BD(Appellant) v The Queen

• Jurisdiction: Northern Territory
• Court: Court of Criminal Appeal
• Judge: Grant CJ,Kelly,Barr JJ
• Judgment Date: 13 April 2017
• Docket Number: FILE NO: No. CA 4 of 2016 (21405513)
• Date: 13 April 2017

[2017] NTCCA 2

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Grant CJ, Kelly and Barr JJ

FILE NO: No. CA 4 of 2016 (21405513)

Between:

BD

Appellant

and

The Queen

Respondent

REPRESENTATION:

Counsel:

Appellant: A Wyvill SC and T Lee

Respondent P Usher

Drago v The Queen (1992) 8 WAR 488 , applied.

AK v Western Australia (2008) 232 CLR 438 , Alford v Magee (1952) 85 CLR 437, BBH v The Queen (2012) 245 CLR 499, Beal v Kelley [1951] 2 All ER 763, Brennan v The King (1936) 55 CLR 253, Cant v R [2003] NTCCA 5, Conway v R (2000) 172 ALR 185, CEG v The Queen [2012] VSCA 55, Crowe v Graham (1968) 121 CLR 375, Dao v R (2011) 278 ALR 765, Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, DSJ v Director of Public Prosecutions (Cth) (2012) 215 A Crim R 349, FDP v R [2008] NSWCCA 317, GBF v The Queen [2010] VSCA 135, Harkin v R (1989) 38 A Crim R 296, Hoch v The Queen (1988) 165 CLR 292, HML v The Queen (2008) 235 CLR 334, IMM v The Queen (2016) 90 ALJR 529, Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569, King v The Queen (1986) 161 CLR 423, Peacock v The King (1911) 13 CLR 619, Perara-Cathcart v The Queen [2017] HCA 9, Pfennig v The Queen (1995) 182 CLR 461, Purves v Inglis (1915) 34 NZLR 1051, R v Abusafiah (1991) 24 NSWLR 531, R v AH (1997) 42 NSWLR 702, R v Bryant [1984] 2 Qd R 545, R v Coombes [1961] Crim LR 54, R v Cornwell (2003) 57 NSWLR 82, R v Court [1989] AC 28, R v Culgan (1898) 19 LR(NSW) 166, R v DH [2000] NSWCCA 360, R v Falconer (1990) 171 CLR 30, R v Ford (2009) 201 A Crim R 451, R v George [1956] Crim LR 52, R v Getachew (2012) 248 CLR 22, R v Grant [2016] NTSC 54, R v Johnson [1968] SASR 132, R v Kilbourne [1972] 1 WLR 1365, R v Lock (1997) 91 A Crim R 356, R v Lockyer (1996) 89 A Crim R 457, R v McBride [2008] QCA 412, R v McIver (1928) 22 QJPR 173, R v Nazif [1987] 2 NZLR 122, R v PWD (2010) 205 A Crim R 75, R v Quach [2002] NSWCCA 519, R v RL [2009] VSCA 95, R v Sams (1990) 46 A Crim R 468, R v Thomas (1985) 81 Cr App R 331, R v Vallance (1961) 108 CLR 56, R v Zhang (2005) 158 A Crim R 504, Semaan v R (2013) 230 A Crim R 568, Sokolowskyj v The Queen (2014) 239 A Crim R 528, Smith v Western Australia (2014) 250 CLR 473, Vallance v R [1960] Tas SR 51, Wilkinson v R (1985) 20 A Crim R 230, referred to.

Criminal Code (NT) s 1, s 27, s 31, s 95, s 132(2)(a), s 187, s 188, s 411, s 413

Evidence (National Uniform Legislation) Act (NT) s 95, s 97, s 101

Supreme Court Rules r 86.08

S Odgers, Uniform Evidence Law, Thompson Law Book Co, Looseleaf Service, [EA.97.120].

CRIMINAL LAW — GENERAL MATTERS — CRIMINAL LIABILITY AND CAPACITY — OFFENCES AGAINST THE PERSON — EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Whether Crown's evidence at its highest disclosed indecency in the relevant sense — whether disclosed an offence against s 132(2)(a) of the Criminal Code — necessary to prove either that the dealing was indecent in itself, or that it was committed in circumstances of indecency — offence was committed in circumstances of indecency if touching the complainants was sexually motivated — appellant's intention or motive was relevant — appeal dismissed.

CRIMINAL LAW — GENERAL MATTERS — CRIMINAL LIABILITY AND CAPACITY — OFFENCES AGAINST THE PERSON — EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Whether failure to explain the significance of the appellant's assertion that the motive or purpose of his conduct was his duty as a teacher — whether failure properly to direct the jury of need for satisfaction beyond reasonable doubt that the appellant's purpose or motive was to obtain sexual gratification — directions given to jury inadequate — failed to explain significance of the motive or purpose of the appellant's conduct — directions in error in drawing attention to the defence of justification under s 27(p) of the Criminal Code — appeal allowed.

CRIMINAL LAW — GENERAL MATTERS — CRIMINAL LIABILITY AND CAPACITY — OFFENCES AGAINST THE PERSON — EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Whether tendency evidence erroneously admitted into evidence — significant probative value within the meaning of s 97(1)(b) of the ENULA — evidence identified in Crown notice described conduct not overtly indecent or sexualised — conduct not of a particular kind of act or of a particular kind of act committed in particular circumstances — appeal allowed.

CRIMINAL LAW — APPEAL AND NEW TRIAL

Whether integrity of the jury's deliberations compromised by unlawful or improper conduct and irregularities — whether enquiry required to determine if miscarriage of justice — general rule of the administration of criminal justice that once trial has been determined by an acquittal or conviction and the jury discharged evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict — exclusion does not operate in relation to evidence extrinsic to the jury's deliberations or to unlawful coercion — unnecessary to decide.

CRIMINAL LAW — APPEAL AND NEW TRIAL

Conviction quashed — whether interests of justice require new trial — whether admissible evidence sufficiently cogent to justify new trial — whether any circumstances which might render it unjust to the accused to make him stand trial again — public interest in the proper administration of justice — time already spent in custody — no longer employed as a teacher — adverse and irremediable consequences in the event of a retrial — prejudice by delay.

REASONS FOR JUDGMENT

(Delivered 13 April 2017)

THE COURT:

1 By indictment dated 12 May 2015 the appellant was charged with six counts of indecently dealing with a child under the age of 16 years contrary to s 132(2)(a) of the Criminal Code (NT). The charges involved four different complainants. The appellant was a teacher, the complainants were his pupils, and the offences were alleged to have taken place in the school environment.

2 On 4 March 2016, a jury found the appellant guilty on counts 1 and 2 of the indictment, and not guilty on the remaining four counts. He was convicted and sentenced to imprisonment for three months on each count. One month of the sentence imposed in respect of count 2 was ordered to be served cumulatively with the sentence imposed in respect of count 1, and an order was made partially suspending the total effective period of imprisonment after the appellant had served two months in prison. The appellant was taken into custody on 15 March 2016 following sentence, and subsequently granted bail on 29 March 2016 in anticipation of this appeal.

3 The appeal is brought against those findings of guilt. The Second Amended Notice of Appeal dated 19 May 2016 identified eight grounds of appeal. 1 Three of those grounds were ultimately abandoned. 2 The remaining grounds of appeal may be summarised as follows, in the order in which they were argued.

• (a) The Crown's evidence at its highest did not disclose indecency in the relevant sense, and so did not disclose an offence against s 132(2)(a) of the Criminal Code. 3

• (b) The trial judge wrongly failed to explain the significance of the appellant's assertion that the motive or purpose of his conduct was his duty as a teacher to the complainants; and so failed properly to direct the jury that the asserted purpose or motive necessarily

  excluded indecency unless they could be satisfied beyond reasonable doubt that the appellant's purpose or motive was in fact to obtain sexual gratification. 4

• (c) Certain of the tendency evidence was erroneously admitted into evidence by the trial judge because it did not and could not as a matter of law have any or any significant probative value within the meaning of s 97(1)(b) of the Evidence (National Uniform Legislation) Act (NT) (‘ENULA’). 5

• (d) In the alternative to (c) above, the probative value of the tendency evidence did not substantially outweigh its prejudicial effect within the meaning of s 101(2) of the ENULA, and so could not be used against the defendant. 6

• (e) The unanimous verdicts of guilty did not represent the true verdicts of the jury and/or the integrity of the jury's deliberations was compromised by unlawful or improper conduct and irregularities; or, in the alternative, the matters disclosed in relation to the jury's deliberations require an enquiry to determine whether there has been a miscarriage of justice. 7

4 On 30 March 2016, leave to appeal was granted in respect of the grounds identified in (c), (d) and (e) of the immediately preceding

paragraph. On 19 May 2016, the application for leave to appeal in respect of the grounds identified in (a) and (b) of the preceding paragraph was adjourned for consideration during the hearing of the appeal proper.

Indecency in the relevant sense

5 As already described, the first ground of appeal is that the Crown's evidence at its highest did not disclose indecency in the relevant sense, and so did not disclose an offence against s 132(2)(a) of the Criminal Code.

6 Counts 1 and 2 on the indictment were in the following terms:

Count 1

Between 23 July and 28 September 2012 at Darwin in the Northern Territory of Australia, [the accused] indecently dealt with [name redacted] a child under the age of 16 years.

Section 132(2)(a) of the Criminal Code

Count 2

Between 23 July 2012 and September 2012 at Darwin in the Northern Territory of Australia, [the accused] indecently dealt with [name redacted] a child under the age of 16 years.

Section 132(2)(a) of the Criminal Code

7 Section 132 of the Criminal Code provides relevantly:

132 Indecent dealing with child under 16 years

• (1) In this section, deals with includes the doing of any act which, if done without...