R v Perriman [2000] TASSC 108

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Particular classes of statute - Penal - Generally - Retrospective application of penal statutes.

R v Griffiths [1891] 2 QB 145; Waddington v Miah (1974) WLR 683; Rodway v R (1989 - [1990] HCA 19; 1990) 169 CLR 515, considered.

Richardson v R [1978] Tas SR 178, R v Cuerrier (1998) 127 CCC 1, referred to.

Respondent: Office of the Director of Public Prosecutions

Judgment Number: [2000] TASSC 108

1 The accused is charged with 13 counts of unlawful sexual intercourse with a young person contrary to the Criminal Code, s124 ("the Code") and three counts of indecent assault contrary to the Code, s127. The acts are alleged to have occurred between 1976 and 1980 and involved a male youth under the age of 17 years. The acts of sexual intercourse are said to involve oral penetration by the penis by and against the complainant and penetration of the accused by the complainant.

2 The relevant provisions of the Code as of the date of the alleged crimes were:

"124 - (1) Any person who has unlawful carnal knowledge of a girl under the age of eighteen years is guilty of a crime.

(2) In any case in which the accused person is under the age of twenty-one years, it is a defence to a charge under this section to prove that he in fact believed on reasonable grounds that the girl was over the age of eighteen years."

127 - (1) Any person who unlawfully and indecently assaults a female is guilty of a crime.

(2) In any case in which it is provided that the consent of a girl to the act charged shall be a defence to a charge under section one hundred and twenty-four, the like consent to an act charged under this section given under the like conditions as to the age of the parties shall be a defence to a charge under this section.

(3) Except as hereinbefore provided, the consent of a person under eighteen years of age shall be no defence to a charge under this section unless the accused is of the same age as, or younger than, such person."

3 A person committing indecency with a male youth could not have been charged with either crime. Instead, the conduct would have been unlawful by reason of the Code, s123, which provided:

"Any male person who, whether in public or private, commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime.",

whilst an act of anal penetration was subject to the provisions of the Code, s122, which relevantly stated:

(a) has carnal knowledge of any person against the order of nature;

(c) consents to a male person having carnal knowledge of him or her against the order of nature,

4 In 1987, Parliament amended s124 by repealing the old provisions and replacing them with:

(1) Any person who has unlawful sexual intercourse with another person who is under the age of 17 years is guilty of a crime.

Sexual intercourse with a young person under the age of 17 years.

(2) It is a defence to a charge under this section to prove that the accused person believed on reasonable grounds that the other person was of or above the age of 17 years."

5 In addition, the amending legislation provided a definition of sexual intercourse as meaning:

"the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration;"

6 Section 127 was amended by substituting the word "another person" for "female" and "girl".

7 In accordance with the principles of statutory interpretation applicable to the retroactive application of penal statutes (R v Griffiths [1891] 2 QB 145, Waddington v Miah (1974) WLR 683) the amendments would not have created criminal liability for past conduct. The scheme adopted by Parliament retained the prohibition of sexual contact between males and did not require retroactive operation of the legislation. That such was the intention of Parliament can be seen by the speech of the Attorney-General when, in introducing the legislation, he stated:

"We have a problem with this question of pre-1987 sexual assaults on males that we do not believe have been adequately covered by the amendments provided by the member. It has to be borne in mind the defence provisions in 124 and 127 were widened in the 1987 amendments. There may well be cases where persons have been convicted under these sections prior to 1987, where the person would now have a defence applied retrospectively where none previously existed. This may give rise to move for acquittal by people convicted of offences in the past. That is the advice that I have received.

As a matter of policy, retrospective application of penal provisions should be avoided where it possibly can be avoided. Whilst I acknowledge that on this occasion conduct which is an offence under the retrospective application of 124 and 127 would also be an offence under 122(a) and (c) and 123, retrospective application of penal provisions can cause many unintended legal problems and I have alluded to those issues in the past. I do not want to repeat them in this particular debate today, but the strong advice I have received is that 122(a) and (c) and 123 must be retained to provide effective protection for young people who have been subjected to sexual assaults pre-1987.

As I say, if these provisions are repealed, there will be no sections in the Criminal Code which will properly protect young people for pre-1987 sexual assaults. As members know, it is a fact that sexual abuse may go undetected, unreported for a considerable period of time, and there are many recent examples of that. There may well be in the future, reports of pre-1987 sexual assaults on boys for which prosecutions will need to be launched. The sexual assault laws introduced in 1987 do not have retrospective effect, and so do not apply to those assaults pre 1987. Consequently, sections 122(a) and (c) and, as I said before, 123, must be retained."

The accused, as of the date of the amendments, would have remained susceptible to the application of the Code, ss122, 123.

8 In 1997, Parliament again amended the Code by Act 12 of 1997, repealing the relevant portions of s122 and all of s123. The effect of the amendment and repeal was governed by the Code, s7(1), which states:

"7 (1) No person shall be punished as for a crime if at the time of his trial the act or omission with which he is charged no longer constitutes a crime."

Thus, notwithstanding that the conduct alleged against the accused was unlawful at the time of commission, he could not be held criminally responsible for such conduct as of the date of trial.

9 The Act 12 of 1997 also amended the provisions of ss124, 127 in the following manner:

(4) This section is to be taken to be in force from 4 April 1924.

(5) Subsection (3) is not a defence to a charge under this section in the case of anal sexual intercourse.

(6) Nothing in subsection (4) impugns or otherwise affects the lawfulness of a conviction arising from conduct that occurred before the commencement of the Criminal Code Amendment (Sexual Offences) Act 1987.

(4) This section is to be taken to be in force from 4 April 1924.

(5) Nothing in subsection (4) impugns or otherwise affects the lawfulness of a conviction arising from conduct that occurred before the commencement of the Criminal Code Amendment (Sexual Offences) Act 1987."

10 The amendments of 1987 and 1997 are substantive rather than procedural (Rodway v R (1989 - [1990] HCA 19; 1990) 169 CLR 515). The effect of the 1997 amendments was to make lawful, sexual conduct between males who were within defined age categories identical to those which governed heterosexual activity. The effects of ss124(6), 127(5) was to preserve the validity of convictions arising from previous misconduct. Those enactments show an acceptance by Parliament that the legislation had a retroactive effect which, but for the amendments, might have led to challenge existing convictions. In turn, they permit a like interpretation to the contemporaneous provisions of ss124(4), 127(4). Those provisions render unlawful any conduct proscribed by the two sections committed after April 1924. That conduct encompasses conduct previously unlawful by virtue of the repealed ss122, 123. The retroactive effect has not been to create new forms of unlawful conduct but to encapsulate existing proscribed behaviour into a single provision irrespective of gender.

11 The argument advanced by the accused concentrated on the replacement of the term "carnal knowledge" by a broad definition of "sexual intercourse". It is said that since oral penetration did not constitute carnal knowledge as of the date of the alleged conduct (Richardson v R [1978] Tas SR 178, Criminal Code, s1), then the replacement of the term "sexual intercourse" with a wider import could not render the acts of oral penetration as amounting to intercourse.

12 The provisions of the Acts Interpretation Act 1931, s16, do not assist the accused. He possessed no rights or freedom from obligation with respect to sexual contact of the nature alleged in the indictment as of 1976 to 1980. Acts of indecent assault, penetration of the mouth or anus on a young person, male or female, were proscribed. No rights were affected by the repeal of ss122, 123 and their replacement by ss124, 127, (Rodway (supra)).

13 The argument is that whilst s124 is given retrospective effect, the definition "sexual intercourse" which widens the nature of the acts is not so treated by Parliament. In Canada a similar position was advanced by an appellant (on constitutional grounds) in R v Cuerrier (1998) 127 CCC 1. In his majority judgment, L'Hereaux-Dub, stated the general purpose for such amendments in the following terms at 4 - 5:

"... it is important also to appreciate the more general objectives of the 1983 amendments. Public pressure, based on dissatisfaction with the offences of indecent assault and rape, and the legal treatment of these issues, led to the 1983 amendments: C Boyle, Sexual Assault (1984), at pp 27 - 29. The amendments were not restricted to merely reclassifying indecent assault and rape as sexual assault, as McLachlin J implies, but were aimed much more broadly at modernizing and sensitizing the law's approach to sexual offences, which are predominantly perpetrated by men against women. Included in the amendments was a provision abrogating the evidentiary rules relating to the doctrine of recent complaint in sexual assault cases (s275), a provision stating that corroboration of a complainant's testimony is no longer required in such cases in order to secure a conviction (s274), provisions restricting the evidentiary uses of a complainant's sexual history (s276) and sexual reputation (s277), and a provision repealing the marital exemption to sexual assault (s278).

The substantial overhaul that Parliament undertook with the 1983 amendments implies that it was dissatisfied with the traditional approach to sexual offences. This approach had been informed by the common law, as well as previous statutory codifications. In this contest of discontent with the law's historical treatment of victims of sexual offences, and in light of the removal of the words 'false and fraudulent representations as to the nature and quality of the act', it is clear that Parliament intended to move away from the traditional approach to fraud as it relates to consent in sexual assault offences."

14 A similar purpose exists in relation to the 1987 amendments. A range of physical conduct, already prescribed, was included in a single definition. Oral penetration of a young person by the penis had been either an "indecent assault" or an action of gross "indecency" by virtue of the Code, s123. Those acts were named as "sexual intercourse" in order to unify a range of proscribed conduct within the one "term". The definition attached to the substantive amendments effected by the 1987 legislation which, in turn, was expressly stated to be retroactive. There was no need for Parliament to specifically state that the definition was to be retroactive since it had done so in its substantive enactment.

15 It may be that the Criminal Code Act 1924, s8, preserves any defence which the accused might have possessed as of the period 1976 - 1980 (Waddington v Miah (supra)) and if such are raised on his behalf, then separate consideration will be given to any defence so raised. But the defence must be external to the nature of the act alleged and not depend on the change of nomenclature.

16 The submission that there is no case to answer is not accepted. The accused is to make answer to the case for the Crown in relation to each count comprised in the indictment.