Palazo v DPP

[2008] NSWDC 184

Reported Decision: 7 DCLR (NSW) 274

District Court

CITATION:	Palazo v DPP [2008] NSWDC 184
HEARING DATE(S):	21 August 2008 25 August 2008
JUDGMENT DATE:	4 September 2008
EX TEMPORE JUDGMENT DATE:	25 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Appeal upheld. Conviction set aside and quashed.
CATCHWORDS:	appeal from Local Court - alternative verdicts - act of indecency - indecent assault - meaning of "with" or "towards" - distinction between "indecent assault" and "act of indecency" - facts amounting to an indecent assault can't constitute and act of indecency
LEGISLATION CITED:	Crimes Act ss 61J, 61K, 61L, 61M, 61N, 61O & 61Q
CASES CITED:	R v Beserick (1993) 30 NSWLR 510 R v Cameron [1983] 2 NSWLR 66 R v Crampton (2000) 117 A Crim R 222 R v Saraswati (1990) 172 CLR
PARTIES:	Roger Allan Palazzo Director of Public Prosecutions
FILE NUMBER(S):	2007/00009996
COUNSEL:	Mr Livingstone Mr Diggins
SOLICITORS:	Gordon Naylor and Associates Solicitor for Public Prosecutions

1. On 25/8/2008, I indicated that I had come to the view that the appeal in this matter should be upheld and the orders of the Local Court quashed. Those orders were made and indicated that I would provide written reasons. These are those reasons.

2. Mr Palazzo appealed against his conviction for an offence of indecent assault contrary to section 61L of the Crimes Act. Mr Palazzo had been charged with an offence of aggravated act of indecency contrary to s. 61O(1A) of the Crimes Act which carries a maximum penalty of 3 years. His Honour found that the circumstance of aggravation alleged by the complainant, namely that the victim was under authority, had not been made out. His Honour applied s. 61Q, alternative verdicts, to then convict Mr Palazzo of an offence under s. 61L which carries a maximum penalty of 5 years. The principal dispute in the Local Court trial related to the issue of consent as well as a matter of law in regard to the appropriateness of the charge. The consent issue was resolved against Mr Palazzo and has not been re-litigated before me.

3. The issue on appeal is a legal one, namely could His Honour convict Mr Palazzo of an offence under s. 61L when he had been charged with an offence under s. 61O.

4. Section 61O (1A) is in these terms:

Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years.

5. Section 61L is in these terms:

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

6. Section 61Q Alternative verdicts is in these terms:

(1) Question of aggravation

If on the trial of a person for an offence under section 61J, 61M or 61O the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61L or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

7. The offences in s. 61J, s. 61M and s. 61O are the aggravated offences relevant to sexual assault, s. 61I, indecent assault, s. 61L and act of indecency s. 61N. The aggravation relied on in the particular case was that the complainant was under authority.

8. Reliance was placed on what Hunt CJ at CL said in R v Beserick (1993) 30 NSWLR 510, particularly at 534:

“The test as to whether the jury may on the indictment find the accused guilty of some other offence is whether the ingredients of that other (lesser) offence are necessarily established when establishing the offence charged: R v Cameron [1983] 2 NSWLR 66 at 68. As this Court recognised in that case, there may be exceptions where the legislature has propounded a statutory code”.

9. In my view, s. 61Q does in fact provide a statutory code and that in regard to s. 61J, the only alternative is s. 61I and in regard to s. 61M the only alternative is s. 61L and in regard to s. 61O the only alternative is s. 61N. Apart from my view on the issue, Hunt CJ at CL in Beserick, said that a jury is entitled to convict of a lesser offence if the necessary ingredients are established, whereas in the present case, the learned Magistrate convicted Mr Palazzo of what is, in effect, a more serious offence and attracts a higher penalty of 5 years imprisonment as opposed to 3 years.

10. Mr Palazzo was charged with the wrong offence given the factual circumstances alleged by the complainant and which are set out in the transcript dated 26/2/2008 on page 3 lines 38 – 50:

“…the cutlery has just came out the washing machine so I was just drying them and polishing them up to be ready to be wrapped up in the serviettes. Roger went out the back, he was sitting on a milk crate and he just called me out to the back. He then grabbed my arms and sort of twisted it behind my back so I couldn't really move anywhere and then he started kissing my neck which I didn't know what to do. I tried to get away but he wouldn't let me go. I said, "Leave me alone," and he still kept going on. Then he lifted up my shirt and unclipped my bra and then started touching my boobs and sucking on my left boob and I didn't know what to do because I was pretty scared and shocked so I didn't know what I could do at the time. I said to him, "Leave me alone, go away, I'm not interested," and stuff but then he kept on going so I had really no way of getting out of it.

11. What the complainant alleged was neither an act of indecency with her nor an act of indecency toward her, but an indecent assault on her.

12. It is quite clear from R v Crampton (2000) 117 A Crim R 222 at 238, that the High Court agreed that the meaning of the word “with” in s. 61(O) is not capable of including what is meant by “towards” used in the same section. In the same case, Kirby J also reviewed and confirmed the authorities that have held that the word “with” involves a degree of consenting mutuality of behaviour or action in concert (cf pp. 245-249).

13. It is also quite clear from R v Saraswati (1990) 172 CLR 1 that when the conduct relied on is an indecent assault, as is the case on this appeal, that does not permit the use of a charge of committing an act of indecency either with or towards a complainant arising out of the same facts. An indecent assault does not also encompass an act of indecency with or towards a person because the two sections encompass quite different modalities of conduct (see McHugh J pp.19-31).

14. Absent the consent of the complainant, the facts established an indecent assault, not an act of indecency towards her or with her as those words and the section have been interpreted.

15. An indecent assault, even without aggravation, constitutes a more serious offence than an offence of aggravated act of indecency, contrary to s. 61O (1A). Even if his Honour was able to find that the facts constituted an indecent assault, it was not a lesser offence and could not be regarded as an alternative. That is another reason why s. 61Q is to be regarded as a statutory code and should be interpreted in the way indicated earlier.

16. The wrong charge was formulated for the known facts. It is now too late to reformulate them, as Mr Palazzo has been tried on the facts relied on and has been adjudicated on.

17. For those reasons, the appeal should be upheld and the conviction quashed. Those orders were made on 25 August.

J S Williams
Judge

4 Sept 2008