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 pants down and manipulated his penis in a manner which JV demonstrated as a stroking or hand moving exercise. He did that four times. He did this while his vehicle was stationary along the rear portion of the bus, JV being seated at the rear of the bus on the right hand side.
LM saw the appellant in the motor vehicle which had been driven to a position beside the right hand rear of the bus. She saw that he had pulled his pants down to his knees and that he was “wiggling” his penis by moving it with his hand.
The appellant committed these acts when at a distance of between 3 and 6 metres from the complainants. They were able to see him and he was able to see them. He intended that his actions should be seen by them. The evidence of the appellant smiling established that the appellant achieved, or sought to achieve, some form of sexual gratification from his conduct.
The issue for determination
Before his Honour, it had been submitted on behalf of the appellant that indecent conduct “towards” a person, within the meaning of s61O(2), had to be conduct perpetrated in the immediate presence of the victim, such that there was a prospect of physical contact between them. It was argued that that element could not be established in this case because the appellant and the complainants were in different vehicles. However, his Honour held that, to whatever extent proximity between offender and victim was a requirement, it was met in this case. His Honour found that the appellant’s conduct was “towards” the complainants in the relevant sense by reason of that proximity, and the fact that he could see the complainants and they him, and that he intended that they should see what he was doing.
Mr Rosser, who appeared for the appellant before Judge Norrish and in this Court, took us to the history of the provision under which his client had been charged, s61O(2) of the Crimes Act. That sub-section provides:
Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years.
The offence of committing an act of indecency with or towards a person was first introduced into the Crimes Act in 1974, as s76A. That section provided:
Any person who commits any act of indecency with or towards any girl under the age of sixteen years, or incites a girl under that age to any act of indecency with him or another, shall be liable to imprisonment for two years.
In 1981, s76A was repealed and replaced by s61E(2). Except that it provided for offences against “a person”, regardless of gender, that sub-section was not relevantly different from its predecessor. It provided:
Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with that or another person, shall be liable to imprisonment for 2 years.
The High Court was called upon to consider the ambit of s61E(2) in Saraswati v The Queen (1990-91) 172 CLR 1. For that purpose, McHugh J (at 25-7) examined the rationale for the introduction into the Crimes Act of its predecessor, s76A. His Honour referred to two decisions of the English Court of Criminal Appeal in which it was held that the offence of indecent assault could not be made out where a man had requested a young girl to touch him indecently and she had complied: Fairclough v Whipp (1951) 35 Cr App R 138 and DPP v Rogers [1953] 1 WLR 1017.
The charge could not lie in either case because there was no conduct on the part of the man which could amount to an assault in the relevant sense (allowing for the fact that, if there had been such conduct, the consent of the child would have been no defence). It was to cure this deficiency in the offence of indecent assault, for which there was provision in the Crimes Act, that the legislature created the new offence of committing “any act of indecency with or towards” a girl under the relevant age.
The issue in Saraswati was whether three charges against that appellant of committing an act of indecency under s61E(2) were appropriate when the conduct alleged amounted to indecent assault (s61E(1)) as to two charges, and carnal knowledge (s71) as to the remaining charge. The significance of the issue was that, by virtue of s78, charges of indecent assault and carnal knowledge were subject to a limitation period, whereas the charge of committing an act of indecency was not. The majority, Toohey, Gaudron and McHugh JJ, held that s61E(2) did not embrace that conduct.
Of course, as a matter of ordinary usage, the behaviour alleged on the part of Mr Saraswati could be described as the commission of acts of indecency. However, McHugh J, with whose judgment Toohey J agreed, referred to ss33 and 34 of the Interpretation Act and the purposive approach to statutory construction encouraged by modern authority. His Honour said (at 21):
In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the “ordinary meaning" to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as “the ordinary meaning” and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act…
Applying those principles, and in the light of the legislative history outlined above, his Honour concluded (at 27):
Clearly, Parliament saw “the ordinary meaning” of the predecessor of s61E(2) as covering cases falling outside the scope of indecent assault and, it must follow, cases falling outside the scope of the offence of carnal knowledge.
…
Despite the literal meaning of the words “act of indecency”, the context of s61E(2) and the history and purpose of the legislation show that in s61E(2) “the ordinary meaning” of the words “act of indecency” does not include conduct which constitutes an indecent assault for the purposes of s61E(1) or an act of carnal knowledge for the purposes of s71.
That, however, was not the whole of McHugh J’s reasoning. As I have said, the issue arose in Saraswati because prosecutions for indecent assault or carnal knowledge would have been statute barred by s78. His Honour referred (at 24) to the principle “that a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed upon the exercise of a specific power…”. He found it “difficult to accept” that Parliament would have countenanced the use of the “general power” to institute prosecutions for committing an act of indecency to “circumvent the limitation” imposed by s78. Speaking of the predecessor of s61E(2), his Honour added (at 26):
No ground exists, however, for supposing that in enacting s76A Parliament had any purpose to interfere with the protection which s78 gives to a person who is alleged to have committed an indecent assault or had carnal knowledge of a girl under the age of sixteen years.
It was by a similar path of reasoning that Gaudron J arrived at the same conclusion as McHugh J. Her Honour referred (at 17) to the “basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied”. After reference to authority, her Honour concluded (at 18):
If s 61E(2) of the Act has the meaning for which the respondent contends, it necessarily derogates from the protection earlier afforded by s78. So much may be seen from the present case for although, by force of s 78, the applicant could not be charged with carnal knowledge and indecent assault, his prosecution under s61E(2) required him, as a matter of practical reality, to answer those very charges. In my view s 61E(2) has neither the meaning nor the effect for which the respondent contends.
Clearly, the ratio of Saraswati is not determinative of the present case. Mr Rosser did not suggest that it was. He relied upon the case only as authority for the proposition that s61O(2) should not be read literally, divorced from its history and context. He noted that in 1974, when s76A was introduced into the Crimes Act, there was provision in the Summary Offences Act 1970 for the offences of indecent exposure of a person in or within view of a public place or a school (s11), and wilful and obscene exposure of a person in or within view of a public place or a school (s12). Both were summary offences, the former carrying a maximum penalty of a fine of $100 and the latter a maximum penalty of a fine of $400 or imprisonment for six months. S76A created an indictable offence, although in certain circumstances it could be dealt summarily: s476 of the Crimes Act. In either event, it carried a maximum sentence of two years imprisonment.
Mr Rosser argued that these offences, particularly wilful and obscene exposure, were part of the context in which s76A was enacted and that Parliament could not have “had in its contemplation the augmentation of those offences.” He relied upon the decision of Taylor J in Moloney v Mercer [1971] 2 NSWLR 207. It is unnecessary to set out the facts or the issues for determination in that case. It is sufficient to say that his Honour was called upon to consider the distinction between indecent exposure, on the one hand, and wilful and obscene exposure, on the other. This, in turn, required an examination of the difference in nuance between the words “indecent” and “obscene”. His Honour referred to R v Stanley [1965] 2 QB 327, in which it was held that those words convey one idea, that is, offending against recognised standards of propriety, with “indecent” being at the lower and “obscene” at the upper end of the scale. Giving the judgment to the Court, Lord Parker adopted a passage from the judgment of Lord Sands in the Scottish case of McGowan v Langmuir [1931] S.C. (J.) 10, at 13:
I do not think that the two words “indecent” and “obscene” are synonymous. The one may shade into the other, but there is a difference of meaning. It is easier to illustrate than define, and I illustrate thus: for a male bather to enter the water nude in the presence of ladies would be indecent, it would not necessarily be obscene. But if he directed the attention of a lady to a certain member of his body his conduct would certainly be obscene.
Taylor J accepted that analogy for the purpose of the New South Wales provisions. It follows, Mr Rosser submitted, that the offence of wilful and obscene exposure requires more than the display of an intimate part of the body; there must be “some degree of lewdness or conduct directed towards a victim.” He noted that s12 of the Summary Offences Act 1970 has been re-enacted as s5 of the Summary Offences Act 1988 (although s11 has no counterpart in the later Act). That section remains in force, and co-exists with the current provisions dealing with committing acts of indecency: s61N, in respect of offences committed against persons of the age of sixteen years and below or above that age, and s61O, in respect of offences committed against persons under the age of ten years or in various circumstances of aggravation. Wilful and obscene exposure remains a summary offence, carrying a fine of up to ten penalty units or imprisonment for up to six months.
Mr Rosser submitted that, consistently with the reasoning in Moloney v Mercer, that offence would embrace the present appellant’s conduct. He argued that Parliament could not have intended that conduct amounting to that offence should be the subject of prosecution for the significantly more serious offence of committing an act of indecency. This argument did not find favour with Judge Norrish, although it seems that his Honour was not referred to Taylor J’s judgment.
I find it unnecessary to decide the point, but it might be said that the manipulation of his penis described by the two young complainants takes the appellant’s actions outside the scope of wilful and obscene exposure. However that may be, I do not consider the fact that the legislature has provided for that offence relevant to the construction of the provisions dealing with the commission of acts of indecency. The fact that there may be some overlap between those provisions and the summary offence is not to the point. It is clear from the legislative history that the whole purpose of creating the offence of committing an act of indecency was to make good the deficiency exposed in the offence of indecent assault. The crucial question in the present case remains whether, as a matter of law, his Honour’s findings of fact are capable of establishing that offence.
In Fairclough v Whipp (supra) the respondent, while urinating into a canal, asked a young girl to touch his penis and she did so. In DPP v Rogers (supra) a father exposed himself to his daughter and had her masturbate him. In Saraswati (at 26) McHugh J said that he found it unnecessary “to determine whether s76A was intended to cover cases which are not indecent assault but go beyond the Fairclough-type situation.” There are reported cases dealing with other situations.
In R v Francis (1989) 88 Cr App R 127, it was accepted that the offence was established where a man masturbated in the presence of two thirteen year old boys in the changing room at a swimming pool, provided that he was aware that the boys could see him and derived sexual satisfaction from that fact. That decision was followed by this Court in R v Gillard (1999) 105 A Crim R 479, in which it was held that the offence could be made out on each of two occasions when a couple engaged in sexual acts in the presence of a young girl, encouraging the girl to watch and, on one occasion, inviting her to join in: see the judgment at [61]-[65].
The common thread in all those cases, Mr Rosser observed, is that the offending conduct was committed in the immediate presence of the victim. He argued that it was within that context that the provisions relating to committing acts of indecency are intended to operate. He pointed out that the acts of the appellant could not be said to have been done in the immediate presence of the complainants because they were “in separate enclosures without the prospect of physical contact between them.” Hence, he argued, the appellant’s conduct could amount to no more than wilful and obscene exposure.
The various provisions dealing with the commission of acts of indecency, including s61O(2), refer to such acts “with or towards” a person. In R v Orsos (1997) 95 A Crim R 457 a majority of this Court (Hulme J dissenting) drew a distinction between those two words. Grove J, with whom Priestley JA agreed, said (at 460), “To commit an act of indecency ‘with’ a person involves two participants whereas logically and grammatically one person may commit an act of indecency ‘towards’ another”. His Honour went on to observe that it was not necessary, for the purpose of that case, “to define the limits of activity which might be comprehended” by those expressions.
A similar approach had been taken in the earlier decision of R v Page (CCA, unrep, 25 November 1991). More recently, the reasoning of the majority in Orsos was discussed and affirmed in R v Chonka [2000] NSWCCA 466. In a joint judgment, Fitzgerald JA and Ireland AJ said (at [46]):
Broadly speaking, an act of indecency “with” another requires two participants in the indecent act, while an act of indecency “towards” another is committed by a person who acts indecently towards a non-participant.
Shortly after that judgment was delivered, the High Court arrived at the same conclusion, albeit in respect of a different statutory provision, in Crampton v The Queen (2001) 206 CLR 161.
On this analysis, the facts in Francis and Gillard are examples of acts of indecency committed “towards”, rather than “with”, the complainants. In those cases the complainants were in the immediate presence of the victims, but the question remains whether that is an essential prerequisite of the offence of committing an act of indecency “towards” a person. That word has a number of shades of meaning, depending upon its context, but I find nothing in its ordinary usage, or in the relevant legislative history, which requires it to be given such a limited denotation for present purposes.
In Chonka the appellant had been found guilty of a number of counts of inciting acts of indecency by young girls and, in one case, an eighteen-year-old woman. The offences were said to have been committed in the course of telephone conversations between the appellant and each of the complainants. Four counts alleged telephone calls in which he incited the complainant to commit an auto-erotic act. Three of those counts charged the incitement of an act of indecency “with” the appellant, while the fourth charged the incitement of an act of indecency “towards” him. Consistently with the statement of principle from their judgment set out above, Fitzgerald JA and Ireland AJ entered verdicts of acquittal on the three counts alleging acts of indecency with the appellant. As to the other count, their Honours found it unnecessary to decide whether the act of the complainant incited by the appellant could constitute an indecent act towards him. However, for other reasons they set aside the verdict on that count (and several other counts to which I have not referred) and directed a new trial.

The third member of the Court, Smart AJ, took a different view of the case. For reasons which need not concern us, his Honour would have allowed the appeal against conviction in respect of one count only. Relevantly, however, he expressed himself (at [63]) to be in no doubt “that an act of indecency could be directed towards a person over the telephone or by other means not involving the act of indecency being carried out in the personal presence of the other person.”
As the Crown prosecutor before us pointed out, whether an act of indecency can be directed towards a person over the telephone need not be determined for present purposes. However, I respectfully agree with Smart AJ’s observation to the extent that it conveys that immediate presence is not required. In most cases the offence will have been committed in such proximity to the complainant as to amount to immediate presence. This is not such a case but, in my view, the appellant’s act of indecency could fairly be said to have been committed “towards” the complainant for the reasons identified by Judge Norrish: he exposed and manipulated his penis in circumstances where he was within view of the girls and intended that they should see what he was doing.
Let me return, then, to the two questions of law submitted for determination. To the first question, whether the offence requires that the relevant act of indecency be committed in the immediate physical presence of the victim, I would answer ‘No’`. That being so, the second question, whether his Honour erred in finding that the “towards” element was established, need not be answered. I would propose that the case be remitted to the District Court to be dealt with accordingly.

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LAST UPDATED: 14/04/2005