Saraswati v The Queen

(1991) 172 CLR 1

---

(Judgment by: DAWSON J)

Between: Saraswati
And: The Queen

Court:

Judges: Deane J

Dawson JToohey J
Gaudron J
McHugh J

Judgment date: 5 June 1991

---

Judgment by:
DAWSON J

The applicant was convicted upon three counts of committing an act of indecency with a person under the age of sixteen years. The offences were all alleged to have occurred between 8 April and 3 November 1983. No prosecution was commenced until 1987. The offence of committing an act of indecency is distinct from indecent assault. Both offences were, at the relevant time, to be found in s.61E(1) and (2) of the Crimes Act 1900 (N.S.W.), which provided:

"(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."

2. The offence of committing an act of indecency was created in 1974 by the insertion of s.76A into the Crimes Act: Crimes and Other Acts (Amendment) Act 1974 (N.S.W.), s.5(p). It was intended to fill a gap thought to be left by decisions such as Fairclough v. Whipp [1951] 2 All ER 834 ; (1951) 35 CrAppR 138 and Director of Public Prosecutions v. Rogers (1953) 1 WLR 1017 ; (1953) 2 All ER 644. In the first case it was held that there was no indecent assault where the accused had requested a child to touch his person and she had done so of her own volition. In the second case, the accused had exposed himself to his infant daughter and told her to masturbate him. She did so voluntarily. Again, it was held that there was no indecent assault. Whilst in both cases there was indecency there was no assault and, hence, no indecent assault.

3. In the present case, the evidence led in support of two of the counts of which the applicant was convicted amounted to evidence of indecent assault. The girl concerned being under sixteen years of age, consent was, in the circumstances, no defence: Crimes Act, s.77. The evidence led in support of the third count of which the applicant was convicted amounted to unlawful carnal knowledge under s.71 of the Crimes Act, which provided:

"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."

4. It is evident that the applicant was not charged with, and could not be convicted of, indecent assault or unlawful carnal knowledge because of s.78 which provided so far as is relevant:

"No prosecution in respect of any offence under section 61E(1), 71 or 72 ... 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."

The time prescribed by s.78 had clearly expired before the prosecution of the applicant was commenced.

5. The argument advanced on behalf of the applicant was put in various ways. In substance it amounted to a submission that, because prosecutions for unlawful carnal knowledge and indecent assault were subject to a time limit of twelve months and prosecutions for an act of indecency were not subject to any time limit, s.61E(2) must be construed so as to exclude an act, committed as part of a single course of conduct, which constituted unlawful carnal knowledge or indecent assault, because to do otherwise would be to enable the prosecution to evade the time limit imposed upon prosecutions for those offences. Apart from the time limit placed upon the prosecution of those offences, it was conceded that an act of indecency, giving that term its ordinary meaning, is involved in both unlawful carnal knowledge and indecent assault.

6. Reliance was placed upon the New Zealand decision of R. v. Blight (1903) 22 NZLR 837. In that case the accused was charged with indecent assault under s.188 of the New Zealand Criminal Code Act 1893. There was no time limit for prosecutions under that section. The offence committed by the accused amounted to unlawful carnal knowledge under s.196 of the Act, but a time limit, which had expired, was imposed upon prosecutions for carnal knowledge. The New Zealand Court of Appeal held, by a majority, that the accused could not be prosecuted for indecent assault. But in that case the offence which carried the greater penalty was indecent assault, a circumstance which influenced the majority in reaching their decision that the offence of indecent assault must be construed so as to exclude carnal knowledge. As Williams J. observed, at p 847:

"If the above construction be not adopted the result is that no effect could be given to section 196, and that section would be practically expunged from the Act, and the protection given by the time limit would be quite illusory. The prosecution would always be commenced under section 188, which has no time limit, and under which a heavier punishment can be inflicted than under section 196. That result ought, if possible, to be avoided."

However, Stout C.J., who with Conolly J. was in dissent, pointed out, at p 844, that no less an illogicality occurred upon the view taken by the majority:

"If this conviction is not upheld it means that prisoners who commit the full offence will escape even for indecent assault if the prosecution is not begun in a month, whilst prisoners who proceed no further than the indecent assault will be liable to punishment even if the prosecution is not begun for years afterwards. This makes the provision of our Criminal Code more illogical and absurd than to hold that the prisoner who commits the full offence is liable to conviction and punishment for indecent assault only. Further, it encourages the commission of the full offence".

7. In R. v. Fehring (1926) 20 QJPR 165 the accused was charged with unlawfully and indecently dealing with a girl under the age of seventeen. The indecent act constituted unlawful carnal knowledge, but under s.215 of The Criminal Code (Q.) a prosecution for carnal knowledge must be commenced within six months after the commission of the offence. There was no such time limit upon the prosecution of the offence of indecent dealing. Douglas J. held that it was not, in the circumstances, competent for the Crown to charge the accused with indecent dealing, but the precise basis upon which he so held does not appear from the report of the case. See also Reg. v. Brombey (1952) QWN 32.

8. On the other hand, in R. v. Pople (1924) SASR 448, where the accused was charged with unlawful carnal knowledge the prosecution of which was subject to a time limit of six months, the South Australian Full Court (Angas Parsons and Napier JJ.; Murray C.J. dissenting) held that, notwithstanding the expiry of the time limit, he could be convicted of the offence of indecent assault, which was a statutory alternative and was subject to no time limit. The Full Court declined to follow R. v. Blight. Subsequently, in Reg. v. Salmon (1969) SASR 76 the Full Court (Bray C.J., Hogarth and Mitchell JJ.) upheld a conviction for indecent assault by way of a statutory alternative upon a charge of rape. In the course of its judgment the Court observed, 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 ...; 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."

The reference to Pople's Case in the context is, with respect, difficult to understand. There can be no doubt that rape always involves an indecent assault. The Full Court recognized this, saying, at p 78, that the "indecency is obvious and the force is involved in the act itself". They cited Reg. v. Neale (1844) 1 Den. 36 (169 ER 140) and R. v. Forde [1923] 2 KB 400 , as well as Pople's Case. It is true that upon a charge of rape where there is only one transaction and the only issue is consent - where penetration, the act of intercourse, is not in issue - a jury cannot in ordinary circumstances properly acquit the accused of rape and convict him of indecent assault, but that is because the verdicts would be inconsistent: Reg. v. Whelan (1973) VR 268. Consent as a defence to rape would also be a defence to indecent assault. I speak of ordinary circumstances because in Reg. v. Salmon the circumstances were extraordinary. The jury were entitled there to take the view that the prosecutrix consented to penetration but withdrew her consent whereupon the accused continued to have intercourse with knowledge of the withdrawal of consent. It was in those circumstances that the Full Court held that a verdict of not guilty of rape but guilty of indecent assault could be sustained. The position is even simpler upon a charge of carnal knowledge where, because of the age of the prosecutrix, consent cannot legally be given. If there is no issue as to penetration, a jury cannot properly acquit of carnal knowledge and convict of indecent assault.

9. But Pople's Case was not a case in which the court was concerned with inconsistent verdicts. The accused could not be convicted of carnal knowledge because the prosecution was commenced out of time. There was, therefore, no reason why he should not be convicted of the indecent assault involved in the act of intercourse. Moreover, if the prosecution chooses only to charge an accused with indecent assault where the facts would support a charge of rape or unlawful carnal knowledge, there is no reason why he should not be convicted of the lesser charge. If he were convicted and the prosecution subsequently chose to charge the same accused with the more serious offence arising out of the same facts, he would have available to him a plea in bar, not strictly a plea of autrefois convict because he would not have been convicted of the offence in the form charged, but based upon "the well-established rule at common law that whenever a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam - that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence": Reg. v. Miles (1890) 24 QBD 423, per Hawkins J. at p 431, quoting from Blackburn J. in Wemyss v. Hopkins (1875) LR 10 QB 378, at p 381. See also Reg. v. Weeding (1959) VR 298; Connelly v. Director of Public Prosecutions (1964) AC 1254.

10. At common law an accused might be convicted of a lesser offence than that charged, provided that the definition of the more serious offence necessarily included the definition of the lesser offence and that both offences were of the same degree, that is to say, were either felonies or misdemeanours: Reg. v. Salisbury (1976) VR 452; cf. Reg. v. Wilson (1984) AC 242. The distinction between felonies and misdemeanours has now disappeared in many jurisdictions (though not in New South Wales) and statutory alternatives have largely or entirely replaced the common law rule: in New South Wales see, e.g., Crimes Act, ss.34, 61Q; cf. Reg. v. Taylor (1952) 69 WN(N.S.W.) 81; Reg. v. Mustafa (1973) 3 DCR (NSW) 154. In New South Wales it is provided by s.425 of the Crimes Act that:

"Where, on the trial of a person for a misdemeanour, it appears that the facts in evidence amount in law to felony, he may notwithstanding be found guilty of and sentenced for such misdemeanour, and in that case shall not be liable to be prosecuted for felony on the same facts: Provided always, that the Court may discharge the jury from giving any verdict upon such trial, and direct the person to be indicted for felony."

Whether s.425 was thought to be a modification of the common law or why otherwise it was thought to be necessary is now obscure, but the section makes it quite apparent in this case that, apart from any question of construction, it was open to the jury to convict the applicant of committing an act of indecency, a misdemeanour, notwithstanding that the evidence disclosed unlawful carnal knowledge and indecent assault, both felonies at the relevant time. However, even at common law the applicant might have been convicted of committing an act of indecency when charged only with that offence, notwithstanding that the facts amounted also to carnal knowledge or indecent assault.

11. The sole question is, therefore, one of construction, namely, whether the offence of committing an act of indecency contrary to s.61E(2) of the Crimes Act is to be construed so as to exclude acts amounting to either carnal knowledge or indecent assault.

12. The applicant placed great reliance upon the fact that the offence of committing an act of indecency was created to cover the gap left by the fact that the offence of indecent assault requires not only indecency, but also something in the nature of an assault. However, sexual offences are of their very nature progressive rather than mutually exclusive, so that the more serious offence includes the elements of the less serious offence. For the legislature to have sought to exclude from an act of indecency offences which otherwise would have included the act of indecency would have been to depart from the approach hitherto adopted by the law. Moreover, whilst the object of the legislature in creating the offence of committing an act of indecency appears to have been to close a gap which it perceived in the law, it does not follow that it chose to close that gap in a way which would give rise to incongruous results.

13. If the applicant's argument is correct, a person charged only with committing an act of indecency would be able to defeat that charge by proving by way of defence that he had in fact committed an indecent assault or unlawful carnal knowledge. If the defence were successful, he could not, upon the principles which I have endeavoured to explain, be subsequently convicted of either of the more serious offences whether or not the time for the commencement of prosecution had expired. But more than that, even if the jury were satisfied beyond reasonable doubt that an act of indecency (in the ordinary sense and not the confined sense contended for as a matter of construction) had been committed, if they entertained a doubt whether the accused was guilty of indecent assault or unlawful carnal knowledge - that is, if they considered that he might have committed those offences - it may be they must acquit upon the charge of committing an act of indecency (in the confined sense) because they would necessarily entertain a doubt whether what he had done amounted only to the commission of the latter offence. See Attorney-General of Hong Kong v. Yip Kai-foon (1988) AC 642; Reg. v. Bruce (1988) VR 579; but cf. Ghys v. Crafter (1934) SASR 28; Buckingham v. The Queen (unreported, Supreme Court of South Australia, 12 February 1990); Reg. v. Langmead (1864) Le and Ca 427 (169 ER 1459).

14. Nor does the preponderance of authority favour the construction advanced on behalf of the applicant. In Reg. v. Neale the accused was convicted of unlawful carnal knowledge. It was contended on appeal that he was entitled to an acquittal as the offence amounted to rape. It was held that the conviction should stand. In Reg. v. Williams [1893] 1 QB 320 the accused was charged with unlawful carnal knowledge. He was under the age of fourteen years and presumed by law to be physically incapable of committing that offence. It was held, however, that he could be convicted of indecent assault. In Laws (1928) 21 CrappR 45 the accused was charged with four counts of unlawful carnal knowledge and indecent assault. He pleaded guilty to indecent assault. Upon an appeal against sentence the Court of Criminal Appeal pointed out that upon the charges of carnal knowledge the accused could have raised the defence that he had a reasonable belief that the prosecutrix was over the age of sixteen years, but that defence was not available in relation to indecent assault. The Court, at p 46, described as grotesque a "state of affairs that the law offers a defence upon the major charge, but excludes that defence if the minor charge is preferred". There was, however, no suggestion that the minor offence should be construed so as to exclude the more serious offence. The same conclusion was reached in R. v. Forde where Avory J. observed, at p 404, that:

"The result of this legislation is that a boy who is tempted and induced to have carnal knowledge of a girl who misrepresents herself to be over sixteen, and who appears to be so, has no possible answer if he is charged with indecent assault and not with the full offence."

See also Keech (1929) 21 CrAppR 125; Reg. v. McCormack [1969] 2 QB 442 .

15. In the present case, unlawful carnal knowledge and indecent assault were both felonies and the penalties provided were considerably greater than the penalty provided for committing an act of indecency. That, in itself, provides a basis for treating the offence of committing an act of indecency differently by imposing no time limit upon its prosecution. But whatever the reason, it is clear that the legislature intended that there be no time limit upon the prosecution of the offence of committing an act of indecency and that the absence of such a time limit was not a mere matter of oversight. When the Crimes Act was amended after s.76A created the offence of committing an act of indecency, that section became s.61E(2). The section which imposed the time limit upon the prosecution of carnal knowledge and indecent assault, s.78, was correspondingly amended and the time limit was retained for the prosecution of offences under s.61E(1) (indecent assault), but not introduced for the prosecution of offences under s.61E(2).

16. In all of these circumstances I can see no justification for concluding that the legislature intended the offence of committing an act of indecency to exclude the offence of carnal knowledge or of indecent assault. I would grant special leave to appeal and dismiss the appeal.