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Court of Criminal Appeal 1 December 2017

R v PJ

[2017] NSWCCA 290

Sexual offences
CRIMINAL LAW APPEAL SEXUAL OFFENCES CROWN APPEAL AGAINST PERMANENT STAY STATUTORY INTERPRETATION 73(3)(C) CRIMES ACT 1900

Citation: R v PJ [2017] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 1 December 2017
Judge(s): Latham J (with Bellew J and Campbell J agreeing)

Background

The respondent was a high school PE teacher who had taught the complainant in class during 2011, 2012 and 2013. By 2015, when the complainant was 17 and in Year 12, he was no longer her teacher in any formal sense, though the two would occasionally speak on school grounds. In September and October 2015, sexual intercourse took place between them on three occasions. The fact of sexual intercourse was not in dispute.

The respondent was charged with three counts under s 73(2) of the Crimes Act 1900 (NSW), which criminalises sexual intercourse with a person aged 17 to 18 who is under the offender's "special care." The Crown alleged that the relevant category of special care was s 73(3)(c): that the respondent had an "established personal relationship" with the complainant "in connection with the provision of sporting instruction" to her.

The trial judge (Bright DCJ in the District Court) permanently stayed all three counts on the basis that there was insufficient evidence to establish the special care element. The Director of Public Prosecutions appealed to the Court of Criminal Appeal.

  • Whether s 73(3)(c) of the Crimes Act 1900 requires that the provision of instruction be ongoing at the time of the sexual intercourse, or whether a previously established personal relationship arising from past instruction is sufficient.
  • What the phrase "in connection with" in s 73(3)(c) means, and whether it imposes a temporal or causal requirement linking the relationship to current instruction.
  • Whether the trial judge correctly construed the provision and was right to stay the proceedings for want of sufficient evidence.

Decision

Latham J (with whom Bellew J and Campbell J agreed) dismissed the Crown's appeal, holding that the trial judge had correctly construed s 73(3)(c). The Court reasoned that each category of "special care" in s 73(3) is premised on the existence of a current relationship of authority or trust at the time of the sexual intercourse. Categories (a), (b), (d) and (e) are all expressed in the present tense, referring to subsisting relationships such as stepparent, school teacher, or health professional. Category (c) must be read consistently with those categories.

The Court held that the phrase "in connection with" in s 73(3)(c) signifies that the personal relationship between the offender and the victim must both arise from and remain confined to the ongoing provision of instruction. The provision of instruction is the activity that creates the relevant power relationship and the capacity to exploit the relative vulnerability of the young person. Once instruction ceases, so does the position of authority that the section is designed to address.

Latham J rejected the Crown's argument that the relationship, once established, continues to attract criminal liability until the complainant turns 18. To accept that argument would mean, for example, that a physiotherapist or custodial officer could face liability for a sexual relationship with a former patient or former inmate, a result inconsistent with the structure and purpose of the section. Because the respondent had not provided any instruction to the complainant since 2013, there was no evidence capable of supporting the charges.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • Under s 73(3)(c) of the Crimes Act 1900 (NSW), an offender's position of "special care" arising from the provision of religious, sporting, musical or other instruction subsists only while that instruction is being actively provided, not merely because a personal relationship was established in the past.
  • The phrase "in connection with" in s 73(3)(c) requires both a causal and an ongoing connection between the personal relationship and the provision of instruction at the time of the alleged offence.
  • Construing s 73(3)(c) consistently with the other categories in s 73(3), the Court of Criminal Appeal confirmed that all categories of "special care" require a presently subsisting relationship of authority or trust, not merely a historical one.
  • In dismissing the appeal, the Court declined to extend liability to former instructors in the way the Crown proposed, noting this would create an anomalous result when compared with other categories such as health professionals and custodial officers.
  • No error was established in the trial judge's decision to permanently stay the counts; the Crown's evidence, taken at its highest, could not satisfy the special care element of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 73(2), 73(3), 61J
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Crimes Act 1958 (Vic), s 48(1)
- Interpretation Act 1987 (NSW)

Cases:
- JAD v R [2012] NSWCCA 73
- Kennedy v R [2017] NSWCCA 193
- R v Howes [2000] VSCA 159
- R v Orcher [1999] NSWCCA 356; 48 NSWLR 273
- Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27