Drago v The Queen

[1994] HCATrans 292

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P24 of 1992

B e t w e e n -

NEIEL JOHN DRAGO

Applicant

and'

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 1994, AT 12.49 PM

Copyright in the High Court of Australia

Drago 1 22/4/94

MR P.S. BATES:  May it please Your Honours, I appear for the

applicant in this matter with my learned friend,

MR B.E.S. LAURI. (instructed by Mossensons)

MR A.N. HOPE:  May it please Your Honours, I appear for the

respondent in this matter with my learned friend,

MR N.J. TWEEDIE. (instructed by the Director of

Public Prosecutions (Western Australia))

BRENNAN J: Yes, Mr Bates.

MR BATES:	Your Honour, this application concerns primarily the distinction in the definition of the word
"indecency" which has been adopted primarily by the
courts in Queensland, and in the present case by
the court in Western Australia.

As Your Honours are aware from my submissions,

the court in Queensland, and in particular

His Honour Mr Justice Sheahan in the case of Reg v

Bryant, defined the word "indecency" for the purposes of section 22 of the Queensland Criminal

Code as "conduct unbecoming or offensive to common

propriety". At least that was the definition which

came before the Queensland court in the case of Reg

v Bryant.

BRENNAN J:	In this case the judge gave the jury a direction in which he invited them to consider the question
of indecency by considering all the given
circumstances, and judging them -

in the light of the time, place and

circumstances -

at page 39. Do you complain about that direction?

MR BATES: Yes, Your Honour, because His Honour the learned

trial judge specifically defined the meaning of

offensive to common propriety", so it was within	"indecency" as "conduct which was unbecoming or
that wider definition that his subsequent
directions to the jury concerning the circumstances of the case, et cetera, had to be considered. It
is the applicant's case that the correct test that
should have been given was a test involving moral
turpitude, or acting in a base and shameful manner.
The reason for that submission is that His Honour
Mr Justice Sheahan in the case of Reg v Bryant,
indicated that as the sections in chapter 22 of the
Queensland Code dealt with bodily conduct and
sexual matters, the definition of "conduct unbecoming or offensive to common propriety" was
too wide to embrace the type of conduct which was
envisaged by section 22.

Drago 2 22/4/94

BRENNAN J:  I can understand that that broad definition is

capable of subsuming conduct which does not, in

fact, fall within the section of the Code, but if

one looks at page 38 on to 39 and sees the

direction which the learned trial judge gave and

bears in mind the nature of the evidence to which

that evidence was related, it is difficult to see

that the jury were likely to misunderstand the

problem which was before them. It was simply this,

was it not: was it a fair enough explanation by

the accused that he engaged in this conduct simply

for the purpose of settling the lad down?

MR BATES:  Your Honour, if the jury had been instructed by

the learned trial judge that they had to consider

the assault that took place in the context of a

definition of "indecency" which involved moral

turpitude, then, in my submission, they may have

placed a different emphasis on consideration of the

conduct in which the accused engaged.

McHUGH J:	I just do not understand that at all. Supposing your client did not have any defence at all about
attempting to relax the child and settle him down
prior to going to sleep. Could you seriously
contend that it would make any difference to the
result of the case whether the trial judge gave the jury the direction which he did or the one you
wanted to?
MR BATES:	If the accused had had no defence, then I accept

that it would have made no difference to the

outcome of the case.

McHUGH J: But that was the real issue, was it not? Did he

raise a doubt about his purpose? The case against

him, prima facie, was a very strong case, but it

was not a strong case - in fact, he was entitled to

be acquitted - if you accepted his explanation.

MR BATES:  On the basis of the definition of

"indecency" - - -

McHUGH J:  I am sorry, I should not say "accepted his

explanation". I mean if he raised a doubt about

the true explanation for his conduct.

MR BATES:  Your Honour, in my submission, the jury may well

have taken the view that the accused's conduct was

unbecoming and fell within the wider definition

irrespective of the explanation that he had given,

but if they had been called upon to consider his

explanation in the light of a definition of

"indecency" which required some form of sexual

gratification as an integral part of that

definition then, in my submission, that would have

narrowed the area of consideration for the jury.

Drago 22/4/94

If I could take Your Honours perhaps one step further to the question of intention: it would be

my submission that the word "indecency" when looked

at within the context of section 189 imports in

itself an element of mens rea. If the wider

definition is used, then obviously that impinges

upon the mental element that the jury had to

consider in this particular case. If my submission
is right that the word "indecency" of itself
imports an element of mens rea into the offence,

then, in my submission, that mens rea has to do

with sexual gratification, that is, there has to be

an intention on the part of the accused when he

commits the unlawful dealing to obtain some form of

sexual gratification or involve in some form of

moral turpitude in carrying out the offence.

GAUDRON J: Is that not, in fact, the very issue that was

left to the jury in this case, when you look at

page 39, perhaps three-quarters of the way down the

page?

MR BATES:  The point I would make, Your Honour, is what the

trial judge left to the jury was the direction that

they should look at the conduct against the

background of the wider definition of "indecency".

If Your Honour accepts my submission that the word

"indecency" imports mens rea into the offence, then

it must mean that the jury could have found that

the accused transgressed the wider definition of

"indecency", but lacked the necessary intention

which would fall within the definition of "moral

turpitude" .

McHUGH J:  Mr Bates, there are only two issues in this case

surely. You have a context where the accused

admits he -

runs a biro around ..... the penis and over the

top of it of the child -

The only real issue was whether it was done for

some form of sexual gratification on his part or,

as he alleged, that it was done to relax the child

and settle him down to get him to go to sleep.

MR BATES:  Yes, Your Honour, but the jury may well have

found that he did it with the intention of relaxing the child and settling the child down to sleep, but

nevertheless felt that that conduct in itself fell

within the wider definition of "indecency", that
is, the jury might have taken the view on the basis
of his direction that there was no moral turpitude

on the part of the accused.

McHUGH J: That was not the way the trial judge left the

case to the jury, was it? Reading the summing up

Drago 4 22/4/94

it does not seem to me that anybody would be under

any illusion as to what the issue was for the jury.

If the accused's defence raised a reasonable doubt

he was entitled to an acquittal.	If it did not,
then he was convicted.

MR BATES:  Your Honour, with respect, of course, I dispute

that. In my submission, the jury should have been

told that they had to look at the proper intention

of the accused. They had to ascertain whether what

he did was with an intention of sexual

gratification and, on the basis of the direction

that has been left to them, it is not clear whether

the wider definition was accepted or not.

BRENNAN J: Your point is simply that because of the width

of the definition that was given out of the

dictionary the jury may have applied too lenient a

test to the question of indecency in this case.

MR BATES:	Yes, Your Honour, because - - -
BRENNAN J:	I understand that, but the problem that you face

is the construction that one places upon the

judge's direction. If the judge's direction is to

be read as, in essence, putting to the jury,. "Have
you a reasonable doubt about the accused's

explanation or not?" then, really the problem that

you are seeking to agitate becomes very peripheral.

MR BATES:  Your Honour, except that it goes further, in my

submission, than Your Honour suggests because if

one then considers the authority of Reg v Court

where the court took the view that if an act was

equivocal, then one had to look at the intention of
the party in order to determine whether it was
intended that the action carried the necessary
ingredients of indecency or not; then the

definition of "indecency" which is put to the jury

is very important.	I know that His Honour
Mr Justice Nicholson rejected the suggestion that	Reg v Court had any application in this case but,
in my submission, it can be argued that this case was equivocal in the sense that here was a man who,
while ostensibly in loco parentis to the child, he
was putting the child to bed at that time; he was
fulfilling the position of parent to that child. If a father had done the same to his child as this
man did to the victim, then we would say there is
no offence because it is the father who is doing
it. If the father intended sexual gratification
when he did it, we would say the father has
committed an offence because there was an intention
of moral turpitude.

To put the accused in the same position - as I

say, he was in the position of the father at this

Drago 22/4/94

particular time, and his intention really goes to

the very essence of whether or not this particular

act was indecent within the section or not. To

that extent it is equivocal, because to that extent

what the accused was doing was something which in

other circumstances might have been regarded as

innocent. So it is important then to consider

whether or not his intention was to gain sexual

gratification or not, and that is when the narrower

definition adopted by Mr Justice Sheahan becomes

important because if the jury had been asked

whether in those particular circumstances they

thought that he was doing the act with the

intention of some form of sexual gratification,

then it may well have said no. It may well have

been a common assault worthy of punishment but, in

my submission, there would not in those

circumstances have been an indecent assault or an

indecent dealing.

If I could briefly put to Your Honours that in

my submission section 23 of the West Australian

Criminal Code is irrelevant for consideration of
this matter, the reason being that it is my

submission that the three elements in section 23

really deal with specific aspects of mens rea, but they do not take away the requirement for mens rea

per se.	I do not know if Your Honours wish me to
develop that argument at all.	I would simply

suggest that in relation to section 23, the first
paragraph, I would submit, deals with situations

such as accident or automatism - - -

BRENNAN J: Does not the Widgee Shire Council case apply to

the West Australian Code?

MR BATES: My learned friend tells me it does, Your Honour. BRENNAN J: That means there is no requirement of mens rea,

does it not?

MR BATES:  I am afraid I am not familiar with that

authority, Your Honour, I am ashamed to say.

BRENNAN J: It is a long time since I have looked at it, but

I thought that was the name of the case.

MR BATES:  Your Honour, section 23 in itself does not, in my

submission, completely eliminate a need for mens

rea. My submission is what it does is simply

require that any necessary mens rea has to be
expressly stated in the section itself, and

section 23 deals with three specific aspects of

mens rea. Even if it is accepted that the mens rea

has to be specifically referred to in the section

itself, it is my submission in this case, as I

indicated previously, that the word "indecency"

Drago 6 22/4/94

imports the necessary mens rea in this particular

case. To simply say because a man touches a

child's penis without any further consideration of

his intention makes him guilty of a sexual assault,

in my submission, takes the matter too far. If one

accepts that the word "indecency" imports the

requirements of mens rea, then it is clear in this

particular case in this particular section within

section 22 of the Code that the mens rea necessary

is that of sexual gratification and moral

turpitude. In other words, the definition that

should have been given to the jury was the

definition expounded by His Honour

Mr Justice Sheahan in the Queensland case.

Your Honour, they are my submissions.

BRENNAN J: Thank you, Mr Bates. We need not trouble you,

Mr Hope.

It may be that the definition of "indecency"

propounded by Sheahan J. in Reg v Bryant

(1984) 2 Qd R 545 is preferable to the broader

dictionary definition used in the direction in this

case. However, having regard to the evidence and
the only real issue in the trial, there is no

reason to think that there was any miscarriage of

justice in this case. Accordingly, special leave

should be refused.

AT 1.05 PM THE MATTER WAS ADJOURNED SINE DIE

Drago 22/4/94