R v Gillespie - [2014] ACTCA 25

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) Crimes Act 1900 (NSW) Crimes (Amendment) Ordinance (No. 5) 1985 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT) Legislation Act 2001 (ACT) Supreme Court Act 1933 (ACT)
Cases Cited:	DPP v AW [2013] ACTCA 35 DPP v Rogers [1953] 1 WLR 1017 Eades v Director of Public Prosecutions (NSW) (2010) 203 A Crim R 136 Harkin v the Queen (1989) 38 A Crim R 296 R v Coombes (1961) 45 Crim App R 36 R v Court [1989] 1 AC 28 R v Manson; R v Stamenkovic (NSWCCA, 17 February 1993, unreported) R v Morton (1998) 143 FLR 268 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gillespie

Details

AGLC: R v Gillespie [2014] ACTCA 25
Case: [2014] ACTCA 25
Decision Date: 6 August 2014

CaseChat Overview and Summary

In *R v Gillespie*, the Court of Appeal of the Supreme Court of the Australian Capital Territory considered questions of law referred by a single judge concerning an alleged act of indecency against a person under 10 years of age, contrary to section 61 of the *Crimes Act 1900* (ACT). The central dispute revolved around whether the accused's purpose in performing the act, specifically whether it was done as a joke, was relevant to determining if the act constituted indecency under the statute.

The court was required to determine two legal issues. Firstly, whether the intention of the accused, particularly if the act was performed as a joke rather than for sexual gratification or humiliation, is relevant when assessing whether an act with an unequivocal sexual connotation constitutes an act of indecency under section 61 of the *Crimes Act 1900* (ACT). Secondly, the court was asked whether an offence under section 61 could be made out solely on the facts of sexual words being spoken in the presence of a child who did not comprehend them or where there was no evidence of comprehension.

The court reasoned that the purpose of the accused in performing the act is indeed relevant to determining whether it constitutes an act of indecency, even if the act itself has an unequivocally sexual connotation. The judges clarified that "intention" in this context refers to the "purpose" of the accused. They held that the context in which an act is performed, including the accused's purpose, may be considered when assessing whether the act is indecent according to ordinary community standards. The court answered the first question in the affirmative, confirming the relevance of the accused's purpose. The second question was deemed unnecessary to answer in light of the determination of the first.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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