chief A was asked about a Facebook message she sent to the appellant on 12 April 2012 in which she said “…I just don’t tend to start FB conversations that much” and asked whether the majority of Facebook conversations with the appellant were initiated by him. She said that they were always initiated by the appellant; she was not very confident in starting conversations with guys; and she was never really the one to start the conversation. In cross-examination she was asked about this evidence and said that there were some occasions when she initiated the conversations with the appellant but on the great majority of occasions they were initiated by him. She was taken to four Facebook exchanges in 2012 and agreed that on three of those occasions she initiated the contact. She also accepted without being taken to them that on 14 occasions in 2014 she initiated contact. She maintained that these collectively comprised only a small minority of the total Facebook communications and was not challenged in that assessment.
The Judge said in relation to this evidence:
Other defence arguments going to [A]’s reliability or credibility in general, include an answer in examination in chief that she ‘never’ initiated Facebook exchanges with the accused, which is incorrect. She admitted as much. I consider the use of a generalisation which is not literally true, does not undermine her evidence. The chat logs for the relevant period in 2012, speak for themselves in this regard.
It was open to a trier of fact to find that this matter did not reflect adversely on A’s credit or even upon her reliability.
The fourth matter identified by the appellant is that A is said to have denied hating or having any antipathy towards the appellant; whereas her chat logs with B show a hatred of him and a desire for him to be punished.
In cross-examination A was asked about a Facebook exchange with another friend in 2012 in which she said that she hated the appellant and she said that this was how she felt at the time. She said that on some occasions she hated him and on other occasions she did not. Although she was cross-examined extensively on her chat logs with B, she was not cross-examined on any passages therein in which she expressed hatred of or antipathy towards the appellant. It was not put to her in cross-examination that there was any inconsistency between her evidence in court and her chat logs with B in this respect. There is no merit in this complaint.
The final matter identified by the appellant under this heading is that A embarked upon an extensive course of communications with B on Facebook in which they discussed details of the allegations, prosecution of the appellant, evidence and likely penalties. The appellant does not identify why those communications required the Judge to reject A as a witness of credit. The Judge was entitled to accept her as a witness of credit notwithstanding those communications.
Evidence relating to communications room incident
The appellant identifies several aspects of A’s evidence relating to count 7 that he contends ought, either themselves or in conjunction with the other aspects of her evidence referred to under the other two headings, to have caused the Judge to entertain a reasonable doubt as to her credit and as to whether penetration occurred on 27 August 2012.
A gave evidence of an incident that occurred on an occasion when she attended at the St John Communication Centre at Camden Park. She said that the appellant was the supervisor in the communications room and sent her text messages asking her to go to the bathroom and send him pictures of her naked. When she walked out of the communications room, he followed her, guided her to the wall, put his hand down her pants and inserted two fingers into her vagina. The appellant stopped when he appeared to hear someone coming or was otherwise distracted. This incident was the subject of count 7.
It was evident from the cross-examination of A that there was no dispute that an incident of the nature described by her occurred in the communications room. The only dispute was when it occurred.
A gave evidence in chief that this incident occurred on Anzac Day in 2013. In cross-examination it was put to her that the incident did not occur on Anzac Day in 2013 and she said that she was a hundred per cent sure that it occurred. It was put to her that the only time that she had contact of an intimate nature with the appellant at the Communications Centre was on the occasion of the Christmas pageant in 2013 and she said that was incorrect. She accepted that she may have been at the Communications Centre on the occasion of the Christmas pageant in 2013.
A was then shown chat logs with a Facebook friend on 25 November 2013 in which she told her friend that the appellant touched her up at Camden Park while everyone was doing comms in the other room and this happened on the day of the pageant. The cross-examination then included the following passages:
Q.You were talking about an occasion at the Christmas pageant at Camden Park, aren't you.
A.This is the occasion that I'm referring to that I've been referring to all along. I have always thought it was the Anzac vigil - the Anzac Day march, but if it was the pageant as you are suggesting it was this is still the same incident that I have been responding to the whole time.
Q. There is only one incident.
A. Yes, there is only one incident.
…
Q.So when you are writing to [the Facebook friend] on 25 November, the pageant has only been and gone a few days before that.
A. Yes.
Q. Two weeks before it.
A. Yes.
Q. And so the events of that day were fresh in your memory then, weren't they.
A. Yes.
Q.And you are telling [the Facebook friend] that the occasion when you had some intimate contact with Mr Symons was at the pageant.
A. That is what - yes.
Q. Not at Anzac Day.
A. That is what I've told [the Facebook friend], yes.
Q. Does that refresh your memory.
A.I still remember it being Anzac Day but if that is what I've told Megan here then it would make sense that it was the pageant.
Q. You were absolutely sure that it was Anzac Day before weren't you.
A.I am sure that it was Anzac Day. I know what happened in that COMS room regardless of whether the dates being relevant or not.
…
Q. [A] did you change your evidence to make it Anzac Day because you knew that on Anzac Day you were 17.
A.No, it never had anything to do with the age. It had to do with what happened in the COMS room.
Q.It never had anything to do with the age.
A.I didn't - if you are insinuating that I have changed the dates to make it seem like I was younger, that was not my intention at all. I have given my evidence as the police have asked me the best of my memory. And that is when I believed, and I still am now even a bit confused because in my head I still believe it to be the Anzac Day when this occurred.
On a fair reading of the whole of A’s evidence, she accepted that objectively the incident in the Communication Centre occurred in November 2013 but said that her memory was that it had occurred in April 2013.
The Judge found that it was likely that the incident occurred in November 2013 but this did not adversely affect A’s credit. The Judge said:
There is one other specific topic I need to deal with at this point. As will be seen later in this judgment, in dealing with count 7, I consider she has been mistaken in her recollection that an incident she describes happening at Camden Park, occurred on Anzac Day 2013. I shall deal with the details of this, when I come to consideration of count 7.
For present purposes, I need to apply my findings and conclusions as to count 7, to my consideration of count 2. Mr Abbott SC refers in his written submissions to the ‘obliteration of her credit in relation to count 7’.
I do not accept this submission. As will be seen, my conclusions on count 7 do not arise from an obliteration, or even minor damage, to her credit. Rather, it appears that in her mind she may well have transposed an incident that did occur at Camden Park, to a recollection that it occurred on a different date at Camden Park. When finally confronted with her own Facebook message she showed none of the indicia of a person caught in a lie. On the contrary, she came across as an honest person in a genuine dilemma between her recollection of when the incident occurred; and being reminded by her fairly contemporaneous Facebook message that it occurred on a different occasion.
For that reason, in my view all that occurred in relation to count 7 is that the incident has been genuinely transposed in her memory to a different date. She readily acknowledged this when shown her own Facebook message but maintained that her recollection remained the same. I do not consider this obliterates or even diminishes, her credibility.
…
Mr Abbott SC suggested in cross-examination that the shift in dates had been intentional on [A]’s part in order to bring the incident to a date prior to her eighteenth birthday. [A] denied this. I do not consider there is any evidence suggestive of a deliberate shifting of the date on her part.
The appellant contends that there are three specific matters which cannot sit with the Judge’s conclusion that A made an innocent mistake. The first matter is that A gave evidence that on the night before she attended at the Communications Centre at Camden Park she had been driven around the Anzac Day eve vigils by a State officer. The appellant points to the fact that this could not have occurred on the eve of Christmas pageant, which may be accepted. However A gave evidence that she had attended at the Communications Centre on several occasions. There was no inconsistency between her evidence about attending on Anzac Day after being driven around the vigils and her attending on the day of the Christmas pageant.
The second matter is that A gave evidence that when she was in the communications room at Camden Park she received a telephone call from an officer to discuss a move to another division when she turned 18. The appellant submits that, as A turned 18 and was transferred to the other division in June 2013, she could not have received the call at the time the incident occurred in November 2013 and this must be an invented detail. However, if as the Judge found A had confused her attendances at the Communications Centre between April 2013 and November 2013, a conversation with the officer could have occurred in April 2013 and she was mistaken in her recollection that it was this conversation that led her to leave the communications room when the incident with the appellant occurred.
The third matter is that A gave evidence in cross-examination that she was 100 per cent sure that on the day of the incident she was wearing the black and white cadet uniform (the adult uniform being green). The appellant contends that she could not have been wearing the cadet uniform at the time of the incident in November 2013 because she was then 18. However in re-examination she gave evidence that there were ceremonial occasions when she wore her cadet uniform even after she became an adult.
Considered holistically, it was open to the Judge as the trier of fact to accept that A was mistaken as to the specific occasion on which the incident at the Communication Centre took place and had not fabricated its being Anzac Day in order to implicate the appellant in having sexual intercourse with her while she was still 17.
Finally under this heading, the appellant submits that the Judge reversed the onus of proof in three sentences in the passages extracted at [162] above. There is no ground of appeal that the Judge made an error of law by reversing the onus of proof or otherwise and the only order sought on appeal is an acquittal.
The first sentence to which the appellant points is the sentence “When finally confronted with her own Facebook message she showed none of the indicia of a person caught in a lie”. Even in isolation this does not reverse the onus of proof. It is simply an observation about A’s demeanour during cross-examination on this topic. When considered in context, there is no doubt that the Judge proceeded throughout on the basis that the onus of proof lay on the prosecution.
The second sentence is “I do not consider there is any evidence suggestive of a deliberate shifting of the date on her part.” This sentence cannot be read in isolation. In context it is clear that the Judge was affirmatively satisfied that A was an honest witness who had been genuinely mistaken as to the incident having occurred in April as opposed to November 2013.
The third sentence is “Rather, it appears that in her mind she may well have transposed an incident that did occur at Camden Park, to a recollection that it occurred on a different date at Camden Park”. The appellant seizes on the words “may well have”. However, it is clear that the Judge used those words at that point in his judgment because of the uncertainty in A’s own mind during cross-examination when the incident occurred and because at this point addressing count 2 the Judge had not yet made any findings about count 7. This is clear from the affirmative finding in the following paragraph that "the incident has been genuinely transposed in her memory to a different date”.
Suppression of evidence
The appellant contends that A suppressed communications with him in 2013 and 2014 and that the suppression and A’s evidence in relation to it ought, either themselves or in conjunction with the other aspects of her evidence referred to under the other two headings, to have caused the Judge to entertain a reasonable doubt as to her credit and as to whether penetration occurred on 27 August 2012.
The 2013 communications that the appellant contends that A suppressed were an exchange of SMS messages between A and the appellant between 12.41 and 1.07 pm on 5 October 2013. Detective Marsland extracted these SMS messages from the appellant’s mobile telephone after it was seized by police in October 2014. They included five sexualised messages by the appellant to A to which she responded with five sexualised messages of her own.
A table containing the details of the 5 October 2013 SMS messages was put to the appellant in cross-examination and she acknowledged that she participated in that exchange of SMS messages. It was not put to her in cross-examination and there was no evidence that she had deleted these SMS messages from her mobile phone or that she had suppressed them. No evidence was adduced from Detective Marsland about any discussions by him with A about an exchange of SMS messages in the second half of 2013. In the circumstances there is no basis for a contention that the Judge should have found that A suppressed them.[30]
[30] A had earlier given evidence that to the best of her recollection there were no sexualised SMS messages in 2013 apart from on the day of the incident at the Communication Centre. However the appellant does not suggest that this required the Judge to reject her as a witness of credit and in any event it is readily understandable that by May 2017 when she gave evidence at trial she had forgotten the SMS exchange that took place in October 2013.
The 2014 communications that the appellant contends that A suppressed were an exchange of Facebook messages between A under her new name and the appellant between 12 June and 23 September 2014. Detective Marsland extracted these Facebook messages from the appellant’s computer after it was seized by police in October 2014. They included sexualised messages passing between the appellant and A and A seeking to meet up with the appellant for social or sexual purposes in respect of which he failed to meet up with her.
A accepted in cross-examination that when she was first interviewed by the police in October 2014 she gave the police access to her first Facebook account in her original name but not to her second Facebook account in her new name. She gave as the explanation for this that she did not think that there was anything relevant to do with the questions she was asked on the second Facebook account.
A gave evidence that she gave Detective Marsland access to her second Facebook account when he asked for it. She was unsure when this was and said that it was probably on the second or third occasion on which he took a statement from her.
The Judge addressed the submission made on behalf of the appellant that A had deliberately suppressed the 2014 chat logs in the following terms:
Defence also give prominence to the submission that [A]’s chat logs with the accused in 2014 were concealed from the authorities by [A]. The thrust of [A]’s evidence is that she told the police everything that was asked of her, and gave them full access to her electronic devices. The defence submit she must have deleted the 2014 chat logs, because the police discovered them on his computer. Upon the material before me, I find it difficult to make a clear assessment on what necessarily happened in this regard. However, even if I accept the hypothesis that [A] was less than fully frank about the 2014 exchanges until they were specifically raised with her; I do not consider this undermines her reliability or credibility generally, or in relation to count 2. Even assuming she was less than forthcoming in relation to the 2014 chat logs, she had every reason to be embarrassed by their content; and they are discrete from, and well after, the relevant period of time.
The appellant contends that there are inconsistencies between the evidence given by A and the evidence given by Detective Marsland as to when and in what circumstances A told Detective Marsland about and gave him access to her second Facebook account. As to timing, the appellant contends that the evidence is inconsistent because A said that it was in 2015 and Detective Marsland said that it was in 2016. However, the evidence was not inconsistent. Detective Marsland said in cross-examination that he thought that this occurred around mid 2016. A in cross-examination expressed considerable uncertainty about when this occurred and repeatedly said in cross-examination that she did not recall on which occasion of speaking with Detective Marsland this occurred. Although she later said that she thought that it was in 2015, it is clear on a reading of the whole of her evidence that she was not sure of this.
As to the circumstances in which A told Detective Marsland about her second Facebook account, the appellant contends that the evidence was inconsistent because she gave evidence that she volunteered its existence whereas Detective Marsland said that it was he who asked her. However, the evidence was not inconsistent. Detective Marsland said that A told him that she had been communicating with B on Facebook, he asked her for access to the account and she gave him access to the second Facebook account. A gave evidence that she gave Detective Marsland access to her second Facebook account when he asked for it. On a reading of the whole of her evidence she did not assert that she volunteered the existence of the second Facebook account.
Detective Marsland gave evidence that the exchanges between A and the appellant between June and September 2014 found on the appellant’s Facebook account were not found on A’s Facebook accounts. The appellant contends that A deleted these messages; falsely denied their deletion; and deleted them because they were harmful to her story because they involved her being very forward in proposing sexual interaction with the appellant to which he did not positively respond.
It was put to A in cross-examination that the 2014 chats with the appellant did not appear on the downloads from her Facebook accounts. She gave the following evidence:
Q.The 2014 communications appear in neither of your Facebook downloads, do they.
A.The 2014 ones?
Q.Yes.
A.I don't know.
Q.Did you delete them.
A.I don't believe I did, no.
Q.So if we were to look in your Facebook downloads, seeing that you didn't delete them, we would find them there, would we.
A.I don't remember deleting them if they are no longer there.
Q.You agree that they are no longer there.
A.I can't answer that question, I'm not sure.
Q.Do you deny that you deleted them.
A.I don't deny but I don't agree that I - I'm unsure, I'm not sure whether I have or not.
…
Q.The only answer is that you must have deleted them, mustn't you.
A.I delete chats with people all the time to do with whatever. People clean up their Facebook account so you don't have - I've gone through and deleted other messages from other friends, but not relevant to anything to do with this.
Q.But this is a person in respect of whom you've made very serious criminal allegations.
A.If I have deleted anything it's not been with the intention of hiding anything. It's just - why do you delete messages off your phone? When your inbox gets too full you delete stuff.
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.
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