Lydgate (a Pseudonym) v the Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0032

THOMAS LYDGATE (A PSEUDONYM)[1]
	v
THE QUEEN

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

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JUDGES:	MAXWELL P, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 April 2014
DATE OF JUDGMENT:	1 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 144

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CRIMINAL LAW – Sexual offences – Sexual penetration of child ‘under his care, supervision or authority’ – Accused was previously Principal of victim’s school – Sexual acts occurred after accused had resigned as Principal – Whether victim remained under accused’s ‘care, supervision or authority’ – Whether evidence of former Principal–pupil relationship admissible – Whether temporal proximity relevant – Crimes Act 1958 (Vic) ss 48, 49.

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APPEARANCES:	Counsel	Solicitors
For Lydgate	Mr P Higham	Grigor Lawyers
For the Crown	Mr D A Trapnell SC with Ms S Keating	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the benefit of reading in draft the respective reasons for judgment of Tate JA and Beach JA. Their Honours have analysed clearly and comprehensively the considerations which bear on the questions reserved for this Court’s determination.

In my respectful opinion, the questions should be answered in the manner proposed by Beach JA, for the reasons which his Honour gives. The probative value of evidence proposed to be led about a former relationship of Principal and student should be assessed by the trial judge in the usual way. Directions of the kind described by Beach JA in his answer to question 3 should eliminate any risk of impermissible reasoning.

Should the defence consider, however, that the danger of unfair prejudice would remain, even if such directions were given, application could be made for exclusion of the evidence under s 137 of the Evidence Act 2008 (Vic).

TATE JA:

Introduction

It is a criminal offence in Victoria for a person to take part in an act of sexual penetration, or commit an indecent act, with a 16 or 17-year-old child who is under the person’s care, supervision or authority. If the person is a child’s teacher, foster parent, legal guardian, employer, youth worker, sports coach, or counsellor, the child is deemed to be under the person’s care, supervision or authority. It is clear that students at a school are under the care, supervision or authority of the Principal of the school. This matter raises the following issue: what of a Principal who engages in sexual activity with a 16 or 17-year-old child after the Principal has resigned from office? Is evidence of the former relationship of Principal and student relevant and admissible to prove, in relation to an accused, that, at the time of the sexual activity after the Principal’s resignation, the child was under his or her care,

supervision, or authority?

The issue arises in the following circumstances.

Thomas Lydgate (‘Lydgate’) has been charged on indictment with 17 charges of sexual penetration of a 16 or 17-year-old girl contrary to s 48(1) of the Crimes Act 1958 (‘the Act’) and five charges of committing an indecent act with a 16 or 17-year-old girl contrary to s 49(1). Section 48 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.
Penalty:         Level 5 imprisonment (10 years maximum).
(2)Consent is not a defence to a charge under subsection (1) unless the accused satisfies the court on the balance of probabilities that 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.
(3)If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent.
(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 member of the police force 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.

Section 49(1) provides:

A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of 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 6 imprisonment (5 years maximum).

The remaining sub-ss of s 49 largely mirror those in s 48. In particular, the defence specified in sub-s (2) also applies to s 49. The nominated categories identified in s 48(4) are almost identical to those included within s 49(4).[2] Evidence that a relationship falls into one of those nominated categories (a child and his or her teacher, sports coach, and so on) is sufficient, without more, to establish that a child is under the care, supervision or authority of the other person.[3] In that sense, sub-s (4) of s 48 is a deeming provision; so also sub-s (4) of s 49. The nominated categories are sometimes described as ‘proscribed relationships’, in the sense that sexual activity is proscribed at least for the duration of those relationships.
[2]However, sub-s (4)(b) of s 48 differs from sub-s (4)(b) of s 49 in that the latter includes not only foster parent, but also the child’s parent, adoptive parent or step parent.
[3]King v The Queen [2012] VSCA 206, [23] (‘King’).

Before a jury was empanelled for trial in the County Court, it was agreed by the parties that the single issue at trial will be whether, in circumstances where Lydgate resigned from his employment as Principal of the school at which the complainant was a student, and sexual activity took place thereafter, the prosecution can prove that the complainant was under his care, supervision and authority at the time of the offending.[4] As the issue raises a novel question of law and, depending upon its disposition, could render the trial unnecessary, the trial judge reserved six questions of law for determination by this Court.[5]
[4]This is to be understood as alleged offending given that a critical element of the offences under s 48 and s 49 is in dispute, namely, whether the complainant was under Lydgate’s care, supervision or authority when the conduct the subject of the charges took place.
[5]Pursuant to s 302 of the Criminal Procedure Act 2009.

The judge formulated the questions drawing on the language of ‘standing relationships’ and ‘ad hoc relationships’ used in earlier authority of this Court, especially in R v Howes.[6] A ‘standing relationship’[7] is a permanent or underlying relationship that falls into traditional categories, such as priest and penitent, teacher and pupil, and so on, an aspect of which is that the child is under the care, supervision or authority of the other person. The proscribed relationships under s 48(4) and s 49(4) are examples of standing relationships but they are not exhaustive of standing relationships. The term ‘ad hoc relationship’[8] has been used to refer to a relationship of care, supervision, or authority that comes into existence only on the day of the offence and endures only for a few hours, for example, a child is under the care, supervision or authority of the parents of a friend when he or she casually stays overnight at the friend’s place. The term ‘ad hoc relationship’ can be used more broadly to refer to temporary relationships that do not reflect a traditional or nominated category.[9]
[6](2000) 2 VR 141 (‘Howes’).
[7]See Howes (2000) 2 VR 141, 161 [62]-[64], 165 [71].
[8]Ibid 161 [63].
[9]It is used in this way by the judge in her formulation of the questions.

The terms ‘standing relationship’ and ‘ad hoc relationship’ do not appear in the statutory text, and are not to serve as substitutes for that text.[10] However, the words ‘care’, ‘supervision’ or ‘authority’ are words that connote a relationship between persons, particularly as qualified by the word ‘under’. The terms ‘standing relationships’ and ‘ad hoc relationships’ thus remain useful short-hand descriptions, providing their limitations are kept in mind.
[10]This was emphasised by both the DPP and Lydgate in their submissions. See, for example, Baini v The Queen (2012) 246 CLR 469, 476 [14]; Fleming v The Queen (1998) 197 CLR 250, 256 [12]; Thiess v Collector of Customs (2014) 88 ALJR 514, 518 [22].

I set out the six questions below. For the reasons that follow, I would answer those questions in the way I have indicated:

Q1: Can the prosecution rely on evidence of the qualities or attributes of a former relationship of the kind listed in ss 48(4) and 49(4) of the Crimes Act 1958 (a standing relationship) to prove that at the time of the offending, the complainant was under the care, supervision or authority of the accused (an ad hoc relationship), for example by establishing that an accused was in a position to exploit or take advantage of the influence that grew out of the former relationship?

A: The prosecution cannot rely solely on a former standing relationship to prove that a complainant was under the care, supervision or authority of an accused at the time of the offending. Thus, the prosecution cannot rely solely on the former standing relationship of Principal and student that existed between Lydgate and the complainant to prove that the complainant was under the care, supervision or authority of Lydgate during the time of the sexual activity between them, that is, after he resigned. The former standing relationship cannot serve as a substitute for the relationship of care, supervision or authority that must exist at the time of the offending.

However, the existence of a former standing relationship will always be relevant to the question of whether an ad hoc relationship of care, supervision or authority exists at the time of the offending, within the meaning of s 55 of the Evidence Act 2008 (Vic). This is so because the existence of a former standing relationship will always raise an assessment of the probability that an ad hoc relationship was later established, when compared to circumstances where there had been no former standing relationship.[11] That is, the existence of a former standing relationship means that the later establishment of an ad hoc relationship is more probable, at least to some degree, than it would have been if there had been no earlier standing relationship.
[11]See [59] below.

The critical issue is not one of relevance but of admissibility and of probative value.

Depending on the evidence of the nature of the relationship during the time of the offending, a former standing relationship may be admissible to prove that a complainant was under the care, supervision or authority of an accused at that time. If a judge on a voir dire concludes, on the basis of independent evidence about the circumstances between an accused and a child after the standing relationship has come to an end, that the circumstances are capable at law of establishing that the child is, at the time of the offending, under the care, supervision or authority of the accused, then the prosecution should be entitled at trial to rely on evidence of the former standing relationship to prove that when the sexual activity took place the child was under the care, supervision or authority of the accused, for example, by exploiting the influence that grew out of the former standing relationship. To admit evidence of the former standing relationship without applying a threshold test on a voir dire as a safeguard would be to extend the offences under s 48 and s 49 of the Act beyond their statutory boundaries.

Q2: Is the temporal proximity of the sexual activity to the former relationship relevant in determining whether:

a) evidence of a former relationship of a kind listed in ss 48(4) and 49(4) of the Crimes Act 1958 (Vic) (a standing relationship) is admissible to prove the element of care, supervision or authority?

b) this element of care, supervision or authority is proved?

A: a) No. The temporal proximity of the alleged sexual activity to the former standing relationship is not relevant in determining whether evidence of a former standing relationship is admissible to prove the elements of care, supervision or authority. This is because, in determining admissibility, a judge will consider only whether the circumstances at the time of the offending are capable at law of giving rise to an inference that the child was, at that time, under the care, supervision or authority of the accused. The temporal proximity to the former standing relationship will not be in issue.

b) Yes. Temporal proximity can assist in the proof at trial. If a judge determines that the evidence of the former standing relationship is admissible, the temporal proximity of the former standing relationship will be relevant to proof at trial of the elements of care, supervision or authority at the time of the offending. This is because an accused is more readily able to take advantage of, or exploit, a former standing relationship if there has been no gap between the former standing relationship and the period of sexual activity. Conversely, the longer the gap between the former standing relationship and the time of the sexual offending, the less probative value will attach to the evidence of the former standing relationship.

Q3: If evidence is permitted of the former relationship, how is it to be used by the jury? What directions are required?[12]
[12]The question invites a consideration of what directions should be given if evidence of the former standing relationship is permitted to prove the elements of the offence under s 48 or s 49 that a child is under the care, supervision or authority of an accused. I put to one side the question of any directions if the former standing relationship is only admissible as part of the context, or as general relationship evidence, or is relied upon to establish coincidence or tendency.

A: Without seeking to set out any directions, a few, necessarily incomplete, observations can be made. It must be clear that the question the jury has to answer is whether, at the time of the offending, a complainant is under the care, supervision or authority of an accused. For example, it would not be sufficient for the jury to be satisfied that Lydgate was in a position to exploit or take advantage of the influence that grew out of the former standing relationship with the complainant unless they were also satisfied that, at the time of the offending, the complainant was under his care, supervision or authority. There is no offence under the Act of exploiting the influence created when a child was under an accused’s care, supervision or authority if the child is no longer under the accused’s care, supervision or authority at the time of the offending. Exploiting or taking advantage of a former standing relationship is not itself an offence unless the exploitation is used to establish, or maintain, a relationship whereby the child is under the care, supervision or authority of an accused at the time of the offending. The need for currency between the sexual offending and the requirement that the child be ‘under the care, supervision or authority’ is well established by the statutory language of s 48 and s 49 and by authority. It must also be made clear to the jury that the words ‘care’, ‘supervision’ and ‘authority’ are ordinary English words, none of which is tantamount to coercive power.

Q4: Where a person terminates a standing relationship of a kind listed in ss 48(4) and 49(4) of the Crimes Act 1958 (Vic), and thereafter sexually penetrates or commits an indecent act with a 17-year-old in the belief that the child is no longer under his or her care, supervision or authority, is there a defence open on the lack of intention to engage in that sexual activity within the proscribed relationship?

A: No.

Q5: If so, what does the prosecution have to prove, if anything, in relation to intention?[13]
[13]That is, in relation to intention to engage in sexual activity within the proscribed relationship. Of course the prosecution must prove that there was an intention to commit the act of sexual penetration or the indecent act. The DPP also accepted that there would be a need to establish that an accused knew the facts and circumstances relied on by the Crown to give rise to the inference that at the relevant time the child was under the care, supervision or authority but not the legal consequences that flow from those facts and circumstances. See [77] below.

A: Unnecessary to answer.

Q6: If so, is there an evidentiary burden on the accused?

A: Unnecessary to answer.

Questions 1–3 concern the contested relevance of the existence of a former standing relationship. Questions 4–6 concern the mental element of the offence. After setting out the judge’s summary and identifying the principles that emerge from the existing line of authority, Howes,[14] R v Macfie,[15] and King,[16] I will deal with each issue in turn.
[14](2000) 2 VR 141.
[15][2000] VSCA 173 (‘Macfie’).
[16][2012] VSCA 206.

The judge’s summary

There are many aspects of the case that are not in dispute. In the judge’s summary, it was alleged and not disputed that:

·The complainant was aged 17 years at all relevant times;
·during 2012, she was a Year 11 student at the school at which Lydgate was the Principal;[17]
·Lydgate had been employed as the Principal of the complainant’s school on 2 January 2012;
·although the accused was not a classroom teacher of the complainant, she was under his care, supervision or authority while he was Principal;
·an inappropriate relationship, excluding sexual activity, developed between the complainant and Lydgate during his employment as Principal;[18]
·on 8 December 2012, Lydgate was suspended from that employment;
·Lydgate continued to communicate with the complainant via text messages on a mobile telephone, and the communications became sexual in nature;[19]
·communication continued between them via email and text messages when the complainant travelled overseas with her family between 28 December 2012 and 27 January 2013;[20]
·on 22 January 2013, Lydgate resigned his position as Principal; and
·between 9 February and 2 May 2013·(the dates on the indictment), Lydgate engaged in a sexual relationship with the complainant.[21]

[17]According to the Summary of Crown Opening, Lydgate and the complainant talked to each other during 2012 at a school camp and at a number of meetings held in regard to a fundraiser for a ‘mission trip’ overseas at the end of the school year: [2], [3], [5]. Lydgate gave the complainant his private phone contact details and there were text messages communicated in regard to the fundraiser: [5].

[18]This included text messages late at night and in the early hours of the morning the content of which became more familiar with Lydgate beginning his text messages with ‘Little Miss’. After the valedictory dinner Lydgate texted: ‘I loved your red dreds at the val dinner — totally sexy!’: Summary of Crown Opening, [7], [9].

[19]After his suspension, Lydgate met with the mother of the complainant at a coffee club. She told him not to contact her daughter at all unless by way of an official school letter and that her daughter had learning disabilities and an ‘attachment disorder’ and that the school had copies of all of the relevant reports relating to this. She asked both Lydgate and her daughter to delete each other’s telephone numbers so they could not contact each other any more. From this point in time, the text messages between Lydgate and the complainant intensified and became sexual in nature. Amongst them was a text message on 15 December 2012 after Lydgate and the complainant had contrived to ‘bump into each other’ at a cinema, and Lydgate had introduced her to his teenage daughter, which said: ‘I’m sure you made a really good impression on [his daughter] — how could you not! We talked a bit about you going home — I guess I’m beginning to plant seeds!’. About the same time Lydgate send a text message saying: ‘Yeah I hope I get the opportunity to suspend you again — it was kind of fun having u all day in the office — well it would be now!’ About 20 December 2012 Lydgate texted: ‘… u r absolutely gorgeous, hot and delicious … !!! I love you and your sexy black shorts!!!’ and he texted later on the same day: ‘I want you soo much now … and im not just talking about sex — although its definitely included’: Summary of Crown Opening, [31], [32], [34], [37], [38], [45], [46].

[20]During this time Lydgate texted that he loved the complainant, he did not love his wife, and wanted to run away with the complainant and marry her. Between December 2012–February 2013 there were in excess of a thousand text messages between Lydgate and the complainant: Summary of Crown Opening, [55], [76].

[21]Between the period April – May 2013 there were also in excess of a thousand text messages exchanged between Lydgate and the complainant: Summary of Crown Opening [147]. What the content of the text messages reveal is explored at [63] below.

What is alleged, and is in dispute, is that at the time of the sexual activity the subject of each charge, the complainant was under the care, supervision or authority of Lydgate.

The submissions that were made by the prosecution and defence before the judge identified the issues on the basis of which her Honour formulated the questions she did.

The Director of Public Prosecutions (the ‘DPP’) submitted before the judge that where a proscribed relationship of a kind listed in ss 48(4) and 49(4) had ceased, in deciding if the element of care, supervision or authority at the time of the offending is established in an ad hoc relationship, it remains properly a matter for a jury to determine whether the qualities and attributes of the former relationship, such as power imbalance, influence, control, or authority, continue to exist at the time of the offending.

The defence response was that the qualities and attributes of the former relationship adhere to or derive from the proscribed relationship and cease with its termination. Such features cannot continue on without the continuation of the relationship of a kind listed in ss 48(4) and 49(4).

The DPP had further submitted that the fact that the proscribed relationship existed at a time temporally proximate to the alleged offending is a relevant factor for a jury to take into account when determining if the element of care, supervision or authority at the time of the offending is established.

The defence response was that once the proscribed relationship is terminated, the influence, or capacity to influence, that arose during the course of the former standing relationship also ceases and cannot be operative at the time of the later sexual activity, outside of that relationship, whenever it takes place.

As is evident from Q4, the judge was also concerned about the directions that would need to be given to the jury if the prosecution was permitted to use the evidence of the former relationship of Principal and child in the manner for which it contended. Her Honour raised the issue of whether, for example, sub-s (4) in s 48 and s 49 created a ‘presumptive’ relationship such that the jury could accept the undisputed fact that a relationship of a kind listed in that subsection existed until Lydgate’s resignation, and then proceed to consider whether certain features of that relationship continued to exist at the time of the alleged offending. The defence submitted before her Honour that at the very least, directions should be given against impermissible use of the existence of the former relationship similar to those given in cases in which tendency evidence is admitted.

It was foreshadowed by the defence that the jury could be asked to consider Lydgate’s state of mind at the time of engaging in the sexual activity the subject of the charges where he had divested himself of the former standing relationship.

The judge observed that in respect of the mental element required for offences under ss 48 and 49, the prosecution would have been required to prove only that the sexual penetration or the indecent act was intentional (conscious, voluntary and deliberate). Her Honour observed that there is no authority providing guidance as to how a jury may be directed to approach the defence response in a case where an accused has divested himself of the proscribed relationship and argued that, as a result, he did not have an intention to engage in sexual activity either within a proscribed relationship or while the complainant was under his care, supervision or authority.

The prosecution submitted that if the issue of Lydgate’s state of mind was to be before the jury, it was important to clarify how the jury may approach the defence case.

The judge annexed to the Case Stated the Summary of Crown Opening, and the Response of the Accused to the Summary of Crown Opening, to provide context for the questions asked. [22]
[22]In his Response to the Summary of Crown Opening, Lydgate indicated that he accepted that the evidence supports a conclusion that an inappropriate relationship had developed between he and the complainant during his employment as Principal for which he bore full moral responsibility. He also accepted that a relationship of care, supervision or authority subsisted when he was Principal at the complainant’s school. He contended, however, that from the time of his resignation the complainant was no longer under his care, supervision or authority and while he embarked on a three-month sexual relationship with the complainant, which ‘may well have been morally reprehensible and professionally forbidden, absent the relationship of care, supervision or authority it was not a crime’.

The authorities: Howes, Macfie and King

In Howes,[23] this Court heard an appeal from an accused who had been convicted of an offence under s 48(1) of the Act while he was a teacher and the complainant was his pupil at a high school in a provincial city. The complainant was a 17-year-old girl. The sexual activity occurred after a pre-arranged meeting at Melbourne University.
[23](2000) 2 VR 141.

Howes was decided before the 2006 amendments[24] introduced sub-s (4) into ss 48 and 49. As Brooking JA observed, at that stage the response of the Legislature to the problem of persons in positions of responsibility towards children sexually abusing them, was ‘instead of making occupation or official status the determinant … [it opted to] use general concepts like position of trust or authority’.[25] There was no list of nominated categories in relation to which sexual relationships were proscribed. He compared this with what he described as ‘a two-pronged approach’,[26] used in the Mississippi Criminal Code of 1972, ‘in which the specification of occupation or official status is combined with the use of general words to describe positions of responsibility’.[27] Section 97-3-95 of that Code prohibited the sexual penetration of children ‘if the person is in a position of trust or authority over the child including without limitation the child’s teacher, counsellor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach’.[28] It is apparent that the impact of the 2006 amendments is that the offences under s 48 and s 49 now reflect a two-pronged approach.
[24]Crimes (Sexual Offences) Act 2006 (Act No 2 of 2006).
[25]Howes (2000) 2 VR 141, 150 [26].
[26]Ibid.
[27]Ibid.
[28]Ibid.

The Court in Howes was thus not faced with the problem raised here of the relevance of a former standing relationship. Rather, it was concerned only with the question of whether the girl was under the care, supervision or authority of the accused when they met on the day she went to collect information about courses at Melbourne University. The fact that the accused regularly taught the girl was assumed to be relevant and the question became ‘whether a school teacher can, so to speak, shed a position of care, supervision or authority held in relation to a pupil regularly taught and have sexual intercourse with the pupil on a dies non scholasticus [a school-free day]’.[29]
[29]Howes (2000) 2 VR 141, 151 [27] (Brooking JA).

The teacher had taught the girl mathematics in Year 10, and in Year 11 taught her both mathematics and chemistry. When she was in Year 11 he asked her to come and see him in his office and the conversation turned to personal things, including the break-up of her parents’ marriage. He started telephoning her after school and he talked about his lifestyle and sexual experiences and that he thought his wife was having affairs. He said he would like to have an affair himself and that, if he was to have an affair with anybody, it would be with a person like the complainant, or another schoolgirl who resembled the complainant. As the complainant could not attend Melbourne University Open Day she told the teacher of another day on which she intended to look over Melbourne University. The teacher was doing a part-time course at Melbourne University and said he was going down on the day in question and would gladly show her around. They met as arranged outside the cafeteria and went to his flat where he gave her large glasses of Scotch and some champagne and after she became very intoxicated he insisted they play ‘real’ strip jack poker after which they had sexual intercourse. She was due back in the teacher’s class the next day but she did not go, returning on the following day. The teacher then helped her arrange a pregnancy test.

The complainant gave evidence. In cross-examination she said that she regarded the meeting at Melbourne University as a private one unconnected with the teacher-student relationship and that she did not regard herself as being under the teacher’s supervision when she went to his flat, in the way she would have been on a school excursion. The teacher admitted meeting her at Melbourne University, but said this was by chance, and denied that there had been any sexual encounter.

In considering the meaning of the words ‘is under his or her care, supervision or authority’ in s 48, Brooking JA identified a number of applicable legal principles, as follows: (1) the relationship may be voluntarily assumed; there is no requirement that the ‘care’, ‘supervision’ or ‘authority’ be based on a legal right or power although legal authority may help create the relationship of care, supervision or authority;[30] (2) the necessary elements of the relationship are disjunctive: it is sufficient if the complainant is under either the care or the supervision or the authority of an accused;[31] (3) the words ‘care’, ‘supervision’ and ‘authority’ are ordinary English words and should be given their ordinary grammatical meaning;[32] (4) none of the three elements is tantamount to coercive power;[33] (5) the jury need not be unanimous in finding which of the three elements of care, supervision or authority be satisfied, so long as they are each satisfied of one of the three;[34] (6) s 48 creates a single offence: there are not three distinct offences depending upon which element is satisfied;[35] (7) the three elements do not take their colour from one another or generate a single class or genus;[36] and (8) the underlying purpose of the section is to protect 16 and 17-year-olds against persons who occupy a position of responsibility towards them, so as to ‘protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them’; it was necessary to keep in mind the underlying purpose to ensure that some relationships, such as that of a school monitor in a given situation supervising fellow pupils, or an employee supervising a new fellow employee of the same rank, were not caught by the prohibition.[37]
[30]Ibid 157 [50]. See also R v Macfie [2000] VSCA 173, [20].
[31]Ibid 157 [51] (Winneke P agreeing, 143 [4]).
[32]Ibid 157 [51] (Winneke P agreeing, 143 [4]).
[33]Ibid 159 [56].
[34]Ibid 158 [54]. See also R v Macfie [2000] VSCA 173, [16]–[17].
[35]Ibid 158 [53].
[36]Ibid 158 [56], (Winneke P agreeing, 143 [4]).
[37]Howes (2000) 2 VR 141, 160 [59].

There is nothing to preclude the same propositions applying to the offence created under s 49.

In referring to the Crown’s submissions, Brooking JA characterised as ‘the most extreme view’ the view that where there is a ‘standing relationship’ the prohibition applies to sexual activity until the standing relationship has come to an end. This compares with the view that a teacher, under whose care, supervision or authority a pupil is on some occasions, may ‘throw off the relationship on other occasions’.[38] He said:

The most extreme view, from the Crown’s point of view, and the one we were invited to adopt, is that, once a teacher has established with a pupil a standing relationship falling within the section, sexual penetration is in all circumstances forbidden until that standing relationship has been brought to an end. On this view, the relationship cannot be suspended, as it were, during the weekend. Another possible view, not so extreme, is that it will always be for the jury, in cases of a standing relationship of teacher and pupil, to say whether on a given occasion the pupil was under the teacher’s care, supervision or authority and that it is open to the jury to make that finding even though the occasion is entirely unrelated to the teacher’s position as such and the pupil’s position as such.[39]

[38]Ibid 160 [61].

[39]Ibid 161 [62] (emphasis added).

The italicised words were seized upon here by Lydgate to support the submission that the expiry of the formal teacher-pupil relationship releases the parties from the prohibition. Moreover, Brooking JA went on to emphasise the importance of the requirement that the relationship of care, supervision or authority had to be current at the time the sexual activity occurred for the prohibition to apply. Lydgate also seized on this requirement of currency to submit, successfully in my view, that it would not be permissible for the Crown to rely on a former standing relationship (teacher and pupil or Principal and student) as a substitute for satisfying the requirement that the child was under the care, supervision or authority of the child at the time of the sexual activity. I return to this issue below.[40]
[40]See [51] to [53] below.

Brooking JA clarified what he meant by a ‘standing relationship’, distinguishing it from an ‘ad hoc’ relationship that involved the elements of care, supervision or authority in the manner I outlined above,[41] that is, a comparison between relationships that fall into traditional categories (including those nominated under sub-s (4) of s 48) as opposed to those that arise on the day of the offence or are inherently short-term.[42] He said:

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. 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.)
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.[43]

[41]See [10] above.

[42]As mentioned at [10] above, the term ‘ad hoc’ is not limited to relationships that arise on the day of the offence but can be used to mean temporary relationships which do not fall into any of the traditional categories.

[43]Howes (2000) 2 VR 141, 161 [63]–[64] (emphasis added). R v Rigby (Unreported, Court of Criminal Appeal of the Supreme Court of Victoria, 21 October 1993) was a sentence appeal which not deal with the elements of care, supervision or authority.

His Honour held that there had been no error in the directions given by the trial judge. In doing so, he emphasised that the offence does not require that there be any causal connection between the act of sexual penetration and the relationship of care, supervision or authority; the child’s consent need not be influenced by the relationship of care, supervision or authority.[44] Thus, the offence could be made out in respect of sexual activity between, for example, a physical education teacher who by chance meets one of his pupils during the summer holidays at a licensed bar when the pupil is to return to the school to be taught by him in the following year, as in the decision of R v Audet.[45] As he said:

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 the parties were not acting in any sense in the capacities which gave rise to the relationship. I refer to the decision in Audet and in addition to Ellis, where Kennedy J observed that the relationship between the child and the supervisor did not necessarily cease outside working hours or away from the premises.[46]

[44]Ibid 160 [60]–[61], [71].

[45](1996) 135 DLR (4^th) 20, 30-1 (Canadian Supreme Court) in respect of a somewhat similar statutory provision (‘Audet’).

[46]Howes (2000) 2 VR 141, 165 [71]. R v Ellis was a decision of the Western Australian Court of Criminal Appeal (unreported, 26 September 1997, Kennedy, Franklin and Steytler JJ) in which the complainant gave evidence that the accused was her immediate boss and this was supported by evidence of other store employees.

The manner in which he expressed his conclusion suggests that he took the relationship of teacher and pupil (a standing relationship involving care, supervision and authority) to continue to exist during the day the child inspected Melbourne University including the time the sexual penetration took place, despite the ostensible ‘private’ quality of the meeting between the parties. It is unclear to what extent his conclusion rested on the fact that the teacher was to continue teaching the child the following day, although it would seem that his reliance of Audet indicated that a critical factor for him was that a teacher could not suspend or ‘throw off’ the aspects of authority, supervision or care from time to time while continuing to remain as the child’s teacher. Lydgate urged this reading to argue that where a teacher, or more relevantly a Principal, no longer sought to continue to remain in that role, the aspects of care, supervision or authority associated with the standing relationship also ceased.

Winneke P[47] approached the matter by emphasising that the offence was not restricted to circumstances where care, supervision or authority was only temporarily assumed (for example, by baby-sitters) but was designed to capture circumstances where advantage is taken of an established relationship involving care, supervision or authority. He said:

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.[48]

[47]The third member of the Court, Chernov JA, agreed with both Winneke P and Brooking JA.

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

Again, importance was placed on the inability of those in a standing relationship to interrupt that relationship temporarily in a manner that deprived it of the qualities of care, supervision or authority or of the responsibility to which those qualities give rise. While agreeing with Brooking JA that the trial judge had not erred, Winneke P went on to say:

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 …[49]

[49]Ibid 144 [5].

In Macfie,[50] a 13-year-old homeless young girl who was a ward of the State stayed with a 59-year-old truck driver, Macfie, over a total period of about six weeks. The girl spent three nights at Macfie’s home, four or five nights in his truck, and thereafter slept in his hut at a truck depot, during which time multiple acts of sexual intercourse took place. When apprehended she was taken to a secure facility which Macfie contacted. He asked about her welfare while pretending to be her uncle. He later represented to the Department of Human Services that he was variously the girl’s natural father and her uncle. He encouraged the girl to abscond. They drove to Darwin where they were again apprehended, this time by the Darwin police. Macfie had induced the girl to have sex with him by claiming he was a priest from ‘the Family’ and that in order for her to become a member of ‘the Family’ she would need to have sexual intercourse with him. Macfie was convicted of maintaining a sexual relationship with a child under the age of 16 to whom he was not married and who was under his ‘care, supervision or authority’, contrary to then s 47A of the Crimes Act.
[50][2000] VSCA 173.

On appeal, Winneke P and Chernov JA (with whom Brooking JA agreed) held that the trial judge had been correct ‘in pointing out that the relevant care, supervision or authority could be vested in more than one person or authority at the same time or could change depending on circumstances’.[51] The Court expressly rejected the submission that the offence was aimed only at those persons who exploited their positions of authority, such as teachers, scout leaders and the like, and held that it ‘was well open to the jury to find that the relationship which [Macfie] assumed in relation to this complainant was one of ‘in loco parentis’ and it can scarcely be contended that the proper interpretation of the words ‘under the care, supervision or authority’ excludes such a relationship from their ambit.’[52] It was sufficient that Macfie had assumed de facto control, supervision or authority, notwithstanding there had been no delegation of responsibility from someone who had, and maintained, legal authority over the girl. Single instances of resistance were not sufficient to displace that inference; it was necessary to consider all of the evidence. The Court held that there was ‘no view of the evidence reasonably open, other than that [Macfie] treated this 13-year-old girl as his ‘charge’ and his relationship with her was founded upon care, supervision or authority’.[53]
[51]Ibid [14].
[52]Ibid [19].
[53]Ibid [22].

While not expressed in these terms in Macfie, the acceptance of a child as one’s ‘charge’ was treated in Howes as quintessentially an assumption of ‘care’. It was recognised in Howes that the meaning of ‘care’ when qualified by the word ‘under’ is confined to that variety of care whereby the child is one’s ‘charge’,[54] the adult giving ‘oversight with a view to protection, preservation or guidance’.[55] That variety may be expressed in different ways.
[54]Howes (2000) 2 VR 141, 158 [56].
[55]Ibid.

The third authority in Victoria to deal with the element of care, supervision or authority for the purpose of an offence under either s 48 or s 49 is King.[56] It was decided after the 2006 amendments had come into force.
[56][2012] VSCA 206.

King was a tennis coach and part-owner of an indoor tennis centre. He was convicted of one charge of committing an indecent act with a 16-year-old girl, contrary to s 49. The girl had started playing tennis at King’s tennis centre when she was 14 and King had coached her. King was also the director of a fashion company. The girl modelled in a ‘photo shoot’ and was given a bag of sample clothing and photographs in return. She also did a few hours’ work behind the counter at King’s tennis centre. When the girl was 16, her mother dropped her off at King’s home to stay overnight to attend another ‘photo shoot’ for King’s company very early the next morning. Others involved in the shoot were also expected to stay the night but never arrived. Sexual activity occurred between King and the girl. The girl gave evidence that she was paid $100 for both the photo shoot and the work she had done at the tennis centre.

As the girl was 16, it was necessary for the jury to be satisfied that the girl was under King’s care, supervision or authority or the consensual sexual activity would not have amounted to an offence. The prosecution had argued that the elements of care, supervision or authority arose by reason of King being the girl’s ‘employer’ thus enlivening the deeming provisions in s 49(4)(e) of the Act. Alternatively, it was put that the girl was under King’s care, supervision, or authority because her mother dropped her off to stay overnight, there was no other person at King’s home, and by reason of the general nature of the relationship between King and the girl. In the police interview, King was asked whether he had given the girl an alcoholic drink. His response was telling:

There was no drinking. … no way did she ever have a drink. There wasn’t — I wasn’t — anyone having a drink in my supervision, I suppose or my — that was underage drinking while I’m there. I just don’t let that happen full stop.[57]

[57]Ibid [9] (emphasis added).

The defence argued that there was no care, supervision or authority because King was not the girl’s employer, nor was there any other relevant basis.

The Court[58] accepted that informal arrangements can give rise to difficult questions about whether a person is an employee, independent contractor and so on. However, the Court held that the issue of whether King was the girl’s employer was beside the point; the elements of care, supervision or authority could be made out from the circumstances of the case, most especially the understanding between the mother and King that he would look after the girl and his statement that, at least with respect to drinking, she was under his supervision.
[58]Maxwell P, Bongiorno JA and Coghlan AJA.

In concluding that the appeal should be dismissed, the Court held:

[T]he prosecution simply did not need to rely on the ‘employer’ category in s 49(4). Irrespective of whether JL was ‘employed by’ AK [King] at the relevant time, there was cogent, compelling and uncontested evidence that she was under his care, supervision or authority. …
[The girl’s] mother said in her evidence that, when she took [the girl] to AK’s home, she stayed for some time and had a drink with him. She said that the fact that other people were coming to stay was discussed and, before she left, AK told her that she had no need to stay there as he would look after her daughter and the other people were meant to arrive ‘at any time’. …
To this uncontradicted evidence must be added the general circumstances surrounding JL’s presence at AK’s home, including her age; and AK’s acknowledgement at interview that she was ‘under age’, at least with respect to drinking, and that she was ‘in [his] supervision’.[59]

[59]R v King [2012] VSCA 206, [27]–[29].

It is apparent that none of the authorities deal with a former standing relationship and the question of the relevance of that relationship to proof of whether the elements of care, supervision or authority existed at the time of the alleged offending. However, they do assist in drawing some parameters around the issues. In particular, they assist in establishing that:

(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.[60]
[60]Howes (2000) 2 VR 141, 144 [5], 160 [58]; R v Audet (1996) 135 DLR (4^th) 20, 30–1.

(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.[61]
[61]Howes (2000) 2 VR 141, 143 [4], 165 [71]; R v Ellis (unreported, 26 September 1997, WACCA).

(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,[62] most particularly the element of ‘care’,[63] although there has been no transfer or delegation from those who at law have that responsibility.[64]
[62]Howes (2000) 2 VR 141, 143 [4]; R v Macfie [2000] VSCA 173, [22].
[63]Howes (2000) 2 VR 141, 158 [56].
[64]R v Macfie [2000] VSCA 173.

(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,[65] most particularly the element of supervision.
[65]R v King [2012] VSCA 206, [28]-[29].

(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.[66]

(6) The words ‘care’, ‘supervision’ or ‘authority’ are ordinary English words, none of which is to be equated with coercive power.[67]

Q1: Is evidence of a former standing relationship relevant and admissible to prove care, supervision or authority at the time of the offending?

[66]Howes (2000) 2 VR 141, 160 [59].

[67]Ibid 159 [56].

The DPP submitted that the combination of sub-ss (1) and (4) of s 48, or of sub-ss (1) and (4) of s 49, expressly leaves open the relationships that can found ‘care, supervision or authority’. This is apparent from the words of sub-s (4) ‘without limiting that subsection’ when referring to sub-s (1).[68] He argued that whether the elements of care, supervision or authority are satisfied involves a question of fact for a jury to determine on the whole of the evidence with the assistance of judicial directions. A former standing relationship, where it exists, is relevant as part of the evidence; it constitutes part of the circumstances of which a jury should be aware when determining whether, at the time of the offending, the child was under the care, supervision or authority of an accused. Evidence of a former standing relationship, and its attributes, should be able to be relied upon to prove that at the time of the offending the child was under an accused’s care, supervision or authority.
[68]See [6] above.

Viewed in this way, the existence of a former standing relationship is not a matter to be relied on by the prosecution as in itself sufficient to satisfy the elements of care, supervision or authority. By contrast with a current standing relationship, where evidence of the standing relationship is sufficient, without more, to establish that a child is under the care, supervision or authority of the accused, the existence of a former standing relationship is no more than a strand of evidence (although, in certain circumstances, it may be a powerful one) to be taken into account in determining, objectively, whether the prevailing circumstances at the time the sexual activity occurred meant that the child was ‘under’ the accused’s ‘care, supervision or authority’.

To submit otherwise would have been to flout the requirement under s 48 and s 49 that that the offending occur when the child ‘is’ under the care, supervision or authority of the accused. Both s 48 and s 49 use the present tense and it has been emphasised since Howes that there is a need for currency or contemporaneity between the offending and the elements of care, supervision or authority.[69] To permit the prosecution to rely solely upon a former standing relationship as sufficient without more to prove the offence would be to change significantly the nature of the offence. It would amount to an attempt to expand the recognised categories under s 48(4) or s 49(4), from ‘the child’s teacher’ to ‘the child’s teacher or former teacher’ and so on, which enjoys no textual support. Alternatively, it would invite the jury to reason erroneously that simply because a former relationship existed involving care, supervision or authority, it was open to infer that the child remained under the care, supervision or authority despite the standing relationship having come to an end. Drawing such an inference has no logical support and would be wrong without an inquiry as to the facts. The offence would become one where sexual activity was prohibited between a 16 or 17-year-old and any person with whom he or she previously had a standing relationship, for example, a former sports coach, a former employer, a former youth worker, a former teacher. In my view, the reach of the offences would be well beyond what was intended by the statutory provisions, objectively construed.
[69]Howes (2000) 2 VR 141, 161 [63].

It follows that it would be untenable, as Lydgate submitted, to argue that reliance could be placed on a former standing relationship (teacher and pupil, or Principal and student) as a substitute for satisfying the requirement that the child was under the care, supervision or authority of the child at the time of the sexual activity. However, this was not the position adopted by the DPP. As I have indicated, the DPP submitted that it should be permitted to rely on the fact that Lydgate is a former Principal of the school at which the complainant attended as a relevant piece of evidence of which the jury should be aware, and not as enlivening any deeming provision or otherwise conclusively proving the elements of care, supervision or authority.

The DPP argued that the relevance of the evidence of the former standing relationship lay in its ability to assist the jury to understand the dynamics of the personal relationship between Lydgate and the complainant, together with any other relevant aspects of their relationship, to determine whether the qualities of care, supervision or authority from the former standing relationship continued to exist at the time the sexual activity took place. The close temporal proximity of the expiry of the standing relationship to the sexual activity was argued to be relevant to the question of whether the complainant was still under the care, supervision or authority of Lydgate at the time the sexual activity occurred.

The DPP submitted that evidence of the qualities or attributes of the former standing relationship of Principal to student ought be admissible under s 55 of the Evidence Act 2008 (Vic)[70] as forming part of the Crown’s circumstantial case against the accused. It was argued to be evidence that, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding; namely, whether at the time of each act giving rise to each charge, the complainant was at the relevant time under the accused’s care, supervision or authority.
[70]Section 55(1) of the Evidence Act 2008 (Vic) provides: ‘The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.’ Section 56 (1) provides that evidence that is relevant in a proceeding is admissible except as otherwise provided under the Evidence Act2008 (Vic).

To this Lydgate responded by relying on the need for currency that I have emphasised above. He argued that in the trial of an offence under s 48 or s 49 of the Act, the prosecution is always obliged to identify a currently existing standing relationship or aspects of the circumstances of the personal relationship that are said to place the child under the care, supervision or authority of the accused. He submitted that the words ‘care’, ‘supervision’ or ‘authority’, and the concepts they express, are not, in law, satisfied by free-floating notions of inequality of age, experience, wealth or the like; nor are they satisfied by the devices or mechanics whereby meetings are arranged for sexual encounters.

Moreover, Lydgate submitted, before evidence of the attributes of a former standing relationship can be led in proof of the core fact in issue, namely, whether at the time of the offending the child was under the care, supervision or authority of the accused, there must be evidence separate from and independent of the former standing relationship, contemporaneous with the alleged offending and capable in law of objectively demonstrating that the relevant elements are present.

I agree.

I consider that unless the prosecution can establish, on a voir dire, that there is independent evidence that, if believed by the jury, is capable of establishing at law that at the time of the offending the child was under the care, supervision or authority of the accused, there is a real risk that a jury would engage in the fallacious reasoning I have described above,[71] namely, inferring that simply because the child had been under an accused’s care, supervision or authority in the past, especially recent past, he or she must continue to remain so. While it may be accepted that the evidence of a former standing relationship is always relevant in that the requirements of s 55 of the Evidence Act 2008 (Vic) are satisfied (because the existence of a former standing relationship means that the later establishment of an ad hoc relationship is more probable, at least to some degree, than it would have been if there had been no earlier standing relationship), the inherent danger of unfair prejudice to an accused by the admission of evidence of a former standing relationship is considerable.[72] In my view, it is only where the prosecution can satisfy the judge, on the basis of evidence relating to the time of the offending, that the dynamics of the personal relationship between the accused and the child exhibit the relevant elements of care, supervision or authority, that the evidence of the former standing relationship is admissible. Without this safeguard there is a real risk that an accused will be convicted of an offence where the relevant elements have not been satisfied. The accused would thus be convicted for conduct that the Legislature has not proscribed as criminal.
[71]See [52] above.
[72]See s 137 of the Evidence Act 2008 (Vic).

To state that the evidence must be ‘independent’ is not to suggest that it must bear no connection to the former standing relationship; of course, the elements of care, supervision or authority, where they exist after a standing relationship has come to an end, may well have ‘grown out of’ the former standing relationship, as is alleged here. The independent quality of the evidence is, rather, that it must relate to the circumstances between the accused and the child after the standing relationship has come to an end, and its probative value should be assessed in isolation from that former standing relationship.

Thus, in my view, if a judge on a voir dire concludes, on the basis of independent evidence about the circumstances between an accused and a child after the standing relationship has come to an end, that the circumstances are capable at law of establishing that the child is, at the time of the offending, under the care, supervision or authority of the accused, then the prosecution should be entitled at trial to rely on evidence of the former standing relationship to prove that when the sexual activity took place the child was under the care, supervision or authority of the accused, for example, by exploiting the influence that grew out of the former standing relationship.

How might this approach apply to the circumstances between Lydgate and the complainant?

The DPP submitted that there was here a considerable body of text messages between Lydgate and the complainant before and after the cessation of the formal Principal/student relationship. By way of example, the Director of Public Prosecutions submitted that the text messages would reveal that:

(1) The personal relationship between Lydgate and the complainant that existed at the time of the offending conduct was one that grew out of the former personal relationship which originated as Principal and student and that this was an escalating continuum, without any time lapse.[73] The conduct giving rise to charges 1, 2 and 3[74] all allegedly occurred on 9 February 2013,[75] 18 days after Lydgate resigned, and 13 days after the complainant returned from a family holiday in India during which the complainant had been on a school camp.
[73]During the time that Lydgate was still Principal, although there was no sexual activity between he and the complainant he described them as ‘lovers’ and celebrated their one-month ‘anniversary’: in a text message on 13 January 2013 he said: ‘… did you get my text about our one month anniversary?? Ive loved every second of it!!!’ and on 19 January 2013 he texted: ‘… we were so on the same page when we agreed that lovers (and that’s what we are) just don’t end things this way!’: Summary of Crown Opening, [51]-[52].
[74]Indecent act comprised of Lydgate kissing the complainant’s face and mouth, indecent act of Lydgate putting his hand underneath the complainant’s dress touching her thigh and squeezing her bottom and indecent act of Lydgate touching the complainant all over her body including her breast on top of her bra, respectively.
[75]Summary of Crown Opening, [66], [68]–[70].

(2) Lydgate requested the complainant not attend school events in order for her to have contact with him; for example, immediately before the school camp, which commenced days after his resignation, he requested that she not attend the camp, because his wife and children were away, and he wanted the complainant to spend time with him at his house.

(3) There was an inherent power imbalance between Lydgate and the complainant, seated in the former standing relationship of Principal and student, which operated on the complainant’s mind and affected her actions and ability to consent freely to Lydgate’s sexual advances. It was Lydgate who constantly initiated the contact between them; seldom did the complainant ever suggest a meeting.

(4) After his resignation as Principal, Lydgate encouraged the complainant to keep their relationship a secret from her support network including from:

(a) her student/teacher mentor;

(b) her parents;

(c) her close friends; and

(d) the school community in general, including asking the complainant to write a letter to the new Acting Principal asserting the complainant’s contention that the accused was not ‘grooming’ her.[76]
[76]Text message from Lydgate 7 February 2013. The complainant wrote the letter and gave it to the Acting Principal: Summary of Crown Opening, [64].

(5) After his resignation, Lydgate encouraged the complainant to enable him to breach the intervention order imposed to preclude contact between them.[77]
[77]An interim personal safety intervention order had been obtained by the police on behalf of the complainant on 6 March 2013 after the complainant’s parents took the complainant to the police. Lydgate was served on 7 March 2013. In breach of the order, Lydgate communicated with the complainant and a Full Order was obtained on 8 April 2013: Summary of Crown Opening, [81]-[85]. Lydgate arranged with the complainant to meet him, in breach of the interim order, on the night of the school formal, during March 2013. He had parked in a side street. The conduct constituting Charge 4 (indecent act) allegedly occurred then: Summary of Crown Opening, [86]-[89].

(6) Lydgate organised for a ladder to be used to enable the complainant to jump over the fence of her parents’ house in order to meet with him.

(7) After the sexual relationship commenced, Lydgate collected the complainant from school during school hours to have contact with her.[78]
[78]Summary of Crown Opening, [120].

(8) During April 2013, Lydgate suggested to the complainant that he provide her with sleeping pills to drug her parents so as to facilitate her ability to leave the house at night to spend time with him.[79]
[79]Ibid [119]. Lydgate gave the complainant the sleeping pills on 2 May 2013 [143].

(9) Lydgate insisted that the complainant remain in the sexual relationship with him, despite her repeated attempts to extricate herself from it.[80]

(10) Lydgate engaged in a covert relationship knowing that the complainant suffered from an ‘attachment disorder’, knowledge that he acquired as her Principal.

[80]Paragraph 117 of the Summary of Crown Opening reads: ‘After the sexual relationship commenced, the Complainant told the accused she would not have sex with him but felt like she couldn’t stop what was happening. Whenever the Complainant questioned the Accused about their relationship and what was occurring, the Accused was able to convince her otherwise. The Accused would often tell the Complainant that he did not see her as his student or as a 17 year old. The Complainant still viewed the Accused as her school Principal, however, the Accused told the Complainant that they were not doing anything wrong and that he loved her.’ According to the Summary of Crown Opening the complainant ‘felt the Accused was bombarding her with messages and would not give her any space’ and he indicated his displeasure via text at her wanting to go out with her teenage friends to parties and drink, saying ‘Please don’t go out drinking again tonight … you won’t get home by 11 … And if you do you’ll be to drunk to talk to me … like last night …’ [126], [127]. Lydgate was arrested on 3 May 2013.

Lydgate argued that the matters identified do not meet the threshold for admission. In particular, many of the matters relied upon were not independent and contemporaneous with the alleged offending. While this is true, it must also be accepted that many of the matters identified (most especially, the encouragement to maintain secrecy; the encouragement to the complainant to send a letter to the new Acting Principal denying grooming; the encouragement to the complainant to breach the intervention order; the supply of sleeping pills to the complainant to drug her parents so she could slip away to meet him; the unsuccessful attempts of the complainant to extricate herself) are confined to the period of the alleged offending.

The DPP made it clear that he intended to rely at trial on any, or all, of the three elements of ‘care’, ‘supervision’ or ‘authority’ being satisfied, he being under no obligation to elect which of the elements he primarily relied upon and a jury being free to vary amongst themselves as to which of the three elements they considered to be satisfied.[81]
[81]See [31] above.

Nevertheless, he emphasised that the evidence would demonstrate that, in particular, the element of ‘authority’ was satisfied. ‘Authority’ being a word of ordinary English meaning,[82] the DPP supported his submission by relying upon the Oxford English Dictionary’s definition that encompassed the following meaning:

Power to influence the conduct and actions of others; personal or practical influence.[83]

[82]See [31] above.

[83]Oxford English Dictionary (online, extracted 26 March 2014).

This meaning of ‘authority’ was referred to by Brooking JA in Howes.[84] However, as his Honour acknowledged, different dictionaries may contain definitions with variable shades of meaning and while dictionary definitions may give some assistance to a jury, they are not to be substituted for the words of an Act.[85] Indeed, the Oxford English Dictionary itself gives multiple alternative meanings to ‘authority’, and the full entry of the principal meanings is as follows:
[84]Howes (2000) 2 VR 141, 159 [57].
[85]Cosens v Brutus [1973] AC 854, 861.

I. Power to enforce obedience.
1.a. Power or right to enforce obedience; moral or legal supremacy; the right to command, or give an ultimate decision.
b.in authority: in a position of power; in possession of power over others.

2.a. Derived or delegated power; conferred right or title; authorization.
b. with inf. Conferred right to do something.
3.Those in authority; the body or persons exercising power or command.

II. Power to influence action, opinion, belief.
4.Power to influence the conduct and actions of others; personal or practical influence.
5.Power over, or title to influence, the opinions of others; authoritative opinion; weight of judgment or opinion, intellectual influence.
6.Power to inspire belief, title to be believed; authoritative statement; weight of testimony. Sometimes weakened to: Authorship, testimony.
7.The quotation or book acknowledged, or alleged, to settle a question of opinion or give conclusive testimony.
8.a. The person whose opinion or testimony is accepted; the author of an accepted statement.

b. One whose opinion on or upon a subject is entitled to be accepted; an expert in any question.[86]

[86]Original emphasis.

There is a relevant limitation on the assistance to be given by these dictionary definitions given that, as none of the three elements of ‘care’, ‘supervision’ or ‘authority’ is to be understood as tantamount to coercive power, ‘authority’ is not to be understood as reflecting the threat of enforcement. The meanings compiled under the category of ‘Power to enforce obedience’ may thus seem irrelevant.

The definition relied upon by the DPP as a power to influence, and the other definitions of a ‘power over … the opinions of others’, or an opinion that ‘is entitled to be accepted’, perhaps better convey the variety of meanings expressed by the word ‘authority’ in the context of s 48 and s 49 of the Act.[87] The DPP’s submission was that the text messages revealed aspects of the personal relationship between Lydgate and the complainant, as identified by way of example above,[88] that demonstrated that Lydgate had exploited the influence he had over the child by reason of the former standing relationship of Principal and student to establish a situation whereby the complainant remained under his care, supervision or authority at the time of the offending, when the former standing relationship had come to an end. He had exploited the former standing relationship to establish and maintain an ad hoc or temporary relationship whereby the complainant was under his care, supervision or authority at the time of the occasions of sexual penetration and indecent acts. On the Crown’s case, Lydgate, far from ‘throwing off’ the attributes of the former standing relationship when he resigned as Principal, took advantage of those attributes that gave him authority over the complainant, in the relevant sense, to establish a relationship whereby the complainant remained under his authority. Amongst the matters relied on above were occasions on which the complainant unsuccessfully sought to extricate herself from the sexual relationship with Lydgate amidst his reassurances that there was nothing wrong about the sexual relationship between them.
[87]This meaning of authority would also apply to hypothetical circumstances where a teacher resigns overnight but does not tell his students for some time; he may continue to exert authority over the students, in the sense of a ‘power to influence’, or as expressing an opinion ‘entitled to be accepted’, even though it has no legal source. There is no requirement that the authority be lawfully created or delegated. See [49] above.
[88]See [63] above.

The inferences that can be drawn from the text messages are matters to be assessed by the trial judge, at least initially, and, depending on the judge’s assessment, they may then be a matter for the jury. I express no opinion on the sufficiency of the independent evidence. These are matters to be properly explored before her Honour. However, it is my view that if the DPP can establish before her Honour, on a voir dire, on evidence that is confined to the time of the offending, that there is sufficient independent evidence (in the relevant sense) that the complainant was under Lydgate’s care, supervision or authority when the acts of sexual penetration and the indecent acts took place, the DPP should be permitted, having satisfied the threshold, to lead evidence at trial of the existence of the former standing relationship and its attributes. He can then rely on the former standing relationship to explain, for example, how the former standing relationship was exploited to establish the ad hoc relationship between Lydgate and the complainant. It will then be for the jury, on the whole of the evidence, to determine as a matter of fact the disputed and critical issue of whether, at the time of the offending, the complainant was under Lydgate’s care, supervision or authority.

Q2: Is temporal proximity relevant?

The DPP submitted that, in general, the more proximate in time the former standing relationship is to the sexual activity, the greater the probative value of the evidence of the former standing relationship and its attributes and qualities to determine if, at the time of the offending, the child was under the supervision, care or authority of the accused. He accepted that at some stage the existence of the former standing relationship would become so remote from the sexual activity that evidence of the former standing relationship would have no probative value and would be inadmissible.

Lydgate submitted that temporal proximity to a former standing relationship should not be relevant in determining whether evidence of a former standing relationship is admissible to prove the elements of care, supervision or authority at the time of the offending. He pointed to the inherent uncertainty that would be caused if the position adopted by the DPP were to be accepted. He asked rhetorically: At what stage, on the DPP’s approach, does temporal proximity become so remote from alleged sexual activity as to have no probative value? The lack of any obvious cut-off point runs the risk that, if the evidence were to go before a jury, they would be tempted to make a value judgment as to whether a personal relationship that may be morally reprehensible and inappropriate merits criminal sanction. Yet it is not for a jury to decide whether or not a particular personal relationship is an offence; this would not only deprive the law of certainty but would be contrary to statutory purpose.

In my view, the temporal proximity of the alleged sexual activity to the former standing relationship is not relevant in determining whether evidence of a former standing relationship is admissible to prove the elements of care, supervision or authority. This is because, on the approach described above, in determining admissibility, a judge will consider only whether the circumstances at the time of the offending are capable at law of giving rise to an inference that the child was, at that time, under the care, supervision or authority of the accused. The temporal proximity to the former standing relationship will not be in issue.

However, if a judge determines that the evidence of the former standing relationship is admissible, the temporal proximity of the former standing relationship will be relevant to proof at trial of the elements of care, supervision or authority. This is because an accused is more readily able to take advantage of, or exploit, a former standing relationship if there has been no gap between the former standing relationship and the period of sexual activity. Conversely, the longer the gap between the former standing relationship and the time of the sexual offending the less probative value will attach to the evidence of the former standing relationship.

Q3: What are the necessary jury directions?

It would not be appropriate in responding to questions in a Case Stated to formulate jury directions. However, some observations, which are necessarily incomplete, can be drawn from the reasoning above. I have set these out at the commencement of these reasons.[89]
[89]See [12] above.

Q4: Is there a defence based on lack of relevant intention?

Question 4 invites consideration of those circumstances where, a standing relationship having come to an end, an accused does not intend to engage in sexual activity with a child under his care, supervision, or authority. Is that lack of intention a defence?

The DPP submitted that the answer should be ‘No’. He submitted that the mental element in an offence under s 48 or s 49 is that of a conscious, voluntary and deliberate act done with the intention to commit the act of sexual penetration or the indecent act. In addition, the DPP accepted that the Crown would need to prove that, at the time of the relevant offending, the accused knew the facts and circumstances relied on to give rise to the inference that at the relevant time the complainant was under the accused’s care, supervision or authority. He argued that there was no need for the Crown to prove that the accused knew or was aware of the legal consequences that flow from the facts and circumstances relied on by the Crown. Lydgate accepted this.

Nevertheless, Lydgate submitted, a defence is open to an accused that he had an honest and reasonable belief that the child was not under his care, supervision or authority. He accepted that an evidentiary burden would lie on an accused to establish this.

I consider that Lydate’s submission should be rejected. Sub-section (2) of s 48, and sub-s (2) of s 49, identify those beliefs of an accused that are relevant, namely, the belief of an accused on reasonable grounds that the child was aged 18 or older or that he was married to the child. The manner in which those beliefs are to be taken into account is significant. The presence of either of those beliefs does not itself provide a defence. Rather, the beliefs are indirectly relevant to an accused’s defence in that, if the beliefs are made out, they allow for consent to be relied upon as a defence. This suggests that the Legislature has turned its mind to the issue of defences, limiting that which is available to that of consent which is only available in certain confined circumstances. Given that the Legislature has chosen to identify certain beliefs of an accused as having indirect relevance to a defence, it is unlikely that another belief, not specified in the Act, could be directly relied upon as a defence. This is all the more so when the relevant belief, that of an accused honestly and reasonably believing that the child was not under his care, supervision, or authority, is arguably a comparatively less demanding belief than that of an accused believing that the child is aged 18 or is married to him. It is ‘less demanding’ in the sense that it would be more easily satisfied than beliefs about age or, especially, about marriage. It would be curious if less demanding beliefs could provide a direct defence when the more demanding beliefs can only operate indirectly, to permit an accused to rely on consent as a defence.

In my view, there is no defence to the offence created under s 48 or s 49 of the Act based on an accused’s lack of intention to engage in sexual activity with someone whom he believes is under his care, supervision or authority.

Q5: If so, what does the prosecution have to prove on intention?

Lydgate submitted that the DPP would have the legal burden of proving the accused’s knowledge of the element of care, supervision or authority.

Given my answer to Q4, this question does not arise.

Q6: If so, is there an evidentiary burden on the accused?

Given my answer to Q4, this question does not arise.

Conclusion

The questions of law reserved for determination should be answered in the manner I proposed above.[90]

[90]See [12] above.

BEACH JA:

Introduction

Thomas Lydgate, the accused, has been indicted on a number of charges of taking part in an act of sexual penetration with a 16 or 17 year old child contrary to s 48(1) of the Crimes Act 1958 (the ‘Act’) and a number of charges of committing an indecent act with a 16 or 17 year old child contrary to s 49(1) of the Act.

Before a jury was empanelled on the accused’s trial, it was agreed by the parties that the single issue at trial would be whether in circumstances where the accused resigned from his employment as principal of the school at which the complainant was a student and sexual activity took place thereafter, the prosecution can prove that the complainant was under his care, supervision and authority within the meaning of s 48 and s 49 of the Act at the time relevant sexual activity took place. The undisputed core facts may be stated as follows:

(a) the complainant was 17 years of age at all relevant times;

(b) during 2012, the complainant was a year 11 student at a school at which the accused was employed as the principal;

(c) although the accused was not a classroom teacher of the complainant, the complainant was under his care, supervision or authority while he was the principal and she was a student;

(d) an inappropriate relationship, excluding sexual activity, developed between the complainant and the accused during the accused’s employment as principal;

(e) in December 2012, the accused was suspended from his employment;

(f) following that suspension, the accused continued to communicate with the complainant via text messages on a mobile telephone, and the communications became sexual in nature;

(g) in January 2013, the accused resigned his position as principal; and

(h) between 9 February and 2 May 2013 (the dates on the indictment), the accused engaged in a sexual relationship with the complainant.

Pursuant to s 302 of the Criminal Procedure Act 2009, the trial judge reserved the following questions for determination by this Court:

1. Can the prosecution rely on evidence of the qualities or attributes of a former relationship of the kind listed in ss 48(4) and 49(4) Crimes Act 1958 (a standing relationship[91]) to prove that at the time of the offending, the complainant was under the care, supervision or authority of the accused (an ad hoc relationship[92])? eg by establishing that an accused was in a position to exploit or take advantage of the influence that grew out of the former relationship.[93]
[91]See R v Howes (2000) 2 VR 141, 161–2 [62]–[64], 165 [71] (‘Howes’).
[92]Ibid 161 [63].
[93]Ibid 160 [59].
2. Is the temporal proximity of the sexual activity to the former relationship relevant in determining whether
(a)evidence of a former relationship of a kind listed in ss 48(4) and 49(4) Crimes Act 1958 (a standing relationship) is admissible to prove the element of care, supervision or authority?
(b)this element of care, supervision or authority is proved?

3.   If evidence is permitted of the former relationship, how is it to be used by the jury? ie what directions are required?
4. Where a person terminates a standing relationship of a kind listed in ss 48(4) and 49(4) Crimes Act 1958, and thereafter sexually penetrates or commits an indecent act with a 17 year old in the belief that the child is no longer under his care, supervision or authority, is there a defence open on the lack of intention to engage in that sexual activity within the proscribed relationship?
5.   If so, what does the prosecution have to prove, if anything, in relation to intention?
6.   If so, is there an evidentiary burden on the accused?[94]
[94]Citations in original.

Sections 48 and 49 of the Act

Section 48 of the Act provides:

48       Sexual penetration of 16 or 17 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 5 imprisonment (10 years maximum).
(2)Consent is not a defence to a charge under subsection (1) unless the accused satisfies the court on the balance of probabilities that 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.
(3)If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent.
(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 member of the police force 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.

Section 49 of the Act is a mirror of s 48 of the Act. While s 49(1) is in different terms from s 48(1), sub-ss (2) to (4) of s 49 are in identical terms to sub-ss (2) to (4) of s 48. Sub-section 49(1) relevantly provides:

49 Indecent act with 16 or 17 year old child
(1)A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of 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 6 imprisonment (5 years maximum).

Question 1

Question 1 is framed in terms of ‘the time of the offending’. It should immediately be said that no ‘offending’ by the accused has yet been established. The question would have been better framed if it had talked in terms of the time of relevant sexual activity upon which the charges facing the accused have been brought. The question at issue in this case is, after all, whether the complainant was under the accused’s care, supervision or authority at the time each act of sexual activity occurred. That said, I turn now to the issues raised by question 1.

Some of the language of question 1(‘standing relationship’ and ‘ad hoc relationship’) comes from this Court’s decision in R v Howes.[95] In Howes,[96] the accused was a teacher and the complainant his pupil at a school in a provincial city. The complainant was unable to attend a Melbourne University open day. She told the accused she intended to look over the university on another day. The accused was doing a part-time course at the university and he said he would gladly show the complainant around. The accused and the complainant arranged to meet in Melbourne. The complainant alleged a sexual encounter between them in Melbourne after the pre-arranged meeting at the university. At trial, the accused denied any sexual encounter and said that the meeting at the university was by chance.
[95]Howes (2000) 2 VR 141.
[96]Ibid.

In Howes,[97] the Court’s analysis proceeded on the basis that if the jury was satisfied that a standing relationship of care, supervision or authority was established between two persons, and that the relationship still existed as a standing relationship on the day on which sexual penetration took place, the jury might convict under s 48(1) notwithstanding that the occasion on which the penetration took place was not connected with and did not arise out of the relationship and the parties were not acting in any sense in the capacities which gave rise to the relationship. The Court said that the responsibility arising from that relationship could not be turned ‘on and off’ at the whim of the parties, but subsisted so long as there existed a relationship of care, supervision or authority.
[97]Ibid.

The two principal judgments in Howes[98] were delivered by Winneke P and Brooking JA. Chernov JA agreed in the result for the reasons given by Winneke P and Brooking JA. Winneke P dealt with the relevant issues in the following terms:

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 43 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.[99]

[98]Ibid.

[99]Ibid 144 [5].

Brooking JA dealt with the relevant issues as follows:

To say that no causal connection is necessary between the act of sexual penetration and the relationship of care, supervision or authority in the sense that it is not necessary that the complainant’s consent shall have been to any extent induced by the relationship of care, supervision or authority with the teacher is not to dispose of the question whether a schoolteacher can with impunity have sexual intercourse with a pupil on a pedagogical dies non. The issue presented to the jury on the trial of the present applicant was whether the day of the incident was a dies non. Implicit in the submissions made on his behalf to both judge and jury was the contention that a schoolteacher who was, at least tacitly, conceded at the trial to have had the complainant under his care, supervision or authority on school occasions, could throw off the relationship on other occasions. At the trial, and even before us, the applicant’s counsel concentrated on the girl’s own statements in evidence that the meeting was a private one and that on the day of the incident the applicant had no authority over her. In the result, no clear proposition has at any stage been advanced about what, conscious of the burden of proof, I will nevertheless call the applicant’s ability, as a matter of law, to deny that the relationship mentioned in the section, once proved to have been created, existed on occasions other than school occasions. I have attempted to formulate in one way, by distinguishing between school occasions and other occasions, the proposition implicit in the argument. Other attempts could be made to formulate the implicit proposition by the framing of some question. Was the occasion connected with the relationship? Did it arise out of the relationship? Were the parties acting in the capacities which constitute the relationship?
A variety of views might be taken on this question of dies non. I doubt whether anyone would suggest – certainly Mr Priest did not – that the section, in the case of a schoolteacher/pupil relationship, proscribes sexual activities only if they occur during a school activity or on school premises. Almost any apologist would, I imagine, concede that a tryst made surreptitiously during a mathematics period, leading to sexual penetration in the teacher’s car in the course of a journey after school, would support a conviction. The most extreme view, from the Crown’s point of view, and the one we were invited to adopt, is that, once a teacher has established with a pupil a standing relationship falling within the section, sexual penetration is in all circumstances forbidden until that standing relationship has been brought to an end. On this view, the relationship cannot be suspended, as it were, during the weekend. Another possible view, not so extreme, is that it will always be for the jury, in cases of a standing relationship of teacher and pupil, to say whether on a given occasion the pupil was under the teacher’s care, supervision or authority and that it is open to the jury to make that finding even though the occasion is entirely unrelated to the teacher’s position as such and the pupil’s position as such. On this approach, even if the applicant had met the complainant by chance at a hotel on a Saturday night and nothing they did that night had had any connection at all with the relationship of teacher and pupil, it would still have been open to a jury to convict if the night had ended in sexual penetration.
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[100]. 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.)
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. This distinction was made apparent in the three sections (ss 48, 49 and 50) introduced into the Principal Act by the Act of 1980 and it is also made apparent in the present s 66C in New South Wales. The three Victorian sections distinguished, as does the New South Wales one, between the existence of the relationship ‘generally’ and its existence at the time of penetration. This recognises that where, for example, there is a standing relationship of teacher and pupil the pupil may (on the Crown’s most extreme view one would say ‘must’) be found to be under care, supervision or authority on an occasion that is not a school occasion – an occasion, that is, that does not call for the exercise of the care, supervision or authority which is an incident of the standing relationship.[101]

[100]Court of Criminal Appeal, Unreported, 21 October 1993.

[101]Ibid 160–2 [61]–[64] (citation in original).

Brooking JA concluded:

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 the parties were not acting in any sense in the capacities which gave rise to the relationship. I refer to the decision in Audet and in addition to Ellis, where Kennedy J observed that the relationship between the child and the supervisor did not necessarily cease outside working hours or away from the premises. The leading judgment seems to me to proceed on the basis that the trial judge had rightly left to the jury the counts charging offences committed away from the work premises.[102]

[102]Ibid 165 [71] (citation omitted).

The judgments in R v Howes talk in terms of standing relationships and ad hoc relationships because in that case there was an undisputed and existing standing relationship of teacher/pupil between the accused and the complainant. The present case is not a case of that kind. In the present case, the standing relationship of teacher/pupil was terminated before any sexual activity occurred between the accused and the complainant.

A number of propositions may be stated about ss 48 and 49 of the Act. Some of them come from Howes.[103] 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.[104]
[103](2000) 2 VR 141; see also the Victorian Criminal Charge Book, and in particular the bench notes at para 7.3.4.4.
[104]Howes (2000) 2 VR 141; R v Macfie [2000] VSCA 173.

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,[105] 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.[106] 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.
[105](2014) 88 ALJR 514.
[106]Ibid 518 [22].

The question of whether the Crown can rely on evidence of the kind set out in question 1 of the referred questions depends (absent discretionary or other grounds for exclusion) upon whether the evidence is relevant to a fact in issue as required by pt 3.1 (ss 55 to 58) of the Evidence Act 2008 (Vic). To be relevant, such evidence must be evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding – in this case whether the complainant was, at the time of relevant sexual activity, under the accused’s care, supervision or authority. It is irrelevant to prove that at some prior time the complainant may have been under the care, supervision or authority of the accused unless the proof of that fact is probative of the relevant state of affairs at the time of relevant sexual activity.

Question 1 of the referred questions is not easy to answer. At one level, the question might be answered ‘no’ on the basis that merely establishing that an accused was in a position to exploit or take advantage of an influence that grew out of a former relationship says nothing about whether at the time of relevant sexual activity the complainant was under the accused’s care, supervision or authority. On the other hand, the fact that a particular accused was in a position to exploit or take advantage of an influence that grew out of a former relationship may, when taken with other evidence (or in context with other established facts), be capable of forming a basis for the conclusion that at the time of relevant sexual activity the complainant was under the care, supervision or authority of the accused.

While there will be some cases where (either by operation of sub-s (4) or because the facts are clear) it will not be necessary to go into the details of a past or developing relationship in order to determine whether at the time in question the complainant is under the care, supervision or authority of the accused, there will be other cases (and perhaps this is one) where in order to determine whether or not the words of sub-s (1) are satisfied, it is necessary to look at the connecting facts and circumstances between the accused and the complainant during a period or periods prior to the commencement of sexual activity.

Question 1 of the referred questions invite a consideration of the admissibility of evidence of a prior relationship. The issue of admissibility falls first to be determined by examining the relevance of the proposed evidence in the way I have described. The question cannot, at this stage, invite any consideration by this Court of other bases upon which the evidence, if relevant, might be excluded (for example, because the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused[107]). The issues raised in question 1 can only be answered, at the moment, in the first instance. Other possible bases for excluding any evidence that satisfies the relevance test in the Evidence Act 2008 (Vic) must be left for the trial judge to determine by reference to the facts and submissions that might be made in respect of each particular item of evidence to which objection might be taken.
[107]See s 137 of the Evidence Act 2008 (Vic).

For these reasons, I would answer question 1 as follows:

The question of whether the prosecution can, in the first instance, rely upon evidence of the qualities or attributes of a former relationship to prove that at the time of the relevant sexual activity the complainant was under the care, supervision or authority of the accused falls to be determined by determining whether the particular piece or pieces of evidence sought to be admitted could rationally affect (directly or indirectly) the assessment of the probability of the existence of the alleged fact that at the time of relevant sexual activity the complainant was under the care, supervision or authority of the accused. The mere proof that an accused was in a position to exploit or take advantage of an influence that might have grown out of a former relationship could not, without more, establish that the complainant was under the accused’s care, supervision or authority after the former relationship ended.

Question 2

Question 2 asks about the relevance of the temporal proximity of the sexual activity to the former relationship between the accused and the complainant. For myself, I see no relevant distinction between part (a) of question 2 and part (b) of question 2. That said, if the Crown seeks to establish the relevance of a former relationship in the way I have discussed above, then logic would suggest that, absent evidence to the contrary, the closer the former relationship in time to the relevant sexual activity, the more likely a conclusion that the evidence of the former relationship is relevant to the question of whether the complainant was under the care, supervision or authority of the accused at the time of the relevant sexual activity.

For these reasons, and the reasons given in respect of my answer to question 1, I would answer question 2 as follows:

If a former relationship is sought to be made relevant to the issue of whether the complainant is at the time of relevant sexual activity under the care, supervision or authority of the accused then, absent evidence to the contrary, temporal proximity between the former relationship and the sexual activity is, depending upon what other evidence is called, likely to be relevant. Ultimately the question, however, comes down to whether or not proof of the former relationship, at whatever time it was in fact in existence, could rationally affect (directly or indirectly) the assessment of the probability of the existence of the alleged fact in issue – being whether the complainant was at the time of relevant sexual activity under the accused’s care, supervision or authority.

Question 3

Question 3 asks if evidence is permitted of the former relationship, how is it to be used by the jury (that is, what directions should be given to the jury)? At the outset, it must be said that any answer to this question could never be regarded as complete in all circumstances. The directions required to be given by a trial judge to the jury in a case such as the present will, as in every case involving a jury, be required to be crafted by the judge by reference to the issues in the trial and the facts of the case. That said, the following general observations may be made.

First, evidence of the former relationship might be led merely to give context to the evidence from which the jury will be asked to conclude that at the time of relevant sexual activity the complainant was under the care, supervision or authority of the accused. In such circumstances, the jury would be directed that the evidence was not itself evidence that the complainant was under the accused’s care, supervision or authority, but that the evidence was only contextual and was led to explain the relationship between the parties. If the evidence is admitted as context evidence then the jury should be given the usual directions concerning the permissible uses of context evidence and the impermissible uses of context evidence (tailored to fit the circumstances of the relevant case).[108]
[108]See para 4.16.9 of the Victorian Criminal Charge Book.

Secondly, if the evidence of the former relationship has been admitted as being probative of whether or not the complainant was under the care, supervision or authority of the accused at the time of relevant sexual activity then the jury should be instructed that this is the only permissible use to which such evidence can be made. Specifically, the jury should be told that they cannot use the evidence of the prior relationship to reason from the mere existence of that fact to a conclusion of guilt. The question must always be whether, on the whole of the evidence, the Crown has satisfied the jury beyond reasonable doubt that at the time of relevant sexual activity the complainant was under the care, supervision or authority of the accused.

For these reasons, I would answer question 3 in the following terms:

While the directions in each case must be crafted by the judge by reference to the issues in the trial and the facts of the case, the following general approach should be taken. If the evidence of the former relationship is context evidence, the standard directions as to the permissible and impermissible uses of such evidence (tailored to fit the facts of the instant case) should be given. If the evidence is admitted to prove the care, supervision or authority element of s 48 and/or s 49 offences, then directions should be given to the jury that the evidence is only admissible for that purpose and the jury is not to reason from the mere existence of the former relationship that the element of care, supervision or authority is satisfied and/or that the accused is guilty of the offence charged.

Question 4

While question 4 is predicated upon a person terminating a standing relationship of the kind listed in sub-s (4) of each of ss 48 and 49, if the defence exists then it must also exist for a person who sexually penetrates or commits an indecent act with a 17 year old in the belief that the child is not (or was not at the time of relevant sexual activity) under his care, supervision or authority.

Sub-section (2) of each section gives the accused a defence if he satisfies the court on the balance of probabilities that at the time of relevant sexual activity the accused believed on reasonable grounds that the child was aged 18 years or older, or that the accused was married to the child. No defence is provided for in either s 48 or s 49 based upon a reasonable belief that the child is no longer under the accused’s care, supervision or authority. Parliament having provided defences in sub-s (2) of each of ss 48 and 49 of the Act which deal with an accused’s belief on reasonable grounds in relation to two elements of the offences created by those sections (whether the complainant was 18 years or older, and whether the accused was married to the complainant), there is, in my view, no room for a construction of either s 48 or s 49 that permits of a defence now contended for by the accused. Any such defence could have been provided for, in terms similar to those found in sub-s (2) of each of ss 48 and 49 had Parliament so intended.

It is not necessary for an accused to know or believe that a complainant is under his care, supervision or authority. There is no doubt that the mental element of the offences created by ss 48 and 49 of the Act involves intending to commit the relevant sexual act (ie, conscious, voluntary and deliberate). In addition to this mental element, the Crown concedes that the accused must also know the relevant facts from which the conclusion that the complainant was under the accused’s care, supervision or authority arises.

As the Crown has conceded in this case that it must prove that the accused knew the relevant facts from which the element of care, supervision or control can be inferred, it is not necessary for this Court to determine that question. That said, ss 48 and 49 of the Act create serious offences. It would be consistent with the seriousness of the offences created that there be a mental element in respect of each of the elements of the offences created.[109] However, this does not mean that the Crown has to prove the accused was aware of the legal consequences that flowed. The Crown does not have to prove the accused was aware of the legal consequences that flow from the facts giving rise to the conclusion that the complainant was under the accused’s care, supervision or authority.[110]
[109]See He Kaw Teh v The Queen (1985) 157 CLR 523.
[110]See R v Turnbull (1943) 44 SR (NSW) 108, 109; and He Kaw The v The Queen (1985) 157 CLR 523 at 531 (Gibbs CJ), at 546 (Mason J), and at 572 (Brennan J). See also R v Macfie [2000] VSCA 173.

The Crown must prove the mental elements to which I have referred. Defences are provided in sub-s (2) of each of ss 48 and 49 of the Act. That said, the short answer to question 4 is, for the reasons given above, ‘no’.

Questions 5 and 6

Questions 5 and 6 are predicated on an affirmative answer to question 4. As question 4 has been answered in the negative, questions 5 and 6 should be answered ‘not applicable’.

Conclusion

For the reasons given above, I would answer the reserved questions as follows:

1.The question of whether the prosecution can, in the first instance, rely upon evidence of the qualities or attributes of a former relationship to prove that at the time of the offending the complainant was under the care, supervision or authority of the accused falls to be determined by determining whether the particular piece or pieces of evidence sought to be admitted could rationally affect (directly or indirectly) the assessment of the probability of the existence of the alleged fact that at the time of relevant sexual activity the complainant was under the care, supervision or authority of the accused. The mere proof that an accused was in a position to exploit or take advantage of an influence that might have grown out of a former relationship could not, without more, establish that the complainant was under the accused’s care, supervision or authority after the former relationship ended.
2. If the former relationship is relevant to the issue of whether the complainant is at the time of relevant sexual activity under the care, supervision or authority of the accused, then temporal proximity between the former relationship and the sexual activity is also, depending upon other evidence, likely to be relevant. Ultimately the question, however, comes down to whether or not proof of the former relationship could rationally affect (directly or indirectly) the assessment of the probability of the existence of the alleged fact in issue – being whether the complainant was at the time of relevant sexual activity under the accused’s care, supervision or authority.
3. While the directions in each case must be crafted by the judge by reference to the issues in the trial and the facts of the case, the following general approach should be taken. If the evidence of the former relationship is context evidence, the standard directions as to the permissible and impermissible uses of such evidence should be given. If the evidence is admitted to prove the care, supervision or authority element of s 48 and/or s 49 offences, then directions should be given to the jury that the evidence is only admissible for that purpose and the jury is not to reason from the mere existence of the former relationship that the element is satisfied and/or the accused is guilty of the offence charged.
4.No.

5. Not applicable.
6.Not applicable.

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[2014] VSCA 144

1 July 2014