Director of Public Prosecutions (NSW) v Presnell

[2022] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146

Hearing dates:

13 May 2022

Date of orders:

30 June 2022

Decision date:

30 June 2022

Before:

Basten AJA at [1]
Hamill J at [22]
Dhanji J at [35]

Decision:

Appeal dismissed.

Catchwords:

CRIME – appeals – interlocutory appeal – permanent stay of criminal proceedings – sexual offences – sexual act with or towards a child – masturbating while looking at child – child not aware of act – meaning of “with or towards” – meaning of “towards” – statutory interpretation – legislative history – presumption that legislature intends words to take the meaning given to them by courts

Legislation Cited:

Crimes Act 1900 (NSW), ss 61E (repealed), 61HB, 61HC, 61HE (repealed), 61KE, 61KF, 61N (repealed), 61O (repealed), 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 76A (repealed), 78Q (repealed), 80AE, 81A (repealed), 409B (repealed)

Crimes and Other Acts (Amendment) Act 1974 (NSW)

Criminal Appeal Act 1912 (NSW), s 5F

Crimes (Amendment) Act 1989 (NSW)

Crimes (Sentencing Procedure) Act 1999(NSW), s 21A

Criminal Law Consolidation Act 1935 (SA), s 58

Criminal Legislation (Amendment) Act 1992 (NSW)

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Criminal Procedure Act 1986 (NSW), ss 293, 294CB

Indecency with Children Act 1960 (UK), s 1

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497

Arvinthan v R [2022] NSWCCA 44

Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales (2009) 78 NSWLR 43; [2009] NSWCA 83

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60

Director of Public Prosecutions of the Commonwealth of Australia v Keating (2013) 248 CLR 459; [2013] HCA 20

Director of Public Prosecutions v Burgess [1971] QB 432

Director of Public Prosecutions v Eades [2009] NSWSC 1352

Director of Public Prosecutions v Rogers [1953] 1 WLR 1017; (1953) 37 Cr App R 137

Fairclough v Whipp [1951] 2 All ER 834; (1951) 35 Cr App R 138

Goldsbrough, Mort & Company Ltd v Larcombe (1907) 5 CLR 263; [1907] HCA 58

Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150

Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46

R v AWL (2003) 231 LSJS 239; [2003] SASC 416

R v Barrass [2005] NSWCCA 131

R v Chonka [2000] NSWCCA 466

R v Edelsten (1989-1990) 18 NSWLR 213

R v Francis (1989) 88 Cr App R 127

R v Orsos (1997) 95 A Crim R 457

R v Page (Court of Criminal Appeal (NSW), 25 November 1991, unrep)

R v Riley, Christopher [2020] NSWCCA 283

R v Steffan (1993) 30 NSWLR 633

Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employee (1994) 181 CLR 96; [1994] HCA 34

Regina v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21

Regina v Preece (1977) 1 QB 370

Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65

Texts Cited:

Macquarie Dictionary, 6th ed (2013)

Oxford English Dictionary, online ed

Second Reading Speech, New South Wales Legislative Assembly, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018

The New Oxford Dictionary of English (1998)

Category:

Principal judgment

Parties:

Regina (Appellant)
Raymond William Presnell (Respondent)

Representation:

Counsel:
D Kell SC with M Millward (Appellant)
B Rigg SC with C Mendes (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
Legal Aid NSW (Respondent)

File Number(s):

2020/301056

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 November 2021

Before:

Ellis DCJ

File Number(s):

2020/000301056

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Raymond William Presnell, was charged with intentionally carrying out a sexual act towards a child under the age of 10 years, namely four years pursuant to s 66DC(a) of the Crimes Act 1900 (NSW).

The respondent was a family friend of the child’s carers. It was alleged that he entered the room of the child while at their home, where the child was lying fully clothed on the bed, playing on his mobile phone, facing the wall. One of the child’s carers saw the respondent sitting on a bedside table next to the bed with his body facing towards the bedroom door (and therefore away from the child). The carer said that the respondent had the right leg of his shorts pulled up, exposing his erect penis and was masturbating while looking at the child who was to his left.

On 8 November 2021, after the respondent was arraigned and before a jury was empanelled, the primary judge heard submissions from the parties in relation to whether the offence could be proved. On 9 November 2021, his Honour delivered a written judgment concluding that the evidence the Crown proposed to lead was not capable of establishing that the accused intentionally masturbated towards the child and that therefore, the charge could not be proved. On 10 November 2021, the respondent filed a notice of motion seeking a permanent stay of the proceedings on the basis the prosecution was doomed to fail. The primary judge ordered a permanent stay on this basis.

The appellant challenged this conclusion on the ground that “his Honour erred in finding that Count 1 on the indictment could not be made out at law”. The appeal was determined on the basis that there was no challenge to the factual premises on which the judgment was based and in particular, that the respondent was hiding his sexual act from the child.

The issue arising on this appeal was whether the primary judge was correct in his conclusion that, on the facts as articulated by him, the offence could not be established, such that the proceedings should be permanently stayed. This gives rise to the following sub-issues:

1. whether s 66DC(a) of the Crimes Act creates one offence of committing a sexual act “with or towards” a child or two separate offences of committing such an act “with” or “towards” a child; and

2. whether the act alleged against the respondent was “towards” the complainant within the meaning of the provision.

The Court held (per Dhanji J, Hamill J agreeing, Basten AJA dissenting), dismissing the appeal:

As to sub-issue (a), per Dhanji J at [60]-[78] (Basten AJA and Hamill J agreeing at [19] and [22] respectively):

1. The legislative history and earlier decisions of this Court, in the United Kingdom and the High Court’s decision in Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 suggest that “with or towards” should be interpreted as creating two separate offences. Having regard to this, there is a strong presumption that Parliament did not intend to change the meaning of “with or towards” when it introduced s 66DC.

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60; R v Orsos (1997) 95 A Crim R 457; R v Chonka [2000] NSWCCA 466; R v Page (Court of Criminal Appeal (NSW), 25 November 1991, unrep) considered; Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employee (1994) 181 CLR 96 applied.

As to sub-issue (b):

2. Per Dhanji J at [79]-[96] (Hamill J agreeing at [22], [32]-[34]): For a sexual act to be “towards” another under s 66DC(a), there must be an intention to engage the other person at some level. An act may be “towards” another where the other person is engaged by being made aware of the act. An act may also be “towards” another where, even though the other person is unaware of the act, the first person physically engages the other person. While physical proximity is relevant to whether an act is “towards” another, the question is not answered by physical proximity alone.

R v Barrass [2005] NSWCCA 131; Regina v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21; Director of Public Prosecutions v Eades [2009] NSWSC 1352; R v Francis (1989) 88 Cr App R 127 considered.

Per Basten AJA at [13]-[15], [18] (dissenting): “Towards”, in its ordinary usage, can mean directed to, in the direction of or in relation to. The person exposing himself engages in conduct that is directed to the other person and does not depend upon whether the other person is aware or not of the offender’s presence. He intends his act to be observed by the person. “Towards” can also identify a state of mind, such as an attitude in relation to another person. There is no reason to limit the operation of s 66DC(a) to the case of a person seeking to involve a child in his sexual activity. It is sufficient that the child is a passive (and unknowing) party to the sexual activity.

3. Per Dhanji J at [97]-[105] (Hamill J agreeing at [31]): The child’s lack of awareness, the physical positions of the parties and the directions they were facing supported the primary judge’s conclusion that the respondent was hiding his act from the child. This, in turn, supported his conclusion that the act was not an act done “towards” the child and that the evidence could not establish the offence. Having regard to the fact the respondent does not take issue with the primary judge’s findings of fact, the primary judge was correct in concluding that the act alleged was not “towards” the complainant and the evidence was therefore, incapable of proving the offence.

Per Basten AJA at [18]-[21] (dissenting): The activity in the present case included both achievement of sexual arousal by watching the child and by masturbating in the presence of the child. The watching was directed to the child and the act displayed a state of mind towards the child. In those circumstances, it was open to a jury to conclude that the sexual activity was carried out “towards” the child. The judge’s use of the verb “hiding” and “hidden” assumes the prosecutor must either prove an intention the victim be aware of the activity (which is not a necessary implication of acting “towards” another), or disprove an intention that the victim not be aware (which would inappropriately limit the scope of the provision). The matter should have been left to the jury.

Judgment

1. BASTEN AJA: The respondent was charged with a single offence of intentionally carrying out a sexual act towards a child under the age of 10 years, namely 4 years. The prosecution case was that the accused was seated on a bedside table next to the child’s bed. The boy was lying fully clothed on the bed facing the wall, with his back to the accused. The accused was masturbating while watching the boy.

2. At a pre-trial hearing in the District Court at Port Macquarie, the accused submitted that the circumstances identified in the Crown case statement, as set out above, could not constitute the offence with which he was charged. In particular, the accused submitted that the child must be aware of the accused’s actions for them to be described as carried out “towards” the child.

3. In a judgment delivered on 10 November 2021, Ellis DCJ upheld the submission and granted a permanent stay of the proceedings. On 24 November 2021, the Director of Public Prosecutions filed an appeal pursuant to s 5F(1) of the Criminal Appeal Act 1912 (NSW). The short issue in the case is whether the judge correctly construed s 66DC(a) of the Crimes Act 1900 (NSW).

4. The provision under which the accused was charged reads:

66DC   Sexual act—child under 10

Any person who intentionally—

(a)     carries out a sexual act with or towards a child who is under the age of 10 years, …

…

is guilty of an offence.

5. The judge identified the question before him in the following terms:

“The real question, assuming a tribunal of fact infers that the accused was sexually aroused by the child and his nearby presence and as a result, was masturbating while thinking sexual thoughts of the child, is whether masturbation in such circumstances is capable of amounting to masturbation directed at or towards the child.

This question raises two issues. First, does ‘towards’ require the child to be aware of the accused masturbating, that is, aware of the physical acts of the accused …? Secondly, can it be said that the sexual act, masturbation, in these circumstances, is directed at the child or simply an act directed to self-gratification?”

6. The judge accepted that the circumstances of a “flasher” or “exhibitionist”, who exposes himself to another person and gains sexual gratification from the fact of displaying himself and being seen to do so, would fall within the scope of the offence. The judge also accepted that “awareness” on the part of the victim of the offence was not always necessary because the evidence may establish that the accused was “directing his act towards a particular person, whether, as it turned out, the person was aware of the intended insult directed his way or not.”

7. The judge was satisfied that, in the unusual circumstances of the case, the section was not engaged because the act was “hidden” from the child and thus not intended to be seen by the child. The sexual act carried out by the accused was thus not directed towards the child.

8. Subject to one important qualification, each step of this reasoning is coherent. The qualification arises from the judge’s statement that the act was “hidden” from the child. As Dhanji J explains in relation to other aspects of the primary judge’s reasoning, apparent factual findings may need to be read in a way which does not imply a misunderstanding of the limited function being exercised. If the judge drew an inference that the accused was deliberately concealing his activity from the boy, that would have been inconsistent with his role in determining whether the charge should go to a jury. The preferable reading is that the judge was describing a situation where, because of the positions of the boy and the respondent, the latter’s activity was not visible to the boy. It would be open to the jury to infer that the respondent was reckless as to whether the boy was aware of what he (the respondent) was doing.

9. The reasoning of the primary judge took the word “towards” as determinative of the operation of the provision and assumed that a necessary element of the offence was awareness on the part of the child, or at least that the respondent intended that the child be aware. The preferred course is to read the word in its statutory context, not only within the specific provision, but also bearing in mind the surrounding sections. A number of considerations are raised by a contextual approach.

10. First, there is no express requirement of awareness on the part of the child in the terms of s 66DC. Rather, the section focuses on the intentional carrying out of sexual activity, that is the activity of the accused, not the child. It is therefore necessary to identify with some care the scope of that activity.

11. Secondly, while it appears to have been assumed in the course of argument before the primary judge that the prepositions “with or towards” were intended as alternatives, it is by no means clear that they operate independently, rather than as a composite phrase. It is easy to envisage circumstances which are encompassed by both prepositions. Further, although it was assumed in the course of submissions that these terms were narrower than “in the presence of” the child, it is by no means clear that that is so.

12. Thirdly, s 66DC appears in a cascading series of sections in Div 10 dealing with sexual offending against children. In descending order of seriousness, these are sexual assaults (subdiv 5); sexual touching (subdiv 6); and sexual acts (subdiv 7). Thus, carrying out a sexual act is a lesser offence than sexually assaulting or sexually touching a child. While some of the offences will involve the activity of the child (such as inviting a child to sexually touch the offender), many will not. It is not clear that sexually touching a child requires that the child be aware of the offender’s conduct. Assaults and touching offences will, almost inevitably, involve contact between the offender and the child; sexual activity under s 66DC will not.

13. Focusing, as the charge did, on activity “towards” the child and dealing only with a case such as the present where each was physically present, the term “towards” could envisage movement of the accused, but is not limited to that meaning. “Towards”, in its ordinary usage, can also mean directed to, in the direction of, or in relation to. The person exposing himself engages in conduct that is directed to the other person and does not depend upon whether the other person is aware or not of the offender’s presence. He intends his act to be observed by the person. “Towards” can identify a state of mind, such as an attitude towards death, or an attitude in relation to another person, or a characteristic of a person. There is no reason to conclude that it is used in some more limited sense in the statute, in part because, if it were, there is no criterion to determine the extent of the limitation.

14. Further, because the offence focuses on intentional sexual activity, it focuses upon both the intention and the act of the accused. If a man at a party enters a child’s bedroom in the house, sees the child asleep and, being aroused by the sight, masturbates while looking at the child, his aroused state of mind is directed towards, or is in relation to, the child. If it may be inferred that he is using the child for sexual stimulation, and does not intend to wake the child, the activity includes both achieving sexual arousal by watching the child and by masturbating: see s 61HC. The watching, an essential element of the factual circumstances, is directed to the child. As with sexual touching, there is no reason to imply a limitation that the child be aware of the activity. Without touching, it is an activity capable of falling within s 66DC.

15. In some cases it may be inferred that the accused is titillated by the possibility that the child may awaken and see him. Again, it is arguable that the accused’s state of mind is directed towards the child and hence s 66DC is engaged. (That does not appear to be asserted in this case, so the example need not be pursued.)

16. Further, the concept of “awareness” relied on by the primary judge is fraught. Need it extend to the nature of the physical act, or to an understanding of the sexual nature of the physical act? If the latter, the younger the child, the less the likelihood of awareness. That is not to say that culpability is necessarily reduced by the child’s lack of full awareness of the nature of the offender’s conduct; indeed, the contrary may be the case.

17. The Crown case was that the accused was obtaining sexual arousal from looking at the child in his presence. He was in fact both “with” the child and directing his thoughts “towards” the child at the time he was masturbating. As s 61HC, which defines “sexual act”, makes clear, in deciding whether an act is sexual in the ordinary meaning of that term, the jury would be entitled to take into account an inference that the accused was carrying out the act for the purpose of obtaining sexual arousal or sexual gratification: s 61HC(2)(b). His state of mind is an important element in the offending.

18. There is no reason to limit the operation of the section to the case of a person seeking to involve a child in his sexual activity. It is sufficient that the child is a passive (and unknowing) party to the sexual activity. The activity in the present case included both achievement of sexual arousal by watching the child and by masturbating in the presence of the child. The watching was directed to the child and the act displayed a state of mind towards the child. In those circumstances, it was open to a jury to conclude that the sexual activity was carried out “towards” the child.

6. Dhanji J has reached a different conclusion, following a comprehensive and careful process of reasoning, from which I depart in only one respect. I accept that the history of s 66DC and related provisions, and their consideration in the cases, leads to the conclusion that the phrase “with or towards” creates two separate offences. That conclusion, however, as Dhanji J observes, is not determinative of the present appeal because it does not determine the content of “towards”.

7. Further, I accept that my conclusion is inconsistent with the reasoning of Lord Lane CJ in R v Francis (1989) 88 Cr App R 127, discussed by Dhanji J at [85]. More importantly, it is inconsistent with the conclusion he reaches at [105]. The point of my departure is the reliance placed on the judge’s use of the verb “hiding” and “hidden”. As noted above, it assumes an element of the offence which the prosecutor must prove (or disprove). If the element is a positive intention that the victim be aware of the activity, for the reasons stated above, I do not see that as a necessary implication of acting “towards” another. If the element which the prosecutor must disprove is an intention that the victim not be aware, again it is not apparent why such an intention would negate the offence. Were it to do so, it would limit the scope of the provision to contact which necessarily obtained its sexual element from the intended awareness of the victim. There may be a case available to the prosecution in which the accused is reckless as to awareness (whether observed or otherwise perceived), or is indifferent to awareness, or both. In my view these situations fall within the scope of acting “towards” another. It was a matter for the jury as to whether the offence was made out.

8. On this view, the matter should have been left to the jury and the permanent stay should be set aside.

9. HAMILL J:   I have read the draft judgments of Basten AJA and Dhanji J. I agree with Dhanji J that the appeal should be dismissed. I agree with his Honour’s reasons for that conclusion. I do not perceive that anything that follows is inconsistent with his Honour’s reasons.

10. The process before the District Court was unusual in that Judge Ellis was called upon initially to reach a decision in the absence of any application to stay the proceedings on the indictment. However, by the time the order for a permanent stay was granted the issue had crystallised. The appellant did not take any issue as to the formality of the process or assert that any procedural defect vitiated the ruling.

11. The appeal was argued solely on the basis that his Honour erred in finding that the evidence was not capable of establishing the offence alleged in the single count on the indictment. The appellant accepted that if that finding was correct, the prosecution was destined to fail, and the appropriate remedy was a permanent stay on the basis that the proceedings amounted to an abuse of process. As Dhanji J says, the question of law confronting Judge Ellis – that is, whether the evidence was capable of establishing the particular offence charged[1] – “allowed for only one answer”.

    1. Cf Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at 501.

12. I agree with both Basten AJA and Dhanji J that the question whether s 66DC(a) creates one offence (carrying out a sexual act “with or towards” a child under 10) or two offences (carrying out a sexual act “with” a child and carrying out a sexual “towards” a child) is not determinative of the present case. In the absence of any suggestion by either party that the indictment presented against the respondent alleged an offence not known to the law, the Court must determine the matter by reference to the offence preferred by the Director of Public Prosecutions. The terms of the indictment, as preferred by the Director, appear to comply with the decisions of this Court referred to by Dhanji J at [70]-[73].

13. While the question of law allows for one answer, [2] the judgments of Basten AJA and Dhanji J demonstrate that the answer is not necessarily obvious and will be determined on the particular facts of any given case. It is easy to imagine hypothetical cases, or to review the facts of past cases, that fall on either side of the line. However, in this case the Judge correctly concluded that the evidence could not establish that the sexual act was “towards” the child.

    2. See below at [45] (per Dhanji J).

14. Contrary to the appellant’s submissions, and despite the submissions made in the District Court, that conclusion was not predicated solely on the issue of the child’s awareness. The fact that the evidence was not capable of establishing that the child was aware of the respondent’s conduct was a factor, but it was not the basis of his Honour’s decision. As Dhanji J points out, his Honour’s conclusion was in the terms of the statute:

“there is no evidence capable of establishing that the accused intentionally masturbated towards the child”.

28. When his Honour spoke of the child’s awareness, it was coupled with reference to the “private nature of the physical acts”. As Dhanji J explains, that was to distinguish the act alleged from acts that are plainly directed to another person, where the person “towards” whom the act is directed is engaged in the conduct by the invitation of the accused or otherwise. Examples are seen in the facts of cases such as Crampton v The Queen,[3] R v Barrass,[4] and R v Gillard. [5] The evidence in this case was not capable of establishing the kind of engagement between the perpetrator and the victim demonstrated in those cases.

    3. Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60.

    4. R v Barrass [2005] NSWCCA 131.

    5. Regina v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21.

29. The High Court’s decision in Crampton v The Queen was concerned with an offence of committing an act of indecency “with” a person. The judgments show that the fact that the act was abhorrent does not bring it within the scope of a particular statutory provision. The judgment of Gaudron, Gummow and Callinan JJ at [58]-[63] accepted the force of earlier authorities that the offence was not established by the mere presence of the victim. The same applies to an offence charging a sexual act “towards” the child. The facts of Crampton v The Queen would have sustained an offence alleging an indecent (or sexual) act towards the child because the perpetrator drew the act to the attention of the child. The same can be said of the facts in Barrass and Gillard.

30. It is not without significance that Judge Ellis analysed and applied the decisions in R v Barrass, R v Gillard and R v Francis. [6] His Honour concluded, correctly, that if a sexual act like masturbation:

“is not directed at any other person then it is not done ‘towards’ another person as mere presence, proximate or not, is insufficient to sustain the legislative requirement that the act be intentionally directed towards the child”.

[His Honour’s emphasis.]

6. R v Francis (1989) 88 Cr App R 127.

31. As Dhanji J explains, the appellant did not challenge the facts upon which Judge Ellis proceeded and the respondent argued the appeal on the factual basis that the sexual act was “hidden” from the child. Once this “fact” is accepted, and in the absence of any countervailing evidence, the primary Judge’s conclusion as to the question of law confronting him was clearly correct.

32. None of the above restricts the scope of the provision to non-physical contact which necessarily obtains its sexual element from the intended awareness of the victim: cf Basten AJA at [20]. The difficulties in the present case, if they were not already apparent, were demonstrated when Senior Counsel for the appellant attempted to articulate the directions that the trial judge would be required to give to the jury. Given the potential range of meanings of “towards” discussed in the judgments of Basten AJA and Dhanji J, this is not a case where a jury can simply be directed in terms of the statute. The appellant did not suggest that it would be appropriate to do so, but was unable to articulate what directions would be required. In many, if not most cases, the element of “towards” will not be in issue and no elaboration will be needed. In some cases, it may be appropriate to direct a jury that the awareness of the complainant is not required and is not an essential component of the charge. In such cases, or other cases where the issue arises, it may be necessary to direct the jury that the concept which is sought to be captured by the word “towards”, as Dhanji J has written, requires some form of engagement by the accused with the complainant. This may be established by the accused knowing the complainant is aware, making the complainant aware, or engaging with the complainant’s person in a manner falling short of actual touching (and absent any awareness on the part of the complainant).

33. In terms of this last category, even if such a case was run on the basis that the respondent was reckless as to their sexual act being directed towards the child (cf: Basten AJA at [20]), the hypothetical set of facts discussed by Dhanji J at [94] makes clear that the preferred construction of towards is broad and flexible enough. As can be seen from his Honour’s analysis, the same conduct which occurred in this case, absent any awareness on the part of the complainant, in circumstances where there was an extremely high probability of discovery would not be excluded by a definition of “towards” that bespeaks of some intended engagement.

34. The decision reached in the District Court fits comfortably with the cases considered by Judge Ellis and discussed by Dhanji J. The contrary view is, as Basten AJA acknowledges at [20], inconsistent with the decision of Lord Lane in R v Francis. There is much to be said for consistency in approach and for there to be certainty in the criminal law. [7]

    7. Director of Public Prosecutions of the Commonwealth of Australia v Keating (2013) 248 CLR 459; [2013] HCA 20 at [48].

35. DHANJI J:   

Introduction

36. The respondent is alleged to have engaged in behaviour that is, on any view, aberrant. The question that arises on this appeal is whether the sexual act he is alleged to have engaged in is capable of amounting to a sexual act towards another contrary to s 66DC(a) of the Crimes Act 1900 (NSW). More correctly, for reasons expanded on below, having regard to the way in which the appeal was argued, the question is whether the primary judge was correct in his conclusion that, on the facts as articulated by him, the offence could not be established, and the proceedings were therefore doomed to fail and should be permanently stayed as an abuse of process.

Background

37. The respondent was charged on an indictment in the following terms:

“… [the respondent] on 19 October 2020, at South Kempsey in the State of New South Wales, did intentionally carry out a sexual act towards [the complainant], being a child then under the age of 10 years, namely four years.”

38. The respondent was a family friend of the complainant’s carers. It is alleged that, while at their home he entered the room of the complainant, who was then four years old. The complainant was lying on a bed, fully clothed, playing on his mobile phone, facing the wall. One of the complainant’s carers came to the room and saw the respondent. He said the respondent was sitting on a bedside table near the bed with his body facing towards the bedroom door (and therefore away from the complainant). The carer said that the respondent had the right leg of his shorts pulled up, exposing his erect penis and was masturbating while looking at the complainant who was to his left. The primary judge appeared to accept that, while he was looking at the child, the respondent and the child were positioned such that he was hiding the act from the child. There is no evidence the complainant was ever aware of the respondent’s sexual act. I note I have, for convenience, referred to the child as the “complainant” though this is not strictly accurate as he made no complaint.

39. The manner in which the matter came to be determined by the primary judge as a pre-trial issue was unusual. The respondent made a submission to the Director of Public Prosecutions (NSW) requesting that there be no further proceedings in the matter based on the prosecution’s inability to prove the charge due to the complainant’s lack of awareness of the act. The submission was rejected by the Director. Prior to the date for trial, the Crown Prosecutor, with the respondent’s consent, forwarded the defence application to the primary judge. On the material before this Court the application appears to consist of a three page letter from the respondent’s solicitors with two relevant cases attached.

40. On 8 November 2021, after the respondent was arraigned and before a jury was empanelled, the primary judge heard argument, based on the respondent’s submission to the Director, as to whether the offence could be proved. His Honour reserved his decision. On 9 November 2021 his Honour delivered a written judgment titled “[Judgment] on the question of what constitutes ‘towards’ for the purpose of an offence contrary to s 66DC of ‘… carry out a sexual act towards a child under the age of 10 years’ and whether it requires proof of ‘awareness’ on the part of the complainant”. While the judgment discussed the issue that had been raised by the parties, whether awareness of the act on the part of the complainant is required, his Honour’s conclusion was in different terms. His Honour said:

“… I have concluded that there is no evidence capable of establishing that the accused intentionally masturbated towards the child. As that is precisely what the Crown has to prove then the prosecution is doomed to fail. The effect of that conclusion is that the current charge based on the current evidence cannot be made out at law.”

41. On 10 November 2021, following discussion between the parties, the respondent filed a notice of motion seeking a permanent stay of the proceedings on the basis the prosecution was “doomed to fail”. The affidavit in support annexed the respondent’s letter to the Director and his Honour’s judgment of 9 November. The appellant tendered the Crown Case Statement, a statement from the carer who witnessed the incident, his partner, some photographs and a record of interview between police and the respondent. It appears from the transcript that his Honour had, at least, the Crown Case Statement before him for the purposes of the argument on 8 November. It is not clear that his Honour had any other evidence for the purposes of the argument on that day. Ultimately, having regard to the way in which the appeal was argued, it is unnecessary to resolve any issues with respect to the material tendered at first instance. His Honour found the prosecution was doomed to fail, essentially re-publishing his reasons given the previous day, and ordered the proceedings be permanently stayed:  R v Presnell (District Court (NSW), Ellis DCJ, 10 November 2021, unrep).

42. The ground of appeal challenges this conclusion. It is framed as follows:

“1.   That his Honour erred in finding that Count 1 on the indictment could not be made out at law.”

The nature of the appeal

43. Section 5F of the Criminal Appeal Act 1912 (NSW) applies to, amongst other things, proceedings on indictment: s 5F(1). Section 5F(2) provides:

5F   Appeal against interlocutory judgment or order

…

(2)    The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

44. The order granting a permanent stay is an “interlocutory order” for the purposes of the section: R v Steffan (1993) 30 NSWLR 633 at 635; R v Edelsten (1989) 18 NSWLR 213. The Director consequently brings the appeal as of right.

45. There was no dispute that the primary judge had the power to permanently stay the proceedings if they were found to be an abuse of process: see Jago v District Court of New South Wales (1989) 168 CLR 23 at 47–48; [1989] HCA 46. Further, and while the categories of abuse are not closed, it was not in dispute that an abuse may arise where the prosecution is “doomed to fail”: see Walton v Gardiner (1992-1993) 177 CLR 378 at 393; [1993] HCA 77. The decision to grant a stay based on an abuse of process involves the exercise of a discretion: see Jago at 31. (It is not presently necessary to consider the circumstances in which a court would find proceedings to be an abuse yet not grant a stay.) The nature of an appeal brought pursuant to s 5F of the Criminal Appeal Act, against a discretionary determination was considered in some detail by Bathurst CJ in R v Riley, Christopher [2020] NSWCCA 283 at [89]-[114]. In the present case, however, while the primary judge may have been exercising a discretion, the only real question governing the exercise of that discretion was whether the evidence to be led by the Crown in support of the charge was capable of establishing the offence. This was a question of law which allowed for only one answer. The appeal, as is reflected in the ground of appeal, rises or falls on the correctness of his Honour’s determination of this question.

The primary judge’s determination

46. There is no issue that it would be open to a jury to find that the respondent carried out a sexual act. Nor was it in issue the complainant was a child under the age of 10. The only issue was whether the act alleged against the respondent was “towards” or perhaps “with or towards” the complainant within the meaning of s 66DC(a) of the Crimes Act.

47. While it is necessary to read the primary judge’s reasons in their entirety, his Honour set out his conclusions as follows:

“Conclusions

I conclude that when a sexual act, such as masturbation, is done with no person witnessing the masturbation the mere presence of a child in the vicinity, immediate or otherwise, cannot of itself establish that the act, done without an audience, was directed at the child or in the words of the section 'towards" the child.

In my view there is no basis for concluding that an act is done towards another person simply because at the time of the doing of the act that other person was in the thoughts of the accused. This is even where the person in the thoughts of the accused was proximate to or in view of the accused.

There must be something in the act itself or the circumstances in which the act is committed which evidences that the act is towards another and intended to be so.

I should note that in this case there is no evidence at all as to what the accused was thinking at the time he is alleged to be masturbating behind the child's back while the child was occupied with an electronic device. But even if the evidence established that he was thinking of the child the act was hidden from the child and there is no basis for a conclusion that the act itself was directed at or was done intentionally towards the child.

In this case given the absence of awareness on the part of the child and given the “private” nature of the physical acts of the accused, I have concluded that there is no evidence capable of establishing that the accused intentionally masturbated towards the child. As that is precisely what the Crown has to prove then the prosecution is doomed to fail. The effect of that conclusion is that the current charge based on the current evidence cannot be made out at law.”

48. The reference to the act being of a “private” nature refers back to an earlier part of his Honour’s reasons where he distinguished acts usually done in private for self-gratification, from acts such as the baring of one’s bottom (or “mooning” as the appellant described it) which are ordinarily, by their nature, directed at others. His Honour’s point was the fact of masturbation itself does not support an inference the act was directed “towards” another. Evidence to support such a conclusion was required from other sources.

48. His Honour’s conclusions, when understood in the context of the judgment as a whole, can be summarised as follows:

1. The presence of a child at the time a sexual act is performed is not, of itself, sufficient to prove the offence.

2. Thinking of another person while performing a sexual act does not mean the sexual act was done “towards” that person.

3. The respondent hid the act from the child, and therefore the facts did not rise above presence and thinking (as set out in (1) and (2), above). (These reasons will later explain that while his Honour used the passive “hidden” in the passage set out above, reading the reasons as a whole his Honour’s finding is more accurately expressed in the active sense, that the respondent “hid” his act from the child).

4. The fact that the child was unaware of the act, and that the act was “private” in the sense that it did not itself provide evidence that the act was directed to another, meant that there was no basis on which to infer that “the act itself was directed at or was done intentionally towards the child”.

50. The appellant before this Court submitted that his Honour erred in finding that it was necessary that the complainant be aware of the sexual act. While this was the argument put on behalf of the respondent at first instance, a fair reading of his Honour’s reasons makes it clear his Honour did not regard an absence of proof of awareness as determinative. His Honour made it plain that where a sexual act is committed in circumstances where the accused intended that his or her act be seen by another, such a sexual act would be “towards” that other. (It might be noted that, if the awareness of the complainant was a physical element of the offence, such a person could still be guilty of an attempt to commit the offence. His Honour, however, appears to have decided the matter on the basis that “towards” has a mental component which is made out by an intention that the sexual act be seen by another.)

The proper construction of “with or towards” in s 66DC

51. Section 66DC(a) provides as follows:

66DC Sexual act—child under 10

Any person who intentionally—

(a)    carries out a sexual act with or towards a child who is under the age of 10 years…

…

is guilty of an offence.

52. The maximum penalty for the offence is imprisonment for 7 years. Section 80AE provides that consent is no defence to certain offences, including s 66DC.

53. The task of statutory construction begins with a consideration of the text of the provision in its context both within the Act and including the mischief to which it is directed: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ and the authorities cited therein.

54. The appellant submitted that s 66DC(a) creates two separate offences, an offence of committing a sexual act “towards” another, and a separate offence of committing a sexual act “with” another. In support of this contention the appellant pointed out that in considering the offence of committing an act of indecency in s 61N(2) of the Crimes Act (the predecessor to s 66DC), this Court in R v Orsos (1997) 95 A Crim R 457 at 460, per Grove J, Priestley JA agreeing, held that the words “with or towards” refer to two different concepts which consequently give rise to two different offences. While the legislation has been amended and new offences created, the legislature has maintained the use of the words “with or towards”. It will be necessary to return to this issue.

55. On the assumption that an offence is constituted by a sexual act “towards” another, rather than “with or towards” another, the appellant submitted that the ordinary meaning of the word “towards” is, by reference to The New Oxford Dictionary of English (1998) and the Macquarie Dictionary, 6th ed (2013), “in the direction of”. It is, however, immediately apparent that this dictionary definition is of limited assistance. A person might pray in the direction of Mecca and in that sense, be performing an act “towards” that location. They may, however, be thousands of kilometres away. A person many kilometres from the object of his or her ardour, who, while facing that person, (and with that person in mind), performs a sexual act does not carry out a sexual act “towards” that person within the meaning of the provision. Clearly, the section does not use the word “towards” in that broad sense. Nor is the issue simply one of proximity. A person who goes into another room and masturbates while facing in the direction, and thinking of, another would not be regarded as carrying out a sexual act towards that other. Clearly it is necessary to go beyond the dictionary to understand the circumstances in which a person will be considered as intentionally carrying out a sexual act “towards” another.

56. The immediate context of s 66DC(a) does not assist. Section 66DC also uses the words “with or towards” in relation to offences of inciting an act with or towards the offender (s 66DC(b)), or another person (s 66DC(c)), or inciting another person to carry out a sexual act with or towards a child (s 66DC(d)). The same words are also used in s 61KE, s 61KF, s 66DD, s 66DE and s 66DF. None of these provisions shed light on the meaning of “towards” in s 66DC(a).

57. The broader context of the provision within the Act is also of limited assistance. Part 3 of the Crimes Act is titled “Offences against the person”. Division 10 of Part 3 is titled “Sexual offences against adults and children”. That division is then divided into subdivisions which include, in subdivision 1, definitions, and further subdivisions related to, in decreasing seriousness, sexual assault, sexual touching and sexual acts (with separate divisions for adults and children). Section 66DC falls within subdivision 7 of Division 10, which is titled “Children – sexual act”. There are various other subdivisions dealing with particular circumstances which are not presently relevant. Section 61KE contained in subdivision 4 titled “Sexual act” provides an analogue of s 66DC in relation to adults. The difference between the two sections is that s 61KE requires proof of lack of consent on the part of the complainant and knowledge of lack of consent on the part of the offender. Section 61KF creates the offence of aggravated sexual act, which is essentially the same as an offence against s 61KE but committed in the circumstances of aggravation (as provided in s 61KF).

58. The appellant submits that it is significant that s 61HE(3) (which has since been repealed) applied to an offence against s 61KE and s 61KF. Section 61HE(3) provided:

61HE   Consent in relation to sexual offences…

…

(3)    Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if—

(a)     the person knows that the alleged victim does not consent to the sexual activity, or

(b)     the person is reckless as to whether the alleged victim consents to the sexual activity, or

(c)     the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.

59. The appellant contends that s 61HE(3) makes clear that a sexual activity “with or towards” another may be without consent where the victim is unaware of the sexual activity because, for example, he or she is asleep. This suggests proof of awareness is not required. So much can be accepted. However, as noted above, the primary judge did not determine the matter on the basis that it was necessary to prove that the complainant was aware of the sexual act. And, to say that awareness is not required does not answer the question of what must be established to prove that a sexual act is “towards” another.

Legislative history

60. Section 66DC, and in particular the expression “with or towards” has its origins in s 76A which was introduced into the Crimes Act in 1974 by the Crimes and Other Acts (Amendment) Act 1974 (NSW). That section, which has since been repealed, provided:

“Any person who commits any act of indecency with or towards any girl under the age of sixteen years, or incites a girl under that age to any act of indecency with him or another, shall be liable to imprisonment for two years.”

61. As discussed by McHugh J in Saraswati v The Queen (1991) 172 CLR 1 at 25-27; [1991] HCA 21, the offence was introduced in response to two notable decisions of the English Court of Criminal Appeal which exposed a gap not covered by the existing offence of indecent assault. In Fairclough v Whipp [1951] 2 All ER 834; (1951) 35 Cr App R 138 the respondent to the appeal was urinating into a canal when he asked a young girl to touch his penis, which she did without compulsion. It was held that there was no assault and thus, no indecent assault. In Director of Public Prosecutions v Rogers [1953] 1 WLR 1017; (1953) 37 Cr App R 137 the respondent exposed his penis to his young daughter, asked her to masturbate him and she complied. The Court of Appeal found the case to be indistinguishable from Fairclough v Whipp. Lord Goddard CJ said (at 1018-1019):

"Before one can find that a man has been guilty of an indecent assault, one has to find that he was guilty of an assault, for an indecent assault is an assault accompanied by indecency. If one could show here that the respondent had done anything towards his child which by any fair use of language could be called compulsion, or acted, as I have said in other cases, in a hostile manner towards her, that is, with a threat or a gesture which could be taken as a threat, or by pulling the child, after she had shown reluctance, towards him, that would undoubtedly be assault, and if it was accompanied by an act of indecency, it would be an indecent assault."

62. Unsurprisingly, there was found to be a need for reform, although the pace of change appears to have been somewhat slower than it is today, leading to the insertion of s 76A of the Crimes Act in the terms set out above approximately 20 years after these cases were handed down. That provision was in markedly similar terms to s 1(1) of the Indecency with Children Act 1960 (UK) which provided:

1   Indecent conduct towards young child.

(63)    Any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years, or on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding one hundred pounds, or to both.

63. As can be seen, s 76A of the Crimes Act differed from the United Kingdom provision only in the omission of the word “gross” and the specification of any girl under the age of 16 years rather than a child under the age of 14. The gender limitation in s 76A of the Act was presumably based on the presence of s 81A which was introduced in 1955 and provided:

Whosoever, being a male person, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of indecency with another male person shall be liable to imprisonment for two years.

64. As discussed in Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 that section was inserted to deal with “the problem of homosexuality” (at least as it was perceived at the time). For present purposes it might be noted that, while in similar terms to the subsequent s 76A, s 81A dealt with acts of indecency “with” rather than “with or towards” another. Section 81A remained in force until its repeal in 1984 as part of the legislation decriminalising homosexuality. By this time s 76A had been replaced. That occurred in 1981, when it was replaced by s 61E(2) which was in essentially the same terms except that its application was independent of gender. In 1984 there remained, however, a discrepancy in the age of consent as between genders. As part of the legislation decriminalising homosexuality, s 78Q was introduced which created the offence of committing an act of gross indecency “with” a male under 18. As explained in Crampton v The Queen, this offence remained in its original form until 1992 when it was amended to add the words “or towards” after the word “with”. This was done to remove the inconsistency with s 61E(2) of the Act.

65. As a result of the Crimes (Amendment) Act 1989 (NSW), s 61E(2) subsequently became s 61N which was otherwise in precisely the same terms. Section 61N was later amended by the Criminal Legislation (Amendment) Act 1992 (NSW) to read:

“Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.”

(The words inserted by the amendment are underlined.)

66. Section 61N remained in force until its repeal by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) which introduced various provisions including s 66DC. This history is relevant to the first question to be resolved – does s 66DC(a) create one offence or two?

One offence or two?

67. Before considering the question of the meaning of “towards” posed in the appeal, it is necessary to consider whether, as the appellant contends (without dispute by the respondent), the provision creates two separate offences of committing such an act “with” or “towards” a child. The indictment, it might be noted, is drafted on the assumption that it is sufficient to allege an act “towards” a child. However, simply reading the provision, it is not immediately apparent that there is not a single offence of carrying out a sexual act “with or towards” a child.

68. In the context of s 1(1) of the Indecency with Children Act, set out above, in Director of Public Prosecutions v Burgess [1971] QB 432, Lord Parker CJ said (at 436D-F):

“In my judgment there are not two offences of gross indecency in section 1(1) of the Indecency with Children Act, 1960, but one, namely, the committing of an act of gross indecency involving a child, that is to say, one reads “with or towards a child” as a phrase “with or towards”; that as it seems to me is the natural meaning because it is impossible in any particular case to say quite definitely: this is a case of gross indecency with, and not a case of gross indecency towards or vice versa. Indeed the case to which this court has been referred of Reg. v. Hall [1964] 1 Q.B. 273, though dealing with a very different situation, really supports this view because it was there held that the word “with” in this connection does not mean “with the consent of,” but has a looser meaning of “against or directed towards.” In other words, as it seems to me, the words “or towards” may be said to be explaining the word “with.” That this is the true view is, I think, put beyond all doubt by section 1(1) itself, because when one gets to the alternative offence of incitement, the incitement is “who incites a child under that age to such an act with him.” If “towards him” was a separate offence, one would expect in the case of incitement to have the incitement operating not only in the case of an act with, but in the case of an act towards. As it seems to me, there is only one offence of gross indecency “with or towards a child,” in other words, involving a child.”

69. The above passage was subsequently followed in R v Francis (1989) 88 Cr App R 127. This position did not, however prevail, at least in this State. In Crampton v The Queen, Gaudron, Gummow and Callinan JJ said, of s 81A of the Crimes Act, which as noted above, referred only to conduct “with” and not “with or towards” another (at [59]-[62]):

“59   In R v Jones the Bench, without explicit reference, seems to have accepted that the equivalent provision in the United Kingdom required a participatory consensual act or acts by a person other than the accused. In R v Hornby and Peaple the Court of Criminal Appeal held that it was essential that the members of the jury be directed to the requirement that the two men charged there had been “acting in concert”.

60    But in the English case R v Hall a different view was taken. It was held that, in context, “with” included “against” or “directed towards”. A similar conclusion was reached in Burgess in respect of the English Indecency with Children Act 1960 (UK) which relevantly provided for an offence of gross indecency with or towards a child.

61    This view of the meaning of “with” as being capable of including “towards” did not prevail. In R v Preece Scarman LJ in delivering the judgment of the Court said:

“To construe the section so that the complete offence could be committed even though the other man did not consent could lead to the embarrassment of, and injustice to, innocent men. For example, two men happen to be close to each other in a public lavatory: one, the defendant, masturbates in the presence of the other, intending that the other should watch him since it is this that gives him sexual satisfaction: the other, who is not charged, sees him and is disgusted. The act of indecency was ‘directed towards’ him: upon Lord Parker CJ's construction of the section, the first man will be properly charged with committing an act of gross indecency with the other, who will be named in the indictment, though not charged, and is innocent of any indecency.

The embarrassment and distress that this could cause perfectly respectable men is such that we would not so construe the section unless it was incapable of any other construction.”

62    Two relatively recent decisions in New South Wales are to a similar effect. In R v Page the Court of Criminal Appeal adopted the approach of Scarman LJ in Preece but as a concession was made on that matter by the Crown there the question was not fully argued. The distinction between the words “with” and “towards” in s 61N of the Crimes Act was held, however, to be a real one by a majority (Priestley JA and Grove J, Hulme J dissenting) of the Court of Criminal Appeal in Orsos.” (footnotes omitted)

70. In Crampton v The Queen the applicant had been convicted of an offence against s 81A of the Crimes Act on the basis that he masturbated in the presence of a child in circumstances that would have established an act of indecency towards that child (or in terms of the current provision, a sexual act towards the child). The complainant in that case gave evidence that the applicant, his then teacher, called him into a storeroom, closed the door, and then masturbated in his presence. He said the applicant ejaculated on the floor and then provided the complainant with a handkerchief and directed him to clean it up:  see at [25] (Gaudron, Gummow and Callinan JJ) and at [81]-[82] (Kirby J). On the basis of the discussion set out above, their Honours found the act was not “with” the child, explaining (at [63]) that the act “was not conduct of the kind to which the charge could be directed, as explained in the English and New South Wales authorities to which we have referred and are content to adopt”:  see also at [3]-[4] (Gleeson CJ); at [97] (Kirby J) and at [165] (Hayne J).

71. The decision in Orsos, referred to at [62] of Cramptonv The Queen, as set out above, involved a stated case in which this Court was asked to determine if an indictment alleging an offence against s 61N(1) “with or towards” another was duplicitous. By majority (Priestley JA and Grove J, RS Hulme J dissenting) it was held that it was not.

72. In Orsos, Priestley JA observed that the question was “relatively evenly balanced” but preferred the reasons of Grove J over those of RS Hulme J who would have found that s 61N created a single offence of an act of indecency “with or towards” the other person. Section 66DC is not identical to s 61N (or its predecessors). It does, however, maintain the use of the words “or towards” after each of the uses of the word “with”. This, as Grove J pointed out in Orsos (at 459) fulfils the expectation of Lord Parker CJ in Director of Public Prosecutions v Burgess that “[i]f 'towards him' was a separate offence one would expect in the case of incitement to have the incitement operating not only in the case of an act with, but in the case of an act towards”. (As set out in the history above, Lord Parker CJ’s expectation was met as a result of the amendment made to s 61N in 1992.)

70. The reasoning of the majority in Orsos was discussed and affirmed in R v Chonka [2000] NSWCCA 466. As to the difference between the two terms “with” and “towards”, in R v Page (Court of Criminal Appeal (NSW), 25 November 1991, unrep) this Court referred to Regina v Preece (1977) 1 QB 370 in which the Court of Appeal resolved a conflict in earlier authorities, and held that the word "with" involved the participation of two people and that for the act of indecency merely to be directed "against" or "towards" a non-participating person was not sufficient for it to be said that it was committed "with" him. See also R v Chonka at [46]; Orsos at 460.

71. In introducing the amending Act which inserted s 66DC (Second Reading Speech, New South Wales Legislative Assembly, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018), the Attorney-General explained:

"Currently offences against adults and children are mixed together within this division and there is no clear delineation between the two. In 2014 the Joint Select Committee on Sentencing Child Sexual Assault Offenders recommended that child sexual offences in New South Wales should be reviewed to consolidate and simplify the legislative framework and to address any gaps. Many of the amendments in schedules 1 [2] to [48] to the bill are directed towards this goal, based on the work of the child sexual offences review. The amendments will separate the provisions in division 10 into clear subdivisions with headings that describe the subject matter. Subdivision 1 will set out the definitions applying across the division. Offences against adults will be grouped into subdivisions 2 to 4. Offences against children, which are those offences where consent is no defence, are collected in subdivisions 5 to 11. Subdivisions 12 to 14 provide for other sexual offences such as incest and bestiality, and subdivision 15 groups miscellaneous procedural and technical provisions together.

Importantly, these amendments will also address the fact that some offences use the outdated terminology of "indecency". For the purposes of offences against both adults and children, the conduct currently covered by the offences of indecent assault and acts of indecency will be covered by the offences of sexual touching and sexual act. This more modern and more easily understood terminology is defined in new subdivision 1 in a way that reflects the core of the common law meaning of indecency. Sexual touching will cover contact offences that involve some form of physical contact with the victim. Sexual acts will cover non-contact offences that involve sexual conduct other than touching the victim, including forcing or inciting a victim to touch themselves.”

75. It is, in any event, apparent without recourse to the second reading speech, that s 66DC forms part of what is largely a consolidation of the various pre-existing offences. However, while ostensibly a consolidation it should be noted that the amendments introduced the offence of sexual touching, removing the pre-existing element of an “assault” in what were the old “indecent assault” offences. Thus, the facts in Fairclough v Whipp and Director of Public Prosecutions v Rogers would now be covered by the incitement to sexually touch offences in s 66DA(b) or s 66DB(b) (depending on the age of the child). Indeed, the facts of those cases would not be covered by s 66DC given that the definition of “sexual act” in s 61HC specifically excludes an act of “sexual touching” as defined in s 61HB. Further, given that a sexual act (defined in s 61HC) is exclusive of sexual touching (defined in s 61HB) it is not obvious what room exists for a “sexual act” offence “with” an adult against s 61KE or s 61KF. Such an offence would require an act involving the participation of the accused and another (in an activity not involving touching) where that other was not consenting (noting the definition of “consent” in s 61HE). This difference provides some warrant for reconsidering whether the provision creates one or two offences.

76. Absent the history of the provision, and the context provided by the earlier decisions of this Court, the English decisions and the High Court’s decision in Crampton v The Queen, there is a strong argument that the expression “with or towards” as used in s 66DC of the Act creates a single offence. However, nothing in the introduction of s 66DC suggests any intention that the words “with or towards” should take on any different meaning to that which they had previously been given. Having regard to the relatively long history of those words there is a strong presumption that Parliament did not intend to change their meaning: see Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employee (1994) 181 CLR 96 at 106; [1994] HCA 34 and the authorities cited therein; Yorke v Lucas (1985) 158 CLR 661 at 668; [1985] HCA 65; cf Goldsbrough, Mort & Company Ltd v Larcombe (1907) 5 CLR 263; [1907] HCA 58. See also the discussion in Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 per Leeming JA at [158]-[178], noting that the level of scrutiny that had been given to the provision in issue in that case (s 293 of the Criminal Procedure Act 1986 (NSW), which has since been renumbered as s 294CB, and its predecessor, s 409B of the Crimes Act) was well beyond the attention that has been given to the present offence or its predecessors.

77. Additionally, in the present case, no argument was directed to the issue. And, as noted above, the indictment alleges a sexual act “towards” the complainant. There was no argument as to the consequence for the appeal of a finding that the indictment does not articulate an offence. In these circumstances, I am of the view that the case should be decided on the basis of the way in which it was argued – namely, that the offence is one of committing a sexual act “towards” the complainant.

78. Given the above, the section remains, essentially, directed to the same purpose as was the offence of act of indecency created by s 76A of the Crimes Act. That is, it is intended to cover sexual conduct falling short of what is now the (broader) offence of sexual touching, committed either “with” or “towards” another. That conclusion does little, however, to elucidate the conduct to which the offence extends.

Offences involving “in the presence of”

79. The respondent submitted that some assistance as to the proper construction of s 66DC(a) of the Crimes Act can be obtained by contrasting the present offence with the alternative formulation of an offence prohibiting the commission of “any act of gross indecency, with or in the presence of, any person under the age of sixteen years”. This was the offence, contrary to s 58(1) of the Criminal Law Consolidation Act 1935 (SA) with which the South Australian Court of Appeal was concerned in R v AWL (2003) 231 LSJS 239; [2003] SASC 416. Debelle J, with whom the other members of the Court agreed found that it was not necessary that the child be aware of the act.

80. The respondent submitted that Parliament deliberately chose not to use an expression such as “in the presence of” suggesting an intention that s 66DC(a) of the Crimes Act would have a narrower scope. While the construction of the South Australian provision in R v AWL arguably gave that section a broader operation than that given by the primary judge to s 66DC(a), as noted by Basten AJA at [11] it is not self-evident that one form of words is necessarily broader than the other. Certainly, for the purposes of the aggravating factor on sentence of an offence being committed “in the presence of a child” provided by s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW), it has been held that the aggravating circumstance is not established where the child’s presence was not a “knowing presence”: see Arvinthan v R [2022] NSWCCA 44 at [3]. While s 21A(2)(ea) is of course concerned with sentencing, both it, and offences like s 66DC(a) are concerned with the protection of children. Ultimately, the construction of a differently worded provision in a different jurisdiction is of little assistance.

Case law concerning sexual acts done “towards” another

81. Little direct assistance as to the present question is provided by the decided cases.

82. In R v Barrass [2005] NSWCCA 131 it was contended that indecent conduct “towards” a person, within the meaning of s 61O(2) of the Crimes Act, as it then was, had to be conduct perpetrated in the immediate presence of the victim, such that there was a prospect of physical contact between them. (Section 61O provided for aggravated forms of the offences in s 61N, discussed above, based on the age of the victim.) The circumstances in which the offence arose were that the alleged offender, while in a vehicle manipulated his exposed penis in view of two young girls traveling on a bus. The appellant could see and be seen by the complainants and he intended that he be seen by the complainants. Having reviewed the history of the offence and various authorities dealing with acts of indecency, Hidden J (with whom Dunford and Simpson JJ agreed) found that the facts as stated were sufficient to establish the offence. His Honour explicitly found that the immediate physical presence of the complainant was not required to make out the offence.

83. In Regina v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 the Court (Ireland, Dunford and Bruce JJ) in obiter dicta considered the situation of a husband and wife alleged to have engaged in consensual sexual intercourse in the presence of a young person who they encouraged to watch. Their Honours said (at [62]), “consensual sexual intercourse between husband and wife is not of itself in any way indecent and so, because it is not indecent, if it takes place in the presence of a young person, the intercourse of itself is not an act of indecency in the presence of the young person”. Their Honours then observed that the act became indecent when committed in front of a young person coupled with an invitation and encouragement to the young person to watch. The current terminology of “sexual act”, it might be noted, avoids any issue in this regard. Their Honours then referred to R v Francis noting that it was there found that “a man who masturbated in the presence of children, knowing they were watching and deriving added stimulation from the fact that they were watching could be said to be committing an act of gross indecency towards them, contrary to s 1(1) of the Indecency With Children Act 1990 [sic] (UK)”. Their Honours then observed that “similar considerations apply when a couple (even a married couple) engage in sexual intercourse not only in the presence of a young person but when they also invite and encourage the young person to watch”.

84. In Director of Public Prosecutions v Eades [2009] NSWSC 1352 the respondent was charged with inciting an act of indecency towards himself as a result of him having encouraged, by text message, a young girl to send him a photograph of herself naked. James J (at [56]), drawing on what was said by Smart AJ in R v Chonka, concluded that it was open to the magistrate to find the child’s act was “towards” the respondent. His Honour noted that “modern electronic methods of communication should be taken into account and not disregarded”.

85. Of the cases raised on the appeal, the closest appears to be the English decision of R v Francis. The Court of Appeal there accepted that the offence of committing an act of indecency towards a child contrary to s 1(1) of the Indecency with Children Act (set out above) was established where a man masturbated in the presence of two 13 year old boys in the changing room at a swimming pool, provided that he was aware that the boys could see him and he derived sexual satisfaction from that fact. Conversely, Lord Lane CJ observed that if a man masturbating in the presence of children does so believing they are not aware of what he is doing, there is “no question of his acting towards the children” and that, in this situation “he does not involve the children”. The appellant submitted that, as these observations were made having interpreted the expression “with or towards” as a unitary concept, they were of limited relevance to the present case.

Conclusion as to the meaning of “towards”

86. As the discussion above seeks to make clear, neither the legislative history nor the available case law is of direct assistance to the determination of the meaning of “towards” and its application to the facts of this case. It is, inevitably, necessary to return to the words of the section. That does not, however, mean giving up on contextual analysis and returning to the dictionary. As Spigelman CJ said in Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales (2009) 78 NSWLR 43; [2009] NSWCA 83 at [88], “Judges no longer approach a statute with scissors in one hand and a dictionary in the other”. That observation is apposite in the present context as demonstrated by the examples given earlier in these reasons as to the effect of an overly literal construction of the provision.

87. It is necessary to return to the provision having regard to its context in the broadest sense. While some criminal laws are directed to protecting the individual to whom they are directed (such as, for example, laws prohibiting the possession and use of particular drugs) the majority of laws are directed to regulating relationships between people, commonly for the purpose of protecting others. Section 66DC(a) of the Crimes Act is in the latter category. Its text and its history dictate this conclusion. It does not seek to regulate the private acts of individuals. Further, while the words “with or towards” are to be regarded as creating separate offences, the use of “towards” as an alternative to “with” informs, and to a degree constrains, the meaning of “towards”. While “towards” extends the range of conduct covered by the provision, it does not do so in an unrestrained fashion.

88. Having regard to the above, while the boundaries of the offence may not be capable of precise definition, some general propositions are clear. Committing a sexual act while thinking of another is not, of itself, a sexual act towards that other. Using a picture or image, rather than a mental image, of that other does not change this.

89. While statutory construction does not involve “judicially legislating” by determining what activities should be within a provision and what should not, the foregoing are examples of conduct which, having regard to the history and purpose of the provision, Parliament could not have intended would be covered by the provision: see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxationof the Commonwealth of Australia (1981) 147 CLR 297 at 320-321; [1981] HCA 26. Further extrapolating from the above examples and considering what unites or distinguishes the various scenarios is constructive. Thus, continuing with the examples of a sexual act with another in mind, in my view, the situation is the same where the other person is simply present, either physically or electronically, but no more. Thus, a person masturbating while watching a live television broadcast would not be committing an act of indecency “towards” the commentator despite the commentator having an electronic “presence” with respect to the act. Similarly, a person looking out a window and finding inspiration, but whose activities are deliberately hidden from the source of stimulation beyond, would not, to my mind, be committing an act of indecency “towards” another. With respect to the reasons of Basten AJA, I do not think that it is enough that a person is looking at another, even if he or she is physically proximate to that other.

90. The operation of the need for a concept beyond mere proximity is also illustrated by the example of a person masturbating in a room where the object of the person’s thoughts is in the next room. As suggested earlier in these reasons a sexual act in another room would not be an act “towards” the other person. But this brings to the fore questions of degree. What is the difference if the person is not in a different room but in the same room but on the other side of a room divider? Does this then raise the further question of the solidity of the divider? I do not think the question can be answered by the thickness of the wall, the divider, or any question of proximity based on the individual’s distance from the physical barrier.

91. The various examples discussed above of conduct that I would not regard as “towards” another, have, as a unifying theme, an absence of any intention to engage the other person in the sexual act, albeit that the sexual act, in some sense is “directed to” that other. On the other hand, a person on a Skype call masturbating in view of another participant, intending to be seen doing so, would almost certainly be committing a sexual act towards that other despite the physical distance between the two people. In such a case the inference that is likely to be drawn is that the act is directed towards that other participant based on an intention to engage that other participant. But if the person on the Skype call is masturbating, unseen by others, and not intending to be seen by others, unseemly as this may be, I would not regard the act as one committed “towards” those others.

92. Similarly in the case of the person behind the room divider. In my view the question is not determined by proximity, or the nature of the room divider (though these matters may be relevant to the proper inferences to be drawn). Rather, in my view, what is required is an intention to engage, at some level, the other person.

93. On this basis the case of the exhibitionist or flasher, who seeks sexual gratification, by exposing (most commonly) himself to another in a manner amounting to a sexual act, can also be regarded as committing the act towards that other. As with the examples above the act is directed towards the other. As the primary judge pointed out, in this example, an absence of awareness on the part of the intended victim does not mean the act was not directed to, and thus “towards” that person.

94. A more difficult example, and closer to the present case, is the case of a person masturbating in very close proximity to the person of another. If the other person is quite unaware, for example because he or she is asleep, is the act committed “towards” that other? The ordinary meaning of “towards” suggests they may be. But again, in my view, this is not because of the proximity per se. Rather, where the person is sufficiently proximate such that the inference to be drawn is that he or she intends to gain sexual pleasure from the exposure to the “person” of the complainant, it may be inferred that there is an intention to engage with the complainant even if there is no intention that the complainant be aware of the act. Where the prospect of discovery is the source of sexual pleasure the inference of an intention to, in some way, engage the other person in the act may be stronger. Either way, the evidence may support an inference of an intention to engage in a physical rather than mental way with the body or “person” of the other such that the act can be described as committed “towards” the other (despite the absence of any physical contact or any awareness on the part of the victim). Thus, for example, a person who stands over another and masturbates is likely to be regarded as committing the act “towards” that other based on the inference of an intentional engaging with the body of the other person (even if the victim is unaware of the act). I note that while I have here used the expressions “engage with”, and “engaging with”, “with” in this context is not used in the same way as it is used in the provision, as discussed in Crampton v The Queen, above at [69].

95. While, as discussed above, the dictionary is of limited utility, it might be noted that an alternative definition of “towards” is that referred to by James J in Eades at [54] taken from the Oxford English Dictionary, namely: “to (with implication of reaching)”. Such a meaning comes closer to the concept which, in my view, the provision is getting at. If understood as “to, with the implication of reaching” in a physical or mental sense, it captures the idea of an act that in some way engages with the complainant. The state of mind of the person committing the act, and his or her intention are of central importance. The word “towards” requires that there be something active in this state of mind as regards the other person.

86. The above conclusion has some similarity with the conclusion drawn in R v Francis. In the context of the present section, I would not, however, go so far as to say that awareness on the part of the complainant is necessary.

Application of the above to the present case

97. As noted above, the appeal is brought as of right. The error alleged is that his Honour erred in finding that the offence on the indictment “could not be made out at law”. On its face that requires this Court to consider the evidence tendered at first instance and to determine, based on that evidence, whether the offence was capable of being established. The process on appeal, however, remains adversarial. It is necessary to have regard to the manner in which the appeal was argued and where issue was joined.

98. The determination of facts was a matter for the (prospective) jury. Nonetheless it is, of course, common (and often necessary) for matters to be determined on the basis of the facts capable of being established, taking the prosecution evidence at its most favourable. An application for a directed verdict at the close of the Crown case will be decided on this basis. Here, the primary judge, arguably, went beyond a consideration of the facts capable of being found, and found facts himself. In particular, the primary judge appears to have based his decision on a conclusion that the act was performed by the respondent with the intention of hiding it from the child.

99. In this regard his Honour said:

“One accepted dictionary meaning of "towards" is "in the direction of”. Related to this particular offence pursuant to s 66DC that would seem to justify reading the section as saying "... did intentionally masturbate in the direction of a child under ten years of age." This connotes a meaning of intentionally aiming the sexual act of masturbation at the child not simply thinking about the child in a sexual way and then hiding the sexual act from the child or doing it in circumstances where the child is unaware of the sexual act. Aiming a sexual act at a child seems to involve a different intention than that of hiding the sexual act from the awareness of the child. This meaning sits comfortably with the "flasher" or "exhibitionist" offences but far from comfortably with lack of awareness or that the act is actually aimed at, directed to or towards the child. The offence alleged requires the Crown to prove that the accused intentionally carried out a sexual act towards, that is that he intentionally or deliberately directed the sexual act towards the child.” (emphasis added)

100. Subsequently, having discussed a number of the decided cases, his Honour noted that there was no evidence of what the accused was thinking at the time (an observation that might have been better stated as “no direct evidence of what the accused was thinking at the time”). His Honour then said:

“But even if the evidence established that he was thinking of the child the act was hidden from the child and there is no basis for a conclusion that the act itself was directed at or was done intentionally towards the child.”

101. The above would have been better expressed on the basis that the evidence was capable of establishing the respondent was thinking of the child, which, clearly, it was. It was also not for his Honour to find the act was hidden from the child (although, again, it is perhaps a fine distinction between such a finding and a conclusion that it would not be open to a jury to find that he was not hiding his act). However, the appellant’s written submissions in this appeal took no issue with the facts found by his Honour. In response, the respondent’s counsel, in the second paragraph of their written submissions said:

“The respondent submits that his Honour’s factual findings (which are not challenged) explain the exercise of discretion. His Honour determined the matter on the basis that the respondent was hiding his sexual act from the child.”

102. The submission went on to refer to the evidence supporting the finding. No issue was taken by the appellant with the respondent’s assertion that he was hiding the act, or with the factual basis for it. At the hearing of the appeal, in response to a direct question from the bench the appellant affirmed that no issue was taken as to the facts. That ended any potential debate as to the facts.

103. Having regard to the above, there is no question on this appeal of any error in the Judge’s findings of fact. There was, in the result, no suggestion that the evidence was capable of rebutting the proposition that the respondent was hiding his act from the child. In this regard the evidence pointed to by the respondent’s counsel on the appeal was that the respondent had his back towards the child and the child was in turn facing away from him; further, that he had not lowered his shorts and was consequently in a position to re-dress quickly if the child moved. While the child’s lack of awareness alone did not form the basis of the Judge’s conclusion that the evidence could not establish the offence, that lack of awareness along with the physical positions of the parties and the directions they were facing supported his Honour’s conclusion that the respondent was hiding his act from the child and the act was not, therefore, an act done “towards” the child.

104. Additionally, the manner in which the respondent was hiding his act (that is by turning his own body away from that of the child, who was in turn facing away from the respondent) does not support an inference of an intention that the sexual act be “towards” the complainant through physical engagement. That is, it does not support an inference of any intention to, as expressed above, engage with the complainant’s “person”.

105. Rather than taking issue with the facts found, or apparently found, the appellant was content to argue the matter, essentially on the bases that his Honour erred in finding that it was necessary for the complainant to be aware of the act and that his Honour erred in finding that the mere presence of the child was not sufficient to make out the offence. As to the former, as discussed above, his Honour did not make this finding. As to the latter, as discussed above, in my view his Honour did not err in this regard.

106. I am of the view the appeal should be dismissed.

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Endnotes

Amendments

03 March 2023 - [41], [70], [75] - minor amendments

03 March 2023 - citations on coversheet corrected

07 March 2023 - [25] - minor amendment

Decision last updated: 07 March 2023