R v Perriman - [2000] TASSC 108

[2000] TASSC 108

CITATION: R v Perriman [2000] TASSC 108

PARTIES:  R
  v
  PERRIMAN, Paul

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  534/1999
DELIVERED ON:  27 July 2000
DELIVERED AT:  Hobart
HEARING DATES:  25, 26, 27 and 28 July 2000
JUDGMENT OF:  Slicer J

Edited edition of Reasons for Judgment delivered orally

CATCHWORDS:

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Particular classes of statute - Penal - Generally - Retrospective application of penal statutes.

R v Griffiths [1891] 2 QB 145; Waddington v Miah (1974) WLR 683; Rodway v R (1989 - 1990) 169 CLR 515, considered.
Richardson v R [1978] Tas SR 178, R v Cuerrier (1998) 127 CCC 1, referred to.
Criminal Code 1924 (Tas), ss124, 127.
Aus Dig Statutes [68]

REPRESENTATION:

Counsel:
           Appellant:  G L Sealy
           Respondent:  A R Jacobs
Solicitors:
           Appellant:  Piggott Wood and Baker
           Respondent:  Office of the Director of Public Prosecutions

Judgment Number: [2000] TASSC 108
Number of Paragraphs: 16

Serial No 108/2000
File No 534/1999

THE QUEEN v PERRIMAN

REASONS FOR JUDGMENT SLICER J

DELIVERED ORALLY 27 July 2000

The accused is charged with 13 counts of unlawful sexual intercourse with a young person contrary to the Criminal Code, s124 ("the Code") and three counts of indecent assault contrary to the Code, s127. The acts are alleged to have occurred between 1976 and 1980 and involved a male youth under the age of 17 years. The acts of sexual intercourse are said to involve oral penetration by the penis by and against the complainant and penetration of the accused by the complainant.

The relevant provisions of the Code as of the date of the alleged crimes were:

"124 ¾ (1) Any person who has unlawful carnal knowledge of a girl under the age of eighteen years is guilty of a crime.
(2) In any case in which the accused person is under the age of twenty-one years, it is a defence to a charge under this section to prove that he in fact believed on reasonable grounds that the girl was over the age of eighteen years."

…
127 ¾ (1) Any person who unlawfully and indecently assaults a female is guilty of a crime.
(2) In any case in which it is provided that the consent of a girl to the act charged shall be a defence to a charge under section one hundred and twenty-four, the like consent to an act charged under this section given under the like conditions as to the age of the parties shall be a defence to a charge under this section.
(3) Except as hereinbefore provided, the consent of a person under eighteen years of age shall be no defence to a charge under this section unless the accused is of the same age as, or younger than, such person."

A person committing indecency with a male youth could not have been charged with either crime. Instead, the…

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 Perriman

Details

AGLC: R v Perriman [2000] TASSC 108
Case: [2000] TASSC 108
Decision Date: 27 July 2000

CaseChat Overview and Summary

The matter before the Supreme Court of Tasmania in R v Perriman involved the accused, Paul Perriman, charged with multiple counts of unlawful sexual intercourse and indecent assault involving a male youth under the age of 17, committed between 1976 and 1980. The court was required to address the issue of whether the 1987 amendments to the Criminal Code, which replaced the term "carnal knowledge" with a broader definition of "sexual intercourse", could be applied retroactively to conduct that occurred prior to the amendments. The court also had to consider whether the accused could be held criminally responsible for conduct that was unlawful at the time it was committed but was made lawful by subsequent amendments.

Slicer J held that the amendments of 1987 and 1997 were substantive rather than procedural, and the effect of the 1997 amendments was to make lawful sexual conduct between males within defined age categories identical to that governing heterosexual activity. The court found that the retrospective effect of the amendments was not to create new forms of unlawful conduct but to encapsulate existing proscribed behaviour into a single provision irrespective of gender. The argument that the replacement of the term "carnal knowledge" by a broad definition of "sexual intercourse" could not render the acts of oral penetration as amounting to intercourse was rejected. The court concluded that the definition attached to the substantive amendments effected by the 1987 legislation, which was expressly stated to be retroactive, included oral penetration within the term "sexual intercourse". The accused was to make answer to the case for the Crown in relation to each count comprised in the indictment.

The final orders of the court would follow from this decision, ensuring that the accused faced charges for the alleged conduct as per the indictment.

Orders