District Court New South Wales Medium Neutral Citation: R v Wran (a pseudonym) [2021] NSWDC 185 Hearing dates: 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 [1894] 1 QB 710 R v Whitehouse [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] 1. Mrs Wran also gave evidence that she saw Mr Wran masturbating on the mobile phone. [5] 2. 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. 3. 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. 4. 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] 5. 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] 1. 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] 1. The Commission cited several authorities in support of this approach. [14] 2. 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] 3. 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'". 1. 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] 2. The recommendations of the Commission included that the inciter "may be found guilty of an offence of incitement even if: 1. facts or circumstances exist which make commission of the incited offence by the course of conduct incited impossible, or 2. [the person incited] is a person for whose benefit or protection the incited offence exists". 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. ********** Endnotes 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] 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 [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] 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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2021