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District Court 8 July 2024

R v Ryan

[2024] NSWDC 274

Sexual offencesPublic order & justice offences
CRIME JUDGE ALONE TRIAL VERDICT

Citation: R v Ryan [2024] NSWDC 274
Court: District Court of New South Wales
Date: 8 July 2024
Judge(s): Bourke SC DCJ

Background

The accused was a registrable person under the Child Protection (Offenders Registration) Act 2000, having previously been convicted and imprisoned for sexual offences involving children. In March 2022, a mother (referred to by the pseudonym Ms Twigg) moved into a neighbouring unit with her 12-year-old daughter Donna and a younger child. Over the following months, the accused developed a regular relationship with the family.

The accused was charged with a single count under section 17(1) of the Act for failing to comply with his reporting obligations. The Crown alleged that his contact with Donna amounted to "attempting to befriend" her, which triggered a requirement to report Donna's personal details to the Commissioner of Police within seven days. The trial proceeded before a judge alone.

The accused did not deny having contact with Donna. His defence rested on two arguments: first, that the contact did not amount to "attempting to befriend" her within the meaning of the Act; and second, that even if it did, he had a reasonable excuse for failing to report because he did not adequately understand his obligations.

Legal Issues

  • Whether the accused had "contact" with Donna within the meaning of the Act
  • Whether that contact constituted "attempting to befriend" the child under section 9(1A)(d) of the Act, thereby triggering a reporting obligation
  • Whether the Crown was required to identify a specific day on which the obligation to report arose
  • Whether the accused had a reasonable excuse for failing to comply with his reporting obligations under section 17(2A) of the Act

Decision

Issue 1: Contact with the child

The court accepted the evidence of both Ms Twigg and Donna as reliable and truthful (at [89]-[92]). Bourke SC DCJ found beyond reasonable doubt that the accused initiated contact with the family shortly after they moved in, developed a regular relationship involving daily interactions, exchanged phone numbers with Ms Twigg, gave money and confectionery to Donna, touched her physically on three occasions without any invitation, and invited her into his unit alone on three occasions (at [93]-[101]).

Issue 2: "Attempting to befriend" the child

The court held that the phrase "attempting to befriend" in section 9(1A)(d) carries its ordinary English meaning and requires proof that the person intentionally engaged in conduct aimed at becoming friends with the child (at [107]). The court rejected the accused's argument that the contact was merely superficial or neighbourly. The accused's conduct over several months, including giving money and gifts, physical touching, and repeatedly inviting Donna into his home alone, amounted to conscious and deliberate efforts to create a friendship with her (at [109]-[112]). The court found beyond reasonable doubt that by no later than 11 October 2022, the accused had contact with Donna in circumstances where he was attempting to befriend her, with a text message sent that evening providing a key reference point (at [119]-[121]).

Issue 3: Whether the Crown must identify a precise day

The court rejected the submission that the Crown was required to prove "to the day" when the reporting obligation arose. Where the Crown relies on the cumulative effect of ongoing conduct to establish that a registrable person was "attempting to befriend" a child, it would be artificial to require identification of a single specific event. The court was satisfied that by no later than 11 October 2022, the obligation had arisen and was not met within seven days (at [113]-[121]).

Issue 4: Reasonable excuse

The court was not satisfied on the balance of probabilities that the accused had a reasonable excuse for failing to report. On the morning of 11 October 2022, the accused attended Liverpool Police Station for his annual review, signed an acknowledgement confirming his reporting obligations had been explained to him, and then sent a text message to Ms Twigg that same evening referencing contact with Donna (at [136]-[137]). The court found the accused understood his obligations at all material times and that his failure to report was intentional (at [138]-[139]).

Orders Made

  • Verdict of Guilty

Key Takeaways

  • The District Court held that "attempting to befriend" a child under section 9(1A)(d) of the Child Protection (Offenders Registration) Act 2000 requires proof that the registrable person intentionally engaged in conduct aimed at becoming friends with the child, and that more than incidental, one-off, or superficial neighbourly contact is needed (at [107], [110]).

  • Where the Crown establishes "attempting to befriend" through the cumulative effect of ongoing conduct rather than a single discrete event, the court is not required to identify a precise day on which the reporting obligation arose, though it must be satisfied beyond reasonable doubt that the obligation had arisen by a particular point in time (at [113]-[121]).

  • A registrable person's history of compliance with other reporting obligations, apparent surprise upon arrest, and stated belief that the contact was not reportable are relevant to the reasonable excuse defence under section 17(2A), but will not necessarily discharge the onus where other evidence demonstrates actual understanding of the obligations (at [132]-[139]).

  • Conduct found to support an inference of "attempting to befriend" included regular friendly contact over months, giving gifts of money and confectionery, uninvited physical touching, and repeatedly inviting a 12-year-old child alone into the accused's home (at [109]-[111]).

  • Attending a police station to complete an annual reporting review and signing an acknowledgement of reporting obligations on the same day as having contact with a child strongly undermined a subsequent claim of reasonable excuse based on alleged misunderstanding of those obligations (at [136]-[138]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000

Cases
- O’Neill v Commissioner of Police [2020] NSWSC 1805