R v Tan (No 2)

[2023] NSWDC 228

District Court

New South Wales

Medium Neutral Citation:

R v Tan (No 2) [2023] NSWDC 228

Hearing dates:

14, 15, 19, 20, 21 June 2023

Decision date:

26 June 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 224 - 228

Catchwords:

CRIME – trial by judge alone – sexual offences against children – sexual intercourse with child aged between 10 & 14 – accused relies as a ground of exculpation upon honest and reasonable, but mistaken belief of fact – production of child abuse material – possession of child abuse material – accused relies upon defence of innocent production and innocent possession – significance of different legal burdens of proof for common law ground of exculpation of honest and reasonable mistake of fact and statutory defence – consideration of content of standard of proof when legal burden on an accused to prove a defence on the balance of probabilities - significance of the Crown omitting to call complainant as a witness – content and weight to be given to Mahmood direction

Legislation Cited:

Crimes Act 1900 (NSW) ss 61HA, 66C, 91FB, 91H, 91HA, 417

Criminal Procedure Act 1986 (NSW) ss 133

Evidence Act 1995 (NSW) ss 140, 141, 142

Cases Cited:

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payment Corp (1985) 1 NSWLR 561

ASIC v Hellicar (2012) 247 CLR 345

Bell v State of Tasmania (2021) 395 ALR 589

Blatch v Archer (1774) 98 ER 969

Briginshaw v Briginshaw (1938) 60 CLR 336

CTM v The Queen (2008) 236 CLR 440

Dyers v R (2002) 210 CLR 285

G v H (1994) 181 CLR 387

He Kaw Tey v The Queen (1985) 157 CLR 523

Ho v Powell (2001) 51 NSWLR 572

Ibrahim v R [2014] NSWCCA 160

Jiminez v The Queen (1992) 173 CLR 572

Jones v Dunkel (1959) 101 CLR 298

Mahmood v State of Western Australia (2008) 232 CLR 397

R v Marland [2017] NSWCCA 277

Morley v ASIC (2010) 247 FLR 140

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 444

Payne v Parker [1976] 1 NSWLR 191

Qantas Airways Ltd v Gama (2008) 167 FCR 537

R v Marland [2017] NSWCCA 277

R v Wiggins (No. 7) [2022] NSWSC 1249

Rassi v R [2023] NSWCCA 199

Roberts-Smith v Fairfax Media Publications Pty Ltd (No.41) [2023] FCA 555

Robinson v R (No.2) (1991) 180 CLR 531

RPS v R (2000) 199 CLR 620

Schoffel v R [2023] NSWCCA 88

Texts Cited:

B Fisse, Howard’s Criminal Law (5th ed), Law Book Company (1990)

LH Hoffmann, The South African Law of Evidence 2nd ed, 1970

J D Heydon, Cross on Evidence + Cases (electronic subscription, LexisNexis)

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecution (ODPP)
R Tan (accused)

Representation:

Mr S Richards for the ODPP (Crown)
Mr D Stewart for the accused (Counsel)

Solicitors:
ODPP
Ross Hill Solicitors for the accused

File Number(s):

2021/00203497

Publication restriction:

Non-publication order in relation to the complainant’s name

REASONS FOR VERDICTS

Introduction

1. Mr Reinier Allen Tan (the accused) is charged on indictment of the following offences:

Count 1

On or about 12 June 2021, at Kingsgrove in the State of New South Wales, he did have sexual intercourse with the complainant [name redacted], a child then above the age of 10 years and under the age of 14 years, namely 12 years, contrary to s 66C(1) of the Crimes Act 1900 (NSW).

Count 2

On or about 12 June 2021, at Kingsgrove in the State of New South Wales, he did produce child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW).

Count 3

On or about 12 June 2021, at Kingsgrove in the State of New South Wales, he did have sexual intercourse with the complainant [name redacted], a child then above the age of 10 years and under the age of 14 years, namely 12 years, contrary to s 66C(1) of the Crimes Act 1900 (NSW).

Count 4

On or about 12 June 2021, at Kingsgrove in the State of New South Wales, he did produce child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW).

Count 5

On or about 15 July 2021, at Kingsgrove in the State of New South Wales, he did possess child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW).

2. It will be apparent that Counts 1-4 (incl) are all alleged offences occurring on the same date. The Crown case is that on this date and at this place, the accused engaged in two separate acts of sexual intercourse with the complainant and that he filmed those acts of sexual intercourse on his mobile phone. Count 3 concerns filming of the act of sexual intercourse that makes up count 1. Count 4 concerns filming the act of sexual intercourse that makes up count 2.

3. Count 5, in terms of dates and content is separate and discrete to the incidents giving rise to counts 1-4 (incl). It is a ‘rolled up’ charge. By this count, the Crown contends that between 12 June 2021 and 9 July 2021, the accused stored on his mobile phone 6 videos and 18 photographs of the complainant which satisfied the definition of ‘child abuse material’ within the meaning of s 91FB of the Crimes Act 1900 (NSW).

4. A striking feature of this proceeding is the extent of the admissions made by the accused about the elements of the offences. As was indicated by his Counsel’s opening address:

1. the real issue in dispute for counts 1 & 3 is whether the accused honestly and reasonably, but mistakenly, believed that at the time of the acts of sexual intercourse, the complainant was above the age of 16 years; and

2. the real issue in dispute for counts 2, 4 and 5, is whether the accused could establish the statutory defence under s 91HA of the Crimes Act 1900 (NSW), that is that the accused did not know, and could not reasonably be expected to have known, that he produced (for counts 2 & 4), or possessed (for count 5) child abuse material. Underpinning this defence was the same issue as raised for counts 1 & 3: whether the accused honestly and reasonably believed that the complainant was a person over the age of 16 years.

5. This expression of the accused’s position does not relieve me of the need to be satisfied beyond reasonable doubt of the elements of the offences in question. It is appropriate to tease out the elements of the offences and defences in question. This is necessary for a trial by judge alone even if satisfaction of certain elements of an offence are not disputed and even if the trial judge indicates that the elements have been made out: Schoffel v R [2023] NSWCCA 88 at [74], [79]. By parity of reasoning, the nature and requirements for proof of defences (or ‘grounds of exculpation’) should also be expressly elucidated.

Elements of the offences & defences and interpretation of some of the elements

The s 66C(1) offence (Counts 1 & 3)

6. The elements for this offence are:

1. the accused had sexual intercourse with the complainant

2. the complainant was above the age of 10 years and below the age of 14 years.

7. ‘Sexual intercourse’ is defined in s 61HA of the Crimes Act 1900 (NSW), a definition which applies to s 66C(1). The definition extends to conduct involving penetration to any extent of the genitalia of a person by any part of the body of another person (thus including penile-vaginal intercourse) and introduction of any part of the genitalia of a person into the mouth of another person (thus including fellatio).

The s 91H(2) offence (Counts 2 & 4)

8. The elements for this offence are:

1. the accused produced material;

2. the material that the accused produced is child abuse material.

9. ‘Produces’ child abuse material is a defined term (s 91H(1)). It relevantly includes:

“ (to) film, photograph, print or otherwise make child abuse material”

10. ‘Child abuse material’ is another defined expression (s 91FB(1). It is pertinent to set out s 91FB in its entirety:

“In this Division—

“child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive—

(a)  a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b)  a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c)  a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d)  the private parts of a person who is, appears to be or is implied to be, a child.

(2)    The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include—

(a)  the standards of morality, decency and propriety generally accepted by reasonable adults, and

(b)  the literary, artistic or educational merit (if any) of the material, and

(c)  the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and

(d)  the general character of the material (including whether it is of a medical, legal or scientific character).

(3)    Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).

(4)    The “private parts” of a person are—

(a)  a person’s genital area or anal area, whether bare or covered by underwear, or

(b)  the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

11. ‘Child’ is defined (s 91FA) as a person who is under the age of 16 years.

The s 91H(2) offence (Count 5)

12. The only difference between the essential elements for this offence and that which is the subject of counts 2 & 4, is that the element that the accused ‘possesses’ child abuse material is substituted for the element that the accused ‘produces’ child abuse material.

13. The word ‘possess’ is also expressly defined (s 91H(1)) as meaning:

““possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).

The common law ground of exculpation: honest and reasonable mistake (Counts 1 & 3)

14. This ground of exculpation requires that the honest and reasonable, but mistaken, belief of the accused is about a circumstance or state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word "innocent" means ‘not guilty of a criminal offence’. In the case of a statutory offence, it means that, if the belief were true, the conduct of the accused would be outside the operation of the enactment: CTM v The Queen (2008) 236 CLR 440 (“CTM”) at [8]^[1].

    1. Also Bell v State of Tasmania (2021) 395 ALR 589 per Kiefel CJ and Keane J at [11]-[12]; per Gageler J at [28], [30]-[31]; per Gordon and Stewart JJ at [46]

15. In this context, the offence in s 66C(1) consists of a circumstance (or state of affairs) accompanying the act of sexual intercourse. This is the age of the complainant; being between 10 and 14 years. It would not avail the accused if his state of mind was such that he honestly and reasonably believed that the complainant was above the age of 14 years but below the age of 16 years. That is because his belief would not render his conduct ‘innocent’, in the sense of being outside the enactment (the Crimes Act): he would have committed an offence under s 66C(3): CTM at [27], [174].

16. The formulation of ‘honest and reasonable’ mistake requires that the accused’s mistake must be founded on reasonable grounds ^[2] .

    2. CTM at [177]

17. When assessing the reasonableness of the accused’s belief (which naturally imports an objective standard), the trier of fact will assess that mental state against the facts and circumstances proven, and the inferences available from that evidence: CTM at [37]^[3].

    3. Citing Jiminez v The Queen (1992) 173 CLR 572 at 583. See also Ibrahim v R [2014] NSWCCA 160 per Simpson J (Hidden J and Hamill J agreeing) at [59]

The statutory defence: innocent production and possession (Counts 2, 4 & 5)

18. It is a defence in proceedings for an offence against section 91H that the accused (relevantly) did not know, and could not reasonably be expected to have known, that he or she produced or possessed child abuse material.

Directions of law

19. With regard to the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW), I will now direct myself as to certain matters of law. Section 133 does not require me to state all the matters which necessarily would have had to be stated to a jury, or even all of the matters which I have taken into account in determining the question of guilt^[4] .

    4. R v Winner (1995) 79 A Crim R 528.

Obligation to apply the law

20. I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.

Separate consideration of charges

21. There was a single complainant for counts 1 & 3. Strictly, as an element of the offence(s) there was no complainant for counts 2, 4 and 5; although for all of those counts, the offending concerned or related to the same complainant. It is necessary that I give consideration to the counts individually, bearing in mind that if I were to find that the accused guilty of one of the counts, this does not necessarily mean that he is guilty of all of the counts. The converse applies if I find him not guilty. It is necessary that I consider the evidence with respect to each individual count and reach a conclusion with respect to each count.

22. The evidence relating to each count may be different and the Court in considering each count is only to consider the evidence that is admissible on each count.

23. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

24. Whilst the Crown accepted that a logical outcome, given the different legal burdens of proof for the common law ground of exculpation (for counts 1 & 3) and the statutory defences (for counts 2, 4 and 5), might involve different verdicts, Counsel for the accused submitted that this was only ‘theoretically’ so. This was especially the case where the complainant had not given evidence.

Impartiality

25. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion to the complainant sway my judgment. Having regard to the nature of the offences for which the accused is charged, in particular, I must strive to avoid any prejudice against the accused. Criminal trials are not the place for morality tales. I must set aside any sense of prejudice, bias or prejudgment against him.

Evaluating the evidence

26. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, and the various exhibits that were tendered in the Crown case and the evidence tendered on behalf of the accused.

27. I am obliged to consider and assess the evidence given by the various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the content and context of what the witness had to say, the manner in which the witness said it and the general impression which any witness made upon me in giving evidence.

28. As the sole judge of the facts, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I must not act capriciously or irrationally.

Considering the evidence of witnesses

29. It is for me to assess the various witnesses and decide whether they are telling the truth. I have seen each of the witnesses as they have given their evidence. It is a matter for me entirely as to whether I accept what was said in that evidence.

30. What I must consider in relation to the evidence of a particular witness, is whether I think it sufficiently reliable such that I can act upon it.

31. Reliability depends upon two quite different, but overlapping, factors. One factor is the witness’s honesty. The other factor is the witness’s accuracy.

32. There are many factors that can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. For example, did a particular witness impress me as someone doing their best to be truthful, or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive, or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness concede that he or she had lied in their evidence?

33. Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. These observations apply to prosecution and defence witnesses alike, for a multitude of different reasons. Demeanour and impression alone do not determine the honesty, or accuracy, of the witness’s evidence.

34. If I conclude that a particular witness has been doing his or her best to be honest, I will need to move to the second aspect of reliability, which relates to a witness’s accuracy. A witness can be perfectly honest and accurate, or perfectly honest, yet completely, or partly, inaccurate.

35. To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event, or the matter, about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic, or fear, or by an intoxicating substance, such as alcohol, which might have impacted their powers of observation and/or laying down of an accurate memory?

36. How important to the witness were the surrounding details of an incident, or event, such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event? Is there evidence capable of giving rise to an inference of suggestibility, or contamination, such as to make the evidence, or parts of the evidence, of a particular witness unreliable?

37. I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the same witness’ evidence. The fact I do not accept a portion of a witness’s evidence does not mean I must necessarily reject the whole of their evidence. I could accept the remainder of their evidence if I think it is worthy of acceptance.

38. Ultimately, I remind myself that how I assess what a witness has said, and what weight I give to the witness’s evidence, is a matter for me.

Drawing inferences

39. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

Burden of proof – counts 1 & 3

40. For all the counts, in respect to the essential elements of the charges, the burden of proof rests upon the Crown. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. Insofar as the essential elements of all of the charges are concerned, the accused does not have to prove anything. Suspicion is not a substitute for proof beyond reasonable doubt.

Presumption of innocence

41. It is, and always has been, a critical part of our system of justice that persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge(s) beyond reasonable doubt, then the accused must be found "not guilty" of the charges.

Ground of exculpation

42. For counts 1 & 3, the accused asserts a ground of exculpation; namely, that he honestly and reasonably, but mistakenly believed that the complainant was 16 years old; and ‘turning 17’.

43. Given the accused relies upon honest and reasonable mistaken belief as a ground of exculpation for counts 1 and 3, and on the assumption that the accused satisfies an evidential burden, the Crown must prove, beyond reasonable doubt, that the accused did not honestly believe, on reasonable grounds, that the complainant was “(16) turning 17 years of age”.

44. The Crown conceded that the accused had discharged an evidential burden in this case and this concession, as I understood it, extended to all counts.

Standard of proof – “beyond reasonable doubt”

45. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after considering the submissions made to me by each of the parties, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt, or has not disproved the ground of exculpation that the accused relies upon for counts 1 & 3 beyond reasonable doubt, then it is my duty to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

46. It follows from this that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, or this common law ground of exculpation, then even though I may feel that the accused may be guilty, if I have a reasonable doubt whether the accused did have an honest and reasonable, but mistaken belief about the complainant’s age, the accused is entitled to the benefit of that doubt, and I must find him not guilty. As was said by Dawson J in He Kaw Tey v The Queen ^[5] , with reference to the ground of exculpation under the common law:

“There is, however, no justification since Woolmington v. Director of Public Prosecutions for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that …. sufficient evidence may be elicited …. to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.”

5. (1985) 157 CLR 523 per Dawson J at 592-593; cited in CTM per Kirby J (dissenting in the outcome, but not on the point of principle) at [104]; per Hayne J at [179]

47. This is so in respect to the Crown case against the accused for counts 1 & 3.

Burden of proof – counts 2, 4 & 5

48. For these counts, the burden of proof remains upon the Crown to prove beyond reasonable doubt the essential elements of the offences.

49. However, the burden of proof lies on the accused to establish that he has the statutory defence (under s 91HA of the Crimes Act) to these charges. To do so, the accused is not required to prove the defence of innocent production and innocent possession beyond reasonable doubt - which is the standard of proof imposed upon the Crown - but rather, is required to establish it on the balance of probabilities. In this regard, the Crown noted that if the accused had an honest and reasonable but mistaken belief, he would have had a ‘lawful excuse’ within the meaning of s 417 of the Crimes Act; and also cited R v Marland [2017] NSWCCA 277 at [10]-[11], where the Court of Criminal Appeal noted that it was common ground in that case that the legal burden of proving this statutory defence was on the accused.

Standard of proof – “balance of probabilities”

50. The accused needs to establish what the accused relies upon, in this regard the statutory defences, to a lower standard of proof than beyond reasonable doubt. The accused is required to make out the defence ‘on the balance of probabilities’ (s 141(2) of the Evidence Act 1995 (NSW)). This is the same quantum of proof that is required of a litigant in a civil action ^[6] . That requires the accused to show that it is more likely than not that what the accused asserts – that he honestly and reasonably but mistakenly believed that the complainant was over 16 years of age - was so.

    6. B Fisse, Howard’s Criminal Law (5th ed), Law Book Company (1990) p 20

51. I must be persuaded that the accused honestly and reasonably believed that the complainant was above the age of 16. Whether or not I reach that state of actual persuasion has regard to s 140(2)(a)-(c) of the Evidence Act 1995 (NSW). Those are mandatory considerations for me to take into account, but they are not exhaustive. I am also to consider what was identified under (and substantially overlaps with) the common law as to the seriousness of the assertion, the inherent unlikelihood of its occurrence and the gravity of the consequences flowing from such a finding^[7] . Relevant to these matters is the presumption of innocence which the accused enjoys^[8] .

    7. Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at 361-363.

    8. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 444 at 449-50; applied in Roberts-Smith v Fairfax Media Publications Pty Ltd (No.41) [2023] FCA 555 at [114]

52. My state of being so persuaded about that asserted fact is not necessarily achieved because the one party adduces more evidence than the other ^[9] . It is the probabilities that must be balanced, not the quantity of evidence ^[10] . I must also consider whether the evidentiary material before the Court is sufficient to provide a basis to reach a reasonable decision and that consideration is affected by the ability of the parties, particularly - although not exclusively - the party that carries the burden of proof (in the present context, the accused), to lead evidence on a matter and the extent to which he has done so^[11] and the other party (in this context, the Crown) to contradict^[12] .

    9. Briginshaw at 361.2

    10. LH Hoffmann, The South African Law of Evidence 2nd ed, 1970, pp 365-6, cited in J D Heydon, Cross on Evidence + Cases (electronic subscription, LexisNexis) (“Heydon”) [9005] at fn 8

    11. Ho v Powell (2001) 51 NSWLR 572 per Hodgson JA (Beazley JA – as her Excellency then was - at [14]-[15]), Heydon [9005] fn 7

    12. Qantas Airways Ltd v Gama (2008) 167 FCR 537 per Branson J at [138]

53. Another matter of some significance is that the statutory defence requires the accused to prove, on the probabilities, a double negative. Reduced to its essentials, this is that the accused did not know the complainant was aged under 16. As perhaps another way of describing the rule in Blatch v Archer, where a party (the accused) bears the burden of proving a negative, but the other party (the Crown) has the greater means to produce evidence to contradict the negative proposition, then provided that the party who carries the burden tenders some proof from which the negative propositions may be inferred, the other party carries a ‘tactical’ burden to advance matters which (if relevant) the first party would have to deal with in the discharge of its burden of proof^[13] .

    13. Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payment Corp (1985) 1 NSWLR 561 at 564; Heydon [7165]

Right to silence

54. As indicated later in these remarks when I summarise features of the accused’s ERISP, in certain instances in that interview, the accused declined to answer certain questions.

55. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told the accused when he was asked if he wanted to answer their questions. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.

56. In this case, it would be quite wrong if the accused, having listened to what the police said, and having decided to exercise his right to silence, later found that the trier of fact was using that fact against him. I must not do that. It is important, therefore, that I bear in mind that the accused’s silence cannot be used against him in any way at all. The fact that he took note of the caution given by the police and chose to remain silent cannot be used against him. Under our law, an accused person has a right to silence.

Admissions

57. Evidence has been given that the accused made certain admissions to the police in his ERISP. As will be developed, this was especially the position in relation to what he said to police about his sexual needs, lust, and even sexual addiction on 15 July 2021, being admissions made approximately one month after the sexual acts in this case.

58. This is not a case where the accused denies what might be called the physical elements of the offences: he admits that he had sex with the complainant and admits filming it and possessing or producing child abuse material. It is his state of mind that is relevant and particularly his belief in the complainant’s age. What he said in his ERISP about his sexual needs at or about the date of the acts of sex is relevant to his state of mind about her age. It is not unknown for a guilty person to make admissions to the police and then to have second thoughts about whether they were true. In this context, at a point in his evidence at trial, he said he felt a lack of composure and nervousness during the ERISP.

59. Whilst I might think that a person would not usually refer to matters affecting his state of mind if they were true, there may be situations where a person may make a false admission, including for the reasons which the accused asserted in his evidence, being that this was a new experience for him, he was, for example, nervous. 

How the Crown seeks to prove its case

Agreed Facts (Exhibit A)

60. These were as follows.

1. The accused’s date of birth is in April 1996.

2. The complainant’s date of birth is in November 2008.

3. In the period June 2021 to July 2021:

1. the accused was 25 years old;

2. the complainant was 12 years old; and

3. the complainant lived at [redacted], Kingsgrove with her mother, [redacted].

4. On 12 June 2021, the accused and the complainant met in the accused’s vehicle, which was parked near the complainant’s house.

5. At 12:13:53 PM on 12 June 2021, the accused filmed a video on his mobile phone. This video was automatically allocated the file name “IMG_5211.MOV” by the accused’s phone.

6. The IMG_5211.MOV video:

1. depicted the accused and the complainant engaging in sexual intercourse, namely, the accused inserting his penis into the complainant’s mouth;

2. had a duration of 2 minutes and 15 seconds.

7. At 12:16:12 PM on 12 June 2021, the accused filmed a video on his mobile phone. This video was automatically allocated the file name “IMG_5212.MOV” by the accused’s phone.

8. The IMG_5212.MOV video:

1. depicted the accused and the complainant engaging in sexual intercourse, namely, the accused inserting his penis into the complainant’s vagina;

2. had a duration of 19 minutes and 31 seconds.

9. In June and July 2021, the accused had possession of intimate videos and photographs of the complainant.

10. Between 1 July and 2 July 2021, the accused threatened to disseminate intimate images of the complainant without her consent by threatening to print:

1. the complainant’s intimate images and the complainant’s face on a poster and sticking it to the front gate of the complainant’s school; and

2. the complainant’s intimate images and the complainant’s face on a pamphlet to be distributed.

11. The accused made threats to the complainant in the following messages that were sent to the complainant via Instagram:

• “and to your school”

• “dw I got it too hehehe”

• “even printed a poster that I will stick to with your face in it”

• “and stick in it infront of your school gate fucker”

• “and send all the pamphlets with your face and pussy spread :)”

• “I warned you already and you didn’t listen so now Imma fuck you up :)”

• “Goodluck :D”

• “Harsh hey”

12. On 15 July 2021, the accused was arrested, and his phone was seized. At this time, the following videos and images depicting the complainant were contained on the accused’s phone:

DATE	FILE NAME	CONTENT	METADATA ANALYSIS
12/06/21 12:13:53 PM	IMG_5211.MOV	accused In car, wearing blue shirt; penis exposed	This is a video file created by the accused. This file is the subject of Count 2.
	IMG_5218.MOV	Complainant performing fellatio on accused – both faces visible	This is a snippet video file of IMG_5211.MOV that was created by the accused on 12/06/2021 3:43:27 PM
12/06/21 12:16:12 PM	IMG_5212.MOV	accused In car, wearing blue shirt; penis exposed Complainant in background (no face)	File created by the accused. This is the file subject of Count 4.
	IMG_5229.MOV	Close up of penile-vaginal penetration; no faces seen	This is a snippet video file of IMG_5212.MOV that was created by the accused on 13/06/21 9:04:43 AM
	IMG_5976.MOV	This is a snippet video file of IMG_5212.MOV that was created by the accused on 12/07/2021 12:47:20 PM
07/07/2021 8:49:43 PM	IMG_5894.MP4	Close up of fingers penetrating a vagina Header: “[redacted] to you 3h”	This is a video created by the accused whilst the Instagram application was open.
21/06/2021 7:31:28 PM	IMG_5565.PNG	Complainant is naked, face mostly visible. Appears to be during a video call.	This is a screenshot that was created by the accused.
21/06/2021 9:37:45 PM	FullSizeRender.jpg	Same as above, but with the video call portion seemingly edited out	The accused opened the Apple Gallery application, created this photograph and then closed the Apple Gallery.
22/06/2021 7:41:04 PM	IMG_5594.PNG	Complainant’s breasts exposed; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
22/06/2021 8:06:40 PM	IMG_5597.PNG	Complainant on top of a toilet penetrating vagina with an object; face visible	This is a screenshot that was created by the accused.
22/06/2021 8:08:48 PM	IMG_5598.PNG	Complainant on top of a toilet penetrating vagina with an object; face visible	This is a screenshot that was created by the accused.
22/06/2021 8:11:40 PM	IMG_5599.PNG	Complainant on top of a toilet penetrating vagina with an object; face visible	This is a screenshot that was created by the accused.
22/06/2021 8:24:30 PM	IMG_5600.PNG	Complainant on the floor penetrating vagina with an object; face visible	This is a screenshot that was created by the accused.
22/06/2021 8:30:25 PM	IMG_5603.PNG	Complainant lifting shirt; breasts visible; face visible	This is a screenshot that was created by the accused.
22/06/2021 7:45:27 PM	IMG_5624.PNG	Close up of vagina with fingers holding the lips apart; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
23/06/202 8:02:16 PM	IMG_5627.PNG	Close up of vagina; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
29/06/2021 12:35:17	IMG_5700.PNG	Complainant’s breasts visible; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
29/06/2021 12:35:23	IMG_5701.PNG	Complainant’s breasts visible; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
30/06/2021 6:05:30 PM	IMG_5709.PNG	Complainant’s breasts visible; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
30/06/2021 6:05:35 PM	IMG_5710.PNG	Complainant’s breasts visible; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
30/06/2021 6:05:42 PM	IMG_5711.PNG	Complainant’s breasts visible; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
6:05:58 PM 30/06/2021	IMG_5712.PNG	Complainant’s buttocks visible; face not visible. Header: “[redacted] to you”	This is a screenshot that was created by the accused.
09/07/2021 5:01:31 PM	IMG_5956.PNG	Close up of penile vaginal penetration; face not visible. Appears to be a screenshot of Video 3 or 5 (or snippet thereof).	This is a screenshot that was created by the accused.
09/07/2021 5:01:43 PM	FullSizeRender.jpg	Same as above but with the video application portion removed.	The accused opened the Apple Gallery application, created this photograph and then closed the Apple Gallery.

Videos (Exhibits K & L)

61. Video footage of the acts of sexual intercourse sustaining counts 1-4 (incl) (and partly count 5) were played in Court.

Photographs of intimate images of the complainant (Exhibit N)

62. These were located on the accused’s mobile phone; stored in a hidden folder in the ‘Photo Gallery’. They depict the complainant exposing her breasts and her vagina and also some graphic images of her engaging in sexual touching of herself for the camera. The full details are referred to in the table in paragraph 12 of the Agreed Facts. The Crown relied upon these to sustain count 5.

63. Aside from the complainant showing off parts of her anatomy, her face and head were clearly visible in many of the photographs (IMG_5597.PNG, IMG_5598.PNG, IMG_5600.PNG, IMG__5603.PNG). All of these were created on 22 June 2021, post-dating the acts of sexual intercourse on 12 June 2021.

The extraction of messages from the accused (15 July 2021)

64. Constable Intia is a police officer from the plain clothes section of Campsie Police Station. He received a report about allegations of sexual assault and child abuse material on 15 July 2021. He was involved with the Child Abuse Squad (centred in Parramatta) in using the complainant’s mobile phone to simulate messages, apparently from her, to the accused. This facilitated the accused’s arrest.

Documents establishing (or indicating) the complainant’s age

65. I have already noted the agreed fact about the complainant’s date of birth. The Crown also relied upon other documents that indicated her age. These were proven through the evidence of the OIC, Constable Kavi Parkash. They were:

• The complainant’s birth certificate (Exhibit C);

• Records obtained from the complainant’s school (signed by the complainant’s parents on 2 April 2020, the year when the complainant was scheduled to commence Year 7). A colour photograph of the complainant was on the front page. (Exhibit D);

• A photograph of the complainant in her school uniform which the OIC said he obtained in 2022 (Exhibit E). I infer from the circumstance that she was in Year 7 in 2020, that she was likely to have been in Year 8 in 2021 and Year 9 in 2022.

Access to the complainant’s Instagram account & relevant content (Exhibits H & J)

66. Photographs of the accused’s mobile phone indicated that he had access to (including the password for) the complainant’s ‘Instagram’ account. A Cellebrite analysis report was tendered.

67. One message (appearing on p 62 of the report) was from the complainant to the accused at 7:56pm on 8 June 2021. It read:

“[redacted]6112008’

Breaking this message down, it referred to the complainant’s first name and last name and her date of birth.

The accused’s internet searches (Exhibit O)

68. The Cellebrite analysis also indicated searches conducted by the accused on the ‘Safari’ app on his mobile phone of various websites, including Google, Wikipedia and the website of the complainant’s school.

The accused’s statement on arrest (after being cautioned)

69. The officer in charge (“OIC”) became aware of a report of offending on 15 July 2021 when the complainant (accompanied by another person) attended the front counter at Campsie police station.

70. On that day, he and some other police officers (including DSC Fretten and DSC Metcalfe) attended around the location where the accused was thought to reside and spotted a white sedan which police had identified as belonging to the accused. The OIC indicated that he received a message (from Constable Intia) that the accused was expecting to meet the complainant.

71. Once the accused’s car had parked, outside the complainant’s address, the accused was approached (initially by DSC Metcalfe). The OIC said that he showed his police officer’s badge, introduced himself to the accused and explained why he was there. At trial, he gave evidence of a conversation he had with the accused. This went along the lines:

“Parkash:   What are you doing here today?

accused:   I fucked up. I did something not legal”

72. DSC Fretten and DSC Metcalfe also gave evidence about a conversation substantially to this effect.

73. As he later admitted in the ERISP (MFI 8) to which I will shortly turn (at A552), the accused also told police (at the ‘scene’ where he had been arrested) that he had deleted a number of conversations with the complainant on his phone because he knew that they were wrong.

74. Police seized the accused’s mobile phone and asked the accused for his password. The accused complied with that request.

Response to the accused’s evidence about hearing the complainant’s age

75. To anticipate things somewhat, the Crown was permitted to re-open its case to respond to statements made by the accused about hearing a report (which the accused attributed to Sgt Mark Portelli) that the complainant was aged 12 during the process of his being arrested.

76. For this purpose, the Crown recalled the OIC. The OIC indicated the police officers who were present at the time of the accused’s arrest on 15 July 2021. The OIC stated that he was present and close to the accused the whole time during the process, including when the accused was being placed into the police truck. He did not see Sgt Portelli speak to the accused. Nor did he see or hear Sgt Portelli discussing the nature of the case with another officer. The OIC also indicated that all of the 5 police officers who had attended the arrest had, prior to the arrest, been briefed about the nature of the allegations, including the complainant’s age.

77. Under cross-examination, it was put to the OIC that, for a time, he had returned to his vehicle, whilst the accused remained sitting on the kerb and it was suggested that he did this to retrieve a phone to radio in. But the OIC explained that he already had a portable radio on his person and denied returning to his vehicle or, indeed, moving away from the accused at some (any) point in time. He also gave a physical description of Sgt Portelli, indicating that he did not have a beard (even if he had appeared unshaven). In re-examination, he indicated that his head was essentially shaved to not more than 2mm and did not believe that his hair was slicked back.

The Cellebrite report

78. The OIC explained that DSC Fretten performed an initial Cellebrite extraction of the material on the accused’s mobile phone at Campsie Police Station. DSC Fretten corroborated this, and indicated that he was a certified Cellebrite analyst.

79. The OIC recalled seeing videos and photos of the complainant (and accused) on the accused’s phone (on 19 July 2021). But eventually further analysis was undertaken by the Digital Forensic Unit (DFU). The search that the DFU performed was more thorough since it could catch material that had been deleted.

The complainant’s mother’s evidence (Exhibit P)

80. The complainant’s mother’s witness statement was tendered without objection. The material part of this was that the complainant’s mother suspected that the complainant was seeing a boy in late May 2021. After a verbal confrontation with the complainant (in which the complainant said that the boy was ‘from school’), the mother learnt from the complainant’s sister that the complainant had been speaking to the boy on her mobile phone. Her mother said that she seized the complainant’s mobile phone and secured it to deprive her of access to it. Nevertheless, the complainant’s mother recognised that the complainant had a ‘MacBook’ laptop.

The accused’s ERISP (Exhibit Q)

81. After my pre-trial evidentiary ruling, an edited part of the accused’s ERISP on 16 July 2021 was in evidence.

82. Material features of this interview included statements from the accused were (with references to the written transcript used as an Aide-Memoire, MFI 8) that:

1. the reason he went to the complainant’s address (where he had been arrested) was his illegally going to meet up with a minor for a sexual interaction (A46-47);

2. the accused was aware that the complainant was a minor (A61, A72, A121-122, A125);

3. the accused believed that the age of consent was 18 (A 451-452);

4. the accused believed that the complainant was above the age of 18 when he first started talking to her (A67-69). They did not speak about her age when they first met (A237-238). The basis for his belief about her being over 18 when he first met her were:

1. the way (or how) tall the complainant looked (A68);

2. the way the complainant spoke and the way in which she expressed herself to him (A 69, A144, A239).

5. the accused asked the complainant how old she was (A70), and the complainant disclosed her age to him during the first time she met him (A119);

6. the accused knew that the complainant was a school student (A148, A435, A444);

7. the accused works as a ‘QC Associate’ with a biotech company that provides medical devices that ‘attack’ diseases (A249-250);

8. the accused agreed that it was not right to store in the photo gallery of his mobile phone intimate photographs that the complainant had taken of herself as they depicted a child (A338, A344-345)

9. the accused stated that he regretted messaging the complainant (A384);

10. asked whether he believed that an adult should not be having sex with children, the accused’s response was “Morally, no. That is a big no, but like I said, I’m trying to seek help” (A396);

11. asked about the legality (of an adult having sex with children), the accused said “No, of course not” (A397);

12. asked whether he knew that a child of the age of 12 could not consent to sexual acts, the accused stated that “I suppose so” and then “Yeah. I, I can’t say. Yeah” (A459-460);

13. asked (at Q510) how he felt after having sex with the complainant, especially after she told him that she was a minor (on the first day), the accused had the following exchange with the interviewing officers:

“A   …in terms of the way I see sex is just like no matter who it is, it’s just a form of relieving myself to gain control of myself, if that makes sense. To elaborate on that better, when I have sex with a person it’s just not because of how I connect with them. It’s just to me, for me to relieve it

Q511:   Just your sexual needs?

A   Yeah, sexual needs. And ---

Q512   Doesn’t matter how old the person is?

A   Well, to go into that type of drive and stay, it can, it can, it can consumes you way worse, and that’s why I’m seeking help better, and given the opportunity to, to do so …. officers, if they will allow me to be better, I would gladly do it. Just the fact that no one has.

Q 513   But you’ve also not seen anybody for two years mate. You saw a psychologist two years ago and that’s it.

A    So the last time I saw a psychologist was online. Um, this occurred beginning of this year. So the main reason why that I had the point of my life that sex was overtaking me, becoming an addiction, and I need help. In the same way a drug addict will, addicted to drugs, but I knew better that I need to seek help, and that’s why I did. And I thought, and when I seeked that help and then when I went to those therapy sessions it was four sessions I had to go through. And during those times I saw myself an improvement and then I, I … so it lasted three months with just like pure intimate with my partner, no one else, no one else in the picture until that little voice in my head saying, “Hey what if, what if that?” And ---”

14. the accused said that the complainant was the only other person in his car who was under the age of 18 (A 534);

15. the accused admitted that he deleted conversations with the complainant on his phone since he knew that what he was doing was wrong (A552);

16. the accused was aware that having sex with a minor was illegal (A556-557).

The Accused’s Case

The accused’s evidence

83. The accused elected to give evidence.

84. He indicated that he had a qualification as a Bachelor in Medical Science and clarified that at the relevant period of time, he was a ‘Quality Control’ Associate with his employer.

85. Insofar as the real issues in this trial are concerned, features of the accused’s evidence in chief included:

1. He had his initial contact with the complainant a day or two before 22 May 2021. This was by Instagram. He noted from the complainant’s ‘bio’ profile that she was Vietnamese, of 163cm in height and was ‘single’ (the accused inferred this from the complainant’s usage of the ‘unlock key emoji’ at T 87) (T 87-88).

2. Prior to 22 May 2021, he had seen her profile photograph (Exhibit G) and formed the impression that she was above 18 years of age; though he did not ask her for her age in his on-line communications with her (T 88).

3. He met the complainant, in person, for the first time on 22 May 2021. This had originated in an online communication around midday. He recalled that the complainant wanted to do something with him and asked some details about him (where he lived and what car he drove). She explained that her mother (her sole carer) was going out to a party (though she mentioned that she was looking after a younger sister). By arrangement, he would meet her at her house at 6pm after she supplied him with her address. He parked his car opposite the complainant’s place. They exchanged (by Instagram) messages and she came out to his car (T 89 – 91);

4. The complainant got into the front passenger seat of his car. After a while they both sat in the back seat. The accused noticed what she wore: including makeup. He said his initial impression was that she was 18. This impression was influenced by her ‘mannerism’, in the way that she got into his car and the way that she leaned in the car to hug him. She compared with his own social circle (friends between 23 and 28) in terms of her ‘dress’, her makeup and her extension eyelashes and the ‘fluid’ way in which she talked. She struck him as being “very confident”; indeed a ‘people’s person’. It did not occur to him to ask her for proof of her age. The conversation in the car concluded when the accused said that he needed to go – he explained to her that he had some friends to see (T 91-93).

5. But one or two minutes after she left, he received an Instagram message from the complainant. The accused said that he received, unsolicited, from the complainant, five videos and five photographs showing sexually explicit images of herself. These were distinct from the videos and photographs later identified by police on his phone (which were summarised in the Table in paragraph 12 of the Agreed Facts). The accused said that what he saw of the complainant in these videos and photographs contributed to his belief that she was above the age of 18. He thought that she was physically “well- developed”, in comparison with other partners he had had. They also suggested to him that the complainant was sexually active as the videos included her sexually touching herself (T 95 - 98). Later the accused said that this material remained on his phone until about 30 May 2021 (T 119), when he deleted it (T 120-121). He also said that when he received this material, he thought that the complainant was 22 years of age or above 18 (T 120).

6. The accused was still in his car parked in the street when he received this material. Further Instagram messages ensued, tinged with sexual connotations, as the complainant invited the accused into her home for 10 minutes and he agreed to go in. He drew sketch diagrams of the layout of the complainant’s home (Exhibit 2) and her bedroom (Exhibit 1) (T 98-103).

7. He said that whilst he was in the bedroom (after being temporarily kept waiting whilst he heard the complainant talk to her sister), the room was partially dark; given that it was occasionally illuminated by a censor flicker. He said that he had a conversation with the complainant, when they were both sitting down together to the following effect (noting that the accused also described her movements):

“The accused:   Hey, you still haven’t told me about your age.

The complainant: (pausing and looking down) Ah Okay.

The accused: So how old are you?

The complainant: (looking down again) Turning 17

The accused: When?

The complainant: November 4, 2004”

(T 104)

8. The accused said that he understood this to be her birthday. He believed that he had a good look at the complainant during this conversation, since although the sensor lights were blinking on and off, streetlights were shining in her room. The accused said that this revelation by the complainant of her age made sense to him and that he believed that she was telling him the truth. He stated that he had no doubts about that. There was nothing to suggest to him that she was younger than the age of 16 (turning 17) (T 105).

9. The accused said that there was another subject during this conversation with the complainant that he discussed. This was the subject of sex. He said that he asked her “how many other guys have you sent these ‘nudes’ to” and he said that she responded “6 to 7 people”. He asked her if she was still talking to them and the complaint responded ‘no’. After about 10 minutes he left (T 106).

10. The accused communicated with the complainant the next day and had daily contact in the run up to the events in issue in this trial. He was asked whether the complainant told him about whether she worked or was at school. The accused recalled the complainant telling him that she was a student. He recalled that this occurred in the first week of them talking. More specifically, she told him that she was studying for the HSC and had aspirations about studying interior design at the University of Technology and asked him what ATAR she needed. He recalled sending her (online) a brochure of the University she had referred to. He said that this conversation also contributed to his belief that she was turning 17 (T 106-107).

11. The accused was referred to Exhibit O. He said that the searches he had conducted in relation to the complainant’s school were not to do with the complainant, but rather a friend’s sibling. He said that he did not know the full name of the complainant’s school. He accepted, however, that there was one search that he had conducted when he was at the point of threatening dissemination of intimate photos of the complainant to her school (T107-108).

12. By 12 June 2021, the accused described his ‘relationship’ with the complainant as ‘convoluted’. By then, he estimated having met her four times. He believed that she was ‘speaking’ to others. But he still characterised his relationship with the complainant as ‘friendly/romantic’ (T 109).

13. The accused said that it was the complainant who messaged him (on Instagram or Discord), to meet the accused on 12 June 2021, which he recalled was a Saturday, around lunchtime. She had indicated that her mother was leaving to go somewhere and told him to park his car where he usually did in her street. Upon parking the car, further messages were exchanged, and the complainant came out. He recalled that she got into the front passenger side and greeted him (by hugging and kissing him). The accused said that the complainant asked him to get into the back seat and asked him “can we do it?” He also said that the complainant ‘insisted’ that they record the sexual activity. The accused said that she had previously explained that her mother had taken her mobile phone (I interpolate to note that reference should be made to the complainant’s mother’s evidence earlier). So the accused did, pressing the record button on his phone which was mounted on the phone holder (depicted in Exhibit F). The complainant then performed fellatio upon the accused. He agreed that this was at his request. There was no sexual activity in the car prior to that (T 109-113). The second act of sex involved penile-vaginal intercourse. The video of this sexual activity lasted approximately 19 minutes.

14. The accused said that he was concerned about the possibility of being seen: it was midday in a residential street. He said that this was part of the conversation that he had with the complainant as they were engaging in sex. He said that he told the complainant that there “were people walking past” and that they could be ‘in trouble’ if they were observed. He ducked down and she followed him in doing so. He recalled saying “we can’t be doing this in daytime” (T 115).

15. He said that in the period from 22 May to 12 June 2021, his belief in her age had only grown stronger. Aside from the matters he had previously referred to, she had indicated that for the celebration of her birthday in November (coinciding with her expected completion of the HSC), he proposed to her going into the city, in a hotel at Circular Quay. She also had disclosed to him that she had consumed a ‘Cruiser’ bottle at a party and that she had enjoyed that (T 113-114).

16. He never asked her about her age again and did not sense that there was anything that might cause him to request proof of her age (T 114).

17. After the acts of sex on 12 June 2021 (or at least after the video recording was stopped), he and the complainant sat in the car, by this time fully-dressed, for another 15-20 minutes, cuddling each other and the complainant asked him to use his iPhone. He allowed her to do that and over the course of the next 5 to 10 minutes she took it to store her Instagram details (username and password on it) on his phone. He believed that this would be automatically retained. He believed that she had accessed her Snapchat account and had taken photos of the two of them, smiling, using the Snapchat App (T 117-119).

18. The accused said he took snippets of the video of his having penile-vaginal intercourse with the complainant on 12 June. This was at the complainant’s request as she wanted to see it. He explained that he retained this material on a hidden folder on his phone. This was because he did not want people (including his family) to see it and he explained how the nature of this facility on iPhone impeded persons from accessing it. Other non-sexual videos remained on his phone and the accused explained that this was on the Discord app that had been attached to a message sent to him (by the complainant), which he could not delete (even if it could be hidden). He said that he had not watched the videos until seeing them in Court (T 122-123).

8. The accused was taken by his Counsel, at length, through many of the communications with the complainant that was the subject of Cellebrite analysis (Exhibit J). Features of these messages about which he made comment included:

1. his use of ‘bubb’ reflected his view of the relationship with the complainant being ‘romantic’ (T 124-125);

2. he and the complainant started using ‘Discord’ a week after he first met the complainant (on 22 May) after they had previously used Instagram. The complainant had asked him if he used ‘Discord’. He used ‘Instagram’ simultaneously with the complainant until deleting his messages with the complainant on Instagram on or around 29 or 30 May (the day that he understood the complainant’s mother was going through the complainant’s phone). The complainant communicated on Discord via the use of her MacBook laptop (T 124—126);

3. at about 9:34pm on 29 May, he messaged the complainant to show him her breasts. He believed at this time that she was 16, turning 17 (T 128);

4. from about 2:45pm to 3:14pm on 30 May, the accused sent the complainant serial messages in a context of a dispute with the complainant. He accepted that in one of those messages (sent at 3:13pm), he did not have the complainant’s Instagram account login details and wanted to find out who the complainant was speaking to. At 3:14pm, he was threatening to block the complainant’s access to his Instagram account. He accepted that he was frustrated and angry in this period and believed that his ‘relationship’ with the complainant ‘stopped’ for a day (T 128 – 130 & 131).

5. From about 6:36pm on 31 May, further messages were exchanged between complainant and the accused. The accused explained that this was on the subject of a Vietnamese woman sitting behind him in a train, when he was on a video call with the complainant. The accused (who was of Phillipine extraction) wanted to know what this other person was saying and, after initially indicating that she would not tell him, the complainant (of Vietnamese extraction) said “its just abt her and her studies … and shit”. She also invited the accused to guess “how old does she look”. The accused said that, according to the complainant, the Vietnamese woman behind him was “also” studying for the HSC and the complainant told him that she was also studying for the HSC (T 130-131).

6. From about 7:14pm, through to 7:40pm on 1 June, the accused understood that the complainant was in her bathroom, brushing her teeth. He was on a train and, in his words, was ‘flirting’ with the complainant: by requesting that the complainant show her breasts and to “show ur ass real quick”. He recalled thinking that the complainant was going out and was impressed by features of her appearance, including her eye liner and eyelashes. Reference was made in these messages to meeting the complainant the next Thursday (T 132 – 133).

7. On 8 June, from about 6:42pm, the accused sent a series of messages to the complainant. This started with the statement that he was “gonna eat you on Thursday” and progressed to 6:45pm, when he declared that “Im horny”. The accused explained that from 6:50pm to 7:08pm, he had tried twice to call the complainant. Eventually he got through at about 7:30pm (T 134-135).

8. The accused said that in the period from 29 May to 8 June 2021, he had only seen the complainant one time (T 135).

9. The accused was taken to the complainant’s Instagram message, at 7:56pm (still on 8 June) which I referred to earlier (at paragraph 67). He said that the context for this was that he could not login or access the complainant’s Instagram account. He was perturbed about the complainant communicating with others. He said that he needed her login and had conveyed to the complainant that he could not get through to her Instagram account and indicated that the password that he had was wrong. The content of the password (which utilised the complainant’s first and second name and her actual date of birth) was simply ‘random’ to him. The complainant sent another password to him at about 8:11pm on 8 June. This one was compiled by combining the complainant’s first name with the number ‘8112008’. The accused said that he did not attach any significance to this password (T 135-138).

10. Much later, on 13 July 2021 (after the episodes of sex with the complainant), between 1:52pm and 7:07pm, the accused sent further messages to the complainant. He believed that his Instagram and Discord accounts had been blocked. He demanded a reply from the complainant, who he referred to as a ‘bitch’. He accepted he wrote this out of frustration (T 138).

11. Subsequent contact with the complainant after 13 July 2021 was by Instagram. He said that his relationship with the complainant ended on this day or, to use his words, he had “no more romantic” relationship (T 138).

20. The accused said that it came to his attention that the complainant was 12 years of age when he heard a conversation between police officers who were involved in his arrest on 15 July, whilst he was sitting on the curb side. He recalled seeing a male officer, with a light beard and ‘slicked back’ hair talking to another officer, speaking with a deep voice and asking that other officer “How old is she” and the response that he received was “12”. He said that this made him feel “horrible and appalled and disgusted and confused” (T 139-141,163).

21. He admitted telling the OIC that he had “fucked up and had done something that he knew was illegal”. Asked why he said this, the accused elaborated that he thought that the complainant was 16, turning 17, and had threatened to disseminate sexually intimate material about the complainant (T 142).

22. The accused was taken by his Counsel through parts of his ERISP interview. Features of this part of his evidence included:

1. He was capable of making phone calls to the complainant on Discord (the accused tendered Exhibit 3 to prove this) (T 144-147).

2. At A61 (and at A119 & A124), he was referring to the point of time when he was in the complainant’s bedroom on 22 May 2021. It was then that she revealed to him that she was a ‘minor’, which he interpreted as being (and had told police) that she was under the age of 18. He believed that she was a minor because she told him that she was 16, turning 17 (A 148).

3. At A67, when he told the interviewing officers that he thought she was above the age of 18, he was referring to the points in time when he first messaged her on Instagram and first saw her physically (T 148).

4. At A68-A69, he thought that she looked as though she was 164cm in height (which coincided with his own height) and when describing the effect of her ‘composure’ upon him, said that she had used the same social jargon as friends of his who were aged above 20 (T 148-149).

5. At A70, he said that the first time she disclosed her age was when he met her on 22 May 2021 (T 149).

6. At A89, when telling police that he had recorded sexual encounters with the complainant, he was referring to the acts of sex on 12 June (whilst emphasising, again, that the complainant had wanted him to record it) (T 149).

7. He estimated ‘meeting up’ with the complainant on 4 occasions. For all but one of them, it was she who proposed the ‘meeting’ (T 149-150).

8. At A189 (& earlier at A164) when he described to police as ‘giving in’ to the complainant’s wishes (to have sex), he was referring to the period from 22 May to 15 July. The accused explained that the complainant was calling him on Discord and was ‘venting’ against her mother. He said that he saw that the complainant was in need of help (T 151).

9. In relation to A202, he went over to the complainant’s house on 3 occasions. On all occasions, he was assured that the complainant’s mother would not be there (T 152).

10. In relation to A209-211, 218, 236-239, he barely disclosed to the complainant his personal details, such as his mobile phone number (they were communicating by social media), although he did disclose his first name and age. His statement at A237 was wrong (T 152).

11. In relation to A285, he was referring to the deletion of messages from Instagram; in the period 28 June to 22 May. He explained that that there were several reasons for this: first, the complainant asked him (he understood, because of her concern that her mother might go through them); and secondly, looking back at them, he said he felt disgust at what he had written at a time when he was angry and frustrated and ‘going through mental instability’; and thirdly, he was frustrated to see the complainant’s references to communicating with third parties (T 153-154).

12. At A314-315 (& A 418), the video that he sent to the complainant was the video of their having sex on 12 June, or the ‘snippets’ of that video he had created. It came into his possession from the complainant sending it to him. He sent it because he wanted to obtain a response from the complainant. Over 4-5 days, she had not responded to his ‘normal’ mode of talking (T 154-155).

13. The accused was referred to the sexually explicit photos (Exhibit N). He said he took a screenshot when on a video call with the complainant, which occurred on 22 June. He restated his belief that she was turning 17 (T 155).

14. In relation to A326, when informing police about his saving files, he was referring to the Instagram and Discord communications with the complainant (T 155).

15. At A337, the photographs he deleted were the screenshots he took in the video. He acknowledged that when he said that “it was not right to have the photos” he had threatened the complainant (such as sending them to her family, posting a pamphlet or poster), but these were only “words with no meaning to it” (T 156).

16. At A338, when he agreed with the police that it was not right to have photos (of this kind) depicting a child, he believed that police were referring to a person under the age of 18 (T 156).

17. At A339-345, what he had put in the photo galley were the (intimate) screenshots of the complainant he had taken from the video, this was part of the ‘main’ photo gallery on his iPhone (T 156-157).

18. At A377-378, he was explaining to police that whilst his career, life, friends and sense of material possession (at least in relation to having a car) were ‘straight’, he had been seeing a sexual psychologist (twice), in 2019 and 2020, as therapy (T 157).

19. When at A384, he explained his regret at messaging the complainant in the first place because she was ‘bad’ for him ‘mentally’ (T 158).

20. At A393, he was indicating that the sexual acts with the complainant which occurred on 12 June 2021 were consensual (T 158).

23. he understood that counts 2, 4 and 5 related to sexual material about a child under the age of 16. He said that at all times when he was producing or retained possession of the intimate images of the complainant, he did not suspect that the complainant was under the age of 16 (T 158-159).

86. The following matters arose from his cross-examination:

1. Whereas he told police that he had one Instagram account (‘Deity10001’) he had in fact 5 other accounts (T 178 – 179);

2. As he had done with his own partner (Alyssa), he was able to access the complainant’s Instagram account (T 179 – 182);

3. By the time he first met the complainant, on 22 May, to enable him to assess her age, he had her Instagram photo profile and some bio information (such as her nationality, height and single status (as inferred by the ‘unlock key emoji’)), although the accused also added (which he had not referred to when giving evidence in chief) a series of short videos posted by her on Instagram (one of which involved sexual content). Asked to explain why he had not disclosed this earlier, he said he had forgotten to and was ‘nervous’ (T 182; 194 – 196);

4. He accepted (as at 22 May) that potential users of Instagram accounts could be as young as 13, but to this point on 22 May he thought that the complainant was above 18 (T 183 – 184);

5. When arranging to meet her on 22 May, he did not think to ask whether she had a car or could drive. He explained that he was not concerned about how she could transport herself to the location for the meeting (T 186);

6. He said he did not think it unusual on 22 May, for someone who he thought was a 20 to 22-year-old, to seek to arrange a meeting with her at her place with her mother not there and he did not turn his mind to her age with reference to this circumstance. He also did not think the venue for the meeting was unusual (T 186 – 188; 190).

7. He agreed that he was looking for a ‘date’ with the possibility that it could lead to something romantic. He did not think it unusual that the complainant would ask to meet him in his car when he arrived at 6pm nor that she watered the garden: he said he was conscious of her ‘strict Asian parents’ and the possibility that her sister might tell them about seeing the complainant with him (T 188 – 191).

8. By the time she arrived to meet him in his car, he believed she was at least 18, and potentially, 20 to 22 years of age. This was the first time he had a ‘close up’ with her. He reiterated that aside from the light turning on in his car when the door was opened, there were streetlights and light emitted from her house. He said he did not think it unusual that the complainant might want to sit with him in the backseat, which they did for between 5 and 10 minutes. In that period they spoke and hugged and, when they did this, there was no light within the car: it was ‘half bright’. He reiterated that she appeared very willing to come into the car (T 191 – 194).

9. He said that after she got out, returned to her house and thereafter sent him intimate photos and videos of herself, he thought she was ‘sexually active’. He admitted feeling attracted to her before seeing that particular material, and sensed that their relations might become more physical. But after having seen this material, his sexual attraction to her was heightened. He said he deleted the videos and photos on 27 or 28 May 2021 and explained that she told him that her mother had been going through her phone. Asked whether her mother was likely to have access to his phone, he said that he merely did what the complainant asked him to do. By this point, he believed that she was 18 ( T 196 – 199).

10. The accused was then asked about his entry into the complainant’s home on the evening of 22 May. He accepted as a possibility that something (sexual) might happen. At the point of entry, he thought she was 18. He accepted that there was a sense of his ‘sneaking’ into the house and explained that he was wary about the complainant’s sister. He did not think it was unusual for him (and the complainant) to be sneaking around: she had asked him to be quiet, and had said that the younger sister was still awake, and this was consistent with his experience of how persons above the age of 20 might behave when a family member was about (T 199 – 201).

11. The accused was then asked about what occurred inside the complainant’s bedroom. This was the first time he asked the complainant about her age, although, in his evidence in chief, the actual question he raised was that the complainant had ‘still’ not disclosed her age. He was asked whether this suggested that he may have asked her previously but he denied that. He was also asked whether the form of the question suggested doubt in his mind about her age and he denied this. He told the Court, in answer to a question I raised, that he expected her to tell him her age. He was referred to the part of his evidence in chief where he said, twice, that the complainant had ‘paused’ and ‘looked down’. He denied that he was suspicious about this: he said he was just curious whether she was unwell; but he accepted that her behaviour was open to multiple interpretations, such as her reluctance to tell him her age, or her even lying about it. But he professed that he was a “very trustworthy person, (who) trust(ed) people easily”. Her behaviour was consistent with his past dating experience (T 202 – 203).

12. He was asked about his reaction when the complainant told him that she was “turning 17” (the accused eventually accepting that he understood that this disclosure necessarily conveyed to him that she was, at that point, actually 16). He accepted that he believed, from this point, that she was a minor. He agreed that this being so, he believed that he was exposing himself to a high risk by sitting on the bed in a minor’s bedroom, and was concerned at having cuddled a 16-year-old, but he did not assert to the complainant his belief that she was ‘under age’. He said he was not concerned about having received (earlier in the evening) the type of videos and photographs which, he asserted, the complainant had sent to him when, to him, she was a minor. He left the images on his phone. Asked why this was so, the accused said he did not know. He said he was ‘shocked’, but his only reaction was to move away from the complainant further along the bed, to a point where he was at an arm’s length distance (the accused agreed he had not indicated this in his account when giving his evidence in chief) (T 204 – 209).

13. He was referred to his evidence when he followed up by asking when she was to turn 17. He accepted that the response he actually received (her giving him her (false) date of birth) was the sort of response he would expect to receive if he actually asked her what her (actual) date of birth was. He agreed that it appeared that it was a ‘rehearsed’ answer. But he interpreted this as suggesting that she was ‘well experienced’ and denied that it raised suspicion in him. Mr Crown suggested that the accused could be mistaken about having this conversation, but the accused maintained that he had. He agreed that his recollections of the conversation caused him to reflect upon his earlier assessment, prior to the disclosure, of her age: he still thought that she looked as if she was 22. When it was suggested that he simply did not care what her age was, he maintained that he did, because he ‘cared’ (T 209- 211; 215 – 218).

14. After leaving the complainant’s house, on the evening of 22 May, he went to his friends’ place (in Strathfield) and ran late by about an hour (he did not give notice that he was going to be late). He did not tell anyone at the gathering about his meeting with the complainant (T 218 – 220).

15. Asked why he continued his ‘relationship’ with a person who he believed was a minor, the accused said that she had asked him to, even if he was concerned about continuing contact. This, he explained, was why, from 23 to 30 May, he inquired of her about her studying and ascertained that she was doing the HSC. In this period (22 May and over the next few weeks), they were speaking daily (T 220).

16. The accused was referred to the answer he gave in his ERISP on 16 July 2021 (to Q150) when he said he did not know what school the complainant went to. He was referred to Exhibit O, indicating internet searches (on 2 July), and said he only understood that she was at a school which contained the name ‘[the first word of the complainant’s school]’. This coincided with a period in which he had threatened the complainant with disseminating the intimate photographs or videos, amongst other places, at her school. He agreed that what he said to police was inaccurate. He then had the following exchange with the interviewers:

“I was under immense pressure from every - everything. This is the first time being in custody, being first time in trouble with the police, I don’t know how to compose myself and I got my head smashed in by six police officers and then the realisation at that time, I don’t know what was happening,

Q Did you make any complaint to anyone about the way you had been treated?

A: Treated? At that time?

Q: In the interview?

A: No. I was scared” (T 222).

Following this reaction, the accused was asked whether he had complained about police mistreatment and whether he had been given the opportunity to confer with lawyers before and during his ERISP. He said it had never entered his head to ask for lawyers. He later explained that he “didn’t know how to compose myself”. I queried whether, in fact, he had not been forthcoming to police when he responded ‘Definitely no’ when questioned about his awareness of the complainant’s school and the accused said:

164. The Crown’s challenge rose no higher than that the complainant’s disclosure, given its content and the manner in which it was described, gave rise (objectively) to suspicion in the general veracity of what the complainant told him. But as I have explained, in my view, there are other available inferences to the accused about what he inferred, or should have inferred, about the complainant, and in the accusatorial and adversarial context I have earlier described, I am not prepared to hold that, by the conclusion of the events of 22 May, the accused did not honestly and reasonably believe that the complainant was over the age of 16.

165. One may question the morality of the accused’s conduct, having regard to his belief about the complainant’s age, and being put on notice of it. But, as explained, this did not disqualify him from being ‘innocent’ in the requisite sense.

166. I would also add, that up to the point where events on 22 May had occurred, I would be reluctant to accept that it was reasonably incumbent upon the accused to make further inquiry of the complainant; in effect by interrogating her. What the complainant told him would be very unlikely to be viewed by him as patently dishonest, given his belief about her age based upon matters occurring prior to the conversation in question which I have referred to. I do not find, certainly in the absence of other evidence, that in relation to this conversation, the complainant and accused were playing out a charade or that the conversation on the subject of her age was a sham; in which they shared the common knowledge that she was under 16 despite what she told him.

167. Moreover, it is simply speculative to think that any further inquiries may have provided additional grounds for suspicion. In this regard, to invoke the ground of exculpation, it is one thing to expect an accused in the position of this accused to make positive inquiry of the complainant’s age, which he did. It is another thing to say that he would reasonably be expected to conduct a de facto ‘due diligence’; seeking corroborative evidence to support the complainant’s disclosure as if he was expected to act like a detective sleuth. Even if, adopting the Crown’s suggestion, he should have asked her more questions about what year at school she was in (assuming that he was aware that she was at school at this point), it is speculative to think that the complainant, who had lied to the accused about her age, would, under further interrogation from him, tell the truth, say that she was in Year 8 in high school that year. It might be accepted that one way to dispel all doubt was to ask to inspect a copy of her birth certificate (assuming that be genuine) or provide her with a questionnaire for her to complete. But that would be a counsel of perfection when the issue is whether the Crown could disprove the reasonableness of the accused’s belief beyond reasonable doubt (for charges 1 & 3) or even whether the accused could establish that he reasonably should have known that she was under 16.

168. So far I have concentrated heavily upon the events leading up to and including 22 May 2021. Thereafter, in the run up to the events that occurred on 12 June 2021, there were other circumstances bearing upon the issue of his belief of her age.

169. The Crown referred to the accused’s Instagram messages on 30 May in which he expressed unflattering views about the complainant, describing her, amongst other things, as a liar.

170. I do not consider that this matter was of such significance as to reasonably dispel in the accused’s mind his belief, formed by that point, that the complainant was turning 17, no matter how offensive the messages were to the complainant and no matter how it indicated the coercive way in which the accused was treating the complainant. The issue is what the accused thought of the complainant’s age; not what he thought about her character in the context of her preparedness to misstate her relations with other persons.

171. The Crown referred to the circumstances regarding the accused’s unwillingness to do the sort of things it would be expected that he would have done if he genuinely believed he was in love or had an emotional connection with the complainant: such as providing her with information about himself, and introducing the complainant to his family. If his view, in this regard, was honest, it would mean he was in love with at least two people and cheating on both simultaneously.

172. This was all discreditable, or at least the accused’s evidence on these matters was not credible. Nevertheless, I am not prepared to accept the inference that the Crown draws that these matters necessarily betoken a consciousness of belief that the complainant was under the age of 16, or that disclosure by him to others would necessarily lead to the situation where any doubt or his suspicion of her age would likely have been heightened. An obvious available inference is that by letting his family or other friends know about his relationship with the complainant would expose him to others’ disapproval for his cheating on his partner, Alyssa.

173. There was also the evidence from the accused about his discussion, subsequent to 22 May, with the complainant about her studying. He had indicated in his ERISP his understanding that she was a school student. He was not challenged about his account of that conversation (at T 106-107), in which, on his account, he ascertained that she was studying for the HSC and harboured aspirations to go to University. A point of some significance was the accused’s evidence that they did not ‘directly’ discuss what year she actually was in. Nevertheless, he said in cross-examination that he took her indication that she was studying the HSC to mean that she was in Year 12 (T 222.7). He also said that part of his thinking was a desire to meet with her parents only when she had completed her HSC after which he would have a celebration with her in the city.

174. If the accused had put together these pieces – that she told him she was turning 17 in November 2021, but she would by then have completed her HSC – it might have occurred to him that it was improbable that a person who was only 17 could complete the HSC, he could have formed a view that what she had told him about her age was dubious. However, this mode of thinking would have attributed to the accused powers of reflection which I am not convinced that he had, or many others would have had, in his position. By this stage he was 25 and had left school many years before. Nor do I find it compelling that a man in his mid-20s, even without this accused’s characteristics of being a sex addict, would reason back in this way. Although I have reservations about his credibility and in particular, his evidence about his interest in the complainant for anything other than for sexual purposes, this evidence was not sufficient in my view to fatally undermine the proposition that he honestly believed that the complainant was over 16.

175. On 8 June, he received a password which, if it was closely examined, might have given him a clue that the number in the password indicated the complainant’s date of birth. Again, although this was a clue, care needs to be exercised as to the likelihood, or indeed how realistic someone in the accused’s position and circumstances – on this date in a somewhat frantic state of mind because of frustration in obtaining her password – would have picked up on this clue.

176. Then there was the events of 12 June 2021. The accused’s evidence that the complainant asked him to record the sex was not seriously challenged. In my opinion, there was nothing to gainsay his evidence that the complainant’s appearance to him on that day would have caused him to doubt that she was turning 17.

177. Ultimately, I do not accept the Crown’s rather sweeping submission that there was never any stage where the accused stopped and thought ‘I just don’t know hold old she is’. He did take a positive step to inquire what age she was. I substantially accept the accused’s argument that in arguing whether his mental state about her age was reasonable, the Crown is engaging in an exercise that is filled with hindsight and divorced from the reality of the position of how someone would reasonably respond to cues as they appeared at the operative time.

178. It will be evident from how I have reasoned that the accused’s (limited) good character has had only marginal impact upon these conclusions. I have already said some things about his character or credibility. It assists the accused to a degree when assessing his overall credit, but not all that materially in a context where he has admitted threatening to send intimate images of the complainant to others. This not only sustained the Crown’s view of his controlling nature, at least of his ‘relationship’ with the complainant but also, as I said earlier in my comments on his general credit, indicated a vindicative streak in him. But if that was to overstate the matter, I would find that it indicated that he was not able to exercise reasonable control to manage his feelings of anger and frustration. That diminished the weight of the (limited) good character, because of an inability to control anger and frustration (in conjunction with a person with an admitted high sexual drive) might indicate that the limited good character may be overridden in the circumstances.

179. It will also be evident from how I have reasoned that Exhibit 4 has marginal impact upon the above conclusions.

180. At the pre-trial hearing, I indicated that, on the balance of probabilities (under s 142 of the Evidence Act), the complainant did generate the representation on Tik Tok. Proof of the act that the accused relied upon to establish the tendency is therefore satisfied alongside his evidence of the conversation on 22 May 2021.

181. I am also satisfied that the act is capable of proving the tendency asserted by the complainant, of misrepresenting her age as not being her biological age. In reaching that conclusion, I find that the representation in Exhibit 4 was deliberate and moreover intended to induce a recipient of the message (a very broad class of person) to believe the fact represented. In other words, the inference that the complainant invites was rational. As I indicated in the pre-trial hearing, it is not a condition to establishing a tendency that the act relied upon must be more than a single act or that it post-dated the offending (so that the accused could not be aware of it).

182. I am conscious of the possibility that the complainant made a misrepresentation about her age when positing the Tik Tok video does not necessarily mean that she misrepresented her age to the accused on 22 May. But this circumstance does not assist the Crown, especially but not solely, in relation to charges 1 and 3, where it carries the legal burden of proof to a high standard and has not called the complainant who had the capacity to address this (and other) evidence.

183. There is force in the Crown’s submission that I should not give disproportionate weight to this evidence. Aside from the circumstance that the representation to establish the tendency was made 17 months after the events in issue in this case, there is the matter of a qualitative difference in context in which the Tik Tok representation was made, and the accused’s evidence of the age representation that was made to him by the complainant. The former was what I consider a form of boasting and celebration about the status of her age at large. The latter representation was made in a context of the complainant and the accused contemplating engaging in private sexual relations.

184. But it does have particular probative significance, in my view, since a large part of the Crown’s argument was that even after the conversation that the accused had with the complainant on 22 May, when she made her representation of age, there were certain matters which should reasonably have caused the accused to take stock and doubt the veracity of what he was told. The circumstance that even when the complainant was likely to have been (other things being equal) more (emotionally) mature in November 2022 than she was in May and June 2021 but yet had made a false representation as to her age suggests to me that even if I was to find that, acting reasonably, he should had made further inquiries beyond which he made about her age on 22 May 2021, it could not be inferred that he would have been disabused by the complainant of his belief.

185. In this way, the tendency evidence assists the accused.

186. The Crown has not persuaded me beyond reasonable doubt that the accused did not have an honest and reasonable, but mistaken belief, that the complainant was over the age of 16.

Charge 3

200. I find that the two essential elements of this offence have been proven beyond reasonable doubt. They have been admitted in writing and this was reaffirmed by Counsel for the accused in his closing submissions.

201. Although I am obliged to consider charge 3 separately from charge 1 (as well as the other charges), the facts leading to resolution of the real issue presented by charge 3, being the accused’ s invocation of the common law ground of exculpation of honest and reasonable but mistaken belief, were identical to the facts to be considered for charge 1. In particular, the act of sexual intercourse for charge 3 occurred on the same date at about the same time as the act of sexual intercourse for charge 1.

202. The same result will arise for charge 3 as it does for charge 1.

Charge 2

203. I find that the two essential elements of this offence are proven beyond reasonable doubt. They have been admitted in writing and this was reaffirmed by Counsel for the accused in his closing submissions.

204. In his closing submissions, the Crown conceded that the accused had discharged his evidential burden of the statutory defence in s 91H, that the accused did not know and could not reasonably be expected to have known, that he produced child abuse material. This was because he did not know, and could not reasonably have been expected to have known, that the complainant was a child which, for the purposes of the alleged offence, meant that she was under the age of 16.

205. The issue for adjudication is whether the accused discharged the legal burden of proof. It will be noted that for the statutory defence, the accused has the burden of proving (two) negatives.

206. In deciding this, I must apply the test of the balance of probabilities, an assessment shaped, at least, by s 140(2)(a)-(c) (inclusive) of the Evidence Act but additionally the other matters indicated in the common law which affect the trier of fact’s assessment on the standard for proof which I referred to, including sufficiency of material, and the presumption of innocence as providing an essential part of the fact-finding.

207. For the purpose of s 140(2)(a), I observe that the nature of the action is a criminal proceeding in which, amongst other things, the accused carries a presumption of innocence. But it also entails the gravity of the consequences^[17] if the fact that the accused has the burden of proving is not established. The consequences here concern that if the fact is not proven, in view of his admissions to the essential elements of the offences, he has virtual certain exposure to significant criminal sanction. For the purpose of s 140(2)(b), the subject matter concerns production (and, for charge 5, possession) of child abuse material. Integral to proof that the offence is made out is that the person being filmed is a child. For the purpose of s 140(2)(c), the forensic context is the burden on the accused to establish a statutory defence what would defeat a grave allegation.

     17. Morley v ASIC (2010) 247 FLR 140 at [742], noting that although in ASIC v Hellicar (2012) 247 CLR 345 the High Court subsequently overturned this judgment, this aspect was not addressed.

208. As I noted earlier that, on the standard of proof on the balance of probabilities, a relevant matter is not only the sufficiency of the material adduced by the party bearing the burden, but also the capacity of the other party to contradict the evidence. This is because the capacity of the other party to contradict material is inextricably tied to assessment of the sufficiency of the material adduced by the party bearing the burden. This, in effect, is an application of the maxim from Blatch v Archer (1774) 98 ER 969 at 970^[18]. In my opinion, applying this maxim does not derogate from, or is inconsistent with, what I have earlier said about the Mahmood direction where the paradigm involves the unique accusatorial setting where a Crown must prove an accused’s guilt beyond reasonable doubt (including disproving grounds of exculpation that are invoked by the accused).

     18. See also G v H (1994) 181 CLR 387 per Brennan and McHugh JJ at 391-392

209. I am conscious that the test for balance of probabilities is not resolved simply by a preponderance of evidence. But taking into account the matters in s 140(2)(a)-(c) and other matters, the presumption of innocence, and especially, the capacity of the Crown to contradict the accused by calling the complainant, but not calling her, and whilst acknowledging reservations about his general credibility, I am persuaded on the probabilities that the accused did ask the complainant her age and, on the faith of that belief, did honestly believe that she was over 16, and that subsequent events did not actually or reasonably disabuse him of that belief. I am satisfied on the probabilities that the accused did not know that the complainant was under 16.

210. Relying as he did upon her age representation and the other matters I identified when addressing the points about the reasonableness or otherwise of his belief when addressing charge 1, and, in addition, placing some weight upon the tendency evidence in the way that I have explained it, I am also satisfied on the probabilities that he could not reasonably have been expected to know that the complainant was under the age of 16. In particular, the matters subsequent to the conversation on 22 May 2021 which the Crown relied upon were not compelling in the sense of controverting that finding.

211. These findings mean that when filming the act of fellatio with the complainant on 12 June 2021, I am persuaded that he did not know, and could not reasonably be expected to have known, that he was producing child abuse material.

212. The defence under s 91H is established.

Charge 4

213. I find that the two essential elements of this offence are proven beyond reasonable doubt. They have been admitted in writing and this was reaffirmed by Counsel for the accused in his closing submissions.

214. As was the case when correlating findings on charge 1 with charge 3, so too, there is no reason why the findings I have made about charge 2 would not automatically be transposed to charge 4.

215. I find that the accused did not know, and could not reasonably have been expected to have known that when filming the act of penile-vaginal intercourse with the complainant on 12 June 2021, he did not know, and could not reasonably be expected to have known, that he was producing child abuse material.

216. The defence under s 91H is established.

Charge 5

217. As noted more than once, charge 5 is separate and discrete from charges 1 – 4 (incl). Most obviously it contains a different date (although in substance the offending occurred over a period). Another obvious difference, although perhaps more subtle, is that one of the essential elements is the offence of possession of child abuse material, rather than production of it. The Crown did not suggest that anything turned on the difference in the statutory offence, being possession of child abuse material as distinct from the production of it.

218. I find that the two essential elements of this offence are proven beyond reasonable doubt. They have been admitted in writing and this was reaffirmed by Counsel for the accused in his closing submissions.

217. Fundamentally, the real issue for adjudication for this charge is whether the accused has discharged the ultimate burden (the Crown conceding that he had discharged an evidential burden) that on 15 July 2021, he did not know and could not reasonably have been expected to know, that the complainant was under the age of 16.

218. Although the date is different to charges 2 and 4, this is materially no different to the real issue for determination for charges 2 and 4.

219. The Crown did not suggest, in particular, that if, as I have determined, the accused proved on the probabilities that he did not know and could not reasonably have been expected to know, that the complainant was under the age of 16 as at 12 June 2021, the result would be any different if the relevant date was 15 July 2021.

220. The result for charge 5 is therefore the same as the result for counts 2 and 4.

221. I find that the accused did not know, and could not reasonably have been expected to have known that on 15 July 2021 he was possessing child abuse material. The defence under s 91H is established.

Verdicts

224. For count 1, I find that the accused is not guilty.

225. For count 2, I find that the accused is not guilty.

226. For count 3, I find that the accused is not guilty.

227. For count 4, I find that the accused is not guilty.

228. For count 5, I find that the accused is not guilty.

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Endnotes

Decision last updated: 28 June 2023