R v SLD [2024] NSWDC 480 | Case summary

R v SLD [2024] NSWDC 480 | Case summary | Zoe

General directions

In compliance with s 133(2) and (3) of the CPA, and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.
As the accused has pleaded not guilty and elected trial by judge alone, it is my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of the charges and return my verdict according to the evidence. I have taken into account the submissions on behalf of the Crown and counsel for the accused. However, I note that in no sense are those submissions evidence in the trial.
I must direct myself on the onus of proof. This is a very important direction. This is a criminal trial of the most serious nature and the burden of proof of guilt of the accused is placed on the Crown. The onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I remind myself that suspicion is not a substitute for proof beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charges beyond reasonable doubt, the accused must be found not guilty of the relevant counts on the indictment.
The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, after considering the evidence and submissions for the Crown and counsel for the accused, I am not satisfied that the Crown has established any one of the essential ingredients or elements beyond reasonable doubt then it is my duty to return a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient or element, even though I feel that he may be guilty, the accused is entitled to the benefit of any reasonable doubt, and I must find him not guilty. However, I also remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charges.
I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge that I have very important matters to decide in this case - important not only to the accused but also to the whole community. I must, as the judge of the facts, act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgement. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.
I note that in relation to accepting the evidence of any witness I am not obliged to accept the whole of the evidence of any such witness. I may, if I think fit, accept part or reject part of the evidence of a witness. I remind myself that I may, in my role as the judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such an inference is the only reasonable inference that can properly be drawn from the proven facts.
I note that the accused did not exercise his right to silence when spoken to by police at Bulli shortly after the alleged incidences. The accused was arrested shortly thereafter. It appears that the accused did not participate in any further conversations with police thereafter. I am unaware as to whether the police simply did not ask him any further questions or whether he declined to speak to police. In any event, I note that if he did exercise his right to silence he was doing what each and every member of our community is entitled to do and despite not knowing whether he exercised his right to silence or not. I will draw no inference against the accused for doing what the law entitles him to do.
The Crown alleges that the accused committed three offences on 24 October 2023. I must consider each individual count separately with reference to the evidence that is relevant to it. I must not take a global approach and conclude that because the accused is found guilty or not guilty of one of the counts, he must therefore as a matter of course be guilty or not guilty of any other count.
There is no legal requirement that the verdicts be the same. I am permitted to find the accused guilty of one offence and not guilty of any of the other offences if there is a logical reason for doing so. If I was to find the accused not guilty on any of the counts, particularly if that was because I had doubts about the reliability of Lucas Clark, the Community Corrections Officer who gave evidence with respect to each of the counts, I would have to consider how that conclusion affected my consideration of the remaining counts.
The Crown seeks to prove the guilt of the accused for count 1 almost entirely on the evidence of Lucas Clark. With respect to count 3 the Crown seeks to rely in part on the evidence of Lucas Clark. Unless I was satisfied beyond reasonable doubt that he is both an honest and accurate witness in the account he has given, particularly with respect to count 1, I could not find the accused guilty of that count. Before I can convict the accused, I must examine his evidence very carefully to satisfy myself that I can safely act upon his evidence to the high standard required in a criminal trial. In considering his evidence, and whether it satisfies me of the accused's guilt beyond reasonable doubt, I should look to see if his evidence is supported by other evidence.
The accused has not given evidence in his case. I remind myself that an accused person may, by giving evidence or call other evidence, make a response to the case presented by the Crown by way of an explanation for the whole or part of the Crown case, but there is no obligation to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged. I acknowledge that the accused bears no onus and that he is presumed to be innocent unless and until I am satisfied beyond reasonable doubt by the Crown that he is guilty of each of the counts. Whilst the accused may give evidence in relation to the whole or any part of the Crown case by way of explanation for it, or by way of additional matters which he may wish to raise, he may equally elect to give no such explanation nor call any evidence in that regard. Accordingly, the accused is entitled to say nothing and make the Crown prove his guilt. I note that the right to silence and the presumption of innocence that all members of our community enjoy would be utterly meaningless if it were otherwise.
Accordingly, the accused's silence in court and election to not call evidence cannot be used against him. The accused's election not to offer an explanation of the whole or any part of the Crown case by giving evidence, or calling evidence, constitutes no admission by him and I must not draw any such inference from that fact. Further, I must not use his election to plug or fill gaps in the evidence tendered by the Crown and I cannot use it as to the weight to be given to evidence in assessing whether the Crown has proved its case beyond reasonable doubt. I remind myself that there may be many reasons why an accused person would elect not to give evidence. I must not speculate as to what those reasons are or what the accused may have said if he had given evidence.

[6]

Lucas Clark

At the time of the alleged offending in October 2023 Lucas Clark was employed as a Senior Community Corrections Officer at Wollongong Community Corrections.
On 24 October 2023 he was at Bulli Beach with his family when he noticed the accused, wearing an electronic monitoring anklet, walking north towards the ocean pools. He observed the accused walk towards what he described as a kiddie's pool which formed part of the beach. He observed the accused approach a woman wearing a multicoloured swimsuit who was with her naked infant daughter in the pool. The mother was 'right on top' of her child ('within 50 centimetres').
Whilst Mr Clark gave evidence that when he first saw the accused he was approximately four to five metres away him, he conceded in cross-examination that by the time the accused reached the kiddie's pool it was closer to ten metres of distance between them. Mr Clark described seeing the accused walk to within one metre of the woman with her daughter. Whilst he claimed in evidence that there appeared to be a conversation, he could not hear it. In effect, Mr Clark stated that whilst he could see the lips moving of the mother, the accused had his back to him and accordingly he was unable to make any observation of whether the accused said anything.
However, Mr Clark stated that he observed the accused "motion" towards them with "an arm or a body movement". He indicated that the accused moved his arm right arm forward. Mr Clark observed the female then cradle the child and walked north away from the accused. He did not hear the child say anything and indeed denied seeing the child's lips move. Mr Clark denied that he was mistaken about observing the accused approach the woman and child in the kiddie's pool.
Mr Clark then observed the accused walk towards an outdoor shower that was adjacent to the surf club where a mother and her daughter were showering. He believed the mother was wearing a bright blue bikini and the child had bottom bathers on. The mother was washing sand from the child underneath the shower. He observed the accused speak to the mother whilst motioning in a non-threatening manner towards the child. At this time the accused was sufficiently close to be able to touch the child. Following a brief exchange the woman picked up the child and moved away from the shower area. Mr Clark denied seeing the accused wash sand from his feet using the shower.
Mr Clark then observed the accused, who was in the company of another male, walk up a path between the surf club and the café. He followed the accused and the accompanying male as they walked across a cul-de-sac to a pavilion area positioned within the park. He observed a woman sitting in the gazebo feeding a child. Mr Clark positioned himself in an adjacent section of the gazebo separate to the one occupied by the mother. He was unable to recall any animals being present and in cross-examination had no recollection of a dog being present.
Mr Clark gave evidence that he observed the accused walk directly to the woman, asking her whether she came to the beach often. He overheard the accused tell the woman that he had just been released from gaol and had been at the beach once or twice. He observed the woman "shield" the baby at which time he decided to intervene. Mr Clark introduced himself to the accused as a Community Corrections Officer and alleged that he had been watching the accused and believed he was on parole or similar. He told the accused that he had watched him approach three separate women with children and to engage in conversations with them. He said to the accused "you know you can't do that". The accused provided his name and "MIN" number in response to a request of Mr Clark. The accused however denied that he had done anything wrong.
Mr Clark had a separate conversation with the male accompanying the accused who identified himself as his carer. When Mr Clark asked the carer if he would consider the accused's behaviour towards women and children was appropriate, he was told that the accused was trying to get a girlfriend and that he approached a lot of women and kids to ask them questions. When further challenged, the carer allegedly acknowledged that he should have been watching the accused more closely. Mr Clark denied that during his contact with the woman located in the gazebo that the accused patted a dog who was in her company.

[8]

Kevin Vongvixay

Mr Vongvixay was a disability support worker who had been working with the accused in the weeks prior to 24 October 2023. On that day, he attended Bulli Beach with the accused for the recreational activity of fishing. After undertaking that activity in various locations, they returned the fishing rods to the car and walked to the shower area to wash off sand. This was in the vicinity of the surf lifesaving club. Mr Vongvixay stated that as they made their way down towards the shower area there was a mother with a child, so they did not approach further.
The pair then walked away from that area towards the pools. Mr Vongvixay denied that that the accused walked onto the sand and to the kiddie's pool. Instead, his evidence was that as they approached the pool they observed there were children there so they stopped and turned around. He estimated that this occurred approximately 15 to 20 metres from the pool.
When pressed whether the accused did walk to the edge of the pool Mr Vongvixay said: - "I'm not confident with agreeing with that. I don't believe he did, but at the same time, I don't recall. … I just don't recall 100 percent that day but I am, I am confident he didn't go, he go over there and talk to, at the pool. … I don't think we ever got that far …. We didn't get that far. We never walked up to the pool."
He did not accept the proposition that the accused walked to the pool and approached a mother with a child.
Instead, Mr Vongvixay said that they took a "moment to breathe" before turning around and walking back towards the direction of the shower. He watched the accused, within one to two metres, as he washed off at the tap. At the same time there was a mother and child who had finished washing up and were getting ready to leave. The child was dressed at this time. He recalled the accused having a conversation with the mother in relation to chickenpox and that the mother indicated that they were mosquito bites.
Mr Vongvixay was unsure whether there was further conversation between the accused and the mother, although he did not deny it as a possibility. However, the conversation was directed at the mother, and the child at no time spoke.
After the exchange at the shower, Mr Vongvixay and the accused walked in the direction of the car park. Initially his evidence was that they sat "to take a break" at the gazebo area where there was a lady with a dog. In cross examination Mr Vongvixay was taken to his written notes from that day in which he indicated that they were walking towards the car when the accused approached a woman and her dog to ask if he could pat the dog. When questioned by the court as to his earlier evidence that they had stopped at the gazebo to take a break, Mr Vongvixay suggested that there were in fact two reasons for stopping at that location. He gave the following evidence: - "Q. So did you find yourself at the gazebo because the accused wanted to pat the dog or because you wanted to take a break? A. I'd say both. Q. Well when you gave evidence before about stopping at the gazebo, you simply said that you stopped there to take a break; did you stop there to take a break or did you stop there because the accused wanted to pat the dog? A. Pat, pat the dog would be my answer. Q. Sorry? A. He, he wanted to pat the dog, so that's why we approached there. Q. The gazebo? A. Yeah. Q. Well why did you say before that the reason why you approached the gazebo or stopped there was to take a break? A. So I'm unsure. "
He insisted that the lady had a dog although he had no recollection that she was cradling a child. As to any recollection of seeing a child, Mr Vongvixay gave the following evidence: - "Q. I'm suggesting to you that the lady was bottle feeding a child at that gazebo when you were there? A. Okay, could be possible because I wouldn't have seen in her arms. HIS HONOUR Q. Sorry, was the dog with the lady? A. Yeah, so the dog was like down by the side, like on the ground, and if she did have a child I probably would not have seen her like holding it in her arms, so Q. But were you looking at the lady? A. I saw the lady and the dog but I didn't see the child. Q. I'm sorry I just don't understand, if you're looking at the lady why do you say you wouldn't have seen if the lady had a child in her arms? A. Yeah because I, I just didn't see a child there." … HIS HONOUR Q. Sorry, so you can recall, specifically recall this lady physically turning away from the accused, is that right? A. Yes. Q. So you can picture that in your mind now, seeing this lady turn away from the accused? A. Yeah. Q. Do you say even recalling that you have no recall of the lady having a child in her arms? A. Yes, I didn't know she had a child at all. Q. Or you can't recall it, is that as I understand what you say? A. I'm pretty certain she didn't but I just didn't see that she had a kid."
Mr Vongvixay gave evidence that the accused engaged in a conversation with the lady in which he informed her that he had just been released from gaol.
He was asked various questions as to his contact with the accused following his arrest and return to custody. He ultimately conceded that he may have visited the accused in custody on four occasions, although initially he suggested it was only three. He further conceded that there were separate communications with the accused by phone and messages.
Mr Vongvixay suggested that the initial contact with the accused in custody related to arrangements for his lawyers. However, his explanation for further visits was somewhat vague and noncommittal. He denied visiting the accused in his capacity as a friend despite the Corrective Services' records to this effect. He conceded that he may have told Corrective Services he was visiting in his capacity as a friend although denied this was in fact the case. He was unable to explain why he may have told corrective services this fact. However, Mr Vongvixay insisted that each visit and contact with the accused was at the direction or instruction of his manager and he was doing so in his capacity as a support worker.
In cross examination, Mr Vongvixay conceded that he accompanied the accused to various locations including a game centre, Campbelltown library and a recreational facility. On these occasions it was not unusual to be in a space where people under the age of 18 were also present. He further conceded that the accused regularly approached women to ask them on dates whilst in the community.
In the days prior to his arrest Mr Vongvixay's notes recorded that the accused would only "hit on women" after a small conversation with them if he felt it appropriate. Further, that the accused had improved his behaviour when talking to women and would have "proper conversation and gauge if it was appropriate to follow up with asking them out". Further, on the day prior to his arrest, Mr Vongvixay recorded that again the accused had shown progress and improvements over his behaviour when talking to women in public. He now had a "slight understanding" that it was appropriate to ask someone's number "after he has a short brief interaction with them, as before he would always ask and got a lot of negative responses."
There were further notes relating to the accused's interest in dogs and conversations with at least two women about their dogs. He had mentioned that at some stage he would like a dog of his own.
Mr Vongvixay indicated that on the day of his arrest the accused at times was in a state of distress when confronted at Bulli Beach with naked children. Further, he avoided an area where it was apparent that schoolchildren on an excursion would be present.
When questioned as to the respective locations of the woman with her dog and the accused within the gazebo, Mr Vongvixay gave evidence which was inconsistent and confusing.

[9]

Keelie Beckman-Dodds

Keelie Beckman-Dodds was employed as front of house staff of the Bulli Beach Café and was working in that capacity on 24 October 2023. At about 11:20am, she was sitting at a table within the café on her break when the accused approached. In the absence of any initial pleasantries, the accused simply asked Ms Beckman-Dodds whether she was old enough to date. When she responded she was 25, the accused indicated that she looked "incredibly young". The accused then disclosed that he had been released from prison where he had been incarcerated from the age of 13 to 36. He then disclosed that he was a virgin and was looking to date or to lose his virginity. Ms Beckman-Dodds told the accused that she liked girls in response to the accused asking her on a date.
The accused told Ms Beckman-Dodds that he was socially awkward from being imprisoned for so long and was not sure how to talk to people. When asked whether she was there with her partner Ms Beckman-Dodds said that she was on a break, in circumstances where she worked at the café. The conversation then ended as she was nearing the end of her break and she returned to work.
Ms Beckman-Dodds was shown CCTV footage from the café which depicted the accused talking to Ms Beckman-Dodds over several minutes. There was further CCTV footage from another part of the café which clearly demonstrated that there was a period when the accused was not within the line of sight of Mr Vongvixay.
Ms Beckman-Dodds later observed the accused approach and speak to young women with prams and another male. She then saw the accused interact with a woman with a pram either at or at least in the vicinity of the gazebo. She recalled that there was a child next to her as well as a child in the pram. She also recalled seeing a black dog with the woman. After an interaction between the accused and that woman, she then observed a person she described as another male (presumably Lucas Clark) approach the accused and engage with him.

[10]

Acting Sergeant Christopher Milson

Acting Sergeant Milson attended Bulli Beach in the company of other police on 24 October 2023.
Several body worn camera videos recording conversations between police and the accused were exhibited and played.
The accused repeatedly told police that he was not a paedophile. He acknowledged that he could not have access to children or be around children. He claimed that when he saw naked children he immediately left the area where they were located. With respect to count 1, the accused told police that he walked down to the beach because there was a woman there he "wanted to try and pick up". However, as he went to approach the lady he saw that she had a ring on her finger so "just decided not to, no point". Later in the same conversation the accused again stated, with respect to the allegations in count 1, that there was a woman he wanted to approach and did not know if she was married or not. He then saw she had a ring on a finger so did not approach and continued walking. He had deliberately avoided the shower area on an occasion when a naked girl was present with her mother. The accused acknowledged that he was not permitted to attend public spaces which were dedicated children's areas.
A series of recorded audio calls between the accused and his DSO, Jamie Burton, during the accused's incarceration in March and April 2024 were played. Mr Burton confirmed with the accused that the effect of the supervision order had been explained to him in detail.
The accused consistently denied that he had breached the ESO whilst at Bulli Beach. The accused again maintained in the recorded calls that he avoided being around naked children. He had previously stated that he would not follow the conditions of the order which he did not think were appropriate. The accused understood that he was not permitted to approach children but did not see anything wrong with talking to mothers if he did not have any direct association or conversation with children.
Consistent with what he told police, the accused claimed that he avoided specific situations at Bulli Beach where children were naked. He consistently maintained that at no time did he approach any of the children directly but rather engaged with their mothers. With respect to count 3, the accused told Mr Burton that he had approached the mother with a baby in her arms but only because she had a dog and he wanted to pat the dog. In the final recorded call, the accused said: - "If I wanted to breach, I wouldn't be breaching against fucking children in the car park. … If I was to breach, I would go up to the fucking, you know. 13-year-old or a fucking 15-year-old or fucking 17-year-old".

[11]

Count 1

The Crown contended that the evidence of Lucas Clark would be accepted concerning count 1. In particular the Court would accept that the accused walked directly towards the kiddie's pool, stepped over the concrete hob and entered the pool, moving directly into the personal space of a woman wearing a multicoloured swimsuit who was with her naked infant daughter in the pool. The Crown contended that Mr Clark gave clear and consistent evidence from the perspective of someone who was trained and had experience in the monitoring of people. He made appropriate concessions at times which spoke to his credibility, and he would be accepted as a truthful and reliable witness. His evidence as to Mr Vongvixay failing to watch the accused always was consistent with the CCTV footage from the café.
The Crown quite properly conceded that with respect to count 1 I need to be satisfied beyond reasonable doubt that Lucas Clark is both an honest and accurate witness in the account he has given. It is necessary for the Court to examine his evidence very carefully so as to satisfy itself that it can safely act upon his evidence to the high standard required in a criminal trial.
This was in the context of the accused denying that he approached to within approximately one metre and interacted with the unidentified mother in the multicoloured swimsuit. The accused denied doing so when spoken to by police on the day of his arrest. Lucas Clark was directly challenged on his evidence in this respect, it being suggested that the accused did not move to within one metre of the mother, nor did he interact with her.
In considering Lucas Clark's evidence and whether it satisfies the accused's guilt, I should look to see if it is supported by other evidence. Whilst I accept that Mr Clark was an honest witness who was doing his best to recall the accused's movements whilst under observation, there were aspects of his evidence which called into question the reliability of his observations on that day.
Mr Clark gave evidence with respect to his observations concerning count 2. His evidence as to the movements and interaction between the accused and Brie Johnson is inconsistent in several respects with the unchallenged evidence of Brie Johnson as follows: - 1. Lucas Clark said that Brie Johnson was with a female child whereas it was Ms Johnson's evidence that she was with her son. 2. Mr Clark's evidence was to the effect that the child with Brie Johnson was wearing bottom bathers whilst at the shower. He gave no evidence that the child at any time was naked. This is to be contrasted with the evidence of Brie Johnson that that she had initially attended the shower area with her naked son. He was showered naked before moving to an area next to the shower where she proceeded to dress him in shorts over a nappy. She gave evidence that it was at this time that the accused approached her, asked about the operation of the shower before the accused proceeded to wash his feet. 3. Mr Clark did not see the accused washing sand from his feet whilst at the shower whereas it was the evidence of Brie Johnson that the accused washed his feet having asked how to operate the foot tap. It was her evidence that the accused then engaged in a conversation with her. 4. Mr Clark gave evidence of observing a conversation between the accused and the mother. He then observed the accused motioning towards the child before the mother picked him up. Mr Clarke then gave the following evidence: - "Q. When she reached in and picked up the child what did you see from there? A. She got away from there. She moved definitely away from the shower. Q. Did you see where she moved away to? A. She moved - if I'm looking at the shower she moved to the left so she's gone towards the path and I guess those pools. Q. When she did that could you see where the accused was? A. He was still there at the same location at that shower but then he went - he turned and approached who I believe is his carer and had a conversation and they walked up between the surf club and the café." 1. However, it was Ms Johnson's evidence that it was the accused who walked away from Ms Johnson and her son having been told that the father of the child was around. Ms Johnson in fact observed the accused walk away whilst she waited for her friend and child to return from the indoor showers.
Further, in several respects the evidence of Lucas Clark with respect to count 3 is inconsistent with other evidence. Mr Clark had no recollection of the lady at the gazebo having a dog. This is despite the evidence of Mr Clark that he followed the accused and Mr Vongvixay to the cabana located within the park. It was his evidence that he sat in an adjacent section of the gazebo before confronting the accused whilst interacting with the mother. Further, it was the evidence of Mr Clark that other than the child she was feeding, he did not recall her having anything else except a bassinet or pram.
However, it was the unchallenged evidence of Keelie Beckman-Dodds that she observed the woman at the gazebo, with whom the accused interacted, had a second child next to her in addition to a pram. Further, it was her unchallenged evidence that there was also a black dog present.
Central to the Crown's case with respect to count 1 is the evidence of Lucas Clark that the accused moved to within one metre of the mother and child located within the kiddie's pool before interacting with her. As previously noted, it was the Crown's submission that Mr Clark would be accepted as a reliable and accurate witness trained and experienced in the monitoring of people. However, as the discussion above demonstrates, other unchallenged evidence calls into question the reliability of his observations whilst monitoring the accused. It is significant that the evidence of Mr Clark, central to the Crown case on count 1, related to observations of what was occurring in the vicinity of 10 metres away. Further, it involved observing the accused whilst facing away from him. The evidence demonstrates that the reliability and accuracy of Mr Clark's evidence when events were unfolding directly in front of him, and at a closer distance, was inaccurate and unreliable in certain respects.
Given the various inconsistencies between the evidence of Lucas Clark and other witnesses set out above, I am not satisfied beyond reasonable doubt as to the accuracy of Mr Clark's evidence upon which the Crown relies with respect to count 1. Given the high criminal standard, I do not consider I can safely act upon his evidence as to count 1.

[13]

Count 3

The Crown fundamentally relies upon the evidence of Lucas Clark with respect to this Count, corroborated to some extent by the observations of Brie Johnson and Keelie Beckman-Dodds. Unlike count 1, the evidence of Lucas Clark as to the accused approaching and having a conversation with the unidentified mother was largely unchallenged. Rather, it was the accused's case that he approached the mother with the intention of patting the dog. Indeed, it was suggested to Mr Clark that the accused did pat a dog that was with the mother.
It was the evidence of Lucas Clark that there was a relatively brief conversation between the accused and the mother before he intervened. The conversation was to the effect that the accused asked the mother whether she came to the beach often, to which the mother replied something to the effect that she liked that particular beach. The accused then said that he had "just got out of jail" and he had been to Bulli Beach twice. It was the evidence Mr Clark that the mother, who was cradling and feeding a baby in her arms, moved to shield the child from the accused. It was at this point that Mr Clark intervened and directly challenged the accused.
The accused relied upon the evidence of Kevin Vongvixay that the approach to the mother was in the context of the accused wanting to pat the dog and this was in fact what he did. I found the evidence of Kevin Vongvixay was generally unreliable. Neither party, during closing submissions, sought to contend to the contrary. Mr Vongvixay's assertion that he had the accused under observation at all times was clearly inconsistent with the CCTV footage of the café. His evidence as to the circumstances in which he communicated with the accused after the incident and whilst in custody was inconsistent and generally unsatisfactory. More particularly, his evidence as to the circumstances in which he and the accused found themselves at the cabana was inconsistent. In those circumstances, his evidence does not assist as to the circumstances in which the accused interacted with the unidentified mother the subject of count 3.
The accused told Jamie Burton in a recorded call on 4 April 2024 that the only reason he approached the mother was to pat her dog. This was in the context of other evidence that the accused had a particular interest in dogs and indeed wished to have a dog someday. This was referred to in the written notes of Kevin Vongvixay. Indeed, according to a written note, on 18 October 2023 the accused conversed with two women about their dogs, mentioning that he wanted a dog someday. Given this was a recorded entry in Mr Vongvixay's written notes six days prior to 23 October 2023, I accept this is an accurate record of the accused's interaction with the two women on that day.
I accept the accused's statement to police that his initial intention when approaching the mother at the cabana was to pat the dog. This is consistent with the accused's apparent interest in dogs and his previous history of conversing with women with respect to this interest.
The presence of a dog was corroborated by the unchallenged evidence of Keelie Beckman-Dodds, which I accept.
I am satisfied beyond reasonable doubt that the accused walked directly to a female sitting in a cabana located within the park depicted in exhibit D. I am satisfied beyond reasonable doubt that the accused walked to within the immediate presence of the mother for the purpose of patting a dog who was with the mother. I am further satisfied beyond reasonable doubt that the accused thereafter engaged in a brief conversation with the mother described in the evidence of Lucas Clark as to attending Bulli Beach and the fact that the accused had only recently been released from jail. Further, I am satisfied beyond reasonable doubt that the accused's conversation was not directed to or in any way about the infant. The conversation was interrupted by reason of the intervention of Lucas Clark.

[14]

The Crown's submissions

The Crown contends that there is no ambiguity as to the meaning of "associate". It is contended that the wording of clause 30, which simply carves out incidental contact, results in an interpretation that all other contact with children is prohibited. The fact that the accused deliberately and intentionally approached a minor in each case establishes that the contact could not have been incidental.
In order to give purpose and effect to the relevant behaviour which it intended to prohibit, considering the definition of "associate" includes distant communication ('not physically proximate'), the Crown contended: - "..it follows that to speak to a child, or about a child in such close proximity, as here alleged, would similarly fall within the confines of the conduct the target of restriction by condition 30".
The Crown referred to the Cambridge Dictionary definition of the verb "associate" which was "to spend time with someone or have some connection with someone or something". It was the Crown's contention that the accused, albeit briefly, spent time with each child by those children being "inextricably linked" to the woman/mother with whom the accused engaged. Further, with respect to count 2, the child was the subject of the dialogue. The accused, it was contended, was "in the company" of the children by reason of their direct presence with the adult. In this context the expression "in company with" should be given its widest possible meaning. Further, the wording of the order must be taken to cover a "very wide field" where interference "of any kind with children or a child" was the risk the focus of the order.
It was contended that emphasis should be placed upon the word "contact" as contained in clause 30 in that given "incidental contact" is excluded, the Crown contended that any other contact no matter how trivial or insubstantial, was sufficient to satisfy the definition of associate.
The Crown ultimately submitted as follows: - "Stated simply, the Crown case is that the accused deliberately and intentionally engaged in conversations with three separate women (Counts 1, 2, and 3) while they were either holding or directly with a child. That is, for a time, he was in company with them, the child, by virtue he was in company with the mother/woman. … Once he places himself (intentionally) in the position in each case, on the evidence in the Crown case, is all that is required. … The child is in each case inextricably linked to the woman (mother, on the evidence, in respect of count 2) to the point that any association with the woman constitutes an association with the child".
The Crown contended that the Court would consider the evidence of Jamie Burton contained in the recorded calls as to his interpretation of the conduct included in the non-association provision.

[15]

The accused's submissions

The accused contended that the order is ambiguous and that the Court should approach its interpretation from this perspective. Ordinary rules of construction should be applied when considering the meaning of the order, although an interpretation which has the effect of abrogating the accused's liberty should only occur with unmistakable and unambiguous language: Coco v The Queen (1994) 179 CLR 427 at 437.
The accused referred to the judgment of Campbell J in Kirkpatrick v Kotis (2004) 62 NSWLR 567, in the context of contempt proceedings, that the Court approaches the question whether an order is ambiguous with the caution appropriate to the type of litigation which could result in a defendant being punished. In effect, if an order is "really not clear, it is unjust for someone to be punished for not obeying it". However, the accused did not contend that the orders were incapable of being followed, given their terms.
It was submitted that the opinion of the accused or Jamie Burton as to the meaning of the order was irrelevant in this context. Contrary to the Crown's contention, more was required than the mere presence of the accused with children. The Court would not accept the Crown's contention that the childrens' mothers were effectively a proxy approach to the children. The accused referred to the Macquarie Dictionary definition of the verb "associate" and that the concept of being in company with a child requires more than simply being in their presence. The definition refers to the concept of connecting and or to keep company.
The accused contended that the evidence established there was no communication or contact with any of the children. Further, with respect to count 2, whilst the terms of the conversation related to the child, it could not be said to be indirectly an attempt to communicate with the child. It was further contended that if the Crown's interpretation was correct an accused could never have a conversation with another adult about their children even in their absence.
It was further contended that given the terms of s 11 of the Act the Supreme Court could have instead imposed a condition that the accused not approach or be within a certain distance of children. Reference was made to the observations of Hoeben CJ at CL in State of NSW v Wilkinson [2020] NSWSC 1813 that associate "means something significantly more than fleeting contact".
Specifically with respect to count 2, the evidence established that there was no contact or communication with the child and that the accused was merely in his presence.
Finally, the accused contended that the Crown had failed to discharge its onus of establishing that the accused had the requisite mens rea. It was contended that the Crown must establish that the accused intended to bring about the constituent elements of the offence, that is the accused intended to "associate" with children.

[16]

Consideration

In Repatriation Commission v Nation (1995) 57 FCR 25 at [33] to [34], Beaumont J (with whom Black CJ and Jenkinson J agreed) said: - "The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury's Laws of England, 4th ed., Vol 26 at 273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda (1955) 1 All ER 762 at 765, 768). A similar approach has been taken in this country. If, as in the case of a "speaking" order (see, e.g., ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 262) its true meaning is "immediately plain", the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty Ltd v Hinch [1985] VicRp 30; (1985) VR 309 at 311-2; cf. Kwikspan Purlin System Pty Ltd v FCT (1986 2 ATC 4602 at 4605; Australian Energy Ltd v Lennard Oil NL (No 2) (1988) 2 Qd R 230 at 232; Sharpe v Goodhew, Drummond J, 11 December 1992, unreported, at 10-12;Australian Securities Commission v Skase, Drummond J, 13 January 1993, unreported, at 16-17). Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has "a plain meaning" (see Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 per Mason J at 352).
The meaning of the order of a Court "is to be derived from the language used, read fairly" and involves an objective analysis absent the objective thought processes of the judge: Laming v Jennings [2018] VSCA 335 at [123].
In the event the language of the orders is ambiguous or susceptible to more than one meaning it is permissible to have regard to extrinsic evidence, relevantly, the reasons for the judgment of the Court: Athens v Randwick City Council [2005] NSWCA 317; [2005] 64 NSWLR 58; Goyal, in the matter of ACN 154 520 199 Pty Ltd (in Liq) [2018] FCA 129; Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 at [81] to [82].
As the respective contentions of the parties demonstrate, the application of the non-association with children order to a particular set of facts is not without its difficulty. Whether it is ambiguous as such is debatable.
Whilst the Crown and the accused accepted that the judgment of the Supreme Court, leading to the ESO (State of New South Wales v SLD [2023] NSWSC 978), was admissible, neither party referred to the judgment in closing addresses. Whilst I have considered the judgment, I am not satisfied that it aids in resolving the question as to the meaning of the ESO.
It appears that the word "associate" in the context in which it is used in the order has not previously been judicially considered. The expression is used in the Crimes (Sentencing Procedure) Act 1999 although it is defined in that Act as "being in company with or to communicate by any means" (being the words used within the definition of associate as contained in the order). The concept of "association" is found in other legislation related to criminals or terrorism (see for example Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW)).
The Crown and the accused referred to dictionary definitions of the verb "associate". As Leeming JA (Beasley P and Emmett AJA agreeing) observed in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [80]: - "Dictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts but will not assist in ascertaining the precise meaning the word bears in a particular context".
It is important not to "make a fortress out of the dictionary": Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [23]. Ultimately, dictionary definitions are no substitute for the interpretive process of ascertaining the legal meaning of a word: Shuetrim at [80].
I do not accept the Crown's submission that the opinion of Jamie Burton as to the meaning of the order is relevant and or admissible to the issue of the meaning of association. It is for the Court to determine the meaning of this term and the opinion of Mr Burton is entirely irrelevant.
The Crown relies upon the Cambridge Dictionary definition whereas the accused relies upon the Macquarie Dictionary definition. Both definitions contemplate something more substantial than merely being in the presence of another. Rather, it requires some form of connection between two people. It is a term which has both qualitative and quantitative elements.
I do not accept the Crown's submission that merely being in the immediate presence or proximity of a child, without more, satisfies the concept of associating with a child as contemplated by the order. There is no issue that the order does not prohibit the accused being in the same room, for example, as a child. Indeed, the evidence is that the accused had been in a retail gaming shop, engaged in the painting of figurines, where children were present and engaged in a similar activity.
I do not accept the Crown's contention that merely speaking to an adult in the presence of a child, even if the conversation does not relate to the child, constitutes associating with the child, as contemplated by the order. Rather, the order requires something qualitatively and quantitatively more, amounting to some form of connection of substance. Accordingly, I do not accept the Crown's submission that conversing with an adult, no matter the content of the conversation, in the presence of a child, is some form of associating with the child by proxy.
It must be acknowledged however that the definition of associate includes "being in company with". Those words must be considered in the context of the very specific prohibition of the order being one of "non-association" with children, which I have determined requires some form of connection between two people. Accordingly, as I have already found, merely being in the presence of a child is insufficient to constitute associating with the child. However, if the conduct of the accused, whilst in the presence of the child, gives rise to something more, resulting in a form of connection to or with the child, this could amount to associating with the child.
As to the accused's reliance on Coco, the ESO in its entirety, fairly read, is intended to significantly restrict the accused's fundamental right for freedom of movement in the community. The objects of the Act under which the orders were made contained in s 3 notes that it provides "for the extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community". The relevant clauses must be read with these objects in mind.

[23]

Element 5

Consistent with my earlier decision, I am not satisfied that the offence is a strict liability offence as contended by the Crown. The accused, in his interactions with police and DSO Jamie Burton, asserted that he did not believe his conduct constituted a breach of the relevant non-association condition. The basis for this belief was the accused's interpretation of the relevant order and his own opinion as to its application.
The accused contended that the Crown had not proven beyond reasonable doubt the specific mental element. In particular, that the accused did not intend to associate with a person whom he knew was under the age of 18. In this respect the accused points to his behaviour on the day including his distress about being around children, his preoccupation with asking women out which aligns with his conduct as to this Count, his immediate denials upon arrival of the police and any subsequent phone calls with Jamie Burton.
However, counsel for the accused conceded during submissions that the mental element the Crown needs to prove is that the accused intentionally carried out the acts which the Court finds constitutes associating with the child. Counsel for the accused conceded that whether the accused intended to breach the order premised upon his own interpretation of the order was irrelevant.
The accused's behaviour, and in particular his distress about being around children generally whilst at Bulli Beach, was a product of his own misunderstanding as to the meaning of the non-association prohibition. There is no issue that the accused could, generally speaking, be in the physical presence of children. No doubt the DSO would have been cognisant of the possibility of children being present when the accused was granted permission to attend the Bulli Beach. Self-evidently, the accused's preoccupation with avoiding children who were naked is of itself irrelevant to the terms of the order, and again was a product of the accused's misunderstanding of the terms of the order. No such distinction is made in the non-association order.
Similarly, the accused's immediate denials upon arrival of police and his subsequent phone calls with Jamie Burton also are consistent with the accused's misunderstanding of the terms of the order. Whilst the Court is required to give itself a Liberato direction, any statements by the accused to the police professing his innocence must be considered in context. Whilst I accept that the accused denied, when talking to police and Jamie Burton, that he had contravened the ESO, these statements were premised upon a fundamental misunderstanding as to the terms of the ESO. As to count 2, the accused did not dispute that his interaction with Brie Johnson was otherwise than in accordance with her unchallenged evidence.
The Crown contends that several statements made by the accused to Jamie Burton in the recorded calls were lies and accordingly the Court should give itself the direction that such lies reflect a consciousness of guilt.
The first alleged lie was in exhibit K where the accused said "That's why whenever I see a naked kid I'm off, whenever I see a kid, I'm off, if I can, I'm fucking out of there". The first statement that he avoided naked children is consistent with other evidence that the accused avoided naked children. I do not accept this was a lie. The second statement must be considered in the context that the accused only approached children who were in the company of their mother. Whilst this statement may not be entirely consistent with the facts as I have found them, I am not satisfied that it reflects a lie as a consciousness of guilt.
The Crown also refers to the accused's statement in exhibit N that he did not approach any of the children. I do not accept this as a lie but rather a fundamental misunderstanding by the accused as to the concept of what it means to approach a child. The final alleged lie is that the accused said to Jamie Burton that nothing he had done involved approaching children. For the same reason I am not satisfied that this statement constitutes a lie.
There is no doubt that the accused was indeed preoccupied with propositioning women with whom he engaged for the purposes of asking them out on a date. His interaction with Keelie Beckman-Dodds is consistent with this purpose. However, the accused's conduct the subject of this count was focused upon the child.
The accused contends that the Court should give itself the inferences direction to the effect that it should be extremely careful about drawing any inference and it is necessary to examine any possible inference to ensure that it is a justifiable inference. Further, that the Court should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
Further that the Court should give itself a circumstantial evidence direction. That the Court must first determine what facts are established by the evidence. It is then necessary to consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of his guilt beyond reasonable doubt. However, if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then before I can convict the accused, I must determine whether there is any reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, then the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt. The drawing of a conclusion from one set of established facts to prove another fact involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. In order for me to be satisfied beyond reasonable doubt of the accused's guilt, the Crown must first persuade me that the inference or conclusion is a reasonable one to draw from the facts established by the evidence. The Crown must prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown contends, then the Crown's circumstantial case has failed.
I have found that the accused freely and voluntarily engaged in a conversation with Brie Johnson which commenced with a query about the operation of the shower. However, I have further found that the accused freely and voluntarily initiated and engaged in a further conversation with Brie Johnson in what would have been obvious to him was in the immediate physical presence of her toddler aged child who, due to his age, was dependant on his mother. I find that the accused deliberately chose in those circumstances to ask questions about the toddler and to comment on the child's physical appearance in circumstances where the accused was unable, in any meaningful manner, to communicate directly with the child.
I am satisfied beyond reasonable doubt that there is no other reasonable inference or conclusion from those facts other than that the accused intentionally engaged with Brie Johnson in a manner that I have found constitutes associating with the child.
Accordingly, I am satisfied beyond reasonable doubt that the accused intentionally associated with the child that he knew was under the age of 18.

R v SLD

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (29 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (19)