R v DM [2010] ACTSC 137

Supreme Court of the ACT|2010-11-05|Before: Gleeson CJ, Clarke JA, Sully J, Refshauge J

[2010] ACTSC 137 (5 November 2010)

CRIMINAL LAW - trial - judge alone - eight counts of sexual intercourse with a person above the age of 10 years but under the age of 16 years - two counts of procuring a child for the production of child pornography - two counts of possessing child pornography - one count of suggesting to a child using electronic means to commit an act of a sexual nature - three complainants.

CRIMINAL LAW - trial - judge alone - plea of guilty accepted on four counts concerning one complainant during the trial - Crown declined to proceed to prosecute two further counts - trial proceeded on remaining seven counts.

CRIMINAL LAW - trial - judge alone - two counts of procuring a child for the production of child pornography - accused found not guilty.

CRIMINAL LAW - trial - judge alone - four counts of sexual intercourse with a person above the age of 10 years but under the age of 16 years - accused found not guilty.

CRIMINAL LAW - trial - judge alone - one count of suggesting to a child using electronic means to commit an act of a sexual nature - whether taking photograph is an act of indecency - accused found guilty

PRACTICE AND PROCEDURE - recorded evidence from pre-trial hearing - use of recorded evidence - legislation unclear whether the recorded evidence should be treated as a witness giving evidence or as an exhibit

Crimes Act 1900 (ACT), ss 64, 66(1), 66(6)

Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) which amended the Evidence (Miscellaneous Provisions) Act 1991 (ACT)

R v Mulcahy [2010] ACTSC 98

R v Murray (1987) 11 NSWLR 12.

WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66

R v Court [1989] AC 28

R v Manson (New South Wales Court Criminal Appeal, Gleeson CJ, Clarke JA, Sully J, 60773/91, 60820/91, 17 February 1993, unreported)

R v Morton (1998) 143 FLR 268

R v Taylor [2010] ACTSC 121

R v AWC [2003] SASC 416

Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241

R v Forsti [2010] ACTSC 85

1. The accused is guilty of the first count on the indictment.

2. The accused is guilty of the second count on the indictment.

3. The accused is guilty of the third count on the indictment.

4. The accused is discharged in respect of the fourth count on the indictment.

5. The accused is not guilty of the fifth count on the indictment.

6. The accused is not guilty of the sixth count on the indictment.

7. The accused is not guilty of the seventh count on the indictment.

8. The accused is not guilty of the eighth count on the indictment.

9. The accused is not guilty of the ninth count on the indictment.

10. The accused is not guilty of the tenth count on the indictment.

11. The accused is guilty of the eleventh count on the indictment.

12. The accused is guilty of the twelfth count on the indictment.

13. The accused is discharged on the thirteenth count on the indictment.

1. The accused, DM, had been involved in the ACT Scouting Movement (Scouts ACT) for some years. Part of the activities of Scouts ACT was an annual stage performance known as The Gang Show. DM has been involved in the Gang Show since 2000. The complainants in respect of the charges that DM faces had also been involved The Gang Show. In summary, DM is accused of engaging in sexual impropriety with the complainants whom he met as a result of their respective involvement in The Gang Show.

2. In order to comply with s 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act), I shall in these reasons use ciphers to refer to the complainants (and the name of anyone else, the publication of which might breach s 40). I shall attach to these a copy of these reasons provided to the parties a table showing which cipher represents which person.

3. The indictment preferred against DM contained 13 counts as follows:

FIRST ...that between the 1st day of September 2004 and

COUNT the 30th day of September 2004 at Canberra in the Australian Capital Territory DM engaged in sexual intercourse with [C1] who was then above the age of 10 years but under the age of 16 years, namely 13 years.

COUNT September 2004 and the 31st day of October 2004 at Canberra aforesaid DM engaged in sexual intercourse with [C1] who was then above the age of 10 years but under the age of 16 years namely, 13 years.

COUNT April 2005 and the 30th day of September 2005 at Canberra aforesaid DM engaged in sexual intercourse with [C1] who was then above the age of 10 years but under the age of 16 years namely, 14 years.

COUNT January 2007 and the 31st day of January 2007 at Canberra aforesaid DM engaged in sexual intercourse with [C2] who was then above the age of 10 years but under the age of 16 years namely, 15 years.

COUNT April 2007 and the 30th day of April 2007 at Canberra aforesaid DM engaged in sexual intercourse with [C2] who was then above the age of 10 years but under the age of 16 years namely, 15 years.

COUNT December 2006 and the 31st day of January 2007 at Canberra aforesaid DM procured a child namely, [C2], for the production of child pornography.

COUNT December 2006 and the 30th day of April 2007 at Canberra aforesaid DM procured a child namely, [C2], for the production of child pornography.

COUNT August 2007 and the 31st day of August 2007 at Canberra aforesaid DM suggested to a young person namely [C3], using electronic means, namely SMS messages sent by a mobile telephone, that she commit an act of a sexual nature.

COUNT December 2007 at Canberra aforesaid DM intentionally possessed child pornography.

4. DM was committed to the Supreme Court for trial on 14 October 2008. He was arraigned on 12 May 2009 and pleaded not guilty to all counts. The trial was set to commence on 15 June 2010.

5. Before the trial, however, a pre-trial hearing was heard on 22 October 2009. This was a procedure introduced by the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) which amended the Miscellaneous Provisions Act.

6. By the insertion of s 40Q of the Miscellaneous Provisions Act a witness who is a child may give evidence at a pre-trial hearing. Two witnesses gave their evidence at the pre-trial hearing in October 2009 through CCTV from a remote room and that evidence was recorded.

7. On 22 June 2009, DM elected for trial by a judge alone under s 68B of the Supreme Court Act 1933 (ACT). Section 68C then provides in respect of such proceedings:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such findings has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

8. In R v Mulcahy [2010] ACTSC 98 (at [13]-[24]), Nield AJ set out helpfully the directions and considerations that should be given at a judge alone trial. His Honour said:

13. A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.

14. The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.

15. The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.

16. The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.

17. In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.

18. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.

19. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.

20. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.

21. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.

22. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.

23. The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.

24. In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.

9. I respectfully adopt what fell from his Honour and direct myself accordingly.

10. The trial commenced on 15 June 2010. The recorded evidence of two complainants was played on the first day of the trial. Then, on the second day of the trial, the first complainant gave her evidence in chief. Before she could be cross examined by DM's counsel, however, DM pleaded guilty to four of the counts on the indictment all relating to C1 and the Crown indicated that it would file a notice declining to proceed on two other counts.

11. After the plea of guilty, the first complainant was excused and the trial proceeded in relation to the remaining seven counts on the indictment.

12. There was no suggestion that these pleas of guilty were to be taken into account in the trial, for example, as coincidence or tendency evidence. Accordingly, I exclude them from any further consideration at this stage.

13. In addition to the evidence of the two complainants, C2 and C3, I heard evidence at the trial from:

W1 (a witness the publication of whose name could breach s 40 of the Miscellaneous Provisions Act)

14. The following materials were admitted into evidence:

A Bundle of Photographs of locations identified by C2.

B CD with photographs of C2 downloaded from her phone.

D CD with material said to be child pornography from DM's laptop.

F Handwritten note with login and password details for DM's email.

15. C2 recalled that she met DM through The Gang Show in 2006, when he was the assistant director.

16. She said that she completed an application for participation in the production which would have included her birth date, address and other personal details.

17. In addition, she recalled sending an email to DM telling him that she was 14 years old soon to be 15 years old. That email, dated 27 September 2006 was later tendered in evidence (Exhibit G).

18. Rehearsals began in February 2006 and the production was presented in June 2006.

19. After The Gang Show, she attended a farewell gathering where DM was present. He handed out thank you cards with his email address on it at the gathering. She provided DM with her email address.

20. C2 recalled that in September 2006 she received an email from DM. They continued somewhat irregular email contact.

21. C2 said that in December 2006, the content of the emails she received from DM became sexual. She said that he began asking her questions such as, whether she had ever given a 'hand-job', or 'blow job', or whether she had ever masturbated in front of anyone before and whether she wanted to meet up and perform sexual acts on him.

22. In January 2007, DM and C2 spoke on the telephone and discussed meeting in person. DM suggested that he would like her to perform sexual acts on him.

23. She said she met with him in January 2007. They made arrangements for DM to pick her up from a local shopping centre between 5pm and 6pm.

24. She said that when DM arrived at the shops, she got into the front passenger seat of his car and he drove to a car park near an oval close by.

25. She said that they chatted and then DM asked her if she would suck his penis. She said he started to pull down his pants and briefs and said to her, "Do you want to? I know you want to". She said she responded, "No, I don't really want to" but he continued to urge her to do so. She recalled that she felt uncomfortable because she did not want to suck his penis.

26. She said DM, however, pulled his pants and briefs down to around half way down his thigh and she observed that his penis was erect.

27. She said that in the end she "gave in to his encouragements and proceeded to give oral sex". She said she lent across to the driver's seat, bent down and put his erect penis in her mouth and sucked it for between one and two minutes. She stopped because she did not feel comfortable doing it.

28. C2 said that when she stopped DM said words to the effect, "You've given me this now I need to give you something". She responded, "No, I don't really want it, I'm fine". Nevertheless, he continued to encourage her to allow him to insert his fingers inside her vagina; she said he would not take no for an answer. Once again, although she said that she did not want him to, she said in evidence, "I did eventually sort of give up and I ended up taking - pulling my pants down so he could". She recalled that she pulled her jeans and underwear down to around her knees and he leant over and inserted his fingers inside her vagina. She said she felt his fingers move in and out of her vagina. She said that at some time he asked if she wanted him to stop and she said "yes" and he stopped.

29. She then pulled up her jeans and her underpants and they left after having, on her estimation, spent around 30 minutes together.

30. C2 said that she did not see DM until April 2007 which was after rehearsal for that year's Gang Show had started. She said she could not remember if he emailed or text messaged her, but in April 2007, he contacted her asking if she wanted to meet up again and she agreed.

31. She said they arranged for DM to meet at the same place and at a similar time as before.

32. She said she was again picked up by DM in his car, when she sat again in the front passenger seat, and they drove away from the shops and stopped on a gravel patch by the side of a road the name of which she was unsure. A photo of the gravel patch was tendered (Exhibit A).

33. She recalled that after DM stopped the car he said he had a present for her and took out a green vibrator from the back seat of the car. She said that she could not remember whether there had been any discussion about sexual activity or vibrators prior to meeting him or while she was in the car driving with him.

34. She said that he wanted her to try it out for him. She recalled that she repeatedly said to him that she did not want to use the vibrator, but he was "persistently encouraging me to use the vibrator and wouldn't take no for an answer, so in the end I did give up".

35. She said she pulled down her jeans and underwear and DM turned on the vibrator and she felt him put the vibrator on her vagina and then move it in and out of her vagina for between one and two minutes. He asked her if she wanted him to stop and she said yes because it was hurting her. He withdrew the vibrator.

36. C2 said that shortly after he withdrew the vibrator, he said, "I've given you this present now you have to give me a present" as he was pulling down his pants and briefs showing her his erect penis.

37. She said he encouraged her to suck his penis, and again, would not take no for an answer when she said she did not want to do so. She said, "After awhile again I did sort of give up trying to make excuses...So I did give up and just say fine, okay". She recalled that she put his penis in her mouth and sucked it for between one and two minutes. She stopped because she said she felt too uncomfortable sucking his penis.

38. She recalled that another vehicle drove along the road and DM said, "Quick, get your pants back on, let's get out of here", so they both pulled their pants up and DM started the car and drove back to the shops where she got out and walked home.

39. She said she took the vibrator from DM and, when she arrived home, she hid it at the very back of her wardrobe.

40. C2 said that in January 2007 DM began to ask her to send him naked photographs of herself, specifically of her breasts and vagina. She recalled that he made requests for naked photographs via email, text message and in conversation on the phone. She also recalled that he asked her to masturbate while she was on the phone with him, but she refused.

41. She said she was initially hesitant to send any naked photographs of herself to DM and made up excuses. She said DM "brushed the excuses off and just kept pestering me and pestering me to send pictures to him". She eventually sent DM photographs of her breasts and of her vagina, she was unsure how many photographs she sent to him.

42. C2 said that sometime after the April assignation DM made contact with her again via email asking her to take naked photographs of herself using the vibrator and send the photographs to him.

43. She said she made up excuses as to why she could not, or would not, take the photographs or send him photographs but he was very persistent "in his asking of me to take pictures and send them to him and once again he wouldn't really take no for an answer". After a few weeks of refusing, she said she "ended up taking pictures of me using the vibrator and sent them to him" from her email address to DM's email address. The photographs were of her vagina with the vibrator in it.

44. C2 was also asked whether she knew W1 and agreed that she had met him through The Gang Show. She described their relationship as just a friendship.

45. She stated that W1 had never asked her to send photographs to him of herself naked or masturbating.

46. C2 said that after the incidents in April 2007, she did have some contact with DM through their involvement with the 2007 Gang Show, but otherwise she generally tried to "keep outside contact with him down to a minimum and tried to avoid any sort of conversations about sexual activities".

47. She recalled that DM did try to talk to her about sexual activities and performing sexual activities via email and over the telephone, but that she would "make an excuse and try to leave".

48. C2 was shown the photographs in Exhibit A and identified them as showing the two places where she said DM had driven to in January and April 2007. She was also shown and identified photographs that she says she had taken and sent to DM in January and April 2007.

49. In cross examination, C2 agreed that she was helped in identifying which photographs of her were taken in January 2007 and which were taken in April 2007 through the presence of the green vibrator in the latter photographs.

50. She showed some uncertainty under cross-examination about precisely when the first photographs were taken which showed her naked; it may have been December 2006 (but after Christmas) or in January 2007. She was also unsure whether they were taken before the first incident in DM's car.

51. She was questioned also about why she did not try to block DM from contacting her. She responded that she believed she had no reason to do so because, "Most of the conversations did start out with general just catching up and just civil conversation". She added that "just blocking the person seemed simply rude to me". It did seem to me that this was a reasonable explanation. It is a fact of life that people, especially in this case a young girl, find it difficult to reject rude contact that people make to them even if they find that contact undesirable.

52. She was questioned also about inconsistencies between her evidence and what she told police in statements made to them during their investigations.

53. She accepted that she did not initially tell police that the photographs included her using the vibrator, but when shown the photographs she remembered and suggested that the two photograph occasions had been about a month apart. She agreed that this evidence was mistaken if her evidence was correct.

54. She agreed, too, that she told police that she had thrown the vibrator away the day she had been given it, again, inconsistent with her evidence.

55. There was some cross-examination about where she had said DM got the vibrator from in his car. She said to police it had come from under his seat but in evidence said it came from under her seat.

56. There was cross-examination to suggest that her story was incredible because the sexual activities, at least in January, happened in broad daylight and in relatively close proximity to her home. It was also suggested that the size and internal layout of the car made the evidence she gave of their sexual activity simply not possible. She denied these suggestions

57. DM's counsel, Mr J Glissan QC (who appeared with Mr J Sabharwal) also suggested that she had fabricated her evidence, which, he said, was untrue, because she wanted to get DM in trouble with Scouts ACT. She denied this and denied that she had concocted the story with C1, C3 and W1.

58. C3 also gave her evidence at the pre-trial hearing via an audiovisual link. Her evidence was as follows.

59. C3 said that she first met DM when she joined The Gang Show in 2004. At that time, she said she did not know him very well, but started to get to know him better in 2006.

60. She recalled that in 2006, she was trying to cope with some difficult family issues about which she was quite emotional. She began to talk to DM about them during breaks at rehearsals.

61. She exchanged mobile phone numbers with him and they communicated via text messages.

62. She recalled that in 2007, during their conversations, she said to DM that she was dealing with stress and he suggested to her that one way of relieving stress was to use a vibrator. She said he had spoken to her again about getting her a vibrator to relieve her stress.

63. In June 2007, she said that DM gave her a purple vibrator as a gift in a car park of a Scout Hall. She said that after she had received the vibrator, she received frequent text messages from him about the vibrator and whether she was using it. She did not respond at first, however, she did eventually, though she could not recall what her response was. She did not hear from him for a few weeks.

64. DM then initiated contact via text messages to her phone. C3 recalled him asking if she was still using the vibrator. She did not respond. She said he sent another text message to her asking her to take a naked photograph of herself and send it to him. She was unsure when she received this text message, but accepted it was probably in August 2007.

65. She said she responded to DM's text message with a photograph of her breasts which she took with the camera on her mobile telephone. She did think she sent a message with the picture and does not recall receiving a response.

66. In cross examination, C3 confirmed that at the time of sending the picture DM was being very supportive of her and she had no doubt his concern and support was genuine.

67. She said that she saw the photograph that she took of her naked breasts before she sent it to DM and that she deleted it straight away after that.

68. She also agreed that she wrote a letter to DM after The Gang Show in August or September 2007. The letter was tendered

Thank you so much for all that you have done for me during our time at Gangshow as well as out of it! I will always remember what you have told me and all the things that you did to make me feel a lot better about myself!

Its good to know that I have someone older to talk to who has been through some of the same things as me and it helps a lot! I guess I have had some many troubles in my life that at first it was hard to talk to you about what was going on, but you are different and one of the people that I will always trust no matter what!!

I hope that we can have a friendship out of Gangshow!

70. She agreed also that in late 2007, she was in a relationship with W1 and in October 2007 they made 718 telephone calls and text messages to each other and in November 1220 calls and text messages. She was not shown the photograph of her which was subsequently shown to WI

(c) Detective Senior Constable Michael David Harris

71. Detective Senior Constable Michael David Harris was the informant and gave evidence.

72. He recalled that he was present when a search warrant was executed on DM's home and that a member from the AFP Computer Forensics Team was then present.

73. He confirmed that a number of CD's were found. The contents of these CD's were downloaded and on it were 16 naked images of C2 considered to be child pornography. Those images were downloaded onto a separate disc and tendered (Exhibit D and E).

74. Detective Senior Constable Harris confirmed that during the course of the investigation, DM provided him with the details of his laptop and his login and passwords for his email addresses and MSN Online Messenger Service. Those details were tendered (Exhibit F).

75. Detective Senior Constable Harris said that he used a laptop at police premises to access DM's email account using the login and password information provided by DM.

76. He conducted a number of searches within DM's email inbox and located email exchanges between DM and C2. One of these email exchanges was printed out and was tendered (Exhibit G). It is the email referred to above (at [17]).

77. Detective Senior Constable Harris also identified 13 photographs taken during the execution of the search warrant as being of DM's car, the inside of his bedroom, CD cases and CD's, his laptop, credit card and his desk and the network router for the internet which was used by family members. Those photographs were tendered (Exhibit H).

78. In cross examination, Detective Senior Constable Harris confirmed that there were a number of different computers in use in DM's premises (by different persons resident in the house) that all shared a common internet connection.

79. Detective Senior Constable Harris confirmed that DM was asked about who had access to and used his laptop and he replied, "Anybody in this house can use my laptop. I take my laptop with me to things, friend's place's wherever". He went on to say, "Up until recently I have never password protected it, alright, so anyone ...".

80. Detective Senior Constable Harris also confirmed that police had investigated other computers in the house and found some questionable material on computers not in DM's room.

81. He confirmed that the pictures of C2 were found on the hard drive of DM's computer which was seized. He also said that the emails he located, including both text and pictures, could be forwarded to another computer .

82. In re-examination, Detective Senior Constable Harris said that no material of interest was located on a computer owned by W1.

83. W1 said that in 2006 he was residing in the same home as DM.

84. He confirmed that he knew C1, C2 and C3 and that he had met each of them through Scouts ACT. He said he had contact with each complainant outside of scouting, via MSN chat logs, mobile phone and in person and was still in contact, at least with C1.

85. He confirmed that he had a relationship with C3 that lasted from October 2007 to 26 January 2008 and that he would contact her fairly regularly via text messages and telephone calls. He denied that he had ever asked her to send naked photographs of her to him. Despite that, he did identify photographs of C3 naked in which his hand appeared (see [100] below).

86. He recalled that from 2003, there were three computers in the house. Only one was connected to the internet. DM kept his computer in his room; the one connected to the internet was initially in the family room and then moved to the lounge room; he, W1, kept his computer in his room.

87. W1 explained that the internet network that was installed meant that folders and material could be shared and accessed by others through their computer if the material was set up to be shared. He said he did not think he had any material on his computer which he allowed to be shared. He could not recall whether DM had any material on his computer which he allowed to be shared.

88. W1 further explained that his computer was not password protected and neither was the other computer.

89. He said he did access music material, through the internet network, on DM's computer because he had a larger music collection on his computer. He explained that he would access DM's music by opening the folder where the music was located and copy the music onto a CD. He said he would sometimes tell DM that he accessed his computer to download music.

90. He recalled that this occurred in 2004, 2005 and 2006 but was unsure how often.

91. Mr C Todd, the Crown prosecutor, asked W1 about a particular occasion on New Years Eve of 2006-2007 when he said he downloaded music from DM's music files.

92. He explained that he was at home on New Year's Eve 2006-2007 and that he accessed music files on DM's then new laptop computer which did not have a password. He explained that he accessed the music files through a folder on the computer and copied the music onto a blank CD he had inserted.

93. He said he was bored and began to browse through files on DM's computer. He found a folder with some pornographic photographs of adults in it. He perused the folder and located another folder which contained naked photographs also. He said he recognised the C2 in the photographs. He recalled that the naked photographs of the C2 were of her masturbating on a bed.

94. He said he was shocked to see the photographs of C2 and shut down DM's computer since his music had finished downloading. He did not do anything in respect of the photographs and he did not speak to anyone about the photographs.

95. W1 recalled that he accessed DM's computer again towards the end of 2007, probably to see if the photographs were still on it. He said the naked photographs of C2 masturbating were still on his computer and that again, he shut it down and did not say anything to anyone about the photographs.

96. He said he did access the computer again after he had heard accusations about DM's conduct to see if the naked photographs of C2 were still there, but they had gone.

97. W1 said that he never asked C2 to send the photographs he found on DM's computer to him and that he never had a physical relationship with C2.

98. W1 said he had never asked C2 to send naked photographs of herself to him and he did not think she had sent any naked photographs of herself to him.

99. In cross examination, W1 was asked whether he had asked C3 to send naked or semi-naked photographs of herself to him and he said he possibly did, but denied taking photographs of him and C3 semi-naked. He also denied that the naked photographs of C2 were taken and sent to him.

100. Despite this, W1 was asked to identify photographs one of which he identified as being of C3 breasts and his hand, which he did. He did not remember if it was on his computer. It was taken at his house. This was a troubling part of his evidence.

101. W1 confirmed that he saw naked photographs of C2 on DM's computer on or around New Years Eve 2006-2007.

102. It was then put to W1 that he was responsible for the production of the photographs, that he placed the photographs on DM's computer and that he was trying to shift the blame to DM. W1 denied these propositions.

103. He maintained that he "definitely saw the [naked photographs of C2 on DM's] computer".

104. In response to suggestion, W1 denied that he was jealous of DM or that he hated DM, but he did say that he thought there was bad blood between them. He admitted preventing DM from getting into his own bedroom by jamming a cable tie into the lock of his door and that he habitually downloaded music from his computer though he had been asked not to do so. He admitted he stole a little bit of money from DM, but denied again that he hated DM.

105. W1 admitted that he had naked photographs of C2 on his computer as well. He agreed that he knew how to set up a shared folder and move material in and out without directly accessing it, but denied that he did so.

106. He was further asked questions about the execution of the search warrant. He knew that up to this time DM's laptop computer was not password protected and was left unattended in his room when he was not at home. He accepted that at the time he was unemployed and at home during this time for about half the time.

107. In reply, W1 said that the naked photographs of C2 which were on his computer had been taken by him from DM's computer.

108. W2, the mother of C2, confirmed that her daughter was a member of Scouts ACT and that her daughter was involved in The Gang Show in 2006. She also confirmed that in the course of the production of the stage show, her daughter met DM and that she had met him briefly in passing.

109. She recalled that in November 2007 her daughter approached her after dinner and said "I've got something to tell you". She said her daughter appeared "quite distressed and upset" when telling her what she had to say and that she was also upset and distressed at what her daughter had told her.

110. She said her daughter had asked her to call the Assistant Commissioner of the Scouts, which she did, and the next day, she went with her daughter to the Woden Police Station. W2 was not cross-examined.

111. Mr Scott Rees, a Computer Forensic Examiner with the Australian Federal Police, was examined.

112. He had appropriate university and professional qualifications. He described his position as a Computer Forensic Examiner as one where he examines electronic evidence that is submitted to him. He added that, depending on the type of evidence, he can facilitate access to any data that may have been stored on a computer or relevant accessories and identify the author of the data and when, where and how the data was stored.

113. He confirmed that Detective Senior Constable Harris had tasked him to examine and provide a report about a computer hard drive and other unspecified items that belonged to DM. He also confirmed that he had not examined W1's computer but that the other computer was examined at the scene during the execution of the search warrant. W1's computer was not examined. The report of Mr Rees was not tendered.

114. Mr Rees described his method of examining electronic evidence. First, he takes a copy of the seized item without altering any of the evidential data on it. He then processes the evidence to make it available for further examination.

115. During the examination, he then looks at the areas identified as of interest, which have been bookmarked to determine the location, which can provide further information, such as to see who had access to it.

116. In doing this, he makes an overall examination of the computer by examining the operating system installed, accounts on the computer, passwords on the computer, the creation, access, movement, storage and deletion of files.

117. Mr Rees confirmed that Detective Senior Constable Harris had identified data for further examination and comment by Computer Forensic examiners. Some of the data identified by Detective Senior Constable Harris related to naked photographs of C2.

118. Mr Rees also confirmed that an investigation was conducted as to where that data was stored on the computer hard drive.

119. He said the location where the data was stored was not, in his experience, a common location for data to be stored. He confirmed, firstly, that the storage of the data in that particular location does not happen by default as the user would have to "consciously select that directory, create that folder and then direct the image to be saved there" and, secondly, that it suggests that an individual wants to hide the data.

120. The pictures of C2 were found on the computer of DM in thumbnail format. The original, larger size pictures were no longer retained and could not be located. Whether they had been converted to thumbnail size or removed could not be ascertained.

121. He explained that a user of a computer can mark a file or folder as hidden which will result in the data being hidden from view of any user of that computer. It required a conscious decision of the user of the computer to store the data in that location. It was intended to be hidden.

122. However, he said that it is still possible for users to locate a hidden file or folder if the user knows how to do so in the computer operating system or if a user had prior knowledge of the file or folders and could type in the relevant path to locate the file. Thus, as he explained it, the program was not part of the ordinary commercial programs, but it was not complicated to operate.

123. In relation to DM's computer at the time of seizure, Mr Rees said the function to enable users to view hidden files was turned off.

124. Mr Rees was shown an exhibit photograph of an internet router at DM's house and explained that an internet router provides access to the internet and can allow more than one computer to be able to use a single internet connection and that it can provide interconnectivity between the computers.

125. He said he did not examine whether there was interconnectivity between the computers in DM's house but he did admit in cross-examination that there was a local area network and a wireless local area network between the computers.

126. Mr Rees was asked about the thumbnails which showed C2 with the vibrator and he confirmed that they were created on 19 January 2007. That, he added, did not say when they had been first downloaded on to DM's computer but only when the thumbnail drive was initiated.

At a glance

Court

Decision date

Before

Source

Judgment (336 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (4)