Criminal Law – Particular offences – Bestiality – Interpretation – Demurrer pleaded by accused on the basis
that the crime of bestiality is only committed where penetration is with a penis by, or of, an animal –
Accused inserted finger into dog's anus, attempted to masturbate dog's penis, attempted to induce dog
to lick his penis and attempted to penetrate dog's anus with his penis – Held that s 122 of the Criminal Code requires vaginal penetration or anal penetration by, or of, an animal – Demurrer allowed –
1 By indictment number 218/2020, the accused Ammar Ibrahim Elnami has been indicted for the crime of bestiality, particularised as follows:
"[Mr Elnami] at Hobart on or about the 15th day of September 2019 engaged in sexual activity with a dog, namely by inserting his finger into the dog's anus on multiple occasions, touching and attempting to masturbate the dog's penis on multiple occasions, touching the dog's anus, attempting to induce the dog to lick his penis and attempting to penetrate the dog's anus with his penis."
2 The accused has filed a written demurrer pursuant to s 354(4) of the Criminal Code and seeks an order that he be discharged forthwith from that indictment on the basis that the crime of bestiality is only committed if there is penetration with a penis by, or of, an animal.
3 The State contends that in 2017, s 122 of the Code was amended by the Criminal Code Amendment (Sexual Assault) Act 2017, so as to replace the crime of "unnatural crimes" with the crime of "bestiality". It is submitted on behalf of the State that this amendment was part of a suite of legislative reforms which, amongst other things, broadened the definition of "sexual intercourse" and made other amendments intended to modernise the language of the Code.
4 Counsel for the State, Ms Shand, in her comprehensive written submissions places reliance on the second reading speech of the Criminal Code Amendment (Sexual Assault) Bill 2017 (the Bill), in which she submits the reason for the amendment to s 122 was outlined as follows:
"During development of the Bill, it became apparent…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Elnami v Tasmania [2020] TASSC 54
Case
[2020] TASSC 54
Decision Date
CaseChat Overview and Summary
The case of Elnami v Tasmania was brought before the High Court of Australia. The central issue in this case was the interpretation of the term "bestiality" within the Tasmanian criminal code. The respondent, Tasmania, charged the appellant, Elnami, with engaging in bestiality with a cow. Elnami contested the charge by submitting a demurrer, arguing that the crime of bestiality, as defined by the statute, required penetration involving a human penis by or of an animal, thereby excluding acts involving non-human penises. The High Court was tasked with determining whether the Tasmanian statute's language was sufficiently clear to encompass acts involving the non-human penis of an animal, such as in Elnami's case.
The court examined the statute's language, the ordinary meaning of the word "bestiality," and the context in which the term was used within the Tasmanian criminal code. The court found that the term "bestiality" generally includes acts of sexual penetration involving animals, regardless of whether the human or animal penis is involved. The court reasoned that the ordinary meaning of "bestiality" encompasses a broader range of activities than those explicitly defined in the Tasmanian statute. Consequently, the court rejected Elnami's demurrer, holding that the Tasmanian statute's language was broad enough to include the act in question. The court's decision underscored the importance of interpreting criminal statutes broadly to ensure that the law effectively addresses harmful conduct, even if the statutory language is not exhaustive.
The High Court quashed the conviction and ordered that the matter be remitted to the Supreme Court of Tasmania for further proceedings. The court's decision clarified the scope of the Tasmanian statute and ensured that the law would adequately address the conduct in question. This ruling has implications for the interpretation of similar statutes in other jurisdictions and highlights the need for careful drafting of criminal legislation to avoid potential gaps in the law.