Criminal Law - Particular offences - Offences against decency and morality - Other offences - Indecent act directed at a young person under the age of 17 years - Whether sending an e-mail containing sexual images and pornographic pictures can amount to an indecent act.

R v Bryant [1984] 2 Qd R 545, referred to.

Judgment Number: [2006] TASSC 74

1 The indictment charges the accused with an indecent act with a young person under the age of 17 years, contrary to the Criminal Code, s125B(1). The particulars of the charge are that on or about 19 April 2005 he did an indecent act directed to a young girl under the age of 17 years by e-mailing to her two e-mails containing sexual images and pornographic pictures. When the accused was called upon to plead he demurred to the indictment under s353(a), on the ground that it does not in substance disclose any crime.

2 Section 125B was inserted into the Code on 17 December 2001 by the Criminal Code Amendment Act 2001. Subsection (1) is in these terms:

"Any person who does any indecent act with, or directed at, another person who is under the age of 17 years is guilty of a crime."

3 It was submitted by the accused's counsel that the subsection requires that for an act to be an indecent act it must be a bodily act of the accused that is in itself indecent. Thus, while exposing the naked body to a child might be an indecent act, depending on the circumstances, exposing a photograph of a naked body would not offend the provision.

4 My research has failed to find an example of a conviction for an offence such as this in circumstances other than when the offender's actions were indecent in themselves. I have found no example of the offence being committed by the act of delivering to another an indecent photograph or other indecent object. However, my research has been limited because of lack of resources readily available in Launceston. I have considered a number of Canadian cases and searched text books available to me and old volumes of Halsbury's Laws of England and the English and Empire Digest. The Australian Digest has not assisted either.

5 Counsel for the accused referred to a Queensland decision of the Court of Criminal Appeal. It is R v Bryant [1984] 2 Qd R 545. The Queensland Criminal Code, s227(2) provided that "any person who ... wilfully does any indecent act in any place with intent to insult or offend any person" was guilty of a misdemeanour. That provision was almost identical with s137(b) of this State's Criminal Code. There had been a trial before a jury. The particulars of the charge under that provision were that the accused had handed to a female complainant a jewellery box containing the testicles of a wallaby with intent to insult her. The appellant was convicted and he appealed. At the hearing of the appeal he was not represented by counsel. The court rejected all of his grounds of appeal but raised a question of law, without amending the grounds of the appeal, and determined it in favour of the appellant, by a majority. It concerned a misdirection by the trial judge as to what would amount to an "indecent act". The jury were instructed that the word "indecent" had no definite legal meaning and that it had its modern and popular acceptation, and dictionary definition, as "anything that is unbecoming or offensive to common propriety", the question to be judged in the light of time and place and in all the circumstances, including the background and the relationship between the two persons involved. Sheahan and McPherson JJ considered the direction erroneous and accordingly the conviction was set aside. The third member of the court, Kelly J, disagreed.

6 McPherson J observed that the Queensland provision had its origin in s142 of Sir Fitzjames Stephen's Criminal Code Bill introduced into the House of Lords in 1880, and that analogues were to be found in the New Zealand Crimes Act 1961, s126, and the Canadian Criminal Code 1970, s169. At 552, his Honour applied Canadian authorities which required an element of "moral turpitude" and that the accused must have acted in a "base or shameful manner". See R v Hecker (1980) 58 CCC (2d) 66 at 71. His Honour continued:

"The emphasis throughout falls on some bodily act of the accused that is indecent judged by prevailing community standards. To impose criminal responsibility by the imprecise test of whether a person has acted in a 'base or shameful manner' may be open to the objection that it allows undue scope to the varying standards of different juries. But it is greatly to be preferred to the terms in which the jury were directed as to the meaning of indecency in the present case. That formulation was 'anything that is unbecoming or offensive to common propriety'. A great deal of human conduct is capable of falling within the limits of such a formulation but is nevertheless incapable at law of constituting an indecent act within s227 of the Code. It is hardly the function of The Criminal Code, or of s227 in particular, to punish mere lapses of taste or of good manners simply because they may be thought by some members of society, who may constitute the jury, to be 'unbecoming' or 'offensive to common propriety'.

For these reasons the direction to the jury on the meaning of 'indecent act' in s227(2) of the Code was, in my respectful opinion, incorrect. It was formulated too widely."

7 To that point in his reasons, McPherson J had found a misdirection concerning what might make an act "indecent". However, his Honour immediately went on to hold that what was alleged against the appellant was incapable of amounting to an indecent act. His Honour's words were:

"Handing over the box containing the wallaby testicles was not a bodily act of the kind that has traditionally attracted liability for an offence like that created by s227. What the appellant did was certainly in poor taste and may even be said to have been unbecoming or offensive to common propriety; but I do not think that by any standard it can be said to involve moral turpitude or acting in a base or shameful manner.

For these reasons I do not think that the conviction can stand, or that a new trial should be ordered."

8 All his Honour was saying was that in the particular circumstances of the case, the appellant's act could not be said to be indecent. Unbecoming or offensive to common propriety, yes, but it could not by any standard be said to involve moral turpitude or acting in a base or shameful manner.

9 Sheahan J basically agreed with McPherson J. He held that although "the conduct of the appellant, however revolting and possibly indicative of a sick mind" and "as the jury found, it was intended to insult the complainant", nevertheless what the appellant did was not an offence under s227(2). His Honour observed that the section appeared in a chapter headed "Offences against morality" (Chapter 14 of this State's Code, which contains ss125B and 137, is headed "Crimes Against Morality") and that the offences in the chapter were related, in one way or another, to sexual impropriety or conduct which clearly contained the element of lewdness. His Honour concluded that the word "indecent" in s227(2) should be construed so as to exclude conduct which was "unbecoming" or "offensive to common propriety", but to include conduct which was lewd or prurient. He regarded the section as striking at offences against morality and that the conduct of the appellant did not amount to that.

10 None of the members of the Court of Criminal Appeal in R v Bryant expressed the view that the offence in question could not be committed by the action of providing something to another to be viewed, or that for there to be an offence there had to be a bodily act of the accused which was in itself indecent in the sense that has been argued here. It is reasonable to think that they would have expressed that view if it was held.

11 The question to be determined is whether, for the purposes of s125B(1), the action of a person in providing sexual images or pornographic pictures for another to view can amount to an indecent act. Although I have not encountered an example of it in any past case, the conclusion I have reached is that the words of the section permit it. The contrary was not suggested in R v Bryant. Accordingly, the demurrer will be overruled.