By Paul Gregoire and Ugur Nedim
David Beeby was engaged in a series of exchanges with a male known as “Jeremy” over the Grindr hookup app at his Terrigal home on the NSW Central Coast at around 11.30 pm on 24 January 2024, when Jeremy made it known to David, who went by the username “Tezzzzz” on Grindr, that he’d wanted to meet up for a sexual encounter, and Beeby said that he too was keen to get together.
The Grindr exchange included Jeremy asking, “Is 15 too young lol I’ve done it before it’s just hard too [sic] find anyone”, to which Tezzzzz replied, “Dick pic?” Jeremy then sent an explicit photo. Tezzzzz then asked Jeremy over to his house for a sexual encounter, to which Jeremy again replied by reference to whether it was “sweet” that he was 15 years old, to which Tezzzzz clarified, “No probs”.
However, Beeby had not been communicating with a potential sexual partner and rather, at 12.30 am that same night, four people arrived at the complex the Terrigal man lived in, and after he opened the screen door to his apartment to let a male in that he had thought was Jeremy, the intruder said, “I’m only 17”, and then punched him in the face.
Two additional males and a female then entered the premises armed with knives and proceeded to brutality beat Beeby and conduct a robbery.
Beeby then reported the incident, including the details of the Grindr exchange, on 26 January 2024. Then on 19 February, a Noah Edwards was charged in relation to the assault on Beeby. Evidence of the Grindr exchange was found on Edwards’ phone in the form of photos involved in the exchange, and Beeby was then charged in relation to the incident supposedly involving a minor ten days later.
The crime of procuring a child for unlawful sexual activity
New South Wales police officers subsequently charged Beeby with one count of an adult procuring a child under 16 for unlawful sexual activity under subsection 66EB(2) of the Crimes Act 1900 (NSW), which is an offence that carries a maximum penalty of 12 years imprisonment, unless the child is under 14 years old in which case the maximum is 15 years in gaol.
Subsection 66EB(5) of the Crimes Act contains a deeming provision around “fictitious children” in terms of procuring. So, the crime can pertain to a “person who pretends to be a child if the accused believed that the person was a child”. This means that, if proven, Beeby would be shown to have engaged in procuring a child for “unlawful sexual activity”, despite the individual not being a minor.
Beeby’s criminal defence lawyers submitted to Gosford Local Court that the person posing as Jeremy on Grindr was guilty of the crime of incitement, as per section 2 of the Crimes Prevention Act 1916 (NSW), which is a summary offence, carrying up to 6 months imprisonment.
The defendant raised incitement alongside the authority of the 2019 Tasmanian Supreme Court case Tasmania versus Wykes, in which then Chief Justice Alan Blow saw evidence excluded, under section 138 of the Evidence Act 2001 (TAS), in part because it was obtained as a result of “entrapment by vigilante”.
Beeby’s lawyers put it to the court that “Jeremy” and his co-offenders were “vigilante paedophile hunting”.
Evidence of incited crime not permitted
The Australian Law Reform Commission recommended modernising evidence rules in 1987, which resulted in a commitment to pass uniform evidence laws, with such laws first being enacted in the Evidence Act 1995 (Cth), and then adopted that same year by NSW, with later years seeing Tasmania, Victoria, the ACT and the Northern Territory doing the same.
Section 138 of the Evidence Act 1995 (NSW) maintains that evidence obtained “improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained”.
The evidence before the Local Court included Beeby’s statement to police, a Cellebrite report generated from the data on the defendant’s phone, two screenshots of the Grindr conversation, along with a statement and report from an analyst with the US National Centre for Missing and Exploited Children, with this last evidence, the NCMEC evidence, detailing the Grindr conversation.
NSW Magistrate Rosheehan O’Meagher agreed with the defence in terms of the NCMEC evidence not being permissible in court, in line with section 138 of the Evidence Act, based on the fact that the evidence “had been obtained as a consequence of impropriety or illegality”, in terms of the robbery and assault. Her Honour found that Jeremy had, therefore, incited Beeby to commit the crime.
“On balance, it would appear to me that inciting a person to procure a child for unlawful sexual activity, obtain their personal details and then to rob and bash them likely amounts to a contravention of Australian law,” her Honour remarked, adding that the impropriety was “so grave” that it would not be appropriate to admit it given the means by which it was obtained.
This meant that the charge against Beeby was dismissed, as the detailed NCMEC evidence relating to the Grindr exchange was unavailable. This was despite the two screenshots of the Grindr conversation remaining before the court.
A question of law alone
The New South Wales Director of Public Prosecution (DPP) appealed the decision to the NSW Supreme Court on 23 September 2025 on two grounds. The first was that Magistrate O’Meagher had been in error when she found that the evidence was obtained by a “contravention of an Australian law”, and the second was that her Honour failed to properly consider the Grindr screenshot evidence.
The NCMEC evidence was excluded based on section 138 of the Evidence Act. Subsection 138(3) maintains that in terms of permissibility of evidence, consideration should be given to its probative value, its importance, its nature, the gravity of the impropriety, whether it was deliberate or reckless, whether other proceedings relate to it and the difficulty of obtaining it without impropriety.
The last consideration is whether “the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights”.
The Magistrate was satisfied “Jeremy” had committed incitement and the evidence was obtained when he planned to rob and then bash him. However, on appeal, NSW Supreme Court Justice Stephen Free scrutinised whether “Jeremy” should have been considered to have committed the crime of incitement.
His Honour noted that the act said to comprise incitement, and the contravention of the law that resulted in the evidence of the procurement offence being obtained, and subsequently being struck down because of it, was perpetrated after the evidence was obtained, whereas section 138 is usually triggered by a crime committed prior to obtaining any evidence later the subject of scrutiny.
The NSW DPP submitted to the court that the Magistrate’s finding was predicated on the idea that inciting another person to commit procurement of a child is an offence. However, subsection 80G(5) of the Crimes Act maintains that it is not an offence to incite another to commit a number of sexual offences, including the section 66EB offence.
Beeby argued that as the prosecution did not point this provision out to the Magistrate during the initial trail, then it should not be allowed to be raised for the first time on appeal. However, Justice Free found that this was not the case in terms of the appeal, due to the fact that it was based on a question of law alone.
So, the answer to the first ground was ‘no’; the Magistrate had not been in error to find that the evidence was obtained via a contravention of the law, because she’d instead been in error in considering that an individual could commit the crime of incitement in relation to the section 66EB offence. It followed that the second ground did not have to be considered in light of this finding.
The orders of the day
Justice Free went on to explain, however, that in terms of ground two, it had neither been made out because the language involved in the case appeared to indicate that the Magistrate may have considered the Grindr screenshots along with the NCMEC evidence when ruling it was impermissible.
So, in light of the finding regarding ground one of the appeal, his Honour ordered on 6 November 2025, that the dismissal of Beeby’s charge should be set aside, and the matter should be remitted to Gosford Local Court to be heard again in light of these findings.
