R v Gillespie
[2014] ACTCA 25
•6 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Gillespie |
Medium Neutral Citation: | [2014] ACTCA 25 |
Hearing Date: | 16 May 2014 |
DecisionDate: | 6 August 2014 |
Before: | Penfold, Burns and Ross JJ |
Decision: | The questions are answered as follows: 1. Where an accused performs an act that by ordinary community standards has an unequivocal sexual connotation, when the Court is determining whether the act is an act of indecency pursuant to section 61 of the Crimes Act 1900 (ACT), is it relevant to consider the intention of the accused, in particular whether the act was performed as a joke rather than for his own sexual gratification or for sexual humiliation of the victim? Yes, so long as it is understood the word “intention” actually refers to the purpose of the accused. 2. If words or phrases which have a sexual connotation are spoken in the presence of a child and the child either does not comprehend these words or there is no evidence the child does, can an offence of committing an act of indecency in the presence of that child pursuant to section 61 of the Crimes Act 1900 (ACT) be made out on those facts alone? Not necessary to answer. |
Category: | Case stated |
Catchwords: | CRIMINAL LAW – EVIDENCE – Relevance – special case referred by single judge – act of indecency on a person under 10 – whether purpose is an element of the offence – act said to be performed as a joke – even where act is “unequivocally sexual”, context may be relevant to determining whether act indecent – context may include accused’s purpose in performing relevant act. |
Legislation Cited: | Court Procedure Rules 2006 (ACT) Crimes Act 1900 (ACT) Supreme Court Act 1933 (ACT) |
Cases Cited: | DPP v AW [2013] ACTCA 35 DPP v Rogers [1953] 1 WLR 1017 R v Taylor [2010] ACTSC 121 |
Parties: | Matthew Gillespie ( Applicant) Crown ( Other Active Party) |
Representation: | Counsel Mr J Pappas ( Applicant) Mr J White ( Other Active Party) |
| Solicitors Ben Aulich & Associates ( Applicant) ACT Director of Public Prosecutions ( Other Active Party) | |
File Number: | ACTCA 38 of 2014 SCC 113 of 2013 |
Penfold J:
I have read the judgment of Burns J, and agree with his Honour’s reasoning, with the conclusions he has reached, and with the answers he proposes to the questions referred to the Full Court. However, I wish to add a further qualification to the answer to question 1.
Question 1 is as follows:
Where an accused performs an act that by ordinary community standards has an unequivocal sexual connotation, when the Court is determining whether the act is an act of indecency pursuant to section 61 of the Crimes Act 1900 (ACT), is it relevant to consider the intention of the accused, in particular whether the act was performed as a joke rather than for his own sexual gratification or for sexual humiliation of the victim.
I agree that the question should be answered “Yes”, and I agree with Burns J’s qualification that this answer is given on the basis of treating the reference to the accused’s intention as a reference to the accused’s purpose.
However, I would not wish the positive answer to the question to be read as any kind of endorsement of a proposition that an act is not indecent, or is presumptively not indecent, if performed “as a joke rather than for ... sexual gratification or for sexual humiliation of the victim”, or of the narrower proposition that an act cannot be both intended as a joke and performed for sexual gratification or humiliation of the victim.
As to the significance of “jokes” in this context, I note that commonly, the “humour” in such a case will stem at least in part from the indecency of the act in context or from the humiliation of the victim. To the extent that it does so, a claim that the act was intended as a joke would not seem to answer the assertion that the act was indecent.
| I certify that the preceding five [5] paragraphs numbered [1] – [5] are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 6 August 2014 |
Burns J:
The applicant is awaiting trial on an indictment containing a single count contrary to s 61 of the Crimes Act 1900 (ACT), alleging that on 19 June 2012 he committed an act of indecency in the presence of DB, being a person under the age of 10 years.
On 28 January 2014, the matter was listed before the primary judge for the taking and recording of pre-trial evidence of a child witness as permitted by Div 4.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). As I understand what occurred before the primary judge, the Crown indicated it did not propose calling the complainant, DB, in the trial of the applicant. DB was only 5 years old at the time of the events giving rise to the charge. On 28 January 2014, DB’s sister, LB, gave pre-trial evidence. She was 17 years old at the time of the alleged offence, and as such was a child witness for the purpose of Div 4.2B: see the definition of child in Pt 1 of the Dictionary to the Legislation Act 2001 (ACT).
I will digress at this point and explain the nature of the allegation against the applicant. As I understand it, the essential facts are not in dispute. On 19 June 2012, it is alleged the applicant and his friend, JM, were at LB’s house. The applicant, JM, LB and DB were all in the lounge room. At that time the applicant began coaching DB to say phrases and to “moan sexually” as though she was having anal sex with JM. The applicant filmed DB on his Apple iPhone while he coached her.
The act of indecency particularised by the Crown is the coaching of DB to say “sexual phrases” and the filming of her saying those phrases.
In the course of cross-examination of LB, Mr Pappas, representing the applicant, sought to question her as to whether she was amused by the applicant’s conduct, and whether she had laughed as he coached DB. The applicant, as I understand it, will seek to argue at trial that his conduct was not indecent as it was performed as part of a joke, and not for any sexual purpose. The primary judge rejected this line of cross-examination, reportedly on the basis that as the applicant’s conduct was “unequivocally sexual, any purpose of the nature alleged by the applicant for his conduct is irrelevant.”
At the request of the applicant, the primary judge referred two questions to this Court by way of a special case pursuant to s 37E(c) of the Supreme Court Act 1933 (ACT) and r 5832 of the Court Procedure Rules 2006 (ACT). The questions referred are:
1. Where an accused performs an act that by ordinary community standards has an unequivocal sexual connotation, when the Court is determining whether the act is an act of indecency pursuant to section 61 of the Crimes Act 1900 (ACT), is it relevant to consider the intention of the accused, in particular whether the act was performed as a joke rather than for his own sexual gratification or for sexual humiliation of the victim?
2. If words or phrases which have a sexual connotation are spoken in the presence of a child and the child either does not comprehend these words or there is no evidence the child does, can an offence of committing an act of indecency in the presence of that child pursuant to section 61 of the Crimes Act 1900 (ACT) be made out on those facts alone?
The line of questioning embarked on by Mr Pappas was apparently designed to elicit evidence that those present with the applicant at the time of the events in question perceived his conduct as part of an attempt at humour by him. This may have some marginal relevance to proving the applicant’s purpose or motive in doing what he did. Of greater significance is the implication from the reported reason given by the primary judge for disallowing these questions that she would also decline to allow the applicant to lead evidence before the jury of his purpose in engaging in the conduct in question. Thus, the answer to the first question is likely to have a real effect on the conduct of the applicant’s trial.
In the course of addressing this Court on the questions in the special case, Mr Pappas did not press for an answer to the second question as a separate question. This was an appropriate course as, for the reasons I will explore, no meaningful answer can be given to that question in its present form. While it is clear that a lack of capacity on the part of a person on whom, or in the presence of whom, an act is performed to understand the nature of the act will not necessarily mean that the act is not indecent, it is equally clear that much will depend on the circumstances. For example, the taking of photographs of the genitalia of an infant for the purposes of sexual gratification would clearly be indecent, even though the infant could not comprehend what had occurred. On the other hand, there may be circumstances where a lack of comprehension may deprive conduct of the necessary quality of indecency. For example, it is at least arguable that sexual activity by parents in the presence of an infant child would not be indecent because of the incapacity of the child to comprehend the conduct, whereas the same activity in the presence of an older child may well be considered indecent.
In determining whether a particular act is indecent for the purposes of s 61, the tribunal of fact uses the yardstick of contemporary community values: Harkin v The Queen (1989) 38 A Crim R 296 at 299. This inevitably means that context is important. What may be indecent if performed before a particular audience or for a purpose such as sexual gratification or humiliation, may be viewed very differently if performed in front of a differently constituted audience or for artistic purposes, no matter how misguided a tribunal of fact may consider that performance to be, or what view the tribunal has of the artistic merit of the performance.
As a general principle it may be accepted that the protection afforded to individuals by s 61 of the Crimes Act 1900 (ACT) from exposure to indecent acts extends to everyone, including those who by reason of age or disability lack the capacity to fully understand the nature of the acts. Beyond this level of generality, everything depends on context.
Turning to the first question, there is an infelicity in the drafting of the question, as the reference to the intention of the accused should properly be a reference to the purpose. The applicant does not deny that he intended to do the acts alleged; he says that in order to determine whether those acts were indecent the jury should be permitted to have evidence before it of his purpose in doing them.
In R v Court [1989] 1 AC 28 at 42–43, Lord Ackner said, in the context of considering the mental element of the offence of indecent assault:
The assault which the prosecution seek to establish may be of a kind which is inherently indecent. The defendant removes, against her will, a woman’s clothing. Such a case, to my mind, raises no problem. Those very facts, devoid of any explanation, would give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent. Whether he did so for his own personal sexual gratification or because, being a misogynist or for some other reason, he wished to embarrass or humiliate the victim, seems to me to be irrelevant. He has failed, ex hypothesi, to show any lawful justification for his indecent conduct.
His Lordship continued:
This, of course, was not such a case. The conduct of the appellant in assaulting the girl by spanking her was only capable of being indecent assault. To decide whether or not right-minded persons might think the assault was indecent, the following factors were clearly relevant—relationship of the defendant to this victim—were they relatives, friends, or virtually complete strangers? How had the defendant come to embark on this conduct and why was he behaving in this way? Aided by such material, a jury would be helped to determine the quality of the act, the true nature of the assault and to answer the vital question—were they sure that the defendant not only intended to commit an assault on the girl, but an assault which was indecent—was such inference irresistible?
[emphasis as per original]
The distinction drawn by his Lordship between an inherently indecent act and an act which was capable of being indecent but was not inherently so, was drawn for the purpose of demonstrating what must be proved before an accused could be convicted of the offence. In Harkin, Lee J expressed it somewhat differently at 301:
It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault.
An assault, therefore, may be found to be an indecent assault by the tribunal of fact if, absent some explanation, it is inherently or unequivocally sexual, in the sense that it involves the genitalia, anus or breast of the victim or the accused: see Harkin at 301. In such a case it is unnecessary for the Crown to prove that the accused’s purpose in committing the assault was sexual. In that limited sense the intention or purpose of the accused is irrelevant. To say that in such cases the intention or purpose of the accused need not be established by the Crown before the matter may go before the tribunal of fact is very different to saying that the tribunal of fact cannot have regard to the purpose of the accused in committing the assault in determining whether the assault was, in fact, indecent.
Since the passage of the Crimes (Amendment) Ordinance (No. 5) 1985 (ACT), the ACT no longer has an offence of indecent assault. The offence introduced by that Ordinance, now s 61, punishes acts of indecency, thus removing the requirement that the Crown prove the commission of an assault, a requirement that has led to odd results: see DPP v Rogers [1953] 1 WLR 1017 where it was held (at 1019) that the accused, who used no force or compulsion to persuade his 11 year old daughter to perform indecent acts on him, although she did not want to, was properly acquitted of indecent assault.
As Crispin J observed in R v Morton (1998) 143 FLR 268 at 276, when considering a charge alleging an act of indecency “one must begin by asking whether the conduct in question is capable of amounting to an indecent act.” His Honour went on to say:
If it is not so capable then an improper motive will be incapable of converting it into one. On the other hand, if it is capable of amounting to an indecent act then the motive and/or intention of the accused may be determinative of whether it was in fact indecent. There may also be some acts which are so intrinsically indecent that no motive or intention, however benign, could have the effect of depriving them of their indecent character.
This last proposition by Crispin J echoes the words of Gleeson CJ in R v Manson; R v Stamenkovic (NSWCCA, 17 February 1993, unreported), where in the context of a charge of committing an act of indecency with an 11 year old girl by taking certain photographs of her, his Honour said:
The fact that conduct is engaged in for political or artistic purposes does not throw around such conduct a kind of cordon sanitaire, producing the result that it cannot be found to be illegal. It is entirely possible that a person might, for political or artistic purposes, take a photograph of an act that a jury regards as an act of indecency.
Later, his Honour said:
If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which the act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending on the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion.
The distinction apparently alluded to by the primary judge between unequivocally sexual acts and those lacking that character is only useful in considering what evidence must be adduced by the Crown before the question of guilt or innocence may be left to the tribunal of fact. To prove that an act is indecent, the Crown must prove that it had sexual connotations. Some acts, of their very nature, will possess this quality, and they may be referred to as unequivocally sexual. On the other hand, where the act lacks such obvious sexual connotation, but is nevertheless capable of amounting to an indecent act, the Crown must prove that it had the quality of indecency by proving that it had a sexual connotation. So, for example, in R v Coombes (1961) 45 Crim App R 36, Coombes was convicted of indecent assault consisting of touching a woman on the back and suggesting to her that they engage in sexual intercourse. The conviction was set aside on other grounds, but Parker LCJ did not suggest that the act of Coombes placing his hand on the back of the complainant, accompanied by the sexual suggestion directed towards her, could not constitute an indecent assault.
The distinction between unambiguously sexual acts and those that are only capable of having a sexual connotation has no role to play in determining whether evidence of the purpose of the accused in committing the acts in question is to be admitted. In my opinion, such evidence is clearly admissible whether the act in question may be characterised as unequivocally sexual, or only capable of having a sexual connotation.
Recently, this Court had occasion to consider the elements of the offence created by s 61 of the Crimes Act 1900 (ACT) in DPP v AW [2013] ACTCA 35, where Higgins CJ repeated at [12] his comments in his Honour’s earlier decision in R v Taylor [2010] ACTSC 121 at [11] referring to the formulation advanced by Lord Griffith in R v Court:
Whether or not right thinking people will consider an action indecent will sometimes depend upon the purpose with which the act is carried out. An obvious example is the examination of an unconscious woman’s private parts. If carried out by a doctor for a proper medical purpose no one would consider such an examination indecent, if carried out by a stranger for prurient interest everyone would consider it indecent...
The fact is that right-thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent.
In Eades v Director of Public Prosecutions (NSW) (2010) 203 A Crim R 136, in the context of a charge of inciting to commit an act of indecency under s 61N of the Crimes Act 1900 (NSW), Campbell JA said at [61]–[63]:
There is justification in principle for it being permissible to take matters of context into account in deciding whether an act that is incited is one of indecency. It arises from the test, stated in [R v Manson; R v Stamenkovic (NSWCCA, 17 February 1993, unreported)] for what is an indecent act. The law does not proceed on the basis that right-minded persons make a decision about whether an act is contrary to the community standards of decency by an artificial exercise of abstracting an action performed from the context in which it is performed. That is so whether the act in question is one actually performed, or one that one person is urging another to perform. Any of the surrounding circumstances that right-minded persons would take into account in deciding whether a particular action was contrary to community standards of decency can be taken into account in deciding whether the offence under s 61N(1) has been committed.
For any action, it is likely that there will be many aspects of the context in which it occurs that right-minded persons would find are of no help in deciding whether the action is contrary to community standards of decency. In a charge under s 61N(1) it is the task of the trier of fact to identify in the evidence those matters of the context of the particular action that is incited that right-minded persons would take into account in deciding whether the action is one that right-minded persons would consider to be contrary to community standards of decency, and then himself take those matters into account.
In particular, without trying to identify all the matters of context that could be relevant where the act is performed in response to a request, the terms of the request can sometimes properly be taken into account in deciding whether right-minded persons would consider the act to be contrary to community standards of decency. Likewise, facts about the identity of the person making the request and the person to whom the request is addressed, such as their respective ages, or the social roles they occupy (such as doctor-patient, or teacher-student) can sometimes be relevant to whether right-minded persons would consider the act incited to be contrary to community standards of decency. The variety of contextual matters that can assist in deciding whether some particular act being considered is indecent, makes it difficult to give any general guidance as to the type of contextual matter that can properly be taken into account.
Conclusion
I would answer the questions posed by the primary judge as follows:
1. Yes, so long as it is understood the word “intention” actually refers to the purpose of the accused.
2. Not necessary to answer.
| I certify that the preceding twenty-two [22] paragraphs numbered [6] – [27] are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 6 August 2014 |
Ross J:
I have read the judgment of Burns J, and agree with his Honour’s reasoning and the conclusions he has reached.
| I certify that the preceding paragraph numbered [28] is a true copy of the Reasons for Judgment of his Honour Justice Ross. Associate: Date: 6 August 2014 |
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