R v R, Wd - [2004] SADC 187

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, WD
Reasons for Decision of His Honour Judge David
21 December 2004
CRIMINAL LAW
No case to answer.
Criminal Law Consolidation Act 1935, s49(5); Adoption of Children Act 1925, s12; Adoption of Children Act 1967, s30, referred to.
G and Another 91 ACR 590; Halsbury's Laws of England 1st ed. Vol 17, applied.

R v R, WD
[2004] SADC 187

WDR was charged on an Information with the following offences:-
“First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WDR between the 1^st day of May, 1984 and the 30^th day of August, 1984 at Campbelltown, being the guardian of KM, had vaginal sexual intercourse with KM, a person of the age of 17 years.
Second Count
Statement of Offence
Incest.(Section 72 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WDR between the 1^st day of May, 1984 and the 30^th day of August, 1984 at Campbelltown, being related as parent to KM, had vaginal sexual intercourse with her.”
It was made clear by the Prosecution that the count of incest was an alternative to the count of unlawful sexual intercourse. At the end of the case for the Prosecution counsel for the defendant, Mr Borick QC, submitted that as a matter of law there was no case to answer in relation to both counts and asked me to bring in verdicts of not guilty at this stage. I indicate that I find that there is a case to answer on count 1 and that being so there needs to be no consideration of count 2 at this stage. I now state my reasons for that decision.
The Prosecution case was not in dispute and was presented by way of a combination of agreed facts and the tendering of a number of depositions by counsel for Director of Public Prosecutions, Ms Trengove (evidence pages 16-19).
The undisputed facts are that the complainant, KM, was born on the 13^th November 1966. By a Court order dated 23^rd May 1967 the accused and his wife adopted her as their child. She was then 6 months of age. Neither were the natural parents. It is agreed and it is clear on the depositions tendered on the Prosecution case that between the 1^st May 1984 and 30^th August 1984 the accused and the complainant had consensual sexual intercourse on a number of occasions. These acts occurred following the 17^th birthday of the complainant but before she had reached 18 years of age.
It is agreed that the act of sexual intercourse upon which both counts are based was the last act before she became pregnant. As a result of that pregnancy she gave birth to her daughter, Melissa, on the 22^nd March 1985 and it is not disputed and has been proved that the accused is the father of that child.
In relation to count 1 the elements of the charge that have to be proved beyond reasonable doubt are the following:
1.That on the occasion as stipulated the accused had vaginal sexual intercourse with the complainant.
2.At the time that that act of intercourse took place he was her guardian.
3.At the time of the act of intercourse took place she was under the age of 18 years of age.
The accused in his submission of no case to answer agrees that the relevant act of intercourse took place (among others) and that when that happened the complainant was under the age of 18 years. However it is argued that as a matter of law the accused was not her guardian therefore the charge must fail. I turn to that question. I set out the relevant section of the Criminal Law Consolidation Act:-
“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.”
Unfortunately the act does not define “guardian”. It is argued on behalf of the accused that any vagueness or ambiguity in relation to the words of an Act which impose criminal liability must be strictly construed in favour of the accused. It was carefully and thoroughly put to me that the section only applies to four limited classes of persons of which a “guardian” is one. It is argued that an adoption order, as existed here, allows an adopted parent to be in the same position as a natural parent in respect of a child and if Parliament intended that an adoptive parent was to be deemed a guardian for the purposes of the Criminal Law Consolidation Act it would say so.
It is argued by the Prosecution that by virtue of the accused being the complainant’s legal adoptive father that carries along with it the finding that he is her guardian. In support of that argument she refers to section 12 of the Adoption of Children Act 1925 which was in force at the time that the adoption order was taken out. That section reads as follows:-
“12. 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.”
However at the time the act of intercourse which is the basis of the charge took place the Act was amended and the Adoption of Children Act 1967 came into force and Ms Trengove cited a similar passage in that Act namely section 30 which reads as follows:-
“30.   (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 order 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.”
It was put by Ms Trengove that as the adopter becomes a parent the duties of the parent incorporates the duties of a guardian.
Both counsel cited the decision of G and Another 91 ACR 590. The Court of Criminal Appeal of Western Australia held that in a similar section in the Western Australian Criminal Code a stepfather was not a guardian within the meaning of that section. The Court held that the word “guardian” in common law has a meaning which is not applicable to the various definitions given in various Statutes such as the Family Law Act and the Adoption of Children Act. The Court held that the common law meaning of the expression is the meaning that should be applicable to the Western Australian Criminal Code. Reference was made to the common law meaning as set out in Halsbury’s Laws of England (1^st ed.), Vol 17, p 121 et seq) that says:-
“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. 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”
The Court went on the hold that a person can only be his or her guardian if appointed by a Will or by Deed or by a person entitled to so appoint or by an order of the Court. It was held that the stepfather does not fit into any of these categories. It was held that the law does not recognize as a guardian a person who merely assumes a defacto responsibility for the care and protection of an infant. In my view that authority supports the contention that a legal adoption satisfies the criteria of being a guardian. By virtue of the factor that legal adoption the accused takes on the responsibilities, rights and duties of a parent and that must of course involve at the very least the rights and responsibilities of a guardian. That is to be distinguished from a defacto situation which is not confirmed by any legal order.
I therefore find that in the meaning of section 49(5) of the Criminal Law Consolidation Act the accused was a guardian of the complainant and therefore a case to answer is made out.
In the light of my finding it is unnecessary for me to answer submissions in relation to count 2.