R v Prigge

[2009] NSWDC 322

Reported Decision: 10 DCLR (NSW) 58

District Court

CITATION:	R v PRIGGE [2009] NSWDC 322 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19 November 2009
EX TEMPORE JUDGMENT DATE:	19 November 2009
JURISDICTION:	District Court
JUDGMENT OF:	Berman SC DCJ
DECISION:	Permanent stay granted for some counts on the indictment
CATCHWORDS:	Criminal law - Judgment - Notice of Motion - Application for permanent stay of proceedings - Offences committed outside Australia - Law of Nepal - Elements of an offence against Nepalese law
LEGISLATION CITED:	Crimes Act 1900 Crimes Act 1914 (Cth) Some Public (Crime and Punishment) Act 1970 - Nepal
PARTIES:	The Crown Geoffrey John Prigge
FILE NUMBER(S):	DC 2008/11/1567; DC 2009/11/0776; DC 2007/11/0936
COUNSEL:	W Roser SC - The Crown
SOLICITORS:	Commonwealth DPP Jeffreys & Associates - Applicant

JUDGMENT

1 HIS HONOUR: I have before me an application brought by way of notice of motion that an indictment be permanently stayed. The indictment alleges a number of offences committed by the applicant, who I will hereinafter refer to as the accused, in Nepal. The accused being prosecuted for offences, allegedly committed outside Australia, under part IIIA of the Commonwealth Crimes Act. However, he has already been dealt with by a court in Nepal for some misconduct. The application is made that the proceedings on the indictment should be permanently stayed because of section 50FC of the Crimes Act, which says:

“If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this part in respect of that conduct.”

I accept that the words “in respect of” have a wide meaning.

2 The material before me includes what is apparently the judgment of the Nepalese court which dealt with a case presented against the accused. Also exhibited to me are a number of other documents which have been translated from Nepalese, but I have had some difficulty in identifying whether those documents form part of the court record, and so I have had some difficulty in identifying with some precision the actual findings made by the Nepalese Court. At one stage I considered that it was important to be able to identify which documents were part of the court record, but a comparison of the contents of the other Nepalese documents and the charges on the indictment has led me to conclude that it does not really matter.

3 The position advanced by the Crown is that section 50FC should be interpreted in such a way that in deciding whether a person has been convicted of any conduct, it is important to look at the elements of the offence. Mr Jeffreys, who appears on behalf of the accused, says however that the words in section 50FC are intended to have a much wider meaning. He says that conduct, for example, included in an allegation of an offence is covered by section 50FC, even if the elements of that offence do not require that any consideration is given to whether that conduct occurred or not.

4 The starting point of course is the words of section 50FC themselves. It is important to emphasise the relationship between the word “convicted” and the words “in respect of any conduct”. To my mind this can only mean that the conduct to be considered is the conduct which led to the conviction, that is the elements of the offence.

5 The fact that, as part of the allegation made against a person, various aspects of that person’s conduct are referred to, does not mean that all aspects of the person’s conduct are encompassed by the concept which is to be found in section 50FC. If the accused’s argument is correct and a person in Nepal used a knife to threaten a child to obtain the child’s compliance with a sexual act and then was dealt with in Nepal for an offence involving the possession of the knife, the fact that the circumstances of the allegation referred to the sexual act would mean that the accused could not be convicted or tried in Australia in relation to the sexual assault of the child.

6 It cannot be the case that if a person is dealt with in a foreign country for one aspect of their conduct, the child sex tourism parts of the Crimes Act cease to have any effect merely if part of the allegation made against the accused in the foreign country includes reference to an offence under that part of the Crimes Act.

7 A person cannot be convicted of conduct which is not an element of the offence with which the person was charged. Mr Jeffreys’ submissions emphasised the words “in respect of any conduct” and “in respect of that conduct”, but did not sufficiently address the requirement that the person be convicted or acquitted in a relevant case, which is not this one, in respect of that conduct.

8 The accused presented an example of a plea bargain in Florida, saying that courts of this country should give respect to the prosecutorial decisions of other countries. A lot depends on what is meant by “respect”. This court cannot be bound by such decisions, in particular because prosecutorial decisions in foreign countries will be based upon evidence available to the prosecutor in that country, and there may be different and stronger evidence available in Australia. To accept the accused’s argument would be to elevate decisions made in the course of a prosecution in one country to bar further prosecution in this country, even where the proceedings in this country are in respect of conduct for which the accused has not been convicted.

9 It is not necessary to look at any extrinsic aids to the construction of the section. In fact, because I am satisfied that section 50FC is clear, it may even not be permissible to do so. Section 50FC, I am satisfied, can have only one meaning, that is, the meaning I gave to the section earlier, which is that where a person is convicted in respect of conduct, that requires attention to the elements of the offence. I repeat, a person cannot be convicted of conduct which is not an element of the offence with which that person has been charged.

10 Mr Jeffreys did point to other ways that Parliament could have expressed itself, referring, for example, to section 4C of the Crimes Act. He said that Parliament could have perhaps expressed itself better. I do not necessarily agree with that statement, but even if it is true, that does not mean that where the words of the section are clear, some alternative meaning should be given to them.

11 Even if I am wrong, there are some counts on the indictment where, even accepting Mr Jeffreys’ submission that his client was convicted in respect of conduct contained in the allegations made by the complainants, (that is, rather than conduct which is an element of the offences), there are many counts on the indictment where a close examination of the material which may have been before the court, and which seem to have been part of the Nepalese prosecution process, fail to reveal any conduct covered by those counts on the indictment. For example, count 1 alleges that the complainant gave the accused a massage. A similar allegation is made in count 5. But there is nothing in any of the material I have read which suggests that it was ever alleged, let alone found by the court, that the complainant in count 1 or the complainant in count 5 either massaged the appellant or was asked to massage him.

12 Similarly, in relation to count 11, there is no allegation that the appellant attempted to have sex with AG in any of the Nepalese material, nor, turning to count 12, is there any allegation that he attempted to hug the same person. Mr Jeffreys was therefore forced to fall back to an alternative proposition, which was that the conduct that section 50FC referred to was any conduct which occurred at about the same time as conduct which led to a persons conviction. It is really only necessary to state that proposition for it to be rejected.

13 I can illustrate the reason that courts of this country would insist on looking at the elements of offence to see what is covered by s 50FC by considering that aspect of the case which concerns the question of whether the accused played with the penis of any of the complainants. Counts 9, 10 and 15 make allegations that the accused attempted to touch the genitals of a named person. I will pass over for the moment the problems between any statement that the accused played with the penis of a complainant when compared with allegation that he attempted to do so and look at the question of what finding did the court in Nepal make as to whether the accused did or not play with the penis of any complainant. I asked Mr Jeffreys to identify that part of the Nepalese judgment which best identified a finding that the appellant did so, whether or not it made that finding because it had to because it was an element of the offence. Mr Jeffrey was unable to do so. There is no finding in the judgment of the Nepalese court that the accused played with the penis of any complainant and the most likely reason is that whether or not he did act in that way it was not an element of any offence with which the Nepalese court was dealing.

14 Some allegations on the indictment refer to the accused’s taking indecent photographs and watching pornographic movies. This raises a very interesting issue which concerns how I identify the elements of the offence of which the accused was convicted in Nepal. The section under which he was found guilty is set out in the material. It is to be found in s 2(C1) of a Nepalese Act entitled Some Public (Crime and Punishment) Act 1970. The section reads as follows:

“Some public crime that must not be permitted: no-one should do the following particulars: -
…
(C1) To print vulgar material by word or a picture that indicates the sense of vulgarity or to publish vulgar language in word or publish or sell and distribute such vulgar publications in the public places apart from the purpose of the public health or health science”.

15 The Crown says that the elements of that offence are to be identified in the words of the section themselves and that conduct alleged in, say for example, count 2 on the indictment is not covered by those elements. Thus, the Crown says, section 50FC does not apply.

16 I have already indicated that to identify the nature of the conduct covered by section 50FC you have to look at the elements, and if that was the extent of the material before me I would find in favour of the Crown. Taking indecent photographs of a person and watching pornographic movies with them does not appear to amount to printing vulgar material or printing a picture that indicates a sense of vulgarity, or publishing vulgar language, or anything else that is covered by the particular section of the Some Public (Crime and Punishment) Act 1970. But, there is an indication in the judgment of the Nepalese court which indicates that the elements of the offence go beyond the simple words of that section.

17 As far as I can identify the structure of the Nepalese judgment it begins with a summary of the allegations made by the prosecution. Included in that is this statement:

“Prigge, Geoffrey John, himself committed some public crime showing indecent films and taking naked photos of the complainant which is prohibited by punishment (C) and (C1) of s 2 of Some Public (Crime and Punishment) Act 2027.”

18 I, it may not be a surprise to learn, am not an expert in Nepalese law. But there is a statement at law, probably advanced by the prosecution which suggests that by showing indecent films and taking naked photos of the complainant a person does commit an offence under those sections of the Some Public (Crime and Punishment) Act.

19 It’s not apparent from looking at the words of the section how that can be the case. And yet the statement of law is made, not apparently challenged, nor is it criticised or disagreed with in anything that later follows in the document. The precise finding of the court does not help because the precise finding does not precisely identify what conduct is found to have contravened the section.

20 When I raised this with Mr Roser SC who appeared for the prosecution in this court he asked me to confine myself to the words of the section. That has some attraction. But it must be remembered that sometimes in New South Wales legislation words are given an extended meaning. The definition of cattle for example in section 4 of the Crimes Act includes horses, cows, sheep, pigs, goats, deer, alpacas, llamas, camels and even dromedaries. If one were to look at a section in the Crimes Act of New South Wales which says, “It is an offence to steal some cattle,” one would have to look beyond the words of the actual section to identify whether a dromedary rustler is committing an offence against that section. How do I know that there is not in some other part of Nepalese law some provision which gives a wider meaning to the words of the section that is apparent at first blush? Mr Roser says, that I have exhibited before me the entirety of the particular Act. But that is just one of what must be a number of Nepalese Acts. There is no evidence to suggest that the words have not been given an extended meaning somewhere else.

21 There is the problem of translation also. What I have been dealing with is the English translation of Nepalese documents. Is it possible perhaps that there is some subtlety of language which can be used to explain how in the judgment of the Nepalese Court, it can be suggested that showing indecent films and taking naked photos of the complainant was prohibited by section 2 of Some Public (Crime and Punishment) Act 1970.

22 The statement in the judgment, albeit perhaps as part of the Nepalese prosecution’s case in the judgment is according to the, Commonwealth DPP wrong. I am not prepared to find that that is the case. I accept immediately that it is not apparent how by looking only at the words of the Some Public (Crime and Punishment) Act showing indecent films and taking naked photos of the complainants can amount to an offence against that Act. But unless I am prepared to find that that aspect of the judgment represents an incorrect statement of the law then I must work on the basis that, for reasons which might relate to some other part of Nepalese law or which might relate to language or which might relate to some cause that I have not identified, the accused was convicted of conduct which related to the showing of indecent films and the taking of naked photos of the complainants.

23 Consistent with what I have said it is apparent that the appellant is entitled to succeed in relation to some counts on the indictment but not others.

24 The appellant is entitled to have stayed those counts on the indictment which relate to conduct consisting of him showing indecent films or taking naked photos of the complainants.

25 I therefore permanently stay the following counts on the indictment, count 2, count 3, count 4, count 6, count 7, count 8, count 13, count 14.

**********

28/06/2010 - Change appellant to applicant - Paragraph(s) 1