The Director of Public Prosecutions for the Australian Capital Territory v AW
[2013] ACTCA 35
•29 August 2013
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE AUSTRALIAN CAPITAL TERRITORY v AW
[2013] ACTCA 35 (29 August 2013)
APPEAL – reference appeal – criminal law – s 61 of Crimes Act 1900 (ACT) – whether awareness that an act is indecent according to community standards of indecency is an element of the offence – objective standard applies – not an element of the offence – appeal allowed
Supreme Court Act 1933, s 37S(6)
Criminal Code 2002 (ACT), ss 22, 17(1)
Crimes Act 1900 (ACT), ss 37, 61
Crowe v Graham (1968) 121 CLR 375
Drago v R (1992) 63 A Crim R 59
Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173
Harkin v R (1989) 38 A Crim R 296
Peters v R (1998) 192 CLR 493
Proudman v Dayman (1941) 67 CLR 536
R v Court [1989] 1 AC 28
R v J (1987) 9 NSWLR 615
R v Jones (2011) 209 A Crim R 379
R v McIntosh (unreported, NSWCCA, 26 September 1994)
R v Manson (unreported, NSWCCA, 17 February 1993)
R v Morton (1998) 143 FLR 268
R v Liam Taylor [2010] ACTSC 121
R v Vijay [2013] ACTSC 21
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 41 - 2012
No. SCC 207 of 2011
Judges: Higgins CJ, Katzmann J and Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 29 August 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 41 - 2012
) No. SCC 207 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:AW
Interested Party
ORDER
Judges: Higgins CJ, Katzmann J and Nield AJ
Date: 29 August 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
It is not an element of an offence under s 61(1) of the Crimes Act1900 (ACT) that the accused is aware that his or her act is indecent according to contemporary standards of morality.
IN THE SUPREME COURT OF THE ) No. ACTCA 41 - 2012
) No. SCC 207 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:AW
Interested Party
Judges: Higgins CJ, Katzmann J and Nield AJ
Date: 29 August 2013
Place: Canberra
REASONS FOR JUDGMENT
HIGGINS CJ:
This is a reference appeal brought by the Director of Public Prosecutions for the Australian Capital Territory (DPP). The matter concerns the direction given to a jury on the trial of the interested party (IP).
The IP was charged on indictment dated 30 June 2011 that he:
... on the 1st day of April 2011 at Canberra in the Australian Capital Territory ... committed an act of indecency in the presence of [J], who was then under the age of ten years, namely four years.
The factual situation was that the IP and [L], [J]’s mother, had met via the internet when [J] was four years of age. They married in January 2011. [L] decided to surprise the IP who had taken [J] to the bathroom ostensibly to give her a bath.
On looking into the bathroom, [L] observed the accused sitting on the toilet, with his pants and underwear pulled down. His penis, she said, was exposed and erect. [J] was naked and standing in front of him. [L] was alarmed at this but the IP protested that [J] had pulled his pants down as she was “curious”. The exposure of his penis, he claimed, was merely educational. He disputed that his penis was erect.
Defence counsel, Ms Tonkin, put to the jury that the issue was whether the Crown had proved that that act the IP had conceded he had done was “indecent”. The jury returned a verdict of “not guilty”.
Pursuant to s 37S Supreme Court Act 1933 (ACT), the DPP applied for the determination of a question of law. That is whether it is:
... an element of the offence of committing an act of indecency in the presence of a person who is under the age of 10 years that the accused performed the indecent act in circumstances where he was aware that the act was indecent according to contemporary standards of sexual morality accepted by ordinary decent minded people.
The issue of the awareness by the IP of the nature and quality of his conduct in the presence of [J] was addressed by his Honour in the following terms [AB 181]:
You may think, members of the jury, that this case boils down to two competing options, as it were, because there’s no dispute but that the accused lowered his pants and his underpants in the bathroom at his address in Franklin on 1 April last year in front of [J] and exposed his penis to her. Really the two options seemed to be that he did so for the purpose of sexual gratification or that he did so for the purpose of satisfying her curiosity as a form of sex education.
After pointing to the factual issues between the parties, his Honour referred to the elements of the offence: [AB 190]
Secondly, the Crown must prove that the act was indecent. Now what is an indecent act? For your purposes, an act of indecency is an act that offends against contemporary standards of sexual morality accepted by ordinary, decent-minded but not unduly sensitive people [His Honour then repeated that and continued].
Now, there are few, if any acts, that are inherently indecent. You must consider not only the nature of the act but also the surrounding circumstances, including the motive of the accused for doing the act. Now let me give you an example. We would all agree that to remove the clothes of an unconscious women for the purposes of sexual gratification would be indecent. But to do exactly the same thing – to remove the clothes of an unconscious woman – for the purpose of providing necessary medical treatment would not be considered to be indecent.
Although not relevant to the current matter, an act could also be indecent if performed for the purpose of sexual humiliation of the victim rather than sexual gratification of the actor and, of course, the reference to medical treatment is not exhaustive, for example, first aid in an apparent emergency would also be acknowledged as not indecent. In that context his Honour also pointed out, correctly in my opinion, that, even if done for the purpose of satisfying curiosity, the jury might well consider the exposure of an erect penis to a young person to be indecent.
The next part of the direction is challenged by the appellant [AB 191 – 2]:
Finally, the Crown must prove that at the time he did the act the accused intended to do an indecent act. Another way of putting it is that the Crown must prove that he performed the act in circumstances where he was aware that his act was indecent according to contemporary standards of sexual morality accepted by ordinary decent-minded people.
... But you must ask yourself whether it is possible that the accused did not know or believe his act was indecent according to contemporary standards of sexual morality accepted by decent, ordinary-minded people.
... If you think it possible that he did not intend to do an indecent act, you cannot be satisfied of this element beyond a reasonable doubt and you would acquit the accused.
The issue now falling for decision was clearly raised by Ms Jowitt, for the Crown, in her exception to that portion of his Honour’s direction which referred to the awareness of the accused that his acts would offend the relevant community standard. Ms Tonkin, for the accused, submitted that his Honour’s direction was supported by the decision of the New South Wales Court of Appeal in Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173.
The Question
The standard by which the indecency of the act in question was to be adjudged is not in dispute.
In R v Liam Taylor [2010] ACTSC 121 at [11] I referred to the classic formulation advanced by Lord Griffiths in R v Court [1989] 1 AC 28, 35. I repeat that formulation:
Whether or not right-thinking people will consider an action indecent will sometimes depend upon the purpose with which the act is carried out. An obvious example is the examination of an unconscious woman’s private parts. If carried out by a doctor for a proper medical purpose no-one would consider such an examination indecent, if carried out by a stranger for a prurient interest everyone would consider it indecent.
... The fact is that right-thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent.
My reasons continued:
12.The question thereafter (for example, Phillips v Police (1994) 75 A Crim R 480) is not merely of offensiveness or even immorality, it is whether it is indecent according to the standards of ordinary, decent-minded, but not unduly sensitive, persons in this community.
13.His Honour [Crispin J in R v Morton (1998) 143 FLR 268] continues at [26]:
In my view one must begin by asking whether the conduct in question is capable of amounting to an indecent act. If it is not so capable then an improper motive will be incapable of converting it into one. On the other hand, if it is capable of amounting to an indecent act then the motive and/or intention of the accused may be determinative of whether it was in fact indecent.
14.I respectfully adopt that approach to these allegations of committing an indecent act.
I further added:
15.It must also be proved that the act was not only indecent but both intentional in the sense of being deliberately performed and in circumstances where the accused is aware that the act would be regarded as indecent by the standards of right thinking members of the community.
Usually, there will be little doubt as to whether, if the accused did perform the act complained of, he or she was aware of the community attitude to such an act (see, for example, R v Vijay [2013] ACTSC 21).
There was an issue in that case as to whether the accused performed the acts complained of for the purpose of remedial massage or, there being no other rational alternative, the purpose of sexual gratification or, perhaps, sexual humiliation of the complainant.
The question of what are the community standards is not a question of law. It is a question of fact for the jury to determine.
It is appropriate to give further consideration to R v Court [1989] 1 AC 28.
In that case, the accused man had delivered a spanking to the buttocks of a young girl. He told police he had a “buttock fetish”. Did his admission render the assault “indecent”?
Lord Keith of Kinkel, agreeing with Lords Griffiths and Ackner, pointed out that “a wicked intention” was an essential ingredient for indecent assault. For some assaults the circumstances may be unequivocally indecent. The spanking of the buttocks of the girl in this case was, in itself, equivocal. However, it was capable of being considered to be indecent if -
(33) ... it was the assailant’s intention to use the victim for the purpose of gratifying a peculiar sexual instinct, and that his action did in fact amount to a using of her for that purpose ...
Lord Fraser of Tullybelton agreed with all three referred to above.
Lord Griffiths referred to “indecency” –
(34) ... By indecency is meant conduct that right-thinking people will consider an affront to the sexual modesty of a woman.
His Lordship noted also that in the circumstances to characterise the act as indecent required an extra mental element –
(34) ... namely, an intent to do something indecent to the woman in the sense of an affront to her sexual modesty or, in other words, an intent to do that which the jury find indecent.
(34) ... The fact is that right thinking people do take into account the purpose or intent with which an act is performed.
Lord Griffiths (at 35) pointed out that there was a difference between motive and intent and continued –
... But to illustrate what I mean in the context of indecent assault, the necessary intent is to commit an assault which the jury as right-thinking people consider to be sexually indecent. The motive for such an act will usually be to obtain sexual gratification but it need not necessarily be so. A man might strip a woman in public with the motive of obtaining sexual gratification or, alternatively, with the motive of revenge to humiliate her; but whichever his motive he would undoubtedly be guilty of indecent assault because his intentional stripping of her clothing is an indecent affront to her sexual modesty. Motive generally throws light on intention and is therefore generally admissible to prove intention.
On the role, then, of motive or purpose in carrying out the act complained of, his Lordship noted (at 35):
Whether or not right-thinking people will consider an action indecent will sometimes depend upon the purpose with which the action is carried out.
The example is given of a medical examination of an unconscious woman for a proper medical purpose. Similarly, with the spanking of a girl’s bottom. If done by virtue of a desire to punish her for a perceived affront that would be one thing. To satisfy a buttock fetish is quite another and would no doubt be viewed as indecent.
An example referred to by Lord Ackner (at 39) which relates to the purpose or intent of the act complained of is a touching accompanied by words betraying an indecent intention. It would not be regarded as indecent if it emerged that the words were maliciously given to the person to repeat (he not understanding them) as a malicious joke on that person.
His Lordship accepted that, if the circumstances of the assault are incapable of being regarded as indecent, then the undisclosed intention of the perpetrator would not make it indecent (at 42). For example, removing a shoe from a person to gratify a shoe fetish.
It was also agreed by his Lordship that the purpose of the accused to gain sexual gratification is not essential.
(43) ... Whether he did so for his own personal sexual gratification or because, being a misogynist or for some other reason, he wished to embarrass or humiliate his victim, seems to me to be irrelevant.
However, as Lord Griffiths noted, the purpose may be regarded as sexual whether it is the sexual gratification of the perpetrator or not. After all, it would be an indecent act if it was to gratify someone else rather than the perpetrator just as much as if done for the sexual humiliation of the victim.
Even if sexual gratification was derived, Lord Ackner pointed out that that would not convert, say, a proper and necessary intimate medical examination into an indecent assault unless, of course, that examination was not really necessary. Even so, the purpose of falsely obtaining consent would make it indecent, even if the purpose was some sort of private research (at 44).
His Lordship, therefore, concluded:
(45) ... on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in so doing he intended to commit an indecent assault i.e. an assault which right-minded persons would think was indecent.
Hence the purpose of the accused was relevant.
Lords Keith and Fraser agreed with Lords Griffiths and Ackner whilst Lord Goff dissented.
The view to be taken of what is indecent seems well enough settled (see Crowe v Graham (1968) 121 CLR 375; Harkin v R (1989) 38 A Crim R 296, 299 – “indecent meant contrary to the ordinary standards of morality of respectable people within the community”; Drago v R (1992) 63 A Crim R 59, 73 – “offends against community standards of decency, may depend not only upon the nature or quality of the act in itself, but upon the motive or purpose of the actor”).
Peters v R (1998) 192 CLR 493 affirms the analogous proposition that a jury should be instructed “dishonesty” is to be adjudged by reference to the standard of “ordinary honest people” see at 510 [37] per Toohey and Gaudron JJ.
How much does the accused need to appreciate that his conduct falls short of that standard? What is the subjective element?
Kirby J (at 550 – 555), in dissent, pointed to the fundamental importance of subjective intention (at 552):
To the extent that an accused puts forward idiosyncratic, bizarre, eccentric or peculiar beliefs to support an assertion of a want of dishonesty, such considerations go, in my opinion, only to the plausibility of the accused’s evidence. If the tribunal of fact accepts the evidence and it sustains an absence of dishonesty at the relevant time, it will sustain an acquittal where dishonesty is an essential ingredient of the offence.
There are two observations concerning this formulation. First, it is troubling that a bizarre view of sexual propriety might excuse a person who acted on it even if aware that it offended contemporary community standards. Second, it would be sufficient for an acquittal that reasonable doubt existed as to whether the offender was aware of the community standards or held a belief that they did not apply to him or her. That is particularly troubling when applied to sexually motivated acts, indecent by community standards, but thought acceptable by the accused.
As Kirby J was in dissent in Peters, he supported the opinion of Toohey and Gaudron JJ in preference to his own. Their view, at 503, referred to the “incongruity” of a test that refers to community standards and, then, asks whether the accused knew that he or she was acting contrary to those standards. Their view was that it was sufficient for the jury to be instructed that whether the accused had acted dishonestly was to be judged by reference to the standards of ordinary, honest people. It was not necessary for the accused to be shown to have known what were those standards. The accused must know of the facts and circumstances which would, by that standard, render his or her acts dishonest.
Bearing this in mind, I note the case of R v Morton (1998) 143 FLR 268. The accused had, it seemed, been sexually assaulted by a 7 year old. Was that an act of indecency by the accused? Did it make it indecent that the accused derived some kind of sexual gratification or arousal from it?
Crispin J, at 276, began by –
... asking whether the conduct in question is capable of amounting to an indecent act. If it is not so capable then an improper motive will be incapable of converting it into one. On the other hand, if it is capable of amounting to an indecent act then the motive and/or intention of the accused may be determinative of whether it was in fact indecent. There may also be some acts which are so intrinsically indecent that no motive or intention, however benign, could have the effect of depriving them of their indecent character.
With respect, I consider this analysis to be correct.
The role of intention or purpose was referred to also in R v Jones (2011) 209 A Crim R 379. The prosecution case was that the accused, an ambulance officer, indecently assaulted the complainant whilst carrying out an electrocardiogram (ECG), but the particular ECG was not for the original examination but a “follow-up” outside of any treatment requirement. The trial judge directed the jury that it was the actual nature of the procedure, not the appellant’s motive that was relevant. That direction, White JA, for the Court, held to be erroneous. As her Honour noted at (388 – 389):
The quality of “indecency” is pre-eminently a question for a jury and where there is evidence capable of casting doubt upon the sexual quality of the alleged assault, the motive of the alleged offender must go to the jury for their deliberation and decision.
I return to the matter of Eades v DPP (NSW) (supra) referred to by Ms Tonkin. She contended, as I have noted, that it supported the requirement that an accused person not only have acted in a manner that an ordinary right-thinking person would take to be indecent, including the motive or intention of that person to act sexually rather than for a non-sexual purpose, but must know of those standards and intend to contravene them.
That is not what Eades v DPP (NSW) (supra) decided. The complainant had sent a photograph of herself, naked, in a text message to the alleged offender at his request. As Basten JA noted:
[7] ... It is well-established that identification of an act as indecent is an objective question determined by reference to the standards of decency held by right-thinking members of the community.
However, whether or not the act is indecent will, as the foregoing authorities recognise, often depend on the intent or purpose of the person committing the act. That purpose may, as in R v McIntosh (unreported, NSWCCA, 26 September 1994), lead to a conclusion that an otherwise equivocal act should be characterised as indecent. As in R v Jones (supra), it may lead to a contrary conclusion.
Campbell JA in Eades v DPP (NSW) (supra) referred to a number of cases where the act complained of, though not unequivocally indecent in itself, became so characterised when the surrounding circumstances, including the purpose or intention of the accused, was considered:
[61] ... The law does not proceed on the basis that right-minded persons make a decision about whether an act is contrary to community standards of decency by an artificial exercise of abstracting an action performed from the context in which it is performed.
In the present case, the issue was whether the accused had a sexual motive or purpose in acting as he did, or at least, whether there was a reasonable doubt as to whether his purpose was sexual gratification in the sense I explained earlier, or to “educate” the young girl as he claimed. In the latter case, a jury could consider that the community standard was not violated and find as they did.
The issue as to whether he was aware that to so act with a sexual intent would offend the community standard did not arise. It was apparent that the accused was well aware that his act would be so regarded if it was for the purpose of his sexual gratification.
Nonetheless, it follows that both Burns J and I were wrong to add to the relevance of the intent or purpose of an accused a further requirement of awareness of the community standard, albeit that, in this case, the result would not have differed.
To put it expressly, an act of an accused may be so unequivocally indecent that no innocent intent or purpose is credible. More usually, as in this case, there may be evidence raising a doubt as to whether, notwithstanding the act is prima facie in contravention of community standards of decency, it would not, if that intent or purpose existed, be so considered. If so, the act would not in the light of that assumed purpose or intent, be regarded by ordinary right-thinking persons as indecent. It does not however, deprive an act of the categorisation of it as indecent, that the accused entertained a view that the act was not indecent according to his or her own eccentric view of indecency.
Section 22 of the Criminal Code 2002 (ACT) was raised in favour of a conclusion that not only must the alleged act of indecency be voluntary and intentionally done but it must also be done with knowledge that, even having regard to the purpose or intent of the accused, the community would regard the act as indecent.
In this case, the case put for the accused, both on the facts and the law, was that his purpose in exposing himself was not sexual gratification or sexual in any other sense than a form of sexual education. His motive or intention was relevant to whether, despite his admitted exposure of his penis to a child, the act was indecent. It was open to the jury to have entertained a reasonable doubt on that issue. In truth there was no issue that, if he had exposed himself for sexual gratification in the sense in which that term was used in R v Court (supra), it would have been open to the jury to conclude that contemporary standards of decency had been infringed whether or not he was aware of those standards.
The IP also raised a question of the applicability of the Proudman v Dayman (1941) 67 CLR 536 defence. That is not in any way diminished by the application of the objective standard of what is indecent, particularly where that categorisation depends on the intent or purpose of the accused or of being an act not capable of an innocent interpretation.
As discussed in Eades v DPP (NSW) (supra) some acts of an accused, even if undertaken for sexual gratification, cannot be described as indecent. For example, watching or photographing school children at play or frolicking in a swimming pool. Other acts, as in R v Court (supra), would be regarded as indecent if accompanied by a prurient intention. Prurient intention need not be personal sexual gratification (see R v Manson (unreported, NSWCCA, 17 February 1993). If the act performed is, in all the circumstances, including the purpose or intention of the accused, capable of being regarded as indecent according to contemporary standards of ordinary, right-thinking persons, it is a question of fact for the relevant tribunal of fact whether it should, beyond reasonable doubt, be so characterised in the particular case.
It is true to say that, in this case, even absent a reference to awareness of the community standard of decency, it was open to the jury to have acquitted the IP. Indeed, lack of awareness of the community standards of decency was not suggested. The jury was correctly and carefully directed on the importance of the accused’s intention or purpose in exposing himself as he conceded he had done. He was acquitted as a result of doubt as to that issue.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Higgins.
Associate:
Date: 29 August 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 41 - 2012
) No. SCC 207 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:AW
Interested Party
Judges: Higgins CJ, Katzmann J and Nield AJ
Date: 29 August 2013
Place: Canberra
REASONS FOR JUDGMENT
KATZMANN J:
On 3 August 2012 the accused was acquitted of an offence under s 61(1) of the Crimes Act 1900 (ACT) (“Crimes Act”). Section 61(1) makes it an offence to commit an act of indecency on, or in the presence of, another person who is under the age of 10 years.
The question of law posed by the Director of Public Prosecutions (“DPP”) in this reference appeal is whether it is an element of the offence that the act be performed in circumstances in which the accused is aware that the act was indecent according to contemporary standards of sexual morality accepted by ordinary decent-minded people. The question is a substantive one, the significance of which is not confined to the trial in which it arose (R v J (1987) 9 NSWLR 615 at 616). I accept that it is suitable for determination in an appeal of this nature.
I have had the benefit of reading a draft of the Chief Justice’s judgment. I gratefully adopt his Honour’s description of the facts and the other background material.
I agree with his Honour’s conclusion. The short answer to the question is therefore “no”. I shall briefly explain why.
In the course of his summing up the trial judge stated:
In deciding whether the act of the accused was indecent, you must take into account his stated motive – to satisfy the curiosity of [J] as a form of sex education – if you think it possible he had that motive.
The DPP does not quarrel with this direction and it was undoubtedly correct. The accused’s motive or, more accurately, his purpose or intention is part of the context in which the act took place and may provide an innocent explanation for it. Here, the accused’s evidence was that the child would persistently tug at his shorts, on occasions pulling them down “some way”, and was preoccupied with his groin. Ultimately, he testified that on the day of the alleged offence, just before he was going to bath her, she again tugged at his shorts. Exasperated by her behaviour and in order to satisfy her curiosity, he pulled down his trousers and underpants and showed her his penis. There was no suggestion in the evidence that he had invited or encouraged the child to touch his penis. He denied that his penis was erect at any relevant time and he also denied that he was seeking sexual gratification. On this version, his behaviour was devoid of any sexual connotation. If the jury thought this explanation might be true, it was open to them to decide that in the circumstances ordinary decent-minded persons would not think that what he had done was indecent (R v Court [1989] AC 28 (“Court”) at 44‑5 per Lord Ackner). That is because ordinary decent-minded persons “do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent” (Court at 35 per Lord Griffiths; cf. Drago v R (1992) 63 A Crim R 59 at 73 per Murray J; Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173 at [61] per Campbell JA, Beazley JA agreeing at [1]). A smack on the bottom to discipline a child might be considered wrong by contemporary standards but it would not be considered indecent. On the other hand, it would be open to a jury to find a smack on the bottom by an admitted sadist to be indecent. Similarly, a medical practitioner who touches a patient’s breasts during a medical examination would not be regarded as committing an act of indecency unless his purpose or intent was to acquire sexual gratification.
The trial judge also directed the jury that the Crown must prove beyond reasonable doubt that at the time the accused did the act complained of he intended to do an indecent act, failing which the accused was entitled to be acquitted. His Honour then described the relevant intention as “perform[ing] the act in circumstances where he was aware that his act was indecent according to contemporary standards of sexual morality accepted by ordinary, decent-minded people”. Save for the judgment in R v Taylor [2010] ACTSC 121 (“Taylor”) there appears to be no authority for the proposition that the accused must be aware that his act was indecent according to the relevant standards. Certainly, this Court was referred to none and none was cited in Taylor.
Much of the argument for the interested party was concerned with emphasising the presumption that a guilty mind (or intent) is a necessary ingredient of criminal responsibility. It is common ground that there is a fault element in the offence. As the fault element is not prescribed by the legislation, the fault element is intention: Criminal Code 2002 (ACT) (“Criminal Code”), s 22. So much may be accepted, but it begs the question. What must the accused intend to do? The DPP did not contend that the offence is one of strict liability. In substance his argument was that to be guilty of the offence the accused must have intended to commit the act and that the act was indecent (in that it offends against contemporary standards of sexual morality accepted by ordinary, decent-minded but not unduly sensitive people). His case was simply that it was not an element of the offence that the accused was aware that his act was indecent according to those standards.
The DPP is right. The impugned direction should not have been given. Whilst the Crown must prove that the accused intended to commit the indecent act, it is enough that he “mean[t] to engage in the conduct” – see Criminal Code, s 17(1)). In other words, the Crown needs to prove that the accused meant to commit an act that is indecent, that is, an act which offends against the relevant standards. Usually intention can be inferred from the surrounding circumstances. If the act is not unequivocally sexual (for indecency has a sexual connotation), then the Crown must prove that the accused intended to derive sexual gratification from it (Harkin (1989) 38 A Crim R 296 at 301). But that is all. The Crown does not also have to prove that the accused was aware that what he was doing was indecent according to contemporary standards. It is irrelevant that the accused might have been ignorant of those standards.
It follows that I agree with the Chief Justice that it is not an element of an offence under s 61(1) of the Crimes Act that the accused be aware that his or her act is indecent according to contemporary standards of morality and that the statement to the contrary in Taylor at [15] should not have been made.
The appeal should therefore be allowed. This outcome does not affect the jury’s verdict of acquittal: Supreme Court Act 1933 (ACT), s 37S(6).
I certify that the preceding paragraphs numbered fifty-eight (58) to sixty-eight (68) are a true copy of the Reasons for Judgment herein of her Honour Justice Katzmann.
Associate:
Date: 29 August 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 41 - 2012
) No. SCC 207 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:AW
Interested Party
Judges: Higgins CJ, Katzmann J and Nield AJ
Date: 29 August 2013
Place: Canberra
REASONS FOR JUDGMENT
NIELD AJ:
I have read the reasons of Higgins CJ and Katzmann J and I agree with their reasons and with their proposed orders.
I certify that the preceding paragraph numbered sixty-nine (69) is a true copy of the Reasons for Judgment herein of his Honour Acting Justice Nield.
Associate:
Date: 29 August 2013
Counsel for the Appellant: Mr Jon White
Solicitor for the Appellant: Director for Public Prosecutions for the ACT
Counsel for the Interested Party: Ms A Tonkin
Solicitor for the Interested Party: Director for Public Prosecutions for the ACT
Date of hearing: 1 May 2013
Date of judgment: 29 August 2013
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