Lee v Victoria Police [2025] VSC 276

1 This is an application for judicial review brought pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 in which the plaintiff seeks certiorari to quash an order made by his Honour Judge Rozen in the County Court of Victoria on 24 June 2024. By that order, the plaintiff was found guilty, without conviction, of a charge of distributing an intimate image contrary to s 41DA of the Summary Offences Act 1966 and required to serve a community correction order for a period of 18 months. Orders imposed by the Magistrates' Court of Victoria in relation to the charge were set aside.

2 The central facts upon which the plaintiff was found guilty were contained in an Agreed Statement of Facts signed by the plaintiff on 22 May 2024 prepared for the purposes of the proceeding in the County Court pursuant to s 191 of the Evidence Act 2008. As presently relevant, those facts, which occurred on 15-16 September 2022, may be shortly stated.

3 The plaintiff met the complainant at a bar in Fitzroy in the evening of 15 September 2022. The plaintiff, who is male, was then 35 years old and employed by the Australian Defence Force. He was completing his training as a signaller and resided at Simpson Barracks in Yallambie. The complainant, who is female, was then 17 years of age; the plaintiff believed her to be at least 18 years old.

4 After they became acquainted, the plaintiff invited the complainant to return with him to his barracks. The complainant agreed. When they arrived at the barracks, the plaintiff and the complainant went to the plaintiff's bedroom where they kissed and undressed. After the complainant had removed her clothes and was naked, the plaintiff went to the bathroom while the complainant remained sitting on the plaintiff's bed looking at her phone. Unbeknown to the complainant, the plaintiff took two photographs of the complainant in this state, one was blurry, the other (which I will refer to as 'the photograph') was not. After the plaintiff returned from the bathroom, he and the complainant engaged in consensual sexual activity. Later, in the early hours of 16 September 2022, at the complainant's request, the plaintiff then dropped the complaint back at the bar where they had met.

5 About 45 minutes later the plaintiff posted the photograph to a group chat on the messaging application 'Signal' (the group chat). The group chat had 12 members, all of whom were members of the Australian Defence Force. The complainant had not consented to the distribution of the photograph.

6 The posting of the photograph on the group chat was reported to authorities at the barracks on 16 September 2022. An investigation was commenced that day by members of the Joint Military Police Unit (the JMPU). As part of the investigation, a member of the JMPU obtained from a member of the group chat screenshots of the group chat, including the photograph.

7 Later on 16 September 2022, as part of the investigation, the plaintiff participated in a record of interview with members of the JMPU (the interview). The plaintiff admitted to taking the photograph and distributing it without the complainant's consent.

8 In the course of the interview, the plaintiff was presented with two search warrants issued that day by the commanding officer at the Defence Force School of Signals, Lieutenant Commander D Devlin (the warrants). The warrants required the plaintiff to provide the JMPU with his mobile devices. In the course of the interview, the plaintiff provided the JMPU with two mobile devices (the mobile devices).

9 Members of the JMPU subsequently obtained a number of witness statements as part of the investigation.

10 On 5 October 2022, all of the material and documents obtained during the investigation (other than the mobile devices) were provided to Victoria Police by the JMPU.

11 The plaintiff was later charged with distributing an intimate image contrary to s 41DA of the Summary Offences Act. The plaintiff was found guilty of the charge at the Magistrates Court on 20 December 2023 and sentenced to a fine of $2500.00 without conviction. On 22 December 2023, he filed a notice of appeal against conviction and sentence.

12 A the relevant time, the offence of distribution of an intimate image in s 41DA of the Summary Offences Act was as follows:

(1) A person (A) commits an offence if -

(a) A intentionally distributes an intimate image of another person (B) to a person other than B; and

(b) the distribution of the image is contrary to community standards of acceptable conduct.

(2) A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum).

(a) B is not a person under the age of 18 years; and

(b) B had expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented, to -

(i) the distribution of the intimate image; and

(ii) the manner in which the intimate image was distributed.

13 The phrase 'intimate image' was defined in s 40 to mean:

(a) a person engaged in sexual activity; or

(b) a person in a manner or context that is sexual; or

(c) the genital or anal region of a person or, in the case of a female, the breasts.

14 Section 40 of the Summary Offences Act also provides that:

community standards of acceptable conduct, in relation to the distribution of an intimate image, includes standards of conduct having regard to the following -

(b) the circumstances in which the image was captured;

(c) the circumstances in which the image was distributed;

(d) the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the image;

(e) the degree to which the distribution of the image affects the privacy of a person depicted in the image.

15 The appeal was heard de novo in the County Court on 29 May 2024 before his Honour Judge Rozen. In addition to the Agreed Statement of Facts, the Court received the following evidence:

(a) the photograph;

(b) the transcript of the interview;

(c) an exchange of text messages between the plaintiff and the complainant on 18 September 2022 in which, relevantly, the plaintiff confirmed that he had taken a photograph of the complainant while she was sitting on his bed and had sent it to his friends without her knowledge or consent; and

(d) oral evidence from the informant (principally in relation to procedural matters).

16 Although the plaintiff accepted that he distributed the photograph, in the County Court he advanced two principal contentions: that the photograph was not an 'intimate image' and that the prosecution had not established that its distribution was contrary to the standards of acceptable conduct as required by s 41DA(1)(b) of the Summary Offences Act.

17 Judge Rozen determined that the photograph was an intimate image within the meaning of s 40(b) of the Act on the basis that its context was sexual.[1] He also found that it was 'very clear' that its distribution by the plaintiff was contrary to community standards of acceptable conduct because:

(a) it depicted the genital area of the complainant, who was completely nude;

(b) it was taken without the complainant's knowledge or permission in circumstances where she had a strong expectation of privacy;

(c) it was distributed to the group chat and the plaintiff did not ask the group chat members to not further distribute it;

(d) the complainant was 17 years old, some 18 years younger than the plaintiff; and

(e) the complainant was naked and alone in his room when the photograph was taken.

18 On the basis of the above matters, at the conclusion of the hearing on 29 May 2024, Rozen J stated that by distributing the photograph the plaintiff had committed a gross violation of the complainant's privacy. He found the contravention of s 41DA of the Act proven.[2]

19 The plaintiff's sole ground of review is as follows:[3]

1. That the Honourable Judge Rozen failed to comply with the requirements of procedural fairness in that:
   1. a warrant was signed by a military official and the warrant was executed;
   2. evidence collected by the [JMPU] under the defence power should not have been used in the civilian criminal jurisdiction; and
   3. the Defence Force Discipline Act 1984 (Cth) allows an accused person to elect to be tried by a court martial of five military officials, which is similar to a jury.

20 The plaintiff submitted that he was denied procedural fairness because the County Court had evidence before it that was obtained by the JMPU for the purpose of investigation pursuant to the Defence Force Discipline Act 1982 (Cth) (the DFDA), including evidence obtained under a search warrant pursuant to s 101X of that Act. The plaintiff contended that this evidence was obtained for the purpose of prosecution pursuant to the DFDA and therefore should not have been available to Victoria Police for the prosecution of an offence under the Summary Offences Act.

21 The plaintiff submitted that he was denied procedural fairness because Victoria Police did not conduct a separate investigation pursuant to the Crimes Act 1958 and the Summary Offences Act and, in particular, did not obtain evidence using warrants issued under State criminal jurisdiction. The JMPU collected evidence, such as witness statements and a record of the interview for its investigation pursuant to its power under the DFDA, which the plaintiff contended was a power not afforded to Victoria Police. The plaintiff submitted that the warrants were obtained by a military official empowered to sign a warrant pursuant to the DFDA, thus departing from the regular process in criminal proceedings where the approval of a magistrate is required.

22 The plaintiff contended that, because the warrant was signed by a military official under the DFDA and not signed by a magistrate according to State criminal jurisdiction, the authority of the warrant was a 'procedural irregularity' which 'colour[ed] the investigation' by Victoria Police that followed. The plaintiff submitted that this raised an issue of procedural fairness because allowing 'features of the military law established under the defence power into the civil system would blend the defence power with the judicial power' and thereby 'subvert the first limb of R v Kirby; Ex parte Boilermakers' Society of Australia'.[4] The plaintiff relied on the judgment of the High Court in George v Rockett[5] in which the Court quoted with approval the following observations in Parker v Churchill:[6]

The duty, which the Justice of the Peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the Justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.

23 The plaintiff submitted that this 'is what the separation of powers practically looks like when police apply to a magistrate for a warrant' and that this did not occur in the investigation by Victoria Police. The plaintiff further relied on the following statement by Gordon J in Private R v Cowen:[7]

Not only is the intersection of Ch III with disciplinary tribunals created under s 51(vi) and the DFDA consistent with the separation of powers; the point at which they intersect ensures that a member of the defence force receives the benefit of that separation of powers in cases unconnected with military discipline.

24 It was submitted by the plaintiff that it was procedurally unfair for the investigation to commence under the DFDA and then continue to be prosecuted pursuant to the Summary Offences Act as the DFDA has a different purpose and the JMPU's statutory powers of investigation were 'strictly pursuant to the DFDA'. The plaintiff relied on the decision of the High Court in Private R v Cowen in which Kiefel CJ, Bell and Keane JJ stated:[8]

...the system of military justice pursues the specific purpose of securing and maintaining discipline within the armed forces rather than the general purpose of punishing those guilty of criminal conduct.

25 The plaintiff also relied on the decision of McWaters v Day[9] in which the High Court in its unanimous judgment stated:[10]

...the [DFDA] was to be interpreted so as to ensure that the military disciplinary code it enacted was cumulative upon and not exclusive of the ordinary criminal law...

...

...it is clear that the [DFDA] contemplates parallel systems of military and ordinary criminal law...

The plaintiff submitted that a DFDA warrant 'supplanting the ordinary process for warrants under the criminal law' was impermissible because the 'parallel systems' ought not 'connect' as they did in this case when Victoria Police received evidence from the JMPU.

26 The plaintiff also submitted that his preparedness to make a statement in the investigation by the JMPU may have differed if he had been investigated under the ordinary criminal law. The plaintiff contended that, when Victoria Police received the evidence from the JMPU, he would have been 'obliged' to 'describe' two separate set of facts under the Summary Offences Act and the DFDA respectively had he not agreed to the Agreed Statement of Facts, which would have required him 'to omit and lie'. It was therefore unfair for Victoria Police to use the evidence obtained pursuant to the DFDA investigation when it was obtained for a different purpose.

27 It was submitted by the plaintiff that there was no express permission in any Commonwealth or Victorian legislation for information collected under the DFDA to be used in a state's criminal jurisdiction.

28 For these reasons, the plaintiff submitted that Victoria Police's use of the evidence obtained by the JMPU under the DFDA was so irregular to the ordinary Victorian procedure of the criminal law that it should have been excluded from the prosecution under the Summary Offences Act, and the usual criminal procedures for issuing warrants, investigating offences and collecting evidence should have applied.

29 The plaintiff further submitted that, pursuant to s 111B of the DFDA, a person accused under the DFDA may elect to be tried by a court martial, being a panel of five people. He submitted that his decision to make a statement and assist the DFDA investigation was influenced by his understanding that he would be able to make arguments to a panel of his peers, which afforded him greater protection. In those circumstances, the later use of a judge-alone summary jurisdiction was procedurally unfair.

30 The plaintiff's submissions proceed from the false premise that the finding of guilt in the County Court was based upon evidence obtained under the warrants and, more generally, from the investigation undertaken by the JMPU. In relation to the warrants, as I have noted, the mobile devices obtained by the JMPU pursuant the warrants were not provided to Victoria Police. The plaintiff's case insofar as it is based on the claim that the Country Court had before it evidence obtained under the warrants must accordingly fail.

31 The plaintiff's broader complaint that the finding of guilt was based on evidence obtained from the investigation undertaken by the JMPU conveniently ignores his extensive admissions recorded in the Agreed Statement of Facts upon which the finding of guilt was substantially based. However, it is correct that the material obtained from the JMPU's investigation was in evidence before the Rozen J[11] and that Rozen J had regard to aspects of this evidence, most notably the photograph, in his reasons for judgment. It is therefore necessary to consider the plaintiff's central contention advanced through his various submissions that the investigative processes under the DFDA are, as a matter of law, required to be kept separate and distinct from the processes of State criminal law, with the consequence that material obtained from an investigation undertaken as part of the former may not be used as part of the processes of the ordinary criminal law.

32 This contention finds no support in the terms of the DFDA and is contrary to established authority.

33 Section 190(2) of the DFDA expressly provides that the jurisdiction of a civil court to try a charge of a 'civil court offence', which includes an offence against a law of a State or Territory,[12] 'is not affected by this Act'. A single exception to this general provision is identified and is not relevant to this case.[13] Further and importantly, the DFDA does not contain any provisions which regulate, by prohibition, limitation or otherwise, the extent to which material obtained in an investigation undertaken under its provisions[14] may be used in proceedings under the ordinary criminal law. For example, there is no provision analogous to s 6DD(1) of the Royal Commissions Act 1902 (Cth) which has the effect that a statement or disclosure made by a person in the course of giving evidence before a Royal Commission is inadmissible in evidence against that person in any civil or criminal proceedings.

34 In Re Tracey; Ex parte Ryan,[15] Mason CJ and Wilson and Dawson JJ affirmed the statement by Stephen, Mason, Aickin and Wilson JJ in Groves v Commonwealth[16] that a feature of the constitutional system was 'that military law has a quite restricted range of operation and is seen as an additional, rather than a replacement, set of rights and duties'.[17] To similar effect, Deane J referred to the disciplinary powers of military tribunals as being:[18]

... supplementary in their character in that they do not supplant the jurisdiction or function of the ordinary courts in relation to the general community aspects of conduct which also constitutes an offence under the ordinary criminal law.

35 These statements of principle were affirmed in McWaters v Day. In a unanimous judgment, the High Court stated that the majority in Re Tracey had found that the DFDA:[19]

...was to be interpreted so as to ensure that the military disciplinary code it enacted was cumulative upon and not exclusive of the ordinary criminal law...

The Court referred to the 'parallel systems of military and ordinary criminal law' contemplated by the DFDA.[20] The provisions of the DFDA did not indicate that it was intended to exclude the operation of State criminal law; rather, it is 'supplementary to, and not exclusive of, the ordinary criminal law'.[21]

36 These principles were again re-affirmed by the High Court in Private R v Cowen. Immediately before the description of the system of military justice set out by Kiefel CJ, Bell and Keane JJ on which the plaintiff relies,[22] their Honours stated that 'the jurisdiction of service tribunals is not secondary to the jurisdiction of the ordinary courts; rather it is complementary to that jurisdiction for the purposes of the nation's defence'. [23] By reference to McWaters v Day, they referred to the system of military justice as operating 'concurrently with the ordinary civil jurisdiction of the States and is complementary to it'.[24] Likewise, immediately before referring to the separation of powers, a statement upon which the plaintiff relies,[25] Gordon J stated that military discipline is 'supplementary to, and not exclusive of, the ordinary criminal law', with military tribunals exercising powers outside of, but concurrently with, Ch III of the Commonwealth Constitution.

37 The plaintiff's application will accordingly be dismissed.

[1] His Honour also considered that the photograph probably met the definition in s 40(c), but did not determine the issue.

[2] The plaintiff was sentenced (see [1] above) on 24 June 2024.

[3] Pursuant to the grant of leave to amend given at the hearing of the application on 6 May 2025.

[4] [1956] HCA 10; (1956) 94 CLR 254.

[5] [1990] HCA 26; (1990) 170 CLR 104, 111.

[6] [1985] FCA 425; (1985) 9 FCR 316, 322.

[7] [2020] HCA 31; (2020) 271 CLR 316 [142] ('Private R v Cowen').

[9] [1989] HCA 59; (1989) 168 CLR 289 ('McWaters v Day').

[11] Being the photograph and the transcript of the interview. The exchange of text messages referred to in paragraph 15(c) above was provided by the complainant to Victoria Police and was not obtained in the JMPU investigation.

[12] Section 3(1) of the DFDA.

[13] Section 190(4) provides: A civil court does not have jurisdiction to try a charge of a civil court offence that: (a) is an ancillary offence in relation to an offence against this Act (other than section 61) or the regulations; and (b) was committed by a person at a time when the person was a defence member or a defence civilian.

[14] See Part VI of the DFDA entitled 'Investigation of service offences'.

[15] [1989] HCA 12; (1989) 166 CLR 518, 583 ('Re Tracey').

[16] (1982) 150 CLR 113.

[22] See [24] above.

[25] See [23] above.