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District Court 4 September 2008

Palazo v DPP

[2008] NSWDC 184

Sexual offences
APPEAL FROM LOCAL COURT ALTERNATIVE VERDICTS ACT OF INDECENCY INDECENT ASSAULT MEANING OF "WITH" OR "TOWARDS"

Citation: Palazo v DPP [2008] NSWDC 184
Court: District Court of New South Wales
Date: 4 September 2008
Judge(s): Williams DCJ

Background

The appellant had been charged in the Local Court with an aggravated act of indecency under s 61O(1A) of the Crimes Act, the alleged aggravating circumstance being that the complainant was under his authority. The Magistrate found the aggravating circumstance was not established, but then used the alternative verdict provision in s 61Q to convict the appellant of the lesser-listed offence of indecent assault under s 61L. That conviction attracted a maximum penalty of five years, compared to three years for the original charge.

The appellant appealed to the District Court on a question of law. The consent issue, which had been contested at trial, was resolved against the appellant in the Local Court and was not relitigated on appeal. The sole question for the District Court was whether the Magistrate could lawfully use s 61Q to substitute a conviction under s 61L when the charge had been brought under s 61O.

  • Whether s 61Q operates as a statutory code, limiting the available alternative verdicts to those expressly paired within the section
  • Whether the facts alleged by the complainant were capable of constituting an act of indecency "with or towards" her under s 61O, rather than an indecent assault under s 61L
  • Whether an indecent assault can, on the same facts, also constitute an act of indecency with or towards a person
  • Whether a more serious offence (carrying a higher maximum penalty) can be treated as an "alternative" to a less serious charge under s 61Q

Decision

Williams DCJ held that s 61Q creates a statutory code with fixed pairings: for a charge under s 61O, the only available alternative verdict is an offence under s 61N. The provision does not permit a court to substitute a conviction under s 61L simply because s 61L might seem factually relevant. The Magistrate therefore had no power to convict the appellant of an indecent assault when he had been charged with an aggravated act of indecency.

The District Court also found that the factual conduct alleged by the complainant did not amount to an act of indecency "with or towards" her within the meaning of s 61O. Drawing on R v Crampton and R v Saraswati, the court confirmed that the word "with" requires a degree of consenting mutuality, and that conduct constituting an indecent assault cannot simultaneously be characterised as an act of indecency with or towards a person. The two provisions address fundamentally different modalities of conduct.

A further difficulty was that indecent assault under s 61L is, even without any aggravation, a more serious offence than the aggravated act of indecency charged under s 61O(1A), carrying a higher maximum penalty. On that basis alone, it could not properly be treated as an alternative or lesser offence.

The District Court concluded that the wrong charge had been brought given the facts alleged. Because the appellant had already been tried and adjudicated on those facts, it was too late to reformulate the charge, and the conviction could not stand.

Orders Made

  • Appeal upheld
  • Conviction set aside and quashed

Key Takeaways

  • Section 61Q of the Crimes Act operates as a statutory code: where a person is charged under s 61O (aggravated act of indecency), the only permissible alternative verdict is an offence under s 61N, not an offence under s 61L.
  • An indecent assault and an act of indecency are distinct offences addressing different kinds of conduct. Facts establishing an indecent assault cannot, on the same evidence, also establish an act of indecency "with or towards" a person.
  • The word "with" in s 61O requires some degree of consenting mutual participation, consistent with the approach confirmed in R v Crampton and R v Saraswati.
  • A court cannot use an alternative verdict provision to substitute a conviction for an offence that carries a higher maximum penalty than the offence originally charged. The District Court treated this as a further reason why s 61Q should be read as a closed, paired code.
  • Where the original charge is shown to have been misconceived on the known facts, and the accused has already been tried and adjudicated upon, it is too late to reformulate the charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 61I, 61J, 61K, 61L, 61M, 61N, 61O, 61Q

Cases:
- R v Beserick (1993) 30 NSWLR 510
- R v Cameron [1983] 2 NSWLR 66
- R v Crampton (2000) 117 A Crim R 222
- R v Saraswati (1990) 172 CLR 1