"2 Everyone has the right to the protection of the law against such interference or attacks."
78 Section 122 of the Code made sodomy a criminal offence, whilst s 123 punished any male who, whether in public or private, committed an indecent assault upon or other act of gross indecency with another male. The High Court dismissed the application of the State of Tasmania to set aside the writ, holding that the applicants had standing to seek the declarations although there was no pending or likely prosecution. It was not sought to be argued that the Commonwealth legislation had no possible application to the offences in question. It was a necessary assumption of the decision that it did so. Section 81 of the Act applies even if the relevant acts occurred in private. The Commonwealth Act does not directly make the relevant behaviour lawful. It prohibits the privacy of sexual conduct involving only consenting adults from being subjected to arbitrary interference.
79 Because the possibility of a trial for conduct falling within the Commonwealth Act arises only if the jury might be invited to convict the respondent even if it had a reasonable doubt that the alleged indecent assaults occurred prior to December 1980, and both parties submitted to the contrary, the applicability of the Commonwealth Act was not raised in argument before us. There was no occasion, therefore, for notice under s 78B of the Judiciary Act 1903 to be given. Accordingly, it would not be appropriate for me to express more than a tentative view about the application of the Commonwealth Act in the present circumstances. However, because this legislation is relevant apart from its effect under s 109 of the Constitution, it is necessary, in my opinion, to consider the nature and applicability of its provisions.
80 Prima facie, the prohibition or punishment of private sexual conduct involving consenting adults and no other rationally relevant feature demonstrating culpability, for example, incestuous relations, contravenes s 4 of the Commonwealth Act. In so far as s 30 of the Interpretation Act 1987 is concerned, which is the essential foundation for the continuing effect of ss 79 and 81 of the Act, I think that it may well be inconsistent to that extent with the Commonwealth Act. (Sections 8 and 8A of the Acts Interpretation Act 1901 (Cth) are irrelevant to a consideration of any possible continuing liability as they deal only with the effects of repeal of a Commonwealth Act; the Commonwealth Act does not repeal in any sense State legislation: it prevails by virtue of s 109 of the Constitution.) The language of s 4 is particularly apt to a trial concerning the relevant conduct. This is especially so having regard to its obvious remedial purpose. At all events, it is clearly directed to effect the reform it embodies so far as all relevant sexual conduct which might be the subject of proceedings is concerned, whenever that sexual conduct occurred. The Commonwealth Act is not aimed at the conduct of the person but at the exercise by the state of its powers of coercion under the criminal law and prohibits any such action occurring after its commencement. In this case, at least, the preferring of a charge in respect of the relevant conduct and the conduct of a trial would seem to be forbidden, subject to the meaning that should be attributed to "arbitrary". (For reasons that are apparent in this judgment, I consider that the prosecution of sexual behaviour involving adult men that is not criminal if performed by women or heterosexuals is arbitrary in the sense that it expresses mere capricious prejudice.) So viewed, the Commonwealth Act would not be applied retrospectively. However, even if this interpretation might be considered to apply the Act retrospectively, in my opinion, having regard to the explicit and peremptory language of the Commonwealth Act and its manifest purpose, this is immaterial.
81 At the very least, the Commonwealth Act is a most significant matter to be taken into account in determining the content, in law, of the community standard implicit in the element of indecency required to prove an offence under s 81 of the Act.
82 In my view, there is now no distinction, for the purposes of the criminal law, between the concept of indecency as it may be found in heterosexual and homosexual behaviour. That standard must, as it seems to me, apply in the instant trial, if there were to be one, even though the conduct in question here occurred in 1981. It would be strange, to say the least, if the Courts are obliged to apply outdated and offensive notions which have been repudiated because of their conflict with fundamental human rights and the appropriate scope of the criminal law (unless, of course, they are bound to do so by specific and unambiguous legislative mandate) merely because the allegations concerned acts which occurred twenty years ago when (so the argument goes) those notions may have been current. Just as inappropriate would be a direction that invited a jury to consider, not their views of contemporary standards, but their understanding of community standards as they stood in 1981.
83 These considerations, which are both theoretical and practical, persuade me that it is inappropriate to inquire into the character of community standards as they stood in 1980 or 1981. After all, s 81 was repealed in June 1984, only shortly after the events in issue here and the new offence applied only to minors, where the criminal behaviour was required to be grossly, as distinct from simply, indecent. At all events, although community attitudes have no doubt evolved over the ensuing twenty years, I would not accept that they significantly differ from those of the present day. The result is that, rightly interpreted, neither s 81 nor s 89A of the Act applied in 1981 to consensual homosexual relations between adults in private.
84 It follows that the dates in the indictment, so far as they are referred to in counts one, two, four, five, six and seven, are essential elements of the offence since, if the acts alleged occurred when the complainant was an adult, they cannot amount in law to the crime of indecent assault as provided in s 81 of the Act. Accordingly, so far as the appeal concerns the alleged offences under s 81, it must be dismissed. Independently of this ground, if the Commonwealth Act applies in the present circumstances (as I am inclined to think, although do not determine, that it does) a trial of alleged offences under either s 79 or s 81 of the Act cannot proceed in respect of conduct that occurred when the complainant was an adult.
85 It is arguable that the terms of s 78K of the Act, in limiting criminality to "gross indecency" as distinct from indecency simpliciter, indicate a legislative view that some acts of a sexual character, even if committed by a male with a male of sixteen or seventeen years, are not criminal. This would be analogous, so far as those acts were concerned, to the situation affecting females. However, as s 78K is not directly in issue in these proceedings, it is unnecessary to determine this question. For reasons which I consider later, it is my view, however, that the repeal of s 79 and s 81 and the enactment of s 78K and s 79Q in their place is also significant for the disposal of this appeal.
86 If the above interpretation is incorrect and it be accepted that the indictment is not limited to events occurring before 1981, there is an alternative basis upon which, in the circumstances, the trial should be stayed. This ground applies equally to the charges under both s 79 and s 81 of the Act. In substance, such a trial would be an abuse of process. It is fundamental to this point that the nature of the provisions with which the respondent is charged be appropriately characterised.
87 Sections 79 (unless qualified as above indicated) and 81 of the Act, so far as they apply to consensual homosexual acts between adults in private, constitute a gross interference by the State in the personal liberty of a minority of its citizens. In this respect, they are not essentially different from laws prohibiting miscegenation. Those laws were motivated by racial prejudice, this law by sexual prejudice. It is impossible now to maintain, and it could not have been rationally maintained at any material time, that it was proper, let alone right, for the State to prohibit or punish homosexual relations in private between adults.
88 Section 79 of the Act reveals, in its own terms, its essential character. No other crime, not even murder or rape, as appalling as they are, has ever in New South Wales been described as "abominable". The term, however, is applied to behaviour which includes consenting sexual relations in private between adult men. The indictment in the present case follows the language of the section and charges the respondent with the "abominable crime of buggery". This is the conventional form. It has been conventional for far too long. "Abominable", being surplusage, is not part of the necessary description of the offence. It is mere abuse. It places the thumb of prejudice on the scales of justice.
89 There is an important question here, although it is, perhaps, a departure from conventional judicial practice to point it out. One is driven to ask how indictments in such terms could have been preferred in our courts, in modern times, without remark or protest, let alone objection, not only from the bar but from the Bench. Indeed, I have sat in this Court and referred without reflection or concern to language of this kind. It is no answer that such acts, when committed on children or without consent, are abominable. So are many other crimes that are not so described. That is not the matter to which the term refers. It is a characterisation of the particular culpability of homosexual relations. This institutional sanctioning of abuse is part of a pattern of social attitudes, aimed at homosexuals but demeaning the values of the law itself.
90 The law, in its application to consenting adults, was and is irrational and cruel. It conflicts with basic human rights. Sections 79 and 81 of the Act were unjust when they, or their equivalents, were first enacted and are no less unjust today.
91 It has been held by this Court that s 79 still applies to enable prosecutions to be mounted at the present time against persons who had sexual relations prior to the 1984 amendments and who could not now be prosecuted if those acts occurred after the amendments. In R v Pritchard (1999) 107 A Crim R 88, the complainants were, in the main, resident postulants or novitiates doing training before taking their vows, at a high school of which the appellant was principal. One of them was nineteen years old at the time of the anal intercourse committed (prior to 1984) by the appellant in respect of which he was charged under s 79 of the Act. Its repeal was held to be immaterial in the circumstances upon the basis that, at all events, the homosexual intercourse had not been consented to. The Court was of the view that s 55(2) of the Interpretation Act 1987 (since repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 and replaced in the by s 19 of the Crimes (Sentencing Procedure) Act 1999, with unchanged language; for convenience, I shall continue to refer to s 55), which applies where a penalty is reduced after commission of an offence but before sentence, is irrelevant where the offence is repealed. Grove J said (107 A Crim R at 93) that he could "perceive force in the argument that if...the circumstances demonstrated a consensual act unaccompanied by any matter of aggravation, abolition of the criminal sanction might be categorised as extreme reduction of penalty and even if s 55 [of the Interpretation Act 1987] be not directly applicable, parity of reasoning from cases like Hartikainan (unreported, NSWCCA 8 June 1993) could result in nominal punishment being appropriate." His Honour did not elaborate on what was meant by "a matter of aggravation" for this purpose. Abadee J, however, considered (107 A Crim R at 95) that even "an act between two ready and willing [semble, adult] males" reflected only "perhaps criminal culpability of at lower level" (emphasis added) but that where the exercise of authority "secured the participation of the other" (though, as I understand his Honour, nevertheless with consent) this reflected a higher degree of culpability. His Honour was, implicitly at least, of the view that, where the conduct "represented a gross breach of trust", it would be criminally reprehensible even though consented to. Barr J agreed with Abadee J.
92 With unfeigned respect I consider that, unless the material acts were not consented to in the sense that this requirement is used in the law concerning other sexual assaults, no sexual acts between adults, even if liable to prosecution under the repealed ss 79 and 81 of the Act, could, since the enactment of the Amendment Act properly be punished, even though, if Pritchard be right, s 30 of the Interpretation Act 1970 preserves the offence and its penalty as a matter of statutory interpretation. Although both the trial in Pritchard and the appeal were decided well after the commencement of the application of the Commonwealth Act, no reference was made to the legislation either in argument or the judgments of the Court. If the views I expressed above concerning the Commonwealth Act be correct, there were three possible bases for quashing the conviction which were not considered. To this extent, the correctness of Pritchard comes into question.
93 In Regina v Hartikainan (unreported NSWCCA 8 June 1993), the Court considered the effect of an increase in the maximum sentence provided by s 61I of the Act. Gleeson CJ (with whom the other members of the Court agreed) said that the action of the Parliament "must be taken by the courts to have reflected community standards" and concluded, "It is incumbent upon the courts to give effect to the concerns manifested by Parliament". There can be no more emphatic declaration by the Parliament of its concerns than the repeal of an offence and the enactment of a new offence omitting the criminality earlier provided, in this case, consenting sexual relations between adult males. In substance, the repeal of s 79 and s 80 of the Act, so far as they relate to homosexual activity between adults is not only the abolition of the crime (from the date of repeal) but a reduction of the penalty to zero. I note that Smart AJ posits in this case the possibility that the Court might impose a "nominal" penalty or, indeed, not enter a conviction at all under s 10 of the Crimes (Sentencing) Procedure Act 1999.
94 If I were not bound by authority, I would hold that the repeal of a criminal offence such as that which occurred here, would be caught by s 30 of the Interpretation Act 1987 only to the extent to which, in substance, its elements were continued by a new or substituted provision. I think that it is obvious that the draftsperson of s 30 did not consider its possible application to legislative changes of the kind operative here and I do not think that, taking the clear intention of Parliament as expressed by both s 30 and s 55, it was intended to continue the effect of either s 79 or s 81of the Act past the date of its repeal. However, in light of Pritchard, this argument cannot be applied to dispose of the present case, so far as conducting a trial is concerned.
95 Since, as I have said, the Court in Pritchard acted upon the basis that the victim had not consented to the anal sexual intercourse committed upon him, the observations concerning the effect of the repeal of s 79, so far as it concerned consensual anal intercourse, are obiter dicta. If, for the reasons adverted to by Grove J, a trial of the respondent on charges arising from events prior to 18 December 1980 would be unfair, the Director of Public Prosecutions is limited, in effect, to proving consensual homosexual acts that occurred when the complainant was an adult. If he is convicted, the respondent might be subjected to more than merely a nominal punishment if the sentencing judge (as I think, in error) took the view that the acts in question, to apply Grove J's observation in Pritchard "were not unaccompanied by any matter of aggravation" or, accepting the view of Abadee and Barr JJ, should be punished "at a lower level", even if he could not have been tried, let alone punished, under s 78K or s 78Q of the Act had the acts occurred after June 1984. This demonstrates the essential injustice of proceeding against the respondent for any consensual sexual acts which occurred after the complainant's eighteenth birthday. On my view of the matter, only nominal punishment could, at the highest, be imposed in the event of conviction.
96 In Walton v Gardiner (1992-1993) 177 CLR 378 Mason CJ, Deane and Dawson JJ, said (at 392-3) -
"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness...The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'."
97 In a passage that has been cited with approval in the High Court of Australia (eg Jago v District Court (NSW) (1989) 168 CLR 23 at 30; Williams v Spautz (1991-1992) 174 CLR 509 at 520), Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour [1980] 1 NZLR 464 said (at 58) -
"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."
98 In Jago (supra) Mason CJ, Deane and Gaudron JJ expressed a wide view of what might constitute an abuse of process. They did not confine that principle in a narrow, traditional way. Mason CJ said (168 CLR at 28) -
"The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness."