Citation: R v Robinson [2019] NSWDC 661
Court: District Court of NSW
Date: 18 November 2019
Judge: Grant DCJ
Background
The accused was found unfit to stand trial on two charges of committing an act of indecency towards a child, contrary to the Crimes Act 1900. The charges arose from an incident on 11 June 2017 at a public park, where witnesses observed the accused masturbating while children were playing nearby. The accused was subsequently diagnosed with chronic schizophrenia treated by anti-psychotic medication.
Following the Mental Health Review Tribunal's determination that the accused was unlikely to become fit within 12 months, the DPP elected to proceed. The matter came before Grant DCJ as a special hearing under the Mental Health (Forensic Provisions) Act 1990, conducted as nearly as possible to a criminal trial, with the accused taken to have pleaded not guilty.
Neither of the two named child complainants gave evidence about what they observed on the day. The factual case rested on the statements of adult witnesses at the park.
Legal Issues
- Whether the court should exclude the recorded interview (ERISP) under section 138 of the Evidence Act.
- Whether the accused committed an act of indecency, as an objective matter.
- Whether the act of indecency was committed "towards" the named complainants, as required by the charges under sections 61N(1) and 61O(2) of the Crimes Act 1900.
- What the word "towards" requires as a matter of law in this context.
Decision
Issue 1: Exclusion of the ERISP
Grant DCJ exercised his discretion to exclude the recorded police interview (ERISP) under section 138 of the Evidence Act after hearing evidence from the custody manager and the officer in charge of the investigation (at [9]). The judgment does not elaborate further on the reasons for exclusion.
Issue 2: Act of Indecency
The court was satisfied beyond reasonable doubt that the accused fondled his genitals on the outside of his clothing in a public place (at [24]). That conduct constituted an act of indecency by objective standards, applying the test from Eades v DPP: whether right-thinking members of the community would regard it as indecent (at [24]).
Issue 3: The Meaning of "Towards"
The central and dispositive issue was whether the act was committed "towards" the named complainants. The Crown contended that the accused's knowledge that children were present, combined with the act being performed in their presence, was sufficient. The accused argued that "towards" required the complainants to have been aware of both the accused and the indecent act, and that the accused must have derived sexual satisfaction from their awareness (at [30]-[35]).
Grant DCJ reviewed the authorities, including R v Francis, R v Gillard, R v Barrass, and R v Chonka, and held that the word "towards" requires the non-participating complainant to be aware of the accused and the indecent act (at [55]). His Honour was not satisfied that the accused knew the complainants were watching him and derived satisfaction from that knowledge. There was no evidence that either named complainant observed the masturbation. A statement by one child that the man "scares me" was insufficient, as it may have reflected the accused's appearance rather than any awareness of his conduct. The distance of up to 50 metres between the accused and the children further supported the inference that they did not observe the act (at [53]-[55]).
The Crown had not proved the essential element of "towards" beyond reasonable doubt, and the court returned a verdict of not guilty (at [56]-[59]). Grant DCJ noted in passing that the conduct described could have grounded a charge of offensive conduct under section 4 of the Summary Offences Act 1988, which does not require an act of indecency to be directed "towards" a complainant (at [57]-[58]).
Orders Made
- Pursuant to section 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, the accused was found not guilty of the offences charged.
Key Takeaways
- The District Court held that the word "towards" in charges of committing an act of indecency towards a child requires the complainant to have been aware of both the accused and the indecent act; the accused's mere knowledge that children were present is not sufficient (at [55]).
- Proof that an act is objectively indecent does not, by itself, establish the "towards" element: the direction of the conduct to a specific complainant, in the sense of the complainant's awareness of it, is a separate and essential element of the offence (at [24], [55]-[56]).
- Following Francis, Gillard, and Barrass, a complainant's physical presence alone does not satisfy "towards"; the authorities contemplate that the offender was aware the complainant could see the act and derived sexual gratification from that awareness (at [41]-[52]).
- In a special hearing under the Mental Health (Forensic Provisions) Act 1990, the prosecution must still prove every element of the offence to the criminal standard; the unfitness of the accused does not lower that burden (at [4], [56]).
- The absence of evidence from named child complainants about what they observed can be fatal to establishing the "towards" element, particularly where the only available evidence does not establish that the complainants perceived the indecent conduct (at [53]-[55]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900.
- Evidence Act
- Mental Health (Forensic Provisions) Act 1990
- Summary Offences Act 1988 (NSW)
Cases
- Eades v Director of Public Prosecutions (2010) 77 NSWLR 173; [2010] NSWCA 241
- R v Barrass [2005] NSWCCA 131
- R v Chonka [2000] NSWCCA 466
- R v Francis (1989) 88 Cr App R 127
- R v Gillard (1999) 105 A Crim R 479; [1999] NSWCCA 21
- R v McIntosh (unreported CCA 26/9/1994)