Tasmania v Wykes
[2019] TASSC 18
•7 May 2019
[2019] TASSC 18
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Wykes [2019] TASSC 18
PARTIES: STATE OF TASMANIA
v
WYKES, Grant Adrian
FILE NO: 177/2017
DELIVERED ON: 7 May 2019
DELIVERED AT: Launceston
HEARING DATE: 6 May 2019
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases – Procuration for sexual act – Entrapment by vigilante intending exposure on internet.
Criminal Code (Tas), ss 3(1)(d), 342A.
R v Stubbs [2009] ACTSC 63, 228 FLR 221, distinguished.
Aust Dig Criminal Law [2686]
REPRESENTATION:
Counsel:
Crown: P R Sheriff
Accused: E Hughes
Solicitors:
Crown: Director of Public Prosecutions
Accused: Rae & Partners
Judgment Number: [2019] TASSC 18
Number of paragraphs: 38
Serial No 18/2018
File No 177/2017
STATE OF TASMANIA v GRANT ADRIAN WYKES
REASONS FOR DETERMINATION BLOW CJ
(Edited version of reasons delivered orally) 7 May 2019
The accused has pleaded not guilty to a charge of communicating with intent to procure a person under 17 years to engage in an unlawful sexual act, contrary to s 125D(1) of the Criminal Code. The particulars of the indictment allege that at Beaconsfield between about 21 December 2016 and about 3 April 2017, he made a communication by sending electronic messages with the intention of procuring a person whom he believed to be under the age of 17 years to engage in an unlawful sexual act. He pleaded not guilty to that charge yesterday. I was asked to make a determination pursuant to s 361A of the Criminal Code prior to the empanelment of the jury as to the admissibility of certain evidence, including the evidence of the principal Crown witness, Mr East. This morning I determined that the evidence that had been objected to was not to be admitted. These are my reasons for that determination.
The witness that I have referred to lives in New South Wales. He has described himself as a "paedophile hunter". He is an amateur paedophile hunter, not a professional one. He initially made contact with the accused online using an App named Grindr. There was evidence that that App was used by adult homosexuals who wanted to find partners. After he had begun exchanging electronic communications with the accused using Grindr, he got him to switch from Grindr to another App called Kik, and thereafter they communicated electronically using Kik. The witness gave evidence on the voir dire, and the Crown tendered on the voir dire 91 numbered photographs of screen shots from his iPad which set out the sequence of communications between him and the accused.
In the beginning those communications did not give the accused any encouragement to arrange for any sort of sexual activity. The witness pretended to be a 14-year-old boy, but did not do anything initially beyond seeking to tempt the accused to do something inappropriate by way of trying to arrange sexual activity. In a message in photo 7, the accused suggested that the two of them, in his words, "Meet up smoke a joint or two and fool around." The suggestion of fooling around seems to have been the first suggestion of sexual activity, and it came from the accused. In photo 8, there is a message from the accused asking the other person whether he had any pictures for him. And then a little later in photo 8 the accused made a suggestion of what he and the person he believed to be a 14-year-old boy named Josh might do together: "Smoke some and help u blow a couple of loads." That was a reference to ejaculation.
The first inappropriate suggestion coming from the witness was when there was a suggestion from the accused about them meeting up, in photo 11. The witness wrote, "I stil [sic] haven't done anything really tho ... Just worried about getting a bad name. What you wanna do?" Those passages were the first suggestion by him that he might be willing to indulge in sexual activity with the accused. From there on the messages from the witness included messages that encouraged the accused to continue communicating for the purpose of arranging some sort of sexual activity between them. The only message that I need to mention specifically amongst the messages that followed is in photo 69. At that stage there was an exchange of messages in which the witness asserted that, as a 14-year-old, he was in the habit of masturbating, and that he was in the habit of ejaculating into a sock. That has a significance that I will come back to.
Subsequently the evidence was that a meeting was arranged between the witness and the accused at Greens Beach. The witness attended the meeting and recorded video footage of it. He made an audio-visual recording of the entire meeting. He did not take that to the police. Instead he posted it on You Tube. In the footage he accused the accused of being a paedophile. The footage contained details identifying the accused as "Grant from Beaconsfield", and there was footage of his vehicle from which one could see its make, model, colour and registration number. It would not have been hard for anyone from Beaconsfield viewing that footage to have identified the accused. Members of the public did see the footage. They contacted the police. The evidence was made available to the police by the witness as a result, but only after they contacted him.
The witness gave evidence to the effect that he had done this before. He gave evidence in preliminary proceedings in the Court of Petty Sessions. A transcript of that evidence was tendered on the voir dire before me. He gave evidence that his answers during those proceedings were true and correct to the best of his knowledge, information and belief. In those preliminary proceedings he revealed that this was not an isolated instance of vigilante investigation by him, but that he had done this sort of thing before. He was asked how many "ones of this nature" there had been where he had put himself forward as the "paedo hunter", and he said that he had done over 20 of them, and put 90% of those onto You Tube, but that a lot of them had been taken down since.
He also gave evidence about his intention to draw the attention of the public to people whom he was denouncing on line. His cross-examination included these passages:
"QSo you didn't give them to the police as they could investigate for the greater good correct?
AI, its comes next.
QIts comes next. So first comes the community outrage then comes the police investigation. Is that the case?
ANo, the way it is, I put it online and you get more attention from the police. If you just walk into a police station you get shrugged off. But if you've got thousands of people wanting to know what's going to happen, you get a better outcome.
QSo your intention was to try and pressure the police into investigating. That's why you published it first?
AYeah.
QYou had no confidence the police would properly and appropriately investigate unless you drew in the mob, correct?
AI didn't draw in the mob.
QWell what did you do?
AI showed the public."
The charge that the accused pleaded to was a rolled-up charge relating to a series of electronic messages. There was not a separate charge for each communication.
Counsel for the accused objected to the admission of evidence on the basis of s 138(1) of the Evidence Act 2001. That subsection reads as follows:
"(1) Evidence that was obtained —
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law —
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."
The evidence objected to comprised the oral evidence of the witness, the photos of screen shots that I have referred to, the video recording of the meeting at Greens Beach, and also evidence of conversations between the accused and police officers subsequent to the publication of the video on You Tube. The evidence of those conversations were objected to on the basis of s 138(1)(b).
Contravention of Australian laws
Counsel for the accused objected both on the basis of impropriety and illegality. His emphasis was on impropriety. Mine will be on illegality. There are two aspects to the illegality question. It was submitted that the accused had acted in contravention of Australian laws, both in relation to the production and possession of child exploitation material, and in relation to the instigation of the crime charged. Counsel for the accused emphasised the arguments about child exploitation material, but I see the illegality in relation to instigation as far more significant.
As to instigation, it was submitted on behalf of the accused that what the witness did amounted to instigation of the crime charged falling within the scope of s 3(1)(d) of the Criminal Code. It was submitted on behalf of the Crown that that was not what the witness did, and that his conduct did not amount to instigating. I am guided by what Cox J (as he then was) said about instigating in Buttle v The Queen [1984] Tas R 209 at 217-220. Section 3(1)(d) of the Code provides that "Where a crime is committed, ... every person who instigates any other person to commit the crime, is deemed to be a party to and to be guilty of the crime and may be charged with actually committing it." The word "instigate" is defined in s 1 of the Code to mean "counsel, procure or command". This is a case about procuring rather than counselling or commanding. It is a case about the procuring of electronic messages intended to procure the 14-year-old Josh, believed to be under the age of 17 years, to engage in an unlawful sexual act. I have used the word "procuring" in relation to two activities – the intended procuring by the accused of a 14-year-old boy, and, significantly for what I am now discussing, the procuring by the witness of unlawful communications from the accused.
In the beginning the witness engaged in temptation, not instigation. But from the time I have identified with the message that appears in photo 11, the witness set out to get the accused, who had apparently fallen for his trap, to make further communications for the purpose of arranging a meeting for the purpose of engaging in unlawful sexual activity. So, in a sense, both parties were right. In the beginning what the witness did fell short of amounting to instigating, but, after a certain point, he sent messages that did amount to instigating the crime charged.
It is also significant that s 342A of the Criminal Code criminalises incitement. Section 342A provides as follows:
"Upon an indictment for a crime, the accused person may be convicted of inciting any person to commit that crime or any other crime of which, subject to subsection (2) of section 332, he could be convicted on that indictment."
Thus, the evidence establishes on the balance of probabilities that the witness instigated and incited the commission of the crime charged. I regard that as much more serious than any contraventions by the witness of statutory provisions relating to child exploitation material.
Provisions as to that subject are found both in the Code and in the Classification (Publications Films and Computer Games) Enforcement Act 1995 ("the 1995 Act"). Both the Code and the 1995 Act contain similar provisions. First of all, they contain similar definitions of child exploitation material. That term is defined in s 1A of the Code as follows:
"child exploitation material means material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years —
(a)engaged in sexual activity ...".
There is an identical definition in s 71 of the 1995 Act.
The message in which the witness described masturbation into a sock, saying that he was 14, constituted child exploitation material. One normally thinks of photos or videos when one thinks of child exploitation material, but it is not unknown for written narratives to fall within the definition of that term. See, for example, Bester v Barnes [2016] TASSC 19. This is a case where there was such a form of child exploitation material. The production of child exploitation material is prohibited, both by s 130A of the Code and s 72A of the 1995 Act. The possession of such material is prohibited by s 130C of the Code, and by s 74A(a) of the 1995 Act. It is clear that the witness contravened those provisions by producing and possessing what he wrote about masturbation.
There are statutory immunity provisions in relation to the production of such material in s 130E of the Code and s 74 of the 1995 Act. Significantly, s 130E(1)(b) contains a provision as to a statutory defence that can apply to vigilantes in appropriate cases. That provision reads:
"(1) It is a defence to a charge under section 130, 130A, 130B, 130C or 130D to prove that —
(a)...; or
(b)the accused person engaged in the conduct that is alleged to constitute the offence for a genuine child protection, scientific, medical, legal, artistic or public benefit purpose and the accused person's conduct was, in the circumstances, reasonable for that purpose ...".
There is an identical provision in s 74B(1)(b) of the 1995 Act. The witness meant well. I am satisfied that he did what he did for genuine child protection and public benefit purposes. But I am certainly not satisfied that his conduct was, in the circumstances, reasonable for those purposes. I will come back to the reasons for that.
There are similar defences for police officers in s 130E(1)(c) of the Code and s 74(1)(c) of the 1995 Act. Under those provisions it is a defence to prove that the accused person was a police officer acting in the course of his or her official duties, and that the accused person's conduct was reasonable in the circumstances for the performance of those duties. Thus it can be lawful for a police officer, just as it can be for a vigilante, to produce or possess child exploitation material for the purpose of catching someone who is willing to procure people under 17 to engage in unlawful sexual acts.
Impropriety
I turn to the contentions relating to impropriety. The High Court considered the position at common law relating to impropriety in Ridgeway v The Queen (1995) 184 CLR 19. At 97 Mason CJ, Deane and Dawson JJ said the following:
"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community."
Since the introduction of uniform evidence legislation, the concept of impropriety within the meaning of s 138(1) has been considered in a number of cases. The most useful exposition of the law, in my view, was by Basten JA in Robinson v Woolworths Ltd [2005] NSWCCA 426, 158 A Crim R 546, where, at [23], his Honour, after reviewing the authorities, said:
"[23] It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards. Thirdly, the concepts of 'harassment' and 'manipulation' suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence ...".
The comments in those two cases related to police activities, in particular police activities directed to entrapment. In this case the question of impropriety arises not in relation to the activities of police officers, but in relation to the activities of a self-appointed vigilante with noble motives but with methods that I am going to criticise. I do not think it is necessary for me to decide whether the obtaining of the text messages from the accused by the witness involved impropriety within the meaning of s 138. I think it is sufficient for me to have found that he contravened Australian laws, particularly in relation to the instigation or incitement of the crime charged.
It is perhaps worth mentioning that the witness did not caution the accused, in the way a police officer would caution a suspect, at the beginning of the video. However one important reason for requiring police officers to caution individuals is that those individuals might otherwise believe that they were under some sort of obligation to answer the questions of persons in authority. No such consideration arises in a case like this one. It is not necessary for me to say anything more about impropriety. I base my ruling on illegality.
Relevant considerations
Section 138(3) of the Evidence Act sets out a number of factors that I am required to have regard to in deciding whether or not to admit the evidence objected to. That subsection reads as follows:
"(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account –
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law."
Factors supporting admission of the evidence
The first three of those factors are factors that weigh in favour of admitting the evidence. Section 138(3)(c) requires me to take into account the nature of the relevant offence, and the nature of the subject-matter of the proceeding. The accused is charged with a crime. It is a crime which could well result in a sentence of imprisonment. In assessing the degree of seriousness of the crime however, it is worth observing that the crime charged did not involve a risk of harm to anybody because there was no person under the age of 17 years who was being approached for the purpose of sexual activity. To the extent that the accused did anything wrong, he was attempting to arrange the impossible. The crime charged is less serious than a crime involving a single consensual sexual act with a person under the age of 17. And it is less serious than the crime which would have been committed if the communication had been directed to an individual who really was a vulnerable person under the age of 17, rather than an impostor. The accused has no prior convictions. If he had met a 14-year-old boy with sex in mind, there is a chance that he would have changed his mind, possibly because of his conscience, or possibly as the result of a loss of courage. Nevertheless the crime charged was one of some seriousness.
Section 138(3)(a) requires me to take into account the probative value of the evidence. Its probative value was extremely high. I think it is fair to say that it amounted to positive proof of the crime charged. Section 138(3)(b) requires me to take into account the importance of the evidence in the proceeding. It was indispensable from the Crown's point of view. Without it, the Crown is unable to prove its case.
Major factors weighing against admitting the evidence
However, there are a number of factors that weigh in favour of a determination not to admit the evidence objected to. The most compelling factors, in my view, are all related to the fact that the evidence was obtained as the result of a plan by the witness to publicly denounce the accused as a paedophile by publishing on the internet material that was likely to arouse public hostility towards him. The "way in which the evidence was obtained" in this case involved entrapment by a vigilante intent on implementing such a plan.
In my view the most significant factor is the danger of what might happen as a result of the publication of information on You Tube suggesting to the public that an individual living in their midst is a paedophile. There is a risk of violence to the person denounced. There is a risk of damage to that person's home or property. There is a risk of harm to members of the person's household, either by way of physical violence or by way of harassment, or putting them in fear of what might happen to them or to the person denounced. Secondly, there is a danger of a violent reaction towards the vigilante at the time of confrontation. Thirdly, there is a danger that the person denounced might commit suicide. One does not have to look far to find an example of that sort of thing[1]. Fourthly, there is a risk that, if a vigilante blunders in and denounces someone when the police happen to be investigating that person, then a police investigation could be compromised. When it comes to online activity involving sex with children, there are often complicated investigations involving networks of child pornography enthusiasts, including those responsible for corrupting children, and creating images and videos of them. A big investigation could easily be compromised if a vigilante were to draw attention to an individual under investigation.
[1] The Hon Justice Stephen Estcourt: Social Amplification of the Risk of Sex Offending (2017) 91 ALJ 621.
There is also a danger that an amateur investigation might result in the loss of some evidence. That actually happened in this case. The witness was unable to retrieve earlier communications from Grindr and, whilst the screen shots of the exchange of messages on Kik have been preserved, the mobile phone and the iPad that were used in the Grindr and Kik conversations are not available for scrutiny. If counsel for the accused wanted to investigate the possibility of the electronic messages having been corrupted or faked, that could not be done. Another risk inherent in amateur investigations is the possibility of an incorrect identification and the denunciation of the wrong person, but that is not significant in this case. Other risks involved in amateur investigations are that they could provide opportunities for blackmail, and that they could provide opportunities for individuals to profit from acting as unofficial but professional law enforcement enthusiasts.
It is relevant in exercising my discretion that this was not an isolated instance of entrapment, but that the witness had done this, on his figures, more than 20 times. It is also relevant that he gave evidence that he had been told by the police of the reasons why he should not do what he had been doing in relation to the tempting and exposing of individuals interested in sex with youths. It is significant that, if I were to admit the evidence, that might be regarded by some as this Court giving some sort of approval to the sorts of methods used by the witness in this case. All of those factors are strong factors weighing in favour of making the admitting of the evidence undesirable. Those are also factors that, in my view, make the conduct of the witness unreasonable for the purposes of s 130E(1)(e) of the Code and s 74B(1)(b) of the 1995 Act.
Other s 138(3) factors
There are more s 138(3) factors that I am required to take into account. Under s 138(3)(d), I am required to take into account the gravity of the witness's contravention of Australian laws. I do not regard his contraventions of the laws relating to child exploitation material as significant. His writings were directed to an audience of one, and no child was disadvantaged in any way as a result of what he wrote, nor was there any potential for that. As to instigation and incitement, I regard the witness's contraventions as grave. This was a case of entrapment of a person apparently willing to engage in sexual acts with a 14-year-old boy, but in circumstances where there were risks of violence, property damage, harassment or suicide.
As to s 138(3)(e), I am required to take into account whether the contraventions of Australian laws were deliberate or reckless. I think there is every likelihood that the witness did not realise that he was contravening legislation relating to child exploitation material, and every likelihood that he did not realise that he was making himself a party to the crime charged. I am satisfied on the balance of probabilities that his contraventions were reckless, in that he did not care if he was breaking some law he did not know about or not.
Section 138(3)(f) requires me to take into account whether the contraventions were contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. Counsel for the accused relied on Article 17 of the Covenant. Article 17 provides:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."
As to privacy, the situation is that, first of all, information derived from private electronic messages was made public by the witness. Secondly, the conversation in the park at Greens Beach was audio-visually recorded and the video footage made public. Although that meeting was in a public place, no one else was present. I would therefore regard the filming of the meeting, obviously against the will of the accused, to constitute arbitrary interference with his privacy, and therefore a contravention of Article 17. There was a risk that his family and his home might be interfered with by members of the public who were excited by the information presented on You Tube. I therefore see a contravention of Article 17 as something weighing in favour of not admitting the evidence.
Section 138(3)(g) requires me to take into account whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the contravention. No proceedings have been taken against the witness, and it is quite clear that after more than 20 cases like this, it can be inferred that no such proceeding is likely to be taken against him.
Section 138(3)(h) requires me to take into account the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian Law. I have already referred to the provisions in the Code and the 1995 Act that apply when police officers commit crimes or offences for the purpose of enforcing the law. It is clear that everything that the witness did by way of obtaining evidence through the exchange of electronic messages was something that an undercover police officer, posing as a 14-year-old boy, could have done. In R v Stubbs [2009] ACTSC 63, 228 FLR 221, which concerned evidence obtained by a police officer in New Zealand pretending to be a 14-year-old girl named Roxanne and arranging a meeting in Canberra, Higgins CJ took the view, at [70], that the community would support the use of covert operations that do not place any actual young persons at risk to detect those disposed to using the internet to corrupt and sexually exploit children. That case illustrates the difference between a professional police investigation governed by appropriate guidelines and an investigation by a maverick vigilante intending publicity likely to cause hatred.
Conclusion
Taking all of those matters into account, I am not satisfied that the desirability of admitting the impugned evidence outweighs the undesirability of admitting it. It is true that this was important evidence of the commission of a crime, without which the Crown will not be able to proceed. But I consider that the considerations weighing in favour of admitting the evidence are outweighed by the considerations that weigh in favour of not admitting it, particularly the dangers inherent in the sort of vigilante exposure practised by the witness, including dangers to the people denounced through social media, their families, their houses and their property; danger to vigilantes who act in such a way; the danger of driving people to suicide; and the danger of compromising police investigations. Those are my reasons for the determination.
2
3
1