Woodburn v NE
[2023] ACTCC 2
•22 November 2023
CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Woodburn v NE |
Citation: | [2023] ACTCC 2 |
Hearing Date: | 7-10, 15 November 2023 |
Decision Date: | 22 November 2023 |
Before: | Special Magistrate Christensen |
Decision: | No case submission rejected. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – compounding offence – particulars – test on a no case submission – circumstantial evidence |
Legislation Cited: | Crimes Act 1900 (ACT) s 287 Crimes Act 1914 (Cth) s 44 Criminal Code Act 1899 (Qld) s 133 Criminal Code 2006 (ACT) ss 18, 56, 133, 716 Legislation Act 2001 (ACT) s 190 Magistrates Court Act 1930 (ACT) s 114 |
Cases Cited: | Bakes v Alexander [2022] ACTMC 10 Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 CDPP v Bradley [2009] ACTCA 5 DPP (NSW) v Elskaf [2012] NSWSC 21 Garay v The Queen (No 3) [2023] ACTCA 2 George (a pseudonym) v R [2021] NSWCCA 321 Hamilton v DPP [2020] NSWSC 1745 May v O’Sullivan [1955] HCA 38; 92 CLR 654 Monaghan v Calatzis [2021] ACTSC 4 Murphy v Helmling [2022] ACTMC 1 R v Beowulf (No 2) [2019] ATSC 82 R v JM [2010] ACTSC 35 R v Masina (No 3) [2020] ACTSC 154 R v Tang [2008] HCA 39; 237 CLR 1 R v VHP (Criminal Court of Appeal of New South Wales, 7 July 1997) Robert Watt v KC [2019] ACTMC 3 Ross v R [1922] HCA 4; 30 CLR 246 Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261 |
Texts Cited: | Leader-Elliott, The Commonwealth Criminal Code – A Guide for Practitioners (March 2002) Parliamentary Counsel’s Committee, Parliament of Australia, Model Criminal Code (1st Edition, 28 May 2009) Michael Ward, Criminal Law and Practice (Volume II, 1996) |
Parties: | M Woodburn ( Informant) NE ( Young Person) |
Representation: | Counsel J Melloy ( Informant) T Taylor ( Young Person) |
| Solicitors ACT Director of Public Prosecutions Hugo Law (Young Person) | |
File Number: | CH 1468 of 2023 |
SPECIAL MAGISTRATE CHRISTENSEN
REASONS FOR DECISION:
Introduction
1․NE is charged pursuant to s 716 of the Criminal Code 2002 (ACT) (Criminal Code) – an offence titled ‘Compounding of offence’.
2․It is alleged that between 8 and 13 May 2022, NE offered to provide a benefit to JV, and that he did so with the intention that JV would withhold information or provide false or misleading information in relation to the commission of an offence.
3․By way of particulars provided in advance of the hearing, the prosecution particularised that the offence the intention related to was an offence by an adult person of committing an act of indecency upon a person under 16, namely NN.
4․The prosecution alleged that NE contacted JV over a social media platform, Snapchat, and offered to give her $500 to make a statement to ‘help out’ the adult person, who was charged with the act of indecency, and to say ‘nah, it didn’t happen…to get him out’.
5․The matter has proceeded to date to hearing over 6 days on 7, 8, 9, 10, 15 and 16 November 2023. The prosecution called three witnesses, as well as adduced documentary evidence.
6․Section 716(1) of the Criminal Code provides –
716 Compounding of offence
(1)A person commits an offence if—
(a)the person—
(i) provides a benefit to someone else; or
(ii) causes a benefit to be provided to someone else; or
(iii) offers to provide, or promises to provide, a benefit to someone else; or
(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to someone else; and
(b)the person does so with the intention that the other person or a third person will—
(i) conceal the commission of an offence; or
(ii) not start, or discontinue or delay, a prosecution for an offence; or
(iii) withhold information, or provide false or misleading information, in relation to the commission of an offence; or
(iv) obstruct or hinder the investigation of an offence by law enforcement officers.
7․The prosecution submits that the elements to be proved beyond reasonable doubt are –
(a)NE made an offer to someone else;
(b)NE intended to make the offer;
(c)The offer was to provide a benefit to someone else;
(d)NE was reckless that the offer was to provide a benefit to someone else; and
(e)At the time of making the offer, NE intended that the other person would withhold information, or provide false or misleading information, in relation to the commission of an offence.
8․Application is made at the close of the prosecution case of there being no case to answer. It is submitted on behalf of NE that there is no evidence to establish element (e) as described above.
No Case Submission: Law
9․A preliminary matter to consider is the law that is to be applied on a no case submission at the summary level. There is a surprising absence of clarity by way of reported decisions on this in the ACT. Perhaps though that is simply reflective of it being uncontroversial and that the law in this regard is considered well-settled.
10․The prosecution submitted, and I observe that one decision of the ACT Magistrates Court has provided (see Bakes v Alexander [2022] ACTMC 10) that the key features of the test are as set out by Murrell CJ in R v Beowulf (No 2) [2019] ATSC 82 at [8] – [15] (Beowulf (No 2)). I am cautious to apply the test in these terms as it is apparent that there has historically been a distinction as to the test to be applied when sitting as a magistrate or a judge-alone, to when a no case decision has been made when a jury is the trier of fact, as was the case in Beowulf (No 2). I accept though, as was submitted by the parties, it may ultimately be a distinction of no real difference.
11․Having said that, there is a distinction in that such an application in the Supreme Court engages with the application of s 287 of the Crimes Act 1900 (ACT) (Crimes Act). No legislative equivalent applies in the Magistrate’s, or the Childrens’ Court, that I could identify, although s 114 of the Magistrates Court Act 1930 (ACT) suggests a procedure for the hearing of an indictable offence dealt with summarily that requires any evidence in the defence case to be heard before the court decides the information.
12․Having regard to what appears to be established practice that a no case submission can be made and determined by a summary court, I will proceed to do so in the absence of a submission to the contrary. And the test that will be applied will be by reference to the test provided by the common law, focused on authorities that have considered the applicable test when the trier is one of both fact and law in a summary jurisdiction.
13․Authorities that provide what that is in the ACT are, as already indicated, sparse. This is particularly so as to the test that an ACT Magistrate is to apply, as opposed to an ACT judge sitting alone for which there are a number of authorities: see, eg, Garay v The Queen (No 3) [2023] ACTCA 2; R v JM [2010] ACTSC 35. I am hesitant to apply such authorities to the issue here due to the distinction that s 287 of the Crimes Act may provide. Rather, I have found useful the authority of DPP (NSW) v Elskaf [2012] NSWSC 21 (Elskaf), a decision that the defence submitted and I rely on, and one which provides at [47] –
The legal principles applicable by the Magistrate at the conclusion of the evidence called by the prosecution in a summary proceeding are well known, but is worthwhile restating them in a succinct way:
(a)at the end of the prosecution evidence, it is open to a defendant to make a "no case" submission, which is determined by the Court as a matter of law: Cox v Salt (1994) 12 WAR 12 at 14; Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; 122 A Crim R 166 at [48]-[50] per Ipp AJA (Powell and Giles JJA agreeing);
(b)the standard of proof to be applied in a no case submission is proof beyond a reasonable doubt: R v Murphy (1985) 4 NSWLR 42 at 69B;
(c)the question to be determined is whether on the evidence, the defendant could be lawfully convicted of the offence charged: May v O'Sullivan [1955] HCA 38; 92 CLR 654 at 658; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 at [127] per Dunford J (Greg James J agreeing);
(d)the determination of a no case submission is based upon all of the prosecution's evidence, if accepted, and
(i) taken at its highest and strongest: DPP v Lee [2006] NSWSC 270 at [31]; Wunderwald at [28];
(ii) even if it is tenuous, inherently weak or vague: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214-5;
(iii) unless the evidence is inherently incredible: Haw Tua Tau v Public Prosecutor [1982] 1 AC 136 at 151; and
(iv) unless the evidence is manifestly self-contradictory or the product of a disorderly mind: R v Bilick (1984) 36 SASR 321 at 337; Cox at 15; Marsden at [50].
(e)a no case submission should not be rejected even if the prosecution case is a weak one, because the finding that there is a prima facie case, calls upon the defendant to make answer to that case. There is no reason why a weakness in the prosecution case may not be eked out by something in the case for the defence: Zanetti v Hill [1962] HCA 62; 108 CLR 433 at 442-443 per Kitto J; Wunderwald at [26];
(f)a no case submission is to be kept distinct from any subsequent decision involving a question of fact, namely whether to accept the evidence of the prosecution witnesses or any of them, beyond a reasonable doubt. This distinction is no empty formality: DPP v Lee at [32].
14․I observe that Elskaf has been applied in at least one decision of the ACT Magistrates Court: Murphy v Helmling [2022] ACTMC 1. And the test as being with reference to whether there is a prima facie case to answer, as provided by May v O’Sullivan [1955] HCA 38; 92 CLR 654, has also been applied: Robert Watt v KC [2019] ACTMC 3 at [119] and see also Ward, Michael Criminal Law and Practice, 1996, Volume II at [2035] and [1065].
15․The assessment that is involved with a no case submission where there is a circumstantial prosecution case is also of relevance to consider here. The authorities make clear that for the purposes of this assessment, the trier of law is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts, with this not involving a decision whether any possible hypotheses consistent with innocence are reasonably open. The enquiry at this stage is ‘whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypotheses as not reasonably open on the evidence’: per King CJ in Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 at 327, applying what was said by Jordan CJ in Ross v R [1922] HCA 4; 30 CLR 246 at 255-6. This authority has been applied in the ACT in CDPP v Bradley [2009] ACTCA 5, a reference appeal concerned with the consideration that occurs pursuant to s 287 of the Crimes Act. Despite the apparent focus of that appeal, I cannot identify any reason why I ought not approach the determination of the prosecution’s circumstantial evidence at the no case stage with that principle in mind. I also observe that to do so is consistent with what has been said in some of the authorities relied upon in Elskaf.
Evidence
16․Turning then to the evidence that relates to the particular element the subject of the no case submission.
17․From the outset, it is relevant to observe that no submission is made at this stage that the evidence is incapable of establishing NE is the person making the communications. I emphasise that whether this is proved beyond reasonable doubt is not conceded, but for present circumstances, it will be assumed that it can be established that NE made the communications.
18․I also observe that the prosecution particulars, as provided to the defence in advance of the hearing, were that the communication was over the social media platform, Snapchat. Those particulars did not reference any other communications as relied upon for the purposes of the offer being made. The prosecution opening set out reliance on additional communications, this being a call that KW was said to receive over WhatsApp. It is not certain that the prosecution can rely on these additional particulars in the circumstances of this matter, but, for present consideration, the court’s determination will take into account all of the evidence that the prosecution submit is relevant and admissible as to this element.
Preliminary Legal Issue as to Element (e)
19․A preliminary issue is how this element is to be understood and interpreted.
20․The element does not require in terms that proof of knowledge of the commission of an offence was committed by the other person. But it does require that NE has an intention at the time of making the offer in relation to the commission of an offence. The prosecution submitted that intention for the purposes of this element has the meaning as provided in s 18(2) of the Criminal Code. That is, it is an intention in relation to a result, and that intention in this context means that –
A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
21․I found this submission difficult to reconcile with the prosecution submission that the element is one of ulterior intention, if what is meant by that is that it is an element of an intention to achieve an objective which is not a physical element of any offence. At least one view, as I understand it, is that an ulterior intention is not defined with reference to the Criminal Code, but rather with reference to ordinary usage and common law: Leader-Elliott, The Commonwealth Criminal Code – A Guide for Practitioners (March 2002) p 61.
22․Regardless of how the element is labelled, the pertinent issue though becomes whether NE’s knowledge is relevant in considering this element. When I say knowledge, I am not importing the meaning of knowledge as defined in s 19 for the purposes of a fault element under the Criminal Code. But rather, to establish that NE meant to bring about the conduct of KW in relation to an offence, it necessitates that he had a level of knowledge of there being an offence. That is, NE’s intention at the time of making the offer is in relation to the commission of an offence. It is not an intention that is occurring in a vacuum, absence of knowledge of any apparent wrongdoing by the other person. The notion that ‘knowledge or belief is often relevant to intention’ appears uncontroversial: R v Tang [2008] HCA 39; 237 CLR 1 at [47], applying He Kaw Teh v The Queen (1985) 157 CLR 523 at 570.
23․It follows that the determination in respect to this element necessitates a determination as to what NE’s knowledge or belief was as to there being an offence.
Statutory Construction and Material Particular
24․However, before I move to the evidence in relation to the alleged knowledge or belief, it is necessary to pause and observe another issue that arose in relation to this element. That is, what is meant by ‘an offence’ in s 716(1)(b)(iii).
25․A not insignificant period of time during the hearing was spent ventilating the meaning of this element with reference to whether the prosecution must prove that the communication was in relation to a ‘specific offence’, or rather whether it was sufficient that it was in commission to ‘an offence’, being ‘any offence’. Inextricably linked in this exercise of statutory interpretation was whether the prosecution having named an offence in the consent to prosecute, that of an offence of act of indecency on a child under 16 (the named offence), and to have referred to the named offence in the particulars provided in advance of the hearing, meant that it was a material particular such that it had to be proved beyond reasonable doubt.
26․Both parties provided helpful submissions in this regard. It ultimately though becomes what was a very interesting intellectual exercise that does not require resolution to determine the issue at this stage. Given though the attention paid to it during the hearing, it is relevant for this court to make some observations as to how this element ought to be interpreted, acknowledging of course that there are limitations to the significance of a view formed by a court, presided over by a Special Magistrate, sitting on the north side of Lake Burley Griffin.
27․It seems to me that an offence contrary to s 716 does not necessarily require that the prosecution prove that the intention relates to a specified offence. The Explanatory Statement for the provision, relied upon by both parties in support of their respective submissions, interchangeably uses language of ‘an offence’ or ‘the offence’, but does not otherwise reflect an express legislative purpose in this regard. There is otherwise seemingly no judicial consideration of the provision, in particular the ACT provision, or consideration that is not related to charges brought in a context of private prosecutions by vexatious litigants, that is available to assist. I observe that the equivalent provision in the Crimes Act 1914 (Cth), s 44, is more express in the statutory language as to a requirement that there is a specified offence than the ACT provision is. I also observe that the legislative history to the offence, as set out at [7.5.4] of the Model Criminal Code Committee Report, Chapter 7, p 141, suggests an apparent deliberate departure in the ACT from an offence provision limited in scope as to the type of offence that can be said to be compounded. This report includes a recommendation of reference to the Griffith Code version of the provision. I observe that the Queensland equivalent, s 133 of the Criminal Code Act 1899 (Qld), is directed towards indictable offences and is inclusive of an aspect of the historical purpose of the provision as to benefits related to agreement to discontinue a prosecution. The ACT provision, contrary to at least the jurisdictions mentioned, has no such express limitation or purpose. It refers only to ‘of’ or ‘an’ offence, and with reference to s 190 of the Legislation Act 2001 (ACT), that would seemingly incorporate both indictable and summary offences.
28․The prosecution submission of an analogous circumstance where a person was making an offer on behalf of someone else without knowledge of the specific offence the person was said to have committed was, I conclude, persuasive. I accept that such a circumstance as contemplated has been within the scope of the behaviour intended to be captured by the ACT form of the provision. It would follow from this that it is not, as a matter of statutory construction, essential that an offence be necessarily specified or proved in the sense that it amounts to an aspect of an element of the charge that the prosecution has the legal burden of proving (s 56 of the Criminal Code). The provision contemplates that the intention at the time of the offer may be in relation to, in essence, ‘any offence’.
29․The difficulty though for the prosecution is that this was not how this case was approached. The prosecution clearly particularised the case with reference to the named offence. This was despite there being evidence that the adult person was initially charged with both a sexual offence and a drug related offence. The prosecution made an election, and, consequently, the defence made forensic choices based on the prosecution’s approach. No application to amend the particulars was made.
30․While numerous authorities were considered during the course of ventilation of this issue in the hearing, I found three authorities particularly relevant and persuasive as to my conclusion.
31․Firstly, in R v Masina (No 3) [2020] ACTSC 154 Mossop J considered at [261] what has been said in decisions of the Queensland Court of Appeal and Supreme Court, and applied subsequently elsewhere, that there may be cases where a specification as to a day, although not an element of the offence, is ‘material to the integrity of the criminal process’.
32․Secondly, in R v VHP, a 1997 unreported decision of the NSW Court of Criminal Appeal (VHP), it was said, relevantly, by then Gleeson CJ that –
As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified….in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars.
33․This principle from VHP has been applied numerous times, including more recently in the context of there being occasions when ‘essential facts’ are, in addition to elements, matters that the prosecution must prove beyond reasonable doubt: see, eg, Hamilton v DPP [2020] NSWSC 1745, cited in Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261 and George (a pseudonym) v R [2021] NSWCCA 321.
34․While both of the decisions referred to above were concerned with a situation whether an alleged date was a material particular, I do not find that to detract from the principles as provided as they relate to the issue before this court.
35․Thirdly, in Monaghan v Calatzis [2021] ACTSC 4, McWilliam AJ, as her Honour then was, considered the consequences where particulars as provided at closing differed to those as provided in the charge. Her Honour considered a number of authorities informative as to the issue before this court and said in relation to the issue that arose there, that ‘the subject matter of the element is fundamental to establishing the element itself’ (at [46]). Her Honour also considered that the apparent change in particulars, where it was found to be a material particular, was such that procedural fairness was denied in the circumstances of that matter and that the parties there were like ‘ships passing in the night’ (at [51]). The progression of the present matter has not resulted in ships passing in the night as the issue here is raised prior to the conclusion of the hearing, but the manner in which the prosecution has approached this case was directed towards only one compass point upon which the defence, reasonably given the particulars and evidence, navigated towards. The risk here, if the particulars of the prosecution are not regarded as elevated beyond mere particulars, would be an outcome not dissimilar to what her Honour concluded in Monaghan v Calatzis at [54] –
By denying the appellant the ability to know the case ultimately put against him, he [the appellant] lost the opportunity to tailor his instructions, plea and defence to that case.
36․And so, were it necessary to decide, I would have concluded that a s 716(1) does not necessarily require proof beyond reasonable doubt of a specified offence. But that in the circumstances of this matter, the prosecution is bound by the way in which they have approached the case, and therefore, the prosecution would be required to prove – if not a part of element (e), at least as an ‘essential fact’ – beyond reasonable doubt that the knowledge or belief of NE was in relation to the commission of an act of indecency on a child under 16.
Evidence
37․Turning then to the evidence as it relates to the no case submission. That is, the evidence that relates to the knowledge or belief of NE of the named offence, or at the very least, an offence. The prosecution relies on a number of strands, with this evidence, at its highest, being as follows –
A. Evidence as to the events of the allegedly compounded offence.
38․The allegedly compounded offence occurred at about 3am at the Westfield Belconnen. The evidence is that NE was present when the adult person drove away with NN for a period of 13 minutes. KW said that she believed they said good luck to NN before NN left with the adult person. During the time that NN and the adult person were away, NE was present for two phone calls that were received by the group left behind. The words said during these calls included that NN giving the ‘hand job’ was taking too long, and KW was asked if she wanted to ‘give him a head job or a hand job’. KW declined and said for the adult person to bring NN back to the group and he returned with NN.
B. The relationship between the adult and the young person
39․That NE then left with the adult person, a person that NE is close to, with the prosecution submitting that the court would infer that there would have been discussion as to what happened.
C. Communication in the WhatsApp call
40․The contents of the WhatsApp call included –
(a)NE asking KW whether she was ‘going to say anything about what happened’ or what she was ‘choosing to say if [she] was going to go to court, if [she] was going to make a statement, anything like that’;
(b)NE asked KW if she made the statement and if she ‘could lie about it and try and make, I guess the whole of the court and cops believe that it wasn’t true’;
(c)NE said that he wanted to talk about the ‘[NN] situation’ and that ‘I just want to like clear things up, and I don’t want to get [the adult person] in trouble. I’ll give you anything if you can like make a statement and make people believe that it was all bullshit’;
(d)after KW said to NE that if she was to make a statement, she didn’t know what she was going to say, NE said to her ‘okay, just make them believe that that’s not what happened. I’ll give you anything – money, drugs, whatever you want’; and
(e)KW said that NE was asking her to say ‘that all of it was bullshit and that none of it actually happened, and [NN] was just lying about it’.
D. Contents of the Snapchat message
41․The snapchat messages include a request to meet up ‘to have a chat so you can explain what happened with Ali’. The messages further have NE saying, ‘like you know what happened’ and ‘so once you go in and help him and say nah it didn’t happen and stuff then from there, we can get him out’.
E. Proximity of the adult person’s arrest
42․The final strand relied upon by the prosecution was that at the time of these communications, the adult person was in police custody, having been arrested. This arrest occurred at about 3.15pm on Monday 9 May 2022, and the communications occurred, taking the evidence at its highest, from 10.40am on Tuesday 10 May 2022.
Application of Evidence to Element (e)
43․Considering this evidence at its highest and strongest, as I must do, I accept that this evidence establishes that NE was aware that there was something that happened between the adult person and NN. And it can be concluded that the evidence establishes, with reference to the phone calls that NE was present for, that the something that happened involved sexual conduct.
44․As to whether the evidence establishes that the sexual conduct was with a child under 16, that is, that there was knowledge or belief of an offence or the named offence, I observe –
(a)Even if it can be inferred that there was a conversation between the adult person and NE in the car immediately after the conduct, which the prosecution submits is one of the relevant strands, it is entirely speculative, to the point of not capable of being established, that this conversation extended to a disclosure that the sexual activity was with a child. The prosecution led no evidence from the adult person as to what, if any, conversations he had with NE about what occurred in the car with NN and his knowledge of her age;
(b)There is no evidence that NE knew that NN was under the age of 16, such that he himself could have appreciated that the adult person’s conduct was unlawful. I conclude this even taking into account the CCTV footage (Exhibit P5) that shows JV and her group. There is nothing in that evidence that determines that NN was definitively, or even might be, under the age of 16. I have considered the prosecution’s submission that the prosecution does not have to establish the elements of the allegedly compounded offence. But, for present purposes, there must be evidence of a knowledge or belief of at least an offence. There is no evidence that NE knew, or believed, that any sexual conduct that occurred was with a child; and
(c)That the adult person was arrested does not assist the prosecution case per se, in that there is no evidence that NE was aware of the reason for that arrest. Having said that, the messages do include sufficient evidence from which it can be inferred that NE had knowledge of the adult person’s arrest, and that the arrest related to something that happened when JV was present. That is, an inference is available that NE had knowledge that the adult person’s arrest related to the events of the relevant night.
45․This then leaves, as the available evidence as to NE’s knowledge or belief of the sexual conduct that happened being an offence, the communications themselves. The Snapchat messages in isolation do not support the inference the prosecution seeks. However, the WhatsApp conversation is such that it can be concluded that what the sexual conduct involved was of sufficient concern to NE that he wanted JV to say that it did not happen.
46․At this stage of the hearing, the court’s consideration is whether on the evidence, NE could be lawfully convicted of the offence charged. It is a question of law distinct from a question of fact decision with reference to whether the prosecution have proved the element beyond reasonable doubt. Even where the prosecution case is a weak one, and even if it is tenuous, inherently weak or vague, but is not inherently incredible, a prima facie case is to be considered established and the no case submission is to be rejected.
47․For current purposes, the evidence at its highest with reference to the communications in the WhatsApp call, establishes that NE had a level of knowledge and belief such that a prima facie case is established. This knowledge and belief are, for present purposes, sufficiently established to relate to an offence an act of indecency on a child under 16.
Orders
48․For those reasons, I find there is a case to answer.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of a revision from a transcript of the oral reason for decision of her Honour Special Magistrate Christensen delivered in court. Associate: Susie Kim Date: 12 January 2024 |
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