Citation: Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146
Court: New South Wales Court of Criminal Appeal
Date: 30 June 2022
Judges: Basten AJA, Hamill J, Dhanji J
Background
The respondent, a family friend of a four-year-old child's carers, was charged under s 66DC(a) of the Crimes Act 1900 (NSW) with intentionally carrying out a sexual act towards a child under 10 years of age. The Crown alleged that the respondent had entered the child's bedroom, seated himself on a bedside table beside the child's bed, and masturbated while looking at the child. The child was lying fully clothed on the bed, facing the wall and playing on a mobile phone, with his back towards the respondent.
Before a jury was empanelled, the District Court at Port Macquarie heard submissions on whether the Crown's evidence could establish the charge. The primary judge concluded that the evidence was incapable of proving the offence because the respondent was effectively hiding his act from the child, and that the act could not therefore be characterised as one carried out "towards" the child. A permanent stay of proceedings was granted on the basis that the prosecution was doomed to fail.
The Director of Public Prosecutions appealed that decision under s 5F of the Criminal Appeal Act 1912 (NSW), arguing that the primary judge had erred in his construction of s 66DC(a). The factual findings of the primary judge were not challenged on appeal.
Legal Issues
- Whether s 66DC(a) creates one offence of carrying out a sexual act "with or towards" a child, or two separate offences of carrying out such an act "with" a child and "towards" a child.
- Whether the act alleged against the respondent, on the facts as found by the primary judge, was an act done "towards" the complainant within the meaning of s 66DC(a).
- Whether the primary judge was correct to permanently stay the proceedings on the basis that the prosecution was doomed to fail.
Decision
On the first sub-issue, all three judges agreed that "with or towards" in s 66DC(a) creates two separate offences. The Court reached this conclusion by reference to legislative history, earlier decisions of the Court of Criminal Appeal, English authorities, and the High Court's decision in Crampton v The Queen (2000) 206 CLR 161. A strong presumption operated that Parliament did not intend to alter the established meaning of "with or towards" when it enacted s 66DC.
On the central question of the meaning of "towards," the majority (Dhanji J, with Hamill J agreeing) held that a sexual act is "towards" another person only where there is an intention to engage that person at some level. That engagement may occur where the other person is made aware of the act, or where, even without awareness, the first person physically engages the other person's presence in an intentional way. Physical proximity alone is insufficient.
Applying that construction to the facts, the majority held that the respondent's conduct did not satisfy the "towards" element. The child's lack of awareness, combined with the physical positions of both individuals and the direction they were facing, supported the primary judge's conclusion that the respondent was hiding his act from the child. That finding was inconsistent with any intention to engage the child's person, and the evidence was therefore incapable of establishing the offence.
Basten AJA dissented. His Honour reasoned that "towards" in its ordinary usage can denote conduct directed at another, or a state of mind in relation to another, and does not require the other person's awareness. The respondent's act of achieving sexual arousal by watching the child and masturbating in the child's presence was, in his Honour's view, conduct directed to the child. Basten AJA considered the matter should have been left to the jury, and would have allowed the appeal.
Orders Made
• A permanent stay of proceedings was granted
Key Takeaways
- The Court of Criminal Appeal confirmed, by unanimous agreement on this point, that "with or towards" in s 66DC(a) of the Crimes Act 1900 (NSW) creates two distinct offences rather than a single composite one, consistent with the provision's legislative history and prior authority.
- Under the majority's construction, a sexual act is carried out "towards" a child within the meaning of s 66DC(a) only where the accused intends to engage the child at some level, whether by making the child aware of the act or by physically engaging the child's presence in an intentional way.
- Physical proximity between the accused and the child is a relevant but not determinative factor in assessing whether an act was done "towards" the child.
- In dismissing the appeal, the majority emphasised that the factual circumstances, specifically the respondent's body orientation, the child's unawareness, and the inference that the respondent was concealing the act, collectively rendered the evidence incapable of establishing the "towards" element.
- Basten AJA's dissent offers an alternative reading: that "towards" can be satisfied by conduct directed at another or reflecting a state of mind in relation to another, without requiring any awareness on the victim's part, and that such questions are generally appropriate for jury determination.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66DC(a), 66DA, 66DB, 66DD, 66DE, 66DF, 61HB, 61HC, 80AE, 81A (repealed), and others
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 293, 294CB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Indecency with Children Act 1960 (UK), s 1
- Criminal Law Consolidation Act 1935 (SA), s 58
Key Cases:
- Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60
- Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497
- Director of Public Prosecutions of the Commonwealth of Australia v Keating (2013) 248 CLR 459; [2013] HCA 20
- R v Barrass [2005] NSWCCA 131
- R v Chonka [2000] NSWCCA 466
- R v Orsos (1997) 95 A Crim R 457
- Director of Public Prosecutions v Eades [2009] NSWSC 1352
- Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
- Fairclough v Whipp [1951] 2 All ER 834
- Director of Public Prosecutions v Burgess [1971] QB 432
- R v Francis (1989) 88 Cr App R 127
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41