The Queen v Jc [2000] ACTSC 72

2. MS was aged not less than 10 years nor more than 11 years at the time of the alleged offences.

3. Due to his association with a scouting group, the accused was visited by a number of young persons, about MS's age, including MS.

4. On three occasions, JC admits, he took MS into an en-suite bathroom at his house and there indecently dealt with him by fondling MS's penis and then placing his mouth over it and sucking it. He caused MS's penis to become erect, though there was no ejaculation. Afterwards, MS complained, his penis was sore and swollen.

5. On the last such occasion, the accused fell under suspicion from his housemates. He made some limited admissions of "fondling" MS. That was reported to MS's parents. There was no subsequent contact by the accused with MS.

6. There is no apparent explanation for the delay of 11 years in laying these charges. The accused is now 36 years of age. He was 23 when the events in question occurred. He has no prior or subsequent convictions (save for "speeding" in 1985).

7. Mr Collaery, for the accused, demurs to the proposed indictment. He contends that the acts alleged by the Crown and conceded by the accused, albeit they are "acts of indecency", do not constitute him engaging in "sexual intercourse".

8. As at 1987 and 1988, there were two sections of the Crimes Act 1900 (ACT) (the Act) relevant to the admitted conduct of the accused.

"A person who engages in sexual intercourse with another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years."

"A person who commits an act of indecency upon, or in the presence of, another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years."

11. The term "sexual intercourse" is given an extended meaning by s 92 of the Act. It provides:

"In this Part, "sexual intercourse" means -

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except where that penetration is carried out for a proper medical purpose or is otherwise authorised by law;

(b) the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except [as for (a)];

(c) the introduction of any part of the penis of a person into the mouth of another person;

(d) cunnilingus; or

(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c), or (d)."

12. Mr Collaery contends that it was intended by these provisions that the more severe condemnation of non-consensual or underage sexual acts was to be reserved for penetrative sexual acts. It was to punish more severely the perpetrator of an act of sexual penetration. At common law, the sexual acts most severely condemned were rape, penetration of the vagina by a penis, and sodomy, penetration of the anus by a penis.

13. As it had, by 1985, become apparent that other forms of sexual penetration were equally offensive to the unwilling or underage victim of them, the definition was broadened to include such acts as "sexual intercourse".

14. In support of that supposed intent, Mr Collaery points to the explanatory statement accompanying the 1985 amendments. One object of the amendments was stated to be:

"(c) the restating of sexual offences in a more contemporary and relevant manner so as to place emphasis on the accompanying violence and so as to include forms of penetration of the victim other than traditional intercourse; and

(d) the recognition of the equality of status of all persons." [Emphasis added]

15. Subsections 92(c) and (d) were further explained in the following terms:

"In relation to (c) above, police authorities in New South Wales have indicated that until approximately 5 years ago traditional intercourse was involved in most rape cases. This pattern has now changed and presently in more than 50% of cases anal or oral intercourse, either in addition to or in lieu of penile/vaginal intercourse occurs. Some victims have indicated that they have felt more degraded and humiliated by what they regarded as unnatural penetration than by the traditional penetration. For this reason the offences have been widened to include other forms of penetration and for the same reason the term "rape" which is a term of art not applicable to the wider range, has not been retained in the proposed Ordinance.

In relation to (d) both heterosexual and homosexual intercourse has been treated in the same manner, attracting the same penalties. This has been achieved by creating all offences in gender neutral terms ..."

16. Of course, that latter objective is necessarily limited by references to a "penis" and a "vagina". However, Mr Collaery submits, the intent of the creation of the more serious offences of engaging in sexual intercourse with an unwilling or underage person is to punish a person who sexually penetrates another in one or other of the proscribed ways, not a person who, though the other is unwilling or underage, is himself or herself sexually penetrated.

17. The gender neutral form of words used means, Mr Collaery conceded, that a female person who forces or persuades an underage male to insert his penis into her vagina was not engaging in "sexual intercourse" with that young person, though she might well be guilty of a proscribed act of indecency. Similarly, an adult male would not be engaging in sexual intercourse if he persuades or coerces an underage male to penetrate that adult male's anus with the underage male's penis (or an object).

18. To say of two persons who are participating in traditional sexual intercourse, sodomy, fellatio or cunnilingus that only the penetrator is "engaged in" that activity is an obvious affront to the normal use of language. But, submits Mr Collaery, so also is the expression "sexual intercourse" as defined by s 92 of the Act. It is a purely stipulatively defined expression. It should take its meaning from the definition not from previously understood and traditional usage.

19. The only defined activity referred to in its traditional meaning included in the artificially defined term "sexual intercourse", is cunnilingus. The activity referred to in part (c) of the definition, Mr Collaery contends, though having some similarity to fellatio, is not defined so as to include all conduct falling within the usual definition of that latter term.

20. Finally, Mr Collaery relied on the law's reluctance to include within the more serious "rape" and "sodomy" categories of conduct those which previously had been indecent assaults, and so fell into a lesser category of culpable conduct. A shift from the previous categorisation of indecent assaults or acts of indecency to the more serious category of unlawful "sexual intercourse" should be sanctioned only if the intent to do so is clearly reflected in the words adopted by the legislature.

21. Mr Todd, for the Crown, takes issue with these contentions. His submission carefully analysed the authorities both in South Australia and Western Australia. It was, Mr Todd contends, intended by the legislature to include fellatio within the definition of sexual intercourse. That activity includes a situation where, as here, an accused places the penis of another person in his own mouth. It becomes unlawful if the other person has not consented or if, as here, that person is under 16 (absent any matter of defence).

22. The general approach to penal statutes, affirmed in Beckwith v R [1976] HCA 55; (1976) 135 CLR 569, is that if the language of the statute, after fair reading and construction according to the "ordinary" rules of construction, remains "ambiguous or doubtful", then "the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences" (per Gibbs J at 576).

23. That does not, however, authorise the disregard of the evident intent of a statute. Penal provisions in aid of a remedial statute will, for example, be less restrictively construed.

24. In Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 penal sanctions were attached to requirements imposed on employers for the safety of employees.

25. At 164, Gibbs, Mason, Wilson and Dawson JJ observed:

"A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed "so as to give the fullest relief which the fair meaning of its language will allow" [per Isaacs J in Bull v AG (NSW) [1913] HCA 60; (1913) 17 CLR 370, 384] ... On the other hand, there is the consideration, ... that a breach of cl 25 is attended with a penal sanction. ... [If those principles conflict] the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker."

26. Of course, by way of distinction from the present case, the obligation imposed on the employer in Waugh v Kippen (supra) also defined the statutory duty, breach of which would result in civil liability to the worker. As the joint judgment put it, the legislature could not "speak with a forked tongue" (165), intending one meaning for one purpose and a more restrictive meaning for another.

27. The same theme was taken up by Toohey, Gaudron and Gummow JJ in Newcastle CC v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, in construing provisions of the Insurance Contracts Act 1984 (Cth), (at 102-3):

"They [the relevant provisions] ... are not to be construed narrowly or with undue technicality. It is true, as counsel for GIO stressed, that s 40(2) creates an offence and that "the contract" to which it refers is one answering the description in s 40(1). However, s 40(2) casts an obligation upon the insurer, in aid of remedial measures passed for the protection of those dealing with insurers. In such a context, the rule of strict construction of penal provisions is one of last resort."

28. Nevertheless, the rule of construction affirmed in Beckwith (supra) remains good law (see Krakouer v R [1998] HCA 43; (1998) 194 CLR 202, per McHugh J at 223).

29. Thus, I accept that the scope of the more serious categories of sexual offences should not be regarded as having been widened unless the clear words of the relevant legislation require that conclusion. If there is ambiguity, it should be resolved in favour of limiting rather than extending the more serious categories of offences.

30. There is a certain symmetry to s 92. Subsections (a) and (b) refer to penetrations of either anus or vagina of a person by any part of the body of another, or by any "object" wielded by another.

31. It is contended that subsections (a) and (b) are intended to render the perpetrator of such an act, if done without consent or with a person under 16 years of age, culpable. If those provisions stood alone, it would be open to infer that the defined conduct was intended to be in aid of the protection of an unwilling or underage person from violation of the bodily cavities referred to. It would require that the phrase "engaged in sexual intercourse" be read as "sexually penetrates".

32. If subsections (c) and (d) were similarly confined, the result would be that only a person carrying out an act of sexual penetration would fall within the definition so as to be engaging in "sexual intercourse". However, Mr Todd submits that subsection (d) refers to a sexual act which does not require penetration at all and, further, that, to the extent that subsection (c) is intended to refer to fellatio, either the person whose mouth is penetrated or the person whose mouth is used to take in the penis of another person are equally to be regarded as engaged in that activity.

33. Each of the terms used in s 92 (including "penetration") must be interpreted according to their natural and ordinary meaning unless they are specially defined otherwise. That is also true for ss 92E(2) and 92K(2).

34. In Randall v R (1991) 53 A Crim R 380, an issue arose as to whether "cunnilingus" required penetration by the tongue of the perpetrator into the vagina of the victim or whether penetration of the external genitalia sufficed. "Cunnilingus" was defined, amongst other sexual acts, as "sexual intercourse". Cox J noted that, for rape, penetration into the vagina was unnecessary at common law. Penetration of the labia sufficed. Thus, Cox J concluded, if rape was so defined, there was no sensible ground to distinguish the tongue from a penis or other objects for the purposes of deciding whether cunnilingus, committed without vaginal penetration, had been included in the definition of "sexual intercourse". However, in Cox J's view, it was intended by the inclusion of "cunnilingus" to go further.

35. Cunnilingus was, his Honour noted, defined in its ordinary usage as "the sexual practice in which the tongue and mouth are used to lick or stimulate the vulva" (Blakiston's Gould Medical Dictionary (4th ed, 1979). Thus, even if penetration by the tongue had not occurred, the act of oral contact by the tongue or mouth with the female genitalia would constitute cunnilingus and, hence, "sexual intercourse" as defined.

36. Similarly, Cox J observed, "fellatio", an activity also included in the definition, has been defined variously as "oral stimulation of the male genitals" as well as "a sexual act in which the partner's penis is sucked or licked". It derives from the Latin verb "fellare" - "to suck". That might suggest penetration of the mouth. However, if so, Cox J considered it unnecessary to decide whether penetration of the mouth was necessary to constitute "fellatio". Matheson J commented, at 386:

"... I do not think Parliament intended that the prosecution should prove that the victim did any sucking or licking ... My tentative view is that it would be fellatio, within the meaning of the Act, if the accused's penis touched the victim's teeth. Such conduct would of necessity involve penetration of the lips."

37. The case of penetration by the victim of the mouth of the offender was not adverted to by Matheson J, though Cox J, at 384, observed:

"If par (b) is to be given a wide interpretation - and to the victim of aggressive fellatio the distinction between sucking and licking will probably seem unimportant - the paragraph provides another instance of Parliament including a purely erotogenic piece of conduct, quite distinct from anything like ordinary sexual intercourse, by way of a statutory extension of that last expression."

38. The degree of penetration (if any) required depends on the terms used in the statutory context, whatever the common law or settled meaning may have been in relation to terms such as "rape", "buggery", "fellatio" or "cunnilingus".

39. Thus where the offence refers to penetration of "the vagina" rather than, say, "the labia" or "the introitus", the legislature should be presumed to mean what it has stated, whatever may have been the common law requirement or previously understood meaning.

40. I held in R v AG (1997) 94 A Crim R 187, following Holland (1993) 68 A Crim R 176, that whilst the common law of rape would find rape established without penetration into the vagina, a definition referring to penetration, to any extent, of "the vagina", was not satisfied by penetration up to, but not to any extent into, the vagina.

41. In Rien v R (1995) 63 SASR 503, the Supreme Court of South Australia had to determine the meaning of the term "fellatio" which, like cunnilingus, was statutorily defined as "sexual intercourse". The accused in Rien (supra) had assaulted the complainant by, without the latter's consent, sucking his penis. This was the kind of conduct which had been referred to by Cox J in Randall (supra).

42. It was accepted by counsel for the accused in Rien that (at 505, per Cox J):

"... there will be an act of fellatio committed by a perpetrator when he puts his penis into the victim's mouth and there will also be an act of fellatio committed by the perpetrator when he or she takes the victim's penis into his or her own mouth."

43. However, Cox J differed with the accused's counsel in that he accepted that licking of the penis of a person sufficed for fellatio. Penetration by the penis into the mouth was not necessary. It seems that the essence of each of fellatio and cunnilingus, as perceived by Cox J, was the stimulation or attempted stimulation of the male or female genitalia (as the case may be) by means of the mouth or tongue. Olsson and Mullighan JJ agreed with Cox J.

44. The relevant provision (Criminal Law Consolidation Act 1935 (SA), s 5) defined "sexual intercourse" as including:

"(a) penetration of the vagina or anus of a person by any part of the body of another person or by any object;

(b) fellatio;

or

(c) cunnilingus."

45. Cunnilingus was, at least usually, outside the conduct defined in subsection (a). Penetration of the vagina by the tongue is not a necessary element of cunnilingus. The definition thus invited a parity of meaning as between fellatio and cunnilingus in relation both to the degree of penetration (lips/vulva) and as to the inclusion of licking or sucking by the perpetrator.

46. That dichotomy is not observed in s 92 of the Act. Nor is it in s 61A(1) of the Crimes Act 1900 (NSW). The relevant conduct, defined as being included in the term "sexual intercourse" was, in that latter provision:

" (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person."

That definition has similarity with s 92(c) of the Act.

47. In R v Preval [1984] 3 NSWLR 647, the appellant had been convicted of a sexual assault upon a female. The assault included an act of fellatio. There was some doubt, on the evidence, as to whether the appellant's penis had penetrated beyond the lips of the complainant. The trial judge directed that "if it goes between her lips then it is penetration within the meaning of the Act."

"I am of the view that the direction given by his Honour that penetration of the lips is in law sufficient to amount to sexual intercourse is correct. It would have been preferable if his Honour had not introduced the ambiguity inherent in the proposition: "It does not matter if it goes into her mouth." The ambiguity lurking in that particular sentence is lent point by the definition that the sexual connection which must be proved is an introduction of any part of the penis of a person into the mouth of another person. Within the meaning of this definition, the penetration of the lips of the victim is a penetration of the mouth in order to constitute the offence to which the section is directed. It is in my view immaterial how far within the lips the penetration be accomplished."

49. With those comments, Priestly JA and Miles J concurred.

50. Whilst those comments address the issue of "introduction", equating it with penetration of the lips, they do not address the issue as to whether the offence may be committed by the taking of the victim's penis into the perpetrator's mouth. The reference to the "lips of the victim" could be viewed as consistent with exclusion of the latter conduct from the definition. However, it is not apparent that consideration was given to whether the conduct of a person in taking another's penis into his or her mouth fell within the definition. It is also apparent that neither the statutory provision there or now under consideration expressly addresses that issue.

51. In DPP v M and J (1993) 9 WAR 281, as in Rien, the latter issue also arose. It was in the context of the Criminal Code (WA) which sought to define and then, in circumstances similar to those referred to in the ACT Crimes Act, to proscribe, "sexual penetration". The phrase "Any person who sexually penetrates another person" was then employed to introduce the various offence creating provisions.

52. The definition was (s 324F, Criminal Code (WA)):

"(a) to penetrate the vagina of any person or the anus of any person with -

(i) any part of the body of another person; or

(ii) an object manipulated by another person, except where the penetration is carried out for proper medical purposes;

(b) to manipulate any part of the body of another person so as to cause penetration of the vagina or anus of the offender by part of the other person's body;

(c) to introduce any part of the penis of a person into the mouth of another person;

(d) to engage in cunnilingus; or

(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d)."

53. After the date of the offences alleged against M (on 1 August 1992) the words "or fellatio" were added in (d) after the words "to engage in cunnilingus".

54. The pre-1992 definition had, as in this Territory, been introduced to render sexual offences gender neutral and to elevate some forms of sexual assault to the status previously held by "rape" rather than to leave them as less serious sexual assaults.

55. The Crown contended that the definition in subsection (d), read literally, included penetration by the victim of the mouth of the offender, even before the amendment to the definition.

56. M's counsel, to the contrary, submitted that the statutory definition was aimed at "that person" who was subjected to the introduction of the penis. It is "that person" whose consent or not thereto was relevant, not the other way around.

57. The definition in the Criminal Code (WA) was somewhat more explicit than that in the ACT Act. Subsection (b) of the Code expressly referred to penetration of the offender, strengthening the inference contended for by M's counsel, there being no such express reference in subsection (c).

58. Malcolm CJ and Walsh J were of the view that subsection (b), did not apply to the manipulation by a person of the penis of another so as to cause penetration of the mouth of the first-mentioned person.

59. To be consistent with the DPP's submission, their Honours (at 286) considered subsection (c) would need to be read in the context of the offence as including:

"Any person who introduces any part of the penis of a person (being a person other than the offender) into the mouth of another person (being the offender or some third person) without the consent of that person is guilty of a crime ..."

"On this basis there would appear to be a clear ambiguity. Where the word "person" first appears it can only mean the alleged offender. Where the word "person" secondly appears it probably means a person other than the offender, although it would be possible to argue that it may mean the offender. Where the word "person" is thirdly used, it is in the sense of "another person". It is that person whose consent must be absent so as to constitute the offence. That person is the person into whose mouth the penis is introduced, namely, the person penetrated. It follows that such person cannot be the alleged offender. In order to achieve the interpretation contended for by the Crown it is necessary to construe the words "that person" as a reference back to the person whose penis is introduced into the mouth of another. If this is right it necessarily follows that the provision is ambiguous."

61. In their Honours' view, had the provision referred to a person who "engages in" "cunnilingus" or "fellatio" (as it now does) then a different result might have ensued.

(287) "Both cunnilingus and fellatio in their ordinary meaning are mutual activities in which one person engages with another or performs on another ... [reference to dictionary definitions follow].

In our opinion, cunnilingus, as defined in the dictionaries, does not involve penetration of the vagina. It is an act of stimulation. In this respect we agree with what was said by Cox J in R v Randall (1991) 55 SASR 447 at 449-452. If a person penetrates the vagina of a woman with his or her tongue, that act would fall under par (a) of ... s 324F ... The effect of the inclusion of par (d) in the definition is to deem an act of cunnilingus not necessarily involving penetration to constitute penetration.

The position in relation to fellatio appears to be similar ... The word "fellatio" is derived from the Latin verb fellare which means "to suck". As a matter of common usage, fellatio has been extended to licking. On this basis, fellatio does not necessarily involve penetration. Where A places his penis in the mouth of B without the consent of B, that conduct will constitute penetration within par (c) of the definition. Where A places the penis of B into the mouth of A or licks the penis of B without the consent of B, that conduct constitutes fellatio ...

In our opinion, the case where A places the penis of B into the mouth of A without the consent of B is not a case which fell within par (c) of the definition as it stood when the offences alleged to have been committed by M and J occurred.

The acceptance of the submissions of counsel for the Director involves a construction of the section which produces an ambiguity. It requires the resolution of the ambiguity in a criminal statute in such a way as to create a new criminal offence, which can only be achieved by making adjustments to the language and a strained application of the definition in the manner we have described."

62. Their Honours then reviewed and cited various previous High Court authorities, including Beckwith, concluding that it remained the law that penal statutes should, if a real doubt arises as to their meaning, ordinarily be strictly construed so as to extend the criminal law as little as possible.

63. Rowlands J dissented. In his Honour's view no distinction had been made in s 324F(c) between introducor and introducee. The Second Reading Speech had indicated that the then Attorney-General had considered that the amendment of 1985 (pre-1992) had included both fellatio and cunnilingus as deemed sexual penetrations. Although the scope of "fellatio" is wider than s 324F(c) contemplated (it is not wide enough to include "licking"), in his Honour's view (at 291) a reading of the definition:

"... leaves little doubt as to the sexual activities which are proscribed, one of which is the introduction of a penis into the mouth of another, and it seems to me that if either the introducor or the introducee does not consent, then a substantive offence is committed."

64. A single judge of this Court should follow a decision of the Full Court of a State or Territory on point unless persuaded that it is clearly wrong. I am not persuaded that either R v Randall or DPP v M and J (supra) is wrong.

65. In Randall, the term "fellatio" was expressly used. It covers penetration of the mouth or mere licking. It covers either an introducor or an introducee of the penis of a person to the mouth or tongue of another person. In DPP v M and J, the defined term was "to sexually penetrate". It expressly included cunnilingus but not fellatio (as generally understood). It included only part of the conduct encompassed by the word "fellatio". On that the Full Court was agreed. Penetration of the mouth was an essential element of s 324F(c). However, the majority considered the definition was yet more restrictive, the emphasis being on the protection of persons from unwanted sexual penetration. Thus only the introducor fell within s 324F(c) not the introducee.

66. In the case of s 92 of the Act, the emphasis in the Explanatory Memorandum was on the protection of persons from unwanted sexual penetration, particularly women, though not exclusively so.

67. On the other hand, the term being defined, "sexual intercourse", was inserted into offence creating provisions expressed in terms of "a person who engages in ...". In the case of the Criminal Code (WA), the expression "sexual penetration" appeared in the context of "a person who sexually penetrates". In each case some of the activities included in the defined expression did not involve penetration. Nevertheless, in the Code the emphasis is upon penetration. To "engage in" an activity is an expression that encompasses each participant in it. To penetrate seems aimed at the penetrator not the penetrated. It does not seem to me to strain language to say of, for example, a man and a woman performing the traditional sexual act that each is "engaged" or is "engaging in" in sexual intercourse. Nor does it offend the policy of the legislation enacted in 1985 that either party to a sexual act of the defined kind should be exposed to a similar level of punishment if the other is either non-consenting or underage.

68. Thus, it is my opinion that to offend against s 92E(2) it is necessary only to show that the accused and the other person had "engaged in" an activity defined by s 92 as "sexual intercourse" and that the other person was of a proscribed age (or non-consenting) in the absence of any prescribed or general matter of defence.

69. I therefore conclude that the conduct admitted by this accused falls within s 92E(2) and I dismiss his objection to the indictment accordingly.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the Accused: Bernard Collaery & Associates