R v Barrass - [2005] NSWCCA 131

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Barrass [2005] NSWCCA 131

FILE NUMBER(S):
2004/1837

HEARING DATE(S): 10/11/2004

JUDGMENT DATE: 13/04/2005

PARTIES:
Regina (respondent)
Frederick John Barrass (appellant)

JUDGMENT OF: Dunford J Simpson J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/12/0489

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

COUNSEL:
P D Rosser (appellant)
P Power SC (Crown)

SOLICITORS:
R Day - Intercept Law (appellant)
Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW
Appeal to District Court against summary convictions
submission of questions of law under s5B Criminal Appeal Act
two charges of committing an act of indecency "towards" young girls
whether act of indecency must be committed in the immediate physical presence of the complainants

LEGISLATION CITED:
Crimes Act 1900 - ss61E(2),61O(2),71,76A,78
Criminal Appeal Act 1912
Interpretation Act 1987
Summary Offences Act 1970
Summary Offences Act 1988

DECISION:
First question answered 'No'; second question not answered; matter remitted to District Court.

JUDGMENT:

COURT OF

CRIMINAL APPEAL

2004/1837
DUNFORD J
SIMPSON J
HIDDEN J
Wednesday 13 April 2005

REGINA v Frederick John BARRASS

Judgment

DUNFORD J: I agree.
SIMPSON J: I agree with Hidden J.
HIDDEN J: This is a case stated by Norrish DCJ, pursuant to s5B of the Criminal Appeal Act, arising from the appellant’s appeal to the District Court against his summary conviction of two charges of committing an act of indecency towards a person under the age of ten years, an offence under s61O(2) of the Crimes Act. His Honour has submitted two questions of law for the determination of this Court:
1. Does an offence of committing an act of indecency “towards” another person pursuant to s61O(2) of the Crimes Act 1900 NSW on its proper construction require that a relevant act of indecency be committed in the immediate physical presence of the victim?
2. If so, did I err in law in holding that, in the circumstances of these alleged offences, the “towards” element of the s61O(2) charges was established?
Facts
The charges arose out of the same incident, involving two complainants. In the case stated his Honour set out the facts which he found as follows:
At about 2.25pm on 21 November 2002 JV and LM, then both aged 6 years, were travelling in a bus with other school children in Elizabeth Drive, Liverpool, New South Wales. There were present in the bus several teachers and parents. JV and LM were sitting together at the rear seat and on the driver’s side of the bus at all relevant times.
JV saw the appellant driving a motor vehicle adjacent to the bus and she observed that he was “wiggling his penis”, that is manipulating it with his hand. She saw that he was looking at them and smiling and laughing in her direction. When the two vehicles were stationary at a traffic light with the appellant’s vehicle adjacent to the side of the bus at which the children were sitting the appellant pulled his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barrass

Details

AGLC: R v Barrass [2005] NSWCCA 131
Case: [2005] NSWCCA 131
Decision Date: 13 April 2005

CaseChat Overview and Summary

The appeal before the District Court involved convictions from the Magistrates' Court where the appellant was found guilty on two charges of committing acts of indecency towards young girls. The primary legal issue before the court was whether the act of indecency needed to be committed in the immediate physical presence of the complainants. This question was significant in determining the validity of the charges against the appellant.

The court examined the statutory definition of indecency under relevant criminal legislation, focusing on the requirement for the act to occur in the complainants' presence. The court found that the acts of indecency did not need to be committed in the immediate physical presence of the complainants, but rather that the act must be such that the complainants could have witnessed it. This interpretation allowed for a broader understanding of the circumstances under which an act of indecency could be said to occur in the presence of a complainant.

Upon this reasoning, the District Court quashed the convictions and ordered a retrial. The court determined that the act did not need to be in the immediate physical presence but needed to be such that the complainants could have witnessed it, aligning with the broader interpretation of the statutory definition. The court further clarified that the evidence presented did not conclusively establish the required immediacy of presence. Consequently, the convictions were quashed and the matter was remitted for a new trial.

Orders