R v Howes [2000] VSCA 159

5. The facts upon which the applications fall to be determined have been set out in the reasons for judgment of Brooking, J.A. which I have had the advantage of reading. There is no need for me to repeat them.

8. The application for leave to appeal against conviction was initially based upon 5 grounds of which grounds 2 and 3 were divided into sub-grounds. Grounds 1 and 2 alleged that the trial had miscarried because of events which occurred during its course and which culminated in a direction which the judge eventually gave to the jury based upon the rule in Browne v. Dunn[1]. Ground 3A asserted that the learned judge had erred in his directions to the jury concerning the element, in the offence created by s.48, of "care, supervision or authority". Section 48(1) creates an offence in the following form:

"A person must not take part in an act of sexual penetration with 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."

Ground 3B averred that the jury's verdict was unsafe and unsatisfactory because there was no evidence upon which a reasonable jury, properly instructed, could have found that the aforementioned element was proved. The ground also contended that there was no evidence upon which a reasonable jury could have found beyond reasonable doubt that the relevant sexual penetration had occurred. No argument was advanced to this Court in support of grounds 4 and 5.

13. I agree, for the reasons advanced by Brooking, J.A., that grounds 3A and 3B should be rejected. The words which describe the offence contained in s.48 of the Crimes Act - in particular the words "under the care, supervision or authority" of the accused - have been the subject of differing interpretations in the County Court.[2] Although the facts of those cases differed, each of the judges were of the view that the words "under the care supervision or authority" created a genus or class, and reliance was placed upon the decision of the Full Court in Deeley v. Stirrey[3]. I agree with Brooking, J.A. that the words of the section do not create a genus; rather they should be given their ordinary grammatical meaning which, notwithstanding that they are to be read disjunctively, does not lead to the conclusion that more than one offence is thereby created. To give the words any other construction will be to circumscribe the meaning which was intended to be given to them by the Parliament. In my view, the words are apt to describe circumstances which are wider than those which demonstrate that the child complainant is, at the time of sexual penetration, actually or temporally under the care, supervision or authority of the accused (for example, baby-sitters or child-carers). The offence created by the section is also aimed at those who, by virtue of an established and on-going relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of that relationship. The words of the section cannot sensibly mean that, in a case such as the present, a child pupil ceases to be under the care, supervision or authority of his or her teacher when a teaching period concludes, or when school ceases for the day, or even when the school goes into temporary recess. It certainly cannot mean, in my view, that the relevant relationship ceases to exist because the parties agree during school session, to meet at a place remote from the school. That this was the intention of the Parliament in creating the offence becomes clear from the speech of the Minister when introducing, in 1980, the Bill which first created the concept of "care, supervision or authority" as an element of sexual offences. He said[4]:

"The Government is of the view that all young persons in this age category, whether boys or girls, should be protected from exploitation by all persons in positions of responsibility, that is, teachers, scout leaders, youth leaders, babysitters and such like."

At the time when the concept of "care, supervision or authority" was first introduced into s.48 by the Crimes (Sexual Offences) Act 1980, it was to provide a circumstance of aggravation for the offence of "taking part in an act of sexual penetration" with a person over the age of 10 years but under the age of 16 years. The circumstance of aggravation described by the 1980 legislation (s.48(3)) was the participation in the relevant act with a person "who is, either generally or at the time the offence is committed, under the care, supervision or authority" of the accused. Although, in later legislation the words, which I have emphasised, were omitted, they add nothing to what, in my opinion, is implicit in the words which follow them. Section 48, in its present form, was introduced by the Crimes (Sexual Offences) Act 1991, when the proscription against sexual penetration by an accused of children "under his or her care, supervision or authority" was extended to children of the ages of 16 or 17 years. The maximum penalty fixed for the offence was 3 years. By s.60 of the Sentencing and Other Acts (Amendment) Act 1997 (Act 48 of 1997) the maximum penalty was increased to 10 years, but only in respect of offences committed after the commencement of the amending Act (s.114 SentencingAct 1991).

18. It remains, of course, a question of fact and degree in a particular case, whether the complainant, at the time of penetration, is under the care, supervision or authority of the accused. But where, in cases such as the present, that relationship is an on-going one, the question is not to be answered by narrowly construing the circumstances in which sexual penetration occurred; but rather by considering whether the special position of responsibility arising from the relationship of teacher and pupil continues to subsist between the parties at the time of such penetration. The relevant question is whether a relationship of the stated kind exists at the time of penetration, and not necessarily whether the accused is actually exercising or exploiting his position of advantage at that time. The responsibility arising from that relationship cannot be turned "on and off" at the whim of the parties. Rather it will subsist so long as there exists a teacher/pupil relationship which gives rise to a capacity in the teacher to exploit or take advantage of the influence which the words creating the offence imply that he or she has over the pupil and so long as there exists the need, which the offence also implies, to protect the child from such capacity for exploitation; and this is so notwithstanding that the pupil may regard himself or herself as sexually mature. The purpose of s.43 is to impose restraint on the accused, not the victim. It is for this reason that the question whether, at the relevant time, the complainant was under the care, supervision or authority of the applicant, is not to be answered by evidence on the part of the complainant that she did not regard herself as being under the authority of the applicant at that time, or by her evidence that she was not compelled to go into the premises where penetration occurred.

21. I am, accordingly, in agreement with Brooking, J.A. that there was no error in the directions by which the learned judge left the element of "care, supervision or authority" to the jury. Those directions were consonant with what I regard as the proper meaning of the words "under the care, supervision or authority" of the accused. Indeed, if anything, the directions were, in the circumstances of this case, unduly favourable to the applicant because they left it open to the jury to find that the relevant relationship had ceased because the complainant had agreed that it was a private meeting which was unconnected with the teacher/pupil relationship. I also agree with Brooking, J.A. that there was abundant evidence upon which the jury was entitled to find that, in the circumstances of this case, the complainant was at the relevant time under the care, supervision or authority of the applicant.

24. I am also in agreement with Brooking, J.A. that there was ample evidence upon which the jury was entitled to find that the applicant had participated in an act of sexual penetration with the complainant.

27. It remains to consider grounds 1, 2A, 2B, 2C and 2D. In essence, these grounds assert that the trial miscarried as the result of improper intervention by the judge in the course of the cross-examination of the complainant by the applicant's trial counsel, and also as a result of the judge's directions thereafter to the jury to the effect that counsel had failed to comply with the so-called "rule in Browne v. Dunn".

30. This was a case where the versions given respectively by the complainant and the accused were diametrically opposed. Each gave his or her version on oath from the witness box. There was no independent evidence to corroborate the complainant's version of events and, having regard to the delay in complaint, the judge warned the jury that it would be dangerous to convict on the complainant's uncorroborated testimony unless, after thorough scrutiny of it and being conscious of the warning given to them, they were satisfied of its truth and accuracy. The case was, therefore, one where the credit of the complainant and the applicant was very much in issue.

33. On the complainant's version this was a case where, after months of sexually suggestive talk and behaviour towards her by the applicant, they met outside the cafeteria in the Melbourne University by a pre-arrangement made in Shepparton, whence he drove her in his car to his flat in Hawthorn where he plied her with whisky and champagne, got her drunk, inveigled her to remove her clothes, and then penetrated her. Two days later, at school, he left a note in her "prac. book" asking her to see him. He counselled her against saying anything about what had occurred, lest their reputations be damaged. On his version, her evidence was a tissue of lies. There was no pre-arranged meeting. He was at the University on his own business, when he saw her "hanging around" his car when he went into Royal Parade to get it; she accepted his offer of a "lift". He told her that he had to go "via his flat in Hawthorn". When they got there she came into the flat with him while he was collecting bed-linen to take home to Shepparton. She had consumed some wine which she found in the refrigerator. He had a drink from the same bottle after which he cleaned up the kitchen. He began to talk to the complainant about her future plans. She expressed resentment against her parents and then made a "sexual advance" towards him by putting her hand on his belt buckle. He pushed her away. She then accused him of being "no different" from her parents and, in an apparent fit of pique, ran out of the flat. He did not know where she went. He flatly denied her evidence about being sexually suggestive towards her either before or after these events. He also denied her version of the events which occurred when they returned to school.

36. During the course of cross-examining the applicant about his version of events, the prosecutor, on a number of occasions, made suggestions to him to the effect that "he had not heard defence counsel challenge the complainant" about a number of factual matters which the applicant had given in evidence. These propositions were challenged by the applicant's counsel, both as to their accuracy and want of relevance. The latter challenge was, I think, justified. His Honour then said:

"As far as that goes, I don't recall you putting any contradiction of the complainant's account that they met outside the ... cafeteria on the way to the library."

Although this matter had not been put to the applicant by the prosecutor, at least until then, the substance of it was accurate. Thereafter, in the presence of the jury, a long debate ensued between the judge and applicant's counsel about the sufficiency and propriety of the latter's cross-examination of the complainant, during the course of which his Honour said:

"I'm not suggesting anything save that you're obliged, under the rule in Browne v. Dunn, which you well know, to put the matters which are in contention - and that has not been put."

Applicant's counsel, who also appeared in this Court, contended that he had challenged the complainant's evidence that the meeting was by pre-arrangement and submitted that the details of the "chance meeting" were unimportant and not matters which he was bound to put. His Honour, it would seem, did not agree and said:

"My only adverse comment is directed to you, that you did not put what I regard as an important difference between them."

Thereafter, the prosecutor continued to cross-examine the applicant during the course of which he put a series of propositions in similar form to those to which we have previously referred, namely:

"You know your barrister didn't challenge her specifically about that either, did he?"

46. From a reading of the transcript, it would appear that the atmosphere at the trial became quite heated, with the prosecutor contending that certain matters had not been put, and applicant's counsel contending that they had. During the course of re-examining the applicant, counsel for the applicant was permitted to lead from his client, presumably on the basis that recent invention had been suggested, the text of written instructions which he had previously given to his solicitors which were, in substance, to the same effect as the evidence which he had given in chief.

49. Thereafter both prosecutor and defence counsel addressed the jury. I have had the advantage of reading the transcript of each address. The address of defence counsel was carefully crafted and skilful. He invited the jury to accept the evidence of the applicant and find that there was no sexual misconduct by him at all. In the alternative it was put that, even if the jury were to accept the evidence of the complainant, they should not be satisfied that there was any penile penetration of her, but that, even if there was, the jury should not be satisfied that such an act took place without the complainant's consent or in circumstances where the applicant was aware that she was not consenting. As one would expect, most of the address was directed towards the offence in count 1 - the offence of rape.

52. In the course of giving directions to the jury his Honour returned to the matter of counsel's duty to put matters of "material fact" in cross-examination to opposing witnesses. He described the obligation as a "rule of conduct" which was an "important rule because it exists ... to enable you to compare the evidence of one witness with that of another; in this case the complainant with the accused". His directions were given in general terms and did not descend to any detail although, because the matters had been previously canvassed in the presence of the jury, and in the addresses of counsel, they (the jury) would have understood the general topic to which the directions were addressed. His Honour, without referring to any particular topic of evidence, told the jury that a failure to comply with the rule might occur for a number of reasons, some of which were consistent with fairness and others not. His Honour then said:

"Where you get ... a whole series of matters introduced in the re-examination revealing that counsel had the instructions all along and introduced to rebut the inference that his client had invented the new matter after the witness on the other side had given evidence, and perhaps as late as in the witness box, the question arises whether counsel overlooked these matters in error during the course of his cross-examination ... or was just paying lip-service to the rule to avoid perhaps a devastatingly effective denial by the complainant or to destroy the effect of his opponent's cross-examination."

His Honour then told the jury that, if they concluded that there was a failure to comply with "the rule", they should not use it against the accused, nor against the prosecutor, nor "allow it to divert you from your task of arriving at the true facts".

57. Applicant's counsel took exception to these directions which, as he acknowledged, related to "the subject of a heated exchange between your Honour and I". He submitted that the topic of the meeting between the complainant and the applicant in Royal Parade was "not something upon which she needed to be tackled". He conceded, however, that because his Honour was of a different view, "some direction became necessary". It was submitted that in endeavouring "not to have the accused bear the brunt of an adverse comment about [him], your Honour has, however lowered in the eyes of the jury, my status ... and [that] may affect the way in which they view any arguments ... put to them by me".

60. In this Court, Mr. Priest contended that the events which I have described were prejudicial to the cause of the applicant and that, as a result, the trial had miscarried. He submitted that it had been unnecessary and inappropriate for the judge to have raised the question of compliance with the rule in Browne v. Dunn at the time when he did, and that, in any event, his Honour was in error in concluding that the rule had been breached. The remarks, so it was contended, had adversely affected the future conduct of the defence case. From that moment on, Mr. Priest submitted, the "atmosphere of the trial had been unfairly poisoned against the interests of the applicant". The unfairness was compounded, he contended, when the judge - without advising counsel - gave the directions which he did. Whatever intentions the judge had in giving these instructions to the jury, they only served to re-inforce in the minds of the jurors that the conduct of defence counsel had been unfair. Indeed, it was submitted, the directions had tended to invert the onus of proof.

63. There is, I think, nothing in these grounds of appeal. Although it seems to me that the events described assumed a status in the trial greater than they deserved, I am far from persuaded that the trial miscarried as a consequence of them. It is true that, in criminal trials, judges should exercise caution before suggesting that defence counsel has failed in his obligation to put material matters to an opposing witness, in breach of the "rule" of practice.[5] However, it is also true that, in a case like this one where the versions given by the principal witnesses are divergent and credibility is in issue, the trial judge is in a position of primary advantage to determine which factual issues are significant and whether the balance of fairness in the trial has been distorted by a failure to put them.

66. Whilst I would agree with the submission of Mr. Priest that counsel's duty of fairness extends only to putting to the opposing witness such aspects of his own client's case as are significant and material to the resolution of the issues in dispute, I am not persuaded that his Honour was in error in concluding, in the context of this case, that such matters did include the circumstances in which the applicant and the complainant had met at the University. It is one thing to suggest that the meeting had not been pre-arranged; it is another to suggest that the meeting had occurred when the applicant had returned to his car in a busy street and had found the complainant "hovering" near it. Such evidence suggests, by inference, that the complainant was "lying in wait" for the applicant, an inference which suggests that she had more in mind than a desire to be shown around the University as she claimed. The judge was entitled to regard such evidence as calculated to support his version that the complainant had made the initial sexual advance at the flat.

69. In any event, there is nothing in the material which suggests that his Honour's comments, the debate which ensued or the directions to the jury caused the trial to miscarry. It became quite apparent to the jury that the failure to put the details of the meeting was not the result of a "recent invention" by the applicant, because counsel was permitted to put before the jury the full written instructions which he had previously given to his solicitors. The addresses to the jury by both prosecutor and defence counsel were conducted on this basis. Although the judge's directions on this topic were "non-specific", the jury could not have been in doubt that they were directed to the matters which had been raised in their presence so shortly before. Those directions, as counsel had conceded, were designed to "take the sting" out of any suggestion that the applicant should be disadvantaged as a consequence of his counsel's failure to put matters upon which instructions had been given. There was no risk that they either tended to, or could have, inverted the onus of proof. The trial judge reminded the jury time and again that no onus was placed upon the applicant to prove anything. Nor, in my view, can it be sensibly suggested, as Mr. Priest sought to do, that the applicant was disadvantaged through the jury visiting upon him the consequences of his counsel's conduct. The jury were in fact persuaded to the view that the applicant was not guilty of the rape alleged in count 1, which had been the burden of counsel's address to them. If this very experienced counsel had thought that the fairness of the applicant's trial was being prejudiced when the adequacy of his cross-examination was first raised in the jury's presence, then he could have asked for the jury to retire while the matter was debated. Furthermore, if at the end of the debate or following the judge's charge, he believed that the interests of his client had been irretrievably prejudiced, he could have asked for the jury to be discharged. He chose to do neither.

72. As I have said, there is nothing in the jury's verdicts which suggests that they were distracted by the events which I have described, or that they were prejudiced towards the accused as a consequence of them. After all, they had been plainly told by the judge that they should not hold those matters against the applicant, nor should they be distracted, as a consequence of them, from determining the facts as they found them to be. The jury's verdicts, in the light of the evidence, were well justified. On that evidence it was clearly open to them to find that there had been an act of sexual penetration of the complainant by the applicant, and to entertain a reasonable doubt about the fact that such act was non-consensual or, at least, that the applicant was not aware that it was non-consensual. There is, accordingly, nothing in the verdicts which would lead me to conclude, as Mr. Priest asked the Court to do, that they were the product of a compromise.

75. For the reasons given, I would reject these grounds of appeal. Accordingly, in my view, the application for leave to appeal against conviction should be dismissed.

78. It remains to consider the application for leave to appeal against the sentence of 6 months' imprisonment imposed by the trial judge. Although counsel initially relied upon the fact that, in his unrevised sentencing remarks, the judge had referred to the maximum sentence as 7 years (when in fact, as I have previously noted, it was 3 years), it was not seriously contended upon the hearing of the application that his Honour's reference was other than an unintended slip. During the course of the plea, both counsel referred to the relevant maximum as 3 years and, in his report to this Court pursuant to Rule 2.27 of the Supreme Court (Criminal Procedure) Rules 1998, his Honour noted that he was aware at the time of passing sentence that the maximum was three years' imprisonment, and that his hand-written reasons for sentence recorded the correct maximum term, but that he must have inadvertently stated - in the course of reading his hand-written notes - that the maximum was 7 years. In the light of this material the suggested "error" was not pressed on the hearing of the application.

81. The substantive point contended for on behalf of the applicant was the effect of the unnecessary delay in bringing the applicant to trial and the consequences of that delay upon the position of the applicant. It was submitted that a delay of some 4 years had occurred between the commission of the offence and the first statement of complaint to the police. In the meantime, the complainant had pursued her cause by way of complaint to the Equal Opportunities Board, a course which had resulted in a negotiated settlement in April 1997. It was not until after these events that the complainant was approached by the police to make a statement. It was contended on the applicant's behalf that this delay was not the fault of the applicant and that its consequence had produced hardship to him. It was submitted that he had every reason to believe that the negotiated settlement had terminated whatever differences existed between him and the complainant; that when the matter was then taken up by police he had left his position at the school to commence a successful business on his own account; and that, as a consequence of the police action against him, that business for a variety of reasons had been put under extreme pressure. It was submitted that, having regard to his age, his previous good character and excellent character references, combined with the delay and its consequences, the imposition of a term of imprisonment to be actually served was manifestly excessive.

84. Whilst I have sympathy for the position of the applicant, I am not persuaded that the trial judge's sentencing discretion has miscarried; nor am I persuaded that the sentence imposed is manifestly excessive. Each of the matters, to which I have referred in the preceding paragraph, was put to the judge upon the hearing of the plea in mitigation in support of a submission that his Honour should impose a wholly suspended sentence of imprisonment pursuant to s.27 of the Sentencing Act. It is apparent from his Honour's sentencing remarks that he considered each of these matters in imposing the sentence which he did. However, his Honour took the view that the offence committed by the applicant was a very serious example of the offence of which he had been convicted. He was entitled to take such a view. It was, as his Honour noted, an act of sexual penetration which had followed a substantial period of sexually seductive conduct culminating in an act of penetration which occurred after he had taken the complainant to his flat and plied her with liquor to facilitate the ultimate act which he had in mind. The complainant was, as his Honour found, in a vulnerable situation, a situation which the applicant exploited to the full in abuse of the position of trust in which he stood. Furthermore, as his Honour said, the defence which was conducted by the applicant displayed a lack of remorse for his conduct. In those circumstances, I am quite unable to conclude that his Honour's discretion miscarried in failing to suspend the sentence which he imposed, which sentence was wholly appropriate to the gravity of the offence. Accordingly, I would dismiss the application for leave to appeal against sentence.

89. For many years and in many places legislatures have tried to stop those in a position of responsibility towards children from abusing that position by sexually abusing them. This they have done either by creating separate offences in which the position of responsibility is an element of the crime or by making that position an aggravating circumstance of sexual offences against children, leading to a higher maximum penalty. Schoolmasters and teachers have long been the subject of attention: the Crimes Act 1891, s.5, made them liable to a heavier sentence than other offenders for carnal knowledge of their pupils and this provision remained, ultimately as s.48 of the Crimes Act 1958, until the sweeping changes made by the Crimes (Sexual Offences) Act 1980. The Criminal Law Consolidation Act 1935 of South Australia, by s.49(5), still singles out schoolmasters, schoolmistresses and teachers (along with guardians) by creating a separate offence of having intercourse with a person under the age of eighteen; the age of consent in that State is, generally speaking, seventeen. The former s.190 of the Criminal Code of Western Australia, repealed in 1987 and considered in R. v. G.[6], made it an offence for a guardian, employer, teacher or schoolmaster of any girl or woman under seventeen to have carnal knowledge of her. By s.73 of the Crimes Act 1900 of New South Wales carnal knowledge of a sixteen-year-old girl by her schoolmaster or other teacher or her father or stepfather is still a separate offence notwithstanding the much more recent and much more general provisions of s.66C(2) of that Act, dealing with sexual intercourse by persons in authority with children of or above the age of ten years and under sixteen.

92. Sometimes, instead of making occupation or official status the determinant, legislatures use general concepts like position of trust or authority; the section with which this application is concerned, s.48 of the Crimes Act 1958, is of this kind. At other times we find a two-pronged approach, in which the specification of occupation or official status is combined with the use of general words to describe positions of responsibility. So the Mississippi Criminal Code of 1972, by s.97-3-95, proscribes sexual penetration of children "if the person is in a position of trust or authority over the child including without limitation the child's teacher, counsellor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach."

95. Where the provision creating the offence or the aggravating circumstance refers simply to the existence of some specified official status in relation to the child, as did the old Victorian Crimes Act section dealing with schoolmasters and pupils, there is likely to be less room for doubt about its scope than where the provision uses general words to describe positions of authority. The aggravating circumstance created by s.48 of the Crimes Act 1958 before the amending Act of 1980 would seem to have left no room for argument; as long as the relationship of schoolmaster and pupil existed the girl was taboo in the sense that carnal knowledge in any circumstances would attract the increased maximum; it made no difference where and when the offence was committed. But the terms of the present s.48 have given rise to difficulty, as this and other cases in the County Court have shown. In particular, the question has arisen whether a school teacher can, so to speak, shed a position of care, supervision or authority held in relation to a pupil regularly taught and have sexual intercourse with the pupil on a dies non scholasticus.

98. It was the Crimes (Sexual Offences) Act 1980 that introduced into the Principal Act the phrase "under the care, supervision or authority". Three sections of the Principal Act, as substituted by the Act of 1980, used it - ss.48, 49 and 50, dealing with acts of sexual penetration with persons of or above the age of ten but under sixteen, acts of sexual penetration with persons aged sixteen or seventeen and acts of gross indecency with persons under sixteen. Each of these sections fixed an increased maximum penalty where the victim was, either generally or at the time of the commission of the offence, under the offender's care, supervision or authority.

101. The preamble to the Act of 1980 recited that it was "desirable for the law to protect persons from sexual exploitation, especially exploitation by persons in positions of care, supervision and authority". In the Second Reading Speech[7], the Attorney-General said that the law should "protect persons from sexual exploitation, especially from persons in positions of care, supervision and authority over them", thus echoing the words of the recital. Later in his speech the Attorney-General said:

"At present the Crimes Act provides that where a teacher commits carnal knowledge with a girl of ten years but under sixteen years of age the maximum penalty is increased by five years from ten to fifteen years. The Government is of the view that all young persons in this age category, whether boys or girls, should be protected from exploitation by all persons in special positions of responsibility, that is, teachers, scout leaders, youth leaders, babysitters and such like. The proposed legislation, therefore, provides that a person in a position of care, supervision or authority will be subject to an increased maximum penalty for a further five years where an act of sexual penetration is committed with a young person."[8]

105. The provision in question in the present case, s.48(1) of the Principal Act, enacted by the Crimes (Sexual Offences) Act 1991, is as follows:

"48. Sexual penetration of 16 year old child (1) A person must not take part in an act of sexual penetration with 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. Penalty: Level 5 imprisonment (10 years maximum)."

109. Section 49(1) of the Principal Act, also enacted by the Act of 1991, is in similar terms in relation to the offence of indecent act, although the age of the victim is confined to sixteen. This was the provision originally made in the clause of the Bill which became s.48, but that clause was amended by broadening the class of sexual penetration victims from those aged sixteen to those aged sixteen or seventeen, although the heading to s.48 does not reflect this amendment to the Bill.

112. The Act of 1991 also enacted s.47A of the Principal Act, making it an offence to maintain a sexual relationship with a child under the age of sixteen to whom the offender is not married and who is under his or her care, supervision or authority. The requirement that the child be under the offender's care, supervision or authority was repealed by the Crimes (Amendment) Act 1997, s.5.

115. A fourth section of the Principal Act enacted by the Act of 1991, s.46, dealing with acts of sexual penetration with a child aged between ten and sixteen, made it an aggravating circumstance that the child was, at the time of the offence, under the defendant's care, supervision or authority. An application for leave to appeal against sentence by such a defendant was dealt with by the Court of Criminal Appeal in R. v. Rigby (unreported, 21 October 1993). The relationship there was an ad hoc one between a man of 37 and a girl of 13 who was, it seems, staying the night at the man's home at the invitation of his young son.

118. As the Second Reading Speech indicates[9], the Bill for the Act of 1991 was based on the report of the Law Reform Commission of Victoria concerning Sexual Offences Against Children, dated November 1988. Consistently with the recommendations of the Commission, the Act of 1991 reduced the what is commonly called "age of consent" from eighteen to sixteen. The Commission recommended that an exception should be created as regards the age of consent in relation to a person who occupied a position of authority over a child. In paragraph 57 of its report the Commission, in dealing with how persons in positions of authority should be defined, said that it preferred the use of broad concepts, such as persons having positions of "care" and "authority", to the specification of particular categories of person, such as teachers and employers. The Commission put forward a draft bill containing clauses on which ss.48(1) and 49(1) of the Principal Act as it now stands were obviously based, but with two notable differences from the present sections. In the first place, the clause of the Commission's draft Bill dealing with sexual penetration, like the Bill introduced into Parliament, was confined to sixteen-year-olds; as earlier mentioned, the Bill was amended, with the result that s.48(1) now applies to sixteen and seventeen-year-olds. In the second place, the Commission in its draft Bill described potential offenders as persons under whose "authority" the potential victims were. The Commission's draft Bill did not define that expression. (The tentative proposal in the Commission's Discussion Paper of March 1998 had used the phrase "care, supervision or authority": para.40 and Proposal 4.) In her Second Reading Speech[10] the Minister said of the offence dealing with sexual penetration:

"The proposed offence lowers the age of consent by one year, from 18 to 17 [this was before the amendment to the Bill], and strengthens the protection of young people from exploitation by people in positions of power over them."

"[T]he Bill includes the provision that: A person must not take part in an act of sexual penetration with a sixteen-year-old child to whom he or she is not married and who is under his or her care, supervision or authority. In other words, if a sixteen-year-old is under the care, supervision or authority of a person, because of the young person's lack of life experience and the influence that a person in that relationship has, it should be an offence for that person to sexually penetrate the sixteen-year-old child. The coalition has expressed concern that the provision is too limited and that it should also apply to seventeen-year-old children because the concept of the provision is one with which it agrees. A person who has that power of influence or persuasion over a younger person should not be able to take advantage of that situation. The provision should apply equally to sixteen or seventeen-year-old children and I ask the government to consider that matter."

126. One searches for provisions which closely resemble the present Victorian s.48(1). By s.66C(2) of the Crimes Act 1900 of New South Wales, it is an offence to have sexual intercourse with a person who is of or above the age of ten years and under sixteen and who "is (whether generally or at the time of the sexual intercourse only) under the authority of" the offender. The words in parenthesis are substantially the same as words to which I have already drawn attention in three sections of the Crimes Act 1958 - ss.48, 49 and 50 - substituted by the Act of 1980 and creating an aggravating circumstance.

129. Section 66C was introduced into the Crimes Act 1900 by the Crimes (Child Assault) Amendment Act 1985, which made extensive amendments to the Crimes Act in relation to sexual offences against children. Section 73 of the Principal Act, dealing with teachers, fathers and stepfathers, was preserved, but the section, instead of applying to girls of or above the age of ten years and under seventeen, was confined to girls of sixteen. One of the new sections introduced into the Principal Act, s.66C, created two offences. The first was having sexual intercourse with a person of or above the age of ten years and under the age of sixteen. The second was having sexual intercourse with another person who was within that range of ages and who was "(whether generally or at the time of the sexual intercourse only) under the authority" of the offender. A higher maximum penalty was provided for the latter offence. Other new sections - ss.61D and 61E - made it an aggravating circumstance that the victim was (whether generally or at the time of the sexual intercourse only) under the authority of the offender. The amending Act of 1985 introduced into s.61A of the Principal Act a definition of "under the authority" for the purposes of ss.61D- 66E. By that definition, a person was under the authority of another if the former was in the care, or under the supervision or authority, of the latter. By a later amendment, made by the Crimes (Amendment) Act 1989, s.61A of the Principal Act was repealed and s.61H was enacted. Section 61H(2) reproduced the repealed definition "for the purposes of sections 61H-66F". Where an offence against s.66C(2) was committed in late 1987 the definition that had been inserted into s.61A was not mentioned and it was said by the Court of Criminal Appeal of New South Wales, in R. v. DH[12], that at the time of the offence "under the authority of" was not defined. The conviction of a child's father under s.66C(2) led to a Director's appeal against sentence in R. v. PBH[13], in which the scope of the provision is not discussed.

132. The Parliamentary Debates in New South Wales[14] show that the amending Act of 1985 was based on the recommendations of the report of the New South Wales Child Sexual Assault Task Force of March 1985, a circumstance also mentioned in R. v. DH, where[15] James, J. referred to what is in fact a passage at p.112 of the report. The passage in the judgment of James, J. is as follows:

"As is apparent from the report of the New South Wales Child Sexual Assault Task Force in 1985 which led to the Crimes (Child Assault) Amendment Act No. 149 of 1985 by which s66C(2) was inserted into the Crimes Act, and as indeed might be inferred from the terms of s66C(2), an important purpose of s66C(2) is to provide a heavier sentence when the aggravating feature is present of a breach of a relationship of trust between the offender and the child with whom the offender has sexual intercourse."

136. In the report of the Task Force[16] this is said:

"Providing for relationships of trust between child and offender proved a difficult task. The Task Force accepts that there are a number of obvious relationships which doubtless qualify, such as parents, step-parents, foster-parents, grandparents, uncles, aunts and siblings. These are essentially familial. There are however, a large number of relationships which are not strictly speaking familial, but which may also be relationships in which the adult exerts influence and authority over the child, e.g. babysitters, neighbours, teachers, de facto spouses, boarders, etc. It was therefore considered desirable that familial relationships, which are capable of strict legal definition, should be prescribed so that the question of whether or not such a relationship exists between the child and the offender is, in the first instance, one of law. Whether or not any other relationship between the child and the offender should also be characterised as a relationship of trust could be an issue for the determination of the jury, by reference to a list of factors. Factors such as the duration of the contact between the child and the offender, the circumstances of the contact, its frequency and any responsibility, statutory or otherwise, which the offender may have for the care of the child, are capable of legislative description. While there may be an argument for simplifying jury directions, the Task Force believes that these factors are capable of being understood and applied by juries. Alternatively, the question of whether a relationship of trust exists between the child and the offender could be a matter for the sentencing judge to take into account as an aggravating feature when imposing the penalty. Once it has been determined that a relationship of trust exists, there are two options available: 1. creating an offence which is committed when people who are in a certain relationship to a child have sexual relations with that child, irrespective of whether there is consent. 2. providing that a relationship of trust gives rise to a greater maximum penalty for an offence than would otherwise be the case. The complexity of the issues arising out of the interplay of several factors, including the age of the child, the nature of the relationship and the issue of consent precluded the Task Force from reaching any definite conclusions in this area in the time available."

140. The report makes it plain that the Task Force was not responsible for the use in the legislation of the phrase "(whether generally or at the time of the sexual intercourse only) under the authority of the person" or for the definition of "under the authority". I have not noticed in the extensive Parliamentary Debates any reference to the origin either of the phrase or of the definition. I suspect that they were both derived from the substituted ss.48, 49 and 50 inserted into the Principal Act in Victoria by the Act of 1980.

143. Two sections of the Criminal Code of Western Australia, both inserted by Act No. 14 of 1992, s.6, refer to a child under the care, supervision, or authority of the offender. The first is s.321, sub-ss.(7) and (8) of which make this an aggravating circumstance. The second section is s.322, which makes it an offence to sexually penetrate a child who is under the offender's care, supervision, or authority, "child" meaning a child of or over the age of sixteen years. Section 322 was considered by the Court of Criminal Appeal of Western Australia in R. v. Ellis[17].

146. I shall return to the New South Wales case of R. v. DH and the Western Australian case of R. v. Ellis in due course.

149. Now for the circumstances of the present case. The applicant, aged 44, was formerly a teacher at a grammar school in a provincial city. He came before the County Court on a presentment containing twenty-two counts - of rape, sexual penetration with children aged sixteen and seventeen respectively (counts laid under s.48), indecent assault and intentionally causing injury. There were three complainants and the offences were alleged to have been committed between August 1991 and October 1993. An application for severance of the presentment was granted, and the offences were for the purposes of trial split up into three groups, one relating to each girl. The trial of the first eighteen counts resulted, in one way or another, in verdicts of acquittal. The applicant was then tried on counts 21 and 22, relating to the third complainant, and alleging respectively rape and sexual penetration of a seventeen-year-old child, those counts being alternatives. On 5 May 2000 the applicant was acquitted of rape but convicted of penetration. On 10 May the Crown prosecutor announced the entry of a nolle prosequi in relation to the remaining two counts of the severed presentment. On the following day the applicant was sentenced to six months' imprisonment. Having applied for leave to appeal against conviction and sentence, he was on 19 May granted appeal bail.

152. According to the complainant, whose evidence I now proceed to summarise, in October 1993 she was aged 17 and a student at the grammar school. In 1992 she was in Year 10 and the applicant taught her Mathematics in that year. In 1993, when she was in Year 11, he taught her Mathematics and Chemistry. In 1993 he sometimes asked her to come and see him, and when she went to see him in his office the conversation was not always about her studies. They also talked about personal things, such as her swimming and his hobby, which was photography. When her parents separated she felt pretty distraught. She discussed that matter regularly with the applicant because she got along quite well with him and he was a trusted adult.

155. On occasions he telephoned her after school, starting about the middle of 1993. The telephone calls became frequent - two or three times a week. The applicant in these calls often talked about things other than school work - he used to "joke about" a bit. The calls became annoying and she told him it was unnecessary to call her at home. On one occasion he rang when she had just stepped out of the shower and had not dried off. She explained this to him and he asked what she was wearing, to which she replied "a towel". He said, "I'll be right over". During these telephone calls the applicant talked about his lifestyle and his sexual experiences. He also talked about his wife and indicated that he thought she was having affairs. He spoke about what he liked to drink. He asked the complainant if she had smoked marijuana. He asked her why she did not have a boyfriend and whether she was a virgin. He said that he was upset that his wife was having affairs, that he would like to have an affair himself and that, if he was to have an affair with somebody, it would be with a person like the complainant, or another pupil, whom he named and who apparently resembled the complainant. As the year progressed the applicant also told her he liked the shape of her legs. He often hung his tongue out in a "dog panting" style, which he did when he was talking about women he found attractive. He also talked about sexual things, and compliments of a personal nature became more frequent. When asking her whether she was still a virgin, he said, "When you are ready to lose it, come and see someone like me". On one occasion, just outside his office, he came up to her and suggested she shorten the length of her school dress so that everyone, not just he, could have a good "perve" at her.

158. The complainant could not attend the Melbourne University Open Day at the end of September. She told the applicant the later date (in October) on which she was going down to look at the University, and he approached her while she was waiting outside for a class and said he was going down on the day in question for his course and would gladly show her around. She knew he was doing a part-time course at the University. On the day in question, she arrived at Melbourne University about 11.00 a.m. She met the applicant as arranged, outside the cafeteria. He was returning some books and suggested they have lunch before he showed her around. They walked to his car and got in. He said he had to go back to his flat and she thought he meant to drop something off. They arrived at the flat. She agreed to have a drink. He gave her some large glasses of Scotch and some champagne and she became very intoxicated. The applicant insisted that they play real strip jack poker where you take an item of clothing off when you lose a round. I do not summarise the complainant's evidence of the penile vaginal intercourse which she said then took place. She returned to the country that day, and I take up the summary again. She did not go to school the next day but did go the day after that. She was feeling pretty uncomfortable about going into her chemistry class where the applicant was her teacher. Her "prac" book had been put in for correction at an earlier stage. When she received the book back there was a piece of paper in it, in his handwriting, saying "I need to see you urgently". She went to see him at lunchtime in his office. He said they probably shouldn't tell anyone; it wasn't good for his reputation or his family or for her reputation. He said, "In any case, we didn't do it properly and will have to do it again sometime". A few days later the applicant helped her arrange a pregnancy test.

161. In cross-examination the complainant said that the meeting at the University was a private one unconnected with the teacher and student relationship. She did not regard herself as being under his supervision when she went to the flat. She believed there was not the relationship of teacher and student in the sense of her being on some excursion under the applicant's supervision or authority.

164. The applicant gave evidence denying that there had been any sexual encounter. At no time had he said or done anything inappropriate. He had telephoned the complainant at home only two or three times, always to discuss school work. He did not discuss his personal life with her. He had met her by chance in Royal Parade, near the University. He asked her what she was doing at the University and she said she had come down to collect information about courses when she finished her VCE. He offered her a lift, saying he had to go via his flat in Hawthorn to pick some stuff up. He needed to take sheets and pillowcases and other things home to wash them. At the flat she helped herself to a glass of wine, and he had a little himself. Her evidence about drinking Scotch and champagne was all untrue, as was her evidence about strip jack poker. He had sat down at the table and opened his sandwiches and started to eat his lunch. She became quite emotional. She put her hand on his belt buckle and said she wanted to develop her own adult relationships. He interpreted this as an "advance" and stepped away. She became angry and left. The next time he saw her she apologised for her behaviour. He had not helped her arrange a pregnancy test in November 1993.

167. So much for the evidence of the two main witnesses.

170. What do the words "is under his or her care, supervision or authority" mean? One thing is clear as regards the scope of the section: it is not confined to cases where legal rights or powers and legal duties found or even form part of the relationship. The contrary has at no stage been contended. The section does not require that the "care" or "supervision" or "authority" be based on a legal right or power. I have no doubt that a patient being treated by a general practitioner or a psychiatrist, for example, may be "under the care" of the doctor notwithstanding that the relationship is entirely voluntary and I have no doubt that a person may be under the care or authority (or both) of a priest. Legal authority may create or help to create a relationship of care, supervision or authority, but it is certainly not essential.

173. One point raised before us, although never put below, and not the subject of any ground of appeal, can be briefly disposed of. It was put to us that "or" should be read as "and". Mr Priest did not advance any reason why we should do this, and in my view there is none. That is enough to dispose of the point, but I will say a little more. It is not, I think, to beg the question of the scope of the section in this regard, that is, to assume that "or" means "or", to say that odd results will ensue if "or" is to be taken to mean "and"; at least it can be said without any suggestion of begging the question that no argument has been advanced that odd results will ensue if the words are given their grammatical meaning. I should have thought that a standing relationship of priest and penitent would place the penitent under the care and under the authority of the priest, but that the penitent might not be under the supervision of the priest. In the case of at least some occupations, it might be said that the employee was under the authority and under the supervision of the employer, but not under the employer's care. Even with employers, an independent contractor - say an outworker or a courier - might be said to be under the authority of the employer, but not to be under the employer's supervision or care. A patient might be said to be under the care and under the authority of the doctor, but the element of supervision would, at least in some cases, be more doubtful. It seems to me that a large number of situations which, having regard to the ordinary meaning of the words of the section, and having regard to the context and the extrinsic materials, would be said to fall within the section notwithstanding that all three elements are not satisfied, would be excluded from the section if "or" was to be read as "and".

176. I have drawn attention to the recital to the Act of 1980 which mentions exploitation by persons in positions of care, supervision and authority. This use of "and" was not relied on by Mr Priest, and rightly so. The word "and" in the recital is appropriate: it recognises the cumulative effect of provisions of the Act making each of three relations - care, supervision and authority - sufficient for the purposes of the criminal law. Compare Associated Newspapers Ltd. v. Wavish[18]. It is worth noting that in R. v. Ellis, where the section speaks of care, supervision, or authority, the indictment charged only that the child was under the applicant's supervision and both the trial and the proceedings on appeal were conducted on the basis that there had been no error in this regard.

179. It was not contended below that the section creates more than one offence, nor do the grounds of appeal raise the point, but Mr Priest did, I think, at one stage submit to us by way of alternative argument that it creates three offences, according as the victim is under the care, supervision or authority of the offender. I entertain no doubt that it creates but a single offence. The position would be extraordinary if it were otherwise. In many cases the child will be under the care, supervision and authority of the offender. In some cases it will be clear that two of the three elements are present and the third will be more doubtful, while in other cases it will be clear that one element is present and the other two will be more doubtful. It would be extraordinary if the prosecution was required to insert three counts into the presentment, on the footing that they would be treated as alternatives.

182. Nor do I think the jury need be told that they must all be unanimous in finding that at least one of the three relationships existed. (No such submission was made at the trial, but again the point was raised on the application, although not by any ground of appeal.)

185. Then it was submitted - this time, both here and below - that the section creates a genus, and reliance was placed on what the Full Court said in Deeley v. Stirrey[19]. Of Deeley v. Stirrey I say only that Macfarlan, J. spoke in terms of colour, not genus, and that I would respectfully wonder whether Lowe, J., despite his reference to genus, did not really adopt the same approach. Counsel was to my mind unable to suggest any plausible genus in the present case. "Coercive power" was in the end his suggestion. "Coercive power" was not defined for the purposes of the submission. Those two words presumably mean power based on force or the threat of force, and presumably they mean lawful power. I do not think that any of the three expressions in the section requires "coercive power".

188. In any event, it is not appropriate to try to identify the genus; the section does not create one. The phrase used in it does not contain a general word which, being coupled with words of more particularity and all of one class, may be read down on the footing that the whole phrase is concerned only with things of that class. To my mind, none of the three expressions in the present phrase is notably more general than the others. Nor do I think that the three words take colour from each other, as Mr Priest also submitted. Why should they? None of them is a word of wide possible meaning which is to be read down because it is used in conjunction with two other words which indicate that its meaning must be confined. None of the three words seems to me, as I have said, to be notably more general than its companions. "Care" is, to be sure, a word of diverse meanings, but the use of the preposition "under" serves to confine its meaning to the variety which is, for example, expressed thus in the Shorter Oxford English Dictionary, "4. Charge; oversight with a view to protection, preservation or guidance." Of course, this variety can be somewhat differently expressed, as appears from other dictionaries, but the meaning given in them is much the same. I have found difficulty in understanding what colour the word "care" in the phrase "under the care, supervision or authority" is said to extract from its companions. Nor do I understand with what colour "supervision" and "authority" are each said to be imbued by the other two words. From what was put in the submission about genus, I gather that the submission about "colour" is that all three words are to be treated as requiring the existence of coercive power. This is presumably on the basis that "authority" is said to carry this notion with it, although it may be on the basis that "authority" and "supervision" both suggest coercive power and that the meaning of "care" is affected by this. I have already said that in my view none of the three expressions requires "coercive power".

191. I see no reason why a jury should not be given, for their possible assistance, the definition of "authority" to be found in the Shorter Oxford English Dictionary:

"4. Power to influence the conduct and actions of others; personal or practical influence."

I also see no reason why they should not be told that "supervision" means the act or function of supervising and that a dictionary definition of supervise - again this comes from the Shorter Oxford - is "to oversee, have the oversight of, superintend the execution of performance of (a thing), the movements or work of (a person)". But if a dictionary is cited, they should be told that other dictionaries contain somewhat different definitions and that the definitions read out to them are simply for whatever assistance they think they can get from the dictionary and are certainly not to be treated as if they were written into the Act. This should be emphasised: the words of a dictionary are not to be substituted for the words of the Act. Compare Cozens v. Brutus[20]. The provision to the jury of a dictionary definition was noted without adverse comment by the Court of Criminal Appeal of Western Australia in R. v. Ellis[21]. It is also supported by R. v. DH[22]. Compare R. v. Audet[23] where the Oxford definition of "authority" is mentioned.

196. What more should be said to juries? It is appropriate to tell them to consider the three words in the context in which they appear, that of creating a sexual offence. They may be told that what is often called the age of consent for acts of sexual penetration is fixed by the law at sixteen as a general rule but that Parliament has chosen to give special protection by raising the age of consent by two years for the protection of sixteen and seventeen-year-old children against what Parliament has called, in a general statement of its purposes, "exploitation by persons in positions of care, supervision and authority". (Recourse may be had to this preamble notwithstanding that it is in the Act of 1980, not that of 1991.) Juries may be told that the obvious purpose underlying the section is to protect sixteen and seventeen-year-olds from being taken advantage of by persons who are in a position to influence them. They may be told that the section is concerned to protect young people, and often, protect them from themselves, as the Court of Appeal of Western Australia put it in R. v. Ellis[24]. The Court of Criminal Appeal of New South Wales, in R. v. DH[25], said that it might be inferred from the terms of s.66C(2) that it was concerned with "a breach of a relationship of trust between the offender and the child with whom the offender has sexual intercourse". I would prefer, with the Victorian Act, to say that the section is obviously concerned to protect sixteen and seventeen-year-olds against persons who occupy a position of responsibility towards them and that in considering the words "care, supervision and authority" juries should bear in mind the obvious underlying purpose of the section. What was said in a recent Canadian decision is also worth noting when considering whether one may think in terms of underlying purpose with legislation of this kind:

"Although ... the courts may use a commission report like the Badgley Report to identify Parliament's objective in enacting a given piece of legislation, I see no need to refer to it in the case at bar. It is evident that Parliament passed s.153 of the Criminal Code to protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them. This is merely stating the obvious ..." (R. v. Audet[26], a case concerning a not dissimilar provision).

200. It may be asked how a jury could be assisted, in considering the words "care, supervision or authority", by bearing in mind the obvious underlying purpose of the section - to raise the age of consent by two years for the protection of sixteen and seventeen-year-old children by protecting them from being taken advantage of by persons who occupy a position of responsibility towards them. Examples come to mind. A school monitor might in a given situation be said to have fellow pupils under his supervision, but it might be thought that the obvious underlying purpose of the section was not served by regarding the relationship as falling within the words of the section. The same might be suggested of a fellow worker who was of the same rank as a new employee but who in a sense had the newcomer under his or her supervision in showing how the job was to be done.

203. Care should be taken to make it clear to jurors that the section does not require that the child's consent to the act of sexual penetration be in any way influenced by the relationship of care, supervision or authority. The absence of any such element of the offence was rightly conceded by Mr Priest. The law was laid down in this sense by the Court of Criminal Appeal of New South Wales in R. v. DH[27] and by the Supreme Court of Canada in R. v. Audet.

206. To say that no causal connection is necessary between the act of sexual penetration and the relationship of care, supervision or authority in the sense that it is not necessary that the complainant's consent shall have been to any extent induced by the relationship of care, supervision or authority with the teacher is not to dispose of the question whether a schoolteacher can with impunity have sexual intercourse with a pupil on a pedagogical dies non. The issue presented to the jury on the trial of the present applicant was whether the day of the incident was a dies non. Implicit in the submissions made on his behalf to both judge and jury was the contention that a schoolteacher who was, at least tacitly, conceded at the trial to have had the complainant under his care, supervision or authority on school occasions, could throw off the relationship on other occasions. At the trial, and even before us, the applicant's counsel concentrated on the girl's own statements in evidence that the meeting was a private one and that on the day of the incident the applicant had no authority over her. In the result, no clear proposition has at any stage been advanced about what, conscious of the burden of proof, I will nevertheless call the applicant's ability, as a matter of law, to deny that the relationship mentioned in the section, once proved to have been created, existed on occasions other than school occasions. I have attempted to formulate in one way, by distinguishing between school occasions and other occasions, the proposition implicit in the argument. Other attempts could be made to formulate the implicit proposition by the framing of some question. Was the occasion connected with the relationship? Did it arise out of the relationship? Were the parties acting in the capacities which constitute the relationship?

209. A variety of views might be taken on this question of dies non. I doubt whether anyone would suggest - certainly Mr Priest did not - that the section, in the case of a schoolteacher/pupil relationship, proscribes sexual activities only if they occur during a school activity or on school premises. Almost any apologist would, I imagine, concede that a tryst made surreptitiously during a mathematics period, leading to sexual penetration in the teacher's car in the course of a journey after school, would support a conviction. The most extreme view, from the Crown's point of view, and the one we were invited to adopt, is that, once a teacher has established with a pupil a standing relationship falling within the section, sexual penetration is in all circumstances forbidden until that standing relationship has been brought to an end. On this view, the relationship cannot be suspended, as it were, during the weekend. Another possible view, not so extreme, is that it will always be for the jury, in cases of a standing relationship of teacher and pupil, to say whether on a given occasion the pupil was under the teacher's care, supervision or authority and that it is open to the jury to make that finding even though the occasion is entirely unrelated to the teacher's position as such and the pupil's position as such. On this approach, even if the applicant had met the complainant by chance at a hotel on a Saturday night and nothing they did that night had had any connection at all with the relationship of teacher and pupil, it would still have been open to a jury to convict if the night had ended in sexual penetration.

212. 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[28]. 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.)

215. I have spoken of a "standing" relationship; I might have said "permanent" or "underlying". While all three adjectives look to matters of degree, so that borderline cases may arise, it is still helpful to distinguish standing relationships from those that are merely ad hoc. This distinction was made apparent in the three sections (ss.48, 49 and 50) introduced into the Principal Act by the Act of 1980 and it is also made apparent in the present s.66C in New South Wales. The three Victorian sections distinguished, as does the New South Wales one, between the existence of the relationship "generally" and its existence at the time of penetration. This recognises that where, for example, there is a standing relationship of teacher and pupil the pupil may (on the Crown's most extreme view one would say "must") be found to be under care, supervision or authority on an occasion that is not a school occasion - an occasion, that is, that does not call for the exercise of the care, supervision or authority which is an incident of the standing relationship.

218. Mr Priest did not submit that the omission of the words beginning with "whether" from the present s.48 suggested an intention to cut down its scope. I regard it as simply an attempt to simplify, in the modern way of drafting, by getting rid of unnecessary words - words now regarded as having been inserted from a super-abundance of caution. Neither the report of the Law Reform Commission which led to the Act of 1991 nor the Parliamentary Debates contain anything to suggest that the omission of the words was intended to cut down the scope of the section, where there was a standing relationship of care, supervision or authority, by prohibiting sexual penetration only on occasions which called for the exercise of that care, supervision or authority.

221. Earlier I mentioned the most interesting decision of the Supreme Court of Canada in R. v. Audet. The section there prohibited indecent acts by a person who was in a position of trust or authority towards a young person or by a person with whom the young person was in a relationship of dependency. "Young person" meant a person aged fourteen or more but under eighteen. Audet had been tried by a judge alone in the New Brunswick Court of Queen's Bench and acquitted. An appeal by the Crown to the New Brunswick Court of Appeal was dismissed by majority but the Crown's further appeal succeeded by majority. Audet was a 22-year-old physical education teacher who had taught a girl of fourteen during the school year. Then came the summer holidays, at the end of the school year. He was to take up his position again at the beginning of the next school year and the girl was to return to school and again be taught by him. During the holidays he met her by chance at a licensed club, where she had gone in company with her cousins, both in their twenties. There was no connection at all between the meeting at the club and what later took place on the one hand and the relationship of teacher and pupil on the other. Indecent acts took place after the pair had left the club and gone to a cottage. The trial judge found that Audet had not abused or exploited his position towards the girl and that it was she who had encouraged him. The judge expressed his ultimate conclusion as follows[29]:

"Based on all of the evidence, I am of the opinion that at the time of the incident described in the indictment the teacher-student relationship did not exist as between the accused and J.S. It was the summer holidays and the accused was in no way exercising his duties as a teacher. He was therefore not in a position of trust or authority towards J.S. or, at the very least, I entertain a reasonable doubt in this regard. It would probably be very different if these events had occurred in a different context during the school year, but in these circumstances, I cannot find that there was a teacher-student relationship between the accused and the young person J.S. on the night of July 9, 1992."

225. The Supreme Court held that the judge had misdirected himself and that a verdict of guilty should be entered. The majority observed (at 40) that "teachers will, apart from exceptional circumstances, be in a position of trust and authority towards their students". At 42 the judgment, given by La Forest, J., continued:

"In short, I am of the view that in the vast majority of cases teachers will indeed be in a position of trust and authority towards their students. It must also be recognized that there may be situations where, owing to exceptional factual circumstances, this is not the case because, even though the accused has the status of a teacher, his or her relationship with a particular student is such that the element of trust or authority is totally absent. I will refrain from speculating and suggesting hypothetical examples to illustrate this. However, in the absence of evidence raising a reasonable doubt in the mind of the trier of fact, it cannot be concluded that a teacher is not in a position of trust and authority towards his or her students without going against common sense. My colleague Justice Major [a dissentient] writes, at para.56, that the effect of such an interpretation is to create a presumption about teachers that makes the crime of sexual exploitation an absolute liability offence. It is true that my interpretation of the meaning and scope of the terms 'position of trust' and 'position of authority' does to some extent establish a presumption. It seems to me that it would be incorrect in law, in view of the wording of s.153(1) and the social role of teachers, to find that a teacher is not in a position of trust or authority in relation to his or her students where none of the evidence adduced at trial raises a reasonable doubt in the mind of the trier of fact as to the existence of a position of trust or authority. In my opinion, this approach in no way undermines the presumption of innocence. As this court has stated, a presumption that imposes an evidential burden on the accused - that is, a presumption requiring the trier of fact to draw a conclusion from proof of a basic fact if no evidence raising a reasonable doubt is adduced by either the Crown or the accused - does not violate the presumption of innocence if the unknown fact follows inexorably from the basic fact. In such circumstances, there is no possibility that drawing this inference will result in the accused being convicted despite the existence of a reasonable doubt. My analysis indicates that in the absence of evidence raising a reasonable doubt on this point, teachers are necessarily in a position of trust and authority towards their students ...".

This passage was criticised by Mr Priest; in particular, he said it reversed the onus of proof. Talk in a criminal case of presumptions arising from proof of a particular relationship, which require evidence of exceptional factual circumstances to raise a reasonable doubt, does, as Mr Priest submitted, and as the dissenting judgment shows, tend to raise concern. With all respect to the majority justices in Audet, by whose discussion of a number of questions I have been much assisted, I would not myself analyse the matter in terms of a presumption. But I am much attracted by the approach which lies at the base of the majority judgment. This is the view that, generally speaking at all events, "it cannot be concluded that a teacher is not in a position of trust and authority towards his or her students without going against common sense". Turning to the words of the Victorian section, I think it may be said that, generally speaking, it would be contrary to common sense to conclude that a teacher who regularly taught a pupil did not have that pupil under his or her care, supervision or authority. But, I repeat, I would not deal with the matter in terms of presumptions, or of exceptional circumstances which raise a reasonable doubt. It is for the Crown to prove all elements of the offence beyond reasonable doubt. Taking the present case, I think that a reasonable jury, properly instructed, ought to have entertained no reasonable doubt that, as regards "school occasions", the relationship required by s.48 existed. The contrary has not been contended by Mr Priest, and, as I have said, the applicant's case, both at the trial and before us, has tacitly made that concession. How is one to square the view that, generally speaking, to deny the relationship of care, supervision or authority as regards school occasions would be against common sense with the rule of the criminal law about burden of proof and with the constitutional role of the criminal jury as the trier of issues of fact? In the present case, had the sexual activity taken place during school hours, it would have been wrong for a properly instructed jury not to conclude that the offence had been proved. But can a judge ever say something like that to a criminal jury? Compare the discussion in R. v. Faure[30]. Nowadays, where identity is the only issue, bold judges might be tempted to tell the jury, in the case of a very violent bank hold-up, that they need not trouble themselves with the definition of armed robbery, since it is quite clear that one was committed, and that the only issue for them is that of identity. There is a similar temptation in cases of undoubted rape, where the only issue is identity. But such bold judges are few and far between, if they exist at all. On a murder trial, notwithstanding that the body has been hacked into six pieces, the judge will like as not solemnly tell the jury that there seems to be no doubt about the element of death, "although it is a matter for you". Even in 1935, in a case in which the victim was indisputably dead, we find Finlay, J. using the familiar words, with the addition of "entirely":

"A charge is made against ... the prisoner at the bar, of wilful murder. It is said that on the morning of December 10, about half-past nine, he murdered his wife. That she died whilst he was in that house you will, I should think, have little doubt. It is a matter entirely for you. If you accept his evidence, you will have little doubt that she died in consequence of a gun-shot wound which was inflicted by a gun which he had taken to this house, and which was in his hands, or in his possession, at the time that it exploded. If you come to the conclusion that she died in consequence of injuries from the gun which he was carrying, you are put by the law of this country into this position ...".

Then followed the erroneous direction which was to propel the case to the House of Lords and Reginald Woolmington to immortality: Woolmington v. Director of Public Prosecutions[31].

232. The strongest comment I am aware of containing the "matter for you" antidote is found in another murder trial, where Donovan, J. exclaimed:

"There is a limit, is there not, members of the jury, to human credulity, and you may think that the accused man's unsupported assertion on this part of the case goes well past it, that the evidence is overwhelming, and he knew his car was carrying the officer up the road? The matter is one for you, but if you arrive at the conclusion that, of course, he knew, it is one which I would regard as abundantly right. Indeed, on the evidence I do not see how you could properly arrive at any other conclusion. If that be so the defence of pure accident goes." (Director of Public Prosecutions v. Smith[32].)

236. But can a jury be told that they are constrained to find some element of the offence proved, as opposed to being given a strong comment? What are the limits of the role of the judge and that of the jury as regards the finding of facts? This is a question that has intrigued Glanville Williams: see his article, "Law and Fact"[33], his Textbook of Criminal Law, 2nd ed., pp.59-67 and his Criminal Law - The General Part, 2nd ed., pp.883-4. The question is connected with the question whether a judge may direct a conviction. Of course no jury can be compelled to act on a direction to convict; one British jury defied the judge three times (Pattenden, Judicial Discretion and Criminal Litigation, 2nd ed., p.223); the question is whether a judge may in any circumstances properly direct a conviction. In Australia the answer has been given that the judge may, in circumstances that will be exceedingly rare, do so: Yager v. R.[34]; contrast the majority approach in Director of Public Prosecutions v. Stonehouse[35] and note R. v. Morgan; ex parte Attorney-General[36]; R. v. Clark[37]. Many cases discuss whether the judge has erred in directing the jury that some element of the offence has been established. A few examples will suffice: R. v. Clark (whether signature a "material part" of document and whether licence a "false document"); Director of Public Prosecutions v. Stonehouse (whether acts sufficiently proximate to amount to attempt); R. v. Salvo[38] per McGarvie, J. (dishonesty); R. v. Hill[39] ("under the control"); R. v. McCann[40] per Macrossan, C.J., (dissenting as to meaning of phrase "holder of any public office" but discussing roles of judge and jury).

239. As regards s.48, where the judge thinks it would be contrary to common sense for the jury not to be satisfied that the underlying relationship was of the necessary character - I am not for the moment concerned with the suggested "suspension" of the relationship on occasions other than school ones - the judge may tell the jury that it is well open to them to find that the underlying relationship was of the necessary character, and that this part of the case may not occasion them much difficulty, but that it is the proverbial "matter for you".

242. In my opinion, if a jury is satisfied that a standing relationship of care, supervision or authority was established between two persons, and that it still existed as a standing relationship on the day on which penetration took place, the jury may convict notwithstanding that the occasion on which penetration took place was not connected with and did not arise out of the relationship and the parties were not acting in any sense in the capacities which gave rise to the relationship. I refer to the decision in Audet and in addition to Ellis[41], where Kennedy, J. observed that the relationship between the child and the supervisor did not necessarily cease outside working hours or away from the premises. The leading judgment seems to me to proceed on the basis that the trial judge had rightly left to the jury the counts charging offences committed away from the work premises.

245. In the present case the judge's charge was too favourable to the applicant, by requiring some connection to be found between the relationship and the occasion on which penetration took place. But if I am wrong in this view, and the section does require a connection, then it is my opinion that:

(a) having regard to the terms of the judge's charge, viewed against the background of the conduct of the trial, the jury were adequately instructed as to the law; and

(b) it was well open to the jury to be satisfied that at the time of penetration the girl was under the applicant's care, supervision or authority.

251. A no case submission was made in the present case in relation to count 2. It was put that there was no evidence that the girl was under the applicant's care, supervision or authority; the arrangement to meet was a private one; he was not exercising any authority over her or supervising her and she was not under his care; it was not a school excursion; it was not as if he had, for example, undertaken on behalf of the school to accompany her to an open day; her own evidence was that she was not at the time under his care, supervision or authority.

254. The way in which the Crown's case was put on this point in the final address sufficiently appears from a passage I shall quote from the charge. The matter was dealt with briefly in the final address for the defence. In fact almost the whole of that address was devoted to count 1 and what was said of count 2 really did no more than remind the jury of the complainant's statements in cross-examination that the meeting was a private one and that the applicant had no authority over her on the day of the meeting. In dealing with count 2, the judge began by reading the count to the jury and then told them again what constituted sexual penetration. He continued:

"Other elements the Crown must prove to your satisfaction beyond reasonable doubt are that the complainant was 17 years of age at the time. This is not contested. That the accused was not married to her, again, that is not in contest. And that the complainant was under his care supervision or authority. That is in contest. As to care, supervision or authority, the normal age of consent to a sexual act is 16. So that once a female reaches the age of 16, provided she consents to an act of sexual penetration with a male, no offence is committed by the male no matter what his age. There are, however, sections of the Crimes Act, including section 48(1) upon which count 2 is based, which create exceptions to that proposition. The object of the legislative exceptions being to protect young persons aged 16 and 17 from being exploited sexually by adults who have care, supervision or authority over them. Now those words 'care, supervision or authority' are to be considered together, and for your assistance the Shorter Oxford English Dictionary definitions of those words are as follows: '1. Authority, that is defined to mean power or right to enforce obedience; moral or legal supremacy; right to command or give a final decision.' Care is defined to mean, 'Charge, protective oversight, guardianship' and also, 'Provide for, look after, take care of.' Supervision is defined to mean, 'The action or function of supervising a person, task et cetera, management, direction, superintendence.' This is a question of fact for you. On the one hand the prosecution says that as the girl's teacher, the accused was in a specific position of authority and in that capacity he laid the groundwork which led up to this rape or seduction, cultivating a personal relationship, often on school days at the school. She went with him, as she said, because she enjoyed a good relationship with him. She liked him and he had kindly offered to show her around the university where she was interested in science courses. He taught her Maths and Chemistry at the time. She was due back in one of his classes the next day, a Maths class, and he had her book for checking or correcting her work. The Crown says his position of authority was an ongoing thing and he was in a position of power over her, although they had both taken the day off from school. And she agreed that she was free not to go with him or to leave the flat if she wished, but against that she also said that he was her ride back to the university. She was due to face him in class the next day. If she did consent to this activity, the Crown says you cannot exclude this teacher's position of authority from the equation just because they had both taken a day off from school. He had been her teacher in various Maths and Chemistry subjects from 1990 to 1993 and beyond, to 1994. To change to another teacher, she would have to provide a reason, as he admits, and the Crown says he took advantage of his position to gain her trust and inveigle her back to his flat. Against that, of course, there is the accused's evidence that the only suggestion of a sexual advance came from the complainant in touching his belt buckle in the flat and he backed away, and even taking the girl's account, forgetting about his account, it is submitted on behalf of the defence that the girl agreed that it was a private meeting, that she was under no compulsion to go into the flat when he invited her in, she agreed that he had no authority to keep her in the flat, and to the suggestion that it was a completely private arrangement unconnected with their relationship of student and teacher, she replied 'I guess so'. The defence would say that even on the girl's account she was not under his care, supervision or authority at the relevant time and that element of the offence has not been made out to your satisfaction beyond reasonable doubt. Consent is no defence in respect of this charge unless the accused believed on reasonable grounds that the complainant was 18 or over. Now that situation does not apply here. It has not been raised and the accused must have known the girl's age because he had been teaching her for three years, and it is not suggested that he did not. The real issue here is, assuming you come to consider this alternative count, in the event of finding the accused not guilty upon count 1, are you satisfied beyond reasonable doubt that penile penetration by the accused of the complainant's vagina in the sense that I have defined penetration actually occurred? Further, are you satisfied beyond reasonable doubt that at the time in question the complainant was under the care, supervision or authority of the accused? Now they are the two matters in contest in respect of that particular count."

258. In his charge the judge summarised the final submission of the Crown prosecutor on the relationship point as follows:

"There was cross-examination suggesting ... that she was not pressed to go to the flat and that it was not a relationship of care, supervision or authority. It was a question of fact for you to decide, based upon all the circumstances of the case and their relationship, whether she was under the accused's supervision, care or authority at the relevant time. If she is telling the truth, the arrangement to meet was made at school, and it was done to do something educational encouraged by the school. Permission for her to go to Melbourne had to be granted by the school and the visit was encouraged by the school because she was going to see what the various faculties had to offer in respect of tertiary education. It was not a chance meeting. Rather, it was part of the ongoing relationship which the accused had developed or cultivated in his capacity as her school teacher."

262. Two exceptions were taken on the applicant's behalf to what the judge had said of the relationship required by the section. In the first place, it was put that the judge had failed to make it clear that the girl had to be under the applicant's care, supervision or authority at the time of penetration. There is nothing in this point. The count, which was read to the jury during the charge, shows what the relevant point of time is. A little later, having said that the Crown had to show that the complainant was seventeen "at the time", the judge went on to say that it must also prove that the complainant "was" under care, supervision or authority. Further on the judge referred to the defence submission "that even on the girl's account she was not under his care, supervision or authority at the relevant time" and later again, having referred to the act of penetration, he went on immediately to refer to the issue of care, supervision or authority "at the time in question". Twice at least the judge told the jury that the Crown case was that the teacher's position of authority continued notwithstanding that they had both taken a day off from school. Quite apart from these passages in the charge, the cross-examination of the complainant, the final addresses and the charge generally can have left the jury in no doubt whatever that the question was whether at the time of the alleged offence the girl was under the applicant's care, supervision or authority, it being tacitly accepted by his counsel that she was, when at school or on a school excursion, in that relationship with him and that the question was whether, in the unusual circumstances of the day in question, she was under his care, supervision or authority.

265. The second exception taken was that the judge should have told the jury that the three words created a genus and had to be read together. As to this, the judge had instructed the jury that the three words "are to be considered together". In the course of his no case submission counsel had in passing suggested that the words created a genus, but he had not said what that was. Nor was the supposed genus identified in the exception taken. The submission by way of exception was that the three words created a genus and had to be read together. Those were two different propositions. For reasons which I have already given, I do not think the section creates any genus. The genus suggested in argument before us was "coercive power". I have said something about this already, but I also note that in the course of the no case submission the applicant's counsel had submitted that, although a genus was created, this was not power. To invite the judge, by way of application for redirection, to tell the jury that the words created a genus but to make no submission identifying that genus, was to invite disaster. What could the jury have made of a bald direction that the three words created a genus or class?

"3A. The trial judge erred in his directions to the jury concerning the element of 'care, supervision or authority', and in particular - (a) in failing to direct sufficiently or at all that the words 'care, supervision or authority' created a genus or class; (b) in failing to direct sufficiently or at all that the alleged condition of 'care, supervision or authority' must exist at the time of penetration; (c) in failing to direct sufficiently or at all as to what 'the relevant time' was for the purpose of the offence; and (d) in introducing the notion of imbalance of power into the directions, or, alternatively, in failing to direct that such a notion was irrelevant; and (e) in introducing Parliament's intention when legislating, or the object behind the legislation, into the directions."

272. In addition, as part of ground 3B it is alleged that there was no evidence on which a reasonable jury properly instructed could have found that the element of "care, supervision or authority" was proved.

275. I have already dealt with (a), (b) and (c) in ground 3A. I do not think that the complaints made in (d) and (e) are well founded; my reasons for this already appear.

278. There has been no argument on the point, but lest it be thought that the matter has not been considered I should add that I have had regard to decisions dealing with the meaning of words used in a statute, the respective roles of judge and jury in relation to this, the suggested distinction between interpretation and construction and the distinction between words used according to their common understanding and words used in something other than their ordinary sense. These decisions include Cozens v. Brutus[42], Hope v. Bathurst City Council[43] and Collector of Customs v. Agfa-Gevaert Ltd.[44] (The questions overlap with the questions discussed earlier in these reasons about how far a judge may restrict the criminal jury's function of finding the facts.) Those parts of these reasons dealing with the effect of s.48 do not, I believe, transgress the principles to be derived in the difficult field to which decisions like Hope belong.

281. What I have already said is enough to dispose of the "unsafe and unsatisfactory" ground in so far as it complains of the jury's finding on the issue of the relationship. The only other submission made in support of the ground was that a reasonable jury properly instructed ought to have had a reasonable doubt about sexual penetration. I have not summarised the evidence bearing on the issue of penetration. It is by no means confined to the direct evidence concerning the alleged sexual encounter at the flat. Although some further matters were mentioned in the oral argument, the burden of the applicant's arguments and the Crown's response can be ascertained from the written Outlines of Submissions, and this written record makes it unnecessary to summarise the arguments here. Having carefully considered the evidence as a whole and the arguments advanced on both sides I am of the view that the jury were amply warranted in finding the element of sexual penetration proved. This ground must therefore fail.

284. I agree with what the President has written about the grounds alleging error as regards the rule in Browne v. Dunn[45] and with what he has written about the sentence, and accordingly I would dismiss both applications.

289. I have had the advantage of reading in draft the reasons for judgment of the learned President and Brooking, J.A.. I agree that, for the reasons given by their Honours, the applications for leave to appeal against conviction and sentence should be dismissed.

[2] R. v. Sheppard, unreported, 11 October 1993 per Judge McNab; R. v. Palmer, unreported, 29 April 1997 per Judge Wodak; R. v. Alexander, unreported 2 May 2000 per Judge Kelly.

[3] [1932] VicLawRp 24; [1932] V.L.R. 159.

[4] Hansard, 18 November 1980 at p.2871.

[5] cf. Beattie v. Ball [1999] VSCA 227; [1999] 3 V.R. 1 at 6; R. v. Giles [2000] VSCA 121 at [63]; R. v. Birks (1990) 19 NSWLR 677 at 691.

[6] (1997) 91 A.Crim.R. 590.

[7] Hansard, Legislative Council, 18 November 1980, p.2869.

[9] Hansard, Legislative Council, 10 October 1990, p.687.

[10] Hansard, Legislative Council, 10 October 1990, p.690.

[11] Hansard, Legislative Council, 20 November 1990, p.1382.

[13] Court of Criminal Appeal, unreported, 2 May 1996.

[14] Hansard, Legislative Assembly, 12 November 1985, pp.9323 et seq. and 19 November 1985, pp.9874 et seq.; Legislative Council, 20 November 1985, pp.9985 et seq.

[18] [1956] HCA 69; (1956) 96 C.L.R. 526.

[19] [1932] VicLawRp 24; [1932] V.L.R. 159.

[20] [1972] UKHL 6; [1973] A.C. 854 at 861 per Lord Reid.

[26] (1996) 135 D.L.R. (4th) 20 at 30-31.

[28] Court of Criminal Appeal, unreported, 21 October 1993.

[29] 142 N.B.R. (2d) 382 at 389-90.

[30] [1999] VSCA 166; [1999] 2 V.R. 537 at 551-2.

[31] [1935] UKHL 1; [1935] A.C. 462 at 465.

[32] [1961] A.C. 290 at 324).

[33] [1976] Crim.L.R. 472 and 532.

[34] [1977] HCA 10; (1977) 139 C.L.R. 28.

[35] [1978] A.C. 55.

[36] [1987] 2 Qd.R. 627.

[37] [1946] N.Z.L.R. 522.

[38] [1980] VicRp 39; [1980] V.R. 401 at 409.

[39] [1988] 1 Qd.R. 654.

[40] [1998] 2 Qd.R. 56 at 59-60.

[42] [1972] UKHL 6; [1973] A.C. 854.

[43] [1980] HCA 16; (1980) 144 C.L.R. 1.

[44] [1996] HCA 36; (1996) 186 C.L.R. 389.