R v Barrie - [2012] SASCFC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARRIE
[2012] SASCFC 124
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
15 November 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - FROM INTERLOCUTORY OR ANTECEDENT JUDGMENT OR ORDER
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
The appellant was charged with two offences under s 63B(3) of the Criminal Law Consolidation Act 1935 (SA) - both counts arise from a police undercover operation - it is alleged that on two separate occasions the appellant communicated online with an undercover detective, posing as a 13-year-old and 14-year-old, respectively.
The appellant sought a stay of the prosecution on the basis that it was an abuse of process because the charges were foredoomed to fail - District Court Judge refused the stay but, pursuant to s 352(1)(c)(i), granted permission to the appellant to appeal against that decision as an issue antecedent to trial.
Whether the prosecution is foredoomed to fail because the undercover detective cannot answer the description of a 'child' - the interpretation of 'special reasons', considered - the issue of delay, considered.
Held (dismissing the appeal) per Sulan J: The Court will consider what amounts to special reasons having regard to the context in which the words are used - the question is whether in the circumstances there is something out of the ordinary or out of the usual justifying the fragmentation of the trial - criminal trials should be disposed of expeditiously - the trial should now be heard and determined without further delay.
(Per Vanstone J, Sulan J agreeing): The terms of the section do not require the prosecution to prove that the person to whom the communication is made is in fact a child - the identity and age of the person or persons to whom the communication is made is not confined.
(Per White J): The prosecution need not prove a communication with a particular child for the purposes of s 63B(3) offences - the undercover detective is capable of answering the description of a person "apparently" under the age of 16 years for the purposes of s 63B - whether the apparent age of an accused for the purposes of s 63B is to be determined by reference to the accused's subjective belief or objectively by reference to the circumstances as known to the communicator at the time of the alleged offence, the prosecution case is capable of being made out.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 62, s 63, s 63A, s 63B, s 348, s 350, s 352; Criminal Law (Undercover Operations) Act 1995 (SA); Criminal Code Act 1995 (Cth); The Criminal Code (Cth) s 474.28(9); Crimes Act 1900 (NSW) s 66EB(5); Criminal Code 1899 (Qld) s 218A(7); Criminal Code Act 1924 (Tas) Sch 1, s 125D(6); Criminal Code Act 1913 (WA) s 204B(8), referred to.
Baker v The Queen (2004) 223 CLR 513; R v Simpson (2001) 126 A Crim R 525; White v South Australia (2007) 96 SASR 581; R v Jacobi [2012] SASCFC 115; Application for Reservation of Questions of Law (No 2 of 1999) 106 A Crim R 423; Application for Reservation of Questions of Law (No 1 of 2009) [2009] SASC 12; Walton v Gardiner (1993) 177 CLR 378; R v McGee & McGee (2008) 102 SASR 318; Proudman v Dayman (1941) 67 CLR 536; Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450; Police v Kennedy (1998) 71 SASR 175; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; Question of Law Reserved by Trial Judge (No 3 of 2010) [2010] SASCFC 77; R v Barrie [2012] SADC 112; R v Clarke (2008) 100 SASR 363; R v Gedling (2007) 252 LSJS 8, considered.

R v BARRIE
[2012] SASCFC 124
Court of Criminal Appeal: Sulan, Vanstone and White JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Vanstone J on the issue of the construction of s 63B(3) of the Criminal Law Consolidation Act 1935 (SA). I refer to her reasons and White J’s reasons which state the background and the submissions made by the appellant.
I make the following observations about two topics, being the interpretation of special reasons in s 352(1)(c) of the Act, and the procedure adopted by the trial Judge and the unexplained and apparently unwarranted delays in the progress of this matter.
Section 352 of the Act – special reasons
On 26 September 2012, permission to appeal, pursuant to s 352(1)(c)(i) of the Act was granted by the Judge. He concluded that there were special reasons why it would be in the interests of the administration of justice to have the appeal determined before the commencement or completion of the trial. In granting the application, the trial Judge appears to have considered that, because the communication which gave rise to the charges was not with an actual child under the age of 16, that amounted to a special reason why, in the interests of administration of justice, the appeal should be determined prior to the trial commencing.
Section 352(1)(c) provides:
352(1)Appeals lie to the Full Court as follows:
...
(c)    if a court makes a decision on an issue antecedent to trial that is adverse to the defendant –
(i)    the defendant may appeal against the decision before the commencement or completion of the trial with the permission of the court of trial (but permission will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial);
(ii)     the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.
As Vanstone J observed, in order for an appeal to lie on an issue antecedent to trial before the commencement or completion of the trial, the defendant requires permission of the Court of trial, which should only be granted if it appears to the Court that there are special reasons why it will be in the interests of the administration of justice to have the appeal determined before the commencement or completion of the trial.
The term “special reasons” or “special circumstances” often appears in legislation and has been the subject of judicial comment or determination in a number of cases. In Baker v The Queen, Gleeson CJ said:[1]
There is nothing unusual about legislation that requires courts to find “special reasons” or “special circumstances” as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality and from a combination of factors.
[1] (2004) 223 CLR 513, [13].
In R v Simpson, Spigelman CJ, in considering the term “special circumstances” said:[2]
Statutory words of such generality usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation. While certain considerations might not often be sufficiently “special”, so that an exceptional justification is required for them to obtain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that “special circumstances” are made out on the facts of a particular case.
[2] (2001) 126 A Crim R 525, [57].
The Court will consider what amounts to special reasons, having regard to the context in which the words are used.[3] Section 352 is included in the part of the Criminal Law Consolidation Act 1935 (SA) dealing with appeals. The principle that criminal trials should be determined expeditiously so not to fragment the process of the trial is relevant when considering what factors might amount to special reasons.
[3] See White v South Australia (2007) 96 SASR 581, [48] per Doyle CJ.
Special reasons mean something out of the ordinary course, unusual, special or uncommon. In considering whether special reasons exist, the question which must be answered is whether, in the circumstances of this case, there is something out of the ordinary or out of the usual which justifies the fragmentation of the trial.
There was nothing out of the ordinary which justified the matter being referred to this Court. I agree with Vanstone J that this was not an appropriate case for permission to be granted.
Delay
This matter has now been to the Full Court on two occasions without the trial proceeding. If there is a conviction, there is a prospect of yet a third appeal. The alleged offences took place in March 2009 and September 2009. The appellant was arraigned on 10 August 2010. On 5 November 2010, the District Court Judge reserved the following question to the Full Court:
Whether an offence pursuant to s 63B(3)(a) and (b) of the Criminal Law Consolidation Act 1935 (SA) can be committed in circumstances where the alleged communication by an accused person is made via the internet to an adult serving undercover South Australian Police officer with an assumed and fictitious identity of a child.
The matter was heard by the Full Court (Vanstone, David and Peek JJ) on 15 December 2010. On 21 December 2010 the Court published reasons in which the Court declined to consider and determine the question. The Court observed that there was a lack of a firm factual context for the question, and that the question was hypothetical. Further, there had not been a considered decision by the judge below and the Court, therefore, was denied the advantage of such a decision. The Court indicated that it was preferable that the matter proceed in the usual way. The usual way is to have the case heard and finalised in the District Court.
The matter was eventually listed for trial on 8 November 2011, almost 12 months after the Full Court had referred it back to the trial Judge. From the information provided, I am not able to determine why such a lengthy delay had occurred. Whenever a matter is referred back to the District Court by this Court, there should be expedition in having the matter re‑listed and finally determined. In R v Jacobi,[4] Gray and Sulan JJ referred to a delay in a matter being listed for trial and stated that, when this Court directs an early trial, a delay of six months to list the trial should not occur.
[4] R v Jacobi [2012] SASCFC 115 [60].
There is no clear explanation for the delay. On any view, this was a trial which could be heard and determined in two, at the most three, days. Although there may be difficulties in listing matters expeditiously, it is difficult to comprehend why it took almost 12 months to re-list the matter. Having re-listed the trial, it was desirable for it to be completed without further fragmentation. Generally, it is desirable that trials should be completed in the trial court without preliminary points being referred to the Full Court.
On 9 and 10 November 2011, the appellant sought to permanently stay the proceedings on the ground that, because the charge required a communication with a child and, in fact, the communication was with an adult undercover police officer, no offence could be made out.
The Judge reserved his decision. A ruling was made on 7 September 2012 when he published reasons. A delay of ten months between the application and a ruling is unacceptable. Criminal trials should be disposed of expeditiously. The issue for determination was within a very narrow compass and required an interpretation of s 63B of the Act. The trial Judge determined that there was no proper basis upon which the information should be quashed, nor upon which it should be stayed as an abuse of process. He dismissed the application. The application for leave to appeal that decision was made, and leave was granted on 26 September 2012.
In Application for Reservation of Questions of Law (No 2 of 1999),[5] the Director of Public Prosecutions applied to the Full Court seeking reservation of certain questions of law for consideration and determination by the Full Court, pursuant to s 350(2) of the Criminal Law Consolidation Act 1935 (SA). Doyle CJ, with whom Wicks J agreed, observed that in creating the provision, Parliament could not have intended that the Full Court would exercise its power under s 350 to provide, as a matter of routine, a process for reviewing decisions by trial judges made in the ordinary course of trying a case.[6] Duggan J, who agreed, said:[7]
In my view the cases will be rare in which such a direction is appropriate. The circumstances of the present case provide a suitable illustration of why that is so. In the first place, there is a concern which exists in all cases that a criminal trial should not be fragmented and that there should be no interference with the trial except in a clear case. The trial judge considered these matters and took them into account when refusing to state a case. Then there is the question of delay which is of particular concern in the present case.
[5] (1999) 106 A Crim R 423.
[6] (1999) 106 A Crim R 423, [28].
[7] (1999) 106 A Crim R 423, [46].
The statement is apposite. In Application for Reservation of Questions of Law (No 1 of 2009),[8] the Court (Nyland, David and Kelly JJ), again considering the application of s 350(5) of the Act, said:[9]
Since the section was amended in 1995 this Court has repeatedly stated that the power must be exercised with restraint, particularly where the application will interrupt the course of the trial or where the application is made with a view to requiring a trial judge to review a decision already made.
[Citations omitted].
[8] [2009] SASC 12.
[9] [2009] SASC 12, [12].
Although the statements referred to were made in the context of applications pursuant to s 350, the general concern that criminal trials should not be fragmented is applicable to an appeal in respect of issues antecedent to trial.
It is to be observed that this case is an example of why it is undesirable for criminal trials to be fragmented. The interests of the administration of justice require that the trial should now be heard and determined without further delay.
VANSTONE J: The accused, Peter Francis Edward Barrie, appeals against the refusal of a District Court judge to stay proceedings on an information as an abuse of the process of the Court. The information contains charges of making a communication for a prurient purpose and making a communication intending to procure a child for sexual activity.
Background to this proceeding
The right of appeal given under s 352(1)(c) Criminal Law Consolidation Act 1935 (CLCA) is a right to appeal against a decision “on an issue antecedent to trial”. That expression is defined in s 348 CLCA and encompasses a question arising before trial as to whether proceedings should be stayed as an abuse of process of the court.
The appeal may proceed “with the permission of the court of trial”, and that permission is to be granted only if there are “special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial”: s 352(1)(c)(i).
Here, permission has been granted by the court of trial, although no special reasons have been identified.
Should permission to appeal have been given
In my view this was not an appropriate case for the grant of permission. I say that for the reasons which follow.
This procedure will have the effect of delaying the prosecution of the charges. Prosecution of the matter has already been the subject of extraordinary delay. In 2010 this Court was asked to determine what was described as a question of law arising in the same matter. It was effectively the same question as is now raised. The Court (of which I was a member) decided for several reasons not to answer the question posed and indicated that “it is preferable for the matter to proceed in the usual way”: Question of Law Reserved by Trial Judge (No 3 of 2010) [2010] SASCFC 77. For reasons that are not clear to me, some two years have elapsed since then and the matter is little further advanced.
That there are special reasons to have the appeal determined at this point is not apparent to me. The appellant has put to the court below his argument in favour of a remedy which remains an exceptional one and has suffered an adverse ruling. His right of appeal is preserved by s 352(1)(c)(ii) of the CLCA. The judge’s reasons for the ruling are clear and persuasive. It is not now suggested there is an error on the face of the information such that the offence charged is not one known to law, merely that the prosecution is foredoomed to fail.
The factual basis on which the appeal is anticipated to proceed is not firm. There is no agreed statement of facts, or any admissions by the accused. Although in his reasons for ruling the judge referred to certain factual matters as being “common ground”, those factual matters concern the activities of the police. Whether the appellant admits any part of the allegations going to his conduct remains unknown. Indeed, at this stage the appellant does not appear to have been arraigned.
There is a question whether the information is in its final form. Count 1 in its original form alleges a circumstance of aggravation, yet at one point counsel for the prosecution foreshadowed an amendment to remove that particular. I propose to proceed on the basis that it has been removed. The court below seems to have proceeded on that basis.
The question for determination
Since the matter is now before the Court I shall address in concise terms the question raised.
The appellant’s argument before the District Court judge as renewed on this appeal is that the prosecution is an abuse of process because it is foredoomed to fail. See Walton v Gardiner (1993) 177 CLR 378 at 392-393 and R v McGee & McGee (2008) 102 SASR 318 at 341-344. That contention rests on the premise that in the case of both counts 1 and 2 the person to whom the appellant allegedly communicated was not a child, but a police officer posing as a child. It is put that proof of each charge requires proof that the communication was made to an actual child and not an adult posing as a child.
The charges in the information (less the circumstance of aggravation appearing in count 1) are laid as follows:
First Count
Statement of Offence
Making a Communication for a Prurient Purpose. (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter Francis Edward Barrie on the 13^th day of March 2009 at Adelaide or another place, made a communication using the internet for a prurient purpose and with the intention of making a child amenable to sexual activity.
Second Count
Statement of Offence
Making a Communication Intending to Procure a Child for Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter Francis Edward Barrie between the 4^th day of September 2009 and the 18^th day of September 2009 at Adelaide and other places, made a communication using the internet with the intention of procuring a child to engage in or submit to sexual activity.

Relevant parts of s 63(B) and the definitions of “child” and “child pornography” in s 62, as they stood at the time of the alleged offences, are as follows:
Section 63B
(1)     A person who—
(a)    incites or procures the commission by a child of an indecent act; or
(b)    acting for a prurient purpose—
(i)causes or induces a child to expose any part of his or her body; or
(ii)makes a photographic, electronic or other record from which the image, or images, of a child engaged in a private act may be reproduced,
is guilty of an offence.
…
(3)     A person who—
(a)procures a child or makes a communication with the intention of procuring a child to engage in, or submit to, a sexual activity; or
(b)makes a communication for a prurient purpose and with the intention of making a child amenable to a sexual activity,
is guilty of an offence.
…
Section 62
child means a person under, or apparently under, the age of 16 years;
child pornography means material—
(a)     that—
(i)     describes or depicts a child engaging in sexual activity; or
(ii)consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and
(b)     that is intended or apparently intended—
(i)     to excite or gratify sexual interest; or
(ii)to excite or gratify a sadistic or other perverted interest in violence or cruelty;
It can be seen that s 63B creates three distinct offences, two of which are concerned with the making of a communication accompanied by a certain intention. The third, being procuring a child to engage in or submit to a sexual activity, is not directly relevant to this appeal.
I now summarise the appellant’s main submissions in brief terms. Counsel for the appellant, Mr Handshin, argues that, in its references to “a child”, s 63B consistently refers to an actual person who is under the age of 16 years. Fictitious entities, he puts, are excluded by use of the term “a child” and by the reference in the definition of “child” to “a person”. He argues that the gravamen of each offence is the making of a communication to a particular child, accompanied by the relevant state of mind. It follows, the argument goes, that if the communication is made to an adult, then no offence is committed. He argues that the presence of the words “under, or apparently under, the age of 16 years” in the definition of “child” do not assist the contrary argument and are there only to indicate that there can be no reliance on a Proudman v Dayman (1941) 67 CLR 536 defence and do not have the effect of expanding the meaning of “child” to encompass an adult who is presenting as a child. He relies on a later amendment to s 62 deleting the definition of “child” and so removing the words “or apparently under the age of 16 years” as supporting that facet of his argument.
Analysis
The appellant’s arguments fail on a plain reading of the relevant parts of s 63B(3). Where an offence is charged in terms of making a communication with the intention of procuring a child (subsection (3)(a)) or making a communication for a prurient purpose and with the intention of making a child amenable to a sexual activity (subsection (3)(b)) then the essence of the offence is the making of a communication coupled with the relevant intention. The terms of the section do not require the prosecution to prove that the person to whom the communication is made is in fact a child. The definition of “child”, in its reference to “a person … apparently under, the age of 16 years” is not engaged. There is no question of the word “child” bearing a different meaning elsewhere in the section, because only the intention of the person communicating is in issue.
The interpretation promoted by the appellant necessitates reading the subparagraphs of subsection (3) as if they contained additional words such as “makes a communication to a child”. Parliament could have included such words as those italicised, but chose not to. As drafted, the identity and age of the person or persons to whom the communication is made is not confined. There is no particular reason to read the section narrowly.
The particulars of the two offences charged (which derive directly from the section) are apt to illustrate the point. The only reference to “child” occurs in relation to the accused’s intention. There is no reference to “child” in describing the actus reus. That situation may be contrasted with the third species of offence created by the subsection, which deals with the procuring of “a child”.
Resort to later amendments to this section and s 62 do not assist. In my mind the amendments referred to (which I shall not set out) appear to be relevant to other sections within the Division containing s 63B and are neutral in terms of Mr Handshin’s argument. For that reason I do not consider that the deletion of the definition of “child” has any impact on the construction of the particular s 63B offences with which this appeal is concerned.
In summary, I consider that the elements of the offences charged are as follows:
Count 1 – Making a Communication for a Prurient Purpose
1.the accused made a communication;
2.he did so with the intention of procuring a child (that is, a person under the age of 16 years) to engage in/submit to a sexual activity;
Count 2 – Making a Communication Intending to Procure a Child for Sexual Activity
1.the accused made a communication;
2.he did so for a prurient purpose;
3.he did so with the intention of making a child (that is, a person under the age of 16 years) amenable to sexual activity.
Conclusion
For these reasons I would dismiss the appeal.
I would urge the District Court to forthwith arrange for the appellant to be arraigned and, if the matter is to go to trial, for a trial to be listed as a matter of urgency. I wish to associate myself with the remarks of Sulan J regarding the unfortunate delays which have been permitted to occur in this matter.
WHITE J. The appellant is charged on information with two offences. He sought a stay of the prosecution, contending that the charges are foredoomed to fail and accordingly that the prosecution is an abuse of process.
The Judge in the District Court refused to order a stay.[10]
[10] R v Barrie [2012] SADC 112.
However, against the opposition of the Director of Public Prosecutions, the Judge granted permission to the appellant to appeal to this Court against that decision. In doing so, the Judge exercised the power vested in him by s 352(1)(c)(i) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) to grant a defendant permission to appeal to this Court against a decision on an issue antecedent to trial that is adverse to the defendant. That power may be exercised only when “it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial”.
By s 348 of the CLCA, a question as to whether an information should be stayed on the ground that the prosecution is an abuse of process is “an issue antecedent to trial”.
In my opinion, the appeal should be dismissed. My reasons follow.
The Charges
In Count 1, the appellant is charged with “aggravated making a communication for a prurient purpose”, contrary to s 63B(3)(b) of the CLCA. It is alleged that on 13 March 2009, he made a communication using the internet for a prurient purpose and “with the intention of making a child amenable to sexual activity”. The circumstance of aggravation alleged is that the appellant committed the offence knowing that the child was under the age of 14 years.
In Count 2, the appellant is charged with an offence of “making a communication intending to procure a child for sexual activity”, contrary to s 63B(3)(a) of the CLCA. It is alleged that between 4 and 18 September 2009 the appellant made a communication using the internet with “the intention of procuring a child to engage in or to submit to sexual activity”. No circumstance of aggravation is alleged in relation to Count 2.
The Prosecution Case
Both counts arise from a police undercover operation.
The prosecution intends leading evidence in relation to Count 1 that, on 13 March 2009, a detective exercising an approval granted under the Criminal Law (Undercover Operations) Act 1995 (SA) participated in an internet “chat room”, portraying himself as Annabel Abramowicz, aged 13 years. A person, alleged by the prosecution to be the appellant, engaged in “chat” with Annabel after she had identified herself as a child aged 13 years. The prosecution allege that during the course of the “chat” the appellant sent a photograph of his erect penis to Annabel and discussed matters of a general sexual nature, including by enquiring as to whether she was a virgin.
In relation to Count 2, the prosecution intends leading evidence that, on a date between 4 September and 18 September 2009, the detective, again acting lawfully, entered an internet “chat room”. The detective identified himself on these occasions as Felicity Grooves aged 14 years. A person, who the prosecution allege is the appellant, engaged in “chat” with Felicity on some eight occasions. The prosecution allege that the appellant discussed matters of a sexual nature with Felicity and made arrangements to meet her for the purpose of a sexual encounter.
The Statutory Provisions
Section 63B of the CLCA, as in force at the time of the alleged offences, was as follows:
(1)     A person who—
(a)     incites or procures the commission by a child of an indecent act; or
(b)     acting for a prurient purpose—
(i)    causes or induces a child to expose any part of his or her body; or
(ii)makes a photographic, electronic or other record from which the image, or images, of a child engaged in a private act may be reproduced,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 12 years.
(2)     Subsection (1) applies whether the acts alleged to constitute the offence—
(a)     occur in private or in public; or
(b)     occur with or without the consent of the child, or the child's parent or guardian.
(3)     A person who—
(a)     procures a child or makes a communication with the intention of procuring a child to engage in, or submit to, a sexual activity; or
(b)     makes a communication for a prurient purpose and with the intention of making a child amenable to a sexual activity,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 12 years.
As can be seen, s 63B(3)(a), as in force in 2009, creates two offences relating to the procuring of a “child” to engage in sexual activity: being the procuring of a “child” with that intention or the making of a communication with the intention of procuring a “child” to engage in sexual activity. Section 63B(3)(b) creates a single offence of making a communication for a prurient purpose and with the intention of making a “child” amenable to a sexual activity.
Section 63B is contained in Div 11A of Pt 3 of the CLCA. The word “child” is defined for the purposes of Div 11A to mean “a person under, or apparently under, the age of 16 years.”[11]
[11] Criminal Law Consolidation Act 1935 (SA), s 62.
The Application for the Stay
On 2 August 2010 the appellant filed an application seeking orders that the information be quashed on the ground that it disclosed no offence or, in the alternative, a stay of the prosecution as an abuse of process. Subsequently, on 10 November 2011, the appellant filed an amended application seeking only an order that the prosecution be stayed permanently as an abuse of process on the ground that it was foredoomed to fail. As indicated earlier, the Judge dismissed the application. The Judge’s reasons for decision indicate that he addressed the appellant’s original application rather than the amended application. This means that the Judge did not address explicitly the appellant’s submission that the prosecution is foredoomed to fail. However, the Judge did address the question of whether the charged offences could be proved in the circumstance that none of the communications relied upon were with an actual child.
The Judge also determined the appellant’s application by reference to s 63B in its present form, rather than the materially different form which was in force at the time of the alleged offences.
There are other difficulties with the present appeal. The prosecution has not yet opened its case in the District Court and, accordingly, this Court does not know the precise way in which the case will be presented. In this state of uncertainty, I consider it appropriate to assume that the prosecution case will be that the communicator, whoever he was, did so for a prurient purpose and with the intention of making the person with whom he was communicating amenable to sexual activity. This was one of the alternatives which the appellant himself acknowledged was open. On this understanding, the primary issue on the appeal is whether the detective answered the description of “a person under, or apparently under, the age of 16 years”. That in turn raises the issue of whether the detective’s apparent age is to be determined by reference to the circumstances as they appeared to the communicator at the time of the communications or by reference to the circumstances as known at the trial.
Appellant’s Submission
The appellant submits that the word “child” in s 63B(3), wherever appearing, had the meaning specified in s 62 as then in force, ie, an actual person under, or apparently under, the age of 16 years. He submits that the detective did not answer that description (and nor for that matter did Annabel or Felicity). Accordingly, the prosecution is foredoomed to fail.
The appellant’s submission had the following elements. First, the word “child” in the first offence established by s 63B(3)(a), namely, procuring a child to engage in sexual activity, had the meaning of a real person under, or apparently under, the age of 16 years. One could not procure a child who did not exist (such as “Annabel” or “Felicity”) and the procuring of an adult such as the detective portraying himself as a child could not amount to an offence, at least under s 63B(3).
Secondly, the presumption[12] that the same meaning should be given to the same words wherever they appear in the one enactment should be applied. That is especially so in the case of s 63B(3) in which the word “child” is used three times. That repeated usage, in the context of the statutory definition of the word “child”, indicates that the legislature intended the word to be used on each occasion with the same meaning. This means, the appellant submitted, that on each occasion that the word “child” is used in s 63B, it connotes a real person under, or apparently under, the age of 16 years and, considered objectively, none of Annabel, Felicity or the detective answer that description.
[12] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452.
Thirdly, the appellant submitted that the physical act contemplated by each of the two communication offences established by s 63B is a communication with a child as defined and that the proscribed purpose and intention must relate to the child with whom the defendant is communicating. To support his submission, the appellant referred to the Second Reading Speech of the then Attorney‑General in relation to the introduction of Div 11A into Pt 3 of the CLCA. The Attorney said:
The Bill will introduce new offences of communicating with a child with the intention of procuring a child to engage in, or submit to, a sexual activity, and communicating, for a prurient purpose, with the intention of making a child amenable to sexual activity. The offences are drafted as separate offences, which is appropriate, given that grooming is a preparatory offence and procuring involves more substantial acts. The Bill excludes from the orbit of the new offence the situation where a police officer, using the internet, poses as a child to attract those who would “groom” or procure a child for pornographic purposes. The Bill does this by referring to making a communication with the intention of procuring a child to engage in, or submit to, a sexual activity or, in the alternative, to making a communication for a prurient purpose and with the intention of making a child amenable to sexual activity.[13]
(Emphasis added)
Thus, the appellant submitted that the words emphasised in the Second Reading Speech indicate that the mischief to which the legislation is directed is the communication with a “child” with one or other of the proscribed intentions. Section 63 should be construed in a purposive way consistent with this intention.
[13] South Australia, Parliamentary Debtates, House of Assembly, 26 October 2004, 562.
The appellant also referred to the decision of Judge Millsteed in the District Court in R v Gedling[14] to support the submission that the communication should be with a child.
[14] [2007] SADC 124; (2007) 252 LSJS 8.
Fourthly, the appellant submitted that the aggravated form of the s 63B offences indicates that, sensibly considered, the basic offences can be committed only by communications to an actual person under, or apparently under, 16 years. Section 5AA(1)(e) identifies the circumstances in which the aggravated form of the offences under Pt 3, Div 11A may be committed, namely:
(e)the offender committed the offence knowing that the victim of the offence was, at the time of the offence—
(i) in the case of an offence against Part 3, Division 11A – under the age of 14 years;
(ii) in any other case – under the age of 12 years;
The appellant emphasised the words “knowing”, “victim” and the expression “under the age of 14 years”. The word “victim” indicated, he submitted, that the legislature contemplated that there would be a victim of each offence in Div 11A, supporting the conclusion that the proscribed communications had to be with a real child. He also submitted that an offender could not know that a victim was under the age of 14 years unless the victim was both a real person and actually under the age of 14 years.
Next, the appellant referred to the counterpart legislation of the Commonwealth and of some of the other States which provides specifically that the corresponding offences under that legislation may be committed by communication to a fictitious person who is understood by the sender to be a real person.[15] The fact that the South Australian legislation did not have an equivalent provision could, he submitted, be taken into account in the construction of s 63B.
[15] See for example The Criminal Code (Cth), s 474.28(9); Criminal Code 1899 (Qld), s 218A(7); Criminal Code Act 1913 (WA), s 204B(8); Criminal Code Act 1924 (Tas), Sch 1, s 125D(6); and Crimes Act 1900 (NSW), s 66EB(5).
Finally, the appellant submitted that s 63B as in force at the time of his alleged offences should be construed by reference to the significant amendments made to s 63B in 2011.[16] I will refer to the effect of these amendments later.
[16] Criminal Law Consolidation (Child Pornography) Amendment Act 2011 (SA), s 4.
The appellant relied upon these matters both separately and in combination. That is to say, this was not a case in which each of the elements of his submission had to be accepted in order for the appeal to be upheld.
Consideration
I consider that, strictly speaking, it is not necessary for the purposes of the present appeal to determine whether the communications to which s 63B refers must be made to a child. However, the submissions on the topic formed a significant part of the appellant’s argument, making it appropriate for them to be addressed.

The outcome of the appeal turns on the proper construction of s 63B and of the word “child” defined in s 62. The proper approach to the construction of s 63B is that stated by the plurality in Project Blue Sky Inc v Australian Broadcasting Authority:[17]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.” Thus, the process of construction must always begin by examining the context of the provision that is being construed.[18]
(Citations omitted)
[17] [1998] HCA 28; (1988) 194 CLR 355.
[18] Ibid at [69]; 381.
Section 63B is one of three offence provisions in Div 11A of Pt 3 directed to proscribing the production, dissemination or possession of child pornography (ss 63 and 63A) and the procuring of children to commit indecent acts (s 63B). The provisions have an important public purpose, namely, protecting children from sexual exploitation, degradation and humiliation.
Section 63B establishes offences in subss (1) and (3). The offences in these subsections are of a qualitatively different kind. Expressed generally, subs (1) makes criminal conduct which causes a child to behave in a specified way or which involves the recording of images of a child for a proscribed purpose. Of their nature they seem to be offences which may be committed only in relation to a particular child (as defined).
Subsection (3) on the other hand makes criminal conduct of a specified kind if it is carried out with a specified intention and purpose. It is less obvious that the specified intention and purpose need relate to a particular child.
The offence established by s 63B(3)(b) comprises a physical element and a mental element with two requirements. The physical element is the making of a communication. The mental element requires first the making of the communication “for a prurient purpose” and, secondly, that it be made with the intention of making a “child” amenable to a sexual activity. The expression “prurient purpose” is defined in s 62 in a way indicating that it is concerned with a person’s satisfaction of a desire for sexual arousal or gratification, whether the person’s own desire or that of someone else. It is not linked in any way to the definition of “a child”.
The communication offence established by s 63B(3)(a) also comprises a physical and mental element. The physical element is the making of a communication. The mental element is the making of the communication with the intention of procuring a “child” to engage in, or to submit to, a sexual activity.
Thus, in relation to both offences the expression “a child” is, on its face, pertinent only to the mental element. The expression is not made pertinent to the physical element at all.
The appellant sought to avoid this construction, arguing that in each case the communication had to be with a child as defined. He went further, contending that an offender had to have the proscribed intention in relation to the child with whom he or she was communicating.
It could be said that it is inherent in the notion of communication that there be both a person conveying a statement of some form (the maker), on the one hand, and a recipient of the communication, on the other. That may be so in practice in most, if not all, offences under s 63B. However, it does not follow that the recipient must in all cases be a child, let alone the child in respect of whom the defendant has the proscribed intention. On its face, s 63B seems equally capable of encompassing communications to an intermediary, whether adult or child, and communications which are not directed to a particular individual at all, as in the case of advertisements, provided that in each case the maker has the proscribed intention. Given the evident purpose of s 63B, there is no reason to construe the expression “makes a communication” narrowly, or to read in implications which the legislature itself has chosen not to use.
I also consider that the manner of expression of s 63B is inconsistent with the construction proposed by the appellant. Section 63B uses, in each sub‑paragraph, the expression “makes a communication”, rather than the cognate verb “communicates”. If the latter expression had been used, it is probable that the legislature would have had to identify a recipient of the communication in order for the provision to read sensibly. Instead, the legislature has used a more general expression (“makes a communication”) allowing for the variety of ways and circumstances in which communications are made. Account should be taken of the legislature’s apparent deliberate use of this more general expression.
I repeat my view that, having regard to the evident purpose of Div 11A, and the important public policy considerations which underpin it, s 63B should not be construed narrowly. This militates against the appellant’s submission that s 63B(3)(b) should be read as though it provides “makes a communication with a child for a prurient purpose and with the intention of making the child amenable to sexual activity”, or as though it provides “with the intention of making the person with whom the person is communicating, if a child, amenable to sexual activity”. This reasoning also applies to s 63B(3)(a).
It is also to be noted that it is the indefinite article “a” rather than the definite article “the” which is used before the word “child” in each case. This counts against a construction that the provisions contemplate offences being committed only in relation to a particular child.
This suggests that the intention in question may relate to any child in the defined sense and not just to a child with whom the defendant happens to be communicating. Of course, one would expect many of the offences under s 63B(3)(a) and (b) to be committed when the communication is made directly by the defendant to a particular child with the intention of making that child amenable to sexual activity However, in my view, that is not the only way in which the offences may be committed.
In my opinion, the Attorney-General’s Second Reading Speech does not assist the appellant on this issue. The Attorney did describe the s 63B offences as offences of communicating “with a child”, but this need not be taken as a statement of the only circumstances in which the offences may be committed. On the contrary, it is plain that the Attorney was contemplating that the offences may also be committed by a communication with a person who is not in fact a child. That is implicit in the Attorney’s statement that a police officer posing as a child to “attract” would be offenders would not commit the offence.
Further, and in any event, the task of this Court is to interpret the words used by the legislature in the statute and not the explanation given by the Attorney.
In my opinion, the circumstance of aggravation contemplated by s 5AA(1)(e) of the CLCA does not take the matter further. First, s 5AA(1)(e) operates on an underlying offence by indicating that, when some additional feature is present, the commission of the underlying offence is aggravated. One would not ordinarily expect a provision of this kind to operate so as to narrow the circumstances in which the underlying offence may be committed. Secondly, while it is reasonable to suppose that s 5AA(1)(e) applies only when there is an identifiable victim (even if the identity of the victim is not known) that will not necessarily be the case in relation to all offences under Div 11A. I have already referred to the qualitative difference between the offences established by s 63B(1) and (3) respectively.
In my opinion, the amendments to Div 11A made in 2011[19] are of no assistance presently. By those amendments, the definition of “child” in s 62 was removed. In addition each of the offence provisions was amended to insert after the word “child” wherever appearing the words “under the prescribed age in relation to that person”.[20] The prescribed age was defined to be 18 years for persons in a position of authority in relation to the child, and 17 years in all other cases. Thus, s 63B no longer uses the expression “apparently under the age of 16 years” and defines the word “child” by reference to an actual age. In these circumstances, I do not consider that the 2011 amendments can be said to shed any light on the issues arising in this appeal.
[19] Criminal Law Consolidation (Child Pornography) Amendment Act 2011 (SA).
[20] The exception is s 63B(1)(b)(ii) in which the words “under the age of 17 years” were inserted after the word “child”.
This makes it unnecessary in the present case to consider the circumstances in which it is appropriate for an earlier provision in a statute to be construed in the light of a subsequent amendment.
For these reasons I consider that, contrary to the appellant’s submission, it is not necessary for the prosecution to prove a communication by a defendant with a particular child.
On the understanding of the prosecution case outlined earlier, the prosecutor will contend at trial that the detective was a person “apparently under the age of 16 years” and that the appellant had the proscribed intention in relation to him. The prosecution accepts that, on the evidence which will be adduced at trial, the detective will not be a person apparently under the age of 16 years. It will contend, however, that the apparent age of the detective is to be determined by reference to the position as it seemed to the maker of the communications at the time they were made.
This requires consideration of the expression “apparently under the age of 16 years”, and whether it is possible for the trier of fact to conclude that the detective was such a person.
Section 63B, in the form which is applicable in this case, was considered by this Court in R v Clarke[21] in relation to a charge under subs (1)(a) that the defendant had incited a child to commit an indecent act. The issue considered by the Court was whether the defendant had a defence of honest and reasonable mistake of fact based on her belief that the victims in question were 17 years of age. The Court did not have to consider the issue arising in the present case.
[21] [2008] SASC 100; (2008) 100 SASR 363.
However, the Court did address the phrase “apparently under the age of 16 years”. It held that whether a person is apparently under the age of 16 years is a question of fact to be determined objectively by the trier of fact, based on the evidence and using the decision‑maker’s own experience and knowledge.[22] The Court approved the following passage in the reasons of Bleby J in Police v Kennedy:[23]
[W]hether a person is apparently under the age of 16 is a question of fact to be determined by the magistrate. In that regard, the magistrate may or may not be assisted by the leading of expert evidence. However, ultimately the magistrate must exercise his or her fact‑finding role. Where that involves, as it does here, a qualitative assessment of a person’s apparent age, that will be a matter of judgment, based on all the evidence, and on which the magistrate will bring to bear his or her own experience, commonsense and judgment, in the same way as a member of a jury would be required to do if this were an indictable offence. If, according to the experience and commonsense of ordinary and reasonable people, a person is apparently under the age of 16, it follows that, although the respondent may have genuinely held the opposite belief, it was not a belief that could have been reasonably held by the respondent. In other words, once the conclusion is reached that the subjects depicted in the material are apparently under the age of 16, there can be no room for any honest and reasonable belief that they were not.[24]
[22] Ibid at [24], 371; [87], 383.
[23] (1998) 71 SASR 175.
[24] Ibid at 186.
The statements that the issue of whether a person is apparently under the age of 16 is a question of fact to be determined objectively were made in the context (relevantly) of s 63B(1)(a) which, as seen earlier, involves the causing of a “child” to engage in a proscribed activity. It by no means follows that the same approach is to be adopted in relation to the offences in s 63B(3) in which the issue arises only in relation to a defendant’s state of mind. It could be said that in those cases in which the prosecution seeks to prove a defendant’s state of mind in relation to a person who is not in fact under 16 years, it must establish that the defendant had the proscribed state of mind in relation to a person who seemed to the defendant to be under 16 years. That is to say, the enquiry will concern only the defendant’s subjective state of mind.
A construction to this effect could have the result that a person may commit a s 63B(3) offence in relation to a person who, although in fact 16 years of age or more, appeared to be under 16. However, to my mind that consideration does not count against the construction considered above. It is understandable that Parliament may have intended to deter risk takers (those willing to take the chance that a person is under the age of 16) from doing so by punishing those who make the proscribed communications to persons who appear to them to be under the age of 16 as well as those who are in fact under that age. Doyle CJ referred to a similar possibility in R v Clarke.[25]
[25] [2008] SASC 100 at [39]; (2008) 100 SASR 363 at 374.
An alternative construction is that the issue is to be determined by considering objectively whether, in the circumstances as they appeared to the defendant, the person was apparently under the age of 16 years. That is to say, a defendant will have the proscribed intention under s 63B(3)(b) if the defendant makes the communication in question with the purpose and intention of making a person amenable to a sexual activity and that person is, considered objectively by reference to the circumstances as they appeared to the defendant, apparently under the age of 16 years. Similarly, under s 63B(3)(a), a defendant will have the proscribed intention if the defendant makes the communication with the intention of procuring a person who is, considered objectively by reference to the circumstances as they appeared to the defendant, apparently under the age of 16 years.
Of these alternatives, I favour the second. It gives effect to the legislative purpose and is consistent with the approach adopted in R v Clarke.
However, on either alternative the prosecution case against the present appellant is capable of being made out. That is because it will be open to the trier of fact to conclude that, whether considered wholly subjectively or, in the alternative, objectively having regard to the circumstances as they appeared to the maker of the communications, he intended to procure a person apparently under the age of 16 years to engage in a sexual activity, or to make a person apparently under the age of 16 years amenable to sexual activity, as the case may be. Put more simply, it will be open to the trier of fact to conclude that, whether considered subjectively or objectively, the detective was, to the maker of the communications, a person apparently under the age of 16 years.
In practice, the difference between the two alternative constructions may not be significant.
I add that I do not regard the Commonwealth and interstate counterparts to Div 11A as being of assistance on the issues of construction which arise in the appeal. It is true that the Attorney-General referred in the Second Reading Speech to the Criminal Code Act 1995 (Cth) and the counterpart offences which it contained.[26] It is also true that Div 11A deals with the same subject matter as does the Criminal Code and the interstate counterparts. However, it cannot be said in the present case that the legislature intended that s 63B, unlike its Commonwealth and interstate counterparts, should not encompass communications to undercover police officers posing as children. The Attorney‑General adverted expressly to this possibility in a way indicating an intention that offences may be committed in such circumstances. Further, on the construction of s 63B which I prefer, effect can be given to that legislative intention. For the reasons given earlier, there is no reason to construe s 63 narrowly so as not to give effect to the apparent legislative intention.
[26] South Australia, Parliamentary Debates, House of Assembly, 26 October 2004, 562.
For these reasons, I consider that the appeal should be dismissed.
Progress of the Matter in the District Court
One cannot help observing that, although the Information against the appellant was presented in the District Court on 26 July 2010, the matter has not yet come to trial. In the intervening period there have been some 11 attendances in the District Court. In addition, this is the second occasion upon which the proceedings concerning this prosecution have come to this Court. In December 2010 this Court declined to answer a question of law on an issue antecedent to trial reserved by the District Court under s 350(2) of the CLCA.[27]
[27] Question of Law Reserved by Trial Judge (No 3 of 2010) [2010] SASCFC 77.
I note that as long ago as 8 March 2011, Senior Counsel then appearing for the appellant sought a trial listing, foreshadowing a short trial proceeding on an agreed factual basis and before a judge sitting alone.
In my respectful opinion, it is contrary to the proper administration of justice and contrary to the public interest that, some two and a quarter years after the Information was presented and after some 12 or so Court attendances, a matter requiring such an apparently short hearing has still not come to trial.
I add that the existence or otherwise in this case of “special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial” is not a matter for review by this Court. However, it is difficult, in my opinion, to identify in the circumstances of this case any special reasons of the requisite kind.
Summary
For the reasons given above, I would dismiss the appeal. This matter should be brought to trial expeditiously.