Holland v The Queen

[1993] HCA 43

HIGH COURT OF AUSTRALIA

MASON CJ , BRENNAN, DEANE, DAWSON, TOOHEY GAUDRON AND McHUGH JJ

GLEN RODERICK HOLLAND v. THE QUEEN

(1993) 117 ALR 193

27 October 1993

Orders

Appeal dismissed

Decisions

MASON CJ, BRENNAN, DEANE AND TOOHEY JJ The appellant pleaded not guilty in the District Court of New South Wales to six charges that, on different specified days in December 1988, he had sexual intercourse with a girl of the age of thirteen years who was, at the time of the alleged offences, under his authority. Four of the charges involved allegations of digital penetration of the child's vagina. Two involved allegations of cunnilingus. On 30 August 1991, the jury convicted the appellant of the two offences involving cunnilingus. It returned verdicts of not guilty in respect of the four charges involving alleged digital penetration but, in respect of each of those charges, found the appellant guilty of an attempt to commit the charged offence. Appeals by the appellant against the convictions and (by leave) sentence were dismissed by the New South
Wales Court of Criminal Appeal (Gleeson CJ, Mahoney JA. and Allen J). The appellant now appeals from the judgment and order of the Court of Criminal Appeal dismissing his appeal against conviction.

2. Two distinct grounds of appeal have been argued on behalf of the appellant. The first ground is that the learned trial judge (Downs DCJ) was in error in leaving to the jury the question of alternative convictions of attempt to commit the charged offences involving digital penetration. It was argued on behalf of the appellant that, in the particular circumstances of this case, a finding of not guilty of those charged offences did not leave open conviction of attempt to commit them. The second ground also relates to the four convictions of attempt. It is that the trial judge failed to direct the jury on either the elements of those offences of attempt or the factual issues which were involved in relation to them. Those grounds must be considered in the context of the Crown case and the evidence on the trial.

Evidence

3. The Crown case depended upon the evidence of the complainant which was corroborated in a number of respects. The following summary of the evidence is, to a significant extent, taken from the judgment
of Allen J in the Court of Criminal Appeal.

4. As has been indicated, the complainant was thirteen years old at the time of the alleged offences. She was almost sixteen at the time of the trial. She lived in New Zealand. In 1988, when attending the Auckland Easter Show with her parents, she was approached by the appellant who offered to launch her on a modelling career. Over the ensuing months, the appellant took many photographs in New Zealand of the complainant, some in which she was clothed and some in which she was without clothes. In some of those photographs, the complainant was alone. In others, she was with other girls of her own age. Some of the photographs showed the complainant with another girl in what Allen J described as "an obscene situation".

5. Some months prior to December 1988, the appellant invited the complainant, with her parents' consent, to stay with him for a couple of weeks in his flat in Sydney for the purpose of her promised modelling career. There was talk of a visit to the United States and Europe. The invitation was accepted and the complainant came to Australia and stayed with the appellant in his Sydney flat. During the first week in the flat, the appellant, on a number of occasions, massaged the complainant's body, both front and back, while the complainant was in a state of undress. The appellant, on the first occasion, massaged the complainant after applying a fungal cream onto her back for medicinal purposes. The following occasions involved the application of a lotion which was supposed to improve the appearance of the complainant's skin for photographic purposes. The complainant gave evidence that the offences alleged against the appellant subsequently occurred, during the period between 6 December and 12 December 1988, while she remained as a guest in the appellant's flat. In each case, the complainant claimed that, after committing the acts the subject of the charges, the appellant masturbated in her presence.

6. The appellant made an unsworn statement at his trial and then gave evidence on oath. He admitted that he regularly massaged the complainant's body when she was unclothed but denied that he ever
touched her vagina or performed cunnilingus upon her. It is unnecessary to detail the complainant's evidence in relation to the two offences involving cunnilingus. It suffices to note that the jury's conviction of the appellant of those offences, notwithstanding his unambiguous denial of them, plainly discloses that the jury generally accepted the complainant's evidence and rejected the appellant as a witness of truth.

7. As regards the first alleged offence involving digital penetration (count 1 of the indictment), the complainant's evidence
was that the appellant "started playing with my vagina". She explained that that had involved "(r)ubbing around with his finger(s) and penetrating with them". Her evidence about the next of those alleged offences (count 3) was that the appellant "used his finger and played with my vagina and penetrated me again". The complainant's evidence in relation to the two other offences involving digital penetration was to the like effect. Her evidence of one of them (count 5) was that the appellant "started rubbing my back and then
with his finger he penetrated my vagina again". Of the other
(count 6), she said:

"Mr Holland had given me a massage with the lotion, and then, and once again, with his finger, he played and penetrated my vagina."

The complainant was not asked what she meant by the word "vagina". In his summing up to the jury, the learned trial judge indicated that he understood the complainant to use the word in a non-medical sense as referring generally to "the female genitalia". A general reading of the complainant's evidence confirms that that was so. In particular, during cross-examination, the complainant stated that she had used the word "penetration" (i.e. of the vagina) as meaning "(i)nto the body".

8. The overall effect of the complainant's evidence was that her allegations of digital "penetration" were based not only upon what she felt but upon what she saw. Thus, part of her evidence under
cross-examination reads:

"Q. In terms of this penetration of your vagina that you could feel, what was it? A. His finger entering my body. Q. Could you see or was that just the sensation you had? A. I could see it. Q. You could see him, you opened one or both eyes from time to time to watch, did you? A. During the time he was playing with my vagina, I kept both eyes open. Q. You kept your eyes open? A. Yes."

and subsequently:

"Q. And on each of these occasions you could feel penetration? A. Yes. Q. You were watching on some of these occasions you say? A. Yes. Q. Do you have any idea to what extent there was penetration of your vagina? A. 'Extent' what are you referring to? Q. Do you appreciate that a finger has a number of joints? A. Yes. Q. How many joints are you were aware of, if you were aware of it? A. Usually the whole finger. Q. Which one? A. The index. Q. The index, is that the index finger (indicating)? A. Yes. Q. One nearest the thumb? A. Yes. Q. You gave that some thought? A. When I looked down I could only see his hand moving in and out that way. Q. So, you assumed it was his index? A. I assumed it is his index or his middle finger. Q. Or his middle finger? A. Yes. Q. Did it appear to be the same finger on each occasion? A. Yes."

The complainant was not asked about the angle of the appellant's finger to her body at the times of the alleged penetration.

9. Specific reference need be made to only one other part of the evidence, namely, the evidence of Dr Turner who examined the complainant on 14 December 1988, the second day after the last of the four alleged offences involving digital penetration. Dr Turner's examination disclosed that the complainant's hymen was both healthy and intact and that the opening to her vagina was 7 millimetres in diameter. Dr Turner was cross-examined about the likely effects of penetration by a finger of 15 to 20 millimetres in diameter into such a vaginal opening. She gave evidence that, though the diameter of the finger was relevant to the risk of injury to the hymen by such penetration, other factors had to be taken into account such as the "stretchability of the hymen". Her examination had revealed that the complainant was "reasonably oestrogenised" and she considered that any trauma suffered should have healed within 72 hours. Dr Turner agreed that she would expect to find within that period "some particular haemorrhage and a bit of fissuring" if there had been penetration with a finger three times the diameter of the vaginal opening. In fact, she found no evidence of any such haemorrhage or fissuring. Subsequently, the appellant gave evidence that the "linear measurement across" of his forefinger and middle finger at "commencement" and "base" was 18 and 22 millimetres in the case of the forefinger and 20 and 22 millimetres in the case of the middle finger. On the Crown's case, the period of 72 hours before Dr Turner's examination of the complainant included the third and fourth of the alleged offences involving digital penetration which were said to have occurred on the evenings of 11 and 12 December 1988 ((1) The question whether any haemorrhage or fissuring would have occurred after the first rather
than subsequent penetrations was not pursued at the trial.).

Statutory provisions

10. The applicable statutory provisions are to be found in ss.61A, 66C and 66D of the Crimes Act 1900 (N.S.W.) ("the Crimes Act") in its 1988 form, that is, before the amendments effected by the Crimes (Amendment) Act 1989 (N.S.W.) and the Criminal Legislation (Amendment)
Act 1992 (N.S.W.) ("the 1992 Amendment Act"). Those sections
relevantly provided:

"61A. (1) For the purposes of sections 61A-66F, 'sexual intercourse' means - (a) sexual connection occasioned by the penetration of the vagina of any person ... by - (i) any part of the body of another person;

... 66C. ... (2) Any person who has sexual intercourse with another person who - (a) is of or above the age of 10 years, and under the age of 16 years; and

(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,

shall be liable to penal servitude for 10 years. ... 66D. Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, ... shall be liable to the penalty provided for the commission of the offence."

11. An "explanatory note" contained in the 1992 Amendment Act suggests that, even before the amendments effected by the Crimes (Amendment) Act, the word "vagina" as used in s.61A of the Crimes Act was properly to be construed as a general reference to the female genitalia including "those parts ... which are external to the vagina". In support of that suggested construction, the note refers to the decision of the South Australian Court of Criminal Appeal in
Reg. v. Randall ((2) (1991) 55 SASR 447.) in relation to the effect of a differently worded and non-exhaustive definition of "sexual intercourse" in the legislation of that State ((3) Criminal Law Consolidation Act 1935 (S.A.), s.5.). Accordingly, it was argued on behalf of the Crown that, in the present case, the requirement of penetration involved no more than penetration of any part of the female genitalia. That argument must be rejected. It is true that the requirement of penetration in the case of common law rape could be satisfied without penetration of the actual vagina ((4) Reg. v. Lines (1844) 1 Car. and K. 393 (174 ER 861). At common law it is not necessary to prove rupture of the hymen to prove rape: Reg. v. Hughes (1841) 2 Mood. 190 (169 ER 75), Reg. v. McRue (1838) 8 Car. and P 641 (173 ER 653); The People (Attorney General) v. Dermody (1956) IR 307.). It is also true that, as the Crown suggested, the word "vagina" is commonly used to refer generally to the female genital area. Indeed, as has been seen, it was apparently used in that way by the complainant in her evidence in the present case. Nonetheless, in the context of a criminal provision such as s.61A which contains an exhaustive definition of "sexual intercourse", the word must be understood as used in the narrower and technically correct sense of meaning the female organ consisting of the membranous passage or channel leading from the uterus to the vulva. It follows that the charged offences involving digital penetration required proof by the Crown of digital penetration of that organ. In that regard, it should be noted that the declaratory provisions which the 1992 Amendment Act
inserted in the Eleventh Schedule to the Crimes Act were, notwithstanding their retrospective terms, necessarily inapplicable to the appellant's trial which had been completed before their enactment.

Should "attempt" have been left to the jury?

12. The offence of sexual intercourse by digital penetration is committed when an offender puts any part of his finger into the vagina of a complainant intending to put his finger where he puts it. It is unnecessary for the prosecution to show that the offender was aware of the identity of the particular organ that he was penetrating. Similarly, the offence of attempted sexual intercourse by digital penetration is committed when an offender, putting his finger into the external genitalia of a complainant until further penetration is impeded by the narrowness of the vaginal entry, intends to put his finger where he puts it and would penetrate further but for the impediment. In both offences, the relevant intention is a non-specific intention to do an act and the intended act either penetrates the vagina or would have penetrated the vagina but for the impediment. It is a different kind of intention from the intention involved in an attempt to commit an offence the elements of which include a result caused by the act. Thus, attempted murder requires a specific intent to cause the death of the victim or of some other person because the relevant intent relates to the death caused by the offender's act. In the present case, the relevant intention was an intention to insert a finger into the complainant's genitalia as far as the appellant chose so that, but for the impediment at the entry to the vagina, his finger would have penetrated the vagina to some extent.

13. In the present case, there was no direct inconsistency between the evidence of the appellant and the evidence of Dr Turner. However, the combined effect of their evidence was to give rise to a question whether digital penetration of the vagina had actually occurred or whether, accepting that the appellant's finger had entered the complainant's labia, it had not been pushed into or through the vaginal entry. It is true that, upon analysis, there was nothing at all in Dr Turner's evidence which weighed against the conclusion that the tip of the appellant's finger had penetrated the vagina to the minimal extent necessary to satisfy the requirements of the offences involving digital penetration. That minimal extent was that "there
(had) been some degree of penetration although slight" ((5) Papadimitropoulos v. The Queen (1957) 98 CLR 249, at p.255.) of what Dr Turner described as the vaginal "opening", notwithstanding that the finger had not been then forced to the further stage where the hymen would be ruptured or injured ((6) See, generally, R. v. Russen (1777) 1 East's PC. 438, at p.439; Reg. v. Hughes (1841) 9 Car. and P 752 (173 ER 1038); Reg. v. Lines (1844) 1 Car. and K. 393 (174 ER 861).). It would, however, seem that the issue of penetration was treated, on the trial, in a manner which ignored mere penetration of the vagina by the insertion of the tip of the finger into the vaginal entry. Thus, the learned trial judge's summing up records that the submission of counsel for the appellant to the jury had been that "the finger allegations could not have happened as (the complainant) described because of the size of the aperture and the size and length of the accused's fingers". As Allen J records in the Court of
Criminal Appeal:

"It was specifically stated for the Crown, before final addresses commenced, that there was an issue as to attempted digital penetration. It is not surprising that the Crown so stated. Dr Turner's evidence was being relied upon by the appellant to a significant degree. He gave evidence of measurements of his own forefinger and middle finger, which would lead to the broad picture that the diameter varied between 18 and 22 millimetres. This was pointedly contrasted with the diameter of the opening to the vagina as found by Dr Turner of only 7 millimetres. This matter was put before the addresses, quite graphically, to the jury. A piece of paper was put in evidence as an exhibit having one hole of 7 millimetres and one hole of 21 millimetres. The appellant demonstrated to the jury the obvious - that he could not poke his finger through the 7 millimetre hole without tearing the paper. ... It is quite clear that a focal point in the trial as it was conducted was the significance of the disparity between the size of the opening to the vagina and the size of the appellant's finger."

14. In these circumstances, the learned trial judge was correct in leaving attempt to the jury. It was open to the jury to find that all the ingredients, including intent, of each of the offences involving digital penetration had been made out. In the context of the manner in which the trial was conducted, however, there was an obvious possibility that the jury might conclude that, while they were satisfied that all other ingredients had been established, they entertained a reasonable doubt about whether, when resistance was encountered at the vaginal entry, the appellant had applied sufficient pressure to effect penetration of the vagina itself. In that event, the jury were entitled to find the appellant guilty of the alternative offences of attempt.

Inadequacy of the Directions

15. Examination of the learned trial judge's summing up discloses that, as the result of an oversight, his Honour omitted to give any express comprehensive directions about the offences of attempt to have sexual intercourse of which the appellant was convicted. It is common ground that the directions were, for that reason, inadequate ((7) See, e.g., Reg. v. Pureau (1990) 19 NSWLR 372, at p.374; DPP v. Stonehouse (1978) AC 55, at p.79.). The only question in relation to this aspect of the appeal is whether that inadequacy could have occasioned any miscarriage of justice in the present case. The Court of Criminal Appeal, while stressing that full directions about the elements of the offences of attempt should have been given, found that, in all the circumstances of the case, no miscarriage of justice resulted. We can see no ground for disagreeing with the Court of Criminal Appeal's conclusion in that regard. To the contrary, we agree with it.

16. In the course of his summing up, the learned trial judge distinguished between the four charges involving finger penetration and the two charges involving cunnilingus and pointed out that penetration did not constitute a necessary ingredient of the two latter charges. He directed the jury about the elements of each of the two classes of offence in terms to which no objection has been taken. In the course of so doing, he made express reference to the alternative verdicts of guilty of attempt for which the Crown
contended. In that regard, his Honour directed the jury:

"I will say more about this later, but the Crown further puts to you in respect of those four finger charges that if you are not satisfied as to penetration, it is open to you as a matter of the law, and I direct you, that it would be open to you that you could return a verdict of attempting to commit that offence. There is no magic in the word attempt. Attempting to commit that offence is an alternative verdict which you may or may not return if you found the accused not guilty of sexual intercourse in relation to the finger charges." (emphasis added)

In those comments, his Honour made clear to the jury that the question of attempt arose only in relation to the four offences involving digital penetration and, as regards those offences, only in relation to the element of digital penetration.

17. Thereafter, his Honour's summing up failed to give effect to the statement that he would "say more about this later". Subsequently, however, his Honour again informed the jury, in answer to a written question from them, that the question of attempt related only to the four counts involving what the jury described as "digital insertion".

18. A failure by a trial judge fully to direct the jury about all the elements of an offence does not automatically mean that, in the event of a conviction, there has been a miscarriage of justice ((8) See, e.g., Cook (1963) 48 Cr App R 98; D.PP v. Stonehouse (1978) AC, per Lord Salmon at p.79, both being cases involving an offence of attempt.). To determine whether there has been a miscarriage, regard must be had to all the circumstances of the case, including the conduct of the trial. As Dixon, Williams, Webb, Fullagar and Kitto JJ observed
in Alford v. Magee ((9) (1952) 85 CLR 437, at p.466.):

"it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. ... He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny."

To the same effect were the comments of Lord Hailsham of St. Marylebone in Reg. v. Lawrence ((10) (1982) AC 510, at p.519.)
:

"The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts."

19. In the present case, the learned trial judge directed the jury in relation to the elements or ingredients of the charged offences. As has been said, no criticism has been made of his directions in that regard. Nor is any complaint made about his Honour's directions in relation to the criminal standard of proof. On the Crown case, the question of attempt only arose in relation to the four offences involving digital penetration. As has been seen, the trial judge expressly directed the jury, both in the course of his summing up and subsequently, that that was so. In relation to each of those four alleged offences, the "real issue" on the trial was whether the appellant had intentionally effected digital penetration of the complainant's vagina. If he had, he was guilty of the charged offence. If the jury were not satisfied that the appellant had actually effected digital penetration of the complainant's vagina, the only "real issue" in relation to each of the alternative offences of attempt was whether the appellant had attempted to penetrate the complainant's vagina with his finger or fingers. In our view, the above extract from the summing up made clear to the jury that that was so. As his Honour instructed the jury, there "is no magic in the word attempt". In the context of this case, the word clearly encompassed both the act and the accompanying intent. In the result, his Honour correctly conveyed to the jury that the question of attempt arose only if they were satisfied of all ingredients of the offences involving digital penetration other than penetration and that, in that event, the issue involved in that question was whether there had been an "attempt", in the ordinary meaning of that word, by the appellant to effect digital penetration of the complainant's vagina. In other
words, while greater elaboration was desirable, his Honour's directions were, in the context of the particular trial, adequate to discharge the basic responsibility of identifying and communicating to the jury what, "in the light of the law", "the real issue" was.

20. The conclusion that the shortcomings of the trial judge's directions on attempt did not occasion a miscarriage of justice in the present case derives support from the fact that counsel for the appellant at the trial did not seek any further direction in relation to attempt either at the conclusion of the trial judge's summing up or when the jury subsequently returned with a question on that subject. It also derives some support from the fact that each of the specific instances of alleged inadequacy which were relied upon by the appellant in this Court is, in our view, either unpersuasive or insignificant. We turn to explain why that is so.

21. The first specific instance of alleged inadequacy, as identified in the appellant's written submissions, was: "(t)he jury were entitled to consider the alternative verdict if ((11) Semble, "only
if".) they were not satisfied beyond reasonable doubt as to penetration". In fact, the above-quoted extract from his Honour's summing up, when read in the context of his general directions about the criminal onus of proof, contained a clear direction to that effect.

22. The specific instance of alleged inadequacy upon which primary reliance was placed in the course of argument was that the jury should have been directed "that they could not have regard to the evidence of penetration in determining the question whether or not they were satisfied beyond reasonable doubt as to intent to penetrate". The answer to that suggested inadequacy is that, in the context of Dr Turner's evidence, the members of the jury were clearly entitled to have regard to the complainant's evidence of penetration of her "vagina" in the sense in which she used that word. As Allen J commented in the Court of Criminal Appeal, there is no doubt that, in
the context of the evidence and the conduct of the trial:

"the jury would have understood that the factual issue in determining whether there was an attempt ... was whether the appellant made an effort (that is, intentionally tried) to achieve that penetration by direct finger pressure - even though he did not persist when he encountered the tissue resistance arising from the disparity, on which so much stress was laid during the conduct of the trial, between the size of the appellant's finger and the vaginal opening".

That "factual issue" encompassed both act and intent. The complainant's evidence about penetration was clearly relevant to it.

23. The other three suggested specific inadequacies upon which the appellant relied were:

(i) "The jury would have to determine whether or not that conclusion (i.e. that they were not satisfied that digital penetration had been effected) was reached because they were not satisfied beyond reasonable doubt as to the complainant's truthfulness or because they thought there was a reasonable possibility that she was mistaken as to penetration. Only in the latter instance would the further question of attempt arise."

(ii) "The jury would have to be specifically directed that there was no suggestion of physical resistance in the complainant's evidence nor was there any suggestion of mistake. The jury would have to be specifically directed to the unequivocal and emphatic evidence of penetration. ... The jury would have to be directed as to how the medical evidence might affect the complainant's credit."

(iii)"The jury would have to be directed as to the elements of the offence both as to actus reus and mens rea."

As regards (i), it is apparent from the verdicts on the offences involving cunnilingus that the jury were satisfied beyond reasonable doubt about the complainant's truthfulness. As regards (ii), the suggested directions involve argumentative points in relation to the evidence of a kind which carry no real weight in circumstances where they were not raised by counsel with the trial judge at the end of his summing up. As regards (iii), for the reasons already discussed in this judgment, the failure of the trial judge fully to direct the jury about all the elements of the offence did not amount to a miscarriage of justice in this case.

24. The appeal should be dismissed.

DAWSON, GAUDRON AND McHUGH JJ The facts, the relevant provisions of the Crimes Act 1900 (N.S.W.) ("the Crimes Act") and the issues in this case are set out in the judgment of Mason CJ, Brennan, Deane and Toohey JJ They need not be repeated in any detail. We agree with their Honours' construction of s.61(A)(1) of the Crimes Act and their conclusion that the declaratory provisions inserted into the Eleventh Schedule to that Act in 1992 had no application to the appellant's trial. We agree also that the evidence permitted an alternative verdict of attempted sexual intercourse on the charges of sexual intercourse by digital penetration and that the trial judge was entitled to leave that issue with the jury. However, we do not agree with their Honours' further conclusion that the appellant's convictions for attempted sexual intercourse involved no miscarriage of justice.

2. The appellant stood trial on six counts of sexual intercourse under s.66C of the Crimes Act. He was convicted on two counts involving cunnilingus and verdicts of not guilty but guilty of attempted sexual intercourse were returned on the other four counts which involved claims of digital penetration. This appeal is based
on, but not limited to, the convictions for attempted sexual intercourse. It was put that if the appeal succeeded with respect to those convictions, the convictions for sexual intercourse under s.66C or, alternatively, the sentences imposed for those offences should be set aside. Unless otherwise indicated, what follows is directed only to the four counts of sexual intercourse involving digital penetration and the verdicts of guilty of attempted sexual intercourse.

3. Given the verdicts returned by the jury, the appeal must be approached on the basis that, although the appellant committed various acts of a sexual nature on the four occasions in question, he did not, on any occasion, penetrate the complainant's vagina. This notwithstanding, the evidence permitted findings of attempted sexual intercourse on the basis that he specifically intended to penetrate the complainant's vagina or that he intended to insert his finger into her genitalia as far as he chose and would have penetrated the vagina but for the impediment at its entry.

4. The trial judge (Downs DCJ) did not instruct the jury as to the intent required for the offence of attempted sexual intercourse. Nor did his Honour analyse the evidence or present the issues in a way that necessarily ensured that the jury considered with what intention the appellant committed the sexual acts that they ultimately found
proved against him. His Honour merely informed the jury:

"if you are not satisfied as to penetration, it is open to you as a matter of law, and I direct you, that it would be open to you that you could return a verdict of attempting to commit that offence. There is no magic in the word attempt. Attempting to commit that offence is an alternative verdict which you may or may not return if you found the accused not guilty of sexual intercourse in relation to the finger charges."

5. At the time of the events leading to the charges, "sexual intercourse" was defined by s.61A(1)(a) in terms of the "penetration of the vagina" and, in the absence of the 1992 declaration, "vagina" was necessarily to be understood in its strict anatomical sense. The result was that touching the external genitalia of a person under the age of 16 years who was under the authority of an accused person, if accompanied with the intention of touching the external genitalia only, was indecent assault under s.61E(1A) and not attempted sexual intercourse under either s.66B or s.66D of the Crimes Act ((12) Section 66B applied when the complainant was under 10 years of age; s.66D when the complainant was between 10 and 16 years of age.).

6. As earlier indicated, the indictment charged offences under s.66C. At the time of the trial and so far as an offence under s.66C was concerned, the Crimes Act permitted an alternative verdict of attempted sexual intercourse ((13) See the general attempt provision,
s.427. See also s.66E(4) which was introduced by the Crimes (Amendment) Act 1989 (N.S.W.).) but not indecent assault. The result was that, if the jury considered it a reasonable possibility that, on any of the occasions in question, the appellant intended to touch or fondle the complainant's external genitalia without penetrating the vagina, he was entitled to an outright acquittal on the count concerned.

7. The appellant's defence was that he had not engaged in any sexual activity with the complainant. Naturally, therefore, intention was not at the forefront of his case. However, penetration was clearly in issue; indeed, attempt was left to the jury on the basis that it fell for consideration only if they were not satisfied as to that issue. And if not satisfied as to penetration, the very next question was whether, even though he had not done so, the appellant had intended to penetrate the complainant's vagina either specifically or in the sense earlier outlined.

8. The complainant apparently used the word "vagina" to refer to the genital area and not in its strict anatomical sense. Therefore, there was no necessary inconsistency between her evidence and an intention on the part of the appellant to touch or fondle her external genitalia without penetrating the vagina. And, of course, the jury was not bound to (and, perhaps, did not) accept the complainant's evidence in its entirety.

9. It was clearly possible for the jury to entertain a reasonable doubt as to the intention that accompanied the sexual acts proved against the appellant. Specifically, they might have considered it a reasonable possibility that the appellant intended to touch or fondle the complainant's external genitalia without penetrating the vagina. Moreover, the fact that intention was not at the forefront of the defence case made it all the more important that directions be given on that element of attempted sexual intercourse ((14) See, as to the obligation of a trial judge to bring a defence raised by the evidence to the attention of the jury, even if the defence has not raised it, R. v. Hopper (1915) 2 KB 431, at p.435; Van Den Hoek v. The Queen (1986)
161 CLR 158, at p.161.). The failure of the trial judge to give proper directions must be seen as having deprived the appellant of a chance of acquittal that was fairly open and, hence, as involving a serious miscarriage of justice.

10. The failure of the trial judge to give proper directions with respect to the intention necessary for attempted sexual intercourse could not possibly have affected the jury's deliberations with respect to the two counts of sexual intercourse under s.66C on which the appellant was convicted. To the extent that the appeal is concerned
with those convictions, it must be dismissed. However, the convictions for attempted sexual intercourse should be set aside.

11. The view that there was a miscarriage of justice with respect to the convictions for attempted sexual intercourse is a minority view. It is, thus, unnecessary to consider the argument that, if those convictions were set aside, the sentences imposed with respect to the
convictions under s.66C should also be set aside. It is also unnecessary to consider whether the curious retrospective declaration of 1992 ((15) Criminal Legislation (Amendment) Act 1992 (N.S.W),
Schedule 1(16); see also Schedule 1(2), Explanatory note - item (2).) that, as and from the enactment of s.61A, the word "vagina" included "those parts of the female genitalia which are external to the vagina" would apply in the event of a retrial.