R v Symons

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

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

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