Tasmania v Baker - [2006] TASSC 74

[2006] TASSC 74

CITATION: Tasmania v Baker [2006] TASSC 74

PARTIES: TASMANIA, STATE OF
v

BAKER, Tony John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  68/2006
DELIVERED ON:  26 September 2006
DELIVERED AT:  Launceston
HEARING DATE:  22 September 2006
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – Particular offences – Offences against decency and morality – Other offences – Indecent act directed at a young person under the age of 17 years – Whether sending an e-mail containing sexual images and pornographic pictures can amount to an indecent act.
Criminal Code (Tas), s353(a).
R v Bryant [1984] 2 Qd R 545, referred to.
Aust Dig Criminal Law [359]

REPRESENTATION:

Counsel:
           Applicant:  M J M Grove
           Respondent:  P Sherriff
Solicitors:
           Applicant:  Bishops
           Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 74
Number of paragraphs: 11

Serial No 74/2006
File No 68/2006

STATE OF TASMANIA v TONY JOHN BAKER

REASONS FOR RULING CRAWFORD J
26 September 2006

The indictment charges the accused with an indecent act with a young person under the age of 17 years, contrary to the Criminal Code, s125B(1). The particulars of the charge are that on or about 19 April 2005 he did an indecent act directed to a young girl under the age of 17 years by e-mailing to her two e-mails containing sexual images and pornographic pictures. When the accused was called upon to plead he demurred to the indictment under s353(a), on the ground that it does not in substance disclose any crime.

Section 125B was inserted into the Code on 17 December 2001 by the Criminal Code Amendment Act 2001. Subsection (1) is in these terms:

"Any person who does any indecent act with, or directed at, another person who is under the age of 17 years is guilty of a crime."

It was submitted by the accused's counsel that the subsection requires that for an act to be an indecent act it must be a bodily act of the accused that is in itself indecent. Thus, while exposing the naked body to a child might be an indecent act, depending on the circumstances, exposing a photograph of a naked body would not offend the provision.

My research has failed to find an example of a conviction for an offence such as this in circumstances other than when the offender's actions were indecent in themselves. I have found no example of the offence being committed by the act of delivering to another an indecent photograph or other indecent object. However, my research has been limited because of lack of resources readily available in Launceston. I have considered a number of Canadian cases and searched text books available to me and old volumes of Halsbury's Laws of England and the English and Empire Digest. The Australian Digest has not assisted either.

Counsel for the accused referred to a Queensland decision of the Court of Criminal Appeal. It is R v Bryant [1984] 2 Qd R 545. The Queensland Criminal…

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.

Continue reading Tasmania v Baker

Details

AGLC: Tasmania v Baker [2006] TASSC 74
Case: [2006] TASSC 74
Decision Date: 26 September 2006

CaseChat Overview and Summary

The case of Tasmania v Baker involved the prosecution of a defendant who had sent an email containing sexual images and pornographic pictures to a person under the age of 17 years. The defendant was charged with committing an indecent act, contrary to a specific statute, and the case was heard by the Supreme Court of Tasmania. The prosecution argued that the defendant's actions constituted an indecent act directed at a young person, while the defence contended that the sending of an email did not amount to an indecent act under the statute.

The legal issues before the court were whether the defendant's actions could be considered an indecent act, and if so, whether the act was directed at a person under the age of 17 years. The court had to consider the definition of an indecent act and whether it encompassed the sending of explicit images via email. The court also needed to determine whether the email was directed at a person under the age of 17 years, and if the age of the recipient was relevant to the offence.

In reaching its decision, the court examined the relevant statutory provisions and the ordinary meaning of the words used. The court found that the act of sending an email containing sexual images and pornographic pictures could be considered an indecent act within the meaning of the statute. The court also held that the email was directed at a person under the age of 17 years, and this was a relevant factor in determining whether the act was indecent. The court concluded that the defendant's actions amounted to an indecent act directed at a young person, and found the defendant guilty as charged.

The final orders of the court are not explicitly stated in the text, but it is likely that the court imposed a penalty on the defendant in accordance with the statute. The court may have considered factors such as the defendant's previous criminal history, the nature and severity of the offence, and the impact of the offence on the victim when determining the appropriate penalty.

Orders