DPP v Scott
[2004] VSC 129
•20 April 2004
| 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
(1)A worker at a residential facility must not take part in an act of sexual penetration with a resident of the facility who is not his or her spouse or de facto spouse.
Penalty:Level 5 imprisonment (10 years maximum)
(2)A worker at a residential facility must not commit, or be in any way a party to the commission of, an indecent act with a resident of the facility who is not his or her spouse or de facto spouse.
Penalty:Level 6 imprisonment (5 years maximum)
(3)Consent is not a defence to a charge under this section unless at the time of the alleged offence the accused believed on reasonable grounds that he or she was the spouse or de facto spouse of the resident.
Section 50 provides that in subdivision 8D (comprising sections 50 to 52):
“Indecent act” does not include an act done in the course of an appropriate and generally accepted medical, therapeutic or hygienic procedure.
Evidence was given before the Magistrate by Mr Becker and by another resident, Miss Kwasek, as well as by the proprietor of the facility. It is not in issue that, within the meaning of the definitions in section 50, at the relevant time the respondent was a worker at a residential facility, Mr Becker and Miss Kwasek were residents of the facility and both were intellectually disabled.
In respect of each of two separate incidents said to have occurred at the facility the respondent was charged with one count of indecent assault contrary to section 39(1) of the Act, and one count of committing an indecent act with a resident contrary to section 52(2), making four charges in all. The details of the first incident are not relevant to this appeal, which relates only to the charge under section 52(2) arising out of the second incident.
At the outset of her judgment the Magistrate stated that Mr Scott was “charged with four offences, two offences pursuant to section 39 of the Crimes Act - indecent assault - and two offences pursuant to section 52 - sexual offence against resident in a residential facility.” She set out certain concessions made by the defence referring expressly to the section 52 offences.
She then considered the evidence relating to the first incident, and continued:
The second incident was in Miss Kwasek’s bedroom approximately two or three weeks after [the first incident]. The defendant asked Mr Becker and Miss Kwasek to go into her room. The defendant then shut the door, did not lock it and told Mr Becker to take his clothes off in front of Miss Kwasek. Mr Becker did so and then the defendant left the room. And before shutting the door, he said, “You can do anything you want right now”.
The defendant had told Mr Becker not to tell anyone about going into Miss Kwasek’s room. Mr Becker removed his clothes because he feared that the defendant would punch him, because he had punched him in the past. I’ve heard the accounts of all the witnesses and referred to the record of interview. I have also been provided with a decision of the court.
In any criminal matter the prosecution must prove its case beyond reasonable doubt. In this case the prosecution must prove that not only did the accused intentionally assault the victim, but that in so doing he intended to commit an assault which a right-minded person would think was indecent.
The Magistrate then considered the first incident and found that she was not satisfied beyond reasonable doubt that the accused had intended to commit the act relied on as constituting the two offences. Although she did not say so, it followed implicitly from that finding that in the absence of the necessary intent both charges relating to the first incident would be, as they subsequently were, dismissed. She continued:
In relation to the second incident in the bedroom, before a court can find an accused guilty of an indecent assault, the court must be satisfied there was an assault. An indecent assault is an assault accompanied by indecency.
However, I am not satisfied that on the occasion in the bedroom that Mr Becker is possibly fearful and felt threatened. Therefore, I cannot be satisfied that there has been an assault and therefore, cannot be satisfied of an indecent assault. During the course of Miss Kwasek’s cross-examination, the court was concerned about the suggestibility of the witness. The prosecutor, in closing, quite rightly submitted that the evidence of the two principal witnesses were substantially the same and only differed in relation to three or four matters. I accept the submission. I’m also of the view that the witnesses, Mr Becker and Miss Kwasek, were witnesses of truth and that, indeed, incidents did occur that caused them concern.
I’m further of the view that Mr Scott has, on more than one occasion, acted inappropriately, but that is not enough to find that he is guilty of an indecent assault. I find that residents, such as Mr Becker and Miss Kwasek are entitled to professional carers and that it is – it is an entirely unacceptable situation such accommodation exists in Victoria where people – where people with special needs, such as Mr Becker and Miss Kwasek, are not receiving the professional care from carers such as Mr Scott, without any qualifications of any real value, can be attending to such residents’ day to day needs. I find the charges dismissed.
Those are the only passages in the judgment relating to the second incident.
Question (a)
This question assumes that the Magistrate found that assault was an element of the offence under section 52(2). She did find that she was not satisfied that there had been an assault during the second incident, and then dismissed all four charges, that is, the two charges under section 39(1) and the two charges under section 52(2), without specific reference to either of the section 52(2) charges. It could be inferred from that process that she considered that assault was an element of a charge under section 52(2) and accordingly that it went without saying that absent a finding of assault the section 52(2) charges must be dismissed.
The other possibility, as Mr McArdle, for the appellant, suggested, is that, although the Magistrate referred to the section 52(2) charges at the commencement of her judgment, those charges were not present to her mind when she came to make the final orders, and when she said, “I find the charges dismissed” she was intending to refer only to the charges of indecent assault. If that were the case, it would not be possible to conclude that she found that assault was an element of the offence under section 52(2).
On my reading of the judgment, I find the latter explanation to be more likely than the former. That being so, I find that question (a) is based upon a false premise and it is not necessary to answer it.
Question (b)
The effect of the Magistrate’s judgment is that all four offences were dismissed on the same ground, that is, the absence of assault. That being so, it can be said that in effect she failed to distinguish between the elements of the offence under section 39(1) and the elements of the offence under section 52(2). The question can thus be shortly answered Yes. However the matter was argued on both sides as though the question was whether the Magistrate erred in law in failing to identify correctly the elements of the offence under section 52(2).
On other occasions Judges of this Court have expressed the view and acted upon the principle that in that situation a Judge is not authorised to amend an order made by the Master; but that Rule 58.13 of the Supreme Court (General Civil Procedure) Rules 1996 empowers the Court in the words of Mandie J in DPP v Hinch [1]:
to direct, in an appropriate case, that the appeal be decided upon the questions of law identified and canvassed in the arguments advanced, where this is necessary to achieve the effective, complete and economic determination of the appeal and is otherwise just and convenient.
See also, Buckman v Barnawatha Abattoirs [2], and Popovski v Ericsson Australia Pty Ltd[3]. I find this to be an appropriate case for such a direction, and on the basis of those authorities, I direct that the appeal be decided on the questions of law identified and canvassed in the arguments advanced.
[1]Unreported, decided on 5 August 1994
[2]Unreported decision of Smith J, decided on 14 July 1994
[3][1998] VSC 61 (Ashley J)
It should be noted that the maximum penalty for indecent assault under section 39(1) is 10 years imprisonment and the maximum penalty for an offence under section 52(2) is 5 years imprisonment. Clearly the former offence is perceived as considerably more serious than the latter.
The expression “indecent act” was defined in R v Manson and Stamenkovic [4], where the New South Wales Court of Criminal Appeal was concerned with an appeal against convictions for committing an act of indecency with a person under the age of sixteen years. Gleeson CJ, with whom the other members of the court agreed, said, after referring to authority:
An indecent act is one which right-minded persons would consider to be contrary to community standards of decency.
[4]unreported, decided on 17 February 1993, at 2
Section 52 was introduced into the Act by the Crimes (Sexual Offences) Act 1991 (“the 1991 Act”), which also introduced or substituted a number of new provisions relating to sexual offences. The section was amended by section 119(3) of the Sentencing Act 1991 and section 60(1) of the Sentencing and Other Acts (Amendment) Act 1997. The expression “indecent act” also appears in sections 47 and 49, both concerned with offences against children and having the same legislative history as section 52(2) in that both were introduced by the 1991 Act and both were amended by the same two provisions as section 52(2). The essential parts of those sections for present purposes read as follows, with emphasis added:
47.Indecent act with child under the age of 16
(1)A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 . . .
Penalty: Level 5 imprisonment (10 years maximum)
49.Indecent act with 16 year old child
(1)A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 year old child . . . who is under his or her care, supervision or authority.
Penalty:Level 6 imprisonment (5 years maximum)
Each section goes on to provide that consent is not a defence, save in the case of belief on reasonable grounds of the absence of a specified element of the offence.
I was not referred to any authority dealing directly with section 52(2). Some guidance can be obtained from the cases on section 47. However, while sections 47 and 49 are clearly intended, like section 52, to protect a specific class of persons seen by the legislature as in need of protection, the offences created by those two provisions are not expressed to be identical with the offence created by section 52(2). Sections 47 and 49 forbid “an indecent act with or in the presence of” the child whom the legislation is intended to protect. Section 52(2), however, forbids only “an indecent act with” the resident whom the legislation is intended to protect.
The most recent decision on section 47 is R v Coffey[5] , where the applicant sought leave to appeal against a conviction for committing an indecent act with a child under the age of 16. The events in question did not involve any actual physical contact with the child. Callaway JA, with whom Buchanan and Eames JJA agreed, said [6] :
The natural meaning of section 47, reinforced by its evident purpose and the preamble to [the Crimes (Sexual Offences) Act 1980], which began these reforms, is that it creates a single, modern offence dealing with indecent acts involving children under the age of 16. It no more creates two offences than a statute which prohibits a disturbance “at or in the vicinity of” a railway station. That is borne out by Chernov JA’s analysis in R v TSR (2002) 5 VR 627 at [93] to [102]. It is confirmed by the decision of this Court in R v Alexander and McKenzie [2002] VSCA 183.
His Honour noted [7] that, like Chernov JA in TSR, he did not find the cases on different provisions in other jurisdictions of assistance, and I would, with respect, adopt the same view.
[5][2003] VSCA 155
[6][2003] VSCA 155 at [17]
[7][2003] VSCA 155 at [22]
In Alexander and McKenzie, Winneke P said of section 47, “It seems to me that the word ‘with’, used in juxtaposition with the words ‘in the presence of’ must imply actual physical contact with the victim.” [8] In Coffey Callaway J said, commenting on that passage [9] , that it was the width of the expression “in the presence of” that made it appropriate to adopt a narrow reading of “with”. He found that the applicant in that case did not commit an indecent act with a child, but he did commit an indecent act in the presence of the child, fondling his penis while he watched the child perform a strip dance. As section 47 created one offence only, the applicant was guilty of that offence.
[8][2002] VSCA 183 at [52]
[9][2003] VSCA 155 at [20]
The omission of the expression “in the presence of” from section 52(2) must have been intended to give a narrower meaning to the offences created by that sub-section than to the offences created by sections 47 and 49.
Hodges J said in Craig Williamson Pty Ltd v Barrowcliff[10] :
I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.
Mason J said in Registrar of Titles (WA) v Franzon[11] :
It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise.
[10][1915] VLR 450 at 452
[11](1975) 50 ALJR 4 at 6
In my view the joint history of sections 47 and 52(2), set out in [17] above, indicates a sufficient association between the two provisions to render it appropriate to assume that the word ”with” is intended to be given the same meaning in section 52(2) as in section 47.
Thus the act performed by the applicant in Coffey, if performed in the circumstances envisaged by section 52(2), that is, by a worker at a residential facility in the presence of a resident of that facility, would not have constituted an offence under that provision, there being no actual physical contact between the two persons involved.
On that basis, assuming without deciding that in the circumstances of the present case, Mr Scott could be said to have committed an indecent act, the absence of any actual physical contact means that he cannot be found to have committed an indecent act with Mr Becker.
Mr Scott is charged with committing an indecent act in the circumstances described in section 52(2). In view of the conclusion I have reached, it is not necessary for me to determine whether the facts found by the Magistrate necessitate a finding that Mr Scott committed an indecent act. Nor is it necessary for me to consider whether section 52(2) creates a separate offence of being a party to the commission of an indecent act, [12] and if so, whether the facts found by the Magistrate necessitate a finding that Mr Scott was guilty of that offence.
[12]a matter which Callaway JA did not find it necessary to consider in Coffey, see [2003] VSCA 155 at footnotes 11 and 24
I have said that I have formed the view that the Magistrate did not have the section 52(2) charges present to her mind when she made the final orders at the conclusion of her judgment. However, she made appropriate findings as to credit and findings of fact. In view of the conclusion which I have reached, there would be little purpose in remitting the matter to the Magistrates’ Court for further consideration.
For the reasons given, the appeal will be dismissed. Counsel may wish to make submissions as to costs.
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