Dawson v The King

[1927] HCA 9

206 HIGH COURT

[1927.

H. C. o r A.

th e

commencement of the Income Tax Assessment Act 1922.” Parhament evidently applied its mind to the question as to what

1927.

F ed er a l part of the Act should be made retrospective and deliberately

Com m is­

sio n e r OF omitted sec. 2 and sec. 4 and part of sec. 6 of the Act when it

T axation

V.declared what part of the Act was to have a retroactive effect.

R e id .

For the reasons mentioned the answer to the first question

Powers J

submitted should be Yes, and to the second question Yes.

Both questions answered in the ciffirmative.

Solicitor for the appellant, W. H. Sharwood, Crown Solicitor for the Commonwealth.

Sohcitors for the respondent. Sly d Russell.

B. L.

[HIGH COURT OF AUSTRALIA.]

DAWSON A p pe l l a n t

;

THE KING

R e s p o n d e n t .

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

H . C. OF A.

Criminal Law— Sexual offence—“ Step-father” and “ step-daughter”—Ilhgitimate

1927.                daughter of wife of accused— Crimes Act 1900 (N.S. IF.) (No. 40 0/1900), sec. 73 {Crimes (Atnendment) Act 1924 {N.S.W.} {No. 10 of 1924), sec. 5).*

Sy d n e y ,

Held, that the words “ step-father ” and “ step-daughter ” in sec. 73 of April 7.the Crimes Act 1924 (N.S.W.)—enacted by sec. 5 of the Crimes {Amendment)

Knox C.J.,

Isaacs and

* Sec. 73 of the Crimes Act 1900

carnally knows any girl of or above the

Starke JJ.(N.S.W.)—enacted by sec. 5 of the age of ten years, and under the age of

Crimes {Amendment) Act 1924 (N.S.W.) seventeen years, being his pupil, or

—provides that “ Whosoever, being a daughter, or step-daughter, shall be

schoolmaster or other teacher, or a liable to penal servitude for fourteen

father, or step-father, unlawfully and

years.”

40C.L.R.] OF AUSTRALIA.

207

Act 1924 (X.S.W.)—apply respectively to a man and an illegitimate daughter H. C. o r A.

of his wife.

1927.

Special leave to appeal from the Supreme Court of New South Wales (Full

D awson

Court) : R. V. Dawson, (1927) 27 S.R. (N.S.W.) 78, refused. ”

V.

Th e

K in o .

Application for special leave to appeal from the Supreme Court

of New South Wales.

At the Court of Quarter Sessions at Armidale, Reuben Dawson was tried on a charge that on 16th April 1926, being a step-father, he did unlawfully and carnally know May Edna Taylor, a girl then above the age of ten years and under the age of seventeen years, then being the step-daughter of the said Reuben Dawson.

From the evidence it appeared that May Edna Taylor w'as the illegitimate daughter of Daw'son’s wife, that she was born on 17th February 1910, and that her mother, who had not been married before, was married to Dawson on 26th November 1913. I t also appeared that May Edna Taylor, at the time of the alleged offence, was hving in the same house as Dawson and his wdfe and family.

The jury having convicted Dawson, he was sentenced to three years’ imprisonment with hard labour. From the conviction and sentence Dawson appealed to the Court of Criminal Appeal. The substantial ground of appeal was that, in sec. 73 of the Crimes Act 1900 (sec. 5 of the Crimes (Amendment) Act 1924) the words “ daughter ” and “ step-daughter ” referred only to legitimate oSspring. The Court of CViminal Appeal having dismissed the appeal (R. v. Dawson (1) ), Dawson now applied to the High Court for special leave to appeal from that decision.

Newell, in support of the application.—The husband of the mother of an illegitimate child is not the step-father of the child, nor is the father of an illegitimate child its father, wdthin the meaning of sec. 73 of the Crimes Act 1900 (N.S.W.) (enacted by sec. 5 of the Crimes (Amendment) Act 1924). That section is aimed at men who occupy some position of authority with regard to the child sought to be protected. Neither the husband of an illegitimate child’s mother nor the father of an illegitimate child is in any

(1) (1927) 27 S.R. (N.S.W.) 78.

208 HIGH COURT

[1927.

H.C. OP A. position of authority with regard to the child. He has not in law,

1927.and in ordinary circumstances he has not in fact, the care, custody

D awsonor control of the child. [Counsel referred to R. v. Frith (1) ; Irwin

V.

V. Shall (2) ; Priestly v. Hughes (3) ; Thornburg v. American Straw-

T h e

K in g .

board Co. (4) ]. Where the Legislature desires to extend relationship to illegitimate relations it does so expressly; as, for example, in sec. 78a of the Crimes Act 1900 (sec. 6 of the Crimes {Amendment) Ad; 1924). This being a criminal statute the more lenient of two reasonable constructions should be adopted {Tuck & Sons v. Priester

(5) ).

Weigall, S.-G. for N.S.W., for the Crown, was not heard.

P e r Cu r ia m . We do not think this is a case for special leave. Mr. Newell has said all that can be said in support of the application, but we see no reason to doubt the correctness of the judgment of the Supreme Court.

Special leave to appeal refused.

Sohcitor for the applicant, C. D. W. Wray, Armidale, by Biddulph

d Salenger.

Solicitor for the Crown, J. V. Tillett, Crown Solicitor for New South

Wales.

B. L.

(1) (1914) V.L.R. 658; 36 A.L.T. 92. (3) (1809) 11 East 1.

(2) (1897) 22 V.L.R. 640 ; 18 A.L.T.

(4) (1895) 50 Am. St. R. 334.

232. (5) (1887) 19 Q.B.D. 629, at p. 638.