R v Stringer

[2000] NSWCCA 293

Reported Decision: 116 A Crim R 198

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Stringer [2000] NSWCCA 293
FILE NUMBER(S):	CCA 60751/99
HEARING DATE(S):	Monday 8 May 2000
JUDGMENT DATE:	10 August 2000
PARTIES :	Regina v Rodney John Stringer
JUDGMENT OF:	Grove J at 1; Adams J at 28; Smart AJ at 120

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/1098
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

COUNSEL :	C.K. Maxwell QC (Crown/Applicant) W.E. Flynn (Respondent)
SOLICITORS:	S.E. O'Connor (Crown) Marsdens (Respondent)
CATCHWORDS:	Criminal Law and Procedure - Stay of Proceedings - Sexual Offences - Abolition of Offence by Statute - Absence of Retrospective Operation - Charges of Conduct Prior to Legislation - Particulars of Span of Dates in Indictment - Crown and Defence Postulate Limited Issue at First Instance - Passage of Years Since Alleged Offences - Loss of Corroborating Material Potentially Definitive of Crown or Defence Assertions - - Per Grove J: The specifications of dates in an indictment are immaterial allegations and parties cannot by consent make them so by mere pleading as distinct from dates becoming material in the course of evidence in a trial. A court cannot be required to try an issue which is incompatible with the law as current and applicable at a relevant time. - - Per Adams J (dissenting): At trial the Crown evidence should be limited to the assertions of conduct within the span of its specification. To permit otherwise would render the trial inevitably unfair. The nature of indecency in the context of sexual assault discussed. Comment upon the notion of equal justice with particular reference to gender. The reflection of community standards in legislation and otherwise and the perception of abuse of process considered. - - Per Smart AJ: An applicant for permanent stay of proceedings should be required to verify his position. This did not occur. The assertion that sexual activity took place a year later than alleged but at a time when such activity was unlawful does not provide foundation for exercise of discretion to order permanent stay of proceedings.
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Anti Discrimination Act 1975 Commonwealth Prisoners Act 1967 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes (Amendment) Act 1984 Criminal Code (Tas) Human Rights (Sexual Conduct) Act 1994 (Cth) Judiciary Act 1903 (Cth) Sexual Offences Act 1956 (Imp)
CASES CITED:	Beal v Kelley 1951 Cr App R 128 Channon v The Queen 1978 33 FLR 433 Connelly v Director of Public Prosecutions (1904) AC 1254 Croome v Tasmania 1997 191 CLR 119 Crowe v Graham 1968 121 CLR 375 Dietrich v The Queen 1992 177 CLR 293 House v The King 1936 55 CLR 499 Jago v District Court of NSW 1989 168 CLR 23 Johnson v Miller 1937 59 CLR 467 (The) King v Dean 1932 NZLR 753 Kruger v the Commonwealth 1997 146 ALR 126 Leeth v the Commonwealth 1992 174 CLR 455 Lowe v The Queen 1984 154 CLR 606 Mack 1988 44 CCC (3d) 513 Minister for Immigration & Ethnic Affairs v Teoh 1995 183 CLR 273 Moloney v Mercer 1971 2 NSWLR 207 Moevao v Department of Labour 1980 1 NZLR 464 Pearce v The Queen 1998 156 ALR 684 Page v Butcher 1957 SASR 165 Potter v Minahan 1908 7 CLR 277 Purves v Inglis 1915 34 NZLR 1051 (The) Queen v Glennon 1992 173 CLR 592 (The) Queen v S 1989 45 A Crim R 221 R v Adler unreported CCA 11 June 1992 R v B & L 1954 71 WN (NSW) 138 R v Cox (1999) NSWCCA 62 R v Cuthbert 1967 86 WN (Pt 1) (NSW) 272 R v Davis 1995 81 ALR 156 R v Dossi 1918 13 Cr App R 158 R v Geddes 1936 36 SR (NSW) 554 R v Goldberg unreported CCA 23 February 1993 R v Hare 1934 1 KB 354 R v Harkin 1989 38 A Cr R 296 R v Hartikainan unreported CCA 8 June 1993 R v Hatfield (1999) NSWCCA 340 R v Hughes (2000) NSWCCA 3 R v Luscombe unreported CCA 22 November 1999 R v MacDonald 1 SCR (NS) 173 R v Manson unreported CCA 17 February 1993 R v Mason 1969 Cr App R 12 R v McCarthy unreported CCA 12 August 1994 R v McCormack 1969 2 QB 442 R v P unreported Federal Court of Australia 29 August 1998 R v Pfitzner 1976 15 SASR 171 R v Pritchard 1999 107 A Cr R 88 R v Suckling (1999) NSWCCA 36 R v Swaffield and Pavic 1997-8 151 ALR 98 R v Tolmie unreported CCA 7 December 1994 R v V.H.P. unreported CCA 7 July 1997 R v Wollaston 1872 12 CCC 180 R v Wilson Ex Parte Kisch 1934 52 CLR 234 Ridgeway v The Queen 1998 78 A Crim R 307 Sarawasti v The Queen 1991 172 CLR 1 Siganto v The Queen 1998 159 ALR 94 Walton v Gardiner 1992 177 CLR 378 Williams v Spautz 1991 174 CLR 509 Wright v Nicholson 1970 1 WLR 142
DECISION:	By majority, appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

60751/99

GROVE J
ADAMS J
SMART AJ

Thursday 10 August 2000

REGINA v RODNEY JOHN STRINGER

JUDGMENT

1 GROVE J : This is an appeal pursuant to s5F(2) of the Criminal Appeal Act challenging an order made on 18 November 1999 by Shillington DCJ permanently staying proceedings on an indictment against the respondent charging him with six counts of indecently assaulting a male person and two counts of buggery. Four of the indecent assault counts and one buggery count were charged to have occurred between 19 December 1979 and 30 June 1980 and the other offences between 1 November 1980 and 18 December 1980. 2 The complainant named in all counts was the same person. He had been born on 19 December 1962 and therefore attained the age of eighteen years on the day after the latest date of any offence specified in the indictment. 3 In June 1984 significant changes in relevant law were effected by legislation and thereafter acts of sexual intimacy including buggery, between consenting adults (i.e. those over eighteen years of age) ceased to be punishable offences. 4 At the hearing below the learned trial judge was informed that the respondent would not deny that he and the complainant had engaged in sexual acts but would assert that the first of these occurred in 1981. His Honour was further told that, if the matter proceeded to trial, the issue, apart from the anticipated to be acknowledged acts, would be whether the complainant was under or over the age of eighteen when those acts occurred. The prosecutor accepted that if the complainant was not under that age, there should be verdicts of not guilty. The motion for stay was dealt with on the basis of this information as common ground between the Crown and the respondent. I will need to return to aspects of these matters but it is convenient first to deal with the appeal in terms of the contest as accepted by the parties. 5 Since 1987 the complainant has resided outside of Australia. He returned to give evidence at committal proceedings in May 1999. He testified that he had met the respondent at a club in Oxford Street Darlinghurst named Pedros. He later amended his evidence to nominate another club named Patches. He recalled that he was sixteen years of age at the time. Later he became aware that the respondent was operating a pinball parlour in Wollongong named Flashback. He came to frequent it. The respondent offered him a job supplying change for and performing minor repairs to the machines. He thought he started this employment in March 1980. Shortly after he commenced that work he was invited to spend a weekend at a farm (Tara) owned by the respondent. He accepted. He gave evidence of sexual activity there and on a holiday which they took to Airlie Beach in Queensland. Any activity in Queensland is outside of jurisdiction of New South Wales courts but the complainant recollected that the holiday took place in the winter or spring and it would be significant to establish whether he was referring to the seasons of 1980 or 1981. 6 It can be mentioned that cross examination of the complainant included exploration of the firmness of his memory for dates. He said that he returned to Australia for Christmas 1995 but agreed that it could possibly have been 1996. He was not sure when he last had sexual contact with the respondent and testified that it could have been 1983 or 1984, or any time up to 1987 when he left the country. 7 There was no evidence called by the prosecution which was corroborative of the complainant’s testimony. There were however a number of matters to which he referred which were potentially supportive of his version of the span of time in which the offences were alleged to have occurred. 8 The complainant said he was driven to Tara in a silver Alfa Romeo motor car; the respondent owned such a car but both the car and the property were owned during 1981 as well as 1980. A restaurant in Wollongong was in operation during both those years. The complainant remembered it as the venue of a celebration of his eighteenth birthday arranged by the respondent, prior to which there had been acts of sexual intimacy between them. Flashback Pinball Parlour was in operation over both the years mentioned. None of these references is definitive of date, save the birthday which does not of itself demonstrate whether events preceded or followed it. 9 The case of the respondent for a stay of proceedings was substantially based upon the impossibility of his now obtaining objective material which would verify his contention that the relevant events occurred in 1981. Counsel referred to the handicaps derived from the extreme delay between alleged offence and the charging and the unavailability of potential sources such as bank records and the like. It suffices however to refer to two matters adverted to by the learned trial judge. 10 The owner of Flashback was the Village Roadshow Corporation. His Honour found that employment records for 1980 and 1981 were no longer available. Similarly there were no longer available airline passenger manifests or accommodation details at the Queensland resort hotel which could demonstrate when the holiday was taken by the complainant and the respondent. 11 It is well established that a permanent stay should not be granted simply because witnesses or evidentiary material have become unavailable or lost: R v Adler unreported CCA 11 June 1992; R v Goldberg unreported CCA 23 February 1993; R v McCarthy unreported CCA 12 August 1994; R v Tolmie unreported CCA 7 December 1994; R v Hatfield [1999] NSWCCA 340. 12 Every case must nevertheless be determined in the context of its own facts and there is undoubted jurisdiction to stay proceedings to prevent unfair trial. Although the jurisdiction involves the exercise of discretion, the circumstances will usually have to be extreme for such relief to be given; Jago v District Court of New South Wales 1989 168 CLR 23; The Queen v Glennon 1992 173 CLR 592; R v Tolmie supra. 13   Were the employment or accommodation records or the passenger manifests accessible, it is reasonable to conclude that they would be determinative of the issue joined between the prosecution and the respondent - did the acts charged occur in 1980 or 1981? I am conscious that this does not exactly recite the dates in the indictment but it is a broadly convenient statement of the substantial issue. 14   The situation is to be distinguished from those where records simply might be of assistance to an accused. Of course, in this case the records may determine the issue in favour of the prosecutor but there is nothing to suggest that the chances are other than equal, either way. 15   Shillington DCJ concluded that there was no way in which a jury could be adequately instructed so as to avoid unfairness in the conduct of the trial. It was submitted by the Crown that it would suffice to draw the attention of the jury to the disadvantage suffered by the accused as a result of delay and consequent absence of corroborative record and to caution them to take this into account as a restraining influence against conviction. Such a direction would not adequately focus attention upon the essence of the issue namely whether there is a reasonable possibility that the records, if available, would determine the contested issue in favour of the accused. In the present circumstances, that question would have to be answered in the affirmative. The perception of unfairness is not altered by the necessity of a similar affirmative answer to the congruent question whether there is a reasonable possibility that such records would determine the contested issue in favour of the prosecution. 16   Subject to the next matter with which I will deal, it is not demonstrated that Shillington DCJ acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, has mistaken facts or has not taken into account some material consideration and his exercise of discretion on the issue presented for his decision was untainted: House v The King 1936 55 CLR 499. 17 I return to considerations concerning the agreed issue. The Court was informed, as was Shillington DCJ, that there was a policy of prosecution authorities in effect which was to refrain from charging offences of the type now under consideration occurring before June 1984 where, by reason of the ages of the participants, the activity had ceased to constitute an offence after that date. The concession that, if the complainant was not under the age of eighteen when the activity took place, he should be found not guilty apparently derived from it. 18 The Court raised the question whether the District Court was being asked to try a false issue in respect of the offences charged and the time spans particularized in the indictment. The law making punishable acts such as buggery, irrespective of the age of participants, was current and applicable in both 1980 and 1981. A trial judge could not direct a jury that, if a complainant had turned eighteen, an accused was not guilty of such offence. The implementation of policy cannot alter the law. Undoubtedly prosecutorial discretion may be exercised to refrain from charging in accordance with some adopted policy but once a matter is brought before a court it must be determined according to applicable law which, I repeat, could not involve acquittal of an offence of relevant type committed at any time before June 1984 simply because of the attainment of age by the participants. 19 The avoidance of potential trial of a false issue became dependent upon the dates specified in the various counts of the indictment being treated as having made time the essence of offence in each case. This would not ordinarily be so. In R v Dossi 1918 13 Cr.App R 158. Atkin J (as he then was) observed:

“From time immemorial a date specified in an indictment has never been a material matter unless it was actually an essential part of the alleged offence …….”

20   Although it is usual to insert the date or dates between which offences alleged to have been committed, time has been stated to be of the essence in four situations, namely:

(i) when an act is criminal only when done within a certain time of some other act or event;

(ii) when it is an essential ingredient of a particular offence that certain consequences should follow a particular act;

(iii) when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night; and

(iv) when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.

See Halsburys Laws of England 4th Edn Vol 11 para 207 n4. The present case is in none of those categories.

21   Can a prosecutor make time of the essence of offence simply by pleading and submitting to being bound by the time which has been pleaded? In my opinion, a prosecutor cannot. The present matter can be used as an example. Suppose the matter went to trial, I have already observed that the judge could not charge the jury contrary to law that the accused would be not guilty of offence if punishable activity occurred on or after 19 December 1980 (and, of course, before June 1984). Indeed, even if the jury expressly found that an offence occurred after that date (assuming proof of other ingredients) conviction would be inevitable. The circumstances of Dossi were almost parallel. Dossi was charged with indecent assault on March 19 and the jury announced “with regard to the date March 19, not guilty, but if the indictment covers other dates guilty”. The trial judge amended the date to read “on some day in March” but this was unnecessary. If a specified date were regarded as a defect in the indictment, it would in any event cured by verdict, its substance being that of an inessential averment. 22   It may be contemplated that in a particular case, the conduct of the trial and the content of evidence will lead a presiding judge to direct a jury that a Crown case is only made out if an offence occurred on some specific occasion or within an evidenced span of time. There has been no trial. The issue which has arisen is whether an immaterial averment can be made material by pleading. 23   The exclusive issue before this court is an appeal against an interlocutory order, the effect of which was to prevent any trial taking place at all. The evidence and the concessions made in the court below were directed to seeking that order for stay of proceedings and I would not embark upon analysis of other issues which may be hypothesized to arise upon the indictment until they can be discerned as having emerged in the context of evidence at trial. 24   My conclusion is that it was not open to the prosecutor, with or without the consent of the respondent, to limit the issues presented for trial upon indictment and the indictment is required to be tried by the Court according to the law in force and not in accordance with a selective restriction placed upon it by a party. 25   I emphasize that it is obvious that the conduct of the proceedings below and in this Court has been bona fide and that the matter now in focus was not adverted to until raised by the Court. I would add that nothing which I have stated affects the prosecutorial discretion to refrain from charging in any given case and the ambit of my opinion is confined to cases where the trial process has been invoked. As may be inferred from the foregoing, argument by the Crown on the merits was unsuccessful in the District Court and I would not uphold the appeal against that decision other than on the basis that I have elaborated. The presentation of the Crown appeal was not initially directed to that basis and a decision whether to continue proceedings remains within the scope of prosecution discretion. 26   The consequence of the finding of error is that the appeal must be allowed.

27   I propose that the appeal be allowed and the order permanently staying the presentation of indictment be quashed.

28   ADAMS J: I have read the judgment of Grove J in draft and do not need to repeat here his Honour’s account of the material circumstances. 29   The dates of the alleged offences as specified in the indictment, however, need to be stated. The complainant turned eighteen on 19 December 1980. The first five counts (four of indecent assault and one of buggery) in the indictment are alleged to have occurred between 19 December 1979 and 30 June 1980. The complainant’s statement makes it clear that the first allegedly occurred in March 1980, well into his seventeenth year. The three remaining counts (two of indecent assault and one of buggery) allegedly occurred between 1 November 1980 and 18 December 1980, the last allegedly one week before the complainant’s eighteenth birthday. The complainant’s statement unambiguously dates these events as occurring before his eighteenth birthday. The sexual acts allegedly committed here were in every relevant sense consented to and there is no suggestion, let alone evidence, that the complainant was anything other than a voluntary participant in them. The account of the first occasion commences in the following way -

“...I hopped in the shower. A few minutes later Rod came in and he was naked with a towel over his shoulder and asked if he could come in and I said, ‘Sure’...He got in and got wet and got a flannel and started washing me down...Then he started sucking my penis for a few minutes. Then I sucked his. We got out of the shower and went to his bedroom...We started making out, kissing, fondling.”

30   The conclusion of the learned District Court Judge was that certain crucial records were no longer available. His Honour relied in that regard upon evidence that had been adduced in the committal proceedings, the fact that the Crown was unable to produce any records of the kind nominated and the implicit concession by the Crown prosecutor in argument before his Honour that the records were, indeed, not available. The argument before this Court proceeded upon the explicit concession by the Crown prosecutor made in written submissions that the material records “no longer exist” and no point was taken that the findings below were incorrect. I am of the view that the learned District Court judge was not in error in his factual conclusions. It would be most unfair to determine the appeal against the respondent, who has not had an opportunity to submit otherwise in this Court, on the basis that those factual conclusions, conceded by the Crown to be correct, were unjustified. 31   Nor do I consider that, to provide a factual basis for his application for a stay in the circumstances of this case, the accused should have given evidence that no sexual activity occurred between the complainant and the appellant in 1980. The Crown did not advance a submission to this effect either in this Court or at first instance. The hearing and this appeal have proceeded upon the basis that this is, indeed, the defence case. With respect, I think that it would, again, be unfair to the respondent for this point to raised for the first time at this juncture. 32   Grove J has concluded that subject to the time element in the indictment, no appealable error was demonstrated in the reasons or order given below. For the reasons Grove J has given, I agree that, on the assumption that the time limits expressed in the indictment were essential to be proved, the orders below were not in error. Moreover, in my view, if this matter went to trial, it would be essential that the trial judge direct the jury that the accused must be acquitted if it is not satisfied beyond reasonable doubt unlawful sexual activity occurred before 18 December 1980. 33   If the indictment in this case (say, for buggery) did not specify either place or time, it is clear that the accused would have been entitled to require the Crown to particularise the occasion in question. The Crown alleges that the accused committed two such crimes on the particular occasions specified by the complainant, to which the counts in the indictment refer and which occurred, according to the indictment, between 19 December 1979 and 30 June 1980 and between 1 November 1980 and 18 December 1980. The question has arisen whether, even if the jury were satisfied that those occasions did not occur, if it were nevertheless satisfied that buggery occurred on other occasions after the specified dates (presumably, on the basis that the complainant was mistaken, despite his categorical assertions to the contrary) the accused could be convicted of those particular crimes. As the matter has come before us, the Crown does not allege that any such occasions occurred. 34   For the sake of explaining the terms of the indictment, the prosecutor both below and in this Court indicated that, as a result of the Crimes (Amendment) Act 1984 (the Amendment Act, which commenced on 8 June 1984) the Crown proposed to charge and call evidence only as to events alleged to have occurred prior to the complainant’s 18th birthday. The function of the dates in the present indictment, therefore, is deliberately to identify particular alleged acts which constitute the relevant crimes and to exclude all other occasions on which similar acts may have occurred constituting other crimes. The complainant’s evidence would be, if asked, that he and the respondent had a sexual relationship that continued for some years. Smart AJ considers that the dates in the indictment were not relevant for reasons other than identifying the incidents in question, such as establishing alibi or casting doubt upon the happening of the events. However, the defence case is that the respondent and the complainant had not met on the dates in question: in every relevant sense this raises alibi and doubts about the happening of the events. There is no relevant difference, in principle, between time and place: they are both merely the coordinates identifying an occasion. 35 As I understand it, the majority view is that, if the jury thought that the complainant was merely mistaken about dates but considered, nevertheless, that the offences described in the indictment occurred, then, even if the accused established irrefutably that he had not met the complainant on the dates alleged, they might nevertheless convict. That is to say, the jury might convict the accused if they were satisfied that the offences occurred at any time before repeal of the offence. If this is so, it follows that the indictment might be validly framed alleging the offences occurred at any time between 18 December 1980 and 7 June 1984 and the Crown could not be required to particularise any date in that period or, if it did, would not be bound by it. By parity of reasoning, the same position would arise as to place. Accordingly, the Crown would be entitled to prove any acts of indecency or anal intercourse, limited only by the number of charges in the indictment, that occurred within those dates in New South Wales and the accused would have to establish that he never had committed any such acts. This cannot be right. The trial could not possibly be fair. It follows that, if the respondent established his alibi for the period before 18 December 1980 or the jury was in doubt about it, he must be acquitted on the present indictment. 36 This is not a case where the indictment falls to be considered in the abstract, in which event it would be correct to say, of the buggery charges but not (for the reasons stated below) of the indecent assault charges, that the dates were not essential elements of the charges in the sense mentioned by Grove J, in particular because a time prescription was not part of the offence itself. Their essential character arises from the case as particularised by the Crown. In this sense the indictment resembles the information that was considered in Johnson v Miller (1937) 59 CLR 467 and must, in my view, be considered in light of the case particularised. 37 To my mind, the circumstances here are significantly different from those in R vDossi (1918) 13 Cr App R 158. In that case, a particular act on a particular occasion was charged in the indictment although the jury found, as it happened, that it occurred on a date different to that which was alleged. The Court of Criminal Appeal held that the conviction was nevertheless proper and that the date was immaterial. Here, however, the Crown wishes to try the accused for behaviour occurring on a particular occasion falling within specified dates and has eschewed any desire to prosecute him for any other crimes that may have occurred on other dates. This is not a case where one occasion is alleged but there is uncertainty as to its date. 38 In Regina v VHP (unreported, NSWCCA 7 July 1997), the complainant alleged that the offence had occurred on a particular date, although the indictment had specified a range of dates. The Court accepted that the jury could not have been satisfied that the offence occurred on the date specified by the complainant but the trial judge had given an equivocal direction which may have led them to think that they could nevertheless convict the appellant if they thought the offence had occurred within the range of dates specified in the indictment. Gleeson CJ (with whom the other members of the Court agreed) analysed the evidence to ascertain whether the complainant actually was professing the degree of certainty attributed to him and said (at 15) -

“As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.”

His Honour referred to the general rule as stated in Atkin J in R v Dossi (1918) 13 Cr App R 158 at 159-160, as cited by Grove J, but then went to say -

“There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above [citing, amongst other cases, The King v Dean [1932] NZLR 753 and R v Pfitzner (1976) 15 SASR 171].”

39   It seems to me that, if the proper conclusion was that the complainant’s evidence was as specific as was claimed in the trial, accepted by the trial judge and conceded by the Crown prosecutor on appeal, the Court would have unhesitatingly upheld the appeal upon the ground that that date was vital. The Chief Justice pointed out that, although the Court was not bound by the Crown prosecutor’s concession, it should be accepted and acted upon because it was carefully considered, involved considerations of fairness to the accused, related to evidence at first instance, in the assessment of which the Court was at something of a disadvantage, and seemed to accord more with the trial judge’s appreciation of the situation than the alternative view. It was not suggested that the Crown was not bound, at the least, by the dates specified in the indictment. 40   As I have said, if the dates here were regarded as immaterial, the respondent here would at least be entitled to know the particular occasions upon which he was being faced with an allegation of a criminal act. This case has been argued by both sides upon the assumption that over a number of years, on the Crown case before as well as after, and on the defence case only after, 18 December 1980, there were a number of occasions of sexual acts capable at the time of comprising criminal offences. So far as the complainant is concerned, it may be assumed that he would give evidence, if asked, of sexual acts performed between the accused and himself not only before but also after 18 December 1980. In the committal proceedings he gave evidence, which exhibited some uncertainty, that he and the respondent visited each other and had sexual relations with varying frequency until 1982 (when, it seems, the complainant “was going out with someone else”) or, perhaps, 1987. However, such evidence would not be admissible (for irrelevance) in this trial since it would also be the complainant’s evidence, and the Crown case, that those acts were additional to the crimes charged in the indictment. 41   As the indictment presently stands, if the dates are immaterial, it would be impossible to tell whether acts said by the complainant to have occurred in 1981 or later were the acts alleged in the indictment. Accordingly, although each count in the indictment charged one offence only (as is essential in law: see Johnson v Miller (1937) 59 CLR 467), the evidence would reveal a multiplicity of offences with insufficient particulars to identify any one of them as the offence with which the accused was charged in any particular count. In R vS (1989) 45 A Crim R 221, Dawson J said (at 226-7) -

“As I have said, the three counts in the indictment were framed in a permissible way. Each charged only one offence and gave rise to no duplicity. Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this, there was what has been called a ‘latent ambiguity’, in each of the counts: see Johnson v Miller (1937) 59 CLR 467 per Dixon J (at 486). That ambiguity required correction if the applicant was to have a fair trial.
“The material before us does not reveal whether the ambiguity was apparent by reference to the depositions at the time that the applicant made the application for particulars. If it was, it may have been appropriate for the trial judge to have ordered that particulars be given identifying the events as charged, if not by reference to time, by reference to other distinguishing features. If at that stage, such a course was inappropriate and it was necessary for the prosecution to call its evidence for the precise nature of the defect in the proceedings to emerge, the prosecution ought to have been required as soon as the defect became apparent to elect by indicating which of the offences revealed by the evidence were the offences charged.”

It follows that, one way or another, the offences charged must be particularised since otherwise the particular occasions cannot be identified to the extent essential to enable a fair trial of the accused.

42   The Crown case here is that the crimes alleged occurred prior to 18 December 1980. If the trial were permitted to proceed, the accused by his plea would join issue as to whether those, and only those, crimes occurred or not. In the circumstances of this case, if the jury were satisfied that sexual acts otherwise within the description contained in the relevant counts of the indictment occurred, but after 18 December 1980, it would follow that those acts were not those with which the accused was charged and, accordingly, to which he had not pleaded and upon which they could not return verdicts one way or the other. In my opinion, the only verdict which they could give, if they were not satisfied beyond reasonable doubt that the crime alleged occurred between the dates specified in the indictment, is to return a verdict of not guilty. 43   In R v Pfitzner (1976) 15 SASR 171, Bray CJ said (at 185) -

“Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it: cf Page v Butcher [1957] SASR 165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson [1970] 1 WLR 142; [1970] 1 All ER 12; (1970) 54 Cr App R 38.”

44   In this case, the accused’s defence, as foreshadowed, is that he had not met the complainant prior to 18 December 1980. To take count one by way of example, it is consistent with this defence that the accused did have anal intercourse with the complainant on the first occasion that the complainant went to the accused’s farm at Kangaroo Valley, if, and only if, that occurred after 18 December 1980, so that, if the occasion identified by the Crown is defined without reference to dates, the accused may have no defence. However, the Crown has chosen not to allege and will not seek to prove that the accused committed anal intercourse with the complainant on the first occasion that the complainant visited him at his farm at any time but only if that event occurred prior to 18 December 1980, indeed between 19 December 1979 and 30 June 1980. 45   There have been many cases in which it has been held in this Court that the conduct by the Crown of its case has made the time specified by the complainant in evidence an element of the offence in the particular circumstances: see, for example, in addition to Regina v VHP (unreported NSWCCA 7 July 1997), Regina v Cox [1999] NSWCCA 62, Regina v Hughes [2000] NSWCCA 3. In those cases, there was some uncertainty as to when the occasions giving rise to the offences occurred but the trials proceeded upon the basis that one or more particular dates identified the occasions charged. They were not cases where the legal elements of the crime prescribed any particular time frame. Here, there is no uncertainty about time. The Crown case is, following in this respect the complainant’s expected evidence, that the offences occurred after his seventeenth and before his eighteenth birthday. The conduct by the Crown which, it has been held, renders the dates alleged in the charge an essential item of proof, is not confined, in my view, to those cases where the dates crystallise during the course of evidence: the prosecution case may be so conducted from the beginning. 46 In The King v Dean (1932) NZLR 753, the accused was charged with unlawfully carnally knowing a girl under sixteen in an indictment containing five counts each of which charged the commission of an offence “on or about” a specific date. The prosecutrix, who was the only witness as to the dates of the offences, in respect of three of them, possibly all, swore positively that they were committed on the specific dates mentioned in the indictment. The defence was an alibi in each case. The jury was directed that proof of the exact dates was not material and that proof that the offences occurred within a reasonable time of the dates mentioned in the indictments was sufficient, relying on R v Dossi (supra). Myer CJ considered that there was “a very important distinction” between Dossi and the instant case, noting that the prosecutrix in the case under appeal, alleged specific dates in the evidence and specific alibis were relied on by the accused. His Honour went on to say (at 761) -

“It is to be observed, however, that the girl did not speak of any acts of intercourse - I refer particularly to January - except on the specific dates to which she swore. If she had said that intercourse had taken place a great many times during January and in the neighbourhood of the specific dates mentioned, and, under proper direction, the jury had found a verdict of ‘Guilty’, the observations in R. v. Dossi (1) might apply; but where a girl swears positively that an offence was committed on a specific date, and only on that date, if the prisoner is able to establish an alibi as to that date to the satisfaction of the jury, then, unless, at all events, it is shown that the girl has made a mistake in fixing the date, I do not see how a direction that the jury may convict the prisoner of an offence on another date can be justified. All that Mr Justice Atkin says in R. v. Dossi (1) is that a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. True, the date specified in the indictment is not material, but if it is sworn to that the alleged offence took place on a specific date and there is no evidence that other offences took place in the neighbourhood of that date it seems to me that the date sworn to does become essential. In other words, it is the date proved that is material, not the date specified in the indictment.”

The other judges of the court, Ostler, Reed, Adams, and Smith JJ, said (at 763) -

“In this case the dates specified in the indictment in the last three counts had become an essential part of the offences charged therein. The times had been made of the essence of the offences by the evidence. Where a female makes a criminal sexual charge against a male, but cannot recall the exact date of the alleged offence, although a date should be specified in the indictment, and although it is the duty of the Crown to ascertain and state that date as exactly as possible, then the rule applies, and (if the charge is laid within nine months) the exact date is not an essential part of the offence, even though the exact date has been specified in the indictment. But whether the charge in such an indictment is laid on an exact date or ‘on or about’ a date, where the whole of the evidence is that the offence was committed on that date and on no other, then the date has been made an essential part of the offence. If an alibi on that particular date is set up in defence, it is a misdirection for the presiding Judge to inform the jury that they may accept the alibi and yet convict. The proper direction to the jury is that they cannot convict unless they reject the alibi as being false or mistaken. If that were not the law, then an innocent man, who relying on the exact date sworn to the prosecutrix, and brought evidence proving beyond all doubt that he was elsewhere on that date would be liable to be convicted notwithstanding such proof, and although deprived of the opportunity of proving an alibi on any other date on which the jury might be invited to hold that the offence was committed.”

47   It seems to me that this case is in all essential respects comparable to that in Dean. The specific evidence to be adduced by the Crown prosecutor from the witness is limited to acts alleged to have occurred between the dates specified in the indictment. It would be entirely inadmissible, in my view, for the prosecutor to lead evidence of sexual behaviour which occurred outside those dates either in the Crown case or in cross-examination of the respondent, should he give evidence. Accordingly, at the end of the day, the jury would be left with a prosecution case confined to the period before 18 December 1980, with no evidence of other sexual acts covered by the counts in the indictment and, if the accused had proved he had not met the complainant until he was eighteen, or this was reasonably possible on the evidence, an acquittal would be inevitable. The occasion for a direction that the jury could regard the dates specified in the indictment as immaterial would not arise, since no evidence raising the possibility that the offences occurred other than when the complainant asserted was the fact would have been adduced. 48   A direction that the dates in the indictment were immaterial would be wrong, in my opinion, not only for the same reasons as those expressed in Dean, but because the jury would then be invited to have regard to any offences fitting the description in the indictment occurring at any time. The direction, even if it allowed consideration of occasions not falling within the dates in the indictment must specify some temporal limit or other. This is implicit in all the cases to which I have referred, even Dossi. If the accused had given evidence confined to his not meeting the complainant until 1981, he could not be asked about any events that occurred after 17 December 1980 and, if asked about matters that might tend to incriminate him in respect of that time, could refuse to answer. There would, therefore, be no evidentiary basis for fixing any limit on the possible dates of an offence, though 8 June 1984, the date of repeal of the offences, would provide a legal limit. 49   There is another substantial practical difficulty facing the Director of Public Prosecutions in the conduct of a trial in this case in which the dates specified in the indictment were not vital, having regard to the decision of this Court that the lapse of time combined with the significant prejudice to the accused in establishing that he had no relationship with the complainant prior to 18 December 1980 rendered unfair a trial of offences alleged to have occurred before that date. It necessarily follows that it would be unfair for the Crown to seek to put forward the case that the accused did indeed have illicit sexual relations with the complainant before then. The trial, accordingly, must be confined to the issue whether the unlawful acts occurred after 18 December 1980. It would obviously be proper, indeed, necessary, for the indictment to be changed to reflect that case. The consequence would be that the Director would be prosecuting an offence which, for good policy reasons, he did not wish to prosecute. That indictment is not the present indictment. This Court has not been asked to consider an indictment in any form in which such different dates are specified. 50   The Crown here has declined to amend the indictment to identify other dates and an indictment without dates must be particularised for the reasons I have already mentioned. A refusal to do so must result in quashing the indictment in accordance with Johnson v Miller (supra) and R v S (supra). Thus, whether the proceedings be stayed or the indictment be quashed, a trial cannot be conducted of the indictment in its present form. 51 There are other matters of significance which also lead to the conclusion that this Court should not allow the present appeal. 52 Section 79 of the Crimes Act 1900 (the Act) as it stood in 1981, when the complainant was aged eighteen and hence an adult, was in the following form -

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

The form of the indictment in Archbold’s Criminal Pleading &c for many years up to and including the 21st edition (1910) was as follows -

“The jurors for our lady the Queen upon their oath present, that JS …in and upon one JN feloniously did make an assault, and then feloniously, wickedly, and against the order of nature, had a venereal affair with the said JN, and then feloniously carnally knew him the said JN, and then feloniously wickedly and against the order of nature with the said JN did commit and perpetrate that detestable and abominable crime of buggery (not to be named among Christians); against the form of the statute &c.”


This certainly captured the spirit, if it did not confine itself to the letter, of the law. By 1956 the English provision omitted the invective “abominable” (see s12, Sexual Offences Act 1956), although the 36th edition of Archbold (1966), the last before the offence was repealed in 1967, described the offence in the text as “horrible” (see para 2969).

Subject to the application of s 61N and s 61O of the Act (discussed below), consensual sexual relations in private between adults not in a relevant familial relationship have not been crimes in this State since the enactment of the Amendment Act . Section 79, as it stood before 8 June 1984, prohibited anal intercourse not only between males but also by a man with a woman, consent being no defence, age being irrelevant and both parties being equally guilty: see, for example, Hamilton & Addison Criminal Law & Procedure 6th edition (1956), citing R v McDonald 1 SCRNS 173. (This view merely repeated the textbooks and is not controversial.) Section 78K, which superseded the old s 79, created an offence of homosexual intercourse between males, one of whom is less than eighteen years of age. Consent is irrelevant.

53 The appellant is also charged with offences under s 81 of the Act as it stood in 1980. Section 81, before its repeal in 1984, provided -

“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.”

It is clear that, although the indecent assault may be committed by a woman, it must have been against the will of the male: R v Mason (1969) Cr App R 12, where it was held that an adult woman who had frequent consensual intercourse with boys aged fourteen or fifteen, did not commit any indecent assault because, although consent was not a defence, there was no act which occurred against their will. Rv Hare [1934] 1 KB 354, where a woman who induced a boy under sixteen years of age to have sexual intercourse with her, and who contracted gonorrhoea, was convicted of the offence, was distinguished as having dealt only with the question whether a woman could commit the offence. The position of girls was different. In R v McCormack (1969) 2 QB 442, the Court of Appeal held that a man who inserted his finger into the vagina of a girl aged fifteen years, who fully consented, was guilty of indecent assault, however willing she was. Mason ( supra ) was cited in argument but not referred to in the judgment. That the indecent assault had to be contrary to the will of the other, where the parties were male was decided in R v Wollaston [1872] 12 CCC 180, even where, being minors, the victims could not consent; see also, Beal v Kelley (1951) Cr App R 128).

54   So far as men are concerned, in New South Wales, the word “assault” has no more significance than “act” since it is not necessary for the prosecution, in order to prove the offence, to show that there was any element of compulsion, threat or hostility on the part of the accused. In R v B & L (1954) 71 WN (NSW) 138, which involved two adult men, discovered in flagrante delicto by police torchlight at night under some bushes in a park, the Court of Criminal Appeal held that any indecent “association between...males”, even following upon mutual agreement, is prohibited by the section. Though the “association” was arguably in a public place, this was not said to be relevant. The English cases were distinguished on the ground that the English legislation did not specifically state that the “assault” was nevertheless a crime “with or without consent” even though the judgments dealt with precisely that issue under the common law. It must be conceded that it is difficult to discern the relevant difference between an act that is against the will and one to which consent cannot legally be given. However, the New South Wales refusal to give the word “assault” (after all, a legal term) its long standing meaning, which must have been well known to the legislature, seems even more tortured. 55   Section 80A was inserted into the Act, in 1955. It made it an offence for a male to commit, or be party, either privately or publicly, to the commission of, an indecent act with another male of any age or procure or attempt to procure any such commission and providing a maximum penalty of two years. There was no reference to assault. This section was also repealed in 1984. Prosecutions of adults under these provisions not infrequently resulted in substantial gaol sentences. 56   The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety (Harkin (1989) 38 A Crim R 296) or an affront to modesty (Crowe v Graham (1968) 121 CLR 375; [1968] ALR 524) or would offend the ordinary modesty of the average person (Moloney v Mercer [1971] 2 NSWLR 207). In R v Manson and anor (unreported NSWCCA 1993) Gleeson CJ said -

“An indecent act is one which right-minded persons would consider to be contrary to community standards of decency. In [ Purves v Inglis (1915) 34 NZLR 1051 at 1053]… the following was said: ‘The word indecent has no definite legal meaning and it must be taken therefore in its modern and popular affectation. In the Standard Dictionary indecent is defined to be anything that is unbecoming or offensive to common propriety.’ If, as in the present case [a photograph said to have been taken for political purposes of a naked eleven year old girl], the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion.”

57 Accordingly, if the language of s 81 was given its ordinary meaning, all sexual behaviour committed on an adult male whether by a male or female was capable, in law, of being criminal even if by mutual agreement, depending what might be thought to constitute community standards. In respect of women, however, prosecutions were confined to sexual behaviour with boys. Whilst there is no rule of law that sexual acts in private between adult males must be legally indecent, this is assumed to be so. Conversely, it is assumed that sexual acts between men and women in private are not relevantly indecent. The section does not, in terms, make any such distinction but, of course, it has never been either understood or applied according to its ordinary meaning. The different assumptions applying to homosexual and heterosexual relations demonstrate the homophobic considerations which were implicit in the law as interpreted in this State. It is, perhaps, ironic that, so far as persons over the age of sixteen years were concerned, only sexual relations between women, if consensual, could not be criminal even if they offended community standards. 58 The potential reach of s 81 of the Act was limited by the implicit assumptions which I have mentioned. If enforced according to its terms, it could not have long survived. It did so only because it was taken to apply only to sexual acts committed on children, sexual acts which were not consented to and, of course, homosexuals. In the first and second cases, prosecution was justified by the reasonable requirement of protection but in the third case the only reason was prejudice. 59 Section 81 of the Act was superseded, in part, by s 78Q which created the offence of “gross indecency” committed by a male person with or towards another male person who is under the age of eighteen years but provided a maximum penalty of two years imprisonment. Section 61N(2) of the Act makes it a crime punishable by up to eighteen months imprisonment where any person commits or incites an “act of indecency” with or towards another aged sixteen years or more. Thus, even now, adults who, for example, consensually masturbate in each other’s presence in private commit a crime if “right minded” persons might consider their behaviour to be contrary to accepted community standards (to accept the formulation in Manson, supra): Saraswati v The Queen (1991) 172 CLR 1. This provision might well comprehend consensual adult lesbian sexual behaviour, although it is virtually impossible to suppose that it would be prosecuted. Section 61O(1A) and (3)(a), of the Act have the combined effect of increasing the penalty for this behaviour to three years where more than two persons are involved. Different provisions apply to victims who are under the authority of the offender or have a serious physical or intellectual disability. 60 Amongst the changes to the Act brought about by the Amendment Act, consensual sexual relations with persons under the age of sixteen years became criminal offences whether the person committing the acts is male or female. However, if both the parties are male, those acts are nevertheless a crime (subject, where the acts fall short of anal or oral intercourse, to the meaning of “gross indecency”, as to which, see below) where one or other of them is sixteen years old but has not reached the age of eighteen years. 61 This treatment by the criminal law of sexual behaviour has been criticised as discriminatory upon the basis that it is apparently acceptable that a boy over the age of sixteen may have consensual sexual relations with a woman (even if a teacher), however induced, but must be protected from sexual intercourse with any man. Moreover, consensual sexual relations by a male with a sixteen or seventeen year old female are not criminal (unless, she being sixteen, he is a teacher, father or step-father: s 73 and subject to the application of s 61N and s 61O discussed above) but, if done with a male of the same age, is always criminal. This exposes the irrelevance of the argument (which is, at all events, tendentious) that males between sixteen and eighteen are less relevantly mature than females of that age. If it is thought that such males do not need the protection of the criminal law from females, what is the basis for thinking that they need protection from males? What is really being said here is that, even where a male aged sixteen or seventeen is induced or seduced to undertake sexual behaviour, then, if he consents in law, he suffers no harm if the other person is female but only if the other person be male. Indeed, such is the prejudice that, if the other party is female, many would regard the male as fortunate and as having proved his manhood. Even where he is subjected to sexual behaviour at the instance of a woman who is in authority, no criminal offence is committed. If it be appropriate to punish by the criminal law consensual sexual relations procured improperly by adults on persons aged sixteen or seventeen years, the circumstances of the impropriety can and should be specified clearly and should not distinguish between males and females. (See the Report of the Royal Commission into the Police Service (1997) by the Hon Justice JRT Wood AO, especially Vol V, Ch 14 which, if I may say so with respect, is comprehensive and persuasive.) 62 By s 66C of the Act, sexual intercourse with a child aged between ten and sixteen years (where the offender is not in a position of authority) is punishable by up to eight years imprisonment. Having regard to the provisions of s 78Q, however, this does not, it seems, apply where both persons involved are male and anal or oral intercourse occurs. Where that is the case, the maximum penalty is increased by two years to ten years. 63 If the indecency of a sexual act varies according to what a “right-minded” person might consider is the relevant community standard, the issue arises whether the admittedly consensual sexual behaviour (not being anal intercourse) alleged in the present case is criminal under s 81 (or for that matter, s 81A) of the Act. Drawing the distinction made by Gleeson CJ in Manson (cited above), the questions requiring determination are whether it is capable of being indecent and, if so, whether, in fact, it was. 64   The old authorities, such as R v B & L, supra, which simply assumed but did not decide that the element of indecency was established merely by evidence of sexual acts in private between males (without the elements of minority or lack of consent) cannot, in my opinion, still be regarded as expressing the law. Nor, in my view, did they correctly express the law in 1980. 65   The textbooks, such as Watson & Purnell, Criminal Law in New South Wales (1970, Law Book Co Ltd) do not advert to sexual acts committed by a female upon an adult male. 66   In Potter v Minahan (1908) 7 CLR 277, the notorious dictation test (said by the Attorney General of New South Wales to have been designed primarily to preserve “white” Australia from “Asiatics”: R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 239) was used to exclude the appellant who was born in Australia of a Chinese father, from returning from abroad. O’Connor J quoted with approval the following passage from Maxwell of Statutes, 4th ed, p 121 -

“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of the law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

67   I have not been able to find a case (and I very much doubt that there is one) in which the question whether there is a different standard of decency for homosexuals or heterosexuals has been considered. Since the precise question is devoid of authority and those decisions which assume that homosexual relations are ipso facto indecent predate by a considerable margin the developments of both community standards and the law concerning discrimination, (of which, in New South Wales, the exemplar may be the Anti-Discrimination Act 1975), I consider that the interpretation of s 81, so far as it might literally apply to consensual adult homosexual relations in private, should be reconsidered and determined by reference to first principles. 68 In my opinion, the decency or otherwise of homosexual relations cannot, in law, be any different from those of heterosexual relations. Any such distinction necessarily depends upon arbitrary and capricious considerations which could not be accepted unless the legislation explicitly required it. Moreover, the distinction offends the fundamental principle that all citizens are equal in sight of the law and is an arbitrary interference with privacy. Since consensual heterosexual relations between adults have never been and cannot be relevantly indecent, it follows that consensual homosexual relations between adults cannot be indecent within the meaning of s 81 of the Act. 69 In R v Suckling [1999] NSWCCA 36, this Court considered the application of R v Swaffield and Pavic (1997-98) 151 ALR 98 where the High Court of Australia applied a community standards test to the admissibility of evidence obtained by subterfuge. The Court pointed out -

“that the reference by the High Court, as by this Court, to community standards in this respect is not to any notion of populist public opinion. Rather, this refers to community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement.”

70   The meaning of community standards, in any particular legal context, is a question of law; whether the application to the circumstances of a particular case produces a particular result may be regarded as a matter of fact. Community standards in this context are not the same as popular opinion or vulgar prejudice: they are the expression of standards that reflect the fundamental values of our society so far as the application of the criminal law is concerned, including, as particularly relevant here, the principle of equality before the law or equal justice. 71   In Siganto v The Queen (1998) 159 ALR 94, at 105, Gaudron J described the principle of equal justice as of “fundamental importance”, in referring to one of its consequences, namely, parity in sentencing. The requirement of consistency in punishment was said by Mason J in Lowe v R (1984) 154 CLR 606 at 610 to be “a reflection of the notion of equal justice”. In Leeth v The Commonwealth of Australia (1992) 174 CLR 455, Deane and Toohey JJ said (at 485-6, 487) -

“The doctrine of legal equality is in the forefront of ...[every fundamental constitutional doctrine existing and fully recognized at the time the Constitution was passed]. It has two distinct but related aspects. The first is the subjection of all persons to the law...The second involves the underlying or inherent theoretical equality of all persons under the law and before the courts. (See, eg, Holdsworth, A History of English Law (1938) vol 10 p 649.) The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of the conduct which it proscribes, punishes or penalizes. It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic equality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic precept of the administration of justice under our system of government...
“At the heart of...[the obligation of a court to act judicially] is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds.”

Gaudron J said (at 502) -

“All are equal before the law. And the concept of equal justice- a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such - is fundamental to the judicial process.”

Their Honours dissented on the constitutionality of s 4(1) of the Commonwealth Prisoners Act 1967 (Cth), and it may be doubted whether the doctrine of equality can be found in the Constitution. However, we are not here dealing with a constitutional question but, primarily, with the nature of community standards.

72   In Kruger & ors v The Commonwealth (1997) 146 ALR 126 (at 157-8), Dawson J (with whom McHugh J agreed on this point) disagreed with the views expressed in the passages above cited, concluding that the “common law...provides no foundation for a doctrine of ...substantive equality”. Toohey J emphatically restated his earlier view (146 ALR at 179-182). Gaudron J also adhered to her earlier view, but pointed out that “there is a limited constitutional guarantee of equality before the courts, not an immunity from discriminatory laws” (146 ALR at 194). It is implicit in her Honour’s judgment, however, that laws will not be given a discriminatory effect unless this is required expressly or by necessary implication. Gummow J considered that there was no Constitutional doctrine of general equality (146 ALR at 227) and said that “caution is required in dealing with what was said by nineteenth century English legal writers as to equality of persons under or before the law” but it seems to me that his Honour’s observation was aimed at statements of suggested constitutional significance (146 ALR at 228). Brennan CJ did not express an opinion whether there was a general common law doctrine of equality. 73 It seems to me that the doctrine of equal justice, in the sense in which I refer to it, is a fundamental element of the rule of law, if not as a substantive right, then as necessarily informing the content and application of the common law, including the rules applying to the interpretation of statutes. At the very least, it would require quite explicit legislative language to qualify its otherwise appropriate application. In citing the principle of equality, I do not mean to do more than to note its importance as a fundamental element of community standards, though it may have a wider significance. The use by s 81 of the Act of the notion of indecency as an essential element of the crime for which it provides, demonstrates the potential for change over time in the applicability of the provision to particular behaviour. It follows that, in principle, no case such as R v B & L can have as its ratio decidendi a determination that adult homosexual behaviour is ipso facto indecent. Thus, the conventional assumptions current when R v B & L was decided cannot be regarded as authoritative at a later time. 74   In Dietrich v The Queen (1992) 177 CLR 293, Brennan J said (at 318) -

“I do not doubt that the Courts of this country, and especially this Court as the ultimate court of appeal, acting within their respective jurisdictions and in response to the exigencies of particular cases, create new rules of the common law. The common law has been created by the Courts and the genius of the common law system consists in the ability of the Courts to mould the law to correspond with the contemporary values of society. Had the Courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time (adaptation from Francis Bacon, The Advancement of Learning , (1605), Bk 2, fol.10b). In modern times, the function of the Courts in developing the common law has been freely acknowledged (see, for example, Myers v Director of Public Prosecutions (1965) AC 1001, per Lord Reid at 1021; Mutual Life and Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556, per Barwick C.J. at 563; Geelong Harbour Trust Commissioners v Gibbs Bright and Co (1974) AC 810, per Lord Diplock at 820-821). The reluctance of the Courts in earlier times to acknowledge that function was due in part to the theory that it was the exclusive function of the Legislature to keep the law in a serviceable state. But Legislatures have disappointed the theorists and the Courts have been left with a substantial part of the responsibility for keeping the law in a serviceable state, a function which calls for consideration of the contemporary values of the community. Where a common law rule requires some expansion or modification in order to operate more fairly or efficiently, this Court will modify the rule provided no injustice is done thereby (as in L Shaddock and Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225, or Hawkins v. Clayton (1988) 164 CLR 539 or David Securities Pty Ltd v Commonwealth Bank of Australia (unreported, 7 October 1992). And, in those exceptional cases where a rule of the common law produces a manifest injustice, this Court will change the rule so as to avoid perpetuating the injustice (as in Mabo v Queensland (1992) 66 ALJR 408; 107 ALR 1).

“The contemporary values which justify judicial development of the law are not the transient notions which emerge in reaction to a particular event or which are inspired by a publicity campaign conducted by an interest group. They are the relatively permanent values of the Australian community.”

75   In Jago v Judges of District Court of NSW (1988) 12 NSWLR 558, Kirby P thought that “a relevant source of guidance in the statement of the common law of this State maybe the modern statements of human rights found in international instruments, prepared by experts, adopted by organs of the United nations, ratified by Australia and now part of international law” (12 NSWLR at 569; see also Dietrich, supra, per Mason CJ and McHugh JJ, Brennan J, who said that Art 14(3)(d) of the International Covenant On Civil and Political Rights “is a legitimate influence on the development of the common law”, and Toohey J at 177 CLR at 306, 321, 360; and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287, 315). To adapt his Honour’s elaboration of this point, such statements must be at least as relevant to a search for the content of contemporary community standards as to the possible inherent indecency of homosexual relations, as the unexamined social assumptions of judges who were born and largely bred in the nineteenth century and before. 76 Articles 1, 2, 7, and 12 of the Universal Declaration of Human Rights (1948) respectively state (in part): “All human beings are born free and equal in dignity and human rights”; “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex...”; “All are equal before the law and are entitled without any discrimination to equal protection of the law...”; “No one shall be subjected to arbitrary interference with his privacy...nor to attacks upon his honour and reputation”. The International Covenant on Economic, Social and Cultural Rights (1966, adopted by Australia 1976) refers in its preamble to “the inherent dignity and...equal and inalienable rights of all members of the human family” and notes the undertakings by the Parties “to guarantee that the rights enunciated by the Covenant will be exercised without discrimination of any kind” (Art 2), ensure the equal rights of men and women (Art 3), and subject rights provided by the State “only to such limitations as are determined by law only in so far as this may be compatible with the nature of those rights and solely for the purpose of promoting the general welfare in a democratic society”; see also the International Covenant on Civil and Political Rights (1966, adopted by Australia 1980), especially the preamble, referring to the “inherent dignity” of all persons, Art 2, excluding discrimination, Art 3, requiring equality between men and women, Art 17, prohibiting arbitrary interference with privacy (and see below), Art 22, requiring freedom of association and forbidding restrictions unless (inter alia) to protect public morals, and Art 26 declaring that all persons are equal before the law and prohibiting discrimination on any ground such as sex or other status. Although there is no reference, in terms, to discrimination by the criminal law against homosexuals, I consider that it is clear that a law which distinguished between the heterosexual and homosexual behaviour of adults for the purpose of visiting punitive consequences on the latter is contrary to the principles enunciated in these instruments, a fortiori when the content of community standards is being considered in the application of such a law in the context of a repeal of legislation that permitted such consequences and its replacement by legislation that applied only to minors. 77   In Rodney Croome & anor v Tasmania (1997) 191 CLR 119, the applicants sought declarations that ss 122 and 123 of the Criminal Code (Tasmania) were inconsistent with s 4 of the Human Rights (Sexual Conduct) Act 1994 (the Commonwealth Act) which provided -

“Arbitrary interferences with privacy
(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights .
(2) For the purposes of this section, an adult is a person who is 18 years old or more.”

Article 17 of the Covenant provides -


“1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

“2 Everyone has the right to the protection of the law against such interference or attacks.”

78 Section 122 of the Code made sodomy a criminal offence, whilst s 123 punished any male who, whether in public or private, committed an indecent assault upon or other act of gross indecency with another male. The High Court dismissed the application of the State of Tasmania to set aside the writ, holding that the applicants had standing to seek the declarations although there was no pending or likely prosecution. It was not sought to be argued that the Commonwealth legislation had no possible application to the offences in question. It was a necessary assumption of the decision that it did so. Section 81 of the Act applies even if the relevant acts occurred in private. The Commonwealth Act does not directly make the relevant behaviour lawful. It prohibits the privacy of sexual conduct involving only consenting adults from being subjected to arbitrary interference. 79 Because the possibility of a trial for conduct falling within the Commonwealth Act arises only if the jury might be invited to convict the respondent even if it had a reasonable doubt that the alleged indecent assaults occurred prior to December 1980, and both parties submitted to the contrary, the applicability of the Commonwealth Act was not raised in argument before us. There was no occasion, therefore, for notice under s 78B of the Judiciary Act 1903 to be given. Accordingly, it would not be appropriate for me to express more than a tentative view about the application of the Commonwealth Act in the present circumstances. However, because this legislation is relevant apart from its effect under s 109 of the Constitution, it is necessary, in my opinion, to consider the nature and applicability of its provisions. 80   Prima facie, the prohibition or punishment of private sexual conduct involving consenting adults and no other rationally relevant feature demonstrating culpability, for example, incestuous relations, contravenes s 4 of the Commonwealth Act. In so far as s 30 of the Interpretation Act 1987 is concerned, which is the essential foundation for the continuing effect of ss 79 and 81 of the Act, I think that it may well be inconsistent to that extent with the Commonwealth Act. (Sections 8 and 8A of the Acts Interpretation Act 1901 (Cth) are irrelevant to a consideration of any possible continuing liability as they deal only with the effects of repeal of a Commonwealth Act; the Commonwealth Act does not repeal in any sense State legislation: it prevails by virtue of s 109 of the Constitution.) The language of s 4 is particularly apt to a trial concerning the relevant conduct. This is especially so having regard to its obvious remedial purpose. At all events, it is clearly directed to effect the reform it embodies so far as all relevant sexual conduct which might be the subject of proceedings is concerned, whenever that sexual conduct occurred. The Commonwealth Act is not aimed at the conduct of the person but at the exercise by the state of its powers of coercion under the criminal law and prohibits any such action occurring after its commencement. In this case, at least, the preferring of a charge in respect of the relevant conduct and the conduct of a trial would seem to be forbidden, subject to the meaning that should be attributed to “arbitrary”. (For reasons that are apparent in this judgment, I consider that the prosecution of sexual behaviour involving adult men that is not criminal if performed by women or heterosexuals is arbitrary in the sense that it expresses mere capricious prejudice.) So viewed, the Commonwealth Act would not be applied retrospectively. However, even if this interpretation might be considered to apply the Act retrospectively, in my opinion, having regard to the explicit and peremptory language of the Commonwealth Act and its manifest purpose, this is immaterial.

81 At the very least, the Commonwealth Act is a most significant matter to be taken into account in determining the content, in law, of the community standard implicit in the element of indecency required to prove an offence under s 81 of the Act.

82 In my view, there is now no distinction, for the purposes of the criminal law, between the concept of indecency as it may be found in heterosexual and homosexual behaviour. That standard must, as it seems to me, apply in the instant trial, if there were to be one, even though the conduct in question here occurred in 1981. It would be strange, to say the least, if the Courts are obliged to apply outdated and offensive notions which have been repudiated because of their conflict with fundamental human rights and the appropriate scope of the criminal law (unless, of course, they are bound to do so by specific and unambiguous legislative mandate) merely because the allegations concerned acts which occurred twenty years ago when (so the argument goes) those notions may have been current. Just as inappropriate would be a direction that invited a jury to consider, not their views of contemporary standards, but their understanding of community standards as they stood in 1981. 83 These considerations, which are both theoretical and practical, persuade me that it is inappropriate to inquire into the character of community standards as they stood in 1980 or 1981. After all, s 81 was repealed in June 1984, only shortly after the events in issue here and the new offence applied only to minors, where the criminal behaviour was required to be grossly, as distinct from simply, indecent. At all events, although community attitudes have no doubt evolved over the ensuing twenty years, I would not accept that they significantly differ from those of the present day. The result is that, rightly interpreted, neither s 81 nor s 89A of the Act applied in 1981 to consensual homosexual relations between adults in private. 84 It follows that the dates in the indictment, so far as they are referred to in counts one, two, four, five, six and seven, are essential elements of the offence since, if the acts alleged occurred when the complainant was an adult, they cannot amount in law to the crime of indecent assault as provided in s 81 of the Act. Accordingly, so far as the appeal concerns the alleged offences under s 81, it must be dismissed. Independently of this ground, if the Commonwealth Act applies in the present circumstances (as I am inclined to think, although do not determine, that it does) a trial of alleged offences under either s 79 or s 81 of the Act cannot proceed in respect of conduct that occurred when the complainant was an adult. 85 It is arguable that the terms of s 78K of the Act, in limiting criminality to “gross indecency” as distinct from indecency simpliciter, indicate a legislative view that some acts of a sexual character, even if committed by a male with a male of sixteen or seventeen years, are not criminal. This would be analogous, so far as those acts were concerned, to the situation affecting females. However, as s 78K is not directly in issue in these proceedings, it is unnecessary to determine this question. For reasons which I consider later, it is my view, however, that the repeal of s 79 and s 81 and the enactment of s 78K and s 79Q in their place is also significant for the disposal of this appeal. 86 If the above interpretation is incorrect and it be accepted that the indictment is not limited to events occurring before 1981, there is an alternative basis upon which, in the circumstances, the trial should be stayed. This ground applies equally to the charges under both s 79 and s 81 of the Act. In substance, such a trial would be an abuse of process. It is fundamental to this point that the nature of the provisions with which the respondent is charged be appropriately characterised. 87 Sections 79 (unless qualified as above indicated) and 81 of the Act, so far as they apply to consensual homosexual acts between adults in private, constitute a gross interference by the State in the personal liberty of a minority of its citizens. In this respect, they are not essentially different from laws prohibiting miscegenation. Those laws were motivated by racial prejudice, this law by sexual prejudice. It is impossible now to maintain, and it could not have been rationally maintained at any material time, that it was proper, let alone right, for the State to prohibit or punish homosexual relations in private between adults. 88 Section 79 of the Act reveals, in its own terms, its essential character. No other crime, not even murder or rape, as appalling as they are, has ever in New South Wales been described as “abominable”. The term, however, is applied to behaviour which includes consenting sexual relations in private between adult men. The indictment in the present case follows the language of the section and charges the respondent with the “abominable crime of buggery”. This is the conventional form. It has been conventional for far too long. “Abominable”, being surplusage, is not part of the necessary description of the offence. It is mere abuse. It places the thumb of prejudice on the scales of justice. 89 There is an important question here, although it is, perhaps, a departure from conventional judicial practice to point it out. One is driven to ask how indictments in such terms could have been preferred in our courts, in modern times, without remark or protest, let alone objection, not only from the bar but from the Bench. Indeed, I have sat in this Court and referred without reflection or concern to language of this kind. It is no answer that such acts, when committed on children or without consent, are abominable. So are many other crimes that are not so described. That is not the matter to which the term refers. It is a characterisation of the particular culpability of homosexual relations. This institutional sanctioning of abuse is part of a pattern of social attitudes, aimed at homosexuals but demeaning the values of the law itself. 90 The law, in its application to consenting adults, was and is irrational and cruel. It conflicts with basic human rights. Sections 79 and 81 of the Act were unjust when they, or their equivalents, were first enacted and are no less unjust today. 91 It has been held by this Court that s 79 still applies to enable prosecutions to be mounted at the present time against persons who had sexual relations prior to the 1984 amendments and who could not now be prosecuted if those acts occurred after the amendments. In R v Pritchard (1999) 107 A Crim R 88, the complainants were, in the main, resident postulants or novitiates doing training before taking their vows, at a high school of which the appellant was principal. One of them was nineteen years old at the time of the anal intercourse committed (prior to 1984) by the appellant in respect of which he was charged under s 79 of the Act. Its repeal was held to be immaterial in the circumstances upon the basis that, at all events, the homosexual intercourse had not been consented to. The Court was of the view that s 55(2) of the Interpretation Act 1987 (since repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 and replaced in the by s 19 of the Crimes (Sentencing Procedure) Act 1999, with unchanged language; for convenience, I shall continue to refer to s 55), which applies where a penalty is reduced after commission of an offence but before sentence, is irrelevant where the offence is repealed. Grove J said (107 A Crim R at 93) that he could “perceive force in the argument that if...the circumstances demonstrated a consensual act unaccompanied by any matter of aggravation, abolition of the criminal sanction might be categorised as extreme reduction of penalty and even if s 55 [of the Interpretation Act 1987] be not directly applicable, parity of reasoning from cases like Hartikainan (unreported, NSWCCA 8 June 1993) could result in nominal punishment being appropriate.” His Honour did not elaborate on what was meant by “a matter of aggravation” for this purpose. Abadee J, however, considered (107 A Crim R at 95) that even “an act between two ready and willing [semble, adult] males” reflected only “perhaps criminal culpability of at lower level” (emphasis added) but that where the exercise of authority “secured the participation of the other” (though, as I understand his Honour, nevertheless with consent) this reflected a higher degree of culpability. His Honour was, implicitly at least, of the view that, where the conduct “represented a gross breach of trust”, it would be criminally reprehensible even though consented to. Barr J agreed with Abadee J. 92 With unfeigned respect I consider that, unless the material acts were not consented to in the sense that this requirement is used in the law concerning other sexual assaults, no sexual acts between adults, even if liable to prosecution under the repealed ss 79 and 81 of the Act, could, since the enactment of the Amendment Act properly be punished, even though, if Pritchard be right, s 30 of the Interpretation Act 1970 preserves the offence and its penalty as a matter of statutory interpretation. Although both the trial in Pritchard and the appeal were decided well after the commencement of the application of the Commonwealth Act, no reference was made to the legislation either in argument or the judgments of the Court. If the views I expressed above concerning the Commonwealth Act be correct, there were three possible bases for quashing the conviction which were not considered. To this extent, the correctness of Pritchard comes into question. 93   In Regina v Hartikainan (unreported NSWCCA 8 June 1993), the Court considered the effect of an increase in the maximum sentence provided by s 61I of the Act. Gleeson CJ (with whom the other members of the Court agreed) said that the action of the Parliament “must be taken by the courts to have reflected community standards” and concluded, “It is incumbent upon the courts to give effect to the concerns manifested by Parliament”. There can be no more emphatic declaration by the Parliament of its concerns than the repeal of an offence and the enactment of a new offence omitting the criminality earlier provided, in this case, consenting sexual relations between adult males. In substance, the repeal of s 79 and s 80 of the Act, so far as they relate to homosexual activity between adults is not only the abolition of the crime (from the date of repeal) but a reduction of the penalty to zero. I note that Smart AJ posits in this case the possibility that the Court might impose a “nominal” penalty or, indeed, not enter a conviction at all under s 10 of the Crimes (Sentencing) Procedure Act 1999. 94 If I were not bound by authority, I would hold that the repeal of a criminal offence such as that which occurred here, would be caught by s 30 of the Interpretation Act 1987 only to the extent to which, in substance, its elements were continued by a new or substituted provision. I think that it is obvious that the draftsperson of s 30 did not consider its possible application to legislative changes of the kind operative here and I do not think that, taking the clear intention of Parliament as expressed by both s 30 and s 55, it was intended to continue the effect of either s 79 or s 81of the Act past the date of its repeal. However, in light of Pritchard, this argument cannot be applied to dispose of the present case, so far as conducting a trial is concerned. 95   Since, as I have said, the Court in Pritchard acted upon the basis that the victim had not consented to the anal sexual intercourse committed upon him, the observations concerning the effect of the repeal of s 79, so far as it concerned consensual anal intercourse, are obiter dicta. If, for the reasons adverted to by Grove J, a trial of the respondent on charges arising from events prior to 18 December 1980 would be unfair, the Director of Public Prosecutions is limited, in effect, to proving consensual homosexual acts that occurred when the complainant was an adult. If he is convicted, the respondent might be subjected to more than merely a nominal punishment if the sentencing judge (as I think, in error) took the view that the acts in question, to apply Grove J’s observation in Pritchard “were not unaccompanied by any matter of aggravation” or, accepting the view of Abadee and Barr JJ, should be punished “at a lower level”, even if he could not have been tried, let alone punished, under s 78K or s 78Q of the Act had the acts occurred after June 1984. This demonstrates the essential injustice of proceeding against the respondent for any consensual sexual acts which occurred after the complainant’s eighteenth birthday. On my view of the matter, only nominal punishment could, at the highest, be imposed in the event of conviction. 96   In Walton v Gardiner (1992-1993) 177 CLR 378 Mason CJ, Deane and Dawson JJ, said (at 392-3) -

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness...The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’.”

97   In a passage that has been cited with approval in the High Court of Australia (eg Jago v District Court (NSW) (1989) 168 CLR 23 at 30; Williams v Spautz (1991-1992) 174 CLR 509 at 520), Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour [1980] 1 NZLR 464 said (at 58) -

“It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.”

98   In Jago (supra) Mason CJ, Deane and Gaudron JJ expressed a wide view of what might constitute an abuse of process. They did not confine that principle in a narrow, traditional way. Mason CJ said (168 CLR at 28) -

“The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness.”

99   The Chief Justice (at 29) stated that there was no reason why the right to a fair trial should not extend to the whole course of the criminal process. Brennan J said (at 47-8) -

“An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment . When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct...When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose.” (Emphasis added.)

100   The jurisdiction to permanently stay a criminal proceeding that is unfair comprehends proceedings that are brought for an improper purpose or which are oppressive, even where a fair trial is possible: Williams v Spautz [1991-1992] 174 CLR 509 at 519-521, 552-553; Walton v Gardiner [1992-1993] 177 CLR 378 at 392-3 (although the latter case concerned disciplinary proceedings). It is clear the jurisdiction is exercised only in exceptional circumstances and that courts should exercise their jurisdiction rather than decline to do so, especially in respect of the trial of criminal charges but the courts should not be deterred from permanently staying such proceedings in appropriate circumstances: Willams v Spautz 174 CLR at 519-2.

101 It is, therefore, necessary to examine whether proceedings now being brought to seek conviction for offences under s 79 and s 81 of the Act, as they stood in 1981 in respect of sexual acts in private between consenting adults, are capable of serving the purposes of the criminal law. If not, then they are instituted for an improper purpose, even though there is no ulterior motive in those responsible for their institution and the trial itself may be fair. The same principle applies if the proceedings will result in a weakening of public confidence in the administration of justice (cf Ridgeway, per Gaudron J, (1995) 78 A Crim R 307 at 353). In a case where personal motives underlying the prosecution are immaterial, an abuse of process will not have occurred unless the trial (which, as such, may be fair) and the verdict themselves serve an improper purpose having regard to the functions of the criminal law and the administration of criminal justice.

102   It has frequently been said that the fundamental purpose of the criminal law is the protection of community from crime: see, eg, Jordan CJ in R vGeddes (1936) 36 SR (NSW) 554 at 555, where his Honour went on to say that, as a consequence -

“...the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others.”

103   In Channon v The Queen (1978) 33 FLR 433 at 437 Brennan J quoted with approval a passage from the judgment of Herron CJ in R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274, where he said -

“The function of the criminal law and the purposes of punishment cannot be found in any single explanation, for it depends both upon the nature and type of offence and the offender. But all purposes may be reduced under the single heading of the protection of society, the protection of the community from crime.”

104   Consequently, there is no abstract principle which the criminal law is designed to vindicate. To use the language of Gallop, Mathews and Madgwick JJ, sitting as a Full Court of the Federal Court of Australia in R v P (unreported, FCA, 29 May 1998), criminal sanctions “are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose”. 105 A trial which results in an acquittal will not, for that reason alone, have been an abuse of process although, if it can be seen in advance that acquittal is inevitable, a stay will be granted: Ridgeway (1995) 78 A Crim R 307. Of course, even a finding of guilt may, in the end, carry no conviction (eg, under s 10 of the Crimes (Sentencing Procedure) Act 1999) but subjection to criminal proceedings and a finding of guilt is of itself undoubtedly a penalty and, hence, dismissal of the charge is not treated as an acquittal for the purpose of the rights of appeal: s 10(5) Crimes (Sentencing Procedure) Act 1999; R v Luscombe (unreported, NSWCCA, 22 November 1999). This is obviously so where the defendant’s liberty is restricted by being placed on a good behaviour bond. Even where the charge is simply dismissed, there will have been a finding of guilt, which involves the denunciation by the Court of the behaviour found to be proved. Where there is a conviction but, for example, the defendant is sentenced to the rising of the court, this will comprise a penalty. As Kirby J observed in Pearce v R (1998) 156 ALR 684 at 715 “entering a conviction is itself part of punishment”, and has long been so regarded (see also R v Ingraessia (1997) 41 NSWLR 447 per Gleeson CJ at 449).

106   None of these examples of possible disposition of a criminal proceeding are inconsistent with the proper purposes of the criminal law or the administration of criminal justice. Rather, they demonstrate that the protection of the community from law breakers may be accomplished in a variety of ways and include undertaking public proceedings and the finding of guilt. Even where there is an acquittal, the purpose of the proceedings is to secure a denunciation, a degree of appropriate punishment and rehabilitation upon the assumption that, if committed, the community must be protected from the crime in question.

107 In the circumstances of this case, the only proper result of a trial confined to events occurring in or after 1981, if there were a verdict of guilty, is that the trial judge, for the reasons I have mentioned, should not enter a conviction but, rather, exercise the powers of the Court under s 10 of the Crimes (Sentencing Procedure) Act 1999 not to do so and dismiss the charge. At most, no more than a nominal punishment could properly be imposed. The only purpose, then, of the prosecution in this event would be to denounce the respondent for having, between 1981 and 1984, committed private acts which were made criminal by a law repealed by the Parliament sixteen years ago in recognition of its discriminatory and unjust character and from which the community has not needed the protection of the criminal law for many years. The only witness against him will be the adult with whom he had consensual relations, who will not be prosecuted. The respondent will have had his liberty restricted by subjection to bail and obligatory attendance at court, and suffered the expense and humiliation of a public trial and the ignominy of a finding (if that be the verdict) that he had committed a crime.

108   The Parliament effectively declared in 1984 what the relevant community standards were, namely, so far as sexual relations between adults were concerned, that homosexuals and heterosexuals must be treated equally by the criminal law. This was no mere technical adjustment of the system of criminal justice but a substantial repudiation of the previous order. Whatever may have been the situation in 1981, no present public interest is capable of being vindicated by any proceedings against the respondent for sexual acts with the complainant which occurred after 17 December 1980. They can serve no proper purpose of the criminal law. The court would simply have been made the instrument of oppression. It is not surprising that the Director of Public Prosecutions has said that he does not wish to prosecute such a case. The character of the repealed law all the more strongly demonstrates the pointless and oppressive injustice of such proceedings. Can this Court order that it be stayed?

109   In Connelly v Director of Public Prosecutions [1964] AC 1254, Lord Pearce said ([1964] AC at 1365) that a court has a duty to stop a prosecution which “creates abuse and injustice”. Lord Morris of Borth-y-Gest stated ([1964] AC at 1301-2) that the inherent power of a court “to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice”. But his Lordship remarked ([1964] AC at p 1304) that it would be “an unfortunate innovation if it were held that the power of a court to prevent any abuse of its process or to ensure compliance with correct procedure enabled a judge to suppress a prosecution merely because he regretted that it was taking place”. Lord Devlin posed the question in this way ([1964] AC at 1354) -

“Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused.”

110   As Toohey J pointed out in Ridgeway (78 A Crim R 307 at 338), this “passage asserts the power of the courts to act; it does not, and does not purport to, identify the scope of the power”. Ridgway concerned the intended prosecution of a person who was party to the illegal importation of heroin by law enforcement officers. Mason CJ, Deane and Dawson JJ rejected the submission that Australian law recognized the defence of entrapment and were able to vindicate the Court’s duty to maintain the integrity of its processes by holding that the exclusion of the evidence of importation on public policy grounds rendered inevitable the failure of the trial and, hence, such a trial should be stayed. Their Honours said (78 A Crim R at 322) -

“Once it is concluded that our law knows no substantive defence of entrapment, it seems to us to follow that the otherwise regular institution of proceedings against a person who is guilty of a criminal offence for the genuine purpose of obtaining a conviction and punishment is not an abuse of process by reason merely of the circumstance that the commission of the offence was procured by illegal conduct on the part of the police or any other person.” (Emphasis added.)

111 Their Honours noted that there was “a significant distinction in principle between staying criminal proceedings on the ground that the proceedings in themselves constitute an abuse of process and staying further steps in the proceedings on the ground that, due to the effect of evidentiary rulings made in them, they must fail”: 78 A Crim R 322-2. However, I do not understand them to be saying that, where the latter course was not available, a stay of the former kind would not be granted. Where allowing a trial to proceed at all would offend the court’s sense of justice, it seems implicit that a stay would be granted. The clear implication of their Honours’ reasoning was that, if entrapment was indeed a defence in Australian law, a stay may well have been granted (see, also, Toohey J, 73 A Crim R at 340-1, Gaudron J at 353-4, McHugh J at 360-2). 112 The principle was stated by Lamer J, delivering the judgment of the Supreme Court of Canada in Mack (1988) 44 CCC (3d) 513 at 539 (cited by Toohey J, 78 A Crim R at 339) in the following language -

“[C]entral to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves.”

That this observation was made in dealing with an entrapment case does not lessen its force.

113   Gaudron J, in Ridgeway, considered that a stay should be granted because of the nature of the prosecution itself and thus, to this extent, was in dissent. However, I would respectfully adopt her Honour’s pithy expression of the relevant test (78 A Crim R at 352), namely, that a prosecution is an abuse of process that serves “the ends of injustice, rather than justice and might adversely affect public confidence in the courts and in their proceedings”. 114 If I may say so, with respect, the remark of Lord Morris of Borth-y-Gest quoted above sounds an appropriate caution. If this prosecution were taking place prior to the 1984 reforms, I do not think that it would have been right to have stayed it as an abuse of process simply because the judge may have thought that ss 79 and 81 of the Act were unjust and oppressive (subject to what I said above concerning the proper interpretation of s 81). Nor should it now be stayed if the alleged criminal acts are, in substance, still penalised under the substituted offences which are presently operative. That would, indeed, be a triumph of form over substance. Moreover, as was said in Ridgeway, “The function of determining whether, in the circumstances of a particular case, a criminal prosecution should be initiated and maintained is essentially that of the Executive” (per Mason CJ, Deane and Dawson JJ, 78 A Crim R at 316). Their Honours go on, however, to say -

“Nonetheless, it has long been established that, once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances...temporarily or permanently stay the overall proceedings to prevent abuse of its process.”

115   In this case, the applicable rule is that stated by Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482 (cited with approval in Jago (168 CLR at 30) by Mason CJ) -

“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.” (Emphasis added.)

116   In dealing with abuse of process in the context of criminal proceedings, the two fundamental considerations are the public interest in ensuring that the court’s processes “are used fairly by State and citizen alike” and the ability of the court to protect its functions to avoid “an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”: Williams v Spautz (1991-1992) 174 CLR 509, per Mason CJ, Dawson, Toohey and McHugh JJ at 520. 117 In all the circumstances of this case, I consider that the continuation of any prosecution against this respondent for acts which would not be crimes had they been committed after the 1984 reforms would amount to an abuse of the process of the Court. (I should mention that I consider that, for a variety of reasons, s 61N of the Act would not apply to the acts alleged here, had they occurred after 7 June 1984.) Such proceedings would serve the ends of injustice rather than justice and bring the court into disrepute. Accordingly, if the indictment were so interpreted as to permit the jury to convict the respondent in respect of events that occurred after 17 December 1980, the trial should be permanently stayed. For this reason also, the appeal should be dismissed. 118 Even if the dates in the indictment might not be vital, neither party sought to put this argument before the Court as a reason for disposing of the appeal. Whilst I would not go so far as to say that the Court should never act upon its own view of the law where the parties ask the Court to deal with a matter on a quite different basis, I do not think that in the circumstances of this case we should change the nature of the appeal so fundamentally. Even if it be the law that a prosecution can still proceed for behaviour which has not been criminal for sixteen years, I do not see why, in effect, this Court should exercise its discretion on its own motion to vary the argued grounds of appeal to bring about this result. 119 For these reasons, even if I am mistaken about the significance of the times specified in the indictment for the offences with which the respondent is charged, and in my view that a trial on the residual basis proposed by Grove and Smart JJ would be an abuse of process, I do not consider that the appeal should be upheld. 120   SMART AJ: The background and the facts are set out in the judgment of Grove J. On the hearing of the application for a permanent stay the judge had before him a draft indictment and the affidavit of the solicitor for the accused, the annexures referred to in it, mainly the two statements of the complainant, the transcript of his evidence at the committal proceedings and that of the evidence of a police officer. There was no evidence from the accused. 121   The draft indictment contained eight counts, four counts alleged that the accused indecently assaulted the complainant, (a male), between 19 December 1979 and 30 June 1980 and one count alleged buggery in the same period. The other three counts related to the period 1 November 1980 to 18 December 1980: two counts alleging indecent assault and one count alleging buggery. Each count related to a specific incident. 122   The complainant’s evidence in the committal proceedings was to the effect that the acts charged took place in 1980 subject to the proviso that some of the earlier acts may have occurred in late 1979. The complainant was sure that the acts charged occurred before his eighteenth birthday on 19 December 1980. Eighteenth birthdays are significant in most families, marking the arrival of adulthood. 123   In his affidavit the solicitor said,

"I am informed and verily believe that the defence...is that any contact of a sexual nature which may have taken place between the accused and the complainant in fact took place after the complainant had turned 18 years."

124   This is a guarded and general statement. It does not deal with any of the specific instances of which the complainant gives evidence. Nor does it state the sources of information and belief. It seems to have been assumed that it was the accused. The Crown did not cross-examine the solicitor. 125   At the hearing before the judge counsel for the accused stated:

"The defence to this case is, as deposed to by my instructing solicitor that sexual contact did, in fact, take place but not during the years 1979, 1980. It in fact commenced after 1980, that is when the complainant was considered in law to be an adult not a child".

126   Later, counsel for the accused said:

"...there is no dispute that incidents of a sexual nature did occur. The defence is that they did not occur in the year 1980; they occurred, in fact, in the year 1981 at which time the complainant was an adult anyway."

127   The concession is in very general terms. There is no concession that the particular acts alleged occurred but rather that incidents of a sexual nature did occur. 128   In essence, the Court was asked to grant a permanent stay of proceedings upon the basis of some instructions given by the accused to his solicitor, the antiquity of the alleged offence and the absence of records for the period 1980-1981. The instructions given are entirely untested. Permanent stays should not usually be granted on the basis of instructions, deposed to by an accused's solicitor or some person other than the accused. Generally, it would be wrong for a Court to act on the accused's instructions when these are unverified by the accused. There may be cases however, where admissible evidence can be given by persons other than the accused which would justify the granting of a permanent stay. 129   In the present case no point was taken by the Crown that there was no evidence from the accused as to his stated defence, namely that no sexual activity occurred between the complainant and the appellant in 1980. Generally, in a case such as this such evidence should be led. The absence of such evidence does tend to weaken the accused's case for a permanent stay. If an accused wants the benefit of a permanent stay there is nothing unfair as a general principle, requiring him to verify his position. 130   However, this raised a problem. If the accused said that the incidents alleged happened in 1981 the appellant was guilty of the offences charged. It is the incidents which are the subject of the charges. In the present case, the dates are not critical. If the accused said that no such incidents occurred but that there was other sexual activity in later years then he would not be guilty. He would be entitled to refuse to give details of such other sexual activity on the grounds of self-incrimination. 131   There is a need for the accused to know the case which he has to meet, to be supplied with proper particulars and not to be confronted with a new case at the trial. Once it is remembered that it is the identified acts of the accused and the incidents which are important I see nothing unfair in the dates being treated as not being of the essence of the charge. Apart from the point as to whether the offences were committed prior to 19 December 180, it was not suggested that the dates were relevant for any other reason, for example to lead alibi evidence or to cast doubt upon the happening of the incidents alleged. 132   In amending the Crimes Act 1900 and decriminalising sexual intercourse between consenting adult males, the legislature did not do so retrospectively. It is not for the Crown or the accused to endeavour to step around the terms of the legislation and to involve the Court in such endeavours. It is against the public interest for false issues to be presented and fought. I could understand the prosecution deciding not to prosecute or a Court, if the jury convicted imposing a nominal penalty or exercising its powers under s. 556 A of the Crimes Act. 133 It is incorrect for a Court to grant a permanent stay when it appears to be the defence that the sexual activity alleged took place a year later than alleged but when it was still an offence or a number of offences. For these reasons the exercise of the judge's discretion miscarried. 134 I make some additional comments. It is not reasonably open to a Court to regard the loss or absence of any useful records as usually being sufficient in itself to justify the grant of a permanent stay. This is not a case such as Davis (1995) 81 ALR 156. He was a medical practitioner who had seen thousands of patients and his clinical records had been destroyed in circumstances where no blame had been attributed to anyone. The alleged offence had occurred many years previously. Without his clinical records the doctor would not be able to say what he did and why and to give instructions to his counsel. 135 It is well established that the loss or absence of documents or records does not of itself mean that a person cannot obtain a fair trial or that the proceedings need to be stayed. The complainant’s eighteenth birthday is a notable event. Even if it were correct to limit the counts in the indictment to events occurring before that day, incidents can be related to the period before or after that day as a reference point. Of course, as the dates of the incidents are not critical the absence or loss of the records is not of significance. 136 I would allow the appeal and quash the order granting the permanent stay.

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