R v BARRIE - [2012] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARRIE
Criminal Trial by Judge Alone
[2012] SADC 112
Reasons for Ruling of His Honour Judge Soulio
7 September 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant sought stay of criminal proceedings on the basis that ex officio Information disclosed no offence - or was an abuse of process.
Held: Application dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 62, 63B; Acts Interpretation Act 1915 (SA) s 22; Criminal Law Consolidation (Child Pornography) Amendment Act 2005; Director of Public Prosecutions Act 1991 s 7; District Court Criminal Rules r 8, referred to.
R v Mai (1992) 26 NSWLR 371; R v Gedling (2007) 252 LSJS 8; K-Generation P/L & Anor v Liquor Licensing Court & Anor (2009) 236 CLR 501; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Re Bolton; ex parte Beane (1987) 162 CLR 514; R v Ratcliff, Stanfield and Utting (2007) 250 LSJS 226; Barton v The Queen (1980) 147 CLR 75, considered.

R v BARRIE
[2012] SADC 112
Introduction

The applicant seeks an order quashing, or alternatively, permanently staying criminal proceedings on the basis that charges involving communicating with a child cannot be made out where the communication was in fact with an undercover police officer posing as a child.
The Charges
The applicant is charged on an ex officio Information with the offences of making a communication for a prurient purpose on 13 May 2009, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 SA, (‘CLCA’) and making a communication intending to procure a child for sexual activity, between 4 and 18 September 2009, contrary to s 63B(3)(a) CLCA.
In relation to Count 1, it is common ground that a member of the South Australian Police (SAPOL) assumed the fictitious identity of a female child, Annabel Ambramowitz, aged 13 years. On 13 March 2009 the police officer, posing as Annabel Ambramowitz, engaged in a conversation with a person using the pseudonyms blonde gym bod 09 and Jim Bob, who is said to be the applicant. In the course of that conversation the applicant is said to have sent a photograph of an erect penis to Annabel, and discussed matters of a general sexual nature with her, including inquiring as to whether she was a virgin.
In relation to Count 2, a member of SAPOL assumed the fictitious identity of a 14 year old girl, Felicity Groves, and between 4 September 2009 and 18 September 2009 the police officer, using that identity, engaged in several internet conversations and exchanged messages with the person using the pseudonyms blonde gym bod 09 and/or Jim Bob. The police officer, posing as Felicity, provided a mobile telephone number to the applicant, and during the course of the internet communications the two discussed matters of a sexual nature. It is alleged that the applicant made arrangements to meet with Felicity for the purposes of a sexual encounter.
The Original Charges
Police investigations identified the applicant as the person using the pseudonyms, and on 20 September 2009 he was interviewed. As was his right, he declined to answer any questions. The applicant was originally charged on Information with the offences of aggravated[1] making a communication for a prurient purpose, and making a communication intending to procure a child for sexual activity.
[1] The aggravated offence was originally charged on the basis that the person with whom the applicant was said to have been communicating was under the age of 14 years.
On 15 June 2010 in the Magistrates Court, the applicant made a submission that there was no case to answer on the ground that the “child” with whom he was said to have communicated was, in each case, a police officer holding himself out to be a child, and therefore no offence had been committed. The magistrate found that there was no case to answer on that basis, and dismissed the charges.
On 28 July 2010 the Director of Public Prosecution (‘DPP’) filed an ex officio Information. Subsequently the DPP amended Count 1 by reducing the charge to the non-aggravated form of the offence.
The Application
The applicant brought an application pursuant to Rule 8 of the District Court Criminal Rules seeking an order that the ex officio Information be quashed on the ground that, having regards to the factual basis upon which it is asserted that the offence is based, the Information disclosed no offence, and, in the alternative, that the ex officio Information be permanently stayed.
The application for an order that the Information be quashed is based upon the same contention put to the magistrate, namely that relevant ingredients of the offence, namely communicating with a child, cannot be established where there was not in fact a child, but rather a police officer assuming the identity of a child.
The applicant further contends that the laying of an ex officio Information constitutes an abuse of the process of the Court, and that where, as here, a dismissal of a charge is based on a question of law, with no offence being disclosed on the Information, the appropriate procedure to be adopted is for the decision to be reviewed, rather than the DPP proceeding to lay an ex officio Information.
The Relevant Legislation
Section 63B(3) CLCA provides that:
(a) A person who—
procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity;
Section 63B(3) provides that:
(b) A person who—
makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,
is guilty of an offence.
At the time of the offending s 62 of the Act defined “child” as meaning “a person under, or apparently under, the age of 16 years”.[2]
[2] Section 62 was amended by Act 43 of 2011 which came into operation 17 November 2011.
The applicant submitted that the definition of “child” contained in s 62 CLCA could not apply where there was no actual child in existence, and submitted that on a plain reading, s 63B CLCA could only have been intended to apply to a real situation in which a real person existed, and was the recipient of the communication.
An Information or an indictment, at common law, must disclose an offence punishable by law, and may be quashed if it does not. Further, the Information or indictment must identify the essential factual ingredients of the offence charged.[3]
[3] R v Mai (1992) 26 NSWLR 371 at 377 per Hunt CJ, and see the cases cited therein.
The applicant submitted that the Information could not identify the essential factual ingredients of an offence contrary to s 63B CLCA, given that there was no actual child in existence with whom any communications took place.
Interpretation
Section 22 of the Acts Interpretation Act 1915 (SA) provides:
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
On that basis, the applicant submitted, the court should be slow to interpret s 63B of the CLCA as having application to the facts of this case where to do so would create or extend the criminal liability of the applicant.
The applicant submitted that there was, at least, an ambiguity in the way in which the legislation was to be interpreted, and that accordingly the court should have regard to the Second Reading Speech in seeking to ascertain the intention of Parliament in passing the Act in its present form.
The question as to whether extrinsic materials may be considered, and in what circumstances they may be considered as an aid to statutory interpretation, is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed.[4]
[4] K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor (2009) 237 CLR 501 at [51].
It is not necessary, before entering upon a consideration of such material, to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose.[5] Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.[6]
[5] Ibid at [52].
[6] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
The relevant extrinsic material is the Attorney-General’s Second Reading Speech[7] introducing the Criminal Law Consolidation (Child Pornography) Amendment Act 2005 (SA)[8] (‘CPA’) which led to the enactment of s 63B. This material may be considered to determine the purpose of the section as an aid to its construction. That of course does not mean that the words of the Attorney-General can be substituted for its text.[9]
[7]    Hansard, 26 October 2004.
[8]    Act 52 of 2004.
[9]    Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.
In the Second Reading Speech the then Attorney-General said:[10]
The bill will make amendments to the Criminal Law Consolidation Act and consequential amendments to the Summary Offences Act. The amendments will move the child pornography offences from the Summary Offences Act into the Criminal Law Consolidation Act, the aims of the provisions being the protection of children from exploitation, degradation and humiliation remain. Child pornography is a heinous exploitation of children, and the demand for such materials fuels its production and supply. The purpose of these amendments is to reduce and, as far as possible, eliminate the possession, production, supply and sale of child pornography.
These amendments will increase the penalties for the offence of possession of child pornography and for the production or dissemination of child pornography. The bill will introduce new offences of procuring and grooming a child for the purpose of engaging in sexual acts, and filming or photographing children for prurient purposes. The increase in penalties for child pornography offences is in line with moves in other jurisdictions to increase penalties for these offences.
[10] Hansard, 26 October 2004 at 561.
The Attorney-General went on to say:[11]
On 30 August 2004, the Commonwealth passed amendments to the Criminal Code Act 1995 (Cth) that created offences for using the internet for the purposes of disseminating, accessing or downloading child pornography and child abuse material. The Commonwealth drafted the amendments so that the States and Territories would also be able to legislate in this area without running into constitutional problems.
The Bill will reflect some of the Commonwealth internet provisions with some minor amendments. Nowadays, pederasts search through chat rooms, newsgroups and other internet services to find children to prey upon. Some pederasts use pornographic images as part of the manipulation process to entice children into so called ‘positive’ sexual encounters with adults.
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.
[11] Ibid at 562.
The applicant however relies specifically on the following passage from the then Attorney-General’s speech: [12]
[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.
[12] Hansard, 26 October 2004 at 562.
The applicant submitted that what Parliament was intending to convey, by the explanation in the Second Reading Speech, was that having regard to the very serious and significant penalties which applied to such offences, such penalties should not be imposed upon a person where there is no real child who is the subject of the offence.
In R v Gedling,[13] Millsteed DCJ described the remarks in the final quoted passage as puzzling. He went on to say:
The wording of the section is plainly wide enough to permit the detection of offenders using the type of subterfuge employed by the police in the present case. Furthermore, the policy of the CPA is to protect children from sexual exploitation. That policy is given effect by s 63B(3) which targets people who engage in “grooming” of children for future sexual abuse. Given the policy of the CPA and the purpose of the section there is, in my view, no sensible reason why s 63B(3) cannot be used to allow the police to assume the identity of a fictitious child in order to detect offenders engaged in online grooming. Indeed this method of entrapment, the legitimacy of which was conceded by the defence in the present case, is frequently used in the investigation of offences under similar federal and interstate legislation. Of course, the fact that no real child was the recipient of the communication is a matter relevant to penalty. (citations omitted)
[13] R v Gedling (2007) 252 LSJS 8.
In R v Gedling, a case involving an offence contrary to s 63B(3)(a), the accused was convicted by a jury of communicating with intent to procure a child to engage in sexual activity where the “child” was, as here, a police officer posing as a 14 year old girl.
Millsteed DCJ was called upon to rule on whether it was necessary for the prosecution to prove that the accused knew that the recipient was a “child” as defined in the legislation, or did not have an honest and reasonable belief to the contrary.
He ruled that there was no such obligation. He directed the jury that in order to prove an offence under s 63B(3) the prosecution was required to establish beyond reasonable doubt:
·     that the defendant made a communication;
·     that the defendant did so with the intention of procuring the recipient of the communication to engage in, or submit to, sexual activity; and
·     that the recipient was a child as defined by the legislation, namely, a person under, or apparently under, the age of 16.
His Honour said:[14]
First, the phrases “procures a child” and “procuring a child” (to engage in or submit to sexual activity) are not qualified by the word “knowingly” or some similar expression. Second, unlike the offence of possession of child pornography (s 63A(1)) the section does not (by marked contrast to the offences of unlawful sexual intercourse (s 49) and indecent assault (s 56)) expressly provide for any defence based on mistaken belief. Third, for reasons previously discussed, the extension of the definition of “child” to a person apparently under the age of 16 effectively removes any scope for the operation of the Proudman v Dayman defence.
Finally, to require proof of knowledge, or the absence of a contrary belief in relation to the age or apparent age of the child, would undermine Parliament’s intention to protect children from sexual exploitation through the internet and other mediums of communication. For example, the only evidence that the recipient of a communication over the internet was a child may be a photograph sent to the accused. As Bleby J observed in Police v Kennedy in such a case “it would be very difficult to prove an offence other than in the case of prepubescent children of such an age that no-one could possibly hold a belief that the subject was not under 16.” Where no such photograph was sent the only evidence that the recipient was under, or apparently under, 16 might be the recipient’s description of himself or herself. In this type of case it could, depending on the details of the description provided by the recipient, be even more difficult to prove the commission of an offence.
[14] R v Gedling (2007) 252 LSJS 8 at [52-53].
Counsel for the applicant submitted that the observations of Millsteed DCJ were obiter, and not on an issue which was the subject of full argument. Nevertheless, it seems to me that the then Attorney General, in acknowledging that police officers might use the internet to pose as a child to attract those who would groom or procure a child to engage in sexual activity, could not then suggest that the Act excluded those apprehended in that very manner, from being charged. A more logical explanation, if one is required, is that the then Attorney General meant that the Act excluded from prosecution, or provided immunity from prosecution to, a police officer engaging in such a communication.
Comparison with Cognate Legislation
The applicant contends that in interpreting the section for present purposes, comparison should be made with cognate Commonwealth legislation and legislation in other states which specifically address the issue of communication with a fictitious person, and include such communications as constituting the offence.[15]
[15] Criminal Code Act 1995 (Cth) s 474.28(9); Criminal Code Act 1899 (Qld) s 218A; Criminal Code Compilation Act 1913 (WA) s 204B(8); Criminal Code Act 1924 (Tas) s 125D(6); Crime Act 1900 (NSW) s 66EB, s 66EB(5).
While it may have been preferable to have made specific reference to fictional persons, the absence of such a reference does not, in my view, mean that the alleged actions of the applicant are not caught by the section.
In any event, the members of SAPOL posing as Annabel Abramowitz, and Felicity Groves were persons, and were, as a result of their self-descriptions, apparently under the age of 16 years, and therefore within the definition contained in s 62 of the Act.
Ex officio Information
The applicant asserts that the laying of an ex officio indictment constitutes an abuse of process. Section 7 of the Director of Public Prosecution Act 1991 (SA) empowers the DPP to lay an ex officio Information.[16] Proceedings may be stayed where the laying of an ex officio Information results in an injustice to the accused.[17]
[16] R v Ratcliff, Stanfield and Utting (2007) 250 LSJS 226.
[17] Barton v The Queen (1980) 147 CLR 75.
Whilst it is correct that the magistrate’s decision was based upon a question of law, I consider that it was open to the DPP to lay an ex officio Information. Doing so did not result in an injustice to the accused within the relevant meaning of that term. It did not constitute an abuse of process.
Conclusion
In my view, there is no proper basis upon which the Information should be quashed, nor upon which it should be stayed as an abuse of process. I dismiss the application.