Saraswati v The Queen
(1991) 172 CLR 1(Judgment by: DEANE J)
Between: Saraswati
And: The Queen
Judges:
Deane JDawson J
Toohey J
Gaudron J
McHugh J
Judgment date: 5 June 1991
Judgment by:
DEANE J
I agree with the judgment of Dawson J. I add some comments of a supplementary nature in relation to the applicant's two convictions of an act of indecency for conduct which involved an assault falling short of carnal knowledge. Subject only to the consideration that the offence of carnal knowledge did not involve an "act of indecency" as a specific element, these comments are also applicable to the applicant's third conviction.
2. It is commonplace for conduct which of itself constitutes a criminal offence to be an element of a different, and more serious, criminal offence. For example: s.94 of the Crimes Act 1900 (N.S.W.) ("the Act") creates the basic offence of robbery (fourteen years penal servitude); s.95 creates the more serious offence of robbery with striking (twenty years); s.96 creates the even more serious offence of robbery with wounding (twenty-five years). The elements of the basic offence of robbery are among the elements of the offence of robbery with striking which are, in turn, among the elements of the offence of robbery with wounding. In the case of such statutory provisions, it is no defence to a prosecution of the lesser offence (e.g. robbery) to prove (or raise a doubt about) guilt of one or both of the more serious offences (i.e. robbery with striking and robbery with wounding). The reason why that is so is that a person who is guilty of robbery with wounding under s.96 or of robbery with striking under s.95 is also guilty of robbery under s.94. That does not, of course, mean that a person can be convicted of both the basic offence and one or both of the more serious offences. If a person is convicted of any of those offences, the conviction is a bar to any further prosecution of the same conduct. If a person is acquitted of the lesser offence, he cannot subsequently be convicted of a more serious offence of which the conduct constituting the lesser offence is an element (see, e.g., Reg. v. Storey (1978) 140 CLR 364 , at pp 408-409). In some circumstances, a person acquitted of a more serious offence cannot be lawfully convicted of a lesser offence: on the same trial because of the rule against inconsistent verdicts; on a subsequent trial because of the rule "that where a criminal charge has been adjudicated upon by a Court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence, whether with or without circumstances of aggravation, and whether such circumstances of aggravation consist of the offence having been committed with malicious or wicked intent, or by reason that the committal of the offence was followed by serious consequences" (Reg. v. Miles (1890) 24 QBD 423, at p 431; and see also Reg. v. Weeding (1959) VR 298, at pp 301-302).
3. There are, upon analysis, compelling practical reasons why a statutory provision creating an offence should not be construed as inapplicable to circumstances where conduct which otherwise falls within its terms is aggravated by some circumstance (being part of a single transaction or course of action) which makes the overall conduct a more serious offence under some other statutory provision. If, for example, the provisions of s.94 of the Act creating the basic offence of robbery were treated as confined so as not to include a case where the conduct was aggravated by striking or by striking and wounding, the situation would result that a person who was proved beyond reasonable doubt to be guilty of robbery could not, in the absence of some qualification of the fundamental requirement of proof beyond reasonable doubt, be convicted of any offence at all if the evidence indicated that, as a matter of mere probability, he had, at the time of robbing the other person, struck and wounded him. He could not be convicted of robbery with striking or of robbery with wounding for the reason that the evidence did not establish the striking or wounding beyond reasonable doubt. He could not be convicted of robbery for the reason that the evidence established that he had probably struck and wounded the other person and s.94 of the Act would not, if given that narrow construction, be applicable to the circumstances. Common sense, the efficient working of the administration of criminal justice, and the presumption that the Legislature intends that its words be given their ordinary meaning, combine to dictate that, in the absence of an identified legislative intent to the contrary, a general statutory provision which makes specified conduct an offence should be construed in accordance with its terms and should not be confined so as to be inapplicable to a case where, in its context within a single transaction or course of action, the designated conduct also constitutes an element of a more serious offence. In such a case, the offender is guilty of both the basic offence and the more serious offence notwithstanding the fact that, as a matter of basic principle, he cannot be convicted of them both. Indeed, much of the administration of criminal justice is, as a matter of practice, based on the recognition that, in those circumstances, the two offences are not to be artificially construed as mutually exclusive. Were it otherwise, the Crown would be inviting a court to sentence an accused for an offence of which he was probably innocent on every occasion where it accepted a plea of guilty to a lesser offence in a case where it was in possession of evidence which established a bare probability of guilt of a more serious offence of which the conduct constituting the lesser offence was an element. All of these considerations are relevant in the present case. They support a conclusion that the general words of s.61E(2) should be construed as meaning what they say.
4. It is convenient, for the purposes of the appeal, to ignore subsequent amendments and to refer in the present tense to relevant provisions of the Act in the form applicable to the alleged offences. Under s.61E(2), an "act of indecency with or towards a person under the age of 16 years" is an offence punishable by imprisonment for two years. Under s.61E(1), "(a)ny person who assaults another person" who is under the age of sixteen years "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" is guilty of an offence punishable by penal servitude for six years. There is nothing in either of the two sub-sections to indicate a legislative intent that the general words of sub-s.(2) should be construed as not applying to the circumstances to which sub-s.(1) applies, namely, where the "act of indecency" in the presence of the other person accompanies a contemporaneous assault. It follows that, at least prima facie, the fact that the applicant also assaulted the girl with or towards whom the act of indecency was committed did not preclude his conduct from constituting an offence under s.61E(2). It is, however, submitted for the applicant that the general words of s.61E(2) should be confined to exclude an "act of indecency" which constitutes an element of an offence under s.61E(1) in deference to the legislative policy to be discerned in s.78 of the Act. That section relevantly provides that no prosecution in respect of an offence under s.61E(1) (or under the statutory provisions dealing with carnal knowledge and attempted carnal knowledge) shall be permitted after the expiration of twelve months from the time of the alleged offence if the person upon whom the offence is alleged to have been committed was, at the relevant time, over the age of fourteen years and under the age of sixteen years. The basis of the argument that s.61E(2) should be so confined lies in the perception that the policy underlying s.78 could otherwise be frustrated at the whim of the prosecution in that conduct which amounted to indecent assault (under s.61E(1)) could be prosecuted as an act of indecency (under s.61E(2)) notwithstanding that the person upon whom the offence was alleged to have been committed was over the age of fourteen and under the age of sixteen years and that the time limit laid down by s.78 had expired. That perception derives some support from considerations of consistency in that it is difficult to envisage why the Legislature should impose a rigid time limit on the prosecution of the more serious offence of indecent assault (or carnal knowledge or attempted carnal knowledge) while allowing the same conduct to be prosecuted as the less serious offence of an act of indecency after the expiration of that time limit.
5. Upon analysis, however, the argument based upon an assumption of legislative consistency is far from convincing. Indeed, on any approach, it is all but impossible to discern any coherent legislative purpose underlying s.78. Plainly enough, the continued omission of mention of s.61E(2) in s.78 evidences a legislative intent that a prosecution of the lesser offence of an "act of indecency" (within the meaning of s.61E(2)) was to be allowed after the expiry of the time limited for the prosecution of the more serious offence of assault accompanied by an "act of indecency" (within the meaning of s.61E(1)) in a case where the alleged victim was between fourteen and sixteen years old. One can only speculate about the rationale of that legislative intent. Perhaps it was simply that the offence of an "act of indecency" is a less serious one. Perhaps it was that an "act of indecency" is a comprehensive offence which does not involve the same degree of detailed particularization as do the more serious offences of indecent assault, attempted carnal knowledge and carnal knowledge and that, for that reason, the recollection and evidence of the alleged victim may be less reliable in the case of the more serious offences. However, if considerations relating to the reliability of evidence underlay the legislative policy to be discerned in s.78, it is difficult to understand why the time limit is imposed in the case of the more serious offences only in a case where the alleged victim has reached fourteen years of age. Be that as it may, it would be to confound, rather than to vindicate, consistency of legislative policy to say that it was the legislative intent that the prosecution of an "act of indecency" in the presence of a child should be allowed after the time limited by s.78, but only if it appeared beyond reasonable doubt that the conduct of the accused had not involved any aggravating circumstance, such as an assault on the child, which would involve the commission of some more serious offence than that with which he was charged. If that were legislative policy, it would comprehend, for the reasons given, the strange notion that a person who had committed what would otherwise be an "act of indecency" under s.61E(2) must be acquitted of any offence at all if it appears that he was probably also guilty of a more serious offence of which the evidence was insufficient to establish proof beyond reasonable doubt notwithstanding that the statutory time limit for the more serious offence was inapplicable (e.g. a thirteen-year-old victim) or had not expired. In a case such as the present where the time limit was applicable and had expired, the applicant's argument is, in effect, that the statutory language should be distorted so as to create a legislative regime under which a person otherwise guilty of an "act of indecency" under s.61E(2) would escape conviction if it appeared - and the onus would lie upon the Crown to disprove - that the act of indecency may have been aggravated by a contemporaneous assault upon the child. It is difficult to envisage circumstances more likely to bring the administration of criminal justice into disrepute and less likely to have been intended by the Legislature than a scenario where a jury was required to pronounce a person accused of an act of indecency not guilty solely for the reason that it entertained a reasonable doubt that he had also assaulted the victim.
6. It is true that the offence of an "act of indecency" (s.61E(2)) was intended to fill a gap in the existing law. That does not, however, mean that the offence created to fill that gap was intended to be confined in a way which is quite inconsistent with the ordinary legislative approach, that is to say, in a way which would exclude any conduct which constituted some more serious offence under some other statutory provision. In that regard, it is important to note that s.61E(2) in terms makes an "act of indecency" an offence in a context where s.61E(1) in terms identifies an "act of indecency" as an element of the more serious offence of indecent assault. It is scarcely likely that the Legislature intended that the "act of indecency" referred to in s.61E(2) should have a different meaning to the "act of indecency" in s.61E(1): e.g., that "act of indecency" in s.61E(2) covered the case where the accused masturbated in the presence of a small girl and told her to place her hand on his person but did not cover the case where he committed a contemporaneous technical assault on the child by physically placing her hand on his person. It is, in my view, highly unlikely that the Legislature would have intended that the general words of s.61E(2) should be artificially constricted by the courts in a way which would produce such a consequence.
7. It has been assumed in the above that there should not be attributed to the Legislature, in the absence of clear words, a legislative intent to qualify the fundamental principle that a person cannot be convicted of an offence unless the jury is satisfied beyond reasonable doubt that he is guilty of that particular offence by, for example, allowing the jury to convict an accused of the offence of act of indecency in circumstances where, on the applicant's construction of the relevant provisions, there is a probability or possibility that he is not guilty of the offence but where it was established beyond reasonable doubt that he is guilty of either that offence or the offence of indecent assault. It should be acknowledged that the qualification of the requirements of the criminal onus of proof has been seen, in some circumstances, as a preferable alternative to subjecting the administration of criminal justice to consequences similar to those which would otherwise flow from the construction of the relevant provisions of the Act for which the applicant contends. Those circumstances have, however, been exceptional in the sense that they have related to areas involving the division of territorial jurisdiction within Australia (see Thompson v. The Queen (1989) 169 CLR 1 ) or to the special area in which the doctrine of recent possession operates to sustain inferences of guilt (see, e.g., Reg. v. Langmead (1864) Le and Ca 427 (169 ER 1459); Ghys v. Crafter (1934) SASR 28; Reg. v. Dawson (1964) SASR 256; but note, e.g., Attorney-General of Hong Kong v. Yip Kai-foon (1988) AC 642 and Reg. v. Bruce (1988) VR 579 denying any qualification of the principle of proof beyond reasonable doubt even in that special area). It was not, however, suggested in argument that the consequences of the applicant's construction of the provisions of s.61E(2) could properly be avoided by any such qualification of the ordinary criminal onus of proof in relation to the relevant offences. More important, if the artificial construction of s.61E(2) for which the applicant contends would involve an expansion of the anomalous areas in which the ordinary criminal onus of proof is so qualified, the fact that that was so would represent as powerful a reason for rejecting that construction as do the considerations to which reference has been made in what has been written above.