Librizzi v Cotton

[2006] WASC 152

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   LIBRIZZI -v- COTTON [2006] WASC 152

CORAM:   McKECHNIE J

HEARD:   28 JUNE 2006

DELIVERED          :   28 JUNE 2006

FILE NO/S:   SJA 1018 of 2006

MATTER                :Criminal Appeals Act (2004) Pt 2

BETWEEN:   CALAGERO LIBRIZZI

Appellant

AND

GRAHAM MICHAEL COTTON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE S P SHARRATT

File No  :GN 1072 of 2002

Catchwords:

Criminal law and procedure - Indecent assault - Whether a kiss not for sexual gratification can be an indecent assault

Legislation:

Nil

Result:

Appeal allowed
Conviction quashed

Category:    B

Representation:

Counsel:

Appellant:     Mr D L Armstrong

Respondent:     Mr S M Stocks

Solicitors:

Appellant:     Altorfer & Stow

Respondent:     State Director of Public Prosecutions

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

Drago v The Queen (1992) 8 WAR 488

Case(s) also cited:

Nil

1. McKECHNIE J:  This is an appeal against the decision of the Magistrate when on 21 February 2006 he convicted the appellant of unlawful and indecent assault and imposed a fine.  The appellant appeals on a number of grounds, some of which do not immediately attract me on reading the submissions.  However, ground 2 states that the Magistrate erred in law in finding that the appellant's conduct of kissing the complainant on the lips was indecent.

2. The relevant reasons of the Magistrate are to be found from TS 101 where he says: "Now, kissing isn't of course always an indecent act," and then gives some examples of what he might regard as indecent.  He makes a finding which is critical.  He says, "There's no evidence that this was done for the sexual gratification of Mr Librizzi."  He then gives various examples of kissing and says:

   "Kissing on the lips is and can be, of course, capable of being - - or incapable in itself of being obscene but there's more to that than this.  This is kissing during a struggle between a man and a woman in the bushes, and it's this kissing in the context of a struggle in the purported seclusion of a set of bushes that renders this act indecent.

   I take the view that the time and the place and the circumstance where this event occurred give it this quality of indecency.  I take the view that this is an assault which is accompanied by circumstances of indecency on behalf of the prisoner.  Those circumstances of indecency are the kissing on the lips during a struggle where it's been made obvious that the advances are rejected.  A stolen kiss that was by surprise under those circumstances may not have that quality.  This is different."

3. The leading authority on the meaning of indecency under the Criminal Code is Drago v The Queen (1992) 8 WAR 488. It is not necessary for me to cite any particular passage because the whole case deals with the question. Applying Drago to the present case, and bearing in mind the finding of the Magistrate that the act of kissing was not done for sexual gratification, the kiss cannot, as a matter of law, amount to an act of indecency.

4. The circumstances which the Magistrate outlined as found cannot elevate a kiss to an act of indecency.  The circumstances are relevant as to whether the kiss was an assault but even if it were an assault it cannot be elevated to an act of indecency.  Indecency has to be judged in terms of a criminal offence carrying a penalty.  For those reasons it was simply not open for the Magistrate, as a matter of law, to be satisfied that in these circumstances the act of kissing was an indecent assault.

5. The Criminal Code was amended in 2004 and provisions about alternative offences were re‑written.  By s 10B a person may be convicted of any alternative offence if it is listed as an alternative in the offence section.  Common assault s 313 is not an alternative to indecent assault s 323.  At the time when the charge was laid assault may have been an alternative but Mr Stocks for the respondent does not urge upon me, and I am sure he is correct, that I should apply the old law.

6. Therefore it is a procedural matter and the law as it presently stands applies, common assault is not open as an alternative  That being the case, in view of my findings, I allow the appeal and quash the conviction.