Nda v The State of Western Australia

The appellant, NDA, was convicted in the Children's Court of Western Australia on two counts of procuring a child to do an indecent act, contrary to s 321(5) of the Criminal Code (WA), and one count of assault occasioning bodily harm, contrary to s 317(1) of the Code. The appellant sought leave to appeal against the convictions on the two procuring counts. The central issue on the appeal was whether the trial judge erred in his interpretation of the word 'procures' in s 321(5) of the Code. The appellant argued that the word should be construed to mean 'to effect, cause or bring about as a result of abuse or a power imbalance between the person and the child'. The Court of Appeal held that the word 'procures' in s 321 has its ordinary meaning of 'to effect, cause or bring about' and that the offence is not limited to circumstances where there is some additional element of abuse or a power imbalance between the offender and the child. Such matters are aggravating factors in sentencing, not essential elements of the offence. The Court of Appeal refused leave to appeal and dismissed the appeal.

The Court of Appeal considered the rules of statutory interpretation and held that the starting point for asserting the meaning of a statutory provision is the text of the statute, having regard to its context and purpose. The Court found that the natural and ordinary meaning of the word 'procures' does not incorporate any requirement that the relationship between the person doing the procuring and the person procured be abusive or be characterised by a power imbalance. The Court held that the statutory context and purpose of s 321 of the Code pointed firmly against the appellant's construction and in favour of attributing to the word 'procures' its ordinary meaning. The Court found no error in the trial judge's interpretation of the word 'procures' and held that the appellant's contentions could not be accepted. The Court concluded that leave to appeal should be refused and the appeal dismissed.