R v VK

The statutory provisions

1. Section 66EB was inserted into the Crimes Act by the Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW) and came into operation on 18 January 2008. Section 66EB appears in Division 10 of Part 3 of the Crimes Act.
2. As at the date of the alleged offences, s 66EB relevantly provided: "(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: (a) communicating in person or by telephone, the internet or other means, or (b) providing any computer image, video or publication. "unlawful sexual activity" means an act that constitutes an offence under this Division or Division 10A, 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 …. (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. … (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, 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 ….." (emphasis supplied)
3. In 2018, s 66EB(3)(a) was amended through the enactment of the Criminal Legislation Amendment (Child Sexual Abuse) Act 33 of 2018. As amended, s 66EB(3)(a) now provides: "..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"
4. As the Accused noted, there is no definition of 'indecent material', or more particularly, 'material' in ss 66EB(2A) (read with (2B)) and (3)(a); although the Accused's Counsel accepted that 'indecent' would likely capture the essence of earlier law dealing with the now repealed ss 61L and 61M of the Crimes Act [1] for the offence of 'indecent assault' with the word indecent meaning 'contrary to the ordinary standards of respectable people in the community'. I agree with this, although I would add that the word also imports a sexual connotation or overtone [2] .
5. The Accused also drew the Court's attention to the decision of the Court of Criminal Appeal in ZA v R [2018] NSWCCA 116 ("ZA") which considered s 66EB generally, although only the word 'procures' as it appears in s 66EB(2) in particular. He later sought to distinguish that decision in any event. I will return to this decision later.
6. In his argument, the Accused also referred to s 91FA of the Crimes Act. That provision, at the material time, appeared in Division 15A of Part 3 of the Crimes Act. Division 15A is headed 'Child Abuse Material' which proscribes certain offences in relation to 'child abuse material'. Section 91FA defined the word 'material' as including: "… any film, printed matter, data or any other thing of any kind (including any computer image or other depiction)"

The Accused's argument

1. The Accused argues, first, that in the absence of express definition, the concept of 'indecent material' should take its ordinary and plain meaning. By reference to a survey of a variety of dictionary definitions of the word (set out in Annexure 'A' to the Accused's Counsel's written submissions, MFI 2), the Accused submitted that 'material' meant 'a thing' that was 'tangible or physical'. Put negatively, the Accused submitted that the plain or ordinary meaning of the word excluded a (mere) 'utterance of words'. The Accused noted that the Crown's tendency notice (MFI 5) itself lent support to his posited construction. In that document, amongst other things, the Crown identified as 'common features' of the asserted tendency of the Accused to have a sexual interest (in female students aged between 15 and 18 years old), his possession of items consistent with that sexual interest, including (relevantly) 'searching the internet on his laptop for material of a sexual nature depicting 'teens', 'students', … and 'school girls' engaging in sexual activity'. The Crown's own use of this matter was said to be illustrative of the everyday usage of the word.
2. The Accused, by his Counsel's oral argument in reply, took the matter even further by arguing that the ordinary or plain meaning of the word 'material' was so unambiguous and unequivocal that it was unnecessary, if not inappropriate, for the Court to trouble itself with the extrinsic material that the Crown relied upon (see below).
3. Secondly, acknowledging the role that context (in the sense of the place of s 66EB within the Crimes Act, as a whole) has to play in statutory interpretation, the Accused submitted that his construction of 'material' within the statutory provision was so clear that it could not mean anything else. Reliance was placed, in this regard, to the 2018 amendment. He submitted that the three alternative species of matters in s 66EB(3)(a) (post-2018 amendments), or both of the alternative species of matters (prior to the 2018 amendments) all referred to physical and/or tangible items.
4. He further referred to the definition of the word 'conduct' in s 66EB(1)(a) which included the concept of "communicating in person". That, the Accused argued, could be accommodated by his construction since it could embrace the situation in which an adult person provided or communicated (in person) to a child material such as recordings, publications, stories or letters. In his oral argument in reply, Counsel for the Accused used the illustration of a teacher, in a face-to-face encounter with a student, presenting the student with a pornographic magazine without any conversation at all. The communication in this example did not involve oral utterances; but was an unspoken communication. Counsel for the Accused also referred me to a sentencing decision of Mahony SC DCJ in R v Woodley [2013] NSWDC 14, where the conduct constituting the offending 'conduct', for the purpose of s 66EB(3) was the offender's presentation of a bag comprising condoms, a set of what are known as "nipple clamps" and post-it notes which purported to be signed by a number of young women of a sexual character; and, at a later meeting in person, the offender presented the victim with a box containing pornographic material involving naked men and women.
5. Further, when reference is made to the Act, as a whole (and not just Sub-Division 9 of Division 10 of Part 3 of the Crimes Act), the Accused argued that his posited construction of 'material' was consistent or harmonious with the meaning of the word in numerous other provisions of the Act. He specifically cited ss 25C, 66DF, 80AB, 91C, 91E, Division 15A, 93S, 93TA, 93Z, 139, 150, 151, 154K, 192, 192L, 192N, 192P, 256, 515 and 547E. The Accused also referred to s 91FA, whose definition I referred to above. The Accused submitted that if Parliament had sought to give a different meaning to 'material' in s 66EB(3)(a) than it did in other provisions, it was capable of doing so, both in the original enactment and thereafter in the 2018 amendment.
6. The Accused acknowledged that 'material' can bear alternative constructions; but it was not the one that the Crown relied upon which could embrace oral utterances. Other provisions in the Act used the word "material" in a context which imported the meaning of a document or information (and presumably also a 'thing') that was of 'substantial' import or consequence.
7. Thirdly, and reinforcing a point already touched upon, the Accused argued that legislative history and extrinsic material did not assist the Crown. He argued that his construction of the word 'material' was consistent with the promotion of the purposes and object of the Act. Further, his construction was that the true meaning of the word did not give rise to any ambiguity or obscurity or lead to a result that was manifestly absurd or unreasonable. This, the Accused submitted, meant that the Court need not have recourse to extrinsic material.

The Crown's argument

1. The Crown did not positively proffer what its construction of the expression meant. Its submissions effectively amounted to what it contended was the accused's unduly narrow construction.
2. The Crown submitted that 'indecent material' in s 66EB(3) contextually had to begin with acknowledgment that the material was sexual in nature. 'Material' could, the Crown submitted, extend to the provision of information. Information could be provided by oral utterance. There was no particular reason to accept a narrow or restricted meaning of the word to exclude oral utterances. If Parliament wanted a narrow meaning, it could have chosen other words that would support the Accused's posited interpretation.
3. The Crown, secondly, argued that the Accused's construction paid no heed to statutory purposes or objects and the context. The Crown referred the Court to the Second Reading Speech of the Attorney General on the Crimes Amendment (Sexual Procurement or Grooming of Children) Bill 2007 in which the Attorney General stated: "The Government is pleased to introduce the Crimes Amendment (Sexual Procurement or Grooming of Children) Bill 2007. Very few issues have gained such worldwide support as the right of all children to be free from sexual abuse. Australia is a signatory to the 1989 Convention on the Rights of the Child, Article 34 of which creates an obligation to protect children from "all forms of sexual exploitation and sexual abuse". For this purpose, signatories are required to take all necessary steps to prevent the "inducement or coercion of a child to engage in any unlawful sexual activity". This bill brings New South Wales in line with the convention and goes a step further than existing Commonwealth legislation by capturing a wider range of predatory procurement and grooming practices. The introduction of new technologies has unfortunately resulted in an increase of predatory sexual behaviour towards children. Adult offenders exploit the anonymity of the Internet to win the trust of a child as a first step towards sexual abuse. Paedophiles do this through a process called grooming, which is undertaken with a view to procuring the child to meet with an adult and engage in unlawful sexual activity. However, the process is not solely confined to the Internet. This is why, unlike existing Commonwealth legislation, this bill does not limit grooming or procuring offences to those undertaken using electronic communications. Other practices used by paedophiles include befriending a potential child victim and introducing the child to explicit or inappropriate sexual concepts as part of a manipulation process to entice children into so-called "positive" sexual encounters with adults. Such activities make the child desensitised to sexual talk and behaviour, and therefore more vulnerable to abuse. The New South Wales offence will therefore have a wider application than the Commonwealth offence. This bill makes it an offence for an adult to procure or groom a child for any unlawful sexual 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…." (emphasis supplied)
4. Thirdly, the Crown submitted that the circumstance that the word 'material' may bear a different meaning in other provisions, in other Parts of the Crimes Act did not mean that a narrow construction for s 66EB should be applied.

Relevant principles to interpretation of criminal statutes

1. In GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618 ('GS'), Payne JA (Rothman J and Harrison J, as the CJ at CL then was, agreeing) at [38]-[41] described the legal principles relating to construction issues as follows in terms that I respectfully adopt: "38. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], the plurality emphasised that the task of statutory construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: see also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. 39 Determination of the purpose of a statute or of a particular provision may be not only based on an express statement of purpose in the statute itself but also by inference from its text and structure and, where appropriate, by reference to extrinsic materials. However, as Mr Anderson SC correctly emphasised, this process does not involve a search for what those members of the legislature who promoted or passed the law had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26]. 40 The relevant principles in the context of a criminal statute were further explained by Kiefel CJ and Keane J in R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [32]-[33] and [37]: "[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 'Mischief' is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. … [37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, 'if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance'. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred." (Footnotes omitted.) 41 It should be emphasised that the identification of the meaning of a term, in its proper legislative context, and in accordance with the principles just explained, will rarely be determined by a dictionary definition. Whilst dictionary definitions are not irrelevant, they cannot be determinative of the construction of a term in its relevant statutory context: see Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [52]-[57]; Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; (2020) 247 LGERA 277 at [83]."
2. In ZA, Adamson J (as her Honour then was, Macfarlan JA and Johnson J agreeing) observed (at [36]]: "..this Court must prefer a construction of s 66EB which will advance its purpose. As is evident from the Second Reading Speech, the purpose of s 66EB was to protect children from sexual abuse. Unlawful sexual activity is a form of sexual abuse."

Application

1. It is apparent that the Accused's suggested process of construction is contrary to these principles, especially those identified by the High Court in R v A2 (2019) 269 CLR 507 at [32]-[33]. The Accused's indicated approach would have me look only at the text, ascertain (by self-selecting what appears to be the most apposite dictionary definition) what the ordinary and plain meaning of the provision is and only thereafter, and only then, in limited circumstances (largely comprising linguistic ambiguity), go on to consider surrounding statutory provisions which may be drawn from other aspects of the statute and the statute as a whole and the mischief which it may be seen that the statute was intended to remedy. This is a very literal approach to interpretation, which subordinates context.
2. In my view, the Accused's list of dictionary meanings of the word 'material', whilst relevant in identifying the ambit of a range of potential literal meanings, does not point decisively in the construction of the word that he urges upon the Court. It is, however, notable, that notwithstanding the Accused's confidence that they help distil the unmistakeably plain and ordinary meaning of the word, closer scrutiny suggests otherwise.
3. One of the dictionary definitions annexed to Counsel for the accused's written submissions includes, within the list of 15 suggested definitions, "5. information, ideas or the like on which a report, thesis, etc, is based". A barrister may be commended for their advocacy in a client's case notwithstanding the material that they had to work with. In that sense, material could include oral testimony in court of a witness.
4. Another of the dictionary definitions was "9. relating to, concerned with, or involving matter". A debater is often assessed by an adjudicator for a range of things: 'manner, matter and method'. In this specific sense, matter is synonymous with the content of the material; or subject matter.
5. I raise these alternative definitions only to explain why, in my view, the accused's posited construction, to the extent that it excludes oral utterances, is not self-evidently the plain and ordinary construction which can be resorted to without a full consideration of context. If I was narrowly to view dictionary definitions as providing a fortress, I would not naturally exclude oral utterances or the content of a verbal communication from the concept of material in s 66EB(3)(a).
6. I very much doubt that dictionary definitions can be determinative of the construction of a term in its relevant statutory context.

Internal context

1. Section 66EB(3), read as a whole, has three aspects: the engagement in conduct (of certain kinds); that has a successful intermediate result (of certain kinds) (s 66EB(3)(a)) and the accused has a particular mental state: the intention to make it easier to procure the child for unlawful sexual activity with that other person (s 66EB(3)(b)). Put another way, grooming is an offence that encapsulates both a means which successfully achieves an intermediate result (preparatory acts) with a particular end in view.
2. Section 66EB(1) gave content to that 'means' by defining conduct in two ways. The second alternative way, in s 66EB(1)(b), is the "provision of any computer image, video or publication". This appears to have been the form of conduct that the Crown relied upon in the Woodley sentencing decision that the accused's Counsel referred me to. If this was the only alternative, there may be greater force to the accused's construction of the word 'material' in s 66EB(3)(a), as they are physical or tangible things. However, s 66EB(1)(a) provides an alternative, being a "communication". It is cast in apparently broad terms, embracing communication by any "other means".
3. The 'result' is wedded to the means: in this case (under the original enactment) exposure of the child to indecent material or provision of an intoxicating substance. Those possibilities had been identified by Parliament as influencing or making (vulnerable) children susceptible to be procured for unlawful sexual activity with the perpetrator who engaged in the conduct. They are what I would regard as 'intermediate' results, being a step along the way to the ultimate end of the adult perpetrator, being the engagement in unlawful sexual activity with the child.
4. Viewed in this functional way, in my view, it would be surprising if a communication by sexual conversation would be excluded from the concept of 'material'. It would be surprising, indeed a stunning omission, if what was once referred to 'talking dirty', including verbal reference to explicit sexual activity or a person's sexual organs, and/or 'phone sex', which is designed to stimulate sexual arousal, would not be caught by the 'material' that would or could make children susceptible or, to use the statutory language, to make it 'easier' for children to be procured for sexual activity.

External context: statutory purpose and objects

1. The Attorney General's Second Reading speech was partially cited in ZA at [17].
2. I have also alluded to the statutory purpose of s 66EB identified by Adamson J at [36]: the 'procuring' offence. There is no reason why that would not apply to the 'grooming' offence; even though, as the Attorney General indicated Parliament deliberately separated the two offences.
3. Putting the objects, purposes, and context more broadly, the State Parliament was legislating in a context where the Commonwealth Parliament had already legislated to implement the 1989 Convention on the Rights of the Child. The Commonwealth incorporated in Australian domestic law the international obligation to protect children from "all forms of sexual exploitation and sexual abuse".
4. At the time s 66EB was enacted, the Commonwealth legislation was primarily in the form of provisions directed to child exploitation in the Criminal Code Act 1995 (Cth), and centred upon the use of telecommunications, especially the internet, for grooming and child pornography.
5. Under Division 474 of the Code (titled 'Child Exploitation Offences'), there were telecommunication offences such as using a carriage service for child pornography material (s 474.19), possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service (s 474.20), using a carriage service for child abuse material (s 474.22), possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service (s 474.23), using a carriage service to procure children (s 474.26) and using a carriage service to groom children (s 474.27).
6. The definitions section, in s 473.1, which amongst other things, defined 'child abuse material' and 'child pornography material', also defined "material" as including: "material, in any form, or combination of forms, capable of constituting a communication".
7. It was the restricted feature of electronic communications which the NSW Attorney-General referred to in his Second Reading Speech to the Bill, which enacted s 66EB, extolling the new provision as extending reach to grooming and procuring offences beyond the Internet. Significantly, for present purposes, the Attorney-General instanced "other practices" (other than electronic communications) used by paedophiles "including befriending a potential child victim and introducing the child to explicit or inappropriate sexual concepts as part of a manipulation process to entice children into so-called 'positive' sexual encounters. Such activities make the child desensitised to sexual talk and behaviour and therefore more vulnerable to abuse. The New South Wales offence (s 66EB) will therefore have a wider application than the Commonwealth offence".
8. 'Sex talk' to a child was singled out as an illustration of the intended reach of s 66EB in the Second Reading Speech. It matters not whether it is communicated by the adult in-person, or by phone to a child, being the categories of behaviour particularised in counts 2 and 3. The categories of "conduct" identified in those counts are entirely consistent with such 'other practices' of grooming and procuring that go beyond electronic communications. The Attorney General could hardly have been more explicit: "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 expression "other means" in s 66EB(1) dovetails with the legislative purpose that the offences in s 66EB(2B) and 66EB(3) are to be broadly construed, with 'material' construed expansively.
9. The accused's narrow construction does not accord with this context. Nor does it promote the purpose or underlying object of protecting children from sexual abuse in s 66EB identified in ZA. It would exclude from the coverage of s 66EB common, indeed a very common, category of conduct by an adult person - sexual conversation - with children which is apt to make it easier for the adult to procure the child for unlawful sexual activity. The accused's construction misses the legislature's target. I accept the Crown's submission that express words would be required to produce the construction that the accused contends for.
10. I will now address other arguments raised by the accused. It is true, as the Accused asserts, that there are provisions in Division 15A of the Crimes Act which also deal with the subject matter of child abuse material and define 'material' (in s 91FA) in a manner more consistent with the accused's posited construction of the word in s 66EB than the expression in the Criminal Code that I referred to earlier. But a cursory consideration of the various offences in Division 15A indicate that, generally, most of the offences in that provision concern the public uses, or risk of public usages of child abuse material. Section 66EB (and s 66EC) are, in my view, much more intensely protective of private communications and dealings between adult persons and children.
11. The 2018 amendment to s 66EB(3)(a) is, in my view, neither here nor there. To the extent, if at all, that amendments to legislation post-dating events in question are relevant to construction issues, I do not treat the three alternative 'intermediate results', as I characterise them in shorthand, as belonging to any genus of 'tangible or physical item'. The addition of the words "or with any financial or other material benefit" strike me as the inclusion of another common way (or ways) by which adults may lure children to make it easier to procure sexual activity. Indeed, the word 'material' in that particular expression arguably does not perform the work that the Accused appears to assume. Plainly the paradigm for a financial benefit would be money. But (the alternative) 'material benefit' prima facie appears to me to connote what might be a non-financial benefit which is of some value or importance to the child. For example, it might be the prospect of a trip to Luna Park or a trip to a show or sporting event that a child might want to see.
12. The Crown's use of the word 'material' in its tendency notice is also beside the point. The construction I prefer does not mean that tangible or physical items are excluded from being capable of amounting to material in the provision. Viewed in its context, the Crown cites, as one aspect of asserted tendency, an attempt to search out child abuse material, which if possessed or used, disseminated or transmitted could potentially give rise to criminal liability itself.
13. Further, and in answer to a related point raised by the accused, as Adamson J said about the word 'procure' in ZA at [27], the circumstance that 'material' may have a different meaning in other provisions of the Crimes Act, which is closer to the Accused's preferred construction, is not determinative.
14. The word 'material', as it appears in s 66EB of the Act, is protean. In its context, it means exposure of a child to certain matter which, irrespective of its form, bears a sexual character, or carries a sexual connotation or overtone and is therefore of a kind contrary to the ordinary standards of respectable people in the community. That includes, without limitation, sexual conversation.
15. The accused's application to quash counts 2 and 3 on the stipulated premise is refused.

the objection to 'Complaint' evidence

1. Unlike the other counts on the indictment, count 4 did not involve, at least in form, allegations of child sexual abuse. Count 4 is that between 31 January 2019 and 25 December 2019, at Fairfield, the Accused assaulted Rhiannon Melnyczenko (the complainant), contrary to s 61 of the Crimes Act.
2. The Crown case (MFI 6) begins with the circumstance that the complainant was a senior school student of the accused throughout Years 11 and 12 at Fairfield High School. It is alleged that she was one of a small number of students in the accused's English Extension 1 class; that the accused suggested that the students in the class all supply him with their mobile telephone numbers. This occurred and the Crown case is that in about April 2020, the accused rang and texted the complainant. On one occasion when the complainant was in Year 11, the Crown contends, the complainant was in the accused's classroom. The accused asked the complainant "are you strong? Do you reckon you could defend yourself". He then allegedly placed both hands on her shoulders and pushed her against the wall; and his face was next to the complainant's face, as if they were standing 'toe to toe'. This is the conduct the Crown will argue constitutes the assault.
3. Ms Deanna Knapman was, at the material time, a schoolteacher and the Deputy Principal of Fairfield High School. Ms Knapman prepared a statement for police (dated 6 January 2022) in which she referred to a meeting that she had with the complainant. This appears to have been on or about 2 June 2021. The background to this meeting, it appears, was the complainant seeing a news article that had adversely referred to the accused.
4. Ms Knapman wrote an extensive report (comprising 21 paragraphs in small font) of the content of her conversation with the complainant. That report was annexed to her statement to police on 6 January 2022. Ms Knapman's statement and report made it clear that the subject matter of the discussion was what had occurred between the complainant and the accused in 2019 (when the complainant was in Year 11) and in 2020 (when she was in Year 12). At paragraphs 37 - 38 of Ms Knapman's statement (which statement, I note, was heavily redacted for the purpose of the dispute) are statements which, in substance, amount to a paraphrase of many of the points contained in the written report. Much of the report concerns what, at the risk of over-simplification, the tribunal of fact might consider to be 'grooming' activities, including gratuitous comments upon this complainant's physical appearance (including her 'breasts and bums'), and questions whether she had a boyfriend.
5. In her police witness statement (10 June 2021), the complainant confirmed that a meeting had occurred with Ms Knapman eight days earlier; on 2 June 2021. She further explained that after meeting with Ms Knapman she went to the police when Detective Senior Constable Francis helped the complainant prepare her statement. As part of that process, the complainant was shown Ms Knapman's written report of the conversation and, in particular, the statements that she made to Ms Knapman. Subject to certain qualifications, the complainant stated that "Everything in that document is true and correct except for some minor discrepancies". In effect, and subject to those qualifications, the complainant adopted the correctness of the content of Ms Knapman's report.
6. The Accused objects to Ms Knapman giving evidence of what is contained in paragraphs 37-38 of the latter's (redacted) police statement. He argues that the complainant did not herself refer to much of the material in Ms Knapman's report in her own police witness statement. Accordingly, he argued, what Ms Knapman recalled about what the complainant had said was 'irrelevant'. The Accused raised no objection on the ground of hearsay. Further, no argument was raised that the evidence should be determined to be inadmissible on the basis of any discretionary exclusion.
7. The Crown argued that it was relying upon Ms Knapman's account of what the complainant told her, as reflected in paragraphs 37 -38 of Ms Knapman's statement, as complaint evidence which, under s 66 of the Evidence Act 1995 (NSW) was admissible as an exception to the hearsay rule. Ms Crown supplied the Court with a decision of the Court of Criminal Appeal in R v GAR [2003] NSWCCA 224, which was a precedent for the situation pertaining here: namely, that a complaint witness' evidence of what a complainant remained admissible even if the complainant denied or did not recall it.
8. To reiterate, the impugned parts of Ms Knapman's witness statement generally amount to a paraphrase of points 2, 3, 6, 9 and 11 which appeared in her report. That report was of conversation occurring on 2 June 2021 which related to events asserted to have occurred in 2019 and 2020.
9. In my view, the impugned (anticipated) evidence of Ms Knapman is relevant. At the very least in relation to count 4, one of the impugned statements in paragraph 38 of Ms Knapman's statement is capable of being taken by a jury as a relatively contemporaneous report or disclosure of the incident giving rise to that count. More than that, when that statement is viewed in context of other statements, it is relevant to the context in which the asserted assault occurred which the Crown will contend was sexual in nature; and incidentally is relevant to the accused's state of mind and motivations which bear on the probability of the issue whether the conduct occurred at all.
10. The accused's objection to the impugned part of Ms Knapman's evidence fails.

Endnotes

1. Sections 61L and 61M were repealed with effect from 1 December 2018 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) (s 2, 30.11.2018). These provisions continue to apply to offences committed or alleged to have been committed before 1 December 2018 and would have applied to conduct occurring within the date ranges contemplated by counts 2 and 3, respectively.
2. The Criminal Trial Bench Book direction [5-610] emphasises this additional matter. The offences of basic and aggravated indecent assault in what were formerly ss 61L and 61M respectively, were substantially replaced by new offences of basic and aggravated sexual touching in ss 61KC and 61KD, respectively; which more emphatically indicate the sexual nature of the offending. 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: 17 October 2024