R v Richards

Case •

[2015] SADC 44

•

23 March 2015

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v RICHARDS

[2015] SADC 44

Ruling of His Honour Judge Millsteed

23 March 2015

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

Trial by judge alone - accused charged with three counts of aggravated communication for a prurient purpose contrary to s 63B(3)(b) of Criminal Law Consolidation Act 1935 - charges based on online communications made by accused to police undercover operative posing as a 13 year old girl - element of aggravation contained in s 5AA(1)(e) required that the accused knew that the alleged victim was under the age of 14 years at the time of the offence - submission of no case to answer in respect of each count on the basis that s 5AA(1)(e) required the alleged victim to be under 14 years of age - submission of no case upheld - whether in respect of each charged communication the accused had a case to answer in the alternative for the basic offence under s 63B(3)(b) - accused submitted that in the absence of such a statutory provision and in the absence of a specific alternative charge the accused could not be convicted of a basic offence - argument rejected - held that the basic offence was available as an alternative verdict under common law - observations as to whether alternative case to answer for offences of attempted aggravated communication for prurient purpose were available.

Criminal Law Consolidation Act 1935 s 63B(3)(b), referred to.
Queen v Barrie [2012] SASFC 124; May v O'Sullivan (1956) 92 CLR 654; R v Bilick (1984) 36 SASR 321; F, BV v Magistrates Court of South Australia (2013) 115 SASR 232; The Queen v Sumner; The Queen v Fitzgerald (2013) 117 SASR 271; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1993-4) 179 CLR 427; Taikato v The Queen (1996) 186 CLR 454; Britten v Alpogut [1987] VR 929; R v Irwin (2006) 94 SASR 480, considered.

R v RICHARDS
[2015] SADC 44

INTRODUCTION

  1. This is a trial by judge alone. The accused is charged with three counts of “aggravated making a child amenable to sexual activity”, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (CLCA). Except for the dates of the alleged offences, the three counts are expressed in identical terms:

    Statement of Offence

    Aggravated Making a Child Amenable to Sexual Activity.[1] (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935).

    Particulars of offence

    Stephen Christopher Richards on … at Burnside, made a communication for a prurient purpose with the intention of making a child under the prescribed age amenable to a sexual activity.

    It is further alleged that Stephen Christopher Richards committed the offence knowing that the victim of the offence was under the age of 14 years at the time of the offence.

    [1]    The Statement of Offence is poorly drafted. The gravamen of the offence is not making a child amenable to sexual activity but making a communication for a prurient purpose with the intention of making a child amenable to sexual activity. In Queen v Barrie [2012] SASFC 124 the Statement of Offence, contained in the information before the court, for an offence under s 63B(3)(b) was appropriately expressed as “Making a Communication for a Prurient Purpose”.

  2. After the prosecution closed its case, the accused submitted that he had no case to answer on each count.  This is my ruling on that submission.

    PROSECUTION CASE

  3. The prosecution tendered, with the consent of the accused, the statements of prosecution witnesses various and various exhibits. No witnesses were required to give oral evidence.  For the purposes of this ruling, it is not necessary to canvass that evidence in detail.  It suffices to say that the evidence considered at its strongest from the point of view of the prosecution shows that between 5 May 2013 and 19 June 2013 the accused used his home computer on multiple occasions to communicate on the internet with a Western Australian police officer posing as a 13 year old female named “Emma”. The accused was unaware of “Emma’s” true identity and age. The charges are based on the accused’s communications, which were of a sexual nature. The prosecution contends that it can be inferred from the content of the communications that they were made by the accused for a prurient purpose and with the intention of making “Emma” amenable to a sexual activity.

    NO CASE SUBMISSION

    It is well established that when a submission of no case is made the question for the trial judge is not whether the accused ought to be convicted on the evidence as it stands, but whether he could lawfully be convicted.[2] The question is whether on the assumption that all the evidence of primary facts considered at its strongest from the point of view of the case for the prosecution is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable trier of fact satisfaction, beyond reasonable doubt, of the guilt of the accused?[3]

    [2]    May v O'Sullivan (1956) 92 CLR 654 at 658.

    [3]    R v Bilick (1984) 36 SASR 321 at 327 (King CJ).

  4. In the present case, counsel for the accused, Mr Edwardson QC, did not suggest that the evidence, as it stands, was incapable of establishing that the communications were made by the accused for a prurient purpose and with the intention of making a child under the prescribed age (17 years) amenable to a sexual activity. He contended, however, that the accused could not be convicted of the three aggravated offences because the alleged victim was an adult posing as a child. He submitted that in order to prove the element of aggravation alleged in each count, the prosecution must prove that at the time of the offence, the victim was in fact under 14 years of age, and that the accused knew that the victim was under that age.

  5. Mr Edwardson further argued that, in relation to each charged communication, an alternative verdict on the basic offence under s 63B(3)(b) is not available because the basic offence has not been specifically pleaded in the information, and the CLCA does not allow or provide for an alternative verdict in those circumstances. This argument was predicated on the contention that the basic offence and its cognate aggravated offence are separate offences. He suggested, as I understood his argument, that the prosecution could not invoke the common law rule providing for alternative verdicts because the CLCA has specifically provided for alternative verdicts in respect of certain other aggravated offences and has therefore displaced by implication the rule’s application to offences under s 63B(3)(b).

  6. Before turning to consider these arguments it is necessary to set out the relevant provisions in the CLCA.

    CLCA

  7. Section 63B(3)(b) is contained in Part 3, Division 11A (“Child Pornography and Related Offences [ss 62-63C]”). The Division was inserted in Part 3 (“Offences against the person”) by Act 52 of 2004.

  8. Division 11A relevantly provides:

    62—Interpretation

    In this Division—

    …

    prurient purpose-a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else.

    …

    63B—Procuring child to commit indecent act etc

    ...

    (3)A person who –

    (a)procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or

    (b)makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,

    is guilty of an offence.

    Maximum penalty:

    (a) for a basic offence-imprisonment for 10 years;

    (b) for an aggravated offence-imprisonment for 12 years.

    …

    (7) For the purposes of this section, the prescribed age of a child in relation to a person is –

    (a) if the person is in a position of authority in relation to the child – 18 years; or

    (b) in any other case – 17 years.

  9. The maximum penalty for an “aggravated offence” is higher than the maximum penalty for a “basic offence”. The terms “basic offence” and “aggravated offence” are defined in the CLCA as follows:

    5-Interpretation

    (1)In this Act-    

    aggravated offence - where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);
    basic offence - where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA);

    ...

  10. Section 5AA identifies various circumstances of aggravation that may convert a basic offence into an aggravated offence. The section relevantly provides:

    5AA-Aggravated offences

    (1)Subject to this section an aggravated offence is an offence committed in one or more of the following circumstances:

    ...

    (e) the offender committed the offence knowing that the victim of the offence was, at the time of the offence—

    (i) in the case of an offence against Part 3 Division 11A—under the age of 14 years;

    (ii) in any other case—under the age of 12 years;

    ...       

    (2)    A person is taken to know a particular fact if the person, knowing of the possibility that it is          true, is reckless as to whether it is true or not.

  11. By way of overview, s 63B(3) creates three types of basic offences: (i) procuring a child under the prescribed age to engage in, or submit to, a sexual activity (s 63B(3)(a)); (ii) making a communication with the intention of procuring a child under the prescribed age to engage in, or submit to, a sexual activity (s 63B(3)(a)); and, (iii) making a communication for a prurient purpose and with the intention of making a child under the prescribed age amenable to a sexual activity (s 63B(3)(b)).

  12. Each of these offences will be converted into an aggravated offence if the person committed the offence knowing that the victim was under 14 years of age at the time of the offence (s 5AA(1)(e)).  Pursuant to s 5AA(2) a person is taken to know  a particular fact if the person, knowing of the possibility that the fact is true, is reckless as to whether that fact is true or not. So a person charged with an offence under s 63B(3) is taken to know that a child is under the prescribed age (14 years) if the person recklessly adverts to that fact.

    AGGRAVATED OFFENCES: CASE TO ANSWER?

  13. In The Queen v Barrie[4] the appellant was charged with two basic offences under s 63B(3)(b) arising from his on-line communications with an undercover police officer posing as a 14 year old female. At the time, offences under s 63B(3)(b) were expressed to be against a “child” rather than a “child under the prescribed age”. Furthermore, “child” was defined in s 62 to mean “a person under, or apparently under the age of 16 years”.[5]  The definition of child was deleted from s 62, and the offences contained in s 63B(3) assumed their present form, by force of Act 43 of 2011. 

    [4]    [2012] SASFC 124.

    [5]    Definition repealed by Act 43 of 2011 s 3, on 17 November 2011.

  14. The appellant sought a stay of proceedings on the ground that the prosecution was foredoomed to fail because the undercover police officer was not a child. The trial judge refused the application. The Court of Criminal Appeal held that it was not necessary for the prosecution to prove that the person to whom the communication is made is in fact a child. Vanstone J, with whom Sulan J agreed, said:[6]     

    The appellant’s argument arguments fail on a plain reading of the relevant parts of s 63B(3). Where an offence is charged in terms of making a communication with the intention of procuring a child (subsection (3)(a)) or making a communication for a prurient purpose and with the intention of making a child amenable to sexual activity (subsection (3)(b)) then the essence of the offence is the making of a communication coupled with the relevant intention. The terms of the section do not require the prosecution to prove that the person to whom the communication is in fact a child. The definition of ‘child’, in its reference to ‘a person …apparently under, the age of 16 years’ is not engaged.

    [6] [2012] SASFC 124 at [36].

  15. Similarly, White J concluded:[7]

    The offence established by s 63B(3)(b) comprises a physical element with two requirements. The physical element is the making of a communication. The mental element requires first the making of the communication ‘for a prurient purpose’ and, secondly, that it is made with the intention of making a “child” amenable to a sexual activity. The expression “prurient purpose” is defined in s 62 in a way indicating that it is concerned with a person’s satisfaction of a desire for sexual arousal or gratification, whether the person’s own desire or that of someone else. It is not linked in n ay way to the definition of a child.

    The communication offence established by s 63B(3)(a) also comprises a physical and mental element. The physical element is the making of a communication. The mental element is the making of the communication with the intention of procuring a “child” to engage in, or submit to, a sexual activity.

    Thus in relation to both offences the expression “a child” is on its face, pertinent only to the mental element. The expression is not made pertinent to the physical element at all.

    [7]    [2012] SASFC 124 at [74]-[76].

  16. The reasoning in Barrie applies to s 63B(3) in its current form. The expression “child under a prescribed age” applies to the mental element and not to the physical element of the offences created by s 63B(3). Thus for the purposes of the offence of making a communication for a prurient purpose (s 63B(3)(b)) it is not necessary for the prosecution to prove that the person to whom the communication is made is in fact a child under the prescribed age.

  17. But what is the position where the accused is charged with an aggravated offence under s 63B(3)(b) on the basis that he committed the offence “knowing that the victim of the offence was, at the time of the offence … under the age of 14 years”? Does this additional element prescribed by s 5AA(1)(e) require proof that the alleged victim was under the age of 14 years?

  18. The point did not arise in Barrie but was subsequently considered by the Full Court in F, BV v Magistrates Court of South Australia[8] in the context of offences under s 63A.  Kourakis CJ and Gray J (Vanstone J dissenting) held that the aggravating element provided for by s 5AA(1)(e)(i) applied to offences under s 63A, including the offence of taking a step to obtain access to child pornography. The majority held that s 5AA(1)(e)(i) required that a victim depicted in a pornographic image be under the age of 14 years at the time the image was created and, further required, that the accused knew that the victim was under that age.[9]

    [8]    F, BV v Magistrates Court of South Australia (2013) 115 SASR 232.

    [9]    At the time of this decision in F, BV  “child” was still defined for the purposes of a basic offence as “a person under, or apparently under, the age of 16 years”.

  19. In relation to the operation of s 5AA(1)(e), Kourakis CJ said:[10]

    I acknowledge, and indeed it is important to appreciate, that the first part of s 5AA(1)(e) and the word “knowing” in particular, imposes a contemporaneity between the knowledge of the victim’s age and the commission of the offence.  The word “knowing” and the rest of the paragraph form an adverbial phrase which qualifies the way in which the basic offence must be committed to constitute the aggravated offence.

    The phrase “at the time of the offence” is a subordinate clause which speaks to a different issue.  The circumstance the offender must know when committing the offence is that the “victim of the offence ... was under the age of 14.  The time phrase, “at the time of the offence”, is an adjectival clause which qualifies the subject matter of the offender’s knowledge.  I will refer to it as the time adjectival clause.  The time adjectival clause qualifies the subject matter of the offender’s knowledge by specifying how the child’s age is to be reckoned.

    [10] (2013) 115 SASR 232 at [52]-[53].

  20. Gray J said:[11]

    To my mind, in enacting the aggravated offence, Parliament intended that a person would face a longer maximum term of imprisonment in circumstances where greater criminal culpability was established.  The mischief being addressed was the intentional act of viewing child pornography and the aggravated offence concerned the intentional act of viewing child pornography depicting persons under the age of 14 years.  It is to be noted that Parliament specified that there be a victim of an aggravated offence and that the victim be under the age of 14 years.  Parliament did not consider that an appearance of the victim being under 14 years would be sufficient.  Parliament provided, however, that recklessness as to that particular fact would amount to a sufficient criminal intent.

    [11] (2013) 115 SASR 232 at [135].

  21. He went on to say:[12]

    In my view, Parliament intended that the aggravated offence required there to be a victim, that is, a person described or depicted in the relevant image.  Further, Parliament intended that the victim depicted in the image be under the age of 14 years at the time of the creating of the image.

    [12] (2013) 115 SASR 232 at [138].

  22. It follows from the decision in F, BV that where an accused person is charged with the offence of aggravated communicating with a child for a prurient purpose (s 63B(3)(b)) the prosecution must prove that the victim was under 14 years of age at the time of the offence and must further prove that the accused knew that the victim was of that age or recklessly adverted to that fact (s 5AA(2)). Because the alleged victim in the present matter was not under 14 years of age at the time of the offence, the accused cannot be lawfully convicted of the three aggravated offences.

  23. Accordingly, I find that the accused has no case to answer in relation to each of the charged aggravated offences.

    BASIC OFFENCES: CASE TO ANSWER?

  24. In relation to offences under Div 11A, no express provision is made in the CLCA for an alternative verdict of guilty of a basic offence on a charge of an aggravated offence. As earlier set out, Mr Edwardson submitted that in the absence of such a statutory provision and in the absence of a specific alternative charge the accused could not be convicted a basic offence in lieu of the aggravated offence. He contended that the common law rule governing alternative verdicts was of no assistance to the prosecution because it had been displaced by implication.

    Separate offences

  25. It is necessary to deal first with Mr Edwardson’s submission that a basic offence under Div 11A is separate from its cognate aggravated offence. If contrary to his submission they constitute a single offence then the accused has a case to answer on each count because the prosecution’s failure to prove the aggravating circumstance merely exposes him to the lower maximum penalty under s 63B(3)(b).[13]

    [13]   F, BV v Magistrates Court (SA) (2013) 115 SASR 232 at [174] (Vanstone J).

  26. Conflicting views have been expressed on the question of whether an aggravating circumstance prescribed by s 5AA has the effect of creating an offence separate from the basic offence.  In F, BV the point was not the subject of argument before the Full Court.[14]  However, the members of the Court expressed, in obiter, certain views on the matter.  Kourakis CJ, with some reservation, and Gray J, considered that basic offences to which s 5AA might apply and their cognate aggravated offences were separate offences.

    [14] (2013) 115 SASR 232 at [98].

  1. The Chief Justice said:[15]

    … The general rule of construction is that where basic conduct is proscribed if it occurs in any one or more of the circumstances prescribed by a statute, only a single offence is created.  However, the basic offences to which s5AA of the CLCA might be applied remain unlawful irrespective of the existence of an aggravating circumstance and are therefore separate offences from their cognate aggravated offences which is committed whenever any one or more of the circumstances prescribed by s5AA of the CLCA are present.

    The definition distinguishes between forms of offences.  Section 5 of the CLCA provides that where the penalty provision of an offence differentiates between an aggravated and basic offence, those terms refer to the offence in its aggravated and non-aggravated “form”.  In this context form means type or kind.  The examples at the foot of s 5AA of the CLCA, in speaking of a person who “is charged with” a basic offence or an aggravated offence, also make that distinction.

    [15] (2013) 115 SASR 232 at [96]-[97].

  2. The Chief Justice went on to say:[16]

    For the above reasons I tend to the opinion that an aggravated offence for which a higher maximum is provided is a different offence to the offence for which the lower maximum is prescribed.  However, the issue was not argued before us.  Both the appellant and respondent proceeded on the basis that the offences were distinct.  In those circumstances it would be prudent for an informant to give careful consideration to whether or not the basic offence should be pleaded in the alternative until this question is authoritatively decided.

    [16] (2013) 115 SASR 232 at [98].

  3. Gray J said:[17]

    By providing a maximum penalty for the first offence and for subsequent offences that are aggravated offences, s 63A(1) of the Criminal Law Consolidation Act itself addresses additional offences beyond the elements found in s 63A(1)(a) and (b) of the Criminal Law Consolidation Act. This is made plain by the definitions of “aggravated offence” and “basic offence” in s 5(1) of the Criminal Law Consolidation Act and the introductory words to s 5AA(1) of the Criminal Law Consolidation Act.  The definitions and the introductory words also make plain that the aggravated offence is cumulative upon the basic offence in the sense that it is constituted of the basic offence “in its aggravated form”.  The elements of the aggravated offence incorporate the elements of the basic offence.

    …

    It follows that the basic offence is an alternative to the aggravated offence and, if the circumstances are appropriate, may be left to the jury despite not being specifically pleaded in the information.

    [17] (2013) 115 SASR 232 at [124], [126].

  4. Vanstone J disagreed:[18]

    Section 5AA provides a catalogue of circumstances which may aggravate offences committed against various sections of the CLCA. The terminology of s 5AA(1), in particular the words “an aggravated offence is an offence committed in one or more of the following circumstances” does not suggest to me that such circumstances as are then set out, in combination with penalty provisions from other sections of the Act, are intended to create separate aggravated offences. On the contrary, the interaction of s 5AA with those other provisions of the Act which do create offences, coupled with the terminology used to define “aggravated offence”, suggests that Parliament intended to create only the basic offences in the various sections of the CLCA, including s 63A, which could then be coupled with any one or more applicable circumstance of aggravation to give rise to a higher maximum penalty.

    In saying so, I rely on the scheme of the CLCA, with the separate Divisions dealing with offences of differing types, and the clear terminology used, in a form common throughout the Act, to create specific offences.  The opposing argument must assert that the separate, aggravated offence is to be defined partly by the statement of the basic offence and partly in any applicable circumstance of aggravation in s 5AA.

    I also rely on the fact that whereas Parliament has provided for alternative verdicts to be available in respect of some offences dealt with in the Act (for example, ss 25 and 290), no alternative verdict of the basic offence is provided for a charge of an aggravated offence.  On my analysis, that is because it is unnecessary.  A failure to find proved a circumstance of aggravation leaves available a verdict on the basic offence.  Offences such as those created by s 63A are statutory offences; unless Parliament provides for an alternative verdict, none is available.  The Parliamentary Counsel has recognised as much.

    [18] (2013) 115 SASR 232 at [172].

  5. The question of whether basic and aggravated offences are separate offences was revisited in The Queen v Sumner; The Queen v Fitzgerald.[19] The appellant was convicted by a jury of murder (count 1) and aggravated causing serious harm with intent to cause harm (count 2), contrary to s 23(1) of the CLCA.[20]  The appellant appealed against his convictions on several grounds, one of which asserted that the second count charged an offence unknown to the law. It was submitted that s 23(1) created only one offence and that the circumstances of aggravation contained in s 5AA were relevant only to penalty. The members of the Court unanimously agreed that count 2 charged an offence known to the law but reached that conclusion for different reasons.

    [19] (2013) 117 SASR 271.

    [20]   Section 23(1) provides:

    A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.

    Maximum penalty:

    (a)     for a basic offence-imprisonment for 20 years;

    (b)     for an aggravated offence-imprisonment for 25 years.        

  6. Gray and Sulan JJ held that the legislation contemplated two separate offences, namely a basic offence under s 23(1) and an aggravated offence by dint of s 5AA. They found that count 2 was an offence known to law namely an aggravated offence. Their Honours said:[21]

    Section 5AA(3), the text of which is earlier extracted, contemplates that a person can be charged with an aggravated offence. Similarly, s 5AA(1) speaks of an aggravated offence. The language Parliament has adopted in s 5AA(3) does not speak of an offence or a basic offence with circumstances of aggravation. The section explicitly refers to an aggravated offence.

    [21] (2013) 117 SASR 271.

  7. Blue J dissented on this point. He found that s 23(1) created a single offence which if committed in aggravating circumstances, as identified in s 5AA, exposed the offender to a higher maximum penalty.[22] He concluded that the wording in count 2 charged an offence known to law namely an aggravated form of an offence against s 23(1).

    [22] (2013) 117 SASR 271 at [140].

  8. He reasoned as follows:[23]

    It is true that the maximum penalty specified in respect of sub-sections 23(1) and 23(3) depends on whether the offence is characterised as a “basic offence” or an “aggravated offence”.  The mere fact that different maximum penalties are prescribed depending upon different circumstances does not necessarily result in two separate offences being created.

    Section 5(1) of the Act provides that a reference to a “basic offence” is a reference to the offence in its non-aggravated form; whereas a reference to an “aggravated offence” is a reference to the offence in its aggravated form.  This suggests that there is a single offence the offence which can exist in one of two forms, either aggravated or non-aggravated.

    The introductory wording of section 5AA(1) provides that an aggravated offence is an offence committed in one or more defined circumstances. This wording suggests that there is a single offence. The various paragraphs of section 5AA(1) also refer to the offence. 

    Section 5AA(3) provides that, where a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.  This uses the terminology the offence which suggests that there is a single offence.  If two separate offences had been created, section 5AA(3) would be otiose because the circumstances of aggravation would, ex hypothesis, be elements of the offence itself.

    The Act was amended with effect from 15 May 2006 by the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) to introduce a generalised regime of maximum penalties at two different levels depending on whether a given offence was committed in defined aggravating circumstances. The generalised regime was achieved by introducing section 5AA to define aggravating circumstances generic to all offences or classes of offences and then to amend the substantive provisions of the Act creating offences to prescribe one maximum penalty for a basic offence and a higher maximum penalty for an aggravated offence.

    The generic approach adopted by the 2005 amendments replaced the previous individualised regime whereby an individual provision creating an individual offence often provided for a different penalty depending upon the existence of prescribed circumstances of aggravation specific to that individual offence.  An example of the latter was common assault under section 39 of the Act.  Section 39(1) provided that the penalty for common assault per se was imprisonment for up to two years but where the victim was a family member of the offender, the penalty was a term of imprisonment up to three years. After the Act was amended in 2005, section 5AA(1)(g) defined a circumstance of aggravation as being that the victim was known to be a defined family member of the offender (spouse, domestic partner, child, etc) and the provision creating the offence of assault (now section 20) provided for a penalty for assault per se of imprisonment of up to two years and for an aggravated offence (eg where the victim was a family member) of up to three years. 

    As the evident purpose of the 2005 amendments was to generalise and standardise circumstances of aggravation, there is no reason to attribute to the legislature an intention to create two separate offences if the previous individualised regime created only a single offence under a given provision.       

    [23] (2013) 117 SASR 271 at [125]-[131].

  9. Blue J went on to say:[24]

    Section 5AA(1) contains 13 separate paragraphs identifying disparate circumstances of aggravation which generally apply to all offences created by the Act. It is an unlikely intention to impute to the legislature to create an offence, such as aggravated causing serious harm with intent to cause serious harm, which contains a small number of fixed elements (the four elements of the basic offence prescribed by section 23(1)) together with any one of 13 disparate elements to complete the offence. This is especially so given that it will not always be clear which of the 13 different aggravating circumstances are capable of applying to a specific offence.

    The evident purpose of differentiating between an offence in its aggravated and non-aggravated forms is to provide for a higher maximum penalty if there are present circumstances of aggravation.  That purpose is linked to historical sentencing principles that the penalty for a single offence should be higher where there are present circumstances of aggravation.  That purpose is not furthered by the creation by the legislature of two separate offences.

    [24] (2013) 117 SASR 271 at [133]-[134].

  10. He further observed:[25]

    As part of the 2005 amendments, some sections provided for different levels of maximum penalty according to the specific circumstances of aggravation.  For example, section 20(3) now provides for a maximum penalty of imprisonment of two years for a basic offence, three years for an aggravated offence and:

    for an offence aggravated by the use of, or a threat to use, an offensive weapon – imprisonment for 4 years.

    The highest maximum penalty of four years applies to a circumstance of aggravation specified by section 5AA(1)(b) but section 20(3) treats the offence as “an offence aggravated by the use of, or a threat to use, an offensive weapon”.  This suggests that the three different penalties specified by section 20(3) are all in respect of the same offence. 

    [25] (2013) 117 SASR 271 at [139]-[140].

  11. Mr Edwardson argued that the question of whether basic offences and offences aggravated by operation of s 5AA are separate offences, which had not been authoritatively determined in F, BV, has now been settled by the judgment of Gray and Sulan JJ in Sumner and Fitzgerald.  I disagree. In my opinion, the question did not arise in a manner as to require a decision on that point. The fact that Blue J expressed a different point of view to Gray and Sulan JJ but agreed in the ultimate result, namely, that count 2 was an offence known to law, makes that plain enough.

  12. In the circumstances, I do not believe that I am bound by the view expressed by Gray and Sulan JJ despite the respect that it commands.  The issue is not without complexity. However, I prefer the reasons expressed by Blue J, and those given by Vanstone J in F, BV. I found them to be persuasive. For these reasons, I reject Mr Edwardson’s submission that a basic offence under s 63B(3)(b) is separate from its cognate aggravated offence.

  13. The accused, therefore, has a case to answer on each count for the offence in its basic form because, as I earlier observed, the prosecution’s failure to prove the aggravating circumstance would merely expose the accused to the lower maximum penalty should the prosecution succeed in proving the offence in its basic form.  However, should I have fallen into error on this point, it is appropriate that I deal with the balance Mr Edwardson’s argument on the assumption that basic offences and offences aggravated by s 5AA are in fact separate offences.

    ALTERNATIVE VERDICTS

  14. The question which arises for determination is whether in relation to each charged communication an alternative verdict on the basic offence under s 63B(3)(b) is available though it has not been specifically pleaded in the information and the CLCA has not expressly provided for such an alternative verdict.

  15. As earlier set out, Mr Edwardson submitted that it was not open to the prosecution to rely upon the common law rule providing for alternative verdicts because the CLCA has specifically provided for alternative verdicts in respect of certain other aggravated offences and has therefore displaced by implication the rule’s application to offences under s 63B(3)(b).

  16. For reasons to which I now turn, this submission must be rejected.

    Common law rule

  17. It is appropriate to begin by identifying the nature and scope of the rule.

  18. The rule provides that a person charged with an offence may be convicted of an alternative offence not expressly charged if that offence is of the same character as the offence charged and if the offence charged necessarily includes all of the elements of the alternative offence.[26] The rule is not confined to common law offences but extends to statutory offences.[27]

    [26]   Cameron (1983) 8 A Crim R 466 at 467-468; McLaren (1997) 92 A Crim R 301; Boujaoude v The Queen (2008) 181 A Crim R 281 at 293

    [27]   See Cameron (1983) 8 A Crim R 466 at 468.

  19. Under the rule a verdict may only be returned if each element of the lesser offence of which the accused is convicted, is also an element of the greater offence with which he was charged, and has been alleged against the accused either expressly or by necessary implication in the information.[28] The test is to see whether it is a necessary step towards establishing the greater offence to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?[29]

    [28]   Winner (1989) 39 A Crim R 180 at 181.

    [29]   Cameron (1983) 8 A Crim R 466 at 468; Aldridge (1993) 67 A Crim R 371 at 376.

  20. These principles were expressly approved in R v Perdikoyiannis[30] where the Court of Criminal Appeal was called upon to determine whether on a charge of causing grievous bodily harm[31] an alternative verdict of unlawfully and maliciously inflicting grievous bodily harm[32] was available and whether a verdict of robbery[33] was available on a charge of armed robbery.[34]

    [30] (2003) 86 SASR 262 at [167], [278].

    [31]   CLCA s 21 (rep Act 62 of 2005 s 10).

    [32]   CLCA s 23 (rep Act 62 of 2005 s 10).

    [33]   CLCA s 155 (rep Act 26 of 2002 s 4).

    [34]   CLCA s 158 (rep Act 26 of 2005 s 4).

  21. Doyle CJ (with whom Besanko and Sulan JJ agreed) stressed that the common law test required close consideration of the relevant charges:[35]

    It is important to bear in mind that what must be considered are the terms in which the charge is laid, not the evidence at a trial.  As the Full Court of the Supreme Court of Victoria said in R v Salisbury [1976] VR 452 at 454:

    “That is to say, where an accused is indicted for a felony the jury may find him guilty of any lesser felony that is necessarily included in the offence with which he is charged and where an accused is indicted for a misdemeanour the jury may find him guilty of any lesser misdemeanour that is necessarily included in the offence with which he is charged.

    Whether the lesser offence is necessarily included in the offence charged is a matter which has to be determined upon a consideration of the terms in which the offence is laid.  It is not a matter which depends upon the evidence led at the trial, except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.”

    [35] (2003) 86 SASR 262 at [43].

  22. Doyle CJ concluded:[36]

    I agree that on the charge of causing grievous bodily harm with intent to do grievous bodily harm contrary to s 21 of the Act, a verdict of guilty of inflicting grievous bodily harm contrary to s 23 of the Act is available as an alternative verdict.  This is because, having regard to the terms of the charge as it appears on the Information, the lesser charge of unlawfully and maliciously causing grievous bodily harm is necessarily included in the offence charged.  The proof of the offence charged necessarily involves proof of the lesser offence.  On the other hand, a verdict of guilty of the offence of unlawful wounding contrary to s 24 of the Act is not available as an alternative verdict because the Information does not allege a wounding, and s 24 of the Act requires that that allegation be made as a condition of the availability of the alternative verdict of guilty of unlawful wounding.

    Applying the same reasoning, on the charge of armed robbery contrary to s 158 (a) and (b) of the Act, a verdict of guilty of robbery contrary to s 155 of the Act is available as an alternative verdict: see R v Fitzpatrick (1988) 50 SASR 10.

    [36] (2003) 86 SASR 262 at [44].

  23. In the present case, the terms of each count expressly allege that the accused “made a communication for a prurient purpose with the intention of making a child under the prescribed age amenable to sexual activity” (elements of the basic offence) and further allege that he “committed the offence knowing that the victim of the offence was under the age of 14 years at the time of the offence” (conversion of the basic offence into an aggravated offence).

  24. Plainly, all of the elements of the basic offence are contained in the aggravated offence and proving the commission of the basic offence is a necessary step towards establishing the aggravated offence. It follows that a verdict of guilty of the basic offence under s 63B(3)(b) is an alternative verdict on a charge of the aggravated offence pursuant to the common law rule unless it can be said that the rule has been displaced by implication.

    Displacement by implication?

  25. It is an established principle of statutory construction that legislation is presumed not to alter common law doctrines.[37] In Potter v Minahan[38] O’Connor J quoted with approval the following passage from Maxwell on Statutes:[39]

    There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them is therefore to be avoided.” After dealing with other matters not material to the aspect of the rule now under consideration the learned author continues (at page 122): - “One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares (per Trevor J in Arthur v Bokenham: See also Harbert’s Case) either in express terms or by implication; or, in other words, beyond the immediate scope and object of the Statute.  In all general matters beyond, the law remains undisturbed.  It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.

    (citations omitted)

    [37]   See DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis Butterworths at [5.23]-[5.24].

    [38] (1908) 7 CLR 277 at 304.

    [39]   Maxwell on Statutes 4th ed at p121.

  1. As Pearce and Geddes point out, this statement of principle has been endorsed by the High Court frequently.[40] The rationale of the presumption lies in the assumption that the legislature would not abrogate fundamental principles, infringe rights or depart from the general system of law without expressing its intention with irresistible clearness.[41]

    [40]   DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis Butterworths at [5.24].

    [41]   Bropho v Western Australia (1990) 171 CLR 1 per Court at 18; see also Coco v The Queen (1993-4) 179 CLR 427 at 437; Taikato v The Queen (1996) 186 CLR 454 Brennan CJ Toohey, McHugh and Gummow JJ at 460.

  2. In Coco v The Queen[42] the High Court emphasized that the circumstances in which the presumption might be displaced by general words would be rare. Mason CJ, Brennan, Gaudron and McHugh JJ said:[43]

    As we remarked earlier in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless.  However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope.

    [42] (1993-4) 179 CLR 427.

    [43] (1993-4) 179 CLR 427 at 438.

  3. In Thompson v Australian Capital Television Pty Ltd and Others[44] (FC) Burchett and Ryan JJ in finding that the common law rule of “release” in relation to joint tortfeasors had not been abolished by statute pointed to the common law presumption:[45]

    Statutory reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law.  To forbid such a consequence the rule has been established (and should be adhered to: Corporate Affairs Commission of New South Wales v Yuill[46] that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions: Hocking v Western Australian Bank;[47] American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd;[48] Pearce and Geddes on Statutory Interpretation in Australia;[49] or as Lord Reid put it in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[50] “in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the “mischief””.

    [44] (1994) 127 ALR 317.

    [45] (1994) 127 ALR 317 at 329.

    [46] (1991) 172 CLR 319 at 322; 100 ALR 609, per Brennan J.

    [47] (1909) 9 CLR 738 at 746.

    [48] (1981) 147 CLR 677 at 682-3; 37 ALR 613, per Mason J, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed.

    [49]   3rd ed, 1988, 104-5.

    [50] [1975] AC 591 at 614.

    CLCA: ALTERNATIVE VERDICTS

  4. Against the background of that principle, it is necessary to consider the availability of alternative verdicts for offences against the CLCA.

  5. Since the enactment of the CLCA the courts have applied the common law rule where appropriate to offences against the legislation, as illustrated by the decision in R v Perdikoyiannis[51] (causing grievous bodily harm on a charge of causing grievous bodily harm with intent to cause grievous bodily harm). The following are further examples of the rule’s application: manslaughter[52] on a charge of murder[53] (R v Brown)[54]; robbery[55] on a charge of armed robbery[56] (R v Fitzpatrick)[57]; larceny[58] on a charge of break enter and steal[59] (R v Winner).[60]

    [51] (2003) 86 SASR 262.

    [52]   CLCA s 13.

    [53]   CLCA s 11.

    [54]   R v Brown (1913) 17 CLR 570.

    [55]   CLCA s 137.

    [56]   CLCA s 137(2)(b) - aggravated robbery - aggravated by virtue of use of a weapon see CLCA s 5AA(1)(b).

    [57]   R v Fitzpatrick (1988) 50 SASR 10.

    [58]   CLCA s 131, deleted by Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002.

    [59]   Substituted by Criminal Law Consolidation (Serious Criminal Trespass) Amendment Act 1999 to 'Serious Criminal Trespass - Places of Residence'.

    [60] (1989) 39 A Crim R 180.

  6. Prior to the enactment of s 5AA the CLCA made express provision for alternative verdicts in respect of a limited number of offences. For example, s 75 provided that on a trial for rape or an attempt to commit rape  or unlawful sexual intercourse an alternative verdict of guilty of indecent assault or common assault or an attempt to commit indecent assault or common assault could be returned. Without exception, the alternative verdict provisions provided for verdicts that were not available under the common law rule.

  7. Section 5AA was introduced as from 15 May 2006 by s 5 of Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (No 62). Broadly speaking, Act 62 of 2005 made three key changes to the CLCA. First, most statutory non-fatal assaults against the person were replaced by offences against newly enacted divisions in Part 3 (Offences against the person), namely, Div 7 (“Assault” [s 20]) and Div 7A (“Causing Physical or Mental Harm” [ss 21-25]). Secondly, a new Div 9 (“Kidnapping and Unlawful Child Removal” [ss 38-40]) was inserted. Thirdly the basic offence and aggravated offence dichotomy was created in respect of certain offences. That dichotomy was achieved by:

    ·    inserting in s 5 the definitions of “basic offence” and “aggravated offence”;

    ·    inserting s 5AA to provide for circumstances under which an offence becomes an aggravated offence; 

    ·    differentiating between maximum penalties for basic and aggravated offences in Div 7, Div 7A and Div 9; and,

    ·    inserting in certain existing offences,[61] a penalty structure differentiating between maximum penalties for basic and aggravated offences.

    [61]   See for example s 56 - Indecent Assault, s 60 – Procuring Sexual Intercourse.

  8. When s 5AA was enacted Div 11A was already in existence, however, due to oversight provision had not been made for offences against that Division to be charged as aggravated offences.[62] Div 11A was soon amended to differentiate between maximum penalties for basic and aggravated offences.[63]  Since then the same provision has been made for certain other offences that were in existence at the time s5AA was introduced[64] or have been subsequently enacted.[65]

    [62]   F, BVv Magistrates Court (SA) (2013) 115 SASR 232 at [37]

    [63]   Act 63 of 2005

    [64]   See s 29(1)(2) and (3) (Acts endangering life or creating risk of harm), s 134(1) (Theft and receiving), s 137(1) (Robbery), s 140(1) (Dishonest dealings with documents), s 169(1) (Serious criminal trespass - non-residential buildings), s 170(1) (Serious criminal trespass - places of residence), s 170A(1) (Criminal trespass - places of residence), s 172(1) (Blackmail).

    [65]   See s 19AC (Dangerous driving to escape police), s 19AD (Street racing), s 83B(1) (Riot), s 83F (Offences Relating to Criminal Organisations).

  9. Act 62 of 2005 also included in the newly enacted Div 7A (“Causing Physical or Mental Harm”) an alternative verdict provision in the form of s 25. The section provides:

    25—Alternative verdicts

    If —

    (a)a jury is not satisfied beyond reasonable doubt that a charge of an offence against this Division has been established; but

    (b)the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and

    (c)the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences, has been established,

    the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence.

  10. Section 21 defines “lesser offence”. When first enacted, s 21 stated:[66]

    lesser offence, in relation to an offence against this Division means-

    (a)in relation to an aggravated offence-the basic offence or another offence against this Division for which a lesser maximum penalty is prescribed;

    (b)in any other case-another offence against this Division for which a lesser maximum is prescribed.

    [66] By virtue of subsequent amendments s 21 now provides:

  11. Section 21 provides for alternative verdicts unavailable under the common law rule except to the extent that it enables a jury to return a verdict of a guilty of the “basic offence” on the trial of a person charged with an aggravated offence. As I have already observed an application of the common law rule would allow for such a verdict unless the rule was displaced by statute.

  12. Since the CLCA was amended by Act 62 of 2005, additional alternative verdict provisions have been inserted in the legislation.[67] These new provisions provide exclusively for verdicts which would not have been available under the common law rule, except s 29A which relevantly states:

    [67]   Additional alternative verdict provisions: s 29A(5); s 32B - alternative verdict of guilty of throwing a prescribed object at a vehicle being driven on a road available on the trial of a person charged with murder or manslaughter; s 83B(8) - alternative verdict of guilty of violent disorder (contrary to s 6 of the Summary Offences Act 1953) available on a trial for riot; s 83F - alternative verdict of guilty of participating in a criminal organization (s 83B(1)) available on a trial for an offence under s 83E(2), (3) or (4).  

    (1)    A person who –

    (a)discharges a firearm –

    (i)intending to hit a police officer with shot, or a bullet or other projectile, fired from the firearm; or

    (ii)being reckless as to whether a police officer is hit with shot, or a bullet or other projectile, fired from the firearm; and

    (b)by that conduct, causes serious harm to the police officer,     is guilty of an offence.

    (5)If –

    (a)a jury is not satisfied beyond reasonable doubt that a charge of an offence against this section has been established; but

    (b)the judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and

    (c) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences, has been established,

    the jury may return a verdict that the defendant is not guilty of the offence charges but is guilty of the lesser offence.

  13. By reason of its inclusion in Div 7A, the definition of “lesser offence”, for the purposes of s 29A(5), is to be found in s 21.[68] Thus s 29A(5), like the alternative verdict provision contained in s 25, enables a verdict of a guilty of the “basic offence” on the trial of a person charged with an aggravated offence but otherwise provides for alternative verdicts unavailable under the common law rule.

    [68]   See FN 66.

  14. It is apparent from the foregoing analysis that there are three sources for alternative verdicts in respect of offences against the CLCA, namely: (i) the common law rule; (ii) statutory  provisions which provide exclusively for alternative verdicts unavailable under the common law rule; and, (iii) ss 25 and 29A(5) which provide for alternative verdicts unavailable under the common law rule but which also provide for alternative verdicts in respect of a basic offence where an aggravated offence has been charged that would have been allowed under the common law rule.

  15. I reject the suggestion that the common law rule has been displaced by implication in relation to offences not embraced by ss 25 and 29A(5). Since the CLCA’s inception, alternative verdict provisions have been supplemented by the common law rule. Sections 25 and 29A(5) specifically relate to lesser offences defined in s21 and apply only to offences against Div 7A.  Although verdicts on basic offences on charges of aggravated offences are available under the common law rule there are sound reasons for the inclusion of basic offences in the definition of “lesser offence”. Sections 25 and 29A create an all embracing alternative verdict code in relation to offences against Div 7A, subject only to s 290 which enables a verdict of guilty of an attempt to commit an offence to be returned on a charge of the completed offence.  Failure to include basic offences in the code may have suggested, contrary to the legislature’s true intention that an alternative verdict on a basic offence could not be returned on an aggravated offence charge.

  16. It is improbable that the legislature intended to allow for alternative verdicts on basic offences only in respect of aggravated offences against Div 7A. More so, when the common law rule has been applied where appropriate to other provisions in the CLCA. Parliament can be presumed not to have displaced an entrenched common law principle beyond the scope of Division 7A without having said so with irresistible clearness.

  17. The only support that Mr Edwardson could provide for his argument were remarks made by the Kourakis CJ in F, BV.   In the course of discussing the issue of whether a basic offence is distinct and separate from an offence aggravated by virtue of s 5AA, the Chief Justice observed:[69]

    The common law rule of trial procedure is that a jury may not convict for an offence of an entirely different character from that charged, but it may convict of a less aggravated offence than that charged provided the words of the indictment or presentment would cover such an offence. The provisions of the CLCA which provide for alternative verdicts appear to apply primarily to alternative offences which might not fall within the common law rule. If that is so, very little forensic inconvenience is caused by treating an aggravated offence as a different offence.

    [69] (2013) 115 SASR 232 at 260 [91].

  18. Mr Edwardson emphasised that despite that observation the Chief Justice concluded his judgment by saying, as set out earlier, that “it would be prudent for an informant to give careful consideration to whether or not the basic offence should be pleaded in the alternative” until the question of whether a basic offence and a cognate aggravated offence were separate offences or not.[70]

    [70] (2013) 115 SASR 232 at 261 [98].

  19. I accept that this passage possibly reflects a degree of uncertainty in the Chief Justice’s mind as to whether the common law rule necessarily applies to aggravated offences. Nevertheless, his cautious remarks do not cause me to doubt the correctness of the view that I have reached. As the Chief Justice acknowledged, his remarks were expressed obiter and without the benefit of counsel having argued the point. I am fortified in my conclusion by the fact that Gray J appears to have been in no doubt in F, BV that under the common law rule “the basic offence is an alternative to the aggravated offence and, if the circumstances are appropriate, may be left to the jury despite not being specifically pleaded”.[71]

    [71] (2013) 115 SASR 232 at [176].

  20. For these reasons I find that in relation to each of the charged communications the accused has a case to answer on the basic offence.

    ATTEMPT

  21. There is a further point to which I should refer.

  22. In relation to each of the charged aggravated offences the accused has no case to answer because the prosecution failed to prove the element of aggravation, namely, that “Emma” was under 14 years and that the accused knew that to be the case or was recklessly inadvertent in that regard. A question which is exercising my mind is whether, on the evidence as it stands, the accused has, in respect of each count, an alternative case to answer of attempted aggravated communication for a prurient purpose.

  23. Pursuant to s 270A(1) of the CLCA a person who attempts to commit an offence (whether the offence is constituted by statute or common law) is guilty of the offence of attempting to commit that offence. Section 290 provides that on the trial of a person charged with any offence if it appears to the jury that the accused did not commit the complete the offence charged the jury may return a verdict of guilty of an attempt to commit the offence charged.[72]

    [72] Like a number of other alternative verdict provisions, s 290 is expressed to apply to verdicts by juries. However, this operation is extended by subsection 7(4) of the Juries Act 1927 (SA) to verdicts by judge alone: see The Queen v Wakefield [2015] SASFC 10 at [66].

  24. A person is guilty of an attempt to commit an offence if he intends to commit the completed offence and pursuant to that intention engages in conduct that is sufficiently proximate to the commission of the offence and is not merely preparatory.[73] It matters not that the commission of the completed offence is physically or factually impossible.[74]

    [73]   Britten v Alpogut [1987] VR 929 at 938.

    [74]   R v Irwin (2006) 94 SASR 480 (CCA).

  25. In the context of the present case does that mean that the accused could be liable for attempting to commit the aggravated offence though it was impossible for him to commit the completed offence because the alleged victim was not under the age of 14 years? Is the requirement that the accused knew that the alleged victim was under 14 years of age at the time of the offence or was reckless in that regard a bar to a conviction for the crime of attempt?

  26. The decision of the House of Lords in The Queen v Shivpuri[75] is possibly on point. The appellant was convicted of attempting to be knowingly concerned in dealing with and harbouring a controlled drug, namely, heroin, the importation of which was prohibited, contrary to s 1(1) of the Criminal Attempts Act and s 170(1)(b) of the Customs and Excise Management Act 1979. He was found in possession of a suitcase containing a substance which he believed was heroin but upon analysis was determined to be merely vegetable material akin to snuff.

    [75] [1987] 1 AC 1.

  27. The certified question upon which the appellant was granted leave to appeal to the House of Lords read:

    Does a person commit an offence under section 1 of the Criminal Attempts Act 1981, where, if the facts were as that person believed them to be, the full offence would have been committed by him, but where on the true facts the offence which the person set out to commit was inn law impossible, e.g, because the substance imported and believed to be heroin was not heroin but a harmless substance?

  28. The House of Lords dismissed the appeal against conviction. Lord Bridge, with whom the other Law Lords agreed, said:[76]

    Applying this language to the facts of the case, the first question to be asked is whether the appellant intended to commit the offences of being knowingly concerned in dealing with and harbouring drugs of Class A or Class B with intent to evade the prohibition on their importation. Translated into more homely language the question may be rephrased, without in any way altering its legal significance, in the following terms: did the appellant intend to receive and store (harbour) and in due course pass on to third parties (deal with) packages of heroin or cannabis which he knew had been smuggled into England from India?  The answer is plainly yes, he did.  Next, did he in relation to each offence, do an act which was more than merely preparatory to the commission of the offence?  The act relied on in relation to harbouring was the receipt and retention of the packages found in the lining of the suitcase.  The act relied on in relation to dealing was the meeting at Southall station with the intended recipient of one of the packages.  In each case the act was clearly more than preparatory to the commission of the intended offence; it was not and could not be more than merely preparatory to the commission of the actual offence, because the facts were such that the commission of the actual offence was impossible.  Here then is the nub of the matter.  Does the “act which is more than merely preparatory to the commission of the offence” in section 1(1) of the Act of 1981 (the actus reus of the statutory offence of attempt) require any more than an act which is more than merely preparatory to the commission of the offence which the defendant intended to commit?  Section 1(2) must surely indicate a negative answer; if it were otherwise, whenever the facts were such that the commission of the actual offence was impossible, it would be impossible to prove an act more than merely preparatory to the commission of that offence and subsections (1) and (2) would contradict each other.

    This very simple, perhaps over simple, analysis leads me to the provisional conclusion that the appellant was rightly convicted of the two offences of attempt with which he was charged.

    [76] [1987] 1 AC 1 at 19E-20B.

  1. In Shivpuri the requirement that the accused know that he was dealing in heroin was not a bar to a conviction of attempting to commit the charged offence? As I have said: is the requirement that the accused knew that the alleged was under 14 years of age at the time of the offence or was reckless in that regard a bar to a conviction for the crime of attempting to commit the offence of aggravated communication for a prurient purpose?  Because the point was not raised by counsel it would be inappropriate to express a view on the matter until I had the advantage of hearing their submissions.

    Postscript

  2. Since drafting these reasons, my attention has been drawn to the fact that earlier this month, the Court of Criminal Appeal, comprising a bench of five Justices, reserved judgment in The Queen v Wagner (No. 286 of 2014) on several questions including whether basic offences are separate from offences aggravated by operation of s 5AA.  For the reasons that I have canvassed, I am of the view that the accused has a case to answer on the basic offences regardless of the outcome in Wagner. In the circumstances, it is appropriate to deliver this ruling before the Court delivers its decision.



         lesser offence, in relation to an offence against this Division means-

(a)   in relation to an aggravated offence-the basic offence or another offence against this Division, Division 7AB or section 32A for which a lesser maximum penalty is prescribed;

(b)    in any other case - another offence against this Division, Division 7AB  for which a lesser maximum is prescribed. 

Most Recent Citation
Cases Citing This Decision

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R v Richards [2016] SASCFC 79
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Cases Cited

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Statutory Material Cited

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Tovehead v Freeman [2003] NTCA 10
May v O'Sullivan [1955] HCA 38
Tovehead v Freeman [2003] NTCA 10