Marshall v Police
[2007] SASC 380
•30 October 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARSHALL v POLICE
[2007] SASC 380
Reasons for Decision of The Honourable Justice Sulan
30 October 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - OTHER IRREGULARITIES
Appellant was charged with two counts of causing a person under the age of 16 years to expose part of his or her body with a view to gratifying a prurient interest, contrary to s 58A of the Criminal Law Consolidation Act 1935 - appellant raised defence of mental incompetence - Magistrate conducted hearing and made findings on objective elements - Magistrate conducted hearing and made findings on defence of mental incompetence - Magistrate proceeded to find the charges proved - held, allowing appeal: Magistrate erred in failing to conduct hearing and hear submissions on subjective elements of charges - matter remitted to Magistrate at first instance for rehearing with respect to subjective elements only.
Criminal Law (Sentencing) Act 1988 s 23; Criminal Law Consolidation Act 1935 s 58A, part 8A; Magistrates Court Act 1983 s 22; Summary Procedure Act 1921 s 68(3); Supreme Court Rules 2006 r 292; Youth Court Act s 9(3), referred to.
Grey v Police [2004] SASC 213; W, JS v Police (2005) 240 LSJS 99, applied.
Police v Marshall (unreported, Mr K J Prescott CM, Magistrates Court of South Australia, 19 April 2006); Police v Marshall (unreported, Judge Prescott, Magistrates Court of South Australia, 21 June 2007), considered.
MARSHALL v POLICE
[2007] SASC 380Magistrates Appeal: Criminal
SULAN J: The appellant was charged with two offences of causing a person under the age of 16 years to expose part of his or her body with a view to gratifying a prurient interest, contrary to s 58A of the Criminal Law Consolidation Act 1935. The trial commenced before Mr Prescott CM (as he then was). During the period when the proceedings were being heard, Mr Prescott CM was appointed a Judge of the Youth Court. He continued to hear the matter and completed it sitting as a Magistrate.[1] The appellant was convicted of both counts. The counts were referred to as counts two and three.
[1] Section 22 of the Magistrates Act 1983 provides that a District Court Judge may exercise the jurisdiction, powers or functions of a magistrate. Section 9(3) of the Youth Court Act 1993 provides that Judges of the Youth Court are District Court Judges designated by proclamation as Judges of the Youth Court.
The appellant appealed against both of the convictions, and also appealed against the Magistrate’s order that the appellant be remanded to the Supreme Court for sentencing pursuant to s 23 of the Criminal Law (Sentencing) Act 1988.
I heard the appeal on 22 October 2007. On that date, I granted an extension of time in which to appeal, and made further orders. Relevantly, I allowed the appeal and set aside the convictions. I referred the matter back to the Judge (sitting as a Magistrate) who had heard the action at first instance, for the purpose of hearing and determining the subjective elements of the alleged offences. I indicated on that date that I would publish brief reasons. It is necessary first to identify the grounds of appeal before me.
Grounds of Appeal
The notice of appeal disclosed seven grounds of appeal. At the commencement of the hearing before me, counsel for the appellant indicated that he did not wish to pursue grounds one to three and seven.
Grounds four and five were in the following terms:
4.The learned judge erred in determining that the objective elements of the offence charged were that
“1. That the accused did an act which caused a child to expose any part of his or her body.
2. That the child at the relevant time was under the age of 16 years.”
5.The learned judge erred in proceeding to find the 2 charges proven beyond reasonable doubt without finding all of the elements of the offence proven.
The gravamen of ground four was that the Judge had incorrectly formulated the objective elements of the offence. Ground five followed as a consequence of ground four. During argument, the appellant’s counsel abandoned grounds four and five of the appeal.
Ground six is as follows:
6.The learned judge erred in proceeding to find the 2 charges proven beyond reasonable doubt without hearing evidence or submissions as to whether the appellant’s conduct was defensible.
Counsel submitted that the Judge should have conducted the trial of the appellant in three stages, but failed properly to conduct the third stage of the trial. First, the Judge heard evidence on the objective elements, and published reasons on that aspect of the trial. Secondly, the Judge heard evidence on the defence of mental competence. Evidence was given by the appellant and four expert witnesses. The Judge published comprehensive reasons in which he analysed the evidence, and concluded that the defence of mental had not been proved by the appellant.
Counsel for the appellant contended that the Judge then proceeded directly to find both charges proved beyond reasonable doubt. Counsel submitted that the Judge erred in failing to conduct a hearing on the subjective elements of the charges. Counsel stated that there had been no evidence called, nor submissions made, on whether the subjective elements had been proven, which in counsel’s contention should have formed the third aspect of the trial.
Counsel for the respondent conceded that the Judge had not conducted a hearing to allow the appellant to make submissions on the subjective elements of the charges. Counsel conceded that the Judge had erred in that respect. However, counsel submitted that on the particular facts of the case, it made no difference to the outcome.
Counsel for the respondent contended that the stages of determining mental competence and proving the subjective elements of the offences could not be completely separated. Counsel submitted that the evidence called from both prosecution and defence expert witnesses on the question of mental competence proceeded on the basis that the appellant’s evidence had been untrue. She contended that the defence case on mental competence at trial had relied on the argument that the appellant’s conduct occurred because of his inability to control his paedophilic tendencies. In other words, the defence had relied upon the appellant having a prurient interest in children at the mental competence stage of the trial. Consequently, counsel submitted that for the Judge to have found that the subjective elements were proved beyond reasonable doubt was a natural incidence of the way in which the mental competence stage of the trial had progressed. Counsel contended that even though there was an error of procedure, it had not given rise to a miscarriage of justice.
There is some merit in the submissions of counsel for the respondent. It may be true that the questions of mental competence and the existence of the subjective elements cannot be separated. However, it was still necessary for the Judge to conduct a hearing on the subjective elements of the offences and to find that the subjective elements had been proven beyond reasonable doubt. The Judge was required to determine the question of mental competence on the balance of probabilities, and to make findings on the subjective elements beyond reasonable doubt. As to the former, the appellant carried the onus of proof. As to the latter, the respondent was required to prove the subjective elements beyond reasonable doubt. Thus, even if there were a substantial overlap in the evidence on the two questions, a finding adverse to the appellant on the question of mental competence would not lead automatically to a finding that the subjective elements of the charges had been proved beyond reasonable doubt.
The Judge made comments regarding the subjective elements of the offence charged in count two in his reasons for decision relating to the objective elements of the offence, which was the first stage of the trial:
I find that the Crown have established beyond reasonable doubt that the defendant took the photographs of the child… The evidence taken as a whole also establishes beyond reasonable doubt that these photographs were taken in the absence of any adult person. As I have mentioned above even acting on the evidence of the defendant as contained in his interview with Mr Bates, it is quite apparent that the laundering of clothing and re-dressing of the child must have been delayed by the taking of the photographs. There is no evidence of why it was that the defendant took the photographs of the naked child. I infer that the defendant was motivated to take a photograph of the child in an unclad state. To do so he had to delay the dressing of the child. I infer that there was no reason to delay the dressing of the child other than the desire to take a photograph of the child in an unclad state. I infer that in doing so the defendant was motivated only by a prurient interest in the child. I infer that by delaying the dressing of the child that the defendant caused the child to expose her body. That evidence in my opinion establishes beyond reasonable doubt, that the defendant had a prurient interest in the child and his interest in the child was sufficient to delay him – of necessity – in re-clothing the child…. I infer that the photograph was taken then with a view to gratifying the prurient interest of the defendant. In my opinion the objective facts of count 1 [sic] have been satisfied to the requisite degree.[2]
[2] Police v Marshall (unreported, Mr K J Prescott CM, Magistrates Court of South Australia, 19 April 2006) [37].
The Judge therefore found beyond reasonable doubt that the appellant had a prurient interest, and that that interest had motivated his conduct in respect of count two. In the context of considering the objective elements of count three, the Judge made the following comments:
Having found that the photographs of the child lying on the floor were taken at the child’s residence, and noting that the photographs were found in the defendant’s possession, it is appropriate to find, as I do, that he took the photographs.
Mr Mancini asks where is the evidence to establish that the defendant ‘caused’ the child to remove her clothes for the purpose of having the photographs taken….
…
Ms Telfer submits that is [sic] appropriate to find that the photographs of the child… which were in his possession, were in his possession because he had a special interest in the child. I infer that the defendant was present when those photographs were taken. The mother of the child identified the fact that the bathing suit shown in photograph number 1 and number 3 were not the property of the child. It follows that a person has requested the child to place the clothing on…. Photographs number 4 and 2 of the child in an unclad state can only have been taken I find as a consequence of a particular interest of having photographs of the child in an unclad state. Ms Telfer’s submission is that the evidence of the defendant, contained within the diaries, shows an extraordinary interest in the child. The fact that the child has changed costumes in exhibit number 3 and exhibit number 1 indicate I find, that different costumes were present and available on this particular occasion. It is clear that the child has been caused on this occasion to change from one outfit to another. In the course of that changing, the child’s body was naked. The taking of photographs of the child in an unclad state in that process of changing, from one outfit to another, means I find that the child has been ‘caused’ to change from one outfit to another.
Mr Mancini submits that it is possible that the child has spontaneously exposed herself. In my opinion the presence of different outfits excludes such a proposition.
I find that the defendant ‘caused’ the child… to expose part of her body on the occasions that the photographs were taken. I find that this was done with a view to gratifying prurient interest.
The objective facts with respect to counts 2 and 3 are proved beyond reasonable doubt.[3]
[3] Ibid [61] – [66].
I pause here to note that the findings made in relation to the appellant’s state of mind were made independently of, and prior to, the consideration of the defence of mental competence.
The trial on the defence of mental incompetence proceeded on the presumption that the appellant had not been candid in his description of the charged acts. In the context of considering the defence, the Judge found that the appellant had not been forthright in his evidence.[4] The Judge found that “at the dates of these two offences before me the defendant suffered from a mental illness – namely, paedophilia” and also found that on the dates of the offences the appellant suffered from the mental illnesses of borderline personality disorder and post traumatic stress disorder. The Judge went on, however, to conclude that the defendant had not established on the balance of probabilities that the defendant was unaware of the nature and quality of his conduct, nor that he was unaware that his conduct was wrongful, nor that he was unable to control his own conduct.
[4] Police v Marshall (unreported, Judge Prescott, Magistrates Court of South Australia, 21 June 2007) [76].
At the time, s 58A of the Criminal Law Consolidation Act 1935 was in the following terms:
(1) A person who with a view to gratifying prurient interest (whether of that person or some other person)—
…
(b) causes or induces a child to expose any part of his or her body,
shall be guilty of an indictable offence.….
(2) Subsection (1) applies whether events referred to in the subsection occur in public or in private or with or without the consent of the child.
(3) In this section—
child means a person under the age of sixteen years.
In my view, the subjective elements of the offence are that the accused or some other person holds a prurient interest, and that the accused must have acted (in this case, caused the two children to expose part of their bodies) with the intention of gratifying that prurient interest. “Prurient” is defined in The Australian Concise Oxford Dictionary as “having an unhealthy obsession with sexual matters”. An evaluation of whether the accused or some other person holds a prurient interest requires a determination by the Court of what amounts to an unhealthy obsession with sexual matters. That may require an assessment of current community standards in regard to sexual matters.
The Judge appears to have made findings on some of the subjective elements. However, these findings were incomplete. Further, and more significantly, they were made in the absence of a hearing on the subjective elements and of submissions from counsel, and were made prior to the appellant having given evidence and prior to the hearing on the question of mental competence.
It was necessary for the Judge to conduct a hearing in relation to the subjective elements of the charges, and to allow the parties to call evidence and make submissions on that aspect. The appellant has a statutory right to address the court.[5] Further, it is a denial of the rules of natural justice to fail to permit a defendant to make final submissions to the court.[6] The failure to conduct such a hearing, and the failure to make findings that all of the subjective elements of the charges were proved beyond reasonable doubt, were errors of law.
[5] Summary Procedure Act 1921, s 68(3).
[6] Grey v Police [2004] SASC 213; W, JS v Police (2005) 240 LSJS 99.
It was also necessary for the Judge to refrain from making findings on the subjective elements of the offences until he had made findings on the question of mental competence. The question of mental competence should have preceded any findings on the subjective elements in any event. To the extent that the Judge made findings on the subjective elements of the offences, it was an error of law to have made these prior to the hearing on mental competence.
I accept the submission of counsel for the appellant that the trial should have proceeded in three stages, to address the objective elements, mental competence and subjective elements. Part 8A of the Criminal Law Consolidation Act 1935 contains provisions relating to the conduct of a hearing on the question of mental competence. Such a hearing may be conducted before or after a hearing on the objective elements. However, although not expressed in the Act, a hearing on mental competence must always precede a hearing on the subjective elements. This is for the reason that, if mental competence is not established, the accused cannot be said to have formed the requisite state of mind.
I therefore allowed the appeal in relation to ground six. I set aside both convictions.
Both counsel made submissions on what would be the appropriate course of action to redress the error. As an appeal from a Magistrate to a single Judge is an appeal by way of rehearing, I indicated to the parties that I could hear any additional evidence and submissions on the subjective element of the offence.
Counsel for the appellant submitted that I should remit the matter to another Magistrate. He acknowledged that that course of action would require the entire trial to be reheard; however, he submitted that the appellant was entitled to have an entirely new trial if the appeal was allowed. Counsel also submitted that because the Judge at first instance had already found the appellant guilty of the offences charged, it could be perceived that he had prejudged the matter.
Usually when a matter is remitted for a hearing, there is a new trial before a different magistrate. However, it is open to a single Judge to remit only part of a case for rehearing. Rule 292 of the Supreme Court Rules 2006 provides:
(3) Subject to any limitation on its powers arising apart from these rules, the Court may –
…
(c) remit the case or part of the case for rehearing or reconsideration;
In this case, the expert evidence on the question of mental incompetence took a number of days and occupied the majority of time taken in hearing the matter. The Judge dealt with it carefully and in detail. The appellant has no ground of appeal, nor does he complain about that part of the trial. Further, as the appellant withdrew all but one ground of appeal, the appellant has no basis for an appeal in relation to the finding on the objective elements. The conclusions of the Judge on the objective elements and mental competence are not challenged. The complaint is that the Judge did not hear additional evidence (if any) or argument in respect of the subjective elements. There is no reason why he cannot determine that question if the question is remitted to him for consideration. In my view, it would be inappropriate to remit the matter to a different magistrate for a retrial when only a very limited part of the trial at first instance requires redress.
For this reason, I ordered that the matter be remitted to the Judge at first instance, for the purpose of hearing and determining the subjective elements of the alleged offences and then finally determining whether the prosecution has proved its case.