Saraswati v The Queen
(1991) 172 CLR 1(Judgment by: GAUDRON J)
Between: Saraswati
And: The Queen
Judges:
Deane J
Dawson J
Toohey J
Gaudron JMcHugh J
Judgment date: 5 June 1991
Judgment by:
GAUDRON J
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.
2. 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.
3. 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.
4. It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied.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.) (1961) 106 CLR 268 , per Fullagar J. at p 276, and per Windeyer J. at p 290. 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" (1884) 10 App Cas 59, at p 68, 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 (1923) 32 CLR 276 .
5. 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.
6. 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 (1951) 35 CrappR 138 and Director of Public Prosecutions v. Rogers (1953) 1 WLR 1017 ; (1953) 2 All ER 644. 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.
7. Special leave to appeal should be granted. The appeal should be allowed, the convictions quashed and verdicts of acquittal entered on each charge.