King v The Queen [2012] VSCA 206

1 Following a six-day trial in the County Court, on 21 June 2011, Andrew King ('AK')[1] was found guilty by a jury of one charge of committing an indecent act with a 16-year-old child ('JL') under his care, supervision or authority. He was acquitted of a charge of sexually penetrating the same child. On 22 June 2011, he was convicted by his Honour Judge Mullaly and fined $1,600. As a consequence of this conviction, AK became a 'registrable offender' for the purposes of the Sex Offenders Registration Act 2004 with a reporting period of eight years.

2 On 22 November 2011, Maxwell P granted AK leave to appeal against his conviction on the following grounds:

1. The learned trial judge erred in law in his directions to the jury as to the meaning of 'employer', for the purpose of the deemed relationship of care, supervision or authority provided by s 49(4) of the Crimes Act 1958, thereby giving rise to a substantial miscarriage of justice.

2. The jury's guilty verdict on count 1 on the indictment is inconsistent with its not guilty verdict on count 2, in that it was not open to the jury in all of the circumstances of the case to have a doubt in relation to guilt on count 2, but not the same doubt on count 1, thereby giving rise to a verdict on count 1 which is unsafe or unsatisfactory.

3 AK was a tennis coach and part-owner of an indoor tennis centre in a provincial city. In 2008, when JL was 14, she started playing tennis at AK's tennis centre. He was one of her coaches. AK was also the director of a fashion company. JL wanted to be a model. On 13 September 2008, she modelled in a 'photo shoot' for AK's fashion company. She was not paid but was given a bag of sample clothing and photographs for her modelling portfolio. In January 2009, she signed an agreement with a modelling agency which agreement gave the agency certain exclusive rights with respect to her activities as a model. The modelling agency was not connected in any way with AK.

4 On 7 July 2009, JL was 16 years old. She spent that night at AK's home, after being driven there by her mother so she could attend a photo shoot for AK's company at a particular location about 20 kilometres away very early the following morning. Others involved in the shoot were also expected to stay overnight at AK's home but they never arrived. JL's mother left her alone with AK, expecting their imminent arrival, at about 9pm.

5 The prosecution case was that, while seated on a couch after her mother left, AK kissed JL and started to slide her (outer) pants down (these two actions in combination gave rise to charge 1). AK and JL then moved to AK's bedroom where they engaged in penilevaginal sexual intercourse (charge 2, of which AK was acquitted). The following day, the photo shoot took place. JL's mother collected her from AK's house after the shoot at around 1pm.

6 The first issue for the jury in relation to the indecent act charge was whether the Crown had proved beyond reasonable doubt that AK kissed JL and started to take her clothes off or slide down her pants. If satisfied that this had occurred, the jury had to consider whether, at the time, JL was under AK's care, supervision or authority. Absent the jury finding that she was, consensual sexual activity by AK with JL would not constitute a criminal offence, as she was over the age of 16.

7 JL gave evidence that, whilst sitting on the couch in his living room, AK had placed her fingers in his mouth and then positioned himself on top of her. He started to kiss and touch her but she said 'stop'. AK then sat behind her on the couch and started touching and kissing her again. This time, she did not say anything. He started to undress her by sliding her pants down. She asked if they could go to his bedroom because she did not want to be exposed on the couch.

8 The prosecution case as to JL being under the care, supervision or authority of AK at the relevant time was put on the basis that he was, relevantly, her employer,[2] and that, in any event, taking into account all the circumstances of the case, including that she was dropped off by her mother to stay overnight, that there was no other adult (or indeed any other person) at AK's home, her age, AK's age and the relationship between her and AK, she was under his care, supervision or authority.

9 The prosecutor submitted that the record of AK's police interview gave the jury 'a window into Mr King's own view of his role'. During that interview, it was (incorrectly) put to him that JL had said that he had given her an alcoholic drink. He told the police that she had not had any alcohol because he would not permit it. He said:

there was no drinking. There was ― she had no drink, alcohol at all or ― the ― that's 100 per cent, I ― no ― no way did she have a drink. There wasn't ― I wasn't ― anyone having a drink in my supervision, I suppose or my ― that was underage drinking while I'm there. I just don't let that happen full stop. (emphasis added)

10 The Crown case as to employment was based on the fact that JL agreed to stay at AK's home, as part of the arrangement by which she would take part in the photo shoot in return for some form of reward even if only in kind rather than money.

11 AK did not give evidence at the trial. His counsel proffered the record of his police interview, however, as an honest and straightforward account of what happened. He led evidence of good character. AK had no prior convictions and a number of his friends gave evidence as to his reputation for honesty. His counsel argued that these matters could be used when assessing the credibility of his denial of the allegations.

12 Under questioning by police, AK agreed that there was a brief kiss between him and JL whilst they were on the couch but said that nothing further happened. The kiss occurred in the context of a 'flirtatious' situation. He said that JL knew that he had a partner and that she had made it clear to him that she had broken up with her boyfriend. AK denied taking off or attempting to take off JL's clothing.

13 The defence case was that there was no care, supervision or authority because AK was not JL's employer, nor did she think of him as such; nor for any other reason relating to the circumstances of the case generally was she under his care, supervision or authority. JL, in her original report to police in 2009, did not mention that AK was her boss. At that time, police told her that charges would not be pursued against AK. It was only in 2010, after speaking to others (including her uncle, a police officer), that JL started to refer to AK as her boss.

14 At the relevant time, JL had a formal working contract with a modelling agency. She did not notify the agency to which she was contracted of the shoot, nor pay it commission as she acknowledged she should have done had she been employed by AK. AK denied that he paid JL anything for the photo shoot and said he could not recall whether he had paid her for work she had done earlier at his tennis centre.[3] JL gave evidence that she was paid $100 in cash for both the work she had done at the tennis centre and for the photo shoot. She said she was also given 'a full CD of the photos' ― presumably those taken on the shoot. JL's mother gave evidence that JL had $100 when she picked her up after the photo shoot. Under cross-examination, she said that JL 'wasn't meant to be paid for the modelling but it seemed an extraordinary amount for a couple of hours work at the tennis centre'.

15 The first of AK's grounds of appeal challenged the correctness of the trial judge's jury directions on the issue of whether AK was relevantly JL's employer at the time of the alleged offences so as to enliven the deeming provision found in s 49(4)(e) of the Crimes Act 1958. So far as relevant to this case, s 49 provides:

(1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority.

...

(4) For the purposes of subsection (1), and without limiting that subsection, a child is under the care, supervision or authority of a person if the person is -

(a) the child's teacher;

(b) the child's parent, adoptive parent, foster parent or step parent;

(c) the child's legal guardian;

(d) a minister of religion with pastoral responsibility for the child;

(e) the child's employer;

(f) the child's youth worker;

(g) the child's sports coach;

(h) the child's counsellor;

(i) the child's health professional;

(j) a member of the police force acting in the course of his or her duty in respect of the child;

(k) employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of his or her duty in respect of the child.

...[4]

16 Section 48 is the companion provision to s 49. Under s 48(1), it is an offence for a person to take part in an act of sexual penetration with a 16- or 17-year-old child who is under the person's 'care, supervision or authority'. Section 48(4) mirrors s 49(4), listing the same categories of relationship deemed to involve care, supervision or authority.

17 As noted earlier, the prosecution case was put in two ways ― first, that AK was (at the time of the offence) JL's employer; alternatively, that she was in any event under his care, supervision or authority. In charging the jury on the issue of employment, the trial judge said:

Now, the concept of employment would be familiar to you all. That is, that if you are employed, someone employs you, there are contracts, there are wages, for the work that you do. Labour given, and a benefit or wages. And of course, that is a criteria that you can apply in considering this topic. But for [JL] to be an employee of [AK] it does not have to be some formal agreement or contract, nor does the relationship of employee/employer have to be longstanding or continuing. It can be at hoc, or a oneoff arrangement that arose because of the circumstances that existed between them at the time. But it has to be a relationship of employment, where [AK] has the authority over [JL] to have her do what he asks of her. There may be, in return, that she receives something for her efforts, either money or goods or further opportunities or references or the equivalent. In short, there does not have to be employment for wages and wages alone.

So it is not a matter of just looking to see whether there is wages or superannuation is being put aside, and unless you have that, then a person is not an employee. The purposes of the legislation is to protect young persons from sexual exploitation by someone in a position that is in practical terms, and given all the circumstances, one of employer.

18 Counsel for AK challenged the correctness of the above passage. In particular, he complained that the direction as to employment was too broad. He submitted that there was no legislative warrant for his Honour to describe the relationship of employer and employee in terms which suggested that the jury could find that the relationship of employment existed even in the absence of formal agreement, in the absence of a longstanding or continuing relationship or in circumstances that were 'ad hoc' or 'one off'.

19 Prior to charging the jury, the trial judge had discussed with counsel his proposed direction as to employment. Initially, senior counsel for AK (who was not counsel for AK in this Court) took issue with some aspects of his Honour's draft charge on this point but he eventually accepted as accurate a formulation put by the judge in these terms:

It has to be a relationship of employment where he has the authority over her to have her do what he asks her to do.

20 The trial judge used this formula in his charge. However, senior counsel then took a different exception ― namely, to the judge's reference to employment being possibly constituted by an ad hoc or informal arrangement. He argued that the jury should also be told that the same characteristics of such arrangement as existed between AK and JL in this case might lead the jury to conclude that AK was not JL's employee because it was 'just too informal, it was just friends'.

21 The trial judge accepted counsel's argument and redirected the jury in the following terms:

Just in relation to the direction I gave you about the care, supervision, authority about employment and, of course, I said that an employment relationship can be ad hoc and one off and that is a matter for you to take into account. Of course, if something becomes so informal and so ad hoc, then that might be an indication that it is not an employment relationship, might lead you to consider, well, this is too informal, this is just friends who are doing things to help each other, as [senior counsel for AK] argued. Keep that in mind as well.

No further exception to the judge's directions as to employment was taken by counsel at trial.

22 In R v Howes, which concerned s 48, the Court considered the types of relationship which might place a child under the care, supervision or authority of another person. Brooking JA (with whom Winneke P and Chernov JA agreed) said:

It is clear from s 48(1) that the child must be in the relationship mentioned (under care, supervision or authority) at the time of the sexual act. Whether this was so is a question of fact for the jury. The relationship may be an ad hoc one, which has come into existence only on the day of the offence and which is to endure only for a few hours, as in R v Rigby. The parties to the relationship will often fall into a readily definable category, but this is not essential. The relationship may well be a standing one, but again this is not essential. Examples of what I would call a standing relationship are that of schoolteacher and pupil regularly taught by that teacher, general practitioner or psychiatrist and patient receiving regular treatment; priest and person regularly receiving spiritual guidance; employer and permanent employee. ('Regularly', 'regular' and 'permanent' do not imply that a person may not come under the care, supervision or authority where there is no regularity about the treatment or guidance or no permanency about the employment.)[5]

23 Parliament has now specified (in ss 48(4) and 49(4)) a number of 'readily definable categories' of relationship of the kind referred to by Brooking JA. If it is proved (or admitted) that the relationship between perpetrator and victim at the time of the sexual act fell into one of those categories, that will establish ― without more ― that the victim was under the care, supervision or authority of the perpetrator.

24 Most of the categories raise no difficulties of definition. For example, there is likely to be little dispute over whether the alleged perpetrator was at the relevant time 'the child's teacher' or 'the child's sports coach'. The existence of an employment relationship will likewise be uncontroversial in the typical case where the victim is in permanent full-time or part-time employment with a particular employer.

25 Outside what might be called conventional employment relationships, however, the question whether one person is another's employer can be a question of some complexity. Thus, the distinction between an employee and an independent contractor has been productive of much litigation.[6] Moreover, the answer to the question may differ according to the statutory context.[7]

26 Ad hoc and informal arrangements of the kind in issue in the present case raise especially difficult questions of characterisation.[8] In such borderline cases, debates over whether (sufficient of) the indicia of employment are present are likely to be confusing to jurors, and will tend to divert them from the critical question, which is whether the victim was in the perpetrator's care or under his or her supervision or authority.

27 In the present case, the prosecution simply did not need to rely on the 'employer' category in s 49(4). Irrespective of whether JL was 'employed by' AK at the relevant time, there was cogent, compelling and uncontested evidence that she was under his care, supervision or authority. (That was, of course, the alternative basis on which the Crown had gone to the jury.)

28 JL's mother said in her evidence that, when she took JL to AK's home, she stayed for some time and had a drink with him. She said that the fact that other people were coming to stay was discussed and, before she left, AK told her that she had no need to stay there as he would look after her daughter and the other people were meant to arrive 'at any time'. Although she was cross-examined, in the course of which she expanded upon the conversation she had had with AK before she left his house, she was not challenged in any way as to the substance of her account of what AK said to her about caring for JL after she left.

29 To this uncontradicted evidence must be added the general circumstances surrounding JL's presence at AK's home, including her age; and AK's acknowledgment at interview that she was 'under age', at least with respect to drinking, and that she was 'in [his] supervision'.

30 The judge's direction on this part of the case was clear and uncomplicated, and unimpeachable:

The prosecution case, of course, is that even if you find there was no employer / employee relationship in the broad sense that I have defined that term, then nonetheless, the second way that the Crown says that this element is proved is that [JL] stayed the night at [AK's] house, and in all the circumstances, the relationship was one of care, supervision and authority.

Now, care, supervision and authority are ordinary English words. You do not have to find that [AK] played all three roles, as it were. It can be care, or supervision, or authority. Care can be looking after someone, taking care of them. Having that responsibility for them. Again, it does not have to arise through some formal agreement. It does not have to be explicitly discussed between the accused and anyone else. The status of care, supervision and authority may arise because of the circumstances and go without saying. It may be a one-off thing.

31 In the circumstances, the evidence established beyond reasonable doubt that JL was under AK's care, supervision or authority at the relevant time. It is therefore unnecessary to decide whether the judge's direction with respect to employment was technically correct or not. The alternative case as put forward by the Crown was made out. There was no miscarriage of justice.

32 This ground raises alleged inconsistency between the verdict of guilty on charge 1 (indecent act) and the verdict of not guilty on charge 2 (sexual penetration). AK contends that there is a factual inconsistency between these verdicts as that concept was explained in Mackenzie v The Queen;[9] that is to say, that there is a logical inconsistency between the verdicts returned by the jury, such that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion they did.

33 AK's case as to inconsistency is based on an argument concerned with the credit of JL. He argued that, if the jury entertained a doubt as to whether the actus reus of charge 2 was made out, it was compelled to entertain a similar doubt with respect to charge 1. He submitted that JL's evidence as to charge 2 must have been rejected and that there was nothing in that evidence or the surrounding circumstances which distinguished the reliability of it from her evidence as to charge 1. Therefore, a logical inconsistency follows such as to require this Court to regard the jury verdict on charge 1 as unsafe and unsatisfactory.

34 The Crown contested this argument, largely by reference to AK's police interview, where, it submitted, he made important admissions concerning the actus reus of charge 1. Although he denied trying to pull down JL's pants, he conceded to police that he and JL were on the couch together and that there had been some flirting. When asked what happened, he initially mentioned nothing of any kissing. Later, he conceded that there was a kiss but qualified his involvement in it: 'It was a kiss but not me kissing her necessarily at all'. Later still, he admitted the possibility that he had initiated the first contact, involving a kiss on JL's neck, and that their lips had then touched ― although, 'it was certainly not ― not passionate or anything like that...'. It would be not unreasonable for the jury to have seen his concessions as supporting JL's evidence to some extent.

35 The Crown characterised these statements of AK as admissions that a sexualised encounter had taken place between him and JL and that he had placed himself in a sexually compromising position with respect to her. The Crown argued that his statements to the police went some way, at least, to support the proposition that he had a sexual interest in her.

36 On the other hand, the Crown submitted, the respective versions of JL and AK as to what occurred in the bedroom were diametrically opposed. There were no relevant admissions or quasiadmissions and, in particular, AK emphatically denied penile/vaginal sexual intercourse. Thus, unlike the events with respect to charge 1, there was no support for JL's evidence as to charge 2. A conscientious jury may well have considered AK's statements to the police as supporting JL's account of the events constituting charge 1 and as justifying a verdict of guilty on that charge. Equally, the lack of such support for her evidence which respect to charge 2 may have led it to have a reasonable doubt as to that charge.

37 The Crown submissions must be accepted. There is no necessary inconsistency which would lead to a conclusion that the jury verdict in respect of charge 1 was unsafe or unsatisfactory. It was clearly supported by the evidence.

38 AK having been unsuccessful on both of the grounds argued in support of this appeal, it should be dismissed.

[1] The abbreviation is for ease of reference, not anonymity.

[2] Thus enlivening the deeming provisions found in ss 48(4)(e) and 49(4)(e) of the Crimes Act 1958: see [15]-[16] below.

[3] JL gave evidence that she did two or three hours' work behind the counter at AK's tennis centre on 3 July 2009.

[5] Ibid 161 [63] (citations omitted) (emphasis added).

[6] See, eg, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.

[7] See Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537.

[8] See Victorian WorkCover Authority v Game [2007] VSCA 86; (2007) 16 VR 393.

[9] (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ).