PM v Beck
[2016] ACTSC 314
•28 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | PM v Beck |
Citation: | [2016] ACTSC 314 |
Hearing Date: | 20 October 2016 |
DecisionDate: | 28 October 2016 |
Reasons Date: | 28 October 2016 |
Before: | Murrell CJ |
Decision: | Appeal allowed. Verdicts of not guilty entered. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from ACT Childrens Court – incest – meaning of fellatio – whether evidence sufficient to support conviction HUMAN RIGHTS – PROCEDURE – Need to issue notices in accordance with s 34 Human Rights Act 2004 (ACT) – cases where notice is required |
Legislation Cited: | Crimes Act 1900 (ACT) s 50, 62 Evidence Act 2011 (ACT) s 66 Magistrates Court Act 1930 (ACT) ss 214, 218, Div 3.10.2 |
Cases Cited: | Beck v PM [2015] ACTCC 1 Randall v R [1991] SASC 2877; 55 SASR 447 |
Texts Cited: | Explanatory Statement, Crimes Legislation Amendment Bill 2012 (No 2) (ACT) |
Parties: | PM (Appellant) Teresa Beck (Respondent) |
Representation: | Counsel Mr S Wybrow and Mr J Moffett (Appellant) Ms E Beljic (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 15 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Childrens Court Before: Magistrate Fryar Date of Decision: 11 December 2015; 19 February 2016 Case Title: Beck v PM Citation: [2015] ACTCC 1 |
MURRELL CJ:
On 11 December 2015, the Childrens Court Magistrate (the Magistrate), convicted the appellant, a young person, of two counts of incest (fellatio) with DC, his 10-year-old half - brother. The charges related to the period 30 September to 5 November 2014, when the appellant was 15 years old.
Incest with a person over the age of 10 years but under the age of 16 years of age is an offence against s 62(2) of the Crimes Act 1900 (ACT).
The Magistrate sentenced the appellant to 12 months’ imprisonment on each count.
The Magistrate also convicted the appellant of the offence that, on 5 November 2014, he committed an act of indecency upon LF, the five-year-old daughter of his half sister, she being a person under the age of 10 years (tickling the genital area). For this offence, the Magistrate imposed an 18 month good behaviour order.
The Magistrate acquitted the appellant of two counts of committing acts of indecency upon OB, an eight-year-old child. Her Honour was not satisfied beyond reasonable doubt about OB’s version of events.
The Magistrate’s reasons for decision were published: Beck v PM [2015] ACTCC 1.
The appellant appealed against the incest convictions.
Prior to the hearing, the appellant abandoned a ground of appeal that challenged the admission of tendency evidence and asserted that separate hearings should have been held in relation to each complainant.
Initially, the appellant appealed against the sentences imposed for the incest offences, but the sentence appeal was abandoned.
Issues on Appeal
The issues on the appeal are:
1. Was the appellant denied a fair trial because he was denied the opportunity to cross-examine DC?
2. Did the Magistrate err in placing some weight on DC’s evidence when DC did not complete his evidence and was not cross-examined?
3. As DC did not complete evidence, was the evidence of complaint by DC inadmissible under s 66 of the Evidence Act?
4. Are the incest verdicts sustainable? Does the evidence establish beyond reasonable doubt that the appellant performed fellatio on DC?
Nature of appeal
An appeal to the Supreme Court from the Childrens Court is of the same nature as an appeal from the Magistrates Court. As Refshauge J said in OH v Driessen [2015] ACTSC 148:
5.Under s 287 of theMagistrates Court Act 1930(ACT), the Childrens Court is the name by which the Magistrates Court is known when exercising jurisdiction under s 288 of that Act, which jurisdiction includes criminal proceedings against a person who was under 18 years old at the time of the alleged offence.
6.By s 69 of theCourt Procedures Act 2004(ACT), the provisions regulating procedure in the Magistrates Court apply to the Childrens Court, which include the provisions relating to appeals. In particular, Pt 3.10 of theMagistrates Court Actconfers jurisdiction on this Court to hear and determine appeals from the Magistrates Court (and, therefore, the Childrens Court) against sentences imposed by it and Div 3.10.2 regulates these appeals.
Division 3.10.2 of the Magistrates Court Act 1930 (ACT) (MCA) provides that the appeal is to be considered on the basis of the evidence before the Magistrate and such other evidence as is admitted under s 214 of the MCA. The Supreme Court is to give the judgment that, in all circumstances, it considers appropriate: s 218 MCA.
Conduct of the appeal
The appellant’s primary ground of appeal was that he had been denied a fair trial according to law because he had been denied the opportunity to cross-examine DC.
When DC was called at the trial, the prosecution asked him to elaborate on what the appellant had done to him. Because of difficulties with the court audiovisual equipment, the answer was indistinct. The matter was adjourned to the following day. Thereafter, the matter was adjourned twice. However, because of DC’s distress and associated refusal to re-enter the remote witness room, his evidence was not completed. The Magistrate indicated that she would not compel him to give further evidence and the hearing continued without DC completing his evidence. The appellant had no opportunity to cross-examine him.
On the appeal, the appellant relied upon the common law right to a fair trial and did not seek to rely upon any independent legal right created by the Human Rights Act 2004 (ACT) (Human Rights Act).
However, he did seek to invoke the Human Rights Act in support of the argument that he had been denied his common law right to a fair trial. Section 21 of the Human Rights Act provides that everyone has the right to have criminal charges decided “after a fair and public hearing”. Section 22 sets out a number of “minimum guarantees” that apply to persons charged with criminal offences, including, in s 22(2)(g), the right “to examine prosecution witnesses, or have them examined.” The appellant contended that these provisions showed that the right to a fair trial was recognised in the ACT, reinforced that the opportunity to cross-examine was fundamental to the right to fair trial and showed that, in the ACT, a common law right to a fair trial “according to law” involved the opportunity to cross-examine prosecution witnesses.
The Human Rights Act was not raised in the notice of appeal and was first referred to in the appellant’s written submissions. The Crown submitted that, although the appellant was relying on a common law right and was not directly relying on any “right” created by the Human Rights Act, the appellant’s submissions raised a question that “(involved) the application” of the Human Rights Act. Consequently, it was necessary to give notice to the Attorney-General and the ACT Human Rights Commission under s 34 of the Human Rights Act.
In R v Forsyth [2013] ACTSC 179; 281 FLR 62 at [34], Penfold J distinguished between a case where a person sought to rely upon a right set out in the Human Rights Act because it was set out in the Act and a case where a person relied on protections provided by the common law that also happened to be rights described in the Human Rights Act. In the former case, s 34 notices were required but in the latter they were not.
The submissions to be advanced in this case fall neatly into neither category. Without the benefit of full argument, I decided that the safer course was to delay a consideration of the fair trial appeal ground until s 34 notices had been given.
Further, as it seemed to me that the matter could be decided on the assumption that the contested evidence was properly admitted, the parties agreed that, initially, the hearing should proceed on that limited basis. If necessary, the Court would reconvene (after s 34 notices had been given) to entertain submissions on the fair trial ground and the admissibility of the complaint evidence.
Fellatio
Before the Childrens Court, the case was opened and run on the basis that the sexual intercourse founding the incest charges was “fellatio”. The prosecution particularised the offending conduct in the opening as “performed fellatio upon ...”.
A question arose about the meaning of “fellatio”. Section 50 of the Crimes Act1900 (ACT) defines “sexual intercourse” to include “fellatio” but does not define “fellatio”.
The usual meaning of “fellatio” is the oral stimulation of the male genitals. In R v JC [2000] ACTSC 72, having considered Randall v R [1991] SASC 2877; 55 SASR 447 and DPP v M and J (1993) 9 WAR 281, Higgins J interpreted fellatio to mean “the penetration of the mouth or mere licking”, i.e. including both acts involving contact between the penis of one person and the mouth of another, without referring to the purpose of oral stimulation.
That interpretation is supported by the explanatory statement to the Bill that inserted fellatio into the Crimes Act in 2013. The statement relevantly provided:
This clause will amend section 50(1) of the Crimes Act 1900 so that the definition of ‘sexual intercourse’ includes any oral contact with genitals so that an act of fellatio is included in this definition.
Currently fellatio (... where the offender licks/kisses a victim’s penis) is only captured under the lesser ‘act of indecency’ offence.
The purpose of this amendment is to bring such an act under the more serious offences of sexual assault, sexual intercourse without consent, sexual intercourse with a young person and incest.
(Explanatory Statement, Crimes Legislation Amendment Bill 2012 (No 2) (ACT) 10)
Therefore, if the prosecution was able to prove that such conduct occurred it may constitute fellatio.
The evidence
In convicting the appellant of the fellatio offences, the Magistrate relied upon three categories of evidence: DC’s evidence (to which she had regard “in a limited way”), evidence of DC’s complaint, and the tendency evidence of LF.
At the time of the trial, DC was 11 years old. His evidence-in-chief consisted primarily of an audiovisual recording of his interview with police. This evidence was admitted pursuant to Div 4.2.2A of the Evidence (Miscellaneous Provisions) Act1991 (ACT).
When spoken to by police, DC was reluctant to describe the core events. The police encouraged him to draw sketches (Exhibits 3 & 4). DC’s police interview and the sketches that he drew must be considered together. In the police interview, DC stated that, on at least two occasions, the appellant had done something “really bad” (Q14) and “disgusting” to him (Q15, Q71). It was “the same bad thing” (Q46) on each occasion. Initially, DC declined to describe the part of his body that was touched “because it’s disgusting” (Q177), saying that he had “told mum everything” (Q179, 265). He said that it “hurt” (Q278–279). It happened to his “private” (which the appellant conceded was a reference to the penis). At Q300–301, the interviewing officer articulated their understanding of what the complainant was sketching in Exhibit 3.
Q300: ... What about [the appellant]’s body, what part did he use. Yeah. So what, you’ve drawn a little picture, so is this little picture of [the appellant] is it... What’s that arrow pointing to. Is that his hands that you did, okay, righteo, so that’s [the appellant]. All right, did he use any other parts of his body. Do you want to draw a little arrow to that one too for me.... Can you write that, do you know how to write that. M – o, what’s that, the M – o, what’s that letter.
A: U-t-h
Q301: So mouth... is that it tick. So I’ve got it right, mouth, okay, so when the bad things happened that happened to your, correct me if I’m wrong here, your private part used to go to the toilet, is that right, yeah, that’s a tick good, and this is [the appellant], and when he does the bad thing he uses his hands and his mouth. That’s a tick, did I get it right. Okay. Thank you. All right... this is a picture of [the appellant], and with got an arrow going to his arms or hands, and he’s indicated hands and an arrow going to his head.
A: Mouth
The mother’s complaint evidence was that, when DC was questioned by her, he acted in a peculiar way and “clammed up”. Two weeks later, DC told her that the appellant had touched his penis and “done stuff.” She assumed that the touching had involved the hand of the appellant (rather than the mouth).
The tendency evidence given by LF supported the following conclusions of the Magistrate:
[15] ...On 5 June 2015 I ... expressed the view that if it could be proved that the young person had a tendency to be sexually interested in his child relatives and to act on that sexual interest by touching or stimulating the genitalia of the child relative, and to invite them into his room to play games so that he could molest them, they are tendencies that are sufficiently extraordinary to possess significant probative value in assessing whether or not he committed the offences.
[16] Given that I found that the incident in relation to LF occurred as alleged, in my view that is sufficient to also prove beyond a reasonable doubt that the young person does in fact have those tendencies outlined above.
Consideration
As the appellant conceded, the contents of the police interview (when taken together with Exhibit 3) prima facie establish that something untoward occurred that involved DC’s penis and the appellant’s mouth and hands.
The complaint evidence was to the effect that the appellant had manually touched DC’s penis. It was in the nature of tendency evidence rather than evidence of the facts directly in issue (whether two acts of fellatio occurred).
The only direct evidence of fellatio (as opposed to an act of indecency) was DC’s evidence (given with the assistance of the police officer) that the appellant had used his hands and his mouth to perform an act or acts of indecency in relation to the complainant’s penis. DC also said that it “hurt” (suggesting some form of physical contact).
At its highest, this evidence does not establish that the appellant attempted to orally stimulate DC’s penis, or even that he licked it.
Further, the quality of DC’s evidence is poor. It depends in part on the police officer’s interpretation of DC’s indications. Because DC was so reluctant to volunteer what had occurred, there is no narrative; largely, DC was responding to suggestions by the police officer. What occurred between the appellant’s mouth and DC’s penis is unclear. Although DC said that he told his mother everything, DC’s mother understood that the touching had been manual, not oral; in this respect, there was a conflict between the complaint evidence and the complainant’s evidence.
The tendency evidence does not enhance the prosecution case; it goes no further than supporting the proposition that the appellant had a tendency to act indecently towards children, and the appellant conceded there was prima facie evidence of some sort of indecent conduct by the appellant towards the complainant.
The evidence does not establish that any act of fellatio occurred and it certainly does not establish beyond reasonable doubt that any such act occurred.
The appeal against conviction is allowed and the orders of the Childrens Court are set aside. In lieu, verdicts of not guilty are entered.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 28 October 2016 |
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