San v The Queen

[2020] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

SAN v THE QUEEN

[2020] SASCFC 35

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)

8 May 2020

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTATION - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

Appeal against conviction and sentence for one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (count 1) and making a communication, on Facebook Messenger, with the intention of making a child, SM, amenable to a sexual activity contrary to s 63B(3) of the CLCA (count 2 or the sexual communication offence).

SM met the appellant at a pool lounge, which she frequented with her family, when she was 13 years old.  The appellant sent her a friend request on Facebook and started communicating with SM once she accepted the request at his prompting.  The sexual communication offence concerned social media communications on 12 September 2016 engaged in by the appellant with SM.  She was aged 16 years at the time of that offence. 

The conduct the subject of count 1 occurred when she was 14 years old on an occasion when she returned home from school to find the appellant playing pool with her stepfather.  She watched them play pool, during which the appellant touched her when her stepfather left the room. 

The appellant appeals on the grounds that:

1.  The Judge erred in failing to direct the jury that it could not convict if the appellant might have intended to make SM amenable to a sexual activity to occur when she was not a child.

2.  Count 2 on the Information is duplicate.

3. The Judge erred in failing to direct in accordance with s 34CB(2) of the Evidence Act 1929 (SA).

4.  The verdict in count 1 is unreasonable.

5.  The verdict in count 2 is unreasonable.

Held per Kourakis CJ (Stanley and Lovell JJ agreeing), allowing the appeal on ground 1, and granting permission to appeal on grounds 3, 4 and 5, but dismissing the appeal on grounds 2, 3, 4 and 5:

1.  It is an element of the sexual communication offence that the offender intended to make the child, who is the subject of the communication, amenable to engaging in sexual activity whilst still a child.

2.  It is necessary to set aside the single sentence of three years’ imprisonment imposed with respect to both offences and to order a new trial on the sexual communication offence.

3.  It is not necessary to consider the application for permission to appeal against sentence.

4.  An Information which alleges that a defendant sent a single communication, but with an intention to make a child amenable to a multiplicity of sexual activities, is not bad for duplicity.

5.  The appellant has not established a significant forensic disadvantage that would call for a direction.

6.  The verdicts are not unreasonable.

Criminal Law Consolidation Act 1935 (SA) ss 56, 63B; Evidence Act 1929 (SA) s 34CB, referred to.
R v Richards (2016) 125 SASR 341; M v The Queen (1994) 181 CLR 487; DES v The Queen [2020] SASCFC 32; Pell v The Queen [2020] HCA 12, considered.

SAN v THE QUEEN
[2020] SASCFC 35

Court of Criminal Appeal:       Kourakis CJ, Stanley and Lovell JJ

1. KOURAKIS CJ:  The appellant [SN] was found guilty, on his trial by jury, of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (count 1) and making a communication, on Facebook Messenger, with the intention of making a child, SM, amenable to a sexual activity contrary to s 63B(3) of the CLCA (count 2, to which I will refer as ‘the sexual communication offence’). The Information on which the appellant was arraigned initially contained a third count charging an additional sexual communication offence committed in the same sequence of Facebook Messenger communications (the Messenger communications). After argument and a ruling from the Judge, the third count was not prosecuted.

2. The offence of indecent assault was alleged to have been committed between 26 January 2015 and 10 April 2015 at SM’s home in suburban Adelaide.  At the relevant time, SM was 14 years of age and the appellant was 25 years of age.  The sexual communication offence was alleged to have been committed on 12 September 2016 by engaging in social media communications with SM.  At the time of that offence, SM was 16 years of age and the appellant was 27 years of age.

   Grounds of appeal

3. The grounds of appeal against conviction are:

   1.… the Learned Trial Judge (LTJ) erred … in failing to direct to the effect the jury could not convict if the applicant might have intended to make the complainant amenable to a sexual activity to occur when the complainant was not a child;

   2.Count 2 on the Information is duplicate.  The verdict is uncertain [in that it:]

   … alleged both conduct with an intention to make a child amenable to a sexual activity contemporaneous with the communication and conduct with an intention to make a child amenable to a sexual activity of a materially different type which, if it was ever to occur, might have occurred about two years after the communication; …

   3.The LTJ erred in failing to direct in accordance with s34CB(2) of the Evidence Act 1929 (SA).

   4.The verdict in Count 1 is unreasonable.

   5.The verdict in Count 2 is unreasonable.

4. I would allow the appeal on ground 1 because it is an element of the sexual communication offence that the offender intended to make the child, who is the subject of the communication, amenable to engaging in sexual activity whilst still a child.  I would order a new trial.

5. I would dismiss ground 2.  The conduct element of the sexual communication offence is the making of a single communication or series of connected communications.  A single offence is committed by making that communication, even if the offender has a multiplicity of sexual conduct in mind. 

6. I would grant permission to appeal on ground 3 but dismiss the appeal on that ground.  The appellant suffered no forensic disadvantage.  The lapse of time between the offending and the trial was not significant and did not materially affect the appellant’s capacity to defend the charges.

7. Finally, the verdicts are not unreasonable.  I would grant permission to appeal on grounds 4 and 5 but dismiss the appeal on those grounds.  The appellant’s conviction for the offence of indecent assault was supported by the testimony of SM, which the jury was entitled to accept having regard to their advantage in assessing the significance of the inconsistencies.  The verdict on the sexual communication offence was supported, again, by SM’s testimony, and by screenshots of the Messenger communications which, although incomplete, were a sufficient foundation on which to convict.

8. The appellant also seeks permission to appeal against the sentence of three years’ imprisonment with a non‑parole period of 18 months imposed by the Judge.  However, it is unnecessary to consider that application for permission because I would order a new trial. 

   The evidence

9. SM testified that she was first introduced to the appellant at a pool lounge, which she frequented with her family, when she was 13 years old.  The next day, SM saw that the appellant had sent her a friend request on Facebook.  SM only accepted that request at the appellant’s prompting a week later when she again saw him at the pool lounge.  The appellant started communicating with her on Facebook on the same day.  SM continued to see him at the pool lounge. 

10. In September 2014, SM’s family moved to a house which had a pool‑room with access to a balcony.  They obtained a pool table for the room in December 2014.  SM testified that the occasion on which she was indecently assaulted was early in the first term of 2015.  She had come home from school to find the appellant playing pool with her stepfather, SF.  The appellant had visited to play pool once or twice before that occasion.  SM testified that she was wearing her school sports uniform, a light blue navy shirt and dark navy basketball shorts.  She was wearing a sports bra.

11. SM watched her stepfather and the appellant play pool.  They were drinking beer.  SM gave the following evidence on the commission of the indecent assault:

    Q.So the next thing you’ve told us about is the accused trying to get your bra off and going up inside your bra.  How long did that go on for.

    A.40 seconds to a minute.

    Q.Then what did he do.

    A.Then he got up and played another shot of pool.

    Q.After he had his shot what did he do.

    A.So he came and sat back down and [SF] played his shot and [SF] went to the toilet.

    Q.What happened then.

    A.He then put his left hand in – put it down my pants.

    Q.What part of your pants did he put it down.

    A.Down my pants and my underwear.

    …

    Q.So what part of his body was his hand in contact with.

    A.My bum.

    …

    Q.How was he moving [his hand].

    A.He tried to go deeper in, so deeper, like down my bum.

    …

    Q.What direction was he moving his hand in.

    A.Just down in between my legs.

    …

    Q.And how far down did his hands get.

    A.Maybe about halfway down my bum, because obviously I was sitting down and it couldn’t obviously go that far but yeah.

    …

    Q.Did he get to the point, at the point where your bottom was in contact with the chair.

    A.Yes.

    A.    Did it go beyond that point.

    Q.No.

    …

    Q.Okay, thank you.  How long was his hand doing that [squeezing] for.

    A.Just until [SF] got back from the bathroom, about minute.

    Q.What did he do next.

    A.He just got up and stood in front of me as [SF] was walking out.

    …

    Q.    What did he do in that position.

    A.    He put his hands on my face and he tried to put his fingers in my mouth.

    …

    Q.    At the time he did that with his hand where was your stepfather.

    A.    He just came out of the toilet, so he was walking around the pool table.

    Q.From the position that your stepfather came out from, was there a clear view to where you and the accused were.

    A.     Yes.

    …

    A.    He turned away.  He put his fingers down because [SF] was in sight of us.

    …

    Q.    What’s the next thing that happened.

    A.    I then got up and I went downstairs.

12. That testimony was, to some extent, inconsistent with affidavits sworn by SM for police investigators.  SM was cross-examined on the inconsistencies.  SM had deposed that her stepfather was in the room playing pool on each of the occasions she was touched by the appellant on that day.  SM agreed that she did not mention to police or prosecutors that her stepfather went to the balcony or to the toilet until shortly before the commencement of the trial, but even then, did not say that her stepfather was outside of the room when she was indecently assaulted.

13. JG is a male friend of SM.  JG testified that in late 2017 he became curious about the relationship between SM and the appellant.  He asked SM, using the social media platform Snapchat, whether anything was happening between them.  Using Snapchat, SM sent him screenshots of some of the Messenger communications.  SM testified that she sent the screenshots in response to JG’s joking references to her relationship with the appellant because she did not think it was a joking matter.  That assertion was challenged in cross-examination by reference to an exchange of messages between SM and JG, shortly after the screenshots were sent to him, which were said to be jocular and mocking of the appellant.  The messages referred disparagingly to the appellant and his conduct.  They sometimes used the expression ‘HAHAHAHA’.  SM responded that she was treating the Facebook exchange with the appellant as a ‘laughing matter’ only ‘to an extent’.  She explained in re-examination that after sharing the messages with JG she found a new way to look at it.  The messages sent to JG were treated as the initial complaint of SM about the sexual communication offence.

14. SM’s mother and stepfather questioned her in January 2018 about the exchange with JG.  When SM’s mother asked her if the appellant had touched her, SM disclosed for the first time the indecent assault in the pool-room.  

15. SM was asked in cross-examination why she had not told anyone prior to her mother’s questioning.  SM testified that she was scared but explained:

    Well, he’s a doctor and he’s got like – he’s of high authority and he was very good friends with my mum and [SF] and everyone at the pool hall and I just didn’t think anyone would really believe what I said.  And I didn’t want to tell someone, like my parents, and them think I was lying.

    Importantly, it appears from that answer that SM did not fear violence or retribution from the appellant, but was anxious about the reactions of her family, friends and community.  That explanation for not complaining was, therefore, not necessarily inconsistent with her ongoing communications with the appellant.

16. SM was asked during cross-examination why she did not leave the room after the appellant first began touching her.  She said she was scared and frozen.  It was put to her that she did not say anything to her stepfather.

17. SM testified of an occasion when, walking home from the shops, the appellant had pulled his car up alongside the footpath and asked her to go to the movies with him, but he suggested that she not tell her mother.  In an earlier affidavit, SM had deposed that that incident occurred when she was walking home from school.  SM testified that the appellant had spoken to her on more than one occasion when she was walking home from school with her siblings, but she did not refer to those occasions in the affidavit. 

18. Counsel for the appellant cross-examined SM, and addressed the jury, on those inconsistencies. 

19. The evidence of the sexual communication offence included hard copy screenshots of the Messenger communications received as exhibits.  They were:

    ·P1- Hard copy screenshots of the Messenger communications given by SM to police in July 2018;

    ·P4 - Hard copy screenshots of the Messenger communications sent by SM electronically on Snapchat to JG in December 2017 or January 2018; and

    ·P5 - Hard copy screenshots of the Messenger communications given to police by SM in January 2018.

20. Some messages appeared in some, but not all, of those exhibits, even though they formed part of a sequence of the communications which were otherwise captured by the screenshots.

    Extract from exhibit P10 – Summary of screenshots[1]

    [1]    The first three columns are extracted from exhibit P10.

Date and Time	From [SN]	Response from [SM]	Exhibits in which response appears
12.9.2016 11.07 am	[SM] why so busy lol	[Thumbs up emoji]	P5
12.9.2016 1.03 pm	no school today hey?	Not til next week	P1 P5
ahhh sick ass how was ur weekend babe I was meant to come to [the pool lounge] but I hurt my back fucking badly	Ah u good ?	P1 P5
was playing pool on friday.  fucking hurt it so bad (emoji) alcohol might help it lol miss u babe	Haha	P1 P5
u miss me? Haha	Nah (emoji)	P1 P5
hahaha love it lol
(Large emoji)	[Yeah (Emoji)]	P1
so your really into that hey haha (emoji)	Aight think what you want*	P4
when was the last time for you hehe	What	P1 P4 P5
someone going down on u lol	[SN] look we can’t do this.  This is sick and illegal man.  We need to stop (emoji)	P1 P4 P5
awwww babe (emoji)
I’m just talking lol	‘Talking’	P1 P4 P5
guess I have to wait till your 17 right lol hahaha yes talking haha	(Thumbs up emoji)	P1 P4 P5
I think it would be fucking amazinf don’t u think	See this is what I mean (6 emoji)	P1 P5
hahahahaha noooooo please just one time lets talk
u were turned on weren’t you haha (emoji)	By Justin Biebee yes	P1 P5
hahaha you Crack me up babe
epic babe lol	(Thumbs up emoji)	P1 P5
hahah u and the thumbs up just play along with me one time make my day haha	nah	P1 P4 P5
oh come on what do I need to do lol	Nothing I don’t want anything from you Now	P1 P4 P5
haha okay babe I know I know when your 18 ?	Might have a boyfriend then (emoji) plus don’t you have a girlfriend	P1 P4 P5
hahaha it’s complicated lol and u are fucking amazing u would blow my mind u know that I wanna take you out so bad (emoji) it would be fucking amazing [SM] [SM] u know it lol 2 years is worth the wait haha	(Thumbs up emoji)	P1 P4 P5
haha when u hit 18 im taking u out ok one epic nite haha	Lol not if I have a boyfriend	P1 P4 P5
aww okay okay deal if your single yes fuck I might die haha I would definitely go down on u then lol	Lol	P1 P4 P5
yes ? haha	Dunno	P1 P4 P5
aww come on yesssss lol	Nah	P1 P4 P5
hahaha sooo bad lol your killing me here	Bang bang (gun emoji)	P1 P4 P5
hahaha miss u pretty face sooo fucking much jesus haha oh come on your fucking hot sexy insane lol u would be insane in bed haha	cool	P1 P4 P5
haha u know it	(Thumbs up emoji)	P1 P4 P5
u sure your 16 now lol	Nah 12	P1 P4 P5
haha fuck off haha lol your mind is more then 21 thou lol	(Thumbs up emoji)	P1 P4 P5
your so mature for your age u know thay
that was why I was attracted to u haha	(Thumbs up emoji)	P1 P4 P5
no thumbs up ! haha	(Thumbs up emoji)	P1 P4 P5
fuck I wish u were 18 already arghhhh	(Thumbs up emoji)	P1 P5
the things I would do omg lol	Please man stop.  I old you (two emoji)	P1 P4 P5
hahaha whyyyyy lol one last time chatting here then I’ll stop I promise hehe	Cause its wrong man	P1 P4 P5
haiz I know but I don’t see u 16 at all in fact I think your 21 plus for your age hehe

1. Only one message, sent on 12 September 2016 and which is emboldened in the table, appeared only in the screenshot sent through Snapchat to JG.  Almost all messages in the screenshots given to police in January 2018 appear in the screenshots given in July 2018.

2. When questioned about the missing messages, SM said that she could not remember deleting anything.  In particular, she denied deleting any message that would have given the impression that she was not at school on 12 September 2016.  She agreed that there appeared to be deletions in the communications with the appellant but could not remember deleting them.  During cross-examination, SM denied deleting conversations with the appellant to give the impression that she had not replied, and maintained that she could not remember deleting them. 

3. I observe that there is scope for some uncertainty in the concept of deleting a message communicated on a social media platform.  Whether a message can be temporarily hidden, compressed within other messages or deleted from a screenshot of the digital record was not closely explored in the evidence.  Plainly enough, the absence of some messages in the screenshots sent to JG could not have been the result of permanent deletion because they appeared on later screenshots given to the police.  I accept that it is likely that the emboldened message was permanently deleted after the screenshots were sent to JG because of the position it would have taken in the sequence of Messenger communications given to police.  On the other hand, a message may not appear in a screenshot because it is not on the screen when the ‘shot’ is taken. 

   Directions

1. In the course of the argument on whether the third count charging an additional sexual communication offence should be prosecuted, the Judge ruled that the second count charging the sexual communication offence was not bad for duplicity even though the prosecution relied on both an intention to make SM amenable to engaging in sexualised texting and an intention to make her amenable to sexual intercourse either before or after she turned 18 years old.

2. Accordingly, the prosecutor’s address referred to the appellant’s ‘twofold’ purpose:

   … the prosecution case is that during these conversations, during these communication which there is no doubt come from the electronic voice of the accused, that the accused intended to make [SM] amenable to sexualised talk or some indecent touching or oral sex at some later time. You might think what he actually wanted was twofold; that he was looking for a way to talk about sex now to get [SM] comfortable discussing those things to develop a degree of comfort in order to move down the track to physical intimacy and touching or oral sex, which are the things that he keeps mentioning and although he mentions doing those things once she is 18, you might think that what he's really trying to convince her about is how mature she is and why he’s attracted to her.

3. Defence counsel addressed the jury consistently with what he understood to be the Judge’s ruling that an intention to make SM amenable to sexual activity even after she turned 18 years old was proscribed by s 63B(3)(b) of the CLCA:

   … This element that they must prove beyond a reasonable doubt, that element being that the accused made this communication with the intention of making a child under the age of 17 years, the complainant, amenable to a sexual activity. That intention has to exist at the time of the communication. So it can’t be an intention to make her amenable some time in the future. It has to be an intention to make her amenable at the time of the communication. It doesn’t mean that he can’t reap what he’s sown at some time in the future, that doesn’t mean that at all but the intention has to exist at the time of the communication, not a conditional intention for the future, an intention to get her to yield to a sexual activity at the time of making the communication. That is his intention. You must be satisfied of that intention at that time to get her to yield then. There’s some highlighting and scratching going on to my right. The element says that the accused made this communication with the intention of making a child under the age of 17 amenable to a sexual activity. I’m not saying it’s a defence if he wanted to have sex with her in two years time, I’m not saying that at all. You can have an intention at the time of the communication that makes you guilty even though it’s about something in the future. I’m not saying the former. What I’m saying is you’ve got to look at the communication and you’ve got to ask yourself whether that relevant intention existed at the time of the communication.

4. On the intention element of s 63B(3)(b) of the CLCA, the Judge referred to both the intention to make SM amenable to sexualised texting and sexual activity even though she did not expressly direct the jury that, in respect of the latter intention, it was sufficient if the appellant’s intention was that it occur when SM was 18 years of age:

   Now, the last element the prosecution must prove is that the accused [SN] made this communication with the intention of making a child under the age of 17 years, [SM], amenable to a sexual activity, that is, the prosecution must prove that [SN] sent those Snapchat messages with the intention of making [SM] receptive to or submissive to some sort of sexual activity with him.  ‘Sexual activity’ does not just mean ‘sexual intercourse’ or ‘sexual contact’.  It means some sort of activity that is sexually related or has a sexual connotation.  It can include sexualised discussion or the asking of explicit sexual questions.  In this matter the prosecution alleges that [SN] intended to make [SM] amenable to sexualised discussion, indecent touching and/or an act of cunnilingus or oral sex.

   Construction of s 63B(3)(b) of the CLCA

   Ground 2 – Duplicity

5. Section 63B(3) relevantly provides:

   63B—Procuring child to commit indecent act etc

   …

   (3)     A person who—

   (a)procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or

   (b)makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,

   is guilty of an offence.

   Maximum penalty:

   (a)     for a basic offence—imprisonment for 10 years;

   (b)     for an aggravated offence—imprisonment for 12 years.

6. Section 63B(7) provides that the prescribed age is 17 years, unless the person is in a position of authority in relation to a child, in which case the prescribed age is 18 years. It is important here to note that the prescribed ages for the purposes of s 63B(3)(b) of the CLCA operate coherently with the ages prescribed for the purposes of the offence of unlawful sexual intercourse by s 49 of the CLCA.

7. The conduct element of the sexual communication offence is the making of a communication.  There are two mental elements of the offence.  The first is that the communication is made for a prurient purpose, and the second is an intention to make a child under the prescribed age amenable to sexual activity. 

8. The first question of construction of s 63B(3) of the CLCA, in issue on this appeal, is whether a different offence is committed, in respect of a single communication, for each sexual activity to which the defendant intends to make the child amenable. For at least four reasons, that is a most improbable construction. First, on that construction, the number of counts on an Information would be a product of the extent of a defendant’s imagination. It must be remembered that even though the sexual activity which an offender has in mind may sometimes be apparent on the face of the communication, that will not always be the case. His or her admissions to police, or others, or private writings, may reveal much more. Secondly, the mischief of the section is the exposure to communications which may make a child vulnerable to predatory sexual conduct by adults. It is the content of the communication, or series of communications, which harms a child, not the additional secret intentions of the offender. Thirdly, criminal provisions which create multiple offences founded on the same conduct, but by reference to the offender’s states of mind, are rare. Fourthly, certainty is achieved by the identification of the communication which constitutes the conduct element. If convicted or acquitted, no other Information can be brought for that same communication even if a different intention can be alleged. On the other hand, it would be difficult to avoid latent duplicity if a different offence is committed for each sexual activity that the defendant intended to make the child amenable to.

9. I conclude that an Information which alleges that a defendant sent a single communication, but with an intention to make a child amenable to a multiplicity of sexual activities, is not bad for duplicity. 

   Ground 1 – Intention

10. The second question of construction of s 63B(3) of the CLCA is whether the intention must be to make a child amenable to sexual activity whilst still a child, or whether intending to make a child amenable to sexual activity as an adult is also sufficient to satisfy the subjective element of the offence.

11. The following preliminary observations may be made. First, it is not an element of the sexual communication offence that the communication be made to the child. The communication might be made to a third party in the hope that it will be communicated to the child, or it might mistakenly be made to a third party but nonetheless be made with the relevant intention. In this respect, it is to be observed that the offence created by s 63B(3)(a) of the CLCA similarly does not require that the communication be made directly to the child. For the offence against subparagraph (a), a communication made with the intention of procuring a child may very well be made to someone else, for example, a parent or guardian.

12. Secondly, subparagraph (b) makes no prescription as to the content of the communication.  Often, the communication itself will refer to sexual activity, but that need not be so. The communication may, on its face, be quite anodyne, but nonetheless be made with the intention of making a child amenable to sexual activity. 

13. Thirdly, subparagraph (b) requires a prurient purpose for the making of the communication. In the case of attempting to engage a child in sexual conversation or texting, the prurient purpose is to obtain instant sexual gratification from the conversation itself. In other cases, where the intention is to make the child amenable to physical sexual activity, the prurient purpose may be a delayed one. In most cases, the prurient purpose element will be satisfied by the making of a communication with the intention of making a child amenable to sexual activity. However, there may be some exceptional communications which, in one context, might appear to be calculated to make a child amenable to sexual activity, but which, in a medical or educational context, are not so intended. Even though it follows from the plain words of subparagraph (b) that, at the time of the communication, the person whom the defendant hopes to make amenable to sexual activity must be a child under the prescribed age, the question is whether the defendant’s intention must be to make that child amenable to engaging in sexual activity whilst still a child, or whether the sexual communication offence may be committed even though the intention is to simply make the child amenable to sexual activity after, or at, a time when engaging in that sexual activity would be lawful. The consistency in the ages prescribed between s 63B(3)(b) and s 49 of the CLCA suggests, to my mind, that the former intention must be proved.

14. It is important to remember that ‘sexual activity’ is not expressly defined for the purposes of s 63B(3) of the CLCA, but has been given a wide meaning by this Court in order to address the mischief to which the section is directed. In R v Richards,[2] this Court held that whether or not an activity is a sexual one is a question of fact, determined objectively, and is not determined by the defendant’s own prurient interest in the activity.  However, it is well accepted that engaging in sexualised conversation is a sexual activity.  For that reason, it will not often be necessary to prove that the defendant also intended to make the victim amenable to engaging in fact in the sexual activities discussed.  Engaging a child in sexualised conversation in itself harms the child, but also creates a risk of further harm by making the child vulnerable to predatory attempts to have the child engage in the conduct itself.  Of course, if it is shown that a defendant did intend to make the child amenable to engage in the sexual activity discussed, or some sexual activity whilst still a child, the offence is much more serious and that will be reflected in the sentence.  There are few cases in which a defendant, who is shown to have that more serious intention, will not also have an intention to engage the child in sexualised conversation for a prurient purpose.

    [2] (2016) 125 SASR 341 at [24].

15. It is difficult to accept that the protective purpose of s 63B(3)(b) of the CLCA would be much advanced by extending its reach to a person who, without engaging in sexualised conversation, intends to make a child amenable to sexual activity when the child becomes an adult.

16. For example, it is doubtful, having regard to the text of sub-s (3) and the purpose of the section, that Parliament intended to extend its reach to a defendant who discusses, or proposes, marriage, with its consummation in mind, with a person who is close to the age of 17, or 18, as the case may be, without engaging in sexualised conversation. Another example may be postulated outside of a proposed marriage. In a social setting, a person may desist from arranging a romantic encounter with another on learning that he or she is under the relevant prescribed age but, again without engaging in sexualised conversation, make an attractive proposal that they meet for an intimate encounter as soon as the person attains the prescribed age. It is doubtful that s 63B(3)(b) of the CLCA was intended to criminalise that, otherwise, lawful behaviour.

17. It is also instructive to consider s 63B(3)(a) of the CLCA. The first of the offences it enacts is ‘procur[ing] a child … to engage in … sexual activity’. The natural meaning of those words is that the person is procured to engage in sexual activity whilst still a child. The communication offence constituted by subparagraph (a) of s 63B(3) of the CLCA bears the same meaning.

18. I acknowledge that subparagraph (b) of s 63B(3) of the CLCA is directed to what is colloquially referred to as ‘grooming’, in recognition that the grooming may extend over some period of time before the child can be inveigled to engage in sexual activity. Nonetheless, I conclude that, on a proper construction, the intention prescribed by subparagraph (b) is to make a child amenable to sexual activity whilst still a child under the prescribed age.

19. One limb of the prosecution case was that the appellant communicated with SM when she was a child, with an intention to make her amenable to sexual activity when she was 18 years old.  That intention is not an intention to make a child amenable to sexual activity because SM would, at that time, no longer be a child.  The directions of the Judge left it open to the jury to convict on the sexual communication offence on the basis that the appellant intended to make SM amenable to engaging in sexual activities when she was over 18 years of age.  I acknowledge that the evidence also supported a finding that the appellant intended to make SM amenable to engaging in sexualised conversation for his prurient interest or that the appellant intended to make SM amenable to physical sexual conduct before she turned 17 years old.  However, I am not satisfied that those findings must be made on the face of the communications.  I would not, therefore, apply the proviso.  I would allow the appeal, set aside the conviction on count 2, the sexual communication offence, but remit the matter for trial. 

20. I acknowledge that that is an unfortunate result.  The prosecutor recognised in her address that even though the appellant’s Messenger communications spoke of an occasion after SM was 18 years old, there was good reason to expect that he was intending a much earlier encounter.  It is difficult to understand why the prosecution did not rest its case only on an intention to engage in sexualised texting and an intention to make SM amenable to sexual activity before she turned 17 years old.

    Ground 3 – Forensic disadvantage

21. The appellant sought a direction in accordance with s 34CB of the Evidence Act 1929 (SA) (the Evidence Act) at trial. The Judge declined to give that direction.

22. Section 34CB of the Evidence Act provides:

    34CB—Direction relating to delay where defendant forensically disadvantaged

    (1)     A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.

    Note—

    See Longman v The Queen (1989) 168 CLR 79

    (2)     If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—

    (a)     explain to the jury the nature of the forensic disadvantage; and

    (b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.

    (3)     An explanation or direction under subsection (2) may not take the form of a warning and—

    (a)must be specific to the circumstances of the particular case; and

    (b)must not include the phrase ‘dangerous or unsafe to convict’ or similar words or phrases.

23. For the purposes of s 34CB(2) of the Evidence Act, the significant forensic disadvantage which enlivens the duty to give the prescribed directions must arise out of the time that has elapsed between the alleged offending and the trial.

24. The time that elapsed between the alleged commission of the offences and the trial was not long.  With respect to count 1 it was a little over four years and with respect to the sexual communication offence it was just under three years.  Moreover, the lapse of time is only indirectly connected to the missing messages in that it is not known when they were deleted.  In any event, the absence of a record of some messages, which may have been sent by SM, did not place the appellant in a position of significant forensic disadvantage.  It was common ground that those of the appellant’s messages which did appear in the screenshots could not have been amended.  The possibility that some messages were not recorded in the screenshots is speculative.  It is simply not possible to imagine any message which SM or the appellant might have sent which would so fundamentally change the meaning of the appellant’s own messages to leave any doubt about the commission of the offence.  It is also speculative to suggest that a deleted message might have reflected adversely on SM’s credit. 

25. Nor has the appellant shown that the failure of the police to examine SM’s phone resulted in any significant forensic disadvantage.  There was no evidence that the appellant could not have undertaken investigations to recover the full sequence of the messages, either from his mobile phone or his Messenger account.  True it is that the appellant carried no onus on the question of his guilt.  However, in deciding whether or not a defendant has suffered a forensic disadvantage, the court cannot ignore his or her capacity to undertake forensic investigations.  The appellant has not established a significant forensic disadvantage that would call for a direction. 

    Ground 4 – Unreasonable verdict on count 1

26. The question for this Court on appeal on the ground that the verdict was unreasonable or not supported by the evidence is to consider for itself whether the evidence has proved the commission of the offence beyond reasonable doubt to the jury’s capacity to resolve that doubt because of its advantage in seeing and hearing the evidence.[3]  This Court must ask whether it thinks that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  The matters on which the appellant relies in the appeal against conviction on count 1 are as follows.  First, the appellant relies on the limited opportunity he had to commit the offences when SM’s stepfather was in the pool-room on all but a few brief occasions.  Secondly, SM, in her initial statement, claimed that her stepfather was in the room on every occasion on which she was indecently touched, until a week before trial when she mentioned that he had stepped out on to the balcony and out of the room to go to the toilet.  However, in that statement, she did not claim that the touching took place during the instances her stepfather left the room.  Only when she gave her evidence-in-chief did SM testify that her stepfather was either on the balcony or had gone to the toilet when she was, in fact, touched by the appellant.  Thirdly, the appellant relies on the improbability of the appellant taking the risk of touching SM in close proximity to her stepfather.  Fourthly, the appellant relies on the tension between the stepfather’s testimony and SM’s testimony as to whether the appellant was standing or had positioned himself on the arm of her chair and whether her stepfather had a clear view of her and the appellant.  Fifthly, the appellant relies on SM’s changes or deletions to the Messenger communications as undermining her credit.  I will deal with that in more detail when considering the contention that the conviction of the sexual communication offence was unreasonable.  Sixthly, the appellant relies on the delay in making the complaint and that it was not volunteered.  Seventh, the appellant relies on the absence of any mention of the conduct the subject of count 1 when SM made a complaint about the sexual communication offence.  Eighth, the appellant relies on the inconsistency between SM’s evidence that she did not complain out of fear and her disparaging communications about the appellant with JG.  Ninth, the inconsistency between SM’s testimony and her statements as to whether she was walking home from school or not when the appellant asked her to go see a movie.  Tenth, the difference between SM’s testimony that the appellant had stopped her on the street more than once and the statement given before trial which deposed that it had occurred on only one occasion.  The eleventh reason is a complex contention that SM’s account that she was stopped on the street when she was 14 years old was a deliberate fabrication based on a text the appellant had sent to her, when she was 17 years old, inviting her to the movies.

    [3]    M v The Queen (1994) 181 CLR 487 at 493.

1. In DES v The Queen, I made the following observations on the import of the decision of the High Court in Pell v The Queen[4] in considering an appeal against a conviction of a sexual offence on this ground:[5]

   [2]… It is often emphasised, most recently by the High Court in Pell v The Queen (Pell), that acceptance of a complainant as a credible witness is not, in itself, sufficient to prove an offence to the ‘designedly exacting standard’ of proof beyond reasonable doubt.  The complainant’s evidence of the offence charged must also be sufficiently reliable to satisfy the criminal onus.  The prosecution may fail to prove the offence beyond reasonable doubt because there is other credible evidence, inconsistent with guilt, even though the jury accepts that the complainant is an honest witness. 

   [3]So, too, for inconsistencies in a complainant’s testimony.   Inconsistencies in the testimony of a child on the timing, sequence, placement and detail of offending are commonly encountered in trials of offences of child sexual abuse.  That is not surprising.  The circumstances which strike children as significant, and, therefore, memorable, are not the same as those which are important from the perspective of adults.  A jury, with the combined life experience of its members, is well equipped to decide whether or not there are explanations for the inconsistencies in the testimony of a child that do not detract from the reliability of his or her account of the offending.

   (Footnotes omitted)

   [4] [2020] HCA 12.

   [5] [2020] SASCFC 32 at [2]-[3].

2. None of the matters on which the appellant relies is of a quality which must necessarily have left a jury with a reasonable doubt. The significance of the inconsistencies relied on depend on the jury’s evaluation of SM’s testimony.  A jury might reasonably accept the credibility and reliability of SM, despite those inconsistencies.  Although limited, there was clearly sufficient opportunity to commit the offences. Importantly, the messages sent by the appellant are strong evidence of his sexual interest in SM, and are, therefore, corroborative of her account. This is not a case in which a reasonable jury must have entertained a doubt.

   Ground 5 – Unreasonable verdict on count 2

3. The appellant also challenges the verdict on count 2 as being unreasonable.  The appellant relies primarily upon certain discrepancies in the screenshots of the Messenger communications between the appellant and SM.  The table in [20] above shows which messages were included in each of the three sets of screenshots which were received as exhibits P1, P4 and P5.  The messages not appearing in all three sets were described as ‘missing communications’ in the appellant’s written submissions.  The absence of a message on a screenshot taken from a device displaying social media exchanges does not mean that the message was deleted.  It might simply not have been on the screen at the time the screenshot was taken.  When the screen is scrolled for the next ‘shot’, the message might again be missed.  Moreover, the evidence was that, even though an entire message could be deleted, the text of the message itself could not be changed or altered.  The messages which were sent by the appellant were sufficient on its face to make out count 2 and exhibit a sexual attraction, which was an important element of the circumstantial case against the appellant on count 1. 

4. Even if it be assumed that SM deleted a message or messages which passed between her and the appellant and she willingly participated in the exchange, or initiated it, there is no reason to doubt the conviction.  It is the vulnerability of children that the section is designed to protect. SM’s evidence, that she complained to JG because he had been joking about her relationship with the appellant when she thought it a more serious matter, does not lack in credibility.  Nor is the exchange between JG and SM, after she had shown him the screenshots of the Messenger communications between her and the appellant, inconsistent with her evidence.  Nor are the SMS messages, received as exhibit D6, which might not have included all of her communications with the appellant before the subject communications, inconsistent with her evidence.  The deletions were simply not significant.

5. All of the matters on which the appellant relies were matters which the jury was best placed to resolve because they were in a position to make an assessment of SM’s testimony.  Both individually and together, the discrepancies are not significant. 

6. The appellant contends that the only reasonable inference open was that SM had altered the evidence concerning the Messenger communications.  For the reasons I have already given, I am not satisfied that that is the only reasonable inference.  Even if the jury were satisfied that messages were deleted, the jury may nonetheless reasonably have decided that SM was motivated to do so by embarrassment and that the deleted messages could not have affected the inferences open on the messages appearing in the screenshots.  The effect of the messages and, in particular, those sent by the appellant, are capable of proving the sexual communication offence and establishing a strong sexual interest in SM, which circumstantially supported her evidence on count 1.

   Conclusion

7. I would allow the appeal against the conviction on count 2, the sexual communication offence.  I would dismiss the appeal against the conviction of indecent assault.

8. In those circumstances, it is necessary to set aside the single sentence of three years’ imprisonment imposed with respect to both offences and to order a new trial on the sexual communication offence.  It is, therefore, not necessary to consider the application for permission to appeal against sentence because of my conclusion that there must be a new trial.

9. STANLEY J:       I would allow the appeal on ground 1 and dismiss the appeal on grounds 2, 3, 4 and 5.  I would set aside the sentence imposed and order a new trial on ground 1.  I agree with the reasons of Kourakis CJ.

10. LOVELL J:         I would allow the appeal on ground 1 and dismiss the appeal on grounds 2, 3, 4 and 5.  I would set aside the sentence imposed and order a new trial on ground 1.  I agree with the reasons of Kourakis CJ.