JUDGE1 COX J The appellant was arraigned before Prior J last January on an information that charged him with two counts of unlawful sexual intercourse with a person under 12. He pleaded not guilty. The alleged victim was a little girl of four with whose mother the appellant was living. The particulars on each count were that the appellant performed an act of cunnilingus upon the child. Evidently the child made a complaint to her mother and as a result the appellant was interviewed by the police. The only explicit evidence in the committal papers of what the appellant did is the following passage from the record of Detective Jeffery's interview with the appellant - "Q. What did you actually do to Renee? A. I licked her. Q. Where did you lick her? A. Down between her legs, her fanny. Q. How many times did you do it? A. A fair few times. ... Q. Did you put your tongue inside her vagina? A. No, just licked it on the outside." The appellant's counsel submitted to Prior J that this was not evidence of an act of cunnilingus within the meaning of s.5 of the Criminal Law Consolidation Act 1935 (as amended), because it lacked the element of penetration. The learned Judge held otherwise. He followed an earlier decision of this Court in R. v. Corkin (No. 2) (1988) 50 SASR 285. The appellant thereupon changed his plea and he was later sentenced to imprisonment. He now appeals against his conviction on the ground that the Judge erred in ruling that the charges that the appellant faced did not require proof of penetration. 2. Section 49 of the Criminal Law Consolidation Act makes it an offence for anyone to have sexual intercourse with a person under the age of twelve years. Sub-section (1) of s.5 provides - "In this Act - ... 'sexual intercourse' includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving - (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." There are similar statutory provisions in other States but I have not been able to find any reported case outside South Australia on the precise meaning of cunnilingus. 3. In Corkin (No. 2) I gave a ruling in the course of a trial that the stimulation of the female vulva, or external genital area, with the tongue amounted to an act of cunnilingus for the purpose of s.5. Proof of penetration of the vagina was not necessary. In reaching that conclusion I took into account the s.5 definition of "sexual intercourse", the dictionary meanings of "cunnilingus" and the word's derivation. I thought it significant that, if cunnilingus required vaginal penetration, it was already included within the general words of par.(a) of the definition and there was no point in Parliament dealing expressly with cunnilingus in par.(c). I refer to the report of Corkin (No. 2) in order to save setting out my reasoning again here. The question on this appeal is whether that reasoning was sound. 4. Mr Halliday appeared for the appellant in this Court. His first submission noted the reference to "penetration of the vagina or anus" in par.(a) of the definition and argued that it would be strange if sexual intercourse by way of cunnilingus did not require penetration when all other forms of sexual intercourse in the pubic area, including "ordinary" penile intercourse, require penetration of the vagina itself. I think this submission breaks down, in part, at its first step. 5. Until 1976 there was no definition of "sexual intercourse" (or of "carnal knowledge", as it used to be called) in the Criminal Law Consolidation Act. Such crimes as rape depended upon the common law's understanding of what constituted sexual intercourse, supplemented by the provision in s.73 that made it plain that sexual intercourse was sufficiently established by proof of penetration; there was no need to prove emission. Cf. The Queen v. Salmon (1969) SASR 76, The Queen v. Murphy (1988) 52 SASR 186. It has been a common practice in this Court, so far as I am aware, for trial judges simply to tell the jury in this respect in a rape trial that the Crown must prove penetration but that any degree of penetration will do. Usually no explanation is given of precisely what it is that must be penetrated - a serious deficiency by reason of its ambiguity in some cases, particularly of young victims, if penetration of the vaginal canal itself is required. Nor are the authorities generally any more exact. See, for example, Papadimitropoulos v. The Queen [1957] HCA 74; (1957) 98 CLR 249; Salmon. In fact, it would appear that, at least for the last 150 years, the common law, for obvious practical reasons, has made no attempt to distinguish for this purpose between penetration of the vulva, as denoted by the labia majora, or outer lips, and penetration of the vagina itself. What little explicit authority on the point may be found in the books supports the wider notion of sexual intercourse. In The Queen v. Lines (1844) 1 CarandK 393; [1844] EngR 333; 174 ER 861, Parke B. was trying a man for carnal knowledge of a female child under 10. There was evidence that the hymen of the child was not ruptured and counsel for the prisoner submitted that all the physical appearances were consistent with a failure to penetrate the vagina so that his client could not be convicted of the completed offence. The learned Judge's ruling was - "I shall leave it to the jury to say, whether, at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix; for if ever it was (no matter how little), that will be sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offence." Lines has always been cited in text books and judgements dealing with the physical requirements of rape without, so far as I am aware, ever attracting adverse comment. See, by way of a random sample, Russell on Crimes (7th ed., 1909), vol. 1, 933; Halsbury's Laws of England, 3rd ed. (1955), vol. 10, par. 1438; Archbold, Pleading Evidence and Practice in Criminal Cases (42nd ed., 1985), par.20-343; Burke's Criminal Law - Victoria (current) par.1105; R. v. Preval (1984) 3 NSWLR 647; The Queen v. Nathan (1988) 145 LSJS 236. I think it is clear, then, that a charge of rape in this State, prior to 1975, was sufficiently proved by showing that the penis of the man penetrated the woman's labia. There was no need to prove penetration of the vagina itself. 6. In 1976 a paragraph referring to "sexual intercourse" was inserted in s.5 of the Criminal Law Consolidation Act for the first time. It did not attempt to define the expression but stated that "sexual intercourse" in the Act included the introduction of the penis into the anus or mouth of another person. Then, in 1985, that paragraph was replaced by the definition that I have set out earlier in these reasons. Again, it did not purport to define the expression exhaustively. It simply stated that certain activities were included within the meaning of sexual intercourse. 7. It is plain that the 1985 amendment to s.5 was intended to expand the notion of sexual intercourse well beyond its ordinary connotation. One of the ways in which this was done was by declaring that any activity consisting of or involving penetration of "the vagina" of a person, by any part of the body of another or by any object, should constitute sexual intercourse for the purpose of rape and other sexual offences under the Act. I think it very unlikely that Parliament intended at the same time to narrow the physical elements of such offences, so far as penetration is concerned, by confining them to cases in which the prosecution is able to prove penetration of the vagina, strictly so called, and not merely penetration of the labia. No good reason comes to mind for abrogating the view of sexual intercourse that was expressed in Lines and implicitly followed in innumerable rape cases thereafter, especially where the result would be to introduce a practical evidential difficulty in a great number of cases coming within par.(a) of the s.5 definition that would obviously be better avoided. 8. There are two ways of reconciling the formula used in par.(a) and the common law notion of sexual intercourse - either by emphasizing the inclusive character of the 1985 definition and so treating par.(a) as merely supplementary to the prior understanding of sexual intercourse for the purpose of the sexual offences in the Criminal Law Consolidation Act, or else by giving a liberal or non-technical meaning to "vagina" in par.(a) so that it embraces the whole of the genital area within the labia. I think the latter interpretation of the definition is reasonably open and is to be preferred. It would bring those activities that are especially proscribed under par.(a) into line, so far as this aspect of the matter is concerned, with the common law conception of ordinary sexual intercourse - which is probably what Parliament intended. That would have the advantage of avoiding the practical difficulties to which I have referred. It would also accord, I suspect, with the ordinary person's understanding of what is meant by vaginal penetration in this context. I would hold, therefore, that "penetration of the vagina", for the purpose of par.(a), is sufficiently proved by a penetration of the labia. 9. What, then, of par.(c)? If an act of cunnilingus can take place without any labial penetration, as I held in Corkin (No.2), there remains a disconformity on that aspect of the matter between cunnilingus and, on the other hand, rape and the other sexual offences referred to in par.(a). Mr Halliday submitted that this would be anomalous - there is no sensible ground for distinguishing the tongue in this respect from the penis or any other animate or inanimate object, and Corkin (No. 2) should be overruled. 10. The argument that the two paragraphs of the statutory definition of "sexual intercourse" should be harmonized in this way is a plausible one but it must yield, in my opinion, to the clear implications of the definition when read as a whole. 11. If cunnilingus requires proof of penetration, par.(c) is unnecessary; cunnilingus is already caught by the general words of par.(a). One does not lightly interpret a statutory provision in a way that condemns it as plainly superfluous. Then there are the general and technical dictionary definitions of "cunnilingus". I quoted a number of them in Corkin (No.2). The preponderance of them was against the appellant. (I may say that the 4th edition of Blakiston's Gould Medical Dictionary now has a definition of cunnilingus itself: "the sexual practice in which the tongue and mouth are used to lick or stimulate the vulva".) No other dictionaries were cited in this appeal, but the Supreme Court Library has supplied me with two more from the Medical School of the University of Adelaide - Taber's Cyclopedic Medical Dictionary (U.S., 1985): "sexual activity in which the mouth and tongue are used to stimulate the female genitalia", and International Dictionary of Medicine and Biology (U.S., 1986): "licking or kissing the female genitalia, usually the clitoris". The labia, including their outer aspects, are physically a part of the genitalia and we can infer from such cases as the appellant's that the whole of the genitalia may appropriately be regarded as a single erogenous area. I think the dictionary definitions accurately express the present-day meaning of cunnilingus, and I see no reason to suppose that any other meaning was intended in the 1985 amendment, although obviously no mutuality of purpose or willing co-operation by the victim is generally to be expected and any sexual stimulation that is achieved or perhaps even sought is likely to be confined to the perpetrator. Cf. The Queen v. Remynse (1987) 135 LSJS 180. Parliament has thus included within the extended definition of "sexual intercourse" in s.5 a term that describes a particular form of sexual activity, whether intended by the perpetrator to gratify the woman or the perpetrator or both, and that is not directly concerned with the act of coition, homosexual or heterosexual, real or simulated, that underlies the formula used in par.(a). On that view of the matter, the circumstance that penetration will be required in one case but not in the other is irrelevant. 12. I would interpret the word "cunnilingus" more precisely now than I did in Corkin (No. 2). In my opinion, it denotes the licking or sucking of the vagina or vulva, including the labia majora, with the tongue or mouth. No distinction is to be drawn between the outer and inner aspects of the labia. 13. As I observed in Corkin (No. 2), it may be that a similar question arises under par.(b) of the definition and with a similar result. The Macquarie Dictionary defines "fellatio" as "oral stimulation of the male genitals," and it might be argued, perhaps, that there is enough uncertainty about what precisely that signifies, coupled with the word's derivation from "fellare", meaning "to suck", to confine fellatio under the Criminal Law Consolidation Act to the penetration of another person's mouth by the penis. Cf. Preval. Obviously it includes such penetration, even if that is all that happens, but it probably covers other penile activity as well. It may extend to the hostile, non-consensual sucking or licking of another person's penis. It is noteworthy that the Oxford English Dictionary defines "fellatio" as "a sexual act in which the partner's penis is sucked or licked". Cf. Remynse. If par.(b) is to be given a wide interpretation - and to the victim of aggressive fellatio the distinction between the different actions postulated 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. However, it is not necessary to express a view about the proper limits of par.(b) in order to decide this appeal. 14. In my opinion, the appellant's admissions to the detective provided evidence of acts of cunnilingus on his part. The learned Judge came to the correct decision. I would dismiss the appeal.

JUDGE2 KING CJ I would dismiss the appeal for the reasons given by Justice Cox.

JUDGE3 MATHESON J I agree with Cox J that the appeal should be dismissed, and I agree generally with the reasons he has given for coming to that conclusion. Specifically, I agree that "penetration of the vagina", for the purpose of par.(a) of the definition is sufficiently proved by a penetration of the labia. As to the actual word cunnilingus in the Criminal Law Consolidation Act, I would prefer to state my conclusion that it includes the licking of the vagina, including the labia majora, with the tongue. 2. Notwithstanding the dictionary definitions quoted by Cox J in R. v. Corkin (No. 2) (1988) 50 SASR 285 and in his judgment herein, and whatever might be the meaning of the word cunnilingus in common usage today, I think it is inappropriate to use the word stimulation when defining its meaning under the Act. I think that follows from the reasoning of Wells AJ in R. v. Remynse 135 LSJS 180. At pp 180-181, when his Honour was more particularly considering the word "fellatio", he said: " Works of authority on the Latin language ... presupposed a definite mutuality, a willing co-operation, on the part of the party whose mouth was used, which was manifested by sucking. The Supplement to the Shorter Oxford Dictionary declares authoritatively that the co-operation may now extend to licking... It seems, then, that this was the ambit of meaning denoted by the word fellatio in its historical and in its more modern settings. It may be called its natural meaning today when used, let us suppose, as part of a simpl(e) narrative or description in general speech. If its natural meaning is given to it in s.5 and for the purpose of s.48, however, it could lead to strange results in the sort of case that might reasonably be expected to be brought to trial pursuant to

those sections. If, as must be proved, the victim is not consenting, it is at least reasonably possible that mutuality,

willing cooperation, would be wholly absent, and even if there were any overt response by the victim it would be likely to be convulsive or spasmodic, rather than consensual. It would, in my opinion, be absurd if the very perpetration of the actus reus were thus to render consummation of the substantive crime impossible in most cases. I return, then, to the definition. This, as I have said, is an inclusive one; it is not exhaustive and exclusive. At the core of the expression 'sexual intercourse' there remains,therefore, its natural meaning. According to ordinary usage,and not in the special context of ss.5 and 48, the expression connotes a willing submission and cooperation by the woman.When, however, the expression is used as part of the definition of rape to denote vaginal penetration by a man's penis, it almost inevitably excludes mutuality or cooperation (unless the girl makes a show of cooperation out of fear). Indeed, classic forms of rape are when there is penetration while the woman is frozen stiff with fear, or is struggling violently in order to avoid carnal knowledge. It is clear, therefore, in my opinion, that the ingredient that is signified by the expression 'without her consent' operates reasonably and necessarily to exclude mutuality or cooperation as an essential ingredient when what I may term traditionalrape is in issue. If it is excluded in such cases, then it is both reasonable and logical to infer that the correspondent ingredient in fellatio - and, in my opinion, cunnilingus, too,though we are not concerned with that here - must also be excluded for the purpose of ss.5 and 48. Noscitur a sociis." 3. I have also been influenced by the etymology of the word in reaching a conclusion. That does not include any idea of stimulation. 4. In R. v. Corkin (No. 2), Cox J referred to a direction I gave to the jury in the case of Bowie in September, 1988. In that case, the complainant was a young girl, and she was asked to mark with a cross on an anatomical drawing where the accused licked her, the prosecution case being that the accused's tongue actually penetrated the labia, and the drawing went backwards and forwards to the jury, and became a critical exhibit in the case. I refer to that case because it is worth observing that the interpretation that this Court is now propounding will avoid the unsatisfactory procedure that was followed therein. 5. It is not necessary for the purpose of this appeal to express a view about the proper limits of the word fellatio in the definition. It is clearly derived from the Latin word "fellare" meaning "to suck", but having regard to the reasoning of Wells AJ (supra), I do not think Parliament intended that the prosecution should prove that the victim did any sucking or licking. Wells AJ held in Remynse that "the merest penetration ... of the mouth will suffice ...". However, I have had cases, particularised as oral rape, where the victim has closed his or her teeth, and thereby prevented the accused's penis entering the mouth past the teeth. 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. However, this question was not argued on the appeal.