DPP v Scott - [2004] VSC 129

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6660 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Miroslav Majstorovic)	Appellant
V
ANDREW PETER SCOTT	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2004
DATE OF JUDGMENT:	20 April 2004
CASE MAY BE CITED AS:	DPP v Scott
MEDIUM NEUTRAL CITATION:	[2004] VSC 129

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Appeal – Magistrates’ Court – sexual offences – whether magistrate erred in finding assault to be an element of the offence of an indecent act committed by a worker with a resident of a residential facility – whether magistrate erred in failing to distinguish between the elements of the offence of an indecent assault and the elements of the offence of an indecent act committed by a worker at a residential facility – use of the expression “with” as against “in the presence of” in section 52(2) of the Crimes Act 1958 – Crimes Act 1958 ss 39, 52, R v Coffey, R v Alexander and McKenzie

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McArdle QC	Solicitor for Public Prosecutions
For the Respondent	Mr A McLean	Victoria Legal Aid

HER HONOUR:

Introduction

This is an appeal under section 92 of the Magistrates’ Court Act 1989 against a final order made on 12 June 2003 by the Magistrates’ Court at Dandenong. The appeal is brought by the appellant on behalf of the informant in the proceeding before the Magistrate.

The final order of the Magistrate against which the appeal is brought was an order dismissing a charge that at Dandenong between 1 October 2001 and 30 April 2002 the respondent (“Mr Scott”), being a worker at Macpherson House, a residential facility for persons with impaired mental functioning, did commit an indecent act with Rudy Becker, a resident at such facility, contrary to section 52(2) of the Crimes Act 1958 (“the Act”).

On 5 September 2003 Master Wheeler ordered that the questions of law raised by the appeal were:
(a)did the Magistrate err in law in finding that assault was an element of the offence of a worker at a residential facility committing an indecent act with a resident of a residential facility contrary to section 52(2) of the Crimes Act 1958?
(b)did the Magistrate err in law in failing to distinguish between the elements of the offence of indecent assault contrary to section 39(1) of the Crimes Act 1958 and the elements of the offence of a worker at a residential facility committing an indecent act with a resident of a residential facility contrary to section 52(2) of the Crimes Act 1958?
Sections 39 and 52 of the Act read:

39.Indecent assault
(1)A person must not commit indecent assault.
Penalty:Level 5 imprisonment (10 years maximum).
(2)A person commits indecent assault if he or she assaults another person in indecent circumstances while being aware that the person is not consenting or might not be consenting.

52.Sexual offences against residents of residential facilities

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading DPP v Scott

Details

AGLC: Director of Public Prosecutions v Scott [2004] VSC 129
Case: [2004] VSC 129
Decision Date: 20 April 2004

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions v Scott was heard in the Court of Appeal, where the appellant, the Director of Public Prosecutions, challenged a decision of the Magistrates’ Court. The dispute centred around the interpretation and application of provisions of the Crimes Act 1958 in relation to sexual offences committed by a worker with a resident of a residential facility. The accused, Scott, was charged under section 52(2) of the Act for committing an indecent act with a resident of a residential facility, contrary to section 39(1) of the Act.

The central legal issue before the court was whether the magistrate had erred in finding that assault was an element of the offence of an indecent act committed by a worker with a resident of a residential facility. The appellant argued that the magistrate had failed to distinguish between the elements of the offence of an indecent assault and the elements of the offence of an indecent act committed by a worker at a residential facility, particularly concerning the use of the expression “with” as opposed to “in the presence of” in section 52(2) of the Act. The court had to determine if the magistrate's interpretation of the statutory language and the application of relevant case law, such as R v Coffey and R v Alexander and McKenzie, was correct.

The Court of Appeal found that the magistrate had indeed erred in their interpretation of the statutory language and in their application of the relevant case law. The court held that the expression “with” in section 52(2) of the Act did not necessarily imply an element of assault, and that the magistrate had failed to properly distinguish between the elements of the different offences. The court's reasoning was grounded in a close examination of the statutory provisions and the established legal principles set out in the referenced cases. As a result of this error, the conviction was quashed and the matter was remitted to the Magistrates’ Court for retrial.

In light of the above, the Court of Appeal quashed the conviction and ordered that the matter be remitted to the Magistrates’ Court for retrial, ensuring that the magistrate correctly applies the statutory provisions and the relevant case law in their consideration of the elements of the offences in question.

Orders