R v Naidu

District Court of NSW|2021-04-01|Before: Basten J, Simpson J

Judgment

The appellant appeals against the conviction after hearing on 21 December 2020 for which he faced sentence on 8 February 2021 at Penrith Local Court.
An all grounds appeal was lodged on 8 February 2021.
The appellant was charged with a single offence pursuant to s 66EB of the Crimes Act 1900 (NSW) ("Crimes Act") in that he did on 10 February 2020 at Penrith, being an adult intentionally procure a child of or above the age of 14 and under the age of 16, namely 15 years of age, for unlawful sexual activity with the child TH.
The matter was listed on 1 April 2021 at Penrith District Court for hearing of the appeal. Unfortunately the matter was not reached until 3 pm on that day and following oral submissions leave was granted for the parties to file further written submissions in order to address the matters raised during the hearing of the appeal. Neither party sought to be heard for further oral argument. I have received and considered the further submissions filed by both parties.

The evidence at hearing

The prosecution case relies upon the evidence of TR, aged 15 who initially provided her account of events in a JIRT interview on 12 February 2020 to the effect that two days before, on 10 February 2020, she was at the bus stop at the Penrith Bus Interchange when she was approached by a male who stood closely by her and asked her if she was "Koori" before asking if she "did ice" and when she responded in the negative, asked her to go back to his house because he had "some really good pot there". He told her that his house was in Thornton. She said that he continued to beg her and she told him she was "15". He then said "Oh don't worry, you're too young, I can't smoke pot with you" but then asked her that if he gave her money would she have sex with him. To which she said "no sorry I don't do that". She said after this she walked away from him and she went home and subsequently told her brother and then her mother who reported the matter to police.
CCTV footage was obtained that showed the appellant was present at the bus exchange at the relevant time and had approached TR and engaged her in conversation. There was no dispute that the adult male in the footage was the appellant.
The appellant was interviewed by NSW Police on 17 February 2020. He was not told initially of the presence of the CCTV footage. He denied that the events took place as described, initially stating that he could not remember , thought he was at home, shortly after stating that he did not remember approaching anyone and asking them for sex. He said that he would not invite anyone home in circumstances that his wife was at home. When advised that the police had CCTV footage the appellant said that perhaps he had been at the exchange talking to people, agreeing that the person on the CCTV was him but disputed the allegation.
TR gave evidence at the hearing during which she said that the appellant had approached her and she thought initially he was Aboriginal. She said that she thought he was an elder and was therefore respectful when he spoke to her. She said on having been shown the footage that when he approached her she shook his hand out of respect and said he asked to borrow her lighter. She agreed that the footage indicated that they had spoken for about 6 minutes. She said that he asked her if she smoked "yarndi" which was the term Aboriginal people used for marijuana and when she said that she did he said to her that "to go back to his house because he has the best...pot ever." She said after a while she thought he didn't sound like he was Aboriginal and thought that he might be Indian. When it was put to her that the alleged events she had recounted had not occurred she repeated that the male had spoken to her about drugs, offered to pay her money for sex and had asked her to go to his house.
The appellant gave evidence at the hearing. He denied that he had engaged in a conversation with TR about drugs nor did he ask her to engage in sexual activity. He denied he had offered her money.
The Local Court Magistrate found the accused guilty stating as follows: In the indictment the prosecution needs, firstly, to satisfy the court as to the element of procurement and the word "procurement" in plain English means to get or obtain or, in the context of a charge of this nature, perhaps the word is "proposition". It has the same meaning. The prosecution has to prove that the defendant said words or intimated gestures which was to get or obtain a sexual activity, in this case intercourse as has been suggested the complainant and the prosecution also needs to prove that that at the time of the alleged offence the victim was under the age of 16 years and over the age of 14 years for the prosecution to proceed under s 66EB(2). They are the elements of the offence.
The Local Court Magistrate found the offence proven having accepted the version given by TR supported in part by the CCTV footage and immediate complaint and rejected the account given by the appellant.

Submissions

The only issue argued on appeal concerns an issue of law. The appellant submits that the prosecution of the appellant must fail because having charged the appellant with procuring the complainant, the prosecution failed to adduce evidence of sexual activity with TR submitting the Magistrate applied an incorrect test as to the meaning of the word "procure". The appellant argues that the case of ZA v R [2018] NSWCCA 116 ("ZA v R"), the Court comprising Adamson J, with Macfarlan JA and Johnson J agreeing, considered the meaning of "procure" and determined that it meant to "cause or bring about" (at [42]), confirming the direction to the jury by the trial judge had been correct, namely that the Crown was required to establish beyond a reasonable doubt that the accused, who had arranged his 12 year old child to marry and have intercourse with a 26 year old man, intentionally caused or brought about unlawful sexual activity with the child.
The appellant submits it was an error to find that that the term "procure for unlawful sexual activity" was tantamount to a "proposition for unlawful sexual activity", with the Act specifically criminalising the result and not the intention. The appellant submits that the Crown failed to charge the appellant with an attempt offence pursuant to s 344A Crimes Act and the prosecution must fail because the Crown pursued prosecution of the simpliciter offence. The appellant suggests that the situation is analogous to charging a person with a robbery when they were unsuccessful in obtaining property from the person attempted to be robbed.
The appellant submits that in applying the rules of statutory interpretation in accordance with ss 33 - 34 of the Interpretations Act 1987 (NSW) the meaning of the provision was clear on its face and that there was no necessity to have reference to extrinsic material such as the Second Reading Speech. The appellant submitted that s 66EA of the Crimes Act operated such that ss (4) was the mechanical provision governing the procedural aspects of the prosecution of the substantive provisions covered by s 66EB(2), (2A) and (3) (where there was a result of an intention). The appellant submits that the reading of the provision in the way suggested by the Crown deprived the appellant of the opportunity to answer the case against him because the Crown case was that he had actually "procured" (caused to obtain) the complainant for unlawful sexual activity. The appellant said that the legislation must be effectively read down in accordance with Krakauer v The Queen (1998) 194 CLR 202 at [62] - [64], so as not to expand the scope of the offence.
The Crown submits in reply that the prosecution did not have to specify or prove any particular lawful sexual activity and that what the legislation required was that the child was, or was to be, procured for unlawful activity. The Crown submits that the wording of s 66EB(4) of the Crimes Act 1900 extends the operation of the meaning of "procure" within s 66EB(2) to allow for circumstances where there had been no actual unlawful sexual activity and only what may be considered an attempt to procure, or an act done with the intention to procure. The Crown submits that the legislation operates so as to include the concept of inciting, inducing or encouraging within the s 66EB(2) offence by virtue of the operation of s 66EB(4). The Crown submits that the Second Reading Speech may be accessed to ascertain meaning, as the Court did in ZA v R in considering the provision, and that the Second Reading Speech indicates that the intention of the legislation was, by the operation of ss(4), to allow for an extended meaning of the term procure so as to include acts done with the intention to procure.

The legislation

Section 66EB of the Crimes Act states as follows [emphasis added]: Procuring or grooming child under 16 for unlawful sexual activity (1) Definitions In this section-- "adult person" means a person who is of or over the age of 18 years. "child" means a person who is under the age of 16 years . "conduct" includes-- communicating in person or by telephone, the internet or other means, or providing any computer image, video or publication. "unlawful sexual activity" means an act that constitutes an offence under this Division or Division 1OA, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). (2) Procuring children: An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence.: Maximum penalty-- (a) in the case of a child who is under the age of 14 years--imprisonment for 15 years, or (b) in any other case--imprisonment for 12 years. (2A) Meeting child following grooming An adult person-- (a) who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and (b) who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person, is guilty of an offence.: Maximum penalty-- (a) in the case of a child who is under the age of 14 years--imprisonment for 15 years, or (b) in any other case--imprisonment for 12 years. (2B) For the purposes of subsection (2A), a child has been "groomed for sexual purposes" by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material. (3) Grooming children An adult person-- (a) who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance or with any financial or other material benefit, and (b) who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. : Maximum penalty-- (a) in the case of a child who is under the age of 14 years--imprisonment for 12 years, or (b) in any other case--imprisonment for 10 years. (4) Unlawful sexual activity need not be particularised. In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity. 5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section-- (a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and (b) to the age of the child is a reference to the age that the accused believed the person to be. (6) Charge for aggravated offence. The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. (7) Defence. It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly.

Statutory interpretation

The Interpretation Act 1987 (NSW) provides as follows [emphasis added]: Part 5 Construction of Acts and instruments 31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament (1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament. (2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament- (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument. 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made- (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made. 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material- (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes- (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer, (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made, (c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made, (d) any treaty or other international agreement that is referred to in the Act, (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and (h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament. (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to- (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage. …
In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 ("CIC Insurance") the High Court of Australia referred to the modern approach to statutory interpretation, at 408: [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
In Project Blue Sky v ABA (1998) 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ) at 384 said as follows [emphasis added]: "... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
The High Court described the context of statutory interpretation in terms of the "legitimate means" of interpretation, that is the permissible material and other aids to interpretation. The text of the law and its immediate context of any critical word or phrase in the provision is to be considered, as is the internal context within the Act as a whole, and finally the wider context beyond the Act in question. A court does not determine the meaning of a statutory provision - even one that was not ambiguous on its face - without regard to its context, as set out above. As stated, context is to be considered in the "first instance" and in its widest sense: CIC Insurance at 408. In Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, 28 [57] the majority (French CJ, Hayne, Kiefel and Nettle JJ) described the context as "essential". The High Court has observed that the text of a provision constitutes a limit in that the purposive construction of legislation does not justify expanding the scope of a criminal offence beyond its textual limits: Milne v the Queen (2014) 252 CLR 149, 164 [38]. However, the ordinary meanings of the text read in isolation are not the only basis upon which interpreters are to find their meaning. As was recognised by Wilcox J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, 289 "Parliament can give a word any meaning it wishes".
In Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 ("Brown") Heyden J with whom all four other members concurred, McHugh ACJ, Gummow, Kirby and Hayne JJ, reasoned in four stages, firstly by examining the provision in question focusing on the ordinary meaning of the words; secondly by considering the statutory context, including other provisions of the Act; thirdly by looking at the legislative history, including the evolution of the statutory scheme as well as the enacting history, namely any law reform report leading to the Bill being introduced and the second reading speech of the Minister responsible for the Bill. The fourth stage involved taking in the wider context, beyond the Act as a whole and its legislative history, namely the operational consequences of the construction including ensuring it did not lead to harsh, irrational or anomalous outcomes.

CONSIDERATION

Clearly, the Crimes Act does not provide a definition of the word "procure" as concerns s 66EA. Taking the first step as set out above, the ordinary meaning of the word "procure" was considered in ZA v R as noted.

Interpretation of the meaning of "procure" within s 66EB

In ZA v R, Adamson J considered the different uses of the word "procure " within different provisions of the Crimes Act, concluding the words had different meanings, including "to obtain" (at s 84) or "arrange" or "recruit" (at s 91B) (at [24]). The Court recognised that the word not only had different meanings both within the Act generally but also within the same section, concluding at [27]: Accordingly, the meaning of the word in the present context requires a textual analysis of the section, as well as a consideration of the purpose of the provision in order that the interpretation that promotes its purpose is preferred: s 33 of the Interpretation Act 1987 (NSW).
As is further considered below, the case did not deal with the operation of s 66EB(4) and its impact on the operation of the offence provision in s 66EB(2) in circumstances where there was no evidence of unlawful sexual activity.
I note that s 66EB(4) is specific to the proof of the element of "sexual activity" stating that in "any proceedings" for "an offence" "against this section" it is not necessary to specify or prove any particular unlawful activity. This provision operates for the three offences contained within s 66EB, namely, procuring (ss (2)); meeting following grooming with intention to procure (ss (2A)); and grooming (by exposing child to indecent material or providing he child with an intoxicating substance) with intention of making it easier to procure (ss (3)). The question of ambiguity concerns what is to be made of the words "was or was to be procured" for sexual activity and whether the provision operates such as to either expand what is to be understood by the word "procure" or as to allow the operation of s 66EB to incorporate within it possibly an attempt to "procure".
I find that there is ambiguity as to the operation of the provision in the sense that the words "was to be" within ss (4) could refer to the operation of an attempt provision utilised in addition to ss (2) offence, or be limited to application to the intention provisions contained within (2A) or (3) combined as they are with additional elements pertaining to grooming and meeting with intention to procure and/or exposing to indecent material with the intention to procure. Further, if the term "procured" means "incite" or "recruit" rather than "obtain" "cause or bring about", why would be it be necessary to include the words "was to be procured"? On the other hand why, if procure meant obtain, cause or bring about unlawful sexual activity would it not be necessary to establish the sexual activity?
As noted s66EA Crimes Act does not include a definition of the term "procure" and clearly incorporates within it a variety of situations. It is complicated by the differences between other inchoate offences and the use of that term within other provisions within that Act. Accordingly s 33 of the Interpretation Act 1997 (NSW) provides for consideration of the purpose of the provision in order that the interpretation that promotes its purpose be preferred. It is therefore necessary for me to consider the legislative history, the evolution of the statutory scheme as well as the enacting history, namely any reports available to Parliament at the time the Bill was introduced and the Second Reading Speech of the Minister responsible for the Bill.
I note the wording of the Legislation Review Digest of 13 November 2007 which stated that the proposed section 66EB (4) within the Bill that became the Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW) provided that an unlawful sexual activity need not be particularised as the actus reas of the offences within s 66EA were committed by the act of procuring and grooming and not by unlawful sexual activity itself. In other words, it is the procuring or grooming activity that forms the conduct element of the actus reas (guilty act) that constitutes the offence rather than the unlawful sexual activity per se. Again, this rather appears to allow for a meaning of procure to incorporate the concept of a preparatory act to unlawful sexual activity.
Further, all offences within s 66EB are referred to as "preparatory" offences within the Object of the Bill and carry a range of penalties between 10 and 15 years. The object of this Bill is to make it an offence for an adult to procure or groom a child for unlawful sexual activity, supportive of the preparatory nature of the Act.
The Attorney General made reference to the purposes of the provision within the Second Reading Speech for the Bill noting an increase in predatory sexual behaviour towards children through the internet not confined to offences undertaken by the use of electronic communications. The Attorney said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 November 2007) at p 3587 [emphasis added]: Subsection (4) of the proposed section 66EB contained in item [1] states that it is not necessary to specify or to prove the unlawful sexual activity for which the child was to be procured. This means that a person can still be charged with a procuring or grooming offence even if no specific sexual activity had been suggested or planned with the child.
The Attorney went on to make clear that s 66EB(2) is available for instances where the offending involved offering money to a child to engage in sexual acts [emphasis added]: This bill makes it an offence for an adult to procure or groom a child for any unlawful activity. It aims to capture the kinds of grooming activities commonly engaged in by paedophiles, whether online, through electronic communications or through any other means or activities. The offences of procuring and grooming have been drafted as separate offences in this bill, which is appropriate given that grooming is a preparatory offence and procuring involves more substantial acts. The offences are directed against people who are actively engaging with children in ways that make the children more likely to participate in sexual activity. Grooming can include a wide range of behaviour including conduct that encourages a child to believe they have romantic feelings for the adult or desensitising the child to the thought of engaging in sexual activity with the adult. Procuring a person to engage in sexual activity includes encouraging, enticing, recruiting or inducing - whether by threat, promises or otherwise - in relation to that activity. For example, procuring offences would apply when a person offered money to a child to engage in sexual acts or promised them gifts or some other form of benefit. The Government is committed to ensuring that such activities are outlawed and offenders punished in line with community expectations. And later: The incitement provisions do not apply to the operation of offences of attempting to commit a sexual offence under sections 61P, 66B, 660 , 66F(4), 73(4), 78B and 80 or the offence of procuring or grooming a child under 16 years for unlawful sexual activity under section 66EB of the Crimes Act 1900. These are preparatory crimes committed in the preparation of actual sexual abuse.
Hansard indicates the NSW Parliament had reference at the time of enactment of the legislation to the legislative provisions adopted by other jurisdictions concerning procurement and grooming offences in the form of the NSW Parliamentary Library Research Service paper "Protecting Children from Online Sexual Predators" Briefing Paper No 10/07. That document indicates the focus of the NSW reforms was to criminalise preparatory acts such as grooming done with the intention of procuring (which itself was referred to as including enticing, encouraging, recruiting and inducing) a child to engage in sexual activity. The rationalisation of the enactment of specific "procurement" or "solicitation" offences was stated as consistent with the underlying purpose of the reforms to allow law enforcement to intervene before a child is actually abused. Various provisions in other states and territories were considered within the Briefing Paper, including most notably the Queensland legislation (s 218A(1)) of the Criminal Code Act 1899 (OLD)) which prohibits the "intent to procure" defining "procure" as "knowingly entice or recruit for the purposes of sexual exploitation" in addition to the provision that it is not necessary to establish any particular sexual act or activity. In Victoria, s 58(1) of the Crimes Act draws a distinction between soliciting for sexual activity and procurement the latter of which was said to involve a more careful process of contrivance in order to bring about a particular result. Both carried the same maximum penalty. Section 474.26 of the Commonwealth Criminal Code criminalises the "using of a carriage service to procure...," the Explanatory Memorandum of which considered the difference between this offence and an attempt offence, justifying the enacting of specific "procurement" and "solicitation" offences to allow law enforcement to intervene before a child is actually abused. The Dictionary of the Code defines "procure" a person to include: encourage, entice or recruit the person to engage in that activity; or induce the person (whether by threats, promises or otherwise) to engage in that activity.
Consistent with the position of some of these jurisdictions, it is apparent from the Second Reading Speech, that the intent of the NSW Parliament was to enact legislation that provided NSW Police with the power to charge for a preparatory act, including within that concept the act of procurement. The point of ss (4) is to make clear that proof of unlawful activity is not necessary to proof of the offence. The actus reas of the offence is in the preparatory acts taken with that intention.
Turning to the final stage of the interpretation process, I note that the interpretation of s 66EA urged upon me by the Crown does not lead to a harsh, irrational or anomalous outcome. As the appellant fairly concedes, the Crown could alternatively have charged the appellant with an offence of attempt to procure utilising s 344A of the Crimes Act. I note that some prosecutions for this type of conduct have proceeded in this way. However, the point of the provision read as a whole is that the prosecuting authority is not required to utilise the attempt provision as s 66EB, taken as a whole, indicates that a procure offence is a preparatory offence, which may be established in the absence of evidence of unlawful sexual activity.
This Court must prefer a construction of s 66EB which will advance its purpose. As is evidence from the Second Reading Speech the purpose of s 66EB was to protect children activities in preparation for unlawful sexual activity, whether by procuring, or doing an act such as meeting with a child or grooming a child with the intent of procuring. The commission of the unlawful sexual activity itself is punished by other provisions within the Crimes Act.
ZA v R made clear that the word "procure" has "different meanings, both in different sections of the Crimes Act as well as within the same section", at [27], [37]. The act of procuring in that case of course involved unlawful sexual activity having taken place not with the accused, but arranged by him. Adamson J, with whom the other members of the Court agreed, found that the meaning of the word within the "present context" relevant to that trial, indicated that the direction to the jury as to the word "procure" within s66EA had been correct, at [42]. The Court was not asked to consider how ss (4) operated in the context of ss (2) in the circumstances of this case.
Based upon the interpretation urged upon me by the appellant as to the meaning of the term "procure" it would be inexplicable that the Parliament did not choose to word s 66EA (2) as "with the intention to procure" or "attempts to procure" given one of Parliament's principle aims of the enactment was to capture the criminality of the preparatory act which included encouraging, enticing, recruiting or inducing. Whilst the term "procure" in s 66EB in the context of the factual scenario considered in ZA v R meant "cause or bring about", in the context of this case it also includes the act of enticing a child to engage in unlawful sexual activity.
Accordingly, I do not find that the offence pursuant to s 66EA(2) cannot be made out on the current facts based upon a question of law. I do not find the prosecution at hearing failed to establish an essential element of the case.
Consequently, I further reject the assertion that the appellant was deprived of the opportunity to answer the case against him because the prosecution case was that he had actually "procured" the complainant for unlawful sexual activity. The case run at the Local Court did not at any stage indicate that the appellant and the complainant had engaged in sexual activity, only that he had asked her to engage in sexual activity by offering her drugs and money. The appellant's case in the Local Court was not only that there was no sexual activity but that he had not asked her to engage in such activity.

CONSIDERATION OF THE EVIDENCE

I turn now to the evidence. Although there is no argument that I ought approach the evidence in any way differently from the Local Court Magistrate, nor any submissions from the appellant as to how I am to approach the evidence, I am nonetheless required to consider the case de novo based upon the evidence adduced in the Local Court taking into account the advantage enjoyed by the magistrate who saw and heard the witnesses called in the Local Court.
I have directed myself as to the standard of proof, complaint evidence, noting the complainant made an immediate complaint to her brother and thereafter to her mother before the matter was taken directly to NSW Police. I direct myself in accordance with Liberato and Ors v The Queen (1985) 159 CLR 507 to the effect that it is not simply a matter of determining which I prefer, the complainant's or the appellant's evidence, rather, it is a matter of being satisfied beyond a reasonable doubt of the truth of the evidence asserted by the complainant. I note that the appellant elected to participate in an ERISP interview and to give evidence at the hearing. I direct myself accordingly that the appellant, as a person accused of serious criminal activity, had a right to silence. He was under no obligation to give an account to the police and that an accused person does not have to prove anything. I direct myself firstly, the fact that he chose to make a statement does not mean that the onus of proof shifts from the Crown to the appellant who bears no onus to prove that he is not guilty and secondly, if his evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove then I am bound, in law, to find the appellant "not guilty".
I have had consideration of the Magistrate's findings, noting he had the benefit of hearing and seeing the in court accounts of the witnesses. I note no specific comments were made about observations of the particular witnesses demeanour but found the complainant in her evidence before the Local Court largely consistent with the account given to police in her JIRT interview.
I have had consideration to the Crown evidence, noting in particular, the timeliness of the complaint evidence made in the absence of knowledge of the CCTV cameras, and the broad corroboration of the account by what was recorded on that security footage. I note that the complainant was able to give further context to the exchange when shown the recording for the first time which gave her account further credibility noting some of her statements were made against interest (for example her concession she had told him she did use "yarndi"). I note that her evidence had some additional detail but was broadly consistent with her earlier statement. I accept that her evidence is reliable based upon the various matters set out above. I have considered the account given in the ERISP interview and in the interview before the Court by the appellant. I do not find that the appellant's evidence, in the form of his ERISP interview or his evidence before the court, leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove.

Determination

Accordingly, I confirm the findings of the Local Court Magistrate and find the offence proved. I dismiss the conviction appeal.

Amendments 11 March 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2024

Interpretations Act 1987(NSW)s 33, 34

Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007(NSW)

Interpretation Act 1997(NSW)

Crimes Act 1900(NSW)s 66EB, ss, s 344A

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (11)