Kahatapitiye v The Queen

[2004] WASCA 189

KAHATAPITIYE -v- THE QUEEN [2004] WASCA 189

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 189
Court:	COURT OF CRIMINAL APPEAL	Published:	19/08/2004
Case No:	CCA:22/2004	Heard:	10 AUGUST 2004
Coram:	TEMPLEMAN J WHEELER J MILLER J	Delivered:	10/08/04
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	PANNASARA KAHATAPITIYE THE QUEEN
Catchwords:	Criminal law and procedure Appeal against conviction Defective indictment Whether cured by Judge's direction, lack of prejudice to defendant, application of proviso
Legislation:	Criminal Code, s 325, s 590
Case References:	R v Ayres (1984) 1 All ER 619 R v McVitie [1960] 2 All ER 498

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KAHATAPITIYE -v- THE QUEEN [2004] WASCA 189 CORAM : TEMPLEMAN J

WHEELER J
MILLER J

HEARD : 10 AUGUST 2004 DELIVERED : 10 AUGUST 2004 PUBLISHED : 19 AUGUST 2004 FILE NO/S : CCA 22 of 2004 BETWEEN : PANNASARA KAHATAPITIYE

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : L A JACKSON DCJ

File Number : IND 598 of 1996


(Page 2)

Catchwords:

Criminal law and procedure - Appeal against conviction - Defective indictment - Whether cured by Judge's direction, lack of prejudice to defendant, application of proviso

Legislation:

Criminal Code, s 325, s 590

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr T V Sukumar
Respondent : Mr R E Cock QC & Mr C G Astill

Solicitors:

Appellant : T V Sukumar
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Palmer v R, unreported; CCA SCt of WA; Library No 980335; 18 June 1998
R v Ayres (1984) 1 All ER 619

Case(s) also cited:

R v McVitie [1960] 2 All ER 498


(Page 3)

1 TEMPLEMAN J: This is an appeal brought to the Court pursuant to s 140(1)(a) of the Sentencing Act 1995, pursuant to a petition which was made to the Attorney-General by the appellant, the Attorney having then referred the matter to the Court of Criminal Appeal, in this case for the whole case to be heard and determined as if it were an appeal by the offender.

2 I say that to deal with a point Mr Sukumar (counsel for the appellant) made at the close of his submissions, namely that the matter was first raised by the Director of Public Prosecutions, who launched a petition seeking to have certain convictions - which are the subject of the present appeal - quashed, on the basis that the indictment did not disclose offences known to the law. The Court is not, of course, bound by the fact that the Director of Public Prosecutions took that view and it is for us to deal with the appeal on its merits.

3 To deal with the matter in more detail, the appellant was charged on an indictment containing 11 counts, dated 17 February 1997, and he was tried in the District Court.

4 The appellant was and is, I think, a Buddhist monk, who was practising what I think might fairly be called - and I do not wish to use the term pejoratively - alternative medicine for the treatment of cancer.

5 It was alleged against the appellant that he had committed various offences of a sexual nature, or indecent nature, against a particular complainant. One of those counts, count 1 on the indictment, referred to the appellant sexually penetrating the complainant without her consent, by committing the act described. There were three further charges of apparently similar nature - that is to say, the allegations were of sexual penetration of the complainant.

6 However, in relation to those counts, which were 5, 6 and 7, the words "without her consent" did appear on the indictment, although each count referred to s 325 of the Code, in which it is of course clear that the offence is that of sexual penetration without consent. It is not clear why the words "without consent" were omitted from the indictment, but it is common ground that the words should have been included there.

7 The appellant was duly tried and convicted but now, as a result of the petition to which I have referred and the matter being brought before the Court, he appeals against the convictions on those counts 5, 6 and 7 which were defective.

(Page 4)

8 The appellant's principal contention is that because the offences, as alleged in the indictment, did not contain the words "without consent" the appellant was, in fact, charged with offences not known to the law, so that the convictions should be quashed.

9 The law is as stated by this Court in Raymond Dennis Palmer v R, unreported; CCA SCt of WA; Library No 980335; 18 June 1998, having Library No 980335. In Franklyn J's judgment at p 11 his Honour referred to the decision of the House of Lords in R v Ayres (1984) 1 All ER 619, in which Lord Bridge, with the concurrence of the other five law lords, said the following:

"In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso, a distinction treated as of crucial importance has been drawn between an indictment which is a nullity, and one which is merely defective. For my part I doubt if this classification provides much assistance in answering the question which the proviso poses.

If the statement of particulars of the offence in an indictment disclosed no criminal offence whatever, or charged some offence which has been abolished - in which case the indictment could fairly be described as a nullity - it is obvious that a conviction under that indictment cannot stand.

But if the statement and particulars of offence can be seen fairly to relate to, and be intended to charge a known and subsisting criminal offence, but pleaded in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant."

10 The question then is whether the indictment in the present case falls within the first part of Lord Bridge's classification, or whether it falls within the second. In that context it is useful to refer to s 590 of the Criminal Code which refers to formal defects in indictments.

11 The second part of that section provides:

(Page 5)

"Every objection to an indictment for any defect apparent on its face must be taken by motion to quash the indictment before the jury is sworn, and not afterwards; and the court upon such motion may, unless it considers that the accused person will be prejudiced thereby in his defence, order the indictment to be amended, so far as is necessary, on such terms, if any, as to postponing the trial or otherwise as the court may think reasonable. The indictment is thereupon to be amended in accordance with the order of the court."

12 I would accept that the section does not apply to an indictment which may properly be described as a nullity. However, it is I think, relevant to note that there was no objection taken to the present indictment, despite the fact that the appellant was represented by experienced counsel. That is, I think, a matter to be taken into account when considering the question whether any injustice was suffered by the appellant in the circumstances.

13 Although the indictment in respect of counts 5, 6 and 7 was defective in the way that I have said, the learned trial Judge gave an entirely proper direction to the jury in relation to the offence of sexual penetration without consent.

14 At p 325 of the appeal book his Honour said:

"With respect to sexual penetration without consent there are three things that the crown needs to prove: firstly, that the complainant has been sexually penetrated; secondly, that she was sexually penetrated by the accused - that is, that the accused person is the person who has done what is alleged; and thirdly, that it is without the complainant's consent."

15 His Honour then went on to refer to the various ways in which sexual penetration might occur. Then in the same part of his charge his Honour said:

"It (the penetration) must be without the complainant's consent. Consent must be freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threats, intimidation, deceit or any fraudulent means.

The complainants say they did not consent to the conduct which occurred. Even if they did, it would have been on the basis that it was to receive treatment for present or future sickness and such consent would have been obtained by fraudulent means.

(Page 6)

On the evidence of the accused himself, he said that if he had done what was alleged, it would not have been proper for a Buddhist monk to have done it, so that consent may not cause a great deal of difficulty in your minds.

So with respect to the counts of sexual penetration, those are the matters which need to be proved - that is, that there was a penetration, that it was the accused who did it, that it was without the complainant's consent."

16 Counsel for the appellant contends that although his Honour did give that direction to the jury in his charge, the jury was nevertheless left, when they considered their verdict, with an inadequate indictment.

17 However, in answer to that, it seems to me one need point only to decisions of the High Court to the effect that juries are taken to have followed faithfully the directions given by the trial Judge when considering their verdict. In other words, what the Judge said takes priority over the indictment or carries the weight which in this case the indictment may not have done.

18 The issue in the trial was not consent in any event. The defence in this case was, as the learned trial Judge put it at p 328 of the appeal book:

"The accused simply says, 'Nothing of the kind happened at all.' It's not suggested that any of the alleged conduct, if it occurred, was legitimate treatment. Indeed, the accused man, in his evidence, acknowledged that it would not have been.

If you are satisfied beyond a reasonable doubt that the conduct on each occasion - and bear in mind what I said earlier, you must look at each of the counts separately - then you may have little difficulty with respect to the particular elements of each count."

19 As well as the general direction about consent, his Honour dealt with each count individually and he did so between p 326 to p 327 of the appeal book. His Honour said there:

"The first count is of sexual penetration without consent and the complaint was that the accused had put his finger into the complainant's anus. If that happened, if you find, if you are satisfied beyond a reasonable doubt that that occurred, then you may have little difficulty in deciding, as a matter of fact, that

(Page 7)

that would constitute the offence of sexual penetration without consent."

20 His Honour went on to say that the second count was the same offence and his Honour referred again to the question of consent. His Honour then dealt, on p 327, with the fourth and fifth counts.

21 In relation to the fifth count his Honour referred to that being a count of sexual penetration. His Honour did not there say "without consent" but it seems to me, in the context, that the jury would have been in no doubt that lack of consent was a matter about which they would need to be satisfied. His Honour returned, in the sixth count, to refer specifically to the matter of consent.

22 So, returning to the law as stated in Ayres, it seems to me that the case falls fairly within the second part of Lord Bridges' classification; that is to say, the statement of particulars of the offence - and, indeed, the evidence - can I think be seen fairly to relate to and be intended to charge a known and subsisting criminal offence; that is to say, the offence of sexual penetration without consent, which was pleaded in the indictment in terms which were incomplete or otherwise imperfect.

23 In my view the proviso can be applied here because I think it can be said with confidence that the error in the indictment did not in any way prejudice or embarrass the defendant.

24 As I have said, the jury was directed that they had to be satisfied beyond reasonable doubt that the actions of the appellant were without the complainant's consent, even though consent was not an issue in the trial, and in circumstances where - and I repeat - the appellant accepted that had he done what it was alleged that he did, he would not have been acting properly.

25 Mr Sukumar urged on us that Palmer's case, in which Ayres was applied, could be distinguished. He submitted that Palmer was a case relating to the possession of drugs in which, although the indictment was defective, the accused person could not have known other than that he was doing wrong.

26 In my view that is precisely the position here, in the sense that the appellant here accepted, as I have said, that had he done what he was alleged to have done, it would have been wrong. I see no distinction therefore between Palmer and the present case. In my view, for the reasons I have given, the second limb of Lord Bridges' judgment applies

(Page 8)

as set out in Palmer. There has been no injustice and the proviso should be applied. In my view, the appeal should be dismissed.

27 WHEELER J: I am in agreement with Templeman J and I have nothing to add.

28 MILLER J: I agree with the reasons given by Templeman J. There is nothing I wish to add and I agree that the appeal should be dismissed.