R v PJ

1. [1]

   LATHAM J: The Director of Public Prosecutions appeals against an order of Bright DCJ on 24 August 2017 permanently staying three counts on an indictment charging offences under s 73(3)(c) of the Crimes Act 1900 (NSW). The offence is constituted by sexual intercourse with a person between the ages of 17 and 18 who is under the “special care” of the offender. The appeal is brought pursuant to s 5F(2) of the Criminal Appeal Act 1912.

2. [2]

   There is one ground of appeal, namely, that her Honour erred in finding that there was insufficient evidence to establish those counts. The appeal raises issues of statutory construction which have not previously been considered in this Court.

3. [3]

   The respondent was arraigned on 24 August 2017 on two counts in identical terms, each alleging that on 17 September 2015 he had sexual intercourse with the complainant (a female), aged 17 years, who was under his special care, namely that he had an established personal relationship with her in connection with the provision of sporting instruction to her. The third count alleged the same offence between 1 October and 15 October 2015.

4. [4]

   It was not disputed that the respondent did have sexual intercourse with the complainant on the occasions specified in the indictment, when the complainant was 17 years of age. It was disputed that the complainant was under the respondent’s “special care”. It is not necessary to set out the details of the Crown case, other than those that are directly relevant to the nature of the “special care” relationship.

The Relationship Between the Respondent and the Complainant

1. [5]

   The respondent was employed at the complainant’s high school as a Personal Health, Development and Physical Education (PE) teacher between 2009 and 2016. The complainant was a student in the respondent’s class in 2011, 2012 and 2013. In 2014 the complainant had no contact with the respondent.

2. [6]

   In 2015, when the complainant was in Year 12, the respondent and the complainant would speak to each other in the school grounds, principally about personal matters. In September of that year, the respondent told the complainant that he was sexually attracted to her. She gave him her phone number and shortly afterwards the respondent texted the complainant to arrange a meeting at his home. Sexual intercourse constituting the first two counts occurred on that occasion.

3. [7]

   In early October 2015, the respondent and the complainant met at a park near the complainant’s home, following a text message from the respondent. The respondent tried to initiate sexual activity but the complainant resisted and left.

4. [8]

   The respondent sent the complainant a further message later in October suggesting that they meet because he needed someone to talk to. The respondent arrived in a van containing a bed. Sexual intercourse took place in the respondent’s van.

Section 73 of the Crimes Act 1900

1. [9]

   Section 73(2) and (3) provide:-

The Trial Judge’s Ruling

1. [10]

   For reasons which are not presently relevant, the trial judge delivered her reasons on 23 August and confirmed them on 24 August with some additional observations.

2. [11]

   The respondent’s counsel contended that a strict construction of the provision required that there be a temporal connection between “the established personal relationship” and the act of sexual intercourse. Given that the respondent had not provided any instruction to the complainant since 2013, it was submitted that the prosecution must fail.

3. [12]

   The Crown’s submission was that there was no requirement for the existence of a temporal connection between an act of sexual intercourse and any of the “special care” relationships defined by s 73(3). On that construction, the Crown maintained that once a personal relationship was established between a complainant and an accused, arising out of the provision of religious, sporting, musical or other instruction, it continued to bring the complainant under the “special care” of the accused, up until the complainant attained the age of 18 years.

4. [13]

   Her Honour was not assisted by R v Howes [2000] VSCA 159, which the Crown called in aid of this construction. The Court in Howes was concerned with s 48(1) of the Crimes Act 1958 (Vic) which provides that a person must not have sexual intercourse with a person aged 16 or 17, to whom he/she is not married and who is under his/her care, supervision or authority. The accused (a teacher) and the complainant (his pupil) had engaged in sexual activity at a university open day.

5. [14]

   Her Honour referred to the following passage from the judgment in Howes:-

6. [15]

   Her Honour regarded those remarks as relevant in so far as that legislation sought to protect complainants within a special age category from those in positions of authority.

7. [16]

   Nor did her Honour find the decision of this Court in Kennedy v R [2017] NSWCCA 193 persuasive. Davies J (Macfarlan JA and Button J agreeing) in Kennedy referred to Howes with approval. However, the real matter at issue in Kennedy was the attempt by the applicant to go behind his plea of guilty.

8. [17]

   The provision under consideration in Kennedy was s 61J (aggravated sexual intercourse without consent) where the circumstance relied upon in aggravation of the offence was the position of authority held by the applicant over the complainant. For the purposes of one of the offences, it was “unclear” whether the complainant was relevantly “under the authority of” the applicant (her former stepfather) at the time of intercourse (at [53]). It was in that context that Davies J noted that the factual enquiry to be undertaken was akin to that explained in Howes.

9. [18]

   Whilst accepting that the question whether a complainant is under the authority of another at a given point in time is a question of fact, her Honour observed that the terms of s 73(3) required content to be given to a different concept, namely, “special care”.

10. [19]

    Ultimately, her Honour found guidance in the judgment of Simpson J (Hoeben J agreeing) in JAD v R [2012] NSWCCA 73, in so far as Simpson J adopted a purposive approach to the construction of the provision: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355.

11. [20]

    On that basis, her Honour had regard to each category set out in s 73(3) and concluded that (a), (b), (d) and (e) were expressed in terms of the present existence of a defined relationship at the time of the sexual intercourse prohibited under s 73(2). Accordingly, her Honour held that s 73(3)(c) ought be construed consistently with the whole of the provision.

12. [21]

    That construction necessitated the present existence of a similarly defined relationship at the time of the sexual intercourse. The defined relationship for these purposes was a personal relationship in connection with the provision of (relevantly) sporting instruction. The complainant took no such instruction from the respondent at the time of the alleged offences and had not done so for a number of years. An essential ingredient of the charge was therefore lacking in proof.

The Construction of Section 73

1. [22]

   The task of statutory construction begins with a literal reading of s 73(3)(c), having regard to the context within which it appears: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]. The provision stipulates a present relationship of some indeterminate duration (“has an established personal relationship”). The relationship must be “in connection with” providing the relevant instruction.

2. [23]

   Given the wide import of the phrase “in connection with” on its face, it would appear that a relationship contemplated by the provision may arise out of giving instruction to the victim over a period of time, sufficient to warrant the description “established”, and may continue to exist, whether or not the offender provides ongoing instruction to the victim. That was, in effect, the submission of the Crown on the hearing of the appeal. The Crown argued that once a relationship of that kind was established, it mattered not that the relevant instruction had ceased at the time of the sexual intercourse, provided that the evidence demonstrated that the “personal relationship” had been revived or re-enlivened. In those circumstances, maintained the Crown, the victim was still under the offender’s “special care”.

3. [24]

   It is of some significance that the remaining categories in s 73(3) are all expressed in terms of the present existence of defined relationships (step-parent/guardian/foster parent or de facto spouse of parent, guardian, foster parent; schoolteacher/pupil; custodial officer/inmate; health professional/patient). It is these relationships per se which constitute the “special position(s) of responsibility” towards young persons by those in authority: Howes.

4. [25]

   If the same formulation of the offence under s 73(3)(c) had been adopted, it might simply read “the offender provides religious, sporting, musical or other instruction to the victim.” The consequences of such a formulation would however cast a wider net than the subsection achieves in its present form. The words “established personal relationship” and “in connection with” must be given some work to do.

5. [26]

   The fact that the legislature chose to cast the circumstances giving rise to liability under s 73(3)(c) in different terms calls for an explanation. One explanation for that difference in expression lies in the contrast between the position of authority occupied by offenders in the categories (3)(a),(b), (d) and (e) and the position of authority occupied by a tutor or instructor of the kind envisaged by (3)(c).

6. [27]

   The type of instruction referred to in (3)(c) may be of a casual or permanent nature, and may be undertaken daily, weekly, fortnightly or monthly, for less or more than an hour’s duration, over the course of months or years (depending on the purpose underlying the instruction). The circumstances of the instruction vary as greatly as the nature and purpose of the instruction dictates.

7. [28]

   For these reasons, it cannot be assumed in every case that a tutor who has provided or is providing instruction to a 17 year old necessarily exercises the type of authority and control over his/her pupil that gives rise to the capacity to exploit that influence. The question is one of fact and degree which depends upon the circumstances of each case.

8. [29]

   Whilst this analysis might assist in understanding the formulation of s 73(3)(c), it does not resolve the latent ambiguity or obscurity in the sub-section. That arises because s 73 criminalises sexual intercourse when the offender is in a defined relationship under (3)(a), (b), (d) or (e) with the victim, whereas (3)(c) appears to include a relevant relationship which has been established before sexual intercourse has taken place, but remains obscure in relation to whether the instruction that engendered the relationship must be ongoing at the time of the sexual intercourse.

9. [30]

   The use of the phrase “in connection with” to qualify the nature of the “personal relationship” presents its own difficulty. Significant care is traditionally exercised in interpreting this phrase in a range of statutes. In R v Orcher [1999] NSWCCA 356; 48 NSWLR 273, Spigelman CJ said (Grove and Sully JJ agreeing):-

10. [31]

    Greater care should be exercised where the phrase appears in a criminal statute which must be strictly construed. Its meaning should be appropriately confined to accord with the object or purpose of s 73, so as to ensure that it does not extend the range of the provision beyond what was intended.

11. [32]

    Section 34 of the Interpretation Act 1987 provides:-

    1. (1)

       In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

12. [33]

    The legislative history of s 73 was extensively examined by Simpson J in JAD, although for a different purpose, namely, the resolution of the question whether “foster parent” in s 73(3)(a) included the de facto partner of a victim’s parent. Simpson J was of the opinion that the answer to that question was “yes”, even if a purely literal approach to the construction of the provision was adopted. However, her Honour went on to consider the same question by way of a purposive approach to the construction of the provision, noting that it is the “more contemporary and favoured method of dealing with obscure questions of statutory construction” [145].

13. [34]

    I note that the anomaly identified by Simpson J in JAD has since been rectified by the legislature.

14. [35]

    It is appropriate therefore to have regard to secondary materials to determine the meaning of the provision. I am indebted to Simpson JA’s analysis in JAD and I have set out hereunder the relevant aspects of her Honour’s judgment. After tracing the legislative history of s 73, her Honour came to a consideration of the circumstances under which amendments were moved and accepted in the course of the passage of the Bill which enacted s 73 in its relevantly current form:-

15. [36]

    What emerges from this material is that the categories of relationships in s 73(3) derive from paragraph 14.40 of Volume V of the Final Report of the Royal Commission into the NSW Police Service of August 1987. For the purposes of the Final Report and the amendments, no distinction was drawn between the various categories, rather all categories were premised upon a position of trust occupied by the offender who had the care, supervision of, or authority over the victim at the time of the relevant sexual activity. The reference to a power relationship and power imbalance in Mr Burke’s speech confirms that the “mischief” being addressed was the same in each of the categories of relationship.

16. [37]

    I do not accept the Crown’s contention that the necessary authority or power, the abuse of which criminalises otherwise consensual sexual intercourse, is capable of exercise by a person who does not provide any form of instruction to another between the ages of 17 and 18. The provision of instruction from the tutor to the pupil is the activity that creates the “power relationship”. In regard to the other categories of “special care” in s 73(3), the exercise of authority or power is a product of parenting, guardianship, and recognised positions of trust. There is no basis under s 73 to impute liability for a sexual relationship between a custodial officer and a former inmate, or between a physiotherapist and a former patient. Liability for a sexual relationship between a tutor and a former pupil would represent a significant departure from the policy underlying s 73.

17. [38]

    In my opinion “in connection with” signifies that the personal relationship between the offender and the victim is both a result of the provision of instruction and confined to the ongoing provision of instruction. That construction maintains the necessary causal connection between the occupation of the position of authority and the capacity to exploit the relative vulnerability of the child.

18. [39]

    In summary, the construction of s 73(3)(c) which conforms to the legislative intention and is consistent with the whole of s 73(3) is that contended for by the respondent. Notwithstanding that an offender may have established a personal relationship with the victim over the course of providing tuition to him/her, it is the ongoing provision of instruction or tuition that places the offender in the position of authority contemplated by the section. It follows that criminal liability does not arise unless sexual intercourse takes place while that position of authority is being exercised by way of the provision of instruction.

19. [40]

    The learned judge correctly construed s 73. There was no evidence which could support the charge brought against the respondent. The order I propose is that the appeal be dismissed.

20. [41]

    BELLEW J: I agree with Latham J and with the order her Honour proposes.

21. [42]

    CAMPBELL J: I agree with Latham J.