R v R, WD
[2005] SASC 191
•31 May 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v R, WD
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Sulan)
31 May 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INCEST
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction – where the appellant was convicted of unlawful sexual intercourse contrary to s 49(5) of the Criminal Law Consolidation Act 1935 (CLCA) – where the victim was the appellant’s adopted daughter – whether trial Judge erred in finding that the appellant was the guardian of his adopted daughter for the purposes of s 49(5) – where the appellant was charged in the alternative with incest contrary to s 72 of the CLCA – where trial Judge held that there was no need to consider the alternative charge of incest – whether trial Judge erred in failing to consider the alternative charge of incest – appeal dismissed.
Criminal Law Consolidation Act 1935 ss 33A, 39, 49, 53, 72, 80; Juries Act 1927 s 7; Criminal Law Consolidation Amendment Act 1885 s 11; Criminal Law Amendment Act 1917 s 6; Criminal Law Consolidation Act 1981; Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994; Infants Custody Act 1883 (SA); Guardianship of Infants Act 1887 (SA); Adoption of Children Act 1925 s 12; Adoption of Children Act 1967 ss 3, 30, 31; Adoption Act 1988 s 9; Criminal code (WA) s 190; Halsbury's Laws of England (1st ed) Vol 17 Part 7; Chambers on Infants pp 54-59; Simpson on the Law of Infants (4th ed) Part II Ch VII, Part III Ch X; Parliamentary Debates, 7th July 1885 P 188, referred to.
R v Adams (1935) 53 CLR 563; Ratcliff's Case (1592) 3 Co Rep 37a, 37b et seq; R v Thorp (1696) 87 ER 618; Carth 384; Mendes v Mendes (1747) 27 ER 910; 3 Atk 619; Rimington v Hartley (1880) 14 Ch D 630; In re A and B (Infants) [1897] 1 Ch 786; Youngman v Lawson [1981] 1 NSWLR 439; Burch v SA (1998) 71 SASR 12; Crowe v Graham (1968) 121 CLR 375; Reg v Campbell [1968] Tas SR 38; G and Another (1997) 91 A Crim R 590, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Guardian"
R v R, WD
[2005] SASC 191Court of Criminal Appeal: Duggan, Besanko and Sulan JJ
DUGGAN J. I agree that the appeal should be dismissed for the reasons given by Besanko J.
BESANKO J: The appellant was charged on Information with the following offences:
1Unlawful sexual intercourse contrary to s 49(5) of the Criminal Law Consolidation Act 1935 (“CLCA”). The particulars of the offence were that the appellant between the 1st May 1984 and 30th August 1984 at Campbelltown being the guardian of KM had vaginal sexual intercourse with KM, a person of the age of 17 years.
2Incest contrary to s 72 of the CLCA. The particulars of the offence were that the appellant between 1st May 1984 and 30th August 1984 at Campbelltown, being related as parent to KM, had vaginal sexual intercourse with her.
The relevant statutory provisions of the CLCA are as follows:
S 49(5) A person who, being the guardian, schoolmaster, schoolmistress or teacher of a person under the age of eighteen years, has sexual intercourse with that person shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
S 72 Any persons who, being related, either as parent and child or as brother and sister, have sexual intercourse with each other shall be guilty of incest and liable to be imprisoned for a term not exceeding seven years.
The Director of Public Prosecutions (“the Director”) did not seek a conviction in relation to both charges and he made it clear that the two charges were alternative charges.
The appellant was tried by a District Court Judge sitting as Judge alone (s 7 Juries Act 1927). The appellant pleaded not guilty to each charge. The evidence presented by the Director consisted of statements which were admitted by consent. In addition to the evidence led by the Director, the appellant through his counsel admitted that between 1st May 1984 and 30th August 1984 he had vaginal sexual intercourse with KM, a person of the age of 17 years. However, the appellant made a submission of no case to answer in relation to both charges. The basis of the submission in relation to the first charge was that the appellant was not the “guardian” of KM within the provisions of s 49(5) of the CLCA, and the basis of the submission in relation to the second charge was that the appellant was not related to KM as parent and child within the provisions of s 72 of the CLCA. The Judge found a case to answer in relation to the first charge and he said that there was no need for him to consider whether there was a case to answer in relation to the second charge. The appellant then elected not to adduce evidence in relation to the first charge and he was found guilty of that charge.
The appeal by the appellant is against the Judge’s finding of guilt in relation to the first charge, and the only issue in relation to that finding is whether the Judge erred in concluding that at the relevant time the appellant was the guardian of KM within the provisions of s 49(5) of the CLCA. In his notice of appeal the appellant also complained of the Judge’s failure to rule on the alternative charge of incest, although that complaint was not developed on the hearing of the appeal. Although the charge of incest is not before this Court, I will need to mention it again because of one of the submissions put by the appellant on the appeal.
The Facts
The complainant, KM, was born on 13th November 1966 and between May and August 1984 she was 17 years of age. On 23rd May 1967, and when the complainant was about six months of age, the appellant and his wife adopted KM as their child. A court order to that effect was made on that date. Neither the appellant nor his wife was KM’s natural parent. The appellant had consensual sexual intercourse with KM on a number of occasions between 1st May 1984 and 30th August 1984. The last act of sexual intercourse was the subject of the two charges and it resulted in KM becoming pregnant. A child was born on 22nd March 1985 and the appellant is that child’s natural father.
Before dealing with the issues on appeal I mention that after the hearing of the appeal and without leave, the appellant’s solicitors sent further written submissions to the Court. They did not have leave to do that. It is unnecessary for me to decide how the Court should deal with those submissions because I have read them and I do not think they add anything to the oral and written submissions which were presented on the hearing of the appeal.
Section 49(5) of the CLCA and the meaning of “guardian”
Section 49 of the CLCA creates various offences of unlawful sexual intercourse. Section 49(5) is an exception to the general rule that the age of consent is 17 years.
There is no definition of “guardian” in the CLCA.
A section in similar terms to s 49(5) has been a part of the criminal law of this State since 1885. Section 11 of the Criminal Law Consolidation Amendment Act 1885 read as follows:
Any person who, being the guardian, teacher or schoolmaster of any female under the age of eighteen years, unlawfully and carnally knows, or attempts to have unlawful and carnal knowledge of such female, shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable to be imprisoned for any term not exceeding three years, with or without hard labor.
By s 6 of the Criminal Law Amendment Act 1917 the penalty under s 11 was increased to imprisonment with hard labour for any term not exceeding seven years.
Section 11 was re-enacted as s 53 of the Criminal Law Consolidation Act 1935. Section 53 was amended by the Criminal Law (Sexual Offences) Amendment Act 1975 by replacing the words “or schoolmaster” with the words “schoolmaster or schoolmistress” and by replacing the word “female” with the word “person”. By the Criminal Law Consolidation Act Amendment Act 1976 the offence in s 53 was replaced by the offence in s 49(5) which at that time was in the following terms:
A person who, being the guardian, schoolmaster, schoolmistress, or teacher of a person under the age of eighteen years who has sexual intercourse, or attempts to have sexual intercourse, with that person shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.
By the Criminal Law Consolidation Act 1981 the words “or attempts to have sexual intercourse” were struck out, and by the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 the words “a misdemeanour” were replaced by “an offence”.
The above is the legislative history of the section.
The appellant said that the Judge erred in finding the appellant guilty of an offence under s 49(5) because, it was submitted, the appellant was not a guardian within the subsection. He put a number of submissions in support of this contention. First, he submitted that a parent, including an adoptive parent, was not a guardian within the provisions of s 49(5). To support this proposition he referred to the Parliamentary debates at the time s 11 of the Criminal Law Consolidation Amendment Act 1885 was introduced, in the course of which it was said that a guardian did not include a parent. He also referred to other sections in the CLCA such as ss 33A, 39 and 80 in which reference is made to “parent or guardian”, and he submitted that the specific reference to parent in addition to guardian suggested that Parliament did not consider that a parent was a guardian. Secondly, he submitted even if his first submission was wrong and a natural parent was a guardian, an adoptive parent was not a guardian. The argument here seemed to be as follows. An adoptive parent is not a parent for the purposes of the offence of incest in s 72 of the CLCA. If an adoptive parent is not a parent for the purposes of s 72, such a parent should not be included within the concept of a parent for the purposes of s 49(5). As I have said this submission is put by the appellant on the assumption that his first submission fails and a natural parent is a guardian for the purposes of s 49(5).
The appellant also referred to two general propositions, the first of which is not in dispute on the appeal. It is that if there is any ambiguity in a penal statute it should be resolved in favour of the subject (R v Adams (1935) 53 CLR 563 at 567 – 568). The question in this case is, is there any ambiguity in s 49(5)? The second proposition is that the term guardian should not be interpreted in a way which would give rise to wide ranging and uncertain factual enquiries. To a point, the Director did not dispute the second proposition, although one of his arguments suggested that a factual enquiry by the Court may sometimes be necessary.
As I have said, there is no definition of “guardian” in the CLCA, nor was there a definition of the word in the earlier and equivalent sections.
There is not a great deal in the context of the section which provides an indication of the meaning of the word. The reference to a schoolmaster, a schoolmistress or teacher suggests that the section is directed at close relationships involving influence, care, control and vulnerability. In the ordinary case, the relationship of parent and child, including an adoptive parent and child, is the prime example of a relationship exhibiting those features.
Subject to one matter which I will mention, in 1885 when s 11 was introduced, “guardian” had a clear meaning at common law. In the first edition of Halsbury’s Laws of England volume 17 the guardianship of the person and estate of an infant is discussed in Part 7. The learned authors state (I omit footnote references):
The disabilities of an infant and his legal incapacity to manage his own affairs render it necessary that for the protection of his interests and the management of his property he should have a guardian of his person and property, to whom he stands in the relation of ward (k). A person may be the guardian of an infant either (1) in socage; (2) by nature in the case of an heir-apparent; (3) by custom; (4) for nurture; (5) naturally, or by parental right; (6) by parental appointment, or (7) by appointment by a court of competent jurisdiction (l).
Guardianship in socage and by custom are not relevant in this case. Guardianship by nature and for nurture are described in the following terms:
Guardianship by nature, in its original and strict sense (r), is that of a father over his infant heir-apparent of either sex (s). It lasts until the infant attains full age, but is exercisable only over the person of the infant (t).
…
A father, and after his death a mother, has the guardianship for nurture of an infant child up to the age of fourteen (d).
Guardianship for nurture is not relevant in this case. Guardianship by nature is linked to guardianship by parental right which I will mention after dealing with the other categories.
Guardianship by parental appointment is described (relevantly) as follows:
Both a father and mother have power, if under age by deed, and if of full age by deed or will, to appoint persons to act as guardians of an infant child, in the case of a father, after his death, and, in the case of a mother, after the death of herself and the father, if the child is then an infant and unmarried (i). Where the appointment is made by deed, it is of a testamentary nature (k), and is revocable by a subsequent will making a different appointment (l); but it is not admissible to probate (m). The intended guardian may attest the deed (n). No special words are necessary in making the appointment (o), but it is not sufficient to appoint a person guardian of the estate of the child (p).
Guardianship by parental appointment is not relevant in this case. Nor is guardianship by appointment of the court as no such order was made in this case.
The relevant definition for the purposes of this case is guardianship by parental right which is described in the following terms:
A father (e), and after his death a mother (f), has by parental right the guardianship of the person of an infant child up to the age of twenty-one (g), as his natural guardian in the wider sense of the term (h).
It has been said that a father is the natural guardian of his infant at common law (Ratcliff’s Case (1592) 3 Co Rep 37a, 37b et seq; R v Thorp (1696) 87 ER 618; Carth 384 per Holt CJ at 386; Mendes v Mendes (1747) 27 ER 910; 3 Atk 619; Chambers on Infants pages 54 – 59; Simpson on the Law of Infants 4th ed Part II Chapter VII and Part III Chapter X) although it has also been said that that is true only in the wider sense of the term, guardian. The Master of the Rolls (Jessel MR) in Rimington v Hartley (1880) 14 Ch D 630 at 632 described the relationship between a father and his infant as the commonest case of all of a guardian.
It seems that at common law, historically at least, there was a sense in which the concept of guardian insofar as it related to parents and their infant children only included the relationship between a father and his heir-apparent. That was the concept in its strict sense and it also seems that at common law the concept of guardian was used in a wider sense to include the relationship between a father and his infant children. The relationship of a father as guardian of his infant children was implicitly recognised by legislation passed at about the time of the enactment of s 11. I refer to the Infants Custody Act 1883 (SA) and the Guardianship of Infants Act 1887 (SA) and the discussion of the equivalent legislation in England in In re A and B (Infants) [1897] 1 Ch 786 (see also Youngman v Lawson [1981] 1 NSWLR 439).
In my opinion, if one has regard only to the terms of s 11 it is proper to conclude that a natural father is a guardian of his children within the terms of the section because, at the time the section was enacted, he was a guardian of his children at common law, albeit in the wider sense. Furthermore, in the ordinary case he will have more contact and control and direction over his children than other guardians and the other classes of persons referred to in the section, and therefore such an interpretation accords with the purpose of the section. The fact that he might also be guilty of incest is no reason to exclude him from the definition of guardian.
However, the appellant points to other factors which he submits outweigh these considerations. First, he referred to the fact that the Parliamentary debates of 7th July 1885 contain the following exchange concerning s 11 of the Criminal Law Consolidation Amendment Act 1885:
The Hon M SALOM asked if the word “guardian” included the word “parent”?
The PRESIDENT said that defilement by parents was provided for elsewhere in the criminal law.
The Hon M SALOM said that if “guardian” did include “parent” the penalty of three years’ imprisonment was not sufficient.
I do not think this exchange is an identification of the mischief the Act was intended to remedy in the course of a Second Reading Speech within the relevant common law principles (Burch v SA (1998) 71 SASR 12 per Bleby J at 39) and I place no weight on it.
Secondly, the appellant points to the fact that other sections in the CLCA refer to “parent or guardian” (ss 33A, 39 and 80). That was also the case at the time the Criminal Law Consolidation Amendment Act 1885 was enacted. I think that is a factor which points against the interpretation of guardian in s 49(5) so as to include natural parent. However, cases where Parliament has not been consistent in the use of terminology throughout an Act, particularly a consolidated Act, are not unknown (Crowe v Graham (1968) 121 CLR 375 per Windeyer J at 387 – 388), and I think this factor is clearly outweighed by the two factors which I have identified, namely, that at the time s 11 was enacted a guardian at common law clearly included (albeit in the wider sense) the relationship between a father and his infant children, and the purpose of the section as previously identified.
In my opinion, if the appellant had been the natural father of KM he would have been the guardian of KM for the purposes of s 49(5) of the CLCA. The appellant was not the natural father of KM but he was the adoptive father of KM. Does that mean that in 1984 he was the guardian of KM within the terms of s 49(5) of the CLCA? I think that it does because of the effect of the adoption order made by a court in May 1967 when KM was about six months old. The adoption order was made under the Adoption of Children Act 1925. The effect of the order was dealt with in s 12 of that Act which was in the following terms:
When an order of adoption has been made, the adopting parent shall for all purposes, civil, criminal, or otherwise howsoever, be deemed in law to be the parent of such adopted child, and be subject to all liabilities affecting such child as if such child had been born to such adopting parent in lawful wedlock; and such order of adoption shall thereby terminate all the rights and legal responsibilities and incidents existing between the child and his or her natural parents, except the right of the child to take property as heir or next of kin of his natural parents directly or by right of representation.
The section makes it clear that for the purposes of the criminal law the appellant was deemed in law to be the parent of KM, and as far as liabilities were concerned it was as if KM had been born to the appellant and his wife in lawful wedlock.
The Adoption of Children Act 1967 repealed the 1925 Act and it came into operation on 2nd November 1967. Subject to an exception which is not material for present purposes, it provided that an adoption order made under the Adoption of Children Act 1925 was subject to ss 30 and 31 of the Act as if the Act was in force at the time the order was made and the order had been made under the Act (s 3(3)). Section 31 dealt with dispositions of property and is not relevant for present purposes. Section 30 is relevant and it provided:
(1) For the purposes of the laws of this State, but subject to this Act and to the provisions of any law of this State that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order –
(a) the adopted child becomes a child of the adopter or adopters, and the adopter becomes a parent, or the adopters become the parents, of the child as if the child had been born to the adopter or adopters in lawful wedlock;
(b) the adopted child ceases to be a child of any person who was a parent (whether a natural parent or a parent by adoption) of the child before the making of the adoption order, and any such person ceases to be a parent of the child;
(c) the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent or former adoptive parent of the adopted child) shall be determined on the basis of the foregoing provisions of this subsection, so far as they are relevant;
(d) any existing guardianship of the adopted child, except as provided in subsection (5) of this section, ceases to have effect;
and
(e) any previous adoption of the child (whether effected under the law of this State or otherwise) ceases to have effect.
(2) The provisions of subsection (1) of this section do not have effect so as to deprive an adopted child of any vested or contingent proprietary right acquired by the child before the making of the adoption order.
(3) Where –
(a) one of the natural parents of a legitimate child, or one of the adoptive parents of an adopted child, has died;
(b) the surviving parent remarries;
and
(c) the child is adopted by the surviving parent’s spouse or by the surviving parent and that parent’s spouse,
any property of any collateral or lineal next-of-kin of the deceased parent who dies intestate shall, notwithstanding subsection (1) of this section, devolve in all respects as if the child had not been so adopted.
(4) Notwithstanding subsection (1) of this section, for the purposes of any law of this State relating to a sexual offence, being a law for the purposes of which the relationship between persons is relevant, an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the adoption order, or the discharging order, as the case may be, had not been made, and any such relationship shall be deemed to exist in addition to any relationship that exists by virtue of the application of that subsection in relation to that adoption order or by virtue of the discharge of that adoption order.
(5) Where –
(a) immediately before the making of an adoption order the child in respect of whom the adoption is sought was a State child within the meaning of the Social Welfare Act, 1926-1965;
and
(b) the guardianship of the child was accordingly vested in the Minister of Social Welfare under that Act,
the guardianship of the child so vested in that Minister shall cease to have effect and the child shall cease to be a State child within the meaning of that Act on the making of the adoption order unless before the adoption order is made, the Minister of Social Welfare has, at the request of the applicant or applicants for the adoption order, agreed with the applicant or applicants that the guardianship of the child so vested in that Minister shall not cease to have effect on the making of the adoption order, in which case that Minister shall after the making of the adoption order continue to be the guardian of the child and, for the purposes of the Social Welfare Act, 1926-1965, the child shall, until he ceases to be a State child under that Act, continue to be a State child and the provisions of that Act shall apply and have effect accordingly.
I have considered whether any conclusion can be drawn from the presence of s 30(4), but in the result I have concluded that it is neutral and does not support the argument of either party.
For the sake of completeness I mention the relevant provision of the Adoption Act1988 which repealed the Adoption of Children Act 1967 and which gives similar effect to an adoption order. Section 9 of that Act provides as follows:
(1) Subject to this section, where an adoption order is made, the adopted child becomes in contemplation of law the child of the adoptive parents and ceases to be the child of any previous natural or adoptive parents.
(2) If an adoption order is made in favour of a person who is cohabiting with a birth or adoptive parent of the child in a marriage relationship, the relationship of that parent to the child is not affected by the order.
(3) Where –
(a) one of the natural or adoptive parents of a child dies;
(b)the surviving parent cohabits with another person in a marriage relationship; and
(c) the child is adopted by that other person,
the adoption does not exclude rights of inheritance from or through the deceased parent.
(4) Where an order for the adoption of a child is made, any previous order for the adoption or guardianship of the child ceases to have effect.
The appellant submitted that the section creating the offence of incest applied only to a natural parent, and that it would be an error to include within the concept of parent (assuming a natural parent is a guardian within s 49(5)) an adoptive parent. There are a number of difficulties with this argument, but I can dispose of it without identifying and discussing those difficulties because I think the premise is wrong. I think an adoptive father and adoptive daughter are in a relationship of “parent and child” for the purposes of s 72 of the CLCA.
The question of whether an adoptive daughter was a daughter for the purpose of the law of incest was considered by Burbury CJ in Reg v Campbell [1968] Tas SR 38. It is true that the statutory provisions under consideration in that case were different from the provisions I am examining, but I do not think the differences are material. Burbury CJ said (at 40 – 41):
I have reached the conclusion that an adopted daughter is a daughter for the purposes of s 133 of the Code from what I conceive to be the plain meaning of s 8 of the Adoption of Children Act 1920. I add that this conclusion is consonant with the nature of the crime of incest and the purposes for which the law punishes it. Before the enactment of the Punishment of Incest Act, 1908 (3), incest was not a crime in England. It was, however, an ecclesiastical offence punishable by the ecclesiastical courts and it was also a matrimonial offence. It was not (so far as the researches of counsel and myself have revealed in the limited time available) a crime in Tasmania until the enactment of the Criminal Code in 1924. But both as an ecclesiastical offence and a civil offence, incest is a grave offence against the family because it is wholly destructive of proper relationships within the family unit and, as I see it, it is for that reason that the law punishes it as a crime. When a father as head of a family brings within the shelter of the family unit a child by adoption he stands in precisely the same legal relationship with that child as if the child had been born in lawful wedlock. To have sexual intercourse with the child is just as disruptive of their proper relationship within the family as if the child was his in lawful wedlock. That the ecclesiastical offence of incest depends not on consanguinity but on a consideration of the implications of legal relationships within the family finds support from passages in the Summa Theologica of St Thomas Aquinas (4). I am indebted to Mr Cumbrae-Stewart, the Assistant Parliamentary Draftsman, for references to these passages and for his translation of them. As I understand the effect of what St Thomas Aquinas said, it is this: That the effect of civil adoption (which I think can be regarded as the equivalent of our modern statutory adoption) is that legal cognation (ie., not natural but by law) impedes the marriage of the cognates because the nature of cohabitation in marriage (involving sexual intercourse) is inconsistent with the nature of proper cohabitation within the family unit resulting from the legal relationship created by adoption. That is to say, that adoption brings about a definitive relationship and type of cohabitation within the family unit and it follows that marriage is impeded between those within that definitive relationship and sexual intercourse between them becomes incestuous.
I would respectfully adopt this reasoning and apply it to s 72 of the CLCA.
In my opinion, the effect of the various Adoption Acts of this State is clear and an adoption order brings about a relationship of parent and child for the purposes of s 72 of the CLCA. The appellant’s submission by reference to that section must be rejected. Having regard to the effect of the various Adoption Acts, I see no reason why if (as I have held) a parent is a guardian within s 49(5) of the CLCA, a parent does not include an adoptive parent. I so hold.
Both parties sought to gain assistance from the decision of the Court of Criminal Appeal in Western Australia in G and Another (1997) 91 A Crim R 590. That case concerned the proper interpretation of the equivalent section in Western Australia, namely, s 190 of the Criminal Code (WA) which relevantly provides:
Any person who, being a guardian, employer, teacher, or school-master of any girl or woman under the age of 17 years, unlawfully and carnally knows, or attempts to have unlawful and carnal knowledge of such girl or woman, is guilty of a crime and is liable to imprisonment with hard labour for 5 years with or without whipping.
The issue in the case was whether a step-father was a guardian within the terms of s 190. The Court held that he was not. The case is not directly on point but it does provide some support for the conclusion which I have reached in that Franklyn J (with whom Walsh J agreed) considered that it was appropriate, in the absence of a statutory definition of “guardian”, to have regard to the common law definition and he referred to the definition in the first edition of Halsbury’s Laws of England which I have set out above.
In my opinion, in May 1967 and thereafter, up to and including the time the alleged offence was committed, the appellant was in law KM’s parent and as her father in the eyes of the law he was her guardian within the terms of s 49(5) of the CLCA. I do not think that there is any ambiguity in the statutory provision which would call for the application of the principle identified earlier.
Conclusion
In my opinion, the appeal should be dismissed.
SULAN J: I agree that the appeal should be dismissed. I agree with the reasons of Besanko J.
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