R v F; ex parte

[2003] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

R v F; ex parte A-G (Qld) [2003] QCA 70

PARTIES:

R
v
F
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 284 of 2002
DC No 590 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 669A(1A) Criminal Code

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

28 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2003

JUDGES:

Davies and Williams JJA and Cullinane J
Separate reasons for judgment of each member of the Court; Davies and Williams JJA concurring as to the orders made, Cullinane J dissenting

ORDERS:

1. Appeal allowed
2. Order granting a permanent stay set aside

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – MENS REA – STATUTORY OFFENCES – EFFECT OF PARTICULAR WORDS – OTHER WORDS – where respondent charged with kidnapping along with another offender – where other offender sexually assaulted complainant – where permanent stay ordered due to ambiguity in s 354(2) Criminal Code in relation to meaning of “procure”  – whether facts relied on by prosecution capable of supporting a conviction

Criminal Code 1899 (Qld), s 217, s 417, s 354(2)

Attorney-General’s Reference (No 1 of 1975) [1975] QB 773, considered
Deutsch v The Queen [1986] 2 SCR 2, considered
Gough v Rees (1929) 46 TLR 103, considered
In re Royal Victoria Pavilion (Ramsgate) [1961] Ch 581, considered
Re Broadfoot (1976) 64 CrAppR 71, considered

COUNSEL:

R G Martin for the appellant
S J Hamlyn-Harris for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

1. DAVIES JA: I agree with the order proposed by Williams JA. The central question in this appeal is whether the word "procure" in s 354(2) of the Criminal Code means merely "enable" or "facilitate" or, on the other hand, "compel" or "induce".  The provision is in the following terms:

"A person kidnaps another person if the person unlawfully and forcibly takes or detains the other person with intent to gain anything from any person or to procure anything to be done or omitted to be done by any person."

1. In my opinion in the above context the word "procure" means no more than "enable" or "facilitate".  Once that conclusion is reached it follows that, on the facts stated by Williams JA which I adopt, a conviction could be sustained because those facts could establish that the respondent took part in forcibly detaining the complainant with intent to enable A, his co-accused, to sexually assault her.  The following are my reasons for that conclusion.

1. The word "procure" is a plain English word.  It is not a term of art.  However its meaning may change depending on the context in which it is used.  In particular the degree of proximity between procurement and what is procured may vary depending on the context in which the word is used.  This may be illustrated by a useful comparison.

1. Compare the phrase in s 354(2) "procure anything…