Director of Public Prosecutions v TGW
[2017] TASCCA 1
•6 March 2017
[2017] TASCCA 1
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v TGW [2017] TASCCA 1
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
TGW
FILE NO: 3080/2016
DELIVERED ON: 6 March 2017
DELIVERED AT: Hobart
HEARING DATE: 28 February 2017
JUDGMENT OF: Blow CJ, Martin and Marshall AJJ
CATCHWORDS:
Criminal Law – Particular offences – Offences against the person – Sexual offences – Rape and sexual assault – Sexual intercourse – Introduction of victim's penis into accused's mouth.
Criminal Code (Tas), s 185(1).
R v JC [2000] ACTSC 72; R v A [2003] 1 NZLR, considered.
Director of Public Prosecution's Reference (Nos 1 of 1992 and 1 of 1993) v M and J (1993) 9 WAR 281, distinguished.
Aust Dig Criminal Law [2238]
REPRESENTATION:
Counsel:
Appellant: D G Coates SC, M S Wilson
Respondent: K Baumeler
Solicitors:
Appellant: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 1
Number of paragraphs: 73
Serial No 1/2017
File No 3080/2016
DIRECTOR OF PUBLIC PROSECUTIONS v TGW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
MARTIN AJ
MARSHALL AJ
6 March 2017
Orders of the Court
Leave to appeal granted.
Appeal allowed.
Serial No 1/2017
File No 3080/2016
DIRECTOR OF PUBLIC PROSECUTIONS v TGW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
6 March 2017
I agree with the orders proposed by the other members of the Court, and with their reasons.
File No 3080/2016
DIRECTOR OF PUBLIC PROSECUTIONS v TGW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ
6 March 2017
Introduction
The Director of Public Prosecutions (the appellant) seeks leave to appeal against the acquittal of the respondent of a charge of rape following a direction by the learned trial judge that the jury was required to return a verdict of not guilty.
The charge in question was based upon the evidence of the complainant that, without the complainant's consent, the respondent placed the complainant's penis in the respondent's mouth and sucked it. The learned trial judge was of the view that such conduct did not amount to sexual intercourse for the purposes of s 185 of the Criminal Code (the Code) and directed the jury to return a verdict of not guilty. The jury subsequently returned a majority verdict of guilty of the alternative offence of indecent assault.
For the reasons that follow, in my opinion the conduct in question did amount to sexual intercourse for the purposes of s 185 and the learned trial judge erred in directing the jury to return the verdict of not guilty. However, while leave to appeal should be granted and the appeal allowed, I would not make any further order.
Facts
The respondent was charged with five sexual offences arising out of a single episode which occurred on 22 December 2013. The charges were based upon statements made by the complainant to police on 23 December 2013 and 18 September 2014. Those statements were supplemented by evidence given by the complainant from a remote witness room on 27 September 2016 during which he was briefly examined by the prosecutor and cross-examined in some detail. In substance the complainant spoke of the respondent touching the complainant's penis and putting the complainant's hand on the respondent's penis. Those acts were the basis of the charges of indecent assault in counts 1, 2 and 4 of the indictment. In addition the complainant described an act of anal intercourse which was the subject of count 3. The jury was unable to reach verdicts in relation to counts 1-4.
The charge of rape in count 5 alleged that the respondent had unlawful oral sexual intercourse with the complainant by placing the complainant's penis in the respondent's mouth and sucking it without the complainant's consent. According to the complainant, this act occurred after the act of anal intercourse. No mention was made of oral sexual intercourse in the complainant's first interview. On 18 September 2014 the complainant told police that he was standing up and, for 15 or 20 minutes, the respondent placed his mouth around the complainant's penis and "sucked [him] off". This was the charge in respect of which the learned trial judge directed the jury to return a verdict of not guilty and which formed the basis of the majority verdict of guilty of indecent assault.
Ruling
The crime of rape is defined in s 185 of the Code:
"(1) Any person who has sexual intercourse with another person without that person's consent is guilty of a crime."
Sexual intercourse is defined in s 1 as follows:
"sexual intercourse means the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration; …".
In the context of the prosecution case, the learned trial judge ruled that the act of oral sexual intercourse could constitute the crime of indecent assault, but not the crime of rape. In his brief ruling, his Honour said:
"The notion of an accused introducing the penis of another person into his or her own mouth is counter intuitive to the underlying gist of the crime of rape as currently defined, being that of sexual penetration."
After referring to authorities which his Honour regarded as distinguishable and of no real assistance, his Honour referred to the decision of the Western Australian Court of Criminal Appeal in Director of Public Prosecutions Reference (No's 1 of 1992 and 1 of 1993) v M and J (1993) 9 WAR 281 (DPP v M and J), which his Honour regarded as useful by analogy because of the view of the majority that the gist of the provisions under consideration was penetration with "emphasis" on the "protection of persons from unwanted sexual penetration".
The learned trial judge concluded:
"I conclude by saying that there is a simple argument that the words in s 185, 'any person who has sexual intercourse' when taken with the definition of sexual intercourse in the Code obviates the need for penetration to be of, and I emphasis the word 'of' the victim. Such an approach should not in my view be taken to the construction of an ambiguous criminal legislative provision, particularly one that would widen the reach of a serious crime where a clear and less serious criminal provision is available."
Submissions
In summary the appellant advanced the following propositions:
1"The ordinary meaning of the definition of sexual intercourse describes an act between two persons during which there is penetration to the least degree of an orifice (vagina, genitalia, anus or mouth) by the penis. In ordinary usage, all persons who take part in that act are participants in it; sexual intercourse is not solely conducted by the person to whom the penis belongs upon the other."
2"The definition of 'sexual intercourse' is written in the passive voice (penetration … by the penis), rather than an active voice (the penis penetrating), suggesting that the focus of the definition is to define the act, in contrast to defining what is done by the offender."
3The term "sexual intercourse" is used in the definition as a noun.
4As used in the definition, the word "has" is interchangeable in meaning with the phrase "engages in". The present definition of rape is to be contrasted with the pre-1987 wording of the section which spoke of a person having carnal knowledge "of a female", and the deliberate use of the word "with" in the current definition "connotes an act in which both the offender and victim participate".
5Other sexual offences in the Code are framed in the same way as s 185, namely, the perpetrator having sexual intercourse with the victim, and a consistent meaning should be given to the expression across all sections in which it is used. If the learned trial judge is correct, only males using their own penis could commit a number of other offences which would be an absurd result.
6Section 133 (Incest) in its present form contemplates a female offender having sexual intercourse and is to be contrasted with the original wording which spoke of a male person having carnal knowledge of a female.
7The scheme of the Code is to define, with increasing seriousness, crimes involving sexual contact without consent and it would be contrary to the scheme "to reduce to indecent assault unlawful sexual contact which in fact involves penile penetration".
The respondent submitted that the act concerned was one of oral stimulation of the complainant's genitalia and, therefore, the question is whether an act of oral stimulation can constitute the crime of rape. In contending that such conduct could not amount to rape, the respondent argued that "Any person" in s 185 must be read as referring to an accused. Any other construction would amount to "filling gaps" in an impermissible manner.
Discussion
The current definition of "sexual intercourse" and s 185 of the Code were introduced to the Code by the Criminal Code Amendment (Sexual Offences) Act 1987 (the amending Act). That Act contained a raft of amendments to the law governing sexual offences and gender-neutral language featured prominently. For example, prior to the amendment central to the crime of rape was the act of "carnal knowledge of a female" and carnal knowledge was defined as follows:
"'Carnal knowledge' means the penetration to any the least degree of the organ alleged to have been known, by the male organ of generation; …".
Similarly, the sexual offences involving penetration of young persons and persons suffering from mental impairment were expressed in terms of the offender having carnal knowledge of a "girl" or a "female" (ss 124 and 126).
Significantly, prior to the 1987 amendments the crime of incest could only be committed by a male person who had carnal knowledge of a defined female person:
"133-(1) Any male person who has carnal knowledge of a female who is to his knowledge his grand-daughter, daughter, sister, or mother, is guilty of a crime."
By way of contrast, ss 124 and 126 now speak of "any person" having sexual intercourse "with" a person under the age of 17 years, or a person with a mental impairment, and s 133 plainly envisages that a female person is capable of having sexual intercourse for the purpose of the crime of incest:
"(1) Any person who has sexual intercourse with another person knowing that other person to be his or her lineal ancestor, lineal descendant, or sibling, is guilty of a crime whether or not that other person has consented to such sexual intercourse." [My emphasis.]
Against this background, the construction for which the appellant contended does not lead to an absurd or surprising result. It enables the definition of "sexual intercourse" to be given a consistent meaning across all sections of the Code. It applies the law equally to all persons, regardless of gender, and sensibly fits with the scheme of the Code which provides for a descending scale of seriousness of sexual offending commencing with the crime of rape.
Most importantly, the ordinary and natural meaning of the words used in s 185 can readily be discerned and do not involve any ambiguity. Section 185 speaks of "any person" having sexual intercourse "with" another person. In the ordinary use of language, if two persons engage in sexual intercourse, it is normal to speak of both such persons having sexual intercourse "with" the other person. Further, the definition of "sexual intercourse" as meaning "penetration" by the penis does not detract from this ordinary meaning. The result might be different if the definition was expressed in terms of "to penetrate", but as worded it supports the view for which the appellant contended.
The respondent submitted that there is ambiguity in the wording of s 185 and, in that context, sought to rely upon the second reading speech of the then Attorney-General made on 15 April 1987 when introducing the amending Act:
"The third major feature of this bill is that sexual offences created under the Criminal Code have been redefined in gender neutral terms. This means that a male may be charged with the rape of another male as well as of a female and that a female may be charged with indecent assault on a male or on another female. The definition of 'sexual intercourse' now to be adopted will mean that a female cannot be charged with rape unless as an accessory, which has always been the case. Males and females may be charged with the crime of aggravated sexual assault under new section 127A of the code.
Gender neutrality of sexual offences under the Criminal Code was recommended by the Tasmanian Law Reform Commission as being in keeping with philosophical notions of anti-discrimination and equality between the sexes. It is undoubtedly desirable for the law to protect all persons, irrespective of gender, from sexual assaults and this fact has been recognised in New South Wales and Victoria. The bill ensures that the same recognition is given in Tasmania."
Section 8B(1) of the Acts Interpretation Act 1931 provides that if a provision of an Act is "ambiguous or obscure", or if "the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable", regard may be had to extrinsic material capable of assisting in the interpretation of the provision. As I have said, in my opinion the provisions under consideration are not ambiguous or obscure and do not lead to an absurd or unreasonable result. In addition, the view of the Attorney-General when introducing the amending Act cannot be decisive in the process of determining the intention of the legislature.
If the then Attorney-General was correct in his view, and if the ruling of the learned trial judge was correct, the definition of "sexual intercourse" could not be applied consistently across the sexual assault provisions in the Code, and it would lead to inequality of treatment of offenders based on gender. Such consequences could not have been intended by the legislature which is assumed to intend a consistent interpretation across the Code and which extended the ambit of sexual offences in gender-neutral language. Ultimately, of course, the answer lies in the ordinary and natural meaning of the words used in the various sections of the Code, having regard to the structure and purpose of the Code.
As to other authorities, in my opinion the learned trial judge erred in regarding the decision of the Western Australian Court of Criminal Appeal in DPP v M and J as of assistance in supporting his Honour's view. The Court was concerned with whether the introduction of the penis of a complainant into the mouth of an accused amounted to sexual assault. However, the wording of the relevant provisions was significantly different from the provisions with which this Court is concerned.
The offence of sexual assault under consideration in DPP v M and J was worded as follows:
"Any person who sexually penetrates another person …".
The difference between s 185 of the Code and the Western Australian provision is immediately obvious. Section 185 refers to a person who "has sexual intercourse with another person", while the Western Australian provision speaks of any person "who sexually penetrates another person". In ordinary language, it is the person who carries out the penetration "who sexually penetrates".
In addition, unlike the definition of sexual intercourse in the Code which refers to "the penetration" by the penis, in Western Australia the meaning of sexually penetrate is couched in terms of "to sexually penetrate" means "to penetrate …". It was in this context that the majority of the Western Australian Court of Criminal Appeal held that the offence was not committed by the introduction of the penis of the person into the mouth of the offender.
The decision of the Western Australian Court of Criminal Appeal was considered by Higgins J (as he then was) in R v JC [2000] ACTSC 72. The offender had placed his mouth over the complainant's penis and sucked it. The relevant provisions were very similar to the provisions of the Code. The substantive offence spoke of a person who "engages in sexual intercourse with another person", and the term "sexual intercourse" was defined in passive terms of "the penetration" and "the introduction of any part of the penis of a person into the mouth of another person".
Higgins J distinguished the Western Australian decision on the basis of the wording of the relevant provisions:
"67 On the other hand, the term being defined, 'sexual intercourse', was inserted into offence creating provisions expressed in terms of 'a person who engages in …'. In the case of the Criminal Code (WA), the expression 'sexual penetration' appeared in the context of 'a person who sexually penetrates'. In each case some of the activities included in the defined expression did not involve penetration. Nevertheless, in the Code the emphasis is upon penetration. To 'engage in' an activity is an expression that encompasses each participant in it. To penetrate seems aimed at the penetrator not the penetrated. It does not seem to me to strain language to say of, for example, a man and a woman performing the traditional sexual act that each is 'engaged' or is 'engaging in' sexual intercourse. Nor does it offend the policy of the legislation enacted in 1985 that either party to a sexual act of the defined kind should be exposed to a similar level of punishment if the other is either non-consenting or underage.
68 Thus, it is my opinion that to offend against s 92E(2) it is necessary only to show that the accused and the other person had 'engaged in' an activity defined by s 92 as 'sexual intercourse' and that the other person was of a proscribed age (or non-consenting) in the absence of any prescribed or general matter of defence."
The reasoning of Higgins J is directly applicable to the provisions of the Code under consideration. I agree with his Honour. In addition I agree with his earlier observation:
"18 To say of two persons who are participating in traditional sexual intercourse, sodomy, fellatio or cunnilingus that only the penetrator is 'engaged in' that activity is an obvious affront to the normal use of language."
In my opinion, for the purposes of construing the relevant provisions, there is no difference between the meaning of "any person who has sexual intercourse with another person" and the meaning of "any person who engages in sexual intercourse with another person".
Assistance is also gained by a consideration of the decision of the New Zealand Court of Appeal in R v A [2003] 1 NZLR 1. A and her partner were charged with sexual violation of the partner's 14 year old son on the basis of acts of sexual intercourse between the son and A. Section 128 of the Crimes Act 1961 (NZ) relevantly provided:
"128 Sexual violation – (1) Sexual violation is —
(a) The act of a male who rapes a female; or
(b) The act of a person having unlawful sexual connection with another person."
Subsection (5) of s 128 provided the definition of "sexual connection":
"(5) For the purposes of this section, 'sexual connection' means —
(a)Connection occasioned by the penetration of the genitalia or the anus of any person by —
(i)Any part of the body of any other person; or
(ii)any object held or manipulated by any other person, -
otherwise than for bona fide medical purposes: … ."
The Court of Appeal noted that s 128 was enacted in 1985 and introduced the new offence of sexual violation. Further, the Court observed that this form of sexual violation was "gender-neutral" in its language. Similarly, the definition of sexual connection was also gender-neutral. In the context of s 128(1)(a) which spoke of a male raping a female, the Court observed that the "gender-specific offence of rape is a subset of the wider and gender-neutral matters covered by the section" [15]. The Court held that the gender limitation found in s 128(1)(a) had no application to the offence created by s 128(1)(b).
In the course of the judgment, the Court dealt with the relevance of the more common circumstance involving a complainant and accused:
"[18] Whilst, of course, the phrases 'any person' and 'any other person' in s 128(5)(a) usually refer to the complainant and accused respectively, it is not necessary in terms of the statutory language for that to be the case. The roles are, of course, normally reversed under s 128(5)(b) so that the phrases 'any person' and 'any other person' usually refer to the accused and complainant respectively. However, there is no reason in terms of the interpretation of s 128 why the roles commonly found cannot be reversed both for the purposes of s 128(5)(a) and (b) and thus for s 128(1)(b) and s 128(3). In this case we have, in terms of s 128(5), penetration of the genitalia of any person (A) by any part of the body (penis) of any other person (D)."
After noting cases in which female persons had pleaded guilty and were sentenced for sexual violation of male persons in similar circumstances to those under consideration, in which cases there was no suggestion that the actions of the women could not amount to the offence of sexual violation, the Court concluded that the definition of sexual connection was couched in neutral language "both as to gender and as to which party is the perpetrator and which the person penetrated" ([28]). The actus reus was completed when the penis of the son penetrated the genitalia of the offender.
In my opinion the reasoning of the New Zealand Court of Appeal is directly applicable to the legislation under consideration.
In the context of the observations of the New Zealand Court of Appeal that female offenders had previously been sentenced for offences involving similar circumstances, the appellant informed this Court of a number of cases in which single judges have accepted pleas of guilty and verdicts for offences involving sexual intercourse involving the offenders being penetrated by the complainants. Two of those cases involved female teachers engaging in vaginal sexual intercourse with the complainants and at least two involved the offender sucking the penis of the complainant.
For these reasons, in my opinion the learned trial judge erred in ruling that the introduction of the penis of the complainant into the mouth of the respondent could not amount to sexual intercourse for the purposes of s 185 of the Code. As questions of general importance are involved, leave to appeal should be granted and the appeal allowed.
The appellant does not seek a new trial and conceded that entering a conviction for the crime of rape would not be appropriate. The respondent did not give evidence at the trial, but elected not to give evidence after the learned trial judge had directed that a verdict of not guilty be returned with respect to the charge of rape. To enter a conviction against the respondent would deprive him of the opportunity of giving evidence with respect to the charge of rape.
In these circumstances, the appellant agreed that the appropriate course would be to allow the appeal but make no other order. This course was adopted in Attorney-General v Arkinstall [2013] TASCCA 12, 240 A Crim R 311.
The appeal should be allowed, but in the circumstances of this case I would not make any other order.
File No 3080/2016
DIRECTOR OF PUBLIC PROSECUTIONS v TGW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
6 March 2017
Background
The Crown charged the respondent with the crime of rape contrary to s 185 of the Criminal Code (the Code). The particulars of the relevant count were that:
"[the respondent] at South Hobart in Tasmania on the 22nd day of December 2013, had unlawful oral sexual intercourse with [the complainant] by placing [the complainant's] penis in his mouth and sucking it, without his consent."
Section 185 of the Code provides:
"(1) Any person who has sexual intercourse with another person without that person's consent is guilty of a crime.
Charge:
Rape."
Section 1 of the Code defines "sexual intercourse" as meaning:
"… the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration."
The charge of rape was count 5 on the indictment. The trial judge held that count 5, as particularised, was not capable of being made out given that it required penetration by the penis of the respondent which was absent on the facts before him.
Taking the Crown's case at its highest, his Honour found that the respondent's actions could not constitute the crime of rape, but that of indecent assault, contrary to s 127 of the Code.
The Crown submitted to his Honour that the word "penis" in the definition of "sexual intercourse" does not attach to an accused, and submitted the definition is in the passive voice. The Crown observed that if its submissions were not accepted, a female could not be convicted of the crime of rape. In reply, counsel for the respondent emphasised the use of the word "the" preceding the word "penis" to submit that the Code intended to refer to the penis of an accused and not just "a" penis.
The trial judge accepted that the definition of "sexual intercourse" was ambiguous but reasoned that the definition applies to a person who uses his penis to engage in the relevant penetration. As the particulars allege that the respondent placed the complainant's penis in the respondent's mouth, the definition was not capable of being met.
Crown submissions
On appeal, the Crown submits that the trial judge erred in law in finding that a person has sexual intercourse (as defined) with another person only when that person penetrates the vagina, genitalia, anus or mouth of the other person with the penis. The Crown submits that all persons who take part in the act of sexual intercourse are participants in that act, not just the person to whom the penis belongs. It contends that the word "intercourse" suggests reciprocity of action, rather than conduct by one person alone. The Crown further submits that the use of the word "the" before "penis" does not necessarily refer to an accused person. Similarly, it contends the word "the" preceding "vagina, genitalia, anus or mouth" does not necessarily attach to a victim. The use of the passive voice in the definition by reference to penetration by the penis, rather than the active voice by reference to the penis penetrating, shows that the focus of the definition is to define the act rather than what is done by the accused. The Crown also refers to the use of the term "sexual intercourse" as a noun in the definition, thereby reinforcing the view that it is describing an act. It is that act, so the argument runs, which is engaged in with another person without that person's consent that constitutes rape.
The Crown refers to the verb "has" in s 185 of the Code where it refers to "any person who has sexual intercourse". It submits that "has" is interchangeable in meaning to "engages in" or "participates in". To have "sexual intercourse" shows that the accused is experiencing the act as defined. There is no indication as to which role the accused is to play in the act, only that that person has participated in the act without the consent of the other participant.
The Crown observes that the effect of the trial judge's ruling is that it is not possible for a female to commit the crime of rape as a principal offender. The Crown submits that if that was the intention of the legislation, the words "any male" would have been used at the start of s 185 of the Code, rather than the words "any person". Instead, a gender neutral term has been chosen. The Crown contrasted the pre-1987 wording of s 185 which identified the accused as a male.
Counsel for the Crown refers to other provisions of the Code into which the defined term "sexual intercourse" is imported. Each of them refers to a person who "has sexual intercourse with" the victim. One of them is the crime of incest under s 133. Section 133(1) provides:
"(1) Any person who has sexual intercourse with another person knowing that other person to be his or her lineal ancestor, lineal descendant, or sibling, is guilty of a crime whether or not that other person has consented to such sexual intercourse."
Despite the intention to encompass female offenders under s 133, the Crown submits that on the trial judge's approach to the definition of "sexual intercourse", no female could be found guilty of incest. The Crown refers to various examples where no criminal liability would attach to a female or a male who causes his victim to penetrate him. One such example was under s 122 of the Code where a woman (or man) causes an animal to penetrate her (or him). The Crown contends that the crime of indecent assault is not an appropriate "catchall" to cover crimes involving an element of sexual intercourse where the accused causes a penis to penetrate the complainant.
It is submitted by the Crown that, properly construed, the meaning of "sexual intercourse", as defined, is not ambiguous. It relies on the following passage in the judgment of Gibbs J (as he then was) in Beckwith v The Queen (1976) 135 CLR 569 at 576:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. … The rule is perhaps one of last resort."
The Crown contends that adopting an interpretation of "has sexual intercourse" in which any party to the act might be the accused does not "extend the category of criminal offences". Rather, it submits that the approach taken by the trial judge has narrowed what has previously been accepted to satisfy the definition of sexual intercourse. The examples included the case of SGH, 9 June 2016, before Wood J, where an offender was convicted of one count of rape occasioned by the offender sucking the penis of the complainant.
The Crown contrasts the Code with provisions in other jurisdictions where the proscription is against penetration by the offender. Such provisions are cast in the active voice. They refer to the verb "to penetrate" in relation to the offender. The Crown contends that when legislation is drafted in that way it must be the offender who engages in penetration, as distinct from causing himself to be penetrated. Such an example was the Western Australian legislation dealt with in Director of Public Prosecution's Reference (Nos 1 of 1992 and 1 of 1993) v M and J (1993) 9 WAR 281 by the Western Australian Court of Criminal Appeal. The court considered the crime of sexual assault which referred to "Any person who sexually penetrates another person." The definition of "sexually penetrate" included, "to introduce any part of the penis of a person into the mouth of another person". The court held that the definition was not intended to apply to manipulation by the penis of a person as to cause penetration of the mouth of the offender. The Crown observes that the substantive provision in that case was cast in the active voice. It contends that the trial judge erred in relying on the judgment in DPP v M and J, given the difference in the legislative provisions when compared to the Tasmanian legislation.
The Crown refers to comparative legislation in the Australian Capital Territory and New Zealand, expressed in the passive voice, and submits that that legislation was closer to the Tasmanian Code in its approach. Section 50(1)(c) of the Crimes Act 1900 (ACT) defined "sexual intercourse" in part as:
"… the introduction of any part of the penis of a person into the mouth of another person ...".
Section 54 of that Act provided a crime of engaging in sexual intercourse without consent, and commenced by referring to "A person who engages in sexual intercourse without the consent …".
The equivalent provision was examined by Higgins J (as he then was) in R v JC [2000] ACTSC 72, where at [18], his Honour said:
"To say of two persons who are participating in traditional sexual intercourse, sodomy, fellatio or cunnilingus that only the penetrator is 'engaged in' that activity is an obvious affront to the normal use of language."
At [67], his Honour referred to "engage in" as an activity which encompasses each participant in it. He also observed that "either party to a sexual act of the defined kind should be exposed to a similar level of punishment if the other is either non-consenting …".
The Crown submits that the trial judge erred in concluding that the ACT legislation was "significantly different" to the Tasmanian Code. It contends that the words, "the introduction of" of any part of the penis into the orifice of another person is not significantly different from "the penetration by the penis", referred to in the Tasmanian Code.
New Zealand authority was relied on by the Crown as an example of a crime which was gender neutral. In R v A [2003] 1 NZLR 1, the New Zealand Court of Appeal examined s 128 of the Crimes Act 1961 (NZ). Section 128(6) referred to the crime of "unlawful sexual connection" which was defined to include, in s 128(5), "connection between the mouth or tongue of any person and any part of the genitalia of any other person".
Application for leave to appeal
The Crown concedes that something more than a mere error of law is needed to justify the grant of leave to appeal. However it contends that leave to appeal should be granted because the alleged error of law raises questions of general importance regarding the correct interpretation of the definition of "sexual intercourse" in the Code in the absence of any binding authoritative consideration of the issue.
Orders sought by the Crown
As well as an order that leave to appeal be granted, the Crown seeks an order that the appeal be allowed and initially also sought that the Court make an order under s 402(5) of the Code to convict the respondent on the count of rape as originally charged. The Crown relies on the jury's conviction of the respondent of indecent assault and so must have been satisfied that the events particularised in count 5 occurred largely as the complainant described them. The Crown submits that if the trial judge erred in his direction to the jury about count 5, the correct verdict ought to have been one of guilty on the charge of rape.
Respondent's submissions
Counsel for the respondent submits that oral stimulation of the complainant's penis by the respondent is not capable of constituting the crime of rape.
The respondent emphasises the word "the" before the word "penis" in the definition of sexual intercourse. He submits that the use of the word "the" shows that it is the penis of the accused which must engage in the relevant act of penetration. On this reasoning, his counsel contends that a rape can only be effected if an accused, without consent, uses his penis to penetrate. Accordingly, the respondent submits that the only case that could have been left to the jury on count 5 was one of indecent assault.
The grant of leave to appeal is opposed by the respondent, given his submission that no error occurred in the reasoning of the trial judge.
Approach to construction
"The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose": Australian Education Union v Department of Education and Children's Services [2012] HCA 3, 248 CLR 1 at [26]. See also at [28] where the High Court observed that the statutory purpose is derived from a consideration of the scheme of the particular legislation as a whole.
Preferred construction
The definition of sexual intercourse describes an act where the relevant penetration occurs without specifying which of the persons engaged in the sexual intercourse undertakes the relevant penetration. As the Crown submits, the definition is cast in the passive voice. It matters little that the word "the" precedes the word "penis". It also precedes the words "vagina, genitalia, anus or mouth". There would have been no relevant change in the meaning of the definition had the word "a" been used instead of the word "the".
Reading the Code as a whole, one can see that s 133 in dealing with incest could not be read in accordance with its terms if "sexual intercourse" is defined to exclude female offenders. The reference to "or her" in "his or her lineal descendant" etc, would be redundant. This is a strong indication that the definition is intended to be construed as the Crown contends. Further, as the Crown submits, there is no reason to construe the definition so that it does not apply to a female or to a male who causes his victim to penetrate him. The example referred to at [51] of these reasons regarding s 133 of the Code is a case in point.
Support for the contention of the Crown is gleaned from the judgment of Higgins J in R v JC when discussing legislation analogous to s 185 of the Code. The submissions encapsulated at [55]-[57] above are persuasive. Like the Code, the ACT legislation was also expressed in the passive voice.
There is no ambiguity in the construction of the definition of "sexual intercourse". However should that not be so, the construction favoured by the Crown would not result in an extension of a category of criminal offences, but, as discussed at [53] above, result in the narrowing of what has previously been accepted as satisfying the definition of sexual intercourse.
Nether the Crown nor the respondent submit that there is ambiguity in the definition. Should there have been ambiguity in the construction of the definition of "sexual intercourse", s 8B of the Acts Interpretation Act 1931 permits the use of extrinsic material to assist in interpretation.
The second reading speech accompanying the Bill which led to the 1987 amendment to the definition appears to be equivocal. The relevant portion provides:
"The definition of ·sexual intercourse now. proposed does not include penetration by inanimate objects or by parts of the body other than the penis. Although other jurisdictions have extended the definition in this way, it is in my view desirable to maintain the well-accepted concept that sexual intercourse involves the use of the penis. Penetration involving other parts of the body or inanimate objects will be dealt with through the creation of the new offence of aggravated sexual assault. I will say more about that later.
The Law Reform Commission recommended the adoption of the definition of 'sexual intercourse' from section 61A of the New South Wales act. That definition includes penetration of the vagina or anus by any part of the body of another person or by an object manipulated by another person and the introduction of the penis into the mouth of another person. Those elements are also included in section 4(C) of the Victorian Crimes (Sexual Offences) Act 1980. The New South Wales legislation goes further by including in the definition of 'sexual intercourse' the act of cunnilingus – contact between the mouth and female genital organs – and the continuation of sexual intercourse as defined.
Under the proposal contained in this bill all the elements of the Law Reform Commission's proposal will be incorporated in sexual offences punishable under the Criminal Code, although· not all will be included in the expanded definition of 'sexual intercourse' so as to be included in the crime of rape. Again, I refer to the new crime of aggravated sexual assault now to be created.
This bill has the benefit of maintaining the accepted sense of the concepts which· it uses. It does not artificially extend the definition of sexual intercourse to include acts which are not generally thought of as amounting to sexual intercourse."
The second reading speech refers to Tasmania not adopting the definition of sexual intercourse in the then New South Wales legislation. That definition included "the introduction of the penis into the mouth of another person". The Minister observed that the Law Reform Commission sought the adoption of the New South Wales definition. He stated that not all elements of the Commissioner's proposal would be included in the expanded definition of sexual intercourse. However, penetration of the mouth by the penis was adopted as part of the definition. The Minister's statement that the Bill did not artificially extend the definition to include acts which are not generally thought of as sexual intercourse, begs the question as to what such acts might be. Overall, the second reading speech does not reveal an obvious legislative intention that the definition means the penis of the offender must be used for there to be rape.
Leave to appeal
The matter of the construction of the definition of "sexual intercourse" was not developed as thoroughly before the trial judge as it was on the appeal. The submissions of the Crown on the appeal, for the reasons expressed above, are persuasive. It follows that an error of law occurred at the trial. Leave to appeal should be granted because the error of law raises issues of general importance concerning the interpretation of "sexual intercourse" which has ramifications beyond the interpretation of s 185 of the Code to other sections where that expression is used.
Orders
It also follows that the appeal should be allowed. The Crown did not pursue its earlier submission that it was appropriate to make an order under s 402(5) of the Code that the respondent be convicted on the count of rape as originally charged. This concession was appropriate as the respondent chose not to give evidence on the revised count 5 after the ruling of the trial judge.
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