R v Richards

Case [2016] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RICHARDS

[2016] SASCFC 79

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)

28 July 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY

CRIMINAL LAW - PROCEDURE - VERDICT - POWER OF JUDGE TO DIRECT VERDICT

Appeal against conviction.

The appellant was charged on an Information with three counts of aggravated making a child amenable to a sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA'). The Information did not charge any alternative offences.

The charges were based on online communications made by the accused to a police officer posing in the course of his duties as a 13 year old girl. The offences were said to be aggravated by the appellant’s knowledge that the victim was under the age of 14 at the time of the offence, pursuant to s 5AA(1)(e) of the CLCA.

At the close of the prosecution case, the appellant made a no case to answer submission. The Judge ruled that there was no case to answer on all three charged aggravated forms of the offences, however that there was a case to answer on the basic forms of the offences.

The Judge rejected the appellant’s submission that upon finding that the appellant had no case to answer in relation to each of the aggravated offences, the Judge was bound to immediately acquit the appellant of those charges.

The trial proceeded on the basis that the only offences in issue were the basic forms of the three offences. The Judge found the appellant not guilty of the charged aggravated offences in relation to the first two counts, but guilty of the basic offences for those counts. The Judge found the appellant not guilty of both the aggravated and basic forms of the offence in count 3.

The appellant appeals against his convictions on the grounds that the Judge erred in failing to enter a judgment of acquittal at the end of the prosecution case when there was no evidence of the aggravating circumstance and in allowing the trial to proceed for the purpose of determining the appellant’s guilt of the basic offence. The appellant complains that the Judge erred in the construction and application of the term ‘sexual activity’ in s 63B(3)(b) of the CLCA.

Held per Kourakis CJ (Nicholson and Lovell JJ agreeing), dismissing the appeal:

1.  It is a rule of common law trial procedure that a charge alleges not only the offence expressly pleaded but also any lesser offence.

2.  The Judge was not required to enter a judgment of acquittal when the…

Continue reading R v Richards

Sign in free to access the full text

Details
AGLC
R v Richards [2016] SASCFC 79
Case
[2016] SASCFC 79
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction against the appellant, Mr. Richards, for offences relating to procuration. The prosecution alleged that between May and June 2013, the appellant engaged in online communications with a police officer posing as a 13-year-old girl named 'Emma'. The core of the dispute revolved around specific online conversations where the appellant allegedly requested the officer to reveal herself in her underwear via webcam. The appellant admitted to the communications and that they were for a "prurient purpose," but claimed he suspected 'Emma' was an adult posing as a child. The appeal was heard by the Full Court of the Supreme Court of Western Australia.

The legal issues before the court included whether the appellant's conviction was unsafe or unsatisfactory, and the proper application of section 57(3) of the Juries Act. This section pertains to the power of a judge to direct a verdict and the procedure for dealing with alternative verdicts when a jury cannot agree on a verdict for the primary offence. The appellant's argument regarding section 57(3) was central to his appeal, suggesting it had been misapplied in his case.

The Court, in dismissing the appeal, found that the appellant's reliance on section 57(3) of the Juries Act was misplaced. The Chief Justice explained that section 57(3) is designed to regulate situations where both a major offence and its common law alternatives are left to the jury, and it facilitates the return of a not guilty verdict for the major offence even if the jury cannot agree on the alternative. It does not apply when there has been an acquittal on a "no case to answer" submission, nor was it intended to abrogate common law procedures regarding alternative offences. The court concluded that the section's purpose was more limited than the appellant suggested and did not support his grounds for appeal.

The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The trial continued, and the defence case opened, on 5 June 2015. The appellant gave evidence. The evidence It is now necessary to say something of the prosecution and defence case at trial. Between 5 May 2013 and 19 June 2013, a police officer of the Western Australian Online Child Exploitation Squad was accessing online chat sites in the course of his duties to discover persons using those sites to groom children for sexual purposes. The police officer assumed the identity of a 13 year old female named ‘Emma’. The relevant online chat sites enabled two users to communicate by exchanging instant messages seen only by the sender and the recipient. The case for the prosecution was that on six occasions between those dates the appellant communicated with Emma over the internet using these sites. On 5 May 2013, the appellant initiated communication with Emma by instant messaging on an internet chat site called ‘ICQ Chat’. The appellant suggested that Emma add him to her list of contacts on the chat site ‘Skype’ and thereafter they communicated using that site. The appellant appeared on the chat site with the username ‘James P’ and the police officer with the username ‘emma sharpe’. Skype enables two users to speak to, and view each other on the computer screen (webcam), and also allows for the exchange of instant text messages. The appellant communicated with Emma on two further occasions: 8 May 2013 and 15 May 2015. It was on 22 May 2013 that the conversation the subject of count 1 took place. About 50 minutes into the conversation the following exchange took place: James P:Would you show me your undies on cam if I were to ever ask?emma sharpe: u mean from my draw James P:Yes... or you wearing them? The appellant later asked ‘Game to show me something from your draw?’ and after a brief discussion about the whereabouts of Emma’s mother the appellant said ‘Show me your panties please Em?’ He invited her to start the ‘cam call’ and Emma agreed to. The police officer manipulated the camera on his computer so that the appellant was not able to see anything, but so the police officer could see the appellant. Prosecution alleged that this part of the conversation was a request by the appellant for Emma to reveal herself on camera in her underwear. Counts 2 and 3 arose from communications between the appellant and Emma on 19 June 2013. As this appeal does not concern the facts of these counts, it is not necessary to outline them. On 19 July 2013, South Australian police attended the appellant’s residence and questioned him. He admitted communicating with Emma but claimed that he did not believe that the person he was speaking to was aged 13 because of the way she spoke. The appellant gave evidence that although Emma said she was born in 1999 he suspected that she was in fact an adult female posing as a 13 year old. In relation to each count, the appellant made admissions to the effect that the relevant discussions were conducted by him for a prurient purpose. In relation to count 1 he said: Q. And, in saying that to her ‘Show me your panties please Em’, that’s what you wanted, you wanted to see [her] in a state of undress, didn’t you.A. I wanted the woman who had assumed that identity to do that, yes. Q. To stand visible to you naked. A. Yes. Q. And that was the ultimate goal really, wasn’t it. A. Yes.

Decision

Reasons for decision

The appellant’s reliance on s 57(3) of the Juries Act is misplaced for several reasons. First, rather than limiting the power of the jury, s 57(3) of the Juries Act simply has no application when there is no major offence because there has been a judgment of acquittal consequential on a no case to answer submission. Section 57(3) is calculated to regulate the procedure where both the major offence and its common law alternatives have been left to the jury. Secondly, there is no indication at all that s 57(3) of the Juries Act was intended to abrogate the common law procedures as to common law and statutory alternatives. Thirdly, the manifest purpose of s 57(3) the Juries Act is much more limited. It facilitates the return of a verdict of not guilty of the major offence when the jury has unanimously, or by majority, reached that verdict, even though the jury is not able to agree on a verdict for the alternative offence. Section 57(3) of the Juries Act allows the subsequent trial to be limited to the alternative offence rather than requiring, as would have been the case if s 57(3) were not enacted, the retrial of an accused on the major offence on which the jury had, either unanimously or by majority, decided that it would return a verdict of not guilty. Conclusion I would dismiss the appeal. NICHOLSON J: I agree that the appeal should be dismissed and with the reasons of Kourakis CJ. LOVELL J: I agree that the appeal should be dismissed and with the reasons of Kourakis CJ.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.