Owen Daniel (a pseudonym)[1] v Secretary to the Department of Justice

[2015] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0063

OWEN DANIEL (A PSEUDONYM)[1]	Appellant
v
SECRETARY TO THE DEPARTMENT OF JUSTICE	Respondent

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

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2015
DATE OF JUDGMENT:	11 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 10
JUDGMENT APPEALED FROM:	DPP v [Daniel] (Unreported, County Court of Victoria, Judge Millane, 2 April 2014)

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PUBLIC LAW – Appeal – Supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 – Condition that the appellant be prohibited from practising magic tricks on his own or in company – Whether condition necessary to reduce risk of re-offending – Whether condition unreasonable – Need for clarity and precision in conditions of supervision orders – Sections 15, 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Stanton with Ms E Ramsay	Mike Wardell
For the Respondent	Mr O P Holdenson QC	Minter Ellison

WEINBERG JA:

1. I agree for the reasons given by Priest JA that this appeal should be allowed, and that condition 7(k)(iii) of the supervision order should be amended as his Honour proposes.

PRIEST JA:

The issues

1. This appeal concerns a single condition contained in a supervision order made under the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’), prohibiting the appellant from practising or performing ‘magic tricks’, whether on his own or in the company of others, unless otherwise directed by the Adult Parole Board (‘APB’).  Questions raised by the appeal include, what is a ‘magic trick’;  and is a condition prohibiting the appellant from performing magic tricks in private reasonably necessary to reduce the appellant’s risk of re-offending?

The appeal

1. On 10 February 2011, the appellant was made subject to an eight year supervision order pursuant to s 9 of the Act.

1. Pursuant to s 65 of the Act, a review of the appellant’s supervision order was conducted on 11 March 2014; and on 2 April 2014, a judge of the County Court confirmed the supervision order, but varied it by adding a condition, 7(k)(iii).[2]  As I have said, the additional condition prohibits the appellant from practising and performing magic tricks on his own and in the company of others, unless otherwise directed by the APB.

   [2]The County Court ordered that various other conditions of the supervision order made on 10 February 2011 be varied, but this appeal concerns only condition 7(k)(iii).

1. Section 96 of the Act permits an offender who is subject to a supervision order

to appeal to this Court ‘against a decision made by a court … to impose conditions (other than core conditions) on the order’.  The present appeal is brought on the following ground:

1.   The learned Judge erred in imposing additional condition 7(k)(iii).

PARTICULARS

A. The learned judge erred in principle in imposing an additional condition that was not, pursuant to s 15(6) of the Act:

(a) the minimum interference with the offender’s liberty, privacy or freedom of movement that was necessary in the circumstances to ensure the purposes of the conditions;  and

(b) reasonably related to the gravity of the risk of the offender re-offending;

B. The learned Judge erred in finding that the additional condition did not interfere with the appellant’s liberty, privacy or freedom of movement;

C. The learned Judge erred in imposing an additional condition that is ambiguous;  and

D. The learned Judge erred in imposing an additional condition that is unreasonable.

1. For the reasons that follow, I would allow the appeal and amend condition 7(k)(iii) in the manner set out below.

The offending

1. The judge described the appellant’s extensive history of sexual offending as follows:

… On 26 September 1984 [the appellant] was convicted and sentenced in the Moonee Ponds Magistrates’ Court on one charge of attempted sexual penetration of a person above the age of 10 but below the age of 16 and fined $500.

On 20 July 2000 at the Korumburra Magistrates’ Court the [appellant] was convicted and sentenced on two charges of indecent act with a child under 16.   With partial cumulation his total effective sentence was five months’ imprisonment to be served by way of Intensive Correction Order.  These offences occurred in October 1999 when the [appellant] was working as a magician and they involved assaults against a neighbour's eight-year-old daughters.  Whilst their mother was occupied in the kitchen of the children’s home he molested each girl in succession in the lounge room.  He did this with the victim sitting on his lap.  The outside of the first girl’s vagina was fondled over her panties.  When she became upset and left, the [appellant] assaulted the second sister by also fondling the outside of her vagina on top of her panties and by placing his hand on her breast until he was interrupted by the victim's 13-year-old sister.

Finally, having pleaded guilty to one count of attempted sexual penetration of a child under 16 and 14 counts of indecent act with a child under 16, some of which were representative counts, on 11 November 2005 his Honour Judge Barnett imposed a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years.  This offending consisted of four periods of offending involving one male and numerous female children aged between eight and 14 years and it took place between 1995 and 2005.

At all relevant times the [appellant] worked as a clown and magician.  Counts 1 and 2 involved a neighbour’s daughter aged between 13 and 15.  Specifically the [appellant] rubbed his penis against the victim’s vagina and placed his hand inside her clothing touching her vagina.  He also established a relationship which involved receiving and giving the child massages, allowing her to watch pornographic movies and allowing her to get into bed with him and kissing her.  The victim of Count 3 whose buttock was squeezed by the [appellant], was of a similar age and she was a friend of the first victim.

Counts 4 and 5 involved sisters born in 1993 and 1994 who were aged eight at the time.  They were assaulted by the [appellant] in December 2001 and August 2002 respectively.  These girls were the daughters of a friend with whom the [appellant] was involved in the Magic Circle Club.  On two occasions whilst staying with this family the [appellant] indecently assaulted one or other of these girls by performing cunnilingus.

Counts 6 to 9 involved a 13-year-old male victim who was having difficulty with his home life and over a period of six months had visited the [appellant’s] house on a number of occasions.  Whilst staying at the [appellant’s] house overnight on 28 February 2005 the [appellant] plied the victim with alcohol, played a pornographic video and sexually interfered with the boy.  This consisted of rubbing the victim's leg, putting the [appellant’s] hand beneath the boy's underpants and making him hold his own penis and masturbating the boy and himself before ejaculating on to the boy's stomach.

Counts 10 to 15 involved four female children aged between 9 and 14 years for whom between April and May 2005 the [appellant] performed magic tricks in the park and to whom he gave small amounts of money and lollies.  On one occasion as part of the game the [appellant] pulled down his pants and encouraged these girls to do the same and on another occasion he showed three of these girls pictures in a pornographic magazine.

The impugned condition

1. On the review of a supervision order, s 73(1) of the Act requires the court to revoke the supervision order ‘unless it is satisfied that the offender still poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community’. If a supervision order is confirmed, s 73(9) permits the court to ‘vary, add or remove any conditions’ of the order.

1. There was no dispute between the parties on the review hearing about the continuation of the supervision order, the appellant accepting that the court ought be satisfied that he still posed an unacceptable risk of committing a relevant offence if a supervision order was not in effect and he was in the community.  The appellant sought to challenge, however, the proposed condition(s) restricting his practise of magic.

1. When first made, the supervision order restricted the appellant’s capacity to undertake work that involved him performing as a magician or going to private homes.  Thus, the original manifestation of the supervision order, made on 10 February 2011, contained the following condition:

7(k) Unless otherwise directed by the APB [Adult Parole Board], [the appellant] must not obtain paid or unpaid employment, or undertake voluntary work which involves him:

(i)   performing as a magician;  or

(ii)  attending, contacting or entering into people’s homes.

1. Following the review hearing, the judge ‘varied’ condition 7(k), so that it now provides:

7(k) Condition 7(k) is varied to:

(i)   Unless otherwise directed by the APB, [the appellant] must not obtain paid or unpaid employment which involves him attending or entering into people’s homes.

(ii)  Unless otherwise directed by the APB, [the appellant] must not obtain paid or unpaid employment which involves practising or performing magic tricks.

(iii) Unless otherwise directed by the APB, [the appellant] must not practise or perform magic tricks, whether on his own or in the company of others.

1. The appellant had challenged proposed conditions 7(k)(ii) and (iii) on the basis that they prevented him from working as a magician or performing magic tricks for an adult audience and prevented him from practising in private or with other adults.  It was submitted that, when taken with the other conditions of the supervision order, these additional conditions effectively precluded any activity involving the private or public performance of magic tricks.

Relevant evidence

1. Doctor Sophie Reeves, a clinical and forensic psychologist, gave evidence in the course of the review hearing.  She had undertaken a risk assessment with respect to the appellant, and produced a report dated 27 October 2013, which was tendered as an exhibit.  According to Dr Reeves, the appellant had a high risk of sexual re-offending, particularly with respect to pre-pubescent or pubescent children.  When expanding upon the contents of her report, Dr Reeves gave the following evidence:

…  What role has magic played in the prior criminal offending or sexual offending and the index offending regarding [the appellant]?  ---  Looking at— I think there’s four offending episodes in [the appellant’s]  index sexual offending, and then two prior offending episodes.  Magic has played a role in terms of grooming victims.  So by grooming I mean a gaining trust of victims, developing some kind of relationship with victims, and a way to I guess spark the interest of victims in engaging with him.

…

… [I]n your progress report, you say this, I’ll read this portion to you and then ask you to comment on something halfway down the paragraph:  ‘His history also suggests that his sexual offending is predatory in nature, with him exhibiting a pattern of targeting single parent families or vulnerable victims and engaging in grooming of victims and their families, either by befriending them, performing magic tricks, supplying them with alcohol, cigarettes or sweets, or playing games with them.’ …  What’s your understanding as to how [the appellant] grooms not only the victims but adults, the families involved?  ---  For the similar purpose, in terms of gain trust, acceptance with the families and I guess that has an effect of them feeling comfortable with him engaging with their children and creates opportunity to offend, to be alone with the children and to offend.

In your opinion, Doctor, does the use by  [the appellant] of magic play any role in relation to his general psychological makeup or interactions with the community generally? --- I think it does, I think from the discussions [the appellant] and I have had over my three assessments with him, it seems clear to me that it’s a pervasive part of his character.  It’s an identity, something he enjoys.   It’s the way he interacts with others, and that's adults and children.  He gains acceptance by others.  I guess it feels good in terms of performing his tricks.  So yes, I’d say it’s I guess a pervasive part of the way he relates to people and his form of identity.

1. Jennifer Hosking, the General Manager of the Sex Offenders’ Management Branch of Corrections Victoria also gave evidence.  She said that, having regard to Dr Reeves concerns about the appellant performing magic, her department was concerned ‘that his continuing to engage in that activity, to practise magic, to essentially build a lifestyle around that activity, just reinforces exactly the behaviours that he engaged in when he was offending’.  Ms Hosking also said that, ‘magic and building a lifestyle around those skills and the ability of magic or the attraction of magic to children, is one of those factors that means it’s a very high risk situation, and therefore not something that we would be supportive of’.

The Judge’s reasons

1. In her reasons, the judge said that it was important that the appellant ‘not be encouraged to pursue activities that directly or indirectly maintain his skills as a magician to the detriment of promoting a pro-social life plan’.  The judge observed that the appellant previously has gained access to victims through his work as a clown and magician and by using magic tricks, and that the danger of reoffending was at its highest when the appellant has access to pubescent or prepubescent children whether in a public place or the privacy of a home, he having gained the trust of adults or children.  Although acknowledging the evidence that the appellant  ‘viewed magic and the performance of magic tricks as a significant adjunct to his lifestyle and an important aspect of his character’, the judge adverted to Dr Reeves’ emphasis on ‘the need to encourage a pro-social life plan by discouraging the [appellant] from pursuing and developing an activity on which he previously relied to facilitate grooming and gain the acceptance of adults and children alike’.  Her Honour further observed:

In this case, conditions that prevent the practice or performance of magic tricks are likely to reduce (albeit indirectly) the risk of the [appellant] gaining acceptance from others through magic, which, in turn, may allow access and reoffending.  At the same time, the conditions will likely promote the rehabilitation and treatment of the respondent and act to facilitate other conditions, such as the condition that the respondent refrain from contact with children or young persons under the age of 16 whether directly or indirectly and whether supervised or unsupervised (additional condition 7(m)).

Unfortunately, there will be some negative impact on the respondent because until further review, he will be precluded from engaging in an activity which he identifies as part of his character.  As I perceive the operation of the disputed additional conditions, these will not preclude the respondent from playing conventional card games in public or privately and he may, through participation in other approved games, maintain the suppleness of his fingers and enhance his cognitive function and motor skills.

Parties’ submissions

1. In this Court, the appellant accepted that, on an appeal concerned with the conditions of a supervision order, the principles in House are apposite.[3]  It follows that, in order to succeed, the appellant must satisfy the Court that in imposing condition 7(k)(iii), the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or that the judge’s decision to impose the condition is unreasonable or plainly unjust.[4] I understood the appellant to make three essential submissions. First, it was submitted that condition 7(k)(iii) infringed s 15(6) of the Act, in that it did not ‘constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions’, and was not ‘reasonably related to the gravity of the risk of the offender re-offending’. Secondly, it was submitted that the impugned condition is ambiguous, since the concept of a ‘magic trick’ is ‘inherently ambiguous’. The activities that might be embraced by ‘magic trick’ are unclear. Thirdly, it was contended that the condition is manifestly unreasonable. The practice and performance of magic tricks is a skill, so that the position is akin to a situation where a person who is a singer, musician or painter — and had used that skill to build trust with children or their parents prior to offending — was then prohibited from practising singing, musicianship or painting in private, or from performing before adults in circumstances where the person would not have any direct or indirect contact with children.[5]

   [3]Nigro v Secretary to the Department of Justice 92013) 304 ALR 535, 552 [64] (Redlich, Osborn and Priest JJA).

   [4]House, v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

   [5]By virtue of s 160 of the Act, a person who breaches a condition of a supervision order is liable to imprisonment for up to five years.

1. The respondent submitted that the appellant’s performance of magic tricks had been a means by which the appellant groomed the victims of his sexual offending and gained the trust of their families. Hence, it was not appropriate that he continue to perform magic tricks. For the appellant to continue to build a lifestyle around that activity, so it was submitted, reinforced the very behaviours in which the appellant had engaged when he offended. Condition 7(k)(iii) complied with the Act, and was not an impermissible interference with the appellant’s privacy, since for the appellant to engage in the conduct proscribed by the condition ‘may only serve to further entrench the pleasure he derives from this activity’. It was further submitted that the expression ‘magic trick’ was not inherently ambiguous, whether an activity was a ‘magic trick’ being a question of fact. Finally, the respondent argued that the condition was not manifestly unreasonable.

Discussion

1. By virtue of s 15(3) of the Act, the primary purpose of the conditions of a supervision order ‘is to reduce the risk of re-offending by the offender’.[6]  Subsection 15(6) makes plain that the court must ensure, however, that the conditions of a supervision order ‘constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions’, and ‘are reasonably related to the gravity of the risk of the offender re-offending’.

   [6]See also s 1(1), which makes plain that the main purpose of the Act is ‘to enhance the protection of the community’.

1. As I have said, counsel for the appellant contended that the expression ‘magic trick’ was inherently ambiguous.  Is card shuffling included?  What about other card tricks, such as those compendiously meeting the description of  ‘pick a card’?  Is other sleight of hand, such as, for example, giving the illusion of producing a coin from another’s ear included?  Does pulling a rabbit from a hat qualify?  Do people who hypnotise others as a means of entertainment perform a magic trick?  Is predicting the future through the use of a crystal ball or Tarot cards or Astrology to practise a magic trick?  Is the laying on of hands by faith healers the performance of a magic trick; and, if so, from whose perspective?  Are escape artists, in the mould of Houdini, practising magic tricks when they escape from straitjackets using muscle and joint manipulation to disguise what would otherwise appear to be magic?  Is the person who rehearses flexibility routines, stretching and muscle and joint manipulation so as to perform Houdini-like escapes practising magic?  Are modern magicians, who, through the use of computer generated illusions, perform seemingly wondrous feats, performing magic tricks? 

1. Counsel for the respondent at least tacitly suggested that the identification of what qualified as a magic trick was not attended by much difficulty.  He submitted that whether a person is performing a magic trick is a question of fact.  He submitted that practising a magic trick involves the deception of the observer.  Shuffling cards, so it was argued, involves no such deception, so that shuffling cards is not a magic trick.

1. The very fact that the question, ‘what is a magic trick?’, provoked extended debate, however, illustrates that the identification of what is a ‘magic trick’ to reasonable minds may be far from clear.  What might qualify as a ‘magic trick’ is an elusive concept incapable of much precision.  Importantly, therefore, a condition which prevents the appellant from practising or performing magic tricks might not be one that he could readily understand.

1. Moreover, there is an additional difficulty associated with a condition that forbids the appellant to ‘practise or perform magic tricks’.  It seems to me that there is a degree of uncertainty in determining what it means to ‘practise’ a magic trick.  The respondent’s counsel submitted that shuffling cards is not to practise a magic trick.  But what of the situation where a person practises the shuffling of cards as part of an exercise to improve suppleness of wrist, fingers and hand, so as to be able to perform the sleight of hand associated with some card tricks.  It might be said by some that such an activity was preparatory to the performance of a trick;  but would he or she fall foul of a condition that prohibits one to ‘practise’ a magic trick?

1. Much debate, as I have said, was devoted to trying to determine what was encompassed by the term ‘magic trick’, and thus the conduct that condition 7(k)(iii) sought to enjoin.  So much serves to emphasise that great care must be taken by the respondent in the formulation and promulgation of conditions to be attached to supervision orders.  Breach of a condition of a supervision order is a serious matter.  A person who, without reasonable excuse, fails to comply with such a condition, commits an offence punishable by five years’ imprisonment.[7]

   [7]Section 160 of the Act.

1. In view of the serious consequences which may flow from breach of a condition of a supervision order, in my opinion it is desirable that such conditions be expressed with the same clarity and precision as is appropriate for  injunctions.  The necessity for clarity in the expression of injunctions was discussed by Dr I C F Spry in his well-known and respected work on equitable remedies.[8]  Having referred to the general statement of Lord Upjohn, that a defendant is entitled to know what he is required to do, ‘and this means not as a matter of law but as a matter of fact,’[9] the learned author made the following observations under the heading, The Clarity of Orders:[10]

From this statement of Lord Upjohn it is evident that it is not ordinarily desirable that, for example, the defendant should be ordered simply to abstain from wrongful acts, unless it is reasonably clear to him from the order of the court what are the limits of the class of acts so enjoined.  Hence it is generally necessary that he should be directed not to perform or continue particular defined acts … The defendant is entitled to have made reasonably clear what he must abstain from in order to comply with the order of the court.  So it has been said that an injunction ‘should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ’.[11] … [12]

[8]I C F Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, (9^th ed).

[9]Redland Bricks Ltd v Morris [1970] AC 652, 666.

[10]Ibid 386–7.

[11]Collins v Wayne Iron Works (1910) 227 Pa 326;  76 A 24 at p 25 (US), discussed in (1920) 19 Mich LR at p 84 (US).

[12]See also, Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51, 57 (Crockett, Fullagar and Nathan JJ); Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220, 221–2 (Tadgell JA); R v Australian Broadcasting Corporation [2007] VSC 498, [7] (Harper J); Kirkpatrick v Kotis (2004) 62 NSWLR 567, 579 [58]–[59] (Campbell J).

1. In my opinion, as with an injunction, any condition attached to a supervision order must be expressed in as clear and unambiguous language as the circumstances reasonably permit.  The language of a condition must be sufficiently precise as to make plain to a person subject to the supervision order what are the limits of the prohibited act or acts.  Hence, an offender is entitled to have made clear what he must abstain from (or do) in order to comply with a particular condition.  And a condition should plainly indicate to the person subject to the order what he or she is prohibited from doing (or not doing), without him or her having to draw inferences or conclusions about which reasonable minds might differ.

1. Moreover, a judge called upon to make a supervision order containing restrictive conditions, must satisfy himself or herself that any condition promulgated is reasonably necessary to achieve the primary purpose for making such condition,  and that it is sufficiently precise and unambiguous as to permit the person subject to the order to know with reasonable certainty what he or she is prohibited from doing (or not doing) without having to guess at the condition’s limits. 

1. Bearing those matters in mind, in my view an ordinary member of the public with a modicum of common-sense generally would consider a ‘magic trick’ to be a feat which gives the illusion of magic (that is, producing an effect through some supernatural influence).  Thus, for example, a card trick where a person — through supposed psychic or other mystical or miraculous power — purports to identify a card taken from a pack by another, would ordinarily be regarded as a magic trick, whereas elaborate card shuffling would not.

1. I find it unnecessary to decide, however, whether the impugned condition is so uncertain as to render it invalid, since it is plain that condition 7(k)(iii) goes far beyond what s 15(6) of the Act would authorise. In my opinion, to prohibit the appellant from practising magic tricks in private is an unwarranted interference with the appellant’s liberty, and is not reasonably related to the gravity of the risk of re-offending. The risk of re-offending against which the conditions must seek to guard is sexual offending against pubescent and prepubescent children. Other conditions adequately guard against that risk. Thus, for example, conditions 7(d) and (e) prohibit the appellant — save in defined circumstances — from knowingly remaining within 50 metres of a school or children’s playground, or remaining within public parks; and 7(m) provides that the appellant must not knowingly have contact with any children under the age of 16 ‘except for interaction which is unable to be avoided in the course of his lawful daily activities’. Moreover, conditions 7(k)(i) and (ii) prevent the appellant from obtaining employment which involves him attending or entering people’s homes, or which involves practising or performing magic tricks.

1. Although it might be said that the appellant had used magic tricks as a grooming mechanism, or as a method of obtaining the trust of children and adults, it seems to me that the effect of the evidence was that the practise of magic tricks was an activity that the appellant enjoyed, and one which he regarded as important to his sense of well-being.  The performance of magic tricks involves a skill which to be maintained requires repetition and practise.  In my view, a condition which prevents the appellant from practising magic tricks in private — and thus depriving him of an enjoyable hobby or pastime which will not directly or indirectly bring him into contact with children — cannot be justified as reasonably necessary to reduce the

risk of re-offending.  

1. The appellant should not be prevented from practising magic tricks in private.

Conclusion

1. For these reasons I would allow the appeal, and order that condition 7(k)(iii) of the supervision order be amended by deleting the words ‘whether on his own or’.[13]  In all other respects I would confirm the orders of the County Court.

   [13]The condition will be — ‘Unless otherwise directed by the APB, [Owen Daniel] must not practise or perform magic tricks in the company of others’.

BEACH JA:

1. I agree with Priest JA.

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