RWD v The Queen

[2005] HCATrans 597

[2005] HCATrans 597

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A32 of 2005

B e t w e e n -

RWD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 12.34 PM

Copyright in the High Court of Australia

MR K.V. BORICK, QC:   If the Court pleases, I appear with MR M. HEGARTY for the applicant.  (instructed by Michael Hegarty & Associates)

MS G. DAVISON:   If the Court pleases, I appear with MS A.E. TRENGOVE for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

CALLINAN J:   Yes, Mr Borick.

MR BORICK:   Your Honours, subject to anything the Court has to put to me, I doubt if I will take up my 20 minutes.  There is no factual dispute in this case.  The special leave point which we put to the Court and have endeavoured to identify in our outline of argument is that the court in interpreting the meaning of the word “guardian” in section 49(5) of the Act did so on the basis that they wanted to…..what was clearly reprehensible conduct on the part of the accused in this case and they permitted their view of the purpose of the legislation to override other principles of statutory interpretation.  You see that emerging at page 33 of the application book in paragraph 19 and again in paragraph 28 of the judgment, where the court held that if a relationship between two people which involves influence, care, control and vulnerability exists, then that is sufficient to satisfy the test of what is a guardian.  As your Honours can see ‑ ‑ ‑

CALLINAN J:   At paragraph 19 the court says, “suggests that the section is directed at close relationships”.  The court is using that as an aid to construction but it is not conclusive.  What was the other paragraph to which you referred?

MR BORICK:   The other paragraph was paragraph 28 at the bottom of page 34 of the application book.  The court there stated at the bottom two lines:

in the ordinary case he –

that is the father –

will have more contact and control and direction over his children than other guardians and the other classes of persons referred to in the section, and therefore such an interpretation accords with the purpose of the section.

It goes on to deal with incest.

CALLINAN J:   That is an orthodox approach to statutory construction, is it not, a perfectly orthodox approach to the consequences and the implications?

MR BORICK:   Except that the second part of our argument is that if you adopt that approach in this case and use the purposive test, you then widen the meaning of the word “guardian” to a point where no one quite knows where it is going to end.  Clearly a guardian appointed at law is caught by that section but if you then interpret it to mean anyone who has got the care ‑ ‑ ‑

CALLINAN J:   But what the court says about other situations is not binding in other cases.  This case does no more than establish that an adoptive parent is a guardian for the purposes of the section.  Is that not right?

MR BORICK:   No, with respect, it goes further than that.  It just happens to be an adopting parent but they get the adopting parent into the terms of the section because of the principles of ‑ ‑ ‑

CALLINAN J:   The rest is obiter, Mr Borick.  What the case holds is no more than what I have put to you.

MR BORICK:   With respect, your Honour, once they get there by that process, then that would automatically capture the stepfather, as in the Western Australian and Tasmanian cases.  It would capture a de facto guardian and all sorts of other relationships that now exist in what is described as the family, which is a far wider description than what was perhaps understood a number of decades ago.  So that in order to catch this particular accused, in my submission, the court has now widened the scope of section 49(5) and other sections like it in other parts of the country to areas where nobody knows quite where it starts and where it ends.  All that would happen is that if they are right, this Court would have to wait until a stepfather or a de facto or someone who has moved in and formed a relationship for even a short period of time, maybe even 12 or 18 months, gets caught by this section and then decide it.

In our submission, this is an appropriate vehicle to decide that issue based, as it is, on the question at first instance of statutory interpretation, but there is this important feature behind it.  I should also acknowledge, your Honours, that if we fail to get special leave on the guardian point, we do not press the point on the consanguinity issue.  There is no point.  If we were to get leave on the incest issue, then the court, although it said it did not have to deal with that, it did in fact make a very specific finding that consanguinity is not an element in incest.  Accordingly, if we do get leave and an appeal was successful, the applicant would automatically be guilty in

the South Australian courts of incest, but that of course hinges on the fate of the special leave application.  Thank you, your Honours.

CALLINAN J:   Thank you.  We need not trouble you, Ms Davison.

The construction adopted by the courts below was an available construction.  The conclusion is not attended by error.  Accordingly, the application for special leave is dismissed.

We will adjourn the Court.

AT 12.42 PM THE MATTER WAS CONCLUDED