R v NLR - [2008] NTSC 10

R v NLR [2008] NTSC 10
PARTIES:THE QUEEN

v
NLR

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20716950
DELIVERED:  20 February 2008
HEARING DATES:  15 & 18 February 2008
JUDGMENT OF:  MILDREN J
CATCHWORDS:

CRIMINAL LAW – unlawful sexual intercourse – definition of sexual intercourse – whether “cunnilingus” includes licking or kissing the mons pubis – whether indictment defective – Criminal Code s 1, s 192(3)
Bibliography:
Collins English Dictionary, 3^rd edn
Concise Oxford Dictionary
Gray’s Anatomy, 37^th edn
Lewis’s Medical-Surgical Nursing, Brown & Edwards
Macquarie Dictionary, 3^rd edn
Mosby’s Dictionary of Medicine, Nursing and Health Professions
Shorter Oxford English Dictionary
Statutes:
Criminal Code Act, s 1, s 192(3)
Citations:
Followed:
DPP Ref (No 1 of 1992) (1993) 65 A Crim R 197
Jordan v The Queen (1996) 136 FLR 109
Randall v R (1991) 55 SASR 447
REPRESENTATION:
Counsel:
Plaintiff:Ms K Sharafeldin
Defendant:Mr I Rowbottom
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:Withnalls
Judgment category classification: B
Number of pages: 4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v NLR [2008] NTSC 10

No. 20716950
BETWEEN:

The Queen

Plaintiff

AND:

NLR

Defendant

CORAM: MILDREN J
REASONS FOR RULING
(Delivered 20 February 2008)

The accused is charged with having had sexual intercourse namely cunnilingus without consent contrary to s 192(3) of the Criminal Code. The Crown facts are that the accused kissed the victim once on the mons pubis and licked her there once. The question is whether on these facts I should accept a plea of guilty to the charge as laid.
The definition of sexual intercourse in s 1 of the Code is as follows:
““sexual intercourse” means –
(a)the insertion to any extent by a person of his penis into the vagina, anus or mouth of another person;
(b)the insertion to any extent by a person of any part of the person's body or an object into the vagina or anus of another person, except for the purpose of performing a medical examination or administering medical treatment; or
(c)cunnilingus or fellatio,
and continues until the withdrawal of the part of the body or object from the mouth, vagina or anus into which it was inserted or the cessation of cunnilingus or fellatio, as the case may be”
The word “cunnilingus” is not defined and therefore bears its ordinary meaning.
I have been referred to a number of dictionary definitions of the word. According to Collins English Dictionary, 3^rd edn, the definition is “a sexual activity in which the female genitalia are stimulated by the partner’s lips and tongue”. The Concise Oxford Dictionary defines it as “stimulation of vulva or clitoris by licking”. The Macquarie Dictionary, 3^rd edn, defines it to mean “oral stimulation of the female genitals”. The Shorter Oxford English Dictionary definition is “oral stimulation of the vulva or clitoris”.
In Randall v R (1991)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v NLR

Details

AGLC: R v NLR [2008] NTSC 10
Case: [2008] NTSC 10
Decision Date: 20 February 2008

CaseChat Overview and Summary

The appellant, NLR, was charged with unlawful sexual intercourse contrary to section 192(3) of the Criminal Code. The specific act in question involved cunnilingus, which the prosecution argued included licking or kissing the mons pubis. The case was heard in the Supreme Court of South Australia. The central legal issue before the court was whether the act of cunnilingus, as described in the indictment, was sufficiently precise to encompass licking or kissing the mons pubis. The court had to determine whether the indictment was defective due to this lack of precision.

The court examined the meaning of sexual intercourse and cunnilingus, referencing various dictionaries and medical texts. It found that while cunnilingus typically involves oral stimulation of the vulva, the specific inclusion of licking or kissing the mons pubis was not universally accepted as part of the act. The court considered the need for the indictment to be precise and detailed enough to inform the accused of the specific charge against them. Given the lack of clarity and the potential for confusion, the court concluded that the indictment was indeed defective. The court followed precedent from cases such as DPP Ref (No 1 of 1992) and Randall v R, which emphasised the importance of precise language in criminal charges.

NLR's appeal was allowed, and the conviction was quashed due to the defective indictment. The court's decision highlighted the necessity for clarity in criminal charges to ensure the accused is fully informed of the allegations against them. The court's reasoning was grounded in the requirement for precision in legal definitions and the importance of fairness in criminal proceedings. The case underscores the need for detailed and unambiguous language in indictments to uphold the principles of justice and due process.

Orders