Published by Geoff Harrison | 29 August 2023
Inciting a criminal offence, is a criminal offence ie. to encourage or urge someone to commit an offence. The word 'Incite' is not defined in the Acts. As noted by Smart AJ in R v Eade (below) at [59]:
In Young v Cassells (1914) 33 NZLR 852 Stout CJ, in an oft quoted passage said: "The word 'incite' means to rouse; to stimulate; to urge or spur on; to stir up; to animate." In R v Massie [1998] VSCA 82; (1998) 103 A Crim R 551 at 564 Brooking JA, with whom Winneke P and Batt JA agreed, said of 'incite', "common forms of behaviour covered by the word are 'command', 'request', 'propose', 'advise', 'encourage', or 'authorise'". Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.
It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that with the offence of incitement it is merely the incitement which constitutes the offence and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all.
From the Bench Book [5-1170]:
The incitement must be to commit the specific offence at hand: Walsh v Sainsbury (1925) 36 CLR 464 at 476; Clyne v Bowman (1987) 11 NSWLR 341 at 347–348. It is not necessary to prove the person incited acted upon the incitement or whether the incitement had any effect. However, it is necessary to prove that the course of conduct urged would, if it had been acted upon as the inciter intended it to be, amount to the commission of the offence: R v Dimozantis (unrep, 7/10/1991, Vic CCA); R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62.
There are general provisions in relation to criminalising encitment under the Crimes Prevention Act 1916 (NSW) and under s11.4 of the Criminal Code Act 1995 (Cth). There are also specific offences relating to inciting such as:
s80G Crimes Act 1900 - Incitement to commit a sexual offence (which despite s80G(3) the incitement must be capable at law: see R v Wran (a pseudonym) [2021] NSWDC 185) below).
s93Z Crimes Act 1900 - Publicly inciting violence towards another person on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status
The maximum pentalties vary, generally depending upon the nature of the offence being incited however, the sentences range between 6 months imprisonment and 14 years imprisonment.
Other sources:
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CRIMES PREVENTION ACT 1916 - SECT 2
Inciting to crimes
If any person incites to, urges, aids, or encourages the commission of crimes or the carrying on of any operations for or by the commission of crimes that person shall be guilty of an offence against this Act.
CRIMES PREVENTION ACT 1916 - SECT 3
Printing or publishing writing inciting to crimes
If any person prints or publishes any writing which incites to, urges, aids, or encourages the commission of crimes or the carrying on of any operations for or by the commission of crimes, such person shall be guilty of an offence against this Act, and shall be liable to imprisonment for any term not exceeding six months or to a penalty not exceeding 1 penalty unit.
CRIMES PREVENTION ACT 1916 - SECT 4
Penalty for offences
If any person is guilty of an offence against this Act for which a penalty is not otherwise provided that person shall be liable on summary conviction before the Local Court to imprisonment for any term not exceeding six months.
CRIMES PREVENTION ACT 1916 - SECT 5
Where offence punishable otherwise
Where an offence against this Act is also punishable under any other Act or at common law, it may be prosecuted and punished either under this Act or under the other Act or at common law, but so that no person be punished twice for the same offence.
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CRIMES ACT 1900 - SECT 80G Incitement to commit sexual offence
Incitement to commit sexual offence
(1) A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
(3) A person may be found guilty even if committing the offence incited is impossible.
(4) Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section.
(5) It is not an offence to incite the commission of the following offences--
(a) an offence under section 61KC, 61KD, 61KE, 61KF, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF or 73A that is constituted by inciting another person to sexual touching or a sexual act within the meaning of Division 10,
(b) an offence under section 66EB, 66EC, 78B or 80 or an offence under section 344A of attempting to commit an offence under Division 10, 10A or 15.
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CRIMES ACT 1900 - SECT 93Z
Offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status
(1) A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence--
(a) the race of the other person or one or more of the members of the group,
(b) that the other person has, or one or more of the members of the group have, a specific religious belief or affiliation,
(c) the sexual orientation of the other person or one or more of the members of the group,
(d) the gender identity of the other person or one or more of the members of the group,
(e) that the other person is, or one or more of the members of the group are, of intersex status,
(f) that the other person has, or one or more of the members of the group have, HIV or AIDS.
Maximum penalty--
(a) in the case of an individual--100 penalty units or imprisonment for 3 years (or both), or
(b) in the case of a corporation--500 penalty units.
(2) In determining whether an alleged offender has committed an offence against this section, it is irrelevant whether the alleged offender's assumptions or beliefs about an attribute of another person or a member of a group of persons referred to in subsection (1) (a)-(f) were correct or incorrect at the time that the offence is alleged to have been committed.
(3) In determining whether an alleged offender has committed an offence against this section of intentionally or recklessly inciting violence, it is irrelevant whether or not, in response to the alleged offender's public act, any person formed a state of mind or carried out any act of violence.
(4) A prosecution for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.
(5) In this section--
"gender identity" means the gender related identity, appearance or mannerisms or other gender related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person's designated sex at birth.
"intersex status" means the status of having physical, hormonal or genetic features that are--
(a) neither wholly female nor wholly male, or
(b) a combination of female and male, or
(c) neither female nor male.
"public act" includes--
(a) any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and
(b) any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and
(c) the distribution or dissemination of any matter to the public.
For the avoidance of doubt, an act may be a public act even if it occurs on private land.
"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.
"religious belief or affiliation" means holding or not holding a religious belief or view.
"sexual orientation" means a person's sexual orientation towards--
(a) persons of the same sex, or
(b) persons of a different sex, or
(c) persons of the same sex and persons of a different sex.
"violence" includes violent conduct and
"violence towards a person or a group of persons" includes violence towards property of the person or a member of the group, respectively.
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11.4 Incitement - Criminal Code 1995 (Cth)
(1) A person who urges the commission of an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
(3) A person may be found guilty even if committing the offence incited is impossible.
(4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(4A) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(5) It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).
Penalty:
(a) if the offence incited is punishable by life imprisonment— imprisonment for 10 years; or
(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or
(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or
(d) if the offence is otherwise punishable by imprisonment— imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
(e) if the offence incited is not punishable by imprisonment— the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.
Note: Under section 4D of the Crimes Act 1914, these penalties are only maximum penalties. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence. Penalty units are defined in section 4AA of that Act.
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R v Eade [2002] NSWCCA 257 (28 June 2002)
Last Updated: 28 June 2002
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v. EADE [2002] NSWCCA 257
FILE NUMBER(S):
60438/01
HEARING DATE(S): 23 April 2002
JUDGMENT DATE: 28/06/2002
PARTIES:
Regina - respondent
Wayne James Eade - appellant
JUDGMENT OF: Hodgson JA Hidden J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 99/11/0010
LOWER COURT JUDICIAL OFFICER: Kinchington DCJ
COUNSEL:
Mr. T. Game SC with Mr. M.R. Bromwich for appellant
Mr. Barrett for respondent
SOLICITORS:
Andrews Solicitors for appellant
S.E. O'Connor for respondent
CATCHWORDS:
CRIMINAL LAW
EVIDENCE - admissibility of evidence of conversation obtained contrary to Listening Devices Act 1984 - Whether transcript of evidence before Royal Commission was evidence of the conversation
CRIMINAL LAW - prohibited drugs - incitement to supply - Whether tehre can be incitement to supply to oneself
LEGISLATION CITED:
Evidence Act 1995
Listening Devices Act 1984
Royal Commission (Police Service) Act 1994
DECISION:
Appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60438/01
99/11/0010
HODGSON JA
HIDDEN J
SMART AJ
Friday 28 June 2002
REGINA v. Wayne James EADE
Judgment
1 HODGSON JA: On 7 May 2001, the appellant was arraigned on an indictment containing two counts.
2 The first charged that the appellant on 7 September 1995 at Sydney in the State of New South Wales, being a witness at a hearing before the Royal Commission into the New South Wales Police Service, knowingly gave false testimony, namely, that he had never engaged in any form of illegal conduct, which was testimony touching a matter material in an inquiry being made by the said Royal Commission into the New South Wales Police Service.
3 The second charged that the appellant on 12 September 1995 at Green Point in the State of New South Wales, did incite Therese Hart to supply a prohibited drug, namely, 3,4 Methylenedioxyamphetamine (Ecstasy).
4 The appellant pleaded not guilty to both counts. A trial before Kinchington DCJ and a jury commenced on 14 May 2001, and concluded on 18 May 2001, with a guilty verdict on both counts. The appellant was sentenced to a fixed term of fifteen months imprisonment on the first count, and a cumulative sentence of six months on the second count.
5 The appellant has appealed to this Court against his conviction on two grounds:
The learned trial judge erred in admitting into evidence at the trial of the appellant transcripts of evidence before the Royal Commission into the New South Wales Police Service that contained evidence of conversations obtained in contravention of s.5 of the Listening Devices Act 1984.
The learned trial judge erred in ruling that the appellant had a case to answer in relation to the charge of inciting the supply of a prohibited drug having regard to the particulars relied upon by the Crown.
6 The case involved a consideration of the effect of ss.12 and 13 of the Listening Devices Act 1984 (NSW), which are as follows:
12. In this Part, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation.
13(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:
(a) evidence of the conversation, and
(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person,
may not be given by that person in any civil or criminal proceedings (including proceedings for or in connection with the grant of bail).
(2) Subsection (1) does not render any evidence inadmissible:
(a) if all of the principal parties to the private conversation concerned consent to the evidence being given,
(b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner,
(c) in proceedings for an offence against this Act or the regulations, or
(d) in proceedings for:
(i) an offence punishable by imprisonment for life or for 20 years or more, or
(ii) a serious narcotics offence,
(or in proceedings for or in connection with the grant of bail in any such proceedings) if the court considers that the evidence should be admissible.
(3) In determining whether to admit evidence as referred to in subsection (2) (d), the court shall:
(a) be guided by the public interest, including where relevant the public interest in:
(i) upholding the law,
(ii) protecting people from illegal or unfair treatment, and
(iii) punishing those guilty of offences, and
(b) have regard to all relevant matters, including:
(i) the seriousness of the offence in relation to which the evidence is sought to be admitted, and
(ii) the nature of the contravention of section 5 concerned.
(4) The court before which any proceedings referred to in subsection (2) (c) or (d) are brought may, at any stage of the proceedings and from time to time, make an order forbidding publication of any evidence, or of any report of, or report of the substance, meaning or purport of, any evidence referred to in subsection (2) (c) or (d).
(5) A person shall not contravene an order made under subsection (4).
Maximum penalty (subsection (5)): 20 penalty units or imprisonment for a term of 12 months, or both.
7 It is common ground that the second count amounted to a charge of "a serious narcotics offence" within s.13(2)(d)(ii). The following definition of "private conversation" appears in s.3(1) of the Act:
"private conversation" means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so.
CIRCUMSTANCES
8 The appellant was a serving police officer in 1995. In May 1995, he was served with a summons to attend the Police Royal Commission as a witness. On 25 August 1995, warrants were obtained, purportedly under the Listening Devices Act, to install listening devices in premises owned by one Ms. Hart.
9 The appellant visited those premises on 27 August 1995, 30 August 1995, and 12 September 1995, and his conversations with Ms. Hart on those occasions were recorded on audio and video tapes.
10 The appellant gave evidence at the Police Royal Commission on 7 September 1995 and 11 December 1995. On the former occasion, he gave evidence that he had never engaged in any form of corrupt or illegal conduct. On the latter occasion, he was cross-examined on the basis of the recording of his conversations with Ms. Hart. He was later charged with the offences identified above.
11 The matter came on for trial before Kinchington DCJ. Before a jury was empanelled, Counsel for the appellant sought a ruling as to the admissibility of evidence obtained as a result of the use of listening devices. Kinchington DCJ ruled that the evidence should be admitted. The appellant appealed to the Court of Appeal, and the appeal against this ruling was upheld (R. v. Eade [2000] NSWCCA 369).
12 The Court of Appeal held that the warrants obtained on 25 August 1995 were invalid, so that the giving of evidence resulting from the use of listening devices was restricted by s.13 of the Listening Devices Act. However, the Court of Appeal ruled that s.13 does not exclude evidence by a principal party to the conversation which was illegally recorded, and that the admission of the recording must be determined under s.138 of the Evidence Act, the onus being on the Crown.
13 In his judgment on this point, Greg James J said the following:
For myself, I add that the submissions on behalf of the appellant that s.13 of the Listening Devices Act 1984 would permit, in the exercise of discretion, evidence of the conversation to be led on count one, but would bar that evidence on count two, appear to have been based upon a view that s.13(3) applies whether evidence of the conversation were to be given by Ms. Hart or any other witness. But the position may be different, depending upon whether the witness giving evidence of the conversation was a participant in it or whether the conversation otherwise came to the knowledge of the witness (s.13). In the latter event, the submission would appear to be correct, but in the former event, I agree that the analysis on which Kirby, J. has embarked of the constructions of the section is necessary.
In the event that the evidence is to be led through Ms. Hart, since she was a party to the conversation and the recording was made with her complicity, she may communicate or publish to another person the record of the conversation made by use of the device (s.7(2)(b)).
Evidence may be given by her of the conversation by using the record to revive her memory. Section 13 would not apply and hence s.13(3) in particular would not be applicable. But because matters of illegality or impropriety may arise as a result of her complicity in the recording which was in breach of s.5, questions of discretion under s.138 of the Evidence Act 1995 will need to be considered.
Although the criteria under s.138 are not precisely the same as those under s.13(3), since they speak to a more general position, nonetheless in the particular circumstances the precise application of them would appear to be very much to the same substantive effect as those under s.13(3).
14 Section 138 of the Evidence Act is in the following terms:
138(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
15 As noted above, the trial proceeded in May 2001. The Crown contended that Kinchington DCJ should exercise his discretion under s.138 in favour of the Crown, and either admit the audio and video tapes into evidence through Ms. Hart, or at least allow Ms. Hart to refresh her memory therefrom if necessary in order to give evidence as to the conversations and the events recorded in those tapes. This was opposed by Counsel for the appellant.
16 Kinchington DCJ expressed himself as satisfied that there had been no impropriety or recklessness by persons involved in the use of the listening devices and that any illegality was of a technical nature; and that there would be no unfairness to the appellant in admitting the tapes into evidence. Accordingly, he exercised his discretion under s.138 in favour of the Crown and admitted the tapes into evidence. In those circumstances, he saw no need to rule on the alternative proposition that Ms. Hart refresh her memory from them.
17 The transcript of the appellant's evidence before the Police Royal Commission on 7 September 1995 and 11 December 1995 was tendered before the jury and admitted over objection. It was agreed between the Crown Prosecutor and Counsel for the appellant that it was not necessary for the Crown to call the court reporters who made the transcript.
18 The video and audio tapes of the conversations on 27 August 1995, 30 August 1995, 7 September 1995 and 12 September 1995 were tendered and admitted on the basis that Ms. Hart was to be called as a witness. They were played while Ms. Hart was in the witness box.
19 The appellant gave evidence at the trial, and was cross-examined by reference both to the material on the video and audio tapes and the transcript before the Police Royal Commission. As noted earlier, he was convicted.
GROUND 1: ERROR IN ADMITTING TRANSCRIPTS
20 It is to be noted that there is no challenge made in this appeal to the primary judge's exercise of his discretion under s.138 of the Evidence Act, and there is no challenge made to the admission into evidence of the video and audio tapes: the challenge under this ground is only to the admission of the transcript of evidence before the Police Royal Commission.
21 Mr. Game SC for the appellant submitted that parts of the transcripts of evidence before the Police Royal Commission contained quotations of parts of the illegally-recorded conversations, and also statements of the substance of and summaries of such conversations. Accordingly, he submitted, they were evidence of the conversations within s.13(1)(a) of the Act. Furthermore, the conversations in question had come to the knowledge of the Commissioner (Wood CJ at CL), Counsel assisting (Ms. Bell) and the court reporters who recorded the transcript as a result of the use of listening devices in contravention of s.5 of the Act, within the meaning of s.13(1) of the Act. Accordingly, he submitted, all those persons were precluded from giving evidence of the conversations, and that included the production of a record of the conversations (s.12). The transcript of the Police Royal Commission was a record of the conversation, contributed to by Commissioner Wood and Ms. Bell and actually recorded by the court reporters, therefore it could not be given in evidence.
22 Mr. Game submitted that the transcript did not fall within any of the exceptions in s.13(2), apart from s.13(2)(d)(ii). The appellant, being one of the principal parties, did not consent (s.13(2)(a)), and the conversation did not come to the attention of any of these persons otherwise than as a result of the use of listening devices (s.13(2)(b)). On these matters, the onus lay on the Crown which asserted admissibility.
23 Mr. Game conceded that, as regards the second count in the indictment, the case fell within s.13(2)(d)(ii); and did not contend that any exercise of discretion under s.13(3) should go the appellant's way; but he submitted that the second count was knocked out by the second ground of appeal.
24 Mr. Barrett for the Crown submitted that the relevant transcript, namely that of 11 December 1995, was evidence not of the conversations but of what was said at the Police Royal Commission, this being relevant to prove both the falsity of the appellant's testimony of 7 September 1995 and also his lack of belief in the truth. Mr. Barrett referred to s.9 of Royal Commission (Police Service) Act 1994 (NSW).
25 He also submitted that, because the Royal Commission evidence was directly a result of information and evidence from Ms. Hart and only partly and indirectly for use of the listening device, it was rendered inadmissible by the Listening Devices Act: see R v. Downey (1992) 66 ACrimR 1.
26 In my opinion, it is important first to note that "private conversation" in s.13(1) means "any words spoken" in the circumstances set out in the definition; so what is being referred to is not the mere fact of the occurrence of a private conversation, or even just the whole or the substance of its contents, but extends to "any words spoken" during the course of the conversation.
27 In so far as the transcript of the Police Royal Commission for 11 December 1995 includes quotations from tapes obtained by use of listening devices, it is in my opinion fanciful to suggest that knowledge of those words by the persons using them (Commissioner Wood and Ms. Bell) or the persons recording them (court reporters) was other than a result, direct or indirect, of the use of the listening devices. It may well be that the fact of the conversations and their general tenor became known to Ms. Bell and Commissioner Wood, at least, through Ms. Hart; but at least the precise quotes used must have come to their knowledge, and through them to the knowledge of the court reporters, through the use of the listening device. Although it is not quite so clear, in my opinion, the same must apply to those questions which used the substance of parts of the conversations rather than exact words.
28 I accept the submission of Mr. Game that the appellant should not be disadvantaged because he did not insist that the court reporters be called at the trial, so if the evidence notionally given by the court reporters through the transcript is "evidence of the conversation" within s.13(1) of the Act, the giving of such evidence would be prohibited. The question thus is, is such evidence, namely the evidence of the court reporters through the transcript, "evidence of the conversation", that is, evidence of "words spoken" in the conversation.
29 In my opinion, in so far as the court reporters through the transcripts gave evidence of questions asked by Ms. Bell or Commissioner Wood in which words were quoted or the substance of parts of the conversation given, this is only evidence of questions asked and cannot be evidence of the conversation or of words spoken in them.
30 In so far as the court reporters gave evidence of answers by the appellant (which had to be understood by reference to the questions), this could amount to indirect evidence of the conversations and the words spoken in it, by way of admissions by the appellant. However, the question whether this material was therefore "evidence of the conversation" within s.13(1) must be considered in the light of the following two matters:
(2) The substantial relevance of the transcript was not that it conveyed some of the contents of the conversations, but that it conveyed the appellant's evidence concerning such matters.
31 If the recordings themselves had not been in evidence, and if the Crown had relied to any extent at all on the appellant's admissions in order to prove the content of the conversations, I think the court reporters' evidence of admissions by the appellant could be "evidence of the conversation" within s.13(1). However, in circumstances where there was absolutely no issue about the authenticity and accuracy of the recordings themselves which were in evidence, where the Crown did not rely at all on the appellant's admissions to prove the content of the conversations, and where the transcript was led for a different purpose, the recordings were not in substance "evidence of the conversation". Accordingly, in my opinion, this ground of appeal fails.
32 I note that these reasons depend to some extent on the circumstance that the recordings themselves were in evidence: as noted, that was not challenged below, except on the s.138 basis, or here. However, I should record that in my opinion there is another question which would, if the point were taken, need to be considered before a recording derived from illegal use of a listening device is admitted into evidence through one of the participants in the conversation. The only way the participant can lay the foundation for the admission of the recording is to say that he or she has listened to it and that it constitutes an accurate record of the conversation. However, the giving of evidence to that effect would in my view involve a response to a leading question, giving rise to the matters dealt with in s.37 of the Evidence Act.
33 "Leading question" is defined in the dictionary of the Evidence Act as follows:
"leading question" means a question asked of a witness that:
(a) directly or indirectly suggests a particular answer to the question, or
(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.
34 However identification of a recording of a conversation is raised with a witness who had no part in making the recording but did take part in the conversation, what in substance is being done is to have the witness assent to the conversation having occurred precisely as recorded; so inevitably a particular answer is suggested. The witness is not being asked what was said or even asked whether the conversation was in general terms to a certain effect; but rather, whether the very words recorded were in fact spoken. Accordingly, if objection were taken (s.37(1)(c)), then generally leave under s.37(1)(a) would be required, requiring consideration of the matters referred to in s.192 of the Evidence Act. The same discretionary considerations as supported the decision under s.138 may well have justified the giving of leave under ss.37 and 192 in this case; but it is my opinion a separate question.
35 As suggested in the earlier Court of Appeal decision, a participant could give evidence of the conversation using the record to revive memory. However, if this was to be done in court, leave would be required under s.32 of the Evidence Act, again bringing s.192 into play.
INCITING SUPPLY
36 At the hearing of the appeal, Mr. Game for the appellant sought leave to rely on an additional ground of appeal in relation to the second count, namely:
The trial judge failed to direct the jury adequately in relation to the second count in the indictment.
37 In order to deal with the original ground relied on concerning this count and also the additional ground, it is necessary to set out some circumstances.
38 On 28 October 1998, the appellant's solicitors wrote a letter to the DPP requesting particulars of the charges, including the following particulars in relation to the second charge:
The Hart matter:
(a) On which day or days is it alleged that the accused incited Ms. Hart to supply a prohibited drug.
(b) To whom is it alleged the accused incited Ms. Hart to supply the said drug.
(c) What drug is it alleged the accused incited Ms. Hart to supply.
(d) What quantities of the specified drugs is it alleged the accused incited Ms. Hart to supply.
(e) Where the drugs in fact supplied.
(f) How is it alleged Ms. Hart purchased the drugs allegedly supplied.
(f) What statements and which parts of those statements of Therese Hart does the Director rely upon to establish the incitement.
(g) Has Ms. Hart made any other statements relevant to this matter to either police, Royal Commission investigators or the Royal Commission. Please supply copies of any such statements.
(h) In addition to those portion (sic) of Ms. Hart's statements what other evidence does the Crown seek to rely upon to establish the offence.
39 By letter dated 23 November 1998, the DPP replied, and the relevant parts of the letter were as follows:
In relation to your request for particulars please be advised that the documentary material contained in the brief together with informations disclose the particulars of the matter and the evidence relied upon by the prosecution in support of the charges.
Without limiting the generality of the above, particulars are set out for your assistance. These particulars are set out to assist your understanding of the case the Prosecution will present at committal.
The Prosecution is not bound by the following particulars which do not purport to be a statement of the evidence which the Prosecution will present at committal.
The right is reserved to delete, add to vary or amend any particulars to the extent that such deletion, addition, variation or amendment may appear necessary or desirable in light of the evidence given at committal hearing, or further information which may come to the notice of the Prosecution.
...
In relation to the matter that you refer to as the "Hart matter" I confirm that your client has been charged with one count of Incite the Supply of a Prohibited Drug pursuant to s25/s27 of the Drug Misuse and Trafficking Act and one count of Give False Testimony pursuant to the Royal Commission Act.
In relation to the Supply charge the Crown can indicate the following particulars in response to your request:
a) It is alleged that Eade incited GDU 7 to supply a prohibited drug on 12 September 1995.
b) It is alleged that Eade incited GDU 7 Hart to supply the said drug to Steve McClelland.
c) It is alleged that Eade incited GDU 7 to supply ecstasy tablets.
d) Unknown.
e) Unknown.
f1) Unknown.
f2) The Crown relies on the brief of evidence as served on you by the PIC with particular reference to the following material:
· The statement of GDU 7 dated 29/10/1966, particularly paragraph 12.
· The Record of Interview between Taggart and GDU 7 dated 13/9/1995.
· The Record of Interview between Taggart and GDU 7 on 29/10/1996 particularly page 7 and 8.
g) GDU 7 participated in 25 Record of Interviews with officers from the Royal Commission that relate to her ongoing relationship with Eade and the drugs she obtained for him. I am advised that these Interviews comprise Volume 3 of the Brief of Evidence served on you on 25 June 1998.
h) In addition to the evidence of GDU 7 the Crown seeks to rely upon the following evidence:
· The Surveillance tape no. 41 (video and audio) dated 12/9/1995.
40 On 18 April 2001, the appellant's solicitors wrote a further letter to the DPP on this matter, which included the following:
I refer to my letter dated 28 October 1998 by which I requested particulars to the charges that my client was then facing. I also refer to your letter dated 23 November 1998 supplying the particulars sought.
Although the Director's letter states that the prosecution is not "bound" by the particulars provided , I assume that in the absence of advice to the contrary, those particulars have not changed in any material way (apart from the no-billed Scott matter), whether by addition, amendment, variation or deletion. If that assumption is not correct, please advise me of any such addition, amendment, variation or deletion to 'the particulars supplied as a matter of urgency. As the trial is set down for 7 May 2001, please furnish any such advice by or before Monday 23 April 2001 in order that my client's case for trial may be properly prepared.
41 In its reply dated 26 April 2001, the DPP relevantly stated:
The facts on which the crown intends to rely have not changed in any material way. The indictment has not been changed.
42 It will be noted that in its letter of 23 November 1998, the DPP signified intention to rely on the surveillance tape dated 12 September 1995, and that tape set out the actual conversation which the Crown alleged amounted to the offence of inciting to supply. That tape includes a statement by the appellant "Steve wants some eccies"; a statement by Ms. Hart "Well, which is more important, your coke or Steve's eccies?"; a statement by the appellant "Well how long is it to get the eccies?"; and a statement by Ms. Hart "Well, the eccies are gonna have to wait because it means if, if Steve's not gonna give me some money for M I'm gonna have to do ... roll something over for Kim's brother, like I did for Con".
43 In cross-examination, Ms. Hart agreed that there was no suggestion that she would give the drugs to Steve herself; and agreed that for all she knew, the appellant could have simply been seeking information under the pretext of obtaining a supply of ecstasy.
44 The trial judge agreed that the effect of the evidence of Ms. Hart was that the appellant had asked her to supply him with ecstasy, and that he had said he would pass it on to somebody else.
45 In summing up to the jury, the trial judge explained the meaning of the charge by saying "By `incited' it is meant to urge somebody to do something". He also gave the following directions:
As to the second charge which relates to 12 September 1995, I identified the essential elements in regard to that charge that the Crown must prove as being that on 12 September 1995 the accused incited the witness named Unwin to supply a prohibited drug, namely Ecstasy, to him. I then went on to deal with those essential elements.
So far as that second charge is concerned, before you can return a verdict of guilty on it not only must you be satisfied that the accused incited the person Unwin to supply the prohibited drug Ecstasy, but it is implicit in you so concluding and necessary for you to be satisfied from the accused's words and actions at that time that he intended Miss Unwin to procure the prohibited drug Ecstasy by those words.
...
As to the second count the Crown says, well that emanates from the conversation that took place on 12 September and is shown on the video tape exhibit "G". The Crown says that that evidence is clear, that there is a conversation, that he is urging, and intentionally urging Miss Unwin to obtain some eccie tablets for him under the pretext of getting them and passing them on to Steve McClelland an officer in the Police Force.
46 Mr Game submitted that there was no evidence that the appellant incited Ms. Hart to supply drugs to Steve, and that accordingly, that being the only offence particularised, there should have been a directed verdict in favour of the appellant.
47 He further submitted that the primary judge, having refused a directed verdict, permitted the Crown to address on the basis that the appellant was urging Ms. Hart to obtain ecstasy tablets for him under the pretext that he would pass them on to Steve; and thus that the Crown had been permitted to change its case after the close of evidence. Furthermore, Mr. Game submitted that a request by A to B to supply a drug to A cannot amount to inciting: otherwise, every time an addict requested a drug from a supplier, this would amount to the serious offence of inciting supply, and not the much less serious offence of possession.
48 Mr. Game submitted that, in his summing up, the trial judge did not put the case on the basis particularised by the Crown, or even as it was outlined during the hearing, that it was a matter of on-supply. Rather the trial judge put the case on the basis that the offence consisted of the appellant inciting the Ms. Hart to supply the drugs to him.
49 In my opinion, the identification of the person to whom the incited supply is to be made is not an element in the offence. A person accused of the offence of inciting is entitled to particulars, and there could be unfairness possibly amounting to a miscarriage of justice if the Crown case departed from particulars that had been given. In this case however, although the particulars identified Steve as the person to whom Ms. Hart was incited to supply drugs, the transcript of the conversation alleged to amount to the incitement was also supplied. The question whether this conversation amounted to an incitement to supply to Steve or to the appellant for on-supply to Steve, or whether the mention of Steve was merely a pretext, were matters of interpretation of the basic facts which were supplied to the appellant.
50 In those circumstances, in my opinion there was no unfair departure by the prosecution from the particulars it had supplied.
51 I agree with Mr. Game's submission that a mere request by an addict to the addict's supplier for drugs would not normally amount to the offence of inciting; but in my opinion that is not because the requested supply is to the person asking, but rather because in the normal case the element of incitement is absent. The element of incitement is generally absent in such cases because the drugs are being acquired from a person understood by the acquirer to be ready, willing and able to supply drugs forthwith to the acquirer; and incitement does not occur because it is not required.
52 One would expect incitement to occur only in those cases when a person is seeking a supply of drugs from another person not understood by the former to be ready, willing and able forthwith to supply the drugs as sought. It is in those cases that the extra element of incitement might occur, so as to bring it about that the other person is induced to become ready, willing and able to make the supply.
53 In Castle v. Olen (1985) 3 NSWLR 26, Yeldham J was dealing with an alleged offence of supplying a drug of addiction within an extended definition of "supply" which included "causing ... exposure for sale". At p.30, his Honour said this:
I am satisfied that more is required to constitute a "causing" than a mere request to a friend to obtain and sell to the person charged a prohibited drug. Certainly the evidence supports the view that the plaintiff sought from Pearce a supply to him for his own use. If the plaintiff had some authority over Pearce or was able to exert some pressure upon him to require him to procure the drug, then it would have been necessary to determine whether the fact that it was to be sold to the plaintiff for use by him and not for re-sale would, as counsel for the plaintiff submitted, affect the situation. In this respect the decision of the Court of Criminal Appeal in R v Coles [1984] 1 NSWLR 726 at 733-734, would be no doubt of relevance. I say nothing about that matter and leave it for determination when and if it later arises for consideration.
54 I see no reason why, if a person urges another person to go and obtain drugs so that the drugs may be supplied to the person doing the urging, that cannot amount to incitement to supply.
55 In the present case, there is no suggestion that Ms. Hart was holding herself out to the appellant as ready, willing and able forthwith to supply ecstasy to him, or that the appellant believed she was ready, willing and able to do this, so that all that would be required, in the appellant's understanding, was a simple request. In circumstances where no such suggestion was being made, in my opinion there was no need to do more than the trial judge did to explain the offence, namely to draw the jury's attention to the meaning of incite, and direct the jury that this is what had to be found beyond reasonable doubt against the appellant.
CONCLUSION
56 For those reasons, in my opinion the appeal should be dismissed.
57 HIDDEN J: I agree with Hodgson JA.
58 SMART AJ: The facts and circumstances are set out in the reasons of Hodgson JA with which I am in agreement. I add the following comments.
59 In Young v Cassells (1914) 33 NZLR 852 Stout CJ, in an oft quoted passage said: "The word 'incite' means to rouse; to stimulate; to urge or spur on; to stir up; to animate." In R v Massie [1998] VSCA 82; (1998) 103 A Crim R 551 at 564 Brooking JA, with whom Winneke P and Batt JA agreed, said of 'incite', "common forms of behaviour covered by the word are 'command', 'request', 'propose', 'advise', 'encourage', or 'authorise'". Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.
60 It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that with the offence of incitement it is merely the incitement which constitutes the offence and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all. In the present case the applicant urged Ms Hart to supply prohibited drugs.
61 I agree with the orders proposed by Hodgson JA.
________________________________________________________________________
R v Wran (a pseudonym) [2021] NSWDC 185 (14 May 2021)
District Court
New South Wales
Case Name:
R v Wran (a pseudonym)
Medium Neutral Citation:
[2021] NSWDC 185
Hearing Date(s):
12 and 14 May 2021
Date of Orders:
14 May 2021
Decision Date:
14 May 2021
Jurisdiction:
Civil
Before:
P Taylor SC DCJ
Decision:
The defence is entitled to a directed verdict on count 5.
Catchwords:
CRIMINAL PROCEDURE — Trial — Directions to jury — Verdict by direction
Legislation Cited:
Crimes Act 1900, s 66C, s 66DB, s 66DD, s 80G
Interpretation Act 1987, s 34, s 35
Cases Cited:
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 [1893] UKLawRpKQB 220; [1894] 1 QB 710
R v Whitehouse [1977] EWCA Crim 2; [1977] QB 868
Texts Cited:
Complicity [2010] NSWLRC 129
Gillies, P, Criminal Law (4th ed, LBC Information Services, 1997)
Lee, Murray; Crofts, Thomas; Salter, Michael; Milivojevic, Sanja; McGovern, Alyce, "Let's Get Sexting': Risk, Power, Sex and Criminalisation in the Moral Domain" [2013] IntJlCrimJustSocDem 4; (2013) 2(1) International Journal for Crime, Justice and Social Democracy 35
Category:
Procedural rulings
Parties:
Regina
David Wran (a pseudonym) (Accused)
Representation:
Counsel:
Ms S Walsh (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Viney Law (Accused)
File Number(s):
2019/99382
Publication Restriction:
Section 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant.
JUDGMENT
1. David Wran[1] was charged with sexual offences involving his 10-year-old stepdaughter, Ruby Jones. The fifth and final count in the indictment is inciting the commission of a sexual offence under s 80G of the Crimes Act 1900. The sexual offence alleged to have been incited is sexual intercourse with a child aged between 10 and 16, a sexual offence under s 66C of the Crimes Act.
2. The defence applied for a directed verdict in respect of this count.
3. The Crown alleged that during a mobile phone call on Duo, a social media app, a conversation between Mr Wran and Miss Jones occurred. The latter gave the following evidence in a police interview that became her evidence in chief:
“OK, um, so, he, um, went to this, he got a new phone and I was like, oh, I want, can I, can I get a upgrade, and he said, October. He was like, I'll swap you my phone for your phone, and, also, you know what I want. I was like, I don't know what you want. And then I walked out the back and my mum was following me. And then he said, um, I want to fuck you, and then I ended the call straight away after and all that. And he was playing with his doodle when he was talking to me, and then I ended it after that as well. And that's when Mum lost it, like, was crying and all that.”[2]
And also:
“OK, so I, he called us, right? 'Cause I thought it was my BFF, I answer it, and then I was ta, OK, I was talkin' to him. And then he was like, I got the Samsung Galaxy 10S+, I think that what, what phone he got. And then he said to me, uh, Do you, like, want it. And I was like, Yeah, I'll swap you for my phone. And he would be like, That's in there regardless. I was like, OK, what else do you want, and he was like, You know what I want. I was like, No, I don't. And then he was like, and he was like, I want to fuck you.”[3]
Mrs Wran, the mother of Miss Jones, gave the following evidence in respect of the same event:
“Q. And so what was said in that conversation?
A. She said, ‘I’d like a phone like you, daddy,’ and he said, ‘Well, you know what I want.’ She got up, walked out and I thought it was a bit weird so I followed her.
Q. What’s the next thing you heard?
A. She said, ‘Dad, I want a phone like you,’ and he said, ‘But you know what I want,’ and she said, ‘What’s that, daddy?’ and she - he said, ‘I want to fuck - fuck you,’ and she said, ‘No, because you hurt me last time,’ and he said, ‘It only hurts for a little bit.’ Oh, oh.”[4]
4. Mrs Wran also gave evidence that she saw Mr Wran masturbating on the mobile phone.[5]
5. The Crown says that the offence incited was Mr Wran having sexual intercourse with his stepdaughter, an offence under s 66C of the Crimes Act.
6. No authorities were provided to indicate circumstances where the person incited in respect of an offence under s 80G was the victim or intended victim of the crime incited. However, at [91] in R v MM (No 2) [2018] NSWDC 528, Sutherland SC DCJ found that inciting sexual conduct by the offender’s stepchildren and grandchildren constituted offences under s 80G. [6] That decision did not contain any consideration of whether the incited persons were incited to commit a criminal offence.
7. In Ford v R [2016] NSWCCA 69 at [39], the s 80G offence involved inciting another person to commit a sexual offence with a child. The existence of the need for another person to be “incited” seems also to be assumed in the article: “Let’s Get Sexting’: Risk, Power, Sex and Criminalisation in the Moral Domain”.[7]
8. The NSW Law Reform Commission Report 129 titled “Complicity”, published in December 2000,[8] contained a section 7 headed “Incitement”. It stated that “the criminality of incitement consists simply in its potential to cause or encourage another to commit a crime”.[9] It referred to s 80G. [10] It also stated “At common law, the offence is complete upon the incitement coming to the attention of the person incited”,[11] and that importantly:
“To be guilty of incitement at common law, an inciter must intend the incited person to carry out the physical element of the offence incited with the required mens rea ... ‘these propositions hardly need authority for they are implicit in the notion of incitement’. Therefore, ‘if D [the inciter] intends no more than that the other person will commit an actus reus, but without any mental state required by the corresponding crime, D does not incite the commission of this crime’.”[12]
9. Consistent with this approach, the Report states:
“At common law the offence incited must be an offence that the person incited is capable in law of committing. So, it has been held that a father cannot incite his 15 year old daughter to commit incest if, under the relevant legislation, a girl under 16 years of age cannot be guilty of incest.”[13]
10. The Commission cited several authorities in support of this approach.[14]
11. The Commission considered the circumstances when the offence incited is one enacted to protect a class of persons, including, first, where “the protected person incites another to commit the offence with him or her ... [and] secondly, where a person incites the protected person to commit the offence with him or her”.[15] At common law, the first was not an offence,[16] and a recommendation of an enactment to that effect was implemented in England.[17]
12. In the second scenario:
“the English Court of Appeal has held that a person cannot be guilty of inciting the protected person to commit the offence, because to do so would ‘impose criminal liability upon persons who the parliament has intended should be protected, not punished’”.
13. The Report also noted that the common law permitted the possibility “for a person to be guilty of inciting another to commit an offence that is factually impossible”.[18]
14. the recommendations of the Commission included that the inciter “may be found guilty of an offence of incitement even if:
(a) facts or circumstances exist which make commission of the incited offence by the course of conduct incited impossible, or
(b) [the person incited] is a person for whose benefit or protection the incited offence exists”.
15. There was no separate recommendation removing the requirement that the person incited must be capable of committing the offence. No amendment to s 80G resulted from the Commission’s recommendations.
16. More recent amendments to the Crimes Act include offences involving incitement. But these offences do not, in terms, refer to incitement to commit an offence. Sections 66DB(b) and (c) and 66DD(b) and (c) involve a child being incited to “sexually touch” or incited to “carry out a sexual act” with another. There is no requirement that the person be incited to commit a criminal offence. That a child is not able to commit a criminal offence is no answer to ss 66DB and 66DD where the relevant element of the offence is inciting a child to engage in sexual conduct rather than inciting a child to commit an offence.
17. Section 80G requires the incitement to commit a sexual offence.[19] In my view, there is no difference between inciting a person to commit an offence, and inciting the commission of an offence. A criminal offence and the commission of it are legal constructs, of themselves they have no capacity to be “incited”. Rather, a human actor needs to be incited. Inciting the commission of a sexual offence requires there to be incitement of a person to commit the sexual offence.
18. The person incited is necessarily someone distinct from the person inciting. One does not sensibly incite oneself. In the present case, the only other person present, and the person alleged to be incited, is Miss Jones, the stepdaughter. But the stepdaughter is not incited to commit an offence. She has no legal capacity to commit an offence. Any form of accessorial liability was precluded in the English Court of Appeal in R v Whitehouse,[20] and eschewed by the Crown in this case.
19. For these reasons, s 80G , unlike provisions like ss 66DB and 66DD, requires another person capable of committing the crime to be incited to commit it. The crime incited need not be committed, but the inciter must intend that result: the inciter must encourage the commission of the crime and intend that the acts and mental element necessary to establish the crime occur.
20. Section 80G(3) provides for impossibility not to be a defence, but that must be read as “factual impossibility”, consistent with the subsequent Law Reform Commission recommendation to this effect.
21. As count 5 relies on s 80G , it requires inciting a person “capable in law of committing” a crime to commit it.[21] No offence under s 80G has possibly been committed as Miss Jones is legally incapable of committing the offence. The jury must be so directed.
22. It follows that the accused could not lawfully be convicted of an offence against s 80G on the evidence. The evidence, taken at its highest, does not permit a verdict of guilty[22] and the Crown, on this construction of s 80G , does not contend otherwise. It follows that the defence is entitled to a directed verdict on count 5.
[1] This is a pseudonym. As are all other names in this judgment.
[2] MFI 2, A104.
[3] MFI 2, A144.
[4] 6/5/21, T150/13-22.
[5] 6/5/21, T150/37, 45; T151/6-10.
[6] See also R v Martin Stanley Claridge [2017] NSWDC 407 at [2].
[7] [2013] IntJlCrimJustSocDem 4; (2013) 2(1) International Journal for Crime, Justice and Social Democracy 35.
[8] Complicity [2010] NSWLRC 129.
[9] At [7.2].
[10] At [7.8].
[11] At [7.27].
[12] At [7.30], see Gillies, P, Criminal Law (4th ed, LBC Information Services, 1997) 663.
[13] At [7.44].
[14] R v Whitehouse [1977] EWCA Crim 2; [1977] QB 868, R v Richard (1986) 30 CCC (3d) 127, R v Pickford [1995] QB 203, 207-208; R v C [2006] 1 Cr App R 20 (see Report at [7.49]). See also R v Claydon [2005] EWCA Crim 2827 at [30]- [31].
[15] At [7.46].
[16] At [7.47], R v Tyrrell [1893] UKLawRpKQB 220; [1894] 1 QB 710, 712.
[17] At [7.48].
[18] At [7.64].
[19] As the heading states, even if a heading is not part of the enactment, it is an aid in the interpretation of the provision, see ss 34 and 35 of the Interpretation Act 1987.
[20] [1977] EWCA Crim 2; [1977] QB 868.
[21] See Report at [7.44].
[22] R v PL [2012] NSWCCA 31 at [31], May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, 658, Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 212.
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