R v Howes [2000] VSCA 159

R v Howes [2000] VSCA 159 - VSCA 2000 case summary — Zoe

[8]

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]:

[34]

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.

[55]

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.

[59]

"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."

[76]

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".

[92]

"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 ...".

[93]

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":

[105]

"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."

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