Saraswati v The Queen

High Court of Australia|1991-06-05|Before: McHugh JJ, Deane J, Dawson J

The applicant was convicted upon three counts of committing an act of indecency with a person under the age of sixteen years. The offences were all alleged to have occurred between 8 April and 3 November 1983. No prosecution was commenced until 1987. The offence of committing an act of indecency is distinct from indecent assault. Both offences were, at the relevant time, to be found in s. 61E(1) and (2) of the Crimes Act 1900 N.S.W., which provided:

(1) Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for 4 years or, if the other person is under the age of 16 years, to penal servitude for 6 years.

The offence of committing an act of indecency was created in 1974 by the insertion of s. 76A into the Crimes Act: Crimes and Other Acts (Amendment) Act 1974 N.S.W., s. 5(p). It was intended to fill a gap thought to be left by decisions such as Fairclough v. Whipp [10] and Director of Public Prosecutions v. Rogers [11] . In the first case it was held that there was no indecent assault where the accused had requested a child to touch his person and she had done so of her own volition. In the second case, the accused had exposed himself to his infant daughter and told her to masturbate him. She did so voluntarily. Again, it was held that there was no indecent assault. Whilst in both cases there was indecency there was no assault and, hence, no indecent assault.

[1951] 2 All E.R. 834; (1951) 35 Cr. App. R. 138. 2. [1953] 1 W.L.R. 1017; [1953] 2 All E.R. 644.

In the present case, the evidence led in support of two of the counts of which the applicant was convicted amounted to evidence of indecent assault. The girl concerned being under sixteen years of age, consent was, in the circumstances, no defence: Crimes Act, s. 77. The evidence led in support of the third count of which the applicant was convicted amounted to unlawful carnal knowledge under s. 71 of the Crimes Act, which provided:

Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, shall be liable to penal servitude for ten years.

It is evident that the applicant was not charged with, and could not be convicted of, indecent assault or unlawful carnal knowledge because of s. 78 which provided so far as is relevant:

No prosecution in respect of any offence under section 61E(1), 71 or 72 shall, if the person upon whom the offence is alleged to have been committed was at the time of the alleged offence over the age of fourteen years and under the age of sixteen years, be commenced after the expiration of twelve months from the time of the alleged offence. The time prescribed by s. 78 had clearly expired before the prosecution of the applicant was commenced.

The argument advanced on behalf of the applicant was put in various ways. In substance it amounted to a submission that, because prosecutions for unlawful carnal knowledge and indecent assault were subject to a time limit of twelve months and prosecutions for an act of indecency were not subject to any time limit, s. 61E(2) must be construed so as to exclude an act, committed as part of a single course of conduct, which constituted unlawful carnal knowledge or indecent assault, because to do otherwise would be to enable the prosecution to evade the time limit imposed upon prosecutions for those offences. Apart from the time limit placed upon the prosecution of those offences, it was conceded that an act of indecency, giving that term its ordinary meaning, is involved in both unlawful carnal knowledge and indecent assault.

Reliance was placed upon the New Zealand decision of R. v. Blight [12] . In that case the accused was charged with indecent assault under s. 188 of the New Zealand Criminal Code Act 1893. There was no time limit for prosecutions under that section. The offence committed by the accused amounted to unlawful carnal knowledge under s. 196 of the Act, but a time limit, which had expired, was imposed upon prosecutions for carnal knowledge. The New Zealand Court of Appeal held, by a majority, that the accused could not be prosecuted for indecent assault. But in that case the offence which carried the greater penalty was indecent assault, a circumstance which influenced the majority in reaching their decision that the offence of indecent assault must be construed so as to exclude carnal knowledge. As Williams J. observed [13] :

If the above construction be not adopted the result is that no effect could be given to s. 196, and that section would be practically expunged from the Act, and the protection given by the time limit would be quite illusory. The prosecution would always be commenced under s. 188, which has no time limit, and under which a heavier punishment can be inflicted than under s. 196. That result ought, if possible, to be avoided. However, Stout C.J., who with Conolly J. was in dissent, pointed out [14] that no less an illogicality occurred upon the view taken by the majority: If this conviction is not upheld it means that prisoners who commit the full offence will escape even for indecent assault if the prosecution is not begun in a month, whilst prisoners who proceed no further than the indecent assault will be liable to punishment even if the prosecution is not begun for years afterwards. This makes the provision of our Criminal Code more illogical and absurd than to hold that the prisoner who commits the full offence is liable to conviction and punishment for indecent assault only. Further, it encourages the commission of the full offence. 1. (1903) 22 N.Z.L.R. 837. 2. (1903) 22 N.Z.L.R., at p. 847. 3. (1903) 22 N.Z.L.R., at p. 844.

In R. v. Fehring [15] the accused was charged with unlawfully and indecently dealing with a girl under the age of seventeen. The indecent act constituted unlawful carnal knowledge, but under s. 215 of The Criminal Code Q. a prosecution for carnal knowledge must be commenced within six months after the commission of the offence. There was no such time limit upon the prosecution of the offence of indecent dealing. Douglas J. held that it was not, in the circumstances, competent for the Crown to charge the accused with indecent dealing, but the precise basis upon which he so held does not appear from the report of the case: see also Reg. v. Brombey [16] .

(1926) 20 Q.J.P.R. 165. 2. [1952] Q.W.N. 32.

On the other hand, in R. v. Pople [17] , where the accused was charged with unlawful carnal knowledge the prosecution of which was subject to a time limit of six months, the South Australian Full Court (Angas Parsons and Napier JJ., Murray C.J. dissenting) held that, notwithstanding the expiry of the time limit, he could be convicted of the offence of indecent assault, which was a statutory alternative and was subject to no time limit. The Full Court declined to follow R. v. Blight. Subsequently, in Reg. v. Salmon [18] the Full Court (Bray C.J., Hogarth and Mitchell JJ.) upheld a conviction for indecent assault by way of a statutory alternative upon a charge of rape. In the course of its judgment the Court observed [19] :

On grounds of logic and reason we think, if we may say so with respect, there is much to be said for the propositions that where there is an act of intercourse and no violence or indecency clearly separable from the act of intercourse, there should either be a conviction for rape or carnal knowledge or a complete acquittal ; and that factors other than a failure to achieve penetration which would afford a defence to charges of rape or carnal knowledge should afford a defence to indecent assault also (R. v. Blight); but Pople's Case, a decision of this Court, binds us, we think, to hold otherwise. The reference to Pople's Case in the context is, with respect, difficult to understand. There can be no doubt that rape always involves an indecent assault. The Full Court recognized this, saying [19] that the "indecency is obvious and the force is involved in the act itself". They cited Reg. v. Neale [20] , and R. v. Forde [21] , as well as Pople's Case. It is true that upon a charge of rape where there is only one transaction and the only issue is consent - where penetration, the act of intercourse, is not in issue - a jury cannot in ordinary circumstances properly acquit the accused of rape and convict him of indecent assault, but that is because the verdicts would be inconsistent: Reg. v. Whelan [22] . Consent as a defence to rape would also be a defence to indecent assault. I speak of ordinary circumstances because in Reg. v. Salmon the circumstances were extraordinary. The jury were entitled there to take the view that the prosecutrix consented to penetration but withdrew her consent whereupon the accused continued to have intercourse with knowledge of the withdrawal of consent. It was in those circumstances that the Full Court held that a verdict of not guilty of rape but guilty of indecent assault could be sustained. The position is even simpler upon a charge of carnal knowledge where, because of the age of the prosecutrix, consent cannot legally be given. If there is no issue as to penetration, a jury cannot properly acquit of carnal knowledge and convict of indecent assault. 1. [1924] S.A.S.R. 448. 2. [1969] S.A.S.R. 76. 3. [1969] S.A.S.R., at p. 78. 4. [1969] S.A.S.R., at p. 78. 5. (1844) 1 Den. 36 [169 E.R. 140]. 6. [1923] 2 K.B. 400. 7. [1973] V.R. 268.

But Pople's Case was not a case in which the court was concerned with inconsistent verdicts. The accused could not be convicted of carnal knowledge because the prosecution was commenced out of time. There was, therefore, no reason why he should not be convicted of the indecent assault involved in the act of intercourse. Moreover, if the prosecution chooses only to charge an accused with indecent assault where the facts would support a charge of rape or unlawful carnal knowledge, there is no reason why he should not be convicted of the lesser charge. If he were convicted and the prosecution subsequently chose to charge the same accused with the more serious offence arising out of the same facts, he would have available to him a plea in bar, not strictly a plea of autrefois convict because he would not have been convicted of the offence in the form charged, but based upon "the well-established rule at common law that whenever a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam - that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence": Reg. v. Miles [23] , per Hawkins J., quoting from Blackburn J. in Wemyss v. Hopkins [24] . See also Reg. v. Weeding [25] ; Connelly v. Director of Public Prosecutions [26] .

(1890) 24 Q.B.D. 423, at p. 431. 2. (1875) L.R. 10 Q.B. 378, at p. 381. 3. [1959] V.R. 298. 4. [1964] A.C. 1254.

At common law an accused might be convicted of a lesser offence than that charged, provided that the definition of the more serious offence necessarily included the definition of the lesser offence and that both offences were of the same degree, that is to say, were either felonies or misdemeanours: Reg. v. Salisbury [27] ; cf. Reg. v. Wilson [28] . The distinction between felonies and misdemeanours has now disappeared in many jurisdictions (though not in New South Wales) and statutory alternatives have largely or entirely replaced the common law rule: in New South Wales see, e.g., Crimes Act, ss. 34, 61Q; cf. Reg. v. Taylor [29] ; Reg. v. Mustafa [30] . In New South Wales it is provided by s. 425 of the Crimes Act that:

Where, on the trial of a person for a misdemeanour, it appears that the facts in evidence amount in law to felony, he may notwithstanding be found guilty of and sentenced for such misdemeanour, and in that case shall not be liable to be prosecuted for felony on the same facts:

Provided always, that the Court may discharge the jury from giving any verdict upon such trial, and direct the person to be indicted for felony.

Whether s. 425 was thought to be a modification of the common law or why otherwise it was thought to be necessary is now obscure, but the section makes it quite apparent in this case that, apart from any question of construction, it was open to the jury to convict the applicant of committing an act of indecency, a misdemeanour, notwithstanding that the evidence disclosed unlawful carnal knowledge and indecent assault, both felonies at the relevant time. However, even at common law the applicant might have been convicted of committing an act of indecency when charged only with that offence, notwithstanding that the facts amounted also to carnal knowledge or indecent assault. 1. [1976] V.R. 452. 2. [1984] A.C. 242. 3. (1952) 69 W.N. (N.S.W.) 81. 4. (1973) 3 D.C.R. (N.S.W.) 154.

The sole question is, therefore, one of construction, namely, whether the offence of committing an act of indecency contrary to s. 61E(2) of the Crimes Act is to be construed so as to exclude acts amounting to either carnal knowledge or indecent assault.

The applicant placed great reliance upon the fact that the offence of committing an act of indecency was created to cover the gap left by the fact that the offence of indecent assault requires not only indecency, but also something in the nature of an assault. However, sexual offences are of their very nature progressive rather than mutually exclusive, so that the more serious offence includes the elements of the less serious offence. For the legislature to have sought to exclude from an act of indecency offences which otherwise would have included the act of indecency would have been to depart from the approach hitherto adopted by the law. Moreover, whilst the object of the legislature in creating the offence of committing an act of indecency appears to have been to close a gap which it perceived in the law, it does not follow that it chose to close that gap in a way which would give rise to incongruous results.

If the applicant's argument is correct, a person charged only with committing an act of indecency would be able to defeat that charge by proving by way of defence that he had in fact committed an indecent assault or unlawful carnal knowledge. If the defence were successful, he could not, upon the principles which I have endeavoured to explain, be subsequently convicted of either of the more serious offences whether or not the time for the commencement of prosecution had expired. But more than that, even if the jury were satisfied beyond reasonable doubt that an act of indecency (in the ordinary sense and not the confined sense contended for as a matter of construction) had been committed, if they entertained a doubt whether the accused was guilty of indecent assault or unlawful carnal knowledge - that is, if they considered that he might have committed those offences - it may be they must acquit upon the charge of committing an act of indecency (in the confined sense) because they would necessarily entertain a doubt whether what he had done amounted only to the commission of the latter offence: see Attorney-General (Hong Kong) v. Yip Kai-foon [31] ; Reg. v. Bruce [32] ; but cf. Ghys v. Crafter [33] ; Buckingham v. The Queen [34] ; Reg. v. Langmead [35] .

[1988] A.C. 642. 2. [1988] V.R. 579. 3. [1934] S.A.S.R. 28. 4. Unreported; Supreme Court of South Australia; 12 February 1990. 5. (1864) Le. & Ca. 427 [169 E.R. 1459].

Nor does the preponderance of authority favour the construction advanced on behalf of the applicant. In Reg. v. Neale the accused was convicted of unlawful carnal knowledge. It was contended on appeal that he was entitled to an acquittal as the offence amounted to rape. It was held that the conviction should stand. In Reg. v. Williams [36] the accused was charged with unlawful carnal knowledge. He was under the age of fourteen years and presumed by law to be physically incapable of committing that offence. It was held, however, that he could be convicted of indecent assault. In R. v. Laws [37] the accused was charged with four counts of unlawful carnal knowledge and indecent assault. He pleaded guilty to indecent assault. Upon an appeal against sentence the Court of Criminal Appeal pointed out that upon the charges of carnal knowledge the accused could have raised the defence that he had a reasonable belief that the prosecutrix was over the age of sixteen years, but that defence was not available in relation to indecent assault. The Court [38] described as grotesque a "state of affairs that the law offers a defence upon the major charge, but excludes that defence if the minor charge is preferred". There was, however, no suggestion that the minor offence should be construed so as to exclude the more serious offence. The same conclusion was reached in R. v. Forde [39] where Avory J. observed that:

The result of this legislation is that a boy who is tempted and induced to have carnal knowledge of a girl who misrepresents herself to be over sixteen, and who appears to be so, has no possible answer if he is charged with indecent assault and not with the full offence. See also R. v. Keech [40] ; Reg. v. McCormack [41] . 1. [1893] 1 Q.B. 320. 2. (1928) 21 Cr. App. R. 45. 3. (1928) 21 Cr. App. R., at p. 46. 4. [1923] 2 K.B., at p. 404. 5. (1929) 21 Cr. App. R. 125. 6. [1969] 2 Q.B. 442.

In the present case, unlawful carnal knowledge and indecent assault were both felonies and the penalties provided were considerably greater than the penalty provided for committing an act of indecency. That, in itself, provides a basis for treating the offence of committing an act of indecency differently by imposing no time limit upon its prosecution. But whatever the reason, it is clear that the legislature intended that there be no time limit upon the prosecution of the offence of committing an act of indecency and that the absence of such a time limit was not a mere matter of oversight. When the Crimes Act was amended after s. 76A created the offence of committing an act of indecency, that section became s. 61E(2). The section which imposed the time limit upon the prosecution of carnal knowledge and indecent assault, s. 78, was correspondingly amended and the time limit was retained for the prosecution of offences under s. 61E(1) (indecent assault), but not introduced for the prosecution of offences under s. 61E(2).

In all of these circumstances I can see no justification for concluding that the legislature intended the offence of committing an act of indecency to exclude the offence of carnal knowledge or of indecent assault. I would grant special leave to appeal and dismiss the appeal.

I agree with the judgment of McHugh J. and with the orders his Honour proposes.

The facts, the relevant legislative provisions and their history are set out in the judgment of McHugh J. I agree with his Honour that the expression "an act of indecency with or towards a person" in s. 61E(2) of the Crimes Act 1900 N.S.W. ("the Act") does not include an act which constitutes an indecent assault, carnal knowledge or attempted carnal knowledge under ss. 61E(1) (now s. 61L), 71 (now s. 66C) or 72 (now s. 66D) of that Act. I have reached that conclusion by a somewhat different path from that taken by his Honour. It is appropriate that I state my reasons for that conclusion.

In 1974 the offence of indecent dealing was created by the insertion of s. 76A into the Act. The offence then created was concerned only with acts of indecency with or towards a girl under the age of sixteen years. At that time the Act provided, in s. 78, that no prosecution should be commenced after the expiration of twelve months for an offence under ss. 71, 72 or 76 (being respectively an offence of carnal knowledge, attempted carnal knowledge and indecent assault) with respect to a girl over the age of fourteen and under the age of sixteen years. A limitation provision with respect to such offences had been in the Act since 1910 when the age of consent was altered from fourteen to sixteen years.

The Act was amended in 1981 with the result that, at the time of the events with which this application is concerned, s. 76A had become s. 61E(2). Section 61E(2) and a number of other provisions dealing with sexual offences previously defined in terms of an act with or towards a member of the female sex were then extended to cover acts with or towards a person of either sex. That amendment was reflected in an amended s. 78. These amendments did not affect the relationship between the limitation provision and the indecent dealing provision constituted when indecent dealing was made an offence in 1974. It is unnecessary to deal with amendments made after 1981.

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v. Attorney-General (Vict.) [42] , per Fullagar J., and per Windeyer J. [43] . More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s. 78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation. The position was stated by Lord Selborne in Seward v. The "Vera Cruz" [44] , as follows:

where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. See also Bank Officials' Association (South Australian Branch) v. Savings Bank of South Australia [45] . 1. (1961) 106 C.L.R. 268, at p. 276. 2. (1961) 106 C.L.R., at p. 290. 3. (1884) 10 App. Cas. 59, at p. 68. 4. (1923) 32 C.L.R. 276.

If s. 61E(2) of the Act has the meaning for which the respondent contends, it necessarily derogates from the protection earlier afforded by s. 78. So much may be seen from the present case for, although, by force of s. 78, the applicant could not be charged with carnal knowledge and indecent assault, his prosecution under s. 61E(2) required him, as a matter of practical reality, to answer those very charges. In my view s. 61E(2) has neither the meaning nor the effect for which the respondent contends.

The later and general provision creating the offence of indecent dealing was designed to deal with acts of indecency not involving assault, being acts of the kind considered in Fairclough v. Whipp [46] and Director of Public Prosecutions v. Rogers [47] . That provision is and always has been capable of reasonable and sensible operation without derogating from the earlier special limitation provision. That operation is achieved by treating the expression "act of indecency with or towards a person" in s. 61E(2) of the Act as not including an act which constitutes indecent assault, carnal knowledge or attempted carnal knowledge and, thus, confining its operation to the matters with which it was intended to deal. The sub-section must be so construed.

(1951) 35 Cr. App. R. 138. 2. [1953] 1 W.L.R. 1017; [1953] 2 All E.R. 644.

Special leave to appeal should be granted. The appeal should be allowed, the convictions quashed and verdicts of acquittal entered on each charge.

The question in this application for special leave to appeal is whether a charge of committing an act of indecency with a person under the age of sixteen years could be brought under s. 61E(2) of the Crimes Act 1900 N.S.W. ("the Act") when the conduct relied on is an indecent assault for the purposes of s. 61E(1) or an act of carnal knowledge for the purposes of s. 71 of the Act.

The applicant was convicted of three counts under s. 61E(2). That sub-section provided:

Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with that or another person, shall be liable to imprisonment for 2 years. Each count alleged that the applicant had committed an act of indecency with a girl under sixteen years of age ("the complainant"). At the time she was fifteen years of age. To prove two of the offences, the Crown relied on evidence by the complainant that the applicant had touched her breasts, buttocks and vagina. To prove the third of the offences, the Crown relied on the complainant's evidence that the applicant had had sexual intercourse with her. The Court of Criminal Appeal unanimously dismissed an appeal against the convictions.

But for the provisions of s. 78 of the Act, the complainant's evidence would have entitled the Crown to charge the applicant with the offence of carnal knowledge under s. 71 of the Act and with two offences of indecent assault under s. 61E(1). But s. 78 prohibited the institution of a prosecution for either of those offences more than twelve months after the commission of the offence if the victim was a person over the age of fourteen. The prosecution of the applicant was not commenced until more than twelve months after the conduct in question had taken place. So the Crown prosecuted the applicant under s. 61E(2) to which s. 78 did not apply. The question then is whether a person could ever be charged under s. 61E(2) on evidence which established an offence of indecent assault or carnal knowledge within the meaning of ss. 61E(1) or 71 of the Act but no more.

The relevant provisions of the Act at the time of the commission of the "offences" were as follows:

(2) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with that or another person, shall be liable to imprisonment for 2 years.

Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, shall be liable to penal servitude for ten years.

Whosoever attempts unlawfully and carnally to know any girl of or above the age of ten years, and under the age of sixteen years, or assaults any such girl with intent carnally to know her, shall be liable to penal servitude for five years.

No prosecution in respect of any offence under section 61E (1), 71 or 72, or under section 76 as in force at any time before the commencement of Schedule 1 to the Crimes (Sexual Assault) Amendment Act, 1981, shall, if the person upon whom the offence is alleged to have been committed was at the time of the alleged offence over the age of fourteen years and under the age of sixteen years, be commenced after the expiration of twelve months from the time of the alleged offence.

Mr. Porter Q.C., counsel for the applicant, did not dispute that the touching of the complainant's breasts, buttocks and vagina and the act of sexual intercourse each constituted an "act of indecency" within the meaning of that term as it has been judicially interpreted: see R. v. Sorlie [48] ; Reg. v. Valence [49] ; R. v. Hare [50] . He submitted, however, that, in the context of the Act, the term "act of indecency" in s. 61E(2) did not cover a case which fell within the terms of ss. 71, 72 or 61E(1). He submitted that, if s. 61E(2) was construed to cover a case which fell within any of those provisions, an accused person could lose the benefit of the protection given by s. 78 of the Act, and that it could not have been the intention of Parliament in enacting s. 61E(2) to permit a prosecution which s. 78 specifically prohibited.

(1925) 42 W.N. (N.S.W.) 152. 2. (1958) 76 W.N. (N.S.W.) 137. 3. (1933) 24 Cr. App. R. 108.

In the Court of Criminal Appeal [51] , Badgery-Parker J., who gave the leading judgment, said that, in construing s. 61E(2), resort could be had to the mischief at which the sub-section was directed only if the provision was ambiguous or obscure. His Honour said [52] :

The difficulty in the application of the Act which is thrown up by the present case does not, in my view, arise from anything which can properly be called ambiguity in the language. It is clear that the concept of an act of indecency in s. 61E(2) is the same as the concept of an act of indecency in s. 61E(1); and the concept is clearly understood. In my view the provision is unambiguous and not obscure. His Honour concluded [53] , that: as a matter of construction, facts establishing indecent assault or even carnal knowledge can be charged as an act of indecency under s. 61E(2), and that there is no principle which makes it an abuse of process for the Crown to adopt that course in circumstances where to do so will deprive the accused of the benefit of the time limit prescribed by s. 78. 1. (1989) 18 N.S.W.L.R. 143. 2. (1989) 18 N.S.W.L.R., at p. 169. 3. (1989) 18 N.S.W.L.R., at p. 170.

With great respect, the approach of his Honour to the construction of s. 61E(2) was an unduly narrow one which was not in accordance with the approach to statutory construction reflected in the Interpretation Act 1987 N.S.W.. Section 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction "that would promote the purpose or object underlying the Act" over a construction "that would not promote that purpose or object": cf. Chugg v. Pacific Dunlop Ltd. [54] . Moreover, the terms of s. 34 of that Act, which provides for the use of extrinsic material, make it plain that "the ordinary meaning conveyed by the text of the provision" is the meaning conveyed by that provision after "taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule". Hence, it is always necessary in determining "the ordinary meaning" of a provision such as s. 61E(2) to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision. Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes.

In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the "ordinary meaning" to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as "the ordinary meaning" and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act: Interpretation Act, s. 33. In Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [55] , Mason and Wilson JJ. said:

when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision: see Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [56] ; Jones v. Wrotham Park Settled Estates [57] ; Cooper Brookes [58] ; In re Lockwood [59] . 1. (1981) 147 C.L.R. 297, at p. 321. 2. [1971] A.C. 850, at pp. 880-882. 3. [1980] A.C. 74, at p. 105. 4. (1981) 147 C.L.R., at pp. 321-323. 5. [1958] Ch. 231, at p. 238.

But where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A court cannot depart from "the ordinary meaning" of a legislative provision simply because that meaning produces anomalies: cf. Cooper Brookes [60] . But s. 34 of the Interpretation Act assumes that it may do so if the ordinary meaning conveyed by the text of the provision "taking into account its context in the Act and the purpose or object underlying the Act" leads to a result that is "manifestly absurd" or "unreasonable". Furthermore, if "the ordinary meaning" of a legislative provision is manifestly absurd or unreasonable, a real doubt must arise as to whether Parliament intended the enactment to have its ordinary meaning: cf. Cooper Brookes [61] . In In re Rouss [62] , Judge Cardozo pointed out that, while consequences cannot alter the meaning of legislative provisions, they may help to fix their meaning. The books are full of cases where courts have refused to give legislative provisions their literal meanings: see In re Lockwood [59] ; Luke v. Inland Revenue Commissioners [63] ; Adler v. George [64] ; Wiltshire v. Barrett [65] ; Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [66] ; Reg. v. Hester [67] ; Cooper Brookes [68] . The Interpretation Act goes further. Surprisingly, it contemplates that the ordinary meaning (i.e. the literal meaning modified by context and purpose) may be manifestly absurd or unreasonable and authorizes resort to extrinsic material to give the provision a different meaning.

(1981) 147 C.L.R., at pp. 305, 320. 2. (1981) 147 C.L.R., at p. 320. 3. (1917) 116 N.E. 782, at p. 785. 4. [1958] Ch. 231, at p. 238. 5. [1963] A.C. 557, at p. 577. 6. [1964] 2 Q.B. 7, at pp. 9-10. 7. [1966] 1 Q.B. 312, at pp. 332-333. 8. [1971] A.C., at pp. 859-860, 881. 9. [1973] A.C. 296, at p. 323. 10. (1981) 147 C.L.R., at pp. 311, 320-321.

Extrinsic material may also be used to confirm the ordinary meaning of a provision or to determine the meaning of a provision which is obscure: Interpretation Act, s. 34(1). Certain classes of extrinsic material such as second reading speeches may be used more generally and "considered in the interpretation of a provision of an Act": s. 34(2). In the present case, it is necessary to consider extrinsic material - not for the purpose of displacing the ordinary meaning but to demonstrate that the ordinary meaning of the term act of indecency in s. 61E(2) read in its context and with regard to the purpose of the Act is not its literal meaning.

Two considerations persuade me that in the present case "the ordinary meaning" of the words "act of indecency" in s. 61E(2) is not their literal meaning. The first is that, when one has regard to the history of s. 61E(2), it is clear that the purpose of Parliament in enacting s. 76A, the predecessor of s. 61E(2), was to deal with cases which did not constitute indecent assaults. The second is the rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation.

The second of the two considerations is concerned with the context of s. 61E(2), and it is convenient to begin with that consideration. In Anthony Hordern & Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia [69] , Gavan Duffy C.J. and Dixon J. said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. Their Honours went on to say [70] : An affirmative grant of such a power, so qualified, appears necessarily to imply a negative. It involves a denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision. The principle that a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power has been recognised in this Court on other occasions: see R. v. Wallis [71] ; Leon Fink Holdings Pty. Ltd. v. Australian Film Commission [72] . In Leon Fink [72] , Mason J. said: It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. 1. (1932) 47 C.L.R. 1, at p. 7. 2. (1932) 47 C.L.R., at p. 8. 3. (1949) 78 C.L.R. 529, at pp. 550-551. 4. (1979) 141 C.L.R. 672, at p. 678. 5. (1979) 141 C.L.R. 672, at p. 678.

The Act makes it an offence for a person to have carnal knowledge of or to indecently assault a girl under the age of sixteen. But if the girl is over fourteen years of age, the Act requires the prosecution to be instituted within twelve months of the commission of the offence. It is difficult to accept that, when Parliament enacted s. 61E(2) and authorized the institution of prosecutions for acts of indecency under s. 61E(2), it intended that general power to be used to circumvent the limitation which s. 78 placed on ss. 61E(1), 71 and 72 of the same Act. To use the words of Gavan Duffy C.J. and Dixon J. in Anthony Hordern & Sons Ltd. [73] , the enactment of ss. 61E(1), 71, 72 and 78 "excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power". Accordingly, in my opinion, the context of s. 61E(2) indicates that Parliament did not intend the words "an act of indecency" to cover conduct which constitutes an indecent assault or carnal knowledge. And as s. 34 of the Interpretation Act makes plain, "the ordinary meaning" of a legislative provision in New South Wales can be ascertained only after taking account of its context in the Act.

The above construction of s. 61E(2) is confirmed by the history of the legislation, the Report of the Criminal Law Committee on Proposed Amendments to the Criminal Law and Procedure (N.S.W.) (1973), and the second reading speech of the Minister for Justice when he introduced the predecessor of s. 61E(2) into the Parliament, all of which show that the purpose of enacting the predecessor of s. 61E(2) was to cover cases which did not constitute indecent assaults under the existing legislation.

In Fairclough v. Whipp [74] the English Court of Criminal Appeal held that an indecent assault on a child could not be sustained by evidence that, while the respondent was urinating into a canal, he asked a young girl to touch his penis and that she had then done so. Lord Goddard C.J. said [75] :

I do not know of any authority that says that, where one person invites another person to touch him, that can amount to an assault. The question of consent or non-consent arises only if there is something which, without consent, would be an assault on the latter. If that which was done to the child would have been an assault if done against her will, it would also be an assault if it was done with her consent and is of an indecent nature, because she cannot consent to an indecent assault. But before we come to the question whether there was an indecent assault we must consider whether there was an assault, and I cannot hold that an invitation to somebody to touch the invitor can amount to an assault on the invitee. 1. (1951) 35 Cr. App. R. 138; [1951] 2 All E.R. 834. 2. (1951) 35 Cr. App. R., at pp. 139-140; [1951] 2 All E.R., at p. 834.

Fairclough was followed in Director of Public Prosecutions v. Rogers [76] where, without any force or compulsion, a father put his arm around the shoulders of his eleven-year-old daughter, led her up stairs, exposed himself to her and told her to masturbate him. Lord Goddard C.J. said [77] :

Before one can find that a man has been guilty of an indecent assault, one has to find that he was guilty of an assault, for an indecent assault is an assault accompanied by indecency. If one could show here that the respondent had done anything towards his child which by any fair use of language could be called compulsion, or acted, as I have said in other cases, in a hostile manner towards her, that is, with a threat or a gesture which could be taken as a threat, or by pulling the child, after she had shown reluctance, towards him, that would undoubtedly be assault, and if it was accompanied by an act of indecency, it would be an indecent assault. After saying that the case could not be distinguished from Fairclough , Lord Goddard went on to say [78] : It is true that one might get a case in which the evidence showed that what was being done was really done against the will of the child. But in the present case, however much we may regret that we cannot punish this man for doing an act which deserves the reprobation of every decent man, I feel that the only thing we can do is to say that the justices came to a right decision, and reluctantly dismiss this appeal. 1. [1953] 1 W.L.R. 1017; [1953] 2 All E.R. 644. 2. [1953] 1 W.L.R., at pp. 1018-1019; [1953] 2 All E.R., at p. 645. 3. [1953] 1 W.L.R., at p. 1019; [1953] 2 All E.R., at p. 646.

It was against the background of these two decisions that in 1973, in the Report to which I have referred, the New South Wales Criminal Law Committee in commenting on the predecessor of s. 61E(1) said [79] :

We also recommend the creation of a new offence - act of indecency - to cover the situation where the indecency with a girl under the age of 16 years does not amount to an assault on her, and for this offence we recommend a two years penalty. (My emphasis.) 1. (1932) 42 C.L.R., at p. 8.

In 1974, s. 76A (the predecessor of s. 61E(2)) was enacted to give effect to the recommendation of the Criminal Law Committee. Section 76A provided:

Any person who commits any act of indecency with or towards any girl under the age of sixteen years, or incites a girl under that age to any act of indecency with him or another, shall be liable to imprisonment for two years. In his second reading speech on the amendments which introduced s. 76A, the Minister for Justice referred to the Report and to the gap in the law which cases such as Fairclough and Rogers had demonstrated. The second reading speech is "material that may be considered in the interpretation of a provision of an Act": Interpretation Act, s. 34(2). Thus, there can be no doubt that s. 76A was enacted for the purpose of overcoming the limited scope of the offence of indecent assault.

In the present case, it is unnecessary to determine whether s. 76A was intended to cover cases which are not indecent assaults but go beyond the Fairclough -type situation. No ground exists, however, for supposing that in enacting s. 76A Parliament had any purpose to interfere with the protection which s. 78 gives to a person who is alleged to have committed an indecent assault or had carnal knowledge of a girl under the age of sixteen years. Nor is there any reason for supposing that it was one of the purposes of Parliament in amending the law that s. 76A should overlap s. 76, the predecessor of s. 61E(1), or s. 71. Clearly, Parliament saw "the ordinary meaning" of the predecessor of s. 61E(2) as covering cases falling outside the scope of indecent assault and, it must follow, cases falling outside the scope of the offence of carnal knowledge. Once this is accepted it follows that s. 61E(2) must be given a similar construction to its predecessor, s. 76A, since, apart from extending the operation of the section to persons of either sex, the terms of s. 61E(2) are almost identical to those of s. 76A.

Despite the literal meaning of the words "act of indecency", the context of s. 61E(2) and the history and purpose of the legislation show that in s. 61E(2) "the ordinary meaning" of the words "act of indecency" does not include conduct which constitutes an indecent assault for the purposes of s. 61E(1) or an act of carnal knowledge for the purposes of s. 71.

It is true that the construction which I have placed on s. 61E(2) means that the term "act of indecency" in s. 61E(2) is narrower in meaning than the same term in s. 61E(1). But, having regard to the different histories of the two provisions, this affords no ground for rejecting the construction which I have placed on s. 61E(2). It is also true that that construction may lead to the situation where an accused person, charged under s. 61E(2), will seek to be acquitted by proving or asserting that he was in fact guilty of an indecent assault on or sexual intercourse with the complainant. But this is the result of Parliament prohibiting any prosecution for an offence under ss. 61E(1), 71 or 72 after the expiration of twelve months from the commission of the offence. It is not only those prosecutions where the accused denies the offence that are prohibited after the expiration of that period. It is also true that, in some cases on the construction that I prefer, the jury will have to determine whether, what standing alone would be an "act of indecency", was part of sexual intercourse or an indecent assault: see Reg. v. Brombey [1] . But this means no more than that nothing can be charged under s. 61E(2) which could be charged under ss. 61E(1), 71 or 72. There is nothing novel about that proposition. The law concerning rape/indecent assault has an analogous doctrine: a man who, on a charge of rape, admits intercourse but asserts consent, cannot be acquitted of rape and convicted of indecent assault unless any indecent assault can be characterised as an episode distinct from the intercourse: Reg. v. Redgard [2] ; Reg. v. Touhey [3] ; Reg. v. Coureas [4] ; Reg. v. Whelan [5] ; Reg. v. Slade [6] .

[1952] Q.W.N. 32, at p. 37. 2. [1956] St. R. Qd 1. 3. (1960) 45 Cr. App. R. 23. 4. [1967] Q.W.N. 5. 5. [1973] V.R. 268. 6. (1982) 7 A. Crim. R. 43.

Authority on the meaning of legislation similar to s. 61E(2) is fairly evenly divided. In R. v. Blight [7] , the New Zealand Court of Appeal held that, where the evidence established the offence of unlawfully carnally knowing a girl of or above the age of twelve years and under the age of sixteen years but the time for such a prosecution had expired, the accused could not be prosecuted on those facts for the offence of indecent assault under another section in the same Act. Williams J. said [8] :

Apart from s. 196 [the section creating the offence of unlawful carnal knowledge of a girl of or between the ages of twelve and sixteen], the act of the accused would have come within the definition of an indecent assault under s. 188. But s. 196 takes this particular set of facts, makes them a separate crime, and provides that a prosecution shall not be instituted in respect of them unless within a limited period. It seems to me that the effect of this is to exclude the offences created by s. 196 from the operation of s. 188, and that if the facts show that a man has committed an offence under s. 196 he must be prosecuted under that section. 1. (1903) 22 N.Z.L.R. 837. 2. (1903) 22 N.Z.L.R., at pp. 846-847.

In R. v. Fehring [9] , the evidence relied on to prove a charge under s. 216 of The Criminal Code Q. of unlawfully and indecently dealing with a girl under the age of seventeen was that the accused had had unlawful carnal knowledge of a girl. No indecent act other than that of sexual intercourse was alleged or proved. The prosecution of a charge under s. 215 of The Criminal Code of unlawful carnal knowledge of a girl under seventeen years of age had to be commenced within six months after the commission of the offence. The act of sexual intercourse was alleged to have taken place on 17 January 1926 and the prosecution was not instituted until 11 August 1926. Douglas J. directed the jury to acquit the accused and said [10] :

The Crown could not prosecute this boy for carnal knowledge because the prosecution was not commenced until after six months from the date of the alleged carnal knowledge. To avoid that they have charged him with indecently dealing, and I direct you, gentlemen, as a matter of law, that where the only evidence adduced in the case is of unlawful carnal knowledge, and not of indecently dealing, the Crown cannot prosecute the charge, and I direct you to find him "not guilty". 1. (1926) 20 Q.J.P.R. 165. 2. (1926) 20 A.T.P.R., at p. 166.

In Reg. v. Brombey [11] , the accused was charged under s. 216 of The Criminal Code Q. with unlawfully and indecently dealing with a girl under the age of seventeen years. The evidence disclosed indecent acts followed by sexual intercourse. Philp J. in the course of his summing up directed the jury [12] :

The importance of this case is this, that the Crown cannot prosecute this accused person for having had intercourse or attempting to have intercourse with the girl because the law says that you must bring the prosecution within six months of the act. The Crown did not bring this prosecution within six months of the last act and therefore the Crown is barred from bringing the charges of unlawful carnal knowledge or attempted carnal knowledge. The Crown says that although there is by law a time limit imposed on the bringing of those charges, there is no time limit imposed on the bringing of the charge of indecently dealing. I direct you as a matter of law, that if the only thing that occurred between this man and this girl was sexual intercourse in its normal manner, then you should acquit him, but if you come to the conclusion that there was something other than sexual intercourse (sexual intercourse in the ordinary way which to my mind involves consent - if there was that sexual intercourse, you should acquit), but if you think there was indecent dealing quite apart from sexual intercourse then you should convict.

If you come to the conclusion that these acts are severable from the sexual intercourse, you will find him guilty. If not, I direct that you should find him not guilty. That is, if you find that these acts were part of the sexual intercourse you will find him not guilty.

[1952] Q.W.N. 32. 2. [1952] Q.W.N., at pp. 36-37.

Three other decisions, however, support the view that s. 61E(2) should be given a meaning uninfluenced by s. 78. In Reg. v. Williams [13] , the accused was charged with carnally knowing a girl under the age of thirteen. As the accused was under fourteen, he could not be convicted of having carnal knowledge of the girl. But it was held that he could be convicted of indecent assault. Lord Coleridge C.J. said [14] :

He was, therefore, properly acquitted of the charge made under the 4th section [of having carnal knowledge of a girl under the age of thirteen]. But s. 9 provides that if upon the trial of any indictment for rape, or any offence made felony by s. 4, the jury shall be satisfied that the defendant is guilty of an indecent assault, but are not satisfied that the defendant is guilty of the felony charged in such indictment, or of an attempt to commit the same, then they may acquit the defendant of the felony, and find him guilty of an indecent assault. The Act of Parliament, therefore, says that the defendant may be convicted of an indecent assault under circumstances like these. R. v. Forde [15] was concerned with legislation which provided that the presence of reasonable cause to believe that the girl was over the age of sixteen years was a valid defence on the first occasion that a man, twenty-three years of age or under, was charged with an offence of carnal knowledge. The indictment charged the appellant, a man under twenty-three years of age, with carnal knowledge and attempted carnal knowledge of a girl aged fifteen. It further charged him with indecently assaulting her on two successive days. The accused pleaded guilty to one of the charges of indecent assault. The prosecution accepted the plea. The only indecent assault relied on was an act of carnal knowledge. The Court of Criminal Appeal held that the defence was not available to a charge of indecent assault and that the accused was properly convicted. The Court said [16] : It is not the duty of the Court to make the law reasonable, but to expound it as it stands, according to the real sense of the words. Applying that principle, we can find no justification for reading the proviso to s. 2 of the Act, which in terms is limited to charges of offences under that section, as applicable to a charge of indecent assault, which is separately dealt with in s. 1. In R. v. Pople [17] , the Full Court of the Supreme Court of South Australia (Angas Parsons and Napier JJ., Murray C.J. dissenting) held that, where the accused was charged with unlawfully and carnally knowing a girl above the age of thirteen years and under the age of sixteen years and the information was laid more than six months after the commission of the offence contrary to the terms of the relevant statute, the accused nevertheless could be convicted of indecent assault even though the act of carnal knowledge was the basis of the assault. Angas Parsons J. refused to follow Blight . He was of the opinion that it was inconsistent with the reasoning in Forde and Williams . Napier J. said that the construction which Williams J. had placed upon the New Zealand statute in Blight might be the effect of that statute but it was not the effect of the South Australian legislation. 1. [1893] 1 Q.B. 320. 2. [1893] 1 Q.B., at p. 321. 3. [1923] 2 K.B. 400. 4. [1923] 2 K.B., at p. 404. 5. [1924] S.A.S.R. 448.

With great respect, I think that Williams , Forde and Pople fail to give effect to the context rule of statutory construction which holds that a general provision in a statute is not to be construed so as to avoid the conditions or limitations contained in a specific provision in the same statute. Significantly, in the later South Australian case of Reg. v. Salmon [18] , the Full Court of the Supreme Court of that State said:

I prefer the reasoning in Blight , Fehring and Brombey to that in Williams , Forde and Pople and would hold that the latter cases were wrongly decided. But in any event the history of s. 61E(2) makes it plain that Parliament intended the approach of Williams J. in Blight to be given to that sub-section.

In my opinion the facts proved at the trial failed to establish an offence under s. 61E(2). The evidence proved offences under s. 61E(1) and s. 71 but no other "act of indecency". Indeed, in this Court without contradiction, Mr. Porter asserted that the case had been fought at the trial as one of carnal knowledge and indecent assault although, of course, each offence was given the label "act of indecency".

Special leave to appeal should be granted. The appeal should be allowed and the convictions quashed. Verdicts of acquittal should be entered in respect of each charge.

High Court of Australia Deane, Dawson, Toohey, Gaudron and McHugh JJ. Saraswati v The Queen [1991] HCA 21

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