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District Court 19 November 2009

R v PRIGGE

[2009] NSWDC 322

Sexual offences
CRIMINAL LAW JUDGMENT NOTICE OF MOTION OFFENCES COMMITTED OUTSIDE AUSTRALIA LAW OF NEPAL

Citation: R v Prigge [2009] NSWDC 322
Court: District Court of New South Wales
Date: 19 November 2009
Judge(s): Berman SC DCJ

Background

The accused faced an indictment in the NSW District Court for a series of offences allegedly committed in Nepal, prosecuted under the child sex tourism provisions of Part IIIA of the Commonwealth Crimes Act 1914. These offences were alleged to have been committed outside Australia against child complainants.

Crucially, the accused had already been dealt with by a Nepalese court for conduct arising from the same general events. He brought a notice of motion seeking a permanent stay of the Australian proceedings, arguing that the prior Nepalese conviction operated as a bar to further prosecution under section 50FC of the Commonwealth Crimes Act.

Section 50FC provides, in effect, that a person who has been convicted or acquitted in a foreign country of an offence against the law of that country "in respect of any conduct" cannot be convicted of an offence under Part IIIA in respect of that same conduct.

  • What is the proper construction of section 50FC of the Commonwealth Crimes Act, and specifically what does "convicted... in respect of any conduct" mean?
  • Does the bar in section 50FC extend to all conduct mentioned in the allegations made against an accused in foreign proceedings, or only to conduct that formed an element of the foreign offence?
  • On the facts, which counts on the Australian indictment (if any) fell within the conduct covered by the Nepalese conviction?
  • What weight, if any, should Australian courts give to prosecutorial and plea decisions made in foreign jurisdictions?

Decision

Berman SC DCJ held that section 50FC requires attention to the elements of the foreign offence for which the accused was convicted. The phrase "convicted... in respect of any conduct" means the conduct that the accused was actually convicted of, which is determined by the elements of the offence. A person cannot be convicted of conduct that is not an element of the charge.

The court rejected the accused's broader construction. The defence argued that section 50FC applied to any conduct referred to in the allegations made in foreign proceedings, even if that conduct was not an element of the foreign offence. The court found this reading unacceptable, illustrating the problem with a hypothetical: if an accused in Nepal were charged only with possessing a knife (used to threaten a child into a sexual act), the wider construction would bar any Australian prosecution for the sexual assault itself, simply because the allegations referred to it. Parliament could not have intended that result.

The court also declined to treat foreign prosecutorial decisions as binding on Australian courts. Different evidence may be available in Australia, and elevating a foreign charging decision into an absolute bar would undermine the purpose of Part IIIA of the Crimes Act.

However, certain counts on the indictment did fall within the scope of section 50FC. The Nepalese judgment appeared, on its face, to record a conviction for conduct involving showing indecent films and taking naked photographs of the complainants. The court acknowledged uncertainty about how this conduct could constitute an offence under the relevant Nepalese provision (the Some Public (Crime and Punishment) Act 1970), but was not prepared to find that the Nepalese judgment was simply wrong on this point. Given possible subtleties of Nepalese law, translation, or provisions not in evidence, the court gave the accused the benefit of the doubt on those specific counts and stayed them.

Orders Made

  • Permanent stay granted for counts 2, 3, 4, 6, 7, 8, 13, and 14 on the indictment (counts relating to conduct consisting of showing indecent films or taking naked photographs of the complainants).
  • All remaining counts on the indictment were not stayed and are to proceed.

Key Takeaways

  • Under section 50FC of the Commonwealth Crimes Act 1914, the bar on prosecution following a foreign conviction applies only to conduct that constituted an element of the foreign offence, not to all conduct referred to in the foreign allegations or proceedings.

  • A person cannot be "convicted" of conduct within the meaning of section 50FC if that conduct was not an element of the offence for which they were convicted abroad.

  • The District Court refused to treat foreign prosecutorial decisions as binding on Australian courts, finding that different evidence may be available domestically and that the purpose of the child sex tourism provisions would be significantly undermined by a contrary approach.

  • Where the elements of the foreign offence clearly did not require a finding of particular conduct, the Australian court was not precluded from prosecuting for that conduct simply because the foreign proceedings referenced it in passing.

  • Uncertainty about the full scope of foreign law, including possible provisions not in evidence and translation difficulties, factored into the court's approach to specific counts: where the accused could not be shown to fall outside section 50FC's protection, the benefit of the doubt was applied and those counts were permanently stayed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), Part IIIA (child sex tourism offences), s 50FC, s 4C
- Crimes Act 1900 (NSW)
- Some Public (Crime and Punishment) Act 1970 (Nepal)

Cases cited: No cases cited in the provided judgment text.