JAD v R

The Queen (Respondent) Representation: J Manuell (Appellant) J Pickering (Crown) Lee Dalton & Associates (Appellant) S Kavanagh (Crown) File Number(s): 08/16755 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-11-15 00:00:00 Before: Hosking DCJ File Number(s): 08/16755

Judgment 1WHEALY JA: JAD (the appellant) was found guilty by a jury at the Orange District Court on 18 August 2009 in relation to an indictment containing six counts. Each count related to a sexual offence which was perpetrated upon the daughter of the appellant's de facto partner. The Crown alleged that, on each occasion, the appellant was the perpetrator. I shall refer to the young woman as the complainant. The appellant appeals his conviction on the following grounds: (1) the convictions in respect of counts 5 and 6 (s 73(1) Crimes Act 1900 (NSW)) cannot be supported by the evidence; (2) in respect of each of the convictions, a miscarriage of justice was occasioned by one or more of the following; (a) the admission of tendency evidence contrary to s 97 Evidence Act 1995 (NSW); (b) defence counsel's failure to rely on s 293(4)(c) Criminal Procedure Act 1986 (NSW); (c) defence counsel's failure to request a warning as to the unreliability of the complainant's evidence (s 165(c) Evidence Act), and the trial judge's failure to give such a direction; and/or (d) defence counsel's failure to request a direction under s 165B Evidence Act, and the trial judge's failure to give such a direction.

Ground 1 is not contested by the Crown 2On his arraignment before the jury on 10 August 2009 the appellant was charged with two counts under s 73(1) Crimes Act that he, between 1 and 25 March 2008, had sexual intercourse with the complainant who was then sixteen years old and "under the care of (the appellant) by reason of he then being her stepfather". These were counts 5 and 6 in the indictment. 3Section 73(3) Crimes Act relevantly provides that, for the purposes of the section, a person ("the victim") is under the special care of another person ("the offender") if, and only if: "(a)the offender is the step-parent, guardian or foster-parent of the victim." 4It appears that the Crown had chosen to indict in this way for counts 5 and 6, as clearly the complainant was aged over 16 and the Crown had not sought to establish, within the trial, a lack of consent. It would have been possible for the Crown to have indicted these counts as offences pursuant to s 61L Crimes Act 1900 and to have sought to establish lack of consent. It did not do so. It is to be assumed that the Crown believed that it could establish that the complainant was the step-daughter of the appellant. 5At the end of the evidence, the appellant's legal representative pointed out that, as the accused and the complainant's mother had never married, the 2 charges could not be sustained against the applicant. The Crown prosecutor sought to save the situation by making an application to amend the indictment to substitute the term "foster-parent" for "step-parent". It appears to have been accepted that the decision of this Court in R v Miller [2001] NSWCCA 209;(2001) 127 A Crim R 344 required a finding that the applicant could not properly be categorised as the stepfather of the complainant. This was despite the fact that the appellant had been living with the complainant's mother since the complainant was nine years of age. 6The trial judge ruled that the indictment should be amended to delete the word "stepfather" from counts 5 and 6 and to insert the words "foster-parent". 7On this appeal Ms Janet Manuell SC, for the appellant, has argued that a de facto partner cannot, without more, properly be characterised under the Crimes Act as the foster-parent of a child. Senior counsel has moulded her argument against the provisions of the Adoption Act 2000 (NSW) and the Children and Young Persons (Care and Protection) Act 1998 (NSW). The argument advanced is that there was no evidence at trial to establish that the complainant had ever been under the daily care and control "of the appellant" in an out of home care arrangement made under the Adoption Act. Further, it was argued that although the term "foster-parent" is not defined in the Crimes Act 1900, the legislature did not contemplate that the expression would extend, without more, to the situation where a couple were living in a de facto relationship together with the child of one of the people in that relationship. 8The Crown's submissions were advanced by Mr John Pickering of counsel. He submitted that a common sense approach would suggest that a de facto partner is not "a foster-parent". He suggested that, in its natural meaning, a foster-parent is a person who assists in raising children in circumstances where neither of the natural parents can take care of them. 9The Crown, before this Court, initially conceded the correctness of Ms Manuell's position. It examined the various definitions of the expression "foster-parent" in the Collins Concise Dictionary and the Macquarie Dictionary. The Crown had argued in written submissions that the concept of including foster-parents in s 73 (in the 2003 amendments), although not explained, was likely to be designed to cover situations where children were fostered out to homes in which neither of their natural parents resided. That fostering agreement, the Crown argued, may not need to have been done by any legal act or formal legal agreement, but it must at least have been a situation whereby the victim is being cared for by a person or persons, neither of whom is the natural parent. 10The Crown made it abundantly clear that it did not seek to support the attempts of the Crown prosecutor and trial judge in the present matter to 'shoe horn' the facts to fit the definition of "foster-parent". In his written submissions, the Crown had said: "43. There is no prospect that the Crown can resist ground 1 of this appeal." 11In these circumstances, as I have said, the Crown initially accepted that it should not stand against this ground of appeal (a similar concession was made in relation to ground 2(b) which I shall deal with shortly). In addition, the Crown had also accepted that the present appeal was not a case where the implementation of the proviso would be appropriate, despite the impressive evidence of the complainant, and the obvious acceptance of her by the jury as a truthful witness. The respondent's submission was that this Court should uphold grounds 1 and 2(b) an order a new trial. 12However, as Simpson J has pointed out, after some "discussion" with the Court, the Crown later withdrew its concession in relation to ground 1, but offered no argument beyond that contained in its written submissions. The Crown accepted the consequence that, if its initial concession on that ground had been correctly made, the proper order would be an acquittal on counts 5 and 6, with a new trial being ordered on the remaining counts in the indictment.

A concession is made in relation to ground 2(b) 13The Crown conceded that a second significant error occurred in the proceedings. At trial the Crown prosecutors placed great reliance on the psychological condition of the complainant especially from 2006 onwards. There was evidence from the complainant's mother that she was at times very anxious and depressed. There was evidence from Melissa Roberts, a psychologist, who treated the complainant from February 2007 onwards. After treatment for some time, in May 2008, the complainant had disclosed to the psychologist that she had been abused by the appellant. The Crown argued at trial that this evidence was significant in rebutting any suggestion that the complainant's version of events was a fantasy or contrived. In other words, the evidence was said to powerfully assist in suggesting that the complainant's mental "injuries" occurred as a result of the abuse she had suffered at the hands of the appellant. 14However, there was a sequence of events which might have suggested a possible alternative basis for the complainant's symptoms. This arose as follows. (i)In February 2007 the complainant began her treatment with Melissa Roberts. The patient was immediately diagnosed as being depressed and anxious. (ii)In June 2007 the plaintiff told her school teacher that she had been sexually assaulted by a school mate named JM and that this assault had taken place in April/May 2006. (iii)Police were immediately notified of the complaint by the school and spoke to the complainant. (iv)The complainant was admitted to hospital in June 2007. It was at this time that she began seeing other counsellors in addition to her psychologist. Once again she was diagnosed as being depressed and anxious. (v)The complainant did not tell anyone about the allegations involving the appellant until May 2008. 15The trial judge made a ruling against the appellant purporting to rely on s 293(4)(a) Criminal Procedure Act 1986. Section 293 applies to proceedings in respect of prescribed sexual offence. It provides that certain types of evidence are inadmissible unless permitted under subs (4). The ruling made by the trial judge was that trial counsel could not raise the matters I have listed above either in cross examination or otherwise. In particular, counsel was prevented from suggesting before the jury that the complainant's psychological conditions were, either in whole or in part, related to the JM incident rather than to the alleged abuse by the appellant. 16In the prosecutor's closing address, and the trial judge's summing up, the complainant's stress and anxiety during the relevant time, including her treatment and hospitalisation, were attributed solely to the allegations against the appellant. The defence were, in effect, precluded from testing whether the JM allegations had a role to play in her psychological injury. 17The Crown on this appeal has fairly and candidly conceded that the resulting situation was seriously unfair to the appellant and his trial counsel. In addition, the Crown has conceded that the trial judge's ruling was incorrect. The particular evidence was plainly admissible under s 293(4)(c), subject to the Court's satisfaction that its probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. 18The Crown accepts for the purposes of this appeal that the situation which developed in the trial carried with it a real risk of a miscarriage of justice. The Crown accepted, on this basis, that a new trial should be ordered.

Remaining grounds of appeal 19The Crown took issue with the remaining grounds of appeal. As to 2(a), it contests that the evidence can be categorised as tendency evidence and suggests that it was appropriately dealt with as context evidence. In relation to the ground arguing that defence counsel had failed to request an unreliability warning, the Crown argues that such a request was made and granted. Finally, in relation to the last ground of appeal, the Crown submitted that there was no evidence that the appellant had suffered a significant forensic disadvantage because of the consequences of delay.

Should the Court order a new trial or an acquittal? 20Simpson J, after a thorough and careful analysis, has concluded that the reference to "foster-parent" in s 73 Crimes Act includes a reference to a de facto living in a familial relationship with a natural parent of a child at the ages specified in s 73. Her Honour has found, after careful consideration, that the term "foster-parent", as used in s 73, is capable of including a de facto of a natural parent, at least where the de facto can be shown to have played a role in the upbringing of the child. My opinion is, with respect, to the contrary. I am conscious that Hoeben J has agreed with Simpson J and that consequently the opinion reflected in my reasons is a dissenting one. 21I shall briefly state why, with respect, I have been unable to agree with the views expressed by Simpson J. As I understand it, there are three principal reasons why Simpson J has reached the decision in her draft judgment. First, her Honour is satisfied that there was a clear statement of what was intended to be achieved by the Burke amendment moved on 27 May 2003. Secondly, her Honour thought it "inconceivable that Parliament would have intended to perpetuate an invidious discrimination", described by her Honour at paragraph [132] below. Her Honour described this in the following terms: "That is discrimination against certain young people on the ground of the marital status of their parents. A child of 16 to 18 whose parent is lawfully married to the perpetrator of sexual abuse, even if consensual, or even if, on prosecution, the Crown could not prove absence of consent, has the protection of s 73. A child whose parent lives in a de facto relationship with that person does not." 22Thirdly, her Honour, applying well known principles of statutory construction, held that the expression "foster-parent" was ambiguous in the context of s 73. In that regard, her Honour concluded that the literal or grammatical meaning of the expression "foster-parent" would defeat the purpose of the statute, as her Honour understood its intention. Applying a purposive approach, her Honour determined that the expression "foster-parent" in s 73 included a reference to a de facto living in a familial relationship with the natural parent of a child. 23Since this is a dissenting opinion, I can briefly state my reasons for failing to be persuaded by these matters. As to the matter of intention, and despite her Honour's extremely careful analysis, I am not persuaded that the intention of Parliament has been revealed in the manner advocated by her Honour, notwithstanding the history of the matter and the statements made by Mr Burke on 27 May 2003. I think it is simply impossible to know what Mr Burke had in mind when he spoke of an "anomaly with respect to step-parents". If he did intend to enlarge the narrow pathway created by the decision in Miller, then the amendment, in my mind, was not intended to have the reach ascribed to it by Simpson J. I do not accept that it is "inconceivable" that Mr Burke intended to withhold protection from a child, one of whose natural parents cohabited, without lawful marriage, with another person who had assumed the role of (alternative) parent: see Simpson J at [132]. 24I simply do not know, with any certainty, what Mr Burke had in mind. The history of the interpretation by Courts of Parliament's intention is littered with examples where speculation (however well-intentioned) must give way to the actual language used. 25Secondly, the expression "foster-parent" to my mind does not easily equate to a reference to a de facto partner living in a relationship with a natural parent of a child. Regretfully, I take the view that to equate the expression "foster-parent" to a de facto is to give a "strained interpretation" to the term "foster-parent". 26Thirdly, both the Parliamentary draftsperson and Parliament itself were well versed in expressions in legislation which defined a de facto relationship. Without wishing to be exhaustive in this regard, it is simply sufficient to refer to, for example, s 19 of the Adoption of Children Act 1965. Section 19 of that legislation (as it then stood) enabled persons living in a de facto relationship to seek an order for adoption in their favour. Section 19(1A) provided: "The Court may make an adoption order in favour of a man and a woman who are living together as husband and wife on a bona fide domestic basis although not married to each other ..." 27Another example of the definition of de facto relationships consistent with the definition of "domestic relationships" appears in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 28Equally, as Ms Manuell's examples show, the expression "foster-parent" has been historically recognised in the Parliament of this State. 29It is clear that, had Parliament wished to amend s 73 to include persons in a de facto relationship, it could have done so by the use of language perfectly suited to that situation. I consider that the Crown was correct in its written submission when it said: "No one, particularly those who draft legislation, would choose the term 'foster-parents' to deliberately seek to encompass de facto parents." 30In my opinion, the intention in the 2003 amendment was to cover situations where children were fostered out to homes at which neither of their natural parents resided. That fostering agreement may not need to have been done by any legal act or formal legal agreement, but it must be a situation whereby the victim is being cared for by a person, or persons, none of whom are their natural parents. 31The final matter I should mention is this: Simpson J has recognised in her decision that it is not every de facto who will qualify for inclusion in the term "foster-parent". Her Honour observed that it may be necessary to adduce evidence as to the nature of the actual relationship by including matters such as financial and/or emotional support, discipline, participation in family activities and participation in educational, sporting or recreational activities. Such an approach would necessarily involve a trial within a trial and, I would venture to suggest, an extremely complicated trial within a trial at that. 32For these reasons, I am unable to agree that the term "foster-parent" as used in s 73 is intended to include a de facto partner of a natural parent. 33I would hold that ground 1 of the appeal has been made out. I agree, however, with Simpson J, that it is unnecessary to make findings in relation to the remaining grounds of appeal. 34Before departing from the matter, I wish to add this: there is plainly, as Simpson J's careful reasoning shows, a powerful argument to suggest that the expression "foster-parent" may have been intended to extend to the de facto situation. Although I have not been persuaded to that view, I recognise that it is unsatisfactory that any uncertainty surrounding the statutory definition should persist. It is clear, in my view, that s 73 requires urgent and immediate attention by the legislature. In my opinion, the legislature as presently framed does not possess a sufficient level of clarity or precision. It may be that Parliament's intention was as Simpson J's decision suggests. On the other hand, it may have been that Parliament deliberately refrained from including de facto relationships within the terms of s 73. The statute under consideration is a penal statute and its application to and consequences for persons accused of a serious offence should be beyond argument. That is not the present situation. 35In those circumstances, it is my view that a copy of this decision should be taken out and forwarded by the Registrar to the Attorney General for his urgent consideration. 36Since my judgment is a dissenting one, I will simply conclude by stating that the orders I would have imposed are: (1)Appeal against conviction allowed, conviction quashed. (2)That a verdict of acquittal be entered on counts 5 and 6. (3)That there be a new trial on the remaining counts in the indictment. 37SIMPSON J: On 10 August 2009 the appellant was arraigned in the District Court at Orange on an indictment that contained six counts alleging sexual offences. He entered a plea of not guilty to each count. On 18 August 2009, after a trial, the jury returned verdicts of guilty on all six counts. 38All counts were brought under the Crimes Act 1900. They were: - two counts (counts 1 and 2) under s 66C(4); two counts (counts 3 and 4) under s 66C(2); two counts (counts 5 and 6) under s 73(1). Offences against subss 66C(2) and (4) (the offences the subject of Counts 1 - 4) are offences committed in circumstances of aggravation. In each case, the specific circumstance of aggravation alleged was that the complainant was under the authority of the appellant (Crimes Act s66C(5)(d)). 39Section 66C(2) prescribes a maximum penalty of imprisonment for 20 years. Section 66C(4) prescribes a maximum penalty of imprisonment for 12 years. Section 73(1) prescribes a maximum penalty of imprisonment for 8 years. It will be necessary shortly to say more about the nature of the offences created by these provisions, and the evidence upon which the appellant was convicted. 40On 16 November 2009, Hosking DCJ sentenced the appellant as follows:

The relevant legislation 42Section 66C(2) is in the following terms: "Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years." Section 66C(4) is in the following terms: "Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years." Sub-section (5) defines "circumstances of aggravation" in a variety of ways, of which that presently relevant is para (d): "the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender." Sub-sections 73(1) to (3) are in the following terms: "(1.)Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years." (2.)Any person who has sexual intercourse with another person who: (a)is under his or her special care, and (b)is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3)For the purposes of this section, a person (the victim) is under the special care of another person (the offender) if, and only if: (a)the offender is the step-parent, guardian or foster parent of the victim, (b)the offender is a schoolteacher and the victim is a pupil of the offender, (c)the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d)the offender is a custodial officer of an institution of which the victim is an inmate, or (e)the offender is a health professional and the victim is a patient of the health professional." 43It is convenient at this point to refer to the indictment. The indictment upon which the appellant was presented was in the following terms: Counts 1 and 2: "Between 1 February 2007 and 25 March 2007 at Orange in the State of New South Wales [the appellant] did have sexual intercourse with [the complainant], she then being above the age 14 years and under the age of 16 years, namely 15 years of age, in circumstances of aggravation, namely she was under the authority of [the appellant] by reason of he then being her stepfather." 44Counts 3 and 4: "Between 1 July 2004 and 31 October 2005 at Orange in the State of New South Wales [the appellant] did have sexual intercourse with [the complainant], she then being under the age of 16 years, namely between 12 and 14 years of age, in circumstances of aggravation, namely that she was under the authority of [the appellant] by reason of he then being her stepfather." 45Counts 5 and 6: "Between 1 March 2008 and 25 March 2008 at Orange in the State of New South Wales [the appellant] did have sexual intercourse with [the complainant] who at the time was 16 years of age under the care [sic] of [the appellant] by reason of he then being her stepfather." (The allegation ought to have been that the complainant was under the "special care" of the appellant. 46During the course of trial, a number of amendments were made to the indictment. The most significant for present purposes was the substitution, in each count, of the term "foster [parent/father]" where the term "step-father" had appeared. I will explain below the circumstances in which this amendment was made. Amendments were also made to some of the dates specified, and to the age of the complainant, but these are not material to the matters raised on appeal.

The Crown case 47Having regard to the grounds of appeal, and to a concession properly made on behalf of the Crown, the facts of the Crown case can be stated briefly. 48The complainant was born on 29 July 1991. She has a younger brother and a younger sister. In 1999, when she was eight years of age, her mother and the appellant commenced a de facto relationship. A son was born of that relationship later in 1999. The family lived together at various addresses in Orange until March 2008, when the appellant left the family home. 49The complainant alleged that, during the currency of the de facto relationship, the appellant regularly, and in a variety of ways, sexually interfered with her. Her allegations resulted in the six specific charges of sexual intercourse on the indictment. The counts were differentiated into pairs, involving different sections of the Crimes Act, depending upon the age of the complainant at the time the offences were alleged to have been committed. Thus, the offences charged in counts 3 and 4 were alleged (after amendment) to have been committed between July 2001 and December 2002, when the complainant was between 10 and 11 years of age (and under the authority of the appellant); the offences charged in counts 1 and 2 were alleged to have been committed between February and May 2007, when the complainant was 15 years of age (and under the authority of the appellant); and the offences charged in counts 5 and 6 were alleged to have been committed in March 2008, when the complainant was 16 years of age (and under the special care, as defined in s 73(3) of the Crimes Act of the appellant). None of the offences charged involves, or requires, an allegation, or proof, of lack of consent. 50I defer, until consideration of the relevant grounds of appeal, further reference to the factual issues.

The trial 51The jury was empanelled and the trial commenced on 10 August 2009. The complainant's evidence was taken, initially, by way of the tender of DVDs of two interviews of her conducted by a police officer, Detective Senior Constable Megan Fawkner, in the presence of an officer of the Department of Youth and Community Services. The first interview took place on 27 May 2008. The second, which consisted largely of the complainant's reading from notes she had made in the interim, took place on 29 September 2008. The jury were provided with transcripts of the interviews. The complainant gave some additional evidence in chief and was cross-examined over that and the following two days. The import of the cross-examination was that none of the incidents which she described had occurred. The complainant agreed that she had not made any complaint about the appellant's conduct until May 2009, on the evening before the first interview. The circumstances in which the complainant made her complaint to police officers were not revealed with any clarity in the evidence. It does appear that she may have made some disclosures to her mother (and, possibly, a friend) shortly before the first interview. 52On 13 August 2009 the complainant's mother gave evidence, as did two police officers and a psychologist who had assessed and treated the complainant in 2007. There was a significant body of evidence concerning the complainant's mental state at least from February 2007. I will refer to this in more detail when I come to the individual grounds of appeal. 53During the course of the cross-examination of the complainant's mother, an issue was raised by defence counsel concerning allegations previously made by the complainant against a male pupil at a local school, and on which he wished to cross-examine. After brief consideration of s 293 of the Criminal Procedure Act 1986, the cross-examination was rejected. Since that question is the focus of a discrete ground of appeal, I will defer outlining the circumstances, and the evidence sought to be adduced (so far as it is ascertainable), until I come to deal with that ground of appeal. 54The Crown case closed after the evidence of the police officers. 55At that point, the Crown Prosecutor raised (apparently not for the first time) a question concerning amendment to the indictment in respect of some of the dates specified. That was done, over what was said by defence counsel to be "formal" objection. 56The appellant gave evidence. He denied all allegations. He called a number of character witnesses. That concluded the evidence in the defence case, although the defence case was not then formally closed. The Crown sought, but was refused, a case in reply. 57Defence counsel then indicated that he wished to "raise a point of law". He produced a copy of the decision of this Court in R v Miller [2001] NSWCCA 209; 127 A Crim R 344. 58Miller was a case that concerned s 73 of the Crimes Act. However, it concerned a version of s 73 that predates the current version. At that time, s 73(1) was in the following terms: "Whosoever, being a schoolmaster or other teacher, or a father, or stepfather, unlawfully and carnally knows any girl of or above the age of 16 and under the age of 17 years, being his pupil, or daughter, or stepdaughter, shall be liable to imprisonment for 8 years." 59In Miller, this Court held that a de facto relationship between the parent of a child and another person does not, for the purposes of s 73 as it then stood, give rise to the relationship of step-parent and step-child between the de facto partner and the child. However, after the decision in Miller, s 73 was quite extensively amended to incorporate the notion of "special care" as defined in subs (3) thereof. The amendment introduced, in addition to "step-parent", the notion of "foster parent". It contained no definition of that term. (For the terms of s 73 as amended, and as presently relevant, see above at [42].) 60After discussion, the trial judge allowed all counts in the indictment to be further amended by the substitution I have referred to above, of the terms "foster-father" or "foster parent" where "step-father" had previously appeared. It is only in relation to Counts 5 and 6 that this is presently material.

The grounds of appeal: 61The grounds of appeal are pleaded as follows: "1.The convictions in respect of Counts 5 and 6 (Crimes Act 1900, s 73(1)) cannot be supported by the evidence. 2.In respect of each of the convictions, a miscarriage of justice was occasioned by one or more of the following: (a)the admission of tendency evidence contrary to Evidence Act 1995, s 907[sic - 97]; (b)defence counsel's failure to rely on Criminal Procedure Act 1986 s 293(4)(c); (c)defence counsel's failure to request a warning as to the unreliability of the complainant's evidence, under Evidence Act 1995 s 165(1)(c), and trial judge's failure to give such a direction; and/or (d)defence counsel's failure to request a direction under Evidence Act 1995 s 165B and the trial judge's failure to give such a direction."

Ground 2(b): Criminal Procedure Act, s 293 62It is convenient to deal first with Ground 2(b). I note here that this ground is, very properly, conceded by the Crown. It is, however, necessary to set out in some detail the circumstances, in order to demonstrate that the Court accepts the concession, and why it does so. 63Section 293 is relevantly in the following terms: "293. Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) ... (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Sub-section (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H(1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) ... (e) ... (f) ... and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part it, or not taken part in, sexual activity or a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7)... (8)..." There is no issue that all the offences charged were, for the purposes of s 293(1), "prescribed sexual offences": (see Criminal Procedure Act s 3). 64The background to the issue raised by Ground 2 (b) is as follows. The complainant was 16 years of age when she took part in the first interview, 17 at the second and 18 when she gave evidence in the trial. In the first interview, she recounted a number of instances of sexual molestation of her by the appellant, including penile/vaginal intercourse. 65Her evidence, and the evidence of the psychologist, established that she had a troubled history. At the end of the first interview, she told Detective Fawkner that in about February or March 2007 she began consulting a psychologist called Melissa Theobold (later Roberts). She said that she had not told Ms Theobold of her allegations about the appellant. She said that she had been in hospital in 2007. When Detective Fawkner asked the reason for the hospital admission, she said: "Um, I was sick, I suppose I just had enough, I just 66In oral evidence, asked about the same hospital admission, she said: "I had really bad headaches and I was sick and I had cramps in my stomach." She said that the penile/vaginal intercourse had occurred before her admission to hospital. When asked if she had complained to the hospital of any other symptoms, she said that she reported: " ... that I was hearing voices." She was asked why she had told the hospital that she was hearing voices and she answered: "I don't know I suppose I was looking for something, to ask me something, ask me questions or ... anything, someone to I suppose initiate or just ask me if anything was wrong at home or anything happening or --." She said she had not been asked those questions but she had indeed been hearing voices. The voice she heard was that of the appellant who was telling her: "That if I was to say anything to anyone that no one would listen to me or no one would believe me." She said that the appellant had frequently used those words to her. 67The psychologist gave evidence under her married name, Roberts. She said that she had first met the complainant on 10 February 2007, the complainant having been referred to her for assessment and treatment for depression and "suicide ideation". She said the complainant presented with severe symptoms of depression and anxiety, was experiencing "... lots of panic attacks and sleep disturbance, appetite disturbance and thoughts of not wanting to be around any more." 68The complainant also reported to Ms Roberts experiencing auditory hallucinations with a male voice. Ms Roberts said that she had continued to see the complainant. On 13 May 2008 the complainant for the first time told her of her allegations against the appellant. She said that when the complainant spoke of those incidents: " ... she appeared highly stressed, her [a]ffect was anxious, she was shaking, she found it difficult to speak." and that those manifestations continued both before and after she first made the disclosures. She said that on 4 June 2008 the complainant reported that the appellant had been sexually assaulting her and that the complainant was highly distressed and anxious, her body was visibly shaking and she was crying. When Ms Roberts asked for details of the abuse she became more anxious and appeared to dissociate. She said that the symptoms she observed were consistent with flashbacks of the abuse that she reported. 69The evidence concerning the complainant's mental condition assumed considerable prominence. The Crown Prosecutor addressed on it at some length, unequivocally suggesting that the symptoms described were attributable to the conduct alleged against the appellant. 70Similarly, in the summing up, considerable reference was made to this aspect of the Crown case. 71Plainly, the Crown case was that the complainant's anxiety and depression were a direct result of the conduct she asserted against the appellant. That could be seen as powerful corroboration of her allegations, and therefore an important component of the Crown case. 72Equally plainly, evidence that might suggest an alternative explanation could be seen as an important aspect of the defence case, having significant capacity to dilute the otherwise prejudicial effect of the evidence. 73No attempt was made on behalf of the appellant to introduce such evidence. That such evidence was potentially available is apparent from some exchanges between counsel and the judge in the absence of the jury. 74The subject first arose, although in an oblique way, during the cross-examination of the complainant. The topic under discussion (raised in the absence of the jury) was the extent to which defence counsel would be permitted to cross-examine the complainant about the lateness of her complaints about the appellant's conduct. During that discussion, defence counsel said: "If the witness is called, could I just say this your Honour, I also wish to put to her that she didn't say anything to the teacher [named] nor to a Detective Senior Constable Geraldine Bunting and it was in June 06 that she spoke to Bunting in relation to the alleged sexual assault by the boy at school. I'm not going to raise it but she certainly was interviewed and I would say in relation to an unrelated matter. She spoke to police on an unrelated matter." (emphasis added) 75This was evidently the first the trial judge had heard of the suggestion of a sexual assault by somebody other than the appellant. When he asked about it, defence counsel replied: "Yes, your Honour. Sexual assault in about April or May 2006. The complainant was interviewed by police in June 2006, then withdrew the complaint." 76A voir dire then began. Its principal subject matter was the timing of the complaint made by the complainant, and the delay by the complainant in raising those matters, despite having had some opportunities to report the allegations to various people (such as Ms Theobold/Roberts). This question was put to the complainant: "In relation to another matter you were spoken to by police in June 2007 by Detective Senior Constable Geraldine Bunting, do you remember that was about a boy up at Canobolas?" 77There followed some questioning of the complainant (still on the voir dire) by the Crown Prosecutor, after which defence counsel further cross-examined. The following evidence is recorded: "Q. Ma'am you see when you say that Ms Pankhurst [a school teacher] went to the principal, that was in relation to the [JM] matter wasn't it? A. Yeah. Q. Not in relation to [the appellant]? A. No I hadn't said anything about him. Q. No, right. So you hadn't told Ms Pankhurst about [the appellant], had you? A. No, I hadn't told anybody. Q. And you never told Ms Pankhurst about [the appellant] did you? A. No. Q. You told Ms Pankhurst about [JM] is that right? A. Yeah, yeah. Q. It was what you told Ms Pankhurst about [JM] that caused her to go to the principal is that right? A. Yeah." ("JM" was the schoolboy about whom the complainant had complained in June 2007.) 78There then followed a discussion about how to deal with this evidence. Section 293 was mentioned. 79The following day, again in the absence of the jury, defence counsel said: "You see, I did say to the witness, to the complainant, she didn't make any complaint to those people prior to May of 08, and in the statement of Ms Roberts, she talks about the first time is 13 May 08. You see the difficulty with this case is that lurking in the wings is the alleged sexual assault by the boy at Canobolas High School and that occurred in about April or May of 2006 and then it wasn't reported until about early 2007, and of course it's after that's reported that this complainant goes to hospital, in May of 2007, and of course that can't be raised. So that is lurking in the wings. We don't know why in May of 2007 the complainant went to hospital." (emphasis added) Section 293 was again raised. 80Later, during cross-examination of the complainant's mother, and again in the absence of the jury, defence counsel said: "Your Honour whilst the jury are out, I wish to raise this aspect of being able to ask this witness [the complainant's mother] about the fact that in 2006 [the complainant] was the subject of an alleged sexual assault by the boy [JM] and that that was reported to the police in 2007 and that she then withdrew that complaint. And that's why there's a difficulty with this case, because lurking in the background, is this issue." [AB 341] 81Again, consideration was given to s 293. There appears to have been general agreement that s 293 precluded admission of any evidence concerning the alleged assault by JM. The evidence concerning the complainant's allegations about the conduct of JM is evidence that fits the description above (at [77]) of evidence capable of significantly diluting the effect of the evidence suggesting the complainant's psychological condition was attributable to the misconduct she alleged against the appellant. 82On the appeal, the Crown fairly conceded that a psychological condition such as that suffered by the complainant comes within the term "disease or injury" for the purposes of s 293(4)(c)(ii). The suffix to that subsection must, therefore, be considered - the evidence is admissible, provided that its probative value outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. 83In my opinion, the evidence meets that test. The evidence was potentially of very significant probative value. The Crown did not suggest otherwise. 84The evidence was, therefore, admissible. Notwithstanding the acquiescence of counsel for the appellant in the evidence being withheld, the Crown did not seek to rely on Rule 4 of the Criminal Appeal Rules. This was a responsible position for the Crown to adopt. 85The consequence is that this ground of appeal must be upheld. The further consequence is that there must be an order for a new trial. 86In order to minimise the distress caused to the complainant, consideration may have to be given to how the evidence is to be elicited. But the potential weight of the evidence (in favour of the appellant) is such that he cannot be deprived of an important possible answer to what became an important part of the Crown case. 87In the circumstances, it is necessary to deal with only one other ground, Ground 1.

Ground 1: Crimes Act s 73 88Ground 1 of the appeal challenges the convictions in respect of Counts 5 and 6. The counts as pleaded in the indictment, after amendment, alleged that the appellant had sexual intercourse with the complainant, who was then 16 years of age and under the appellant's (special) care by reason that he was her foster parent. 89The basis of the ground is that the appellant could not be shown to have been the complainant's foster parent. The term "foster parent", so the appellant's argument ran, does not and cannot extend to a person in a de facto relationship with a natural parent of a complainant. The outcome of the ground depends entirely upon the construction that is placed upon the term "foster parent" - as it appears in s 73. 90Initially, the Crown accepted the argument advanced on behalf of the appellant and conceded the ground. A necessary consequence of the concession, if accepted by the Court, is that the convictions on these counts be quashed and verdicts of acquittal entered. 91In explaining, in its written submissions, the basis on which it made the concession, the Crown made a strong case in support of the appellant. After discussion with the Court, however, the Crown withdrew the concession. Nevertheless, it did not advance any argument to the contrary of that put on behalf of the appellant, and the Court was therefore left with no contradictor. In saying that, I mean no criticism of the Crown - it adopted an ethical and fair position, having regard to the advice it received. But that left the Court in the position of conducting its own researches, without the benefit of argument against that put on behalf of the appellant. 92A convenient starting point in consideration of the meaning to be ascribed to the term "foster parent" as used in s 73 is the evolution of that section. That was the subject of analysis by Giles JA in Miller, to which I have already referred. Some repetition of what his Honour there said is inevitable. (His Honour's history, of course, stops at 2001, when Miller was decided, at which time s 73 was not in the form it takes today. Just how it came to assume its present form is a matter of considerable importance to which I will return.) 93The feature of s 73 and its forerunners with which I am principally concerned is what is, perhaps colloquially, known as "the age of consent". Also of interest are the relationships to which the section is directed. Over the years, s 73 (and its forerunners) have criminalised sexual intercourse between persons in specified relationships, in which one participant is of, or below, a specified age. The provisions have been separate from, and independent of, other provisions criminalising sexual intercourse between a male of any age, and a female under a specified age - ("the carnal knowledge" provisions"). 94Throughout its history, until 2003, the provisions were directed only to sexual intercourse between a male person in some position of authority, and a female of or under a specified age. No parallel provision existed in relation to males of an equivalent, or any, age. 95The origin of s 73 lies in s 43 of the Criminal Law Amendment Act 1883 (NSW) ("the 1883 Act"). That section relevantly provided: "43.Whosoever being a schoolmaster or other teacher unlawfully and carnally knows any girl of or above the age of 10 years and under the age of 16 years being his pupil and whosoever being a father carnally knows any girl between such ages being his daughter shall be liable to penal servitude for 14 years. ... And the consent of the pupil or daughter shall be no defence to any charge under this section. Provided that nothing in this clause contained shall prevent such schoolmaster, teacher or parent from being prosecuted under either section 41 or section 42 of this Act." 96Section 43 has to be seen in the light, particularly, of s 42, which relevantly provided: "42.Whosoever unlawfully and carnally knows any girl of or above the age of 10 years and under the age of 14 years shall be liable to penal servitude for 10 years. ... And the consent of the girl shall be no defence to any charge under this or the preceding section." The preceding section, s 41, created a separate offence, punishable by death, of carnal knowledge of a girl under the age of 10. 97That is, as far back as 1883, the NSW Legislature saw fit to draw a distinction between the age of a female at which it became unlawful for a person (read male) to have intercourse with her - and the age of a female at which it became unlawful for a schoolmaster, teacher or father to have intercourse with her. (It seems that there was then no general prohibition on incest.) The general prohibition, contained in s 42, was of sexual intercourse with a girl under the age of 14. In other words, the age of consent for a female was fixed at 14; but where the prescribed relationship (schoolmaster or teacher and pupil, or father and daughter) was shown to exist, the age prescribed was 16. That suggests that, even in 1883, the Legislature perceived a need to afford protection from sexual predation to young females, and that that protection ought to extend, where a specified relationship of power or authority existed, beyond the age at which protection generally was given. 98It is relevant here to note that there was no equivalent protection afforded to young males. That was because any form of homosexual intercourse was unlawful, initially under the English common law, inherited by NSW on settlement: see Blackstone, Commentaries on the Laws of England, 17th ed, 1830, Vol 4. (No recognition appears to have been given to the possibility of heterosexual intercourse between an adult female, or a female in a position of authority, and a young male; or, if such a possibility were contemplated, it was not perceived as calling for criminal penalty.) There was, therefore, no call to prescribe an age of consent for young males. That remained the case until 1984, when the Crimes (Amendment) Act of that year ("the 1984 Act") was passed by the NSW Parliament. I shall say more of the 1984 Act below. 99In 1900 "an Act to consolidate the Statutes relating to Criminal Law" was passed by that Legislature. It became the Crimes Act 1900. By s 71 (in substitution for s 42 of the 1883 Act), the general age of consent for females remained at 14. Sexual intercourse with a female below that age constituted carnal knowledge and was punishable by penal servitude for 10 years. (The death penalty continued to be provided for carnal knowledge of a girl under 10.) 100Section 43 of the 1883 Act was re-enacted as s 73 of the Crimes Act and was then in the following terms: "Whosoever, being a schoolmaster, or other teacher, or a father, unlawfully and carnally knows any girl of or above the age of 10 years, and under the age of 16 years, being his pupil or daughter, shall be liable to penal servitude for 14 years." Although the language is different, and more modern, the effect of s 73 was similar to the effect of s 43, and the penalty was unaltered. The prohibited relationships were those of schoolmaster or teacher and pupil, and father and daughter; the age of the female up to which sexual intercourse between those parties was criminalised was 16. 101In 1910 the Crimes (Girls' Protection) Act 1910 was passed, implementing amendments to the Crimes Act. Section 71 of the Crimes Act was amended so that the general age of consent became 16; s 73 was amended so that the prohibited age of sexual intercourse with a female, where the prescribed relationship existed, was 17. The relationship of stepfather and stepdaughter was added to the specified relationships. That amendment also introduced two defences to the charge of carnal knowledge (s 71) that had not previously appeared. These were that the girl in question was over the age of 14: and, either, that she was a common prostitute or an associate of common prostitutes or that the accused had reasonable cause to believe that she was over the age of 16. This amendment also imposed a limitation period of six months for the prosecution of an offence against s 71. 102The rationale for the 1910 amendments to the Crimes Act was stated in the Second Reading Speech by Colonel Onslow, who introduced the Bill, as follows: "The object of the Bill is to protect girls under the age of 16 years, and, so far as parents and guardians are concerned, girls under the age of 17, against offences which are dealt with under section ... 71 [and] 73 ... of the Crimes Act of 1900; and it is further to extend the protection of that act to stepdaughters, as well as to daughters, in certain cases." (Parliamentary Debates (Hansard) Legislative Assembly, 2nd Series, 27 July 1909, Vol 33 at 780) 103In 1924, by the Crimes (Amendment) Act of that year, ("the 1924 Act") the existing s 73 was stated to have been omitted, and a substitute s 73 inserted. However, there is no material (if any) difference between the two versions. The section then read: "73.Whosoever, being a schoolmaster or other teacher, or a father, or stepfather, unlawfully and carnally knows any girl of or above the age of 10 years, and under the age of 17 years, being his pupil, or daughter, or stepdaughter, shall be liable to penal servitude for 14 years." 104The 1924 Act also introduced, it seems for the first time, an offence of incest; it became an offence for a male to have carnal knowledge of his mother, sister, daughter or granddaughter, and for a female of or above the age of 16 to permit her grandfather, father, brother or son to have carnal knowledge of her. 105The next relevant amendment to s 73 was made in 1985, by the Crimes (Child Assault) Amendment Act 1985. The words "of or above the age of 10 years and under the age of 17 years" were omitted, and, in substitution, the words "of the age of 16 years" inserted. The substitution was relatively short-lived. In 1987, by the Statute Law (Miscellaneous Provisions) Act 1987, s 73 was again amended, to omit the words "of the age of 16 years" and reinsert the words "of or above the age of 10 years and under the age of 17 years". The section then read: "Whosoever, being a schoolmaster or other teacher or a father, or step-father, unlawfully and carnally knows any girl of or above the age of 16 years, and under the age of 17 years, being his pupil, or daughter, or stepdaughter, shall be liable to imprisonment for 8 years." 106That was how the section stood in 2001, when Miller was decided. 107I have mentioned above that homosexual intercourse was absolutely prohibited. I will attempt to deal more briefly with the history of these provisions. (They have a relevance which may not be immediately apparent.) Section 59 of the 1883 Act appeared under the heading "Unnatural Offences", with a side note "Sodomy and Bestiality." It provided: "59.Whosoever commits the abominable crime of buggery either with mankind or with any animal shall be liable to penal servitude for life or any term not less than five years." Section 60 made like provision for attempts to commit offences against s 59. 108In 1900, s 59 was transferred, in identical terms, into the Crimes Act 1900 as s 79 of that Act. 109In 1955, by the Crimes (Amendment) Act 1955, two new sections, ss 81A and 81B, were inserted. They were in the following terms: "81AWhosoever, being a male person, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of indecency with another male person shall be liable to imprisonment for two years. 81B(1)Whosoever, being a male person, in any public place - (a)solicits or incites: or (b)attempts to solicit or incite, in any manner whatsoever any male person to commit or to be a party to the commission of any offence under section seventy-nine, eight-one, or 81A of this Act shall be liable to imprisonment for 12 months. ..." 110Except for reduction in penalty (from imprisonment for life or a minimum of five years provided by the 1883 Act, to a maximum penalty of imprisonment for 14 years, provided by the 1924 Act), s79 remained in the form set above until 1984. By the Crimes (Amendment) Act 1984 the heading "Unnatural Offences" was omitted, as was the reference to "the abominable crime of buggery". The section continued to provide for an offence of bestiality. The effect of this amendment was to decriminalise homosexuality, with the exception effected by a new s 78K. 111The new s 78K provided: "78KA male person who has homosexual intercourse with a male person of or above the age of 10 years, and under the age of 18 years, shall be liable to penal servitude for 10 years." 112This was, in a sense, the male (or homosexual) equivalent of s 71, in that it enacted an age of consent. One marked difference will be observed: while the age of consent for females was 16, that is the age of consent for female heterosexual intercourse was 16, the age of consent for male homosexual intercourse was 18 years. 113A male parallel of s 73 was also enacted, in s 78N, in the following terms: "A male person, who, being a schoolmaster or other teacher, or father, or stepfather, has homosexual intercourse with any male person of or above the age of 10 years, and under the age of 18 years, being his pupil, son or stepson, shall be liable to penal servitude for 14 years." The effect of this was to make homosexual intercourse, where the prescribed relationship existed, and the pupil, son or stepson was under the age of 18, more serious than homosexual intercourse with a person under the age of 18, which continued to be a criminal offence (s 78K). 114That was the statutory history as at 2001, when Miller was decided. The appellant in that case (to whom, to avoid confusion, I will refer by name) was charged under s 73 as a stepfather. He entered a plea of guilty to that count. The Crown accepted the plea in full satisfaction of the indictment (which had contained also a count of sexual intercourse without consent). Like the present appellant, Miller had cohabited with the complainant's mother, but was not married to her. The Crown sought and was granted leave to withdraw its acceptance of the plea of guilty, on the basis that, in those circumstances, Miller could not be shown to have been the complainant's stepfather. At first instance it was held that a stepfather could only be "a person linked by marriage to the victim's mother" withdraw acceptance of the plea was accordingly granted to the Crown. Miller was granted leave to appeal to the Court of Criminal Appeal, but the appeal was dismissed, this Court upholding that conclusion. In the course of his judgment, Giles JA considered the purpose of the then s 73. His Honour said: "51.Let it be accepted that the purpose of s 73 of the Act was and is to protect young girls from abuse by persons who are positions of authority and control over them. Nonetheless the legislature has chosen to fulfil the purpose by stating particular relationships which will normally bring authority and control - teacher and pupil, father and daughter, stepfather and stepdaughter. It has not used the criterion of authority and control. ..." (italics added) 115Giles JA went on to consider the "ordinary" meaning of the terms "step-father" and "step-daughter". After considering dictionary definitions, and relevant decided cases, he concluded that: "42.Marriage between the step-parent and the parent of the child is the basis of the step-relationship ..." and that Miller was not a "stepfather" within the meaning of s 73. 116The present argument is that reasoning of the same kind that led the Court, in that case, to its conclusion in respect of the meaning of "stepfather", must lead the Court as presently constituted to the same conclusion in respect of the meaning of "foster parent". That is that on consideration of the "ordinary" meaning of the term (no relevant decided case was cited) this Court should conclude that the appellant is not a "foster-parent" within the meaning of s 73. 117It is of some note that neither "step-father" (or "step-parent") nor "foster parent" has ever been defined in the Crimes Act. 118It is now necessary to take the history forward, and to explore how s 73 came to be in its present form. It is because the explanation is entwined with the course of amendments to the law relating to homosexual acts, that I have set out above the history of those provisions. 119In 2003, the then Attorney-General, Mr Debus, introduced into the Legislative Assembly the Crimes Amendment (Sexual Offences) Bill 2003 ("The Bill"). The long title of the Bill was: "An Act to amend the Crimes Act 1900 to provide for the equal treatment of sexual offences against males and females and to increase the penalties for sexual offences against children; and for other purposes" 120The amended version of s 73 that was proposed in the Bill was in the following terms: "73.Sexual intercourse by teacher (1)Any teacher who has sexual intercourse with a pupil of the teacher who is of or above the age of 16 years and under the age of 17 years is liable to imprisonment for 8 years. (2)Any person who attempts to commit an offence under sub-section (1) is liable to the penalty provided for the commission of the offence. (3)A teacher does not commit an offence under this section if the teacher and the pupil to whom the charge relates were, at the time of the offences alleged to have been committed, married to each other." This proposed provision retained the age of consent (within the specified relationships) as 17; and it removed the relationship of father and daughter, and stepfather and stepdaughter. That was because it was proposed to deal with those relationships separately, as incest: see cl 15 of the Bill, proposing a new s 78A. Moreover, it applied equally to males and females, whether as teacher or pupil. That reflected the overriding purpose of the Bill. 121The Parliamentary Debates with respect to the Bill make interesting reading. However, it seems that the amendment to s 73 proposed was almost incidental. An Explanatory Note that accompanied the Bill contained the following: "Overview of Bill The object of this Bill is to amend and repeal some provisions of the Crimes Act 1900 ... to provide for the equal treatment of sexual offences irrespective of whether the victim or the perpetrator is male or female. In particular, the Bill repeals certain provisions that apply solely to a male homosexual act. The result will be that, in the future, certain types of sexual offences by any person, whether male or female, against any other person, whether male or female, will be dealt with on the same bases including as to the age of the victim, the defences available to the accused and the penalties for the offence. The age of consent for all persons will be 16 years." 122The purpose of the Bill was, as explained in the Second Reading Speech delivered by Mr Debus: "... to provide for the equal treatment of sexual offences irrespective of whether the victim or the perpetrator is male or female. The Crimes Act is presently discriminatory in that it provides different penalties for sexual offences depending on whether the perpetrator and victim are male or female. The Act is also discriminatory in that it provides different ages of consent for heterosexual and homosexual intercourse. The bill removes this discrimination and ensures equal treatment before the law. The bill rationalises the age of consent in New South Wales to 16 years of age for all persons irrespective of gender or sexual orientation. ..." (Parliamentary Debates (Hansard) NSW Legislative Assembly, 7 May 2003, p 374) (italics added) 123Put simply, the purpose of the Bill, and its principal focus, was to equalise the age of consent with respect to males and females by removing the prohibition on homosexual intercourse between males between the age of 16 and 18. That was a highly controversial proposal and gave rise to extensive debate in both Houses of the NSW Parliament. In those circumstances, it is hardly surprising that the proposal to amend s 73 attracted little attention. The Explanatory Note contained little with respect to the proposed s 73, being limited to this: "Schedule 1[12] recasts sections 73-75 of the Principal Act (which make it an offence for a male teacher or parent to have carnal knowledge of a female pupil or child under 17 years of age). The revised offence will apply to both males and females. The proposed offence will not apply if the persons concerned are married to each other. References to parents are omitted and dealt with in the revised incest offence - see Schedule 1[15]." 124What was contained in the Explanatory Note was echoed by the Attorney-General in the Second Reading Speech. With respect to s 73, he said: "The [B]ill also removes the offence of carnal knowledge by a male teacher, parent or stepparent under s 73 of the Act. The provision is replaced with the offence of sexual intercourse by a teacher. The revised offence will apply to both male and female perpetrators and complainants. References to parent and stepparent have been removed as they are adequately dealt with in the revised incest provision. The revised incest provision applies to any person who has sexual intercourse with a close family member of or above the age of 16 years. The Act presently only criminalises behaviour defined as carnal knowledge, within the family, committed by a male against a female or allowed by a female to be committed against her by a male." 125In other words, the purpose - and, it seems, the principal purpose - of the then proposed amendment to s 73 was also to equalise the law so that it applied in the same way to both males and females. The section, if amended as proposed, would have been limited to sexual intercourse between a teacher (of either gender) and a pupil (of either gender) who was over 16 years and under 17 years. The reference to "father" and "step-father" in the pre-2003 s 73 were, as the Attorney-General explained, to be removed because offences of that kind were dealt with in provisions concerning incest, in what became s 78A. Those proposals also removed differentiation based on gender in respect of incest offences. 126How, then, did s 73 come to be in its present form (which, as I have shown, is not the form in which it was presented to Parliament in the Bill)? The answer to that question is to be found in the speech in the Legislative Council of the Honourable Tony Burke. On 22 May 2003 Mr Burke said: " ... immediately after I conclude my speech I will circulate an amendment. One concern that was continually raised was the issue of predatory behaviour, which I have already referred to. One argument that arose immediately ... is that predatory behaviour against 16 year olds and 17 year olds does not apply only in homosexual relationships; it applies also in heterosexual relationships. I do not consider that to be an argument for saying that we do not need to do anything. I see it as an argument for asking, 'where is this bill deficient in the context of predatory behaviour?' I read the Attorney-General's second reading speech in the other House. In that speech the Attorney-General referred to the fact that it would be an aggravated offence for people under the age of 16 if the older person had authority over the younger person. Immediately I thought that if the phrase 'under the authority of' is used in the second reading speech it would be easy to craft an amendment that would adopt the same principle and to apply it to the legislation. ... My amendment deals with the current provision relating to persons in positions of authority, which refers only to teachers. ... Clearly, teachers are not the only persons in positions of authority. ... My amendment will not touch the teacher provision - although I am happy to consider forms of words to remodel that provision - but will expand the definition of predatory conduct against a 16 year old or 17 year old to any person who is in authority over that teenager. ... "(Parliamentary Debates (Hansard), Legislative Council, 22 May 2003, p 1005) 127The reference in the second extracted paragraph above was a reference to what Mr Debus had said in the Second Reading Speech about cl 9 of the Bill, proposing substantial amendment to s 66C of the Crimes Act, which then created an offence of sexual intercourse with a person between 10 and 16 years (the descendent of s 71), and an aggravated form of the offence where the person was, either generally or at the time of the sexual intercourse only, under the authority of the person accused. The Bill proposed one offence of sexual intercourse with a person between 10 and 14, and another of sexual intercourse with a person between 14 and 16. In each case, an aggravated form of the offence was to be created; circumstances of aggravation included that the alleged victim was, either generally or at the time of the commission of the offence, under the authority of the alleged offender. The outer age limit was to remain at 16. 128Mr Burke also referred to and quoted from the Final Report of the Royal Commission into the New South Wales Police Service ("the Royal Commission"), Vol V: The Paedophile Inquiry, August 1997. At 14.43, the Royal Commissioner invited consideration of: "creating an offence in relation to an extended group of persons standing in special relationships (cf ss 73 and 78A [of the Crimes Act]) as specified in paragraph 14.40 for which the relevant age would increase (17 years under s 73) to 18 years (as is currently the case with s 78N), to which the defence of consent but honest and reasonable mistake would not apply ..." 129At 14.40, in the context of considering a defence of "mistaken but reasonable belief as to consent" the Commissioner referred to "persons standing in a 'position of trust'." He reported: "It would define such persons to include parents, step-parents, foster parents, guardians, custodians, school teachers, religious advisers, health professionals, or any other person providing instruction or services to, or having the care or supervision of or authority over the child, and not being married to that child ..." 130Much of this found its way into the speech subsequently made by Mr Burke when, on 27 May 2003, he formally moved the amendment that he had foreshadowed five days earlier. The amendment he proposed was identical with s 73 as it was ultimately enacted. Having proposed the amendment, he said: "The amendment does a number of things. First, it corrects the anomaly with respect to stepparents. Second, it extends the existing provision that relates specifically to teachers and students who are 16 years of age to a penalty of 8 years and 4 years for 17 year old students. Third, the amendment introduces a number of relationships other than teacher [sic] where there is a similar power relationship and power imbalance. These relationships include those between custodial officers and inmates, people providing religious, sporting, musical or other instruction and their pupils, and the relationship between a health professional and a patient. An offence with respect to a parent is not in the amendment because parents are covered in the provisions relating to incest. ..."(Parliamentary Debate (Hansard), Legislative Council, 27 May 2003, p 1145.) (italics added) 131The Minister who represented the Attorney-General in the Legislative Council, the Hon Carmel Tebbutt, accepted the amendment. That then became the proposal, and it was enacted as the current s 73. 132Just what was the "anomaly with respect to stepparents" to which Mr Burke referred cannot be ascertained with certainty from the Debates. It may be that reference to Miller was contained in some briefing papers that were circulated, but which have not been yielded up by my research. It is a reasonable, though perhaps not certain, inference that the "anomaly" to which Mr Burke referred was that exposed by Miller. Whether or not that was the anomaly which Mr Burke had in mind, it is and remains an anomaly. While seeking by the introduction of the Bill to remove one invidious anomaly (discriminating, in, specifically, the age of consent on the ground of gender), Parliament has, if the appellant's argument is correct, and whether intentionally or otherwise, perpetuated an equally invidious discrimination. That is discrimination against certain young people on the ground of the marital status of their parents. A child of 16 to 18 whose parent is lawfully married to the perpetrator of sexual abuse, even if consensual, or even if, on prosecution, the Crown could not prove absence of consent, has the protection of s 73. A child whose parent lives in a de facto relationship with that person does not. 133Miller has stated the law in this respect since 2001. (It was never suggested in this Court or in the District Court, that Miller was other than correctly decided). A simple amendment, defining "stepparent" to include a de facto partner of a parent would have cured the anomaly. That was not done. Even when the relevant sections of the Crimes Act were under active review in 2003, the opportunity was not taken to make the correction. In this respect the Parliament has been let down badly by its criminal law advisers. 134In the circumstances outlined above, it seems to me to be an inevitable conclusion that Mr Burke, in proposing the amendment, intended to achieve three purposes. One was to extend the protection (previously afforded by s 73 only to females, and then only up to the age of 17) to male and female children up to the age of 18; this he sought to do by subs (2). A second purpose was to extend the reach of s 73 to a wider range of persons in authority over children up to that age; this he sought to do by introducing the notion of "special care", as defined in subs (3), and adopting the report of the Royal Commission. A third purpose, in my opinion, was to overcome the "anomaly" exposed by Miller; concerning parents in de facto relationships; this he sought to do by the introduction of the word "foster parent" into the categories of "special care relationships". Moreover, I would infer that Parliament, in accepting Mr Burke's amendment, and passing s 73 in the form proposed by him, adopted his purposes. 135Mr Burke's references to "the anomaly concerning stepchildren" is evidence from which it may be inferred that he was aware of the decision in Miller. It is inconceivable that he intended that the protection of s 73 would be extended to the child of a parent who was lawfully married to a person not the child's natural parent, but withhold it from the child, one of whose natural parents cohabited, without lawful marriage, with another person who assumed the role of (alternative) parent. 136It is of interest that the Report of the Royal Commission (1997) predates the decision in Miller. That, in my opinion, explains why no proposal was made by the Royal Commission to include in its catalogue of persons in a "position of trust" de facto spouses of parents of children. The anomaly later exposed in Miller had not then been discovered. 137Plainly, the first two purposes of Mr Burke were achieved. The question for present determination is whether the language used achieves the third purpose. That calls for consideration of some principles of statutory construction. In what follows I have drawn heavily upon the discussion in Chapter 2 (especially paras 2.19 - 2.36) of D C Pearce & R S Geddes: Statutory Interpretation in Australia, 6th ed (2006) As is there set out, two approaches to statutory interpretation have emerged: the literal approach, and the purposive approach. The literal approach depends upon reliance on the natural and ordinary meaning of the words used in the statute under consideration. (I have relied upon the 6th edition in preference to the current 7th edition because the latter contains a less expansive analysis, while not abandoning that contained in the former.) 138Recourse may first be had to dictionary definitions. These are both plentiful, and surprisingly varied. The following definitions appear in the various identified dictionaries:

Amendments 04 May 2012 - In line 4, substitute the words "... the term 'step-parent' for 'foster-parent'." for the words "the term 'foster-parent' for 'step-parent'." Amended paragraphs: 5 07 May 2012 - Reverse amendment made 04.05.12. Amended paragraphs: 5 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: 07 May 2012