Criminal law - Indecent act in a public place - Appeal against conviction after plea of guilty - Indecent photograph taken of a female passenger - Whether a taxi is a public place

Spent conviction order - Whether appropriate - Turns on its own facts

Sentencing Act 1995 (WA), s 39(2)

Taxi Regulations 1995 (WA), reg 13

Weapons Act 1999 (WA), s 7(1)

Borsa v The Queen [2003] WASCA 254

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510

E (a child) v Staats (1994) 13 WAR 1

Harman v Ayling (Unreported, WASC, Library No 960633, 5 November 1996)

Hogue v The State of Western Australia [2005] WASCA 102

Keft v Fraser (Unreported, WASCA, Library No 6521, 12 April 1986)

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mansfield v Kelly [1972] VicRp 88; [1972] VR 744

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

McKenzie v Stratton [1971] VicRp 104; [1971] VR 848

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Milne v Mutch [1927] VicLawRp 28; [1927] VLR 190

Neale v Sloan (Unreported, WASC, Library No 970729, 6 August 1997)

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Holmes [1795] EngR 4044; 6 TR 177

R v Kane [1965] 1All ER 705

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997)

Walker v Crawshaw [1924] NZLR 93

(This judgment was delivered extemporaneously on 5 August 2011 and has been edited from the transcript.)

1 On 30 March 2011, the appellant pleaded guilty and was thereby convicted of two offences:

1. Between 8 and 9 May 2009, at a place unknown the appellant did an indecent act in a public place, contrary to s 203(1)(a) of the Criminal Code (the Code).
2. On 22 January 2011, not being a person exempt under s 10, without lawful excuse, possessed a controlled weapon, contrary to s 7(1) of the Weapons Act 1999 (WA).

2 The magistrate, his Honour Mr P Heaney, imposed a fine of $2,000 on the indecent act charge and a fine of $200 on the controlled weapon charge. The magistrate also dismissed applications for spent conviction orders.

3 The appellant appeals against the conviction on the charge under s 203(1)(a) of the Code and the dismissal of the applications for spent conviction orders on the following amended grounds of appeal:

1. The plea of guilty to conviction (1), was not entered in consciousness of guilt.
2. The Appellant maintains that the elements of the offence in respect to conviction (1) was not satisfied on the basis that:

(i) The Appellant's actions, in respect to the conviction, does not constitute an 'Indecent Act'; and

(ii) That the motor vehicle that the Appellant was in control of, in respect to the conviction, does not constitute a 'public place'.

1. The Learned Magistrate erred in accepting the Appellant's guilty plea to conviction (1) on the basis of the grounds set out in paragraphs 2(i) and (ii).

1. The Learned Magistrate erred in the exercise of his discretion when he determined not to grant the Appellant spent convictions for each of the offences, given:

(i) the appellant was of previous good character and had a prior unblemished record;

(ii) there was an absence of any likelihood (especially in light of the circumstances) of re-offending by the appellant;

(iii) the appellant's plea of guilty to the offences at his earliest opportunity;

(iv) the particular circumstances in which the offences were committed;

(v) the likely adverse effect of a conviction on the Appellant's future employment;

(vi) the appellant's remorse in respect to the offences;

(vii) the appellant's on going health issues; and

(viii) the appellant's involvement in rehabilitative measures prior to sentence

1. Further, the Learned Magistrate erred in the exercise of his discretion when he determined not to grant the Appellant spent convictions for each of the offences, by placing too much emphasis on the seriousness of the offences which the Appellant pleaded guilty to.

4 On 23 May 2011, Hall J ordered that the applications for leave to appeal be heard at the same time as the appeal.

5 The material facts as presented to the court can be summarised as follows:

(b) Some time between 8 and 9 May 2009, the appellant was on night shift driving a taxi in the Perth metropolitan area. Whilst conveying a female passenger in the front seat of the taxi, he used his mobile phone to take nine digital images, eight of which were up-skirt images of the passenger. The images depicted the inside of the passenger's thighs, the outside of her underwear and the general crotch area. In these images, the passenger appears extremely intoxicated or asleep and, as a result, is unaware of the images being taken.

(c) The pictures were located on the appellant's computer. The police had spoken to the appellant because of an assault incident in his taxi and he had volunteered to the police that he had footage of the incident. The police viewed the footage and then inquired as to what other footage he had taken which had been downloaded. The appellant informed the police that he had taken other footage and, as a result of this, the police seized the computer. The photographs had been deleted, but an analysis of the appellant's external hard drive located approximately 650 video recordings of female and male passengers which had been taken by the appellant using his mobile phone. The videos covered a period between 2009 and 2011. Also on the computer were approximately a dozen deleted still photographs, being images of up-skirt snapshots created from the video recordings of four separate female passengers seated in the back seat of the appellant's taxi.

(d) In 2011, the appellant voluntarily attended the sexual assault squad and participated in an electronically recorded interview in relation to the matter and admitted using his mobile phone to record female passengers. He claimed that he did so for his own personal protection against allegations of a sexual nature. When questioned about the digital images of the female passenger, the subject of the charge, he refused to comment.

(e) The police also located a pepper spray canister in the appellant's taxi. It was attached by Velcro to the front dashboard on the right-hand side of the steering wheel. The appellant said that it was for his own protection.

Appeal against conviction of offence under s 203 of the Code - Grounds 1, 2 and 3

6 Grounds 1, 2 and 3 of the appeal against conviction of the charge under s 203 of the Code can be dealt with together as they essentially make up a single ground of appeal that the plea of guilty and resultant conviction should be set aside on the grounds that the material facts did not disclose an offence known at law.

7 The appellant's counsel has sensibly abandoned the grounds of appeal based upon the contention that the appellant's actions did not constitute an 'indecent act'. Quite clearly, the taking of the photographs using a mobile phone of an area up the skirt of a female passenger constitutes an indecent act. This leaves the remaining grounds of appeal based upon the contention that a motor vehicle that the appellant was in control of did not constitute a 'public place'.

8 Before an appellate court can set aside a plea of guilty, the appellant must show that there has been a miscarriage of justice. It is not an easy task to persuade a court to set aside a conviction after a plea of guilty. There must be strong and exceptional circumstances. There are three well recognised circumstances where a miscarriage of justice will occur:

1. When the appellant did not understand the nature of the charge, or did not intend to admit guilt;
2. where on the admitted facts, the appellant could not in law have been guilty of the offence; and
3. where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like.

9 See Harman v Ayling (Unreported, WASC, Library No 960633, 5 November 1996) (Parker J); Borsa v The Queen [2003] WASCA 254 [20] (Steytler P); Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J); Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 5011, 510 - 511, (Dawson & McHugh JJ), 522 (Toohey J), 531 (Gaudron & Gummow JJ).

10 The appellant relies upon the second of the above circumstances to contend that there has been a miscarriage of justice. The appellant submits that the indecent act of taking the photographs described above in a taxi could not at law constitute an offence under s 203(1)(a) of the Code because the alleged indecent act did not occur in a public place.

Indecent acts in public

(1) A person who does an indecent act -

(a) in a public place or in the sight of any person who is in a public place; or

(b) in a police station or lock-up,

is guilty of a crime and is liable to imprisonment for 2 years.

Summary conviction penalty: imprisonment for 9 months and a fine of $9 000.

12 A public place is defined in s 1 of the Code in the following terms:

The term public place includes -

(a) a place to which the public, or any section of the public, has or is permitted to have access, whether on payment or otherwise; and

(b) a privately owned place to which the public has access with the express or implied approval of, or without interference from, the owner, occupier or person who has the control or management of the place; and

(c) a school, university or other place of education, other than a part of it to which neither students nor the public usually have access;

13 Section 19 of the Interpretation Act 1984 (WA) provides that a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. This is consistent with authorities on statutory construction. In the High Court decision of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the plurality of McHugh, Gummow, Kirby and Hayne JJ stated:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

14 In support of the contention that a taxi does not constitute a public place, the appellant relies upon the decision of E (a child) v Staats (1994) 13 WAR 1. That case concerned a juvenile charged with being disorderly at the City Police Station contrary to s 54 of the Police Act 1892 (WA). Section 54 was in the following relevant terms:

Every person who shall be guilty of any disorderly conduct on any street, public place, or in any passenger boat or vehicle, and Police Station, or lock-up, shall, on conviction, be liable to a penalty ...

15 White J ruled that for the purpose of s 54, a public place does not include a street, a passenger boat or vehicle, a police station or a lock-up. This was because the section provided separately for each of these types of locations. However, White J in his decision acknowledged that the definition of 'public place' in the Police Act was somewhat narrower than the ordinary meaning given to the expression 'public place' at common law (7).

16 Section 203 and the definition of 'public place' in s 1 were inserted into the Code in their current form by the Criminal Law Amendment (Simple Offences) Act 2004 (WA) (No 70 of 2004). The amending legislation also repealed s 54 of the Police Act 1892 considered in E (a child) v Staats. It should be noted that although s 203 draws a distinction between a public place, a police station or lock-up (in similar terms to the repealed s 54 of the Police Act 1892), unlike the repealed s 54 of the Police Act 1892, it does not provide for the separate locations of a street, a passenger boat or vehicle.

17 The definition in the Code is not an exhaustive definition of the term 'public place', but an inclusive definition. To ascertain the meaning of the expression 'public place' in s 203, it is necessary to consider both the plain wording of the inclusive definition contained in s 1 and also how the expression has been interpreted elsewhere.

18 At common law, a public place is a place to which the public can and do have access. It does not matter that the public come to the place at the invitation of the occupier or merely with his or her permission, or whether some payment or the performance of some formality is required before access can be made: R v Kane [1965] 1All ER 705. This common law definition equates with subpar (a) of the Code definition.

19 There are a number of authorities which I believe provide assistance as to the proper construction of the expression 'public place' in s 203. In Walker v Crawshaw [1924] NZLR 93, the appellant was convicted of the offence of wilfully doing a grossly indecent act in a public place - namely, in Vogel Street, Dunedin. The evidence was that the appellant owned a motor vehicle which he plied for hire. The car was standing at night in Vogel Street and a constable who approached the car was unable to see into the rear portion, but on flashing his torch into the rear portion, he saw the appellant and a woman having sexual intercourse on the back seat. Sim J was of the opinion that the parties were still in Vogel Street, although they were inside a motor car on that street, and that the act was properly treated by the magistrate as having been done in Vogel Street.

20 McKenzie v Stratton [1971] VicRp 104; [1971] VR 848 concerned a defendant who was found in a taxi cab in the carpark of the Brunswick police station and was charged with being drunk and disorderly in a public place. The magistrate dismissed the charge, but on appeal Nelson J ruled that the defendant was found in a public place, namely, the carpark. In his decision, Nelson J referred to the New Zealand decision of Walker v Crawshaw and at (851) stated:

Sim J decided in the affirmative in Walker v Crawshaw, namely, whether a person in a motor car in a public place is himself in that public place. Looking at the matter physically there is only one answer to that question. He is physically within the confines of such public place and he is in that sense in that place. The fact that he is in or on a vehicle in that place does not affect his physical presence within it. Whether, however, for the purposes of certain statutory offences he should be held to have done a certain act in that place or to be found in a certain condition in that place may require a consideration of something more than the fact that the act was done or that he was found in the required condition while he was within the physical confines of the place. It may and probably does involve a consideration of the nature and subject-matter of the particular enactment and the evil which it was intended to restrain, a matter to which both Lowe and Sholl JJ, adverted in Ward v Marsh, supra, in considering the ordinary meaning of the expression 'public place'. I am, however, considering whether, however that expression is defined or is construed in the relevant legislation, the required conditions are to be established as occurring in that place. Generally when an offence is defined in terms of a public place, it is the public nature of the offence which is the evil which the legislature is designed to restrain. In the case of a man in or on a vehicle in a public place, if he exposed himself while riding on a bicycle, or while seated in an oldfashioned side car attached to the bicycle, he would, I think, in each case have exposed himself in a public place. On the other hand, if he were in a fully enclosed caravan and exposed himself only to someone therein the necessary public element may be lacking and he may well be held not to have exposed himself in a public place. In the case of a man who is found drunk and disorderly in the front seat of a motor car in a public place I can see no reason to doubt that he is found in the public place. Whether the motor car is itself a public place is in those circumstances immaterial.

21 In a number of cases, acts done in a tramcar have been held to have occurred in a public place: Milne v Mutch [1927] VicLawRp 28; [1927] VLR 190; R v Holmes [1795] EngR 4044; 6 TR 177.

22 In Mansfield v Kelly [1972] VicRp 88; [1972] VR 744, the defendants were charged that they were drunk in a public place, 'to wit Inkerman Street, Maryborough'. They were in fact in a parked car in Inkerman Street. The magistrate at first instance dismissed the charge on the basis that the defendants were not in a public place. This decision was overturned on appeal. The legislation included within the definition of 'a public place' 'any public highway, road or street' and also 'any vehicle plying for hire'. Newton J (with whom the other members of the court agreed), in holding that an offence committed in a private motor vehicle in a public place could constitute committing an offence in a public place, stated at (746):

But we see no reason to infer from this circumstance that Parliament intended that an occupant of a private motor car in a public place could not himself be treated as being in a public place.

23 On the basis of the above authorities, it is clear that generally it has been held that a person in a motor vehicle located in a public place is treated as being in a public place.

24 The appellant contends that the interior of the taxi was isolated from the view of the public. However, this is not correct. The female passenger photographed was a member of the public. Also, persons outside a motor vehicle can normally see inside the interior (at least in part) as the vehicle is not an opaque cocoon totally blocking out visibility (see Mansfield v Kelly (745)).

25 Further, when considering the circumstances of a passenger being in a taxi, it is relevant to consider reg 13 of the Taxi Regulations 1995 (WA) which provides that at any time during which a driver is plying for hire that driver must accept any hirer, or any person accompanying a hirer, as a passenger in a taxi he or she is driving unless the person or persons fall within certain exempt classes. These exempt classes include such things as a person who appears to be under the influence of alcohol or drugs to such an extent that he or she is likely to soil the taxi or become abusive or aggressive. Accordingly, in the sense provided by this regulation, the public has general access to taxis.

26 The legislative intent revealed by the plain wording of s 203 is clearly to make an indecent act in circumstances where the indecent act may be exposed to members of the public a criminal offence. Hence, the wording in the section includes an indecent act 'in the sight of any person who is in a public place'. In my view, consistent with this legislative intent, a criminal offence is committed under s 203 if an indecent act takes place in a taxi to which the public generally has access on payment of a fee and which is being used at the time to convey a passenger. The public place element is fulfilled by both the vehicle being used as an operational taxi and by the fact that presumably the conveyance will take place on public roads.

27 Counsel for the appellant referred to the case of Keft v Fraser (Unreported, WASCA, Library No 6521, 12 April 1986). In that case, which concerned a charge of using obscene language in a public place contrary to the provisions of the Police Act 1892, Burt CJ stated:

The idea of a 'public place' as used in the statute is not simply geographical. It is assumed to contain human beings with ears. And so regarded all public places are not the same. If it be a place where people of all kind are assembled such as, to take a local example, the Hay Street Mall at high noon, then the use of the words complained of here if uttered for all to hear could, I think, be fairly described as being obscene and to use such words in that way and in that place and at that time could fairly, I think, be described as being disorderly conduct. Their use upsets the order of that place by interfering with the free use of that place by persons who have a right to use that place without being subjected to words which offend them and cause them distress.

28 It was submitted by the appellant's counsel that the appellant's indecent act did not infringe upon members of the public. However, a member of the public, the passenger who was photographed, was entitled to use the taxi without being subjected to the indecent act committed by the appellant. In my view, this is consistent with the purpose of the section to protect the public from being exposed to indecent acts.

29 For the above reasons, I conclude that the appellant, having committed an indecent act in his taxi whilst it was being used to convey a passenger in the metropolitan area committed an offence contrary to s 203 of the Code in that the indecent act took place, within the meaning of the section, in a public place. In such circumstances, the plea of guilty was properly accepted by the magistrate and a conviction entered. No miscarriage of justice has occurred.

30 Although I grant leave to appeal on grounds 1 to 3, the grounds of appeal are dismissed.

31 The grounds of appeal against sentence can be condensed into a single ground that the magistrate erred in the exercise of his discretion not to make spent conviction orders. For an appeal to succeed against the exercise of a discretionary power, it is generally necessary to establish that the judicial officer at first instance failed properly to exercise his or her discretion by acting upon a wrong principle, misstating the facts, or allowing irrelevant matters to affect the decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671.

32 In this case, the magistrate gave brief reasons for his decision, although not necessarily inadequate reasons, given the long lists of matters that magistrates have to deal with. The magistrate stated as follows:

An application has been made for there to be a spent conviction and I think this is probably one of the rare cases where it would be inappropriate to grant a spent conviction because it's important that future employers do know of this propensity that you displayed on this occasion.

I think this case can be clearly distinguished from the one in Broome [a reference to a decision of a magistrate in Broome] where the fellow took photos of girls showering in his house, is clearly distinguishable from this, where you're a taxi driver where people all day and all night put themselves in your hands to look after them and take them where they wish to go. Young girls don't get into taxis expecting themselves to be photographed in the manner that these photos were taken.

There will be no spent conviction, as I think is - and as I said, it's probably a situation where one shouldn't be granted.

33 In mitigation and in support of the application for a spent conviction order, it had been stated that the appellant was 41 years of age and had no prior convictions. The photographs taken had been deleted by the appellant and recovered by the police from an external hard drive. In 2007, the appellant had won the Safe Taxi Driver Award of the Year, which was presented by the Western Australian police. He had co-operated with the police and had pleaded guilty essentially at the first opportunity. Two character references were presented to the court which attested to the appellant's otherwise good character. Also, a psychological report was tendered which indicated that since late 2005, the appellant had been receiving treatment from a psychologist. The appellant suffered social anxiety and depression. At times, he experienced suicidal ideation. The psychological report stated that the appellant had limited intimate relations in recent times and that, coupled with unusual circumstances, contributed to him transgressing into unacceptable behaviour.

34 Under s 39(2) of the Sentencing Act 1995 (WA), a court sentencing an offender may, with or without making a spent conviction order, fine an offender. Section 45(1) of the Sentencing Act provides as follows:

(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers that the offender is unlikely to commit such an offence again; and

(b) having regard to -

(i) the fact that the offence is trivial; or

(ii) the previous good character of the offender,

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

35 The principles that required consideration by the magistrate are well-known. In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, Murray J said:

In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community [27] - [28].

36 In Neale v Sloan (Unreported, WASC, Library No 970729, 6 August 1997), Wheeler J said:

Section 45 of the Sentencing Act provides that a court sentencing an offender is not to make a spent conviction order unless certain criteria are satisfied. It does not, however, require the making of an order once those criteria are satisfied, and consideration must be given to all of the circumstances of the case and of the offender - and indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in section 45 are not thereby rendered irrelevant.

37 It is clear that in some cases there is a public interest in an employer or potential employer being aware of an offender's offending behaviour. This is because that behaviour may have relevance in assessing the offender's reliability and suitability for the type of work which he or she pursues. See Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997); Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510, 515 (Burchett AUJ).

38 Counsel appearing for the appellant before the magistrate conceded that the appellant was not going to be able to be gainfully employed again as a taxi driver. It was argued that a spent conviction order should have been granted so as to increase the appellant's employability in other areas of employment. However, in my view, because of the nature of the offence under s 203 of the Code, the magistrate was right to conclude that there was a public interest in potential employers being aware of the appellant's offending behaviour as it was suggestive of a propensity to engage in indecent acts. The concern of the magistrate as to the appellant's behaviour was supported by the number of photographs and videos which had been retained by the appellant, including up-skirt photographs of four other female passengers. Having concluded that a spent conviction order should not be made in relation to the indecent act charge under s 203 of the Code, the magistrate was also entitled to exercise his discretion to refuse to make a spent conviction order in relation to the second charge under the Weapons Act 1999.

39 In summary, I would grant leave to appeal on both grounds of appeal on sentence, but dismiss both grounds.