Director of Public Prosecutions (Commonwealth) v F M
[2013] VSCA 129
•29 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0065
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) | Applicant |
| V | |
| F M | Respondent |
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| JUDGES | ASHLEY, WEINBERG and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 May 2013 |
| DATE OF JUDGMENT | 29 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 129 |
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CRIMINAL LAW — Application for leave to appeal against interlocutory decision — Respondent participated in online conversations of a sexual nature with police officer posing as 14 year old girl — Respondent charged with using carriage service to ‘procure’ person under 16 to engage in sexual activity contrary to s 474.26(1) of the Criminal Code, using carriage service to ‘groom’ person under 16 contrary to s 474.27(1), and using carriage service to transmit indecent communication to person under 16 contrary to s 474.27A(1) — Charges laid in the alternative — Plea of not guilty to ‘procure’ and ‘groom’ charges and guilty to charge of transmitting indecent communication — Where, on one view of the evidence, communications not accompanied by intent to engage in sexual activity with recipient — Whether trial judge erred in holding that offences contrary to ss 474.26(1) and 474.27(1) not established where communications ‘purely and simply a fantasy’ — Those offences not made out where jury satisfied that accused ‘purely fantasising’ when communicating with recipient or Crown cannot exclude reasonable possibility that accused so fantasising — Unnecessary to prove fixed intent on part of sender to engage in sexual activity — Leave to appeal granted — Appeal dismissed.
CRIMINAL LAW — Whether trial judge’s decision of sufficient importance to the trial to justify it being determined on interlocutory appeal — Utility of granting leave — Effect of trial judge’s decision on Crown case — Relevance of plea of guilty to charge contrary to s 474.27A(1) — Criminal Procedure Act 2009 s 295.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O P Holdenson QC with Ms A M Sampson | Director of Public Prosecutions (Cth) |
| For the Respondent | Mr P J Hannebery with Ms S J Keating | Tony Hannebery Lawyers |
ASHLEY JA
WEINBERG JA
COGHLAN JA:
THE COURT:
The accused, FM,[1] was arraigned, in the County Court at Melbourne, on 22 April 2013, before his Honour Judge Tinney, charged with three separate offences under the Commonwealth Criminal Code.[2] Before any jury was empanelled, he pleaded not guilty to charges 1 and 2, and guilty to charge 3.
[1]A pseudonym has been used so as not to identify the applicant.
[2]Schedule 1 to the Criminal Code Act 1995 (Cth).
Charge 1, which may be termed ‘procuring’, alleges that between 9 March and 11 May 2012 he used a carriage service to transmit a communication to another person, namely ‘Annie’, whom he believed to be under 16 years of age, with the intention of procuring ‘Annie’ to engage in sexual activity with him.
Charge 2, which may be termed ‘grooming’, is in substantially the same terms save that the intention alleged is that of ‘making it easier to procure’ ‘Annie’ to engage in sexual activity with him, rather than ‘procuring’ her to do so.
Charge 3, to which the accused pleaded guilty, may be termed ‘transmitting indecent communication’. This offence differs in key respects from both ‘procuring’ and ‘grooming’. Here, the Crown need only establish that the accused intentionally transmitted a communication to ‘Annie’ which, viewed objectively, included indecent material. It is not obliged to prove that the accused intended to ‘procure’ her to engage in sexual activity with him, or to ‘make it easier to procure’ her to do so. To put the matter more simply, this third offence requires proof of a general intent only, and not what is sometimes described as a specific or ulterior intent.
The three charges were laid in the alternative. In descending order of gravity, ‘procuring’ carries a maximum of 15 years’ imprisonment, ‘grooming’ 12 years’ imprisonment, and ‘transmitting indecent communication’ seven years’ imprisonment.
The proceeding below
The Crown was not prepared to accept the accused’s plea of guilty to charge 3 as sufficient to clear the indictment. Accordingly, it indicated that it proposed to proceed to trial on charges 1 and 2. In the normal course, a jury would then have been empanelled, and the Crown would have endeavoured to establish either ‘procuring’ or, failing that, ‘grooming’.
However, matters did not proceed in that way. The prosecutor, having referred to what the accused had said in a second record of interview with the police, stated that she would seek an indication from the trial judge as to how he would charge the jury regarding the requisite mental state for ‘procuring’ or ‘grooming’. She did so on the basis that, on one view of what he said in that second interview, the accused had merely been ‘fantasising’ when he transmitted the offending material. In essence, he had told police that he obtained sexual gratification from transmitting material of this kind, but never had any intention of doing anything more than that. He claimed that he had no intention, or wish, to meet up with ‘Annie’, or to have her engage in any sexual activity with him. In effect, he regarded his messages to her as nothing more than a way of fulfilling his peculiar fantasy.
The prosecutor was plainly troubled by this. In her submission, even assuming that what the accused told the police was true, this would be of no avail. He would still have the requisite intent either to ‘procure’ or ‘groom’.[3]
[3]T3 (22 April 2013).
Defence counsel quite clearly took a different view. He argued that, as a matter of law, the Crown would have to negate his client’s ‘fantasy’ defence in order to succeed in having him convicted of either of these two offences.
Depending upon how the trial judge ruled upon this issue, the accused might have been left in a position where he had no defence at all to either ‘procuring’ or ‘grooming’. In those circumstances, his Honour heard full argument regarding this matter, and delivered a ruling[4] on the point. In substance, he ruled in favour of the accused, holding that ‘fantasising’ of the kind described in the second record of interview would potentially negate both ‘procuring’ and ‘grooming’. However, on one view of his ruling, he went further than the argument of counsel for the accused required.
[4]We describe it as a ruling, although the judge eschewed that description.
The Crown, being dissatisfied with that ruling, has brought this interlocutory appeal against his Honour’s decision.
The factual background
The facts in this case are largely uncontentious. Put simply, the accused engaged in a number of communications with ‘Annie’, by means of the ‘Yahoo Messenger’ instant messaging service. He made those communications under the pseudonym ‘James F’. ‘Annie’ used the pseudonym ‘annie1999x’.
The first contact occurred at about 11:00am on 9 March 2012. At the start of the chat session on that date, ‘Annie’ told the accused that she was at home ‘chukin sicky from skool’.[5] She said that she was 14 years of age. The accused replied that he was aged 38, and that he was a massage therapist. He proceeded to engage in sexualised conversation with ‘Annie’, during the course of which he asked her about her underwear, topless bathing, being naked, if she ever talked about sex, and whether she wanted to be ‘naughty’. He told her that he was naked, and that it would be good if he were massaging her.
[5]Quotes from the conversations are quoted here in their unedited form, as they appeared on the instant messenger service.
The next chat session occurred a week later at about 10:00am on 16 March 2012. The accused asked ‘Annie’ if she would like a massage, and enquired as to where that could be done. He then asked her about her underwear, her breasts, whether he made her ‘hot’, where she shaved, and if she had ever tried masturbating. He suggested to her that she take her underwear off, and said that he had removed his own. He then instructed ‘Annie’ how to masturbate.
On 22 March 2012, ‘Annie’ entered into a chat session with the accused, saying that she was at school in a free class. The accused referred to their conversation of 16 March 2012, and asked if they could repeat what they had done that day. The following exchange took place:
[The accused]: how cud we do stuff
[‘Annie’]:I dunno
[‘Annie’]:wot u think?
[The accused]: maybe find a place
[‘Annie’]:yea like wher?
[‘The accused’]: my place..car or beach?
The next day, ‘Annie’ again entered into a chat session with the accused. The accused asked her whether she had ever been caught without her underwear. The accused suggested meeting at some venue where he and ‘Annie’ ‘wont get caught’.
On 29 March 2012, at about 12:40pm, another chat session took place. ‘Annie’ told the accused that she was in the library at school. The following exchange occurred:
[The accused]: I better behave
[‘Annie’]:lol
[The accused]: Id have 2 if u were here
[‘Annie’]:relly?
[The accused]: yes… u wouldnt want me being naughty
[‘Annie’]:hehe
[The accused]: be undressed but no touching
[‘Annie’]:k
On 5 April 2012, at about 3:00pm, the accused again asked ‘Annie’ about her underwear. He asked her what he would see if she were not wearing any.
On 9 April 2012, at about 3:00pm, ‘Annie’ told the accused that she was going for a sleepover at a friend’s house. The accused suggested that she could ‘have a sleepover here’ if his girlfriend was away. This was the last conversation of any substance between them.
The first record of interview
On 30 May 2012, the accused took part in a tape recorded interview with police. He denied having had anything to do with the messages that had been transmitted to ‘Annie’. Among other matters, he stated that he did not think he had accessed a chat room that year, and that the pseudonym ‘annie1999x’ meant nothing to him. He added that he had never had an online conversation of a sexual nature.
The second record of interview
The following day, after a request by the accused, he took part in a second record of interview. He admitted to having said the things to ‘Annie’ that had been mentioned by police on the previous day. He said that he did not, and would not, directly contact anyone he had communicated with over an instant messaging service. He said that merely typing the messages did not seem ‘real’ to him. He claimed that although he had believed that he was talking to a young girl, he was hoping that she did not mean what she was saying. He added: ‘why does it seem like you can just do and say whatever you want, just ‘cos you’re typing it on a screen to someone you can’t see or hear?’ He acknowledged that he might have suggested that he and ‘Annie’ meet, but said that he had never made a day, a time or a place.
On one view, the accused claimed that his purpose in engaging in this messaging was to achieve sexual gratification purely by way of fantasy. He maintained that he had never had the slightest intention of acting upon anything that was said, and, implicitly but very importantly for present purposes, that he had never intended to encourage ‘Annie’ to engage in sexual activity with him.
As often happens in cases of this kind, there never was an ‘Annie’. The recipient of this material was not a young girl aged 14, but rather an adult police officer. Self-evidently, there was not the slightest chance that this police officer would have been induced into engaging in sexual activity with the accused.
Of course, for the purposes of both ‘procuring’ and ‘grooming’, impossibility made not the slightest difference. Section 474.28(8) of the Criminal Code makes this clear:
(8)A person may be found guilty of an offence against section 474.26 or 474.27 even if it is impossible for the sexual activity referred to in that section to take place.
Nor is it of any consequence that there never was an ‘Annie’. Section 474.28(9) of the Criminal Code deals specifically with that situation:
(9)For the purposes of sections 474.26, 474.27 and 474.27A, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.
The Judge’s ruling
However, the fact that neither impossibility, nor fictitiousness, precludes conviction for these offences does not mean that ‘fantasising’ is incapable of constituting a defence. The sections dealing with impossibility and fictitious persons concern the physical elements of ‘procuring’ and ‘grooming’. They have nothing whatever to say about the mental state that must be proved as an element of these offences.
The trial judge fully recognised the importance of this distinction. He addressed it in terms in his ruling. Broadly speaking, he decided that if the Crown could not exclude the reasonable possibility that the messages to ‘Annie’ were ‘pure fantasy’, in the sense earlier described,[6] neither ‘procuring’ nor ‘grooming’ could be made out. That was because, in such circumstances, the accused could not be said to have intended to ‘procure’ ‘Annie’ to engage in sexual activity with him, nor to have ‘ma[d]e it easier’ to procure her to do so.
[6]Above para [22].
It is useful at this stage to refer to his Honour’s ruling in somewhat greater detail. Before doing so, however, it should be understood that the ruling was delivered in response to a submission by the prosecutor which was in the following terms:
… [T]he intent in the prosecution’s submission is clearly [that] it’s a factual matter that the jury may accept or not accept what’s contained in the accused’s interview as to what his relevant intent was. Having said that your Honour, prior to your Honour’s charge, the prosecution will be raising the interpretation of that particular element and seeking your Honour’s indication and how your Honour would seek to charge the jury in relation to the element of intention … the prosecution would submit that the way that that intention should be interpreted would in fact even if the jury weren’t so satisfied of what – or accepted what [FM] said was his intention, that that would not be a defence for the charge.[7]
[7]T3 (22 April 2013) (emphasis added).
In effect, what was sought from his Honour was a ruling upon the Crown’s submission that, even assuming that the accused’s state of mind was precisely as he described it — that is, both as he specifically described it, and what followed as a matter of implication (see [22] above) — when he sent these messages, that would be no defence.
The determinative part of what his Honour later characterised as a ‘decision’ was as follows:
Well the intent that must be proved is the intention of procuring a recipient to engage in sexual activity with the sender, that is encouraging or enticing or recruiting the recipient to engage in that activity and it is not determined by events which subsequently unfold. The fact is that there is an expanded definition of procurement which spells out notions of encouragement and enticement but they are very little removed if removed at all from common law principles but the expanded definitions, if they are expanded, are not divorced from the notion of the recipient being the target, that is, the communication being sent to the recipient and the object being to procure that the recipient engage in sexual activity. This state of mind in my judgment could hardly exist in a setting where it is no part of the charter of an accused person to at some point actually have the recipient engage in a sexual act.
In the circumstances, if the communications were purely and simply a fantasy with no intention, even a mixed intention to go further, then that could not be sufficient to amount to the state of mind required to prove the crime of procurement in my judgment.
The same rationale informs to a degree my view of the ambit of the grooming offence but of course it is a different provision. It has a different state of mind and it is clearly preparatory to the formation of any fixed intention. That must be so when one examines the terms of the Code setting out the offence.
…
Again, there is some assistance provided to me in the second reading speech … [t]hat is the distinction between grooming – online grooming which is characterised in the second reading speech as winning the trust of a child as a first step towards the future sexual abuse of that child. There can be no requirement to prove at the time of the conduct the subject of the grooming, any fixed intention to actually and necessarily move forward in my judgment.
It is the intention behind that communication, that is the first step towards future sexual abuse of the child. Now, if that is in no way on the agenda, if that is in no way part of any intention, mixed or otherwise, at the time of the communication, the subject of the grooming allegation, then in my judgment it would be conduct captured by the transmission of indecent material offence, and would not meet the criteria for grooming.
…
So in a way, returning to the shorthand description of the offence, provides some guidance, ‘use a carriage service to groom a person under 16 years of age for sexual activity’. If it is no part of the agenda as to there being any prospect of any future sexual activity, then it seems to me there could be no intention of making it easier to procure the recipient to engage in sexual activity.
…
Whether we are dealing with the procurement or the grooming, what obviously is critical in each case is the intent behind the communication. Is it done with the intention of procuring a recipient to engage in sexual activity (for the first offence), or in the second, done to facilitate, to make easier, the procuring of the recipient to engage in sexual activity. In either case, in my judgment, one can not be fixed with the relevant state of mind if there was absolutely no intention at all to seek to bring about the act of procurement because the term procurement is fundamental to each of the sections that I am asked to consider.
If there was a total fantasy, if there was no intent in any shape or form to advance to some potential sexual activity, then the intention required for procuring would not, in my judgment, exist in those circumstances. If it was no part of the intention in the making of the communication to make easier such procurement, then again in my judgment, the intent would not be made out. To do otherwise would be to reach a conclusion as to the existence of an intent to procure when there was no such intention actually harboured. [8]
[8]DPP v F M (Unreported, County Court of Victoria, Judge Tinney, 23 April 2013) (emphasis in original).
His Honour’s statement of principle, as there set out, is susceptible to different interpretations. On the one hand, he may have intended nothing more than to reject the prosecutor’s submission, as set out earlier, that even if the jury positively accepted (or, at least if the Crown could not negate the reasonable possibility) that what the accused told the police had been his state of mind at the time he sent these messages, that would not negate either ‘procuring’ or ‘grooming’. Alternatively (and it seems that the Crown understood his Honour to have ruled in this way), he may be taken to have determined that the Crown was required to prove, as part of its case, that the accused had the specific (and ‘fixed’) intent of engaging in sexual activity with ‘Annie’. In other words, on that interpretation of the ruling, his Honour had added to both these offences an element that, in the Crown’s submission, was not to be found in the language of the text, and which it ought not be required to establish.
These two interpretations of his Honour’s ruling may seem to be closely related. However, on careful analysis, they reflect quite separate and distinct propositions. As will be seen, the ruling, to some degree, conflates them.
The relevant legislative provisions
The offences under consideration for the purposes of the present application are to be found in Part 10.6 of the Criminal Code, which is headed ‘Telecommunications Services’. Within that Part appears Division 474 Subdivision F, which is headed ‘[o]ffences relating to use of carriage service involving sexual activity with person under 16’.
The ‘procure’ offence under s 474.26(1) is as follows:
474.26 Using a carriage service to procure persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a)the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b)the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and
(c)the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
The ‘grooming’ offence under s 474.27(1) provides:
474.27 Using a carriage service to “groom” persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a)the sender uses a carriage service to transmit a communication to another person (the recipient); and
(c)the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
(d)the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e)the sender is at least 18 years of age.
Penalty: Imprisonment for 12 years.
Finally, the ‘transmit indecent communication’ offence is as follows:
474.27A Using a carriage service to transmit indecent communication to person under 16 years of age
(1) A person (the sender) commits an offence if:
(a)the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b)the communication includes material that is indecent; and
(c)the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d)the sender is at least 18 years of age.
Penalty: Imprisonment for 7 years.
(2)In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.
(3)In this section:
indecent means indecent according to the standards of ordinary people.
The term ‘procure’ is defined in the Dictionary to the Criminal Code, for the purposes of s 474.26(1), as follows:
procure a person to engage in sexual activity includes:
(a)encourage, entice or recruit the person to engage in that activity; or
(b)induce the person (whether by threats, promises or otherwise) to engage in that activity.
The phrase ‘engage in sexual activity’ is also defined in the Dictionary, in the following terms:
engage in sexual activity: without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.
The appeal to this Court
Having considered his Honour’s ruling, the Crown determined to challenge it by way of interlocutory appeal. The trial judge certified that his decision regarding the intent necessary for ‘procuring’ and ‘grooming’ met the requirements of s 295(3)(b) of the Criminal Procedure Act 2009. In other words, his Honour certified that his decision was of ‘sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
In so certifying, his Honour was clearly of the view that his remarks constituted an ‘interlocutory decision’[9] within the meaning of that term in the interlocutory appeal provisions of the Criminal Procedure Act 2009. In discussion with counsel, his Honour said:
But whether I shied away from using the term ‘Ruling’ or not, it was not a fireside chat. I was obviously being invited to and delivered a decision concerning my interpretation of the elements of the offence so I’d have really no doubt that involved an interlocutory decision as that’s defined.[10]
[9]The term is defined in the Criminal Procedure Act 2009 to mean ‘a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial…’.
[10]T29 (23 April 2013).
The fact that the trial judge was prepared to so certify does not absolve the Crown from having to persuade this Court that leave to appeal should be granted. That is a question which we address later in these reasons.
Proposed grounds of appeal
The proposed grounds of appeal are as follows:
1.The learned trial judge erred in determining that an offence under s 474.26(1) of the Criminal Code requires proof that the sender has used a carriage service to transmit a communication to the recipient, having done so with a fixed intention of actually and necessarily having the recipient at some point engage in sexual activity with the sender.
2.The learned trial judge erred, as regards s 474.26(1) of the Criminal Code, in determining that there could be no intention of procuring the recipient to engage in sexual activity with the sender if it is no part of the charter, purpose or fixed intention of the accused person to at some point actually have the recipient engage in sexual activity.
3.The learned trial judge erred in his construction of one of the elements of the offence created by s 474.26(1) of the Criminal Code, namely 474.26(1)(b).
4.The learned trial judge erred in determining that an offence under section 474.27(1) of the Criminal Code requires proof that the sender has used a carriage service to transmit a communication to the recipient, having done so with the intention of potentially having the recipient at some point engage in sexual activity with the recipient.
5.The learned trial judge erred, as regards s 474.27(1) of the Criminal Code, in determining that there could be no intention of making it easier to procure the recipient to engage in sexual activity with the sender if it is no part of the agenda or purpose of the sender as to there being any prospect of any future sexual activity with the recipient.
6.The learned trial judge erred in his construction of one of the elements of the offence created by s 474.27(1) of the Criminal Code, namely 474.27(1)(c).
The Crown’s submissions
These grounds cover a multitude of points arising from the trial judge’s ruling. In summary, the Crown contends that his Honour erroneously ruled that the intent to be established for each of ‘procuring’ and ‘grooming’ required proof of (a ‘fixed’) intent on the part of the accused to have ‘Annie’ engage in sexual activity with him, when no such specific intent is required. In the Crown’s submission, it is sufficient for ‘procuring’ if the accused is proved to have intended to ‘procure’ ‘Annie’ to engage in such sexual activity, and sufficient for ‘grooming’ to prove merely that he intended to ‘make it easier’ to ‘procure’ her to do so. Later,[11] we refer to a particular argument advanced in that connection.
[11]At para [62].
During oral argument, the Crown also briefly addressed two cases which dealt with the provisions concerning the use of a telecommunications service either to ‘procure’ or to ‘groom’ a child under 16. They were cited by the judge below. It is convenient to mention those cases immediately, essentially to dismiss them from further consideration.
The first was the decision of the New South Wales Court of Criminal Appeal in R v Poynder.[12] That was a Crown appeal against sentence imposed for two offences against s 474.26(1) of the Criminal Code. The judge below considered that nothing in that case decided the point that falls for consideration on this application. We agree. The question whether ‘fantasising’ could deny the intent required by s.474.26(1) did not arise for consideration. The fact that fantasising was there said to be a matter bearing on sentence[13] does not decide the question which the Crown seeks to agitate here.
[12](2007) 171 A Crim R 544 (‘Poynder’).
[13]Ibid 558 [95] (Rothman J).
Before this Court, counsel for the Crown relied on Poynder as part of a submission that if the accused was to be dealt with under either ss 474.26(1) or 474.27(1), he would be likely to receive a greater sentence than if he were dealt with merely for the offence under s 474.27A(1) to which he has pleaded guilty. But nothing there said necessarily detracts from our opinion, which we later state, that if this accused were dealt with for either ‘procuring’ or ‘grooming’, he would be unlikely to receive a markedly different sentence than he would for the ‘transmitting indecent communication’ offence.
The second case cited by the judge below was Rampley v The Queen, another decision of the New South Wales Court of Criminal Appeal.[14] There, the appellant had pleaded guilty to one charge of an offence contrary to s 424.27(1), and had been sentenced to a term of two years and nine months’ imprisonment, to be released under a recognisance release order after serving one year and six months’ imprisonment. The offender’s appeal against sentence was dismissed. In a passage which counsel for the Crown noted contained a summary of the Crown’s submissions in that case, McClellan CJ at CL said:
The respondent submitted that it was irrelevant that the applicant formed no positive intention to meet for sexual activity. The essential element of the offence was an intention of "making it easy to procure the recipient to engage in sexual activity." The offence did not require an actual intention to meet or engage in sexual activity. Section 474.26 which carries a maximum penalty of 15 years imprisonment relates to a person who communicates "with the intention of procuring the recipient to engage in or submit to, sexual activity with another person."[15]
[14][2010] NSWCCA 293 (‘Rampley’).
[15]Ibid [30].
As the judge below noted, nothing in Rampley decides the point now under consideration. We add that in the passage just cited there is at least a suggestion that the submissions advanced before us differed from the submissions advanced in that case. If that did occur — counsel for the Crown submitted that there was no inconsistency, and we need not finally decide the matter — it was undesirable. The Crown should not advance dissimilar arguments respecting the same provision in the courts of different jurisdictions.
Should leave to appeal be granted?
We have decided, not without misgivings, that we should grant the applicant leave to appeal. As we have already said, the impugned decision is susceptible of two different interpretations. One of them, for reasons which we later explain, is erroneous. Depending upon which interpretation the judge settled upon in his charge, the Crown might be wrongly disadvantaged. Despite there being considerable doubt as to the utility, from a practical point of view, of illuminating the error, we have decided, on balance, that it is desirable to do so. But we should nonetheless make it clear why we doubt the practical utility of that course. The considerations are these.
First, if the trial proceeds under the current ruling, and the accused is convicted of ‘procuring’ or ‘grooming’, he will not be in a position to complain. The jury will have found an intent on his part to ‘encourage’ or to ‘make it easier’ for ‘Annie’ to engage in sexual activity with him. Whichever interpretation of the ruling is reflected in his Honour’s charge, the jury will have rejected the accused’s ‘fantasising’ defence, and concluded that at the time of communicating, as a minimum, he contemplated the possibility of having a live sexual encounter with her.
Secondly, if, on the other hand, the accused is acquitted of charges 1 and 2 on the basis that the jury are not satisfied that he had what we just called the minimum matter in contemplation, he will still be dealt with on charge 3. That offence carries a maximum of seven years’ imprisonment. Any sentence that might be imposed for that offence would, of course, be far lower than the maximum, and would be unlikely to differ significantly from the sentence that might be imposed on a conviction of ‘procuring’ or ‘grooming’, given that the conviction would be sustained despite the accused having no intention whatsoever of engaging in any actual sexual activity with ‘Annie’. This provides a sound reason for exercising our discretion in favour of refusing leave to appeal.
Thirdly, if this Court was to decide that both interpretations of the judge’s ruling were erroneous, it would create particular difficulties in this case. The accused could then be convicted of ‘procuring’ or ‘grooming’ despite his ‘fantasising’ defence not having been negated. That would pose real problems in assessing his moral culpability, and in sentencing. Self-evidently, in such circumstances, the trial judge would have to determine whether he had been found by the jury not to have been fantasising, or whether they had convicted him despite accepting, as a reasonable possibility, both his account of what he had done, and why.
Fourthly, it must be remembered that this trial involves the exercise of federal jurisdiction. This Court will strongly eschew any advisory opinion.
Fifthly, applying the principles that govern leave to appeal in relation to interlocutory appeals, one asks whether his Honour’s ruling is truly ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’?[16] As matters stand, the Crown may well persist with the present indictment irrespective of whatever conclusion is arrived at by this Court. Our decision will not render the trial unnecessary. Nor will it reduce its length. Certainly, it will not reduce the chances of a successful appeal against conviction.
[16]Criminal Procedure Act 2009 s 295(3)(b).
Sixthly, interlocutory appeals in criminal matters may serve a useful purpose. However, they almost always result in some measure of fragmentation and delay, and should not, therefore, be unduly encouraged. Depending upon which interpretation of his Honour’s ruling was reflected in his charge, the only practical consequence of the ruling in this particular case, if it was permitted to stand, is that the Crown might be disadvantaged by having to establish a particular form of mens rea that it maintains need not be proved. But we doubt, in light of the available evidence, that this would be likely to give rise to any real impediment to the Crown case on charges 1 and 2
Seventhly, if the Crown is concerned about the trial judge’s ruling standing as a precedent, that would be based upon a misconception. Rulings of this kind, by judges of inferior courts, have no precedential value as such. They are either regarded as correct, in which case they will be followed, or not so regarded, in which case they will simply be put to one side.
Is it an answer to a charge of ‘procuring’ or ‘grooming’ that the accused was purely fantasising?
In construing these provisions, it is important to bear in mind not merely that they are penal, but that they are intended to be applied by lay jurors. Abstract conceptions, based upon subtle philosophical distinctions, should be avoided, so far as possible, when considering the meaning to be ascribed to these offences.
In our opinion, if a jury is either positively persuaded that an accused was ‘purely fantasising’ when communicating with a recipient, or if the Crown cannot exclude the reasonable possibility that the accused was so fantasising, it will be fatal to a charge of ‘procuring’ or ‘grooming’. By ‘purely fantasising’ we mean communicating whilst having no intention of engaging in sexual activity with the recipient. An instance would be where the sender’s intent in communicating was solely to gain sexual satisfaction from the fact of communicating. We cannot see how the Crown could discharge its obligation to prove an intent to encourage[17] the recipient to engage in sexual activity if it cannot be shown that there was any intent, on the part of the accused, to engage in such activity. Why would the legislature deem it appropriate to criminalise, in a wholly artificial way, conduct which lacks the moral culpability inherent in the very notion of ‘procuring’ or ‘grooming’?
[17]One of the meanings of ‘procure’; but other meanings would yield the same result.
The fact that these offences can be committed in circumstances where it would have been impossible to engage in the sexual activity that is being encouraged, as well as in circumstances where the recipient of the information happens to be a fictitious person, does not, as a matter of logic, mean that an intent to encourage, without any desire to consummate what is being encouraged, is sufficient, as a fault element. The law has long recognised that one can ‘attempt the impossible’. It does not follow that one can do so without the requisite moral culpability. Yet, that seems to be the position for which the Crown contends in arguing that ‘fantasising’ as we have described it is no defence to ‘procuring’ or ‘grooming’.
‘Procuring’ requires an intent to procure. Relevantly, that includes an intent to ‘encourage, entice or recruit’. It is difficult to see how an accused, who has not the slightest wish to have the recipient of his communications engage in sexual activity with him, can be said to have intended to ‘encourage, entice or recruit’ her to do any such thing.
The same may be said of ‘grooming’, where the term ‘procure’ is an element of the offence.
Counsel for the Crown submitted that it is perfectly feasible to contemplate a situation where an accused intends to encourage another to do something, while not actually wanting that thing to occur. He posited the example of a bookmaker who is seen shouting encouragement towards the jockey of a champion racehorse to have that horse win, while hoping, having regard to the bets that have been laid, that the horse will lose.
Examples of that kind may readily be brought to mind. However, they are somewhat unrealistic in the context of cases such as the present. Consider the variant that was postulated during the course of oral argument by Coghlan JA. Assume that the bookmaker in question is shouting encouragement solely in order to be seen supporting this horse, while, at the same time, never intending to encourage the jockey to have the horse win the race. Can it seriously be suggested that, in such circumstances, the bookmaker intends to encourage the jockey to win the race?
The example put forward by Coghlan JA in oral argument is not all that far removed from what, as the accused in the present case wants to contend, was the ‘pure fantasising’ that led to the impugned ruling.
The test for intention is evidently subjective. A jury might decide, notwithstanding an accused’s account of his or her subjective intention when communicating, that words of encouragement were inconsistent with the accused’s account. But words of encouragement would not necessarily bespeak the impugned intention.
Counsel for the Crown submitted that the ruling involved a rewriting of the mental state provisions of both the ‘procuring’ and ‘grooming’ offences, adding elementally to what is there set out. But this is not strictly true. As we have earlier noted,[18] part of what his Honour said might be viewed that way, but definitely not the precise and narrow point upon which the ruling turned.
[18]At [31] above.
There is no reason, in principle, why an accused should not be convicted of ‘procuring’ or ‘grooming’ if, at time of communicating, the accused intends, as a real possibility, engaging in sexual activity with the person to whom he is communicating. He need not, in our view, have formed a ‘fixed intent’ to pursue that course. To the extent that the ruling may have suggested a need for the Crown to establish such an intent, we disagree. ‘Pure ‘fantasising’, however, is in an altogether different category, and cannot be regarded as a state of mind that allows for a finding of the requisite intent.
If we had any real doubt regarding the proper construction of ss 474.26(1) and 474.27(1), it would be considerably allayed by what was said in the Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2) 2004 (Cth).
When dealing with the proposed offence of procuring, the Memorandum states:
The proposed offence in subsection 474.26(1) would apply to acts of procurement where the sender intends to procure the recipient to engage in sexual activity with the sender. Proposed paragraph 474.26(1) contains this fundamental component of the offences: the sender must actually intend to procure sexual activity. It is not enough for the prosecution to show that the communications between sender and recipient were of a nature that would suggest the sender wanted to engage in sexual activity with the recipient. The prosecution must prove that the sender had this specific intention.[19]
[19]Explanatory Memorandum, Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2) 2004 (Cth) 45.
When dealing with the proposed offence of ‘grooming’, the Memorandum states:
Proposed subsection 427.27(1) targets the typical ‘grooming’ scenario where an adult communicates with a recipient with the intention that those communications will make it easier for the sender to engage in sexual activity with the recipient.
The mechanics of this proposed offence also operate in the same way as the ‘procuring’ offences in proposed section 474.26.[20]
[20]Ibid 46.
The modern approach to statutory interpretation begins and ends with the text of the legislative provision under consideration.[21] That said, it is plainly permissible to have regard to legitimate extrinsic material, either to confirm that the intended meaning of the provision is that conveyed by the ordinary meaning of the terms of the provision, or, in the case of ambiguity or obscurity, to determine the meaning of the provision.[22]
[21]See, eg, Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98, 107 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); DPP v Patrick Stevedores Holdings Pty Ltd (2012) 296 ALR 156, 172 [71] (Maxwell P, Weinberg JA and Ferguson AJA).
[22]See Acts Interpretation Act 1901 (Cth) s 15AB.
Finally, we gain some comfort as to the correctness of our analysis from the ordinary meaning of the word ‘groom.[23] One meaning of the verb ‘to groom’ is set out in the Australian Concise Oxford Dictionary as follows:
prepare or train (someone) for a particular purpose or activity: star pupils who are groomed for higher things
(of a paedophile) prepare (a child) for a meeting, especially via an Internet chat room, with the intention of committing a sexual offence. [24]
[23]We note that the word ‘groom’ is not used in the text of s 474.27, but that it appears in the heading to that provision. The Acts Interpretation Act 1901 (Cth) formerly provided that ‘… no heading to a section of an Act shall be taken to be part of the Act’: s 13(3). The relevant section of that Act was amended by the Acts Interpretation Amendment Act 2011 (Cth). The new section s 13(1) relevantly states that ‘[a]ll material from and including the first section of an Act to the end of … the last Schedule to the Act is part of the Act’. The section was intended to ‘capture all headings … within the Act’: Explanatory Memorandum, Acts Interpretation Amendment Bill 2011 (Cth).
[24]Bruce Moore (ed), The Australian Concise Oxford Dictionary (Oxford University Press, 5th ed, 2009) 624.
For all the reasons which we have stated, we see no error in the judge’s rejection of the Crown’s submission, as advanced below, that ‘pure fantasising’ does not negate ‘procuring’ or ‘grooming’.
Orders
We would grant leave to appeal, but dismiss the appeal. Although, as we have explained, his Honour’s ruling may have suggested that the Crown was obliged to prove an intention which is not required of it, the narrow point (which led to the ruling and to this interlocutory appeal) was correctly decided.
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