R v DM [2010] ACTSC 137

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)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 40E, 40K, 40S(1), 40S(2), 40S(3), Div 4.2B

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

Supreme Court Act 1933 (ACT), ss 68B, 68C

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 Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82

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

Harkin (1989) 38 A Crim R 296,

R v AWC [2003] SASC 416

DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 139

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 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 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 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.

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.

127. In further examination by the Crown, Mr Rees confirmed that DM's computer did have a password at the time it was seized and that the last time the password was changed was 10 December 2007. He was unable to say if the computer had a password before 10 December 2007, or what the password was.

128. He also said that none of the data requested for further examination by Detective Senior Constable Harris was located in the guest account of the computer: all the data was located in DM's account on the computer.

129. In cross examination, Mr Rees agreed that the storing, concealing and movement of files is available to anyone with full access to the computer and if the computer does not have a password, anyone who has access to the computer can add, download and conceal material. Mr Rees also agreed that data accessible to him will not indicate who downloaded, concealed or made a file hidden.

130. Mr Rees also accepted that the fact that there were concealed folders made on 19 January 2007 was only of assistance for confirmation that the images were in existence on 19 January 2007.

131. Mr Rees confirmed that, when examining a file, it did not indicate where the file came from, whether it came from the internet, a CD or a transmission through a wireless network area. Although, he said, there is software available that can identify where a file came from, he was not tasked to do that.

132. The network referred to, Mr Rees said, meant that it was possible to transfer data between the connected computers. When such data is transferred, he said, the receiving computer would receive it in the same format as when it was transmitted, that is, for example, if it was thumbnail protected, it would be received as thumbnail protected. Anyone with basic understanding of computing could undertake such a task.

133. He also said that a user, other than the user who hid the files, would not find the thumbnails from merely browsing on the computer. That user would have to not only go looking for them but have a fair idea that they were there and, indeed, be likely to need specialist software to access them.

134. DM was the only witness called in the defence. His evidence was as follows.

135. He said that he joined Scouts ACT when he was very young and that scouting has been a large part of his life that he is committed to the organisation.

136. He said that he had been a member of The Gang Show since 2000 and that he had been an assistant director in 2006 and 2007, and was made director in 2008. It was when he was director in 2008 that he heard there were allegations made against him and that a complaint had been made about him to Scouts ACT.

137. He said that when the allegations were made he voluntarily stood down from the organisation and later he was formally suspended.

138. By reference to a timeline he had prepared, he said that the Scouts ACT investigation into the allegations began in September 2007 and that he was notified that the investigation had commenced on 28 September 2007. He said he fully co-operated with the investigation.

139. He recalled that on 30 September 2007 he met with the officer appointed by Scouts ACT to conduct the investigation into the allegations. He said that at that meeting he suggested referring the complaints to the police immediately.

140. DM explained that he met C2 in 2006 when she was a member of the 2006 Gang Show. He said he had not become especially close to her in 2006. They had limited contact at this time and contact was generally about scouting or Gang Show matters, including a Jamboree.

141. He denied he met C2 in a car park in January 2007, although it was possible that he had taken his car to that shopping centre at some stage for he had friends who lived in the area. He denied that there had been any sexual contact with her in his car or anywhere else.

142. He said in late February 2007 he was at Cooleman Court in Weston Creek when he did run into C2. He offered her a lift home because it was raining heavily. He denied that this contact was pre-arranged and denied there was any sexual activity that took place. C2 had denied this in cross examination.

143. DM outlined his movements in the December 2006-January 2007 time frame. He said that on 29 December 2006 he left Canberra and arrived in central Victoria for the 2007 Australian Jamboree, a scouting event, which he attended as a scout. He returned to Canberra from the Jamboree at around 10pm on 14 January 2007. During that period of time, he said his laptop was secured to a desk in the ACT contingent headquarters at the Jamboree. He recalled that he took his laptop with him for other ACT contingent members to use "to download photos, access the internet". He said he was "happy to provide my laptop for that service".

144. When he returned to Canberra during January 2007, he said he returned to his employment in a Commonwealth Department. By reference to his work time sheets he said his working hours were between 8am and 6:30pm in January 2007.

145. After he returned from the Jamboree, he said on Saturday 20 January 2007 he attended his aunt's birthday and on Sunday 21 January 2007 he went to see a movie. Over the Australia Day long weekend from Friday 26 January 2007 to 28 January 2007, he attended a wedding of two close friends which was in Canberra. He said he went out for drinks before and after the wedding and at the wedding reception he was the Master of Ceremonies.

146. He could not recollect seeing C2 at any time during January 2007. He did not ask for a recent photograph of any kind from her.

147. He described his car as small with limited leg room, cramped at the front for someone as tall as he was.

148. He said he was unaware that there were any photographs of C2 on his computer prior to the police investigation.

149. DM denied picking up C2 from the shopping centre in April 2007 and driving her to the nominated roadside parking area. He denied that any sexual activity occurred with C2. He also denied buying a vibrator, ever having the green vibrator, as depicted in the photographs of C2, or giving C2 a vibrator.

150. DM said that C3 was experiencing some emotional trauma at the time her knew her and that he offered support and help to her, but he denied ever offering her a vibrator.

151. He also denied ever receiving on his phone or any electronic device he ever owned, any photograph of C3's naked breasts. He denied ever receiving photographs of C3's naked breasts.

152. DM said his laptop was usually kept on or beside his desk in his bedroom and that he left it in his bedroom unless he expected to need it after work. He said that others in the house used it sometimes and that he was aware on a few occasions that W1 had used it, very rarely with his permission.

153. He said that in early 2008, in an attempt to prevent W1 having access to his bedroom, a lock was installed on his door.

154. He recalled that there was no password on the computer or any other restrictions on the computer. This was because "there was no reason I've needed to restrict people's access". He added that,

my laptop was used regularly at scouting events, at Gang Show rehearsals. It sat on a table in the middle of the rehearsal hall...It was where all the data was stored for the show, personal details, staging details, scripts, that sort of thing...As well as my computer, I never stopped anybody playing games on it or just browsing around on it.

155. In cross examination, DM agreed that he knew all the complainants through The Gang Show and that he was aware both C2 and C3 were under 16 years old.

156. He was asked about whether he had any sort of bad feeling towards C2 but denied that and repeated that the allegations that had been made were "a huge shock" to him.

157. He was also asked about whether there had been a 'falling out' with C2 when she was a part of The Gang Show. He recalled that at a gathering of members of The Gang Show after the opening night, he saw C2 kissing another cast member. He said he felt that sort of behaviour was inappropriate and he said he politely said to them, "Please stop doing that". He denied that he chastised her for her behaviour in front of other members of The Gang Show. He could not recall what her response to his request was. This incident was not, however, raised with C2 in cross-examination.

158. DM said that he knew C3 was younger than 16 years old. He accepted that C3 was often upset, vulnerable and that she was having difficulties at home. He agreed that she sought his advice about certain things and that he provided advice to her, although he said "From my perspective, it was not significant amounts of advice".

159. He agreed that C3 wrote and sent him a letter from which it could be concluded she felt he was a confidante for her. He denied using that position to his advantage. He also denied talking to her about relieving her stress by masturbation or using a vibrator. He said she had lied about these allegations.

160. He said that when the investigation by Scouts ACT commenced he was aware of some, but not all of the allegations that had been made against him. It was not until he received a letter from Scouts ACT dated 10 December 2007 outlining all of the allegations and notifying him of his suspension from Scouts ACT that he said he knew the full scope of the allegations against him. However, he said he did not know any of the names of the complainants at that time.

161. DM was questioned about his co-operation with the investigation and he said, "I answered every question I was asked, I offered to volunteer further information". However, he agreed that he did not offer any information regarding the allegations made by C1 and that he did not admit to the possession of child pornography. He said this was because he had not been asked those specific questions.

162. He said he believed that C2 and C3 were lying about him, his behaviour towards them and about sending naked photographs of themselves to his mobile phone or email account, as was W1. He agreed with the Crown's suggestion that there was a conspiracy against him.

163. DM agreed with the propositions that his position as assistant director of The Gang Show put him in a position of power, but he denied any suggestion he used that position of power to take advantage of the complainants (or anyone else).

164. He accepted that he had exchanged email addresses with C2, but denied wanting to take his friendship with her further. He also denied contacting her, wanting to meet her and talking about sexual acts with her.

165. He agreed that there were photographs deemed to be child pornography found on his computer, but he denied ever having those photographs, storing, hiding or deleting the photographs found on his computer. He said he did not remember if the child pornography was hidden and was stored data on a backup disc. He denied the suggestion that after he found out about the allegations, he stored and backed-up child pornography onto a disc and said,

No. What I would have done would have been to destroy my computer and any electronic records. I'm that IT literate that I'm aware that officers such as Mr Rees would be able to extract any piece of information

166. He recalled that on 16 January 2007, he took his computer to a meeting of the Jamboree contingent in the evening. He said he may have used his laptop in the evening.

167. He confirmed that he was computer literate enough to have hidden the child pornography on his computer from others accessing the computer.

168. He also agreed that C2 was so manipulative and vindictive that not only would she lie under oath, but compound that lie by taking police to places where she said sexual activity happened when they did not.

169. He denied each and every allegation by C2. He also denied the allegations with C3.

170. I am not aware of any consideration by the courts of the use to be made of the discs on which the evidence obtained at the Pre-Trial Hearing as given by C2 and C3. In particular, it is not specified in the Miscellaneous Provisions Act exactly how the material is to be used.

171. Thus, s 40S(1) and (3) of the Miscellaneous Provisions Act provides:

(1) The evidence of a witness (including cross-examination and re-examination) given under this division must be recorded as an audiovisual recording.

(3) The audiovisual recording of the witness's evidence must -

(a) be played at the hearing of the sexual offence proceeding for which the pre-trial hearing was held; and

(b) be admitted in evidence as the witness's evidence at the hearing as if the witness gave the evidence at the hearing in person.

172. Section 40S(3)(a) seems to suggest that the playing of the audiovisual recording is the giving of the evidence, but s 40S(3)(b) seems to suggest that the recording is to be admitted as an exhibit. This would accord, for example, with the approach to the electronic record of a police interview, which is usually played in open court but the tape or disc (usually accompanied by a transcript) is admitted as an exhibit.

173. The issue is not of academic importance, for if the audiovisual recording is, in fact, admitted as an exhibit, then it becomes available for inspection and use by the tribunal of fact (whether jury or judge alone) when it retires to consider the verdict.

174. In fact, in this case the audiovisual recording was not actually admitted as an exhibit. It is not clear to me that this breached s 40S(3) but no point was taken by either counsel about that.

175. Of course, if the audiovisual recording is admitted as an exhibit and can be seen by the tribunal of fact, this distorts the effect of the evidence of that witness whose evidence can be replayed and replayed as compared to that of other witnesses whose evidence is not recorded visually. Whether that is to the advantage or prejudice of the evidence given by that witness may vary, but it is a difference between the evidence of that witness and the other evidence in the case.

176. I raised this issue with counsel. Mr J Glissan QC, submitted that I should not look at the audiovisual recording after I retired:

I say to your Honour that the only authority is that the evidence that's received in that way is received in the same way as the evidence of any other witness. That's to say if your Honour were a jury it would be played once to the jury and they would then be able to have a transcript if it was ordered or they would be able to ...

177. Mr C Todd, who appeared to prosecute the trial, did not demur from this approach. He pointed also to s 40K(3) of the Miscellaneous Provisions Act which permits a transcript of an audiovisual recording to be provided to the jury, from which he submitted it could be inferred that the recording itself should not be admitted or given to the jury.

178. On mature reflection, that provision is of little help. In the first place, the reference in s 40K to an audiovisual recording is not to the same audiovisual recording that is referred to in Div 4.2B in which the provisions relating to Pre-Trial Hearings are contained, save for s 40S(2) which is quite specific and does not refer to the audiovisual recording with which I am concerned. See, in particular, the limited definition in s 40E of the Miscellaneous Provisions Act.

179. As the recording was not admitted as an exhibit here, I did not further look at it after the conclusion of the hearing. Its non-admission did not seem to me to breach s 40S(3)(b) as the reference to "must ... be admitted" can only mean "must ... be admitted if tendered" and it was not tendered.

180. I shall leave to another day the resolution of these issues. It seems to me that even were I wrong in deciding that I should not look at the recording, it cannot be said that I was required necessarily to look at the recording if I considered that there was not need to do so in order to come to my decision.

180. Counts 5 to 10 related to C2 and the two alleged occasions of sexual activity with her in DM's car and the sending of the photographs of her naked body, including in one series, with a vibrator, can conveniently be considered together as much depends on the interaction between the evidence on each count.

181. This is in part because much of the prosecution case in respect of these counts depends on the credibility of C2. Mr Glissan QC made a substantial attack on her credibility. Much of it I reject for it seems to me that for a 17 year old to be giving evidence in such a serious matter will inevitably lead to mannerisms (Mr Glissan accused her of smiling or smirking) which are as consistent with nervousness or a reaction to a completely unfamiliar setting and procedure as with lack of credibility.

182. It seems to me that while 15 to 17 years olds may exude a confidence and apparent maturity in their persona, that often cloaks a level of immaturity and uncertainty that leads them to do and say things which are not easily to be assessed using the standards of reasonable adults. On the whole, C2 gave her evidence in a straightforward and credible way.

183. Nevertheless, the centrality and significance of the evidence of C2 means that I should scrutinise her evidence with great care and note any matters that affect its credibility. See R v Murray (1987) 11 NSWLR 12.

184. It is true that there is some apparent corroboration of C2's evidence. This is in the form of the photographs found on DM's computer. There are, however, some problems with that evidence.

185. The evidence is clear that DM's computer was apparently accessible by others at or around the times when the photos were alleged to have been downloaded onto the computer. Indeed, it was unchallenged evidence that W1 had in fact accessed it at around these times. This makes it possible for the photographs to have been put there by someone other than DM.

186. While that raises some doubt, this concern is re-inforced by a number of other matters. The first is that W1 said he first came across these photographs on the computer on New Year's Day 2007. This was not possible for the computer was, at that stage interstate, and not accessible by W1. While this appears primarily to affect the credibility of W1's evidence, it does strengthen the suggestion by Mr Glissan QC that the whole exercise was fabricated, though perhaps not greatly in itself.

187. W1 said that he came across the photographs by casual browsing on the computer. This seems unlikely for the evidence was that the place where the photographs were stored was hidden when they were discovered by the police computer forensic experts, who said that it would be difficult to find them there. I accept that there is a timing gap in that it cannot be certain that the larger (as opposed to thumbnail) photographs were not more evident at the earlier time; the computer forensic expert inspected the computer sometime after 20 December 2007, when the search warrant was executed on DM's house. Nevertheless, it is a circumstance of some quite limited doubt which nevertheless must form part of what I must consider.

188. Perhaps more significantly the photographs themselves were of C2's torso, including her genital area and her breasts. No face was shown. It is difficult to see how W1 could have identified them as photographs of C2 unless he already knew that. Both he and C2 denied anything that might support his fore-knowledge.

189. The most difficult problem for the prosecution is that the photographs included depiction of the vibrator said by C2 to have been given to her at the assignation in DM's car in April 2007. Those photographs, however, were downloaded onto DM's computer no later than 19 January 2007.

190. While the date of that assignation was not an element of the offence and thus I could still find the relevant offences committed even if it had happened at some other time. The materiality of a date depends on the circumstances. See per Crennan J in WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66 (at 109 [156] to [158]).

191. Other circumstances, including C2 placing the assignation during the rehearsals for The Gang Show 2007 and her insistence that it occurred in April, make it clear that it could not have occurred prior to 19 January 2007. She expressly denied having a vibrator in January 2007.

192. This throws considerable doubt about the delivery of the photographs which depict the vibrator (count 10) and this casts doubt upon the alleged assignation and associated sexual activities in April 2007 (counts 7 and 8).

193. In assessing the whole of the evidence on these counts, some other issues have arisen.

194. While I did not have a view of DM's car, it did seem to me that the description of the sexual activity said by C2 to be performed on her by DM was such that it was at least doubtful if it could have been performed in his car as described with her jeans and briefs in the position she stated. Had this stood by itself, it would not have been sufficient to justify a reasonable doubt, especially since I did not have a view, but it was a doubt not precisely addressed by the prosecution and part of all of the circumstances to be taken into account.

195. There were some inconsistencies also in C2's evidence especially with what she had told the police. Again, by themselves these would not be sufficient to raise a reasonable doubt since it is easy, even if one is trying to be truthful, to make some mistakes. The nature and significance of the errors is also a factor to be considered.

196. C2 said to police that she threw the vibrator away the day she was given it. In her evidence, she said she hid it in the back of her wardrobe. In evidence, she said, it was used to make the second set of photographs. This is odd when she was aware, at least after being shown them, of the photographs with the vibrator.

197. Again, while I can imagine that a young girl can be overborne and do apparently voluntarily things that she does not want to do, it is at least odd that, having only, on her evidence, been in DM's car on one prior occasion when she says he engaged in unwelcome sexual activity with her she nevertheless accepted a further invitation to get into his car in exactly the same circumstances. Again, by itself, this could perhaps be overlooked but it is a matter to be taken into account in assessing the whole of the evidence.

198. I heard from W2, C2's mother, and her evidence was supportive of C2 showing that C2 was upset and that, as a result of what she was told, she and her husband went to the police. This is some corroboration of the evidence of C2 but it does not take the matter very far.

199. I was not particularly impressed with the evidence of W1. His manner of giving evidence was not impressive and he clearly had more involvement with the events depicted than he was prepared to admit. His possession of photographs of both C2 and C3 naked was problematic. He was clearly upset at having to give evidence and this made a fair assessment of his evidence a challenge. On the whole, I felt that I could not rely on his evidence unless corroborated by other admitted facts or other evidence.

200. I was not specially impressed with DM's evidence. Whilst I would not necessarily reject it, he was, it seemed to me, somewhat guarded in his answers (perhaps not surprising given the seriousness of the charges he was facing) and more self-serving and dogmatic than suggested to me a confidence I could have in his evidence.

201. As a result of all these matters, I am satisfied that Counts 7, 8 and 10 have not been proved beyond reasonable doubt.

202. Some of these matters are relevant to consideration of the count alleging the first transmission of photographs of her naked body to DM by C2 in December 2006 or January 2007 (count 9) and the first assignation in DM's car (counts 5 and 6). Some are not directly relevant.

203. How an acquittal on some counts affects others has been the subject of some consideration by the courts. It is true, of course, that a court may accept some parts of the evidence of a witness and not others. Nevertheless, if the credibility of a complainant has led to an acquittal on some counts involving that complainant, it may have an effect on the other counts involving that complainant. As Spigelman CJ said in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 (at 98 [64] to [65]):

64. The reasoning in R v RAT, R v Barnett, R v Carbone, R v Dixon and R v S suggests that Jones established the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the court can detect a relevant difference in the quality of the complainant's evidence.

65. In my opinion this is not what the High Court intended. Whether or not the failure of the jury to accept the complainant's version in one respect ought to have led to the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant's evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, the conclusion does not, in my opinion, follow in every such case unless the court is positively satisfied that there is some relevant difference in the quality of the complainant's evidence.

204. In the same case, Wood CJ at CL (at 131 [235]) gave helpful specific examples of whether there may be a specific basis for such differences. None of these differences were present in this case. I found it difficult to separate the two series of offences and saw no special difference in the evidence of C2 that would remove in respect of these counts the doubts that I had in respect of the other counts.

205. An additional factor is the role of W1 in the whole matter. That I could not determine but it left me with real doubts. His evidence also affected these counts as well. It was also quite significant that his hand was admittedly found in a photograph of C3 showing her naked breasts with which he had denied he had been involved.

206. Having scrutinised C2's evidence carefully and taking into account all the matters above, I am left with a reasonable doubt as to counts 5, 6, 7, 8, 9 and 10.

207. The evidence about the one count involving C3 was basically the evidence of C3 and the denial of DM. That is set out above.

208. It was clear that C3 was, in 2006, quite a troubled young lady and DM provided her with support and advice for which she was very grateful. She expressed that and affection for him in the letter I saw when it was tendered. I have no doubt that was genuine.

209. DM expressly denied asking for a photograph of C3 exposing her breasts. Unfortunately, such denial was never put directly to C3 so I was unable to assess her response on that issue.

210. It is true that she was in a relationship with W1. She readily volunteered that information, especially in explaining a very large number of electronic communications between them.

211. The alleged photograph of C3 was not found. Nevertheless, having carefully considered C3's evidence, reading and re-reading the transcript and regarding the way she gave evidence, which was not embellished and appeared to be given in a genuine attempt to be truthful, I accept it as accurate. I have no doubt that DM did seek such a photograph from her and she gave it to him.

212. The challenge by Mr Glissan QC to this count was largely legal. The count was based on an alleged breach of s 66(1) of the Crimes Act 1900 (ACT). That section provides relevantly:

(1) A person must not, using electronic means, suggest to a young person that the young person commit or take part in, or watch someone else committing or taking part in, an act of sexual nature.

(a) for a 1st offence - imprisonment for 5 years; or

(b) for a 2nd or subsequent offence - imprisonment for 10 years.

(4) It is not a defence to a prosecution for an offence against this section that the young person had consented to -

act of a sexual nature means sexual intercourse or an act of indecency;

classified - see the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, dictionary;

pornographic material means material that has been, or is likely to be, classified RC, X or R;

using electronic means means using email, Internet chat rooms, SMS messages and real time audio/video;

(a) C3 was a young person in August 2007 within the meaning of the section;

(b) an SMS message is an electronic means of making a relevant suggestion.

214. On the evidence I accept, DM sent an SMS message to C3 in which he sought that she take a photograph of her with no clothes on and send it to him. She did so.

215. This would contravene the section, subject to the challenge made by Mr Glissan QC, namely that the taking of a photograph of C3's body and breasts is not sufficient to amount to an act of a sexual nature.

216. "Act of a sexual nature" is defined in s 66(6) as noted above (at [212]). It means sexual intercourse or an act of indecency. Clearly no issue of sexual intercourse is relevant here.

217. Mr Glissan QC submitted that a photograph of C3's breasts is not an act of indecency nor is the taking of such a photograph. He submitted that s 64 might be of assistance in construing s 66. I do not find it of assistance.

218. The photograph that was taken was described by C3 when she agreed to the following description:

You told the police that only your top half was in the photograph and it didn't include your face? ... Yes.

219. The meaning of indecency is now well-known. In R v Court [1989] AC 28 (at 42), Lord Ackner said:

The judge in assisting the jury in his summing up as to the meaning of an indecent assault adopted, inter alia, a definition used by Professor Glanville Williams, Textbook of Criminal Law, 2nd ed (1983), p 231: '"indecent' may be defined as 'overtly sexual.'" This is a convenient shorthand expression, since most, but not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may have only sexual undertones. A simpler way of putting the matter to the jury is to ask them to decide whether 'right-minded persons would consider the conduct indecent or not.' It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.

220. This approach has been adopted in Australia. In R v Manson (New South Wales Court Criminal Appeal, Gleeson CJ, Clarke JA, Sully J, 60773/91, 60820/91, 17 February 1993, unreported) Gleeson CJ referred (at 3) to, inter alia, R v Court and then said:

An indecent act is one which right-minded persons would consider to be contrary to community standards of decency. In the New Zealand case to which I have just referred the following was said:

The word indecent has no definite legal meaning and it must be taken therefore in its modern and popular affection. In the Standard Dictionary indecent is defined to be anything that is unbecoming or offensive to common propriety.

If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion.

221. This approach has been followed in this Territory: R v Morton (1998) 143 FLR 268 (at 275); R v Taylor [2010] ACTSC 121 (at [11]).

222. In one of the cases considered by Gleeson CJ in R v Morton, namely Harkin (1989) 38 A Crim R 296, Lee CJ at CL (with whom Wood and Matthews JJ agreed) said (at 301), though of the indecency that may accompany an assault:

It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas.

223. While the common law has moved on with social mores, the approach to the issue here may have some validity.

224. Thus, where the photograph, as here, was merely of C3's breasts and did not even include her face, and where there has been no suggestion of an artistic or other (such as medical) purpose that would negative indecency, it seems to me that the photograph was indecent.

225. The only remaining question is whether the taking of the photograph was an act of indecency.

226. In R v AWL [2003] SASC 416, Debelle J (with whom on this issue Prior and Bleby JJ agreed) held that the taking of a photograph by the appellant of himself naked with his erect penis placed on a pillow was an act of indecency.

227. In DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 139 (at 144-5 [15]) the ACT Court of Appeal implicitly accepted that a man who walked around with his genitals exposed could have been guilty of committing an act of indecency.

228. Finally, in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241, the NSW Court of Criminal Appeal held that a complainant's act of sending to the applicant a photograph of herself naked as an attachment to a text message could constitute an act of indecency.

229. In R v Forsti [2010] ACTSC 85, Gray J held that photographs taken of the complainant did not constitute the relevant offence. This, however, was for quite different reasons. His Honour held that the accused did not "employ" (within the meaning of then s 92NA of the Crimes Act 1900 (ACT)) the complainant for the purpose of the photographs in the relevant sense. His Honour was also not satisfied that the photographs, though "clearly sexual in nature", may reasonably have been taken to record some rash on the complainant's genital area and others his Honour found not to be indecent, though showing the complainant naked. Ultimately, however, his Honour found the accused not guilty because of the finding that the accused did not "employ" the complainant. This case is of no assistance in this case.

230. I have already found the photograph to be indecent. In my view, the act of taking the photograph in these circumstances is an act of indecency.

231. The charge in count 11 is, accordingly, made out.

232. It is convenient to summarise the orders to be made. DM will be discharged on counts 4 and 13 as Notices Declining to Proceed were filed in respect of these counts on 3 November 2010.

233. I will enter verdicts of guilty on counts 1, 2, 3 and 12 on DM's pleas of guilty made on the second day of the trial.

234. I will, in accordance with my findings, enter verdicts of acquittal on counts 5, 6, 7, 8, 9 and 10 and a verdict of guilty on count 11.

I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the defendant: Mr J Glissan QC and Mr J Sabharwal