Counts 8-11: conviction appeal
6On 31 August 2006, the appellant was intercepted at Sydney International Airport, returning on a flight from Vancouver, Canada. Customs officers seized a laptop and digital video recorder. They located on these items images involving child pornography and child abuse. They also located a volume of emails dating from 1999. Counts 8-11 involved four particular emails sent by the appellant (as the jury accepted) to two email addresses. The identity of the recipients was not established and accordingly it should be assumed for the purposes of the legal argument that neither was a citizen or resident of Australia. The emails discuss places in Bangkok, Phnom Penh and Costa Rica where girls under 16 years of age could be located for the purposes of sexual activity. The jury verdict, which was not challenged in respect of these facts, demonstrated that the prosecution had proved that the emails were sent by the appellant with the intention of encouraging conduct which would constitute engaging in sexual intercourse with a person who was under 16.
7The legal issue raised by the first ground of appeal was whether the elements of the offence required proof of that which, by concession, was not established, namely that such conduct outside Australia was to be committed by a citizen or resident of Australia.
8At the time of the alleged offending, the statutory provisions relevant to counts 8-11 were contained in Part IIIA of the Crimes Act. Part IIIA was repealed with effect from 15 April 2010 by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), the equivalent provisions now being found in the Criminal Code (Cth). In March 2000, the relevant offence was found in s 50DB of the Crimes Act, which read:
"50DB Encouraging offence against this Part
(1) A person contravenes this section if:
(a) the person does an act, or makes an omission, whether within or outside Australia, with the intention of encouraging conduct of a kind that would constitute an offence against this Part (other than this section); and
(b) the act or omission is reasonably capable of encouraging such conduct;
whether or not that conduct in fact occurs.
Penalty: Imprisonment for 17 years.
(2) In this section:
encourage means:
(a) encourage, incite to, or urge, by any means whatever, for example, by written, electronic or other form of communication; or
(b) aid, facilitate, or contribute to, in any way whatever.
(3) These are examples of acts covered by paragraph (1)(b):
(a) organising an arrangement that facilitates an offence against this Part (other than this section);
(b) assisting a person to travel outside Australia in order to commit an act that would constitute an offence against Division 2;
(c) advertising an offer so to assist a person or an arrangement for so assisting a person."
9Division 1 of Part IIIA was entitled "Preliminary" and contained a number of definitions, to which reference will be made in due course. Division 2, headed "Sexual offences against children overseas" set out four primary provisions of which the first, s 50BA, which was relied on in the present case, provided:
"50BA Sexual intercourse with child under 16
(1) A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16.
Penalty: Imprisonment for 17 years."
10Division 3 is headed "Defences" and included, for example, a belief that the victim was over 16, or that the accused and the victim were married: ss 50CA and 50CB respectively.
11Division 4 contained two sections of which one was s 50DB, set out above, the other being s 50DA, the operative part of which was structurally the same as s 50DB, with the variation that in place of the intention "of encouraging" the relevant conduct, it referred to the intention "of benefiting, whether financially or not, from" conduct similarly described, although without the words in parenthesis in s 50DB(1)(a) excluding an offence under the section itself.
12The language of s 50DB(1)(a) was attended by an element of uncertainty which founded the appellant's submissions in respect of ground 1. The conduct was identified by use of the subjunctive mood, "would constitute", which invoked a contingent or hypothetical element. On one view, the contingency was merely that the conduct might or might not occur. The alternative view was that the conduct which might or might not occur was conduct which would constitute an offence. The appellant argued for the second reading, with the further element that to be an offence under Part IIIA the act must be committed by a person who could be charged with and convicted of the relevant offence.
13To explain the different approaches it is necessary to refer back to the offences in Division 2. In respect of three counts the relevant offence was that under s 50BA, set out at [9] above. (The fourth count related to an act of indecency on a person under 16, which would be an offence under s 50BC, but that variation does not affect the present argument.) In its terms, s 50BA appeared to create an offence by any person in any place in the world, other than Australia. The appellant submitted that it could not be so understood and, indeed, was not so intended. That conclusion relied on the provision in Division 1, s 50AD, which limited those who could be prosecuted:
"50AD Who can be prosecuted for an offence committed overseas
A person must not be charged with an offence against this Part that the person allegedly committed outside Australia unless, at the time of the offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) any other body corporate that carries on its activities principally in Australia."
14Reading ss 50AD and 50BA together, the appellant submitted that, despite the apparent breadth of s 50BA, it only created an offence for the purposes of the Part where, although the conduct must occur outside Australia, the offender was an Australian citizen or a resident of Australia.
15In order to evaluate this submission, it is necessary to place s 50DB in its statutory context. Generally speaking, aiding and abetting, encouraging and inciting refer to forms of ancillary culpability involving a derivative responsibility for the crime committed by another. These kinds of responsibility were reflected in ss 5 (aiders and abettors), 6 (accessory after the fact) and 7A (inciting to or urging the commission of offences) in Part IA of the Crimes Act. There was a qualified adoption of those provisions in Part IIIA by virtue of the following parts of s 50AA:
"50AA General
(1) In this Part:
...
offence, in the case of a reference to an offence against this Part or against a particular provision of it, has a meaning affected by subsections (2) and (3) of this section.
...
(2) A reference in this Part (except section 50DB) to an offence against this Part or against a particular provision of it includes:
(a) a reference to:
(i) an offence against section 6, 7 or 50DB ...
...
that relates to an offence against this Part or against that provision of it; and
(b) a reference to an offence against this Part, or against that provision of it, because of section 5.
(3) A reference in section 50DB to an offence against this Part or against a particular provision of it does not include a reference to such an offence because of section 5.
(4) Section 7A does not apply to an offence against this Part."
16Section 50DB was thus substituted for the operation of ss 5 and 7A in respect of offences against Part IIIA. The Director asserted that the structure of these provisions revealed an important characteristic of s 50DB, namely that it did not involve any form of derivative liability but imposed direct responsibility for the kind of conduct which might otherwise have been caught by ss 5 and 7A. There was, therefore, a deliberate abandonment of the language of aiding and abetting "the commission of any offence against any law of the Commonwealth" (language that occurs in both s 5 and s 7A) and replacement with encouraging "conduct of a kind that would constitute an offence", not against any law of the Commonwealth, but against Part IIIA. On this approach, the particular conduct, "of a kind that would constitute an offence", picking up s 50BA, was engaging in sexual intercourse outside Australia with a person who was under 16. While a person who was not an Australian citizen or a resident of Australia could not be charged with such conduct, the conduct itself was not limited by reference to the nationality or residence of the person. The critical connection in s 50DB(1) was with "conduct" having the specified characteristics in s 50BA, and not with a person having a characteristic specified in s 50AD.
17The appellant resisted that construction as being contrary to the understanding of the operation of Part IIIA adopted by the High Court when considering its constitutional validity in XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532. That case was concerned specifically with offences under what were, in 2000, ss 50BA and 50BC. An interlocutory challenge to the validity of those provisions was mounted on the basis that they were not supported by s 51(xxix) of the Constitution, as laws with respect to external affairs. For that purpose, Gleeson CJ identified the provisions in the following terms, at [2]:
"Sections 50BA and 50BC of the Crimes Act 1914 (Cth) respectively make it an offence for a person, while outside Australia, to engage in sexual intercourse with a person under sixteen, or to commit an act of indecency on a person under sixteen. By virtue of s 50AD, the first-mentioned 'person' relevantly means a person who was, at the time of the offence, an Australian citizen or a resident of Australia."
18The Chief Justice continued at [4]:
"No issue of statutory construction arises. That the legislation has, or purports to have, extra-territorial effect is clear. In terms, it relates to conduct outside Australia, but is limited in its operation to the conduct of Australian citizens or residents."
19The circumstances of the case, as noted by Gleeson CJ at [3], were that the accused was an Australian citizen and that the offences were said to have been committed in Thailand. The alleged victim was neither a citizen nor a resident of Australia. Given that his Honour did not consider there to be a relevant question of statutory construction involved, the comments set out above may be understood to reflect the circumstances of the case in which the question of constitutional validity arose.
20In a joint judgment, Gummow, Hayne and Crennan JJ spoke of the issue to be determined in the following way at [49]:
"The Commonwealth correctly submitted that legislation proscribing conduct engaged in outside Australia, such as ss 50BA and 50BC of the Crimes Act, is supported by the external affairs power. That is so without the further requirement, here imposed by s 50AD, that the person alleged to have committed the offence outside Australia must be an Australian citizen or a resident of Australia."
21That language is consistent with the manner in which the issue was earlier addressed at [31] (in the joint judgment) and at [74] by Kirby J. On the other hand, Kirby J also referred to the fact that the plaintiff's Australian citizenship "afforded a clear connection between the plaintiff and the subject matter of the federal law": at [133].
22In these circumstances, it is arguable that both Gleeson CJ and Kirby J placed some weight upon the connection with Australia, for the purposes of a prosecution. However, the Court was not concerned with the operation of s 50DB and, pursuant to that provision, the same connection was required between the putative offender and Australia: that is, if the act were done outside Australia, the person could not be charged unless he or she was a citizen or resident of Australia. Accordingly, there was nothing in XYZ which was inconsistent with the Director's construction of s 50DB.
23Even accepting that to be so, the appellant submitted that there was uncertainty as to whether the constraint in s 50AD should apply to the characterisation of the conduct referred to in s 50DB as well as to the capacity to prosecute the person sought to be encouraged. In other words, if the encouragement or incitement were to take place in a European country, by a person organising sex tours of a South East Asian country, not only should the alleged offender be a citizen or resident of Australia, but so should the target audience. It is unlikely, the appellant contended, that an Australian citizen in Europe, organising a trip for non-Australians to South East Asia for sex with young persons under the age of 16, would have been intended to be caught by such a provision. By contrast, an Australian citizen in Europe seeking to organise a trip for fellow Australians to go to South East Asia was an entirely plausible reading of the provision. At the very least, the submission proceeded, in circumstances where the language was ambiguous or doubtful, the ambiguity or doubt should be resolved in the favour of the subject by refusing to extend the category of criminal offences, in accordance with the reasoning of Gibbs J in Beckwith v The Queen [1976] HCA 55; 135 CLR 569 at 576.
24The degree of uncertainty in the present case is not sufficient to invoke such a principle. There are three primary reasons for adopting that conclusion. The first is that s 50DB, being a provision imposing direct liability for conduct of a particular kind, which did not depend on whether an offence was committed by another person, should not be read down by reference to the possibility that a particular person could not have been prosecuted for such an offence if it were committed.
25Secondly, the focus of the provision was the discouragement of persons in Australia, or Australian citizens and residents outside Australia, encouraging child sex tourism. As the section made clear, the conduct might not take place and, it should be accepted, the encouragement might have been directed to a general audience, without the need to determine where in the world they were resident, nor whether they were Australian citizens. The fact that the encouragement might be directed to an individual (as it was in this case) did not mean the prohibition was so restricted. The attraction of the appellant's submissions diminished once that factor was recognized.
26Thirdly, that ss 50BA and 50BC could only relate to conduct outside Australia, but were defined without reference to the citizenship or place of residence of the person committing the offence, was clearly recognised in the joint judgment in XYZ, in upholding the validity of those provisions. The interrelationship of those provisions with s 50AD did not lead to a different conclusion. Section 50AD limited those who could be prosecuted for such an offence, but did not limit the scope of those offences. Other offences in Part IIIA involved conduct which could occur within or outside Australia, including s 50DB itself. Again, the effect of the section was not to prevent such conduct as might be committed outside Australia from being an offence, if not committed by a citizen or resident of Australia.
27This conclusion receives further support from the operation of s 50DA, dealing with those seeking to benefit from conduct of the kind that would constitute an offence against Part IIIA. Such conduct may itself be carried out within or outside Australia, but, assuming it were carried out within Australia, it is difficult to find that it was only intended to render such conduct an offence if the conduct from which the benefit was sought to be obtained involved sexual activity by citizens or residents of Australia in an overseas country. If such a limitation were not to be imposed on those acting with intent to benefit, the similar structure of s 50DB resists such a limitation with respect to the offence of acting within intent to encourage.
28Finally, some limited further support may be obtained from the heading of the Part, namely "Child sex tourism". That heading appeared as the heading of a Part "appearing before the first section of the Act", that is, in the table of contents, and thus forms part of the Act: Acts Interpretation Act 1901 (Cth), s 13(2). That title is at least consistent with the purpose of the Act being to criminalise various forms of conduct having a relevant connection with exploitation of children in other countries. It thus confirms the purpose which is otherwise to be inferred from the language of Part IIIA, read as a whole: cf Toben v Jones [2003] FCAFC 137; 199 ALR 1 at [137] (Allsop J).
29It follows that it was not an element of the offences identified in counts 8-11 that the recipient of the encouragement be a citizen or resident of Australia who would, if the offences were committed, be liable to prosecution under Part IIIA for the sexual activity. Ground 1 must therefore be rejected.