[2024] SADC 95

Prosecution: R Counsel: MS K SMITH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MARK ALAN RYLE Counsel: MR W MICKAN - Solicitor: CALDICOTT + ISAACS LAWYERS Hearing Date/s: 25/03/2024 to 27/03/2024, 06/05/2024, 27/06/2024 File No/s: DCCRM-23-031522 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 RYLE Criminal Trial by Judge Alone [2024] SADC 95 Reasons for the Verdict of her Honour Judge Telfer 6 August 2024 CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES The accused was charged with procuring a child to engage in, or submit to, a sexual activity. It was alleged that he procured a 14-year-old child to engage in or submit to sexualised conversations over Facebook Messenger. The child was not previously known to the accused, and they connected with one other via social media. The prosecution relied on records of relevant communications stored on a mobile telephone obtained from a child who is alleged to be the victim in the matter. The child was not called to give evidence. The prosecution sought to prove that it was the accused who was the user of one Facebook Messenger account which participated in the conversation, and that the child was the user of the other. The prosecution has proved that the accused was the user of the Facebook Messenger service which communicated with a service proved to be used by a child. The messages on their face proved that the child was procured to submit to a sexual activity, and that was the accused’s intent. Held: The accused is Guilty of procuring a child to engage in, or submit to, a sexual activity. Criminal Law Consolidation Act 1935 (SA) 63B; Evidence Act 1929 (SA) 34P, referred to. R v Symons (2018) 130 SASR 503; R v Ryle [2024] SADC 59; R v Winner (1995) 79 A Crim R; R v Keyte (2000) 78 SASR 68, considered. -- 1 of 12 -- -- 2 of 12 -- R v RYLE [2024] SADC 95 1 The accused Mark Ryle is charged with one count of procuring a child to engage in, or submit to, a sexual activity, pursuant to section 63B(3)(a) of the Criminal Law Consolidation Act (CLCA). Mr Ryle elected for trial by judge alone. 2 The prosecution allege that between 1 November 2022 and 30 November 2022 Mr Ryle communicated with a child who I will refer to by the pseudonym ‘Rebecca’. The communications occurred over the electronic communication platform Facebook Messenger. It is alleged that the accused was the user of a Facebook profile ‘Mark Green’ which he used to communicate with Rebecca. The prosecution allege that the accused, in the course of those communications, procured Rebecca to engage in or submit to sexual activity. The sexual activity alleged was sexualised discussions, an activity falling within the broad definition of sexual activities discussed in R v Symons.1 3 In November 2022 Rebecca was 14 years of age.2 She was a vulnerable child in the care of the State living in a group home with paid carers. Her behaviour and circumstances had brought her into contact with the youth criminal justice system and she had an appetite for cigarettes and illicit drugs. 4 Rebecca was not called to give evidence on the prosecution case. The prosecution relied on the series of messages which were identified on the Facebook profile accessible from a mobile telephone located by police in her possession. The prosecution relied on several pieces of circumstantial evidence to prove that Rebecca was the user of the Facebook profile communicating with the Mark Green profile, and the accused was the person communicating using the Mark Green profile. 5 At the conclusion of the prosecution case defence counsel argued that Mr Ryle had no case to answer. That proposition relied on a submission as to the elements of the offence charged. I ruled that there was a case to answer.3 In the course of that ruling, I identified the following as the elements of the offence charged: 1. That the accused procured a person to engage in, or submit to, sexual activity; 2. The person was a child under the prescribed age (17); and 3. The accused intended to procure a person to engage in, or submit to, sexual activity. 1 (2018) 130 SASR 503 at [3]-[4]. 2 Exhibit P7, Birth Certificate. 3 R v Ryle [2024] SADC 59. -- 3 of 12 -- [2024] SADC 95 2 6 I ruled that the prosecution did not have to prove as an element of the offence that the accused knew that the person procured was a child under the prescribed age (17). 7 Four central issues therefore arise for determination: 1. Have the prosecution proved that the accused made the communications alleged using the Facebook Messenger profile Mark Green. 2. Have the prosecution proved that the communications were made with Rebecca, a child under the age of 17 years. 3. Have the prosecution proved that Rebecca was procured to engage in or submit to sexual activity (sexualised discussions) by those messages. 4. Have the prosecution proved that the accused intended to procure Rebecca to engage or submit to that behaviour. Preliminary Directions 8 In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:4 It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. ... The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. (References omitted) 9 With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter. Presumption of Innocence and Right to Silence 10 The accused has the presumption of innocence in his favour. He is innocent of the charges unless and until the prosecution prove his guilt beyond a reasonable doubt, and the accused need not prove anything. He cannot be convicted on any 4 R v Winner (1995) 79 A Crim R 528 at 530-531, cited in R v Keyte (2000) 78 SASR 68 at [54]. -- 4 of 12 -- [2024] SADC 95 3 count unless the evidence relevant to that count proves the elements to the requisite standard. 11 In this matter the accused chose not to give evidence. He was under no obligation to do so, and I draw no inference from the fact that he exercised his right to silence at trial. 12 The accused did however answer questions at the time of his arrest and interview. A recording of the arrest and interview was tendered as exhibit P4 (transcript MFIP5). I have used the transcript as an aide memoire only, and where the words spoken on the recording differ from the transcript, I have preferred my own conclusion as to the words spoken. I have referred to relevant admissions that he made in the course of that interview below. Discreditable Conduct 13 Evidence was called in this matter that had the capacity to suggest that the accused was a drug user and had sold, and was prepared to sell or supply, illegal drugs. There was evidence he was prepared to supply cigarettes to someone who was too young to purchase them. When police attended his home, it is apparent that they located growing cannabis plants. 14 This evidence was admitted for two purposes: 1. The references to drug use formed an integral part of the circumstances of the procurement. That is, it is alleged that the accused discussed access to cigarettes and drugs as a way of incentivising the sexual contact he was seeking. 2. As a piece of circumstantial evidence that links the accused to the profile ‘Mark Green’ because he has cannabis available to him, and the person using the profile represented himself as having cannabis available to him.5 15 The possession of cannabis, the various references to the sale and supply of illicit drugs, and supply of cigarettes are all discreditable conduct and they reflect poorly on the character of the accused. I have not used the evidence identified above for any purpose apart from the two permissible purposes. In particular, I have not engaged in reasoning that the accused is a bad person and therefore is more likely to have committed the offences charged. That reasoning would be wrong and unfair. Background to the messages 16 In November 2022 Rebecca was a 14-year-old child who found herself regularly in contact with police and the criminal justice system. On 27 November 2022 Police Officer Senior Constable Kassebaum was tasked to locate Rebecca 5 Evidence Act 1929 (SA) s 34P(2)(a), requiring that the permissible use outweigh any prejudicial effect on the accused. -- 5 of 12 -- [2024] SADC 95 4 who had been reported to police as a missing person. Senior Constable Kassebaum was familiar with Rebecca’s appearance. At that time, Rebecca was subject to home detention monitoring as part of her bail obligation and police were provided with tracking data that identified her location. She was located on Brodie Road at Morphett Vale, and was transported by police back to her home. Rebecca was searched and some items suspected to be illicit drugs were located. Rebecca gave police permission to examine the contents of a mobile telephone which was in her possession. Rebecca also provided the police officer with a charger that she retrieved from her room which fit the phone.6 17 Constable Kassebaum noticed that Rebecca had a number of social media applications on the phone, among them Facebook Messenger. In examining the messages in that application Constable Kassebaum identified messages from the user Mark Green. He identified messages that were, in his view, sexualised.7 He then photographed the series of messages, including screen images related to the profile of the user Mark Green. Who is the user of the Facebook profile Mark Green? 18 The prosecution relied on a number of pieces of circumstantial evidence coupled with admissions made by the accused during his interview to prove that he was the user of the profile Mark Green. The circumstantial evidence is a number of images associated with the profile which can be matched, or are consistent with, the accused. 19 An image of an arm in the Mark Green Facebook profile depicts tattoos across the shoulder and down the arm.8 The appearance and location of those tattoos are consistent with the appearance of tattoos on Mr Ryle which are visible in the record of interview with him.9 Also featured on the Mark Green profile is an image of a silver Holden Ute, of an appearance consistent with the appearance of a silver Holden Ute parked at the accused’s property on the day of his arrest. Mr Ryle told police that the silver Ute belonged to him.10 Finally, there is a photograph of a male face on the profile of Mark Green. I am satisfied having seen the recording of Mr Ryle’s arrest and observing him in court that the image is consistent with it being Mr Ryle. 20 When police attended Mr Ryle’s premises on 29 October 2022 he was interviewed and the questions and answers were recorded. He was asked whether he had a Facebook user profile and he told police that he operated one under the name Mark Green. He admitted that through Facebook Messenger, he had been talking to a girl identified as Rebecca.11 6 TS 122. 7 TS 124. 8 Exhibit P2. 9 Exhibit P4. 10 Exhibits P11 and P3. 11 Real name replaced with pseudonym. -- 6 of 12 -- [2024] SADC 95 5 21 On the basis of the various circumstances referred to and the accused’s admissions, I find it proved that the accused was the user of the Facebook profile Mark Green, and that he was responsible for the various communications recorded in Exhibit P1 as sent by someone using that profile. Who is the user of the Facebook profile [Rebecca]? 22 The prosecution also sought to prove circumstantially that the user of the Facebook profile receiving the messages was Rebecca, and was therefore a child under the prescribed age (17). There was no direct evidence on this topic as Rebecca was not called to give evidence. I draw no inference against the prosecution for the failure to call her to give evidence and I do not take the absence of her evidence into account in any way. 23 The Facebook profile bears the name [Rebecca…..[Surname T]]. [T] is the surname of Rebecca’s Mother. On the home page for that profile is an image of two young girls, one of whom has the phone camera obscuring her face. Detective Brevet Sergeant Brown gave evidence that over time she has had contact with both Rebecca, and her younger sister Jacinta (a pseudonym). Although Detective Brown could not see the face of one of the girls on the profile, she recognised the second girl as Jacinta. 24 Constable Kassebaum was also shown the image of the two girls. He had also had professional contact with both Rebecca and her younger sister Jacinta. His evidence was that the girl whose face could be seen was either Rebecca or Jacinta. The girl with her face covered he said was the other sister. He offered that opinion not on the basis of the appearance of that girl, but on the basis that the girls are, as he described it “quite inseparable”.12 I have not placed any weight on the evidence of Constable Kassebaum as to his recognition of either Rebecca or Jacinta in the image. 25 I am not able to place much weight on my own comparison of the Facebook images against images tendered of Rebecca.13 While they are very broadly consistent with one another, the quality of the Facebook images make the broad consistencies of very limited probative value. I remind myself that the evidence of Constable Kassebaum and Detective Brown is not identification evidence. At its highest, the evidence of Detective Brown was recognition of Rebecca’s sister Jacinta in the photo on the relevant Facebook profile. I remind myself of the need to be cautious about this recognition evidence. There were a number of circumstances which supported the conclusion that the profile was used by Rebecca. The possibility of the displacement effect, that is Detective Brown believing the photo was of Jacinta because of the circumstances rather than her appearance, cannot be dismissed. While I have not disregarded the evidence of Detective Brown entirely, I have given it limited weight. 12 TS 129. 13 Exhibits P10 and P15. -- 7 of 12 -- [2024] SADC 95 6 26 The prosecution relied on a comparison of some of the narrative in the messages sent by the Rebecca profile with what is known about Rebecca’s movements and social circumstances during the relevant period. 27 On 8 November 2022 Rebecca entered a bail agreement at the Youth Court of South Australia which required her to live at a particular address; to be at that address between 9 pm and 7 am; to wear an electronic monitoring device and to be subject to the rules of electronic monitoring.14 28 Evidence was led that Rebecca was fitted with an electronic monitoring device on 8 November 2022. Case notes were tendered which were business records extracted from the database where observations relevant to supervision of youths on home detention were recorded. On 22 November a staff member from the Department of Human Services, who are responsible for monitoring youth’s home detention compliance, attended on Rebecca in response to a possible defect in the monitoring device. At 5.17 pm a new strap was fitted to the device. Only an hour later a further alert was received that there was an issue with the strap. The following day, 23 November, a staff member attended and a new strap was fitted. The same day, another alert was received about an issue with the strap. As a result of these issues, a decision was made to fit Rebecca with a new device. This was done on 24 November 2022. 29 On 9 December 2022, Rebecca’s bail agreement was varied to remove the conditions which required electronic monitoring.15 30 These circumstances are reflected in some messages sent by the Rebecca T profile. The user of that profile on 14 November 2022 confirmed the suburb she was in. The suburb was the one where Rebecca had been bailed to reside. On the same date, the user of the profile was attempting to arrange a face-to-face meeting with Mark Green. She suggested he park in a street which is, in fact, a three-minute walk from Rebecca’s residential address.16 On the same date, the user of the profile told Mark Green that she has a 9 pm curfew, reflecting the curfew on Rebecca’s home detention bail agreement. 31 On 16 November 2022 Constable Baker was tasked with locating Rebecca in response to a missing persons report. He located her at about 1.20 pm in a street at Allenby Gardens, sitting in the front passenger seat of a car. Constable Baker searched the vehicle and Rebecca’s backpack. He located a bong (for smoking cannabis), cigarettes, a glass pipe and a small bag of crystalline substance suspected to be methylamphetamine. The drugs and implements were seized and Constable Baker tore up the cigarettes and put them in the bin. Constable Baker said the whole interaction lasted no more than 20-30 minutes. 14 Exhibit P8. 15 Exhibit P9. 16 Exhibit P14. -- 8 of 12 -- [2024] SADC 95 7 32 Some time after 4.13 pm on the same day, the Rebecca profile messaged the Mark Green profile saying “Just get me smokes and I’ll fuck u”. She goes on to say “yeah you can come as soon as I get home I’m hell stressed and cops just took all my stuff”.17 I consider this a relevant piece of circumstantial evidence that Rebecca is the user of the relevant profile. 33 On 24 November 2022, the user of the Rebecca T profile said “my bracelet isn’t working rn [right now] hey”.18 She went on to explain that “They can’t see my location. They’ve changed it twice and it still isn’t working lmao”. Mark Green attempted to arrange a meet up and the Rebecca T profile responded “Nah, they’re coming over rn to change to again”.19 In fact on 24 November Rebecca’s home detention monitoring device was changed over because of issues with it the previous day (including changing the strap over twice). 34 On 27 November, the Mark Green profile asked the Rebecca T profile “when do you get that ankle bracelet off”, to which the Rebecca T profile responded “8th of December”. Rebecca in fact had her home detention conditions removed on 9 December. I am prepared to infer that in advance of that date she anticipated a change to her home detention conditions, and that the difference between 8 and 9 of December does not deprive the circumstance of its probative force. 35 The prosecution relied on various references made by the user of the Rebecca T Facebook profile which demonstrated a keen interest in tobacco (‘baccy’), cigarettes, and cannabis. The user of the profile is frequently focussed on obtaining cigarettes, cannabis (‘bud’ and ‘nug’), and methylamphetamine (‘rock’).20 36 The prosecution called evidence that during the search of Rebecca on 27 November (the date on which the various messages on her telephone were located), a small bag of cannabis and a small bag of crystals suspected to be methylamphetamine were located.21 37 This is a piece of circumstantial evidence that links Rebecca to the Rebecca T Facebook profile, although the ubiquity of an interest in cigarettes and drugs makes the coincidence of that theme of more limited evidentiary value. 38 I am satisfied on the basis of the combination of the circumstances described above that the prosecution has proved that Rebecca was the user of the relevant profile. I consider that the alternative hypothesis, that another person with the various characteristics and life circumstances as Rebecca, is not reasonable. I exclude it as a reasonable possibility. The prosecution proved by the tender of a 17 Exhibit P1 at pages 14-15. 18 P Exhibit P1 at page 31. 19 P Exhibit P1 at page 32. 20 P Exhibit P1 at pages 5, 9, 11, 13-15, 17, 18, 37, 51-52. 21 TS 121. -- 9 of 12 -- [2024] SADC 95 8 birth certificate that Rebecca was 14 years of age at the time of the communications relied upon. Was Rebecca procured to engage in or submit to sexual activity? 39 The prosecution particularised the sexual activity alleged as sexualised discussions. In R v Symons the court considered that the term ‘sexual activity’ should be given a wide definition, encompassing “the many behaviours, whether physical or verbal, which are capable of being sexually stimulating”.22 40 The prosecution must prove that the conduct of the accused in fact procured Rebecca to engage in or submit to that activity. The term engage in suggests of a level of participation in the sexual activity. Submission suggests a less active process, although its precise boundaries in the context of sexualised discussions is more opaque than submission where an activity involving physical contact is alleged. 41 The prosecution relied on the accumulated force of the messages between 13 and 28 November. 42 I consider the following messages (summarised) as relevant to whether the accused caused Rebecca to engage in or submit to sexualised conversations: 1. Mark Green tells Rebecca she is “gorgeous” and “definitely want to fuck you”. He asks her for “sexy pictures..so we both know what to expect”. Rebecca responds “yeah sure” and goes on to ask for tobacco.23 2. Mark Green asks Rebecca to “show me what a 17-year-old pussy and tits look like”. He goes on to ask Rebecca “your keen to fuck me still” to which Rebecca responds “yeah, you got baccy tho”.24 3. Mark Green asks “do you no somewhere we can go and fuck” and Rebecca replies “idk hey….do u got a tiny bit of bud”.25 4. Mark Green tells Rebecca “how bout you let me no when your going to be off your face cause that’s what you said you need to be to fuck me and let me no so we can fuck babe Unless you want to fuck me straight OK Im keen as”.26 5. Mark Green tells Rebecca “I’ll wait for ya luv OK but you don’t need anything to Fuck me babe just let me play with you and I’ll get you in the mood” to which Rebecca responds “yeah ok where we gonna go”.27 22 (2018) 130 SASR 503 at [3]-[4]. 23 Exhibit P1 at page 11. 24 Exhibit P1 at pages 12-13. 25 Exhibit P1 at page 17. 26 Exhibit P1 at page 20. 27 Exhibit P1 at page 21. -- 10 of 12 -- [2024] SADC 95 9 6. Mark Green tells Rebecca “Im not that good its not about that its about showing you some love and a great fuckbuddy where you can just be so confident as soon as you get in my car we will be all over each other. It gets easier after the first fuck hun. Monday 3 pm I’ll pick u up” to which Rebecca responds “yeah nah on xans I’m down for whatever ahah”. Mark Green again asks for “pictures”.28 7. Mark Green says “ya don’t even have to fuck me just let me eat you and give me a blow job” to which Rebecca responds “I don’t like being eaten out” to which Mark Green replies “Then fuck it is or you don’t like that either”.29 43 For the most part Rebecca does not engage in the sexualised discussions. She appears focussed on agreeing to as much as is necessary to secure cigarettes, cannabis or other drugs. She does however respond to the messages from Mark Green. I consider her minimal responses, and his continued focus on sexualised messages does constitute procuring her to submit to sexualised discussions. I am not satisfied that the accused procured Rebecca to engage in sexualised discussions. 44 I am therefore satisfied that the prosecution has proved the third aspect of the charge beyond a reasonable doubt, that the accused procured Rebecca to submit to a sexual activity. Did the accused intend to procure Rebecca to engage in or submit to sexual activity? 45 In determining whether the evidence of the messages proves that the accused intended to procure Rebecca to engage in or submit to sexual activity I have had regard to the extracts above, and their context. The nature and persistence of the communication admits of no other reasonable conclusion except that the accused intended, by his words, to procure Rebecca to engage in or submit to sexual activity. That conclusion is plain on the face of the words communicated. Conclusion 46 Having concluded that the prosecution has proved each of the four elements of the charge beyond a reasonable doubt, I find the accused guilty of the offence charged. 47 During closing submissions, counsel for the accused submitted that the factual findings I make at this stage should be restricted to the facts required to adjudicate the elements of the offence charged. Counsel submitted that at this stage I ought not to make factual findings about whether the accused knew that Rebecca was under the age of 17 at the time he engaged in the conduct. 28 Exhibit P1 at page 26. 29 Exhibit P1 at page 49. -- 11 of 12 -- [2024] SADC 95 10 48 I agree with his submission. My task at this stage is to consider the factual issues that are necessary to address the elements of the offence. Having previously determined that the accused’s knowledge of Rebecca’s age was not an element of the offence that the prosecution was required to prove, it is appropriate that I do not make factual findings on that issue at this stage. -- 12 of 12 --