[2024] SADC 70

Accused: JOSHUA MICHAEL BIDGOOD Counsel: MR P MORRISON - Solicitor: CALDICOTT & ISSACS LAWYERS Prosecution: R Counsel: MS T COSTI & MS A O'SULLIVAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 30/04/2024 File No/s: DCCRM-23-026285 A 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 BIDGOOD [2024] SADC 70 Reasons for the Verdict of her Honour Judge Davison 14 June 2024 CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - PROCURING A CHILD TO ENGAGE IN OR SUBMIT TO SEXUAL ACTIVITY - ELEMENTS The accused was charged with an offence contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA), procuring a child for sexual activity. The trial proceeded without a jury. The question for determination is whether the prosecution was required to prove an intention by the accused to procure a child. Held: The offence of procuring a child for sexual activity does not require proof that the accused intended to procure a child for sexual activity. Verdict: Guilty. Criminal Law Consolidation Act 1935 (SA) ss 5aa(1)(E)(i),49, 58(1)(B), 63B, 63B(3), 63B(3)(a), 63B(4), 63B (7); Juries Act 1927 (SA) s 7(1), referred to. R v Athans [2021] SADC 1; Athans v The Queen (No 2) (2022) 300 A Crim R 389; R v Barrie (2012) 218 A Crim R 448; R v Clarke (2008) 100 SASR 363; He Kaw Teh v Queen (1985) 157 CLR 523; R v Prince (1875) LR 2 CCR 154; R v Symons (2018) 130 SASR 50, considered. -- 1 of 13 -- -- 2 of 13 -- R v BIDGOOD [2024] SADC 70 Introduction 1 Joshua Michael Bidgood was charged with the offences of procuring a child for sexual activity and possessing child exploitation material. Both offences were listed for trial. On the morning of trial, he pleaded guilty to the offence of possessing child exploitation material. The trial then proceeded in relation to the offence of procuring a child for sexual activity.1 2 The accused elected for trial by judge alone. The trial was conducted without a jury.2 No oral evidence was called in this trial. The trial proceeded with a series of agreed facts3 and a number of documents being tendered, including: 1) A chart of the messages between the accused and the complainant and the data supporting those messages.4 2) A schedule of the child exploitation material, being the images sent from the complainant to the accused.5 3) Redacted images that had been sent by the complainant to the accused.6 4) The interview between the police and the accused on 20 November 2022.7 5) A transcript of the interview.8 3 An unredacted copy of the images in Exhibit P4 was available for me to view. I viewed those images during a break on the day of trial in chambers and returned them to the prosecution. The interview between the police and the accused was viewed in court. The accused did not give, nor did he call any evidence. The Charge Count 1: Offence Details Procuring a Child For Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935). Particulars 1 Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a). 2 Juries Act 1927 (SA) s 7(1). 3 Exhibit P1. 4 Exhibit P2. 5 Exhibit P3. 6 Exhibit P4. 7 Exhibit P5. 8 MFI P6. -- 3 of 13 -- [2024] SADC 70 2 Joshua Michael Bidgood between the 1st day of April 2022 and 11th day of April 2022 at Coromandel Valley, procured K I E, a person under the age of 17 years, to engage in, or submit to, sexual activity. Prosecution Case 4 On the prosecution case, the charge of procuring a child to engage in sexual activity was proved by the content of the text message communications between the accused and the complainant, who was a 13 year old girl at the relevant time. It was submitted that, the inference to be drawn from the communications was that the accused had procured the complainant to engage in sexual activity. It was alleged he did this by asking her for sexually explicit images of herself and engaging in sexualised conversations with her. It was alleged that the whole purpose of the communication the accused had with the complainant, was to engage in sexual activity with her. It was alleged that she did in fact engage in sexual activity, by contributing to those conversations and, at his request, sending him images of herself that were sexually explicit. 5 In the record of interview with the police, the accused admitted that he spoke to the complainant on ‘Snapchat.’ He said he had since deleted the conversation. He also said, ‘I didn’t know that, I don’t even know how old she is to be honest.’ He went on to say that he had no intention to pursue the discussion and said:9 A No I didn’t…I…I didn’t…had no intention to actually… Like…I don’t know, yeh, I didn’t realise that. I don’t know. Like, just talking, that was all I was, though it was. But. I guess yeh, that’s more than that isn’t it. Q Sorry. When you say, “just talking,” what does that mean. A Talking to her. Not, not… I wasn’t trying to wanting to meet up and do anything. Q You weren’t trying to meet up or anything. A No, no, I didn’t…no. No not at all. Q Ok. So what was the purpose of speaking to her? A Ha…honestly, just marriage troubles and just trying to find an outlet which wasn’t a health one, and I didn’t necessarily…..yeh….I suppose I should of something about making sure of ages and stuff. Ahhh fuck Q Ok. So tell me about what you spoke about. A Un which part, sorry. Q Tell me about, tell me about this person then. A So, I…yeh..i guess I suppose, but, just Snapchat and then just, we just started talking and then just got her number, and I guess that’s how the numbers came up, but. It’s definitely yeh, yeh, bit of flirting, which….ahh… 9 MFI P6, p 114. -- 4 of 13 -- [2024] SADC 70 3 Q Bit of flirting. A Yeh. We were flirting yeh. Q Yep. Can you tell me about that? A Yeh, well it wasn’t exactly PG was it…. yeh. 6 There was no dispute in this trial that it was the accused who had communicated with the complainant and that he had received the images as a part of the communication. There was no dispute that the complainant was 13 years old at the time of the conduct that is the subject of the charge. Elements of the charged offence 7 This matter turned on the elements of the offence of procuring a child for sexual activity, s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (‘the Act’). 8 The Prosecution submits that the elements of this offence are that: 1) The accused procured a person to engage in or submit to sexual activity. 2) The person was a child under the prescribed age. 3) The accused intended to procure a person to engage in or submit to sexual activity. 9 The defence submits the elements of the offence are that: 1) The accused procured a child to engage in or submit to sexual activity. 2) The child was under the prescribed age. 3) The accused intended to procure a child under the prescribed age to engage in or submit to a sexual activity. 10 It was submitted by the defence that s 63B(3)(a) of the Act requires the prosecution to prove an intention by the accused to procure a child under the prescribed age, on the facts of this case, under the age of 17 years. Legislation 63B—Procuring child to commit indecent act etc … (3) A person who— (a) procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or -- 5 of 13 -- [2024] SADC 70 4 (b) makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity, is guilty of an offence. … (4) It is a defence to a charge under subsection (1)(a), (1)(b)(i) or (3) (other than where the defendant was in "a position of authority in relation to the child) if the defendant proves that— (a) the child was, on the date on which the offence is alleged to have been committed, of or above the age of 16 years; and (b) the accused— (i) was, on the date on which the offence is alleged to have been committed, under the age of 17 years; or (ii) believed on reasonable grounds that the child was of or above the age of 17 years. … (7) For the purposes of this section, the "prescribed age" of a child in relation to a person is— (a) if the person is in a position of authority in relation to the child—18 years; or (b) in any other case—17 years. 11 As was observed by Vanstone J in R v Barrie,10 s 63B(3) creates three distinct offences, two of which are concerned with communication offences, accompanied by a particular intention. The third is the offence of procuring a child to engage in or submit to a sexual activity. It is the third that is the subject of this case. 12 This offence was the subject of a trial before Judge David (as she then was) in R v Athans.11 In her reasons, her Honour set out the elements of the offence as follows:12 1. The accused procured a person to engage in or submit to sexual activity. The term ‘sexual activity’ includes sending explicit photographs, such as a photograph of a penis, animations or sexual memes and engaging in discussions about them. 2. The other person is a child under the prescribed age. In this case, the prescribed age is a person under the age of 17 as there was no allegation that the accused was in a position of responsibility in respect of any of the complainants. 10 R v Barrie (2012) 218 A Crim R 448. 11 R v Athans [2021] SADC 1. 12 R v Athans [2021] SADC 1 [10]. -- 6 of 13 -- [2024] SADC 70 5 3. The accused intended to procure a person to engage in, or submit to, sexual activity. 13 The issue in R v Athans was a question of the identity of the offender, as such, the trial judge was not required to consider the elements in any greater detail as no issue was taken in relation to them. 14 The Court of Appeal heard the appeal against conviction, there was no issue raised in relation to the elements of the offence.13 The appeal focused upon the admissibility of the oral evidence of witnesses as to their observations of the electronic messages or ‘Snaps.’ Livesey P with whom Lovell JA generally agreed, recited the elements of the offence as outlined by Judge David. 15 For the reasons that follow, I agree that the elements of the offence of procuring a child to engage in or submit to a sexual activity are as Judge David determined in R v Athans.14 Defendant’s Argument 16 The argument put by the defendant in this matter is that the offence of procuring a child to engage in or submit to a sexual activity, must be considered within the context of s 63B(3)(a). It was submitted that the subsection creates two offences, each with a different actus reus. It was argued however, that the mental element is the same for both. 17 It was said that the mental element is that the defendant ‘had the intention of procuring a child under the prescribed age’ to engage or submit to a sexual activity. As such they argue that this offence can be distinguished from an offence of unlawful sexual intercourse (s 49) or an offence against s 63B(1)(a) of the Act, where that provision make no reference to a mental element.15 Further, they argue that it would be incongruous for a subsection of the Act to create two offences, one of which includes a specific intent to procure a child, when the other does not. They argue this would lead to an absurd result. Principles of interpretation 18 As explained by Doyle CJ in R v Clarke16 the relevant principles of statutory interpretation are found in He Kaw Teh v The Queen:17 The principles of interpretation that bind this Court are to be found in He Kaw Teh v The Queen (1985) 157 CLR 523. There the High Court considered at length the principles that govern a case like this. The decision establishes (or confirms) that statutes creating offences are to be interpreted bearing in mind the common law principle or presumption that an ingredient of an offence is knowledge of the wrongfulness of the relevant acts. 13 Athans v The Queen (No 2) (2022) 300 A Crim R 389. 14 Ibid. 15 Criminal Law Consolidation Act 1935 (SA). 16 R v Clarke (2008) 100 SASR 363 [15]. 17 He Kaw Teh v The Queen (1985) 157 CLR 523. -- 7 of 13 -- [2024] SADC 70 6 19 This presumption is rebuttable, and a statute is to be construed in light of the presumption. 20 Doyle CJ then went on to set out the relevant principles in respect of the presumption, as had been summarised by Brennan J in He Kaw Teh:18 1. There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind. 2. There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either—(a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent. 3. The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind. 4. The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides. Earlier in his reasons at [565] he had said: When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind. He then went on to consider, in some detail, the various states of mind that might be relevant and in particular referred (at 576) to “knowledge or absence of exculpatory belief’’. 21 There is common agreement between the parties that the proper approach in respect to this matter is as outlined by Gibbs CJ in He Kaw Teh. That approach is to firstly have regard to the words of the statute. Secondly, to consider the subject matter with which the statute deals, and thirdly, to consider whether a construction of absolute liability would promote observance of that statue. Words of the statute 22 Looking firstly, at the words of the statute. The s 63B(3) creates three different offences. These offences are: 1. procuring a child under the prescribed age to engage in or submit to, a sexual activity, 18 R v Clarke (2008) 100 SASR 363 [15]. -- 8 of 13 -- [2024] SADC 70 7 2. making a communication with the intention of procuring a child under the prescribed age to engage in or submit to a sexual activity. 3. making a communication for a prurient purpose and with the intention of making a child amenable to a sexual activity. 23 The actus reus for each of these offences is different. For the first, a child under the prescribed age must be procured. That is, it must be established that the child actually engages in (or submits) to a sexual activity. As Blue J observed in R v Symons, this does not create an offence of engaging in a sexual activity with a child. Rather it merely creates an offence of procuring engagement in (or submission to) the sexual activity.19 24 This can be contrasted with the second offence that does not require any sexual activity rather it focuses on the defendant’s intention to procure a child for sexual activity. This offence is similar in nature to the inchoate offence of attempt. It is for this reason that the focus is upon the intention of the defendant. If there was no requirement for such an intention, then no offence would have been committed as no child has in fact submitted to sexual activity. 25 It is plain that in the first offence there is no element included of a specific intention or indeed a requirement that an offender have knowledge of the age of the person who is being procured. 26 The defendant’s argument is that I should read s 63B(3)(a) to include the words ‘with the intention of procuring a child under the prescribed age in relation to that person’ as being an element of the offence of procuring a child. This would then result in the prosecution needing to prove that a child had been procured and that the accused had intended to procure a child to engage in or submit to sexual activity. 27 There would therefore need to be a specific intention, as opposed to reckless indifference, to procure a child under the prescribed age. A literal reading of the section does not support such an interpretation. This offence is complete if the defendant procures a person, who is a child, for sexual activity. To procure is the action of causing, arranging, or bringing about the engagement in or submission to the sexual activity. If the defendant’s intention is to cause sexual activity and he does so with a child, then the offence is complete. 28 The offence of procuring a child is a completed offence where it is necessary for the prosecution to prove that a child has indeed been procured to engage in or submit to sexual activity. This is as opposed to the second offence, that is making communication whereas it is not a necessary element of that offence that a child has indeed been procured. This is directed to the offender who makes a 19 R v Symons (2018) 130 SASR 503. -- 9 of 13 -- [2024] SADC 70 8 communication with the intention of procuring a child, this may be seen to be an incomplete offence in the sense that no child has indeed been procured. 29 I am fortified in this view by the presence of s 63B(4) that provides a defence to this offence, in limited circumstances, where the child procured was of or above the age of 16 years and the accused was under the age of 17 years or believed on reasonable grounds that the child was of or above the age of 17 years. 30 In the event that it was necessary for the prosecution to prove an intention by the accused to procure a child under the prescribed age of 17 years (unless he is in a position of authority) then this defence, that is said to specifically relate to s 63B(3), would have no application because as argued by the accused, the charge could not be proved unless he had intended to procure a child under the age of 17 years. 31 I am also mindful of the definition in s 5AA(1)(e)(i) of the Act, that provides for the circumstances of aggravation, specifically in respect of this offence. It is that the accused had a belief that the child who was procured, was under the age of 14 years. The legislature has made it plain that it is only in circumstances where an accused held such a belief that this offence would be aggravated. 32 I consider that the words of s 63B(3)(a) are plain that if an accused procures a child to engage in or submit to sexual activity and that act is proved beyond reasonable doubt, the offence is made out. Subject matter 33 Turning to the second consideration being the subject matter of the offence, the imposition of absolute liability for sexual offences against children is not new or novel in respect of this legislation. The offence of unlawful sexual intercourse with a child pursuant to s 49 of the Act, whether that child be under 14 years or under 17 years, has always been regarded as an offence of absolute liability. It too has a defence in very similar terms to that of s 63B(4). 34 The rationale for this is explained in R v Prince by Blackburn J in the following terms:20 It seems to us that the intention of the legislature was to punish those who had connection with the young girls, though with their consent, unless the girl was in fact old enough to give a valid consent. The man who has connection with a child, relying on her consent does it at his peril if she is below the statutable age. There was no element of the offence of carnal knowledge requiring proof that the defendant was aware that the child was under the prescribed age. Further, the common law defence of reasonable mistake of fact was not available to a defendant even if they held reasonable belief that the child was over the statutorily prescribed age. 20 R v Prince (1875) LR 2 CCR 154. -- 10 of 13 -- [2024] SADC 70 9 35 In R v Symons, Kourakis CJ [4], observed that the specific purpose of s 63B(3) was to ‘proscribe the sexualisation of children by adults.’21 Further, he said, ‘the sexualisation of children was in itself a serious societal mischief but the gravity of the offending also lies in the experience that this sexualisation commonly leads to other serious sexual assaults on children.’22 36 This interpretation of the section is consistent with other offences which involve sexual activity with an actual child. The interpretation does facilitate the purpose of the legislation to protect children from sexual activity. 37 This approach does not rely upon a consideration of just a literal approach to the interpretation of the statute and a consideration of the legislative scheme that has been created in respect of offences in which children are in fact alleged to have been engaged in sexual activity. It also incorporates a consideration of the subject matter. 38 Division 11 and 11A of the Act contains a number of offences that deal with the exploitation of actual children. Unlawful sexual intercourse in s 49, acts of gross indecency in s 58 and s 58(1)(b), that punishes the offence of inciting or procuring the commission of any act of gross indecency by a person under the age of 16 years with the accused or in the presence of the accused or with any other person in the presence of the accused are examples of this. Each of these imposes an absolute liability in respect of the defendant’s intention or knowledge in relation to the age of the child. 39 As Doyle CJ acknowledged in R v Clarke, when dealing with an offence pursuant to s 63B(1), s 58(1)(b) imposes an absolute liability in relation to the age element of that offence.23 The policy underlines that this is a coherent scheme throughout the Act. In finding that Parliament had indeed created an offence of absolute liability in relation to s 63B(1)(a), there could be no justification to interpret their intention in respect of s 63B(3) in any other way. The underlying intent to protect actual children from engaging in sexual activity where they are procured to engage in or submit to sexual activity or indeed where they are incited or procured to commit an indecent act, may be of little difference but the common thread is that both require the prosecution to prove that a child has indeed been engaged in such activities. 40 In this matter, the accused submits that it is an element of an offence contrary to s 63B(3)(a) that the accused intended to procure a child under the prescribed age in relation to that person. Further they submit, that at least in relation to the communications offences, created by s 63B(3)(a), it is a requirement that there be an intention on behalf of the accused to procure a child under the prescribed age. They submit that the consequence of the interpretation for which the prosecution contend is that s 63B(3)(a) would create two offences, each with separate elements. 21 R v Symons (2018) 130 SASR 503. 22 Ibid. 23 R v Clarke (2008) 100 SASR 363. -- 11 of 13 -- [2024] SADC 70 10 The first being that the accused procured a child to engage in or submit to sexual activity and the second that he communicated with the intention of procuring a child to engage in or submit to sexual activity. The second of these obviously has a mental element that must be proved by the prosecution that the accused intended to procure a child, whereas the first has no such element. The accused submits that such a result would lead to an absurdity, such that it cannot be allowed to stand. It was put that it would result in a nonsensical result of an application of criminal liability, if in the case of a completed act (the child was procured to engage in or submit to a sexual activity) the accused was not required to intend to communicate with a child, yet in cases where the Act was not completed, Parliament required an intention to communicate with a child. 41 I have already dealt with this submission to some extent. I do not accept that there would be a nonsensical or absurd result in such an interpretation. Plainly, if the prosecution charged an accused with an offence of procuring a child to engage in or submit to a sexual activity, the prosecution would have to prove that the child who was procured, was indeed under the prescribed age at that time. That being so, a child has engaged in or submitted to a sexual activity. The obvious difference between that and the communication offences is that although an accused has communicated with the intention of procuring a child for a prurient purpose and with the intention of making a child amenable to sexual activity, in the usual course a child has not yet engaged or submitted to that sexual activity. It is the fact that a child has engaged in or submitted to sexual activity that distinguishes these offences. Observance 42 The third consideration relates to whether the imposition of an absolute liability offence would promote observance of it. The question is whether a person should be held liable for an offence they were potentially unaware they were committing. This issue was discussed by Doyle CJ in Clarke. Although that case was in relation to pornographic material, the present case is not dissimilar. In this case, the sexual activity in which the child engaged, encompasses the taking and sending of child exploitation material and engaging in sexualised conversation with the accused. 43 His Honour said at [49]:24 …Punishing persons like Ms Clarke will demonstrate the need for those who deal with pornographic material to take great care that persons under the age of 16 years are not involved. It is feasible to take precautions. It cannot be said that there is no point in imposing absolute liability, because those likely to be subject to that liability are unable to protect themselves by taking appropriate precautions. I do not deny that there will be children who succeed in deceiving others as to their age. Nor do I minimise the difficulty in obtaining appropriate proof in some circumstances. However, there are sensible arguments connected with the enforcement of the statutory regime that support the imposition of absolute liability in relation to the age of the person involved. Similar 24 R v Clarke (2008) 100 SASR 363. -- 12 of 13 -- [2024] SADC 70 11 considerations apply to the enforcement of s 63B. Section 63B has a good deal in common with s 58(1)(b), which punishes a person who incites or procures the commission by a person under the age of 16 years of an act of gross indecency. A policy of imposing absolute liability in relation to the age element of the offence is a coherent one, even though there will be cases in which the person found guilty might be regarded as outside the scope of the statutory policy, for example, a person aged less than 16 years who incites or procures the commission of an indecent act by another person of a like age. 44 It is worth noting that although the prosecution is, in my view, not required to prove that the accused intended to procure a child under the prescribed age, the legislation has seen fit to provide a limited defence in respect of the age of the complainant in s 63B(4). Analysis 45 On the facts of this case, the accused engaged in communications with the complainant, who was 13 years old at the time. A consequence of him engaging in communications was that he procured, that is, caused her to engage in sexual activity. That sexual activity included sending images of herself that amounted to child pornography and engaging in graphic and sexualised conversation that amounts to behaviours, such as were described by Kourakis CJ (with whom Kelly J agreed) in R v Symons.25 46 I am satisfied that the accused procured a person to engage in or submit to sexual activity, that person was a child under the prescribed age, being 13 years old and that he intended to procure a person to engage in or submit to sexual activity. I am satisfied that each of the elements of the offence are proven beyond reasonable doubt. I therefore find the accused guilty of the charged offence. 25 R v Symons (2018) 130 SASR 503. -- 13 of 13 --