Bredal v R

1. [1]

   ADAMSON JA: Daniel Bredal (the applicant) was convicted of an offence of using a carriage service to transmit communications to someone whom he believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself, contrary to s 474.27(1) of the Criminal Code (Cth) (the offence). He seeks an extension of time for leave to appeal against that conviction, that the appeal be allowed, that his conviction be set aside and that an order be made directing his acquittal of the offence.

2. [2]

   The basis on which the applicant’s conviction was challenged was that Allen DCJ (the trial judge) misdirected the jury as to the element that the appellant believed the recipient was under the age of 16 years. It was common ground that the legal issue raised had been authoritatively resolved in Jones v R [2025] NSWCCA 38 (Jones). Accordingly, the Crown accepted that time ought be extended, leave to appeal granted and that the appeal against conviction ought be allowed. However, the Crown submitted that this Court ought order a re-trial of the applicant for the offence rather than direct an acquittal.

Background

1. [3]

   The Crown case was based on evidence obtained by the NSW Police Force’s Child Exploitation Internet Unit (the Unit). Officers of the Unit assumed online identities (AOI) with a view to engaging in internet chats for the purpose of detecting exploitation of children on the internet.

2. [4]

   The evidence in the prosecution case was that the particular AOI created by police when communicating with the applicant used the name “CF”. The applicant used the name “Wellhello” on Chatiw on 26 November 2021 and “Dan” on communications on Skype between 26 November 2021 and 14 December 2021. The AOI purported to be an underage teenage girl and sent a photograph of a female image to the applicant. The “chats” between the AOI and the applicant were sexual in nature. The communications which comprised the chats were tendered in the Crown case. They showed that, although a meeting had been arranged, the applicant called off the meeting and the chat ended.

3. [5]

   On 15 December 2021, the police arrested and charged the applicant with the offence. They seized devices on the applicant’s premises but did not find any child abuse material or other evidence of sexual interest in children.

4. [6]

   The defence case, based on the applicant’s evidence, was that he had engaged in the online internet chats because he was lonely, having been separated from his former partner, although they still lived in the same residence with his three children. He worked for the Department of Communities and Justice. He said that he used Chatiw in 2021 because he was looking for friendship and was under the impression that it was an adult-oriented site. He said that he was not guided by a user’s stated age as such information was “generally not factual”. There were instances on Chatiw where he engaged in fantasy or roleplay.

5. [7]

   As to his conversations with the AOI, the applicant said that he never intended to meet up with her or any other underage teenage girl and said that he did not find their chats particularly sexually arousing although there was a “level of excitement”. He said that he believed that the AOI was actually an adult who engaged in role play. He said that, on about 9 December 2021, he began to suspect that the AOI was in fact an underage teenage girl and cancelled the meeting which they had been discussing. The Crown challenged that version in cross-examination.

6. [8]

   The applicant was convicted of the offence on 24 May 2023 following a 6-day trial by jury. On 20 June 2023, the applicant filed a notice of intention to appeal his conviction.

7. [9]

   On 17 November 2023, the trial judge sentenced the applicant to imprisonment for 1 year and 7 months but ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released immediately upon entering into a recognisance, for a period of 3 years. In addition, the applicant was ordered to comply with conditions including that he be subject to supervision by a probation officer and that he participate in rehabilitation programs as directed. He was also subject to a restriction on travelling outside the State. Each of these restrictions had a duration of 2 years.

8. [10]

   The Crown appeal against sentence on the ground of manifest inadequacy was dismissed: R v Bredal [2024] NSWCCA 75. The Crown’s application for special leave to appeal to the High Court was refused on 8 August 2024:The King v Bredal [2024] HCASL 202.

9. [11]

   The applicant filed his notice of appeal against conviction on 22 May 2025 (and thus needed an extension of time).

The relief sought

1. [12]

   The only remaining issue in the appeal is whether this Court ought order a re-trial or direct an acquittal.

2. [13]

   Mr Woods, who appeared for the applicant, submitted that, in circumstances where the applicant had served much of his sentence, this Court ought direct an acquittal rather than order a re-trial. He relied on affidavit evidence, in which the applicant deposed as to the stress and cost of the proceedings to date (including the Crown’s unsuccessful application for special leave to appeal to the High Court against the dismissal by this Court of the Crown appeal against sentence). He relied on the applicant’s affidavit evidence that he suffered extreme stress as a result of the Crown appeal against sentence, is no longer employed, cannot secure a job and is relying on “rapidly dwindling savings”. The applicant deposed that he has lost his social standing and can no longer participate in the activities in which his children engage. As a result of his mental state, he has contemplated suicide and been admitted to a psychiatric ward for a 24-hour monitoring period. He shares the care of his children, each of whom have been diagnosed with a mental condition.

3. [14]

   Mr Woods submitted that, in all the circumstances, it would be oppressive, not be in the interests of justice and serve no good purpose for the applicant to have to be brought to trial again. He also submitted that if the Court were not to order a re-trial, this would not usurp the discretion of the Director of Public Prosecutions (Cth) (the Director). For the reasons given below, I reject this submission.

4. [15]

   Section 5 of the Criminal Appeal Act 1912 (NSW) confers a right of appeal against conviction on a question of law alone (s 5(1)(a)) or otherwise, if leave is granted.

5. [16]

   This Court’s power to make orders when it allows an appeal against a conviction derives from ss 6 and 8(1) of the Criminal Appeal Act. Section 6 relevantly provides for a situation (unlike this case) where an appeal against conviction is allowed because the verdict is unreasonable: that is, that it was not open to the tribunal of fact to find the accused guilty beyond reasonable doubt. Section 6 relevantly provides:

6. [17]

   Mr Woods confirmed that he did not seek to argue that the jury’s verdict of guilty was unreasonable. Indeed, there is no such ground of appeal.

7. [18]

   Section 8 of the Criminal Appeal Act relevantly provides:

8. [19]

   The entry of a verdict of acquittal under s 6 and the ordering of a new trial under s 8 are, in respect of a single charge, true alternatives. In Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43, the High Court (Gaudron, McHugh, Gummow and Hayne JJ) said at [104]:

9. [20]

   The proposition that the Court must either order an acquittal or order a new trial was approved in The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [82] (Kiefel CJ and Keane J) as follows:

10. [21]

    It follows that the direction of an acquittal necessarily usurps the discretion of the Director. I reject Mr Woods’ submission to the contrary.

11. [22]

    The direction of an acquittal is not limited to circumstances where a verdict of guilty is unreasonable. An acquittal has been directed in other circumstances, including:

    1. (1)

       where a sentence has been fully served: see the summary of authorities in R v Pedrana [2001] NSWCCA 66; (2001) 123 A Crim R 1 at [69]-[77] (Ipp AJA, Wood CJ at CL agreeing (ordering an acquittal); Simpson J contra, who would have ordered a re-trial); and

    2. (2)

       where a fair trial is no longer possible: see the discussion of the authorities in Mokbel v Director of Public Prosecutions (Cth) [2021] VSCA 94; (2021) 289 A Crim R 1 at [37]-[54] (Beach and Osborn JJA) (where the majority ordered a re-trial in circumstances where the Director of Public Prosecutions indicated that she did not propose to prosecute the appellant again).

12. [23]

    Where, as in the present case, the evidence is sufficiently cogent evidence to justify a conviction, a re-trial ought be ordered unless it is in the interests of justice to order an acquittal: Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 (Gilham) at [648]–[660] (McClellan CJ at CL) (in which McClellan CJ at CL would have ordered a re-trial but, the majority, Fullerton and Garling JJ, ordered an acquittal). The statement of principles in Gilham was applied in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 where a re-trial was ordered by majority (Beech-Jones J at [93]-[96], N Adams J agreeing, Payne JA contra, who would have ordered an acquittal).

13. [24]

    The decisions of this Court indicate that the question whether an acquittal ought be directed or whether a re-trial ought be ordered (thus leaving it to the Director to determine, in the exercise of prosecutorial discretion whether to bring the applicant to trial again) depends on the facts and circumstances of the subject case and that minds can reasonably differ as to the outcome.

14. [25]

    In my view, this is not a case where it would be appropriate for this Court to direct an acquittal. As Mr Woods accepted, the jury’s verdict was not unreasonable. The nature of the error (a direction which was in a form subsequently found by this Court in Jones to be erroneous) did not affect the nature or the quality of the evidence in support of the Crown case. There is no suggestion of the Crown improving its position on a re-trial since its evidence can be expected to be the same as in the first trial. Nor is there any undue delay, although I accept that, to the applicant, the period over which this has been hanging over his head must seem very lengthy.

15. [26]

    While no custodial sentence was imposed, the restrictions to which the applicant is subject as a result of the sentence would, but for the quashing of the conviction, continue until 16 November 2026. Further, the fact of a conviction of the offence is of considerable importance. Apart from other consequences, it is a Class 2 offence under Sch 1B of the Child Protection (Offenders Registration) Act 2000 (NSW) and therefore a conviction for that offence attracts reporting requirements. This matter is significant for the purpose of protecting the community.

16. [27]

    The ceiling principle would apply, which means that, if the applicant were re-tried and convicted, a sentence more serious than the one which was imposed could not be imposed: R v White [2023] NSWSC 611 at [75], referring to R v Gilmore (1979) 1 A Crim R 416 at 419-420. Thus, the applicant would not be subjected to the risk of a custodial term being imposed were he to be convicted on a re-trial.

17. [28]

    Whether the applicant ought be subjected to a re-trial is, in my view, pre-eminently a matter for the discretion of the Director. None of the factors to which I have referred ought be construed as an attempt to influence the Director in deciding whether to re-try the applicant, since this is a matter which, in my view, falls entirely within the Director’s discretion in the circumstances of the present case. I am not persuaded that the interests of justice favour the direction of an acquittal by this Court.

Proposed orders

1. [29]

   For the reasons given above, I propose the following orders:

   1. (1)

      Extend the time for filing of the notice of appeal to 22 May 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Allow the appeal against conviction.

   4. (4)

      Set aside the conviction.

   5. (5)

      Order that there be a re-trial.

   6. (6)

      The matter is remitted to the District Court arraignment list on 14 November 2025 at 9.30am.

2. [30]

   CHEN J: I agree with Adamson JA.

3. [31]

   COLEMAN J: I agree with Adamson JA.