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Supreme Court 6 November 2025

Director of Public Prosecutions (NSW) v Beeby

[2025] NSWSC 1307

Sexual offences

Citation: Director of Public Prosecutions (NSW) v Beeby [2025] NSWSC 1307
Court: Supreme Court of New South Wales
Date: 6 November 2025
Judge: Free JA

Background

The defendant was charged with intentionally procuring a child aged over 14 and under 16 years for unlawful sexual activity, contrary to s 66EB(2) of the Crimes Act 1900 (NSW). The prosecution arose from a series of Grindr messages exchanged between the defendant, using the username "Tezzzzzz", and a person presenting as a 15-year-old male named "Jeremy." The conversation included explicit sexual content and culminated in the defendant providing his home address for a meeting.

"Jeremy" was not, in fact, a child. What arrived at the defendant's home was a group of four people who assaulted and robbed him. When the defendant reported the incident to police the following day, investigators eventually traced the Grindr conversation and charged him with the procurement offence.

The critical prosecution evidence was the content of the Grindr conversation, obtained in two forms: photographs of a phone screen showing the conversation, and a report from the United States National Center for Missing and Exploited Children (NCMEC), which matched the Grindr account to the defendant's phone details and reproduced the full conversation. The defendant opposed admission of the NCMEC evidence at trial, arguing it was obtained in consequence of a breach of Australian law. The Magistrate agreed, excluded the evidence under s 138 of the Evidence Act 1995 (NSW), and then summarily dismissed the charge. The DPP appealed to the Supreme Court on a question of law alone.

  • Whether the Magistrate erred in finding the NCMEC evidence was obtained "in or in consequence of" a contravention of Australian law, as required to engage s 138 of the Evidence Act 1995 (NSW)
  • Whether the sending of the Grindr messages by "Jeremy" constituted incitement under s 2 of the Crimes Prevention Act 1916 (NSW), by inciting the defendant to commit the s 66EB(2) offence
  • Whether s 80G of the Crimes Act 1900 (NSW), which disapplies any law creating an incitement offence in relation to the offences in that Part, displaced the operation of s 2 of the Crimes Prevention Act 1916 (NSW)
  • Whether a second question of law arose: whether the Magistrate was obliged, when exercising the s 138 discretion in relation to multiple items of evidence, to consider each item separately

Decision

Ground 1: Was the evidence obtained in contravention of Australian law?

The defendant's argument rested on the proposition that "Jeremy's" conduct in sending the Grindr messages constituted the offence of incitement under s 2 of the Crimes Prevention Act 1916 (NSW), because those messages incited the defendant to commit the s 66EB(2) procurement offence. Free JA accepted that s 2 of the Crimes Prevention Act is expressed broadly and, in general terms, could cover conduct of the kind engaged in by "Jeremy."

However, the Court found that s 80G of the Crimes Act 1900 (NSW) directly answered the question. Section 80G provides that no law creating an incitement offence applies to the offences in the relevant Part of the Crimes Act, which includes s 66EB. The Court held that this specific provision, inserted by the legislature to address the very situation of someone urging another to commit a child sex offence, displaces the general operation of s 2 of the Crimes Prevention Act. Applying established principles of statutory interpretation, where a specific provision addresses the same subject matter as a general one, the specific provision prevails. Accordingly, "Jeremy's" conduct did not constitute a contravention of Australian law, and the prerequisite for engaging s 138 was not made out. The Magistrate erred in excluding the NCMEC evidence on that basis.

Ground 2: Whether Exhibit 2 (the photographs) was also excluded

The DPP argued that the Magistrate had, by necessary implication, also excluded Exhibit 2 (the photographs of the Grindr conversation) under s 138, and that the Magistrate erred in failing to consider that item separately on its own merits. Free JA declined to draw that inference from the record. The evidentiary indications were mixed, and the Court found the more likely explanation for the Magistrate's dismissal of the charge was that Exhibit 2 had been admitted only provisionally, on the basis that the NCMEC evidence would later link it to the defendant. Once the NCMEC evidence was excluded, Exhibit 2 lost that linkage, without there being any separate ruling that it too was excluded under s 138. Ground 2 was rejected and the second question of law did not arise.

Orders Made

  • The appeal is allowed.
  • The order of the Magistrate made on 26 February 2025 dismissing the charge against the defendant is set aside.
  • The matter is remitted to Gosford Local Court to be dealt with according to law.
  • No order as to costs.

Key Takeaways

  • Section 80G of the Crimes Act 1900 (NSW) operates as a specific statutory bar on any incitement offence applying to conduct that encourages commission of offences in the relevant Part, including s 66EB child procurement offences. This displaces the general incitement provision in s 2 of the Crimes Prevention Act 1916 (NSW).

  • Under s 138 of the Evidence Act 1995 (NSW), the threshold question, whether evidence was obtained "in or in consequence of" a contravention of Australian law, must be carefully assessed. A finding that no relevant Australian law was contravened means the discretion to exclude under s 138 is simply not engaged.

  • The legislative design of s 80G reflects a deliberate Parliamentary choice: the person who encourages or "tests" another to engage in child sex offences does not thereby commit a separate incitement offence, leaving s 66EB to operate according to its own terms.

  • Where evidence is admitted only provisionally, on the understanding that further evidence will supply a necessary link, exclusion of that further evidence may effectively render the provisional exhibit without sufficient evidentiary foundation, without the court making any separate ruling to exclude the original exhibit.

  • In dismissing Ground 2, the Supreme Court noted that a complaint about how legal principles were applied to particular facts is ordinarily a mixed question of law and fact, not a question of law alone, and therefore falls outside the scope of a prosecutor's appeal under s 56 of the Crimes (Appeal and Review) Act 2001 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EB, 80G
- Crimes Prevention Act 1916 (NSW), ss 2, 4
- Evidence Act 1995 (NSW), ss 137, 138
- Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59
- Director of Public Prosecutions Act 1986 (NSW), ss 9, 10
- Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 1, Item [19]
- Criminal Code Act 1995 (Cth), ss 2.1, 2.2, 11.4, 474.26, 474.27
- Criminal Code Act 1924 (Tas)
- Evidence Act 2001 (Tas), s 138

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Bunning v Cross (1978) 141 CLR 54
- Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1
- Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147
- Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503
- Fletcher (a pseudonym) v Knight (a pseudonym) [2025] ACTCA 8
- Franklin v Commissioner of Police [2018] NSWSC 310
- Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109
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