GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
ALAN JAMES CRAMPTON APPELLANT
AND
THE QUEEN RESPONDENT
Crampton v The Queen [2000] HCA 60 23 November 2000 S233/1999
ORDER
1. Special leave to appeal granted, appeal treated as instituted and heard instanter, and appeal allowed.
2. Set aside order of the Court of Criminal Appeal of New South Wales made on 1 June 1999 and in lieu thereof order that the appeal to that Court be allowed, conviction quashed and a verdict of acquittal entered.
On appeal from the Supreme Court of New South Wales
Representation:
P Byrne SC with M A Marty for the appellant (instructed by MacMahon Associates)
M G Sexton SC, Solicitor-General for the State of New South Wales with S J Gageler and A M Blackmore for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with A S Bell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with I K Haythorpe intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Crampton v The Queen
Criminal law – Direction to jury – Events allegedly occurred in 1978 – Complaint made in March 1997 – Whether Longman warning required – Requirements of Longman warning.
Criminal law – Act of indecency with another male person – Whether defendant entitled to be acquitted on the basis that the evidence did not support a verdict of guilt on the correct interpretation of Crimes Act1900 (NSW), s 81A.
Constitutional law (Cth) – Whether the High Court can entertain grounds of appeal sought to be raised for the first time in the High Court.
GLEESON CJ. The Court has before it an application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales[1] dismissing an appeal against the applicant's conviction, following a trial in the District Court of New South Wales, of an offence against s 81A of the Crimes Act 1900 (NSW).
The principal ground of that application is as follows:
"The applicant has been convicted of an offence under s 81A Crimes Act 1900 (NSW) (in the terms in which the section stood in 1978) on the basis of evidence which clearly fails to establish the elements of that offence and which positively establishes that the offence charged has not been committed, either in the manner alleged or at all."
The basis of that contention is that, on the evidence relied…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ryan v The Queen [2000] HCA 60
Case
[2000] HCA 60
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by a former primary school teacher, the appellant, against his conviction for committing an act of indecency with a male person. The alleged offence occurred in 1978, with a complaint made in 1997 by a former pupil. The appellant's conviction was based on a single charge under s 81A of the *Crimes Act 1900* (NSW), as the jury was unable to reach a verdict on four other charges.
The legal issues before the High Court included whether the trial judge's directions to the jury were adequate, particularly concerning the requirement for a *Longman* warning given the age of the alleged offence and the passage of time since the events. The Court also considered whether it could entertain grounds of appeal and points not previously raised in lower courts, and crucially, the correct interpretation and application of s 81A of the *Crimes Act 1900* (NSW), specifically whether the facts as alleged constituted an act of indecency "with" another male person, as opposed to "towards" or "in the presence of" another male person.
The High Court reasoned that the trial judge's direction to the jury, which stated that an act of indecency "in the presence of" the complainant was sufficient, misstated the requirements of s 81A. The Court held that the wording of the section, "with another male person," required a more direct involvement or interaction than merely being present. Given that the complainant's evidence did not establish any physical contact or participation by the complainant in the appellant's conduct, the Court concluded that the evidence, even if accepted in full, did not support a conviction under the correct interpretation of the section.
Consequently, the High Court allowed the appeal, set aside the conviction, and ordered that a verdict of acquittal be entered.
Orders
Orders of the court
1. Special leave to appeal granted, appeal treated as instituted and heard instanter, and appeal allowed.
2. Set aside order of the Court of Criminal Appeal of New South Wales made on 1 June 1999 and in lieu thereof order that the appeal to that Court be allowed, conviction quashed and a verdict of acquittal entered.
Background
Background to the litigation
Three questions arise in this appeal: whether and in what respects the case called for a Longman[20] direction; may this Court entertain grounds of appeal and points sought to be raised for the first time in this Court; and, what is the true meaning and application of s 81A of the Crimes Act 1900 (NSW).[20]Longman v The Queen (1989) 168 CLR 79.Factual background During the years 1978 to 1988 the appellant was a primary school teacher. He taught children with learning disabilities. Complaints were made in 1997 by two of his former pupils about sexual misconduct by him of various kinds in their presence. Those complaints resulted in five charges against the appellant. The jury were unable to reach agreement on four of them. Only one of the charges is therefore now relevant. As Barr J in the Court of Criminal Appeal of New South Wales observed, the trial had this unusual aspect[21]:"A peculiar feature of the trial was that although in his evidence about the second and third counts [the relevant complainant] said that [the other complainant] was present, no evidence was adduced from [the latter] about those events. Similarly, [the relevant complainant] gave no evidence about the events giving rise to the fourth and fifth counts, notwithstanding that [the other complainant] said that he was present."[21][1999] NSWCCA 130 at [26]. The offence with which this Court is concerned was alleged to have occurred between 31 July 1978 and 1 October 1978. The complainant’s evidence was that the appellant enticed him into a storeroom located at, and opening off, the front of the classroom. There, in the complainant's presence the appellant engaged in sexual activity the details of which are set out in the judgment of Kirby J. There was no voluntary participation by the complainant in the conduct. The appellant, who gave evidence, said that an activity of the kind alleged never occurred and no opportunity for it to occur ever arose or was created. He also said that when he used the storeroom, he never closed the door between it and the classroom. The count on which the appellant was convicted was the offence of committing an act of indecency with the complainant. The charge was brought pursuant to s 81A of the Crimes Act which provided as follows:"Whosoever, being a male person, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of indecency with another male person shall be liable to imprisonment for two years."The section was inserted into the Crimes Act by Act No 16 of 1955. Section 34(2)(f) of the Interpretation Act 1987 (NSW) allows recourse to second reading speeches to assist in educing the meaning of a provision. The debate on the Act of 1955 focused principally on those sections of that Act which were intended to abolish capital punishment in New South Wales. The Attorney-General, the Hon W F Sheahan QC, did, however, say in the second reading speech that the purpose of s 81A was to deal with "the problem of homosexuality"[22] and the section "creates a new offence to cover cases more serious than [male prostitution]"[23]. He also said[24]:"No requirement regarding corroboration has been inserted in the proposed new section 81A. The offence to be created by this section is a 'substantive' one, that is, some act of indecency must have been committed or attempted before a charge will lie. The provision is similar to sections 79 and 81 of the Crimes Act which deal with the offences of sodomy and indecent assault upon a male. There is no statutory provision regarding corroboration in respect of either of these offences, but the general law in regard to the danger of convicting upon the unsupported testimony of accomplices applies. The proposed new section would come within the scope of the general law."[22]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3228.[23]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3229.[24]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3230.
Evidence
Evidence Before The Court
Before embarking on a description of the events said to constitute the appellant's offence against s 81A, it is useful to indicate the appellant's fundamental legal challenge to the accusation against him. Put shortly, the appellant's submission to this Court was that, even if the first complainant's evidence against him were accepted to the full (evidence which he continued to deny), it would not, in law, amount to the offence of the commission of an "act of indecency with another male person". The facts alleged would meet a charge expressed in terms of an act of indecency "towards" another male person or "in the presence of" another male person. But it was not an act of indecency "with" such a person, as the Act then alone provided. With this challenge in mind, I turn to describe the relevant evidence given by the first complainant.The evidence in support of the conviction The first complainant alleged that the appellant, in 1978, whilst teaching a class, had called him from the back of the classroom into a storeroom nearby. In the storeroom the appellant was allegedly standing with his back against a bookshelf. His penis was erect and he was masturbating. According to the first complainant, the appellant closed the door of the storeroom as soon as the first complainant entered. At the trial there was a dispute as to whether the appellant could have closed the door whilst standing where described. In this Court it was agreed that that dispute must be taken to have been resolved against the appellant. Photographs tendered at the trial showed that the storeroom was a small, confined space. The appellant allegedly ejaculated onto the floor and gave the first complainant his handkerchief and told him to clean up the ejaculate. He then allegedly said to the first complainant: "This is what will come out of you when you're older." At the end of this episode, according to the first complainant, he was told to go back to his seat in the classroom. The appellant then continued with the class as normal. The first complainant did not talk to anyone about that day. His explanation was that he was scared and did not understand what had happened as he had never seen anything like it before. It was not claimed that the appellant had touched the first complainant or that he had procured the first complainant to touch him. Such allegations were made in respect of the other counts upon which the jury could not reach a verdict. It was not alleged that the first complainant participated in the appellant's conduct save by watching it, cleaning up the ejaculate as instructed and listening to the statement after the act. Before this Court, the Crown submitted that, in the circumstance that the appellant and the first complainant were male persons, the events described sufficed to constitute the offence. The appellant submitted that they did not.The trial judge's direction concerning the offence Perhaps because the argument now raised by the additional grounds was not presented at the trial, the directions of the trial judge concerning the elements of the offence were relatively brief. As the appellant complains that they fell short of the trial judge's duty to explain those elements to the jury (and, in fact, mis-stated the requirements of the section) it is important to note what the trial judge (Karpin DCJ) told the jury in this respect[84]. Her Honour said:"The words in the indictment which say, 'Did commit an act of indecency with [the first complainant]' referred to an act of indecency in the presence of [the first complainant] so it is sufficient if the Crown has proved beyond reasonable doubt that the accused did those things of which [the first complainant] has told you, and that they were in the presence of [the first complainant]. Those are the two aspects, that he was there, that he saw this, and that is what happened. If you are of the opinion that such an action is indecent, then that is sufficient."[84]R v Crampton unreported, District Court of New South Wales, 14 July 1998 at 12 (charge by Karpin DCJ to the jury).
Decision
Reasons for decision
GLEESON CJ
GAUDRON, GUMMOW AND CALLINAN JJ
HUGH J
KIRBY J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GAUDRON, GUMMOW AND CALLINAN JJ,
HUGH J,
KIRBY J