Director of Public Prosecutions (NSW) v Beeby

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Beeby [2025] NSWSC 1307

Hearing dates: 23 September 2025
Supplementary submissions on 26 and 30 September 2025

Date of orders: 06 November 2025

Decision date: 06 November 2025

Jurisdiction: Common Law

Before: Free JA

Decision: (1) Appeal allowed.
(2) The order of Magistrate O’Meagher made on 26 February 2025 dismissing the charge H79228709-1 for the offence of procure child over 14 years and under 16 years for unlawful sexual activity pursuant to s 66EB(2) of the Crimes Act 1900 (NSW) is set aside.
(3) The matter is remitted to the Gosford Local Court to be determined according to law.

Catchwords: CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59 — summary dismissal of charge by Magistrate following decision to exclude evidence — nature of an appeal under s 56 discussed
CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity — fictitious children — Grindr conversation between accused and purportedly 15 year old male — assault and robbery of accused by group of four — “vigilante paedophile hunting”
EVIDENCE — Evidence Act 1995 (NSW), s 138 — whether Magistrate erred in finding evidence of the Grindr conversation was obtained in or in consequence of a contravention of Australian law
STATUTORY INTERPRETATION — Crimes Act 1900 (NSW), ss 66EB, 80G — Crimes Prevention Act 1916 (NSW), s 2 — whether the specific preclusion of an incitement offence under s 80G displaces the general application of s 2

Legislation Cited: Crimes Act 1900 (NSW), ss 66EB, 80G
Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 1, Item [19]
Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59
Crimes Prevention Act 1916 (NSW), ss 2, 4
Criminal Code Act 1995 (Cth), Sch 1, ss 2.1, 2.2, 11.4, 474.26, 474.27
Criminal Code Act 1924 (Tas), Sch 1, ss 3, 125D
Director of Public Prosecutions Act 1986 (NSW), ss 9, 10
Evidence Act 1995 (NSW), ss 137, 138
Evidence Act 2001 (Tas), s 138

Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538; [1974] 2 NSWLR 681
Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2
Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147
Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5
Fletcher (a pseudonym) v Knight (a pseudonym) [2025] ACTCA 8
Franklin v Commissioner of Police [2018] NSWSC 310
Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1
R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21
Slater (a pseudonym) v R [2019] VSCA 213
Tasmania v Wykes (2019) 31 Tas R 70; [2019] TASSC 18
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
White v Director of Public Prosecutions [2021] NSWSC 1629

Texts Cited: Explanatory Note, Crimes Amendment (Sexual Offences) Bill 2008 (NSW)
New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 November 2008 at 11705
New South Wales Sentencing Council, Penalties Relating to Sexual Assault Offences in New South Wales (Vol 1, August 2008)

Category: Principal judgment

Parties: Director of Public Prosecutions (NSW) (Plaintiff)
David Beeby (Defendant)

Representation: Counsel:
H Roberts SC (Plaintiff)
B Walker (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Plaintiff)
Walker Criminal Lawyers (Defendant)

File Number(s): 2025/233051

Publication restriction: Nil

JUDGMENT

1. FREE JA: The plaintiff, the Director of Public Prosecutions (DPP), appeals pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) from a decision of Magistrate O’Meagher in the Local Court at Gosford on 26 February 2025. The decision was to summarily dismiss the charge brought against the defendant, Mr David Beeby.

2. For the reasons developed below, the first question of law raised by the appeal should be answered favourably to the DPP. As a result, the appeal should be allowed, the decision of the Local Court set aside and the matter remitted to the Local Court for determination of the matter according to law.

Factual background

Events on the night of 24 January 2024

3. Mr Beeby was charged with the intentional procurement of a child over 14 years and under 16 years for unlawful sexual activity, an offence contrary to s 66EB(2) of the Crimes Act 1900 (NSW) (Crimes Act). The charge was the subject of a court attendance notice advising that the matter was listed before the Local Court at Gosford on 26 February 2025.

4. The charge concerned events that occurred between 11.30pm on 24 January 2024 and 12.30am on 25 January 2024. On the night of 24 January 2024, the defendant was at his home in Terrigal. The prosecution case is that using the Grindr application on his mobile phone Mr Beeby exchanged a series of messages ostensibly with a person who purported to be a male named “Jeremy”. The prosecution contends that when using the Grindr application the defendant went by the username of “Tezzzzz”. The Grindr application enables users to identify their physical proximity to other users. At approximately 11.30pm, messages were exchanged between “Jeremy” and “Tezzzzz” in which “Jeremy” expressed his apparent interest in a sexual encounter and “Tezzzzz” expressed a similar desire. The Grindr conversation included the following exchange:

Jeremy: … Is 15 too young lol I’ve done it before it’s just hard too [sic] find anyone

Tezzzzz: Dick pic?

5. “Jeremy” then sent an explicit photograph and asked the defendant “[w]ould you be keen to meet now?”. There was then a further exchange, in which “Tezzzzz” invited “Jeremy” to visit his premises for a sexual encounter. After asking for his address “Jeremy” made a further reference to his age:

Jeremy: Is it sweet I’m 15? I’ve done it before I won’t say nothing

Tezzzzz: No probs

6. The defendant provided his address and proceeded to provide details about how to access his property.

7. Unbeknownst to Mr Beeby, he had not been communicating with a potentially willing sex partner but with another person or persons with apparently more hostile intentions. At approximately 12.30am on 25 January 2024, CCTV footage captured four people arriving at the entrance to the complex in which the defendant lived. Mr Beeby opened the screen door of his unit to let in a person he thought was “Jeremy”, at which point he claims the male said “I’m only 17” and punched him in the face. Two further males and a female entered the unit and commenced a vicious assault and robbery of Mr Beeby, which on his account included him being threatened with knives.

8. On 26 January 2024, the defendant reported the incident to police. He gave an account of his Grindr communications which was inconsistent with the record subsequently obtained by police.

9. On 19 February 2024, Noah Edwards was charged in relation to the offences committed against Mr Beeby on 25 January 2024. Police examined the mobile phone of Mr Edwards, which contained photographs of at least part of the Grindr conversation between “Jeremy” and the defendant. Mr Beeby was charged on 29 February 2024.

Local Court proceedings

10. On 26 February 2025, the matter came before Magistrate O’Meagher at Gosford Local Court. The prosecution was brought in the name of the officer-in-charge of the investigation, Detective Senior Constable Miranda Faith, and conducted in the Local Court by a police prosecutor. The DPP later took carriage of the matter, pursuant to ss 9 and 10 of the Director of Public Prosecutions Act 1986 (NSW), in June 2025 for the purposes of the appeal to this Court.

11. In the course of examination in chief of the officer-in-charge, the prosecution tendered material obtained in the course of the police investigation. Mr Beeby’s statement to police was admitted without objection as Exhibit 1. A Cellebrite report generated from data extracted from the defendant’s mobile phone was admitted without objection as Exhibit 6.

12. The critical evidence tendered by the prosecution concerned evidence in different forms of the content of the Grindr conversation. Tendered and marked as Exhibit 2 was a set of two photographs which had been taken of the screen of a mobile phone, showing a Grindr conversation with “Tezzzzz”. The prosecution also tendered a statement and report from an analyst with the United States National Center for Missing and Exploited Children (NCMEC) which contained a record of the same Grindr conversation. This evidence was referred to in the DPP’s submissions in this Court as the NCMEC evidence. At the trial in the Local Court counsel for Mr Beeby objected to the tender of both items of evidence. It is necessary to explain the sequence of events at the trial in some detail as it has significance for issues raised on the appeal.

13. Exhibit 2 was tendered first. The objection was initially made on the basis of hearsay. Objection was also taken on the basis of what was described as the “provenance” of the evidence, though it transpired that the objection was in fact about the absence of evidence linking the accused to the Grindr conversation. In response to that objection, the prosecutor submitted that evidence would later be given identifying Mr Beeby as the person with the Grindr account of “Tezzzzz”. Exhibit 2 was provisionally admitted by the Magistrate on the basis that evidence would be called in the prosecution case that would link it back to the accused.

14. The NCMEC evidence was relevant to establishing this link between the Grindr account and Mr Beeby. In examination in chief, Detective Senior Constable Faith explained that the Cellebrite report (tendered as Exhibit 6) had enabled her to observe that there were chats on the Grindr application on Mr Beeby’s phone under the username “Tezzzzz”. A request was then submitted to the Grindr legal team in relation to the account of “Tezzzzz”. Grindr referred the request to the NCMEC. A statement was obtained from an analyst at the NCMEC named Callahan A Lennon annexing a report matching the Grindr account to the mobile phone details of the defendant. That report reproduced the Grindr conversation between “Tezzzzz” and “Jeremy” in full. The statement and report together comprised the NCMEC evidence.

2 Inciting to crimes

If any person incites to, urges, aids, or encourages the commission of crimes or the carrying on of any operations for or by the commission of crimes that person shall be guilty of an offence against this Act.

17. This is a summary offence for which the maximum penalty is six months imprisonment: s 4 of the Crimes Prevention Act.

18. The substantive crime said to have been incited according to the defendant’s argument was the offence under s 66EB(2) of the Crimes Act with which Mr Beeby had been charged. Section 66EB relevantly provides:

66EB Procuring or grooming child under 16 for unlawful sexual activity

(1) Definitions In this section—

adult person means a person who is of or over the age of 18 years.

child means a person who is under the age of 16 years.

conduct includes—

(a) communicating in person or by telephone, the internet or other means, or

(b) providing any computer image, video or publication.

unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State).

(2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence.

Maximum penalty—

(a) in the case of a child who is under the age of 14 years—imprisonment for 15 years, or

(b) in any other case—imprisonment for 12 years.

…

(5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section—

(a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and

(b) to the age of the child is a reference to the age that the accused believed the person to be.

19. The deeming provision in s 66EB(5) in respect of fictitious children is relevant in the present context. The prosecution of Mr Beeby is based on a contention that he believed that “Jeremy” was a person under the age of 16 years. The effect of s 66EB(5) in those circumstances, if proved, is that the offence provision in s 66EB(2) applies to the circumstances of the alleged procuring of “Jeremy” by Mr Beeby in the same way as it would if “Jeremy” was in fact a child.

20. The defendant submitted in the Local Court that the conclusion that “Jeremy” had committed an offence of indictment would also follow from s 11.4 of the Criminal Code (Commonwealth Criminal Code) which is Sch 1 to the Criminal Code Act 1995 (Cth). Section 11.4 of the Commonwealth Criminal Code relevantly provides:

11.4 Incitement

(1) A person who urges the commission of an offence commits the offence of incitement.

(2) For the person to be guilty, the person must intend that the offence incited be committed.

21. The defendant’s argument about the operation of s 11.4 of the Commonwealth Criminal Code was similarly premised on an argument that the substantive offence being incited was an offence of procuring a child contrary to s 66EB(2) of the Crimes Act.

22. The defendant placed reliance on the decision of the Supreme Court of Tasmania in Tasmania v Wykes (2019) 31 Tas R 70; [2019] TASSC 18 (Tasmania v Wykes), in which Blow CJ excluded evidence pursuant to s 138 of the Evidence Act 2001 (Tas), in part on the basis that the evidence had been obtained as a result of “entrapment by a vigilante”: [28]. The defendant portrayed the conduct of “Jeremy” and his associates as likewise a form of “vigilante paedophile hunting”.

23. Ultimately, the objection under s 138 proved to be the decisive issue. The Magistrate dismissed the hearsay and s 137 objections. However, her Honour upheld the s 138 objection and excluded at least the NCMEC evidence on grounds that it had been obtained as a consequence of impropriety or illegality. The Magistrate found that through the Grindr conversation “Jeremy” incited Mr Beeby to procure a child for unlawful sexual activity*.* Her Honour also accepted that “Jeremy” engaged in the Grindr conversation as a trap to obtain the defendant’s details with a view to enlisting the help of others to beat and rob the defendant. Her Honour was satisfied that given this combination of circumstances, the evidence was obtained illegally or improperly, or in consequence of an illegality or impropriety.

24. The Magistrate made the following findings:

I have considered the Crimes Prevention Act and the [Commonwealth Criminal Code]. On balance, it would appear to me that inciting a person to procure a child for unlawful sexual activity, obtain their personal details and then to rob and bash them likely amounts to a contravention of Australian law. At the very least, my view is that engaging in the message conversation, in any message conversation, with that sort of illegal conduct in mind would amount to a very grave impropriety.

25. As can be seen, the actions of “Jeremy” were found to amount to at least a very grave impropriety, and likely a contravention of Australian law.

26. On the exercise of discretion under s 138(3) of the Evidence Act that was thereby enlivened, the Magistrate found that the probative value of the evidence was very high and the offence being prosecuted was serious. The impropriety or contravention of Australian law associated with the obtaining of the evidence in circumstances of violence was “clearly deliberate”. Her Honour reasoned:

In one way it makes the conduct of Jeremy in inciting the defendant not as serious as what followed from that incitement, but it is difficult to untangle the initial impropriety or contravention of the law from what then followed, which was then the beating and the robbery. It is highly undesirable that evidence is obtained in those circumstances. The police and other law enforcement agencies have the means to monitor and investigate potential sex offences being carried out online and through various applications such as Grind’r. Evidence obtained through other but illegitimate means might also be admitted where the practice [sic] for admission outweigh those against admission.

In this matter the impropriety or contravention is so grave that, in my view, it would not be appropriate to admit the evidence given the means by which and the purpose for which it was obtained. With some hesitation, I find I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

27. There was then a short debate before the Magistrate about the significance of the ruling for the prosecution more broadly. The argument appears to have been conducted on the basis that as a result of the ruling the prosecution did not have (and would not have) evidence of the Grindr conversation properly linked to the accused. Evidence of the conversation was essential for the prosecution case. Counsel for the defendant submitted that there was no case to answer. The prosecutor did not make any submission about the status of Exhibit 2, and whether the prosecution was sustainable on the basis of Exhibit 2 (assuming it had not been rejected). The charge was dismissed on the basis that there was no admissible evidence of the Grindr conversation. In giving brief reasons for dismissing the charge, the Magistrate made no reference to Exhibit 2.

28. There was a debate in this Court about whether the Magistrate’s ruling on the exclusion of evidence extended to Exhibit 2, as well as the NCMEC evidence. The DPP submits that the Magistrate implicitly must be taken to have ruled on both items of evidence, and in doing so erred by failing to appreciate the distinct questions that arose in respect of the two items of evidence. Mr Beeby submits that the Magistrate’s ruling was confined to the NCMEC evidence and Exhibit 2 had no particular significance after exclusion of the NCMEC evidence. These competing submissions are dealt with below in the context of addressing ground 2.

Proceedings in the Supreme Court brought by the DPP

29. The DPP, having taken carriage of the prosecution of the matter, filed a summons in this Court on 18 June 2025, and subsequently an amended summons on 1 August 2025. The DPP relies on s 56(1)(c) of the CAR Act, which entitles a prosecutor to appeal to this Court against an order of the Local Court dismissing a matter the subject of any summary proceedings, but only on “a ground that involves a question of law alone”.

30. The DPP relies on two grounds for asserting error by the Magistrate:

31. The Magistrate erred in law in finding that the excluded evidence was obtained “in contravention of an Australian law” per s 138(1)(a) of the Evidence Act or “as a consequence of a contravention of an Australian law” per s 138(1)(b) of the Evidence Act on the basis that the defendant had been incited to commit the alleged offence pursuant to s 66EB(2) of the Crimes Act.

32. The Magistrate erred in the exercise of her discretion pursuant to s 138 of the Evidence Act in relation to Exhibit 2 and the NCMEC evidence, because her Honour failed separately to consider (a) the way in which each item of evidence was obtained, and (b) the matters set out in s 138(3) in relation to each item of evidence.

33. The DPP says that because of one or both of these errors it was also erroneous for the Magistrate to proceed to dismiss the charge against Mr Beeby. It is not suggested that that the decision to dismiss the charge was otherwise affected by an error that was independent of the anterior errors. The DPP submits that these grounds of appeal involve two questions, each of which is a question of law alone for the purposes of the CAR Act:

34. Is inciting the commission of an offence under s 66EB of the Crimes Act “in contravention of an Australian law” for the purposes of s 138(1)(a) of the Evidence Act?

35. When exercising the discretion pursuant to s 138 of the Evidence Act in relation to multiple items of evidence, is a court required to consider the factors set out in s 138(3) in relation to each item of evidence separately before determining whether each item of evidence should be admitted?

The nature of an appeal under s 56 of the CAR Act

32. For the purposes of s 56 of the CAR Act a question is one of “law alone” only if it can be stated and considered separately from the facts in a given case: Franklin v Commissioner of Police [2018] NSWSC 310 at [19]; Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88 (Williams). A question concerning the application of correct legal principle to the facts of a particular case is a question of mixed fact and law, and therefore not a question of law alone: R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 (PL) at [25]. A question of law alone may pertain to a distinct and separate step in the reasoning process of the court below, even if that is a step which is implicit rather than expressly addressed: PL at [27]; White v Director of Public Prosecutions [2021] NSWSC 1629 at [10]-[13]. It follows that although there may be a conclusion which is of mixed fact and law, that may involve an anterior question of law, and therefore the ultimate decision is effectively appellable on the basis that it proceeded from a misdirection of law: Williams at 287.

33. Where there has been an order dismissing a charge, an appeal may competently be brought under s 56(1)(c) of the CAR Act which does not allege error in that determination itself, but rather error in an anterior determination to exclude evidence. That was the nature of the appeal in Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147. Dhanji J was satisfied that while the right of appeal is only against the “order … dismissing” the charge against the defendant, that may legitimately encompass a complaint with respect to an anterior ruling that precipitated that decision: [19]-[33].

34. The DPP’s amended summons articulates the questions that are said to be involved in the grounds on which the appeal is brought. The defendant did not submit that the questions as framed by the DPP were not questions of law, or otherwise suggest that there was any issue about the competence of the appeal. The defendant opposed relief instead on the substantive basis that the Magistrate did not err in the ways alleged by the DPP.

35. The first question (set out above at [31]) is undoubtedly a question of law alone. It arises in a way that is sufficiently abstracted from the particular facts of the matter. The position with respect to the second question is less straightforward, as explained below.

Ground 1: The Magistrate erred in finding that the NCMEC evidence was obtained in, or in consequence of, a contravention of Australian law for the purposes of s 138 of the Evidence Act

36. The Magistrate excluded at least the NCMEC evidence pursuant to s 138 of the Evidence Act. That section relevantly provides:

138 Exclusion of improperly or illegally obtained evidence

(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.

…

(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.

37. Section 138 enacts a modified form of the common law public policy discretion articulated in Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, concerning the exclusion of evidence obtained unlawfully or improperly by law enforcement agencies. Evidence obtained by, or in consequence of, impropriety or illegality is to be excluded unless “the product of balancing the competing public interests favours admitting the evidence”: Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1 (Kadir) at [40]. Identification of the requisite causal link between the evidence and contravention of a relevant law, or between the evidence and some impropriety, is therefore merely the first step, which engages the section: Kadir at [40]. The competing public interests are the desirability of admitting relevant evidence, recognising “the public interest in all relevant evidence being before the fact-finding tribunal” and the undesirability of evidence of the kind in question, recognising “the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally”: Kadir at [13]. Where the evidence in question has been improperly obtained by police, the gravity of the illegality or impropriety is to be assessed by reference to the minimum standards of police conduct: Kadir at [14], citing Ridgeway v The Queen (1995) 184 CLR 19 at 37; [1995] HCA 66. The standard by which the court assesses the impropriety of the conduct of private individuals is less clear: Kadir at [14].

38. There is a threshold question as to how the reasons of the Magistrate are to be understood on the issue of illegality or impropriety. The DPP submits that the Magistrate must be taken to have accepted the submission of Mr Beeby below that the acts of “Jeremy” in sending the Grindr messages to Mr Beeby constituted an offence of unlawfully inciting Mr Beeby to commit a child sex offence under s 66EB(2), in contravention of s 2 of the Crimes Prevention Act and, or alternatively, s 11.4 of the Commonwealth Criminal Code.

39. I accept that submission. The Magistrate was satisfied that the acts of “Jeremy” constituted an unlawful act of incitement. Given the way the reasoning was expressed, and the content of the submissions addressed to the Magistrate on this topic by Mr Beeby, that involved acceptance of the submission that incitement of this kind constitutes an offence under s 2 of the Crimes Prevention Act and/or s 11.4 of the Criminal Code*.* That in turn must have involved an acceptance that as a matter of law it does constitute an offence to incite a person to commit the offence under s 66EB(2) of the Crimes Act of procuring a child. The correctness of that conclusion is the subject of the first question of law.

The DPP’s argument based on s 80G of the Crimes Act

43. The DPP submits that the Magistrate’s analysis involves a legally false assumption that it is an offence to incite a person to commit the offence of procuring a child contrary to s 66EB(2) of the Crimes Act. The argument focuses on a provision which was not drawn to the attention of the Magistrate, namely s 80G(5)(b) of the Crimes Act. Section 80G relevantly provides:

80G Incitement to commit sexual offence

(1) A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence.

(2) For the person to be guilty, the person must intend that the offence incited be committed.

(3) A person may be found guilty even if committing the offence incited is impossible.

(4) Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section.

(5) It is not an offence to incite the commission of the following offences—

(a) an offence under section 61KC, 61KD, 61KE, 61KF, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF or 73A that is constituted by inciting another person to sexual touching or a sexual act within the meaning of Division 10,

(b) an offence under section 66EB, 66EC, 78B or 80 or an offence under section 344A of attempting to commit an offence under Division 10, 10A or 15.

(Emphasis added.)

44. Mr Beeby submits that in circumstances where s 80G was not brought to the attention of the Magistrate, the prosecutor ought not be permitted to raise it for the first time on appeal. I reject that submission. The question is a purely legal one. The oversight at first instance evidently occurred because of a failure to appreciate the significance of this provision to the legal argument before the Magistrate, in the context of an argument that appears to have arisen with little or no notice. The omission does not reflect any forensic strategy from which the DPP should not be allowed to resile. Mr Beeby is not in a position to say that if the point had been raised below it could have been met by further evidence: Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51]-[52]. It is in the interests of justice to allow the point to be argued in this Court, with a view to ensuring that the ultimate question of admissibility is determined on a legally sound basis.

45. The essence of the DPP’s argument on ground 1 is that in circumstances where s 80G(5)(b) of the Crimes Act expressly precludes an offence of incitement in relation to s 66EB, this specific provision displaces the general application of s 2 of the Prevention Act as it would otherwise operate on s 66EB.

46. The question of the relationship between two statutes of New South Wales is one of legislative interpretation, based on reading the two statutes together to determine if there is any relevant inconsistency in their respective operations and, if so, how the legislature intended that inconsistency ought be resolved: Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton) at [45], [95]. That intention is to be extracted “from all available indications”: Eaton at [46], quoting Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553-4; [1974] 2 NSWLR 681 at 686.

47. Applying those principles, the DPP’s construction should be accepted. It is supported by the text, in particular the declaratory form of the chapeau to s 80G(5). The subsection is not expressed merely as a carve out from the offence created by s 80G(1). If it had been intended to have only that effect, a more natural drafting would have been to say that it is not an offence “under subsection (1)” to incite the commission of the following specified offences. That would still leave room for the operation of other provisions that might operate to render incitement an offence. The use of the broader declaratory form – that “it is not an offence” to incite the commission of the listed offences – points toward an intention that the section as a whole should define in a comprehensive way what is, and what is not, an incitement offence tied to the commission of an offence under Division 10, 10A or 15A.

The incitement provisions do not apply to the operation of offences of attempting to commit a sexual offence under sections 61P, 66B, 66D, 66F(4), 73(4), 78B and 80 or the offence of procuring or grooming a child under 16 years for unlawful sexual activity under section 66EB of the Crimes Act. These are preparatory crimes committed in the preparation of actual sexual abuse.

(Emphasis added.)

50. The explanatory note for the bill provides further context:

Schedule 1 [19] provides for a specific offence of inciting a person to commit a sexual offence. Sexual offences are offences against Division 10 of Part 3 of the Crimes Act 1900 (such as sexual assault, sexual intercourse with children, indecent assault and acts of indecency), offences against Division 10A of that Part (sexual servitude) and offences against Division 15A of that Part (child pornography offences). The incitement offence will carry the same maximum penalty as the offence incited.

The offence of incitement will not apply to offences in the nature of attempt or offences that are themselves constituted by inciting another person to do something (such as inciting a person to commit an act of indecency).

(Emphasis added.)

51. The explanation of the carve out for principal offences that are themselves constituted by inciting another person to do something explains a number of the references in s 80G(5) to provisions that are wholly or partly concerned with incitement. However, it does not explain the reference to s 66EB, which is not itself an incitement offence.

52. The intentions of the legislature in that regard are better informed by reference to the New South Wales Sentencing Council’s report entitled “Penalties Relating to Sexual Assault Offences in New South Wales” (Sentencing Council Report). In the second reading speech for the Amending Bill the Attorney General explained that the Sentencing Council Report provided the foundation for the bill. Volume 1 of the Sentencing Council Report was delivered in August 2008. It recommended the inclusion of a specific consolidatory incitement offence in the Crimes Act, which materialised as s 80G. It considers the “dated” Prevention Act at [2.72]-[2.73]:

[2.72] In some circumstances it would be possible for the offender to be prosecuted [for incitement to commit a sexual offence against a child] under the grooming provisions of the Act. Otherwise, the only basis for a prosecution would be by way of reliance on the common law, or on the Crimes Prevention Act 1916 (NSW), which makes it an offence if a person “incites to, urges, aids, or encourages the commission of crimes”. The maximum penalty for an offence under this section is, however, only imprisonment for 6 months where the offence is prosecuted as a summary offence in the Local Court; or imprisonment for 6 months or 1 penalty unit where the incitement arises in printed or published form. Such prosecutions appear to be rare.

[2.73] It is the view of the Council that a specific incitement offence could be included in the Crimes Act 1900 (NSW) to capture cases where an offender incites one or more persons to commit a sexual offence, whether or not carried out. A more appropriate penalty could attach than that imposed by the Crimes Prevention Act 1916 (NSW), which appears to be a somewhat dated piece of legislation …

(Emphasis added, footnotes omitted.)

53. The Sentencing Council Report is not explicit when it comes to the question of whether the new incitement provisions being recommended by the Sentencing Council were intended to replace the existing possibility for incitement prosecutions under the Crimes Prevention Act, or operate in parallel thereto. However, the references to the Crimes Prevention Act as being a “somewhat dated piece of legislation”, when read with the recommendation to enact a new scheme to deal with incitement in respect of sexual offences, suggest that the Sentencing Council considered the Crimes Prevention Act to be generally not fit for purpose in this context. The focus of the Sentencing Council in the quoted passage was on the desirability of creating incitement offences in the context of sexual offences with a more serious penalty than that provided for under the Crimes Prevention Act. Importantly, there was no indication by the Sentencing Council that it favoured the creation of two tiers of incitement offences, the first involving a “more appropriate penalty” (covered by what became s 80G(1) and the substantially higher penalties that apply) and the second involving less serious punishment under the Crimes Prevention Act (covered by the continuing application of that Act to the offences otherwise carved out by what became s 80G(5)). That tends to suggest that the Sentencing Council was recommending a comprehensive scheme dealing with incitement provisions in relation to sexual offences which would not leave room for any ongoing operation of the Crimes Prevention Act in relation to those particular offences. That in turn would support the conclusion that s 80G(5) is intended to exclude the ongoing application of the Crimes Prevention Act to the particular sexual offences described in that subsection.

54. The scheme dealing with incitement offences in respect of particular sexual offences under s 80G operates in a quite specific way, both by creating an incitement provision tied to particular substantive offences and by stipulating that “it is not an offence” to incite particular sexual offences. Having regard to the text and context, such specific regulation in this subsequent Act must be taken to have implicitly repealed, within the narrow field of operation of s 80G(5), the more general provision under the Crimes Prevention Act. The usual presumption that statutes do not contradict each other is displaced: Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 146; [2006] HCA 5 at [48]-[49]; Eaton at [98]. The later and more specific provision in this situation prevails over the earlier statute: Saraswati v The Queen (1991) 172 CLR 1 at 17; [1991] HCA 21.

55. The Crown submitted in argument that reading s 80G(5)(b) in a way that excludes the operation of s 2 of the in respect of the specific offences also serves other purposes. It was submitted that the exception should be understood as operating in a context where there may be law enforcement operations in which officers may pose as fictitious children. Avoiding any prospect of those officers committing an incitement offence is, the Crown submits, appropriate and consistent with public policy objectives. It was also submitted that it is appropriate to avoid any possibility of child victims being liable for incitement offences by virtue of involvement in their own exploitation. I accept that each of those considerations is also consistent with the Crown’s construction of s 80G(5)(b), and provides a degree of contextual support.

The application of s 11.4 of the Commonwealth Criminal Code to an offence under s 66EB of the Crimes Act

58. The argument as it relates to the interaction between s 11.4 of the Commonwealth Criminal Code and s 66EB of the Crimes Act may be dealt with briefly. It became common ground at the hearing before me that s 11.4 of the Commonwealth Criminal Code has no relevant application to the State offence under s 66EB of the Crimes Act. That is because s 11.4 is confined in its operation to incitement to commit offences under Commonwealth law. Section 11.4 is part of Chapter 2 of the Commonwealth Criminal Code, which codifies the general principles of criminal responsibility under laws of the Commonwealth: ss 2.1 and 2.2. This was not a point drawn to the attention of the Magistrate in the course of argument below.

59. It follows that to the extent that the reasoning of the Magistrate depended on the proposition that “Jeremy” committed the offence of incitement under s 11.4 of the Commonwealth Criminal Code by inciting the commission of an offence under s 66EB of the Crimes Act, that reasoning was erroneous.

Incitement in relation to a different Commonwealth offence

60. At the hearing before me, the defendant submitted that the conduct of “Jeremy” involved a contravention of s 11.4 of the Commonwealth Criminal Code by reference to a different substantive offence or offences, namely the offences created by ss 474.26 and 474.27 of the Code. Section 474.26 concerns using a carriage service to procure the recipient to engage in sexual activity where the sender is at least 18 years of age and the recipient is someone who is, or who the sender believes to be, under 16 years of age. Section 474.27 creates a similar offence in relation to grooming (in the sense of “making it easier to procure the recipient to engage in sexual activity with the sender”).

61. There is no suggestion that the Magistrate had regard to either of these substantive offences when concluding that the conduct of “Jeremy” involved a contravention of an Australian law. Nor can it be said that it is sufficient for the defendant to now identify an Australian law that has been contravened, even if that was not the law identified and considered below. As noted above, the gravity of the impropriety or contravention of an Australian law is one of the matters that informs the exercise of the discretion under s 138: s 138(3)(d). The argument before the Magistrate was conducted on the premise that it was an offence to incite a person to commit an offence under s 66EB of the Crimes Act. Having accepted the argument that it was an offence, the Magistrate proceeded to a balancing exercise that was implicitly conducted on that premise and by reference to the gravity of the contravention of that law (as well as the impropriety alluded to by her Honour). It cannot be assumed that the result would have been the same if the Magistrate had relied on s 11.4, read with ss 474.26 and/or 474.27, of the Commonwealth Criminal Code*,* even assuming for these purposes that the defendant is correct in his contention that a contravention of that law arose.

62. For these reasons, the defendant’s invocation of those alternative provisions to attempt to sustain the finding of illegality does not provide a proper basis to deny the DPP relief in challenging the Magistrate’s decision. In the circumstances it is unnecessary and inappropriate to consider the correctness of the defendant’s arguments about the applicability of ss 474.26 and/or 474.27 of the Commonwealth Criminal Code. In the event of a re-hearing of the matter in the Local Court, if a fresh objection is taken under s 138 of the Evidence Act it would appear to be open to the defendant to rely on these provisions as the foundation for a renewed argument about the contravention of an Australian law.

Conclusion on ground 1

63. The first question of law should be answered “no”. The Local Court erred in concluding that it constitutes a contravention of the law of the State to incite a person to commit an offence under s 66EB(2) of the Crimes Act.

64. That provides a sufficient basis for the DPP to obtain the orders that it seeks. The error of the Local Court was material to the ruling on the admissibility of the NCMEC evidence, which in turn was critical to the dismissal of the charge against Mr Beeby.

Ground 2: Alleged error in failing to differentiate between Exhibit 2 and the NCMEC evidence in applying s 138

65. In light of my conclusion in relation to ground 1, it is not strictly necessary to resolve ground 2. The point can, in any event, be dealt with briefly. I would reject the submissions of the DPP in support of ground 2.

66. The ground is premised on the proposition that the Magistrate ruled Exhibit 2 to be inadmissible. From that premise, it is argued that when exercising the discretion conferred by s 138 of the Evidence Act the Magistrate neglected to differentiate between the two separate items of evidence, Exhibit 2 and the NCMEC evidence, in circumstances where as a matter of principle each item of evidence needed to be considered separately. This is said to follow from Kadir.

67. I do not accept the factual premise. The question is not a straightforward one. There are certain references in the record of proceedings in the Local Court that are ambiguous and read in isolation might be taken to suggest that the Magistrate ruled on the admissibility of both Exhibit 2 and the NCMEC evidence. However, reading the record as a whole I consider the better conclusion to be that the ruling on the admissibility of evidence was confined to the NCMEC evidence. It follows that there was no occasion for her Honour to consider how the discretion under s 138 ought be exercised in relation to Exhibit 2.

68. The aspects of the record of proceedings below that lead me to this conclusion are as follows:

69. The debate about admissibility arose after objection was taken by the defendant to the prosecutor’s attempt to tender the statement of Mr Lennon from the NCMEC. After the objection was articulated (initially in terms of hearsay) the Magistrate indicated that the report from Mr Lennon should also be tendered on the voir dire. The Magistrate received the NCMEC evidence on the voir dire and marked it as Exhibit VD1 before proceeding to hear submissions on the objection. The debate about admissibility thus began explicitly by reference to, and only by reference to, what I have defined above as the NCMEC evidence.

70. The Magistrate proceeded to indicate that having received the material, evidence from the officer-in-charge should be concluded and then the Court would “hear submissions on the legal argument to do with this particular document”. The evidence of the officer-in-charge concluded shortly thereafter and the Magistrate stated that she would “hear submissions on this issue relating to the admissibility of the report that’s come from the National Centre”.

71. Exhibit 2 had already been provisionally admitted by this stage, following objections which did not extend to a s 138 objection.

72. In the course of argument about admissibility of the NCMEC evidence, both the prosecutor and counsel for the defendant made reference to other evidence, including the photographs in Exhibit 2. This was at least primarily for the purpose of explaining and contextualising aspects of the NCMEC evidence. The prosecutor also relied on that other material to respond to what was understood to be an objection about the lack of a requisite link between the NCMEC evidence and the defendant.

… so I can’t really flag that with your Honour at the moment in terms of what evidence, but the provisionally admitted exhibit 2, the photos, as well as the CyberLine [sic] report and the accompanying statement. There’s the s 138 argument, the s 137 argument and the hearsay argument.

7. This submission by counsel for the defendant appears to be the high point in terms of any indication that the argument about exclusion of evidence under s 138 had expanded to include Exhibit 2. However, neither the Magistrate nor the prosecutor appear to have understood that this was the effect of the submission. There were no subsequent references to Exhibit 2 in argument that suggested an appreciation that it had become the subject of debate about the application of s 138 (as opposed to being a relevant source of evidence bearing on the debate about admissibility of the NCMEC evidence).
8. There is no doubt that some of the references to Exhibit 2 in this context by counsel for the defendant are ambiguous, if not confusing. Taken in isolation, they can be read as indicating that the defendant sought to take a s 138 objection also to Exhibit 2, and also sought to make this part of the argument on the voir dire. Importantly, however, the responses of the Magistrate do not demonstrate an appreciation on her Honour’s part that the scope of the voir dire had expanded to include an argument about how s 138 applied to Exhibit 2.
9. Most tellingly, when the Magistrate proceeded to give an ex tempore judgment on the issue, her Honour introduced the ruling by stating:

This is an application to exclude a statement of Callahan A Lennon dated 20 June 2024 and more substantively the report which he produces.

In other words, having started the voir dire with an express reference to it being about the admissibility of the NCMEC evidence, the Magistrate then concluded the voir dire with an equally explicit reference to the NCMEC evidence alone. Neither the prosecutor nor the counsel raised any issue at the time about this description of the scope of the application, and the Court’s ruling. In circumstances where the Magistrate had in terms described her ruling as a ruling on the application to exclude the NCMEC evidence, it is difficult to infer that the prosecutor understood it to also be a ruling about the application of s 138 to Exhibit 2, in circumstances where no clarification was sought and no issue was raised about the way the ruling was expressed.

10. The Magistrate proceeded to describe in some detail the nature of the NCMEC evidence, and consider the application of s 138 to that evidence. The Magistrate proceeded to give reasons why the NCMEC evidence should be excluded under s 138 of the Evidence Act and ruled that “the evidence” is excluded. There was neither analysis nor findings to that effect directed to Exhibit 2. While this is the very matter about which the DPP complains in ground 2, at the factual level in trying to interpret the scope of her Honour’s ruling the most natural inference is that the Magistrate did not separately address Exhibit 2 because it was not understood to be the subject of an objection under s 138 that her Honour was required to rule upon. If the Magistrate had directed her mind to the admissibility of Exhibit 2, among other things it would have been natural to refer back to the status of that evidence as provisionally admitted, and explain the change in treatment. There are no such references.

11. After the ruling on the admissibility of the NCMEC evidence, counsel for the defendant submitted that there was no case to answer, as there was no evidence to establish the elements of the offence. The prosecutor did not make any submissions to resist that application, including by reference to Exhibit 2. That itself might be taken as some indication that the prosecutor understood Exhibit 2 had been rejected as part of her Honour’s ruling. However, the prosecutor might equally have overlooked Exhibit 2 or formed the view that it was insufficient evidence without the benefit of the NCMEC evidence analysing the account of “Tezzzzz”.

12. The Magistrate in giving short reasons why there was no case to answer likewise did not refer to Exhibit 2. That might be taken as an indication that her Honour had implicitly rejected Exhibit 2 as part of the ruling on the admissibility under s 138, despite the indications to the contrary that I have summarised above. Again, however, the absence of reference to Exhibit 2 might also be explained by the fact that argument about the NCMEC evidence proceeded on the basis that the NCMEC evidence was necessary to establish the necessary link between Exhibit 2 and the defendant. At the time of provisionally admitting Exhibit 2, the Magistrate had stated that this was an appropriate course “on the basis that there will be evidence in the prosecution case that will be called to link it back to the accused”. Whether or not it was necessarily correct that Exhibit 2 lost its evidentiary significance without the NCMEC evidence, it would explain why the Magistrate did not regard Exhibit 2 as providing a sufficient and separate foundation for the prosecution case, even once the NCMEC evidence had been excluded.

13. The evidentiary indications are mixed, and there may well have been a degree of confusion about the precise scope of a rapidly evolving debate. On balance, however, I do not draw the inference urged by the DPP that her Honour implicitly ruled that Exhibit 2 was excluded under s 138 of the Ground 2 is rejected and the second question of law identified in the amended summons does not arise.

Orders

73. In light of my conclusion on ground 1, the appeal must be allowed.

74. Pursuant to s 59(2) of the CAR Act, the order of Magistrate O’Meagher made on 26 February 2025 dismissing the charge against the defendant should be set aside and the matter remitted to Gosford Local Court to be dealt with according to law. No order for costs was sought and none is made.

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