R v Barrie

Case [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…

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R v Barrie [2012] SASCFC 124
Case
[2012] SASCFC 124
Decision Date

CaseChat Overview and Summary

The appellant, R v Barrie, appealed to the Supreme Court of South Australia against a District Court judge's refusal to grant a stay of proceedings. The appellant faced charges under s 63B(3) of the Criminal Law Consolidation Act 1935 (SA) for allegedly communicating online with an undercover detective posing as a minor on two separate occasions. The appellant sought the stay on the grounds that the prosecution constituted an abuse of process and was therefore doomed to fail.

The central legal issue before the court was the proper construction of s 63B of the Criminal Law Consolidation Act 1935 (SA), particularly the elements of the offences charged and whether the definition of "child" in s 62 applied to the recipient of the communication in the context of s 63B(3). The appellant argued that the charges were unsustainable, necessitating a stay of proceedings.

The court applied the principles of statutory construction, emphasising that the meaning of a provision must be determined by reference to the language of the statute viewed as a whole, considering its context, general purpose, and policy. The court noted that s 63B is part of a division aimed at protecting children from sexual exploitation. It distinguished between subsections (1) and (3) of s 63B, finding that while subsection (1) might relate to a specific child, subsection (3) focuses on the conduct and intention of the accused. The court analysed the elements of the offences, concluding that for Count 1, the accused must have made a communication with the intention of procuring a child (under 16) to engage in or submit to sexual activity. For Count 2, the accused must have made a communication for a prurient purpose with the intention of making a child (under 16) amenable to sexual activity.

The appeal was dismissed. The court found that the elements of the charged offences were properly established by the prosecution's case and that the prosecution was not an abuse of process. The court urged the District Court to proceed with arraignment and trial as a matter of urgency, noting the unfortunate delays that had already occurred.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J
In summary, I consider that the elements of the offences charged are as follows:Count 1 – Making a Communication for a Prurient Purpose1.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 Activity1.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. 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

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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”.