Citation: R v Wran (a pseudonym) [2021] NSWDC 185
Court: District Court of New South Wales
Date: 14 May 2021
Judge(s): P Taylor SC DCJ
Background
The accused (referred to by the pseudonym David Wran) faced an indictment containing five counts of sexual offences against his 10-year-old stepdaughter (referred to as Ruby Jones). The fifth count charged him with inciting the commission of a sexual offence under s 80G of the Crimes Act 1900. The sexual offence alleged to have been incited was sexual intercourse with a child aged between 10 and 16, contrary to s 66C.
The Crown's case on count 5 rested on a mobile phone video call during which the accused allegedly said "I want to fuck you" to his stepdaughter. The stepdaughter and her mother both gave evidence of this conversation. The accused was, on the Crown's case, inciting his stepdaughter to engage in sexual intercourse with him.
The defence applied for a directed verdict on count 5, arguing that the count was legally defective because the stepdaughter, as the alleged victim of the incited offence, was legally incapable of committing it.
Legal Issues
- Whether s 80G of the Crimes Act 1900 requires that the person incited be legally capable of committing the sexual offence that is the subject of the incitement.
- Whether a child victim of a sexual offence can be the "person incited" for the purposes of an incitement charge under s 80G.
- Whether the evidence, taken at its highest, was capable of sustaining a conviction on count 5.
Decision
His Honour began by observing that s 80G requires incitement "to commit a sexual offence," and that no meaningful distinction exists between "inciting a person to commit an offence" and "inciting the commission of an offence." A criminal offence, as a legal construct, cannot itself be incited. A human actor must be incited, and that person must necessarily be someone other than the inciter.
The court drew an important contrast with other provisions in the Crimes Act, particularly ss 66DB and 66DD, which prohibit inciting a child to engage in particular sexual conduct. Those provisions do not require the incited person to be capable of committing a criminal offence. Section 80G, by contrast, expressly frames the prohibited conduct as inciting the commission of a sexual offence, which the court held imports a requirement that the person incited be legally capable of committing that offence.
His Honour referred extensively to the NSW Law Reform Commission Report 129 on complicity, which confirmed the common law position: the offence incited must be one that the person incited is capable in law of committing. The Commission cited authority, including R v Whitehouse [1977] QB 868, holding that a person cannot be guilty of inciting a protected person to commit an offence against themselves, because this would impose criminal liability on those parliament intended to protect. Although the Commission recommended reform to remove this limitation, no amendment to s 80G followed.
Applying those principles, the court held that the stepdaughter, as a 10-year-old child, lacked legal capacity to commit the sexual offence under s 66C that the Crown alleged had been incited. Because s 80G requires incitement of a person capable in law of committing the relevant crime, no offence under s 80G could have been committed on the evidence. The accused was entitled to a directed verdict on count 5.
Orders Made
- A directed verdict was entered in favour of the accused on count 5 of the indictment (inciting the commission of a sexual offence under s 80G of the Crimes Act 1900).
Key Takeaways
- Section 80G of the Crimes Act 1900 requires that the person incited be legally capable of committing the sexual offence that forms the subject of the incitement charge; the provision does not operate where only a legally incapable person could be identified as the person incited.
- A child who is the intended victim of a sexual offence under s 66C lacks the legal capacity to commit that offence and therefore cannot serve as the "person incited" for the purposes of s 80G.
- Under s 80G, inciting the "commission of a sexual offence" necessarily involves inciting a human actor other than the inciter; the court rejected any construction that treated the offence itself, rather than a person, as the object of the incitement.
- A clear distinction exists between s 80G and the more recently enacted ss 66DB and 66DD, which prohibit inciting a child to engage in sexual conduct and do not require the incited person to be capable of committing a criminal offence.
- The NSW Law Reform Commission's recommendation that s 80G be amended to remove the common law requirement of legal capacity in the person incited was never enacted, leaving the common law position intact and applicable to the provision.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 66C, 66DB, 66DD, 80G
- Interpretation Act 1987 (NSW), ss 34, 35
Cases
- Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
- Ford v R [2016] NSWCCA 69
- May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
- R v C [2006] 1 Cr App R 20
- R v Claydon [2005] EWCA Crim 2827
- R v Martin Stanley Claridge [2017] NSWDC 407
- R v MM (No 2) [2018] NSWDC 528
- R v Pickford [1995] QB 203
- R v PL [2012] NSWCCA 31
- R v Richard (1986) 30 CCC (3d) 127
- R v Tyrrell [1894] 1 QB 710
- R v Whitehouse [1977] QB 868