Saraswati v The Queen - [1990] HCATrans 232

-: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

Saraswati

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 so
far 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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saraswati v The Queen

Details

AGLC: Saraswati v The Queen [1990] HCATrans 232
Case: [1990] HCATrans 232
Decision Date

CaseChat Overview and Summary

The applicant, Akhandananda Saraswati, sought special leave to appeal to the High Court of Australia against a decision of a lower court. The dispute concerned the application of a limitation period to prosecutions for offences relating to carnal knowledge of a girl under the age of 16.

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.

Orders