R v Miller [2001] NSWCCA 209 | Case summary

R v Miller [2001] NSWCCA 209 | Case summary | Zoe

[8]

1 GILES JA: The appellant was charged on an indictment containing two counts. The first was that between 1 June 1998 and 20 June 1998 he had sexual intercourse with JW without her consent and knowing that she was not consenting. The second was that between the same dates he "being a step-father did unlawfully and carnally know [JW] … she being then between the age of 16 and 17 years and his step-daughter". 2 The first count was laid under s 61I of the Crimes Act 1900 ("the Act"). The second count was laid under s 73 of the Act, which provides - "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 step-daughter, shall be liable to imprisonment for 8 years." 3 On 12 July 2000 the appellant entered a plea of not guilty to the first count and a plea of guilty to the second count. The Crown accepted the plea of guilty in full discharge of the indictment. The matter was adjourned to a later date for sentence. It came before Freeman DCJ on 20 November 2000. 4 The Crown tendered an agreed statement of facts. The statement of facts began - "In November of 1997 the accused and the victims [sic] mother began to co-habit at [an address] where the victim also lived. The relationship between the victim and the accused was a one [sic] of father figure though little control was exercised by the accused, control being exercised in the main by the victim's mother … ". After an account of an occasion of sexual intercourse "sometime in June 1998", it was said that "some weeks later the accused and the victim's mother were married". 5 Counsel for the appellant raised for his Honour's consideration whether on these facts there was the relationship of step-father and step-daughter necessary for the offence. It was indicated that, if a plea of guilty to the second count in the indictment was not available, there would be an issue as to consent on the first count. The appellant maintained his plea of guilty and the Crown remained willing to accept the plea in full discharge of the indictment, but both counsel for the appellant and the Crown indicated uncertainty as to the availability of the plea. 6 The appellant gave evidence. He agreed with the proposition that the mother of JW was his "de facto wife" at the time of the alleged offence, and said that he had been "in that relationship with her" for about seven or eight months. He said that he and the mother of JW were married on 20 June 1998, and that they separated in December 1998 and were subsequently divorced. 7 It is apparent that the question of the relationship of step-father and step-daughter troubled his Honour, because he said that he had "better think about this plea". The Crown then sought an adjournment in order to give further thought to the question, to which the appellant consented. The matter was again adjourned. 8 On 14 December 2000 the Crown applied to withdraw its acceptance of the plea of guilty, submitting that the plea should be rejected because marriage between the appellant and the mother of JW was necessary for the relationship of step-father and step-daughter. The appellant opposed the application. Neither counsel for the appellant nor the Crown was able to refer his Honour to clear authority, although there was reference to R v Dawson (1927) 27 SR 78, and the submissions were not extensive. His Honour gave a judgment in which he granted leave to withdraw the Crown's acceptance of the plea. He held that he could "only construe stepfather as being a person linked by marriage with the victim's mother", while saying that the question was "clearly an open one" and that he would grant a certificate to the appellant in order that he could have it decided. 9 In due course his Honour certified, as contemplated by s 5F(3)(b) of the Criminal Appeal Act 1912 ("the Appeal Act"), that his judgment was a proper one for determination on appeal, saying that there was - " … an issue of law as to whether the term 'stepfather' means only a person who is married to the mother of the complainant child in question or, whether the term 'stepfather' includes also a person who lives in a relationship of de facto marriage with the mother of that child." 10 On 9 January 2001 the appellant appealed against his Honour's judgment pursuant to s 5F(3) of the Appeal Act. He stated as the grounds of appeal - "1. That the term 'stepfather' under section 73 of the Crimes Act 1900 is not restricted to a male offender who is married to the complainant's mother at the time of the commission of the offence but can include a male offender who is the de-facto husband of the complainant's mother living in the same household as the complainant and her mother at the time of the commission of the offence and assumes the role of father over the complainant.

[13]

Sections 74, 76 and 75 of the Act respectively dealt with assault and attempt, consent, and other prosecution previously part of s 43 of the 1883 Act. Section 75 was in the terms that nothing in s 73 prevented "such schoolmaster, teacher, or father" from being prosecuted for carnal knowledge or attempted carnal knowledge of a girl of or above the age of 10 years. 15 Surrounding provisions in the part of the Act containing s 73, all under the heading "Rape and similar offences" (ss 62-78), were concerned with rape and attempted rape (ss 63-65); procuring carnal knowledge by fraud (s 66); carnal knowledge and attempted carnal knowledge of a girl under the age of 10 years (ss 67-70); carnal knowledge and attempted carnal knowledge of a girl of or above the age of 10 years but under the age of 14 years, and corresponding assault (ss 71, 72); indecent assault of a girl under the age of 10 years (s 77); and indecent assault of a female of or above the age of 14 years (s 78). 16 By s 3 of the Crimes (Girls' Protection) Act 1910 s 73 was amended by adding after "father" the words "or step-father" and after "daughter" the words "or step-daughter"; by s 2 the age of 17 years was substituted for the age of 16 years. Section 75 was correspondingly amended. In the second reading speech it was said (New South Wales Parliamentary Debates (Second Series) Volume 33 p 780) - "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 the offences which are dealt with under sections 64, 69, 70, 71, 72, 73, 74, 77 and 78 of the Crimes Act of 1900; and it is further to extend the protection of that act to step-daughters, as well as to daughters, in certain cases." The extension of protection to step-daughters, relevant only to ss 73 and 75 of the Act, was not otherwise explained. 17 By s 5 of the Crimes (Amendment) Act 1924 ("the 1924 Act") the existing s 73 and a number of the surrounding provisions were omitted and replaced, and some additional provisions were inserted. Of the replacement provisions, s 73 was unchanged from its predecessor. The second reading speech of the Attorney-General in the Legislative Assembly was relevantly uninformative (New South Wales Parliamentary Debates (Second Series) Vol XCII p 1713). In the second reading speech in the Legislative Council it was relevantly said that s 5 was "nothing but a codification" and that "[t]he Girls' Protection Act is being repealed and its sections are being taken into the Crimes Bill" (New South Wales Parliamentary Debates (Second Series ) Vol XCVI p 1254). This was not accurate, but nothing turns on the inaccuracy. 18 The additional provisions inserted by the 1924 Act included ss 78A-78C concerned with offences of incest, for which provision had first been made by the Punishment of Incest Act 1908. The essence of the offences was carnal knowledge between a male and his mother, sister, daughter or grand-daughter "whether in any such case the relationship is of half or full blood, or is or is not traced through lawful wedlock". Section 78D took up a provision of the Punishment of Incest Act, by which a person convicted of incest could be removed from "all authority" over the female and from any guardianship over her, and extended it to conviction for the offence in s 73 of the Act. It provided - "On the conviction of a father or step-father of an offence under section seventy-three or section seventy-four of this Act or of a male person of an offence under section 72A or under section 78A or under section 78B of this Act, the court may divest the offender of all authority over the female with whom the offence has been committed, and if the offender is the guardian of such female, may remove the offender from such guardianship, and in any such case may appoint any person or persons to be the guardian or guardians of such female during her minority, or for any greater or less period."

[20]

The ordinary meaning of 'step-father" and "step-daughter" 27 Dictionary definitions of these words involve marriage between the putative step-father and the mother of the putative step-daughter. As examples, in the Oxford English Dictionary (2nd ed, 1989) step-father is defined as "a man who has married one's mother after one's father's death or divorce", and step-daughter is defined as "a daughter, by a former marriage, of one's husband or wife"; in the Macquarie Dictionary (3rd ed, 1997) step-father is defined as "a man who occupies one's father's place by marriage to one's mother", step-daughter is defined as "a daughter of one's husband or wife by a former marriage", and "step-" is defined as "a prefix indicating connection between members of a family by the remarriage of a parent and not by blood". 28 These meanings have been taken up in, for example, the Family Law Act 1975 (C'th) in its provisions concerning proper parenting of children: the definition of "step-parent" in s 60D is a person who is not a parent of the child, is or has been married to the parent of the child, and treats or at any time during the marriage treated the child as a member of the family formed with the parent. 29 The meanings have also been recognised in the cases as the meaning according to ordinary usage, with marriage between the step-parent and the parent of the child a necessary ingredient. 30 In re Cook; ex parte C (1985) 59 ALJR 669 a provision of the Family Law Act, deeming an ex-nuptial child of the husband or the wife to be a child of the marriage if ordinarily a member of the household of the husband and wife at the relevant time, was held to be invalid because not within the power to make laws with respect to marriage. On the facts, the wife was unmarried at the time of the child's birth and subsequently married the husband. Gibbs CJ and Mason, Wilson, Brennan and Dawson JJ, all of whom considered the provision wholly invalid, evidently did not think this material. Deane J, who dissented, considered that the provision was valid at least where there had been such a marriage, and so discussed the part played by marriage in a step-relationship. 31 His Honour said (at 674) - "It is true that, strictly speaking, an ex-nuptial child of a husband or a wife cannot, without adoption or legitimation, become a child of that or any other marriage. If, however, the natural parent of an ex-nuptial child marries someone other than the child's other natural parent and the child is an infant who ordinarily resides in their matrimonial home, the child has a close and direct connection with that marriage. It is not only that he or she lives in the matrimonial home as a child of one party to the marriage. It is that, as a matter of well-established social custom in this and other countries of the common law world, the child acquires a special familial relationship with the other party to the marriage by reason of the marriage itself. That special relationship is acknowledged, as a matter of ordinary language, by the terms 'stepfather' or 'stepmother' and 'stepson' or 'stepdaughter'. The relationship between step-parent and stepchild is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent." 32 His Honour then cited (also at 674) instances of the law recognising a step-relationship based on the marriage of the step-father with the natural parent as creating rights and obligations. They included - "(v) incest or carnal knowledge (see, eg, Rex v Frith (1914) VLR 658; Crimes Act 1958 (Vic), s 52(1) and (2); Crimes Act 1900 (NSW), ss 73, 74, 77, 78N and 78O)".

[21]

"The nature of the relationship between step-parent and stepchild has been considered in numerous cases in common law jurisdictions. The relationship has been correctly described as a 'quasi parental' one (see, eg Rex v Frith [(1914) VLR 658] at 660. It arises regardless of whether the child was an ex-nuptial child or was the child of a previous marriage: see Lineham v Lineham [(1974) 1 NZLR 686]; Rex v Frith . The direct connection between the relationship of step-parent and stepchild and the marriage of which it arises has often been stressed. Thus it has been recognised that the relationship will only arise if the marriage of parent and putative step-parent was a valid one (see Wilkinson v Joughin (1866) LR 2 Eq Cas 319 at 322) and it has been held that the relationship will only persist while the marriage, by reason of which it arises, remains undissolved ( Mander v O'Toole [(1948) NZLR 909] at 912-913), at least if there are no children born of the marriage: cf. 2A Corpus Juris Secundum , p 514. If the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and stepchild will continue: see, eg. McGaughey v Grand Lodge AOUW of State of Minnesota (1921) 180 NW 1001; Brotherhood of Locomotive Firemen and Enginemen v Hogan [(1934) 5 Fed Supp 598] at 603-604. It has been said that the word 'stepchild' should, in a particular statutory context, be interpreted as 'referring to the acquisition of a new relationship by a child when its parent remarries' and 'that the child acquires this new relationship towards the person the parent remarries': see per Lord Sorn, Commissioners of Inland Revenue v A B Russell (1955) 36 TC 83 at 86." 34 In Wilkinson v Joughin (1866) LR 2 Eq Cas 319, to which his Honour referred, the testator bequeathed property to "my step-daughter Sarah Ward". The marriage between the testator and the mother of the child was void, because the mother was married to another man. The bequest was upheld on the ground that, although the testator had been defrauded by the mother of the child and "induced to believe that the child was his step-daughter" (at 326), there was nonetheless a sufficient description of the child as the person intended to be benefited. The child was not the testator's step-daughter, but was identified by name. 35 In Mander v O'Toole (1948) NZLR 909, to which his Honour also referred, the question was whether the son by a previous marriage of the deceased's former wife, they having been divorced, was a "step-son" of the deceased and so could claim under the Deaths by Accident Compensation Act 1908 (NZ). "Step-son" was not defined. Finlay J held that it extended only to children "who possessed that character by virtue of a subsisting marriage when the cause of action sought to be enforced under the Act arose" (at 912-3). 36 In re Burt (1988) 1 Qd R 23 the question was whether a step-relationship subsisted after the termination of the marriage which created it for the purposes of an application allowed under the Succession Act 1867-1977 (Qld) to a step-child of the testatrix. It was held that it did not. "Step-child" was defined in relation to any person as a child by a former marriage of that person's husband or wife, and marriage at some time was therefore necessary: the question turned on the termination of the marriage. But the reasons included consideration of the ordinary meaning of the word. 37 McPherson J said (at 26-7) - "Apart from these considerations of strict statutory interpretation, there is also the natural meaning of the word 'stepchild'. The New Webster Encyclopaedic Dictionary (1980 ed) gives as the meaning of the word 'The child of a husband or wife by a former husband or wife'. That may be said to support the contention of the respondents on this appeal; but it differs from an earlier definition in Webster's New International Dictionary , which was: 'A child of one's wife or husband by a former marriage'. See Brotherhood of Locomotive Firemen and Enginemen v Hogan 5 Fed Supp 598 (1934), at 600. The most precise correspondence with the definition of 'stepchild' adopted by the Queensland amendment in 1943 tends to suggest that the draftsman of that amendment used the earlier Webster as his source. In Hogan's case, which was referred to by Dean J in Re Cook (1985) 59 ALJR 669, 674, Nordbye J, undertook an extensive survey of decisions on the meaning of the word 'stepchild' in various American insurance policies and in statutes in which relationship by 'affinity' is a criterion. His Honour appears to have accepted, as correctly reflecting the effect of the majority of those decisions, the proposition then stated in 2 Corpus Juris 379 that 'death of the spouse terminates the relationship by affinity … ". The basis of the underlying reasoning is that a step-relationship is one created by marriage, which therefore comes to an end when the marriage that brought [sic] into existence is terminated by the [sic] death or a fortiori by divorce." 38 His Honour then considered Mander v O'Toole, and said (at 27-8) that it and the United States authorities showed that "there was an ordinary and natural meaning of the word 'stepchild' and that the relationship it connotes is ordinarily regarded as coming to an end upon termination of the marriage that gave rise to it". 39 Andrews CJ expressed broad agreement with the reasons of McPherson and Thomas JJ. Thomas J's reasons were to the same effect as those of McPherson J, and included (at 32) that the "direct connection between the relationship of step-parent and stepchild and the marriage from which is [sic: it] arises" was recognised in re Cook; ex parte C and the United States cases. 40 Closer to the present case, in R v Umanski (1961) VR 242 the applicant had been convicted of incest, an offence under s 52 of the Crimes Act 1958 (Vic) which relevantly provided - "52(1) Whosoever unlawfully and carnally knows a woman or girl of or above the age of ten years such woman or girl being to his knowledge his daughter or other lineal descendant or his step-daughter shall be guilty of felony …". One of the issues was whether the Crown had proved the step-relationship. The complainant was the daughter by another man of a woman whom the applicant had subsequently married. 41 It was said (at 245, per Herring CJ, Dean and Adam JJ) - "It was therefore necessary to prove that the girl was his step-daughter. It was proved that she was the daughter of Mrs Umanski and that the applicant knew this. But it was also necessary for the Crown to prove that applicant and Mrs Umanski had been lawfully married, for unless this was so, then the girl was not the applicant's step-daughter." It was held that the marriage had not been proved, and the applicant's conviction was quashed. 42 There is thus substantial support for the conclusion to which Freeman DCJ came. Marriage between the step-parent and the parent of the child is the basis of the step-relationship, and this is underlined by the decisions that the step-relationship comes to an end on the termination of the marriage. In the present case it is not necessary to consider whether or not a common law marriage would be sufficient, as a common law marriage is more than a de facto relationship and the appellant disclaimed reliance on the existence of a common law marriage prior to the marriage of 20 June 1998. 43 R v Dawson does not stand to the contrary of this necessity for marriage. In accord with R v Frith (1914) VLR 658, cited by Deane J in re Cook; ex parte C, it was there held that a step-daughter in s 73 of the Act included an illegitimate daughter of the offender's wife, and marriage between the offender and the wife was not in question. But the appellant sought to gain support from R v Frith and R v Dawson in another way.

[22]

The appellant's argument 44 Perhaps unusually for an alleged offender, the appellant argued that s 73 should be given an operation wider than that flowing from this ordinary meaning of "step-father" and "step-daughter", an operation as expressed in the grounds of appeal. As has been seen, the grounds of appeal in fact put forward more than one meaning, and the meanings did not involve only the existence of a de facto marriage. 45 Emphasising that s 73 is not confined to familial relationships, but extends to the relationship of school master or other teacher and pupil, the appellant submitted that it was intended to provide a distinct and more serious offence of carnal knowledge where the offender was in a position of authority or control over the child. Section 73 was particularly contrasted with ss 78A-78C of the Act concerned with incest. In R v Geddeson (1906) 25 NZLR 323 it was held that a stepfather was not the "father" of the child within an incest provision because there was no blood relationship, and the appellant said that in lieu of a blood relationship s 73 looked to a relationship of authority or control. 46 It was here that the appellant sought to gain support from R v Frith and R v Dawson. 47 In the latter case Street CJ said (at 80) - "Obviously the object is to protect young girls against offences upon them by persons who are in a position of authority or control over them. Which method of interpretation will be more consonant with the intention of the legislature? The narrow view that, in speaking of step-daughters, the legislature referred only to legitimate daughters of a woman who afterwards married another man, or the view that the intention was to impose a punishment on a man who had carnal knowledge with the daughter whether legitimate or illegitimate, of a woman whom he had married? The mischief is the same in the one case as in the other, and in my opinion we should be putting too limited an interpretation upon the section if we were to hold that it was limited to daughters or step-daughters born in lawful wedlock." 48 The Chief Justice then referred to R v Frith, in which a similar provision was seen as directed to the abuse of authority incidental to parental or quasi parental relations, whether or not founded in legitimacy. 49 The appellant sought to gain similar support from cases not concerned with s 73 of the Act. In R v Reid (1901) 3 WALR 109 "sister" in an incest provision was held to include a half-sister, the wider meaning being adopted because it was considered that the legislature intended "to prevent immorality of such a serious nature amongst families" (per Onslow CJ at 110) or "to endeavour to preserve the purity of family life" (per Hensman J at 110-1). In R v Campbell (1968) Tas SR 38 it was held that "daughter" in an incest provision included an adopted daughter: the decision turned on the effect of the Adoption of Children Act 1920 (Tas), but it was noted (at 40-1) that the result was "consonant with the nature of the crime of incest and the purposes for which the law punishes it" because incest was just as disruptive of the proper relationship between father and adopted child as when the child was truly the father's child.

[23]

Discussion 50 I do not find the last-mentioned cases of assistance, save so far as they illustrate regard to the social setting and legislative purpose of a provision when addressing its meaning. Nor does it seem to me that the appellant's submission gains support from his reliance on R v Frith and R v Dawson. 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 in 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, step-father and step-daughter. It has not used the criterion of authority and control. An offender who is (say) the father of the child will be caught although not in fact having authority and control over the child, and an offender who is not a teacher, the father or a step-father of the child will not be caught although in fact having authority and control over the child. 52 The relationships stated are relatively precise and readily understood criteria. The meanings of the words used for the relationships can not be put aside. In the case of the step-relationship, the words used by the legislature can not be replaced by a complex criterion of de facto relationship between the offender and the child's mother plus assumption of roles of father and daughter (as the first and second grounds of appeal suggest), still less abandoned in favour of an even less precise criterion of assumption of roles of husband and wife and existence of authority and control (as the third ground of appeal suggests). Nor can an underlying purpose seen in s 73 supplant the meanings of the words used if there be accepted meanings of those words. 53 In using the words "step-father" and "step-daughter" the legislature has used words with accepted meanings which can be applied with certainty. The appellant's arguments would substitute for those meanings the imprecision and uncertainty of the existence of a de facto relationship and the existence of authority and control by the offender over the child. A de facto relationship between the offender and the mother of the child does not as a matter of law bring any authority of the former over the latter, and as a matter of fact may or may not do so: the possibility of authority and control does not make a step-relationship. An inquiry into actual authority and control would depart from the precision of the stated criterion. (In the present case this is well illustrated: what is to be made of the agreement in the statement of facts that "the relationship between the victim and the accused was one of father figure though little control was exercised by the accused … "?) 54 It must be remembered that s 73 of the Act provides for a criminal offence. While the rule that statutes creating offences are to be strictly construed (see for example Tuck & Sons v Priester (1887) QBD 629 at 638) is perhaps not now applied with the rigour of earlier days, it remains that ambiguity or doubt should be resolved in favour of the subject: Beckwith v R (1976) 135 CLR 569 at 576; Waugh v Kippen (1986) 160 CLR 156 at 164. As was affirmed by Deane, Dawson and Gaudron JJ in Murphy v Farmer (1988) 165 CLR 19 at 28, citing from Dickenson v Fletcher (1873) LR 9 CP 1 at 7, "[t]hose who contend that [a] penalty must be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances". It is not consonant with this so to interpret s 73 that it would have a wide and uncertain reach in place of that given by taking its words in their accepted meanings; nor should a purposive construction be given to it if that would depart from the accepted meanings (see R v Arnold (1992) 65 A Crim R 337 at 338, 346). 55 As has been seen, the criterion of a step-relationship was brought into s 73 of the Act in 1910, was taken up in 1924 in s 78D, and was again employed in 1984 in s 78N. It was first used at a time before de facto relationships had received the recognition in the law which they came to have through, for example, the De Facto Relationships Act 1984, and when there were the accepted meanings of "step-father" and "step-daughter" to which I have referred. The criterion was retained when offences with the different criterion of being under the authority of the offender were introduced in 1985, according to the second reading speech specifically in order to provide for harsher penalties where the offender was in a position of care, supervision or authority over the child and contemplating that a family friend could be in that position. Section 78D recognised that the offender might have authority over the child, but s 73 of the Act was confined by the statement of relationships which would normally bring authority, and the relevant relationship had to be found. If it had been intended in 1910 that a de facto relationship by which there was authority and control should be the criterion, rather than one of the stated relationships, that could have been said, as something perhaps wider than that was said in 1985. 56 The legislature has not chosen to extent the reach of s 73 of the Act, as has occurred elsewhere. For example, the Western Australian incest provisions were extended to offences against de facto children by a definition which includes "a step-child of the offender or a child or step-child of a person … who lives with the offender as if they were married" (Criminal Code s 329, inserted by Acts Amendment (Sexual Offences) Act 1992 (WA)). The same has occurred in the Australian Capital Territory through a definition whereby "step-child" in relation to a person means a person in relation to whom that person stands in loco parentis (Crimes Act 1900 s 92 L(7), inserted by the Crimes (Amendment) Ordinance (No 5) 1985). Where the legislature has not gone, this Court should not venture 57 There is, in my opinion, good reason why, in the absence of specific legislative attention, the ordinary meanings of "step-father" and "step-daughter" should not be expanded by treating a de facto relationship between the offender and the wife of the child as sufficient for a step-relationship. Even without additional regard to the roles of the offender and the child, or the roles of the offender and the mother of the child plus the existence of authority and control, as the grounds of appeal suggest, a de facto relationship is an uncertain state. 58 In R v Brown (CCA, 9 December 1998, unreported) this Court declined to extend a wife's immunity from prosecution as an accessory after the fact to her husband's felony to a de facto wife and the offence of misprision of felony. Relevantly to the present question, the reasons of Hulme J, with whom McInerney and Barr JJ agreed, referred to suggested bases for a wife's immunity, and continued (the apparent corruption after " … but one difference" is in the original) -

[24]

"But whatever the explanation be, the immunity has arisen out of a relationship with attributes significantly different from and additional to those necessarily involved in a de facto relationship. It may be that for many a marriage does not turn out to be 'a voluntary union for life of one man and one woman to the exclusion of all others' - Hyde v Hyde (1866) LR 1 B & D 130 but for many it does and I suspect for virtually all that is the aim. On the other hand, the description 'de facto relationship' covers a myriad situations and commonly involves no commitment beyond convenience. Even in those areas where the law has granted recognition to such a relationship and rights arising out of it, commonly those rights are circumscribed or attended with further conditions. Thus, by virtue of s 17 an application under s 14 of the De Facto Relationships Act can only be made where the relationship has existed for at least two years, or in a limited range of other situations. Where the Evidence Act enables de facto spouses (and married persons) to object to giving evidence, it requires the court to take into account the nature of the relationship involved and the nature and extent of the harm that would be caused if evidence were compelled. We were referred by counsel for the appellant during the course of argument to a book 'Husband and Wife' by John Fraser Queen, (1905 edition). It was pointed out that the English common law recognises marriages effected merely by the consent of the parties thereto without any attendant religious service. However, accepting that that is so, the publication makes it clear that such a marriage still was a radically different institution to that encompassed by the term 'de facto relationship'. I mention but one difference. relationship so created was so significantly different that I see no ground for regarding a de facto relationship as conferring the immunity claimed. While I accept that for some a de facto relationship may involve the same degree of permanence, commitment, support, and most of the other attributes of marriage, such a wide range of relationships is covered by that expression that I can see no justification for departing from one of the essential conditions of the existence of the immunity and extending it to the myriad circumstances embraced by the term 'de facto relationship'; and this whether the expression is understood as defined in, for example, the Evidence or Defacto Relationships Acts or otherwise." 59 These remarks were in a different context, in which the formality of marriage was relevant to the relationship between the husband and the wife, whereas in the present case it is the relationship between the offender and the child which is in question. Nonetheless they are a reminder of valid concerns in making a de facto relationship the source of criminal liability. The short-lived association between the appellant and the mother of the child in the present case, albeit arriving at a brief marriage, illustrates the uncertainty of the state. 60 In R v G (1997) 91 A Crim R 590 it was held that "guardian" in the then s 190 of the Criminal Code, under which it was an offence for any person "who, being a guardian, employer, teacher, or school-master of any girl or woman under the age of 17 years" to have carnal knowledge of the girl or woman, referred to a legal guardian, that is, to one who was a guardian at common law or was validly appointed as such by will, deed, or court order, and that a step-father was not a guardian. 61 Franklyn J, with whom Walsh J agreed, referred (at 597-8) to the need for "guardian" to have a clear and unambiguous meaning, free of variables and inconsistencies to which his Honour had earlier referred. The common law meaning was known, and in the absence of a definition in the Criminal Code was to be applied. His Honour said (at 599) that the law did not recognise as a guardian a person who merely assumed a responsibility for the care and protection of an infant, and that it was essential that the identity of a guardian and the fact of his or her guardianship be ascertainable by established principles. The stepfather was not a guardian according to those principles. 62 The reasons of Kennedy J were to similar effect, and his Honour noted (at 592) the general rule that where terms which have acquired a legal meaning are used in a statute, the legislature intended to use them with that meaning unless a contrary intention clearly appeared from the context.

R v Miller

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Judgment (26 paragraphs)

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