The Queen v Daniel McDonald and Dylan Deblaquiere

[2013] ACTSC 122

THE QUEEN v DANIEL MCDONALD AND DYLAN DEBLAQUIERE
[2013] ACTSC 122 (27 June 2013)

CRIMINAL LAW – Jurisdiction, Practice and Procedure – Adjournment, Stay of Proceedings or Order Restraining Proceedings – application for permanent stay of proceedings on the basis of abuse of process – application dismissed

CRIMINAL LAW – Particular Offences – Offences Against the Person – committing an act of indecency without consent s 60(1) of the Crimes Act 1900 (ACT) – definition of ‘indecency’ – whether acts may gain the character of indecency from their circumstances – they may – consent must be to the act and the circumstances

CRIMINAL LAW – Particular Offences – Offences Against the Person – using a carriage service to menace, harass or cause offence s 474.17(1) of the Criminal Code Act 1995 (Cth) – definition of ‘carriage service’ – definition of ‘offensive’ – whether regard may be had to “all the circumstances” – “all the circumstances” may be considered

Classification (Publications, Films and a Computer Games) Act 1995 (Cth), s 11
Crimes Act 1900 (ACT), ss 60, 67
Crimes Act 1900 (NSW), s 61N(1)
Crimes Act 1958 (Vic), s 47(1)
Criminal Code Act 1995 (Cth), ss 473, 474.17(1), Dictionary
Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth)
Medical Practitioners Act 1938 (NSW)
Telecommunications Act 1997 (Cth), s 7

Court Procedures Rules 2006 (ACT), r 4733(c)(ii)

Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth)

Adultshop.com Ltd v Members of the Classification Review Board (2007) 243 ALR 752
Baillon v Bull (1795) 2 H Bl 463; 126 ER 651
Cohns Industries Pty Ltd v Deputy Commissioner of Taxation (1979) 24 ALR 658
Crowther v Sala (2007) 170 A Crim R 389
Director of Public Prosecutions v Collins [2006] 4 All ER 602
Eades v Director of Public Prosecutions (NSW)(2010) 77 NSWLR 173
Earl of Pembroke v Warren [1896] 1 IR 76
Papadimitropoulos v The Queen (1957) 98 CLR 249
Pregelj v Manison (1987) 88 FLR 346
R v Court [1989] AC 28
R v DM [2010] ACTSC 137
R v Gillard (1999) 105 A Crim R 479
R v Goodwin (2009) 233 FLR 473
R v Harkin (1989) 38 A Crim R 296
R v Leece (1996) 65 FCR 544
R v Manson (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Clarke JA and Sully J, 17 February 1993)
R v McIntosh (Unreported, NSW Court of Criminal Appeal, Badgery-Parker, Bruce JJ and Loveday AJ, 26 September 1994)
R v Mobilio [1991] 1 VR 339
R v Smith [1974] 2 NSWLR 586
R v Smith [1995] 1 VR 10
Tasmania v Baker (2006) 168 A Crim R 148
Walton v Gardiner (1993) 177 CLR 378
Wright v McMurchy (2011) 211 A Crim R 535

No. SCC 405 of 2011
No. SCC 346 of 2011

Judge:             Refshauge J
Supreme Court of the ACT

Date:              27 June 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 405 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

R

v

DANIEL MCDONALD

ORDER

Judge:  Refshauge J
Date:  27 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for a stay of the indictment be dismissed.

IN THE SUPREME COURT OF THE     )
  )          No. SCC 346 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

R

v

DYLAN DEBLAQUIERE

ORDER

Judge:  Refshauge J
Date:  27 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for a stay of the indictment be dismissed.

1. Daniel McDonald and Dylan DeBlaquiere, the accused, commenced employment as cadets with the Australian Defence Force Academy in January 2011, as did the complainant.

1. The Crown alleges that on 29 March 2011, Mr McDonald had consensual sexual intercourse with the complainant in his bedroom at the Academy.  Before the complainant arrived, however, it is alleged that Mr McDonald had initiated a connection through Skype with Mr DeBlaquiere on his computer.  Skype is a software application allowing multimedia communication over the Internet.

1. The Crown case is that, while Mr McDonald and the complainant were engaged in sexual intercourse, their activity was being transmitted to a computer operated by Mr DeBlaquiere and that the sexual activity was watched by him and five other cadets, though the complainant was unaware of this.

1. The transmission subsequently came to light and the complainant made a formal complaint.  As a result, Mr McDonald and Mr DeBlaquiere have been charged with the following offences:

   THAT on about 29 March 2011 or 30 March 2011 DANIEL

   McDONALD committed an act of indecency on [the complainant] without her consent, and was reckless as to whether she was consenting.

   SECONDAND FURTHER THAT on about 29 March 2011 or

   COUNT30 March 2011 at Canberra aforesaid DANIEL McDONALD used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive.

   THIRDAND FURTHER THAT on about 29 March 2011 or 30 March

   COUNT30 March 2011 at Canberra aforesaid DYLAN DEBLAQUIERE used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive.

1. On 15 December 2011, Mr McDonald and Mr DeBlaquiere were committed for trial in this Court.

1. An indictment containing the above counts was filed on 20 January 2012.  On 28 February 2012 they were arraigned on the indictment and entered pleas of not guilty to each count.

1. By application dated 13 September 2012, both accused have sought a permanent stay of the proceedings.  The application was based on the ground that the prosecution of Mr McDonald and Mr DeBlaquiere was bound to fail and that, accordingly, the continuation of the proceedings was an abuse of process.

ABUSE OF PROCESS

1. In Walton v Gardiner (1993) 177 CLR 378, the High Court considered the basis on which a stay of proceedings for abuse of process would be granted. Mason CJ, Deane and Gaudron JJ said in that case (at 392-3):

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.  Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.  [See, e.g., Metropolitan Bank v Pooley (1885), 10 App Cas 210 at pp 220-221; General Steel Industries Inc v Commissioner for Railway (N.S.W.) (1964), 112 CLR 125 at pp 128-130].

1. Their Honours went on to consider other examples, not presently relevant.

1. That was a case of disciplinary proceedings against three medical practitioners before the NSW Medical Tribunal constituted under the Medical Practitioners Act 1938 (NSW). It is clear, however, that the power of a court to stay proceedings for abuse of process is not limited to civil proceedings.

1. The principles were considered by the Appeal Division of the Supreme Court of Victoria in a criminal case, R v Smith [1995] 1 VR 10. In that case, each of the judges separately articulated the principles, though in relevantly identical terms.

1. Brooking J described the appropriate test (at 15):

The decision of the High Court in Walton v Gardiner (1993) 177 CLR 378 shows that whether the proceedings are civil or criminal the test is the same when one is considering whether the proceedings are an abuse of process by reason of the fact that they cannot succeed. Civil or criminal proceedings are an abuse of process, not if it can be said of them only that they will very likely fail, but if it can be said of them that it is quite clear that they must inevitably fail. So it was laid down in Walton v Gardiner by Mason CJ, Deane and Dawson JJ at 393 that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.

1. Byrne J said (at 28):

It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but ‘clearly foredoomed to fail’;  or in the words of Brennan J the vice is the institution of proceedings ‘which will inevitably and manifestly fail’.

1. Eames J held (at 40):

For the purpose of this appeal counsel for the Director accepted, without conceding the point, that, in an appropriate case, the trial judge did have inherent power to stay a prosecution where it was established that the prosecution case was fatally flawed.  Notwithstanding the reluctance of the Crown to concede that such power does indeed exist, the matter has been put beyond doubt by the High Court:  Walton v Gardiner (1993) 177 CLR 378 at 393. In that case, in the joint majority judgment, the court held that, irrespective of the purpose of the person responsible for the initiation and maintenance of the proceedings, it would be an abuse of process if the proceedings were clearly seen to be ‘foredoomed to fail’.

1. This approach was followed by the Full Court of the Federal Court of Australia in an appeal from this Court in R v Leece (1996) 65 FCR 544 at 554-5 where Gallop and Hill JJ referred to these cases and followed them, noting, however, that such a remedy is exceptional. Their Honours said (at 555):

Once it is accepted that the grant of a stay is an exceptional remedy, it will follow that it would only be in the rarest of cases, and the present is not such a case, that a stay would be granted upon the basis that the evidence proposed to be led by the Crown will not support a conviction.

1. It is these principles by which I am bound and which I should and will apply.

THE OFFENCES

1. Mr McDonald has been charged with offences against s 60(1) of the Crimes Act 1900 (ACT) (committing an act of indecency without consent) and against s 474.17(1) of the Criminal Code Act 1995 (Cth) (using a carriage service to menace, harass or cause offence). Mr DeBlaquiere has been charged only with the latter offence.

1. Section 60 of the Crimes Act is relevantly in the following terms:

(1)A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who is reckless as to whether that other person consents to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years.

...

(3)For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.

1. It is to be noted that this provision is different from the correlative provisions of criminal legislation in some other States and Territories in Australia, where the offence is one of indecent assault rather than of committing an act of indecency. Even where assault is not required (such as in offences like s 47(1) of the Crimes Act 1958 (Vic)), the linguistic form of the offence is relevantly different. Thus, decisions in other jurisdictions must be approached with some caution, though are not necessarily to be ignored.

1. As to “indecency”, I said in R v DM [2010] ACTSC 137 at [219]-[221]:

219The meaning of indecency is now well-known.  In R v Court [1989] AC 28 (at 42), Lord Ackner said:

The judge in assisting the jury in his summing up as to the meaning of an indecent assault adopted, inter alia, a definition used by Professor Glanville Williams, Textbook of Criminal Law, 2^nd ed (1983), p 231:  “‘indecent’ may be defined as ‘overtly sexual.’”  This is a convenient shorthand expression, since most, but not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may have only sexual undertones.  A simpler way of putting the matter to the jury is to ask them to decide whether ‘right-minded persons would consider the conduct indecent or not.’  It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.

See also per Lord Griffiths (at 5).

220This approach has been adopted in Australia.  In R v Manson (New South Wales Court Criminal Appeal, Gleeson CJ, Clarke JA, Sully J, 60773/91, 60820/91, 17 February 1993, unreported) Gleeson CJ referred (at 3) to, inter alia, R v Court and then said:

An indecent act is one which right-minded persons would consider to be contrary to community standards of decency.  In the New Zealand case to which I have just referred the following was said:

The word indecent has no definite legal meaning and it must be taken therefore in its modern and popular affection.  In the Standard Dictionary indecent is defined to be anything that is unbecoming or offensive to common propriety.

If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification.  On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent depending upon the circumstances of the particular case.  The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent.  On the other hand, it would certainly not require such a conclusion.

221This approach has been followed in this Territory:  R v Morton (1998) 143 FLR 268 (at 275); R v Taylor [2010] ACTSC 121 (at [11]).

1. Section 474.17(1) of the Criminal Code Act provides:

(1)A person is guilty of an offence if:

(a)the person uses a carriage service;  and

(b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty:  Imprisonment for 3 years.

1. I note that the Dictionary to the Criminal Code Act defines “carriage service” as having the same meaning as in the Telecommunications Act 1997 (Cth), which, in turn in section 7, defines it as “a service for carrying communications by means of guided and/or unguided electromagnetic energy”. In addition, the Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth), which inserted s 474.17, creating the offence in question, identifies the following acts as constituting use of a carriage service: “making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet.”

1. The new section also had the effect of removing the exception for Internet content that had been part of s 85ZE, the former provision enacting the previous offence.

1. There was no challenge in this application to the allegation of the Crown that the transmission of the filming of the sexual activity was the use of a carriage service.

1. The Explanatory Memorandum, to which I referred above (at [22]), also explains that the language of the offence contained in the section was expressly directed to removing any subjective element from the statement of the offence.  It stated:

The proposed offence is broader than existing subsection 85ZE(1) in relation to menacing or harassing use of a carriage service, because it removes the requirement that the recipient be in fact menaced or harassed and replaces it with an objective standard.  The proposed offence provides that reasonable persons must regard the use of the carriage service, given all the circumstances, as menacing, harassing or offensive.  This allows community standards and common sense to be imported into a decision on whether the conduct is in fact menacing, harassing or offensive.

1. While “offensive” is not defined in the Criminal Code Act, there is guidance which is close to a definition given in s 473.4 of the Criminal Code Act.

1. The word is, absent a definition, to be given its ordinary meaning.  As was said in Earl of Pembroke v Warren [1896] 1 IR 76 at 96:

... the word ‘offensive’ ... means what causes offence, which I take to be equivalent to annoyance, that is well-founded and reasonable annoyance ...  ‘Offensive’ has not, in my opinion, any definite legal meaning, any more than ‘annoyance’ or ‘grievance’ and it must be interpreted ‘secundum subjectam materiam’.

1. In the context of the offence that prohibits behaving in an offensive manner, Street CJ, with whom McClemens CJ at CL and Nagle J agreed, said in R v Smith [1974] 2 NSWLR 586 at 588:

It is dangerous, as has been pointed out by Kerr J as he then was in Ball v McIntyre [(1966) 9 FLR 237] to substitute glosses put upon this section in other judgments for the words of the section itself. I have no difficulty in concluding that the offence constituted by the words ‘behaves in an offensive manner’ means behaviour of the character generally described within the third of the Oxford English Dictionary’s meanings, that is to say, offensive in the sense of giving, or of a nature to give, offence;  displeasing;  annoying;  insulting.  No one of these words in the dictionary is a precise alternative to the word ‘offensive’.  The word has its own meaning, and its own meaning is to be determined by reference to this context in the section.

1. Section 473.4 of the Criminal Code Act provides:

473.4   Determining whether material is offensive

The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:

(a)the standards of morality, decency and propriety generally accepted by reasonable adults;  and

(b)the literary, artistic or educational merit (if any) of the material;  and

(c)the general character of the material (including whether it is of a medical, legal or scientific character).

1. This does not define the term “offensive” but it does require the court to have regard to the matters set out in the section when coming to the meaning of the word. 

THE FACTS

1. The allegations of the Crown were set out in a Case Statement filed under r 4733(c)(ii) of the Court Procedures Rules 2006 (ACT). The history and function of such a statement has been described in R v Goodwin (2009) 233 FLR 473 at 478-9; [26]-[35]. As is to be expected on an application such as this, the factual context within which it is to be considered is taken from the Case Statement but I am making no final findings of fact and, unless otherwise specified, all the matters of fact are, at this stage, merely Crown allegations.

1. The complainant and Mr McDonald met through their employment as cadets at the Australian Defence Force Academy.  They engaged in some communication through the online social networking website, Facebook.  They discussed what was described as a “friends with benefits” arrangement, that is, friends engaged in a sexual relationship.

1. On 29 March 2011, the complainant agreed to a “friends with benefits” arrangement with Mr McDonald, but with conditions, one being relevantly that it was confidential between them and neither of them would tell anyone else in the Academy about it.  Mr McDonald agreed.

1. The two also agreed to meet that night for the purposes of sexual activity.

1. Later that afternoon, Mr McDonald told Mr DeBlaquiere that he was to have sex with a female cadet that evening.  Mr DeBlaquiere sent a text message suggesting the sexual activity be filmed.  They then agreed that, during the encounter with the complainant, Mr McDonald would activate his computer’s webcam, a small video camera which allows users to stream video to others via the Internet.  They would use this to broadcast the sexual activity to Mr DeBlaquiere’s computer in his room.

1. At about 8:00 pm that night, Mr McDonald and the complainant made arrangements to meet at 11:45 pm.

1. At 11:44 pm, Mr McDonald activated his computer, connecting it to the Internet and at 11:52 pm logged on to Skype.

1. Shortly before midnight, the complainant met Mr McDonald and went to his room where they engaged in consensual sexual intercourse.  At times during the activity, Mr McDonald made gestures towards the webcam on his computer.  During this time, Mr DeBlaquiere was, with five other cadets, watching the sexual intercourse on his computer.  The complainant had no knowledge of the fact that the sexual intercourse was being filmed and broadcast.  The complainant did not consent to the filming or broadcasting;  indeed, it was contrary to the conditions under which she had agreed to enter into the arrangement with Mr McDonald.

1. Later that evening, when the complainant returned to her room, she discovered that she had received a message on Facebook from Mr McDonald suggesting that their sexual intercourse had been broadcast.  The complainant responded, stating “Please tell me I wasn’t on webcam?” and Mr McDonald telephoned her, telling her that he did not have his webcam activated and that the message must have been posted by a friend as a joke.

ACT OF INDECENCY WITHOUT CONSENT

1. The first part of the application by Mr McDonald was that the first count on the indictment, charging him with committing an act of indecency on the complainant without her consent, was doomed to fail and, therefore, should be stayed.

1. It was submitted that the sexual intercourse was the act referred to in s 60 of the Crimes Act and that it was consensual. The Crown expressly disavowed reliance on s 67 of the Crimes Act, which set out circumstances under which consent may be negatived.  Accordingly, it was clear that the Crown accepted that the consent to the sexual intercourse was a real and operative consent.

1. Mr P Priest QC, who appeared with Mr A Burns and Ms C Carnell, for the accused, submitted a version of the facts from the Case Statement as follows:

The essence of the prosecution case as distilled from the Case Statement is that the act of indecency was Mr McDonald engaging in (otherwise consensual) sexual activity when he knew or was aware that any (otherwise consensual) activity engaged in by himself and the complainant would be broadcast to others when the complainant was not aware that sexual activity was being broadcast to others (and had expressly indicated to the accused that nobody else was to find out about any sexual activity between them).

[emphasis in the original]

1. It seems to me that this is too narrow. While Mr McDonald’s awareness of the broadcasting is one way in which the Crown case could be put from the Case Statement, it could also be his participation in the making of the broadcast that would make it an act of indecency for which he can be prosecuted. Again, the lack of awareness of the complainant was not the issue, but her lack of consent. Had she consented to the sexual intercourse being broadcast, the act may well still be one of indecency but Mr McDonald could not be prosecuted for it under s 60 of the Crimes Act.  The complainant’s lack of awareness would also be evidence of her lack of consent, supported by her earlier express condition that no-one else should find out about the activity.

1. Mr Priest further submitted that the common law made it clear that an improper purpose for which sexual intercourse was committed did not deprive consent to such intercourse of its full force and effect.  He referred to R v Mobilio [1991] 1 VR 339, where the court considered a charge of rape. The accused was a radiographer who, in the course of conducting an ultrasound examination on a complainant, introduced a transducer into the complainant’s vagina which he claimed was for the purposes of a transvaginal interior ultrasound examination. That examination had not been requested by the complainants who attended the medical practitioner, but the complainant was held to have consented to the procedure. The court said (at 344):

Difficulties have arisen where the woman consented to what was in fact sexual intercourse but later discovered that her consent was given due to her having made a mistake.  In some cases she was mistaken because she did not know at the time that the act was one of sexual intercourse but thought it to be another act altogether.  In other cases, while she knew the act was one of sexual intercourse, she believed the man had a purpose which would have rendered the intercourse moral, ethical and socially acceptable but later discovered he had a different purpose which rendered it immoral, unethical or socially unacceptable.

In our opinion it is established in Australia by the High Court that if the woman consented to the act knowing it to be an act of sexual intercourse, no mistake as to the man’s purpose deprives her consent of reality.  The consent is real even though the act of intercourse, having been done for the purpose the man actually had, may wear a different moral complexion from that it would have worn if done for the purpose the woman believed he had.

In the situations mentioned above, the woman’s consent is deprived of reality only if she was mistaken so that she did not know that the proposed act to which she consented was an act of sexual intercourse, but believed that she was consenting to an act of an essentially different nature and character.  For the man to be guilty of rape he must have known that the woman was only consenting to an act essentially different in nature and character from sexual intercourse, or have realised that she might only be consenting to an essentially different act.

1. The Court then referred to Papadimitropoulos v The Queen (1957) 98 CLR 249 where the Court identified “... the essential inquiry, namely, whether the consent is no consent because it is not directed to the nature and character of the act.”

1. Section 67 of the Crimes Act had been enacted to expand the circumstances where consent was negated to overcome such rulings.  It was pointed out by Mr Priest, however, that the Crown expressly eschewed reliance on that section.

1. Mr Priest submitted that the act, the sexual intercourse, had been entirely consensual;  accordingly, the offence could not be made out.

1. Mr Priest further submitted that the terms of the charge were important because, while s 60(1) of the Crimes Act referred to “act of indecency on or in the presence of”, the count on the indictment had specified “act of indecency on [the complainant]” (emphasis added).  The word “on” in that context, he submitted, indicated “the destination or the focus of an action or a movement”.  Thus, he submitted, it could only be the sexual intercourse that was the “act” referred to in the count, for this was the only act committed on the complainant.

1. Ms K Weston-Scheuber, who appeared for the Crown, submitted that the act of indecency was a combination of the sexual intercourse in the circumstances of being transmitted to others.  She submitted that the act of indecency was:

engaging in sexual intercourse, having set up a webcam, knowing that the sexual activity is going to be broadcast to a room full of other people and the complainant doesn’t know that.

1. She referred to a number of decisions which addressed what was an act of indecency.  In R v DM at [225]-[228], I summarised a number of them, saying:

225.The only remaining question is whether the taking of the photograph was an act of indecency.

226.In R v AWL [2003] SASC 416, Debelle J (with whom on this issue Prior and Bleby JJ agreed) held that the taking of a photograph by the appellant of himself naked with his erect penis placed on a pillow was an act of indecency.

227.In DW v The Queen (2004) 150 A Crim R 139 (at 144-5 [15]) the ACT Court of Appeal implicitly accepted that a man who walked around with his genitals exposed could have been guilty of committing an act of indecency.

228.Finally, in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241, the NSW Court of Criminal Appeal held that a complainant’s act of sending to the applicant a photograph of herself naked as an attachment to a text message could constitute an act of indecency.

1. What is important is what Campbell JA said in Eades v Director of Public Prosecutions (NSW)(2010) 77 NSWLR 173 (as now reported) at 185; [61]:

There is justification in principle for it being permissible to take matters of context into account in deciding whether an act that is incited is one of indecency.  It arises from the test, stated in R v Manson and set out at 180 [39] above [see [20] above], for what is an indecent act. 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. That is so whether the act in question is one actually performed, or one that one person is urging another to perform. Any of the surrounding circumstances that right-minded persons would take into account in deciding whether a particular action was contrary to community standards of decency can be taken into account in deciding whether the offence under s 61N(1) has been committed.

1. There the court was considering a charge under s 61N(1) of the Crimes Act 1900 (NSW), which proscribes “incit[ing] a person under [the age of 16 years] to an act of indecency”. The applicant had been charged with the offence arising out of the circumstances where the complainant, after some enticement by the applicant, sent to him a full frontal photograph of herself standing, nude, from the top of her head to about her knees. The court held that he could be convicted of the offence.

1. It seems to me clear that, with respect, what Campbell JA there said is quite correct.  Many acts gain the character of indecency from the circumstances.  For example, engaging in consensual intercourse in a classroom full of young children would clearly be indecent, whereas in a private room, obviously without the young children, would not.  This approach was clear at least in 1987:  Pregelj v Manison (1987) 88 FLR 346 at 368. Similarly, a digital examination of the vagina of a comatose woman by a gynaecologist for strictly medical purposes would not be indecent, but the same acts by a non-medical stranger would be. See R v Court [1989] AC 28 at 35.

1. It is seductive to say that it is the consent to sexual touching or activity that deprives an action of its indecent character, but that is neither what I consider the words mean nor the structure of the section.  If, in fact, it is the lack of consent that gives the sexual touching or activity the character of being indecent, then the words “without the consent of that person” are otiose because, on that interpretation, the act could not be indecent unless there was no consent;  it would be a tautology.

1. There is further nothing  illogical in positing that one’s consent to an action or activity may be dependent on the circumstances.  Thus, one may consent to sexual intercourse, but not if it is to take place in a classroom full of young children;  the action is consented to but not in the particular circumstance which means that there is no consent to the act having the relevant character of indecency – there is no consent to the act of indecency.

1. Mr Priest did submit that “[a]ny sexual activity between people is indecent unless it’s accompanied by the appropriate consent”.  That may be true, but the opposite is not true;  it is not the case that all consensual sexual activity is not indecent.  The above example (at [53]) shows that.  Of course, such activity may not constitute committing an act of indecency on or in the presence of the other participant but that is not the point.

1. Mr Priest properly pointed out that one must not “conflate the two notions.”  As he submitted, “[o]ne must look at the indecent act and one must then look at the consent and to see what the consent relates to”.

1. With respect, that must be right, but in order to identify the indecent act, I am satisfied that one cannot divorce the action from that which makes it indecent.  It is, as he submitted, the “indecent act” – the act of indecency – that is the subject of the charge.  However, it seems to me that it is the physical movement, activity or action, together with the circumstances, which constitutes the act of indecency and to which the consent is directed.

1. Lee CJ at CL, with whom Wood and Matthews JJ agreed, did say in R v Harkin (1989) 38 A Crim R 296 at 301:

It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation.  That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault.  The genitals and anus of both male and female and the breast of the female are the relevant areas.

1. It is clear, however, that this description was not, and was not intended to be, exhaustive.  Later in the same paragraph, his Honour added:

The purpose or motive of the appellant in behaving in that way is irrelevant.  The very intentional doing of the indecent act is sufficient to put the matter before the jury.  But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.

1. Similarly, in my view, where a sexual action is not inherently indecent, in order for it to constitute an act of indecency, a court can, and indeed must, have regard to the circumstances which may make it indecent, and it is to both the action and the circumstances to which the consent must be directed.

1. The Crown submitted that if the complainant had consented to the broadcast of the sexual intercourse, no offence would be made out.  That is true, but only because there was no lack of consent, an essential element of the offence.  That did not, of itself, deprive the activity of indecency;  that is a different question and, of course, one for the jury.  See Tasmania v Baker (2006) 168 A Crim R 148 at 151; [10].

1. Although not directly on point, the decision of the NSW Court of Criminal Appeal in R v Gillard (1999) 105 A Crim R 479 is at the very least consistent with the approach I have taken and, in my view, supportive.

1. There, a married couple were convicted of committing an act of indecency towards a child complainant.  They engaged in consensual sexual intercourse accompanied by an invitation to the complainant child to watch and participate.  The court held that they could be convicted of the offence.  The court said at 487;  [63]:

But what was alleged here was not merely consensual intercourse between husband and wife, it was allegedly accompanied by an invitation to, and encouragement of, the young person to watch and in respect of count 7, to join in.  The intercourse, although not an indecent act in itself, became indecent when carried out in front of the young person, with the invitation and encouragement to watch which were both directed to or in the direction of the young person.

1. There was no issue of consent because a child was involved, but the act of indecency was not the clearly consensual intercourse, but the circumstances that it was engaged in, with a child present and invited to participate, are matters external to the sexual intercourse itself.

1. Some support is also to be found in Wright v McMurchy (2011) 211 A Crim R 535 where a taxi driver who took photographs of female passengers, described as “up-skirt” photographs, was convicted of doing an indecent act in a public place. In that case, of course, the act was not merely the taking of photographs, but the totality of what was done which was indecent. I do not consider that there is any material difference when the action is the sexual intercourse where the circumstances of being covertly filmed made it an act of indecency.

1. Accordingly, I am satisfied that the prosecution is not doomed to fail because the complainant, on the Crown case, consented to sexual intercourse. 

1. The first part of the application must fail.

USING A CARRIAGE SERVICE TO CAUSE OFFENCE

1. Both accused also applied for the other two counts on the indictment to be stayed as an abuse of process for the same reason, namely that they were bound to fail.

1. The basis for this contention was that the section establishing the offence, namely s 474.17 of the Criminal Code Act, required that Mr McDonald and Mr DeBlaquiere must be proved to have engaged in conduct which, objectively viewed, had to be offensive.  The fault element was that they either intended or were reckless as to their participation in such conduct.

1. The Crown case was contained in the following paragraph of the Case Statement:

The circumstances in which the conduct of both accused is said to be offensive according to the standards of reasonable people is that the Skype connection between the accused was used to broadcast to the accused DeBlaquiere and others sexual activity engaged in by the accused McDonald with the complainant.  This was in circumstances where the complainant was not aware of, and did not consent to, the sexual activity being broadcast over Skype, and the two accused were aware of that lack of knowledge.

1. Mr Priest submitted that the irremediable flaw in the prosecution case was that the section would require the reasonable person determining whether the use of the carriage service was offensive to be fixed with the knowledge of the circumstances, namely, that Mr McDonald was broadcasting the sexual intercourse he was having with the complainant to Mr DeBlaquiere who was watching with others and that the complainant was unaware of this, all of which was external to the bare nature of the transmitted material itself.

1. This, he submitted, was not what the law required.  He referred to what the Court of Appeal in Queensland had said in Crowther v Sala (2007) 170 A Crim R 389. In that decision, Philip McMurdo J, with whom Muir J agreed, held that s 474.17(1)(b) was a physical element of a circumstance and that, as there was no specified fault element, the fault element was recklessness. His Honour said (at 398; [47]):

In my view there is no implied exclusion of the fault element for paragraph (b) of s 474.17(1). What must be proved is that objectively viewed the conduct was menacing and that the defendant either intended that it be so or was reckless as to that fact. In each case both the physical and fault element must be proved. So an intention to menace would not suffice if the conduct, in all the circumstances, would not be regarded by reasonable persons as menacing.

1. Mr Priest submitted that there was, therefore, an objective standard, namely what reasonable persons would regard as offensive, and that the section neither required nor permitted a reasonable person to be fixed with “a subjective state of knowledge”.

1. He submitted that the transmission of pictures of consensual sexual intercourse could not be offensive.  His submission to this effect was as follows:

Explicit sexual material on the internet is ubiquitous.  Thus using a carriage service to transmit sexually explicit material cannot per se be offensive. Were it otherwise, the very great number of internet sites transmitting pornography would fall foul of s 474.17.

[emphasis in the original]

1. Thus, without the subjective knowledge of the participants in the sexual intercourse, and particularly the complainant, and applying what remained to the test of offensiveness, no reasonable person could regard the transmission as offensive.

1. Mr Priest pointed out that the section required that the use of the carriage service be “in a way, whether by the method of use or the content of a communication, or both, that reasonable persons would regard as at being ... offensive”.

1. He submitted that, if one excludes the mere transmission of the sexual intercourse (the content), the lack of knowledge of the complainant is neither a matter of the method of use or the content.

1. He submitted that “method of use” in the section was directed towards the situation where persons misused the carriage service.  His example was as follows:

To go to an example with which we would have all been familiar prior to the internet, it was frightfully common – I think it still may be – for individuals, for example, to use a telephone to ring somebody and when the person at the other end picked up the phone, there was either deadly silence or there was heavy breathing or some other offensive noise being made.  Now, clearly that’s a method of use which is offensive.

Another example, which is more in the modern world, it’s frequently common in what we call intervention orders in Victoria – I think they might be called apprehended violence orders in other places – it’s frightfully common to have somebody bombarded with text messages, for example, hundreds, sometimes thousands of text messages.

1. He submitted that to add the knowledge (or lack of it) of the complainant (and, perhaps, of the accused) to the facts to be known by the “reasonable person” would be to render the consideration a subjective one rather than an objective one.

1. It was accepted, as I understood it, that it would be open to a reasonable person to find that the transmission of two persons engaging in sexual intercourse without the consent of one of the parties was offensive, but that, it was submitted, is not what the section allowed to be proved.

1. What he was putting was that the section required the reasonable person to have regard to the

use or the content of the communication focusing on the method of use and content of the communication divorced from the subjective state of mind of one of the participants.

1. Where the content showed that one of the participants was apparently clearly not consenting, Mr Priest accepted that this could be considered by the putative reasonable person.  That, he submitted, was objective rather than subjective and so permissible as something to which the reasonable person could have regard.  It was not what the facts of the present case showed.

1. There are, however, a number of difficulties with these arguments.

1. In the first place, s 474.17(1)(b) refers to the reasonable person regarding the use of the carriage service as “in all the circumstances” being offensive. These words must be given meaning and, in my view, encompass those matters that are relevant to the question of whether the use of the carriage service was offensive. That it was a matter that could not be determined from merely viewing the material transmitted does not seem to me to be decisive. There are many examples where such additional information would be necessary to determine whether something is offensive. Indeed, s 473.4 of the Criminal Code Act makes that clear.  The same images of a digital examination of a woman’s vagina would be of a quite different character if, on the one hand it was showing the person making the examination otherwise unidentified but who in fact was a gynaecologist where the transmission was to a group of medical students in the course of distance education, as opposed to a non-medical person in a transmission to a group of sixteen year old boys for the purposes of sexual gratification.  Merely viewing the material may not enable a trier of fact to say that either of these was an offensive transmission or not, but the circumstances, which the section expressly requires to be taken into account, would give the material transmitted its offensiveness.

1. Secondly, while s 473.4 of the Criminal Code Act sets out matters to which the trier of fact must have regard, when determining whether a use of a carriage service is offensive, it does not exclude the circumstances of the use which is expressly provided for in s 474.17.

1. Section 473.4 uses the word “include” and this would ordinarily mean that the following list is non-exhaustive. Whether that is so or not is not always easy to determine. As the Full Court of the Supreme Court of Victoria said in Cohns Industries Pty Ltd v Deputy Commissioner of Taxation (1979) 24 ALR 658 at 660:

When the word ‘includes’ is used in a definition section, it is generally used to enlarge the meaning of the word it describes, that is to say to bring within the word something that would otherwise not be within it:  Savoy Hotel Co v London County Council [1900] 1 QB 665 at 669. The classic statement is of course to be found in the advice of the Privy Council in Dilworth v Comr of Stamps [1899] AC 99 at 105, which was quoted by the learned trial judge. Yet in a passage that is worth quoting, Kitto J has warned against taking that statement so literally as to reduce the inquiry to a consideration of the meaning of the word ‘includes’. In YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 401-2; [1964] ALR 667 at 670, Kitto J said: ‘Unlike the verb “means”, “includes” has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v Comr of Stamps [1899] AC 99 at 105, 106, should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word “includes”. Strictly speaking, that word cannot be equivalent to “means and includes”. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if “means” had been the verb instead of “includes”. The question whether a particular provision is exclusive although “includes” is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.’

1. Section 473.4 is not, strictly, a definition section and so it seems to me more likely than not that the use of the word “include” is non-exhaustive and suggestive, that is, that it is not the use that “its object is the whole of its subject”.

1. This is supported by the approach Jacobson J took, in Adultshop.com Ltd v Members of the Classification Review Board (2007) 243 ALR 752, to the considerations taken into account by the Classification Review Board in classifying a film. Section 11 of the Classification (Publications, Films and a Computer Games) Act 1995 (Cth) is in very similar terms to s 473.4 but his Honour appears to have had no difficulty with the Board taking into account other matters, such as the effect of the proposed classification on the classification system as a whole (at 761; [61]). The Board, also apparently unexceptionally, took into account, as well, expert evidence and survey evidence not mentioned in the section, the general character of the film and the likely audience (at 761-2; [62]-[65]).

1. In any event, it seems to me that what is at issue is the factual basis on which the evaluation to which s 473.4 is directed. The absence of knowledge of the complainant is part of the circumstances to which s 474.17 expressly requires the reasonable person must have regard and to which the evaluative process in s 473.4 is directed. It is not part of the evaluation to which s 473.4 is directed.

1. There is no support in s 473.4 for the approach for which Mr Priest contends.

1. Thirdly, it seems to me that Mr Priest placed the notion of objectivity in the wrong place.  It is clear that the test of offensiveness is objective, as the authorities make plain.  While that means that the subjective feelings of the participants are irrelevant, they are only irrelevant so far as any feeling of those participants about whether the transmission is offensive or not is concerned.  Other aspects of the feelings of the participants may be very well important.

1. As the New South Wales Court of Criminal Appeal said, though of the question of an act of indecency rather than for offensiveness, in R v Manson (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Clarke JA and Sully J, 17 February 1993), at 3:

If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification.  On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case.  The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent.  On the other hand, it would certainly not require such a conclusion.

1. It seems to me that the same approach applies.

1. The difference between subjectivity and objectivity is clearly shown in R v McIntosh (Unreported, NSW Court of Criminal Appeal, Badgery-Parker, Bruce JJ and Loveday AJ, 26 September 1994) at 3, where the Court said:

To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances.  These circumstances may show that what otherwise would be indecent was not – for example, an examination of a woman’s vagina, ordinarily an indecent act when conducted by a stranger, would not be indecent if conducted by the woman’s medical practitioner for medical purposes.  The ‘surrounding circumstances’ include the intention or purpose of the alleged wrongdoer.  If the medical practitioner in the example given was conducting the examination not to treat his patient but for his own sexual gratification the examination would be an indecent act (see Manson page 3).

1. Notwithstanding this, the court held that evidence of statements made by the complainants about the effect of the appellant’s conduct was inadmissible, Loveday AJ, with whom Badgery-Parker and Bruce JJ agreed, said (at 4):

Mr Howie QC, the Acting Solicitor General, who appears for the Crown, submits that the feelings of the victims, although not expressed at the time of the conduct, were relevant and admissible, being some evidence that objectively the appellant’s conduct was indecent.  He concedes that the weight of that evidence was likely to be slight.  In support of his submission he refers to the former practice of adducing evidence from police officers in offensive behaviour charges who frequently gave evidence that they were offended by the act in question.  I do not agree with this submission.  The requirement that the conduct of the alleged wrongdoer be tested objectively means that the feelings of the victim, be they of objection, consent or indifference, are generally irrelevant.  The victim may even be unaware of the conduct and yet that conduct may satisfy the test of indecency.  Evidence of objection, or consent, expressed by the victim to the alleged wrongdoer at the time of the conduct is, of course, admissible as part of the res gestae and the surrounding circumstances.  Being so admitted it does not prove or disprove that the act was indecent because the Victim objected or consented.  It is merely part of the circumstances of the conduct to be considered by the tribunal.  At the most in some cases, if the witness can be regarded as an appropriate indicator of community standards the evidence may be relevant on the general question of whether the act can be considered to satisfy the objective test the Court has to pose for itself in deciding whether the act is indecent.

1. This is applicable here:  the lack of knowledge of the complainant that the sexual intercourse in which she engaged with Mr McDonald was being broadcast is very relevant to whether the use of the carriage of service was offensive.  This does not rely on any subjective view of the complainant that it is offensive, and any such statement by her would, strictly speaking, be inadmissible.  That, however, does not either make her lack of knowledge inadmissible or render the task of the trier of fact a subjective one.

1. Fourthly, some support can be found in the decision of the House of Lords in Director of Public Prosecutions v Collins [2006] 4 All ER 602 on which Ms Weston-Scheuber relied.

1. In that case, the court had to consider what might be regarded as the equivalent legislation in England and Wales which made it an offence to send by “a public electronic communications network a message or other matter that is grossly offensive”.  Lord Bingham of Cornhill, with whom Lord Nicholls of Birkenhead and Baroness Hale of Richmond agreed, said (at 607-8;  [9]):

The parties agreed with the rulings of the Divisional Court that it is for the justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances.  I would agree also.

1. Fifthly, I do not accept that because material of the same kind can regularly be found on the Internet, it cannot be offensive.  Mr Priest’s submission, quoted above (at [75]), is essentially that material such as consensual sexual intercourse is freely available on the Internet and so cannot be regarded as offensive.

1. It may be accepted that such material is available on the Internet.  I cannot accept that this necessarily means it cannot be offensive.  This court knows only too well, and I consider that I can take judicial notice of such a fact from the cases that this court unfortunately has to hear from time to time, that material available on the Internet includes material such as child pornography, bestiality and serious cruelty.  That such material is available cannot per se render it inoffensive.  Even if it could be said that the ubiquity of some material would render it inoffensive, that must be in particular circumstances.  For example, transmission of explicit material to young children would be clearly offensive.

1. This must be a question for the trier of fact, having regard, as the section provides, to all the circumstances.

1. Finally, Mr Priest submitted that the fact that the complainant was unaware that the sexual intercourse in which she was engaged with Mr McDonald meant it could not come within the section because it was neither part of the content or the method of use, or both.

1. Again, I disagree.  I accept that this fact is unlikely to be part of the content of the material transmitted, despite the wide terms in which the section is drafted.

1. I cannot, however, accept that the surreptitious or covert filming of otherwise consensual activity, without the consent of one of the participants, is not part of the method of use of the carriage service.

1. It may be that the section was drafted with the example of use in contemplation to which Mr Priest referred.  The Explanatory Memorandum referred to above (at [22]) does state:

The inclusion of “whether by the method of use or the content of a communication, or both” is intended to clarify the type of use of a carriage service that the offence covers.  “The method of use” refers to the actual way the carriage service is used, rather than what is communicated during that use.  The continual making of unwanted telephone calls to a particular person would fall into this category.  “The content of a communication” refers to what is communicated during the use of the carriage service, for example an email making threats may be considered menacing use of a carriage service.

1. Nevertheless, it seems to me very clear that surreptitious or covert use without the knowledge of a participant is clearly a method of use of a carriage service.

1. Method means a “mode or manner of effecting” a result or constructing a thing.  See Baillon v Bull (1795) 2 H Bl 463 at 478; 126 ER 651 at 659.

1. I do not consider that the fact that the use is surreptitious or covert is any less a “method” than is the multiple uses as referred to in the Explanatory Memorandum.  After all, the mechanical or electronic operation is, in the case of multiple uses, precisely the same each time the carriage service is engaged;  it is only the external matter to that, namely the frequent use, that renders such usage harassing or offensive.  This is a method of use in exactly the same as the surreptitious or covert use is a method of use.

1. That, of course, is not to say that every non-consensual or surreptitious use of a carriage service will be offensive.  (It is difficult to see how surreptitious use could be harassing or menacing, at least, perhaps, until it is known and that may bring other matters to play.)  It is not required that every such use is offensive.  That depends on “all the circumstances” and is, ultimately, a question for the trier of fact.

1. In my view, it is open for a trier of fact to conclude that the use of a carriage service to transmit a person having sexual intercourse with another person without the first person knowing of the transmission is capable of being a method of use that reasonable persons would regard as being in all the circumstances offensive.

1. The Crown submitted that the content in this case would also be offensive under this ruling, but that is a difficult question.  Initially, I had some hesitation in accepting that it could be so.  In this case, however, the Case Statement alleges that Mr McDonald “made gestures towards the webcam to those located in the other room as though he were ‘scoring a try’”.

1. In my view, that may so disclose in the content of the transmission that the filming and transmission is without the complainant’s consent and that the sexual intercourse is in part for a purpose other than entirely for the personal enjoyment or pleasure that comes from participation in sexual intercourse engaged in consensually.  It may be held to show that Mr McDonald knows that other people are watching him have sexual intercourse with the complainant, which she does not know, and that he is “scoring”.  It seems to me that this is open for reasonable persons to consider to be offensive in all the circumstances.

1. Accordingly, I am satisfied that the prosecution of Mr McDonald and Mr DeBlaquiere for using a carriage service to cause offence is not doomed to fail.

CONCLUSION

1. Accordingly, the application must be dismissed.

   I certify that the preceding one-hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date:         2013

Counsel for the Crown:   Ms K Weston-Scheuber
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr P Priest QC,  Mr A Burns and Ms C Carnell
Solicitor for the accused:  Hambros & Cahill Lawyers
Date of hearing:  19 October 2012
Date of judgment:  27 June 2013