The Queen v Gb [1998] ACTSC 127 (2 December 1998)

Last Updated: 13 October 1999

THE QUEEN v GB [1998] ACTSC 127 (2 December 1998)

CATCHWORDS

CRIMINAL LAW - Section 92EA of the Crimes Act 1900 (ACT) - whether the reference to "a sexual act in relation to a young person on 3 or more occasions" means that a sexual act of the same nature must be repeated on each occasion or a diversity of sexual acts may suffice - whether a person may be convicted of an offence under this section and of other offences under Part IIIA constituted by the same acts.

Crimes Act 1900 (ACT)

Beckwith v R [1976] HCA 55; (1976) 12 ALR 333 at 339

Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 per Hodges J at 452

Registrar of Titles (WA) v Franzon and Another and Finance Corporation of Australia Ltd (1976) 50 ALJR 4 at 6

McLeish v F. T. Eastment & Sons Pty Ltd (1970) 91 WN (NSW) 268

KBT v R [1997] HCA 54; (1997) 149 ALR 693

Giretti and Giretti (1986) 24 A Crim R 112

R v Locchi (1991) 22 NSWLR 309

Hamzy (1994) 74 A Crim R 341

R v Kemp [1995] QCA 386; [1997] 1 Qd R 383 at 401

S v The Queen [1989] HCA 66; (1989) 168 CLR 266

THE QUEEN v GB

No. SCC 72 of 1997

Coram: Crispin J

Supreme Court of the ACT

Date: 2 December 1998

IN THE SUPREME COURT OF THE )

) No. SCC 72 of 1997

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

GB

R U L I N G

Judge Making Ruling: Crispin J

Where Made: Canberra

Date of Ruling: 2 December 1998

THE COURT RULES THAT:

1. The reference in s92EA of the Crimes Act 1900 (ACT) to an adult having engaged in "a sexual act in relation to a young person on 3 or more occasions" does not mean that a sexual act of the same nature must be repeated on each such occasion.

2. A person may not be convicted of an offence under s92EA and also convicted of other offences under Part IIIA of the Crimes Act 1900 (ACT) constituted by the same sexual acts.

1. At the trial of this matter I gave rulings as to certain aspects of the provisions of s92EA of the Crimes Act 1900 (ACT) and indicated that I would publish my reasons in due course.

2. Section 92EA creates the offence of maintaining a sexual relationship with a young person. The section is in the following terms:

(1) In this section -

"adult" means a person who has attained the age of 18 years;

"sexual act" means an act that constitutes an offence under this Part but does not include an act referred to in subsection 92E (2) or 92K (2) if the person who committed the act establishes the matters referred to in subsection 92E (3) or 92K (3), as the case may be, that would be a defence if the person had been charged with an offence against subsection 92E (2) or 92K (2), as the case may be;

"young person" means a person who is under the age of 16 years.

(2) A person who, being an adult, maintains a sexual relationship with a young person is guilty of an offence.

(3) For the purposes of subsection (2), an adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on 3 or more occasions.

(4) In proceedings for an offence under subsection (2), evidence of a sexual act is not inadmissible by reason only that it does not disclose the date or the exact circumstances in which the act occurred.

(5) Subject to subsection (6), a person who is convicted of an offence under subsection (2) is liable to imprisonment for 7 years.

(6) If a person convicted under subsection (2) is found, during the course of the relationship, to have committed another offence under this Part in relation to the young person (whether or not the person has been convicted of that offence), the offence under subsection (2) is punishable by imprisonment -

(a) if the other offence is punishable by imprisonment for less than 14 years - for 14 years; or

(b) if the other offence is punishable by imprisonment for a period of 14 years or more - for life.

(7) Subject to subsection (8), a person may be charged in 1 indictment with an offence under subsection (2) and with another offence under this Part alleged to have been committed by the person during the course of the alleged relationship and may be convicted of and punished for any or all of the offences so charged.

(8) Notwithstanding subsection 443 (1), where a person convicted of an offence under subsection (2) is sentenced to a term of imprisonment for that offence and a term of imprisonment for another offence under this Part committed during the course of the relationship, the court shall not direct that those sentences be cumulative.

(9) A prosecution for an offence under subsection (2) shall not be commenced except by, or with the consent of, the Director of Public Prosecutions.

3. Two issues arose for determination which did not appear to have been dealt with in previous authority.

4. The first was whether the reference in subs (3) to an adult having engaged in a "sexual act in relation to the young person on 3 or more occasions" means that the same act must have been committed on each of those occasions or whether there may have been three or more sexual acts of different kinds.

5. It is true that the phrase "a sexual act" is expressed in the singular but the requirement that it be committed on at least three occasions demonstrates that the requirements of subs (3) cannot be confined to a single act. The question then arises as to whether there is any reason for importing into the section a requirement that those acts be of the same kind. The concept of "a sexual act" being committed on several occasions would certainly be consistent with such a construction. On the other hand, there is nothing in the language of the section that requires such a construction and there seems no reason to suppose that the legislature would have intended to confine the concept of a sexual relationship to one involving repeated sexual acts of the same kind as distinct from a series of diverse sexual acts.

6. It seems likely that the requirement that the sexual acts occur on several occasions was imposed to prevent any suggestion that the offence could be constituted by a number of sexual acts committed sequentially on the one occasion. The section is concerned with an offence of maintaining a sexual relationship and that concept would normally imply a course of conduct over an extended period.

7. I accept that the rule that a penal provision should be strictly construed still survives albeit as one of last resort: per Gibbs J in Beckwith v R [1976] HCA 55; (1976) 12 ALR 333 at 339. However, that rule does not mean that the context of the relevant provision should be ignored or that the evident purpose of the section should not be taken into account.

8. Whilst the language of the section is less than clear, I have ultimately concluded that what is required by the terms of subs (3) is proof of the commission of sexual acts on three or more occasions which need not be of the same kind so long as each would constitute an offence under Part IIIA of the Crimes Act 1900.

9. The second issue that arose at trial was whether a person might be convicted in relation to offence under s92EA and in addition convicted of separate offences constituted by the commission of each of the sexual acts relied upon by the Crown to establish the maintenance of the sexual relationship.

10. At face value the terms of subs (7) appear to clearly authorise such a course. That subsection not only provides for the joinder of counts alleging an offence under subs (2) and another offence under Part IIIA committed during the course of the relationship but expressly provides that the person may be convicted and punished for all or any of the offences so charged.

11. Whilst this subsection is expressed to be subject to subs (8), the latter subsection merely provides that where a person is convicted of an offence under subs (2) and a further offence committed during the course of the relationship the sentences imposed for those offences shall not be cumulative. It was submitted on behalf of the Crown that this provision provides further confirmation of the view that an accused may be convicted of an offence under subs (2) and also convicted of other offences based upon one or more of the same acts relied upon to establish that offence. In substance, the Crown argued that the legislature had inserted this provision in order to ensure that the impact of any double punishment for the same acts was effectively removed or at least ameliorated. However, the provision applies to any other offences committed during the course of the relevant sexual relationship. In many cases it may be possible to prove the existence of the relationship by reference to three or more sexual acts relied upon by the Crown for that purpose and also to prove the commission of further offences constituted by other acts of a sexual nature committed during the course of the relationship. Accordingly, it cannot be said that the terms of this subsection are explicable only on the basis of an intention to limit the impact of double punishment for what might be described as constituent sexual acts.

12. Despite the apparent clarity of the terms of subs (7) there are two factors which cause me to some doubt whether the section should be construed in the manner for which the Crown contends.

13. The first is to be found in the sentencing provisions which are contained in subss (5) and (6). Subsection (5) provides for a maximum penalty of seven years imprisonment. That subsection is expressed to be subject to subs (6) which provides for substantially increased penalties if the person convicted under subs (2) is found, during the course of the relationship, to have committed another offence under Part IIIA in relation to the young person, whether or not he or she has been convicted of that offence. Since an offence under subs (2) must involve the commission of at least three acts each of which would constitute another offence under Part IIIA, the construction for which the Crown contends would involve the conclusion that the increased penalties provided by subs (6) would always be applicable. In that event, of course, the maximum penalty provided by subs (5) could never apply. One would obviously baulk at any construction involving the conclusion that a maximum penalty apparently intended to have general application could never apply and that increased penalties apparently intended to apply only in specific circumstances would in fact extend to every case.

14. It might be possible to avoid this consequence by construing the words "another offence under this Part" in subs (6) as having a different meaning from that which should be given to the same words in subs (7). However, it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in the document. That rule has been said to apply especially to an Act of Parliament and with a special force to words contained in the same section of an Act. Indeed, it has been said that there would need to be very strong reasons to justify the conclusion that words in one part of a section have a different meaning from the same words appearing in another part of the same section: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 per Hodges J at 452; see also Registrar of Titles (WA) v Franzon and Another and Finance Corporation of Australia Ltd (1976) 50 ALJR 4 at 6 and McLeish v F. T. Eastment & Sons Pty Ltd (1970) 91 WN (NSW) 268. In the present case no such reasons appear and I am satisfied that the phrase should be accorded the same meaning in each of the subsections to which I have referred.

15. The second impediment to the construction for which the Crown contends is that it is contrary to longstanding principle to punish someone twice for what is effectively the same offence. In the present case it may be possible to distinguish between the maintenance of a sexual relationship and individual acts committed during the course of that relationship. However, in KBT v R [1997] HCA 54; (1997) 149 ALR 693 Brennan CJ, Toohey, Gaudron and Gummow JJ held, at 696, that the actus reus of the offence under the comparable Queensland provision was the doing, as an adult, of an act which constituted an offence of a sexual nature in relation to the young person in question on three or more occasions. Subsection (1) requires that each such act constitute an offence under Part IIIA of the Crimes Act and if subs (7) were to be construed as the Crown suggests it would involve the consequence that whenever a person was convicted of three such offences a fourth conviction for an offence under s92EA could be added without proof of any additional element such as the nature or duration of the relationship. Somewhat similar considerations have arisen in the context of cases in which a single count of drug trafficking has been established by proof of individual acts of supply each of which has also constituted a separate criminal offence. See, for example, Giretti and Giretti (1986) 24 A Crim R 112; R v Locchi (1991) 22 NSWLR 309 and Hamzy (1994) 74 A Crim R 341. In the last mentioned case Hunt CJ at CL, with whom Abadee and Simpson JJ agreed, said, at 348:

"It is a well established rule at common law that a person shall not be punished twice for the same offence, although he may be so punished where the same act creates two different offences: Thomas [1950] 1KB 26 at 31-38; (1949) 33 Cr App R 200 at 204-214; Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 282; Saraswati [1991] HCA 21; (1991) 172 CLR 1 at 13; 54 A Crim R 183 at 191. See also Connolly v Meagher [1906] HCA 20; (1906) 3 CLR 682 at 685; State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 528-529; 65 A Crim R 509 at 518-519. Nice questions may perhaps arise as to whether, in the particular case, the individual act of supply creates the same or substantially the same offence when considered separately from the criminal enterprise of dealing which the Crown has sought to prove under one count charging supply: cf Connolly v DPP [1964] AC 1254 at 1305-1306; (1964) 48 Crim App R 183.

In Dodd (1991) 56 A Crim R 451 at 457, this Court held that, where an accused has previously been punished summarily for possession of a prohibited drug and he is then charged by indictment with the supply of the same drug, the charge of supply was an aggravated form of the charge of possession, and he was entitled to raise a plea in bar analogous to autrefois convict rather than a discretionary order for a stay. If, however, the particular case did not fall squarely within the principles which gave rise to a plea in bar, it was said that the accused must seek such a stay. The distinction drawn was not as to which rather than the other procedure was available; the distinction lay in the availability of the plea in bar as of right rather than the need to obtain a stay as a matter of discretion. I do not interpret that decision as denying the availability of the discretionary remedy; it is saying no more than that the accused was entitled to obtain the more certain relief (as a right) by the plea in bar.

I do not, however, consider it necessary in this case to resolve the intricacies of the rule against double jeopardy as it applies here, for in my view there could be no justification except in the most extraordinary circumstances for the Crown to bring a further prosecution based upon any such individual act where it had previously - successfully or unsuccessfully - relied upon that act in seeking to establish a particular criminal activity or enterprise under the one count. If it did bring such a further prosecution based upon such an individual act, the prosecution would inevitably be stayed - either as an abuse of process; Barton [1980] HCA 48; (1980) 147 CLR 75 at 96, 103, 107, 109; or as being against the dictates of propriety: Hoar [1981] HCA 67; (1981) 148 CLR 32 at 38-39. The Crown cannot have it both ways. So much was fairly conceded by the Crown before us."

16. Hamzy and the cases which preceded it were concerned with the issue of whether the Crown had been entitled to plead in the one count a single charge embracing several individual acts of supply to different people and at different times and the New South Wales Court of Criminal Appeal held that such a course was permissible provided that the relevant acts could fairly and properly be identified as part of the same criminal enterprise or the one criminal activity. Even then the trial judge had power to direct the Crown to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. Their Honours were not concerned with the present contention that the Crown could, in effect, charge those offences both collectively and individually. Nonetheless, cases of this kind may serve to demonstrate that double punishment is inherently repugnant to well established principles of law and that one should not readily assume that the legislature has intended to authorise such a course.

17. Whilst the issue does not seem to have been specifically addressed in any of the reported authorities, Davies JA has referred to the possibility that acts relied upon to establish the comparable offence under the Queensland Criminal Code might include one or more acts the subject of other counts on the indictment: R v Kemp [1995] QCA 386; [1997] 1 Qd R 383 at 401. However, the issue does not seem to have clearly arisen in that case. It should also be noted that, Fitzgerald P, with whose reasons for judgment Shepherdson J agreed, observed, at 397 that by the introduction of that offence the legislature had increased the risk of unfair trial and miscarriage of justice and that in consequence, trial judges must be astute to ensure that their rulings and directions were scrupulously correct and that accused persons were tried fairly.

18. The Bill containing s92EA was apparently not accompanied by any Explanatory Memorandum when it was introduced into the Legislative Assembly. However the presentation speech indicates that the purpose of the section was to "overcome the legal difficulty highlighted" by the High Court's decision in S v The Queen [1989] HCA 66; (1989) 168 CLR 266. This difficulty was said to be that of securing a conviction when a child could not remember the dates upon which he or she had been sexually abused. Hence subs (4) provides that evidence of a sexual act should not be considered inadmissible merely because it does not disclose the date or the exact circumstances in which the act occurred.

19. In fact, the trial which gave rise to the decision in S v R had involved a number of charges of incest involving acts said to have been committed on unspecified dates and the complainant had given evidence of numerous acts of sexual intercourse over an extended period. As the High Court pointed out, this evidence had given rise to two problems. First, it was unclear which act of sexual intercourse was relied upon as constituting any offence charged in the indictment the subject of a particular count in the indictment. Secondly, evidence of the other acts of sexual intercourse could have been relevant only as similar fact or propensity evidence and could not have been admissible on any such basis unless of sufficient probative value to outweigh any risk of prejudice. Consequently the High Court held that, at the very least, it would have been necessary for the trial judge to have identified for the jury what act was said to have constituted each of the offences charged, what acts were relied upon on a similar fact or propensity basis and what legal principles governed the use that might be made of the evidence concerning those further acts.

20. Section 92EA does not address these concerns either in its current form or in the form in which it was initially enacted. As the High Court has pointed out in the more recent decision of KBT v R it is still necessary for the Crown to identify each of the precise acts relied upon and for each member of the jury to be satisfied beyond reasonable doubt as to the commission of each of those precise acts. Indeed, an offence under s92EA will usually be substantially more difficult to prove than individual offences of the kind under consideration in S v R not only because the Crown must prove the commission of three sexual acts rather than one but because the same difficulties may arise in relation to each one. S v R did not establish any proposition that the date upon which a sexual act occurred had to be identified or that the circumstances in which the act occurred had to be established with any precision. Accordingly, it would appear that s92EA does not overcome the problems referred to by the High Court in S v R. Indeed, given the range of other offences that may be charged and the severity of the penalties available, the utility of the offence provided in this section is by no means clear.

21. Nonetheless, doubt that the purpose of the legislature has been fulfilled does not justify judicial attribution of some further or alternative purpose. There is nothing in the extrinsic material to suggest that the legislature intended to create an "umbrella" offence for the purpose of providing additional or heavier penalties than might have been available following convictions for three or more offences constituted by the constituent sexual acts, though in R v Kemp [1995] QCA 386; [1997] 1 Qd R 383 Davies J speculated, at 400, that such a purpose may have been one of the reasons for the introduction of the comparable provision in the Queensland Criminal Code. In fact, the presentation speech contains no reference to any perceived inadequacy in the range of sentences available.

22. In all the circumstances, I am not satisfied that the terms of s92EA authorise the conviction and punishment of an offender for an offence under subs (2) and, in addition, for other offences under Part IIIA of the Crimes Act constituted by the same sexual acts. On the contrary, I think that the words of subs (7) must be read as subject to an implied limitation excluding double punishment for the same acts.

23. I directed the jury accordingly.

24. I should perhaps add that in the present case the inclusion of a count alleging an offence under s92EA added nothing to the Crown case and caused unnecessary delay and complication. The accused was not acquitted because of some legal technicality to which the inclusion of such a count might have been directed. In fact difficulties of the kind referred to by the High Court in S v R did not arise. The Crown case was rejected simply because the jury was not satisfied of the truth of the allegations. Those allegations had been made at a time of acrimony between the complainant's mother and the accused following the breakdown of their relationship. The version of events which the complainant recounted at the trial was substantially different from that which he had given the police. Indeed, when asked about his complaint to the police which had led to the defendant being arrested and charged he said that he could not recall the accused committing the acts about which he had complained. He conceded that he had initially said that acts of sexual abuse which he sought to attribute to the accused had been committed by some older boys and, in relation to one allegation, said that he could not be sure whether it had actually happened or had been a dream. Overall, he was not a convincing witness. He did not present as a victim of sexual abuse becoming confused as to details of highly traumatic events. The impression was rather of a young man who had made the accusations in an attempt to get even for real or imagined wrongs but that having forgotten the initial version he had been forced to make up a new one. Whilst there was some limited corroborative evidence from his mother, she too was not a convincing witness. She had previously compiled a dossier on her own father to support allegations that he may have been a serial rapist and those allegations had been conclusively disproven by DNA tests. Part of her evidence was directly refuted not only by the accused but two other credible witnesses and other parts were implausible. In contrast the evidence of the accused was particularly convincing and there was strong evidence that he was a man of good character who had never displayed any homosexual inclinations or inappropriate attraction to young boys. In short, he was acquitted on the essential merits of the case.

25. Whatever view the jury might have taken of the matter it was obvious that the real issue had been the truth of the allegations made against the accused. At least in this context a count for an offence under s92EA effectively serves no useful purpose and its inclusion gives rise to needless complications in the directions which must be given to a jury.

I certify that this page and the eleven (11) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 2 December 1998

Counsel for the DPP Mr D Sahu Khan

Instructing solicitors: ACT Director of Public Prosecutions

Counsel for the Defendant: Mr R Livingston

Instructing solicitors: Pappas, j - attorney

Dates of hearing: 24-30 September 1998, 1-8 October 1998

Date of judgment: 2 December 1998