Nguyen v Director of Public Prosecutions

JUDGMENT

1. GARLING J: I agree with Button J that the question in the stated case should be answered "No".
2. I would like to add to his reasons the following remarks.
3. On the facts found in both the Local Court and the District Court, which were incorporated into the stated case, the video taken by the applicant of her dead housemate who had committed suicide and whom she identified by name, was indecent by any contemporary standard. As well, there was no issue that by uploading the video to her Facebook account, the applicant published that indecent video contrary to s 78(C)(2) of the Crimes Act 1900.
4. The maximum penalty for an offence contrary to s 578(C)(2) was 12 months imprisonment or a fine up to $11,000.
5. On 21 October 2021, the Local Court found the applicant guilty of the offence, but did not proceed to a conviction. Instead, a Conditional Release Order ("CRO") for a period of 6 months was imposed pursuant to the provisions of s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
6. The applicant appealed to the District Court. By the time her appeal was heard, the CRO had expired. Whilst the applicant retained a right of appeal from the Local Court, in circumstances where she had not been convicted of any offence and the CRO had expired, the appeal to the District Court had little, if any, practical purpose or benefit to the applicant.
7. On 22 April 2022, Noman SC DCJ ("the Judge") dismissed the appeal and delivered concise oral reasons.
8. Notwithstanding that by this time the applicant had not been convicted of any offence and her CRO had expired, her counsel sought that the Judge state four questions for this Court to determine pursuant to ss 5B(1) and 5B(2) of the Criminal Appeal Act 1912 by way of stated case. The Judge found that those four questions ventilated issues which were not raised in the hearing before her. Accordingly, she submitted to this Court only one question which is set out in Button J's judgment.
9. Notwithstanding the refusal of the Judge to state any other question, the applicant's submissions to this Court, in writing, asked the Court to answer the three questions which the Judge had declined to state. Such an approach is fundamentally mistaken as s 5B confines this Court to determining any question of law which is submitted to it. It cannot determine a question which the Judge declined to state. Nor can this Court ask itself a question by amending a stated case to include it.
10. In oral submissions, counsel for the applicant abandoned all of the written submissions on the three questions which were not part of the stated case from the District Court, and confined his submissions to the question that was actually submitted to this Court and which this Court had jurisdiction to determine.
11. In counsel's written submissions, it was put that proof of an offence under s 578C(2): "… requires proof of a guilty mind with respect to the indecency of the article - i.e., knowledge or belief as to the article being indecent" (emphasis added)
12. Counsel for the applicant further submitted that although there was no express reference to such an element of knowledge or belief in the text of the section, the Court should apply the "common law presumption" that an accused person must be shown to have known of the wrongfulness of their act, and answer the question: "Yes".
13. In oral submissions, counsel for the applicant abandoned the submission advanced in writing that for an individual to be convicted of this offence, the prosecution had to prove beyond reasonable doubt that the individual had actual knowledge, or else a belief, that the article published was indecent.
14. Orally, counsel put a different proposition. He submitted that the prosecution was required to prove, before an offence could be established, that the person "knows or believes that objectively the material is indecent". Counsel described this formulation as a mixed subjective and objective requirement.
15. The applicant's further submissions elucidated the proposition that this Court should define, as an element of an offence against s 578C(2), that the prosecution must prove that the person charged with the offence knows or believes that, according to the standards of ordinary, reasonable people, the published article was indecent.
16. The Court raised with counsel the question of whether, in the formulation which he sought to advance orally, there was any room for proof of an offence if a person was reckless to the question of knowledge of the indecency of an article, or else deliberately did not turn their mind to the issue of indecency. Counsel submitted that in those circumstances, the person would not have committed any offence. Indeed, he went so far as to argue that if a person published an article which was indecent by the standards of a community of reasonable people but was not indecent by the standards of the person publishing the article, then having regard to their own subjective view of the matter, the person would not be guilty of an offence. Ultimately, however, it appeared that counsel resiled from this construction. He suggested that perhaps if a person had a subjective belief which was entirely outside the bounds of reasonableness, then such a belief would not preclude proof of the offence. Finally, he returned to the position described in the preceding paragraph.
17. Counsel's submissions about the need for the prosecution to prove that a person knew or believed that the article was indecent seem to ignore the effect of the decision of this Court in R v Wampfler (1987) 11 NSWLR 541. That case involved an offence against s 6(1) of the Indecent Articles and Classified Publications Act 1975, which was relevantly in identical terms to s 578C(2) of the Crimes Act. Street CJ (with whom Hunt and McInerney JJ agreed), after setting out the various principles relating the common law presumption of the existence of mens rea and to the judgment of the High Court of Australia in He Kaw Teh v The Queen (1985) 157 CLR 523, said this at p. 547: "In light of these enunciations of principle, it becomes necessary to classify the offence … On its face, the statute does not expressly require knowledge on the part of the accused person and there is an inadequate basis for construing it so as to import an express obligation on the prosecution in this regard."
18. Counsel did not invite this Court to depart from this decision on the basis that it was plainly wrong. Rather, he sought to draw a distinction between the offence provisions in Wampfler and the offence provisions here. That was a distinction wholly without any difference.
19. In my view, the case for the applicant - as articulated in both the question which was stated to this Court, and in counsel's written and oral submissions in support of his contention for an affirmative answer to that question - was hopeless. Counsel was seeking an affirmative answer: 1. in the face of an absence of any words which would require the Court to give an affirmative answer; 2. directly contrary to a decision of this Court, which counsel did not ask this Court not to follow; and 3. in circumstances where such an interpretation of the section would be contradictory to the purposes of legislation which regulates the publication of indecent articles.
20. If the Court had the power to dismiss the appeal without answering the question stated then, on the basis of the absence of any merit, and, as described earlier, the absence of any practical utility to the determination of the question in this case, I would have been inclined to decline to answer the question.
21. However, I agree that in the circumstances, it is appropriate to answer the question in the way Button J proposes.
22. ADAMSON J: I have had the benefit of reading the reasons of Button J in draft. I agree with his Honour that the question in the stated case ought be answered "No." It is well established that the characterisation of an act as indecent for the purposes of s 578C(2) of the Crimes Act 1900 (NSW) is to be determined objectively by reference to the standards of decency held by right-thinking members of the community at the relevant time: Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241 at [7] (Basten JA) and [39]-[40] (Campbell JA (Beazley JA agreeing)), following R v Manson (Court of Criminal Appeal (NSW), 17 February 1993, unrep) at 3 (Gleeson CJ, Clarke JA and Sully J agreeing). Mr Woods, who appeared for the applicant, has not persuaded me that there is any reason to revisit, much less doubt, the correctness of these authorities.
23. BUTTON J:

Introduction This is a case stated by the District Court pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW) concerning the mental element required to prove the offence created by s 578C(2) of the Crimes Act 1900 (NSW) - publishing an indecent article ("the offence").

Background

1. On 22 April 2022, Judge Noman SC sitting in the District Court at Sydney dismissed an appeal against conviction brought by Ms Ngoc Nguyen (the applicant). Ms Nguyen had previously been found guilty of the offence in the Local Court. The facts in brief were as follows.
2. Ms Nguyen shared a house in a suburb in Sydney with her flatmate. The flatmate hanged herself inside the bathroom at the address. The applicant discovered her body. The applicant took a video of the body of the flatmate in two separate positions and posted this video to her private Facebook account, identifying the body as that of her housemate, along with the cause of death.
3. Upon arrest in light of that conduct, the applicant was interviewed by police and made admissions about the physical element of publication, including the following statements: "I just want to inform my friends about it and I don't know what to do", and "I just feel very shock for what happened at my house". In response to a question asking if she knew it was an offence to publish such a video, she said "No, this has never happened to me."
4. After Judge Noman found all elements of the offence proven and dismissed the appeal against conviction, counsel for the applicant, by email of 14 May 2022, sought to have a question stated for this Court. After some reformulation, four proposed questions were provided to her Honour by counsel.
5. In the event, after having stated the case to this Court in accordance with the sketch above, the only question of law submitted by her Honour on 19 May 2022 was as follows: "In proceedings against a person for publishing an indecent article contrary to s. 578C(2) of the Crimes Act 1900, is the prosecution required to prove that the person knew or believed that the article was indecent?"
6. Separately, the offence-creating provision, s 578C of the Crimes Act, in its entirety is as follows: 578C Publishing indecent articles In this section - article includes any thing - that contains or embodies matter to be read or looked at, or that is to be looked at, or that is a record, or that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c) but it does not include - any film that is classified (other than as RC or X 18+) under the Commonwealth Act, or any publication that is classified Unrestricted, Category 1 restricted or Category 2 restricted under the Commonwealth Act, or any computer game that is classified (other than as RC) under the Commonwealth Act, or any film, publication or computer game that is the subject of an exemption under Division 3 of Part 6 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. computer game, film and publication each have the same meanings, respectively, as in the Commonwealth Act. publish includes - distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a), or print, photograph or make in any other manner (whether of the same or of a different kind or nature) for the purpose of doing such an act. record means a gramophone record or a wire or tape, or a film, and any other thing of the same or of a different kind or nature, on which is recorded a sound or picture and from which, with the aid of a suitable apparatus, the sound or picture can be produced (whether or not it is in a distorted or altered form). A person who publishes an indecent article is guilty of an offence. Maximum penalty - in the case of an individual - 100 penalty units or imprisonment for 12 months (or both), and in the case of a corporation - 200 penalty units. (2A)-(2C) (Repealed) Nothing in this section makes it an offence for - a person to publish an indecent article for the purposes of an application for classification under the Commonwealth Act, for any member or officer of a law enforcement agency (within the meaning of the Criminal Records Act 1991) to publish an indecent article in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under any Act or law. (3A) A person cannot be convicted of an offence against this section and section 91H in respect of the same matter. For the purposes of this section, an article may be indecent even though part of it is not indecent. Proceedings for an offence under subsection (2) are to be dealt with summarily before the Local Court. (5A) (Repealed) In any proceedings for an offence under this section in which indecency is in issue, the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) is admissible as evidence. If a corporation contravenes, whether by act or omission, another provision of this section, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the provision if the person knowingly authorised or permitted the contravention. A person may be proceeded against and convicted under a provision pursuant to subsection (7) whether or not the corporation has been proceeded against or been convicted under that provision. Nothing in subsection (7) or (8) affects any liability imposed on a corporation for an offence committed by the corporation under a provision of this section.

Submissions of the applicant

1. At the hearing, counsel for the applicant withdrew all reliance, with respect appropriately, on his written submissions which sought to reagitate those questions that had been formulated before her Honour, but that had not been part of the case stated for this Court.
2. The applicant's central position was that proving the question of indecency required a mixed subjective and objective approach, which required proof of a particular knowledge or belief on the part of a person in the position of the applicant. It was said that the article must not only be proven to be indecent according to the standards of ordinary members of the community, but also proven to have been known or believed by the applicant to be indecent, in the sense of being contrary to community standards.
3. Reliance was placed on Environment Protection Authority v N (1992) 26 NSWLR 352, and the fundamental common law presumption that it is necessary for the prosecution to prove a guilty mind in order to secure a conviction. This presumption was said to apply to an offence-creating provision, unless it was displaced by an analysis of the words, the subject matter, and the mischief against which the offence was directed. The applicant submitted that, in the circumstances of s 578C(2), this presumption was not displaced.
4. It was submitted that the inclusion of a requirement of knowledge in s 578C(7) for inculpation of an individual who is the director of a corporation necessitated implying a knowledge requirement for an individual with regard to subsection (2). Not to do so, it was said, would be to create inconsistency within the section, in that different mental elements would be required to be proven in different circumstances.
5. The applicant also contended that an interpretation of s 578C(2) that did not require the prosecution to prove a subjective mental element beyond reasonable doubt could not effectively promote the purpose of the offence-creating provision, in situations where people who are to be penalised are unaware of the indecency of the article. In such situations, it would be impossible for the criminal law to act as a deterrent.
6. It was conceded that pursuant to the contended for interpretation, neither a person who failed to turn their mind to whether an article was indecent nor a person who had firmly held but extreme views about what was or was not contrary to community standards, could be found guilty of this offence. However, it was submitted that the interpretation would inculpate a person who, despite their idiosyncratic views about extremity, understood their incongruence with community standards. It was submitted that this is where the mixed subjective/objective element advanced had work to do.
7. Counsel for the applicant advocated against a strict interpretation of the section whereby a so-called "luckless accused" with no guilty mind, may be incarcerated.
8. Counsel reflected on the decision in Wampfler v R (1987) 11 NSWLR 541, which dealt with the near identical predecessor of the offence. It was urged that the statute needed to be interpreted, not by reflecting upon what Parliament intended when enacting the offence, but in the context of Australia in 2022.
9. Counsel accepted that an offence of assaulting a police officer while executing their duty (see s 60(1) of the Crimes Act), whereby an accused person can be found guilty of the offence even despite not knowing of the existence of the "external element" may be thought of as an example against his thesis. But his response was that the analogue is unhelpful, because it is always an offence to assault another person, police officer or not. This was compared to the offence-creating provision here, in which the "external element" - simply publishing an article - is not unlawful.
10. Referring to the subject matter of the offence-creating provision, counsel emphasised that it could potentially infringe upon an important right, that being the free expression of views held by people in the community.
11. Counsel for the applicant urged that an interpretation should be made of the offence-creating provision within the text and context of the Crimes Act as it now stands. It was submitted that it should not be interpreted as if amended sections that previously contained offences of indecent assault and committing an act of indecency remained. The point was that the long-understood meaning of indecency in the context of those more serious offences should not stand in the way of the contended for interpretation of this offence.
12. Finally, despite accepting that the maximum penalties of other offences into which a mental element has been implied are more severe than here, it was maintained that imprisonment, even for 12 months, as a maximum penalty favours a more stringent interpretation of the mental elements of this offence.

Determination

1. Respectfully, for a plethora of reasons in general concordance with the submissions in this Court of the Crown, the contentions of the applicant must be rejected, and the question answered simply "No".
2. Accepting that there is a general presumption that offence-creating statutes are speaking of offences within which most physical elements attract mental elements of some kind, that presumption is firmly rebutted here, by way of the combined force of the following aspects of the matter. I state them in descending order of generality, except for the last paragraph, which provides a contingent analysis.
3. For many decades, the understanding of the criminal law of England and Wales, New South Wales, and, it seems, New Zealand, has been that indecency is an element in criminal offences that is wholly objective, based upon the contemporary standards of ordinary members of the community. It does not require a mental element (whether intention, knowledge, recklessness, or anything else) about that attribute on the part of an accused person: Purves v Inglis (1915) 34 NZLR 1051; Crowe v Graham (1968) 121 CLR 375 at 390: [1968] HCA 6; R v Court (1988) 87 Cr App R 144; R v Harkin (1989) 38 A Crim R 296; R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293 at [56]; Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173: [2010] NSWCA 241 at [7]. The submission for the applicant flies in the face of that authority.
4. If one were to accept the thesis of the applicant, it would not be difficult to bring to mind examples whereby eccentric or thoughtless people could publish profoundly indecent articles without any sanction from the criminal law, if it could not be proven beyond reasonable doubt that such people were aware that the article was contrary to the standards of ordinary people. It is impossible to accept that such an outcome accords with the objective intention of Parliament in creating and maintaining an offence such as this.
5. As shown above, the maximum penalty of this offence (for an individual) is imprisonment for 12 months or 100 penalty units. It is a wholly summary offence. In contrast, the offence under discussion in He Kaw Teh v The Queen (1985) 157 CLR 523: [1985] HCA 43 carried a maximum penalty of imprisonment for life, and was strictly indictable. In Environment Protection Authority v N, a judgment upon which counsel placed great weight, the offence under discussion carried a maximum penalty on indictment of a fine of $1 million for a corporation, and imprisonment for 7 years and a fine of $150,000 or both in the case of an individual: see 354E of the judgment. Although both cases speak of the presumption that I accept is the starting point of this analysis, the marked difference in maximum penalties is a sufficient point of differentiation for the outcomes in both of those cases to be rendered of little further use in resolution of the question.
6. It is not particularly uncommon that even serious criminal offences require proof of no mental element on the part of an accused person with regard to a physical element, or an objective element for the evaluation of the jury. Examples that spring readily to mind are the element of "actual bodily harm" within the offence of assault occasioning actual bodily harm in s 59 (maximum penalty of imprisonment for 5 years); "wounding" within the offences of armed robbery or robbery in company with wounding in s 98 (maximum penalty of imprisonment for 25 years); and "dangerousness" within the offence of dangerous driving occasioning death in s 52A of the Crimes Act (maximum penalty of imprisonment for 10 years). The orthodox understanding of indecency attracting no mental element on the part of an accused person is unusual within criminal law, but by no means remarkable, let alone untenable.
7. The contention for a "mixed objective/subjective" mental element is founded upon the mental element that underpins the concept of dishonesty in New South Wales: see s 4B of the Crimes Act, and the recent discussion of it by this Court in Bazouni v R [2021] NSWCCA 256. But that unusual (if not unique) mental element has the clear statutory foundation identified immediately above. In contrast, this offence has no such foundation; indeed, it has no explicit statutory foundation at all.
8. Between 1900 and 2018, many serious sexual offences contained in Part 3 Div 10 of the Crimes Act were founded upon the concept of indecency. That is the same Act in which this offence has been located since 1996. One can reject without difficulty the proposition that, during the period that those more serious offences based upon indecency and this offence based on the same attribute co-existed in the same statute, the former were wholly objective, but the latter featured (and still features) the mixed mental element for which the applicant contends.
9. Relatedly, and contrary to the submission for the applicant, in my opinion the objective intention of Parliament with regard to the meaning to be given to an offence in terms of its fundamental building blocks in the form of its elements does not change over time. Whilst it is true that the meaning of "indecency" may do so, and the meaning of "reasonable" within the "defence" may even do so, whether or not the element of indecency attracts a mental element does not.
10. Although the offence-creating provision at s 578C(7) explicitly requires an individual person to have acted "knowingly" in order for that person to be inculpated by way of a contravention of the section by a corporation to which that person is connected, that adverb does not appear within s 578C(2). Parliament could readily have inserted it, or some variant. In other words, contrasting aspects of the offence-creating provision itself argue against the thesis of the applicant.
11. The offence in its orthodox understanding requires the mental element of intention to attach to the physical element of publication. It also requires proof, beyond reasonable doubt, to the satisfaction of a judicial officer or twelve members of a jury that the article is indeed contrary to the standards of ordinary members of the Australian community in 2022.
12. The authority of Wampfler v R, pertaining as it does to the very similar predecessor of the offence-creating provision, strongly suggests that the offence is one of strict liability, and thereby features the "defence" of honest and reasonable mistake of fact, including about the element of indecency. If such a mistake arises on the evidence, and it cannot be disproven beyond reasonable doubt by the prosecution, then an accused person is entitled to be acquitted of the offence.
13. Furthermore, the position of a person who is found guilty of the offence, but who is truly ignorant about the indecency of what they have published can be ameliorated on sentence, including, as appropriate, by not proceeding to conviction at all.
14. Those three attributes of the offence and its punishment ameliorate its strictness in practice, and render the submissions of the applicant based upon the truly ignorant offender unpersuasive.
15. It may be accepted that an offender ignorant about the indecency of the material that they publish will not be deterred from committing the offence, at least on the first occasion on which they may commit it. But there are many more purposes underpinning sentencing than merely personal deterrence; three that spring readily to mind that could be pertinent to this offence are general deterrence, denunciation, and, if needs be in the case of a truly recalcitrant repeat offender, incapacitation: see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54].
16. The decision in Wampfler v R was handed down in 1987 with regard to the predecessor of the offence. As I have said, it spoke of the predecessor as a strict liability offence; in other words, an offence that did not require proof of a mental element about indecency, but one that permitted the "defence" of honest and reasonable mistake of fact to be raised about that element. The offence was relocated from s 6(1) of the Indecent Articles and Classified Publications Act 1975 (NSW) to the Crimes Act in 1996, eight years after the decision in Wampfler v R. Parliament must be taken to have understood the way in which the predecessor of the offence-creating provision had been judicially interpreted. And yet Parliament was content to re-enact the offence with minor amendments, none of which were to do with an asserted mental element about indecency. In short: the legislative history argues powerfully against the mental element for which the applicant contends.
17. Finally, and on the contingent assumption that all of the above analysis is wrong, even if the contention for the applicant were correct, the question asked by her Honour would still need to be answered in the negative. That is because the applicant does not submit that "the prosecution [is] required to prove that the person knew or believed that the article was indecent", to repeat the exact words of the judicial question. On a straightforward reading, that is a wholly subjective formulation. Her submission is that something very different needs to be proven: a mixed objective/subjective element.

Proposed answer to stated case

1. For all of the above reasons, I propose that the question at the conclusion of the stated case should simply be answered "No".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2023