Little (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2015 0059

MARK LITTLE (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST JA, LASRY and T FORREST AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2015
DATE OF JUDGMENT:	17 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 62
JUDGMENT APPEALED FROM:	DPP v [Little] (Unreported, County Court of Victoria, Judge Gaynor, 18 March 2015)

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CRIMINAL LAW — Interlocutory Appeal — Sexual penetration of a child aged 16 or 17 under care, supervision or authority — Application for a permanent stay — Whether evidence sufficient to establish care, supervision or authority — Whether charges foredoomed to fail – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C B Boyce SC with Ms P J Marcou	Michael J Gleeson & Associates
For the Crown	Mr N B Batten	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Generally speaking, it is not an offence to take part in an act of sexual penetration with a youth aged 16 or 17 years. Section 48(1) of the Crimes Act 1958 provides, however, that, ‘A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority’.

The applicant faces an indictment filed in the County Court containing two charges under s 48(1).[2]
[2]Originally, the applicant was charged with rape and indecent assault. Following committal, however, he was directly indicted on these two charges.

Prior to a jury being empanelled, the applicant sought a permanent stay of the charges on the basis that they were foredoomed to fail. In essence, it was submitted that, taken at its highest, the evidence in the prosecution case was incapable of establishing an essential element of the offence — that at the time that sexual penetration took place, the complainant was under the applicant’s care, supervision or authority. The trial judge refused the application. For reasons upon which I will later elaborate, in my view the judge was wrong to do so.

In my opinion, there is no direct evidence — or evidence from which an inference could properly be drawn — that the complainant was under the applicant’s care, supervision or authority at the time the alleged sexual penetration took place. Hence, the prosecution will be unable to establish an essential element of the offence. Plainly, therefore, the prosecution’s case is foredoomed to fail. In these circumstances, it would be an abuse of process to permit prosecution of the two charges to continue.

I would thus grant leave to appeal against the decision to refuse the stay; allow the appeal; quash the decision and orders of the trial judge; and order that both charges on the indictment be permanently stayed.

The application in this Court

Having refused the application for a permanent stay, on 18 March 2015 the judge certified pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

Consistently with the trial judge’s certification, the applicant seeks leave to appeal the decision to refuse a permanent stay on the following grounds:

1.   The learned trial judge erred by failing to stay the prosecution made against the applicant as an abuse of process on the basis that the prosecution was foredoomed to fail.
2.   The learned trial judge erred by failing to find that there was no evidence upon which a properly instructed jury could find that the complainant was under the applicant’s care, supervision or authority.
3.   The learned trial judge erred by finding that there was sufficient evidence of facts and circumstances known to the applicant such that it would be open to a jury to infer that the complainant was under the applicant’s care, supervision and authority.
4.   The learned trial judge erred by failing properly to apply the legal test as to whether the complainant was under the applicant’s authority.

The offence charged

As I have said, the applicant faces two charges of sexual penetration of a child aged 16 or 17 years under care, supervision or authority.

So far as is relevant, s 48 of the Crimes Act 1958 provides:

(1)A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority.
…[3]
[3]Subsections (2) and (3) concern consent, an issue presently of no relevance.

(4) For the purposes of subsection (1), and without limiting that subsection, a child is under the care, supervision or authority of a person if the person is —
(a)the child’s teacher;
(b)the child’s foster parent;
(c)the child’s legal guardian;
(d) a minister of religion with pastoral responsibility for the child;
(e)the child’s employer;
(f) the child’s youth worker;
(g) the child’s sports coach;
(h)the child’s counsellor;
(i)the child’s health professional;
(j) a police officer acting in the course of his or her duty in respect of the child;
(k) employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of his or her duty in respect of the child.

It will be noticed that, for the purposes of the offence created by s 48(1), s 48(4) spells out a non-exclusive set of circumstances where a child is under ‘care, supervision or authority’. As will become clear, the applicant falls into none of the categories spelled out in s 48(4). Thus, the complainant was not to be regarded as being under the applicant’s care, supervision or authority because he fulfilled any of the roles prescribed by s 48(4) vis-à-vis the complainant. The essential issue in this case therefore is whether the evidence available to the prosecution, taken at its highest, is capable of establishing that the complainant was, at the time the alleged sexual penetration took place, under some other more general species of care, supervision or authority.

The prosecution’s case

In order to understand the basis of the application for a permanent stay, and the foundation of the application in this Court, it is necessary to scrutinise in some detail the evidence — or, perhaps, lack of evidence — available to establish the necessary element of ‘care, supervision or authority’.[4] A convenient starting point is the ‘Summary of Prosecution Opening’, which sets out in detail the facts relied upon by the prosecution as follows:[5]
[4]The parties were content for the case to be decided on the basis that the evidence will not materially change.
[5]Emphasis added.

1.In February 2012 the complainant [‘JEB’] was 17 years and 7 months old. She lived in Boronia. She was in a relationship with [‘JC’]. [JC] was living in Lilydale with the accused [Mark Little][JC’s] mother’s former partner.
2.The accused is a plumber. He was then aged 46 years old ... The complainant thought of him as [JC’s] step-father.
3.In early February, the complainant was with [JC] and the accused in the swimming pool at the home in Lilydale. The accused touched her waist and guided her out of the water. He touched her bottom with his hand. …
4.On Friday [24 February 2012], the complainant went out with [JC], the accused and others for a birthday dinner. She stayed the night with [JC] in his bedroom. They remained in the room till late in the morning. When they got up the complainant discussed with [JC] how she would get home.
5. The accused said he had a quote to do in Ferntree Gully and offered to drop the complainant at her home on his way if she could wait half an hour. After discussions with [JC], the complainant decided to wait for a lift from the accused. [JC] and others left the house leaving the complainant and the accused there alone. It was early afternoon.
6.The complainant sat on the couch in the lounge room watching a movie on Foxtel while waiting for the lift. The accused came and sat on the long adjoining section of the couch and changed the movie.   He started talking to the complainant who felt uncomfortable being alone with him.
7. The accused asked the complainant about her sexuality and told her about past sexual experiences of his own. She felt awkward and confused. He asked her if she or her friends would be with an older guy like him and she said she wouldn’t. He told her a story about having sex with a mate’s mum when he was 15 and asked her if she wanted a shower. She realized he was being suggestive and thought to herself ‘no’.
8. The accused started flicking through adult channels on Foxtel and said the next one was starting in 6 minutes. The complainant got up and said she was going to the toilet. The accused said ‘do you want a hand’ and laughed. The complainant went to the toilet but was worried the accused might walk in on her. She returned to the couch.
9.A pornographic movie started. The accused made comments on the females’ bodies and the complainant made a comment about a woman’s tattoos. The accused asked the complainant about sexual positions. She felt uncomfortable and began chain smoking.
10.The complainant noticed that the accused had put a hand down his pants and appeared to be touching his penis.   She didn’t know what to do. The accused said he was getting some cream and left the room briefly. He returned to his place on the couch and invited the complainant to sit between his legs. She said ‘no thanks its okay’. He said ‘I'm sorry, I'm sorry’.
11.The accused went outside to take a phone call which appeared to be from his son … He resumed his position on the couch and proposed that each of them touch their own bodies but not the other’s. The complainant said she didn't want to be involved. The accused said ‘I swear on [son’s name] that I wouldn’t touch mate’.
12.The accused started to moan and it appeared to the complainant that he was masturbating although she didn’t look at him at first. He called out her name and said comments like ‘I want to lick you all over’. She looked over briefly and saw him lying with his back on the couch and masturbating his erect penis. The complainant was shocked and disgusted. She was sitting with her knees up to her chest.
13.The accused asked the complainant to take her shirt off and that ‘it would make him come easier’. She said no. He asked her to take her bra off but leave her shirt on. She refused at first but later agreed and did so, dropping her bra on the floor. He continued repeatedly asking her to take her shirt off and she kept saying no. He looked straight at her and told her firmly to take her shirt off. The complainant was trying to think of a way out of the situation. She took her shirt off when told to. She was scared that he might hurt her.
14.    The accused asked her to take her shorts off. She said no. He repeatedly asked her and she repeatedly refused. He again looked at her seriously and told her take off her shorts. She did so, fearing he might hurt her. She remained sitting on the couch in her underpants with her knees drawn up to her chest.
15.The accused, wearing a t-shirt and track pants slightly lowered, approached the complainant and stood in front of her masturbating himself, with his erect penis right in front of her face. He grabbed her right thigh firmly. He leant in towards her and rested his forehead on hers, saying repeatedly that she was gorgeous. She felt violated by his actions.
16.The accused told her to stand up.   She said no. He grabbed her and pulled her up. He pulled her underwear down. She fell back on the couch to try to get away from him. He was holding her and quickly and briefly penetrated her vagina with his penis. She backed into the couch trying to get away from him. He leant towards her and again penetrated her vagina. (Both acts of penetration constitute Charge 1 — Sexual Penetration of a child aged 16 or 17.)
17.She stood up to get away from him but he said ‘come on lets go to my room’. He put his hand on her back and pushed her towards his room. He kept his hand on her back and guided her to his room. The complainant did not want to have sex with him but was scared what he might do if she tried to get away.
18.In the bedroom he took his clothes off and told her to go on the bed. She sat on the bed. He got on the bed and told her to lie down. He climbed on her and moved her legs apart with his hands. He again penetrated her vagina with his penis. During penetration the accused asked her if she was okay and she nodded. She did this because she was scared of the accused. He later withdrew and ejaculated on her stomach. (Charge 2 — Sexual Penetration of a child aged 16 or 17.)
19.[JL], the accused’s mother, who also lived in the house, returned. The complainant ran to [JC’s] room. [JL] saw a blue bra on the couch and other clothes nearby. She assumed the complainant was with [JC] in his bedroom.
20.    The complainant heard the accused talking to his mother. The accused came to [JC’s] room and threw the complainant’s clothes to her. These had been left in the lounge room. Later the complainant left the house with the accused without being seen by [JL]. The accused drove her home, dropping her a short distance away. On the way he made her promise not to tell anyone what had happened.
21.On Monday 27 February, the complainant went to school. She told her friend [TC] in detail about the events involving the accused, including the incident in the swimming pool.
22.That evening the complainant went to the house where the accused and [JC] lived. There were further birthday celebrations. The complainant ignored the accused and said nothing about the events of the previous Saturday, although she was upset when leaving.
23.On Tuesday 28 February the complainant told … teachers at her school, what had happened on Saturday.
24.On Wednesday 29 February the accused rang [CM] and told him that the complainant had accused him of rape. He said that on Saturday morning he was going to take the complainant home but he wasn’t right because he’d had a big night; that the complainant had asked him for the Foxtel code and he’d walked in on her watching ‘porn’ and he’d told her she shouldn’t be; that he told her he’d take her home after he’d had a sleep; and he’d woken up with her hand ‘on his dick’.
25.On 1 March the accused was interviewed by police and said that a few weeks before the main incident the complainant had got ‘flirty’ in the pool and ‘grabbed him’ (Q 191); on Saturday he’d had to go to Chirnside Park to look at a gas job (Q 19); he agreed to drop the complainant home (Q 19); he asked her to wait for a while because he was on ‘00’ [BAC] and was probably ‘over’ (Q 23); she put a ‘porno’ movie on (Q 25) and said ‘she likes women’ (Q 28); he sat on the couch (Q 26); generally she had introduced sexual topics into the conversation while the pornographic movie was showing (Q 33) and said ‘she’d always wanted an older bloke’ (Q 34); he told her ‘let’s not go there’ and fell asleep for 5 minutes (Q 34); when he woke she was playing with her breasts and she came over to him and started rubbing him (Q 35); he said to her ‘I can’t touch you you’re not even 18’ (Q 35); she took her top and shorts off and was just in her underpants, he told her to get dressed and went into his room (Q 36); she followed him and asked if she could give him a ‘head job’, he said no (Q 36); by that time she had nothing on (Q 37); she said ‘let’s experiment’ and started masturbating his penis (Q 37) and he repeated ‘I can’t touch you’ (Q 37); he told her he would ‘do this’ and began masturbating himself while she was ‘playing with herself with her finger inside her (Q 38, 129); he ejaculated on her and soon his mother returned (Q 39, 105, 133); the complainant went into [JC’s]room (Q 40); he said he would take her home (Q 41); on the way she told him not to tell [JC] about it (Q 44); he denied taking any of her clothes off, penetrating her or raping her (Q45, 339).
26.Later he said that when watching the ‘porno’ she took her bra off then her top and was playing with her nipples (Q 229-30); she had instigated the whole thing (Q 232); he denied any ‘interest’ in the complainant (Q 361, 366) and said he only became aroused when she walked into the bedroom after him and masturbated him and said ‘I want a head job’ (Q 373); she had asked him for the access code to the Foxtel adult channel (Q 390).
...

Next, it is necessary to appreciate what the respondent relies upon as establishing the element of care, supervision or authority. That may be gleaned from a document, ‘Particulars of Care Supervision or Authority’, dated 2 March 2015, filed by the prosecution in response to a defence request for particulars. It provides the following particulars:

In response to the request made in the Defence Response for particulars of what acts facts and matters are relied upon as support for the allegation that the complainant was under care supervision or authority of the accused at the time of the alleged offending on [25 February 2012] the prosecution states that it will rely on —
1.the age of the complainant (17 years 7 months)
2.the age of the accused (46 [years old])
3.the status of the accused as
a.   the sole middle aged resident in his mother’s home in Lilydale
b.   effectively a ‘householder’ in his mother’s home, for instance by ownership and control of a Foxtel subscription
4.the status of [JC] as -
a.   the son of a former partner of the accused
b. a resident in the Lilydale home
5.[JC’s] perception of the accused as his step-father
6. the status of the complainant as —
a.   the girlfriend of [JC]
b.   a school girl
c.   usually resident with her mother in Boronia
d.   a person who on occasion stayed overnight with [JC] in his bedroom
7.the complainant’s perception of the accused as [JC’s] step-father
8. the presence of the complainant staying overnight with [JC] in his bedroom on the night prior to the alleged offences
9.the circumstances arising on [25 February 2012] shortly before the alleged offences including —
a.   the presence of the complainant in the accused’s home
b.   the desire of the complainant to return to her mother’s home
c. the intention of [JC] to go elsewhere with [DB]
d.   the unsolicited offer by the accused to drop the complainant home on his way to carry out a plumbing job
e.   the departure of [JC] and others from the accused’s home leaving the accused and complainant alone together
10.       the awareness of the accused of the matters in paragraphs 1 to 9
11.    the accused driving the complainant home to her mother’s shortly after the alleged offences
12.the apparent submission of the complainant by certain acts and gestures to the sexual advances and directions she alleges against the accused[6]
13.       the admission by the accused in the record of interview that to the extent that he consented to and participated in sexual activity with the complainant, he knew it was wrong (eg Q&A 45).

[6]In my view, this particular involves syllogistic or bootstraps reasoning.

Although the drafting of the particulars involved considerable stretching, properly distilled the particulars of ‘care, supervision or authority’ that the prosecution relies on seem to be:

·    first, the disparity in ages between the applicant and the complainant;
·    secondly, the applicant’s status as the ‘householder’ in the home;
·    thirdly, the applicant’s relationship with JC;
·    fourthly, the complainant’s status as JC’s girlfriend;
·    fifthly, the complainant’s ‘perception’ of the applicant as JC’s step-father;
·    sixthly, the fact that the complainant was a schoolgirl, usually resident in her mother’s home;
·    seventhly, the fact that the complainant sometimes stayed overnight in the applicant’s house; and
·    eighthly, the applicant’s offer to drive the complainant home.

The complainant’s evidence and the further evidence on the voir dire

As previously noted, the applicant initially was charged with rape and indecent assault. Given that state of affairs, there had been no exploration of the issue of care, supervision or authority during the contested committal proceedings. The judge permitted a Basha[7] hearing so as to ventilate that issue. In what follows, I have summarised the evidence given on the voir dire in moderate detail since, with due respect to the prosecutor, defence counsel and judge, little of it, in my view, had any relevance to the principal issue in the case.
[7]R v Basha (1989) 39 A Crim R 337.

JEB, the complainant, had made two statements to police, the first dated 29 February 2012, and the second, 16 May 2013.

In her first statement, JEB said that she had been seeing JC for ‘about 7 or 8 months’. She had been to JC’s house — where he lived with his stepfather (the applicant), stepbrother and the applicant’s mother — ‘about 20 times’, and had ‘stayed the night at his house about 4 times’. She did not suggest that she succumbed to sexual penetration because she wanted a lift home (or, indeed, for any of the reasons contained in the prosecution’s particulars), although she did say that, when the applicant spoke to her about his sexual experiences — ‘I was a bit confused by the whole thing because I trusted [the applicant] because he was [JC’s] step father [sic.] but because he was his step father and a lot older than me I felt weird about it all’. Later, she said that when the applicant started to masturbate — ‘I didn’t say anything about feeling uncomfortable about his age and that he was so much older in case he got angry with me’. JEB said that she took off her shirt and her shorts because the applicant gave her a ‘serious look’. She also told police that she first took off her shirt because:

I didn’t know what would have happened to me if I didn’t do what he asked. I was scared that he might have done something and hurt me.

And she told police that she next took off her shorts because:

I took them off because I was scared again that if I didn’t he might have hurt me.

So far as her reason for permitting the applicant to sexually penetrate her, JEB said:

I wanted to leave and didn’t want to have sex with him but I was really worried about what he might do to me if I tried to get away.

In the second statement, JEB offered, perhaps, a more expansive reason for taking part in an act of sexual penetration:

[Police] asked me why I submitted to [the applicant] on 25/02/12. I felt that I had no choice. If I had tried to do something I might not be here, he may have hurt me, I didn’t want to risk it. I was scared of [the applicant]. He had said the night before that if [JC’s] mum ever rocked up he would kill her. I kept thinking about what he had said and capable of [sic.].

In her evidence in chief on the voir dire, JEB repeated that at relevant times she was going out with JC, and she knew the applicant to be his stepfather. She had been to the applicant’s residence ‘about 20 times’, but did not know if she wore her school uniform or had conversations with the applicant about being at school. On one occasion, the applicant had brought her alcoholic drinks and paid for her dinner. JEB said that when she stayed at the residence, she ‘always made sure with [JC] that it was okay for [her] to stay there’. She gave evidence that she knew JC worked for the applicant, and that the applicant ‘was his stepfather [and] could’ve been there as a father figure’. The complainant gave the following evidence:

Okay. Can I ask you this question: when you were in that house if you were asked to do something by [the applicant] would you have done it?---If I had have been asked, yes.

Almost immediately afterward, the judge asked the following question and received the following answer:[8]

Okay, what about what did you think [the applicant’s] position was in the house? In terms of his authority, what did you think his authority in the house was?---As far as I’m aware it was his house so whatever he would say would go, if he didn’t want something to happen in the house then he would say it.

[8]Emphasis added.

In cross-examination, JEB said that her parents were separated. She had been living with her father until ‘about mid-January’, but was living with her mother in February 2012. When she stayed at JC’s house, she told her mother that she was staying at a girlfriend’s. There was, she said, a bus stop ‘right outside the front’ of JC’s house. On one occasion after a night out, when she and JC and other adults had returned to the applicant’s residence, he served alcoholic drinks to her (and others) from behind the bar in the house. JEB said she considered the applicant to be JC’s stepfather because the applicant was the father of JC’s half-brother. She also gave the following evidence:

When it came to if you wanted to sleep overnight you’d speak to [JC] about that?---Yes, I did.
He’d say yes or no to you?---Well, he’d ask me if I would like to stay the night and I would ask him to make sure it was okay with [the applicant] or [the applicant’s mother] first ...
But you only ever had conversations with [JC]?---Yes.
You agree, don’t you, that it wasn’t the case that you – you didn’t need to [be] babysat by anyone when you were at the house, did you?---Well, no.
You considered yourself as effectively one of the adults in the house. Is that correct?---Well, a young adult. I wouldn’t have been an adult, but ‑ ‑ ‑
You made a decision whether you drank alcohol in the house?---Well, yes, otherwise it wouldn’t have been forced down my throat, so I had the decision to drink it or not.

Later, the judge asked the following questions and elicited the following answers:

I want to ask you a question. When you were staying at the [Little] house, were there people in that house who you felt had authority over you in the house?---What do you mean by that? Sorry.
People who could tell you how to behave in the house?---If anybody were to tell me how to behave if I was doing something wrong, it would have been [the applicant] as it was his house.
Did you feel that as it was his house, he had the right to say anything about your behaviour in the house?---Yes. If it was my house and somebody was acting inappropriately in my house, I would be telling them not to act like that.

And in further cross-examination, the complainant gave the following evidence:

[T]he adult you were closest to in the house was [JC], wasn’t it?---Yes.
He basically determined when you would come and go, didn’t he?---Yes.
And where you would sleep?---Well, yes. If it was okay with [the applicant] and [his mother] that I was able to stay in that room, we made sure - yes.
Just to clarify, to answer my question, it was he who determined in your mind whether you would stay or not stay?---Well, in my mind I would like talk to him about it and he would talk to [the applicant] and [his mother] about it, so it was them who made up their minds about it.
You had no such discussion with anyone except for [JC]. Is that correct?---Yes.

It will thus be appreciated that the admissible evidence given by the complainant which logically bore on the issue of care, supervision or authority was, at best, gossamer thin. Indeed, in my view, it was non-existent.

The complainant’s boyfriend, JC, also gave evidence on the voir dire. He had made a statement to police on 5 March 2012, in which he said he was aged 18 years and lived with the applicant, his half-brother (the applicant’s biological son) and the applicant’s mother. He referred to the applicant as his ‘step father’ (sic.). JC told police he had ‘been with’ JEB ‘since July 2012’ (presumably meaning 2011). On Friday 24 February 2012, he and JEB and a group which included the applicant, the applicant’s sister, another of his (JC’s) brother’s and his half-brother’s cousin (DB), went out for dinner and drinks. JEB stayed that night in his bed. The next day, he was going to have DB drop JEB at the train station, but the applicant offered ‘to drop her off at home’, saying that he had a quote to do in Ferntree Gully. JC told police that over succeeding days he noticed a change in JEB’s mood. On Tuesday, 28 February 2012, JEB asked not to be left alone with the applicant. JC asked JEB whether the applicant had raped her, and she replied ‘yes’. From that point onward, JC did not return to the house he shared with the applicant.

In evidence in chief on the voir dire, JC acknowledged that his statement to police was true and correct. Presently he was aged 21 years. When he was aged six or seven, his mother had been in a relationship with the applicant for two or three years. They lived together in several places. When his mother and the applicant separated, he moved out with his mother, but he remained in contact with the applicant because of his half-brother. When he turned 18 years, JC began living in a house with his half-brother, the applicant and the applicant’s mother. JC said that when he was 17 or 18 he started doing some labouring with the applicant in his plumbing business. When he asked the applicant for work he regarded him as ‘just my brother’s dad’. JC said he worked one day a week for the applicant whilst doing a ‘pre-apprenticeship’ at trade school. He did not pay rent or board, or make any financial contribution to the house, and the applicant paid him for the work that he did. When asked specifically by the prosecutor how he viewed the applicant, JC said, ‘He was just helping me out’.

JC gave evidence that he was not sure if JEB came to the house in school uniform, or whether he discussed with the applicant her age or that she was at school. He said that when JEB stayed the night he was not sure whether he asked permission from anyone in the house, or ‘she just came over one day and stayed’. There was a bar in the house where alcohol was kept. The applicant usually served it. JEB had consumed alcohol there. He thought that at the night out for dinner, the applicant had paid for the dinner and drinks. When they went home they (including JEB) had drinks at the bar, which JC thought they ‘just grabbed … out of the fridge’. JC said he referred to the applicant by his first name. After an application was made under s 38 of the Evidence Act 2008 to treat JC as unfavourable, the prosecutor was permitted to put his statement to him. He agreed that in his statement he had said that he referred to the applicant as his ‘stepfather’ (which, so it seems to me, is not inconsistent with his evidence that he addressed the applicant by his first name).

Cross-examined, JC said it was convenient to live with the applicant rather than his own father because the location of his pre-apprenticeship training was two bus stops away from the applicant’s house, and he did not have a licence. The applicant paid him $100 per week for his work, and any other money earned ‘beyond the $100 mark’ was taken out in lieu of board. In his mind he was thus paying his way. He regarded himself as living in the house as a ‘co-adult’. The only people with authority over him was his father and his older brother. When he drank at the bar at the house it was alcohol he purchased.

After the prosecutor had re-examined on what JC was paid, the trial judge asked the following questions and obtained the following answers:[9]
[9]Emphasis added.

I want to ask some questions. Counsel is able to ask further questions as a result of this. (To witness) You say you were getting a hundred dollars for the day you did you turn up. Is that right?---Yes, Your Honour.
That was just a hundred bucks a week, no matter how many hours [the applicant] had you?---Yes.
So you were doing pretty well compared to - - -?---Yeah. That’s correct.

Was that your living money?---Yeah.
Did you have any other source of income?---No.
It sounds like [the applicant] was a very generous person about having people over?---Yeah.
He didn’t mind [JEB] staying?---No.
How did you regard his position in the house? You felt he had authority in the house. Was it his house?---Yeah. It is his house.
Even though he was pretty easy-going, if he said you couldn’t do something, would you have obeyed that?---Yeah. I respected his - - -
Why was that?---Because it’s his house. I would have listened.
Because you were living in his house, because you were getting some income from him, did you regard him as having a bit of authority over you?---Yeah, I guess so. I just would have respected what he had to say, for helping me out.
Would you regard him as having the right to tell you, ‘I don't want this in my house. I don't want that in my house. I want you to behave this way’?---Yeah, but then I could have had the choice to leave, you know, if I didn’t like that.
Certainly you could have but if he had given you directions about how to behave in the house, would you have felt he had the right to ask that?---Yeah.
Would you feel the same way about his mother as well?---Yeah.

The application for a permanent stay and the judge’s ruling

The essential submission made to the trial judge was, as I have said, that on the basis of evidence contained in the depositional material and that adduced on the voir dire, the prosecution case taken at its highest was foredoomed to fail.[10] In particular, the applicant submitted that it was inevitable that the Crown would be unable to satisfy a jury beyond reasonable doubt that the complainant was, at the relevant time, under the applicant’s ‘care, supervision or authority for the purposes of the offence provided for in s 48(1) of the Crimes Act 1958’.
[10]Nelson (a pseudonym) v DPP (Cth) [2014] VSCA 217, [6]–[11] (Maxwell P, Redlich and Priest JJA) (‘Nelson’).

Rejecting the defence submissions, the judge ruled that ‘that there is sufficient evidence of facts and circumstances known to the [applicant] such that it would be open to a jury to infer that he had a position of care, supervision or authority in relation to the complainant’. It seems plain that the crucial aspects of the judge’s essential reasoning are to be found in the following passage of her ruling:[11]

In my view there is clearly evidence of facts known to the accused that he was a person of authority in the household. It was his household: he paid the bills. [JC] was a teenage boy who lived there with the accused’s permission who was his employee and who was financially dependent on him. The accused could say who lived at the house and who could not. He could say who came and went. He could tell [JC] how to behave, he could dictate behaviour of others such as the complainant in the house. It is clearly open to the jury to infer the complainant stayed at the house because the accused man allowed it and that he could have forbidden it.
There is evidence in my view of an imbalance of position in the house between the accused and [JC] who was there at his invitation, his employee, he was financially dependent on him and subject to his orders as to his continued presence there and his behaviour whilst there, and that the authority he had over [JC] extended to the complainant when she was in his household. The fact that the accused was liberal in allowing guests, in allowing the complainant to sleep there, to drink alcohol there, does not take away from his position in the house in terms of his ability to decided whether or not such activity should occur.
I agree with the prosecution’s submission that this is not a situation akin to an arms-length landlord-tenant relationship, for example, where [JC] rented a bungalow at the back of the house in financially independent circumstances. In my view there is evidence open of facts and circumstances known to the accused that he was a person of authority in the house and which could found an inference that on the day in question the accused was in a position of care, supervision or authority vis-à-vis the complainant.
…
The evidence of [JC] and the complainant as to their view of the accused’s authority within the house, whilst not necessarily known to the accused, is also relevant in my view as evidence of the accused’s position of authority, resulting in their view of these circumstances.

[11]Emphasis added.

In an addendum to her ruling — having adverted to certain observations of Brooking JA in Howes[12] — the judge said:[13]

[I]t does seem to me overall that using the term ‘authority’ is appropriate in this case: my finding being that there is evidence of [the applicant] having the power to direct the actions and behaviour of [JC] and the complainant whilst in his house. It may possibly be said there is also evidence of power to supervise them in those circumstances.
Further, I note the prosecution need only prove the existence of that authority at the time of the alleged offending, not that it was then being exercised.

[12]R v Howes (2000) 2 VR 141, 159 [57] (Brooking JA) (‘Howes’).

[13]Emphasis added.

With respect, the judge misdirected herself. There is a concentration in the judge’s ruling on the applicant’s position with respect to JC, and whether the applicant had authority over him. The crucial question was, however, whether there was any evidence from which it might properly be inferred that the complainant (as opposed to JC) was ‘under’ the applicant’s ‘authority’ — no suggestion of ‘care’ or ‘supervision’ having any relevance to the present case — when the applicant took part in an act of sexual penetration with her.

Even if one were to conclude that the evidence went so far as to show that the applicant did have authority over JC in a relevant sense, his authority over JC could not be extrapolated to the complainant. JEB did not (as did JC) live in the applicant’s house. She had a home of her own to which she could resort if she chose not to stay with JC in his room (where, according to the evidence, she had stayed on perhaps four occasions). JEB was not an employee of the applicant. She did not surrender wages to him in lieu of board. Indeed, beyond the fact that the applicant might have bought her (as part of a group) dinner and drinks, and served her alcohol (again as part of a group), there was no financial imperative in JEB’s relationship with the applicant. Unlike JC, there was no pressure on the complainant to stay or reside in the applicant’s house because of its convenient location to school. Although the applicant might have had authority over the ‘household’, and both JC and JEB might be expected to respect that authority whilst in the home, there was nothing to prevent JEB simply from leaving if she did not wish to behave as expected.

In one sense, however, it does not much matter that the judge might have misdirected herself. The judge’s decision refusing to grant a stay might still be upheld if there was evidence available to the prosecution which might properly found an inference that the complainant relevantly was under the applicant’s authority when sexual penetration occurred. Such evidence is, however, lacking.

The applicant’s contentions

In this Court, the applicant repeated the submission made to the trial judge that the charges were foredoomed to fail. Thus, so it was submitted, the trial judge ought to have stayed this prosecution as an abuse of process.

It was submitted that the judge had found that there was ‘clear evidence’ that the applicant was ‘a person of authority in the household’ on the basis that the house was ‘his’; he paid the bills; his stepson stayed at the house and was financially dependant on the applicant; and the applicant had a right to say who came and went from the house and set the behaviour of those who visited. The judge found that there was an ‘imbalance of position in the house’ as between the applicant and his stepson and that ‘the authority … [the applicant] … had over [JC] extended to the complainant when she was in his household’. In the addendum to her ruling, the judge made reference to the dictionary definition of the term ‘authority’ referred to in Howes,[14] and concluded:

But it does seem to me overall that using the term ‘authority’ is appropriate in this case: my finding being that there is evidence of Mr [Little] having the power to direct the actions and behaviour of [JC] and the complainant whilst in his house.

[14]Howes, 159 [57] (Brooking JA).

The applicant submitted, however, that the Court in Howes made it clear that a dictionary definition of the term ‘authority’ is ‘certainly not to be treated as if … [it] … was written into the Act’,[15] and contended that just because a jury is satisfied that a complainant is under an accused person’s ‘authority’ within a dictionary definition may not mean that that the prosecution have established a relationship of ‘authority’ for the purposes of s 48(1) the Act. It was submitted that the types of relationships that the Act is concerned with, insofar as they stand outside the specific relationships prescribed in sections 48(4) of the Act, are relationships where:

… those who, by virtue of an established and on-going relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of the relationship.[16]

[15]Howes, 159 [57] (Brooking JA).

[16]Howes, 143 [4] (Winneke P) (emphasis added). See also 144 [5] (Winneke P); 151 [29], 152 [34]–[35], 153–4 [38]–[39] and 159 [58] (Brooking JA).

It was submitted that the prosecution case taken at its highest cannot establish any capacity on the part of the accused relevantly to ‘exploit or take advantage of’ any influence that grows out of the particular relationship. In Howes, Brooking JA considered it advisable that juries be told that the purpose of offences of this nature was to protect young persons against others who might ‘exploit or take advantage of’ the particular relationship in question.[17] His Honour’s observations were pertinent because, if it were not so, a person might be convicted if he or she stood in a relationship of authority (as defined in a dictionary) with a complainant even if the accused lacked the capacity relevantly to ‘exploit or take advantage of’ that relationship.
[17]Howes, 150 [58]

In this case, so it was argued, the trial judge found that, taking the prosecution case at its highest, the applicant stood in a relationship of authority (by application of a dictionary definition) to the complainant because, in essence, he was a man of mature years who was able to control the running of his household. There was no analysis, however, of whether, taking the prosecution case at its highest, it was open to the prosecution to establish beyond reasonable doubt that the applicant had the capacity to ‘exploit or take advantage of’ this relationship (as described) so as to sexually penetrate the complainant. Had a proper analysis been undertaken, so the applicant submitted, the prosecution case would have been found lacking; since, whilst it might have been correct to find that it was open to a jury to conclude that the applicant was empowered to issue the complainant with instructions concerning whether she attended at, and how she behaved in, the applicant’s household, it is another thing entirely to conclude that it was open to a jury to find that this particular relationship had the capacity to be ‘exploited or taken advantage of’ in order to lead to an act of sexual penetration. On the basis of the evidence adduced on the voir dire and contained in the depositional material, a jury could never be satisfied to the required standard that the applicant’s ‘authority’ over the complainant was open to be ‘exploited or taken advantage of’ for the proscribed purpose.

Ultimately, the applicant contended that the evidence established that the complainant was a guest at the applicant’s house. She was present by virtue of her relationship with the applicant’s stepson. Once her relationship with the stepson is put to one side, there was no basis for the complainant to be at the house in the first place. Taking the prosecution case at its highest, it might have been true to say that there was a relationship between the applicant and his stepson that was apt to be ‘exploited or taken advantage of’; but, so it was submitted, ‘this could hardly, meaningfully or relevantly, be extended to the complainant in the manner sought’. On no rational basis could it be said that the complainant might allow herself to be sexually penetrated by the applicant so as to protect or nurture her boyfriend’s relationship with the applicant.

In my opinion, the applicant’s submissions should be accepted.

The respondent’s submissions

The respondent submitted that the critical question is whether — and only whether — the complainant was, as a matter of fact, under the applicant’s care supervision or authority at the time of the alleged offences. It was contended that the trial judge had been correct in ruling that there was evidence on which a jury could find that the complainant was under the authority of the applicant at the relevant time. The respondent submitted that the evidence concerning the relative positions of the applicant and the complainant in the house pointed to the applicant having authority over the complainant in the sense of ‘coercive power’ — the applicant could say who came and went, and dictate the behaviour in the house of JC and the complainant. The relative ages of the applicant and the complainant is important.

Further, the respondent argued that there is evidence to support a finding of ‘care supervision or authority’ apart from the applicant’s authority as head of the household. First, there is evidence that 18 year old JC was under the care supervision and authority of the applicant ‘in familial and employment contexts’, which, given the complainant’s status as JC’s 17 year old ‘girlfriend’ and her presence in the company of both JC and the applicant immediately before the alleged offences, is also relevant to her status in relation to the applicant. Secondly, there is evidence of the complainant being directly under the applicant’s care, supervision and authority independently of his position as head of the house and her position as his guest, including his provision of food and drink (including alcohol) to her (and others) on various social occasions, and his volunteering to drive her home shortly before the incident (thereby ‘isolating’ her from others including JC).

The authorities

Three authorities — Howes, Macfie[18] and Lydgate[19] — are of principal importance to the resolution of the issues in this case.[20]
[18]R v Macfie [2000] VSCA 173 (‘Macfie’).
[19]Lydgate (a pseudonym) v The Queen [2014] VSCA 144 (‘Lydgate’).
[20]See also King v The Queen [2012] VSCA 206.

Howes and Macfie were argued over successive days (14, 15 and 16 August 2000), before a similarly constituted Court (Winneke P, Brooking and Chernov JJA). Both were concerned with ‘care, supervision or authority’. In Howes, the applicant was convicted of a charge under s 48(1). The applicant was a teacher at a grammar school, and the complainant had been his student over two separate years. Sexual penetration occurred after the two had met outside the school environment at a university open day. The meeting was unconnected with the teacher and student relationship, and the complainant did not regard herself as being under the applicant’s supervision when she went with him to the flat where the sexual penetration took place. Macfie involved a 13 year old complainant who had absconded from state care. She was introduced to the applicant, a truck driver. Thereafter she slept in his home, his truck and his hut, and stayed continuously with him until she was apprehended a month or two after her escape. Sexual intercourse took place on dozens of occasions in that period. The Court held that it was open to the jury find that the applicant stood in loco parentis to the child.[21] It should be noted

that both Howes and Macfie, were decided prior to the promulgation of s 48(4).[22]^{, [23]}

[21]Macfie, [19].

[22]Macfie, however, involved a conviction under s 47A of the Crimes Act 1958, which made it an offence to maintain a sexual relationship with a child under the age of 16 to whom the offender was not married and who was under his or her care, supervision or authority.

[23]Subsection 48(4) was inserted by s 12 of the Crimes (Sexual Offences) Act 2006.

Unbound by authority, I would incline to the view that the expression ‘care, supervision or authority’ — despite the presence of the usually disjunctive ‘or’[24] — creates a genus or class, where each essential word in the expression is epexegetical one of the other. My preferred view is that each word in the collocation explains or colours the meaning to be attributed to the others.[25] In Howes, however, Brooking JA rejected the notion that the expression creates a genus,[26] as to which Winneke P said:[27]

I agree with Brooking JA that the words of the section do not create a genus; rather they should be given their ordinary grammatical meaning which, notwithstanding that they are to be read disjunctively, does not lead to the conclusion that more than one offence is thereby created. To give the words any other construction will be to circumscribe the meaning which was intended to be given to them by the Parliament. In my view, the words are apt to describe circumstances which are wider than those which demonstrate that the child complainant is, at the time of sexual penetration, actually or temporally under the care, supervision or authority of the accused (for example, baby-sitters or child-carers). The offence created by the section is also aimed at those who, by virtue of an established and on-going relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of that relationship. The words of the section cannot sensibly mean that, in a case such as the present, a child pupil ceases to be under the care, supervision or authority of his or her teacher when a teaching period concludes, or when school ceases for the day, or even when the school goes into temporary recess. It certainly cannot mean, in my view, that the relevant relationship ceases to exist because the parties agree during school session, to meet at a place remote from the school. …

[24]See D C Pearce and R S Geddes, Statutory Interpretation in Australia (8^th ed), [2.29]–[2.30].

[25]See Deeley v Stirrey [1932] VLR 159, 163 (Macfarlan J), 165 (Lowe J).

[26]Howes, 157–8 [51]–[56].

[27]Ibid 143 [4].

Winneke P made it plain that whether a complainant is relevantly under care, supervision or authority at the time sexual penetration takes place is a question of fact and degree. In order to breach s 48(1), a person — as a result of the relationship between him (or her) and the child — must be in a position of advantage over the child, and have a capacity to influence the child. It is the capacity to exploit or take advantage of the influence that the person has over the child which creates the need to protect the child from exploitation. His Honour said:[28]

It remains, of course, a question of fact and degree in a particular case, whether the complainant, at the time of penetration, is under the care, supervision or authority of the accused. But where, in cases such as the present, that relationship is an on-going one, the question is not to be answered by narrowly construing the circumstances in which sexual penetration occurred; but rather by considering whether the special position of responsibility arising from the relationship of teacher and pupil continues to subsist between the parties at the time of such penetration. The relevant question is whether a relationship of the stated kind exists at the time of penetration, and not necessarily whether the accused is actually exercising or exploiting his position of advantage at that time. The responsibility arising from that relationship cannot be turned ‘on and off’ at the whim of the parties. Rather it will subsist so long as there exists a teacher/pupil relationship which gives rise to a capacity in the teacher to exploit or take advantage of the influence which the words creating the offence imply that he or she has over the pupil and so long as there exists the need, which the offence also implies, to protect the child from such capacity for exploitation; and this is so notwithstanding that the pupil may regard himself or herself as sexually mature. The purpose of s 48 is to impose restraint on the accused, not the victim. It is for this reason that the question whether, at the relevant time, the complainant was under the care, supervision or authority of the applicant, is not to be answered by evidence on the part of the complainant that she did not regard herself as being under the authority of the applicant at that time, or by her evidence that she was not compelled to go into the premises where penetration occurred.

[28]Ibid 144 [5].

Further, in an attempt to ascribe meaning to the key expression, Brooking JA observed:[29]

What do the words ‘is under his or her care, supervision or authority’ mean? One thing is clear as regards the scope of the section: it is not confined to cases where legal rights or powers and legal duties found or even form part of the relationship. The contrary has at no stage been contended. The section does not require that the ‘care’ or ‘supervision’ or ‘authority’ be based on a legal right or power. …

[29]Ibid 157 [50].

Bearing steadily in mind that the words of s 48(1) are to be afforded their ordinary grammatical meaning, as to ‘authority’ — it will be remembered that the present case turns on whether the complainant was ‘under’ the applicant’s ‘authority’— Brooking JA said:[30]

I see no reason why a jury should not be given, for their possible assistance, the definition of ‘authority’ to be found in the Shorter Oxford English Dictionary:
4. Power to influence the conduct and actions of others; personal or practical influence.
…
But if a dictionary is cited, they should be told that other dictionaries contain somewhat different definitions and that the definitions read out to them are simply for whatever assistance they think they can get from the dictionary and are certainly not to be treated as if they were written into the Act. This should be emphasised: the words of a dictionary are not to be substituted for the words of the Act. …

[30]Ibid 159 [57] (emphasis added).

Brooking JA further observed:[31]

What more should be said to juries? It is appropriate to tell them to consider the three words in the context in which they appear, that of creating a sexual offence. They may be told that what is often called the age of consent for acts of sexual penetration is fixed by the law at 16 as a general rule but that Parliament has chosen to give special protection by raising the age of consent by two years for the protection of 16 and 17 year old children against what Parliament has called, in a general statement of its purposes, ‘exploitation by persons in positions of care, supervision and authority’. (Recourse may be had to this preamble notwithstanding that it is in the Act of 1980, not that of 1991.) Juries may be told that the obvious purpose underlying the section is to protect 16 and 17 year olds from being taken advantage of by persons who are in a position to influence them. They may be told that the section is concerned to protect young people, and often, protect them from themselves … I would prefer, with the Victorian Act, to say that the section is obviously concerned to protect 16 and 17 year olds against persons who occupy a position of responsibility towards them and that in considering the words ‘care, supervision and authority juries should bear in mind the obvious underlying purpose of the section. …

[31]Ibid 159-60 [58] (emphasis added).

The respondent’s counsel accepted that, on the facts of the present case, at best this case was one of ‘ad hoc’ authority. In Howes, Brooking JA made some observations on the topic of ad hoc relationships:[32]

It is clear from s 48(1) that the child must be in the relationship mentioned (under care, supervision or authority) at the time of the sexual act. Whether this was so is a question of fact for the jury. The relationship may be an ad hoc one, which has come into existence only on the day of the offence and which is to endure only for a few hours … The parties to the relationship will often fall into a readily definable category, but this is not essential. The relationship may well be a standing one, but again this is not essential. Examples of what I would call a standing relationship are that of schoolteacher and pupil regularly taught by that teacher, general practitioner or psychiatrist and patient receiving regular treatment; priest and person regularly receiving spiritual guidance; employer and permanent employee.
I have spoken of a ‘standing’ relationship; I might have said ‘permanent’ or ‘underlying’. While all three adjectives look to matters of degree, so that borderline cases may arise, it is still helpful to distinguish standing relationships from those that are merely ad hoc. …

[32]Ibid 161-2 [63]-[64].

Macfie made plain that a relationship of ‘care, supervision or authority’ might arise where a person is ‘in loco parentis’ to a child,[33] and is not confined to cases where alleged offenders have a lawful or legal right to have a child under their care, supervision or authority.[34] Thus, ‘a person who has assumed de facto control, supervision or authority over a child is caught by the section notwithstanding that responsibility for the child was not delegated to him or her by someone who had a lawful charge of the child and who continued in that position’.[35]
[33]Macfie, [19] (Winneke P and Chernov JA).
[34]Ibid [20].
[35]Ibid [21].

Lydgate did not involve a current standing relationship. The complainant was a 17 year old child, and a student at the school where the alleged offender was principal (although he was not her classroom teacher). Whilst he was principal, the complainant was under his care, supervision and authority. It was following his suspension as principal, however, that he engaged in a sexual relationship with the complainant.

By the time Lydgate came to be decided, s 48(4) had been enacted, although that fact does not affect the following observations. Tate JA, though differing from the majority in the result, usefully distilled what might be drawn from previous authorities (which, with respect, I adopt):[36]
[36]Lydgate, [49].

(1) While it is vital that the elements of care, supervision or authority exist currently at the time of the offending, the suspension of a standing relationship will not defeat the prohibition; neither the elements of care, supervision or authority, nor the responsibility associated with a standing relationship, can be temporarily ‘thrown off’ and later resumed.

(2) Where a standing relationship is current, the elements of care, supervision or authority do not cease away from the premises or outside, for example, school or work hours.
(3) Accepting responsibility for the welfare of a child as one’s ‘charge’ is sufficient to place a person ‘in loco parentis’ and for the elements of care, supervision or authority to be made out, most particularly the element of ‘care’, although there has been no transfer or delegation from those who at law have that responsibility.
(4) Undertaking to someone who has responsibility for a child to ‘take care’ of him or her, or the giving of an assurance ‘to supervise’ the child is sufficient for the elements to be made out, most particularly the element of supervision.
(5) A token degree of responsibility towards a fellow employee or student peer will not be sufficient to give rise to an assumption of care, supervision or responsibility.
(6) The words ‘care’, ‘supervision’ or ‘authority’ are ordinary English words, none of which is to be equated with coercive power.

Beach JA also essayed a number of propositions relevant to the interpretation of s 48 (and s 49) in Lydgate:[37]

A number of propositions may be stated about ss 48 and 49 of the Act. Some of them come from Howes.[38] First, sub-s (4) of ss 48 and 49 of the Act contains a non-exhaustive list of relationships where a child is deemed to be under the care, supervision or authority of a person. Secondly, where sub-s (4) of either section applies, and where the jury finds that the accused falls within one of the listed categories, the jury should not be instructed to look beyond sub-s (4) to determine whether there is a relationship of ‘care, supervision or authority’. Thirdly, where sub-s (4) does not apply, or where an accused does not fall within one of the listed relationships, the jury must determine as a question of fact whether at the time of relevant sexual activity the complainant was under the accused’s care, supervision or authority. Fourthly, the words ‘care, supervision or authority’ are ordinary English words, to be given their ordinary grammatical meaning. Fifthly, the words ‘care, supervision or authority’ are to be read disjunctively. Sixthly, the relationship of care, supervision or authority does not need to be based on a legal right or power. The words cover a person who has assumed de facto control, supervision or authority over a child, even if responsibility for that child has not been delegated to them by a person with legal responsibility for that child.[39]
While various relationships are described in sub-s (4) of ss 48 and 49 of the Act, the word ‘relationship’ (standing, ad hoc or otherwise) forms no part of the text of s 48(1) or s 49(1). Most recently, in Thiess v Collector of Customs & Ors,[40] the High Court has again reiterated that the task of statutory construction must begin with a consideration of the statutory text; and so must the task of statutory construction end.[41] It follows that, in construing ss 48 and 49 of the Act, one must not be distracted by concepts such as standing relationships or ad hoc relationships. The actual words used in these sections fall to be construed according to their terms, having appropriate regard to the issues of context and purpose.

[37]Lydgate, [97] (emphasis added).

[38](2002) 2 VR 141; see also the Victorian Criminal Charge Book, and in particular the bench notes at para 7.3.4.4.

[39]Howes (2002) 2 VR 141; R v Macfie [2000] VSCA 173.

[40](2014) 250 CLR 664.

[41]Ibid 671 [22].

In construing the general expression ‘care, supervision or authority’ in s 48(1), however, it is legitimate, in my view, to look to the kinds of relationships and roles categorised in s 48(4) in order to give colour and meaning to the general expression. They provide a context in which the general expression is to be interpreted, and are

descriptive of the kinds of relationships and roles to which s 48(1) is directed.[42] The effect of s 48(4) is that a child will be under the care, supervision or authority of a person — without more — simply by virtue of the prescribed relationship existing at the time sexual penetration takes place. Each of the relationships specifically described are of a kind where, because of the position or role the person occupies with respect to the child, it is to be expected that he or she has will be able to exert some control over the child and thus have the capacity to exploit that position so as to accomplish sexual penetration. The kinds of relationships embraced by the expression ‘care, supervision or authority’ must be informed by the kinds of relationships spelled out in s 48(4), and must be construed in that context.

[42]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381–2 [69]–[70] (McHugh, Gummow, Kirby and Hayne JJ); Independent Commission Against Corruption v Cunneen & Ors [2015] HCA 14, [31], [57]–[59] (French CJ, Hayne, Keifel and Nettle JJ).

There is no evidence of that kind of relationship subsisting in this case.

Analysis

The application to this Court is governed by s 297 of the CPA, which permits this Court to give leave to appeal against an ‘interlocutory decision’ of the County Court, which includes a decision to ‘refuse to grant a permanent stay of the proceeding’.[43]
[43]CPA, s 3.

Leave to appeal may be granted if the Court is satisfied that it is in the interests of justice to do so, having regard to whether the determination of the appeal against the interlocutory decision may ‘render the trial unnecessary’,[44] or ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial’.[45] Quite plainly, a determination in the applicant’s favour would fulfil both criteria.
[44]CPA, s 297(1)(b)(i).
[45]CPA, s 297(1)(b)(iv).

The principles applicable to an application such as that under consideration were laid down by the Full Court in Smith.[46] Those principles have been applied in a number of cases across several jurisdictions, and are not in doubt.[47]^{, [48]} Thus, a permanent stay of a charge on an indictment may only be granted if the charge is foredoomed to fail. For the purposes of the present application the Court should take the prosecution case at its highest. The Court must therefore approach the application as if each of the critical facts in the Summary of Prosecution Opening was capable of being made out.[49]
[46]R v Smith & Ors [1995] 1 VR 10. See also Nelson, [6]-[11].
[47]R v Leece (1996) 65 FCR 544 (Gallop, Burchett and Hill JJ); R v Petroulias (No 1) (2006) 217 FLR 242 (Johnson J); R v McGee (2008) 102 SASR 318 (Doyle CJ, Gray and White JJ); R v Azad [2007] VSC 115 (Curtain J); DPP (Cth) v County Court of Victoria (2010) 239 FLR 139 (J Forrest J); Nelson (a pseudonym) v DPP (Cth) [2014] VSCA 217 (Maxwell P, Redlich and Priest JJA).
[48]Although the decision was later overturned by the High Court in Smith & Ors v R (1994) 181 CLR 338, that was because it was held that the Full Court had held no power to entertain an appeal by the Crown against the trial judge’s decision to grant a stay. The principles upon which the Full Court purported to decide the case were not, however, put in doubt.
[49]Nelson, [6]–[11].

Recognising (as I do) that the grant of a permanent stay is an extreme remedy, which may only be granted if the prosecution case must inevitably fail, in my opinion to permit the trial of the two charges in this case to proceed would be to condone an abuse of process. There simply is no evidence in the hands of the prosecution sufficient to establish the necessary element of care, supervision and authority; or, perhaps, more accurately, given the manner in which the prosecution case is formulated, to prove that the complainant was under the authority of the applicant at the time sexual penetration occurred.

To emphasise that this is so, I have described fully the parameters of the prosecution’s case, and set out the evidence available to endeavour to prove it, in more detail than is usually desirable in an interlocutory application such as this.

Self-evidently, not every child of 16 or 17 will be under the authority of another. It is clear that the offence in s 48(1) owes its existence to the desire to prevent the sexual exploitation of children by those who have a capacity to take sexual advantage of a child (or children) as a result of their relationship or position relative to the particular child. That is, the offence is targeted at those who, because of their relationship with a child, are able to take advantage of the influence over the child which grows out of that relationship. The putative offender must occupy a position of responsibility with respect to the child. In my opinion — and conscious of the dangers of endeavouring to substitute, or provide synonyms for, the statutory formula — as a matter of ordinary language a child cannot be regarded as being under the authority of a person unless that person has the power to command or influence the thinking or behaviour of the child. Whether the necessary relationship exists — in this case ‘authority’ — is a matter of fact and degree; but, a person is not criminally liable for the sexual penetration of 16 or 17 year old child unless the relationship is extant at the time sexual penetration takes place.

There was a deal of evidence to show that JC was to some extent financially dependent on the applicant, and that he lived in the applicant’s household. But there was a singular absence of evidence that the applicant had any authority over the complainant.

The fact that the applicant (and his mother) might have suffered JEB to sleep in the house in JC’s bed on several occasions did not create any relationship by which the applicant was in a position to exercise any influence over the complainant. There is no evidence to show that, on the occasions that JEB stayed overnight, the applicant knew that she was doing so in circumstances where she had lied to her mother about where she was staying. More to the point, there is no evidence that JEB’s mother had abrogated or conceded to the applicant any responsibility for her daughter’s supervision or care. (There was evidence that, in fact, JEB’s mother would not have permitted her to stay, but none that the applicant knew that the complainant would not have been permitted to stay overnight.) Indeed, there is not one jot of evidence that the applicant in any sense assumed care or supervision of JEB, or otherwise stood in loco parentis to her. She was neither financially, nor emotionally, dependent on him. The applicant may have on one occasion paid for her dinner and drinks (as he did for others), and tolerated her drinking alcohol with others in the house, but those things did not give the applicant authority over the complainant in any relevant sense. The fact that JEB may have been a schoolgirl of 17 years does not alter that situation. Moreover, it is a somewhat strained and feeble argument to suggest that any relevant authority might have flown from the fact that the applicant had offered the complainant a lift home. The house was not out in the middle of nowhere. A bus stopped outside the door. There is nothing to say realistically that the complainant was geographically isolated, and hence subject to the whim of the applicant as to whether she was able to be transported home. No torturing of the evidence is capable of establishing that the applicant had the power to influence the complainant’s conduct at the time sexual penetration took place.

If, despite his denials, the applicant sexually penetrated JEB, his conduct would undoubtedly be regarded by a jury as morally reprehensible. In the current discourse, however, that does not much matter. To adapt the language of the High Court uttered in a different context, if there were evidence — ‘even if tenuous or inherently weak or vague’ — capable of supporting an inference that JEB was under the applicant’s ‘authority’ at the time sexual penetration took place,[50] the charges would not be foredoomed to fail.
[50]Doney v The Queen (1990) 171 CLR 207, 214–5.

There is, however, no case that could be left to a jury. Properly understood, none of the evidence — alone or in combination — is capable of establishing ‘authority’ in the sense contemplated by s 48(1). Evidence of an essential element of the offence is absent. Inevitably, the charges must fail. They must be permanently stayed.

Conclusion

For the foregoing reasons I would grant leave to appeal and allow the appeal. The judge decision refusing a permanent stay should be set aside. In lieu, I would order a permanent stay of both charges on the indictment.

A parting observation

In Howes, Brooking JA suggested that juries should be told to consider the three words ‘care, supervision and authority’ in the context in which they appear, that of creating a sexual offence. His Honour suggested that a jury may be told that the age of consent generally is fixed by the law at age 16, but that the law has chosen to give special protection to 16 and 17 year olds by raising the age of consent by two years to prevent their exploitation by persons in positions of care, supervision and authority over them. Juries may be told, his Honour said, that the obvious purpose underlying the section is to protect 16 and 17 year olds from being taken advantage of by persons who are in a position to influence them. The jury may be told that the section is concerned to protect young people, and that in considering the words ‘care, supervision and authority’ juries should bear in mind the obvious

underlying purpose of the section.[51]

[51]Above, [49].

It cannot be gainsaid that, in the ordinary course, the directions suggested by Brooking JA would be very helpful to a jury. They have not, however, found their way into the Charge Book.[52] In cases such as the present — where none of the defined relationships in s 48(4) are said to exist — in my view it is desirable that the kind of directions anticipated by Brooking JA be given. I would recommend that the sample directions in the Charge Book be supplemented accordingly.

LASRY AJA

[52]Victorian Criminal Charge Book, Judicial College of Victoria, [7.3.4.4.2A].

T FORREST AJA:

We have had the advantage of reading in draft the judgment of Priest JA. His Honour has comprehensively described the circumstances in which this application for leave to appeal has arisen. We gratefully adopt that description and will not repeat the detail except where necessary to explain our conclusion. His Honour has also comprehensively outlined the relevant legal principles, which we also adopt.

Regrettably, we are unable to agree with the reasoning and outcome proposed by his Honour. In our opinion the application for leave to appeal should be refused. We will endeavour to explain our conclusion.

Application for a stay — prosecution foredoomed to fail

The application made to the trial judge was for a stay of this prosecution on the basis that it was foredoomed to fail. Thus it was contended on behalf of the applicant that to continue this prosecution in those circumstances would be an abuse of process.

The legal principles which apply to applications for a permanent stay of

criminal proceedings make it clear that a stringent test must be applied. To stay a trial as an abuse of process is an exceptional course and should be exercised ‘sparingly and with the utmost caution.’[53] There must be ‘... a fundamental defect which goes to the root of the trial.’[54]

[53]Jago v District Court of New South Wales (1989) 168 CLR 23, 76 (Gaudron J).

[54]Ibid 34 (Mason CJ)

In a case where the basis for the application is that the prosecution is foredoomed to fail, the test is more onerous than would apply on the resolution of a submission of no case to answer at the conclusion of a prosecution case at trial.[55] The failure of some essential aspect of the case must be inevitable.[56] A stay application on the basis that the prosecution is ‘foredoomed to failure’ is not an anticipatory no-case submission.[57] It is much more than that — to be successful the applicant must demonstrate positively that the prosecution case is hopeless, plainly so and condemned to remain that way. We consider that it involves much more than establishing a good arguable no-case submission.
[55]R v Smith (1995) 1 VR 10, 14 (Brooking J).
[56]Ibid 16 (Brooking J).
[57]Ibid 28-29 (Byrne J).

During argument in this Court, senior counsel for the applicant submitted that if this trial were to proceed, at the end of the prosecution case a submission of no case would succeed. For the reasons we have expressed above we consider this approach to be incorrect. Certainly if a prosecution case is foredoomed to failure, in time, a no case submission will succeed; but that is saying no more than 10 is greater than five. It does not prove that 10 is five. Similarly an ultimately successful no-case submission does not demonstrate that the institution and pursuit of the prosecution to that point has been an abuse of the Court’s process.

We respectfully agree with the formulation of the test for such an application articulated by Byrne J in R v Smith & Ors:[58]

In my view, in a case such as the present, the power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice. Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution. (emphasis added)

[58]Ibid. It should be noted that in Smith v R (1994) 181 CLR 338, the High Court upheld an appeal by the accused from that murder trial against the determination of the Victorian Appeal Division reversing the stay ordered by the trial judge. The High Court concluded that s 14(3) of the Supreme Court Act was a bar to an appeal by the Crown against an order permanently staying a prosecution. The Court did not otherwise analyse the conclusions reached by Brooking, Byrne and Eames JJ about the circumstances in which a permanent stay of a criminal prosecution might be granted. Those judgments relied on established High Court authority.

In our opinion the debate before the trial judge and in this Court has demonstrated that it is by no means ‘plain beyond argument’ that this prosecution suffers from an ‘incurable vice’. It may well be that upon this matter proceeding and at the conclusion of all the evidence in the prosecution case, the trial judge determines to remove the case from the jury’s consideration. That does not mean the trial should be stayed before it begins. We also emphasise that our conclusions are in no way intended to reflect any view of this Court as to how that question should be dealt with if and when it arises.

The circumstances of this case

As Priest JA has observed, ordinarily it is not an offence to take part in an act of sexual penetration with a child aged 16 or 17 years unless that child is under the ‘care, supervision or authority’[59] of the person charged with the offence. Whether the complainant in this case fell within that description vis a vis the applicant was the central issue on the application for leave to appeal.
[59]Crimes Act 1958, s 48(1).

The meaning of the words in s 48(1) was considered by this Court in R v Howes.[60] In that case the Court[61] concluded that the words of the section do not create a genus but should be given their ordinary grammatical meaning. In part of his analysis of the meaning of the words of s 48(1), Winneke P said: [62]

In my view, the words are apt to describe circumstances which are wider than those which demonstrate that the child complainant is, at the time of sexual penetration, actually or temporally under the care, supervision or authority of the accused (for example, baby-sitters or child-carers). The offence created by the section is also aimed at those who, by virtue of an established and on-going relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of that relationship. (emphasis added)

[60](2000) 2 VR 141 (‘Howes’).

[61]In particular Winneke P and Brooking JA.

[62]Howes (2000) 2 VR 141, 143 [4].

Further:

It remains, of course, a question of fact and degree in a particular case, whether the complainant, at the time of penetration, is under the care, supervision or authority of the accused.[63]

[63]Ibid 144 [5].

In this case, as appears from the ruling of the trial judge, the relevant part of which is quoted in the judgment of Priest JA,^[64] her Honour correctly considered the words of the section disjunctively and then concluded that there was evidence to indicate a relationship of authority between the applicant and the complainant at the time the acts of sexual penetration occurred.
[64]At [29] and [30]

In Howes, Brooking JA examined the meaning of the individual words and expressed the following conclusions about the manner in which to approach the application of s 48(1):[65]
[65]Howes (2000) 2 VR 141, 158–159 [56]–[57].

‘Care’ is, to be sure, a word of diverse meanings, but the use of the preposition ‘under’ serves to confine its meaning to the variety which is, for example, expressed thus in the Shorter Oxford English Dictionary:
4. Charge; oversight with a view to protection, preservation or guidance.

Of course, this variety can be somewhat differently expressed, as appears from other dictionaries, but the meaning given in them is much the same. I have found difficulty in understanding what colour the word ‘care’ in the phrase ‘under the care, supervision or authority’ is said to extract from its companions. Nor do I understand with what colour ‘supervision’ and ‘authority’ are each said to be imbued by the other two words. From what was put in the submission about genus, I gather that the submission about ‘colour’ is that all three words are to be treated as requiring the existence of coercive power. This is presumably on the basis that ‘authority’ is said to carry this notion with it, although it may be on the basis that ‘authority’ and ‘supervision’ both suggest coercive power and that the meaning of ‘care’ is affected by this. I have already said that in my view none of the three expressions requires ‘coercive power’.
I see no reason why a jury should not be given, for their possible assistance, the definition of ‘authority’ to be found in the Shorter Oxford English Dictionary:
4. Power to influence the conduct and actions of others; personal or practical influence.

Brooking JA went on to say that if the dictionary definition is given to the jury for their assistance, it should be made clear to them that it is done for that reason and the dictionary definition is not to be regarded as being written into the Act.

In construing the words of s 48(1), in our opinion it is not mandatory to interpret them by reference to the kinds of relationships identified in s 48(4) as senior counsel for the applicant had argued and as Priest JA has concluded in [55] above. The kinds of relationships embraced by the expression ‘care, supervision or authority’ may be informed by s 48(4) but we regard the correct and broader approach as that described by Winneke P in the passage from his Honour’s judgment in Howes cited above, [79].

In this case the prosecution case is put on the basis that the relationship between the applicant and complainant was one of authority. In his submissions in this Court, senior counsel for the applicant contended that her Honour had misdirected herself by focussing on the applicant’s authority over JC as opposed to the complainant herself. Priest JA has concluded that she did although he acknowledges that even if that be true, her Honour’s ruling could be upheld if there were other evidence available on which to base an inference that the complainant was under the applicant’s authority when sexual penetration occurred.[66]
[66]At [33].

We respectfully disagree with Priest JA. In our view it is incorrect to say that her Honour ‘extrapolated’ the authority the applicant had over JC to the complainant. Rather, in our view, her Honour considered that to be a factor in the matrix of relevant factors that might indicate a relationship of authority between the applicant and the complainant. Those factors necessarily included the relationship between the applicant and JC given that he (JC) was the complainant’s boyfriend. We consider that the relationship between the applicant and the complainant and any authority said to attach to it cannot be properly evaluated in the absence of an understanding of any authority the applicant may have had over JC.

A brief summary of some of the relevant evidence follows. We consider this evidence in combination might provide the factual basis for a conclusion that the applicant was in a position to exploit or take advantage of the influence which grew out of a relationship of authority between them. Put another way we consider the combination of this evidence is sufficient to defeat the applicant’s contention that it is plainly clear that the prosecution case on authority must inevitably fail.

· The applicant was aged 46 and the complainant was aged 17 years and 7 months.

· The complainant was JC’s girlfriend;

· The complainant believed that the applicant was JC’s step-father and was told that by JC;[67]
[67]Transcript of the voir dire, 90.

· The complainant always made sure that it was approved that she stay at the premises and she asked JC to make sure it was approved by the applicant;[68]
[68]Ibid 92 and 105.

· The complainant and JC were relatively impecunious;

· When the complainant stayed with JC she lied to her mother about where she was staying;[69]
[69]Ibid 104.

· She seemed to suggest that she checked with JC to make sure the applicant approved of her sleeping in JC’s room;[70]
[70]Ibid 106.

· According to the complainant’s statement on the evening before the impugned sexual penetration had occurred there had been a family dinner, she had stayed overnight at the applicant’s house and on the day the offences were alleged to have been committed she became alone in the house with the applicant. He had proposed that if she waited he would drive her where she wanted to go.

· JC was aged 22. The applicant had been in a relationship with his mother;

· At the age of 18 and after the relationship between his mother and the applicant had ended JC resumed living with the applicant and worked for him assisting his plumbing work;[71]
[71]Ibid 55.

· During his pre-apprenticeship JC had worked for the applicant and was paid by the applicant;

· The complainant often came to the applicant’s house;[72]

· JC agreed the house was the applicant’s and he would have listened to his directions[73] which he had the right to give.

[72]Ibid 59.

[73]Ibid 78.

In her ruling the trial judge also referred to the financial and employment relationship between the applicant and JC and to answers given by the applicant in his record of interview concerning what he had done for JC and the complainant as well as his expression of regret at not having evicted JC from the home a month or so earlier. There is no question that the trial judge was correct to conclude that a jury would be entitled to find that the applicant was a person in authority in the household. It is significant that in the written submissions of the applicant on that topic, the following appears:

It is respectfully submitted that had a proper analysis been conducted, the Crown case would have been found lacking. Whilst it might, for the purposes of argument, have been correct to find that it was open to a jury, taking the Crown case at its highest, to conclude that the applicant was empowered to issue the complainant with instructions concerning whether she attend at, or how she behaved in, the applicant’s household, it is another thing entirely to conclude that it was open to a jury to find that this particular relationship had the capacity to be ‘exploited or taken advantage of’ in order to lead to an act of sexual penetration.

The submission went on to assert that on the evidence in the depositions and on the voir dire, a jury could never be satisfied to the required standard that the applicant’s authority over the complainant was of a type that could be exploited or taken advantage of in order lead to sexual penetration. We disagree.

In our view a jury could conclude that this middle aged man exercised some real authority over this young woman. In the passage we have set out above it was conceded on the applicant’s behalf that it would be open to that jury to conclude that the applicant determined whether the complainant stayed overnight and how she behaved in that household. It seems to us that the question of whether this relationship extended beyond that to be one that included a sexually exploitable component may well be a matter for the jury to determine. It certainly cannot be said at this stage that it is plain beyond doubt that it ought not be a matter for the jury.

Hypothetically, the submission might have had considerably more merit if sexual penetration occurred in circumstances where the complainant had been visiting the house for the first time with no understanding of who the applicant was, nor he of her. In that case there would likely be nothing about the relationship from which an inference of authority capable of exploitation for sex could be drawn.

In our opinion, and on the basis of the brief factual outline above, it cannot be said it is plain beyond argument that the prosecution case suffers from some incurable vice which condemns it to failure.

It therefore follows that we would refuse leave to appeal.

Before concluding the matter we would respectfully agree with, and adopt, the observations made by Priest JA, [68]–[69] as to the kind of assistance and directions that should be given to a jury in a case such as this.[74] We also agree that it would be helpful for the Victorian Criminal Charge Book to reflect the kinds of directions contemplated by Brooking JA in Howes, [57].
[74]Where the relationship underpinning the allegation of care, supervision or authority is not one of those identified in s 48(4).

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COURT OF APPEAL

459 Lonsdale Street, Melbourne, VIC 3000

[2015] VSCA 62

17 April 2015