Saraswati v The Queen

(1991) 172 CLR 1

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(Judgment by: McHUGH J)

Between: Saraswati
And: The Queen

Court:

Judges: Deane J
Dawson J
Toohey J
Gaudron J

McHugh J

Judgment date: 5 June 1991

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Judgment by:
McHUGH J

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 16 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.

2. 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 16 years of age ("the complainant"). At the time she was 15 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.

3. 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 12 months after the commission of the offence if the victim was a person over the age of 14. The prosecution of the applicant was not commenced until more than 12 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 legislation

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

"61E.(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.

(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.

...

71.

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. 72. 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.

...

78.

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."

5. 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 (1925) 42 WN(N.S.W.) 152; Reg. v. Valence (1958) 76 WN(N.S.W.) 137; Hare (1933) 24 CrAppR 108. 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.

The construction of s.61E

6. In the Court of Criminal Appeal, (1989) 18 NSWLR 143, 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, at p 169:

"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, at p 170, 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."

7. 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. (1990) 170 CLR 249, at pp 261-262. 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.

8. 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 (1981) 147 CLR 297 , Mason and Wilson JJ. said, at p 321:

"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 Co. v. Zenith Investments (1971) AC 850, at pp 880-882; Jones v. Wrotham Park Estates (1980) AC 74, at p 105; Cooper Brookes, at pp 321-323; In re Lockwood, Decd. (1958) Ch 231, at p 238.

9. 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, at pp 305, 320. 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 at p 320. In In re Rouss (1917) 116 NE 782, at p 785, Cardozo J. 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, Decd., at p 238; Luke v. Inland Revenue Commissioners (1963) AC 557, at p 577; Adler v. George [1964] 2 QB 7 , at pp 9-10; Wiltshire v. Barrett [1966] 1 QB 312 , at pp 332-333; Kammins Co. v. Zenith Investments, at pp 859-860, 881; Reg. v. Hester (1973) AC 296, at p 323; Cooper Brookes, at pp 311, 320-321. 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 authorises resort to extrinsic material to give the provision a different meaning.

10. 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.

11. 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 context of s.61E(2)

12. 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 and Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 , Gavan Duffy C.J. and Dixon J. said (at p 7):

"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 (at p 8):

"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 (1949) 78 CLR 529 , at pp 550- 551; Leon Fink Holdings Pty. Ltd. v. Australian Film Commission (1979) 141 CLR 672 , at p 678. In Leon Fink, Mason J. said (at p 678):

"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."

13. The Act makes it an offence for a person to have carnal knowledge of or to indecently assault a girl under the age of 16. But if the girl is over 14 years of age, the Act requires the prosecution to be instituted within 12 months of the commission of the offence. It is difficult to accept that, when Parliament enacted s.61E(2) and authorised 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 and Sons Ltd. (at p 7), 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.

14. 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.

The purpose of s.61E(2)

15. In Fairclough v. Whipp (1951) 35 CrAppR 138; [1951] 2 All ER 834 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 (at pp 139-140; p 834 of All ER):

"... 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."

16. Fairclough was followed in Director of Public Prosecutions v. Rogers (1953) 1 WLR 1017 ; [1953] 2 All ER 644 where, without any force or compulsion, a father put his arm around the shoulders of his 11-year-old daughter, led her up stairs, exposed himself to her and told her to masturbate him. Lord Goddard C.J. said (at pp 1018-1019; p 645 of All ER):

"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 (at p 1019; p 646 of All ER):

"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."

17. 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 (at p 8):

"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."

18. 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.

19. 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 16 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.

20. 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.

21. 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 12 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 (1952) QWN 32, at p 37. 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 (1956) St.R.Qd 1; Touhey (1960) 45 CrAppR 23; Reg. v. Coureas (1967) QWN 5; Reg. v. Whelan (1973) VR 268; Reg. v. Slade (1982) 7 ACrimR 43.

The course of authority

22. Authority on the meaning of legislation similar to s.61E(2) is fairly evenly divided. In R. v. Blight (1903) 22 NZLR 837, 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 12 years and under the age of 16 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 (at pp 846-847):

"Apart from section 196 (the section creating the offence of unlawful carnal knowledge of a girl of or between the ages of 12 and 16), the act of the accused would have come within the definition of an indecent assault under section 188. But section 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 section 196 from the operation of section 188, and that if the facts show that a man has committed an offence under section 196 he must be prosecuted under that section."

23. In R. v. Fehring (1926) 20 QJPR 165, 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 17 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 17 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 (at p 166):

"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'."

24. In Reg. v. Brombey, the accused was charged under s.216 of The Criminal Code (Q.) with unlawfully and indecently dealing with a girl under the age of 17 years. The evidence disclosed indecent acts followed by sexual intercourse. Philp J. in the course of his summing up directed the jury (at pp 36-37):

"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."

25. Three other decisions, however, support the view that s.61E(2) should be given a meaning uninfluenced by s.78. In Reg. v. Williams [1893] 1 QB 320 , the accused was charged with carnally knowing a girl under the age of 13. As the accused was under 14, 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 (at p 321):

"He was, therefore, properly acquitted of the charge made under the 4th section (of having carnal knowledge of a girl under the age of 13). 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 [1923] 2 KB 400 was concerned with legislation which provided that the presence of reasonable cause to believe that the girl was over the age of 16 years was a valid defence on the first occasion that a man, 23 years of age or under, was charged with an offence of carnal knowledge. The indictment charged the appellant, a man under 23 years of age, with carnal knowledge and attempted carnal knowledge of a girl aged 15. 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, at p 404:

"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 (1924) SASR 448, 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 13 years and under the age of 16 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.

26. 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 (1969) SASR 76, the Full Court of the Supreme Court of that State said (at p 78):

"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 (cf. Reg. v. Brombey; per Philp J. in Reg. v. Redgard); 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."

27. 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.

No offence under s.61E(2) was committed

28. 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".

Order

29. 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.