R v Van Heerden

Category: Principal judgment

Parties: CDPP
Mr Philip Van Heerden

Representation: Counsel:
Crown: Mr S Ginsbourg SC with Mr D Wilcox
Defence: Mr N Funnel
Solicitors:
Crown: Mr B Scard of CDPP
Defence: Mr J Payton of Ryan Payten Le

File Number(s): 2023/238337

JUDGMENT Ex Tempore

1. Earlier today, I directed a verdict to a count on an indictment presented against Philip Van Heerden. That indictment contained 9 counts and by his plea he accepted his responsibility in relation to eight of those counts but pleaded not guilty to count 8.

2. Count 8 is presented pursuant to s 474.24A(1) of the Criminal Code 1995 (Cth) (‘Criminal Code’), and has as its material averment that on or about 20 July 2023 at Zetland, and elsewhere in the State of New South Wales, he did commit an offence contrary to s 474.22(1) of the Criminal Code on three or more separate occasions, and the commission of each offence involved two or more people. There are listed five different offences said to have been committed and the particulars are set out therein.

3. This is an ex tempore decision reflective of argument which has proceeded over about a day on the issue of what, as a matter of law, would constitute “separate occasions.” I will turn to what ultimately occurred in relation to the indictment in a little while, but the offender, as he now is, accused as he was at the time of the consideration of this legal argument in relation to Count 8, has also pleaded guilty to a further count on another indictment featuring further sexual offending.

4. The pleas on the indictment were entered in the presence of the jury. The dates of the counts vary from 24 June 2023 through individual dates and date frames in July 2023. As I have already touched upon, they all involve allegations of offences contrary to s 474.22(1) of the Criminal Code and are various matters to do with child abuse material which is accessed, broadcast or produced.

5. The law part provisions containing the counts on the indictment relate to the use of carriage services for child abuse material. The provision which is the subject of this charge also makes reference to a variety of other provisions and alternative verdicts are available. Those alternative verdicts are available in relation to the charge particulars underpinning count 8. I refer to them, as Counsel did, as the underlying offences.

6. For the purposes of the argument and for the trial, should it have taken place, Counsel for the accused accepted, and as will become apparent, ultimately, the accused, who is now the offender, accepts now that he did commit the underlying offences during the period relied upon in count 8.

7. By reference to para 4 of the defence written submissions, it can be seen that the five alleged offences which are particularised in count 8 occurred over an 81-minute period on the same day. The accused did not dispute the conduct giving rise to the underlying offences or that the commission of the underlying offences involved two or more people. The sole issue before the Court was the proper construction of s 474.24A(1)(a) and whether at least three of those underlying offences occurred on “separate occasions”.

8. I note that pleas of guilty, I am advised from the bar table, had been offered to the Crown at the committal stage along those lines, but had been rejected.

9. I accept that the determination of the question of what constitutes “separate occasions” is a matter of law. That was made quite clear in the case of Tognolini v R [2011] VSCA 113 at para [22].

10. The principal cases upon which the parties relied, and they both relied upon them, are John Morris Kelly v The Queen [2010] NTCCA 8 (‘Kelly’), Tognolini v R [2011] VSCA 113 (‘Tognolini’), and R v Harradine [2019] SASCFC 144 (‘Harradine’).

11. The question raised in Kelly and purported to be resolved therein, and the analysis, has been relied upon in Tognolini and Harradine.

12. At para [19] of Kelly, the Court of Criminal Appeal of the Northern Territory stated:

‘There is nothing in the section or in the expression “three or more occasions” to suggest the legislature intended that any particular period of time or any particular circumstance would constitute an occasion... [T]he word “occasions” within the expression contemplates at least three separate events or occurrences. There would not be more than one occasion if the acts were effectively part of one continuous occurrence. Whether two or more acts defined to constitute an offence of a sexual nature occurred on one or more occasions will always be a matter of fact for the jury to resolve. However, in my view, for more than one act to be described as occurring on a separate occasion, there must be present, at least, a temporal separation or a separation in circumstances between the acts sufficient to warrant such a description.’

13. At para [22] of Tognolini, the Victorian Court of Appeal stated:

‘[W]here two (or more) acts occur, it will not be open as a matter of law to conclude they occurred on separate “occasions” unless there is a clear separation in time or circumstance between those acts.”

14. At para [23], the Court noted:

“[A]s senior counsel for the Crown properly conceded, the sexual acts... took place as part of an unbroken sequence of sexual activity on the final night. This was a single occasion, a single episode. As a matter of law, therefore, the evidence of the individual acts which took place on that night could not have established a s 47A count.”

15. This Commonwealth provision is accepted by the Crown as a penal provision. That has important consequences for the interpretation of the statute and the task of statutory construction which, of course, must begin with the text itself (see Alcan (NT) Alumina Proprietary Limited v Commissioner of Territory Revenue (2009) 239 CLR 27). Regard must also be had to its context and purpose (see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]). If the ordinary meaning that can be suggested by the words is not consistent with the statutory purpose, that meaning must be rejected.

16. In relation to this provision, it creates an offence which attracts a 30 year maximum penalty and now attracts a mandatory minimum term of seven years if the offender is found guilty. Accordingly, I have regard, as I must, to the established principles of statutory interpretation which requires strict construction of a penal statute or an act which affects the personal liberty of the subject, which this self-evidently does.

17. Subsection (1)(a) is directed at conduct and not the legal consequences of that conduct, so whether or not an offender is convicted of an underlying offence is immaterial to the elements of the provision. It is clear, then, that the Parliament has enacted a provision with very significant consequences for an individual so charged, and accordingly, when turning to the question of what constitutes separate occasions I must ensure that I apply the requirement of strict construction. Today I was referred to the case of Monis v The Queen (2013) 249 CLR 92 which explained that notion and assists in understanding and applying a strict consideration of the statutory terms.

18. In addition, I may also have regard to what used to be termed a second reading speech, which is now styled in the Commonwealth legislation as an explanatory memorandum, to the Crime**s Legislation Amendment (Sexual Offences against Children) Bill 2010 which introduced the provision. Both Counsel have cited aspects of that memorandum and I have regard to it as provided to me in their written submissions.

19. In relation to paragraph 14 of the Crown’s submissions, the explanatory memorandum had this to say, and I note emphasis was added by the Crown in their rendition:

“This item will insert a new aggravated offence criminalising using a carriage service for child pornography material or child abuse material (section 474.24A). The Internet has allowed the development of organised, technologically sophisticated rings of child sexual abusers. This, in turn, has caused increased levels of harm to children resulting from the demand created by such large‑scale networks. The new offence will apply where existing child pornography or abuse material offences are committed a number of times, as part of a child pornography network. That is, the offence will require proof that the conduct giving rise to the offence occurs on three or more separate occasions, and involves two or more persons.” (at page 83; emphasis added)

20. Accordingly, it is clear that a course of conduct does not necessarily guarantee a finding of “occasion”. It is the repeated course of conduct, if the course of conduct is itself an occasion, which is required to constitute three or more.

21. Of significance here in this legislation, in my view, is the insertion of the notion of three or more “separate occasions”. I note that the insertion of the word “separate” in this legislation is to be contrasted with its absence in the statute under consideration in Kelly. The legislation under consideration in Kelly merely made reference to “3 or more occasions”.

22. The approach to the question of “three separate occasions”, and its definition, was succinctly articulated in Tognolini, and, as I say, effectively confirmed in the other two cases, that is, there must be “a clear separation in time or circumstance between the acts”: Tognolini at [4]. I interpose that that clear separation can in my view be evident in time and circumstance as well, that is separation in both time and circumstance can occur.

23. I accept that in relation to multiple offences of the same nature, they can only “properly be characterised as separate if they are temporally or circumstantially distinct.” (See Hughes J in Harradine at [85])

24. Hughes J said, in his view, at [90]:

“The analysis of Riley J in Kelly v The Queen, and endorsed in Tognolini v The Queen, provides the most instructive approach to the way in which the term ‘separate occasions’ should be understood to operate within s 53. There must be a temporal separation or a separation in circumstances between acts to describe them as having occurred on separate occasions.”

25. Going further in the explanatory memorandum, the Crown draws my attention to the following on page 84:

“The requirement in paragraph 474.24A(1)(a) that the person must commit the offence on three or more separate occasions will ensure that the aggravated offence will only apply where a person has engaged in a sustained or repeated course of conduct sufficient to warrant the application of a higher penalty.” (emphasis added)

26. Accordingly, there is an evident and important distinction between what is a course of conduct, which may typically feature a number of distinct acts, and the legislative imperative directed at repeated courses of conduct. It would be an error to see a lengthy and varied course of conduct as being, for that reason alone, something which ought to be construed as featuring or evidencing a separate, or a series of separate, occasions.

27. In KRM v The Queen [2001] HCA 11 (‘KRM’), McHugh J said that:

“[T]he prosecution must prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each ‘occasion’. Reference to circumstance or occurrences happening at a particular time is the usual way of identifying or describing an ‘occasion’. In the context of s 47A (which was under consideration in KRM), where it would make no sense to describe the ‘act’ as the occasion and where the date and the exact circumstances need not be proved, the term ‘occasion’ should be understood as referring in a general way to circumstances accompanying the ‘act’.”

28. That is reflected in the Macquarie Dictionary definition of “occasion” being: “A particular time, especially as marked by certain circumstances or occurrences.”

29. In the course of argument again today, I was brought back to KRM and it is important to note that in KRM there was a clear distinction between “acts” and “occasions”. “Occasions” clearly can have a number of different acts. “Occasions” can clearly have a number of different crimes within it. It is important to maintain a focus which does not lead to an analysis which is too microscopic.

30. The offence I am concerned with here has, as its particulars, “Zetland and elsewhere”. The date is on or about 20 July 2023. What is said to have occurred in the particulars are five different instances of transmission in various manners of the child abuse material. The Crown case is that it occurred over a period of about 80 or 81 minutes.

31. The nature of the interaction is, at its heart, colloquially referred to as a group chat within the named “All New Naughty Corner”, an online interaction between various individuals who are a part of a group chat facilitated by the accused here. and evident in the use of “Session” which enables account holders to exchange messages with other users individually (private chat) or other groups of users (group chat).

32. That occurred here as well as breakouts to Whats-App to included chat participants, all during the 80 odd minute group chat. This is drawn from the Agreed Facts (Ex A).

33. The other participants may have been elsewhere than Zetland but their interaction was on the internet and within the group chat.

34. There are what the Crown calls “hiatus” for a period of time. It is quite clear that individuals who are involved in the “All New Naughty Corner” reflected in one way or another the various individuals who are seen to be referred to in the schedule.

35. As I say, the establishment of the group chat was by the accused. He invited two others to participate, then there was a third person as well. The shared conduct involves the exchange of child abuse material by way of various files as well as messaging interactions from time to time reflecting the participants’ sexual appreciation of what was being undertaken in that group chat. It was a shared interest.

36. With greater particularity, the Crown then further relied upon aspects of the group chat and the activities engaged in. Emphasis was placed on the word “separate”, but it seems in the course of argument that it was somewhat independently utilised from the word “occasion”.

37. Whilst there were certainly separate acts, in my view the two words “separate occasion” are to be read together. I am entitled and obliged, when interpreting statutes, to assume parliament was aware of relevant legal constructions to the words deployed to the statute, and I am of the view that, read together, “separate occasions” is calibrated, deliberately, to emphasise the separation of the occasions, purposively and clearly, in order to assist in ensuring that a multiplicity of acts on a distinct occasion, or indeed, a course of conduct on a distinct occasion, which is not repeated, does not attract the offence.

38. By reference to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, Dawson, Toohey, Gummow JJ and Brennan CJ had this to say:

‘[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) use “context” in its widest sense to include such things as the existing state of the law,’

which I have already outlined in the cases,

‘and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.’

And, of course, the memorandum provides a description of the mischief that the statute was intended to remedy.

39. “Separate” includes an adjectival meaning of “separate, disconnected or disjoined, unconnected or distinct, individual, particular”, but, as I say, it has got to be shackled to the other word here, “occasion”. It is submitted by the Crown that the ordinary meaning of “separate occasions” may thus be described as multiple occasions, each of which is disconnected, distinct or individual, by reference to particular circumstances or events.

40. The legislation provides in subs (4) that it is immaterial whether the underlying offence or the conduct constituting the offence is the same on each occasion. The Crown contends that the legislation has a purpose, to capture a criminal course of conduct which consists of multiple and thus individual particular criminal acts, whether the same or of a different character. I agree with that save for an important proviso, that what is required is that such a criminal course of conduct, which may include multiple criminal acts, occurs on separate occasions.

41. It seems to me that the relevant focus here, and with regard to comparable recent legislative courses, for example, s 66EA of the Crimes Act 1900 (NSW) must be on the temporal separation or a separation in circumstances between the acts sufficient to warrant such a description. It must be clearly evident that there is a separation of occasions.

42. As is evident from the facts of the cases where sexual offending is the focus, say, for example, relationship offences featuring numerous instances of breaches of the law reliant upon a number of sexual acts to constitute an illegal relationship, it is clear that a course of sexual misconduct at a time in a place can comfortably fulfill the definition of a single occurrence.

43. It is also quite evident that a number of criminal sexual acts can typically occur in sexual offending which do not transform an occasion into a number of occasions merely for that reason. That is reflected in human experience and in the case law too.

44. For example, a sexual crime featuring a series of sexual acts perpetrated over a period of time on the same complainant, typically but not always in the same location as in a detain for advantage using a vehicle or without consent in a house or nightclub. The period of time would encapsulate the acts and frame the crime as a particular. It could be a matter of hours or even days if it was continuing or a course of conduct. Obviously, the separation of those acts by some temporal interdiction would be of significance, e.g. on one day and then a different non-consecutive day or a different week or a different month but not necessarily determinative.

45. It seems to me that in the context of a group interaction, in time and place a “group chat”, on the internet involving the exchange of child abuse material between likeminded participants who are involved in that chat for that purpose, does not necessarily or inevitably transform the occasion of that group chat in its subgroup instances and despite there being many acts of sharing of illicit material, into a series of occasions.

46. Indeed, it might be comfortably thought that common English parlance would ensure that what occurs on such group chat occasions is the very interactions that are evident here, and they are inherent in what is an “occasion”. In any event, the use of the word “separate” in this legislation, and the expression “separate occasions”, in my view emphasises, and is deliberately present, to ensure that the appropriate emphasis is given to avoid what the Crown is endeavouring to do in this case.

47. The Crown analysis in para 39 of the Crown written submissions makes the point:

“Turning to the facts of the present case, the five particular acts are capable of being “three or more separate occasions”, as:

(a) each of the messages was sent separately, i.e. as an individual transmission that was separated in time from each of the other messages;

(b) the child abuse material transmitted by each of the messages was different to that transmitted in other messages and in most if not all cases depicted a different child or cohort of children;

(c) all but the last two occasions were separated by intervening messages or transmissions of child abuse material by members of the group;

(d) between the first two occasions, the accused used a different device and platform to communicate privately with ‘Fathatch’, encouraging him to transmit child abuse material to the group and then adding him;

(e) the second occasion is differentiated from the other occasion in that ‘Fathatch’, rather than the accused, was the principal offender; and

(f) between the second and third occasion, communications ceased within the group chat for 40 minutes whilst the accused communicated privately with ‘LitFemBoy’.

48. That last aspect was described today as a hiatus, which is really a pause, but it seems to me that the separate messages, because they are sent separately, are always separated in time from each of the other messages; that is by definition.

49. The child abuse material that was, it was submitted, different, does no more than reflect tragically what is not uncommon with this kind of sexual interaction and the perversions of the individuals involved in it. It is quite clear that the whole point of the occasion here was to swap and indulge in child abuse material with likeminded others. The separation by intervening messages or transmission is merely in the nature of group chat. It is a fact, not an occasion, that conversations take place as an exchange. To reduce each act and statement in a group chat to separate occasions, as here argued, impermissibly stretches language and the intent of parliament.

50. I accept that it may seem here something of a challenge posed in the internet world for this definition because the trammelled reference to notions of “occasion” drawn from physical activity historically engaged in the real or actual world or physical world may not be comfortably assumed to be evident in the group chat environment.

51. However, the idea of a group chat is one which is defined by the notion of “a chat”. It seems to me that that expression in itself is suggestive of a single occasion albeit multifaceted and inclusive of the technical opportunities to obtain and share images, have breakout asides and use other applications complementary to the chat and reflective of the occasion and its participants.

52. The Crown says that a different device and platform were used to communicate with an individual who was also added to the group chat. That reflects the observation I have just made, and is a technical reality in an internet group chat. That is a long way from being able to establish the necessary temporal and/or circumstantial separation required to establish “separate occasions”.

53. As to the question of what occurs between the asserted second and third “occasion’, where the communication, on the Crown case ceased, it seems to me that the parties remained on their toes, available and aware as to what did then occur which was that the chat was reengaged or relevantly continued.

54. The notion of a participant in such a chat speaking privately with another in this instance is the high point of the Crown’s concern here. There is a hiatus, but that additional alternative communication is just commonplace within an occasion, typically individuals on invited or spontaneous social occasions speak to other attendees, discretely and commonly turn their attention to different aspects of that occasion and to different people.

55. Reference was made to online meetings where people are able to utilise the technology to have private interactions with individuals who are participating in the meeting, in the same meeting. It could not be said that when they do that, they are actually leaving a meeting or not being engaged in any way in it, or that their return establishes a separate meeting, let alone marks an occasion. Again, it is reflective of the fact that a pause as occurred here is certainly not capable of establishing a separate occasion.

56. It was not explicitly put by the Crown, but I do, for completeness, note that the nature of the liability in relation to one of the activities ascribed to the accused also differs. Drawn from the draft elements document at exhibit VDA, the three separate occasions or the three or more separate occasions relied upon reflect, principally, direct transmissions. However, in relation to one aspect, there is said to be conduct which abets, counsels or procures the commission of the offence. It does not seem suggested by the Crown that that was relevantly an indicia of a separate occasion. That, to my mind, just shows that their analysis captures a variety of acts and activities all within the same occasion.

57. The accused points to a number of matters asserted, and argues they establish the contrary, i.e. the Crown case it is not capable of establishing separate occasions. It has been submitted that, consistent with Kelly and the cases reflective of a similar factual matrix, the Crown’s own analysis assists in demonstrating that in truth, they are not separated by either time or circumstance.

58. They note the accused’s conduct was confined to an 81-minute period on a single day during which he continuously communicated with other members of the chat group, all of those being noted. They all knew the “All Naughty Corner group”, and whether people used private or session group chats is just a fact of the platform for the conduct.

59. Their intent remained shared and constant, as evidenced by the communications, and the intent was why people were there doing what they were doing. The invitation or addition of other persons to the group during that 81-minutes is just another fact, simply a characteristic of the type of offending that was engaged in. More particularly, it seems to me that it is a characteristic of an account mechanism being utilised on that occasion. The argument is it does not provide any separation either by time or by circumstance, and upon review and consideration I agree.

60. I have noted the significant consequences here, and have given full weight to the expectations of parliament. The aggravated offence carries with it a 30 year maximum penalty and 7 year minimum term. It is apt to consider the explanatory memorandum where the individuals targeted to be punished by this provision are “those engaged in the sustained or repeated course of conduct sufficient to warrant the application of a higher penalty”. That was required of the Court on this occasion.

61. It really is straining language to describe what is revealed by the agreed facts here as something which is reflective of a technologically sophisticated ring of child sexual abusers, nor is it evidently, in any way, a large-scale network. It certainly is a grouping of criminals, accessing, possessing, transmitting and producing child abuse material. It is evidently adhoc, reliant on technology that reveals no technical sophistication beyond this era’s common familiarity with the internet and apps, no contrived density in obscuring it like specially encrypted devices or networks and no financial profit motive. The offender has already accepted that that is what was occurring, and did so by his plea in relation to other counts.

62. Neither the timing nor the circumstances here of the asserted occasion can constitute, at law, “separate” occasions. The agreed facts do not and cannot establish separate occasions, in my view, and are so evidently intertwined under the dome of the group chat, with a shared perversion and shared interest, that at its highest the evidence can only constitute a single course of conduct albeit it is a multi‑faceted course of conduct.

63. It really is a carpaccio approach adopted by the Crown, which really demonstrates the straining of the language here in order to portray that there are separate occasions. A microscopic approach is a wrong approach. Not only is the evidence incapable of establishing clearly, or at all, three or more separate occasions, it really can establish no more than one.

64. I must be very alert when considering the meaning of these words to ensure that people are not dragged into liability by construction which is really contrary to the language and contrary to Parliament’s intention because it is apt to wreak a significant injustice.

65. I conclude, as I have, that as a matter of law, on the basis that a single occasion is the high point of the evidence here, the Crown case cannot be made out; that is, that it cannot establish the element required and I found, therefore, that the accused was entitled to be acquitted by direction on the basis that, amongst other ways of describing this, this is a prosecution doomed to failure.

66. I commend Counsel for dealing with the matter in this way, allowing this preliminary matter to be determined in the way it was, and these are my reasons.

67. What followed thereafter was that I did direct the jury to return a verdict of not guilty on that count.

68. I make a general statement in relation to an argument that was raised and was dealt with in Tognolini at para [5]. In that case, the jury acquitted the applicant, but they then proceeded to convict him of the alternative count. It was submitted in the Court of Appeal the alternative count was not available in the circumstances where the principal count was not open as a matter of law. The Court there rejected that submission. They did so because the impugned conduct covered the whole of the particulars. The occurrence, because the count on which he was convicted was part of it, was therefore capable of being a relevant occasion. The statutory alternative when it was accepted there by the jury was thus capable of being sustained.

69. Before I directed the verdict, the accused, in front of the jury, which had been empanelled, pleaded not guilty again upon the indictment being put afresh, but indicated that in relation to the charges which were the “underlying charges ‘ in that count, he accepted his guilt. Accordingly, the Court accepted those pleas of guilty in relation to those alternative counts and in the circumstances will proceed to sentence on those offences alongside the other matters which had already had pleas of guilty entered.

70. The situation here is that the only obstacle to conviction on count 8 was my finding in relation to the sufficiency of the evidence as a matter of law. These are my reasons for ruling as I did.

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