R v Robinson

[2019] NSWDC 661

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Robinson [2019] NSWDC 661
Hearing dates:	11 – 12 November 2019
Date of orders:	18 November 2019
Decision date:	18 November 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the offence charged.
Catchwords:	MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing CRIME — Sexual offences — Act of indecency — meaning of word ‘towards’
Legislation Cited:	Crimes Act 1900. Evidence Act Mental Health (Forensic Provisions) Act 1990 Summary Offences Act 1988 (NSW)
Cases Cited:	Eades v Director of Public Prosecutions (2010) 77 NSWLR 173; [2010] NSWCA 241 R v Barrass [2005] NSWCCA 131 R v Chonka [2000] NSWCCA 466 R v Francis (1989) 88 Cr App R 127 R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21 R v McIntosh (unreported CCA 26/9/1994)
Category:	Principal judgment
Parties:	Regina (Crown) Tony William Robinson (Accused)
Representation:	Counsel: P Kerr (Crown) C Mendes (Accused)   Solicitors: Solicitor for Public Prosecutions Legal Aid Commission NSW/ACT
File Number(s):	2017/00174837
Publication restriction:	Names of complainants

Judgment

INTRODUCTION

1. On 3 May 2018 Walmsley SC DCJ found Tony William Robinson unfit to be tried on two charges of an act of indecency towards a child and referred the matter to the Mental Health Review Tribunal. On 19 February 2019 the Tribunal determined that Mr Robinson was unfit and on the balance of probabilities he would not become fit to be tried for the offence with which he has been charged within 12 months of the Court’s finding of unfitness.

2. On 5 April 2019 the DPP gave notice that pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (‘the Act’) that it intended to proceed with the charges against Mr Robinson.

3. Pursuant to s 19(1)(b) of the Act, as a result of that notice the Court “is to conduct a special hearing as soon as practicable unless the DPP advises that no further proceedings will be taken”.

4. A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be found proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged: s 19(2).

NATURE AND CONDUCT OF A SPECIAL HEARING

5. Mr Robinson appeared before me on Monday 11 November 2019. He was represented by Ms Mendes of counsel, an Australian legal practitioner. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings: s 21(1).

6. Mr Robinson was arraigned and pleaded not guilty with the assistance of his counsel. At a special hearing the accused person is to be taken to have pleaded not guilty in respect of the offence charged: s 21(3)(a). The matter comes before me as a judge alone trial because no election has been made to have the special hearing determined by a jury: s 21A(1).

VERDICTS AT A SPECIAL HEARING

7. The verdicts available to the Court at a special hearing are:

• not guilty of the offence charged: s 22(1)(a),

• not guilty on the ground of mental illness: s 22(1)(b),

• that on the limited evidence available the accused person committed the offence charged: s 22(1)(c),

• that on the limited evidence available the accused person committed an offence available as an alternative to the offence charged: s 22(1)(d).

THE TRIAL

8. The Crown tendered the following materials:

• Exhibit 1, agreed facts;

• Exhibit 2, LEPRA caution - Form 31;

• Exhibit 3 Custody management records;

• Exhibit 4, statement of Damien Edwards dated 11 June 2017;

• Exhibit 5, statement of Nathan Miles dated 11 June 2017;

• Exhibit 6, statement of Hayley Burke dated 12 June 2017;

• Exhibit 7, CAD document 11 June 2017;

• Exhibit 8, Transcript of ERISP conducted 11 June 2017;

• Exhibit 9, CD of the ERISP.

9. There was an application for the exclusion of the ERISP. On 12 November 2019, I heard evidence from Senior Constable Smith, the custody manager and Detective Senior Constable Rolfe who was the Officer in Charge of the investigation. In the exercise of my discretion I excluded the ERISP pursuant to section 138 of the Evidence Act.

SUMMARY OF THE ALLEGATION

10. It is alleged that on 11 June 2017 the accused rode his bicycle to Melrose Park. A number of young children with parents were enjoying the facilities of the park. The children were playing on the swings.

11. The accused stopped, dismounted his bicycle and he then masturbated himself while he was watching the children in the park. Police were called by one of the parents. The accused was arrested and taken to the Albury police station. It is an agreed fact in this special hearing that the accused “has a mental illness, specifically chronic schizophrenia treated by anti-psychotic medication.”

THE INDICTMENT

Count 1

12. “On 11 June 2017, at Lavington in the State of New South Wales, did commit an act of indecency towards PE, a child then under the age of 10 years, namely, five years of age”. Contrary to s 61O(2) of the Crimes Act 1900.

Count 2

13. “On 11 June 2017, at Lavington in the State of New South Wales, did commit an act of indecency towards TE, a child then under the age of 16 years, namely, thirteen years of age”. Contrary to s 61N(1) of the Crimes Act 1900.

14. Both offences were repealed on 1 December 2018.

THE FACTS

15. There are no statements from PE or TE as to what they observed on 11 June 2017.

DAMIEN EDWARDS - EX 4

16. Exhibit 4 is a statement of Damien Edwards, dated 11 June 2017. Mr Edwards states:

"I noticed a male, I would describe as scruffy looking...riding a red mountain bike... I saw this male looking at the kids on the play equipment as he rode past": [8].

"I saw the male sit down on some log seats, with his back facing the play equipment. I recall seeing this male continue to look over his shoulder at my kids and other kids on the play equipment. I would have been about 20 metres away from this male...": [9].

"After a short time, I saw this male turn around and begin to face my kids and other kids on the play equipment…I could see the male leaning forward and I could see both of his hands cupped over his crutch area of his pants. I saw the male do this for a couple of minutes": [10].

17. Mr Edwards then had a conversation with his brother-in-law Nathan Miles about the man.

"As I finished talking to Nathan, I saw the male lean to his right hand side and put his left hand down the front of his pants. I saw the male with his left hand down the front of his pants for around 45 seconds": [12] 

18. The observation of hand in the pants is not supported by Nathan Miles.

"Between the time of me calling the police and the Police arriving at the park, I recall seeing this male put his hand down the front of his pants at least two further occasions": [14].

19. This observation of hand down the front of the pants is not supported by Nathan Miles.

"Upon seeing this male put his hand down the front of his pants on a least three separate occasions I believe he was masturbating or fondling his penis. I say this due to the amount of time he had his hand down his pants":[16] 

20. This observation was not supported by Nathan Miles.

NATHAN MILES - EX 5

21. Exhibit 5 is a statement of Nathan Miles dated 11 June 2017. Mr Miles states:

"We were at the park for about thirty minutes when a male on a red push bike arrived at the park. He got off his bike and sat on the wooden pole fence about which is no more than fifty metres from the swings":[5].

22. Mr Miles was approached by Damien Edwards, who told him, “you notice old mate over there he’s had his hands down his pants.”

"I looked over at the male and he did not have his hands down his pants at that stage but had his hands on his groin and was fondling himself outside from the outside of his clothing. He was really intently watching the children while he was doing this. The area of his groin he was fondling left no doubt that he was fondling his penis. He appeared to be constantly fondling himself over his pants until the police arrived": [7].

HAYLEY BURKE - EX 6

23. Exhibit 6 is a statement from Hayley Burke dated 12 June 2017. Ms Burke states:

"I could see that the man was just staring at the kids…he was slouched over with his hands on his crotch. I couldn’t see both hands…Damien said, “Look he’s just pulled his hands out of his pants.” Damien decided to call the police and did so": [4].

FACTUAL FINDING ON THE EVIDENCE

24. I am satisfied beyond reasonable doubt that the accused fondled his genitals on the outside of his clothing. I am not satisfied beyond a reasonable doubt that he fondled his genitals inside his clothing. I am satisfied beyond a reasonable doubt that the act of fondling his genitals on the outside of his clothing in a public place is an act of indecency. It is well established that “identification of an act as indecent is an objective question determined by reference to the standards of decency held by right-thinking members of the community”: Eades v Director of Public Prosecutions (2010) 77 NSWLR 173; [2010] NSWCA 241, Basten JA at [7].

25. The question that falls for determination is was the act of indecency “towards” the victim?

ELEMENTS OF THE CHARGES

26. There are two essential elements of the charges;

1. Firstly that the acts were acts of “indecency”; and

2. Secondly, that the act of indecency must be “towards” the alleged victim.

CROWN SUBMISSIONS

27. The crown relies upon what was said by Loveday AJ in R v McIntosh (unreported CCA 26/9/1994):

“The requirement that the conduct of the alleged wrongdoer be tested objectively means the feelings of the victim, be they of objection, consent or indifference, are generally irrelevant. The victim may even be unaware of the conduct and yet the conduct may satisfy the test of indecency.”

28. The crown relies upon the passage highlighted in proof that it is not necessary for there to be evidence from the victims that they saw the conduct. The crown gave the example of a man standing outside the bathroom of a woman with a camera taking photos through the windows unbeknown to the woman having a shower, would be an act of indecency.

29. This may be so but it does not assist in the question of what is meant by the words of the charge “indecency towards”.

30. It is the Crown’s position that whether or not the complainants named in the charges were aware of what the accused was doing, it is the doing of the act at that park and in the presence of the complainant’s that makes out the elements of the offence.

31. The crown submitted that the offence wold be made out if the accused knew that the children were present at the time he performed the act of indecency and as it is an objective offence it is not necessary for the children to have been aware that he was masturbating. Their presence is sufficient at the time he masturbated.

ACCUSED’S SUBMISSIONS

32. Ms Mendes who appeared for the accused filed written submissions on his behalf. She identified the critical issue in the case being that as a matter of law, was the alleged act of indecency committed “towards” the complainants. She submitted that the Crown had to prove that the accused performed masturbation and that the accused intended for the complainants to know that he engaged in that act and that he derived sexual satisfaction from that fact, ie their knowledge.

33. She relied upon R v Francis (1989) 88 Cr App R 127 where two thirteen year old boys had seen the appellant masturbating in a change room at public baths. The behaviour had to be directed towards the children, with the appellant deriving satisfaction from knowing that the children were watching him. She submitted that Francis was followed in R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21.

34. It was submitted that to satisfy the element of “towards” the prosecution must prove that the accused committed an act of indecency, that the accused did so knowing that the complainants were watching him (whether he deliberately attracted their attention or not) and that he derived excitement from the fact that they were watching him engage in the relevant act.

35. It was further submitted that there is no evidence establishing that the accused’s behaviour was directed to the children in that he intended that the complainants should see what he was doing (the act of masturbation) and that he derived pleasure from their awareness of his actions.

CONSIDERATION

36. The Crowns reliance upon the passage set out in McIntosh must be looked in light of Loveday AJ dealing with the second question of law posed by Judge Rummery (are statements made by the victims as to their feelings in respect of the incident admissible). The second question of law posed by his Honour arose in relation to statements made by the girls sometime after the event to the effect that one had found the appellant’s conduct embarrassing and that the other had been angry about it. His Honour allowed the statements to be admitted into evidence over objection by the appellant’s counsel. Judge Rummery was in error to do so.

37. McIntosh involved incitement to commit an act of indecency contrary to s 61N of the Crimes Act not an “act of indecency towards” as is this case. The case turned on the question of what is indecency.

38. The facts of McIntosh are very different to those before me. In McIntosh two children were at a swimming pool. The appellant approached them and asked them to take photos of them. He engaged them. He asked them to spread their legs. He took photos 2-3 feet away and the camera was pointed to their crotch. The appellant told police he was trying to take a photo of their vaginas. He was going to keep the photos for a short time and masturbate then rip them up.

39. The comments of Loveday AJ that “the victim may even be unaware of the conduct may satisfy the test of indecency” goes to the test of indecency not to the test of “indecency towards.”

40. The distinction between an act of indecency “with” as opposed to “towards” was dealt with in R v Chonka [2000] NSWCCA 466. In a joint judgment, Fitzgerald JA and Ireland AJ said at [46]:

“Broadly speaking, an act of indecency “with” another requires two participants in the indecent act, while an act of indecency “towards” another is committed by a person who acts indecently towards a non-participant.”

41. In Francis (supra) it was accepted that the offence was established where a man masturbated in the presence of two thirteen year old boys in the change room at a swimming pool, provided that he was aware that the boys could see him and derived sexual satisfaction from that fact.

42. The Lord Chief Justice at p.129 said,

“If a man does masturbate in the presence of children, it may be in circumstances where he believes they are not observing what he is doing. In that case there can be, in the view of this Court, no question of his acting towards the children. He does not involve the children in his action.

On the other hand where a man masturbates in the presence of children knowing they are watching him, whether he has deliberately attracted their attention or not, and deriving excitement from the fact that they are watching him masturbating, then, in the view of this Court, he can truly be said to be committing an act of gross indecency towards those children who are watching and whose observation is acting upon him as stimulus or added stimulus to what he is doing.”

43. That decision was followed in R v Gillard (1999) 105 A Crim R 479, in which it was held that the offence could be made out on each of the two occasions when a couple engaged in sexual acts in the presence of a young girl, encouraging the girl to watch and, on one occasion, inviting her to join in. The court held at [63]:

“The intercourse, although not an indecent act in itself, became indecent when carried out in front of the young person with the invitation and encouragement to watch which were both directed to or in the direction of the young person.”

44. Both Francis and Gillard were cases where the complainants were in the immediate presence of the offender and deriving sexual satisfaction from that fact.

45. The reasoning in Francis and Gillard is consistent with the facts of R v Barrass [2005] NSWCCA 131. Barrass was a case stated to the Court of Criminal Appeal. Norrish QC DCJ stated a case in relation to two charges of committing an act of indecency towards a person contrary to s 61O(2) of the Crimes Act.

46. One of the questions was “does an offence of committing an act of indecency “towards” another person pursuant to s 61O(2) of the Crimes Act 1900 (NSW) on its proper construction require that a relevant act of indecency be committed in the immediate physical presence of the victim?”

47. The facts of Barrass were that one of the complainant’s saw the appellant driving a motor vehicle adjacent to the bus she was travelling on. Barrass was “wiggling his penis”, that is manipulating it with his hand. She saw that he was looking at them and smiling and laughing in her direction. When the two vehicles were stationary at a traffic light with the appellant’s vehicle adjacent to the side of the bus at which the children were sitting the appellant pulled his pants down and manipulated his penis in a manner which the complainant demonstrated as a stroking or hand moving exercise. He did that four times.

48. The second complainant saw Barrass pull his pants down to his knees and that he was “wiggling” his penis by moving it with his hand.

49. The appellant committed these acts when at a distance of between 3 and 6 metres from the complainants. They were able to see him and he was able to see them. He intended that his actions should be seen by them. The evidence of the appellant smiling established that the appellant achieved, or sought to achieve, some form of sexual gratification from his conduct.

50. Hidden J analysed Francis and Gillard and at [26] said,

“On this analysis, the facts in Francis and Gillard are examples of acts of indecency committed “towards”, rather than “with”, the complainants. In those cases the complainants were in the immediate presence of the victims, but the question remains whether that is an essential prerequisite of the offence of committing an act of indecency “towards” a person. That word has a number of shades of meaning, depending upon its context, but I find nothing in its ordinary usage, or in the relevant legislative history, which requires it to be given such a limited denotation for present purposes.”

51. His Honour referred to Chonka and the dissenting judgment of Smart AJ, where he expressed himself at [63] to be in no doubt “that an act of indecency could be directed towards a person over the telephone or by other means not involving the act of indecency being carried out in the personal presence of the other person.” Hidden J at [29] said,

“As the Crown prosecutor before us pointed out, whether an act of indecency can be directed towards a person over the telephone need not be determined for present purposes. However, I respectfully agree with Smart AJ’s observation to the extent that it conveys immediate presence is not required. In most cases the offence will have been committed in such proximity to the complainant as to amount to immediate presence. This is not such a case but, in my view, the appellant’s act of indecency could fairly be said to have been committed “towards” the complainant for the reasons identified by Judge Norrish: he exposed and manipulated his penis in circumstances where he was within the view of the girls and intended that they should see what he was doing.”

52. He went on to find at [30],

“To the first question, whether the offence requires that the relevant act of indecency be committed in the immediate physical presence of the victim, I would answer “No”.”

53. Neither of the complainants was called. There is no evidence before me that the accused masturbated knowing that the complainants were watching him and that he derived satisfaction from knowing that the children were watching him. The statement of PE to her father “that man scares me”, does not provide an evidential basis to be satisfied that she saw him masturbating. The accused was described as ‘scruffy looking’. It may be that his physical appearance scared her as opposed to his actions.

54. On one version of the evidence the accused was 50 metres from the complainants. Although there is no requirement for immediate physical presence the distance of 50 metres for a child is a considerable distance and is a pointer to the fact that they did not observe the accused masturbating

55. In my view “towards” requires the non-participant complainant to be aware of the accused and the indecent act of the accused. There is no evidence that the complainants were aware of the accused and his indecent actions.

56. One may have sympathy for the parents of the complainants and feel disgust at the accused’s action. I am not satisfied that the Crown has proved beyond reasonable doubt the essential element of “towards” as required.

57. The accused could have been charged with ‘offensive conduct’ contrary to s 4 of the Summary Offences Act 1988 (NSW) which carries a maximum penalty of 6 penalty units or imprisonment for 3 months. Such a charge does not require an act of indecency “toward” a complainant.

58. The offence could have been proved on the evidence of the adult witnesses. All that is required is for the offender to conduct himself in an offensive manner in or near a public place. Masturbating at a park satisfies those requirements.

Orders

59. Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the offence charged.

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Amendments

18 November 2019 - de-identify name of complainants

Decision last updated: 18 November 2019