-:i,,~USTRALIA ,i.!:- : -- -..,._,,~r'$-««.<-('-
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S25 of 1990 B e t w e e n -
AKHANDANANDA SARASWATI
Applicant
and
THE QUEEN
Respondent
Application for special
leave to appeal
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 10 OCTOBER 1990, AT 10.17 AM
Copyright in the High Court of Australia
| Saraswati | 1 | 10/10/90 |
MR C.A. PORTER, QC: In that matter I appear with my learned
friend, MR P. BYRNE, for the applicant (instructed
by Greg Walsh & Co)
| MR B.M. JAMES, QC: | I appear for the respondent with my |
learned friend, MR W.G. ROSER. (instructed by
S.E. O'Connor, Solicitor for Public Prosecutions)
| DEANE J: Yes, Mr James. | Mr Porter. |
| MR PORTER: | I do not know whether Your Honours noticed this |
in reading the leading judgment of
Mr Justice Badgery Parker, but at pages 135 and 138
he refers to a section 66C, which is a little
off-putting because section 66C did not come into
the Act until the 1985 amendments. He should have referred to section 71, as it then was, but the
1985 amendments do nothing to resolve or make less
important the problem thrown up by this case.
If I might hand up the outline of argument.
My learned friend did prepare a document called
Statutory Material and it might be quite handy for
the Court to have it at this stage. In my list of authorities I referred to the various legislation,
but this puts them all together in the one
document.
DEANE J: Thank you.
MR PORTER: If Your Honours please, briefly the problem
arises in this way. In 1910 the Crimes Act was amended to resolve the then political question of
the age of consent; it :·:ad been 1 , it was raised t;:; 16. There were two safeguards ~mposed at that
time. One was the defence which is well known, no doubt, to Your Honours, namely belief on reasonable
grounds that the girl was 16 when she was in fact
over 14 and she consented. The other was a six months limitation period for any prosecution, not
merely for carnal knowledge which, at the relevant
time for this case, was section 71. I am giving these references as it was in 1983 when this problem involving Saraswati arose, but from the
very beginning the limitation period applied not
merely to carnally know, but it also applied to
attempt to carnally know or indecent assault, in sofar as any of those offences applied to a girl over
the age of 14 and under the age of 16.
The limitation period, as I have said, was
originally six months. It was increased
to 12 months in 1924. One might ask then, what was the reason for the limitation period? One reason which has been frequently put up and appears in the
appeal book in the judgment of
Justice Badgery-Parker goes along these lines: that
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- AGLC
- Saraswati v The Queen [1990] HCATrans 232
- Case
- [1990] HCATrans 232
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the limitation period, which had been introduced in 1910 and subsequently amended, applied to all prosecutions for offences involving a girl under 16, including attempts and indecent assaults, or only to the specific offence of carnal knowledge. The applicant argued that the limitation period, originally six months and later increased to 12 months, was intended to apply broadly to associated offences, reflecting the consensual nature of such acts and the potential for stale prosecutions involving young offenders.
The Court considered the historical context of the legislation, noting that the limitation period was introduced alongside an increase in the age of consent to 16. The rationale for the limitation period was understood to be the likelihood of these offences being consensual, meaning complaints might not be raised promptly, and also the public interest in not prosecuting young men for "childhood or schoolboy offences" years after the event. The applicant contended that the limitation period, as originally enacted and subsequently amended, applied to attempts and indecent assaults concerning girls under 16, not just the act of carnal knowledge itself.
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Orders of the court
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Background to the litigation
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Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
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