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Court of Criminal Appeal 13 April 2005

Barrass v R

[2005] NSWCCA 131

Sexual offences
CRIMINAL LAW

Citation: Barrass v R [2005] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 13 April 2005
Judge(s): Dunford J, Simpson J, Hidden J

Background

The appellant was convicted in summary proceedings of two charges of committing an act of indecency towards a person under the age of ten years, contrary to s 61O(2) of the Crimes Act 1900 (NSW). The charges arose from a single incident on 21 November 2002, in which the appellant, while driving a motor vehicle adjacent to a school bus, exposed and manipulated his penis in view of two six-year-old girls seated at the rear of the bus. The appellant was between three and six metres from the complainants, could see them, intended them to see him, and was observed smiling as he did so.

The appellant appealed his conviction to the District Court. The presiding judge, Norrish DCJ, held that the "towards" element of the offence was established given the proximity, mutual visibility, and the appellant's evident intention that the girls would witness his conduct.

Rather than proceed to final determination, Norrish DCJ stated a case under s 5B of the Criminal Appeal Act 1912 and submitted two questions of law to the Court of Criminal Appeal for resolution.

  • Whether an offence of committing an act of indecency "towards" another person under s 61O(2) of the Crimes Act 1900 requires, on its proper construction, that the act be committed in the immediate physical presence of the victim.
  • If so, whether Norrish DCJ erred in law in finding that the "towards" element was established on the facts of this case.

Decision

Hidden J (with Dunford and Simpson JJ agreeing) traced the legislative history of the provision to explain its purpose. The offence of committing an act of indecency "with or towards" a young person was first introduced by s 76A of the Crimes Act in 1974, specifically to address a gap identified in English case law. Under the prior law, a man who invited a child to touch him indecently could not be convicted of indecent assault because his own conduct did not constitute an assault. The new provision was designed to capture that conduct.

The High Court's decision in Saraswati v The Queen (1990-91) 172 CLR 1 examined the scope of s 61E(2), the successor provision, and confirmed that purposive construction governs. The majority held that the "with or towards" language was directed at conduct that falls short of physical assault on the victim, not at conduct that would independently constitute indecent assault or more serious offences. Hidden J applied this framework to conclude that the word "towards" does not demand that the offender be in the immediate physical presence of the victim.

Hidden J agreed with observations made by Smart AJ in R v Chonka [2000] NSWCCA 466 that an act of indecency can be directed "towards" a person without being carried out in that person's immediate presence. His Honour noted that in most cases the offending will occur in sufficiently close proximity to amount to immediate presence, but held that this is not a strict requirement. On the facts of this case, the same conclusion as Norrish DCJ was correct: the appellant's conduct was directed "towards" the complainants because he was within their line of sight, they were within his, and he intended them to witness the act.

Because the first question was answered in the negative (immediate physical presence is not required), the second question (whether Norrish DCJ erred in finding the element established) required no answer.

Orders Made

  • First question of law answered: "No" (immediate physical presence is not required).
  • Second question of law not answered.
  • Matter remitted to the District Court to be dealt with accordingly.

Key Takeaways

  • Under s 61O(2) of the Crimes Act 1900, an act of indecency committed "towards" a person under ten years of age does not require that the offender be in the immediate physical presence of the victim.
  • The Court of Criminal Appeal confirmed that the "with or towards" formulation in s 61O(2) was introduced to fill a specific gap left by indecent assault provisions, and its scope is governed by that remedial purpose.
  • Proximity, mutual visibility, and the offender's intention that the victim witness the conduct are relevant considerations in determining whether an act was committed "towards" a complainant within the meaning of the provision.
  • Although immediate presence is not required, the court acknowledged it will be present in the overwhelming majority of cases caught by the provision.
  • A case stated procedure under s 5B of the Criminal Appeal Act 1912 allows a District Court judge to refer unresolved questions of law to the Court of Criminal Appeal without finally determining the appeal, after which the matter returns to the District Court for resolution.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(2), 61O(2), 71, 76A, 78
- Criminal Appeal Act 1912 (NSW), s 5B
- Interpretation Act 1987 (NSW), ss 33, 34
- Summary Offences Act 1970 (NSW)
- Summary Offences Act 1988 (NSW)

Cases
- Saraswati v The Queen (1990-91) 172 CLR 1
- Fairclough v Whipp (1951) 35 Cr App R 138
- DPP v Rogers [1953] 1 WLR 1017
- Moloney v Mercer [1971] 2 NSWLR 207
- R v Stanley [1965] 2 QB 327
- McGowan v Langmuir [1931] SC (J) 10
- R v Gillard (1995) 105 ACrim R 479
- R v Page (CCA, unreported, 25 November 1991)
- R v Chonka [2000] NSWCCA 466
- Crampton v The Queen (2001) 206 CLR 161