Raymond Frederick Ayles v R No. SCCRM 93/95 Judgment No. 3987 Number of Pages 24 Criminal Law and Procedure (1993) 66 a Crim R 302
[1993] SASC 3987
•17 June 1993
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA Legoe ACJ(1), Matheson(2) and Perry(3) JJ
CWDS
Criminal law and procedure - Appeal against conviction. Two counts of attempt to procure the commission of an act of gross indecency by a child - appeal against trial judge's refusal to direct no case to answer - question of law - R v Prasad (1979) 23 SASR 161 at 162 per King CJ applied.
Attempt - elements of the offfence - actus reus and mens rea in attempts - R v Collingridge (1976) 16 SASR 117 at 118-121 per Bray CJ followed - Haughton v Smith (1975) AC 476; Reg v Donnelly (1970) NZLR 980 at 990-991 per Turner J; Partington v Williams (1975) 62 Cr App R 220 at 224; and O'Connor v Killian
(1984) 38 SASR 327 at 329 per Prior J referred to.
Procure an act of gross indecency - R v Miskell (1954) 1 All ER 137 and R v Cope (1921) 16 Cr App R 77 discussed.
Elements of the actual offence of provocation and attempts.
Verdict unsafe and unsatisfactory - R v Palmer (1992) 106 ALR 1 at 2 and 3 referred to.
R v Prasad (1979) 23 SASR 161 at 162 per King CJ, applied.
R v Miskell (1954) 1 All ER 137 and R v Cope (1921) 16 Cr App R 77, discussed.
HRNG ADELAIDE, 20 May 1993 #DATE 17:6:1993
Counsel for appellant: Mr K V Borick
Solicitors for appellant: Mcgee &; Associates
Counsel for respondent: Ms A M Vanstone
Solicitors for respondent: Director of Public
Prosecutions (SA)
ORDER
Apeal dismissed.
JUDGE1 LEGOE ACJ This is an appeal against conviction. The appellant pleaded not guilty to two counts of attempting to procure two boys to commit an act of gross indecency. The accused was convicted in the District Court on both counts. 2. Grounds of appeal against conviction.
1. The learned trial judge erred in law in that he should have
found there was no case to answer on both counts.
2. In the alternative the verdicts of the jury were unsafe and
unsatisfactory and cannot be supported having regard to the
evidence. Background. 3. The two charges arose out of events that occurred on the weekend of 6 and 7 September 1991, when a camp was held at Harrogate for children of a parish in the hills. These children were about to be confirmed in the Anglican Church. Two young males (I shall refer to as "M" and "S") went along to that camp as assistants. They were 15 at the time and it is in relation to them that the alleged offences occurred. 4. It is the Crown case that the appellant on the first night of the camp, after the children had gone to bed, walked into the cabin which was shared by the two young boys. The appellant stood at the door and began to talk to the boys. Soon he began to talk about sexual matters. This went on for some hours. On the evidence, the appellant talked about masturbation and homosexuality and the sexual habits of country people in relation to animals. 5. On the Saturday night, 7 September, it is the Crown's case that after the boys had gone to bed the appellant again came into their cabin and stood in the doorway. He commenced a similar conversation to that which had occurred on the previous night. The appellant allegedly said that he and his mates would watch videos and masturbate in front of each other. He told the boys that they could masturbate in front of him and he would only join in if they really wanted him to. 6. The Crown case was put in this way:
"... that there is only one possible explanation for the
accused's words and conduct on the weekend, and in particular on
the night of 7 September 1991, and that inference is that the
accused wanted the boys to masturbate in front of him or to engage
in intimate sexual behaviour either in front of him or in his
presence with him and that the accused endeavoured to bring that
situation about by his words and conduct that night, which
involved the lengthy and repeated reference to sexual matters, the
alcohol and his demonstration during that night." 7. At the end of the Crown case, the learned trial judge was asked to find that there was no case to answer. The submissions of counsel and the reasons for ruling that there was a case to answer were not recorded other than the learned trial judge's statement "I find that there is a case to answer, but I propose to give a Prasad direction to the jury". 8. As to Ground 1. This ground can only succeed if on the evidence for the prosecution there was no evidence upon which as a matter of law the appellant could have been convicted on the evidence of the prosecution. This ground involves a consideration of the elements of the charges, and whether there is evidence upon which a jury is capable in law of supporting a conviction. 9. The distinction between the question raised in Ground 1 as a matter of law and the right of a jury to return a unanimous verdict of not guilty at the close of the prosecution case has been authoritatively laid down by King CJ in R. v. Prasad (1979) 23 SASR 161 where the Chief Justice said at p 162:-
"It seems to me that to say that a judge can direct the jury to
bring in a verdict of not guilty when there is evidence capable in
law of supporting a conviction is to infringe one of the basic
principles of trial by jury. It is fundamental to trial by jury
that the law is for the judge and the facts for the jury. If
there is no evidence which would justify a conviction then, as a
matter of law, there must be an acquittal. That decision is for
the judge and the jury must accept and act on his direction on
that question of law. If, however, there is evidence which is
capable in law of supporting a conviction, a direction to the jury
to acquit would be an attempt to take from them part of their
function to adjudicate upon the facts. That, as it seems to me,
would be contrary to the law." (My emphasis.) The charges - elements of the offence. 10. The charges in this matter were two counts charging the appellant with two separate criminal attempts. Since 1981 a criminal attempt is a statutory offence. Section 270a of the Criminal Law Consolidation Act provides: "(1) Subject to sub-s.(2), a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence." 11. Sub-section (2) provides inter alia that where an attempt is constituted as an offence under a provision in any other Act or any provision of the Criminal Law Consolidation Act, then s.270a does not apply, nor does it operate to create a further or alternative offence. Sub-section (3) is the penalty provision for attempts. Sub-section (4) provides that when the principal offence is indictable then the attempt is likewise an indictable offence, and similarly if minor indictable it is a minor indictable offence and if a summary offence then the attempt is a summary offence. The principal offence. In the case at bar, the principal offence which the appellant was charged with, attempting to commit, was another statutory offence - "procuring ... a child of the age of 15 years, to commit an act of gross indecency." 12. These two charges are offences provided for in s.58 of the Criminal LawConsolidation Act:-
58(1) Any person who in public or in private -
(a) commits any act of gross indecency with, or in the presence
of, any person under the age of 16 years;
(b) incites or procures the commission by any such person of an
act of gross indecency with the accused, or in the presence of the
accused or with any other person in the presence of the accused;
(c) ... (not relevant) shall be guilty of a misdemeanour." 13. The charges in this case were laid under s.58(1)(b). The particulars allege that the attempted procuring of an act of gross indecency was one to be carried out by the boys "in the presence" of the accused. 14. The elements of these two crimes are: firstly, attempt; secondly, to procure; thirdly, a child; and fourthly, to commit an act of gross indecency, either with the accused person, or in the presence of the accused person, or with any other person in the presence of the accused. Attempts. Attempt is not defined in the Criminal Law Consolidation Act. The act of attempt may be part of a series of acts or conduct which culminate or would culminate in the commission of the principal crime or offence, which offence has not occurred because it was interrupted or for some other reason; see R. v. Collingridge
(1976) 16 SASR 117 per Bray CJ at pp 118-121. Dr Bray points out that the correct formulation of the criminal law of attempt has been the subject of controversy for a long time (see p 118). Some of those problems Dr Bray considered had been partly resolved by the decision of the House of Lords in Haughton v. Smith (1975) AC 476, in particular the judgment of Lord Hailsham of Marylebone who adopted and accepted the classification given by Turner J in the Supreme Court of New Zealand in Reg. v. Donnelly (1970) NZLR 980 at 990-991. The other law lords who referred to Lord Hailsham's analysis apparently accepted Turner J's judgment as a valuable analysis of the law of attempt. Dr Bray pointed out at p 120 that in New Zealand there is a statutory provision that everyone, who with intent to commit an offence, does or omits to do an act for the purpose of achieving his object is guilty of an attempt to commit the offence intended, whether in the circumstances it is possible to be committed or not. As Dr Bray observed there was no such section in force in England at the time of the decision in Haughton v. Smith (supra). The present South Australian provision referred to above is substantially different to the New Zealand provision. However, in my opinion, the acceptance by Dr Bray of the analysis by Turner J in R. v. Donnelly insofar as the fourth proposition is concerned would be good law in South Australia. Turner J said:-
"Fourth, he may suffer no such outside interference, but may fail
to complete the commission of the crime through ineptitude,
inefficiency or insufficient means. The jemmy which he has
brought with him may not be strong enough to force the window
open." 15. Dr Bray went on to point out that in Partington v. Williams (1975) 62 Cr App R 220 at 224, the Divisional Court in England said:-
"... each case must of course be decided upon its own facts in
accordance with the basic principles laid down in Haughton v.
Smith (supra). Although it may be helpful in a given case to seek
to place it in one or other of the categories adopted by Turner J
in Donnelly (supra) and referred to by Lord Hailsham in his
speech, the latter himself deprecated too much analysis of cases
in this way and both Lord Reid and Lord Morris doubted whether it
was possible, or indeed desirable, to set out any complete
classification or to give any exhaustive definition of what
amounts to an attempt to commit a crime." 16. Dr Bray agreed with the comment by the Divisional Court that difficulty is caused by analysis. However, in the case of Collingridge Dr Bray did not see how such an analysis was to be avoided when determining that particular appeal. The Chief Justice regarded the House of Lords as having cautiously accepted the categorisation in principle, at least as a convenient starting point. 17. The question of the proximity of the act alleged to constitute the attempt to the substantive offence was argued in O'Connor v. Killian (1984) 38 SASR 327. In that case, the appellant lived at premises formerly occupied by one A. Cheques were received at the premises payable to A. The appellant took the cheques to a building society and there opened an account in the name of A. The appellant was given a receipt for the cheques and told to come back in a week's time with identification of herself as A. She did not go back. The appellant was unable to obtain the required identification. She was charged pursuant to ss.195 and 270 of the Criminal Law Consolidation Act that "with intent to defraud she attempted to obtain from the Hindmarsh Building Society money to the value of $1,040 by falsely pretending that cheques numbered ... drawn on ... bank made payable to A were her own property." It was argued for the appellant that there was no evidence that the Hindmarsh Building Society had agreed to act as 8 a banker in respect of the cheques. It was also submitted there was no evidence that the appellant had performed all the necessary steps to open the account at the building society and no evidence that the appellant had made any requests to withdraw monies from the account. 18. In Reg v. Eagleton (1855) Dears.515; 169 ER 827, Baron Parke stated that: -
"The mere intention to commit a misdemeanour is not criminal.
Some act is required and we do not think that all acts towards
committing a misdemeanour are indictable. Acts remotely leading
to the commission of the offence are not to be considered as
attempts to commit it, but acts immediately connected with it are;
..." 19. That part of Baron Parke's statement was applied by the Court of Criminal Appeal in The Queen v. Boronelli (1962) SASR 214 at 218. The respondent argued in the matter of O'Connor v. Killian (supra) that what the appellant had done was to put her plan into execution, not merely prepare for the commission of an offence. The fact that she had more to do did not prevent the attempt to commit the offence occurring. Prior J (at p 329) adopted the language of Baron Parke and applied it in the way stated by Salmond J in The King v. Barker (1924) NZLR 865 at 874:- "To constitute a criminal intent, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required" and applied People v. Burger
(1955) 131 Cal.App. (2nd) 127 at 130, where the court said:- "Where the intent to commit the substantive offence is ... clearly established ... acts done towards the commission of the crime may constitute an attempt, where the same acts would be held insufficient to constitute an offence if the intent with which they were done is equivocal and not clearly proved." 20. In the present case the boys' evidence was clear as to the appellant's intention when he was in the cabin talking to them for a long period of time on each of the two nights concerned. 21. In order to determine the question of proximity of the acts to the commission of the actual offence it is necessary to summarise the elements of the substantive offence. The substantive offence - Section 58 22. The first element of the substantive offence is "procures". The shorter Oxford English dictionary (revised and edited by C.T. Onions - 1969) states:-
"to bring about by care or pains also (more vaguely) to bring
about, cause, effect, produce.
2. to obtain by care or effort; to acquire. b. to obtain
(women) for the gratification of lust. ... to act as a procurer
or procuress.
3. to prevail upon, induce, persuade (a person) to do something." 23. The purpose of the procuration may be inferred from the conduct of the accused person and it need not be an express invitation, for example, to perform acts of gross indecency. See R. v. Miskell (1954) 1 All ER 137 or
(1953) 37 Crim App R 214. The court in Miskell's case pointed out that the sole question depended upon whether the act or acts of the appellant could constitute as a matter of law, an attempt to procure the boy to commit a crime. Once it has been established that what the 10 accused person had done could be an attempt, then it is a question of fact for the jury to decide whether what was done was in fact an attempt. Not all the acts which are steps towards the commission of a crime can be regarded as attempts. The court then referred to the principles stated by Baron Parke in Eagleton (supra) as approved in later cases. 24. The judgment (at p 218, Cr App R) of the Court of Criminal Appeal in R. v. Miskell observed that the question to be decided was not whether the invitation and the actual meeting in the circumstances amounted to an attempt to commit an act of gross indecency, but rather whether the acts of the appellant were an attempt to procure the commission of that offence. Accordingly, the court applied the principles discussed above relating to attempts to the facts of the particular case and asked whether those facts amounted to acts sufficiently proximate to procuring the boy to commit the offence and as such amounted to an attempt to procure. It was not, as the court observed, a question whether there was an act of procuring but whether there was an act which was an attempt to procure. This important distinction was extended in the reasoning of the court in Miskell's case to observe that the law does not punish for guilty intention alone but for guilty intention coupled with the overt act done as part of carrying out that intention (see p 219 ibid). As in the case of O'Connor v. Killian (supra) there was no doubt about the intention of the appellant on the evidence. In Miskell's case the intention was undoubtedly to procure an act of gross indecency with the boy. The court then said:-
"The invitation and the meeting were overt acts. When that
invitation and meeting are considered in the light of the
circumstances in which the invitation was issued and the meeting
took place, it appears to us that those acts cannot be said to be
incapable of being attempts to procure the boy to commit an act of
gross indecency with the appellant." 25. The court did not spell out in so many words that an attempt to procure an act of gross indecency can be committed by words without any physical application of force or contact. However, such a factual situation was clearly considered by an earlier Court of Criminal Appeal in England in the case of R. v. Cope (1921) 16 Cr App R 77. In that case the appellant had written a letter to the victim and that was held sufficient to constitute an attempt having regard to all the surrounding circumstances. The incriminating circumstances in Cope's case were that the evidence established that the appellant had learned of the name of a youth living in another town from a fellow employee who had been convicted of committing an act of gross indecency with that youth. The appellant wrote the letter to that youth knowing of the fellow employee's conviction for that offence and stating that he was a friend of that particular person and that as he was going to the town he would like to meet the youth at a particular time which he stated in his letter. The letter was intercepted and the jury were asked to draw the inference of intention to procure the youth for the purpose of committing the act 12 of gross indecency with him. The Court of Criminal Appeal upheld the conviction in the circumstances. See pp 82-83 of the judgment. 26. The other elements of the substantive offence were never really in dispute, namely, that the victim was a person under the age of 16 years. Finally, the prosecution must prove that the attempted procurement was for that person under the age of 16 years to commit an act of gross indecency. It is not necessary in this appeal to discuss the meaning of those final elements, except to say that the attempted procurement to commit that sort of act was one, in this case, to be carried out in the presence of the accused rather than with the accused. Conclusion - Ground 1. 27. In my opinion, the submissions of counsel for the appellant, on this first ground, were misconceived. Ground 1 is purely a question of law. The evidence of the two boys was clearly sufficient in law to establish a whole series of statements which the boys said the appellant had made to them in the course of the discussions in the hut on both nights, particularly on the Saturday night. There was abundant material in the boys' evidence alone, including their cross-examination from which a jury could be invited to infer the clear intention of the appellant, namely, that he intended that they should commit acts of masturbation on that night in the hut in the presence of each other and in the presence of himself. On the boys' evidence, the statements allegedly made by the appellant to them on that night led right up to the point where the only remaining act which would constitute a commission of the principal offence would be if one or other of the two boys had actually committed an act of masturbation that night. The particular circumstances of this case which went to the offences was clearly stated by one of the boys, if not both, that the appellant had told them that if they wanted to masturbate in front of each other he would watch and if either of the boys wanted him to join in, he would not mind, indeed, he would join in. On M's evidence, the appellant clearly suggested to S that he should start masturbating. That evidence was, in my opinion, clearly sufficient to justify the learned trial judge's refusal to rule that there was no case to answer. The words and conduct of the appellant over those two nights, particularly on the Saturday night was such as to require the learned trial judge that he must leave the decision to the jury. Whether those words were spoken and whether they were said in such a way as to establish the appellant's intention to procure the acts of gross indecency alleged were questions for the jury. 28. Counsel for the appellant relied on a passage in the direction given by the learned trial judge to the jury at the close of the prosecution case where his Honour said:- "The point that I want to make to you about the evidence as it stands is this, that if you find yourselves at this stage to find what it was that the accused said and the context in which he spoke about the subject matters, then you may well think that you have an absolutely impossible task of drawing any inferences as to what the accused intended to do when he spoke to the boys." 29. The learned trial judge then went on to point out and remind the jury that there were a number of inconsistencies between the versions given by the two boys and in particular that the evidence of one of them was "riddled with inconsistencies". But those were all matters for the jury. They were questions of fact. As King CJ pointed out in R. v. Prasad (supra) at p 163, it would be contrary to the law for a judge to direct the jury in those circumstances to acquit. It would be taking away from the jury their traditional role of adjudicating upon the facts. 30. In my judgment the refusal to direct the jury to acquit as a matter of law was not an "error in law". 31. Ground 1 in the grounds of appeal makes no complaint about the directions that were given by the learned trial judge to the jury at the close of the prosecution case. I would reject this ground. Ground 2 32. In this ground there is no complaint about the terms or directions of the summing up. In my opinion, the learned trial judge correctly directed the jury on the elements of the offences. His Honour gave careful directions to the jury on the question of the intentions of the appellant at the relevant time. That too was clearly a question of fact for the jury to determine. 33. There is no complaint that the learned trial judge did not adequately put both the case for the Crown and 15 the case for the Defence to the jury in the course of his summing up. The learned trial judge informed the jury that the inference that they were asked to draw from the whole of the evidence was that:-
"The accused wanted the boys to masturbate in front of him or to
engage in intimate sexual behaviour either in front of him or in
his presence or with him and that the accused endeavoured to bring
that situation about by his words and conduct that night which
included the lengthy and repeated reference to sexual matters, the
alcohol and his demonstration that night. In other words, it is
the Crown's case that the accused attempted to procure S and M to
commit an act of gross indecency in his presence." 34. The learned trial judge also reminded the jury that if another inference was reasonably open then it was the duty of the jury to choose the inference that was most favourable to the accused. 35. When dealing with the case for the defence the learned trial judge pointed out that the evidence given by the accused was not just an absolute denial of the allegation that he was attempting to commit the offence with which he was charged. After giving the jury a reminder that the onus of proof was on the Crown and that the defence do not have to prove anything, the learned trial judge embarked on a reasonably detailed analysis of the appellant's account of conversations in the hut with the two boys on those two nights. It was admitted by the appellant that sexual matters had been the subject of discussion on both nights. In particular, the learned trial judge informed the jury that they must ask themselves whether the Crown had proved that the 16 explanation given by the appellant for covering the wide range of sexual behaviour indulged in, was wrong, irrelevant or inherently implausible -
"or do you think when a person has a repertoire of that kind the
natural thing for that person to do is to follow one's usual
course?. It was not really in question that the appellant had
talked to the boys about a variety of sexual behaviour indulged in
by other people and further that he brought in a medicine bottle
or about 200 ml of wine into the hut and offered them to drink and
had one himself. One boy did have a sip, the other boy declined." Conclusion - Ground 2 36. When discussing the earlier case of Morris v. R
(1987) 163 CLR 454; 74 ALR 161, the High Court said in Palmer v. R. (1992) 106 ALR at 2, line 30 on:-
"That case held that upon some occasions, perhaps relatively
infrequent, the quality of the prosecution evidence may be such
that no reasonable jury could have failed to entertain a doubt.
In such a case (and the present case is clearly one) a Court of
Criminal Appeal is required to make its own assessment of the
evidence in order to determine whether the verdict can be allowed
to stand." (My emphasis.) 37. In Palmer's case the trial judge had directed the jury that the appellant's wife, Mrs Palmer, was an accomplice and that it would be dangerous to convict upon her uncorroborated evidence. He had also told the jury that they must have regard to her credibility and pointed out that amongst other things she had admitted to numerous convictions, including convictions for aggression, dishonesty and drug-related offences. She admitted telling lies to police officers in previous statements and that those lies had been made on oath. She also told the jury and had admitted that she had told 17 lies to the magistrate during the course of committal proceedings in that same case. 38. In my opinion, this case is not one of those where a Court of Criminal Appeal should evaluate the whole of the evidence and, in particular, the nature and quality of the evidence of the two boys in order to determine whether the jury's verdict was unsafe or unsatisfactory. See Palmer v. R. (supra) at p 3, lines 7 to 9. I would reject ground 2 of the appeal. 39. For these reasons I would dismiss the appeal.
JUDGE2 MATHESON J The appellant was charged on an information containing two counts of attempting to procure two fifteen year old boys, whom I will refer to as S and M, to commit an act of gross indecency in his presence at Harrogate on about 7 September, 1991, contrary to the provisions of ss.58(1) and 270a of the Criminal Law Consolidation Act 1935. He was convicted on both counts and sentenced to twelve months imprisonment on each count to be served concurrently, but his sentence was suspended. He appeals from the convictions. 2. The appellant is an Anglican priest aged 48. He is married with three sons aged 11, 9 and 7. At the relevant time he was the priest in charge of the churches at Crafers and Aldgate. Over the weekend of Friday and Saturday, 6 and 7 September, 1991, he held a camp at Harrogate for fifteen boys and girls whom he was preparing for confirmation. The boys named in the information had already been confirmed. They attended the camp as helpers and shared a hut. There were two other adult helpers. S and M said that the appellant went to their hut, and talked to them for three or four hours on the Friday night, and for at least four hours on the Saturday night. The Saturday in question was 7 September, 1991. As I understand the evidence, on both occasions the boys remained seated on their respective bunks, and the appellant remained standing near the door. The boys say the conversation was largely about sexual matters. They gave evidence on 17 March, 1993 approximately eighteen months after the alleged offences. S was not asked to state what happened until he was questioned by the police six months afterwards, and M's first statement, which was to his father, was three months afterwards. In all the circumstances, it was inevitable that there would be, and there were, inconsistencies not only in their respective versions, but also between each other, but I do not consider they are as serious as the appellant's counsel, Mr. Borick, submitted they were. 3. I propose to summarise the evidence of the boys. It must be stated immediately that they did not say that the appellant touched them in any way at all, or that either of them touched the appellant or each other. None of them exposed themselves. On the Friday night the appellant talked a good deal about homosexuality, and masturbation was certainly mentioned. On the Saturday night, the boys state that he talked about a number of sexual matters including fornication, sex with animals, anal sex and adultery, but both agree that much of the time was spent discussing masturbation. The appellant asked them whether they masturbated. He said they should masturbate in front of each other in order to learn to trust each other. He told stories about his own history of masturbation. He said he could show them pornographic videos at his house, and they could masturbate in front of each other and he would join in if they wanted him to. The boys said that the appellant produced a small bottle of wine and encouraged them to have sips, and he also produced and offered them sweets. In the course of discussing masturbation, he demonstrated what he considered to be the proper technique on one of his wrists. The only other witness for the prosecution was Detective Senior Constable Boltje who spoke to the appellant on 14 February, 1992. The appellant declined to answer any questions. The police searched his house but no pornographic videos were found. 4. At the close of the Crown case, counsel for the appellant unsuccessfully submitted that there was no case to answer. After ruling that there was a case to answer, the learned trial judge gave what has come to be known in this state as a Prasad direction, see The Queen v. Prasad (1979) 23 SASR 161. In the course of that direction, his Honour said:
"Now, ladies and gentlemen, the point that I want to make to you
about the evidence as it stands is this, that if you find
yourselves unable at this stage to find what it was that the
accused said and the context in which he spoke about the subject
matters, then you may well think that you have an absolutely
impossible task of drawing any inferences as to what the accused
intended to do when he spoke to the boys. It is, of course, a
matter for you, but I do remind you that there are not only
inconsistencies between the versions given by the two boys, but
also, and perhaps more important you may think, is that the
evidence of (M) in particular is riddled with inconsistencies.
His version today is different, in some respects, from what he
said yesterday and yet another version was given by him at the
committal proceedings in respect of certain items and what he said
to the police contained yet other inconsistencies from what he has
said to you and, in addition to that, what he has said to you was
inconsistent in certain vital respects from the version opened by
the learned Crown prosecutor. You might, and it is a mater for
you, draw an inference from that, that his version has changed
since the statement was taken. How reliable was that young man's
evidence? How could you rely on what he said was said by the
accused? Moreover, you will recall that no complaint was made by
him for a period of some three months. He has given you an
explanation, you can make of that what you will, but you may think
that his at any rate was the more colourful version and you may
wonder, having regard to the historical development of what he had
to say, whether or not his version has snowballed in some respects
from the dimensions that it took when he first began to think
about what was said on that particular night. And it is my duty
to point out to you that all of these features necessarily raise
very serious doubts as to the validity of the Crown's case. I
imagine that all of these features have become readily apparent to
you, and in such a situation it becomes a question of whether you
could ever logically and fairly be satisfied beyond reasonable
doubt of the guilt of the accused. The question which I ask you
to consider at this stage is whether even at the very highest it
is really possible on the Crown's case to say where the truth
lies. At the lowest, does it appear that the word or words of the
alleged victims can be relied upon. If the obvious answer to
either of those questions is in the affirmative, then as a matter
of logic you could not possibly be satisfied of the guilt beyond
reasonable doubt and so he would be entitled to an acquittal now." 5. The jury retired, and when they returned the foreperson told his Honour that they were not unanimously agreed to find the accused not guilty, and the trial therefore proceeded. 6. Notwithstanding what the learned trial judge said to the jury when giving his Prasad direction about the volume and nature of inconsistencies in the boys' evidence, the only aspect that has made me hesitate about whether his Honour was correct to rule that there was a case to answer is whether there was sufficient evidence of acts immediately connected with the commission of the offences. 7. The leading case on attempting to procure a person to commit an act of gross indecency is The Queen v. Miskell (1953) 37 CAR 214. The appellant was a corporal in the Army Catering Corps and was convicted by a District Court-Martial at Hamburg. The facts were set out in the joint judgment of Hilbery, Sellers and Barry JJ at p 216:
"On the afternoon of May 16, 1953, a German boy (aged 14) was
walking along a street in Hamburg when the appellant spoke to him.
The appellant asked him to show him the way to the park. He then
asked about a caf and they went together to a caf where the
appellant gave the boy a beer and an ice cream. They then went to
the park, and when in the park they sat on one of the seats for a
few minutes. The appellant put his arm round the boy's shoulder,
and with his hand dangling down his front, pointed at his private
parts. The appellant asked if he had a little one down there and
said he had a big one. He also asked whether the boy had ever had
sexual intercourse before, using the (coarse) German word
'gefickt.' The appellant proposed that they should meet at some
time at the station, and suggested the next day at 7 o'clock,
(promising him a reward of ten marks) and that they should sleep
out together in the park or forest at some time. The boy said he
slept at home, but he agreed to meet the appellant, saying he
would ask his father. The next day the appellant kept the
appointment which had thus been arranged, and when he met the boy
looked at his watch and said: 'It is too late to go to the cinema;
we'll take a walk.' The police then arrested the appellant. All
those facts were unchallenged by the appellant, and no evidence
was offered by him or on his behalf." 8. At p 217, their Lordships said:
"The sole question upon which this appeal depends is whether the
act or acts of the appellant could constitute, as a matter of law,
an attempt to procure the boy to commit a crime is a question of
law. Once it is decided by the court that what the accused has
done can be an attempt to commit the crime, it is a question of
fact for the jury whether what was done should be decided to have
been an attempt. Not all acts which are steps towards the
commission of a crime can be regarded as attempts. Some may be
too far removed from the commission of the crime to be regarded as
attempts to commit the crime; but just where the distinction is to
be drawn between preliminary acts of preparation and acts which
are nearly enough related to the crime to amount to attempts to
commit it is often a difficult and nice question. This case
indeed affords an example of the difficulty. The principle to be
applied by the court in deciding the question was stated by Parke
B. in Eagleton (1855) l Dears CC 376, 515. That statement of the
principle was approved and followed in Robinson, ll Cr App R 124;
(1915) 2 KB 342 and Woods (1930) 22 Cr App R 41, at p 44, in the
following words: 'The mere intention to commit a misdemeanour is
not criminal. Some act is required, and we do not think that all
acts towards committing a misdemeanour are indictable. Acts
remotely leading towards the commission of the offence are not to
be considered as attempts to commit it, but acts immediately
connected with it are.'" 9. At p 218, their Lordships said:
"It is important to bear in mind that the question is not whether
this invitation and meeting in the circumstances amounted to an
attempt to commit an act of gross indecency. They could not be
said to be that. The question is whether these acts of the
appellant were an attempt to procure the commission of that
offence. Applying the principle as stated, was there on these
facts an act sufficiently proximate to procuring the boy to commit
the offence to amount to an attempt to procure? It is a question,
not whether there was an act of procuring, but whether there was
an act which was an attempt to procure." 10. Then at p 219, they said:
"The law does not, however, punish a man for a guilty intention,
but for the overt act done as part of the carrying out of that
intention. Now the intention of the appellant here was
undoubtedly to procure an act of gross indecency with the boy.
The invitation and the meeting were overt acts. When that
invitation and meeting are considered in the light of the
circumstances in which the invitation was issued and the meeting
took place, it appears to us that those acts cannot be said to be
incapable of being attempts to procure the boy to commit an act of
gross indecency with the appellant. Once it is decided that they
could be so regarded as a matter of law, then the question whether
they were an attempt or not becomes one of fact for a jury or, as
in this case, for the court-martial." 11. The appeal was dismissed. It is true that in that case the surrounding circumstances included some physical contact, and there is none here. However, in the earlier, oft cited case of Cope (1921) 16 CAR 77, the appellant had not even met the person to whom he wrote a letter fixing the time and place for a meeting, but the writing of the letter to that particular person was held to be sufficient to constitute an attempt having regard to all the surrounding circumstances. The court there proceeded on the basis that the intended recipient would see in the letter, in the circumstances, an invitation to commit an act of gross indecency. 12. Here, I have concluded that the appellants' prolonged presence in the boys' hut on the Saturday night coming after the visit thereto on the Friday night, his lengthy, personal remarks and emphasis on the topic of masturbation, his offering to them of sips of alcohol and his demonstration on his wrist of masturbation technique constituted, in all the circumstances, acts which a jury could reasonably infer were immediately connected with the procuring of grossly indecent acts by the boys. There was evidence from which the jury could infer that he wanted them to masturbate in his presence, either that night or subsequently at his home when watching a video. I think his Honour was correct in ruling there was a case to answer. 13. The appellant gave evidence, and called no other witnesses. The appellant said that the conversation only lasted 15 - 30 minutes on the Friday night, but said that it lasted from 11 p.m. until after 2 a.m. on the Saturday night. The thrust of his evidence was that on the Saturday they had an informal, but structured talk on sexual matters broken up in to what he called segments, not unlike discussions he said he had had before in schools. He agreed that he covered "a whole range" of sexual topics. He agreed he asked them whether they masturbated, and that he told them a story about a boy he knew who hurt his penis because of the way he masturbated. He agreed that he gave a demonstration on his arm, but said that he did that in the course of showing them how he showed that boy how most boys masturbated. He said he was not sexually interested in the boys that night. 14. The cross-examination included the following:
"Q. Now, when both M and S say that you talked about masturbation
and you also suggested to them that they might trust each other
and demonstrate that trust by masturbating in front of each other,
they are right or they are wrong.
A. I would not have said that trust was developed through
masturbating. Certainly in 50% of situations, if the figures are
correct, some people have done something in front of another
person of the same sex and as indeed people of the opposite sex do
things together. I think once people enter into some degree of
sexual activity together they have to have trust in each other.
Q. Are they right or are they wrong when they say that you
encouraged them that night to develop trust by masturbating in
front of each other.
A. I did not say that M and S have not great respect for each
other. I presume they still have great trust in each other. They
have been friends for a very long time." 15. On the topic of the small bottle of alcohol, the appellant said: "I felt like a mouth full of alcohol just only 200 mils in the bottle. On the previous camp the leaders sat around and had a bit on one of the nights, having a drink. I just fell back to that." 16. Later the following exchange occurred:
"Q. And what was the purpose again of offering them alcohol.
A. If I was going to have a drink of alcohol they could have
alcohol if they wanted to.
Q. And you thought that was appropriate behaviour in all of the
circumstances.
A. Given the nature of the liquid, that it was - it wasn't
spirits, it was wine, it had a funny flavour because it had a bit
of menthol in the bottle; given that, even if they had drunk the
whole bottle and shared it, it would have been no more than 60
mils each and no more than about one-third of that bottle was
drunk." 17. Mr Borick suggested that the thrust of the prosecution case changed during the trial, but that does not appear to be correct. In her opening, the prosecutor, Ms. P. Kelly, said:
"If you are satisfied after hearing all of the evidence and taking
into account all of the circumstances that the conduct and words
of the accused was such that even though there was no specific
invitation or request to take part in an act which you find to be
grossly indecent, if you're satisfied that the only inference
which can be drawn from the accused's conduct is that his words
and actions must have conveyed to the boys the accused's desire
that they should masturbate in front of him or engage in some form
of sexually intimate behaviour in front of him in circumstances
which you find to be grossly indecent, then you're entitled to
find that the accused did attempt to get the boys to commit an act
of gross indecency and you would be entitled to find him guilty of
the charges with which he presently stands charged." 18. In her final address, she said:
"In other words, members of the jury, he is charged with trying to
get the boys to engage in some form of explicit sexual behaviour,
such as masturbation, which has been very much a part of the
evidence, in front of or even with him. That is the essence of
this case ... No one in this case is suggesting that the accused
actually walked into that cabin that night and said to the boys
'Let's get our pants off and let's get into it'. There was
nothing of that. I want to make it quite clear that the Crown
says the accused's approaches to the boys which constitutes the
attempt were far more subtle than a direct invitation or request
to engage in sexual activity but, members of the jury, because
something is done in a subtle way, it doesn't mean it hasn't
happened, because something is done subtly doesn't mean it didn't
happen." 19. In his direction at the end of the trial, a direction which was most favourable to the appellant, his Honour explained adequately what the law understands by an attempt to commit a crime. His Honour said:
"An attempt to commit a crime is a crime in itself. In assessing
whether such a crime has been committed it must be remembered at
the outset that in order to attempt a crime one must have had an
intention to commit it. That is the basic element. You simply
cannot be guilty of attempting to do something which you do not
positively intend to do. It follows that the first element that
the Crown must prove is that the accused intended to commit the
specified crime, and I shall say something about the concept of an
intention a little later. The next question which arises is how
far does the accused have to go towards committing the crime in
pursuance of such an intention in order to be guilty of attempting
to commit it. To constitute an attempt what is done must go
beyond mere preparation to commit the crime and must amount really
to the beginning of the commission of the crime. The accused must
actually have embarked on the commission of the crime. Such a
step towards the commission of a crime is an attempt, even though
due to inefficiency on behalf of the accused or inadequacy of the
means he has adopted to achieve his purpose, the step which he
takes is incapable of achieving the commission of the crime which
is attempted. Nor does the fact that a person having done
something which amounts to an attempt and then desists voluntarily
from continuing the attempt relieve him from criminal
responsibility for the attempt that he made before desisting. To
constitute an attempt to procure a person to commit a gross
indecency in one's presence, there must be an actual intention to
procure that person to commit such an act. What the Crown must
show is that the accused did something which is a step towards the
commission of the specific crime, something which is immediately
and not remotely connected with the commission of the crime and
the doing of which cannot reasonably be regarded as having any
other purpose than the commission of the specific crime in
question." 20. During the cross-examination of the appellant an incident occurred which Mr. Borick argued was so prejudicial to the appellant that it should be taken into account by the court in considering whether the verdict was unsafe and unsatisfactory. To understand the argument it is necessary to quote a whole passage from the transcript:
"Q. Father, have you ever been physically attracted to teenage
boys.
A. No.
OBJECTION Mr. Borick objects to the question.
MISS KELLY: I would ask to be heard on that matter.
MR BORICK: The plaintiff has been asked and answered and I
withdraw the objection.
OBJECTION WITHDRAWN
XXN Q. Father, would you tell us what your answer to that is.
HIS HONOUR: The answer was 'No'.
MR BORICK: I object to what is about to happen and could the jury
be asked to leave the room. My friend knows very well what this
is.
JURY LEAVES COURT 3.00 P.M. MISS KELLY SUBMITS THAT THIS MAN'S
INTEREST OR LACK OF INTEREST IN TEEN-AGE BOYS GOES TO THE CRUX OF
THE CASE. MR BORICK OBJECTS TO THE EVIDENCE BEING LED. HIS
HONOUR: I will just retire and think about it. I haven't had the
opportunity of seeing the exhibits. ADJOURNED 3.08 P.M." 21. There was no application for a mis-trial. When his Honour returned, and in the absence of the jury, he ruled against the admissibility of the evidence that Ms. Kelly sought to lead about the appellant's alleged sexual association with another boy twenty years earlier. Then the jury returned to the court. The jury of course had not heard the discussion between his Honour and counsel. I am not persuaded that what happened in their presence rendered the verdict unsafe or that it lead to a miscarriage of justice. 22. I have anxiously considered Mr. Borick's other arguments about the verdict, a verdict which surely indicates that the jury believed the boys. I have had regard to the remarks of the High Court in such cases as Morris v. R.
(1987) 163 CLR 454 especially at p 473, and Palmer v. R. (1992) 106 ALR 1 at p 2. I have reviewed the evidence, and I have concluded upon the whole of the evidence, including that of the appellant, and not overlooking the criticisms made by the trial Judge of the evidence of the boys or the fact that this court did not have the advantage of seeing and hearing their evidence, that the verdicts were supportable and appropriate. 23. I would dismiss the appeal.
JUDGE3 PERRY J The appellant appeals against his conviction in the District Court on two counts of attempting to procure two young boys, both aged 15 years, to commit an act of gross indecency in his presence. The convictions followed a trial by a jury which entered a majority verdict on each count. 2. The Notice of Appeal raises two grounds:-
" 1. The Learned Trial Judge erred in law in that he should have
found there was no case to answer on both counts.
2. In the alternative the verdicts of the jury were unsafe and
unsatisfactory and cannot be supported having regard to the
evidence." 3. Before dealing with those grounds, it is necessary to set out some of the history of the matter. 4. The appellant is an Anglican priest who is the rector of the Stirling Parish. He was appointed as associate priest in the Parish in January 1990, and has held office as Rector since May 1991. 5. The offences were alleged to have occurred when he attended a camp for a number of young boys and girls, about 15 in all, who were being prepared for confirmation. The camp was held at Harrowgate in the Adelaide Hills. The alleged victims were schoolboys who had previously been confirmed and who were attending the camp for the purpose of assisting in the preparation of the other children. 6. The children at the camp were accommodated in a number of huts. The two alleged victims shared a hut. I will refer to them as S and M. It was alleged that the offences occurred on a Saturday night, 7 September 1991. The evidence of both boys was that on the preceding Friday night, after they had retired for the night, the appellant came to their hut and engaged in a long conversation. They said that during the course of it he had much to say about sexual matters and in particular masturbation and homosexuality. According to their evidence, on the Friday night he remained in the hut for between three and four hours, and left in the early hours of the morning. 7. Their evidence was that he again entered the hut on the following night, that is the Saturday night, after they had retired to it and that he again remained for a period between three and four hours until the early hours of the next morning. Their evidence was that again, the conversation was dominated by suggestive remarks on the part of the appellant on the same topics. 8. It was not a case where it was alleged that the appellant touched the alleged victims in any way or exposed himself or otherwise committed any act of indecency in their presence. The Crown case was that the things said by the appellant on each occasion in the context of other aspects of his behaviour on the two nights in question, were intended by him to induce the two boys to masturbate in each other's presence and in the presence of the accused on the Saturday night, or at some time in the future. 9. At the conclusion of the Crown case, counsel for the appellant made a submission that there was no case to answer. Although that submission was rejected, the learned trial judge proceeded to invite the jury to consider, without the trial proceeding further, whether the evidence which they had heard so far was insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. That course has come to be known in this state as a Prasad direction (see R v Prasad (1979) 23 SASR 161). 10. The jury did not agree upon an acquittal at that stage, whereupon the trial proceeded. 11. Thereafter the only other evidence was that of the appellant who admitted that he had entered the hut occupied by S and M on both nights and that he had engaged in a conversation during which, at least on the Saturday night, he had referred to sexual matters, including masturbation. He denied some of the specific matters which had been referred to in the evidence of the two boys, and denied that he either had any intention to induce them to commit any indecent act or that he had said anything which could fairly be understood to convey that. 12. In order to deal with the arguments advanced on the hearing of the appeal it is necessary to refer in a little more detail to the evidence of S and M. 13. In doing so I do not distinguish between what was said on the first and second nights unless there is a particular reason to do so. Although it is true that the charges allege that the relevant attempt was "on or about the 7th September", which was the Saturday night, and although the case was put to the jury on the footing that the alleged offences were committed on that night, in considering what inferences were to be drawn from what was said on the Saturday night the jury were clearly entitled to take into account what had occurred on the preceding night. No objection was taken as to the admissibility of the evidence given as to what occurred on the Friday night. 14. Both boys confirmed that the topics of conversation, which were all initiated by the appellant, were predominantly sexual in nature. They included a number of sexual jokes. According to both boys the appellant told them that a number of people living on farms or in the country had sexual relations with animals. According to S the appellant told them that "when masturbating he used to take marijuana which would relax him when masturbating in front of his friends." He went on to say that as a result "they were all relaxed ..... and they were able to have anal sex then because they are (sic) more relaxed." 15. The appellant spoke without disapproval of homosexuality, and according to the evidence of both S and M he told them that there was nothing wrong with adultery. Both boys said that the appellant placed particular emphasis on the matter of masturbation. According to S, at one stage he demonstrated with his wrist how this could best be performed. According to M the appellant asked both boys whether they masturbated, and according to the evidence of both S and M he suggested that they should masturbate in front of each other. Their evidence was that he said that if they did so he would be happy to watch and join in. References to masturbation focused particularly on what was alleged to have been said on the Saturday night. It was on that night that according to M the appellant said "we shouldn't feel ashamed about anything he said or anything we might want to say to him because we were all men and we could trust each other." He went on in his evidence "He said it all through the evening and it kept coming up over and over again. He didn't just say it once." 16. M gave evidence of a specific invitation by the appellant made in the presence of both of them that they masturbate in front of him while watching a pornographic video. According to M the appellant encouraged them not to report back to their parents. According to S when another camp assistant came into the hut on the Saturday evening, the appellant quickly changed the conversation to church matters. 17. Both S and M's evidence was that all of the conversation about sexual matters was initiated by the appellant and that they were embarrassed by it and did not know what to say in response. 18. They gave evidence that on both nights he brought sweets with him, and that on the Saturday night he brought what was described as a 200ml bottle of altar wine. Their evidence was that he repeatedly offered them a drink from the bottle. S reluctantly had one nip, but M refused, despite pressure to do so. 19. Apart from the evidence of S and M and formal evidence tendered as to their ages, the only other evidence proffered by the Crown was evidence of an attendance at the accused's home on 14 February 1992, when he was interviewed by a Detective Boltje. After the latter explained what he had come to talk to him about, the appellant indicated that he had been advised that he should not make a statement. There was no further attempt at interrogation. A search of the appellant's house did not reveal evidence of any pornographic videos. In his evidence the appellant admitted that he had entered the hut occupied by the two boys, but on his account of the matter on the Friday night he was only in the hut talking to them for "some 15 to 30 minutes." Apart from "a few jokes being told" he did not recall specific discussion as to sexual matters on the Friday night. 20. However, he admitted being in the hut on the Saturday night between about 11.00pm and 2.00am. He admitted to an extensive discussion of sexual matters having taken place on that night. He said that the discussion was introduced by his suggestion that there was a problem to know what to do between the ages of 12 or 13 when "nature makes us ready for sex" and the time when people married in their twenties. He admitted that he had spoken of sex with animals, and of people performing sexual acts in front of each other. He denied bringing alcohol into the hut when he first arrived, but admitted that he fetched it from his car during the course of the evening. He admitted that he offered it to the boys, although he denied that he put any pressure on them to drink. He admitted that he had "spent some time with the boys" discussing what he described as five options, to use his words, that is, "having masturbation, sex with somebody of the same sex, sex with someone of a different sex, or doing nothing or finally having sex with animals." 21. The appellant admitted in the course of evidence that he had asked both S and M whether they masturbated, and that he had encouraged them not to be guilty about it. At one point in his evidence he said, "I was advising them masturbation is good." He admitted demonstrating the technique of masturbation using his arm. He further admitted having used from time to time during the course of the evening, crude language and that he had referred to anal sex. He denied having suggested to the boys that they masturbate in front of him and he denied the evidence of M as to a specific invitation that they do so before a pornographic video. 22. The appellant's submission that the learned trial judge erred in law in failing to find that there was no case to answer on both counts raises a question of principle which it is convenient to deal with at this stage. 23. Mr Borick contended that in addressing the question whether the learned trial judge erred in failing to find that there was no case to answer, this court should have regard only to the state of the evidence as it stood at the conclusion of the Crown case. There is a conflict of authority on the point, some authorities tending towards the view that the only true question on appeal is whether on the whole of the evidence there is a miscarriage of justice. 24. In Abbott (1955) 39 Cr App R 141, which concerned the trial of the appellant and another for forgery, the appellant made a submission that there was no case to answer at the conclusion of the case for the prosecution. The trial judge declined to so rule, reasoning that the jury could not at that stage acquit both accused, and that the co-accused's case which sought to throw the whole blame on the appellant, might be prejudiced if the case against the appellant were to be withdrawn from the jury. The appellant then gave evidence. 25. The appellant appealed after the jury had convicted both prisoners. It was held on appeal that having regard to the state of the case against the appellant at the close of the case for the prosecution, it was the duty of the judge to withdraw the case at that stage from the jury and that the conviction of the appellant should be quashed. During the course of their joint judgment, Goddard LCJ, Finnemoore and Devlin JJ said (148):-
" Reliance is placed for the prosecution on Power, a decision of
this court, 14 Cr App R 17, (1919) 1 KB 572; 35 TLR 283, for
this purpose: It is said that if a judge wrongly over-rules a
submission of no case and allows the case to go to the jury and
then prisoners give evidence and one gives evidence against the
other, this Court is not bound to say that it will quash the
conviction because it may take into account the whole of the
evidence given. But Power (supra) did not decide that, if there
was no evidence against a man who was indicted along with another
person, it was right to allow the case to go to the jury against
that man, or that, if there was no evidence against him, it was
other than a wrong decision in law to do so." 26. Abbott was followed in this court in Johnson (1979) 22 SASR 161, see per Mitchell and Williams AJ at pp 182-183, with whose judgment in the relevant respects Jacobs J concurred. In Myall (1986) 43 SASR 258 this Court examined the correctness of a rejection by the learned Trial Judge in that case of a submission of no case to answer on the basis of the evidence as it stood at the conclusion of the Crown case. (See per Matheson J at 262 and per Olsson J at 265). 27. However in Rowley (1986) 23 A Crim R 371 Young CJ, with whom King J concurred, observed (375):-
"....where a submission that there is no case to answer is
overruled and the accused adduces evidence and is convicted, the
question upon an appeal against the conviction is not whether the
ruling on the no case submission was wrong in law, but whether on
the whole of the evidence the verdict is sustainable. If it is,
no substantial miscarriage of justice has occurred: Wood 1974 VR
117". The section of the Crimes Act 1958 (Vic) pursuant to which the appeal was brought in Rowley is for present purposes on all fours with s353(1) of the Criminal Law Consolidation Act 1935. 28. Maric (1978) ALJR 631 20 ALR 513 concerned a refusal by a trial judge to discharge the jury after inadmissible evidence had been adduced. In that case, there is dicta of Gibbs J which would tend to support the position taken in Rowley. See 20 ALR at 520:
" However in my opinion it must be remembered that when a trial
judge has refused an application to discharge a jury, and the
accused has been convicted, the appeal then brought to the Court
of Criminal Appeal is not against the failure to discharge the
jury but against the conviction. In those circumstances I cannot
see any justification for deciding appeals in such cases on any
different principle from that which applies in relation to
criminal appeals generally, ......" 29. As was pointed out by Ms Vanstone of counsel for the Crown, the existence of the proviso in s353(1) of the Criminal Law Consolidation Act, without any indication in the subsection that it is other than of application to all appeals tends in favour of the conclusion reached in Rowley (supra). 30. In my opinion, having noted the point, resolution of the conflicting line of authorities is best reserved for a case where it will be decisive of the outcome. That is not the case here, as even if the matter is to be considered upon the basis of the evidence as it stood at the close of the Crown case, it could not be said that the learned trial judge erred in dismissing the submission of no case to answer. 31. Mr Borick made much of what he described as inconsistencies between the accounts given by S and M as to precisely what was said by the appellant on each of the two nights in question. It is true that there are a number of differences between them as to whether or not certain specific statements were made by the appellant. But it may not be right to characterise such differences as inconsistencies. When two young boys of an impressionable age hear several hours of sexually suggestive conversation, it would be surprising if what registered on one was precisely reflected in the recollection of the other. In any event, there is a considerable degree of common ground not only in their evidence, as between themselves, but also when their evidence is compared with that of the appellant. 32. It is true that the case is unusual in that the jury was invited to convict on the basis of inferences to be drawn from things said by the accused rather than from evidence of any touching of the two boys. But it should not be overlooked that this was a case of an alleged attempt to procure the commission of an act of gross indecency. Mr Borick conceded during the course of his argument that just as the offence of procuring may be established by proof of words alone, so the charge of attempting to procure might be proved by such evidence. Of course, words are never uttered in isolation. They are always spoken or written in a context which must be taken into account in determining what they were intended to convey. 33. In Miskell (1953) 37 Cr App R 214 the appellant, a British corporal serving in Germany, was convicted by a Court-Martial of attempting to procure a boy whom he had met in the street in Hamburg to commit an act of gross indecency with him. On the day before the alleged offence the appellant in that case had spoken to the boy and given him beer and an icecream in a cafe and sat with him in a park. Then he put his arm around the boy and pointed to his private parts. After making some suggestive remarks he suggested that they go to a cinema or for a walk the next night. 34. When they met the next night they set off on a walk, whereupon the appellant was arrested. In the course of their decision Hilbery, Sellers and Barry JJ sitting as a Courts Martial Appeal Court said (219):-
" The law does not, however, punish a man for a guilty intention,
but for the overt act done as part of the carrying out of that
intention. Now the intention of the appellant here was
undoubtedly to procure an act of gross indecency with the boy.
The invitation and the meeting were overt acts. When that
invitation and meeting are considered in the light of the
circumstances in which the invitation was issued and the meeting
took place, it appears to us that those acts cannot be said to be
incapable of being attempts to procure the boy to commit an act of
gross indecency with the appellant. Once it is decided that they
could be so regarded as a matter of law, then the question whether
they were an attempt or not becomes one of fact for a jury or, as
in this case, for the court-martial." 35. In Cope (1922) 16 Cr App R 77 the Court of Criminal Appeal dismissed an appeal against a conviction for attempting the commission of an act of gross indecency. The appellant had learned of the name of a youth living in another town from a fellow employee who had been convicted of committing an act of gross indecency with the youth. The appellant wrote a letter to the youth stating that he was a friend of the other man, that he was going to the town and would like to meet him at a time and on a night which he indicated. The letter was intercepted by the youth's mother and handed to the police. The judgment of the Court was delivered by Trevethin LCJ. In the course of his judgment appears the following passage (82-83):-
" We consider that in order to see whether the letters do contain
such terms that Price would see in them an invitation to commit an
act of gross indecency with the appellant the surrounding
circumstances may and should be examined. See R. v. Roberts,
Dearsley and PCC 539: 1855 Price was a boy known to the appellant
to have committed such an act with Riley. The appellant writes to
Price reminding him of his meeting with Riley,sending Riley's good
wishes, telling him not to be afraid to make himself known to the
appellant, saying that the appellant is going to stay a week in
Blackpool and is anxious to meet him. What would such as boy as
Price was known to the appellant to be understand from such a
letter? We think that there was enough to entitle the jury to find
that Price would have read into it an invitation to repeat with
the appellant the offence which he had committed with Riley, and
therefore that the sending of the letters was an attempt to
procure Price to commit the offence and that the conviction should
stand." 36. Mr Borick argued that the appellant committed no offence if all he did was to talk about sexual matters before the two boys. Furthermore, it is true, as he pointed out, that the inference as to his intention had to be drawn from the same body of evidence as that constituting the actus reus of the alleged offence. But that is not an unusual circumstance. 37. In such a case, if one is to limit the enquiry to the evidence as it stood at the conclusion of the Crown case, the question is whether on that evidence it was open to the jury to find beyond reasonable doubt that the appellant had the intention of procuring the boys to commit an act of gross indecency in his presence either then or at some future time, and that what he said, having regard to the circumstances, constituted an act which was sufficiently proximate to constitute an attempt to carry out that intention. 38. In answering that question, the Crown case is taken at its highest. As it was put in Bilick (1984) 36 SASR 321 by King CJ at 337:-
" On the assumption that all the evidence of primary fact
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 person satisfaction, beyond reasonable
doubt, of the guilt of the accused? That, as it seems to me, was
the question which the learned trial Judge was required to answer
in deciding on the submission of no case to answer." 39. Here, taking the Crown case at its highest, on the evidence of the two boys there was a direct suggestion that they masturbate in front of the appellant. S's evidence was, in part:- " Well, if we wanted to masturbate in front of each other, he would watch and if we wanted him to join in, well, he wouldn't mind, he would join in." 40. M's evidence was, in part:- " He suggested that S should start masturbating." and later: " He did suggest that we masturbate in front of him .... he did say he wanted us to masturbate in front of him." 41. Those passages were sufficient evidence upon which the jury could convict. To the extent that it was necessary to have regard to the surrounding circumstances, the evidence of the circumstances in question in this case gave strong support for the inference which the prosecution invited the jury to draw. Those circumstances included the entry by the accused into the hut occupied by the two boys, which on the Crown case was for several hours leading into the early hours of the morning on both nights; the evidence that on the Saturday night he pressed them to drink alcohol; his "demonstration" of the technique of masturbation and his constant and continuous references to sexual matters of a highly suggestive nature. 42. In my opinion, it was clearly open to the jury to accept the contention of the Crown that the only possible explanation for the appellant's prolonged presence in the boys' hut during the second night was that it was in pursuance of an attempt on his part to procure the commission by them of acts of gross indecency in his presence. 43. Mr Borick argued that the evidence at best proved only acts preparatory to the commission of the crime, and did not amount to evidence of an attempt. 44. But as I have already pointed out, it is clear that words alone may, in appropriate circumstances, constitute the offence of procuring the commission of such acts. As was said by the Court of Criminal Appeal in Cope (supra)
(81):-
"The question how far back along a chain of acts leading up to the
commission of a crime there comes the dividing line between those
acts which are a mere preparation for the commission of a crime
and those which amount to an attempt to commit it is not always
easy to answer. The law on the subject has been considered in a
number of cases and a guiding principle enunciated in R.v
Robinson, 1915, 2 KB 342, where the Lord Chief Justice pointed out
that the difficulty lies rather in the application of the
principle to the facts of a particular case than in discovering
what that principle is. It is clear that in a case like the
present, if the letters contained an invitation in undisguised
terms to commit an act of gross indecency, they would be enough to
support a conviction for an attempt to do so. (R. v. Ransford).
For though there the charge was one of 'inciting,' and here it is
that of 'attempting to procure,' this is immaterial, for the
letters clearly contemplate participation by the writer in the
result of the meeting." 45. In some respects, the present case is a stronger case of an attempt, as in Cope, the incriminating letter did not even reach its addressee. 46. The question whether or not the evidence was capable of amounting to evidence of an attempt was a question of law. In my opinion on the facts of this case the question should be answered in the affirmative. 47. Mr Borick sought to obtain some support from an observation made by the learned trial judge during the course of the "Prasad" direction. His Honour said:-
" Now ladies and gentlemen, the point that I want to make to you
about the evidence as it stands is this, that if you find
yourselves unable at this stage to find what it was that the
accused said and the context in which he spoke about the subject
matters then you may well think that you have an absolutely
impossible task of drawing any inferences as to what the accused
intended to do when he spoke to the boys." 48. However, contrary to the submission put by Mr Borick, it is clear that in that passage the learned trial judge was simply saying that if the jury were unable to be satisfied as to what the appellant had said, then they might well have an impossible task in drawing any inferences as to what the accused intended. That passage does not support the view that the learned trial judge should have withdrawn the case from the jury. 49. In my opinion the contention that the learned trial judge erred in rejecting the submission that there was no case to answer should be dismissed. 50. In the course of dealing with that submission I have dealt with most of the arguments advanced by Mr Borick with respect to the other ground of appeal, namely that the verdicts "were unsafe and unsatisfactory and cannot be supported having regard to the evidence". However I will deal with the remaining arguments which he put forward in support of that ground. 51. Mr Borick submitted that there was a real risk that the jury might have accepted what S and M thought that the appellant had intended, rather than the jury making its own judgment as to the appellant's intention based on any findings which they make as to what was actually said. It may be that something was said by counsel for the prosecution Ms Kelly during the course of her address which could have been construed by the jury in that way. However the matter seems clearly to have been clarified with the jury in the following passage from the learned trial judge's summing up:-
" When Miss Kelly opened the case for the Crown, one of the
matters that she said that I must draw your attention to is this,
'If you are satisfied after hearing all of the evidence and taking
into account all of the circumstances, that the conduct and words
of the accused were such that even though there was no specific
invitation or request to take part in an act which you may find to
be grossly indecent, if you are satisfied that the only inference
which can be drawn from the accused's conduct is that his words
and actions must have conveyed to the boys the accused's desire
that they should masturbate in front of him or engage in some form
of sexual intimate behaviour in front of him in circumstances
which you find to be grossly indecent, then you are entitled to
find that the accused did attempt to get the boys to commit an act
of gross indecency and you would be entitled to find him guilty of
the charges with which he presently stands charged.'
Now that, ladies and gentlemen, I have to point out to you, is
that what counsel put to you in that particular passage
inaccurately states the law. It is not a matter of whether you
can infer that the accused's words and conduct must have conveyed
to the boys a desire on his part to masturbate in front of him,
and you should be very careful, ladies and gentlemen, not to fall
into the same error when considering your verdict. Indeed you
must guard against it. What the Crown must prove, as I have said
earlier, is that he intended to procure them to commit an act of
gross indecency in his presence which is very different from the
passage that I read to you that his words and actions must have
conveyed to the boys a desire. It is not what they thought he
said or thought he meant as a result of what he said." 52. The other feature of the case upon which Mr Borick sought to place reliance in his submissions with respect to this ground of the appeal arises out of a question put to the appellant during the course of his cross-examination by counsel for the Crown. She asked "Father have you ever been physically attracted to teenage boys?" To which he answered "no." Mr Borick then objected to the question, the answer having been given too quickly for him to do so beforehand. He then withdrew the objection but in the absence of the jury proceeded to object in advance to evidence which he thought the Crown might be leading up to. His objection as to those other matters being led was successful, and when the jury returned the Crown did not pursue the topic. 53. The relevant question was answered in the negative and was not pursued. It is true that the jury might have wondered why they were then directed to remain out of court while legal argument took place and might have had some suspicion about the matter. However, looking at the course of the trial as a whole and having regard to the very careful summing up which the jury eventually received, in my opinion that episode in the trial does not provide a basis for this court to overturn the verdict. 54. In my opinion the appellant has not made out either of the grounds of the appeal, which I would dismiss.
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