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District Court 21 April 2021

R v Naidu

[2021] NSWDC 344

Sexual offences
CRIME APPEAL AND REVIEW MEANING OF “PROCURE” UNLAWFUL SEXUAL ACTIVITY STATUTORY INTERPRETATION

Citation: R v Naidu [2021] NSWDC 344
Court: District Court of NSW
Date: 21 April 2021
Judge(s): Beckett DCJ

Background

The appellant was convicted in the Penrith Local Court of a single offence under s 66EB of the Crimes Act 1900 (NSW): as an adult, intentionally procuring a child aged 15 for unlawful sexual activity. The prosecution's case rested on evidence that the appellant approached a teenager at a bus interchange, offered her money for sex, and invited her back to his home. The complainant refused and later reported the incident to her family and police.

CCTV footage confirmed the appellant was present at the interchange and had spoken with the complainant for approximately six minutes. The appellant denied the substance of the conversation, though his account shifted after police disclosed the existence of the footage. The Local Court Magistrate accepted the complainant's evidence and found the offence proved.

The appellant lodged an all-grounds appeal to the District Court. The sole issue argued on appeal was a question of law: whether the offence under s 66EB(2) required proof that unlawful sexual activity actually occurred, and whether the Magistrate had applied the wrong legal meaning of the word "procure."

Legal Issues

  • What is the correct meaning of "procure" in s 66EB(2) of the Crimes Act 1900 (NSW)?
  • Does s 66EB(2) require proof that unlawful sexual activity actually took place, or is it a preparatory offence that can be established without that proof?
  • Did the prosecution fail to establish an essential element of the offence?
  • Was the conviction supported by sufficient evidence on a rehearing of the Local Court record?

Decision

Issue 1: The standard for a conviction appeal

The appeal proceeded as a rehearing on the Local Court transcripts and exhibits. Beckett DCJ noted unresolved appellate authority on whether an appellant must first identify error before the appellate court's independent judgment is engaged. Her Honour proceeded on the basis that no such threshold requirement applied (at [6]-[8]).

Issue 2: The meaning of "procure" in s 66EB(2)

The appellant argued that "procure" means "cause or bring about" unlawful sexual activity, relying on ZA v R [2018] NSWCCA 116, and that because no sexual activity occurred, an essential element was missing. The Crown argued that proof of actual sexual activity was not required. Beckett DCJ found the term "procure" to be genuinely ambiguous in this context, capable of different meanings both across the Crimes Act and within the same section (at [28]-[32]).

Her Honour applied the Victims Compensation Fund Corporation v Brown four-stage interpretive approach, examining statutory text, context, legislative history, and operational consequences. The Second Reading Speech and accompanying parliamentary materials made clear that s 66EB was designed to create preparatory offences, enabling police to intervene before a child is actually abused. Section 66EB(4) expressly provides that proof of any particular unlawful sexual activity is not required (at [34]-[41]).

In the context of this case, Beckett DCJ held that "procure" encompasses the act of enticing a child to engage in unlawful sexual activity. It was not necessary for unlawful sexual activity to have occurred for the offence to be made out (at [43]-[44]). The prosecution was not required to charge the appellant with an attempt offence under s 344A.

Issue 3: Sufficiency of evidence

Independently reviewing the evidence, Beckett DCJ found the complainant's account reliable. Her Honour pointed to the timeliness of the complaint (made before the complainant knew of the CCTV footage), the broad corroboration provided by the footage, and the consistency between the JIRT interview and the complainant's evidence at hearing (at [48]-[49]). The appellant's evidence did not raise a reasonable doubt. The conviction appeal was dismissed and the Local Court's findings confirmed (at [50]).

Orders Made

  • The conviction appeal is dismissed.
  • The findings of the Local Court Magistrate are confirmed and the offence is found proved.

Key Takeaways

  • Under s 66EB(2) of the Crimes Act 1900 (NSW), the word "procure" is context-dependent and ambiguous. In the context of this case, the District Court held it includes enticing a child to engage in unlawful sexual activity, and does not require proof that sexual activity actually occurred (at [43]).

  • Section 66EB creates preparatory offences. The conduct element of the actus reus is the act of procuring or grooming, not the commission of unlawful sexual activity itself. Section 66EB(4) reinforces this by expressly dispensing with the need to specify or prove any particular unlawful sexual activity (at [34]-[35]).

  • In dismissing the appeal, the court confirmed that the prosecution was not required to charge an attempt offence under s 344A simply because no sexual activity eventuated. The substantive s 66EB(2) offence was available on these facts (at [40]).

  • The District Court's approach to statutory interpretation followed established High Court principles: text, statutory context, legislative history (including Second Reading Speech and parliamentary materials), and operational consequences were all considered, even where the text might appear unambiguous on its face (at [26]-[27]).

  • A conviction appeal to the District Court proceeds as a rehearing on the Local Court record. The appellate judge must form an independent view of the facts while giving appropriate weight to the magistrate's advantage in observing witnesses (at [6]-[7]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 66EB, ss (2),(2A),(3),(4); s 84; s 91B; s 344A
- Crimes (Appeal and Review) Act 2001 s 18 Crimes Act 1900 (NSW) s 344A Interpretations Act 1987 (NSW) s 33, 34 Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW) Criminal Code Act 1899 (QLD) s 218A (1)

Cases
- Charara v The Queen [2006] NSWCCA 244
- AG v Director of Public Prosecutions [2015] NSWCA 218
- ZA v R [2018] NSWCCA 116
- Krakauer v The Queen (1998) 194 CLR 202
- CIC Insurance Ltd v Bankstown Football Club Ltd
- (1997) 187 CLR 384
- Project Blue Sky v ABA (1998) 194 CLR 355 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1
- Victims Compensation Fund Corporation v Brown
- (2003) 77 ALJR 1797
- Milne v the Queen (2014) 252 CLR 149
- Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287
- Liberato and Ors v The Queen (1985) 159 CLR 507