Lam v The King

Case •

[2024] NSWCCA 6

•

12 February 2024

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Lam v R [2024] NSWCCA 6
Hearing dates: 20 November 2023
Date of orders: 12 February 2024
Decision date: 12 February 2024
Before: Meagher JA at [1];
Garling J at [132];
Weinstein J at [160]
Decision:

(1) Grant leave to the applicant Ms Lam under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from the orders made by Girdham SC DCJ on 18 July 2023.

(2) Allow the applicant’s appeal filed on 20 July 2023 and set aside the orders of Girdham SC DCJ made on 18 July 2023:

(a) Refusing to uphold the applicant’s demurrer;

(b) Refusing to quash the indictment dated 1 June 2023; and

(c) Refusing to order a permanent stay of the proceedings.

(3) Order that the applicant’s demurrer dated 12 July 2023 be upheld on the basis that the accused is a female and s 81 of the Crimes Act 1900 (NSW) was applicable only to conduct constituting an “indecent assault” committed by a male upon a male.

(4) Quash the indictment dated 1 June 2023.

Catchwords:

CRIME — Appeal under s 5F Criminal Appeal Act 1912 (NSW) — Sexual offences — Historical indecent assaults — Where female teacher allegedly engaged in sexual activities with male teenage students in 1978 — Whether a female capable of committing the offence of indecent assault upon a male person under the now-repealed s 81 of Crimes Act 1900 (NSW)

Legislation Cited:

Act for the Punishment of the Vice of Buggery, 25 Hen 8, c 6

Act for the Punishment of the Vice of Sodomy, 5 Eliz 1, c 17

Crimes (Amendment) Act 1924 (NSW)

Crimes (Amendment) Act 1955 (NSW), s 3

Crimes (Amendment) Act 1984 (NSW)

Crimes (Girls’ Protection) Act 1910 (NSW), ss 2, 3

Crimes Act 1900 (NSW), ss 18, 63, 65, 67, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 81A, 81B, 379

Criminal Appeal Act 1912 (NSW), s 5F

Criminal Law Act 1827, 7 & 8 Geo 4, c 28, s 14

Criminal Law Amendment Act 1883 (NSW), ss 39, 40, 41, 42, 43, 44, 59, 60, 319

Criminal Law Amendment Act 1885, 48 & 49 Vict, c 69

Criminal Procedure Act 1851, 14 & 15 Vict, c 100, ss 9, 29

Criminal Procedure Act 1986 (NSW), ss 11, 17, 20

Criminal Statutes Repeal Act 1861, 24 & 25 Vict, c 95

Interpretation Act 1987 (NSW), ss 34, 35

Offences Against the Person (Ireland) 1829, 10 Geo 4, c 34, s 18

Offences Against the Person Act 1828, 9 Geo 4, c 31, ss 15, 16, 18, 25

Offences Against the Person Act 1837, 7 Wm 4 & 1 Vict, c 85, ss 11,

Offences Against the Person Act 1861, 24 & 25 Vict, c 100, ss 18, 20, 47, 48, 49, 50, 51, 52, 61, 62, 63

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2

Connelly v Director of Public Prosecutions [1964] AC 1254

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60

Crowe v Graham (1968) 121 CLR 375; [1968] HCA 6

Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241

JAD v R [2012] NSWCCA 73

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v B and L (1954) 71 WN (NSW) 138

R v Court [1989] AC 28

R v Eagleton (1855) Dears 515

R v Edwards [1956] QWN 16

R v Ireland [1998] AC 147

R v Jellyman (1838) 8 C & P 604

R v Keogh (1878) 1 SCR NS 136

R v Lavender (2005) 222 CLR 67; [2005] HCA 37

R v Linneker [1906] 2 KB 99

R v McDonald (1878) 1 SCR NS (NSW) 173

R v Montila [2004] 1 WLR 3141

R v Plummer (Court of Criminal Appeal (NSW), 12 July 1989, unrep)

R v Robinson [1915] 2 KB 342

R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198

R v Valence (1959) 59 SR (NSW) 138

Reg v Baker (Court of Common Pleas, 31 July and 3 August 1875, unrep)

Riddle v The King (1911) 12 CLR 622; [1911] HCA 33

Skinner v The King (1913) 16 CLR 336; [1913] HCA 32

The King v Hare [1934] 1 KB 354

The King v Wiseman (1727) Fortescue 91

The Queen v Allen (1849) 1 Den 364

Union Steamship Company of New Zealand Ltd v Melbourne Harbour Trust Commissioners (1884) 9 App Cas 365

Texts Cited:

CS Greaves, Lord Campbell’s Acts, for the Further Improving the Administration of Criminal Justice, and the Better Prevention of Offences (1851, W. Benning and Co)

CS Greaves, The Criminal Law Consolidation and Amendment Acts of the 24 & 25 Vict. with Notes and Observations (1861, Stevens & Sons)

DW Logan, “The King v Hare” (1934) 50 Law Quarterly Review (1934) 168

E Coke, The Third Part of the Institutes of the Laws of England (2008, William S. Hein & Co)

G Williams, Textbook of Criminal Law (2nd ed, 1983, Stevens & Sons)

JF Stephen, A Digest of the Criminal Law (Crimes and Punishments) (2nd ed, 1883, Macmillan and Co)

JW Cecil Turner, Russell on Crimes, vol 1 (11th ed, 1958, Stevens & Sons)

Law Reform Commission, “First Report of the Commissioners of the Law Reform Commission, together with a Draft Bill to Consolidate and Amend in certain respects the Criminal Law” (1871) 19.1 Journal of the Legislative Council of NSW 361

Lord Hailsham (ed), Halsbury’s Laws of England, vol IX (2nd ed, 1933, Butterworth & Co)

M Hale, Historia Placitorum Coronae, vol 1 (1800, E Rider)

M Kirby, “The sodomy offence: England’s least lovely criminal law export?” (2011) 1 Journal of Commonwealth Criminal Law 61

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3229-3230

New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 November 1882 at 1073

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 May 1984 at 574

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 May 1984 at 698, 702

PFG Rook and R Ward, Rook & Ward on Sexual Offences (2nd ed, 1997, Sweet & Maxwell)

PFG Rook and R Ward, Sexual Offences (1st ed, 1990, Waterlow Publishers)

R Watson and H Purnell, Criminal Law in New South Wales, vol 1 (1971, The Law Book Company Limited)

W Blackstone, Commentaries on the Laws of England, vol 4 (17th ed, 1830, Richard Taylor)

W Russell, Treatise on Crimes and Misdemeanours (4th ed, 1865, Stevens & Sons)

Category:Principal judgment
Parties: Helga Lam (Applicant)
Rex (Respondent)
Representation:

Counsel:

D Hooke SC and S Boland (Applicant)
D Kell SC and J Caldwell (Respondent)

Solicitors:

Australian Criminal and Family Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2021/266067
Publication restriction: There is no suppression order in relation to the proceedings.
However, pursuant to Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), the publication of any matter which identifies or is likely to identify the complainants in connection with this proceeding is prohibited.
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Citation:

N/A

Date of Decision:
18 July 2023
Before:
Girdham SC DCJ
File Number(s):
2021/266067

JUDGMENT

  1. MEAGHER JA: By an indictment dated 1 June 2023, the applicant, Ms Lam, has been charged with 15 counts of indecent assault upon male persons contrary to the now repealed s 81 of the Crimes Act 1900 (NSW). Those offences are alleged to have occurred in 1978 whilst the applicant was a teacher at a boys school. There are four complainants, who at the time of the alleged offending were male students aged between 13 and 16 years. In the present proceeding, the applicant seeks leave to appeal under Criminal Appeal Act 1912 (NSW), s 5F(3)(a) from orders made by Girdham SC DCJ on 18 July 2023 refusing her applications to uphold a demurrer and quash the indictment or to permanently stay the proceedings.

  2. For the reasons which follow, I would grant leave to appeal from the orders of the primary judge, allow that appeal, set aside the orders of 18 July 2023, and, pursuant to s 5F(5)(b), order that the demurrer be upheld and the indictment quashed. It is important to record that I do so solely because, properly construed, s 81 of the Crimes Act 1900, a provision enacted in 1900, based on English legislation from 1861, and which was repealed and replaced in 1984, does not apply and has never applied to conduct committed by a female upon a male. Section 81 was relevantly directed to the crime of sodomy upon a male and other male homosexual conduct.

  3. At the time of the alleged offending, ss 79-81 appeared in Div 10 of Pt 3 of the Crimes Act 1900 under the heading “Unnatural offences” and with the following marginal notes (which are set out here as section headings):

79 Buggery and bestiality

Whosoever commits the abominable crime of buggery, or bestiality, with mankind, or with any animal, shall be liable to penal servitude for fourteen years.

80 Attempt, &c, to commit buggery

Whosoever attempts to commit the said abominable crime, or assaults any person with intent to commit the same with or without the consent or such person, shall be liable to penal servitude for five years.

81 Indecent assault on male

Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.

  1. The applicant demurred to each of the 15 counts on the indictment on two bases.

  2. The first was that the “accused is a female, while s 81 of the Crimes Act 1900 (NSW) (repealed) is applicable only to male homosexual acts”. The primary judge rejected this argument, and that determination is the subject of ground of appeal 1. This ground should be upheld.

  3. The second was that none of the counts purporting to charge an offence under s 81 “reflect[s] the terms of the provision”. As to that argument, each of the counts charges that during 1978 the applicant “did assault a male person”, and that “at the time of such assault did commit an act of indecency” on him. None of the counts describes the offence charged in the words of s 81 or in similar words (cf Criminal Procedure Act 1986 (NSW), s 11), although that could easily have been achieved by an amendment to the indictment made at the trial and before the jury was sworn (Criminal Procedure Act, s 17), or after the indictment was presented (Criminal Procedure Act, s 20).

  4. The primary judge did not err in dismissing this argument as a basis for quashing the indictment or staying the proceedings. Ground of appeal 3, which challenges that conclusion, should therefore be rejected. Whilst the form of the charges in the indictment is deficient, the court could have ordered the indictment be amended and the trial proceed in circumstances where the Crown’s Case Statement describes in some detail the alleged conduct of the applicant in relation to each of the complainants. For that reason, there could be no difficulty in the Crown amending the indictment so that each offence was charged in the words of s 81.

  5. By her amended notice of motion, the applicant also sought in the alternative an order that the prosecution be “permanently stayed as an abuse of process insofar as it is reliant on s 81”. That application was made on the basis that a trial concerning charges of offences under s 81 would require the application of alleged “community standards” from 1978 in relation to the element of “indecency”. It was said that the trial should be permanently stayed because there was no “rational mechanism by which a jury, convened in 2023, could fairly apply a community standard which is alleged to have existed 45 years ago”. This argument presumed that the community standards by which indecency was to be judged were those current at the time of the alleged offending.

  6. In response, the Crown contended that whether the relevant conduct was indecent was to be assessed by community standards at the time of the trial rather than at any earlier point in time, thus avoiding the possibility that the jury might have to apply community standards from an earlier time. The primary judge accepted this submission, and on that basis dismissed the application for the permanent stay. That order is challenged by grounds of appeal 2, 4 and 5.

  7. Whilst in my view it is unnecessary for this Court to consider this argument and those grounds because the indictment should be quashed, I propose to say briefly why I consider the argument of the Crown, as accepted by the primary judge, to be wrong.

  8. An “indecent” assault ordinarily involves a battery and some touching of the person or clothes of the party alleged to have been assaulted. However, the assault may not involve touching, but only some physical act which causes the victim to apprehend some contact with a sexual connotation. Such conduct must involve “lewdness” at the time it is committed (see Windeyer J in Crowe v Graham (1968) 121 CLR 375 at 389-390; [1968] HCA 6). Otherwise, the offence charged is not committed. There is little caselaw that in terms confirms this, no doubt because it is obvious and because whether there might have been a material change in such standards between the date of offending and trial rarely arises as an issue. In Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241 at [40], Campbell JA (Beazley JA agreeing) described the “community standards” to be applied as “those of the time”, referring to the time of commission of the alleged offence.

Construction of s 81 (ground 1)

Introduction

  1. Each complainant recounts having engaged in sexual activity with the applicant. The nature of that conduct included the applicant having penile-vaginal intercourse with the complainants, as well as masturbating them, performing fellatio on them, and instructing them to digitally penetrate her and to perform cunnilingus on her. Three of the complainants were "willing participants" (Crown submissions on application to primary judge at par 2) in the conduct . The fourth, who at the time of the alleged offences had just turned 13 years old, says that he was fearful and upset when the applicant performed sexual acts upon him.

  2. The primary judge held that an indecent assault contrary to s 81 could be committed by a female who induces school-aged boys to engage in conduct of the kind described. At J[64], her Honour concluded:

To my mind, the terms of section 81 are not ambiguous. The actual language used is clear and apparent. The offence requires the Crown to establish an act of indecency upon a male person by “whosoever” (an accused), irrespective of whether such act was consented to by the other person. It is preceded by ss 79 and 80 both of which commence with the term “whosoever”. Neither section limits the perpetrator to a male person, in contrast to ss 81A and 81B each of which commence “whosoever, being a male person”.

  1. The question of construction is easy to identify. It is not as to the meaning of “Whosoever” as it appears in s 81. As used, that word includes every person, male or female, capable of committing the crime described by the section. The issue is as to the scope of the conduct capable of constituting that crime. Does it describe any conduct involving an “indecent assault” upon a male, whether by a male or a female? Or is it confined to “unnatural” conduct of the kind to which the other offences in ss 79 and 80 were directed, and, if so, was a female capable of committing that offence? The punishments in ss 80 and 81 for the offences other than sodomy and bestiality were the same; indeed, as appears below, those two provisions share a common predecessor provision which was split but otherwise re-enacted in almost identical terms in the Crimes Act 1900. Most significantly, the meaning of the words “of whatever age, with or without the consent of such person”, which do not appear in any of the English provisions upon which s 81 was based, has to be considered. On their face, those words describe conduct which is “indecent”, irrespective of the age of the male upon whom it was “committed” and whether he was consenting to it or not.

  2. Before resolving this question, the relevant principles of statutory construction should be identified. They are not controversial. It is then convenient to consider the extensive legislative history leading to the enactment of s 81. That legislative history shows that its earliest predecessor provision was enacted in England in 1861 in a consolidation of various crimes against the person. That legislation was enacted at a time shortly after the criminal law had first differentiated assaults which contained an element of indecency from other common assaults. It included for the first time the offences of indecent assault upon a male person and indecent assault upon a female person. The former was included in the part headed “Unnatural Offences”, and the latter in the part headed “Rape, Abduction, and Defilement of Women”.

  3. Reference must also be made to The King v Hare [1934] 1 KB 354, in which the Court of Criminal Appeal in England held in circumstances similar to those in the present case that under the abovementioned English legislation a woman could be convicted of the crime of indecent assault on a male.

  4. It is necessary in treating with the legislative history of s 81 to consider the parties’ submissions concerning aspects of it and the interpretation of the earlier relevant provisions.

Principles of statutory construction

  1. Ordinarily, questions concerning the legal meaning of a statutory provision are not to be considered without regard to their context and purpose. Whilst the “language which has actually been employed in the text of legislation is the surest guide to legislative intention”, the “meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] (citations omitted)). However, to the extent recourse is had to extrinsic materials, including historical considerations, they “cannot be relied on to displace the clear meaning of the text” (Alcan at [47]).

  2. Earlier, in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78], McHugh, Gummow, Kirby and Hayne JJ said of the “legal meaning” of an enactment:

Ordinarily, that meaning… will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. (Citations omitted.)

  1. The heading “Unnatural offences” to ss 79, 80 and 81 of the Crimes Act 1900 was part of that Act (Interpretation Act 1987 (NSW), s 35(1)). Accordingly, it formed part of the textual context in which the provisions within Div 10 were to be construed and was to be taken into consideration in determining their meaning.

  2. Furthermore, the modern approach to statutory interpretation insists that “context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise” (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; [1997] HCA 2). That approach extends to the consideration of the surrounding text, including headings.

  3. In contrast, the marginal notes in the Crimes Act 1900 as enacted, which have now been replaced by section headings, are not part of that Act (Interpretation Act, s 35(2)). However, s 34(1) permits the use of such notes to confirm that the meaning of a provision is the ordinary meaning conveyed or to determine its meaning if that provision is ambiguous or obscure.

  4. The long title to the Crimes Acts 1900 describes it as an “Act to consolidate the Statutes relating to Criminal Law”. One of those earlier statutes was the Criminal Law Amendment Act 1883 (NSW) (1883 NSW Act), which in turn was described as an “Act to consolidate and amend in certain respects the Criminal Law”. The first of the eleven Parts of that Act is headed “Offences against the Person”, and included in that Part under a separate heading were the “Unnatural Offences”, which were based on the provisions under the same heading in the Offences Against the Person Act 1861, 24 & 25 Vict, c 100 (1861 UK Act). This legislative history is an “important part of the context” of s 81; as to which see R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [41]-[49], which concerned the meaning of s 18 of the Crimes Act 1900. See also Riddle v The King (1911) 12 CLR 622 at 638; [1911] HCA 33, where O’Connor J said of the Crimes Act 1900 that the repealed Acts “may, of course, be looked at in determining the meaning of the measure which purports to consolidate them”.

English legislation and its interpretation

  1. The first English civil law criminalising “Buggery committed with Mankind or Beast”, the Act for the Punishment of the Vice of Buggery, 25 Hen 8, c 6, was enacted in 1533. Prior to that time, offences relating to such conduct had been dealt with by the ecclesiastical courts (see M Kirby, “The sodomy offence: England’s least lovely criminal law export?” (2011) 1 Journal of Commonwealth Criminal Law 61 at 62-63). After its repeal in 1553 upon the accession of Mary I, that Act was revived and re-enacted in 1562 by the Act for the Punishment of the Vice of Sodomy, 5 Eliz 1, c 17. Various English statutes relating to offences against the person were first consolidated and amended in the Offences Against the Person Act 1828, 9 Geo 4, c 31 (1828 UK Act), which was known as Lord Lansdowne’s Act. Those statutes included the Act of 1562.

  2. Section 15 (or XV) of the 1828 UK Act, headed “Sodomy”, provided:

And it be enacted, That every Person convicted of the abominable Crime of Buggery, committed whether with Mankind or with any Animal, shall suffer Death as a Felon.

Offences Against the Person Act 1861

  1. The laws relating to offences against the person were further consolidated and amended by the 1861 UK Act. That Act and six other Acts (collectively known as the Criminal Law Consolidation Acts 1861, 24 & 25 Vict, cc 94-100) consolidated provisions from a large number of criminal statutes. Three parts of the 1861 UK Act are presently relevant. They are ss 36 to 47, which appeared under the heading “Assaults” and included assault occasioning bodily harm and common assault (s 47); ss 48 to 55, which appeared under the heading “Rape, Abduction, and Defilement of Women”; and ss 61 to 63, under the heading “Unnatural Offences”.

  2. The draftsman of those seven consolidating Acts, including the 1861 UK Act, as well as the earlier Criminal Procedure Act 1851, 14 & 15 Vict, c 100 (1851 UK Act), was Charles Sprengel Greaves. He was also the editor of the fourth edition of Sir William Russell’s Treatise on Crimes and Misdemeanours (Russell), published by Stevens & Sons in 1865, just four years after the 1861 legislation was enacted. As to his being the draftsman of that legislation, see R v Ireland [1998] AC 147 at 159 (per Lord Steyn), and the preface to Greaves’ commentary on the 1861 legislation extracted below.

  3. In 1861, Greaves published a work, the full title of which was “The Criminal Law Consolidation and Amendment Acts of the 24 & 25 Vict. with Notes and Observations” (1861, Stevens & Sons). He did so having previously published a work on the drafting of various Acts passed in 1851, including the 1851 UK Act (CS Greaves, Lord Campbell’s Acts, for the Further Improving the Administration of Criminal Justice, and the Better Prevention of Offences (1851, W. Benning and Co)). Together, they contain an explanation of the genesis and legislative history of the 1851 and 1861 legislation and authoritative commentary on the relevant English common law. As to it being permissible to refer to that material, see R v Lavender above and s 34 of the Interpretation Act.

  4. In the preface to the work published in 1861, Greaves summarises his participation in the drafting and legislative process for the 1861 UK Act (at p vi):

When these Acts [including the 1861 UK Act] shall come into operation, nine years will have passed since I first was called upon to assist in the consolidation of the Criminal Law; and from that time down to their passing, whenever the matter has been taken in hand, whether by the different Ministries that have existed during that period, or by the Statute Law Commission, the labouring oar has fallen to my share, and though several other barristers have assisted in the work, yet their assistance has been for comparatively short periods, and generally as to part only of the present Acts. In fact, I alone have had the fortune to be engaged continuously with these Acts from their first beginning till they passed. Nor is it irrelevant to this point, that many of the amendments and alterations contained in them originated with myself.

  1. In his introductory commentary on the construction of the 1861 UK Act, Greaves made general observations, which included the following. First, and by reference to the language of the Criminal Law Act 1827, 7 & 8 Geo 4, c 28, s 14, that where the description of an offence refers to the masculine gender only, the statute should be understood to include “females as well as males” unless “otherwise specially provided, or there be something in the subject or context repugnant to such construction” (at p 1). Secondly, that the word “whosoever” is used throughout the Act “in the widest sense, so as to include every person capable of becoming a criminal” (at p 2).

  2. Finally, in the passage extracted by Lord Steyn in R v Ireland at 159, and at pp 3-4 of his commentary, Greaves said:

If any question should arise in which any comparison may be instituted between different sections of any one or several of these Acts, it must be carefully borne in mind in what manner these Acts were framed. None of them was rewritten; on the contrary, each contains enactments taken from different Acts passed at different times and with different views, and frequently varying from each other in phraseology, and … these enactments, for the most part, stand in these Acts with little or no variation in their phraseology, and, consequently, their differences in that respect will be found generally to remain in these Acts. It follows, therefore, from hence, that any argument as to a difference in the intention of the legislature which may be drawn from a difference in the terms of one clause from those in another, will be entitled to no weight in the construction of such clauses; for that argument can only apply with force where an Act is framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout.

  1. In R v Ireland, Lord Steyn, with whom the other Law Lords agreed, addressed a question of statutory interpretation which arose in relation to the different language of ss 18 and 20 of the 1861 UK Act with respect to “causing” grievous bodily harm to any person and “inflicting” grievous bodily harm upon any person. Taking account of Greaves’ comments, Lord Steyn concluded that the difference in language is “therefore not a significant factor” (at 159).

Sections 61 and 62

  1. Turning to the “Unnatural Offences”, ss 61 and 62 of the 1861 UK Act provided:

61 Sodomy and Bestiality

Whosoever shall be convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Ten Years.

62 Attempt to commit an infamous Crime

Whosoever shall attempt to commit the said abominable Crime, or shall be guilty of any Assault with Intent to commit the same, or of any indecent Assault upon any Male Person, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for any Term not exceeding Ten Years and not less than Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour. (Italics added.)

  1. In the first volume of the fourth edition of Russell at p 937 fn (c), Greaves says of s 62 that it is “new, except the part in common type [italicised above], which is from the [Criminal Procedure Act 1851,] 14 & 15 Vict. c. 100, s. 29”.

  2. At this point, it is necessary to refer to earlier legislation which provided for the punishment of assaults committed in circumstances where a felony may have been committed or attempted, and in particular the felonies of rape and sodomy. That legislation, as Rook and Ward observe at the very outset of the first and second editions of their work on sexual offences (PFG Rook and R Ward, Sexual Offences (1st ed, 1990, Waterlow Publishers) at p 1; PFG Rook and R Ward, Rook & Ward on Sexual Offences (2nd ed, 1997, Sweet & Maxwell) at p 1), constituted the first steps in the English criminal law towards differentiating assaults which contained an element of indecency from other assaults. Up until this time, assaults which involved indecent conduct were common assaults and punished as such (see, for example, Russell, vol 1 (4th ed) at pp 1022-1023 and cases cited at fnn (c), (d)).

  3. By s 25 of the 1828 UK Act, any assault committed with the intent to commit the felonies of rape or sodomy (those felonies being punishable by ss 15 and 16 of that Act) was punishable by a term of imprisonment not to exceed two years, with or without hard labour. In his notes to the 1851 legislation, and specifically to s 29 of the Criminal Procedure Act 1851, 14 & 15 Vict, c 100 (which is set out below), Greaves records that an “indecent assault with intent to commit a rape is already provided for” by s 25 of the 1828 UK Act (p 32a).

  4. In 1837, s 11 of the Offences Against the Person Act 1837, 7 Wm 4 & 1 Vict, c 85 (1837 UK Act) provided that where a felony such as rape or sodomy was charged and the circumstances charged included an assault, the jury could acquit of the felony and convict of an assault against the person, which was punishable by imprisonment for a term not exceeding three years. Rook and Ward observe that indecent assaults committed in the course of such conduct would fall within the scope of that section (Sexual Offences (1st ed) at p 1 fn 1).

  5. Something should also be said about the meaning of “indecent” in the expression “indecent assault”. Writing in 1983 and in answer to the question what “indecency” there must be to turn a common assault into an indecent assault, Glanville Williams suggested that “‘indecent’ may be defined as ‘overtly sexual’, though it covers homosexual as well as heterosexual assaults” (G Williams, Textbook of Criminal Law (2nd ed, 1983, Stevens & Sons) at p 231).

  6. In R v Court [1989] AC 28, Lord Ackner said of this answer (at 42):

This is a convenient shorthand expression, since most, but not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may have only sexual undertones. A simpler way of putting the matter to the jury is to ask them to decide whether “right-minded persons would consider the conduct indecent or not.”

  1. Lords Keith, Fraser and Griffiths generally agreed. Lord Goff preferred (at 48) the language of Brett J (later Lord Esher MR) in directing the jury in Reg v Baker (Court of Common Pleas, 31 July and 3 August 1875, unrep), at a time when the members of the jury were only male, namely that “if a man assaults a woman in such a way that ordinary right-minded men would say it was indecent, then it is an indecent assault”.

  2. Greaves’ commentary on s 29 of the 1851 UK Act, extracted in part at [44] below, suggests that “indecency” at that time had the same meaning, describing activity which was overtly sexual or which at least had a sexual connotation and was offensive to accepted standards of decency and privacy. That meaning accords with the often-cited statement of Windeyer J in Crowe v Graham at 390 that the sense in which “indecent” is used in the expressions “indecent exposure” and “indecent assaults” involves “lewdness”.

  3. The 1851 UK Act was the first legislation that expressly provided for the punishment of “indecent” assault as an indictable misdemeanour:

XXIX Punishment for certain indictable Misdemeanors

Whenever any Person shall be convicted of any One of the Offences following, as an Indictable Misdemeanor, that is to say, any Cheat or Fraud punishable at Common Law; any Conspiracy to cheat or defraud, or to extort Money or Goods, or falsely to accuse of any Crime, or to obstruct, prevent, pervert, or defeat the Course of public Justice; any Escape or Rescue from lawful Custody on a Criminal Charge; any public and indecent Exposure of the Person; any indecent Assault, or any Assault occasioning actual bodily Harm; any attempt to have carnal Knowledge of a Girl under Twelve Years of Age; any public selling, or exposing for public Sale or to public View, of any obscene Book, Print, Picture, or other indecent Exhibition; it shall be lawful for the Court to sentence the Offender to be imprisoned for any Term now warranted by Law, and also to be kept to Hard Labour during the whole or any Part of such Term of Imprisonment. (Italics added.)

  1. The purpose of this provision was to empower the court to sentence the offender to be imprisoned in the specified cases, which included “indecent Assault”, “for any Term now warranted by Law” and, more significantly, to be “kept to Hard Labour during the whole or any Part of such Term of Imprisonment” (see Greaves’ 1951 commentary at pp 31-32). To attract the operation of s 29 in relation to indecent assaults, whilst the legal offence charged was an assault and battery, it was also necessary for the indictment to allege that the assault was committed “indecently” and to state the indecent act or acts (see Greaves’ 1851 commentary at pp 32, 87).

  2. In that commentary, having said that an indecent assault might not be confined to cases where there has been a battery, Greaves continued (pp 32-32a):

… in most cases “an indecent assault” will include a battery, and it may be doubted whether there can be an indecent assault, unless the person or clothes of the party alleged to have been assaulted have been touched… any touching of the person, however slight, in an indecent manner, against the will of the party touched, would no doubt bring the party touching within this clause… To this class of cases [those where a party is fraudulently induced to submit to indecencies], therefore, the clause [s 29] is clearly applicable, and so it is also to all those cases where a man indecently applies his hand to a female against her consent, whether for the purpose of soliciting or otherwise. Nor can it be doubted that the clause includes indecent assaults upon a man or boy.

  1. Returning to the legislative history, s 25 of the 1828 UK Act and s 11 of the 1837 UK Act, as well as the references to the three assault offences in s 29 of the 1851 legislation (italicised at [42] above), were repealed by the Criminal Statutes Repeal Act 1861, 24 & 25 Vict, c 95. At the same time, the 1861 UK Act created the following specific offences: s 47 (assault occasioning actual bodily harm), in the group of sections headed “Assaults”; s 52 (indecent assault upon a female and attempt to have carnal knowledge of a girl under 12 years), one of eight sections under the heading “Rape…”; and s 62 (attempt to commit sodomy or bestiality, assault with intent to commit sodomy, and indecent assault upon a male), within the “Unnatural Offences”.

  2. The punishment for the two s 52 offences was the same, being imprisonment “for any Term not exceeding Two Years, with or without Hard Labour”, as was the punishment for each of the s 62 offences, namely “Penal Servitude for any Term not exceeding Ten Years and not less than Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour”.

  3. That the range of punishments for each of the offences under s 62 is the same, and harsher than that for the offences under s 52, reflected the then firmly held view that bestiality, sodomy and related activities were “abominable”, “unnatural” and “deviant”, and to be visited with substantial punishment. The inclusion of the offence of indecent assault in s 62, and its being subject to such punishment and, in particular, a punishment more severe than could be imposed in the case of indecent assault upon a female, is wholly consistent with it being directed to conduct of the nature criminalised by the other offences in that section.

  4. Contrary to the submissions of the Crown, a consideration of the elements of the offences in ss 61 and 62 does show that the crime of sodomy could only be committed by a male, with the result that the crimes of attempt to commit sodomy and assault with intent to commit sodomy also could only be committed by a male. That, of course, says nothing as to the criminal liability of a woman consenting to sodomy as a principal in the second degree, or committing bestiality as a principal in the first degree.

  5. In The King v Hare [1934] 1 KB 354, the Court’s analysis as to whether a woman could commit any crime under s 62 did not consider that question separately in relation to the crimes of bestiality and sodomy. Had it done so, it should have concluded that a woman could have committed attempt to commit bestiality, that she could not have committed attempt to commit sodomy or assault with intent to commit sodomy, and that an indecent assault upon a male could be committed in circumstances involving either of those latter crimes.

Commentary on s 61

  1. Section 61 was taken from the 1828 UK Act, s 15, and the Offences Against the Person (Ireland) 1829, 10 Geo 4, c 34, s 18.

  2. At p 937 of volume 1 of the fourth edition of Russell, Greaves describes the offence in s 61 as follows:

The offence consists in carnal knowledge committed against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with beast. With respect to the carnal knowledge necessary to constitute this offence, as it is the same that is required in the case of rape, it will be sufficient to refer to the preceding chapter.

In this offence as well as in rape, it has been held, since the 9 Geo. 4, c. 31, that the crime is complete on proof of penetration, and even if emission be expressly negatived.

To constitute this offence, the act must be in that part where sodomy is usually committed.

…

Those who are present, aiding and abetting in this offence, are all principals; but if the party on whom the offence is committed be within the age of discretion, namely, under fourteen, it is no felony in him, but only in the agent. (Citations omitted.)

  1. The passage in the “preceding chapter” discussing carnal knowledge is at pp 916-920. There, the editor first sets out s 63 of the 1861 UK Act (a provision taken from s 18 of the 1828 UK Act), which was enacted as follows:

63 Carnal Knowledge Defined

Whenever, upon the Trial for any Offence punishable under this Act, it may be necessary to prove carnal Knowledge, it shall not be necessary to prove the actual Emission of Seed in order to constitute a carnal Knowledge, but the carnal Knowledge shall be deemed complete upon Proof of Penetration only.

  1. Although “carnal knowledge” as used in the earlier part of the 1861 UK Act under the heading “Rape, Abduction, and Defilement of Women” must be understood as referring only to penile-vaginal intercourse, in this provision it includes the carnal knowledge necessary for the commission of the crime of sodomy.

  2. Greaves continued at p 938:

The indictment must charge that the offender contra naturae ordinem rem habuit veneream, et carnaliter cognovit. But it is said, that this alone would not be sufficient; and that, as the statute describes the offence by the term ‘buggery,’ the indictment should also charge peccatumque illud sodomiticum Anglice dictum buggery adtunc et ibidem nequiter, felonice, diabolice, ac contra naturam, commisit, ac perpetravit. (Citations omitted).

  1. An example of this form of indictment (translating the above Latin phrases into English) is found in The Queen v Allen (1849) 1 Den 364 at 364:

The first count charged that the said Henry Allen in and upon one John Wood feloniously did lay his hands, and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said John Wood, and him, the said John Wood, then and there feloniously, wickedly, and diabolically, and against the order of nature, did carnally know, and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said John Wood, did commit and perpetrate the detestable, abominable, and horrid crime of, &c. &c.

  1. These passages demonstrate that buggery, understood as referring to sodomy as distinct from bestiality, could be committed by a male upon a male or by a male upon a female (see also The King v Wiseman (1727) Fortescue 91 at 96). That said, the opinion of the judges in Wiseman as to whether the crime of sodomy could be committed by a male upon a female was not unanimous. The report records that “a few were of the opinion that this was not express buggery within [English] law”, although “a great majority were of the opinion that it was plain buggery” (at 92). What is clear, however, is that the law was principally directed to male homosexual conduct. Consent, even from an adult, was no defence to the crime of sodomy. The party on whom the act was performed was referred to as the “patient” or “pathic”, the act necessarily being performed by a male, referred to as the “agent”. Whether male or female, a consenting party was criminally liable, provided he or she was of “the age of discretion” (Wiseman at 92, 96; R v Jellyman (1838) 8 C & P 604; The Queen v Allen at 364-365; E Coke, The Third Part of the Institutes of the Laws of England (2008, William S. Hein & Co) at cap X pp 58-59; M Hale, Historia Placitorum Coronae, vol 1 (1800, E Rider) at pp 669-670; Lord Hailsham (ed), Halsbury’s Laws of England, vol IX (2nd ed, 1933, Butterworth & Co) at p 398; JF Stephen, A Digest of the Criminal Law (Crimes and Punishments) (2nd ed, 1883, Macmillan and Co) at p 169).

  2. It is critical, however, to appreciate the type of offender that a consenting female (necessarily as “patient”) could be in respect of the crime of sodomy. Under the common law, whilst there is only one crime, there may be more than one person criminally liable in respect of it. Principals in the first degree were those who have “actually and with their own hands committed the fact”. Principals in the second degree were those who were “present, aiding and abetting at the commission of the fact”. They were generally termed aiders and abettors, and sometimes accomplices (Russell, vol 1 (4th ed) at p 49). Where the crime of sodomy was committed by conduct of a male and female, only a male committed the crime, and the consenting female was guilty of aiding and abetting (JW Cecil Turner, Russell on Crimes, vol 1 (11th ed, 1958, Stevens & Sons) at pp 134-135, 140-141, citing R v Jellyman). In the case of sodomy between consenting adult males, because each was fully capable in law of committing the crime, notwithstanding that only one took the active part, both were taken to be equally guilty as principals in the first degree (Russell, vol 1 (11th ed) at pp 134-135, 140-141).

  3. This is consistent with what Coke says in his Institutes III at cap X p 59:

So if any be present, abetting and aiding any to do the act, though the offence be personall, and to be done by one only, as to commit rape, not only he that doth the act is a principall, but also they that be present, abetting, and aiding the misdoer, are principalls also…

  1. Thus, a female could not commit the crime of sodomy. It follows that she could not form the intent to commit such a crime and that she could not be guilty of attempt to commit sodomy or assault with intent to commit sodomy. Yet she could be guilty of the crime of bestiality (see Coke, Institutes III at cap X p 59), it would seem in the capacity of a principal in the first degree.

  2. It also follows that the Crown’s submission that in ss 79 and 80 of the Crimes Act 1900 and, relevantly to the present context, in ss 61 and 62 of the 1861 UK Act the word “whosoever” “plainly meant any person, given that it was accepted that the offence of buggery or bestiality could be committed by a woman and there were no textual indications to the contrary” is misconceived. The relevant analysis must be done by reference to each of the crimes of sodomy and bestiality.

  3. In support of its submission that a woman may commit the crime of sodomy, the Crown also relies upon a statement in R Watson and H Purnell, Criminal Law in New South Wales, vol 1 (1971, The Law Book Company Limited) at [340], where it is said that in the case of sodomy committed by a man upon a woman, consent was no defence and “the parties are equally guilty”, citing R v McDonald (1878) 1 SCR NS (NSW) 173. The statement relied on is of Sir James Martin CJ, who said (at 173-174) in relation to the offence of sodomy “the question of consent is wholly immaterial” such that “both parties, the party committing and the party consenting to the offence, are equally liable to punishment”. That statement is correct as a statement about a liability to be punished (see, for example, W Blackstone, Commentaries on the Laws of England, vol 4 (17th ed, 1830, Richard Taylor) at p 215: “agentes et consentientes pari poena plectantur”). However, it does not support the proposition that the crime of sodomy is or is also committed by a consenting female.

Commentary on s 62

  1. The offences of attempt to commit and assault with attempt to commit an “unnatural” crime in s 62 can only be committed if there is an intent to commit sodomy or bestiality. In relation to sodomy, each of those offences could only be committed by a male. An attempt requires some overt act forming part of a series of acts which, if not interrupted, would end in the commission of sodomy (R v Linneker [1906] 2 KB 99 at 103). In the language of Parke B in R v Eagleton (1855) Dears 515 at 538, “Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are”. It follows that an assault with intent to commit sodomy will not constitute an attempt to commit sodomy unless the act constituting the assault is sufficiently immediately connected with the commission of that offence (see R v Keogh (1878) 1 SCR NS 136 at 138 (per Hargrave J and Manning J); R v Robinson [1915] 2 KB 342 at 348). In relation to bestiality, it would seem that there could be an attempt to commit that offence by a woman (as to which, see the position in R v Edwards [1956] QWN 16 in relation to the offence of attempt to commit bestiality by a man).

  2. Focusing on the crime of sodomy and the offences of attempt to commit and assault with intent to commit sodomy, each describes conduct which can only be committed by a male and which assumes that there is or is to be at least one other participant in the offending conduct. Whilst that participant could be a female, sodomitical activity was overwhelmingly associated with male homosexual conduct.

  3. The indecent assault offence in s 62 is expressly limited to conduct upon a male. Male homosexual activities answered the description “indecent”. They also answered the description “unnatural” because they involved sexual activity between males. As has already been observed, the fact that this offence was subject to the same punishment as the other offences in s 62 is also consistent with it being concerned only with male homosexual conduct.

  4. Construing the scope of “indecent” as limited in this context to such conduct is also consistent with a reason for the inclusion of the indecent assault offence in s 62 being, as with a reason for the inclusion of the other offences in s 62, to criminalise male homosexual conduct that might precede or accompany male sodomitical activity in circumstances where there might be evidentiary difficulties in establishing the crime of sodomy, but not the same difficulties in establishing the commission of one or more related and lesser offences.

  5. That this was a reason for the inclusion of those lesser offences is confirmed by s 9 of the 1851 UK Act, which provided that a party indicted for a felony such as rape or buggery may be found guilty of an attempt to commit that felony. The mischief to which this section was directed was identified in its introductory recital:

And whereas Offenders often escape Conviction by reason that such Persons ought to have been charged with attempting to commit Offences, and not with the actual Commission thereof…

  1. To the same effect, in relation to the offence of assault with intent to commit sodomy in s 62, Greaves notes in the first volume of the fourth edition of Russell at p 939:

In cases where it is not probable that all of the circumstances necessary to constitute this offence will be proved, it may be advisable only to prefer an indictment for an assault with an intent to commit an unnatural crime.

  1. In addition, in circumstances where a jury was not satisfied that the accused was guilty of the felony or an attempt to commit it, provision was sometimes made for the jury for find the accused guilty of indecent assault. For example, in the United Kingdom and in respect of the offence of rape, the Criminal Law Amendment Act 1885, 48 & 49 Vict, c 69, a statute expressly enacted to “make further provision for the Protection of Women and Girls”, extended the application of s 9 of the 1851 UK Act so that on any indictment for rape, where the jury was satisfied, inter alia, that the defendant was guilty of an “indecent assault”, but not satisfied that the defendant was guilty of the felony charged or an attempt to commit the same, the jury could acquit the defendant of the felony and find him guilty of, inter alia, an indecent assault (s 9). An earlier example is provided in the terms of s 11 of the 1837 UK Act, which allowed the jury to return a guilty verdict on a charge of assault against the person where the felony charged included an act which constituted an assault, but the felony was not made out.

  2. It is also important to note that before the enactment of the 1861 UK Act, indecent assault was punishable as common assault or under s 29 of the 1851 UK Act. Section 29 (extracted at [42] above) referred only to indecent assaults without identifying the nature of the sexual activity capable of being “indecent”, whereas the 1861 UK Act sufficiently identified the nature of the activity expressly criminalised. First, it distinguished between indecent assault upon a male and upon a female, and other common assaults. Secondly, the crime of indecent assault on a female (s 52) was included in the part of that Act directed to protecting women and girls from sexual intercourse to which they did not (or could not) consent, and more generally against male sexual predation. Thirdly, the crime of indecent assault on a male was included in the part of the Act prohibiting and punishing buggery and other so-called “deviant” or “unnatural” sexual practices, principally male homosexual conduct. The creation of these crimes did not prevent indecent assaults arising out of other sexual conduct from continuing to be charged as common assaults under s 47 of the 1861 UK Act.

  3. Focusing on s 62, the offences involving conduct between persons in that provision other than indecent assault in terms concerned sexual conduct of a male which answered the description “unnatural” and principally involved male homosexual activity. The indecent assault offence was limited to conduct “upon any Male Person”, and for that reason would be engaged by the same kind of sexual conduct. That it was intended to apply to such conduct is consistent with the same punishment applying to that offence as applied to each of the other offences. Each of the lesser offences was included in s 62 to criminalise conduct by a male that might accompany sodomitical activity.

  4. In circumstances where the “indecent” conduct constituting the indecent assault offence in s 62 is expressly limited to conduct committed “upon any Male Person”, and where the other “unnatural” offences insofar as they apply to conduct between persons could only be committed by males, and overwhelmingly in the context of male homosexual activity, that offence was to be read as confined to indecent conduct committed by a male upon a male. That necessary limitation on the scope of “indecent” follows from the nature of the other offences in s 62, the fact that the conduct must be committed upon a male, the characterisation of that conduct as “unnatural”, the purpose of the provision being to capture conduct of the kind proscribed by s 61, and the fact that the indecent assault offence in s 62 is subject to a harsher punishment than that in s 52.

The decision in The King v Hare

  1. In October 1933, the appellant, Hare, was convicted under s 62 on three counts of indecent assault upon a male aged 12 years whom she induced “to have connection with her on three occasions”. Her argument on appeal, recorded in [1934] 1 KB 354 at 355, was:

The offence under s. 62 is restricted by the heading of the group of sections beginning with s. 61 to unnatural offences, or offences of a sodomitical character. The expression “any indecent assault” is ambiguous and should be interpreted in the light of the heading “unnatural offences.” If such an interpretation is right, the offence under s. 62 cannot be committed by a woman.

  1. The judgment of the Court (Lord Hewart CJ, Avory and Lawrence JJ) was delivered by Avory J, whose short reasons included (at 355-356):

There is no question that the nature of that which took place between [the woman and the 12 year old male] was indecent. The whole question is, as has been concisely put by counsel for the appellant, whether the offence under s. 62 is to be limited to an indecent assault of a sodomitical character. Some reliance was placed by the appellant on the heading of ss. 61 to 63 — namely, “Unnatural Offences.” Sect. 61 and the first part of s. 62 deal with unnatural offences — namely, bestiality or acts of a sodomitical character, but s. 62 proceeds: “Whosoever …. Shall be guilty …. Of any indecent assault upon any male person. ….” The question is whether there is any ground for limiting those words in the manner suggested. Headings of sections and marginal notes form no part of a statute. They are not voted on or passed by Parliament, but are inserted after the Bill has become law. Headnotes cannot control the plain meaning of the words of the enactment, though they may, in some cases, be looked at in the light of preambles if there is any ambiguity in the meaning of the sections on which they can throw light. There is no ambiguity in s. 62. Having regard to the fact that the word “Whosoever” in s. 61 admittedly includes a woman and that the first part of s. 62 admittedly includes a woman, there is no reason for saying that the phrase: “Whosoever …. shall be guilty …. of any indecent assault,” does not include a woman. Reference has been made to many other sections in the Act of 1861, in which the word “whosoever” is used. There is no doubt, in our opinion, that in s. 52 of the Act the word “Whosoever” includes a woman, and there is no reason for saying that a woman cannot be guilty of an indecent assault on another female.

  1. Having identified the question as being whether the indecent assault offence described in s 62 was limited to indecent assaults upon a male of a sodomitical character, the Court of Criminal Appeal focused on whether “Whosoever”, where used at the commencement of s 62 and in relation to all the offences within that section, included a woman. In circumstances where it appears the appellant had accepted without qualification that the offence described in s 61 and the other offences described in s 62 were capable of being committed by a woman, the Court reasoned that there “is no reason for saying” that “Whosoever” when applied to the indecent assault offences in s 62 “does not include a woman”. For that reason, it was said that there was no ambiguity in s 62 and no cause to have regard to the heading “Unnatural Offences”.

  2. This reasoning does not separately address the sodomy and bestiality crimes created by ss 61 and 62 and the extent to which each was capable of being committed by a female. That analysis, which appears above, shows in relation to the crime of sodomy that “Whosoever” appearing in s 61 does not include a female, and that in s 62 it could not include a female in relation to the attempt to commit sodomy and assault with intent to commit sodomy offences. It follows, contrary to the Court’s reasoning, that if the indecent assault upon a male offence in s 62 is construed consistently with the heading to the two sections and as addressing the same “unnatural” subject matter as the other offences in that section and s 61 insofar as they concern conduct committed on a person, there is good reason for saying that “Whosoever” does not include a female in relation to that indecent assault offence (cf at 356).

  3. Nevertheless, it is not necessary for this Court to determine the correctness or otherwise of the decision in The King v Hare because when s 61 was adopted as part of the law of New South Wales the language of that provision was altered by the inclusion of the words “of whatever age, with or without the consent of such person” as qualifying this reference to “any male”.

  4. The Court of Criminal Appeal’s decision was also the subject of a note in volume 50 of the Law Quarterly Review (1934) at pp 168-169. The writer (Dr DW Logan, a fellow of Trinity College, Cambridge who later became Principal of London University) observed at p 168 as to the construction held by the Court:

Though the words standing by themselves admit of this construction, yet, if they are studied in their context, some doubt must arise as to its correctness. Sections 61 and 62, apart from the clause in question, deal exclusively with unnatural offences the punishment for which, under section 62, is exactly the same as for the indecent assault mentioned in the clause, thereby raising a strong presumption that the clause deals with assaults committed by males. Moreover, sections 61-63 are introduced by the sub-heading ‘Unnatural Offences,’ and though section 63 does not deal entirely with this subject, it clearly is applicable only to males. The legal force of these sub-headings is not settled but there is authority that the statement of Avory J. that ‘the heading of a group of sections forms no part of the enactment’ is not always true… [and that even if] not part of the statute, these headings may legitimately be referred to in cases of ambiguity (Union Steamship Co. v Melbourne Harbour Commissioners (1884) 9 App. Cas 365 at p. 369).

  1. Whatever may have been the position under English law at that time (see, in particular, R v Montila [2004] 1 WLR 3141 esp. at [32]-[33] per Lord Hope of Craighead, giving the opinion of the Appeal Committee of the House of Lords), the position under New South Wales law today is clear and expressly permits a court to have regard to headings and marginal notes (see above at [20]-[22]).

  2. There is one further point that should be addressed. In the Court’s concluding reasons in The King v Hare, it is said that there is “no doubt” that in s 52 of the 1861 UK Act (which is extracted below) the word “Whosoever” also includes a woman, there being “no reason for saying that a woman cannot be guilty of an indecent assault on another female” (at 356).

  3. The correctness of that observation is in my view doubtful, including for reason that it proceeds upon a wrong construction of s 62. The proper construction of s 52 would also require attention to its immediate context. The offences in the 1861 UK Act under the heading “Rape, Abduction, and Defilement of Women” included rape (s 48), procuring the defilement of a woman or girl under the age of 21 to have “illicit carnal Connexion with any Man” (s 49), and carnally knowing a girl under 10 years of age or between the ages of 10 and 12 (ss 50-51). The description of each of these offences commenced with the word “Whosoever”. Following the two carnal knowledge offences in ss 50 and 51, s 52 provided:

52 Attempt to commit the last Two Offences

Whosoever shall be convicted of any indecent Assault upon any Female, or of any Attempt to have carnal Knowledge of any Girl under Twelve Years of Age, shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.

  1. The offences described in ss 48-51—involving rape and carnal knowledge—and under the heading “Rape, Abduction, and Defilement of Women” could only be committed by a male. In that immediate context, s 52 makes it an offence to commit any indecent assault upon a female (of any age), or to attempt to have carnal knowledge of any girl under 12 years of age. The second of those offences also could only be committed by a male.

  2. The indecent assault offence was introduced in the circumstances recited at [42] to [46] above. It describes an indecent assault upon “any Female” and is in a part of the Act directed to the protection of women and girls from male sexual predation. In its terms, s 52 is addressed to that mischief; and there is no suggestion in any of the other provisions in this part of the Act of a risk of female sexual predation against which women and girls required protection.

  3. There is also an obvious reason for an inclusion of the indecent assault provision in this part of the Act. As detailed above, it is an offence which might be charged and relied on in circumstances where there are evidentiary difficulties with establishing rape or illicit carnal knowledge or any attempt to commit those crimes, each of which is only able to be committed by a male. Whilst the inclusion of the indecent assault offence allowed aspects of the charged conduct to be separately criminalised, the language of s 52 does not purport to change the overall character of the conduct or the gender of the persons against whose conduct the legislation was intending to provide protection.

The New South Wales legislation

Criminal Law Amendment Act 1883

“Unnatural” Offences

  1. An amended version of s 62 of the 1861 UK Act was first enacted in New South Wales as s 60 of the 1883 NSW Act. That section became ss 80 and 81 of the Crimes Act 1900.

  2. As enacted in the 1883 NSW Act, ss 59 and 60 provided:

Unnatural Offences

59 Sodomy and bestiality

Whosoever commits the abominable crime of buggery either with mankind or with any animal shall be liable to penal servitude for life or any term not less than five years.

60 Indecent attempt or assault on a male person

Whosoever attempts to commit the said abominable crime or assaults any person with intent to commit the same shall be liable to penal servitude for five years. And whosoever commits an indecent assault upon a male person of whatever age with or without the consent of such person shall be liable to penal servitude for the like term. (Emphasis added.)

  1. While these provisions follow closely the language of ss 61 and 62 of the 1861 UK Act, two relevant changes were made. First, s 60 of the 1883 NSW Act is divided into two sentences, with the attempt to commit and assault with intent to commit offences described in the first sentence, and the indecent assault upon a male offence described in the following sentence. Secondly, and much more significantly, the words appearing in italics have been added to the description of the indecent assault offence. Those words first appear in the 1871 draft of the relevant bill (Law Reform Commission, “First Report of the Commissioners of the Law Reform Commission, together with a Draft Bill to Consolidate and Amend in certain respects the Criminal Law” (1871) 19.1 Journal of the Legislative Council of NSW 361). There is no commentary in that report or in the subsequent Parliamentary debates which seeks to explain why they were added. The significance of the words “with or without the consent of such person” was squarely addressed by the Court of Criminal Appeal in R v B and L (1954) 71 WN (NSW) 138.

  2. The debates in the New South Wales Legislative Assembly and Legislative Council in respect of the Criminal Law Amendment Bill 1883, with one exception, do not provide any comment which is of assistance in the resolution of the issue before this Court. In his second reading speech on 1 November 1882 in the Legislative Council, Mr Alexander Campbell said in relation to what became s 59 of the 1883 NSW Act that the punishment for this provision, which deals with unnatural offences, had been reduced from ten to five years, a similar amendment having also been made in the next clause in relation to “indecent attempts or assaults” (New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 November 1882 at 1073). That care was taken to ensure the punishment for all the offences dealt with by s 60 remained the same for each offence strongly suggests that the characterisation of the subject matter of the offences was intended to be the same or sufficiently similar to justify the same punishment.

Other sexual offences

  1. Just as the 1861 UK Act dealt with separate offences under the heading “Rape, Abduction, and Defilement of Women”, the 1883 NSW Act enacted similar offences under the headings “Rape and similar Crimes” and “Criminal Assaults by Teachers &c”. The significance of these provisions to the question of construction in this appeal includes the use of “whosoever” in the descriptions of many of those offences, and the inclusion by s 44 of the offence of “indecent assault upon any Female” in similar terms to s 52 of the 1861 UK Act.

  2. In the 1883 NSW Act, under the heading “Rape and similar Crimes”, the offences described were rape and attempt to commit rape (s 39), procuring carnal knowledge by any false pretence or other fraudulent means (s 40), and carnally knowing a girl under 10 years of age or between 10 and 14 years of age (ss 41-42). The descriptions of each of those offences also commenced with the word “Whosoever”. Again, it is not controversial that each of the offences involving rape or carnal knowledge could only be committed by a male.

  3. The following offences were then included in the 1883 NSW Act under the heading “Criminal Assaults by Teachers &c”:

Criminal Assaults by Teachers &c

43 Carnal knowledge of girl by teacher &c

Whosoever being a schoolmaster or other teacher unlawfully and carnally knows any girl of or above the age of ten years and under the age of sixteen years being his pupil and whosoever being a father carnally knows any girl between such ages being his daughter shall be liable to penal servitude for fourteen years And whosoever being such schoolmaster or teacher or father assaults any such girl with intent to have such knowledge or by any means attempts to have such knowledge shall be liable to penal servitude for seven years And the consent of the pupil or daughter shall be no defence to any charge under this section Provided that nothing in this clause contained shall prevent such schoolmaster teacher or parent from being prosecuted under either section forty-one or forty-two of this Act.

44 Indecent assault on females

Whosoever indecently assaults any girl under the age of fourteen years whether with or without her consent shall be liable to penal servitude for five years And whosoever indecently assaults any female of or above the age of fourteen years shall be liable to imprisonment for a term not exceeding three years.

  1. Section 43 is significant. It was directed only to the conduct of male schoolmasters and teachers, and of fathers. There was no equivalent protection afforded to young males from the conduct of mothers and female schoolmasters and teachers. In JAD v R [2012] NSWCCA 73, Simpson J observed of this provision:

No recognition appears to have been given to the possibility of heterosexual intercourse between an adult female, or a female in a position of authority, and a young male; or, if such a possibility were contemplated, it was not perceived as calling for criminal penalty.

  1. Notwithstanding the absence of such a provision for young males so as to address expressly the risk Simpson J identified, the Crown contends that s 60 of the 1883 NSW Act was to be construed as conferring such protection because it applied equally to the conduct of a female upon a young male, although the section refers to an indecent assault upon a “male person of whatever age with or without the consent of such person”.

  2. Section 43 was re-enacted as s 73 of the Crimes Act 1900. It was subsequently amended to add the relationships of step-father and step-daughter to the specified relationships (Crimes (Girls’ Protection) Act 1910 (NSW), s 3).

Joinder of charges and alternative verdicts

  1. Under the common law, felonies and misdemeanours may be joined in the same indictment, provided that those charges are founded on the same facts or form part of a series of offences of the same or a similar character (Connelly v Director of Public Prosecutions [1964] AC 1254 at 1359-1360 (per Lord Devlin)).

  2. Consistently with the indecent assault charges in ss 44 and 60 of the 1883 NSW Act being construed by their language and context as limited in the case of s 44 to sexual conduct by a male upon a female, and in the case of s 60 sexual conduct of a male upon a male, s 319 of the 1883 NSW Act provided:

319 Indecent assaults

… in any indictment for rape or an unnatural crime or an attempt to commit the same a count may be added for an indecent assault.

  1. That section was re-enacted as s 379 of the Crimes Act 1900, which was to the same effect. If the legislature had not intended that s 60 of the 1883 NSW Act and s 81 of the Crimes Act 1900 be construed by reference to their immediate context and the heading “unnatural” offences, it would not have provided for that offence to be joined on an indictment for an “unnatural” crime or an attempt to commit such a crime.

Crimes Act 1900(NSW) and amendments to that Act

  1. As enacted, the offences under the heading “Rape and similar offences” included the following, with the descriptions after each section number appearing as marginal notes:

Rape and similar offences

63 Rape

Whosoever commits the crime of rape shall be liable to suffer death.

The consent of the woman, if obtained by threats or terror, shall be no defence to a charge under this section.

…

65 Attempt, &c, to commit rape

Whosoever attempts to commit, or assaults any female with intent to commit, the crime of rape, shall be liable to penal servitude for fourteen years.

…

67 Carnally knowing girl under 10

Whosoever carnally knows any girl under the age of ten years shall be liable to suffer death.

…

71 Carnally knowing girl between 10 and 14

Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of fourteen years, shall be liable to penal servitude for ten years.

72 Attempting, or assaulting with intent, to carnally know girl between 10 and 14

Whosoever attempts unlawfully and carnally to know any girl above the age of ten years, and under the age of fourteen years, or assaults any such girl with intent carnally to know her, shall be liable to penal servitude for five years.

73 Teacher or father carnally knowing girl between 10 and 16

Whosoever, being a schoolmaster, or other teacher, or a father, unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, being his pupil or daughter, shall be liable to penal servitude for fourteen years.

74 Attempt, &c, by teacher or father

Whosoever, being a schoolmaster, or teacher, or father, by any means, attempts unlawfully and carnally to know any girl of or above the age of ten years, and under the age of sixteen years, being his pupil or daughter, or assaults any such girl with intent carnally to know her, shall be liable to penal servitude for seven years.

75 Alternative charge

Nothing in the two last preceding sections shall prevent such schoolmaster, teacher, or father from being prosecuted under section seventy-one and seventy-two of this Act.

76 Consent no defence

The consent of the girl, pupil, or daughter shall be no defence to any charge under the nine last preceding sections.

77 Indecent assault on girl under 14

Whosoever indecently assaults any girl under the age of fourteen years, whether with or without her consent, shall be liable to penal servitude for five years.

78 Indecent assault on female of or above 14

Whosoever indecently assaults any female of or above the age of fourteen years shall be liable to imprisonment for three years.

  1. There then followed ss 79, 80 and 81:

Unnatural offences

79 Buggery and bestiality

Whosoever commits the abominable crime of buggery, or bestiality, with mankind, or with any animal, shall be liable to penal servitude for life or any term not less than five years.

80 Attempt, &c, to commit buggery

Whosoever attempts to commit the said abominable crime, or assaults any person with intent to commit the same, shall be liable to penal servitude for five years.

81 Indecent assault on male

Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.

  1. By s 2 of the Crimes (Girls’ Protection) Act 1910 (NSW), the effective age of consent of a girl was increased from 14 years to 16 years. In addition, the prohibited age of sexual intercourse with a female by a teacher or father was increased to 17 years (s 2). As Simpson J observes in JAD v R at [98], at this time there was no equivalent age of consent prescribed for young males. That remained the case until the passing of the Crimes (Amendment) Act 1984 (NSW), several years after the alleged conduct in this case.

  2. The Crimes (Amendment) Act 1924 (NSW) (the 1924 Amending Act) relevantly omitted ss 71, 72, 73, 74, 75, 76, 77 and 78 of the principal Act, though the re-enacted versions of ss 71-75 were not materially different from the provisions they replaced. A new s 76 replaced ss 77 and 78, which contained the offences of indecent assault on a girl under 16 years and indecent assault on a female of or above 16 years. The new s 76 was based on but modifies s 52 of the 1861 UK Act, the construction of which was the subject of comment in The King v Hare. That comment is dealt with above at [79]-[83].

  3. Sections 76 and 77 as inserted by the 1924 Amending Act provided:

76 Indecent assault

Whosoever assaults any female and, at the time of, or immediately before or after such assault, commits any act of indecency upon or in the presence of such female, shall be liable to imprisonment for three years, or, if the female be under the age of sixteen years, to penal servitude for five years.

77 Consent no defence in certain cases

The consent of the woman, girl, pupil, daughter, or step-daughter shall be no defence to any charge under sections sixty-seven, sixty-eight, seventy-one, seventy-two, 72A, seventy-three, or seventy-four of this Act, or, if the female be under the age of sixteen years, to any charge under section seventy-six of this Act:

Provided that it shall be a sufficient defence to any charge which renders a person liable to be found guilty of an offence under sections seventy-one or seventy-two of this Act, or if the female be under the age of sixteen years to any charge under section seventy-six of this Act, if it be made to appear to the court or jury before whom the charge is brought—

(a) that the girl was over the age of fourteen years at the time of the alleged offence; and

(b) that she consented to the commission of the offence; and

(c) either—

(i) that she was at the said time a common prostitute or an associate of common prostitutes; or

(ii) that the person so charged had at the time said time reasonable cause to believe, and did in fact believe, that she was of or above the age of sixteen years.

  1. The Crown contends that s 76 should be construed as criminalising assaults by a female on a female. One of the difficulties for this construction is that s 77 makes it a defence to a charge of an offence under s 76 if it is established that the girl was over the age of 14 at the time of the alleged offence, that she had consented to the commission of the offence, and that either she was at the time a common prostitute or associate of common prostitutes, or that at the time the person charged had reasonable cause to believe and believed that she was above the age of 16 years. Under the common law, the term “common prostitute” referred to a woman who “carries on the trade or business of prostitution, and submits herself to men for the purpose of gain” or “a woman who indiscriminately consorts with men for hire” (see Skinner v The King (1913) 16 CLR 336 at 341, 343-344; [1913] HCA 32). The second limb of (c) of the proviso in s 77 could only provide a defence to a male perpetrator and is consistent with ss 76 and 77 being read as directed to protecting young females against sexual offences committed by males (see also R v Valence (1959) 59 SR (NSW) 138 at 142 (per Owen J)).

  2. By s 3 of the Crimes (Amendment) Act 1955 (NSW), ss 81A and 81B were inserted into the Crimes Act 1900:

81A Outrages on decency

Whosoever, being a male person, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of indecency with another male person shall be liable to imprisonment for two years.

81B Soliciting, &c, male person in a public place

(1) Whosoever, being a male person, in any public place—

(a) solicits or incites; or

(b) attempts to solicit or incite,

in any manner whatsoever any male person to commit or to be a party to the commission of any offence under section seventy-nine, eighty-one or 81A of this Act shall be liable to imprisonment for twelve months.

(2) A person shall not be convicted of an offence under this section upon the testimony of one witness only, unless such testimony is corroborated by some other material evidence implicating the accused in the commission of the offence.

(3) This section does not exempt any person from any proceeding for an offence which is punishable at common law, but so that no person shall be punished twice for the same offence.

(4) An offence under this section shall not be prosecuted and punished under the Crimes Prevention Act, 1916.

  1. Each of ss 81A and 81B makes plain that it criminalises only conduct committed by a male. Section 81B makes it an offence for a male to solicit or incite any male person to commit or to be party to the commission of an offence under ss 79, 81 or 81A. In doing so, it proceeds on the basis that these sections, including s 81, criminalise male homosexual conduct. However, it does not in terms do so on the basis that the operation of s 81 is limited only to such conduct.

  2. In the second reading speech in the Legislative Assembly, the Attorney General, Mr Sheahan, drew attention to s 81B, which required that evidence as to the commission of that offence must be “corroborated by some other material evidence implicating the accused” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3229-3230). He also noted that no requirement regarding corroboration had been inserted in the proposed new s 81A, commenting (at 3230):

The offence to be created by this section is a “substantive” one, that is, some act of indecency must have been committed or attempted before a charge will lie. The provision is similar to sections 79 and 81 of the Crimes Act which deal with the offences of sodomy and indecent assault upon a male. There is no statutory provision regarding corroboration in respect of either of these offences, but the general law… applies.

  1. As to the reason for the proposed new section, he said (at 3230):

The Government has acted because it considers that the homosexual wave that unfortunately has struck this country—though not to the extent of continental countries—must be eradicated.

  1. To the extent that this material indicates that the Parliament in 1955 was legislating with respect to the soliciting of conduct under s 81 on the basis that that section only criminalised male homosexual conduct, the material could have some relevance in the construction of that section. However, I have not had regard to this material in determining the meaning of s 81.

The repeal of ss 81, 81A and 81B and the amendments to ss 79 and 80

  1. Finally, and after the alleged commission of the charged offences, ss 81, 81A and 81B were repealed by Crimes (Amendment) Act 1984 (NSW), and ss 79 and 80 amended to provide:

79 Bestiality

Any person who commits an act of bestiality with any animal shall be liable to penal servitude for fourteen years.

80 Attempt to commit bestiality

Any person who attempts to commit an act of bestiality with any animal shall be liable to penal servitude for five years.

Disposition of ground 1

Prior decisions referring to s 81

  1. The Crown refers to three decisions in this State in which there has been reference to the decision in The King v Hare as deciding that the offence under s 81 may be committed by a female. Those decisions are R v B and L, R v Plummer (Court of Criminal Appeal (NSW), 12 July 1989, unrep), and R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198.

  2. In none of those cases was there an issue as to whether s 81 was capable of criminalising the conduct of a female. For that reason, there was no cause in any of those cases to consider the correctness of The King v Hare or whether the reasoning in that case applied equally to the different language of s 81. Nor do any of those decisions give any consideration to either of those questions.

  3. It follows that, apart from R v B and L, none of these decisions provides any assistance in deciding the question before this Court as to whether s 81 criminalised indecent assaults by a female upon a male.

R v B and L

  1. The relevance of the Court of Criminal Appeal’s decision in R v B and L is its significance for the construction of the expression or term “indecent assault” in s 81 and whether it is directed only to male sexual conduct upon a male, including sodomy.

  2. As to the construction of that expression and the limitation immediately following it (“upon a male person of whatever age, with or without the consent of such person”), the Chief Justice, Sir Kenneth Street, said at 138:

This section creates an offence and affixes a penalty, and in the course of defining the nature of the criminal act which attracts the penalty it has used the word “assault” accompanied by the word “indecent.” If the matter were left there and the reference to consent or non-consent were added as a matter of defence open or not to the accused, then different considerations might apply, but, in defining the offence itself the legislature has said that an assault—whatever that may mean—with the consent of the other party is still an indecent assault, just as much as it is if there is no consent on the part of the person to whom the assault is offered.

I can see no reason for reading down the language which the legislature has used. It is the indecent act which is done, whether done with consent or done without consent, that constitutes the offence, and in the result, in considering whether the offence has been established, it is irrelevant to consider whether or not consent has been given. An indecent act following upon mutual agreement is obviously intended to be included in the section and I think that that makes it clear that the word “assault” in s. 81 does not carry with it the usual implication of some threat or hostility or menace. If the association between the two males is completely devoid of any of those elements, and is the result of mutual agreement, it is still, on the true construction of the language used by the legislature, an offence. I think it is an error to regard the section as dealing primarily with an assault and then allowing a defence to be raised of consent, which would be a defence in many other cases where the word “assault” is intended to be used in its ordinary meaning. (Emphasis added.)

  1. Owen J agreed with the Chief Justice’s reasons, observing (at 139) that s 81 “provides that notwithstanding the fact that both parties agree on the doing of the act there still may be an assault”.

  2. Herron J, having said that he was not assisted by reference to some of the English decisions on the construction and application of ss 52 and 62 of the 1861 UK Act because of the difference between the wording of the English sections and those of the Crimes Act 1900, continued at 140:

In New South Wales, s. 81 occurs in a separate part of the Crimes Act dealing with unnatural offences. There are three sections in this Part, ss. 79, 80 and 81, and the words of s. 81, in my opinion, do not presuppose that there should be an assault according to the ordinary terminology of that word. I say this—and I entirely agree with the remarks of the other members of the Bench in this respect—because of the presence of the words in the section itself, “with or without the consent of such persons.” I think that alters the intendment of the section, and that it was to provide against the mischief of assaults committed with male persons, whether they consent or not. (Emphasis added.)

  1. Herron J then stated, somewhat quizzically, that it was “indeed interesting to notice that this offence under s. 81 may be committed by a woman”, citing The King v Hare.

  2. There is no reference in any of these judgments to the additional words in s 81 “of whatever age”. However, consistently with their Honours’ reasoning, when characterising the conduct as indecent or not it is also irrelevant to consider the age of the male upon whom the act constituting the alleged indecent assault has been committed.

Disposition

  1. As these reasons record at the outset, the question of construction is as to the scope of the conduct capable of constituting the offence of “indecent assault” upon a male. The word “Whosoever” in s 81 includes every person, male or female, capable of committing the offence described by that section.

  2. An assault ordinarily describes some physical act, not necessarily requiring touching, which creates an element of menace or threat or hostility on the part of the actor towards the other (R v B and L at 138 (per Street CJ), 139 (Owen J), 139 (Herron J); Russell, vol 1 (11th ed) at pp 724-725). If the physical act involves touching or other impact, there is a battery. As Greaves observed, “in most cases ‘an indecent assault’ will include a battery” (p 32 of his 1851 commentary).

  3. However, the criminal act proscribed by s 81, although described as an “indecent assault” upon a male, includes conduct which is indecent notwithstanding that the participants mutually consent to the doing of the relevant act or acts, and irrespective of whether they are adults and able freely to give such consent.

  4. Thus, unlike sexual conduct between a male and a female, which may in 1978 have involved an “indecent assault” upon a female under s 76 depending on her age and whether she is consenting, the “indecent” activity to which s 81 is directed must be capable of being so characterised irrespective of whether or not consent has been given and irrespective of the age of the male upon whom the act is committed. In other words, s 81 is directed to activity which of its nature, and without regard to the age of the participants and whether they were both consenting, is “indecent”; whereas s 76 is directed to activity which is not of its nature necessarily indecent, but may constitute an indecent assault by reason of the age of the participants and whether or not there is consent.

  5. The only sexual conduct capable of constituting an assault upon a male which of its nature alone was necessarily regarded as “indecent” at the time s 81 was enacted was male homosexual conduct. Accordingly, the additional words in s 81 make plain that it is concerned with the “unnatural”, sodomitical and other male homosexual conduct proscribed in express terms by ss 79 and 80.

  6. As Kirby J observed in Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 at [99], in respect of provisions which included s 81 of the Crimes Act 1900:

It was one of those provisions dating back to the nineteenth century, which were directed against so-called “unnatural [sexual] offences” by males with males. It was not, as such, directed at offences against young persons. It was targeted at homosexual conduct. Consent was irrelevant. Age was irrelevant…

  1. Relying upon a statement of Owen J, with whom Street CJ and Hardie J agreed, in R v Valence at 140, the Crown submits that the inclusion of the words “with or without consent” in s 81 has the consequence the word “assault” in that provision encompasses “an act done to the ‘assaulted’ person with his consent which would have amounted to an ‘assault’ in the ordinary meaning of the word” if done without consent. Whilst that may be a consequence of the decision in R v B and L, it does not capture the essence of that decision, which held that the legislature did not use the word “assault” as having its usual meaning. Rather, the focus was on the nature of the indecent act without regard to whether or not there was mutual agreement between the parties to perform it (at 139 (Street CJ); at 140 (Herron J)).

  2. That the “indecent conduct” to which s 81 was directed extended only to sexual conduct between males was wholly consistent with the immediate context of that section “in a separate part of the Crimes Act dealing with unnatural offences”, as Herron J recorded at 140. His Honour then expressed the conclusion extracted at [115] above. In doing so, he identifies the mischief to which the three sections were directed as the criminalisation and punishment of “unnatural offences”, s 81 in particular addressing “assaults committed with male persons”.

  3. The Crown makes two submissions in relation to the heading and marginal notes to ss 79 to 81. First, it says that the legislature may well have considered an indecent assault by a woman upon a male victim to be “unnatural” so that the heading may provide no assistance as to the mischief to which the provisions were directed. That submission is untenable, especially when regard is had to the language of ss 79 and 80, which address conduct of quite a different nature.

  4. Secondly, the Crown submits that the words of s 81 are otherwise “clear and unambiguous”, with the result that the heading must give way and full effect must be given to the language of the section. The arguments made in support of this submission focus on the use of the word “Whosoever”, which is said to be gender neutral. That is not controversial, and has the consequence that “Whosoever” includes every person capable of committing the relevant crime, whether male or female. Accordingly, the use of the word “Whosoever” in s 81 gives no indication as to whether the crime described is capable of being committed by a male or female. That depends upon the nature of the crime. It is suggested that the legislature could have specified “whoever, being a male person” if it intended that s 81 be limited to a male person. Whilst that is correct, the legislature similarly did not so when dealing with the crimes of rape, attempt to rape and illicit carnal knowledge as originally enacted in ss 63, 65, 67, 68 and 71, each of which could only have been committed by a male.

  5. The Crown also submits that if the word “Whosoever” in s 81 “meant only men, this would have the consequence that the word had a different meaning in s 81 to the meaning it had in ss 79 and 80”. It is then said that “[a]ttributing different meanings to the word ‘Whosoever’ in this context would be a surprising and unlikely outcome, and one that should not be taken to have been Parliament’s intention”. This argument ignores the meaning to be given to “whosoever”, which the Crown concedes earlier in its written submissions describes any person, male or female, capable of committing the criminalised conduct.

  6. As the earlier analysis in these reasons shows, the crimes of bestiality and sodomy in s 79 of the Crimes Act 1900 could be committed by a male in the case of sodomy and by a male or female in the case of bestiality. In s 80, the crime of attempt to commit bestiality might by committed by a female. The remaining crimes in s 80 could not be committed by a female because each required as an element an intent to commit sodomy. There remains s 81, which is not directed to the crime of bestiality, and must be understood as concerned with conduct related to the crime of sodomy when committed by a male upon a male—in other words, male homosexual conduct.

  7. A consideration of the legislative history of ss 79 to 81, both in New South Wales and in England, does not provide any basis for not giving full effect to the words added in s 81 and to the immediate legislative context of s 81, including the heading, as confirming the mischief to which the offences in ss 79, 80 and 81 were directed. Nor does the English Court of Criminal Appeal’s decision in The King v Hare provide any reasoned basis for upholding the primary judge’s conclusion, especially in the face of the additional language in s 81 of the Crimes Act 1900.

Conclusion

  1. For these reasons, the applicant’s demurrer should have been upheld. The following orders should be made:

  1. Grant leave to the applicant Ms Lam under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from the orders made by Girdham SC DCJ on 18 July 2023.

  2. Allow the applicant’s appeal filed on 20 July 2023 and set aside the orders of Girdham SC DCJ made on 18 July 2023:

  1. Refusing to uphold the applicant’s demurrer;

  2. Refusing to quash the indictment dated 1 June 2023; and

  3. Refusing to order a permanent stay of the proceedings.

  1. Order that the applicant’s demurrer dated 12 July 2023 be upheld on the basis that the accused is a female and s 81 of the Crimes Act 1900 (NSW) was applicable only to conduct constituting an “indecent assault” committed by a male upon a male.

  2. Quash the indictment dated 1 June 2023.

  1. GARLING J: I agree with the orders proposed by Meagher JA.

  2. My reasoning to that agreement takes a different path from Meagher JA’s scholarly and comprehensive review of the history of the legislative provisions in question. I can state my approach quite briefly.

  3. In the text of s 81 of the Crimes Act 1900 (“the Act”) prior to its repeal, and in the context of the whole Act, there are a number of indicators which point to the proper interpretation of that section as being one that restricts its application to principal offenders who are male.

  4. My analysis is undertaken in the context of the factual circumstances of this matter. That is that the applicant, an adult female, is said to have engaged with juvenile males in various sexual acts and conduct of the kind described by Meagher JA at [12]. None of these acts included anal intercourse or anal penetration. And, as is clear, no animal was involved in any part of the alleged conduct.

  5. The first indicator is that s 81 is located in Division 10 of Part 3 of the Act under the heading “Unnatural Offences”. That heading is a part of the Act: see s 35(1) of the Interpretation Act 1987.

  6. The two principal offences contained in Division 10 are bestiality and buggery, both of which fall readily within the words of the heading. In particular, the offence of buggery, insofar as it involved anal penetration of a male, was one which only recognized conduct by one male upon the other.

  7. These offences each carry a maximum penalty of fourteen years imprisonment.

  8. Within Division 10, there are three lesser offences which each carry maximum penalties of five years imprisonment. Two of those lesser offences describe conduct, which is preparatory to, or else undertaken with an intention to commit, either of the two principal offences. One of these lesser offences is an attempt to commit the principal offence and the other being an assault with intent to commit the principal offence.

  9. The offence in s 81 is one of indecent assault on a male person and is by reference to the maximum penalty to be seen as of the same level of criminality as the two lesser offences just referred to.

  10. There is no contextual reason to regard it as anything other than conduct which is conformable with the two principal offences and is conduct of a kind which would fall within the heading Unnatural Offences. Sexual conduct by a female upon a male of the kind alleged does not readily fall within the description of “Unnatural offences”.

  11. The second indicator is the two other sections in Division 10, namely s 81A and s 81B, both of which were introduced in 1955 and describe offences punishable by maximum imprisonment terms of 2 years and 1 year respectively. Both of these offences can only be committed by a male person upon a male person. In particular, the offence under s 81B refers specifically to the solicitation or incitement to commit either of the two principal offences in s 79, the offence under s 81 of indecent assault and the offence under s 81A. There is no logical contextual reason for this offence to be restricted to males, if the offence under s 81 can be committed by a female. This suggests that an indecent assault under s 81 can only be committed by a male.

  12. The third indicator comes from the text of s 81 and the features of the offence which it creates. The offence is one of indecent assault upon a male person. Such indecent assault as is referred to is unique because it does not “… carry with it the usual implication of some threat or hostility or menace.”: see R v B and L (1954) 71 WN (NSW) 138.

  13. Other features support that unique quality of the offence. The offence can occur even if the male victim has freely consented to the conduct involved. The male victim of the offence can be of any age – whether a juvenile or an adult.

  14. Unlike s 81B, which refers only to conduct in a public place, the offence under s 81 can occur if the entirety of the conduct occurs in private where it cannot be witnessed by anyone other than the two consenting individuals concerned.

  15. Consistency in the application of this section according to its terms has the consequence, if it applies to a female perpetrator, of potentially criminalising all consensual sexual conduct engaged in by a female upon a male in private, including conduct which does not involve any threat, hostility, menace or any type of battery. Such a consequence would mean that the interpretation now contended for by the Crown would be absurd.

  16. However, if s 81 is restricted to crimes committed in a male homosexual context, then no such absurdity arises because the indecency relates to the unnatural nature of the conduct engaged in, being homosexual male conduct.

  17. The fourth indication comes from the fact that the term “whosoever”, which commences each of ss 79-81 of the Crimes Act, is used to describe a person who commits either of the offences of buggery or bestiality. As bestiality could be committed by either a male or a female as a principal offender, whereas buggery could only be committed by a male, the term is being used to encompass any principal offender of either offence. The fact that it is a gender‑neutral term does not cast any interpretive light on who may commit an offence against s 81. Accordingly, the term takes its meaning from the offence in question, rather than defining whether a female can commit the relevant offence.

  18. The conclusion which I have reached (which is the same conclusion expressed by my colleagues), namely that s 81 does not extend to the applicant with respect to the conduct in which she is alleged to have engaged, is consistent with and supported by three other matters.

  19. The first is the obiter comments of Kirby J, in Crampton v R (2000) 206 CLR 161 at [99], where his Honour, dealing with s 81A, said:

“The preceding sections of the Act also suggest that s 81A was not concerned with the conduct of one male person in relation to another who is wholly innocent and merely observing. The context therefore lends weight to the appellant's interpretation that the mischief which the section was meant to address was male sexual conduct performed in concert with another male.”

  1. The second is the obiter remarks of Simpson J (as her Honour was) in JAD v R [2012] NSWCCA 73 at [97] – [98], where Her Honour said:

“97   … . That suggests that, even in 1883, the Legislature perceived a need to afford protection from sexual predation to young females, and that that protection ought to extend, where a specified relationship of power or authority existed, beyond the age at which protection generally was given.

98   It is relevant here to note that there was no equivalent protection afforded to young males. That was because any form of homosexual intercourse was unlawful, initially under the English common law, inherited by NSW on settlement: see Blackstone, Commentaries on the Laws of England, 17th ed, 1830, Vol 4. (No recognition appears to have been given to the possibility of heterosexual intercourse between an adult female, or a female in a position of authority, and a young male; or, if such a possibility were contemplated, it was not perceived as calling for criminal penalty.) There was, therefore, no call to prescribe an age of consent for young males. That remained the case until 1984, when the Crimes (Amendment) Act of that year (‘the 1984 Act’) was passed by the NSW Parliament.”  (emphasis added)

  1. The third matter is the purpose of the introduction of the Crimes (Amendment) Act 1984 (“the 1984 Act”) which repealed each of the offences in Division 10 including s 81, except for the offence of bestiality or attempt to commit bestiality.

  2. The mischief to which the 1984 Act was addressed was, according to the Second Reading Speech delivered by the then Premier, the Honourable Neville Wran QC, the fact that homosexual conduct was a crime. At p574 of the Hansard of 10 May 1984, he said:

“So, put simply, the bill is a small step towards homosexual law reform. Its objectives are to decriminalize sexual activity between consenting males of or over the age of 18 years, and to prohibit sexual intercourse or other homosexual acts by a male with a male who is under 18 years of age. What is involved is that the offences of buggery or attempted buggery are abolished and those sections of the Crimes Act dealing with indecent assault on a male, and so on, will be repealed.”

  1. The Leader of the Opposition, the Honourable Nicholas Greiner, said at p698 of the Hansard of 15 May 1984:

“The proscription on homosexual acts between consenting adults in private is, in my view, a bad law …”

  1. The Attorney-General, the Honourable Paul Landa, said at p702 of the Hansard of 15 May 1984, this:

“Honourable members are here today to decide whether homosexuality is to remain a crime … We are here to decide whether homosexuals should, by virtue of the fact that they are homosexuals, be arrested, charged, brought before the courts, convicted and imprisoned.”

  1. The stated purpose of the Crimes (Amendment) Act was reflected in the remarks of Simpson J in JAD at [110] where Her Honour noted that “The effect of this amendment was to decriminalise homosexuality …”.

  2. If, as the Crown contends, s 81 was not limited to male homosexual conduct, then the terms of the 1984 Act went further than its purpose of decriminalising homosexuality and the Premier, Leader of the Opposition and the Attorney‑General supported the 1984 Act without knowing the true effect of the proposed amendments. I am unable to accept that they proceeded in such a state of ignorance.

  3. For these reasons, I am of the opinion that the offence contemplated by s 81 of the Crimes Act (which has now been repealed) was limited to conduct engaged in by a male with another male. It did not extend to conduct by a female upon a male of the kind alleged by the Crown against the applicant.

  4. I agree with the orders proposed by Meagher JA.

  5. WEINSTEIN J: I have had the considerable benefit of reviewing the judgment of Meagher JA. I agree with the orders he proposes, and can add nothing to his Honour’s comprehensive and persuasive analysis and reasons.

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Amendments

19 February 2024 - Citation added to [12]

Decision last updated: 19 February 2024

Most Recent Citation
Cases Citing This Decision

2

Lam v R (No.2) [2024] NSWCCA 237
Grant v The King [2024] NSWCCA 78