[2026] SADC 23

Prosecution: R Counsel: MS B FERGUSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: SHAWN MITCHELL HUMPHREYS Counsel: MR A RICHARDS - Solicitor: RIVERLAND STATEWIDE LEGAL Hearing Date/s: 21/10/2025 to 24/10/2025, 04/11/2025, 02/02/2026, 18/02/2026 File No/s: DCCRM-24-021809 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v HUMPHREYS [2026] SADC 23 Reasons for the Verdicts of her Honour Judge Fuller 25 March 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES Accused charged with three counts of possession of child exploitation material (CEM) on 1 August 2023 – CEM found on three mobile phones located in bedroom occupied by accused and his partner – some of the same CEM images appeared on more than one mobile phone - photographs of accused, user accounts in accused’s name, text messages sent to and from accused (including uncharged act of producing CEM in a text message) and video of accused masturbating to an image of CEM found across the three devices – expert evidence led by prosecution regarding dates and times CEM downloaded or saved to mobile phones. Issue in dispute – whether accused in possession of CEM. Accused gave evidence denying knowledge of CEM on each mobile phone. Accused’s evidence implausible and riddled with inconsistencies – accused’s explanations for photographs of himself and user accounts in his name not credible – accused suggested partner may have been in possession of mobile phones - accused’s denials that some of the incriminating text messages on one mobile phone were authored by him fanciful. Accused’s evidence rejected. Prosecution case circumstantial – prosecution contended that each count was cross-admissible for propensity and non-propensity purposes – prosecution relied upon text message describing sexual activity with child and video of accused masturbating to CEM video as uncharged acts of producing child exploitation material relevant for propensity and non-propensity purposes. Held: Evidence on each count cross-admissible to prove sexual interest in CEM and a tendency to act upon that interest by downloading and viewing CEM and as circumstantial evidence relevant to the issue in dispute, possession. Evidence of uncharged discreditable conduct also admissible for the same propensity and non-propensity purposes. The only rational inference to be drawn from the evidence was that accused in possession of CEM on 1 August 2023, knowing of its pornographic nature. Verdict: Guilty on all counts -- 1 of 41 -- Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 62, 63A(1)(a), 63C(1), referred to. R v Porter [2007] 2 All ER 625; R v Morcom (2015) 122 SASR 154; Sabourne v Western Australia [2010] WASCA 242; The Queen v Frangos (1979) 21 SASR 331; Button v Cooper (1947) SASR 286; Peacock v R (1911) 13 CLR 619; R v Plomp (1964) 110 CLR 619; Barca v The Queen (1975) 133 CLR 82; Tabe v The Queen (2005) 225 CLR 418; He Kaw Teh v The Queen (1985) 157 CLR 523; AK v The State of Western Australia (2008) 232 CLR 438; Douglass v The Queen (2012) 86 ALJR 1086; R v Keyte (2000) 78 SASR 68; R v G [2015] SASC 186, applied. -- 2 of 41 -- R v HUMPHREYS [2026] SADC 23 1 The accused, Shawn Mitchell Humphreys, was charged on Information with the following offences: Count 1: Offence Details: Possessing Child Exploitation Material. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935). Particulars Shawn Mitchell Humphreys, on the 1st day of August 2023 at Semaphore Park, possessed child exploitation material, knowing of its pornographic nature. Count 2: Offence Details: Possessing Child Exploitation Material. (Ibid). Particulars Shawn Mitchell Humphreys, on the 1st day of August 2023 at Semaphore Park, possessed child exploitation material, knowing of its pornographic nature. Count 3: Offence Details: Possessing Child Exploitation Material. (Ibid). Particulars Shawn Mitchell Humphreys, on the 1st day of August 2023 at Semaphore Park, possessed child exploitation material, knowing of its pornographic nature. The plea 2 The accused pleaded not guilty and elected for trial by Judge alone. I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver. Elements of the offence of possessing child exploitation material 3 This offence consists of the following elements which the prosecution must prove beyond reasonable doubt: 1. The accused has possession of material. 2. The material is child exploitation material, other than a child-like sex doll. -- 3 of 41 -- [2026] SADC 23 2 3. The accused knows the material is pornographic in nature. 4 Possession requires proof that the accused knew of the existence of the material and intended to exercise custody or control over the material.1 Where child exploitation material is found on a device under the accused’s control, the prosecution may be able to prove possession by showing that the accused downloaded and viewed the material.2 5 ‘Material’ is defined in section 62 Criminal Law Consolidation Act 1935 (SA) (CLCA) to include any written or printed material. It includes files on a computer or in an electronic device such as a mobile telephone. Child exploitation material is defined in s 62 CLCA as meaning material: (a) – (i) that - (A) describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or (B) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child under, or apparently under, the age of 17 years, or the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; or (C) (without limiting subparagraph (B)) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child-like sex doll, or part of a child-like sex doll; and (ii) that is pornographic in nature; or (b) that is a child-like sex doll. 6 ‘Pornographic nature’ is defined in s 62 CLCA to mean: —material is of a pornographic nature for the purposes of this Division if the material is intended or apparently intended— (a) to excite or gratify a sexual interest; or (b) to excite or gratify a sadistic or other perverted interest in violence or cruelty. 7 When deciding whether material is ‘of a pornographic nature’, the trier of fact can take into account the circumstances in which the material is produced, used or intended to be used. These considerations cannot, however, deprive material that is inherently pornographic of that character.3 1 R v Morcom (2015) 122 SASR 154, [80], [145]. See also He Kaw Teh (1985) 157 CLR 523; Tabe v The Queen (2005) 225 CLR 418. 2 R v Morcom (2015) 122 SASR 154, [146]; Sabourne v Western Australia [2010] WASCA 242, [29]. 3 Criminal Law Consolidation Act 1935 (SA) s 63C(1). -- 4 of 41 -- [2026] SADC 23 3 8 In R v Morcom4, Peek and Blue JJ described the two limbs required to constitute child exploitation material as follows: • the physical characteristic of depicting a child engaging in sexual activity (or the image is, or appears to be, that of a child or bodily parts of a child); and • the functional or purposive characteristic of the material being intended or apparently intended to excite or gratify a sexual (or perverted violence or cruelty) interest. 9 The offence does not contain an element that the accused knew or believed that the child was under the age of 17. 10 The prosecution must prove that the accused knew that the material was intended, or apparently intended, to excite or gratify a sexual interest or a sadistic or other perverted interest in violence or cruelty. Issues in dispute 11 The only issue in dispute was whether the prosecution could prove beyond a reasonable doubt that the accused was in possession of the child exploitation material the subject of each charge knowing of its pornographic nature. Overview of the prosecution case 12 The prosecution case was that, on 1 August 2023, the accused was in possession of two images and 44 videos containing child exploitation material. The material was located on three separate mobile telephones which belonged to the accused and were in his possession on 1 August 2023. 13 Police attended a unit on Military Road, Semaphore Park on 1 August 2023. The accused was living there with his mother. Police searched the unit and seized three mobile phones from the bedroom in which the accused was located - two black Samsung Galaxy mobile phones and one blue Samsung Galaxy mobile phone 14 An extraction was performed on each device. Count 1 15 On the first black Samsung phone two category 2 images and seven category 2 videos depicting child exploitation material were found. One of the videos showed a male masturbating whilst watching a video depicting an adult male anally penetrating a male child. Distinctive tattoos were visible on the hand of the male masturbating, and those tattoos match the tattoos on the accused’s left hand. The two images and seven videos are the subject of count 1. 4 R v Morcom (2015) 122 SASR 154, [17]. At the time, the Act used the language of “child pornography” rather than “child exploitation material”, but the applicable definitions were relevantly identical (subject to the references to child-like sex doll). -- 5 of 41 -- [2026] SADC 23 4 16 On this phone, police located nine photographs of the accused, and two video files containing child exploitation material in the cache. On the prosecution case, the material in the cache established an uncharged act of accessing child exploitation material.5 Seven user accounts attributed to the accused were also found on that phone. 17 All of the child exploitation material on this phone was from, or associated with the application, Telegram, and was located in the native file application or within the native photo gallery application in a folder called Telegram. Count 2 18 20 videos containing a mixture of category 1 and 2 child exploitation material were found on the blue Samsung phone. Each video was located in the same place and originated from, or was associated with, Telegram. Messages were also located on the phone establishing that the accused was the user of that device for some time. One of the messages was an uncharged act of producing child exploitation material.6 Eight images of the accused and four user accounts attributed to him were also found on this phone. Count 3 19 On the second black Samsung mobile telephone, police found 11 category 2 child exploitation videos. All of the videos originated from, or were in some way associated with, Telegram. Six images of the accused were also located on that phone. 20 All child exploitation videos and images on each mobile telephone were accessible to the user of the telephone. 21 On 8 December 2023, the accused was arrested. During a recorded interview the accused told police that all devices seized by police were taken by him from an electrical bin at Bunnings a day or two before police searched the unit. He then said that they were old phones that multiple people had used. 22 The prosecution also relied upon the fact that there was a video of a man masturbating to child exploitation material and it was stored in the same place on the first black Samsung phone as at least one other item of child exploitation material together with the images of the accused on the phone as leading to an inference that the accused had knowledge of the material on his device and intended to exercise control over it. 23 The prosecution case was that the messages on the blue Samsung phone established that the accused had a sexual interest in male pubescent children. The 5 This evidence was referred to as item 2 in the Discreditable Conduct Notice filed by the prosecution on 20 October 2025. 6 This evidence was referred to as item 2 in the Discreditable Conduct Notice filed by the prosecution on 20 October 2025. -- 6 of 41 -- [2026] SADC 23 5 user accounts, images of the accused and the messages could be used to infer that the accused was aware of the child exploitation material and intended to exercise control over it. 24 Finally, in relation to the second black Samsung mobile phone, the prosecution case was that the images of the accused on that device established that he had physical possession of the phone and knew about the material on it and intended to exercise control over it. General directions 25 The accused elected for trial by Judge sitting without a jury pursuant to section 7 of the Juries Act 1927 (SA). As Lovell J observed in R v G,7 whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.8 26 The general directions were summarised by Lovell J in R v G. They are as follows: As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged. The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise. The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty. 7 R v G [2015] SASC 186. 8 Ibid [61] – [116]. -- 7 of 41 -- [2026] SADC 23 6 27 The accused elected to give evidence. The accused was not obliged to give evidence and in doing so, he assumed no onus. His evidence is to be treated in the same way as any other witness in the trial, but I can give him what credit I consider appropriate for adopting a course he was not obliged to adopt. The evidence Brevet Sergeant Raymond Lawley-Sinclair 28 Brevet Sergeant Lawley-Sinclair explained the Australian Child Abuse Categorisation Scheme (ACACS) and a copy of it was marked for identification: MFI-P2.9 29 Brevet Sergeant Lawley-Sinclair, with other police officers, attended a unit on Military Road, Semaphore Park on 1 August 2023. The accused was present at that address with his partner and mother. Several electronic devices and mobile telephones were seized from a bedroom in which the accused was found. One mobile telephone was a black Samsung and it was assigned police property number PE19. A blue Samsung was assigned police property number PE20. A second black Samsung was assigned police property number PE22.10 30 Each Samsung phone was submitted to E-Crime for analysis.11 A table of child exploitation material (CEM) files found on PE19 was tendered: Exhibit P3. Items 10 and 11 on that table related to uncharged CEM. Brevet Sergeant Lawley- Sinclair explained that when he provided a description and category, he held himself to the belief that the child in the footage was under 15 years of age to ensure that he was comfortably within the age ranges defined in the schema.12 31 Brevet Sergeant Lawley-Smith also found user accounts and photographs on PE19 that he believed to be associated with the accused.13 A table of those user accounts and photographs were tendered: Exhibit P4. There were seven user accounts: a google account with the username [email protected]; a malechimp account with the username [email protected]; a Preceda account with the username Humphreys, a Live account with the user name Shawn.Humphreys; an uber carshare account with the username [email protected]; a Facebook messenger account with the username Shawn Humphreys14 and an Instagram account with the username Shawn5. Brevet Sergeant Lawley-Sinclair said that the name ‘TattooedTgods’ related to a business in which the accused was involved.15 32 Brevet Sergeant Lawley-Sinclair said he identified the accused in the photographs as a result of having met him and images of him on police systems, 9 T 27. 10 T 28-29. 11 T 28. 12 T 31-32. 13 T 32-33. 14 T 33. 15 T 33-34. -- 8 of 41 -- [2026] SADC 23 7 including the accused’s tattoos.16 A booklet of the photographs on PE19 was tendered: Exhibit P5. 33 A table of the CEM files found on PE20 was tendered: Exhibit P6. Brevet Sergeant Lawley-Sinclair said that there were also user accounts, messages and photographs on PE20.17 The user accounts contained the name or partial name of the accused. A table of the user accounts and images was tendered: Exhibit P7. A booklet of the photographs on PE20 was tendered: Exhibit P8.18 34 A sample of some of the text messages found on PE20 was tendered: Exhibit P9. Messages of significance included a message in which the sender wrote to the user of PE20 saying he recalled the user telling him he did not ‘mine (sic) young’ and the message from the user, ‘I’m Shawn’. One of the Grindr messages from the user fell into category 2 child exploitation material.19 35 A table of CEM files found on PE22 was tendered: Exhibit P10. Images of the accused were also found on PE22.20 Those images were tendered: Exhibit P11. 36 The accused was arrested for possession of child exploitation material on 8 December 2023. He was interviewed the same day. The interview was tendered and the transcript marked for identification: Exhibit P1 and MFIP1A. However, it was agreed that the only part of the interview to which I would have regard was from the 16-minute mark to 17 minutes and forty-eight seconds. In that part of the interview, the accused made the following statements: • One or two days before ‘this’ happened, the accused was at a Bunnings store and that is where all the tablets, laptop, phones and ‘stuff’ came from. • The accused got them out of the electronics bin and this would be captured on camera. • A couple of the mobile telephones seized by police were old phones of his; ‘one or two’. • Multiple people had used old phones that he had had for about ten years. • There was no child pornography on any phone of his that he had put there or seen or had done anything with before. Cross-examination 37 Brevet Sergeant Lawley-Sinclair said the accused’s mother was driving out of the address at which they found the accused. He was located in bed in a bedroom with another man, BS. The quantity of property and material inside the room suggested that it had been inhabited for some time. The mobile telephones were 16 T 34. 17 T 36. 18 T 37-38. 19 T 39. 20 T 40. -- 9 of 41 -- [2026] SADC 23 8 located deep within other property in the room. There was no female clothing or anything to suggest a female was occupying that room.21 The room was quite cluttered and had a quantity of electronic devices, personal property, clothing and male personal hygiene items like deodorant.22 38 Brevet Sergeant Lawley-Sinclair said the premises had not been under observation in the days or weeks prior to police attendance. However, he had some information that indicated to him that the accused was staying there on an ongoing basis.23 39 Brevet Sergeant Lawley-Sinclair was shown PE19, PE20 and PE22. He said PE19 and PE 22 had cracks on the screen. The screen on PE20 was intact.24 Detective Brevet Sergeant Richard Billington 40 Detective Billington reviewed the video file listed as item 5 on P3 which was located on PE19. He said that it depicted the accused watching a child exploitation video. The video file was tendered and played in court: Exhibit P12. The video was short and depicted the lower half of a person wearing only a G-string lying face down on a bed. It also depicted another person masturbating his penis. The hand masturbating the penis had tattoos on it. In the background was a television screen with the frame frozen. It appeared to depict a man having anal sex with a male child. After reviewing P12, Detective Billington obtained photographs of the accused from police systems in order to compare the tattoos on his hands with the tattoos on the hand that could be seen on P12. Photographs from police systems of the accused’s hands were tendered: Exhibit P13.25 41 A booklet of the images found on PE22 as listed in P11 was tendered: Exhibit P14. It contained images of the accused, his tattoos and his Victorian driver’s licence. In some photographs an Asian woman was depicted.26 42 Detective Billington said that some of the CEM located appeared on more than one of the devices. A table was prepared which identified the files that were located on more than one device: Exhibit P15.27 Joshua Sam Daniel Wyatt 43 Mr Wyatt is a digital evidence specialist employed by SAPOL. 21 T 43. 22 T 44. 23 T 44. Brevet Sergeant Lawley-Sinclair claimed public interest immunity over the information. The matter was not pursued further in cross-examination. 24 T 47. 25 T 49-50. 26 T 51; P14. 27 T 51-53. -- 10 of 41 -- [2026] SADC 23 9 44 He explained that the file pathway on a device indicates where that file is located on the device. The modified date is when something is accessed, changed or saved or when it first appears on the device.28 PE19 45 Mr Wyatt explained that the times referred to in P3 were out by 9.5 – 10.5 hours depending on daylight savings.29 The first seven files listed on P3 were video files; the first four were stored on the device in the same folder which was Telegram videos. The Telegram videos folder was accessible via the Files and then Telegram folder.30 The word ‘Telegram’ in the file pathway was an artefact from having Telegram installed on the device. Each of the video files 1 - 4 had different modification dates but Mr Wyatt could not say whether each date represented the date the file was accessed, saved or changed.31 46 Video files 5 and 6 were stored on the device in the movies folder in Telegram and were accessible to the user of the device.32 Those videos were taken on 30 September 2021. The modified date for video files 5 and 6 were within seconds of each other indicating something happened at the same time.33 47 Video file 7 was in the Telegram folder on the device and was accessible to the user of the device.34 48 Items 8 and 9 were JPEG files, that is they were compressed images. They were stored on the device under Files, application, Telegram, Telegram images and were accessible to the user.35 The modification dates were within two minutes of each other.36 49 Items 10 and 11 were stored in the same place. The file pathway included the word ‘cache’ which is a duplicate file stored in a separate location that the application has created in order to retrieve the file instead of downloading it again. Those cache items were not accessible to the user of the phone. However, the user of the device would have to interact with that file in some way for it to be stored in the cache. Mr Wyatt explained that interaction meant watching or playing the file. A user of a device which has downloaded an image or file from Telegram and then deleted it has an option to delete cache data but on this device the option was 28 T 59. 29 T 61-62. 30 T 63. 31 T 64-65. 32 T 65. 33 T 66-67. 34 T 67. 35 T 67. 36 T 69. -- 11 of 41 -- [2026] SADC 23 10 not selected.37 However, Mr Wyatt said he would not expect an everyday user to understand what a cache was.38 50 Mr Wyatt was asked about the report in P4. 51 He said that user accounts were accounts that the user had created. The creation date was when the account was created.39 52 The file pathways for items 1, 3, 4 and 6 (images of the accused) were the same. These images had been cached, and the modified date was the first time there was interaction with the file.40 53 Items 2 and 5 were in the Glide cache and had the same file pathway. Glide was a code library used by galleries for a scroll function.41 54 Items 7, 8 and 9 had the same file pathways until the words ‘telegram/images’. They were stored in the same place in a folder called Telegram images. Those items were accessible to the user of the phone. The modification dates were within a second of each other which was consisted with those files being saved in that location at the same time.42 55 Mr Wyatt said that photographs 7 and 8 in P5 appeared to be items 7 and 8 on P4 but the photographs did not appear to have been taken within one second of each other.43 PE22 56 Mr Wyatt generated a report in relation to PE22 on 17 October 2025: Exhibit P 16. 57 Mr Wyatt was shown P10. Items 1-9 had the same file pathways and were stored in the same location. They were in Files/Telegram/Telegram video. They were accessible to the user.44 58 Items 10 and 11 had the same file pathways: Movies/Telegram. They were stored in the same place and were accessible to the user. They appeared to be stored in the gallery but without seeing the device, Mr Wyatt could not be certain. The files were created on 15 October 2022.45 37 T 70. 38 T 70. 39 T 70-71. 40 T 71-72. 41 T 72-73. 42 T 73. 43 T 74. 44 T 83. 45 T 84. -- 12 of 41 -- [2026] SADC 23 11 59 Mr Wyatt was shown P11. Items 1 and 2 had the same file pathway and were stored in the same location, the gallery. They were accessible to the user.46 60 Items 3-5 had the same file pathway and were all stored in Files. He was not sure if they would have been accessible to the user. The modification dates of items 3 and 4 were within a second of each other so they could have been saved at the same time or taken seconds apart.47 61 Mr Wyatt was then shown P14. Item 3 and item 4 in P11 were photographs 1 and 2 in P14.48 Those photographs were not taken within a second of each other.49 PE20 62 Mr Wyatt was asked about P6. The file pathways for items 3-8 appeared to be the same until the word ‘Telegram videos/’. They were saved in the same location within the device in a folder called Telegram, Telegram video. They were accessible to the user.50 63 The modification dates for items 16-20 were within a minute of each other, but Mr Wyatt could not say whether that was because they were all saved at the same time or moved into that folder.51 64 Mr Wyatt was shown P7. Item two appeared to be an artefact from a MMS or multimedia file. That is a SMS with an image or video attached. This image did not appear to be accessible to the user of the phone. It was in a system file somewhere.52 65 Items 3-8 all include the word cache and were not accessible to the user of the device. The modification date was likely to be the first interaction with the file.53 66 In relation to the user accounts listed in P7, the creation date was the date the account was created.54 67 An extraction report dated 17 October 2023 for PE20 was tendered: Exhibit P17. 68 Mr Wyatt was then shown P9. Items 1 – 6 were SMS or MMS. The source of items 7-16 was Grindr. Mr Wyatt was then taken to the messages on page 3 of 46 T 84. 47 T 84-85. 48 T 85. 49 T 86. 50 T 75-76. 51 T 76-77. 52 T 77. 53 T 78. 54 T 78. -- 13 of 41 -- [2026] SADC 23 12 P17 and said that the start time was the first message sent in the conversation and the last activity was the last message sent in the conversation.55 69 Mr Wyatt explained that the user ID ‘owner’ was the owner of the device. This was inferred by the forensic tool used in the extraction, namely Cellebrite. The user was ‘shawnss5’. The green messages were from the user and the blue were sent to the device.56 SIM cards 70 Mr Wyatt said that an ICCID is the identification number for a SIM card. The ICCID is unique to the SIM card. The first several numbers are not unique and there is a country code and a network code followed by a unique string of 13 characters and a check sum.57 71 There were foreign SIM cards in PE20, including from Vietnam, India, Denmark and the Philippines.58 Cross-examination 72 Mr Wyatt said that date modified, other than in relation to an item on the cache, could be the creation date, the date the file came to be on the device, the date the file was sent via the application or the date that the user last accessed that file.59 Date modified could mean any number of things.60 73 In P3, items 10 and 11 were cache files. In P10, all files had a file pathway with Telegram in it.61 The files in P3 and P6 appeared to have artefacts of Telegram. It would not be necessary to have the Telegram application installed on the device in order to view these files. Items 5 and 6 in P3 could be viewed in the gallery.62 Mr Wyatt explained that his opinion was based on his experience of using file paths and their typical behaviour, but he could not physically check accessibility because he did not have the device available to him.63 74 Mr Wyatt said that Telegram must have been on the devices at some point. He had been told that Telegram had been uninstalled on the devices. He did not know when that was.64 55 T 79. 56 T 80. 57 T 81-82. 58 T 82. 59 T 87. 60 T 87-88. 61 T 89. 62 T 90-91. 63 T 92-93. 64 T 93. -- 14 of 41 -- [2026] SADC 23 13 75 Mr Wyatt said that, with the exception of the movie files, items 5 and 6, in P3, it was possible that the user did not have accessibility to items 1-4 and 7-11. Items 10 and 11 were in the cache and not accessible in any event.65 76 Mr Wyatt said that he was more confident that the user of the device could access the files in P6 but without access to the device he could not exclude the possibility that they were inaccessible. He said the same applied to the files in P10.66 Access to the device would give a definitive answer.67 77 The person who had downloaded the files from Telegram would need the PIN if the devices were PIN locked.68 78 Mr Wyatt said that images were displayed in the unredacted version of P17. In order to be able to say that any of the images in P3, P6 or P10 were in the message chain in P17 he would need internet connection and access to the Grindr account.69 Agreed facts 79 The following facts were agreed: Seizure of Devices 1. On 1 August 2023 police searched Unit 1, 310-312 Military Road, Semaphore Park. 2. Shawn Humphreys was staying at the residence at the relevant time. The only other occupants at the time of the search were Vikki Johnston, the mother of Mr Humphreys and [BS], the partner of Mr Humphreys. 3. Within the bedroom Mr Humphreys was residing, Detective Brevet Sergeant Benjamin Ward located: a. a black Samsung galaxy phone which was assigned to SAPOL exhibit number SAP2300127284PE0019; b. a blue Samsung galaxy phone which was assigned to SAPOL exhibit number SAP2300127284PE0020; and c. a black Samsung mobile phone which was assigned to SAPOL exhibit number SAP2300127284PE0022. Extraction of Devices 4. Senior Constable First Class Alexander Ayres is an investigator attached to the Digital Evidence Section of South Australian Police. On 10 October 2023 he 65 T 94. 66 T 95. 67 T 96-97. 68 T 96-97. 69 T 97-98. -- 15 of 41 -- [2026] SADC 23 14 commenced the examination and extraction process relating to SAP2300127284PE0019, SAP2300127284PE0020 and SAP2300127284PE0022. 5. The extraction report for the black Samsung galaxy phone which was assigned SAPOL exhibit number SAP2300127284PE0019 was produced by Constable First Class Ayres. 6. The extraction report for the blue Samsung galaxy phone which was assigned SAPOL exhibit number SAP2300127284PE0020 was produced by Constable First Class Ayres. 7. The extraction report for the black Samsung galaxy phone which was assigned SAPOL exhibit number SAP2300127284PE0022 was produced by Constable First Class Ayres. 8. A supplementary extraction report of the black Samsung mobile phone which was assigned SAPOL exhibit number SAP2300127284PE0022 containing items tagged as ‘important’ was produced by Joshua Wyatt. Subscriber Checks by Police – PE0019 9. SAP2300127284PE0019 was using the service number 0459 779 982. The service number was subscribed in the name of Shawn Humphreys between 26 October 2022 and 13 February 2023. 10. SAP2300127284PE0019 was using the service number 0473 010 899. The service number was subscribed in the name of Daphne Pompey between 9 August 2022 and 15 August 2022. 11. Eight other SIM cards have been inserted into the mobile device. It is not possible to determine who the registered user or users were. Subscriber Checks by Police – PE0020 12. SAP2300127284PE0020 had eight SIM cards inserted into the mobile device. It was not possible to determine who the registered user or users were. Subscriber Check by Police – PE0022 13. SAP2300127284PE0022 was using the service number 0480 269 274. The service number was subscribed in the same of Megan McKenna between 20 April 2020 and 8 May 2020. 14. SAP2300127284PE0022 was using the service number 66835170820 between 29 May 2019 and 31 May 2019. That service number was unable to be resolved to a specific subscriber. Evidence of Megan McKenna 15. Megan McKenna provided an affidavit to South Australia police on 30 August 2025. She stated that: a. She knows Mr Humphreys and they resided together in Victoria for a period of 12 months commencing in 2012; b. Mr Humphreys stayed with Ms McKenna on an ad hoc basis in 2020; and -- 16 of 41 -- [2026] SADC 23 15 c. She does not recall registering a mobile phone for Mr Humphreys in 2020. Travel of Mr Humphreys 16. On 20 November 2019 Mr Humphreys travelled abroad. He travelled to Vietnam and Indonesia. 17. On 14 March 2020 Mr Humphreys returned to Australia. 80 The extraction reports referred to in the agreed facts were tendered: Exhibit P19, extraction report for PE19; Exhibit P20 extraction report for PE22. Defence case 81 The accused gave evidence and called one witness, his mother Vikki Marie Johnson. The accused 82 The accused was 33 years old when he gave evidence. He had been living in South Australia for about four or five years. Prior to that he had been in Melbourne for eight or nine months and before that in Asia.70 83 On the night before his arrest on 1 August 2023, the accused stayed at his mother’s house with his partner BS. That was the only night he stayed there, although he had stayed at his mother’s house on previous occasions. They had luggage with them because every four days they would check out of a hotel or an Airbnb apartment and would have to pack up all of their belongings.71 84 Photographs of the dining and lounge room in the accused’s mother’s house were tendered: Exhibit D21. The accused identified a ‘Savers’ bag amongst property that the police had removed from his bedroom and put in the loungeroom.72 He then said a ‘decent chunk’ of the items depicted in the photograph of the lounge room were his.73 85 At the time police attended, the accused was asleep in bed with BS.74 The accused was not sure how many mobile telephones were seized by police. A field receipt issued to the accused was tendered: Exhibit D22. The accused said he had lost his mobile phone the day before. He was using BS’s phone. The accused then said his mobile phone could have been in one of his bags because they were moving everything around.75 70 T 101. 71 T 102. 72 T 103. 73 T 104. 74 T 104. 75 T 105-106. -- 17 of 41 -- [2026] SADC 23 16 86 The accused said that he was no longer in contact with BS and they had been estranged for a little over a year. He did not know where he was living but had tried to make contact with him multiple times.76 87 The accused denied that any of the CEM appearing on the phones labelled PE19, PE20 and PE22 were images that he had downloaded. He denied downloading the video showing a male masturbating with CEM in the background on a television screen.77 The accused denied having any CEM on the phone that he said had gone missing. The accused said he was not aware of any CEM that had been downloaded onto any phone in his or BS’s possession.78 88 The accused explained that he and BS had always had lots of mobile telephones. They would go to the Bunnings bins often and take phones and laptops to refurbish.79 BS had a similar phone to him, either an Oppo or a Samsung.80 89 The accused said he was an escort and would obtain work through various websites such as Rentmen, Chaos Ads and Locanto.81 The accused said that some clients liked to role play certain fantasies and he would try to discuss it in depth first on the telephone so that he did not end up in a situation that he could not handle.82 90 He did not use Grindr for work or personal reasons.83 91 The accused said he did not knowingly possess any of the CEM found by police.84 Cross-examination 92 The accused identified a yellow sports bag, a Batman dressing gown and a black suitcase depicted in D21 as belonging to him. He said that when they moved places he would fill an entire car with their belongings.85 93 The accused said his mother’s home was a two bedroom unit and his brother was living there.86 His mother let him and BS sleep in her room the night before police attended.87 76 T 106-107. 77 T 107. 78 T 108. 79 T 108 80 T 109. 81 T 109. 82 T 110. 83 T 110. 84 T 110. 85 T 111-115. 86 T 115. 87 T 116. -- 18 of 41 -- [2026] SADC 23 17 94 The accused had been in a relationship with BS since 2022. He knew BS before he travelled to Asia but BS did not accompany him on that trip.88 When he travelled to Asia he took a mobile phone with him, most likely a Samsung. The accused was shown the mobile phones seized by police and said one was familiar because of the picture on the back.89 95 The accused was shown the messages in P17 and was asked if he sent the message that commenced ‘your 13 and you have come to spend the holiday with daddy’. He said he possibly sent that message.90 The accused was asked to look at the preceding messages on page 6 and said that they could have been sent by him and he would have sent messages like that to clients.91 The accused was asked to read the messages on pages 3-19 and then said he was pretty confident that he would not speak like that and then said he denied sending them. He said the use of the name ‘Shawn’ could have been because BS used his name for setting up accounts.92 96 The accused agreed that in June 2020 he was living in Melbourne. He was then taken to the message on page 21 which read, ‘Hey, good thanks, I’m only in Bendigo every two weeks or so and can’t host’. He said he was not in Bendigo in June 2020 but his aunty lived in Bendigo and he did stay with her for a while. When shown the message on page 25 ‘Nice, well, as I said, let’s connect when I’m next in town’ the accused said that BS was actually from Bendigo so there were other connections there. He then said that he was not sure that they were his messages.93 The accused then said it was possible he may have visited his aunty in Bendigo in 2020.94 97 The accused said it was possible that he sent the message ‘your 13 and have come to spend the holidays with daddy’ but he could not say either way. It was something he might write because that is a big fetish in the community. He denied being sexually interested in that sort of scenario.95 98 The accused agreed that he lived in Geelong briefly before he went to Asia and also for about two months when he returned from India in 2020. The accused was asked whether the messages dated 31 May 2020 on pages 38 and 39 of PE17 were sent by him. Those messages were: Ok, well I live in Geelong. There is a chance I will be moving to Bendigo but I haven’t decided yet. I live alone in Geelong and can host any time as I work from home. 88 T 116-117. 89 T 118. 90 T 119. 91 T 120. 92 T 122. 93 T 123. 94 T 124. 95 T 124. -- 19 of 41 -- [2026] SADC 23 18 99 The accused said those messages ‘could definitely be me’. When asked if they were work-related or personal messages the accused gave this evidence: A Well, if I lived in Geelong and was working from home, the same time I came back from COVID living in Asia, then that would be strange, that doesn’t sound like me either. So when I came back from India, I didn’t have a job, I didn’t have anywhere to live. Q Just so I’m clear, the last message on p.38 and p.39, are they messages from you. A I don’t – it doesn’t seem like it to me because of the reasons I gave, like I didn’t have a job when I came back and it’s saying working from home, like year, I don’t think they are, those three messages. Q So as at that date were you living in Geelong. A I stayed with my friend Megan in – she lived like in Geelong. I lived in Geelong before I went overseas. But I think I lived in Norlane maybe or something like that, which is the outskirting suburb on the Melbourne side. But that was before I went overseas that I was living there, not after. So if this is 2020 or if this is after COVID, then it doesn’t sound like me because I wasn’t and even when that was the case, I was a social worker beforehand, I didn’t work from home, you couldn’t possibly do that. Q Just so I’m clear, it is your evidence that in relation to the last message on p.38 and p.39 you don’t think they’re from you, but you were living in Geelong in – on 31 May 2020. A When it comes to dates all I can confirm is when COVID ended, that’s when I came back. I can’t remember what year it was. I think it was 2020 though that – but without being able to google it or look it up, the date, I’m not sure. But have a passport that has – I don’t know where it is, but there’s a passport with stamps on it and it confirms where I went there and when I came back. Q Let me just ask you this: at some point you have lived in Geelong, is that your evidence. A Yes I did. I lived in Geelong before I moved overseas to India and it was that time period. I lived there for about a year or eight months. Q Did you live there again when you came back. A I stayed with a friend in Geelong, so I think that’s living there, for about six to eight weeks.96 100 The accused denied using the Grindr application for work purposes.97 101 The accused agreed that he sent the message dated June 2020 on page 61 of P17 which read: 96 T 126, 6-38; T 127, 1-9. 97 T 127. -- 20 of 41 -- [2026] SADC 23 19 I was in India and they cancelled everyone’s visa so we had no choice but to get to the airport. 102 The accused agreed that it appeared as if he sent that message and he appeared to be in possession of that device in June 2020. He agreed that what was in that message was an accurate account of what happened to him.98 103 The accused was then asked whether he sent the following message that appeared on page 60 of PE17: Sounds good. I’ve only got back to Australia two months ago after travelling in Asia for most of the last year, so I’ve pretty much only been a top in that time. I’m happy just to see where things take us in the moment. 104 The accused gave this evidence: A These messages are from a really long time ago and I have no idea what I said to anyone during that timeframe. It does sound like me, that is correct. You’re saying it’s a phone that you believe is mine so it does sound like that. I don’t know how else to – Q So it’s consistent with your travels as you’ve just said to her Honour. A Yes. Q And then finally before I move on from the messages, just the page prior, p.59, that second green message, ‘sounds good, I’m Shawn’ did you send that message. A Possibly. Once again, I don’t – Q I put it to you that you did send that message. Do you accept that. A Okay. I accept that you’re putting that to me but there are a lot of people that – it doesn’t matter. Yes, it’s what you’re putting forward. I can’t say anything different. I don’t know what else you want me to say. Q So you agree you sent that message. A No, I – I agree that my name is Shawn and that that – yes they look like they’re my messages. I can’t be sure what happened five years ago in text messages. I don’t know how – I have 100 people message me a day sometimes. I don’t know how to answer it any other way.99 105 The accused agreed that the photographs of himself in P8 would have been sent by or received on PE20 when he was using it.100 He could not say over what timeframe it was that he was using phone PE20. He was not sure if he took any of 98 T 127-128. 99 T 129, 27-38; T 130, 1-13. 100 T 131. -- 21 of 41 -- [2026] SADC 23 20 those photographs on phone PE20. He identified the first photograph in P8 as taken in South Australia. 101 106 The accused said one of the photographs in P8 was taken in Vietnam and so he had used PE20 before he went to Asia. He said that he stopped using PE20 but he could not say when that was. He said he had never used the same phone for more than six months. He said BS could have been using one of his phones.102 107 The accused was then shown P7 and asked whether the GayShare account with the username [email protected] was his email account. He said it was not an email he used; BS used it. He explained: [BS]’s never had any ID or anything like that, so every account I have we’ve shared, I’ve used my bank account and things like that, so he’s used those things to sign up to new accounts because on sites that you escort through, if you accidentally say the wrong word in there, there is like an algorithm that will block you and block your account, it blocks your IMEI number, so every couple of weeks you’d have to sign up with a new account so you’re just creating regular accounts, and so that’s why he’d use my name, his name, ten other names to, if that makes sense.103 108 The accused then said that BS never had any ID since he had known him and would have his Centrelink or other benefits put into other bank accounts. He thought BS was an Australian citizen.104 109 The accused was asked about the Live account with the username Shawn.Humphreys and he said he did not know what Live was. He agreed that the Instagram account with the username ShawnSS5 was his and that it was possible he logged into that account on PE20. He said the Facebook Messenger account with the username Shawn.Humphreys.35 was not his.105 110 The accused was shown the mobile telephone PE22 and said that it was potentially one of BS’s phones. He said he recognised the phone PE22. The accused agreed that the photographs in P14 were of him. All of them except the last one were Instagram photographs that he uploaded to the Instagram account he identified earlier.106 He said the woman in the photograph on the first page was a social media influencer he worked with for his herbal tea business. He did not agree that he sent or received those images on PE22. He said BS used PE22 at some point during their relationship.107 He said he did not know if at some point he used PE22.108 101 T 131-133. 102 T 134. 103 T 135, 34-38; T 136, 1-6. 104 T 136. 105 T 136-137. 106 T 139-140. 107 T 141. 108 T 142. -- 22 of 41 -- [2026] SADC 23 21 111 The accused was shown P5 and agreed that the last three were photographs of him but he could not say how they came to be on PE19. He was then shown P4 and said that the google account with the username [email protected] was an account used by BS. He said the Mailchimp account with the username [email protected] appeared to be a business account of his but he said he had his own domain and it was not a Yahoo account. Tattooedteagods was one of his businesses and was a registered business name when he returned from India. It was active for six months in 2020.109 112 The accused denied that the Live account on PE19 with the username Shawn.Humphreys was his. He was not sure what the Preceda account with the username Humphreyss was. The Uber car share account with the username [email protected] was a former email account of his. He said he had logged onto the account on many devices but it was also logged in with BS indefinitely. The accused said the Uber car share account was what BS ‘used to steal my identity while I was in gaol and all of my money from my bank account, so I don’t have access to it anymore and I haven’t for a period of time’.110 The accused said the Facebook Messenger account with the username Shawn Humphreys was the correct one.111 The Instagram account was the same one he identified previously.112 113 The accused denied that he used PE19 for a period of time and said that BS had access to all of his accounts. He also said his sister might have had access to his Facebook. He could not think of anyone else who had access to those accounts.113 114 When the accused was asked whether he agreed that his user accounts were found on PE19 he said: The ones that I’ve just pointed out that I said were mine, they are definitely mine, I’m just saying someone else had access to them. So I don’t – I don’t know what I’m saying now.114 115 The accused said there was a good possibility he had used PE20 ‘based on the messages’.115 116 It was put to the accused that the male masturbating in the video found on PE19 was him. He said ‘I don’t think so’.116 He then said he could barely make out the image and he was almost legally blind in one of his eyes. He said he knew he was not ‘jerking off to child porn’.117 109 T 144-145. 110 T 145, 31-34. 111 T 145. 112 T 146. 113 T 146. 114 T 147, 30-33. 115 T 148. 116 T 149. 117 T 150. -- 23 of 41 -- [2026] SADC 23 22 117 The accused said that the telephones that he took out of the electrical bin at Bunnings were not any of PE19, PE20 or PE22.118 118 The accused said that his brother did live at the unit with his mother and when asked about the agreed fact in which it was agreed that his mother was the only other occupant at the time of the search, he said, ‘…obviously I’ve somehow made a mistake in what I’ve said to [Mr Richards], I guess.’119 Re-examination 119 The accused said that there were hundreds of photographs in phones he had because he took them for work. Not only had he been an escort but he had done amateur pornography online that required many photographs and videos. He said that one or two of the photographs on the phones seized by police were for work- related purposes. When asked whether there would be any other reason why photographs of him might be on someone else’s phone he said that would occur if the person was a partner or a client.120 Vikki Marie Johnson 120 Ms Johnson is the accused’s mother. On 1 August 2023 she lived in a two bedroom unit on Military Road. When police attended her other son James was home. He had been living with her for 8 years. The accused would stay with her from time to time, sometimes for one night and sometimes for just six hours or so.121 121 Ms Johnson was with her son James in her car on Military Road. Police pulled her over and she then walked back with police to the unit. When they returned to the unit, the accused and his friend BS were in the house.122 Cross-examination 122 Ms Johnson rejected the suggestion that she was mistaken in her evidence that her son James was living at the unit on Military Road on 1 August 2023. She rejected the proposition that he was not living there on that date.123 Application to withdraw agreed fact 123 Through his counsel, the accused applied to withdraw the agreed fact in the second line of paragraph 2 of P18. The fact sought to be withdrawn was that the only other occupants of the premises at the time of the search were the accused’s mother and his partner BS. In support of the application, the accused’s counsel, Mr Richards filed an affidavit in which he attested to the following matters: 118 T 151. 119 T 152. 120 T 155. 121 T 157-158. 122 T 158-159. 123 T 190. -- 24 of 41 -- [2026] SADC 23 23 • The statement of agreed facts was drawn up by him and reviewed with the accused. In the course of reviewing the agreed facts, there was no discussion about any other person living at the premises. • Mr Richards only became aware that the accused’s account was that his brother was living at the premises at the time police searched it. He did not know why his client did not realise the error in the agreed fact in paragraph 2 of P18. • Mr Richards had not discussed the issue with the accused’s mother. • The fact that the accused’s brother was living in the house at the time of the search was not relevant to the defence case. 124 I received the affidavit without objection and Ms Ferguson for the prosecution did not challenge the contents of it or seek to cross-examine Mr Richards on it. 125 The application to withdraw the agreed fact was opposed by the prosecution on the basis that it was relevant evidence proving that the accused had made a prior inconsistent statement. Thus it was relevant to his reliability and credibility. Ms Ferguson conceded that it could only be used as a prior inconsistent statement if I rejected the accused’s explanation as to the circumstances in which he gave instructions to agree that fact. Nevertheless, Ms Ferguson maintained that the court had no power to permit an agreed fact to be withdrawn. No authority or statutory provision was referred to in support of this contention. Ms Ferguson referred to the decision of the Victorian Court of Appeal in R v Shalala (2007) 17 VR 133 in which the Court held that in the absence of statutory provisions to the contrary, a concession made in exercise of defence counsel’s mandate could be withdrawn unless to do so would result in irreparable unfairness to the other side.124 126 Ms Ferguson did not suggest that the granting of the application would cause prejudice or unfairness to the prosecution. Indeed, it was not suggested that the presence at or absence from the premises of the accused’s brother was in any way relevant to the prosecution case. The accused’s evidence that his brother was living there was supported by the evidence of his mother on this topic. 127 I accept the uncontested contents of the affidavit of Mr Richards. I also accept the evidence of the accused that there had been some miscommunication or mix- up and that he was not sure how that fact came to be agreed. I am satisfied that the accused’s brother was living at the premises at the time of the search. This finding of fact has no relevance to the issues in dispute. Given the explanations proffered by Mr Richards and the accused regarding the circumstances in which it was agreed that no other person was living at the premises, I am not prepared to find that the agreed fact in paragraph 2 of P18 is a prior inconsistent statement. 128 In the exercise of my discretion, I allow the application to withdraw the fact agreed in paragraph 2, namely that ‘the only other occupants at the time of the 124 [16] – [29]. -- 25 of 41 -- [2026] SADC 23 24 search were Viki Johnston, the mother of Mr Humphreys and [BS] the partner of Mr Humphreys’. Closing submissions Prosecution 129 Ms Ferguson commenced her submissions by noting that there was no dispute that CEM was located on each of the three mobile telephones seized by police on 1 August 2023. Count 1 130 In relation to count 1, and mobile phone PE19, P3 sets out the CEM found on that device. In particular, the video of a male masturbating to a video depicting an adult male anally penetrating a male child shows a hand with tattoos identical to those on the accused’s hand as shown in P13. The evidence of Mr Wyatt establishes that this video and the video marked item 6 on P3 were downloaded on 12 January 2022 and the inference should be drawn that it was the accused who downloaded both videos. 131 P4 is the table of images of the accused found on PE19 and those images can be seen in P5. The evidence of Mr Wyatt established that the modified date of the last three images, namely 13 February 2023, was more consistent with the dates those files were saved or downloaded. As the modified dates and times were within seconds of each other but the images were clearly taken on different occasions, the inference should be drawn that those images were saved or downloaded on 13 February 2023. The fact that ‘Telegram’ was in the file pathway is evidence from which it can be inferred that the accused was a user of the application Telegram. 132 The evidence of Mr Wyatt was that, because videos of CEM were located in the cache, the user of the device must have viewed those on 11 February 2023 and 31 January 2023. Accordingly, it has been established that there are images of the accused saved or downloaded to PE19 before and after the dates that the CEM videos were viewed by the user of PE19. This established that it was the accused who viewed the CEM videos and therefore establishe that he was interested in CEM. 133 There were seven user accounts on PE19 and six of those accounts had the name Shawn and/or Humphreys in them. The seventh account was in the name of one of Mr Humphreys’ businesses, tattooedteagods. Count 2 134 Twenty CEM files were located on mobile phone PE20. All of the CEM videos were saved in the same location on PE20. Five of those videos had a modified time within the same minute on 28 July 2022. Accordingly, an inference should be drawn that those videos were saved or downloaded on that date. The balance of the CEM had modified dates in August 2022. -- 26 of 41 -- [2026] SADC 23 25 135 Text messages were also located on PE20 (samples of those appear in P9 and the entire set of messages appears in P17). The content of the messages established that they were sent or received by the accused. This proved that he was an active user of PE20 for a significant period of time. The messages also evidenced a sexual interest in male children and were therefore relevant to the likelihood that the accused knew of the CEM on PE20. The messages in September 2022 established that the accused was the user of the phone at that time, which was after the downloading of five of the CEM videos. 136 In addition, eight images of the accused were located on the device in the cache with modified dates ranging from 19 February 2022 to 23 August 2022. Four user accounts attributable to the accused were found on PE20. Four foreign SIM cards (from Vietnam, India, Denmark and Philippines) had been used in PE20. Count 3 137 Eleven CEM files were found on PE22. Six images of the accused were found on PE22. Other evidence 138 Detective Billington’s evidence established that some of the same CEM was found on more than one device. Mr Wyatt’s evidence established that every item of CEM on all three mobile phones was associated with the application Telegram. This is evidence from which an inference should be drawn that the same person was using the device and that person was the accused. 139 Ms Ferguson submitted that the accused was not a credible or reliable witness. He suggested that his partner accessed his accounts or might otherwise have been responsible for the evidence which incriminated him. His evidence was internally inconsistent. The accused told police in his record of interview that the three mobile phones had been retrieved by him from a Bunnings electrical bin but then said in evidence that was not the case. 140 His evidence was implausible and riddled with contradictions and inconsistencies. 141 Ms Ferguson then addressed the discreditable conduct notice filed by the prosecution. She argued that each count was cross-admissible as against the other on the basis that proof that the accused was in possession of CEM demonstrated that he had a particular inclination or propensity to view CEM for its pornographic nature. In addition, proof that the accused was in possession of CEM made it more likely that he was in possession of the CEM relevant to each of the other counts and knew of the pornographic nature of the material. 142 The other discreditable conduct evidence was the evidence of uncharged acts of producing and accessing child exploitation material. The evidence of the production of the child exploitation material was to be found in the text messages in P9 and P17 and the video in P12. The evidence of the accessing of child -- 27 of 41 -- [2026] SADC 23 26 exploitation material was to be found in the evidence of the cached videos of CEM. This discreditable conduct evidence was relevant to the issue of possession and whether the accused knew of the pornographic nature of the material in each count. It was also said to be relevant for a propensity purpose, namely, to demonstrate that the accused had a sexual interest in male children and a tendency to act upon that interest, making it more likely it was the accused who was in knowing possession of the CEM on each device. Defence submissions 143 Mr Richards commenced his submissions by arguing that the prosecution had not established that P12 depicted an adult male having sex with a child and it has therefore not been proved that the accused produced or was in possession of CEM. Mr Richards argued that as an uncharged act of producing child exploitation material it would have to be proved beyond reasonable doubt before it could be relied upon for a propensity purpose. 144 Mr Richards argued that the prosecution had not excluded the reasonable possibility that the accused’s partner, BS, was responsible for the CEM found on each of the mobile phones, PE19, PE20 and PE22. Mr Richards pointed to the relatively small number of images of the accused on each of the phones. 145 Mr Richards said that the effect of Mr Wyatt’s evidence was that he could not exclude the possibility that any user of each mobile phone could not access the images on each phone. Accordingly, there was a reasonable doubt regarding the accused’s knowledge of those images. Findings of fact on agreed or unchallenged evidence 146 I make the following findings of fact having considered the agreed statement of facts (P18) and the unchallenged evidence led during the trial: 147 I find proved the following facts as set out in P18 (with the exception of the agreed fact in paragraph 2 which has been withdrawn): 1. When the police searched Unit 1, 310-312 Military Road, Semaphore Park on 1 August 2023 the accused was staying in the unit. 2. In the bedroom in which the accused was staying, police found: • A black Samsung galaxy phone which was assigned SAPOL exhibit number SAP2300127284PE0019 (‘PE19’), • A blue Samsung galaxy phone which was assigned SAPOL exhibit number SAP2300127284PE0020 (‘PE20’); and • A black Samsung mobile phone which was assigned SAPOL exhibit number SAP2300127284PE0022 (‘PE22’). 3. On 10 October 2023 Senior Constable First Class Alexander Ayres, investigator attached to the Digital Evidence Section of SAPOL commenced an examination and -- 28 of 41 -- [2026] SADC 23 27 extraction process of PE19, PE20 and PE22. He produced an extraction report for each of PE19, PE20 and PE22. 4. A supplementary extraction report for PE22 was produced by Mr Joshua Wyatt and contained items tagged as important. 5. PE19 was using the service number 0459779982. This service number was subscribed in the name of Shawn Humphreys between 26 October 2022 and 13 February 2023. 6. PE19 was using the service number 0473010899. This service number was subscribed in the name of Daphne Pompey between 9 August 2022 and 15 August 2022. 7. Eight other SIM cards had been inserted into PE19. The registered users would not be determined. 8. PE20 had eight SIM cards inserted into it. The registered users could not be determined. 9. PE22 was using the service number 0480269274. This service number was subscribed in the name of Megan McKenna between 20 April 2020 and 8 May 2020. Megan McKenna gave an affidavit to SAPOL on 30 August 2025 in which she said she knew the accused and they lived together in Victoria for 12 months in 2012; he stayed with her on an ad hoc basis in 2020 and she did not recall registering a mobile phone for the accused in 2020. 10. PE22 was using the service number 66835170820 between 29 May 2019 and 31 May 2019. This number could not be resolved to a specific subscriber. 11. The accused travelled overseas to Vietnam and Indonesia on 20 November 2019. On 14 March 2020 the accused returned to Australia. 148 I make the following further findings of fact based on the uncontested evidence led in the trial: 12. The photographs in P13 depict the left hand of the accused. His left hand, wrist and fingers are heavily tattooed. On the back of his left hand is a distinctive circular design containing circles (half and full) in the shape of a wheel. Two tattooed bands appear at the base of his wrist with another band further up his wrist. In between the single band and the two bands is a diamond shaped tattoo with shapes tattooed within and around it. 13. Child exploitation material was found on PE19, PE20 and PE22 as described in P3, P6 and P10. 14. The same CEM video depicting a child performing fellatio was located on PE20 and also PE22. 15. The same CEM video depicting a young adult male masturbating and ejaculating onto his face was located on PE19 and PE22. 16. The same CEM video of a young adult male masturbating was located on PE19 and PE22. 17. The same CEM video of two young adult males performing fellatio on another male was located on PE19 and PE20. -- 29 of 41 -- [2026] SADC 23 28 18. Photographs of the accused were located on PE19, PE20 and PE22. 19. The text messages in P9 and P17 were located on PE20. The text messages in P17 were sent or received between 26 December 2019 and 2 October 2022. All messages in green were from the user of the phone and all messages in blue were sent to the user of the phone. 20. The inferences that can be drawn from text messages on pages 3 to 6 and page 20 in P17 which were sent by the user of the phone are that the user of the phone was in Manila and sent photographs to another person which depicted the user with a shaved head and tattoos. 21. The text message at the top of page 19 of P17 is child exploitation material as it describes a thirteen year old child engaging in sexual activity with an adult male. 22. The inference that can be drawn from the text messages on pages 21 – 25 and 38 - 39 of P17 is that the user of the phone was a visitor to Bendigo and living in Geelong in May and June 2020. 23. The inferences that can be drawn from the text messages on page 60 - 61 of P17 are that the user of the phone had been travelling in Asia in 2019 and India in 2020 but by mid-June 2020 had been back in Australia for a couple of months. 24. The inference that can be drawn from the text messages on page 80 of P17 is that the user of the phone was in Adelaide in September 2022. 25. The inference that can be drawn from the text message on page 98 of P17 is that the user of the phone was residing at 11 Gilbert Street Ovingham on 25 September 2022. 26. The inference that can be drawn from the text message on page 59 of P17 is that the user of the phone had the name ‘Shawn’. 27. The accused told police in his record of interview on 8 December 2023 that the ‘tablets, laptops and phones and stuff’ seized by police from the bedroom in which the accused was located on 1 August 2023 were from an electronics bin at Bunnings. The accused also said that at least one or two of the phones were old phones of his. The accused said there was no child pornography on any phone of his. Evaluation of witnesses Brevet Sergeant Lawley-Sinclair 149 I accept Brevet Sergeant Lawley-Sinclair’s evidence. No real challenge was mounted to it in cross-examination. I am satisfied and find that the police located the accused and another man, BS, in the bedroom of the unit on Military Road, Semaphore. I also accept as accurate his description of the bedroom as indicating it had been inhabited for some time. Without further evidence, it is difficult to evaluate the accuracy of the information that Brevet-Sergeant Lawley-Sinclair said he had which indicated to him that the accused was staying there on an ongoing basis. Detective Brevet Sergeant Billington 150 I accept Detective Billington’s evidence which was not challenged. -- 30 of 41 -- [2026] SADC 23 29 Joshua Wyatt 151 I am satisfied that Mr Wyatt had the necessary expertise and experience to give evidence on the topics about which he testified. His evidence was explored in cross-examination but not challenged. I accept his evidence as accurate and reliable and as a consequence make the following findings of fact: 1. A file pathway on an electronic device, such as a mobile telephone, indicates where that file is located on the device. 2. The modified date is when a file on a device is accessed, changed, saved or when it first appears on a device. 3. The first seven CEM files on PE19 as referred to in P3 were video files. The first four were stored on PE19 in the folder, Telegram videos. This folder was accessible via the Files and then Telegram folders. The word ‘Telegram’ in the file pathway appeared as a result of Telegram being installed on the device. It is not possible to determine whether the modified date of the first four video files on PE19 was the date of access, saving or changing. On the modified date of the first four video files those files were accessible to the user of PE19. 4. CEM Video files 5 and 6 on PE19 as referred to in P3 were stored on the device in the movies folder in Telegram and were accessible to the user of the device. The modified date for each file (12 January 2022) was within seconds of each other. I am satisfied that they were saved or downloaded within seconds of each other. 5. Video file 7 on PE19 was accessible to the user of the device at the time it was saved or downloaded. 6. Items 8 and 9 on PE19 as referred to in P3 were CEM JPEG files and were stored under Files, application, Telegram, Telegram images. The modified date for each file (20 February 2023) was within two minutes of each other. On 20 February 2023 those files were accessible to the user of the phone. 7. CEM Items 10 and 11 on PE19 as referred to in P3 were stored in the cache and were not accessible to the user. However, to have been stored in the cache, the user must have watched or played each file. Accordingly, the user accessed the CEM in items 10 and 11 on the modified dates listed in P3. 8. It is possible that on 1 August 2023 the user of the phone did not have access to items 1-4, 7-9 on P3. On 1 August 2023 the user of the phone had access to items 5 and 6. 9. The user accounts on PE19 as referred to in P4 were created by the user of the phone on the dates referred to in P4. Photographs of the accused were found on PE19 and are referred to in P4 and shown in P5. The file path for the photographs listed as items 1, 3, 4 and 6 on P4 were the same and these photographs were stored in the cache. The modified date on those photographs as listed in P4 was the first interaction with each file. The file pathways for items 2 and 5 on P4 were the same and they were stored in the Glide cache which is a code library used by galleries for the scroll function. Items 7, 8 and 9 on P4 were stored in the same folder, Telegram/images. Items 7 and 8 were saved at the same time. 10. CEM files 1-9 on PE22 as referred to in P10 had the same file pathways and were stored in Files/Telegram/video. -- 31 of 41 -- [2026] SADC 23 30 11. CEM files 10 and 11 on PE22 as referred to in P10 had the same file pathways and were stored in the same place. The files were created on 15 October 2022. 12. The photographs of the accused found on PE22 (photographs 4 and 5 in P14 and items 1 and 2 in P11) were accessible to the user of the phone. The photographs of the accused found on PE22 (photographs 1, 2 and 7 in P14 and items 3-5 on P11) may not have been accessible to the user of the phone. Photographs 1 and 2 in P14 were not taken within a second of each other but the modified dates of those files were within a second of each other. They were saved on the phone at the same time. 13. The CEM video files on PE20 (items 3-8) were saved in the same location on PE20 in a folder called Telegram/Telegram video. The modified dates for items 16-20 on PE 20 were all within a minute of each other. They were accessible to the user on the modified dates. 14. The photographs of the accused on PE20 as listed in P7 and shown in P8 were all (with the exception of photograph 10 in P8/item 1 in P7) inaccessible to the user of the phone. 15. The user accounts on PE20 each had the username shawn or shawn humpreys (as listed on page 3 of P6). The first two user accounts were created on 15 August 2017 and 22 July 2017. 16. The messages located on PE20 appearing in P9 as items 7-16 came from Grindr. Items 1-6 were SMS. The user of PE20 when the messages were sent was ‘Shawn55’. The messages in green in P17 were from the user and the messages in blue were sent to PE20. 17. There were foreign SIM cards in PE20 from Vietnam, India, Denmark and the Philippines. 18. The application Telegram was installed on PE19, PE20 and PE22 at some point in time. 19. All CEM files on PE19 and PE20 were accessed by a user of each device on the modified dates listed in P3 and P6. The accused 152 The accused was a very nervous witness. 153 His evidence was riddled with inconsistencies and was, at times, implausible. For example, the accused’s suggestion that the name ‘Shawn’ in the Grindr and text messages found on PE20 was because his partner BS could have used his name in setting up an account was at odds with his earlier concession that he may have sent the message ‘your 13 and you have come to spend the holiday with daddy’. The accused denied sending the messages on pages 3-19 of P17. However the content of some of those messages is consistent with the agreed facts regarding the accused’s overseas travel and his appearance in the photographs found on PE20. 154 The accused agreed he was living in Melbourne in June 2020 and had an Aunt in Bendigo with whom he stayed for a while. He said he may have visited her in 2020. The text messages in P17 on page 21 and 24 regarding visiting Bendigo were consistent with his account. However, when confronted with those -- 32 of 41 -- [2026] SADC 23 31 messages, the accused said that his partner BS was from Bendigo and had connections there. The accused then said he was not sure they were his messages. 155 He gave similarly conflicting evidence regarding the messages in which the sender referred to living alone in Geelong on 31 May 2020 but possibly moving to Bendigo. Initially, the accused said the messages could definitely be his but then said it did not sound like him because he was not living in Geelong in 2020 and did not work from home. Shortly afterwards he said that he stayed with a friend in Geelong for six to eight weeks after he returned from overseas. I reject his evidence on this topic as patently false and given in order to distance himself from authorship of the messages in P17. 156 A further illustration of the conflicting evidence of the accused regarding P17 was his response in cross-examination to the question of whether he sent the message on page 60 of P17 which referred to having returned to Australia two months before, after travelling to Asia for most of the year. The accused agreed that he sent the message on page 61 of P17 which referred to being in India and having his visa cancelled. He said that was an accurate account of what happened to him when he was overseas. I formed the distinct impression when the accused was giving evidence about these messages that he realised how implausible his evidence sounded and appeared almost embarrassed to deny the obvious. 157 The accused conceded that he may have sent the message constituting child exploitation material because that was a big fetish in the community. His assertion that he was not sexually interested in that scenario was not credible. In the earlier messages the user had introduced the concept of role play in the context of proposed sexual activity between the user and the recipient of the messages. The inference that the user sent that message because the user was interested in the child exploitation scenario is irresistible. 158 I am satisfied that the user accounts on PE19 were all created and used by the accused. The accused admitted some were his accounts but suggested that others were not used by him, were inactive or had been used by BS. I reject his evidence that BS had access to all of his accounts or that someone else had created or used those accounts. 159 The accused’s concession that he sent a message in June 2020125 referring to being in India establishes that he was in possession of the mobile phone PE20 at that time. On his evidence, he was not in a relationship with BS at that time. I reject the accused’s evidence that he stopped using PE20 and that BS could have been using it. I am satisfied that he took a photograph of himself he saved to PE20 on 18 September 2022. PE20 was in the bedroom he occupied on 1 August 2023. 160 The accused testified that the Gayshare account (with a username which was in fact his own email account) was an email account used by BS. His explanation 125 Page 61, P17. -- 33 of 41 -- [2026] SADC 23 32 for why BS used that email account was nonsensical and I reject it. The accused accepted that the Instagram account created on PE20 was his account with his username. I am satisfied that all of the user accounts on PE20 were created by the accused because he was using PE20 at the time. 161 The accused agreed that all of the photographs of himself on PE22 except the last one (as shown in P14) were Instagram photographs he had uploaded to the Instagram account appearing on PE20. However, he suggested that he was not responsible for those images appearing on PE22 and said that BS used PE22 at some point during their relationship. I reject this evidence as implausible. I am satisfied that the accused was using PE22 and he saved those photographs to that device. 162 The accused was unable to explain how the images in P5 (three of which he accepted were photographs of himself) came to be on PE19. I am satisfied that they are all photographs of the accused and that they appeared on PE19 as a result of his use of PE19 on the dates referred to in P4. I reject his evidence that he did not use PE19 and that the user accounts on PE19 were being accessed by another person. I infer and find that he was using PE19 in late 2022 and early 2023. 163 Having carefully viewed P12 and compared the hand in that footage with the images of the accused’s hand in P13 I am satisfied that it is the accused in the video masturbating. I am further satisfied that the accused was masturbating whilst watching a video showing an adult male having sexual intercourse with a male child. 164 I reject the accused’s evidence that he had only been at his mother’s unit the night before police attended and was using her bedroom. The evidence of Brevet Sergeant Lawley-Sinclair established a longer term occupation of that bedroom and there was no evidence of any items in that room that might be associated with a female. 165 The accused’s evidence was so lacking in credibility that I am unable to accept his denials with respect to the possession and use of PE19, PE20 and PE22 on 1 August 2023 or in the years beforehand. I reject his evidence that he was not knowingly in possession of the CEM found on each phone. Vikki Johnson 166 The evidence of Ms Johnson was not challenged, with the exception of her account that her other son James was living in her unit on 1 August 2023 and had done so for eight years. It was unclear from her evidence how long the accused had been staying in her unit when police attended. She suggested that he would sometimes stay for one night or sometimes only for a matter of hours. I accept her evidence that James had been living in the unit for 8 years, particularly given her unchallenged evidence that he was with her in her vehicle when police attended. -- 34 of 41 -- [2026] SADC 23 33 Analysis 167 As I have rejected the accused’s evidence I must put it to one side and return to a consideration of the evidence led in the prosecution case to determine whether it has been proved beyond a reasonable doubt that the accused was, on 1 August 2023, in possession of the child exploitation material located on each device knowing of its pornographic nature. 168 When the case against an accused person rests substantially on circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.126 For the trier of fact to be satisfied beyond a reasonable doubt of the guilt of an accused person it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances enable the trier of fact to draw.127 169 The prosecution must prove that the accused was in possession of the child exploitation material found on each of the mobile telephones. Possession and ownership are different concepts. In order to have possession of an object a person must at the relevant time intentionally have control over the object. The questions to be considered are knowledge, custody and control of the relevant items. 170 In He Kaw Teh v The Queen (1985) 157 CLR 523 Gibbs CJ said: …where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element… 171 In Tabe v The Queen (2005) 225 CLR 418 Gleeson CJ said: …Lord Diplock said that in ordinary usage, "one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control". The concept of "knowledge", however, is imprecise. This, no doubt, is why Aickin J spoke of "sufficient knowledge of the presence of the drug" in Williams v The Queen. The answer to a question as to what constitutes "sufficient knowledge" for possession depends upon the purpose for which, and the context in which, the question is asked…128 172 In the same case Callinan and Heydon JJ said: The majority of the court in He Kaw Teh concluded that in the absence of a sufficient indication of contrary intention, knowledge of the accused that he or she had custody of the prohibited goods is a necessary ingredient of an offence of having possession of those goods; the word "possession" necessarily imports a mental element…129 126 Peacock v R (1911) 13 CLR 619 at 634. 127 R v Plomp (1964) 110 CLR 619 at 661; quoted with approval in Barca v The Queen (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ). 128 423. 129 466. -- 35 of 41 -- [2026] SADC 23 34 173 There is no contest that the room in which the phones were discovered was the bedroom then occupied by the accused and his partner BS. There is no doubt that the phones were discovered amongst possessions of the accused. However that fact is not sufficient to establish possession of the mobile phones, let alone the child exploitation material located on them. 174 On the topic of the proof of possession in Button v Cooper (1947) SASR 286 Mayo J said: As to proof of possession, the relationship may be inferred from acts that are consistent therewith, and that are inconsistent with any more remote association. Such acts may be proved by direct or circumstantial evidence, or by admission, and may be disclosed by the person charged in the course of conversation… 175 In The Queen v Frangos (1979) 21 SASR 331 King CJ referred to the requirement that: …In general, there is possession for this purpose where there is physical custody or control of the thing, together with the knowledge on the part of the accused that the thing is in his physical custody or control (Director of Public Prosecutions v Brooks [1974] AC 862.130 176 In the same case Walters J observed: Although what does constitute possession may vary according to each set of circumstances, and according to the context in which the word "possession" is used, it seems to me that in order to prove possession, it must ordinarily be shown that the possessor had the thing in his physical custody or control under circumstances which demonstrated that he had a conscious mental recognition of the thing’s presence, and that he was assenting to being in custody or control of it…131 In order that a person should have exclusive physical control of an article, some knowledge or intention in him is necessary to associate him with the article, but this mental element extends no further than that inherent in such control, namely, the intention to have exclusive physical control of the article itself, or some other article, or some place wherein it is in fact carried or contained or located… 177 A person can have physical possession of an item notwithstanding that is not in his "manual custody" where it is in premises occupied by him. 178 The requirement for the Crown to prove knowledge to make out the offences with which the accused is charged is greater than is the case with other offences charging possession because in this case the Crown must prove that the accused was in possession of child exploitation material knowing of its pornographic nature. 130 366. 131 339. -- 36 of 41 -- [2026] SADC 23 35 179 Where child exploitation material is found on a device under the accused’s control, the prosecution may be able to prove possession by showing that the accused downloaded and viewed the material.132 180 In order to commit the offence of possession of child exploitation material, the accused must knowingly acquire the material and store it in a place under his or her control. The placing of a file in a folder inaccessible to the accused does not, without more, constitute possession. 181 The decision of the Court of Appeal in R v Porter [2007] 2 All ER 625 is instructive and persuasive. In that decision, which considered a similar offence provision with a defence equivalent to the defence in s 63A (2) the Court held: …possession of indecent images of children on a computer presents special problems. It may seem superficially attractive to say that all that is required to prove a breach of s 160 (1) of the 1988 Act is that, to the knowledge of the defendant, the images were on the defendant’s hard disk drive within the computer which was in his custody and control at the material time. It can be argued that possession is an ordinary English word which should be given its normal meaning. Parliament has mitigated the harshness that would result from giving the word its normal meaning by expressly providing three defences in section 160 (2) and impliedly providing that knowledge is an essential element of the offence. on this interpretation (which was adopted by the judge in the present case), the fact that the images may be difficult or even impossible to retrieve is irrelevant. But this interpretation could give rise to consequences so unreasonable that we are not willing to accept it unless we are compelled to do so by the express words of the statute or by necessary implication. Its unreasonableness is well illustrated by the present case. The only way in which the appellant could have retrieved the 2700 still images which had been saved by the ACDSee programme would have been by the use of specialist techniques and equipment supplied only with the authorisation of the United States Federal Government and which were not available to the general public. It is accepted by the Crown that in reality the appellant could not have retrieved these images. In our judgment, it offends commonsense to say that they were in the possession of the appellant on 5 November 2022. … …in seeking to elucidate the meaning of ‘possession’ in section 160(1) in the present context, we see no reason not to import the concept of having custody or control of the images. In the special case of deleted computer images, if a person cannot retrieve or gain access to an image, in our view he no longer has custody or control of it. He has put it beyond his reach just as does a person who destroys or otherwise gets rid of a hard copy photograph. For this reason, it is not appropriate to say a person who cannot retrieve an image from the hard disk drive is in possession of the image because he is in possession of the hard disk drive and the computer.133 182 Based on the evidence of Mr Wyatt, I am satisfied that every item of CEM located on each of the three mobiles phones was associated with the application Telegram. In light of the fact that PE19 and PE22, PE 19 and PE20, and P20 and 132 R v Morcom (2015) 122 SASR 154, Sabourne v Western Australia [2010] WASCA 242. 133 R v Porter [2007] 2 All ER 625 at [16], [17], [20], [21]. -- 37 of 41 -- [2026] SADC 23 36 PE22 had the same CEM files on them, I infer and find that the same person was responsible for accessing and/or downloading those CEM files. Count 1 183 In light of my finding that the male in P12 is the accused, I am satisfied that this CEM video depicting an adult male having anal intercourse with a male child was downloaded or saved by the accused on 12 January 2022 at 3:46:54134. I am satisfied that the accused was the person who, 4 seconds later, downloaded a video containing child exploitation material. I am satisfied that the downloading or saving of the video showing the accused masturbating is discreditable conduct evidence from which I can infer that the accused had a sexual interest in CEM and a tendency to act upon that sexual interest by viewing and downloading or saving CEM. It is also circumstantial evidence relevant to the likelihood of the accused being in possession of the CEM the subject of each count and the issue of the accused’s knowledge of its pornographic nature. I am satisfied that these are permissible uses because the evidence is of substantial probative value having regard to the issues in the trial and the probative value outweighs any prejudicial effect. I am further satisfied that each permissible use can is and can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of it being used impermissibly. However, I direct myself that I must not reason that because the accused has engaged in this discreditable conduct, he is more likely to have committed the offences with which he has been charged. 184 I am satisfied that the photographs of the accused which are items 7, 8 and 9 on P4 were taken on different occasions and in different locations. As a result I infer and find that the modified date corresponding to those images (13 February 2023 at 12:03:28 and 12:03:29135) was the date that they were saved or downloaded. I find that it was the accused who downloaded or saved those photographs to PE19. 185 I am also satisfied that the accused was a user of Telegram at the time that those photographs were downloaded or saved to PE19. I am satisfied that it was the accused who downloaded or saved the remaining photographs listed in P4 on the modified dates listed in P4. I am satisfied that the accused was in possession of and used PE19 between 12 January 2022 and 21 February 2023. I am satisfied that the accused viewed the two CEM videos resulting in corresponding files populating in the cache (items 10 and 11) and therefore knew of the pornographic nature of those videos. 186 In light of these findings, I am satisfied that on the modified dates appearing next to the CEM in items 1-4, 7-9 on P3, Telegram had been installed on PE19 and these items of CEM were accessible to the accused. However, in light of the evidence of Mr Wyatt, I cannot be satisfied beyond a reasonable doubt that on 1 August 2023 the application Telegram was installed on PE 19 and accordingly I 134 Plus 10.5 hours. 135 Plus 10.5 hours. -- 38 of 41 -- [2026] SADC 23 37 cannot be satisfied that items 1-4 and 7-9 were accessible to the accused on 1 August 2023. 187 The following evidence establishes beyond a reasonable doubt that the accused was in possession of PE19 on 1 August 2023: • The photographs of the accused and user accounts on PE19. • The fact that PE19 was located in a bedroom occupied by the accused. 188 I am further satisfied that the accused knew that the CEM in items 5 and 6 was on PE19 on 1 August 2023 and he knew of its pornographic nature because he deliberately saved or downloaded the CEM to that device and it was accessible to him on that date. I am satisfied beyond a reasonable doubt that this is the only rational inference to be drawn from the evidence led on this count. 189 I find the accused guilty of count 1. Count 2 190 In light of the content of the text and Grindr messages on PE20 and the accused’s concessions with respect to authorship of some of those messages, I am satisfied that he was the user of PE 20 at the time that messages were sent and received using PE20. Accordingly, I am satisfied that he was a user of PE20 between 26 December 2019 and 2 October 2022. I am satisfied beyond a reasonable doubt that the accused has engaged in discreditable conduct by producing child exploitation material when he authored the text message on 26 December 2019 at 10:35:22 describing a thirteen year old child engaging in sexual activity with an adult male. 191 This discreditable conduct evidence is evidence from which I can infer that the accused had a sexual interest in child exploitation material and is circumstantial evidence relevant to the likelihood of the accused being in possession of the CEM the subject of counts 2 and 3 and the issue of the accused’s knowledge of its pornographic nature. I am satisfied that this is a permissible use because the evidence is of substantial probative value having regard to the issues in the trial and the probative value outweighs any prejudicial effect. I am further satisfied that the permissible use can is and can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of it being used impermissibly. 192 This message and my verdict on count 1 establishes that the accused had a sexual interest in viewing sexual activity engaged in by children or between children and adults and a tendency to act upon that interest by viewing and downloading child exploitation material. I direct myself that I cannot reason that, because the accused has engaged in this discreditable conduct, he is more likely to have committed the offences with which he has been charged. -- 39 of 41 -- [2026] SADC 23 38 193 I am satisfied that the accused was using PE20 between 19 February 2022 and 23 August 2022 because eight images of him were located on PE20 in the cache between those dates (as set out in P7 and P8). 194 I am satisfied that the CEM files on PE20 were accessed and downloaded on the modified dates referred to in P6, namely between 5 July 2022 and 13 August 2022. Taking into account my findings regarding P17, P7 and P8, I am satisfied that the accused was in possession of and using PE20 on the dates the CEM files were accessed and downloaded. I infer and find that he was responsible for downloading those CEM files and was aware of the pornographic nature of that material. 195 Mr Wyatt explained why he was confident that the CEM files on PE20 were accessible to a user of that device. Whilst he could not exclude the possibility that the user could not access those CEM files, based on his explanation for the high degree of confidence he expressed, I am satisfied that on 1 August 2023 those files were accessible to a person in possession of PE20. 196 The following matters establish beyond a reasonable doubt that the accused was in possession of PE 20 on 1 August 2023: • The photographs of the accused and user accounts on PE20. • The longstanding use of PE20 by the accused as evidenced by P17. • The fact that PE20 was located in a bedroom occupied by the accused. • My finding that the same person accessed or downloaded all of the CEM on each of the three mobile phones. • The verdict on count 1 and the finding that the accused had a sexual interest in child exploitation material and a tendency to act upon that interest by accessing child exploitation material. 197 Accordingly I am satisfied that the only rational inference the evidence permits me to draw beyond a reasonable doubt is that the accused was in possession of the child exploitation material described in P6 knowing of its pornographic nature. 198 I find the accused guilty of count 2. Count 3 199 I have taken into account the verdicts on counts 1 and 2 and the discreditable conduct I have found proved in evaluating the evidence on count 3. The permissible use of this evidence is that it established that the accused had a sexual interest in viewing CEM and a tendency to act on that interest by accessing or downloading CEM. The other permissible uses relate to the issue of possession of the CEM the subject of this count and the accused’s knowledge of its pornographic nature. I direct myself that I cannot reason by virtue of the guilty verdicts or the -- 40 of 41 -- [2026] SADC 23 39 other discreditable conduct evidence that the accused is more likely to have committed this offence. 200 Mr Wyatt explained why he was confident that the CEM files on PE22 were accessible to a user of that device. Whilst he could not exclude the possibility that the user could not access those CEM files, based on his explanation for the high degree of confidence he expressed, I am satisfied that on 1 August 2023 those files were accessible to a person in possession of PE22. 201 The photographs of the accused found on PE22, the fact that PE22 was located in a bedroom occupied by the accused, together with the verdicts on counts 1 and 2 and the finding that the accused had a sexual interest in CEM and a tendency to act on that interest by accessing or downloading CEM satisfies me that the accused was responsible for accessing and downloading onto PE22 the CEM listed in P10. 202 I am satisfied that the only rational inference the evidence permits me to draw beyond a reasonable doubt is that the accused was in possession of child exploitation material on 1 August 2023 knowing of its pornographic nature. 203 I find the accused guilty of count 3. Verdicts 204 Guilty of counts 1, 2 and 3. -- 41 of 41 --