Criminal Law (W.A.)—Sexual penetration without consent—Maximum penalty prescribed—Sexual penetration defined as various categories of sexual acts—Whether maximum penalty appropriate for worst type of case falling within each category—Criminal Code (W.A.), ss. 324D, 324F.
Decision
MASON C.J., WILSON, BRENNAN, TOOHEY AND GAUDRON JJ. After a trial in the Supreme Court of Western Australia before Kennedy J. and a jury, the applicant was convicted of the offence of sexual penetration without consent. That offence is created by s.324D of the Criminal Code of Western Australia, one of the provisions of Ch.XXX1A of the Criminal Code which was inserted by the Acts Amendment (Sexual Assaults) Act 1985 (W.A.). Chapter XXXIA is headed "Sexual Assaults". The Act substantially altered the previous Code provisions relating to sexual offences. The offence of rape has been deleted from the Code, but the conduct which would have constituted rape is now proscribed by s.324D which reads:
" Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years."
The conduct proscribed by s.324D includes certain conduct which would not have constituted rape. Section 324F gives an extended meaning to the phrase "to sexually penetrate". It is defined to mean -
" (a) to penetrate the vagina of any person or the anus of any person with -
(i) any part of the body of another person; or
(ii) an object manipulated by another person,
except where the penetration is carried out for proper medical purposes;
(b) to manipulate any part of the body of another person so as to cause penetration of the vagina or anus of the offender by part of the other person's body;
(c) to introduce any part of the penis of a person into the mouth of another person;
(d) to engage in cunnilingus; or
(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d)."
Section 324G defines "consent" to mean "a consent freely and voluntarily given". It is unnecessary now to consider the construction of that section. A maximum penalty of 14 years imprisonment is prescribed for the offence of sexual penetration without consent (described by the sidenote to s.324D as "Sexual assault"). Section 324E creates an offence of sexual penetration without consent in circumstances of aggravation (described by the sidenote to s.324E as "Aggravated sexual assault") for which a maximum penalty of 20 years imprisonment is prescribed.
2. The circumstances out of which the charge against the applicant arose were unusual. The complainant, a mother of four children, had been living with a man near the house occupied by the applicant and his wife, Katrina. Two of her children, both young, lived with her. The complainant was befriended by the wife and, when the man with whom the complainant had been living required her to leave their…
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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Details
AGLC
Ibbs v the Queen [1987] HCA 46
Case
[1987] HCA 46
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Ibbs, against his conviction for the murder of his wife. The central dispute concerned the admissibility of certain evidence obtained by police during their investigation into the death.
The primary legal issue before the Court was whether the trial judge had erred in admitting evidence of statements made by the applicant to police officers, which the applicant argued were obtained in circumstances that rendered them inadmissible. This involved a consideration of the principles governing the admissibility of confessional evidence, particularly where there are allegations of unfairness or impropriety in the manner of its procurement.
The Court analysed the circumstances in which the statements were made, applying the principles established in cases such as *R v Swaffield* and *Bunning v Cross*. It considered whether the statements were voluntary and whether their admission would be unfair to the applicant or contrary to public policy. The Court ultimately found that the trial judge had correctly applied the relevant legal principles in admitting the evidence, and that there was no error in the admission of the statements.
The appeal was dismissed, and the conviction upheld.