R v Symons - [2017] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SYMONS
Criminal Trial by Judge Alone
[2017] SADC 94
Reasons for the Verdicts of His Honour Judge McEwen
25 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
Daniel Patrick Symons is charged with various sexual offences pursuant to the Criminal Law Consolidation Act 1935 (SA) s 49(5) and s 63B; against two complainants. The charges pursuant to s 63B are based upon conversations and exchange of images, upon Facebook and Snapchat. The charged conduct occurred during a time that each of the complainants was aged 16 to 17 years.
The accused was a State Officer Grade 4 with St John Ambulance SA; The complainants were St John Ambulance SA Cadets. Whether the accused was in a position of authority as defined in the Criminal Law Consolidation Act 1935 (SA) s 49(5a)(f) and s 63B(6)(f).
Verdicts:
Counts 1, 2, 3, 4, 5, 6, 9, 10 and 11 – Guilty.
Counts 7 and 8 – Not Guilty.
Criminal Law Consolidation Act 1935 (SA) s 49, s 62, s 63B(3)(a), s 63B(3)(b), s 63B(6)(f); Evidence Act 1929 (SA) s 34P, s 34R, referred to.
R v Richards (2016) 125 SASR 341; R v Richards No. 2 [2016] SADC 2; R v Barlow [2014] SADC 197; Hollis v Vabu [2001] CLR 21, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"position of authority", "prurient purpose", "expose body", "sexual activity"

R v SYMONS
[2017] SADC 94
The Charges

Daniel Patrick Symons is charged with a total of 11 offences, allegedly committed upon two child complainants, [DP][1] and [EA].
[1] On the Information and some exhibits DP is referred to by the name DC.
The charges relating to DP are:
·Making a communication with the intention of procuring a person under 17 years to engage in or submit to sexual activity – Count 1;
·Two counts of unlawful sexual intercourse by a person in a position of authority – Counts 2 and 7;
·While in a position of authority making a communication with the intention of procuring a person under 18 years to engage in or submit to sexual activity – Count 3;
·Three counts of while in a position of authority and acting for a prurient purpose causing or inducing a person under 18 years to expose her body – Counts 4, 5 and 6.
The charges relating to EA are:
·Making a communication for a prurient purpose with the intention of making a child under 17 years amenable to sexual activity – Count 8;
·Three counts of while in a position of authority, and acting for a prurient purpose, causing or inducing a person under the age of 18 years to expose her body – Counts 9, 10 and 11.
In due course, I shall come to the ingredients of the offences charged; and to the factual allegations that are said to make out each offence. However, from the outset I highlight an important distinction between the various offences charged. The distinction relates to the prescribed age. In this regard, counts 1 and 8, are on a different footing to the remainder of the charges on the Information.
For each of counts 1 and 8, the prosecution need to prove the complainant was under 17 years of age. It is alleged, for each of those counts, that the complainant was aged 16.
However, for the remainder of the offences charged, the prosecution allege the relevant complainant was aged 17 years. Accordingly, in order to make out any of the remaining charges, the prosecution need to prove (inter alia) that the accused at the relevant date, was in a ‘position of authority’ in relation to the complainant child. It is only if that ingredient is proved beyond reasonable doubt that the ‘prescribed age’, for those nine counts, becomes 18 years of age. I shall return to this issue, which, not surprisingly, received significant attention during the trial.
By way of brief introduction, the prosecution case on counts 2 and 7 is that on two occasions, the accused had digital sexual intercourse with DP. The defence, inter alia, is that there was no digital sexual intercourse on either of the dates alleged and that in any event, the accused was not in a position of authority in respect to DP. The prosecution case on the remaining counts is that the accused engaged in Facebook exchanges with DP and EA. Some of those Facebook conversations were accompanied by exchange of photographic or video images. It is the Facebook communications and exchange of images which essentially comprise the offences charged. The defence, inter alia, is that the accused was not in a position of authority; and further, that the Facebook communications, even if proved, do not constitute the offences charged, for a variety of reasons which I shall turn to in detail in due course.
General Directions
There are a number of general directions and principles I need to bear in mind in my consideration of this matter.
·the burden of proving any charge rests upon the prosecution. A verdict of guilty can only be brought in if the prosecution has proved the charge; which means every ingredient of the charge; to my satisfaction beyond reasonable doubt;
·the accused comes to this court with the presumption of innocence in his favour. He is deemed to be innocent of each and every charge until the prosecution have proved the charge beyond reasonable doubt;
·the accused in this trial has exercised his right to silence.[2] He is entitled to make that choice, and I must not draw any adverse inference from that;
·it is an agreed fact that the accused has no prior convictions. I have had regard to that, when considering whether I am prepared to conclude, upon the evidence before me, that he is proven guilty of any one or more of the charges;
·there are 11 charges on the Information. I need to give separate and discrete consideration to each charge individually. My conclusion on any individual charge is not to be used as any sort of makeweight or substitute for proper proof in my consideration of any other charge.
[2] In that he declined to answer police questions; and chose not to give evidence at trial.
As well as those general directions, there are some specific topics that arise in this trial, upon one or more of the charges. It is convenient that I deal with the broad directions and principles applicable to these topics at the outset. Naturally, I will have full regard to these matters as they arise on the particular charges to which they are relevant.
Sexual Activity
Counts 1, 3 and 8 are charges of making a communication with the intention of procuring a child to engage in or submit to sexual activity. The phrase ‘sexual activity’ is not defined in the Criminal Law Consolidation Act 1935 (SA) (the Act). However, its meaning was considered by the Court of Criminal Appeal (CCA) in R v Richards.[3] In that case Kourakis CJ (with whom Nicholson and Lovell JJ agreed) noted:
The Director of Public Prosecutions (the Director) emphasises the mischief to which the provision is addressed and that the purpose of the offence is to protect children from sexual offending by prohibiting grooming by predators with that end in mind. That purpose can be accepted but the aim of the provision is probably even more far reaching than that. The provision addresses not only the risk that sexual activity will take place but also aims to protect children from lewd communications which may be harmful in themselves.
It can be accepted that these are reasons to give the term sexual activity a wide meaning.
…Whether or not an activity is a sexual one is a question of fact which will be informed by the life experience of the tribunal of fact. The context in which the activity occurs will be important. That context includes all of the manifestations of the conduct which are perceptible by the parties to the communication or any one of them. The context, importantly, includes the absence of circumstances which provide a valid reason for the communication, like a genuine medical or parenting reason. In that respect, the context will also include the prurient purpose of the accused. That purpose is likely to be a very important factor but it will not be determinative.
…It is not necessary on this appeal to finally determine the metes and bounds of the concept of sexual activity. It is sufficient to say that the conduct to which the appellant sought to make the ‘child’ amenable fell within that concept.
[3] (2016) 125 SASR 341.
In his reasons for verdict in the same matter[4] Millsteed DCJ reasoned:
In my view, the prosecution took an unnecessarily restrictive view of what could constitute sexual activity for the purposes of count 3. It was open to the prosecution to argue that the accused spoke about wanting to slide his penis into her pussy while he was masturbating because he was seeking to elicit from her a response that would sexually excite him while performing that act. In other words, getting Emma to verbally excite him by engaging in ‘dirty talk’ while he masturbated (or even if he was not masturbating) would constitute a sexual activity for the purposes of the legislation.
I note that in R v Barlow[5] Smith DCJ found that the accused was not guilty of an offence under s 63B(3)(b) because it was reasonably possible the accused was ‘merely involved in a sort of unilateral phone sex and was content with that, and in particular had no intention of further involving the complainants’. I respectfully agree with that view. However, if the accused had for a prurient purpose engaged in ‘phone sex’ with the intention of getting the child to engage in a mutual sexualised phone conversation that would, in my view, constitute a breach of s 63B(3)(b). In other words, a sexual activity may be purely verbal.
[4] R v Richards No. 2 [2016] SADC 2.
[5] [2014] SADC 197.
Mr Abbott SC correctly submits that the CCA do not explicitly agree with the passage I have just quoted from Judge Millsteed. Nor do the CCA rule out that interpretation. I am not bound by the decision of Judge Millsteed. It is a matter for me to determine whether the facts as I find them to be in this case, come within the statutory provision. In doing so, I need to apply the principles enunciated by the CCA in Richards.
I am mindful of the general defence arguments on this topic; firstly that ‘conversations simpliciter do not amount to sexual activity, you have to have actual activity’.[6] Secondly, in any event, the chat logs do not enable the court to infer beyond reasonable doubt an intention on the accused’s part to procure the complainant to engage in or submit to sexual activity.
[6] T922.
I shall return to those principles, and arguments, in my consideration of counts 1, 3 and 8.
The Chat Logs and Evidence Act s 34P and s 34R
Counts 1, 3, 4, 5 and 6 are all charges which arise from the Facebook communications known as chat logs between the accused and DP. Before considering the individual counts, I turn to a consideration of the totality of the Facebook chat logs between the accused and DP between 27 March and 3 November 2012. I set out some examples of conversations in those chat logs, which potentially throw light upon the accused’s motivation for, and gratification from, the Facebook exchanges he has with DP. These are examples of a very persistent theme throughout the totality of the chat logs.
On 9 October 2012 after DP has engaged in explicit conversation with him and says she is going to bed:[7]
DS     no you got me all horny now you can finsh me off[8]
[7]    Exhibit P8, page 37: I am setting out selected extracts, not the full exchanges.
[8]    I quote the chat logs verbatim irrespective of spelling or grammatical errors.
The same date, whilst he is waiting for her to take a photograph and send it to him:[9]
DS     think of me wanking my big cock over it
DS     fuck im hard
[9]    Exhibit P8, page 35.
On the same date after the first photograph is sent:[10]
DS common full nude you got my cock so hot
[10] Exhibit P8, page 31.
On October 10 2012:[11]
DS God you make me horny
[11] Exhibit P8, page 26.
On October 10 in a Facebook conversation where she has asked ‘who actually makes the final decision about cadets going to Schoolies’:[12]
DS     Me
DP     better be nice to me and say yes then :)
DS     Suck my cock and I’ll say yes
DS     Say Daniel I’ll suck you big hard cock
DS     Say it……
DS     Maybe when you say it
[12] Exhibit P8, page 23 to 22.
Later on October 10:[13]
[13] Exhibit P8, page 22 to 21
DS     Let me come over
DP     I can’t now, tomorrow?
DS     :( now
DP     I’m supposed to be having a study day, but i can make an exception
DP     Nah I’m sorry I can’t tonight,
DS     Phone sex
DP     I have a room mate next to me …. definitely go down well if she heard.. come over tomorrow!!!
DS     I’m horny
DP     you’re always horny! ahha
On 19 April 2012:[14]
DS but i dont think you want to continue having the sort of convos i like to have
[14] Exhibit P8, page 156.
22 April 2012:[15]
DS see im having normal convos today lol
[15] Exhibit P8, page 152.
23 April 2012:[16]
DS we can stop this line of convo if you want
[16] Exhibit P8, page 149.
28 July 2012:[17]
DS     I’m so hard lol
DP     gotta contain yourself until im home alone ;)
DS     Help me out
DS     Mmmm how long till then
DP     …I dont think im gonna be home for awhile.
DS     Ok I’m off msg me when free
[17] Exhibit P8, page 132.
5 August 2012:[18]
DS common just say one thing about my cock then go please
[18] Exhibit P8, page 126.
6 August 2012:[19]
[19] Exhibit P8, pages 114 to 110.
DS     so tell me about the 3some
DS     what would you like them to do to you
DS     just imagine
DS     just for fun
DP     nahh im not in the mood to talk sexually lets just talk nicely tonight
DS     just this then ill shut up
DS     pls tonight do this for me then ill shut up for a week
DS     I REALLY NEED THIS
DS     pls for me then
Those examples from the chat logs are representative of a consistent theme in the accused’s communications with DP throughout the period March to November 2012. Some of those excerpts overlap with offences charged on the Information; some do not. In my individual consideration of each of counts 1, 3, 4, 5 and 6, I propose to treat the remainder of the conversation in the Facebook chat logs with DP as discreditable conduct evidence.[20] It may be that this approach is not strictly necessary. It may be arguable that evidence comprising other charges on the same Information, relating to the same complainant, does not attract the discreditable conduct provisions of the Evidence Act 1929 (SA). Although similar principles would still be applicable to the issue of cross admissibility between counts. However, given the intermingling of conversations that are part of a charged incident, and other conversations that are not, I consider the safest course is to treat the remainder of the Facebook conversations between the accused and DP, in the period March to November 2012, apart from the count under consideration, as being discreditable conduct.
[20] By ‘remainder’ I mean all but the conversation comprising the specific count under consideration.
I consider the discreditable conduct evidence is admissible for the following permitted use:
·to explain the accused’s motivation for participating in the charged conversation;
·to show the accused gained sexual gratification from the charged conversation;
·to demonstrate there is no innocent explanation for the charged conversation, such as that the charged conversation is purely platonic, or of a joking nature.
I consider the discreditable conduct evidence admissible for those permitted purposes in relation to counts 1 and 3, as being relevant to the requisite intent that the prosecution is required to prove. I consider that the discreditable conduct evidence is admissible for those permitted purposes in relation to counts 4, 5 and 6 as relevant to the prurient purpose the prosecution is required to prove. I do not have regard to the discreditable conduct evidence in relation to counts 2 and 7. I do not have regard to the EA evidence in my consideration of the DP charges; or vice versa.
As I have noted above I am confining myself to the chat logs from March to November 2012. I do not have any regard to the subsequent exchanges between the accused and DP in 2014.[21]
[21] Although these were in the P8 booklet, only limited extracts of these were ultimately tendered. Those extracts are not relevant for s 34P purposes.
I am satisfied that the probative value of the evidence admitted for those permissible purposes, substantially outweighs any prejudicial effect it may have on the defendant. In being satisfied of that, I consider the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for an impermissible purpose.
I consider the evidence may be used for the permissible purposes I have outlined above. I am scrupulous in not using the evidence for any impermissible purpose, including:
·to suggest that the defendant is more likely to have committed the offence under consideration merely because he has engaged in the discreditable conduct;
·reasoning that because the accused engaged in the discreditable conduct, he for that reason, is the sort of person who is likely to have committed one or more of the charged offences;
·using the discreditable conduct evidence in any way as a makeweight or substitute, for evidence proving the specific offence under consideration.
Void for Vagueness
In his written outline and his closing address, Mr Abbott SC developed an argument that certain provisions of the Act are void for vagueness. As I understood it, this submission related to any provision which includes the definition of ‘position of authority’; and any provision which includes the phrase ‘amenable to sexual activity’. Accordingly, this argument would apply to all counts on the Information except count 1.
Having considered those submissions, I am not persuaded that any of the relevant provisions of the Act are void for vagueness or uncertainty.
Count 1
Count 1 alleges an offence of Procuring a Child to Engage in Sexual Activity pursuant to the Act s 63B(3)(a), particularised as follows:
Daniel Symons between the 26^th day of March 2012 and the 15^th day of June 2012, at Adelaide, made a communication with the intention of procuring DC, a person under the age of 17 years, to engage in or submit to sexual activity.
This count entails three ingredients:
Firstly, that the accused made a communication with DP;
Secondly, that at the time, DP was a person under the age of 17 years.
Thirdly, that he did so with the intention of procuring DP to engage in or submit to sexual activity.
Dealing with each of these ingredients in turn:
Communication
The evidence is overwhelming that the accused made the communication. I note that Mr Abbott SC submitted that it is ‘not seriously in dispute’[22] that the accused operated the Facebook account and sent the Facebook messages, which are attributed to him in the various chat logs tendered in the trial. Indeed, with respect to the relevant communications in Exhibit P8, which the prosecution relies on for count 1, Mr Abbott SC’s written submission is couched in terms of the accused making those communications. The defence argument is that ‘these messages do not go far enough to prove beyond reasonable doubt that he intended by these communications to procure DP to engage in sexual activity’.[23] Moreover, the cross-examination of DP was predicated upon the chat logs being conversations between the accused and DP. Similarly for the chat logs said to be between the accused and EA.
[22] T229 and T856.
[23] Accused Outline of Argument, 7 June 2016, paragraph [190].

Notwithstanding this, as they are not formally admitted, it is for the prosecution to prove the chat logs comprise communications from the accused. Accordingly, I need to give a brief synopsis of the evidence which I rely on to conclude that Daniel Symons did make the communications attributed to him in the various Facebook chat logs with DP, and in particular did make the communication relied on by the prosecution to establish count 1.
·the Facebook communications commenced shortly after DP, on her (unchallenged) evidence, first met the accused at a St John Ambulance camp in Nuriootpa.[24] She then received a Facebook friend request from the accused, which she accepted;
·call charge records for the mobile telephone numbers of the accused and DP for the period 20 August to 20 September 2012 show numerous text messages between the two numbers;
·the very first communication from the Daniel Symons account commences with ‘enjoy the rest of the camp?’[25] DP’s evidence was that she had just met him at the Barossa camp.
·according to DP, the conversations via Facebook then continued over a significant period of time, interspersed with text messages and some meetings in person. This is supported by the content of the chat logs;
·In the chat logs the accused confirms his position and rank in St John; his age; his employment; mutual acquaintances within St John; and refers to occasions when he has been or will be, participating in St John activities. In short, there is a significant amount of context in the chat logs with both DP and EA, pointing to the accused being the sender of the messages which are attributed to his Facebook account.
·There is evidence that they also exchanged telephone numbers and communicated by mobile phone.
·The chat logs on 27 August 2012 included exchanges whereby the accused arranges to pick up DP at her place.[26] These culminate in the exchange:
DP OK, I will head outside
DS OK
[24] T237.
[25] Exhibit P8, page 190.
[26] Exhibit P8, pages 63 to 58.
It was DP’s evidence that having made those arrangements including her address, she went outside immediately after the exchange and was picked up by the accused in a car.[27] Her evidence to that effect was unchallenged.
·As will be seen later in this judgment, counts 4, 5 and 6 relate to photographs which DP told the Court she sent to the accused via Facebook on 9 October 2012. She identified images which are now P9, P10 and P11 as being the images she sent to the accused’s Facebook account. In December of 2014 when police seized and examined the accused’s laptop computer they located those three images on the computer. Moreover, each of the images on the accused’s laptop has data which, although not fully explained in evidence, is consistent with the image having been sent on the dates and at the times, consistent with chat logs;
[27] T268.
I accept all of that evidence, and find that the accused made the communications attributed to him in the various chat logs with DP, tendered in evidence.
The specific communication relied upon to make out count 1 is a Facebook conversation between the accused and DP during the night and early morning of 23 and 24 April 2012. I shall set out this communication when I deal with the third ingredient. I simply note at this point, that I find the first ingredient of count 1 proved.[28]
[28] Whenever I say ‘proved’ ‘established’ or ‘made out’, I mean proved beyond reasonable doubt. Similarly, whenever I say ‘I find’ I mean I find beyond reasonable doubt.
DP turned 17 years of age on 15 June 2012. Accordingly, she was 16 years of age during the time these communications were made. The second ingredient is made out.
I turn to the third ingredient, namely that the accused made the relevant communication with the intention of procuring DP to engage in or submit to sexual activity.
In her opening, Ms Borek for the prosecution, made the following submission in relation to count 1:[29]
The prosecution case is that it can be inferred from the communication that he intended for her to engage in sexual activity, either by her engagement in the sexual conversation for his gratification or for her to engage in a sexual activity to be communicated to him for his gratification.
[29] T17-T18.
In her closing address Ms Borek submitted:[30]
Counts 1 and 3 in relation to DP and count 8 in relation to EA require Your Honour to find that sexual activity can be purely verbal.
[30] T859.
Those submissions put the focus upon the content of the chat logs. It is the chat logs themselves that are said to amount to sexual activity within the principles discussed earlier in this judgment.
As noted above, the specific communications relied upon to make out count 1 occurred on 23 and 24 April 2012.
However, the Facebook communications between the accused and DP commenced on 27 March 2012. I shall not set them out in full, but the conversations leading up to the charged occasion include:[31]
DS think you might like the older guys lol
DS you married?
[31] Exhibit P8, pages 185 to 176.
After she had already told him she would turn 17 in June that year.
DS     are you single was the real question lol
A number of suggestions that she have fun:
DP     well whats your idea of ‘fun’ then haah?
DS     lol not sure i should say lol
When asked what he is getting at:
DS     i might step over that line if i say
DS     having fun touching, kissing and sex lol?
DS     you like to be touched downstairs?
DS     you sure you comftable with all this?
DS     what could this guy do to you
The above excerpts are all taken from 27 March 2012, the date that the accused and DP commenced Facebook exchanges. Continuing excerpts from the conversation between 27 March and 23 April:[32]
[32] Exhibit P8, pages 175 to 165.
28 March:
DS     i feel i may have steped over the line yest?
DS     do you like having thoses sort of convos?
DS     so want to keep having them or not?
DS     all our chats are they just between you and me?
DS     so is there still that ‘line’ in our convos?
DS     do you like having the convos like that?
On 9 April, following a series of questions asking whether she has exciting underwear:[33]
DS     no really sexy ones lol (g-string lol)
DS     lol you bring the dirty out in me
DS     ever have your own self fun??
[33] Exhibit P8, pages 160 to 157.
The tone is sufficiently repetitive, that DP sends the message:[34]
DP can i ask why all of your questions are sexual?
[34] Exhibit P8, page 157.
Further excerpts from the accused’s messages:[35]
DS but i don’t think you want to continue having the sort of convos i like to have
DS just a quick question all are convos are just between you and me??
[35] Exhibit P8, pages 156 and 154.
In the early hours of the morning of April 23, he asks what she is wearing including details of her underwear. He tells her:[36]
DS we can stop this line of convo if you want
DS i love vagina.
[36] Exhibit P8, pages 149 and 148.
The Charged Conversation: Count 1
The Facebook communications which are the subject of count 1 are an exchange which commences on 23 April, and carries over into the early hours of 24 April 2012:[37]
[37] Exhibit P8, pages 146 to 138. Strictly, it is the accused communications during that exchange which comprise count 1. But DP’s responses are relevant in considering the communications by the accused.
DP     im bisexual,
DS     you been with a girl yet?
DP     kindaa
DS     tell me about it?
DS     and who could you rather male or female
DS     are you wanting to try more things
DP     when i find the right person
DS     need to just try having fun!?
DP     i do have fun ahhaha
DS     how?
DS     sexual fun??
DP     i swear sex is on your mind 24/7. well your a guy… so i guess yes. eh sometimes
DS     what have you done? just between you and me
DP     ask me and ill say yes or no.
DS     finger
DP     id probably call it being felt up with clothes on..
DS     feel good?
DP     yeaa
DS     given a BJ or touched a guy knob
DS     touch self
DS     any questions for me?
DP     you already told a few weeks back
DS     ok you pretty open to try most things with someone you love
DP     yea probably
DS     anal?
DS     might love it
DS     think you might try it?
DS     you can have fun and you need to [DP].
That Facebook exchange continues into the early hours of 24 April:[38]
DS HAVE FUN, LIFES TO SHORT
[38] Exhibit P8, page 137.
Then the following exchange:[39]
[39] Exhibit P8, page 134 to 134.
DS    well if you where here what would you want me to do to you?
DS    fun answer
DP    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
DS    naked cuddle or clothed
DS    remember let go all in the name of fun
DP    I cant let go though, Im not in the mood its not exxciting me
DS    well how could i excite you then
DS    take you mind off things
DP    think im gonna go to bed. Im sorry i cant tonight.
DS    look i just dont get it at all
DP    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..
Ingredients of Count 1 - Continued
Having found the first two ingredients of count 1 proved. I turn to the third ingredient, namely that the accused made the communication with the intention of procuring DP to engage in or submit to sexual activity.
An intention to procure DP to engage in sexual activity means an intention to bring that about; cause it to happen.
As noted from the authority of Richards[40] cited above, the requisite intent does not necessarily need to be an intent to meet the complainant and engage in physical sexual activity. The engagement in Facebook exchanges, in itself, is capable of amounting to sexual activity.
[40] R v Richards No. 2 [2016] SADC 2.
I find it proved beyond reasonable doubt that in engaging in lewd or sexually explicit Facebook conversations with DP, 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 DP; 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 DP 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.[41]
[41] My understanding of the term ‘sexting’ is that it is not confined to SMS communication, but can include similar forms of digital electronic communication including Facebook, Snapchat etc.
I reach that conclusion from the content of the Facebook messages which are the subject of the charge. In doing so, I do not take that conversation in isolation. I have regard to the surrounding Facebook conversations, for the purposes noted above.
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 DP. 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.
The conclusions set out in the above paragraphs arises from the content of the count 1 conversation itself, and the preceding conversations. However, it is also overwhelmingly borne out by the remainder of the chat logs throughout the period up to November 2012.
I also note that in cross-examination DP agreed with the propositions that the accused was ‘all talk and no action’ and ‘only wanted to sext and wouldn’t go through with anything’. I also note the evidence:[42]
Q...did you ever form the view that's what Daniel was into, sexual conversation?
AHe was 100% into it. The conversation was always led in a sexual direction.
[42] T412.
I am mindful that the fact that one party obtains sexual gratification or has a prurient interest in an activity, is not necessarily determinative of it being a sexual activity for the purposes of the section. Some activities which are subjectively sexual for an individual, are not sexual activities within the generally accepted meaning of that phrase. The Chief Justice in Richards cites the example of a shoe fetish. [43]
[43] R v Richards (2016) 125 SASR 341 at [23] - [24].
I do not consider that the accused’s conduct is one of those purely individual or subjective sexual activities. On the contrary, as a question of fact, I consider it falls squarely within the broadly understood concept of sexual activity. As noted, it is the Facebook equivalent of ‘sexting’.
I am not persuaded that the Facebook exchanges amounted to sexual activity from DP’s perspective. Based upon the conversations themselves, and DP’s evidence, I consider she had a different motive than the accused, for engaging in them. Her evidence was that she found aspects of the conversations ‘creepy’, ‘weird’ or ‘disgusting’. She found other aspects of them boring. She acknowledges that she continued to engage in the conversations and thinks this was because she was the only girl in her group not to have a boyfriend, and was a little bit flattered by the attention from the accused.
In my view it is not necessary for the prosecution to prove that DP was motivated by obtaining sexual gratification herself.
Upon the findings I have set out, all three ingredients of count 1 are proved.
Count 3
Chronologically, the next charged offence is count 3. This also alleges an offence of Procuring a Child to Engage in Sexual Activity pursuant to s 63B(3)(a) of the Act, this time particularised as follows:
Daniel Symons between the 15th day of June 2012 and the 25^th day of October 2012, at Adelaide, while in a position of authority in relation to DC, made a communication with the intention of procuring DC, a person under the age of 18 years, to engage in or submit to sexual activity.
This count entails the first and third ingredients outlined above for count 1; but in addition it also entails the further ingredient that the accused was in a position of authority in relation to DP; and then the ingredient that the complainant was under the age of 18 years.
Despite the range of dates pleaded in the particulars in the Information, at trial the prosecution narrowed the particulars of count 3 to communications over Facebook on 5 August 2012.[44] Accordingly, in order to prove count 3, the prosecution need to prove inter alia that the accused was in a position of authority in relation to DP on 5 August 2012. Similarly, for other counts which entail this ingredient, the prosecution need to prove that the accused was in a position of authority in relation to the complainant on the relevant date. This will be a matter for consideration in relation to each individual count which carries this ingredient.
[44] T19.
Therefore before turning to whether that ingredient is proved for the purposes of count 3 as at 5 August 2012, it is useful to deal with this important topic in general.
I shall consider firstly, what is entailed in the concept of position of authority for the purposes of this trial; in other words what directions I need to give myself on that ingredient. Secondly, I shall consider the evidence in general that was directed to this issue during the trial, and the arguments directed to that evidence; and what general findings I make in relation to the issue of position of authority. Thirdly, as I deal with the various charges, I shall consider the issue in relation to each specific count for which this ingredient needs to be proved.
Position of Authority – The Law
All of the counts on the Information which include this ingredient, are charges pursuant to either s 49 or s 63B of the Act. The concept of position of authority is expressed in identical terms in each of those provisions, namely:
(f) 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).
Of course, the definition of position of authority, includes other relationships, which are set out in the subparagraphs (a) to (e). But none of these are directly relevant to this trial. The prosecution specifically rely upon subparagraph (f), in order to establish ‘position of authority’ for all of the relevant counts in this trial.
I am not aware of any South Australian case in which that subparagraph has been considered or interpreted. Nor am I aware of any case in which a trial direction has been given as to the meaning of that definition. It is not included in the standard directions available to trial judges.
Decisions and directions of other jurisdictions are of limited assistance because they do not deal with this specific definition of position of authority.
There is no suggestion that the two complainants, who were cadets in St John, were in paid employment. Whatever activities they participated in were in a voluntary capacity. Nor does the prosecution suggest that the accused was an employer of either child, or himself had authority to terminate the volunteer employment of either complainant. This effectively narrows the practical application of what the prosecution seek to prove in this trial to:
A person who has the authority to determine significant aspects of the child’s terms and conditions of voluntary employment with St John.
It can readily be appreciated that many of the standard significant terms and conditions of paid employment have no application to voluntary work. Obviously the nature and extent of the remuneration package; payment of superannuation or bonuses; overtime; paid sick leave, annual leave and long service leave; and the like, will not feature in terms and conditions of voluntary work. Ms Borek submits that assistance can be derived from what I will broadly call employment law cases.[45] Putting to one side terms and conditions that plainly do not relate to voluntary work, such as those cited above; there remain a number of terms and conditions of employment which can be applied to a voluntary work relationship. These are such things as:
·control over the type of voluntary activities carried out;
·control over the place at which, and hours during which, the voluntary activities are carried out;
·control over how activity is performed;
·authority or power to discipline, reprimand or report for misconduct or not carrying out directions, relating to the voluntary activities (I omit power to suspend or dismiss because, as noted, I do not understand that to be relied upon in this case);
·the wearing of a uniform, whilst carrying out the activities;
·training or instruction on the duties and responsibilities entailed in the volunteer activities;
·credits, promotions, advancements or recognition of work done or other achievements.
[45] E.g. Hollis v Vabu [2001] CLR 21.

The prosecution argues that these are the types of terms and conditions that are contemplated by the definition applicable to this trial.
I accept there is some merit in the submission that employment law cases can be drawn upon to identify the nature of the terms and conditions of voluntary work that are contemplated by the definition in s 49(5a)(f) and s 63B(6)(f) of the Act, primarily in contradistinction to significant terms and conditions of paid employment. However, I need to bear in mind that this is a criminal trial. As the tribunal of fact, I need to decide whether the facts proved beyond reasonable doubt bring the matter within the wording of that subparagraph. I am required to do this, specifically, with respect to each relevant count.
In carrying out that task, I also have regard to the plain purpose of the legislative provisions which contain this concept; namely s 49 and s 63B of the Act. This purpose is succinctly summed up in a passage in the Second Reading Speech. After referring to the various categories contained in the exhaustive definition of position of authority, the Minister continued:[46]
All these people are, by dint of their position of authority, able to wield considerable influence over a young adult’s will. That influence should therefore be exercised with great care and the utmost professionalism, and not to secure consent to a sexual activity. By enacting this provision, Parliament is saying that sexual activity between an adult in such a position and a child of 17 years old is inherently reprehensible and should be a criminal offence.
[46] South Australia, Parliamentary Debates, Legislative Council, 26 February 2008, 1760 (The Hon. P. Holloway, Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning).
In accordance with those principles, I agree with the following paragraphs of the defence outline of argument on this topic:[47]
146. It is therefore submitted that the requirement to establish that the accused was in a position of authority must be confined, by reference to the language of the section, to one of the categories of persons in sections 49(5a)(a)-(f) and 63B(6)(a)-(f). In other words, ‘position of authority’ is to be solely defined by those categories.
147.   As such, it will be a required element of the offence, to be proved beyond reasonable doubt, that the accused, at the time of each count, had the authority to determine significant aspects of the specific complainants’ terms and conditions of volunteering.
150.   It is submitted that the holding of the position of authority must co-incide with the actus reus of the offence, and that, in order to prove the offences, it must be proved beyond reasonable doubt that the accused held the position of authority at the time the act was performed.
152.   Accordingly, for every count, the actual position of the accused vis-à-vis the complainant at that time will have to be ascertained and considered.
[47] Accused’s Outline of Argument, 7 June 2017.
Position of Authority – The Evidence
The prosecution submit that the accused’s role at St John throughout the relevant period entailed ‘influence and control over whether the complainants could attend events or not, and what they actually did at those events’ and that this ‘necessarily means he had authority to determine significant aspects of their terms and conditions of employment’.[48]
[48] T883.
The prosecution identify four aspects of the evidence relevant to establishing the requisite authority on the part of the accused. These are:
·authority to determine which members can or cannot attend any major event; i.e. major event selection;
·the allocation of roles at major events;
·providing directions to cadets at major events, due to being part of that event’s command hierarchy; and
·the accused’s ‘rank and position generally’ allowing him to give directions that cadets must follow.[49]
[49] I treat this point as confined to rank, because his ‘position generally’ is entailed in the first point.
I turn to the evidence on each of these aspects of the accused’s role at the relevant times. I note at the outset that the term ‘rostering’ was used with a lack of precision or consistency during the trial. Sometimes it meant selection; sometimes it meant allocation of roles; and sometimes it appeared to include both of these concepts.[50]
[50] More in questions than answers.
For reasons which follow, I consider the two meanings need to be treated separately. Fortunately the evidence of the witnesses makes the position clear as to which concept they are referring to in their various answers.
Major Event Selection
The evidence of Superintendent Peter Jackson, in conjunction with the accused’s personal service record contained in Exhibit P3, is that the accused was promoted to the position of State Staff Officer Grade 4 on 25 April 2012. By reference to the ‘Operations Branch’ tree diagram of the St John hierarchy, also contained in P3, Superintendent Jackson explained that this promotion put the accused into a team headed by the Group Leader of Major Events, which position was then occupied by Cliff Pinkard. This was referred to during the trial as the Major Event Team; Major Event Group and similar titles including the Major Events Emergency Management Team, and the like. I shall use the title Major Events Group.
According to Superintendent Jackson, St John run thousands of events each year. These include events at a divisional, regional and state level. The major events of which he roughly estimated there were in the order of 40 to 50 per year, are organised, managed and conducted at state level of St John.
He disagreed in cross-examination that the real figure was around 10 or 12 per year.
As to major events conducted at state level, the role of the Major Events Group was explained by Superintendent Jackson as follows:[51]
Q. In relation to events, what was that team's role.
A. So part of their role was to coordinate or plan the event in conjunction with the one then paid staff member Heather McAlister I mentioned a little while ago. They would then roster for that event if it was a large major event, by putting out expressions of interest for people to attend and they would then select those members to actually attend the event. They would also organise resources for the event, so they would do that by identifying the equipment that was required, such as first aid equipment, marquees or other hard infrastructure and make sure that was planned through the operation support services and they would also ensure any communications requirements were met through the communication team, from start to finish, they would then usually hand that over to a commander for that event and then in liaison with that commander ensure it was actually done.
[51] T62.
I am presently focussing on the selection of St John members including cadets, for attendance at major events. However, a brief description of the further roles for the conduct of a major event will assist.
As outlined by Superintendent Jackson in the answer quoted above, an initial selection and planning role was conducted by a team comprising members of Cliff Pinkard’s Major Events Group, with assistance from a paid staff member. A written event plan would be promulgated and signed off by an individual event planner, from within the Major Events Group. The event plan would nominate a hierarchy for the conduct, management, and operation of the event.
At the top of that hierarchy was the Gold Commander who was the State Duty Officer. This is not a hands on position at an event, but is the senior level operations member who is on call for the contingency that some major emergency or disciplinary issue arises. The Gold Commander then ‘acts in the shoes of the State Superintendent until they can get hold of the State Superintendent’. In the absence of that type of issue arising, the Gold Commander need not be contacted or have any actual role in the event at all.
The hands on management and running of the event is headed up by the Silver Commander, also known as the Event Commander.[52] The Event Commander is ultimately in charge of the event on the day, but there is also a clinical supervisor who, working in cooperation with the Event Commander, has ultimate authority on clinical issues at the event. Under the Silver Commander is a Bronze Commander which is the Deputy Commander role at the event. Below that there are supervisors at the various posts set up for the event. Some events such as Clipsal 500 or a music concert may be confined to a specific location; whereas other events such as Anzac Day or the Christmas Pageant are referred to as unbounded events. Either way, there will be a number of posts or locations that are staffed by St John volunteers. There was also a Point of Contact person for each major event. This is an offsite role.
[52] T63.
That brief description of the chain of command of event management will assist in understanding what follows relating to selection of members to attend events; allocation of roles at the event; and giving directions to members in carrying out their duties in those roles at events.
I return to the first of those topics namely selection of St John members to attend major events.
According to Superintendent Jackson, when the accused was appointed to State Office as an Event Planner on 25 April 2012, his role was to assist the Group Leader in planning and commanding events. This did not involve any direct interaction with cadets. He would be given a list of names of adult members and cadets who wished to attend a particular event and he would, either as part of the Major Events Group or as the specific Event Planner for the event, select names from that list:[53]
[53] T109-112.
Q.    In his State volunteer role as an event planner, did Daniel have any authority over cadets in the organisation.
A.    In his role as a State planner Daniel didn't have a specific authority, there was no rule that says 'You must do this if a State planner tells you to do this'. There was two, I guess, implied powers that he had. The first is that any member that has a rank which is senior to another member, if they're told to do something - the junior member is told to do something by the senior member - they should do so. The only proviso on that is it has to be reasonable. The other is that in his State role as an event planner and as someone who was rostering events, if you wanted to attend at an event and for whatever reason you couldn't get on to that event, he had the power to be able to say 'Yes, I can get you onto that event'. It's essentially a rostering officer trick for many years because at the end of the day if I want to get you to go to - if you want to go to Clipsal, but I still need to get the Amway Convention covered, 'If you do the Amway Convention for me, I'll make sure that you get to Clipsal'. So there was an implied power relationship there or what I'll call emotional banking; 'If you do something for me, I'll do something for you in return'.
Q.    So that power related directly to what members could attend what events.
A.    That's correct. If he was rostering the event, at the end of the day it was his decision who went.
Q.    Was the accused rostering events in 2012 and 2013.
A.    Yes, he was.
Q.    You've already explained how that was done, sometimes it involved a group. Would the accused ever roster an event on his own in 2012/2013.
A.    My knowledge is that yes, he did, but if you ask me which specific events, I would struggle to give you the answer as to which events. Perhaps if I can just clarify, someone mentioned about group events and group rostering. As a general rule of thumb rostering is either managed by the commander, by the event planner or between the two of them working together. There wasn't necessarily a group of rostering people rostering an event.
Q.    I think that's what Mr Abbott SC meant but your evidence yesterday was that there was those two who had -
A.    Worked between each other in that role.
Q.    Is rostering events one of the accused's main roles as an event planner.
A.    It was a role of the planner, it wasn't the only role.
Q.    So whilst he had the power to determine whether or not an individual could attend an event, did he also have the power to determine an individual could not attend an event.
A.    That's correct.
I note the answer that it was ‘his decision who went’ and the lengthy answer proceeding it, make it plain Superintendent Jackson was referring to the accused’s role in selecting members who were permitted to attend at major event.
Ms Kerry Whitehead has been General Manager of Operation Services for St John since January 2013. She described the event planning group as a small group primarily Cliff Pinkard and the accused, together with others brought into the group on an ad hoc basis for assistance in planning a particular event. A computer application ‘Survey Monkey’ was used to enable volunteer members who wished to attend a particular event to put their names forward. The Divisional Supervisor could veto those names for disciplinary or similar reasons if they chose to. Subject to that, Daniel Symons as part of the event planning team, or as the specific Event Planner for an event, had authority to decide which members, including cadet members, could attend a planned event.[54]
[54] T199 –200.
In this regard, the evidence of Superintendent Jackson and Kerry Whitehead is supported by Renee Mamys and Melissa Oudshoorn. I consider each of these two witnesses demonstrated a degree of partisanship towards the accused on a number of topics in their evidence. However, on the topic of selection for attendance of members, including cadets, to attend major events, their evidence was consistent with the evidence I have just quoted from Superintendent Jackson and Kerry Whitehead.
Allocation of Roles
I turn now to the second concept, namely allocation of the roles of the volunteer members, including cadets, who were selected or approved to attend a major event. According to Superintendent Jackson the allocation of roles fell to be determined by the Event Planner and the Event Commander. Some Commanders preferred to do this task themselves and some preferred to leave it to the Event Planner. Ultimately, rostering in terms of allocations of roles was the joint responsibility of the Event Planner and the Event Commander.[55] The evidence of Kerry Whitehead and Catherine Fletcher was to the same effect.
[55] T62 –T64.
Command Team at Events
The evidence discloses that from time to time the accused would occupy one of the roles within the command team at an event. I do not propose to canvass the evidence in full but according to various witnesses, and some of the documentary event plans, there were occasions when Mr Symons occupied one or more of the following roles: Event Commander, Clinical Supervisor, Bronze Commander or Point of Contact. A brief description of these roles has been outlined above. Plainly the most significant of those roles are Event Commander and Clinical Supervisor. Those two positions are at the top of the hierarchy of operational and clinical command, on the ground, at an event. In all but purely clinical matters, the Event Commander has authority to issue directions to all members, including cadets, during the event. This includes allocation of which post or location they had to go to; which shifts or hours they work and when to take breaks; directions about uniform; directions about carrying out specific tasks; and dealing with disciplinary issues that arise at an event.
The Clinical Supervisor has the ultimate call on clinical decisions relating to the treatment of patients; although even these decisions are made in cooperation or liaison with the Event Commander.
In view of the conclusion I have reached about this category of evidence, it is unnecessary that I analyse in detail the evidence as to which events he had an actual role in the Command Team
Rank
Superintendent Jackson described the St John organisation as a para military style model with a military based ranking system. This is separate from the structure of the organisation from divisional through regional to state level. In conjunction with that is a rank system with Grade 1 being the highest rank, which is the position of Commissioner. The hierarchy of ranks devolve to Grade 6 officers. Below that are non-commission officers; then privates; then the cadet ranks. According to Superintendent Jackson ‘if an officer provides a direction to do something, a member with a lesser rank, cadet or adult, should follow that direction as long as it is a reasonable direction to do so’.[56]
[56] T67. Also see passage quoted at [110].
Throughout the relevant period covering the dates of the events of this trial, the accused’s rank was Grade 4 officer.
Superintendent Jackson explained the power or authority which rank carried, in the following terms:[57]
So at the end of the day a ranked position is still a ranked position whether someone is in a cadet or adult role. So if you are a cadet private within the cadet division - sorry, cadet member and a divisional officer from an adult division asks you to do something, because there is a rank-based system you should follow the direction you were given in that regard.
…
…any member that has a rank which is senior to another member, if they're told to do something - the junior member is told to do something by the senior member - they should do so. The only proviso on that is it has to be reasonable.
[57] T58 and T109.
Position of Authority – Factual Findings
I turn firstly to the evidence referred to above under the heading Major Event Selection. This evidence relates to the authority that Daniel Symons had over St John members, including cadets, arising from his position of State Staff Officer Grade 4 with the State Major Events Group. This appointment was formally approved on 25 April 2012. He remained in this position until well after each of the complainants had turned 18 years of age.
I also note the evidence of Superintendent Jackson:[58]
Q.    In fact you have already said there is a requirement that volunteers do a certain amount of hours per year at these events.
A.    There is, yes.
Q.    If you don't achieve those hours, I think you mentioned that you are not proficient, is that right.
A.    Not efficient.
Q.    Efficient.
A.    We are part of the national medals system, and 12 hours of efficient service entitles you to wear a national medal on your left breast, which is an award that dates back to Queen Victoria's days.
Q.    So attending at events as a volunteer is an essential part of being a member of St John.
A.    That's correct.
[58] T60 – T61.
Exhibit P3 includes the personal service records of each of the complainants. Volunteer attendance at events is recorded on the individual cadets file, and is taken into account on the issue of whether the cadet is deemed ‘efficient’. This in turn effects a cadet or adult members continued membership, and trajectory within the St John organisation.
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.

For convenience I will refer to that authority as his ‘continuous authority’.[59]
[59] That expression does not occur in the evidence. It is simply a convenient abbreviation I am using for the finding that I have just made as to the accused’s authority by dint of his ongoing position during the relevant period.
I turn to two of the other categories of authority that the prosecution have sought to rely upon as outlined above: allocation of specific roles at events; and being part of the command structure at events. I accept that each of these at various times enhanced or supplemented the continuous authority that the accused held. For instance, at an event for which he was the Silver Commander, or the Clinical Supervisor, the accused had additional authority over and above what I am calling his continuous authority.
However, upon the evidence before me, I consider that the attempt by the prosecution to rely upon either of these two additional sources of authority, is flawed. Putting to one side rank, which I shall turn to in a moment, these sources of authority did not exist continuously throughout the relevant period. They were temporary enhancements to the accused’s continuous authority, from time to time. The prosecution has not sought to demonstrate that the timeframe of any of these temporary enhancements of authority coincides with the any of the occasions which constitute the charged offences. In the absence of evidence of that coincidence, I do not consider the sources of enhanced authority assist the prosecution. In this regard I accept the defence argument that evidence of authority at times other than the specific dates of a charged offence, is insufficient to make out that ingredient. In my view that is plainly correct.
A good deal of time was spent during the trial on other potential aspects of the accused’s authority, which suffer the same defect. For instance, from time to time the accused presented training sessions to cadets; or from time to time the accused was the assessor of cadets who carried out activities for competition or other assessment. There was a challenge to aspects of this evidence. However, I find it unnecessary to deal with those topics in detail, because again, they could not be elevated beyond temporary enhancements of the accused’s authority from time to time. I have not been pointed to any coincidence between any such temporary enhancements, and any of the charged offences.
I also note that, in so far as the prosecution seek to rely on what I shall compendiously refer to as the ‘Schoolies evidence’, this approach is also flawed, for a similar, although not identical, reason. Taken at its highest, that evidence would establish that the accused had a role; even a significant role; in the change of policy regarding cadets being permitted to attend at the annual Schoolies event. This change in policy, which occurred in 2012, impacted upon whether DP could attend the Schoolies event that year. However, I consider it is too much of a stretch to reason that the accused having some role in a change of some kind of policy, brings him within subparagraph (f). The change of policy was a one off, rather than a continuous authority of the accused arising from his position in the organisation. All sorts of persons in an organisation can be consulted about, or have a role in, change of policy. In addition, there is the timing issue. I have not been taken to evidence which establishes that his role, whatever it was, in the change of policy. coincided with any of the charged offences. Nor is there evidence that it was a continuing role throughout the time he occupied the position of State Staff Officer Grade 4.
Rank - Continued
The power or authority that the accused held by dint of his rank within St John, was also continuous for the period of time relevant to this trial. Upon the evidence before me, it amounted to an authority to give lawful and reasonable directions to lower ranked members or cadets, including the complainants. I note authority carried with it a requirement on the part of the complainants to comply with such directions given by the accused. This reciprocal power and duty arose directly from the rank structure of St John as described by Superintendent Jackson.
Effectively, the St John rank hierarchy stands alongside its governance hierarchy as a corporate body. The authority the accused had over cadets, arising from his rank, certainly enhanced the continuous authority he had as a State Staff Officer and member of the Major Events Group. However, upon the evidence before me I cannot conclude beyond reasonable doubt that the accused’s rank alone, gave him the requisite authority over either of the complainants pursuant to s 49(5a)(f) or s 63B(6)(f) of the Act. The evidence in respect to rank is fairly generic, and to some extent intertwined with the concept of an adult/child relationship with respect to cadets.
Having taken that lengthy, but necessary excursion, I can now return to my consideration of count 3.
Count 3 - Continued
I have already noted the four ingredients to be proved to make out this offence. Taking each of these in turn:
Ingredient one, that the accused made a communication. The communication relied upon to make out this charge is on 5 August 2012 commencing at 11.25pm and is set out in full at pages 131 to 125 of the chat logs, Exhibit P8. It includes the accused saying the following:
DS     lying in bed thinking about you
DS     let me come over and hold you :)
DS     lol true but i only like holding people naked lol
DS     you been with a girl?
DS     done anything?
DS     what have you done?
DS     if i was there right now would you like me to touch you
DS     give it a nice soft touch to your wet lips
DS     till you beg me for more
DS     beg me for more ;)
DS     beg me to tell you
DS     would you like me to slip my fingers in your wet pussy
DS     how many fingers you want in you
DS     how many
DS     and you feeling horny now
DS     going to touch it
DS     would you like to touch me
DS     would you like me to slide it deep inside you
DS     till you scream
DS     can i put it in you
I shall not repeat what I set out in paragraphs 42 to 45 above. I find that the accused made the communications relied upon by the prosecution for this count.
The second ingredient is that he was in a position of authority in relation to DP. Pursuant to the general finding I have made on this issue, this ingredient is made out.
The third ingredient that he made the communication with the intention of procuring DP 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. Whilst I consider that inference is sufficiently made out from the content of this charged conversation; I consider it is also supported by the Facebook conversations that precede and follow this particular conversation.
It is equally plain that during this conversation the accused had the intention of procuring DP to engage in the sexual activity by responding to the accused’s communications to her. I accordingly find this third ingredient is made out.
The fourth ingredient, that DP was under the age of 18 years, is made out.
Count 2
The next count chronologically is count 2, which is particularised as follows:
Daniel Symons on or about the 27^th day of August 2012, at Clovelly Park, being a person in a position of authority in relation to [DC], had sexual intercourse with [DC], a person under the age of 18 years, by inserting his fingers into her vagina.
DP’s evidence is that on Sunday 26 August 2012 there was an Advanced Responders course at Bedford Park. Daniel Symons was one of the teachers and assessors for that clinical skills course. DP and her friend whom I will refer as GG, attended to act as patients in the course for the trainees to practice their skills upon.
Accordingly to DP, she had arranged by text messages to meet the accused after that course. However, he did not show up.
The chat logs for Saturday 25 August 2012 include Daniel Symons messaging DP:[60]
DS see me tomorrow
[60] Exhibit P8, page 67.
The chat logs for August 27 include Daniel Symons messaging: [61]
DS     I just think your teasing me
DP     Im not, I was waiting for 3 hours…
DP     I was honestly looking forward to catching up
DP     I am not messing around right now, I’m kinda pissed off
[61] Exhibit P8, page 66.
The accused is apologetic and appears to have told DP there was a ‘death at work’ He was a registered nurse and he was required to debrief. He asks:[62]
DS so what would we of done tonight really
[62] Exhibit P8, page 65.
Which appears to be a reference to the previous night, had they caught up. Alternatively, DP in her evidence has her dates incorrect, and the arranged meeting was for earlier that same night on 27 August 2012. I note it is 10.47pm on 27 August when she tells him:[63]
DP I was waiting for 3 hours
[63] Exhibit P8, page 66.
In response to his questions about what might have happened she replies:[64]
DP However I was in a very good mood and you missed out on it!..unlucky for you ;)
[64] Exhibit P8, page 65.
The following further exchange was about what may have taken place:[65]
DS     DP..let me come over will go for a drive
DS     well you got 20min to get yourself sorted and ready for me
DS     common im sick of waiting’
DS     lets just do this’
[65] Exhibit P8, page 63 to 62.
She messages an address and there are further exchanges culminating in him saying he is five minutes away and DP messaging at 11.26pm:[66]
DP okay ill head outside
[66] Exhibit P8, page 58.
According to DP she was picked up by Daniel Symons in what he told her was his parents car. He drove to an area near a train line at Clovelly Park and parked the car. She describes an incident during which she willingly engaged in kissing. He then put his hand down into her pants and inserted two fingers into her vagina. She pulled his hand out of her pants. He then partially removed her bra and fondled her breasts:[67]
After that he then went to try and touch me down below again and the same kind of thing; he inserted a couple of fingers and it hurt and I said 'No' and kept saying 'No' and kind of pushed him off and at then at that point it stopped.
[67] T272.
DP added that at some stage during the incident he tried to push her head down into his lap but she pulled back and said ‘no I’m not doing that’.
He then drove her home and dropped her off without talking very much. She estimated the entire expedition occupied roughly thirty minutes; forty minutes maximum.
DP said that upon arrival home she went to the toilet and noticed blood in her underwear. She then called her friend GG and told her ‘pretty much just everything that had happened in the car’ and ‘I told her that Daniel had fingered me in the car and just that kind of events of the evening’.
GG was aged 21 when she gave evidence. She and DP went to school together and became close friends. Around August 2012 she and DP attended a St John training event on Sturt Road. She and DP acted as patients. She thinks Daniel Symons was assessing.
GG told the court of a phone call from DP on an occasion late at night; around midnight. DP told her that Daniel Symons had picked her up from her house and they had gone for a drive and parked somewhere. DP told her that she had been touched on her breasts and on her leg and in her vagina. DP used the words that ‘he fingered her’.
DP told GG that this had happened shortly prior to the telephone conversation. Plainly, DP and GG are both referring to the conversation DP says occurred immediately following the incident in the car on 28 August.
Count 2 entails the following ingredients:
Firstly that on or about 27 August 2012 the accused was in a position of authority in relation to DP. I do not consider that ingredient requires the prosecution to prove that the accused’s actions which entail the charged offence, were pursuant to or related to this position of authority. In other words, it is not necessary there be any specific factual link between the offence charged and the position of authority. It is sufficient that the prosecution prove as an objective fact, that at the relevant date the accused was in a position of authority in relation to DP. In accordance with the reasoning and factual findings set out above, I consider this ingredient is proved.
The second ingredient is that DP was under the age of 18 years. This ingredient is proved.
The third ingredient is that the accused had sexual intercourse with DP. The allegation is digital intercourse.
The defence correctly submit that DP’s reliability and credibility are crucial to this charge. There is no evidence capable of corroborating or directly supporting the occurrence of the specific act which is the subject of the charge.
I accept the evidence of the initial complaint. That evidence is available to inform me as to how the allegation first came to light; and as evidence of the degree of consistency of conduct of DP. It is not admissible as evidence of the truth of the allegation.
Mr Abbott SC makes detailed and trenchant criticisms of DP’s reliability and credibility in his written outline, and submissions. I have regard to all of these.
Without repeating all of them, I make the observation that as a tribunal of fact, I do not consider the matters pointed to by the defence, in this regard, assume the significance contended for.
For instance, in her first police statement and in communications with friends, DP said that she was 15 when the communication between her and the accused commenced. In fact, they commenced well after her sixteenth birthday. However, I have had regard to DP’s explanation for this, in cross-examination. The effect of her evidence was that things moved very quickly when she first made an official complaint within St John about the accused’s activity. That complaint was in October 2014. The next day she was at a police station making a detailed statement. When she realised the error as to age, she corrected it in the second of her numerous police statements.
Other defence arguments going to DP’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.
As to the cross-examination and defence submissions regarding the use of phrases such as ‘hahah’, or ‘woooo’; or various emoticons; I do not consider these topics gained any traction. Similarly, for the extensive cross-examination and attention during the trial in relation to what I will call the James Fox issue. I have struggled to see how the James Fox issue impacts upon the issues before me in this trial. DP being mistaken about when she discussed the James Fox matter with EA, appears to me to be of little moment. I do not see how it undermines her credibility or reliability.
Defence also give prominence to the submission that DP’s chat logs with the accused in 2014 were concealed from the authorities by DP. The thrust of DP’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 DP 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.
Returning specifically to the incident in the car; Mr Abbott SC in his written submissions suggests there are two exchanges in the chat logs which ‘do not quite sit with what DP says occurred in count 2’. I have looked at those two exchanges and I do not see how they can be described in the manner that I have quoted.
They certainly support her evidence that something significant happened in the car. However, as Mr Abbott SC says, they do not say that there was digital intercourse in the car. But it needs to be borne in mind that she is not talking to a third party in these chat logs. She is talking to someone who was there, and knows what happened.
Moreover, there is a third exchange in the chat logs[68] which in my view sits very comfortably with DP’s account about the incident in the car. At the end of the day, I think the point is a neutral one, neither advancing nor detracting from DP’s reliability or credibility as to precisely what happened in the car.
[68] Exhibit P8, page 48.
Defence also argue that in other conversations DP failed to give comprehensive and precise details of everything she says occurred in the car that night. Again, I do not consider that point gained any traction whatsoever. Indeed, I consider it would have been quite exceptional if the types of passing references that DP made of the incident to others, included chapter and verse of the incident.
I had ample opportunity to carefully observe DP 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.
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.
I have carefully scrutinised DP’s evidence in general and in relation to the incident that comprises count 2. It is not challenged that the trip in the car, as supported by the chat logs, did take place on that date. It is not challenged that there was mutual touching. What is challenged is her evidence that during the incident in the car, there was digital penetration. This is what she disclosed to her friend GG in a telephone call almost immediately upon arriving home. I accept the evidence of DP and GG as to the telephone conversation. That prompt disclosure to her friend is consistent conduct on the part of someone who had just been fingered.

I am satisfied beyond reasonable doubt that digital penetration occurred during the incident in the car. This ingredient is proved.
Counts 4, 5 and 6
Counts, 4, 5 and 6 are all counts of causing or inducing a child to expose her body. Each of these three counts are particularised in exactly the same terms namely:
Daniel Symons on or about the 9^th day of October 2012, at Adelaide, while acting in a position of authority in relation to DC and acting for a prurient purpose, caused or induced DC, a person under the age of 18 years, to expose her body.
Nothing turns upon the change of wording of the allegation, in various counts, that the accused was in a position of authority in relation to the complainant.[69] They all rely upon the subparagraph set out earlier in this judgment.
[69] Except that the relevant staff at the Office of the Director of Public Prosecution should apply more rigour to scrutinising Informations before signing them.
These three counts arise from Facebook exchanges between the accused and DP, late on Tuesday 9 October 2012, and the early hours of Wednesday 10 October 2012. These Facebook exchanges are set out in the chat logs, Exhibit P8 from page 37 to page 26. Again, I shall not set out the Facebook conversations in full, but will quote sufficient of them as appear necessary for the purposes of this judgment.
Commencing at 11.02pm on 9 October 2012, Daniel Symons messages DP:[70]
[70] Exhibit P8, page 37 to 33.
DS     you really need a good fuck
DS     no you got me all horny now you can finsh me off
DS     i want to see your hot body
DP     tomorrow ;)
DS     no no just one now for me
DS     that is how i can trust you [DP]
DP     one what ?
DS     pic of you
DS     common be dirty prove to me you can
DP     …I’m sorry I’m not sending nudes, ask me todo something else?
DS     its up to you but I want to see your body its all about trust [DP]
DS     [DP] this is what I need/want then you have my full trust its up to you
DP     mm, give me a sec. If I do my bra and undies are staying on and thats final
DS     hot ones tho lol
DP     what do you want me doing ?
DP     standing, kneeling,
DP     ?
DS     up to you
DP     give me 5
DS     whats happining
DP     trying to take a decent one..
DS     fuck im hard
DP     just wait
DP     how do I send it ?
DP     over fb
DS     up to you
DP     did you get it ?
DS     fuck me i love it
DP’s evidence was that by that point in the Facebook conversations she had sent a photograph. She said that Exhibit P9 appeared to be the first photo that she sent on Facebook. Some ambiguity or confusion arose in her evidence upon when she took that photograph.[71] I consider it is abundantly plain from the chat logs, in conjunction with DP’s evidence, that DP had taken that photograph immediately prior to sending it.
[71] It appeared to me at the time that the Prosecutor was being unduly cautious and indirect in her questioning to avoid the type of objections which promptly arose anyway. It appeared to me that this led to some brief confusion between counsel and witness.
The chat logs continue with:[72]
[72] Exhibit P8, page 33 to 30.
DS     can i have one of it backward
DP     from behind?
DS     yes
DP     ill try, I think you need to send me something as well ;)
DS     common.. give it to me
DP     what exactly?
DS     one of your arse/back and one like but before but nude
DP     that means I have to get up to take it…what about breasts instead?
DP     nah im not doing a full nudeeee. if I can get a good one from behind maybe or breasts?
DS     commo then
DP     give me a secc, my webcam is shitttt
DP     I don’t like these photos from behind.. give me a few more minutes
DS     [DP] send them
DP     it needs to be a good one!!
DS     pls just send them
DS     god your hot
DP     nah I reckon two is enough for tonight ;) think you need to wait till we catch up!
DP’s evidence was that she had sent a second photo which is Exhibit P10. Again, I consider it abundantly clear from the chat log in combination with DP’s evidence, that she had taken the photograph which comprises P10 immediately before sending it. The date included on Exhibit P19 also points to this conclusion.
The Facebook exchanges continue:[73]
[73] Exhibit P8, page 29 to 28.
DS     ok tits?
DP     hmmmm maybe what do I get in return?
DS     common
DS     what you want
DP     surprise me with something
DS     tits then ill send it
DP     you first then I promise
DS     [DP] its getting late just send it
DS     have you taken it
DS     ??
DP     yeeep
At this point the accused apparently sent an image to DP leading to this exchange:[74]
DP     is that actually you?
DS     yep you know the girl 2 lol
DS     7year old pic
DS     like it????
DP     I know her… hmmm, is it the person you told me you lost your Virginity to?
DS     nope
[74] Exhibit P8, page 28-27.
DP’s evidence was that at that stage she received a photo from the accused:[75]
A     Yeah, he'd sent me a photo of him - I think his penis was in the picture, as if he was about to, or was having anal sex with a woman and I remember there being two distinct tattoos on either side of her hips at the back. I can't remember what the tattoos were, though, but bent forward, so you couldn't see the woman's face or anything, but you could see her arse and it quite spread open.
Q.    Did you keep the pictures you had sent on your Facebook account.
A.    No, I deleted them all.
Q.    What about the picture of the penis you received, did you keep that.
A.    I did keep that one, yes.
[75] T305-306.
The Facebook exchanges continue:[76]
DS     tits
DS     fair is fair
DP     alright give me a secccc I will send it
DS     ok
DS     ?
DP     im choosing the best one! be patient !!!
DS     common dirty girl
DP     not fair hands oiff
[76] Exhibit P8, page 27.
DP’s evidence was that by that point she had sent a third photo which is depicted in Exhibit P11. Again, I have no doubt from the content of the chat logs, in conjunction with DP’s evidence, and the data in Exhibit P19 that she had taken that photo shortly before sending it.
Each of counts 4, 5 and 6 require proof of the following ingredients:
Firstly that on or about 9 October 2012 the accused was in a position of authority to DP.
Secondly, that DP was under the age of 18 years.
Thirdly, that the accused caused or induced DP to expose her body.
Fourthly that in doing so, the accused acted with a prurient purpose.
As stated earlier in this judgment I need to give separate consideration to all charges, including counts 4, 5 and 6. However, the reality in this trial is that counts 4, 5 and 6 arise out of the same ongoing incident, but relate to allegations of three different photographs being sent. Accordingly, for practical purposes, I shall deal with these three counts compendiously in this judgment, but without losing sight of my obligation to separately consider each of them.
In accordance with my earlier reasoning and factual findings, I find that the accused was in a position of authority in relation to DP on and around 9 October 2012.
DP was under 18 years at this time; she turned 18 on 15 June 2013.
I find that during the night of 9 October and early hours of 10 October 2012, DP sent the depictions shown in P9, P10 and P11 via Facebook. I further find that she took each picture immediately prior to sending it via Facebook to the accused.
I further find that the accused viewed each picture, immediately upon it being sent via Facebook.
Based upon DP’s evidence and the Facebook chat logs, I find that the accused caused or induced DP to take the photographs and to send them via Facebook to him.
Defence argue in relation to counts 4, 5 and 6 that even on those findings, there has been no exposure by DP of her body. As I understand the argument it is that in order for DP’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.[77] 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.
[77] T337.
I consider that by sending the images to the accused, DP 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?
It is not my role to postulate all possible permutations. I do find that what occurred here was that DP exposed her body when she sent, and the accused viewed, each of the three photographs.
Mr Abbott SC further argues that these counts are not made out because it is not proved beyond reasonable doubt that she took the photographs at the time. I reject this submission for two reasons.
Firstly, if, as I find, it is the sending of the depiction that amounts to exposure of the body, it matters not when the picture was taken. Secondly, as I have outlined earlier, I find beyond reasonable doubt that DP did take each of these pictures immediately before sending it to the accused.
The fourth ingredient of each of counts 4, 5 and 6, is that the accused was acting for a prurient purpose. Prurient purpose is defined in s 62 of the Act as:
prurient purpose—
a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else.
Based upon the entirety of the evidence, especially the accused’s own communications in the chat logs immediately before and after viewing the photographs, I find that he was acting for a prurient purpose in requesting and importuning her for the pictures; and in so doing causing or inducing her to expose her body.
I accordingly find each ingredient of each of counts 4, 5 and 6, is proved.
Count 7
Count 7 is a charge of Unlawful Sexual Intercourse by a Person in a position of Authority. The particulars of the charge are:
Daniel Symons on or about the 25^th day of April 2013, at Camden Park, being a person in a position of authority in relation to DC, had sexual intercourse with DC, a person under the age of 18 years, by inserting his fingers into her vagina.
This offence is alleged to have occurred on Anzac Day 2013, at the St John Communications Centre at Camden Park. DP’s evidence is as follows:
DP said she won an award as St John Cadet of the Year in 2012. This is confirmed by her service record, Exhibit P6. She said that as a result of winning that award, she was granted the privilege of attending the Anzac Day communications room, as an observer. She said Daniel Symons was in the Supervisor position in the communications room. Daniel Symons kept sending her text messages asking her to go to the bathroom and send him naked pictures. She declined.
She received a phone call and walked out the communications room itself, in order to continue the call. The accused followed her and started playing with her shoulder and touching her hair whilst she was on the phone. When she completed the phone call he put his hand up to her throat and ‘kind of guided or pushed’ her to the wall behind the main door. She said whilst he was holding his hand to her throat he put his other hand down her pants and inserted his fingers into her vagina. She did not say anything, she just ‘froze’.
She said at one point he tried to guide her into a storage room but he appeared to hear someone coming and just stopped, fixed himself up and walked out. DP was cross-examined at length upon precisely what she said occurred at Camden Park on Anzac Day 2013. The cross-examination eventually led to the following:[78]
Q.    [DP], I put it to you that that event did not occur on Anzac Day in 2013.
A.    I know a hundred-per-cent that it occurred.
Q.    And, in fact, Mr Symons was not even present in that St John building on Anzac Day 2013.
A.    He was a hundred-per-cent present on that day.
[78] T449.
And subsequently in cross-examination:[79]
Q. I put it to you, [DP], that at least by 5 October 2013 you had not been the recipient of the unwanted sexual advances that you say you suffered on Anzac Day of that year.
A. Well I disagree with that.
[79] T465.
It was never put to DP that the incident she described at Camden Park never occurred at all. Indeed there was this cross-examination:[80][81]
[80] T520.
Q.    Did you tell [GG], on the topic of the Anzac Day incident, that you had pushed Mr Symons away.
A.    I can't remember what I told [GG]. I just said that I can't remember what I had spoken to her about the Anzac vigil - Anzac Day events.
Q.    Because you didn't push him away, did you, that's not how it finished.
A.    Can you say that again, sorry?
Q.    When you were having physical contact with Daniel Symons in the training room -
A.    Yes.
Q.    - you did not push him away.
A.    No, I did not push him away, no.
…
Q.    In relation to Anzac Day 2013, [DP], I put it to you that Daniel Symons was not even at the St John building on that occasion.
A.    I know he was at that building on Anzac Day.
Q.    There were no SMSes exchanged between your phone and his phone on Anzac Day 2013.
A.    There was definitely messages exchanged between me and Daniel on that day.
Q.    And that the only time that you had any contact of an intimate nature with Daniel Symons at that building was on the occasion of the Christmas Pageant in 2013.
A.    I say that's incorrect.
Q.    The Christmas Pageant was, I suggest, on 9 November 2013.
A.    It would have been, yes.
Q.    And were you at the St John's operation centre on that day.
A.    I can't remember if I was or wasn't.
Q.    Could have been.
A.    Yes, I could have been.
Q.    And in November 2013 you were 18 years of age, weren't you.
A.    November 2013? Yes, I was 18 then.
DP was then cross-examined upon Exhibit D11, a chat log between her and Megan Meredith dated 25 November 2013. This chat log included the following exchange:[82]
DC    And stuff happened the day of the pageant… And then he hasn’t really spoke to me since
MM   stuff happened?
DC    Umm kinda touched me up and made out at Camden park while everyone was doing comms in the other room :/
DC    He kinda cornered me while I went out the room to take a phone call and then I dunno I just went along with it
DC    But really regretted it afterwards
DC    Because he is the biggest dickhead
DC    I’ve deleted him off Facebook because I just want to get rid of all the dickheads in my life messing with my head
DC    I was seeing someone else in St. John but it was one big head fuck so I ended it…Daniel is honestly disgusting his messages are inappropriate and I shouldn’t have gone along with then but I did so my fault but I’m over it now… I never actually liked him… Don’t know why I did anything
[82] Exhibit D11.
This is plainly a reference to the incident at the Camden Park Communications Centre. DP says in this chat log that it happened the day of the pageant, which appears to have been on or around 9 November 2013.[83] Unfortunately the 2013 Event Plan in Exhibit P5 has a 2012 date. It is not clear whether the error is the entire, date or just the reference to 2012, which plainly should be 2013.
[83] Exhibit P5.
When shown the chat exchange Exhibit D11, DP was cross-examined as follows:[84]
[84] T539-542.
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 Megan Meredith 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 Ms Meredith 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 Megan, 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 didn't think as at 25 November 2013 that it occurred on Anzac Day, did you.
A.    No, I said the pageant here, yes.
Q.    I beg your pardon.
A.    I said the pageant in this conversation, yes.
Q.    [DP], 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.
Q.    At the pageant you were above the age of consent, weren't you.
A.    Yes.
Q.    And do you say that you did not make your allegation Anzac Day to bring out an allegation that you were 17 at the time.
A.    No.
Q.    You say this is an innocent error if it is one.
A.    Yes.
I accept DP’s evidence that an incident occurred at Camden Park as she described. However, in view of the cross-examination cited above, I certainly could not conclude beyond reasonable doubt that it occurred on Anzac Day 2013; or that it occurred before DP’s eighteenth birthday on 15 June 2013. Indeed, given the relatively contemporaneous Facebook exchange, I consider it likely that the one and only incident that she says occurred at Camden Park, occurred at the time of the 2013 Christmas Pageant which appears to have been early November 2013.
Earlier in this judgment in my consideration of count 2, I have given consideration to whether and to what extent, my conclusion about count 7 impacts upon the reliability or credibility of DP on other counts, in particular count 2. Now that I have dealt in some detail with the evidence relating to count 7, I can make a further point in this regard. My purpose in setting out the passages of cross-examination, is that the challenge to her evidence about count 7 was specifically tailored to when an incident along those lines occurred, not whether it occurred. To fabricate an entire incident would have a devastating effect on credibility. However, to make an error of memory in transposing an incident from one date to another, is quite a different thing.
Mr Abbott SC suggested in cross-examination that the shift in dates had been intentional on DP’s part in order to bring the incident to a date prior to her eighteenth birthday. DP denied this. I do not consider there is any evidence suggestive of a deliberate shifting of the date on her part.
This brings me to the charges relating to the complainant EA.
Count 8
Count 8 is a charge of Communicating with the Intention of Making a Child Amenable to Sexual Activity pursuant to s 63B(3)(b) of the Act. The particulars of count 8 are as follows:
Daniel Symons between 20 September 2010 and 5 June 2012, at Adelaide, make a communication for a prurient purpose with the intention of making EA, a child under the age of 17 years, amenable to sexual activity.
EA’s date of birth is 5 June 1995. She was 21 years of age when she gave evidence.

EA cannot be specific as to the occasion when she first met the accused. She believes she began seeing him at events from when she was around 14 years of age. They became Facebook friends and her recollection is that this was sometime around September or October 2010. She had engaged in Facebook chat with the accused prior to that.
Her initial Facebook communications were about St John related matters. However, according to EA, they turned into sexualised conversations.
The first of these sexualised conversations occurred in 2010 when she was in year nine. She recalls being at a friend’s place and riding her bike home. She received a Facebook message along the lines of:
have you been a good girl lately or;
are you behaving yourself
She believes she received another message that same day from Daniel Symons:
do you suck dick
EA said that within the same timeframe, perhaps days or weeks after the Facebook messages quoted above, there was Facebook exchange along the following lines:[85]
DS     do you have a cat?
EA     yes I have two cats.
DS     would your cat like to meet my dog. I’m patting my dog right now. Look what you’ve done you’ve made my dog all sticky. I have to go clean up my dog now.
[85] T578-579.
That is the conversation relied upon by the prosecution for this count.
There is no record of any of these conversations. EA told the court she deleted the Facebook conversations with the accused that occurred around that period of time. From the prosecution perspective there are a number of difficulties with the state of the evidence of this count. These include the following:
Firstly, hypothesising that there was such a conversation, EA is vague as to the date upon which it occurred although if EA’s evidence is accepted, it was plainly before her seventeenth birthday.
Secondly, her evidence is vague as to the content of the conversation. She does not purport to be able to give a word for word account of the conversation. When she does recount it to the best of her memory, EA gives variations of it. In effect her evidence is that it was a conversation along those lines.
Thirdly, on the prosecution case the court is being asked to draw inferences that go beyond the literal language of the conversation. In opening Ms Borek said:[86]
The communication is said to be of a prurient purpose, as appears from the context and the language and on the prosecution case the accused is inferring that he ejaculated whilst having that conversation. Again it is the engaging in the sexual conversation for his gratification or for her to engage in a sexual activity which would be communicated with him for his gratification. True it is that the conversation, if it was along the lines that EA recounts, appears to involve more than a strict literal meaning. However, it is a big step to draw an inference as to the accused physically doing anything around the time of the conversation.
[86] T24.
Even if that inference is drawn it is a further big step to infer that the accused had the intention of making EA amenable to sexual activity. Whatever inferences are drawn from that conversation, he has not asked EA to physically do anything. Nor has he pressed her to engage in further conversation. On the contrary, apart from an earlier sexualised conversation, this is the only sexualised conversation around that time that EA suggests occurred. It would be curous if he set out to make her amenable to sexual activity; in other words engaged in ‘grooming’; and then did nothing further.
In short, on the evidence before me I could not make a finding beyond reasonable doubt as to a precise conversation or communication. Even if I made a finding as to the essence or gravamen of the conversation; I would not be prepared to infer beyond reasonable doubt that it was made with the requisite intention that is an ingredient of this charge. Accordingly, this count is not made out.
My conclusion on count 8 makes it unnecessary to deal with Mr Abbott SC’s submission along the lines that is impossible to have an intention to make someone amenable to sexual activity, if that person has previously engaged in sexual activity.
Counts 9, 10 and 11
These are three counts of Causing or Inducing a Child to Expose Her Body pursuant to s 63B(1)(b)(i) of the Act. They are each particularised as follows:
Daniel Symons on the 10^th day of March 2013, at Adelaide, while acting in a position of authority in relation to EA and acting for a prurient purpose, cause or induced EA, a person under the age of 18 years, to expose her body.
These three charges all arise out of the one ongoing incident on 10 March 2013. The charges arise from requests made by the accused for EA to send pictures to him. She allegedly complied with these requests by sending photos and videos of her naked breasts, to him via the application Snapchat.
The Facebook chat logs for 10 March 2013 commence at 9.26am with EA messaging the accused
EA whats upppp
This follows an interval where there had been no Facebook conversations since November 2012.
Between 9.26am and 10.51am on 10 March 2013 there is a lengthy exchange involving explicitly sexual conversation on each side.[87] It is unnecessary for me to set that out in detail. It entails EA telling the accused about some sexual activity she had engaged in since they last spoke on Facebook. Her messages are direct and explicit. He asks questions about what type of activities she likes or is interested in, and his messages are also direct and explicit. For instance he asks:
DS     looking for my cock to suck?
DS     ?sex
DS     finger?
[87] Exhibit P14, pages 48 to 34.
The conversation that morning concludes with:[88]
DS     btw I shouldnt speak to you the way I did Im sorry
EA     awww but it was fun hahaa dont worry I wont tell anyone
DS     all good aslong as we keep it to just talk lol
[88] Exhibit P14, page 34.
At 7.08pm on 10 March Daniel Symons initiates the conversation with the initial message:
DS still online?
Again there is an ongoing conversation with explicit remarks and questions from each side.[89] During that conversation the accused asks:[90]
DS     wonder what your tits look like
EA     hahaha pretty good
DS     well got no pics to see them?
EA     it’s child porrnnnn
EA     hahaha girl at my school went to court for and got charged for flashing her tits
DS     your 17 almost 18 its not illegal but all good
[89] Exhibit P14, pages 33 and preceding pages.
[90] Exhibit P14, page 27 to 26
There is then some exchanges relating setting up the necessary Snapchat application and usernames to send pictures. Then:[91]
DS     lol dont have to send pics lol?
EA     you dont have to send me pics but ill send you one
DS     you dfont have to if you don’t want to
EA     hahaha I will just to prove a point
DS     what you proving?
EA     that ive got alright tits haha
[91] Exhibit P14, page 26
They exchange adds then:[92]
EA     okay ill send one later when people arent around
DS     send a test
EA     there you go enjoy
[92] Exhibit P14, page 25.
It was EA’s evidence that immediately before the message ‘there you go enjoy’ she had sent him a photograph of her naked breasts. It is the immediately preceding Facebook communications by the accused; and EA sending to the accused that photograph, which the prosecution rely on for count 9.
I shall continue the narrative of events from the evidence, before returning to a consideration of each of these three counts. EA’s evidence is that she was using her laptop for the Facebook communications, and her iPhone to send the Snapchat images.
The accused immediately sends the message
DS got better then that
DS common you live on the edge
EA then sent a second photograph of her naked breasts.
There is then the exchange:
DS     do they go away once you seen them?
EA     yep hahahahah\
DS     last one i didnt see
EA     suuuree okay hahaha one more time
It was EA’s evidence that she did not believe that he had not seen the second photograph because it is a feature of the Snapchat application, that the sender receives a notification when the receiver opens the image: and she had received the notification to say that he had opened it. Nevertheless she sent a third photo of her breasts. There is the exchange:
DS when you take them?
EA just then
The chat logs record DS requesting further photos[93] and EA’s evidence is that she sent a fourth and fifth photograph of her breasts.
[93] Exhibit P14, pages 24 to 22.
The sending of the second, third, fourth and fifth photo are not the subject of any charges. The Facebook exchanges continue as per the chat log. According to EA’s evidence, the accused sent a photo of a penis and this is referred to in the chat log exchange in Exhibit P14, page 18.
There is then an exchange commencing at 10.46pm:[94]
DS you send a vid of your tits then???
DS pretty please
[94] Exhibit P14, page 17.
According to EA she took a video of her naked breasts and sent it to the accused. In his Facebook responses he suggested that it had not come through.[95] EA took another video of her naked breasts and sent that to him. He responded with:[96]
DS fuck that was hot
DS you horny
[95] Exhibit P14, page 16.
[96] Exhibit P14, page 15.
It is the sending of that video together with the communications leading up to it, that the prosecution rely on to make out count 10.
According to EA, the accused then sent her a short video of white underwear. She retained an image of this by using her iPod Touch to film it whilst it was briefly depicted via Snapchat on her iPhone. That very brief video footage is Exhibit P15. The Facebook exchanges then continue:[97]
[97] Exhibit P14, page 13 to 12.
DS     Do I get more tities
EA     i sent soooo many no way
DS     Common there hot like art?
EA     nah im too busy
DS     One last one ;)
DS     Common one last one x
EA     sent it
DS     Didnt come though
EA     yes it did it says opened
According to EA’s evidence at that point she had sent another photograph of her naked breasts via Snapchat. It is the sending of that image and the communications leading up to it that constitutes count 11.
Each of counts 9, 10 and 11 have the following ingredients:
Firstly, that on 10 March 2013 the accused was in a position of authority to EA. Secondly, that EA was a person under the age of 18 years.
Thirdly that the accused caused or induced EA to expose her body.
Fourthly that in so doing the accused was acting for a prurient purpose.
I need to give separate consideration to each of these three counts. However, the reality is that they arise out of the same ongoing incident.
For the reasons outlined in paragraphs 118 and 119 above, I find that the accused was in a position of authority to EA on 10 March 2013.
EA was under 18 years on 10 March 2013. Her eighteenth birthday was on 5 June 2013.
There is no remaining record of the actual photographs. EA’s evidence is that they were sent by Snapchat which means they disappear shortly after being viewed by the receiver. However, the chat logs between the accused and EA for 10 March 2013, provide strong support for EA’s evidence of sending the various images including the photographs and video being the subject of the three charges. There is evidence of the exchanges the other way: in other words the photo and very short video referred to in the chat logs as sent by the accused to EA. The reason there is a permanent record of these arises from EA’s evidence as to what she did when she received his Snapchat messages.
I have no hesitation in accepting EA’s evidence as to the photographs and videos of her naked breasts which she took, and sent on this date during the ongoing Facebook exchange. Without repeating my reasoning in relation to counts 4, 5 and 6,[98] I consider that what occurred here amounted to EA exposing her body. I find that the accused caused or induced EA to do so; and that the accused was acting for a prurient purpose. Accordingly, I find counts 9, 10, and 11 are proved.
[98] Paragraphs [198] – [199].
Verdicts
Count 1 – Guilty.
Count 2 – Guilty.
Count 3 – Guilty.
Count 4 – Guilty.
Count 5 – Guilty.
Count 6 – Guilty.
Count 7 – Not Guilty.
Count 8 – Not Guilty.
Count 9 – Guilty.
Count 10 – Guilty.
Count 11 – Guilty.

[81] T535-536.