Tasmania v Wykes - [2019] TASSC 18

[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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tasmania v Wykes

Details

AGLC: Tasmania v Wykes [2019] TASSC 18
Case: [2019] TASSC 18
Decision Date: 7 May 2019

CaseChat Overview and Summary

The case before the court involved the respondent, Wykes, who was charged with procuring a sexual act from an individual he believed to be a thirteen-year-old girl. The evidence against him was obtained via a sting operation conducted by an undercover operative, posing as the minor, who communicated with Wykes online. The sting was organised by a vigilante group intending to expose Wykes' activities on the internet. Wykes contested the admissibility of the evidence, arguing it was obtained unlawfully and should be excluded under the common law discretion to exclude illegally obtained evidence. The court was required to determine whether the evidence should be admitted or excluded based on its origin and the circumstances of its procurement.

The primary legal issue was whether the evidence obtained by the undercover operative should be excluded as it was acquired through an entrapment operation orchestrated by a private individual, rather than a law enforcement agent. The court considered whether the evidence was obtained in a manner that was so unfair as to undermine the integrity of the judicial process. It also examined whether the undercover operation amounted to an illegal entrapment, and if the respondent's right to a fair trial was compromised. Furthermore, the court needed to assess whether the evidence should be excluded under the discretionary power to exclude illegally obtained evidence, balancing the seriousness of the offence against the method of obtaining the evidence.

In examining the issues, the court determined that the evidence should be excluded. It found that the operation was conducted by a private individual with the intent to expose the respondent on the internet, rather than for the purpose of law enforcement. The court concluded that the method of obtaining the evidence was inherently unfair and amounted to an illegal entrapment. It held that the respondent's right to a fair trial was prejudiced by the manner in which the evidence was obtained. Consequently, the court exercised its discretion to exclude the evidence under the common law, finding it would be unjust to admit evidence obtained in such a manner. The court's decision was based on the principle that the ends do not justify the means, and the integrity of the judicial process must be upheld even in cases involving serious criminal conduct.

The court ordered that the charges against Wykes be dismissed due to the exclusion of the primary evidence. The decision underscored the importance of adhering to legal procedures and the protection of individual rights within the criminal justice system. The court's ruling emphasised the need for law enforcement agencies to conduct operations within the bounds of the law, and the potential consequences for private individuals who engage in activities that circumvent legal processes.

Orders