Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (5 June 1991)

CATCHWORDS

Statutes - Construction and interpretation - Specific provision subject to condition or limitation - General provision in same statute not available to avoid condition or limitation - Crimes Act 1900 (N.S.W.),ss. 61E, 71, 78 - Interpretation Act 1987 (N.S.W.),ss. 33, 34.

HEARING

DECISION

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] HCA 39; (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] VicRp 50; (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] HCA 30; (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 [1864] EngR 47; (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 [1987] UKPC 4; (1988) AC 642 and Reg. v. Bruce [1988] VicRp 62; (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.

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."

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."

"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."

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] VicRp 50; (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] VicRp 45; (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."

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 [1987] UKPC 4; (1988) AC 642; Reg. v. Bruce [1988] VicRp 62; (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 [1864] EngR 47; (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."

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.

TOOHEY J. I agree with the judgment of McHugh J. and with the orders his Honour proposes.

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] HCA 32; (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".

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.

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."

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."

"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] HCA 41; (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] HCA 26; (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."

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] HCA 9; (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."

"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."

"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."

"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." (my emphasis)

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."

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] VicRp 26; (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."

"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."

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.

ORDER

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of New South Wales. In lieu thereof order that the appeal to that Court be allowed, that the convictions be quashed and that verdicts of acquittal be entered on each charge.