Luciana Anderton (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2019 0148

LUCIANA ANDERTON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]Given this matter will proceed to trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WHELAN, PRIEST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2019
DATE OF JUDGMENT:	28 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 280
DECISION APPEALED FROM:	DPP v [Anderton] (Unreported, County Court of Victoria, Judge Johns, 17 July 2019)

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CRIMINAL LAW – Interlocutory appeal – Application for permanent stay on ground –prosecution bound to fail – Charge of sexual penetration of 16 year old under care, supervision or authority – Teacher and student at same school – Student never taught by teacher – Little evidence of any prior relationship – Act of penetration at a Year 12 end of year party – Whether prosecution case at its highest could establish authority – Application refused by primary judge – Leave to appeal refused – R v Howes (2000) 2 VR 741 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S K E Anger	Robert Davis
For the Respondent	Ms F Dalziel QC with Mr A Buckland	John Cain, Solicitor for Public Prosecutions

WHELAN JA
EMERTON JA:

We have read in draft the judgment of Priest JA. We are unable to agree with his conclusion that the primary judge’s interlocutory decision should be set aside and that the indictment should be permanently stayed.

The applicant has been charged with one count of taking part in an act of sexual penetration with a 16 year old child who was under her care, supervision or authority. The offence is provided for by s 48(1) of the Crimes Act 1958.

The offence was alleged to have occurred between 1 November 1993 and 31 December 1993. The 16 year old (‘FSD’) was at the relevant time a student at a school where the applicant was a teacher.

Statements from the principal of the school at the time the depositions were taken, and from the principal of the school in 1993, reveal that the applicant and FSD were respectively a teacher and a student on the same campus of the school in 1993, and in 1994 until FSD left the school in March of that year.

The applicant has maintained in a record of interview that she never taught FSD. There is no evidence which contradicts that.

The applicant sought a permanent stay of the prosecution on the basis that the case against her was fatally flawed as the prosecution evidence, taken at its highest, could not establish that FSD was under her care, supervision or authority at the time the act of sexual penetration took place. A County Court judge ruled against that application and the applicant now seeks leave to appeal that ruling and an order that the prosecution be permanently stayed.

Priest JA has set out in some detail the procedural history, the material in the depositions, the judge’s ruling and the submissions made before us. We will not repeat that detailed account. It is necessary for us to amplify some matters in the depositions which seem to us to be relevant.

Further matters in the depositions

The act of sexual penetration which is the subject of the charge occurred late at night outside a party. The circumstances whereby the applicant came to be present at that party were dealt with by her in her record of interview. Amongst other things, she said:

I know that it was the last day of Year 12 and I know that I was allowed to have the day off with the Year 12s and was basically drinking pretty much all day. And then that party was that night.
…
I think we had gone drinking in a pub in the morning. I think we had been drinking during the — sorry, I — I can’t remember.
…
We’d been drinking through the day at the house in Grey Street where the party was. I then think that I went home and then went back to the party.

On this issue the statement of the student who had organised the party, ‘TRB’, reads as follows:

I remember that the last day of year 12 in 1993, my first year of Year 12. I organised an end of Year 12 party at 124–126 Grey Street Traralgon. This property was owned by my parents and Jamie and Heidi were renting this from them. The house was an old cladded Victorian House on a big enormous block. The house was quite run down perfect for an end of year school party. You walked in the front door into a big long hall. There were four bedrooms off the hall some with fireplaces. The kitchen, lounge and bathrooms were all at the back of the house.
The party started first thing in the morning with all of us together and having a few drinks. There was myself, Heidi, James, Fudge (Chris), his new girlfriend Kim who he later married, Billy Scott, Daniel Fleming, Aaron McDonald and Danny Tulen.
We all then went to school where we had a dress up day. At school there were water fights and all the usual fun things which occur on the last day of school. That day [the applicant] let Heidi and I into the staff area to tidy ourselves up and get changed into different tops. Looking back I still think that was odd, that we got this privilege. At that time when Heidi and I were in the staff room with [the applicant] we were talking about the party continuing after school. We had arranged a group party between our school, CRC Catholic Regional College and Sale Grammar. [The applicant] decided that she would come to that party too. She wasn’t actually invited.

The circumstances of the sexual encounter itself were set out in some detail by the applicant in her record of interview. There was a significant difference in age and one participant was a teacher and the other a student, but there is no indication of any exercise of authority or influence by the applicant over FSD, or that FSD was in any sense induced to behave as he did as a result of the applicant’s position as a teacher.

In the record of interview, the applicant referred to her knowledge and dealings with FSD both prior to and after the party. In substance, prior to the party, the applicant was aware that FSD was a student at the school. She was aware of him as a person who was ‘part’ of a ‘crew’ of senior students which included students she had taught and with whom she had a relationship of friendship and was accustomed to ‘party’. She referred to having seen FSD at a night club on one occasion prior to the party.

Relevant legal principles

A prosecution can only be permanently stayed on the ground relied upon here if, taking the prosecution case at its highest, it is ‘plain beyond argument’ that the case is ‘foredoomed to fail’, that it is ‘inevitable’ that some essential aspect of the case will not be established, and that it is ‘hopeless, plainly so and condemned to remain that way’.[2]
[2]Little (a pseudonym) v The Queen (2015) 45 VR 816, 839 [73]–[76].

The only contentious issue in relation to this prosecution case is whether, at the time of the sexual encounter, FSD was under the ‘care, supervision or authority’ of the applicant. It seems to us that the relevant issue here is whether there is a case which is not hopeless that FSD was under the applicant’s ‘authority’. There does not seem to be any basis for contending that FSD was under the applicant’s ‘supervision’ or ‘care’ at the time of the sexual encounter.

On this issue the legal principles were set out in R v Howes[3] by Brooking JA, with whom Winneke P agreed adding some observations of his own, and with both of whom Chernov JA agreed.
[3](2000) 2 VR 141 (‘Howes’).

The jury may be told that ‘authority’ means, according to its dictionary definition, the power to influence the conduct and actions of another.[4] It does not need to be a legal power.[5] However, its meaning must be considered in the context in which it appears, having regard to the purpose of the legislation, being to protect young people from being taken advantage of by persons who are in a position to influence them.[6] Being in a position to take advantage of or ‘exploit’ the relationship is an incident of ‘authority’ in the relevant sense.
[4]Ibid 159 [57].
[5]Ibid 157 [50].
[6]Ibid 159 [58].

The authority in this sense may exist as a consequence of a relationship which might be an ‘ad hoc’ one, on the one hand; or an ‘established and ongoing’ or ‘standing’ one, on the other.[7]
[7]Ibid 161 [63] per Brooking JA, who uses the expression ‘standing’. Winneke P referred to an ‘established and ongoing relationship’: 143 [4].

Whether the requisite authority exists by virtue of the relationship is a question of fact and degree.[8] However, as a general proposition, the responsibility arising from the relationship between teacher and pupil will continue to subsist between them outside of school premises and school hours and cannot be turned ‘on and off’ at the whim of the parties.[9]
[8]Ibid 161 [64] (Brooking JA), 144 [5] (Winneke P).
[9]Ibid 144 [5] (Winneke P).

The relevant issue is whether the relationship is such that the applicant is ‘in a position’ and has the ‘capacity’ to influence.[10] It is not necessary to prove the applicant actually exercised that influence,[11] nor is it necessary to prove consent was induced by the relationship.[12]
[10]Ibid 159 [58] (Brooking JA), 143 [4]–[5] (Winneke P).
[11]Ibid 160 [60] (Brooking JA), 144 [5] (Winneke P).
[12]Ibid 160 [61].

In the context of teacher and student, the requisite authority may exist notwithstanding that the sexual activity occurs in circumstances unrelated to the school, outside of school hours, away from the school, or, specifically, between two school years. Brooking JA dealt with that issue in some detail.[13] He then concluded more generally:

In my opinion, if a jury is satisfied that a standing relationship of care, supervision or authority was established between two persons, and that it still existed as a standing relationship on the day on which penetration took place, the jury may convict notwithstanding that the occasion on which penetration took place was not connected with and did not arise out of the relationship and that the parties were not acting in any sense in the capacities which gave rise to the relationship.[14]
[13]Ibid 162–4 [66]–[68].
[14]Ibid 165 [71].

Analysis of the prosecution case on the issue of ‘authority’ taken at its highest

In our opinion, the prosecution evidence as it stands establishes the following:

(1)Although the applicant never taught FSD, they were respectively teacher and student at the same school (and on the same campus of that school) throughout the year (1993), at the end of which the sexual encounter took place, and at the time of the sexual encounter, they each intended to continue attending the school in the following year (1994) as teacher and student respectively.
(2)The applicant knew FSD as part of a ‘crew’ of senior students, amongst whom were students she had taught, who she considered to be friends, and with whom she ‘partied’. FSD was part of a friendship group which included students she had taught.
(3)The party where the encounter took place was the ‘continuation’ (TRB: the party continuing after school) of Year 12 ‘last day’ celebrations in which the applicant had participated throughout the day with some form of permission from school authorities (RoI: I was allowed to have the day off with the Year 12s).

Priest JA has dealt in some detail with issues of post offence conduct. We do not consider that that evidence (assuming it were properly admitted) assists the prosecution on the issue of authority. The conduct reveals a consciousness on the applicant’s part that she had done something seriously wrong in her sexual encounter with FSD, but, as the deposition of the principal of the school in 1993 makes sufficiently clear, she is very likely to have considered her conduct to be wrong whether authority in the requisite sense was present or not.

The fact that the sexual encounter occurred outside of school hours, perhaps between school years, and that there is no evidence that the applicant exercised influence over FSD, is not fatal to the prosecution case. The jury will have to decide as a matter of fact and degree whether there was a standing relationship between the applicant and FSD as a consequence of which the applicant was in a position or had the capacity to exercise influence over him.

The applicant had never taught FSD, but she knew that FSD was a student at her school. It is not clear what dealings she had had with him before the incident. Her reference in the record of interview to having seen him once at a night club is not necessarily to be interpreted as a statement that that was the only time she had seen him. We do not know if, and to what extent, their paths crossed on the senior school campus, other than that the applicant had not been FSD’s teacher. They were on the same campus for the full year prior to the sexual encounter. FSD was part of a friendship group of students, some of whom the applicant had taught, and with whom the applicant socialised.

By virtue of these same circumstances, the inference is open to be drawn that FSD knew that the applicant was a teacher at his school.

Each of the applicant and FSD intended to continue at the school the following year. The inference is open to be drawn that they were each aware she could be his class teacher in the future.

The party itself where the sexual activity took place was not a school function, but it could not be said to be entirely unrelated to the applicant’s role as a teacher. The party was the continuation of Year 12 ‘last day’ celebrations, in which she had participated throughout that day, and she says in her record of interview that she did so with some form of permission from the school authorities.

In our opinion, taking all of these factors together, it cannot be concluded that it is clear beyond argument that the prosecution will inevitably fail to establish that the applicant had ‘authority’ over FSD in the sense that her position as a teacher at his school meant that she had been in a position to, or had the capacity to, influence him in the requisite sense.

Conclusion

Although our analysis of the relevant factual matters capable of being established, taken at their highest, differs somewhat from that of the primary judge, in our opinion his ruling that the prosecution ought not to be stayed was correct.

We would refuse the application for leave to appeal.

We would observe, however, that the prosecution faces significant obstacles in establishing beyond reasonable doubt the existence of the requisite authority at the relevant time, based on the evidence that we have seen. The events in question are now more than 25 years old and FSD, who made no complaint about the incident to anyone at any point in time other than to say that having sex with the applicant ‘wasn’t that bad’, is long dead. Despite the likelihood that the applicant and FSD shared the knowledge that the applicant was a teacher and FSD a pupil at the same

school and that there was a possibility that she would be his teacher the following year, the circumstances described might well be seen to raise real doubts about the capacity of the applicant to exploit or take advantage of the influence she is presumed to have had as a teacher at the school FSD attended.

PRIEST JA:

Introduction

An Indictment filed in the County Court charges the applicant with taking part in an act of sexual penetration with a 16 year old child, ‘FSD’, between 1 November and 31 December 1993, FSD allegedly being under her care, supervision and authority.

Throughout the charged period, s 48 of the Crimes Act 1958 provided:[15]
[15]See now s 49C of the Crimes Act 1958. Section 37 of the Act now sets out circumstances in which a child is under care, supervision and authority. No equivalent provision existed at the time of the relevant offence: see [84] below.

48. Sexual penetration of 16 year old child
(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.
Penalty: Level 8 imprisonment.
(2) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the accused believed on reasonable grounds—
(a) that the child was aged 18 or older; or
(b) that he or she was married to the child.

In the County Court, on 15 July 2019, the applicant sought a permanent stay of the Indictment on the basis that the charge against her was foredoomed to fail. Following argument, on 17 July 2019 the judge refused a permanent stay (‘the ruling’ or ‘the interlocutory decision’). Pursuant to s 295(3)(b) of the Criminal Procedure Act 2009, the judge certified that the interlocutory decision was of sufficient importance to justify it being determined on an interlocutory appeal.

By a notice dated 24 July 2019, the applicant seeks the leave of this Court to appeal the judge’s decision refusing a permanent stay. The application is supported by a single ground which asserts that the judge ‘erred by failing to stay the Prosecution (sic) made against the Applicant as an abuse of process on the basis that the prosecution was foredoomed to fail’. Under the umbrella of that ground, during oral argument in this Court the applicant’s counsel was permitted to argue that certain evidence relied upon by the prosecution as incriminating conduct could not be used to prove the essential element of ‘care, supervision or authority’.

As will become clear, I am of the view that the judge erred in failing to order a permanent stay. I would grant leave to appeal; allow the appeal; set aside the interlocutory decision; and in lieu, order a permanent stay. My reasons follow.

The prosecution case and the available evidence

It is not contested by the applicant that she took part in an act of sexual penetration with FSD, the principal issue in the applicant’s pending trial being whether the prosecution can establish that FSD was under the applicant’s care, supervision or authority when the admitted sexual penetration took place.

The prosecution case is that, in 1993, the 27 year old applicant — she is now aged 53 — was employed as a permanent teacher at a secondary college in a Latrobe Valley town (‘the college’). She commenced employment at the college in February 1990, and taught English Literature, English and Dance on the Senior Campus (Years 10, 11 and 12).[16] The college had both a junior and senior campus, and was the product of an amalgamation of a High school and a Technical school which took place in 1993. There were 53 full-time and part-time teachers at the senior campus where the applicant taught in 1993. The college’s junior and senior campuses were located in different streets of the town.
[16]The applicant also co-ordinated the ‘Rock Eisteddfod’, but there was no suggestion in the evidence that she had any contact with FSD as a result of this activity.

Throughout the 1993 school year, the alleged victim of the applicant’s offending, FSD, was aged 16 (having turned 16 in January of that year). He had been a student of the college since 1988 (when he commenced Year 7 at what was then the High school), and had started Year 11 at the beginning of 1993.[17] FSD committed suicide in March 1999, without apparently ever having complained to any person in authority that he had been the victim of sexual predation by the applicant.
[17]In a record of interview with police the applicant said that she thought him to be in Year 10 in 1993.

‘TRB’ also attended the college. She commenced Year 11 at the college in 1992, and completed Year 12 over a two year period between 1993 and 1994. In 1994, TRB was in the same Year 12 class as FSD.

On the last day of the Year 12 school year in 1993 — said to be ‘late November or early December’ — TRB organised an end of year party at a property owned by her parents, the property comprising a large block and an old, cladded Victorian house. Guests included individuals drawn from three secondary schools in the regional area.

Several hundred people attended the party, including the applicant, FSD and at least one other teacher from the college. TRB claims to have observed the applicant ‘corner’ FSD in the kitchen, and to have ‘wrangled’ FSD from the applicant. At that time, according to TRB, FSD was her ‘go to boyfriend’, they being ‘a happening item’.[18] TRB was angry because she was supposed to be with FSD that night, but he was constantly being ‘trapped’ by the applicant.[19]
[18]In her statement to police, TRB said that, after they left school, ‘[FSD] and I maintained a friendship and sometimes sexual relationship up until 6 months before he died’. She said that, ‘[FSD] and I had a very honest and close sexual relationship but we were never a “couple”’.
[19]TRB, in her statement to police, said: ‘There was one other teacher there that night who I can’t recall who actually said to me, “give up [TRB] you’re not going to get near him tonight”. I went home to my son and my parents and went to bed’.

The available details of the relevant act of sexual penetration emerge solely from the account given by the applicant in a record of interview conducted by police on 17 January 2017, in which she —

· said, ‘I just remember being at a party and drinking and running around and socialising and, yeah, every time I would turn around [FSD] would be there’;

· told police that on one occasion that she turned around, FSD was there and she ‘instigated’ a kiss, that first kiss being ‘just a brush kiss as [she] walked past’;

· added that she kissed FSD again after he had followed her into a room where she ‘snog kissed him’;

· told police that they then walked outside and to the side of the house; and

· stated: ‘We then kissed and then he turned me around to face the wall and then he lifted up my dress and he pulled my undies down and then there was some penetration for a few seconds and then he pulled my undies back up and turned me back round. Was it a penis? Was it fingers? I actually really don’t know’.

As I have mentioned, FSD committed suicide more than twenty years ago, in March 1999. According to TRB, the applicant telephoned her at work the next day. In a statement made on 22 August 2017, TRB gave the following version of the conversation:

I had no further contact with [the applicant] after I left school. The day after [FSD] died she rang my work place and asked to speak to me. Another hairdresser answered the phone. When I picked up the phone she said ‘hello [TRB] this is [the applicant]’. She then went on to say that she needed to say something to me. She said that she needed me to know that [FSD] didn’t kill himself because of her. I was quick to respond that I knew that already. She asked why and I told her that she was not important enough for anyone to kill themselves over. I then hung up the phone. I never spoke to her again. …

Seventeen years elapsed before, in 2016, TRB reported the matter to police, her claimed motivation for the report being that the applicant was still teaching at the college.

At the urging of police, TRB initiated a ‘pretext’ telephone conversation on 10 January 2017.[20] The applicant told TRB that what had happened with FSD had not reoccurred, it having been ‘a skeleton in [her] closet at a time that [she] was really suicidal’. She told TRB that she was ‘sort of the opinion that [she] might actually go and see a solicitor and talk it through with them and then get that skeleton out of the closet’. A week later, on 17 January 2017 at 11.45 am, unaware that there was a police investigation on foot, the applicant, upset and crying, handed herself in to a regional police station.
[20]She had tried unsuccessfully to take part in a pretext conversation with the applicant on 7 November 2016 and 9 January 2017.

In a record of interview that police conducted with the applicant later that day, 17 January 2017, at 1.25 pm, there was little exploration of any facts which might bear on the question of whether FSD was under the applicant’s care, supervision or authority when the relevant act of sexual penetration took place.

The applicant told police that in 1993 she was a teacher of the Year 12 students and had a friendship with one of the Year 12 boys, ‘HJ’, and his parents. On the ‘last day of Year 12 [she] was allowed to have the day off with the Year 12s’. In the morning she went to the pub drinking with Year 12s — ‘some of them’ were her students — and in the evening she went to the party. HJ, and two other of her students from her class that she was ‘more friendly with’, ‘H’ and ‘FC’, were at the party. TRB, the applicant said, was a friend of H’s, but not a friend of hers. When asked what her ‘feelings’ were towards FSD at the time of the party, the applicant said that she was ‘struck’ that he had noticed her and was ‘flattered’. Significantly, the applicant told police that she ‘had never taught’ FSD, the following further questions and answers bearing on her interaction with him:

Q. Now, [FSD], tell me about [FSD], who’s [FSD] … to you?
A. He was just one of the boys that hung around with [HJ] and [FC’s] group of friends. And I would go out a party (sic) or to – I remember seeing him in a club one night. I never taught him I just knew him as part of that crew.
Q. He was a student at the school ---
A. Yeah, yeah.
Q. And you said you saw him out another night.
A. I’d seen him – I know that I did have – I had seen him out at … a venue.
Q. Yeah. Was this before this party or after?
A. I think before and I know after the party and we’d sort of talked a couple of times but that was it but when [HJ] came out [HJ] was in a band and [FSD] had joined that band and they used to have band practice out at the house in [a regional town].^[[21]] And I – and when he was there I would either be elsewhere in the house or I would go out.
[21]HJ and his parents had lived at the house where TRB hosted the party. After the house was sold, HJ lived with the applicant ‘for a couple of months’, occupying ‘the spare room’ of her house. He moved in when he had turned 18, ‘not long after the November party’.
…
Q. [I]t was a Year 12 party.
A. Yeah.
Q. Was [FSD] in Year 12 that year?
A. No.
Q. No. What year was he in?
A. I think he was in Year 10. … I know he was in Year 10.
…
Q. You know he was in Year 10 ---
A. Yeah, yeah.
Q. --- at the time?
A. Yeah.
Q. At 1993?
A. At the end of Year 10 – yeah, he was in Year 10. He was a couple of years younger than them.
…
Q. [This] groups of kids [HJ], [H], [FC], [FSD] and [TRB] were they the group of students that you partied with – you’re talking about party times?
A. I only ever – no, the only – the only one of those kids – well, I partied with [HJ], [H] and [FC] after they’d finished Year 12 and [HJ] had moved in ‘cause [FC] had his licence and so him and [H] used to come out. But I never partied with the others that was just a one-off party that I had been to that I remember and recall. I’d seen them out – I know I’d seen [FSD] out and some of the other boys ‘cause there were others and I don’t remember their names.

In a statement to police, the college’s current Senior Campus Principal provided the following putative evidence concerning the possible contact that the applicant may have had with FSD at school in the period between 1992 and 1994:[22]
[22]Emphasis added to this and following passages.

3. [The applicant] was first employed by the Department of Education at [the former] High School on a fixed term contract as a Graduate Teacher on 1^st of February 1990. [The applicant] was later employed as a Permanent Teacher at [the former] High School on 15^th of September 1992.
4. In regards to the specific years in question (1992–1994), [the applicant] was employed at [the former] High School (now [the college] East (Junior) Campus) in 1992 and after the merge of [the High] School and [Technical] School, she was employed at [the college] from 1993–1994. In November 1992 [the applicant] submitted a request to transfer schools to another region but ultimately remained at [the college] in 1993 and 1994. There are no definitive records of which campus [the applicant] was employed at in 1993 and 1994 or of what classes she taught. There are no records of [the applicant] holding any leadership position other than Classroom Teacher from 1990–1994.
5. On the 18^th of June 1994 [the applicant] took a Voluntary Departure Package and terminated her employment with the Department of Education.
…
10. [FSD] was enrolled in Year 7 at [the former High school] on 4^th of February 1988 and exited [the college] on the 15^th of March 1994.
11. Regarding the nature of the contact [the applicant] would have had with [FSD] during the specific years in question, in 1992 [the applicant] and [FSD] were on different campuses and they would not have had any contact during school times at all. As they were on separate campuses [the applicant] would not have been a replacement teacher for a class that [FSD] was in.
12. Throughout 1993–1994, if [the applicant] and [FSD] were on the same campus they may have crossed paths in corridors or in the yard on an occasional basis. If they were on the same campus, [the applicant] may have been [FSD’s] teacher or replacement teacher, however there are no records of which students had which teachers from this period. Throughout 1993–1994, if they were on different campuses they would not have had any contact during school time at all. I do not know if the campuses ever merged for things such as school assemblies or sports carnivals.
…

Finally, the college’s Principal in 1993 offered the following proposed evidence in a police statement:

5.   Prior to the school amalgamating [the applicant] was a teacher at the [the former] High School. She taught English and Humanities. When the school amalgamated in 1993 [the applicant] I believe taught at the Senior Campus, English and English Literature.
6.   [FSD] was a student at the senior campus. I think he was at [the former] High School prior to the amalgamation in 1993. In 1993 [FSD] was a student in Year 11. His official form group was 11A.
…
8.   I was not aware of any social interactions between [FSD] and [the applicant] outside of the school environment. There is a probability that [the applicant] may have taught [FSD] directly in an English Class. Her main responsibilities were to the teaching of English and English literature across Year 10, Year 11 and Year 12.
9.   We used to try and give the teachers a spread of classes across the year levels in the one campus. She would almost certainly have taught at least one Year 12 class. Being on the same campus they could have known each other, spoken to each other or crossed paths.
10. I was not aware of any end of Year party in 1993. Obviously staff often knew they would happen but they were privately arranged and organised by the students or parents. Generally, all staff were discouraged from attending any outside student functions. There was no written policy within the school around this expectation but that was the known culture.
…
12. A teacher has duty of care to all students within the school regardless of campus or whether they were in their class or not. The school would not have had a specific policy around this but it was a prevailing culture held within the whole school and across the whole of the education sector.
…
14. As a teacher there are behaviours that are just known to be not allowed. Behaviours including, socially interacting with students at private student functions, drinking alcohol with students and engaging with students in a sexual manner regardless of whether it was on or off school grounds.

The evidence taken at its highest

When assessing whether there is any evidence that FSD was under the applicant’s care, supervision or authority when the act of sexual penetration took place, it is necessary to take the evidence favourable to the prosecution case at its highest.

Taking the evidence at its highest, there is no evidence that the applicant ever taught FSD. In her record of interview, the applicant said that she had never taught FSD. None of the evidence in the hands of the prosecution contradicts that assertion. Indeed, the admissible evidence available to the prosecution tends to point in the other direction.

The applicant, who taught Year 12 in 1993, also said that she was friendly with HJ’s parents, and that she had a friendship with HJ, H and FC, who were Year 12 students at the college (TRB being a friend of H’s). FSD, she said, was part of HJ’s and FC’s group of friends, and she knew him to be ‘part of that crew’. Prior to the party in 1993, she had seen FSD in a club or a venue one night. (After the party, she told police, she had spoken to FSD a couple of times when he had joined HJ’s band and they practised at her house. Self-evidently, this evidence has no bearing on whether FSD was under the applicant’s care, supervision or authority when sexual penetration took place.) Once again, none of the evidence in the hands of the prosecution contradicts these statements.

During the police interview, the applicant also told police that on the last day of the school year she was permitted to have the day off with the Year 12 students. In the morning she went to the pub drinking with Year 12 students, some of whom were her students, and in the evening she went to the party. These statements are not contradicted by other evidence.

The evidence available from the current Senior Campus Principal is that in 1992 the applicant and FSD were on different campuses. They would not have had any contact at all during school times. Given that they were on separate campuses, the applicant would not have been a replacement teacher for any class that FSD was in. The Senior Campus Principal speculates that, if the applicant and FSD were on the same campus throughout 1993, they may have crossed paths in corridors or in the yard on an occasional basis. He also speculates that if the applicant and FSD were on the same campus, the applicant may have been FSD’s teacher or replacement teacher. Of course, none of this is capable of rebutting the applicant’s assertions that she never taught FSD, and that, prior to the end of year party in 1993, she had only seen FSD once at a club or venue.

The college Principal in 1993, offered the ambivalent observations that: ‘There is a probability that [the applicant] may have taught [FSD] directly in an English Class’. He also stated the obvious when he remarked: ‘Being on the same campus they could have known each other, spoken to each other or crossed paths’. None of the foregoing, however, contradicts the applicant’s claims that she did not teach FSD, and that, prior to the party, she had only seen FSD on one occasion at a club or a venue.

Further, the college Principal in 1993 makes clear that TRB’s party was not an organised school function. He states that staff were ‘generally’ discouraged from attending outside student functions. This was the ‘expectation’ or the ‘known culture’, but there was no written policy. The former Principal also states that a teacher has a ‘duty of care to all students within the school’. This was ‘a prevailing culture’, but the school ‘would not have had a specific policy around this’. He also said that a teacher is not allowed to indulge in certain behaviour, including ‘engaging with students in a sexual manner’.

The judge’s ruling

In his ruling refusing a permanent stay of the Indictment, the judge observed that the only issue in the trial is whether the element of ‘care, supervision or authority’ could be made out, sexual penetration (and FSD’s age) being admitted.

Having observed that the ‘admissibility and use’ of the supposed evidence of incriminating conduct needed to be determined before the stay application could be decided, his Honour held that TRB’s telephone conversation with the applicant in 1999, and the pretext conversation on 17 January 2017, ‘are not properly considered as incriminating conduct but rather implied admissions against interest’ by the applicant, in that ‘each of the telephone conversations are [sic] capable of being regarded as implied admissions to an acknowledgement of the wrongfulness of her conduct to her position as a teacher at the time’. Discussing the applicant’s attendance at the police station and her record of interview, the judge then said:

In my view if the interview itself can be construed as an admission that her role as a teacher placed her in a position of care, supervision or authority, then the complicating addition of directing the jury to consider her attendance at the station as incriminating to the same effect is unnecessary and undesirable.
If the interview cannot be so construed, in my view the attendance at the station for interview is incapable of satisfying s 18 and s 20(1)(b) of the Jury Directions Act 2015. …

The judge then set out seven features which he seems to have regarded as determinative of the issue confronting him:

Having considered the issue of implied admissions and incriminating conduct, I have concluded that the Prosecution case taken at its highest reveals the following matters that have relevance to the issue of a finding of care, supervision or authority:
(1) The [applicant] was a teacher at the senior campus of [the secondary college] in 1993.
(2) The [applicant] had taught at the school for approximately three years ... She taught English and English literature. She also taught Dance and Drama according to [TRB].
(3) [FSD] was at the senior campus in 1993. Whilst he may have been at the same school as the [applicant] the previous year, it is uncertain if he in fact was.
(4) The [applicant] developed friendships with a number of students, some of whom were her direct students and the boundaries between teacher and student were clearly blurred. [FSD] was part of the broad friendship group, although not, it would seem, as a friend of the [applicant]. It can be inferred that he was aware who the [applicant] was of course. The [applicant] admits having seen him around socially and says that she was flattered when he spoke to her at the party.
(5) The inferences open from the evidence of [TRB] that [FSD] was the subject of humiliation to some degree, whether self-imposed or as a result of jibes from others or both. There is sufficient in the evidence to suggest that amongst the students the fact of the sexual liaison with a teacher was to some extent scandalous and salacious.^[[23]]
(6) The Prosecution intend to lead evidence establishing the duty of care of all teachers to all students in the school, as well as some pronouncements on teachers socialising with students outside of school. These matters cannot amount to establishing the element of care, supervision and authority. However, I am of the view that they are appropriate considerations in a case of this type for informing an assessment of the relationship between a teacher and a student at the school whom they do not teach and do not have any other teacher/student relationship with.
(7) Similarly, I am of the view that the fact that [FSD] was in the [applicant’s] class the following year has limited relevance to the consideration of the relationship in 1993. The prospect that a teacher at a school may become a student’s teacher at some time in the future is not relevant, however, to an assessment of whether that relationship is one of care, supervision or authority.

[23]In her statement to police, TRB indicated that she and her friends teased FSD after it was discovered that he had sex with the applicant. Later, she said, FSD admitted that he had sex with the applicant and that ‘it wasn’t that bad’.

His Honour referred to a number of authorities — including Howes,[24] Little[25] and Smith[26] — and concluded that

the discussion we have had over the past two days demonstrates that it is by no means plain beyond argument that this prosecution suffers from an incurable vice. There is a jury question there to be determined, and evidence upon which the question can be determined, and accordingly the application for a permanent stay is refused.
[24]R v Howes (2000) 2 VR 141, 143–4 [4]–[5] (Winneke P), 159–60 [58], 161–2 [63]–[64] (Brooking JA) (‘Howes’).
[25]Little (a Pseudonym) v The Queen (2015) 45 VR 816, 832–3 [46] (Priest JA), [73] (Lasry and Forrest AJJA) (‘Little’).
[26]R v Smith [1995] 1 VR 10, 28–9 (Byrne J) (‘Smith’).

Competing submissions

In this Court, the applicant’s counsel submitted that, while s 37 of the Crimes Act 1958 now provides a non-exhaustive list of relationships where a person is deemed to be under the ‘care, supervision or authority’ of another,[27] at the time when the sexual encounter in this case took place, authority dictated that the words were to be given their ordinary grammatical meaning and were to be read disjunctively. Citing Howes, it was submitted that the words are intended to encompass those who, by virtue of an established and ongoing relationship involving care, supervision and authority, are in a position to exploit or take advantage of the influence which grows out of the relationship. While it is not necessary that the occasion on which penetration took place was connected with, or arose out of the relationship, the jury must be satisfied that there was a standing relationship existing at the time which penetration took place. Acknowledging that there are ad hoc circumstances that may give rise to the relevant relationship, the applicant submitted that the prosecution in this case do not contend that any such circumstances are present. Rather, so the applicant submitted, the prosecution contends that because of particular matters which are in play by virtue of the applicant being a teacher at the same school as FSD, a relationship of care, supervision or authority may be inferred.
[27]See [84] below.

So far as the available evidence is concerned, the applicant’s counsel submitted that there is no evidence that she had any leadership role (other than classroom teacher) in the period between 1990 and 1994. In 1992, FSD and the applicant were situated at different campuses, and would not have had any contact during school times at all. Throughout 1993 and 1994, they may have crossed paths in corridors or in the yard on an occasional basis. In her record of interview, the applicant said, ‘I never taught him I just knew him as part of the crew’. It was submitted that the evidence suggests that the applicant had never taught FSD before the sexual penetration occurred, and that her contact on the school campus (if any) would have been extremely limited. Thus, the facts of this case differ from Howes, where the applicant had regularly taught the complainant in the period leading up to and including the time when penetration took place. The circumstances of the present case do not establish the kind of ad hoc relationship envisaged by Brooking JA in that case.[28]
[28]Howes, 161 [63].

With respect to the evidence relied upon as incriminating conduct is concerned, the applicant submitted that on the issue of care, supervision or authority it is intractably neutral. It is not capable of supporting any inference as to the nature of the relationship between FSD and the applicant.

The respondent submitted that the applicant has not demonstrated that the judge’s exercise of the discretion not to stay the trial was infected by some error or was so unreasonable or unjust that it should be overturned on appeal. It was submitted that the power to order a permanent stay should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice.

Relying on Howes, counsel for the respondent submitted that the offence of sexual penetration of a 16 or 17 year old person under care, supervision or authority is aimed at those, who by virtue of an established and ongoing relationship involving care, supervision or authority are in a position to exploit or take advantage of the influence which grows out of that relationship. Whether the applicant was in such a position vis-à-vis FSD is a question of fact for the jury to determine. The respondent’s counsel submitted that the judge was correct to rely on the facts that he did. Objectively, it would be open to a jury to find as a matter of common knowledge or experience that all teachers on a school campus would be expected to provide a measure of care and support and, where necessary, supervision and authority to all students, whether on school grounds or in the course of extra-curricular activities. FSD was not finishing school when the sexual encounter occurred, but was afterward going to continue at the school campus where the applicant taught, so that there was a clear power imbalance between them.

Finally, as I understood the submissions, counsel for the respondent did not endeavour to support any of the three matters initially relied upon by the prosecution[29] as providing a basis for establishing incriminating conduct from which the element of care, supervision or authority could be inferred. That did not, however, impinge upon the correctness of the judge’s ruling refusing the stay.
[29]See [70] below.

The supposed evidence of incriminating conduct

It is convenient to turn first to the judge’s ruling with respect to the supposed evidence of incriminating conduct advanced by the prosecution.

By virtue of s 18 of the Jury Directions Act 2015 (‘JDA’), conduct means a lie, or any other act or omission, of the accused, after the event (or events) alleged to constitute a charged offence; and incriminating conduct in the present context means conduct that amounts to an implied admission by the accused of having committed an offence (or an element of an offence) charged. And s 20(1)(b) of the JDA provides that the prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless ‘the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct’.

In the present case, the applicant has admitted that she took part in an act of sexual penetration with the 16 year old FSD (to whom she was not married). The only element of the charged offence in issue is whether FSD was under the applicant’s care, supervision or authority when the act of sexual penetration occurred. Thus, to be admissible as incriminating conduct, the evidence of the applicant’s conduct relied on must reasonably be capable of being viewed as an implied admission that FSD was under her care, supervision or authority when she took part in the relevant act of sexual penetration.

The prosecution sought to rely on three matters as evidence of incriminating conduct: first, that following FSD’s suicide, the applicant telephoned TRB and told her that she needed her to know that FSD did not kill himself because of her (the applicant); secondly, in the pretext call the applicant said that she had thought about the sexual encounter with FSD a lot, and thought that she might actually go and see a solicitor and ‘get that skeleton out of the closet’; and, thirdly, that on 17 January 2017 (following the pretext conversation with TRB), the applicant, upset and crying, handed herself in to police unaware that there was an active investigation into her alleged offending.

As I have mentioned, the judge determined that the third item of alleged incriminating conduct — the applicant’s attendance at the police station on 17 January 2017 in a distressed state — was incapable of satisfying ss 18 and 20(1)(b) of the JDA.[30] Since no challenge has been made to that determination, there is no occasion to disturb it.
[30]See [58] above.

More problematic, however, is the judge’s ruling relating to the first and second items of supposed incriminating conduct, they being the applicant’s telephone call to TRB the day after FSD’s suicide in March 1999, and the pretext telephone conversation on 10 January 2017. As best I can tell, his Honour did not rule that the two items of evidence were admissible as incriminating conduct. Rather, the judge thought that ‘the proper analysis’ was that the statements made by the applicant in the two telephone conversations were admissible ‘in effect as implied admissions against interest’.[31] Determining the admissibility of the statements on the basis that they were implied admissions, the judge said, ‘relieves the court from determining whether the statements are capable of being an implied admission going directly to the offence or an element of the offence’. Ultimately, the judge seems to have determined that the two items of evidence were admissible as ‘capable of being regarded as implied admissions to an acknowledgement of the wrongfulness of her conduct to her position as a teacher at the time’.
[31]The Dictionary to the Evidence Act 2008 defines an admission to be a previous representation by a party to a proceeding ‘adverse to the person’s interest in the outcome of the proceeding’; and a representation includes ‘an express or implied representation (whether oral or in writing)’.

Given that his Honour specifically ruled that the applicant’s attendance at the police station was not admissible as evidence of incriminating conduct; and that the telephone calls were admissible, not as incriminating conduct but as implied admissions acknowledging the wrongfulness of the applicant’s conduct (given her position as a teacher), the judge’s statement that he had ‘considered the issue of implied admissions and incriminating conduct’, before concluding that there was evidence to go to a jury on the issue of a finding of care, supervision or authority, is a little difficult to understand.

There are two difficulties associated with the way in which the judge chose to deal with the alleged evidence of incriminating conduct. First, counsel for the applicant had relied upon s 137 of the Evidence Act 2008 as an alternative basis upon which to exclude the evidence of the applicant’s attendance at the police station in 2017, and of the telephone conversation in 1999. Nowhere in his ruling, however, did his Honour consider whether any probative value that the evidence possessed was outweighed by the danger of unfair prejudice. Thus, although his Honour excluded the evidence of the attendance at the police station as incriminating conduct, he seemingly did not consider whether the evidence of the 1999 conversation should have been excluded under s 137. Secondly, although his Honour chose to characterise the evidence of the 1999 call and the pretext conversation as implied admissions, it does not appear that he gave any consideration to s 90 of the Act.

Properly viewed, I consider that neither of the telephone conversations is capable of constituting an implied admission bearing on the sole remaining principal fact in issue in the trial: that is, whether FSD was under the applicant’s care, supervision or authority at the time when the act of sexual penetration took place. Although the conversations may be capable of constituting admissions to sexual penetration having taken place, and to the applicant having regretted the sexual encounter, they cannot bear upon the issue of care, supervision or authority. To my mind they are not, as was submitted in the alternative, intractably neutral. I consider that they are irrelevant to the principal fact in issue.[32]
[32]Evidence Act 2008, ss 55 and 56. See DPP v Paulino (2017) 54 VR 109, 124–5 [64]–[67] (Priest JA).

The principles governing a permanent stay

The principles governing the grant of a permanent stay on the basis that a prosecution is foredoomed to fail are not in doubt. Both parties agreed that they were correctly set out in Little.

In Little, the principles were summarised as follows:[33]

The principles applicable to an application such as that under consideration were laid down by the Full Court in Smith.[34] Those principles have been applied in a number of cases across several jurisdictions, and are not in doubt.[35]^{, [36]} 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.

[33]Little, 836 [59] (Priest JA) (citations in this and subsequent paragraphs as in the original). Although part of a minority judgment, this summary of relevant principles does not appear to be in doubt.

[34]R v Smith [1995] 1 VR 10. See also Nelson [Nelson (A Pseudonym) v Director of Public Prosecutions (Cth) [2014] VSCA 217, Maxwell P, Redlich and Priest JJA] at [6]–[11].

[35]R v Leece (1996) 65 FCR 544 per Gallop, Burchett and Hill JJ; R v Petroulias (No 1) (2006) 217 FLR 242; 177 A Crim R 153 per Johnson J; R v McGee (2008) 102 SASR 318 per Doyle CJ, Gray and White JJ; R v Azad [2007] VSC 115 per Curtain J; Director of Public Prosecutions (Cth) v County Court of Victoria (2010) 239 FLR 139; 267 ALR 786; 78 ACSR 24 per J Forrest J; Nelson per Maxwell P, Redlich and Priest JJA.

[36]Notwithstanding that the High Court later overturned the decision (Smith v R (1994) 181 CLR 338), 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 put in doubt.

In a joint judgment, Lasry and T Forrest AJJA observed:[37]
[37]Little, 839 [74].

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.[38] The failure of some essential aspect of the case must be inevitable.[39] A stay application on the basis that the prosecution is ‘foredoomed to failure’ is not an anticipatory no-case submission.[40] 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.
[38]R v Smith (1995) 1 VR 10 at 14 per Brooking J.
[39]At 16 per Brooking J.
[40]At 28–9 per Byrne J.

And also:[41]

We respectfully agree with the formulation of the test for such an application articulated by Byrne J in R v Smith:[42]
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)

[41]Little, 839 [76].

[42][R v Smith (1995) 1 VR 10, 28–9]. 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.

Hence, the authorities establish that if there were evidence in the hands of the prosecution sufficient to establish that FSD was under the applicant’s care supervision or authority at the time when the act of sexual penetration took place — even if the evidence were inherently weak or tenuous — then it could not be said to be readily apparent and plain beyond argument that the prosecution case suffers from some incurable vice fatal to the prospects of the prosecution’s success. On the other hand, if, as a matter of law, the available evidence could not (taken at its highest) properly found an inference as to the existence of care, supervision or authority, then it would be condoning an abuse of process to permit the prosecution to continue. Of course, when considering these issues, it is necessary to focus on the evidence available to the prosecution, and to avoid moral judgments.

Care, supervision and authority

Generally speaking, in 1993 a person did not (and does not now) commit an offence by participating in a consensual act of sexual penetration with a person aged 16 or 17 years. An act of sexual penetration was (and is) an offence, however, if at the relevant time the 16 or 17 year old was under care, supervision or authority.

This Court has grappled with the concept of ‘care, supervision or authority’ on at least six occasions, in Howes, Macfie,[43] King,[44] Lydgate,[45] Little and Lydgate (No 2).[46] In Little, the Court had cause to consider the manner in which the concept of care, supervision and authority had been dealt with in Howes, Macfie and Lydgate; and returned to the subject post-Little in Lydgate (No 2). Inevitably, in considering the present case, it will be necessary once more to tread well-trodden ground.
[43]R v Macfie [2000] VSCA 173 (‘Macfie’).
[44]King v The Queen [2012] VSCA 206.
[45]Lydgate (a Pseudonym) v The Queen (2014) 46 VR 78.
[46]Lydgate (a Pseudonym) v The Queen (No 2) [2016] VSCA 33.

As was remarked in Lydgate (No 2),[47] offences of the kind created by s 48(1) of the Crimes Act 1958[48] exist to protect 16 and 17 year old persons from sexual exploitation by those who, because of their special position of advantage vis-à-vis the young person, are capable of using that position to influence the 16 or 17 year old to take part in sexual activity. Whether in a given case a 16 or 17 year old is under the care, supervision or authority of another will be a matter of fact and degree. It was also said:[49]

It must, however, be borne steadily in mind — and, indeed, should be so obvious as to not require articulation — that any court trying charges such as those that the applicant faced must be astute to ensure that the evidence is capable of establishing that the particular 16 or 17 year old was indeed under care, supervision or authority in the relevant sense at the time that sexual activity took place. Should it be otherwise, accused persons run the risk of illegitimate conviction for serious offences because their conduct is thought to be morally dubious or offensive to community standards.

[47]Lydgate (No 2), [124] (Priest JA).

[48]See now s 49C.

[49]Lydgate (No 2), [124] (Priest JA).

Howes, a case from which both parties sought to draw some comfort, is the seminal authority in this area. Significantly, that case makes it clear, in my view, that the mere fact that a person is a teacher at a school at which another is a student, is not of itself sufficient to establish a relationship between them of care, supervision and authority of the kind contemplated by s 48(1).

When Howes was decided, the Crimes Act 1958 contained no provision equivalent to s 37 of the Act in its present form, spelling out circumstances in which a child is under care, supervision and authority, the forerunner to the current s 37, s 48(4), not having been introduced into the Act until 2006.[50] The Court in that case was therefore in much the same position as this Court, concerned to determine the parameters of the element care, supervision or authority, based on the individual facts of the case.
[50]Subsection 48(4) was inserted by s 12 of the Crimes (Sexual Offences) Act 2006, with effect from 1 December 2006. Howes and Macfie were decided before the introduction of s 48(4), whilst King, Little, Lydgate and Lydgate (No 2) all post-dated its introduction.

In Howes, the applicant had been convicted at trial of an offence under s 48(1). He was a teacher at a grammar school, the complainant having been his student over a period of two years. On one occasion, the two met outside the school environment at a university open day — an issue at trial was whether the meeting was by chance or by design — and sexual penetration took place in a flat. There was no issue that the meeting was unconnected with the teacher and student relationship, and that the complainant did not regard herself as being under the applicant’s supervision when she went with him to the flat. Winneke P said of care, supervision or authority:^[51]

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. …

[51]Howes, 143 [4]. See Little, 832–3 [46] (Priest JA), 840 [79]–[80], 841 [84] (Lasry and T Forrest AJJA), in which, in both the minority and majority judgments, this passage was referred to with approval.

As was noted in Little,[52] Winneke P made it plain that whether a person is under care, supervision or authority at the time sexual penetration takes place is a question of fact and degree. Section 48(1) is not breached unless a person — as a result of the relationship between him (or her) and the child — is in a position of advantage over the child, and has the 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:[53]

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.

[52]Little, 832 [46] (Priest JA). See also Lydgate (No 2), [129].

[53]Howes, 144 [5].

In an attempt to give meaning to the expression care, supervision or authority, Brooking JA said:[54]

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. …

[54]Ibid 157 [50]. See also 158–9 [56]–[57]. And see Little, 840–1 [82]–[83] (Lasry and T Forrest AJJA).

And in discussing what juries should be told, Brooking JA said:^[55]

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. …

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

Recognising that for present purposes it is the statutory language which must be construed, it is worth noting some further observations by Brooking JA:[56]

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, as in R v Rigby.[57] 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. (‘Regularly’, ‘regular’ and ‘permanent’ do not imply that a person may not come under the care, supervision or authority where there is no regularity about the treatment or guidance or no permanency about the employment.)

[56]Ibid 161 [63] (emphasis added, citation as in the original).

[57](Unreported, Court of Criminal Appeal, 21 October 1993.)

With these observations in mind, I venture to repeat what I said Little:[58]

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.
[58]Little, 837 [62]. See also Lydgate (No 2), [132].

Analysis

Taking the evidence in the hands of the prosecution at its highest, I consider that it is capable of establishing no more than that, in 1993, the applicant was a teacher at a school at which FSD was a student; and that, at a party at the conclusion of the 1993 school year, the applicant and FSD took part in an act of sexual penetration.

Bearing steadily in mind the injunctions that an application for a permanent stay is not akin to an ‘anticipatory no-case submission’, and that a permanent stay in the present case could only be ordered if ‘plain beyond argument that the prosecution case suffers from some incurable vice’ (and cannot succeed because the ‘failure of some essential aspect of the case must be inevitable’), in my opinion there simply is no evidence that FSD relevantly was under the applicant’s care supervision or authority when the act of sexual penetration took place. Indeed, I consider that there is no evidence that FSD was ever under the applicant’s care, supervision or authority. There is nothing to show that the applicant had an established and on-going relationship with FSD involving care, supervision or authority, such that she was in a position to exploit or take advantage of any influence growing out of that relationship.

At the risk of repetition, there is no evidence that the applicant ever taught FSD. In her record of interview, the applicant told police that she had never taught him. There is, as I have said, no evidence in the hands of the prosecution to contradict that claim. It gets no higher for the prosecution than the current Principal’s assertion that there ‘is a probability that [the applicant] may have taught [FSD] directly’. Quite plainly, the former Principal’s speculative ruminations that there is a probability that the applicant may have taught FSD could never be transmogrified into proof positive that the applicant did teach FSD in 1993.

Moreover, there is no evidence that the applicant in her capacity as a teacher at the college had ever had any interaction (formal or informal) with FSD at school. In her record of interview, the applicant claimed that, prior to the party in 1993, she had ‘seen’ FSD in a club or venue one night in the company of other students with whom she was friendly. Once more, there is no evidence in the hands of the prosecution capable of contradicting that claim. Again, quite plainly, the Principal’s speculation that in 1993 ‘they could have known each other, spoken to each other or crossed paths’ on campus, cannot be converted into evidence that they did in fact know each other on campus, and had crossed paths or spoken to each other. And the evidence seems clear that in the previous year, 1992, the applicant and FSD were on different campuses, and that they would not have had any contact at all during school times.

The applicant told police that, in 1993, Year 12 students HJ, H and FC were her friends. FSD, she said, was part of their ‘crew’; and she claimed that she had seen him with them at a club or venue on one occasion. In the course of the record of interview, the applicant told police that on the last day of the school year she was permitted to have the day off with the Year 12 students, and that she went to the pub drinking with Year 12 students (some of whom were her students), and went to the party that evening. The applicant told police that after the 1993 party she would talk to FSD when he came to her house for band practise with HJ. These assertions are not contradicted by other evidence.

It is part of the prosecution case that the school year had ended when TRB threw the party. It was not a school-sanctioned party, and it was attended by students from three schools, teachers and others. There is no evidence that the applicant had any organising or supervisory role, or had any control whatsoever over the activities of those at the party, let alone any supervisory role with respect to any student attendees (FSD included). The Principal in 1993 asserts that staff were ‘generally’ discouraged from attending outside student functions, and that, although there was no written policy, this was the ‘expectation’ or the ‘known culture’. The former Principal also states that a teacher has a ‘duty of care’ to all students within the school, and that this was ‘a prevailing culture’ (although the school ‘would not have had a specific policy around this’). That evidence cannot, however, go any way towards establishing that any former or current student of the college who happened to be in attendance at the party was under the applicant’s care, supervision or authority.

When examining what the applicant did on the night of the party, most would regard her actions to have been at the least unwise, if not morally indefensible. She cannot fall to be convicted of the very serious offence charged against her, however, on the basis that her conduct was morally dubious.

No offence was committed at the party in 1993 unless FSD was actually ‘under’ — that is, subject to, influenced or controlled by — the applicant’s care, supervision or authority at the time that the act of sexual penetration took place. Before the trial could be permitted to continue, there would need to be evidence fit to establish that FSD was under the applicant’s care, supervision or authority when the the act of sexual penetration occurred. In my view, as I have endeavoured to demonstrate, there is none. That being so, the prosecution is incapable of establishing an essential element of the charged offence, and the charge must be seen as foredoomed to fail. In those circumstances, it would be an abuse of process to subject the applicant to a trial.

For these reasons, it was not reasonably open to the primary judge to reach a conclusion other than that the prosecution was foredoomed to fail. He should have ordered a permanent stay.

Conclusion

Appropriate orders should be made resulting in the interlocutory decision being set aside. In lieu, I would order a permanent stay of the Indictment.

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[2019] VSCA 280

28 November 2019