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Azadzoi v County Court

Azadzoi v County Court

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Case Copied 12 April 2013 75 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2012 04404

HISHMATTULAH AZADZOI	Plaintiff
v
COUNTY COURT OF VICTORIA KARA RODEN	First defendant Second defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2012
DATE OF JUDGMENT:	12 April 2013
CASE MAY BE CITED AS:	Azadzoi v County Court of Victoria
MEDIUM NEUTRAL CITATION:	[2013] VSC 161

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CRIMINAL LAW – application for judicial review of conviction and sentence of plaintiff by judge of County Court of Victoria in appeal from Magistrates’ Court of Victoria – three charges of committing indecent act in presence of children aged under 16 years – acts committed in steam room of area of public aquatic centre reserved for persons aged 16 years and older – three girls aged 15, 14 and 14 years who looked older gained admission – whether intention of accused to commit act in presence of child known to be underage is element of offence – whether honest and reasonable mistake as to age is defence – third complainant was in sauna (a different room) when act committed – whether facts as found capable of answering statutory description of ‘presence’ – whether judge erred in jurisdiction or law on the face of the record – ‘absolute liability’ – ‘strict liability’ – ‘honest and reasonable mistake of fact’ – ‘presence’ – Crimes Act 1958 (Vic) s 47(1)-(3), Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr D W Gibson	Laura McDonough, Victorian Legal Aid
For the second defendant	Dr S B McNicol SC	Adrian Castle, Office of Public Prosecutions

HIS HONOUR:

INTRODUCTION

Hishmattulah Azadzoi (‘the plaintiff’) was convicted in the Magistrates’ Court of Victoria of charges of wilfully committing the indecent act of masturbating in the presence of three children under the age of 16 years contrary to s 47(1) of the Crimes Act 1958 (Vic). He was sentenced to imprisonment for 12 months to be served by way of an intensive corrections order.

His Honour Judge Coish dismissed the plaintiff’s appeal to the County Court of Victoria and again convicted him of the three charges. As the plaintiff had a wife and five children, was previously of good character and had no prior convictions of any kind, his Honour imposed the lesser sentence of a community based order for 18 months with a condition that he complete a sex offender’s program.

The circumstances of the alleged offending were unusual. In 2009 the plaintiff attended his local aquatic centre in a suburb of Melbourne. It had a spa and separate sauna and steam rooms. Entry to this area was forbidden to children under the age of 16 years. There was a sign to that effect. The three female complainants were friends aged 15, 14 and 14 years. Appearing to be over the age of 16 years, they gained entry to the area by purchasing wrist tags from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 161
Decision Date: 12 April 2013

CaseChat Overview and Summary

In Azadzoi v County Court, the applicant sought judicial review of his conviction and sentence by a County Court judge in an appeal from the Magistrates’ Court. The applicant was convicted of three charges of committing an indecent act in the presence of children under the age of 16 years. The acts took place in the steam room of a public aquatic centre, which was reserved for persons aged 16 years and over. Three girls, aged 15, 14, and 14 years, who appeared older, gained admission to the area. The applicant argued that his intention to commit the act in the presence of a child known to be underage was not an element of the offence, and that an honest and reasonable mistake as to the age of the children was a defence. The third complainant was in a sauna, a different room, when the act was committed, raising the question of whether the facts as found could be said to fall within the statutory description of ‘presence’. The applicant sought to establish that the judge had erred in jurisdiction or law on the face of the record.

The court considered whether the statutory definition of ‘presence’ in the Crimes Act 1958 (Vic) s 47(1)-(3) included situations where the accused was unaware of the true age of the child, and whether an honest and reasonable mistake as to age was a defence. The court also considered whether the judge had erred in law by not considering the defence of honest and reasonable mistake as to age, and whether the judge had correctly applied the principles of absolute or strict liability. The court found that the judge had not erred in law or jurisdiction, and that the facts as found were capable of answering the statutory description of ‘presence’.

The court held that the statutory definition of ‘presence’ in the Crimes Act 1958 (Vic) s 47(1)-(3) did not require the accused to have actual knowledge of the child’s age, and that an honest and reasonable mistake as to age was not a defence. The court also held that the judge had correctly applied the principles of strict liability, which did not require the accused to have any mens rea in relation to the age of the child. The court found that the facts as found were capable of answering the statutory description of ‘presence’, as the applicant was in the same room as the third complainant when the act was committed, even though she was in a different area within the steam room.

The court dismissed the application for judicial review, and upheld the conviction and sentence of the applicant. The court found that the judge had not erred in law or jurisdiction, and that the facts as found were capable of answering the statutory description of ‘presence’. The court held that the statutory definition of ‘presence’ in the Crimes Act 1958 (Vic) s 47(1)-(3) did not require the accused to have actual knowledge of the child’s age, and that an honest and reasonable mistake as to age was not a defence. The court also held that the judge had correctly applied the principles of strict liability, which did not require the accused to have any mens rea in relation to the age of the child.

Orders