Saraswati v The Queen

[1990] HCATrans 232

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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 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

Saraswati 2 10/10/90

the offence is likely to be a consensual offence

and, therefore, because it is a consensual offence,

unlike an offence of rape, or a non-consensual

- offence, the alarm, the complaint will not be

raised quickly and there would, therefore, be a

grave danger in permitting prosecutions after an

alleged consensual event.

There was, we suggest, also another possible reason in fact, a likely reason, and that is this:

that when one looks at this offence of carnally

knowing a girl under 16 and the associated

offences, one tends to think of people like my
client who are considerably older than the girl,

but in point of fact, most of these cases involve

people of the same or similar ages to the girl

herself and the legislator may well have believed
and, we would submit, with good reason, that there
was no public purpose to be served by prosecuting
young men years after the event for a childhood or

schoolboy offence that had occurred when they

were 16, 17 or 18.

Why the limitation period was increased from

six to 12 months is probably fairly obvious. Until

comparatively recent years, many of these offences

of carnally know were simply discovered because a

girl had to go to a public hospital and give birth

to a child obviously conceived under the age of 16

and until comparatively recent years the practice

was to put considerable pressure on the girl to

name the boy who had made her pregnant and he was

then prosecuted. It is obvious, of course, that if

there was a six month limitation period, that type

of prosecution would hardly be as apt as if there

is a 12 month limitation period, having regard to

the length of pregnancy.

Now, that is how the position was until 1974 when the legislature attempted to - in fact, not

attempted, succeeded in filling a gap which had

been revealed by cases such as Rogers.

Your Honours will be aware, of course, that to be	guilty of carnally know, attempt to carnally know
or indecent assault, all involved some sort of
physical contact emanating from the accused to which the girl either did not or could not consent,
more likely the latter.
The case of Rogers revealed the type of offence where no physical contact emanated from the
accused at all. In Rogers' case, she was persuaded
to touch the private parts of the accused but
persuaded verbally and not by physical contact.
So, there was nothing in the nature of an assault
to which she could not consent and that, of course,
revealed a gap in the law. I refer to Rogers' case

Saraswati 10/10/90

in the outline of argument, page 2 of the very last

paragraph, ( f) .

Now, that type of offence which is quite akin

to wilful obscene exposure which is a summary

offence, but that type of offence was considered a

sufficiently serious gap in the law to be solved by

the insertion into the Act in 1974 of what was then

section 76A and is now section 61E(2) and when that

new offence was inserted the old section 77 defence

which goes way back to 1910 was expressly made to

apply to it, namely, belief on reasonable grounds

that the girl was 16; she was in fact over 14 and

she consented. But the 12 months limitation was

not made applicable to such an offence, and never

has been, in all the subsequent amendments of the

Act.

So one had in 1983 when these events occurred,

one has now in 1990 with all the subsequent

amendments to the Act, still the situation that if

the girl is over 14 and under 16, then for the

offence of carnal knowledge, attempt carnal

knowledge or indecent assault, the prosecution must

be brought within 12 months. But for the offence

of indecent act in the presence of the girl there

is no time limit.

One might ask, "Well, why was not section 78,

the time limit, made applicable to the new

section 76A?" We would submit there is a perfectly

simple and logical reason for that because the act

of indecency at which section 76A was aimed was, by

definition, the gap was a unilateral act. It was

not a consensual act at all. The accused person or

defendant was, in effect, performing in the

presence of the victim. She was not consenting to

anything. So that the old reasons for the

12 months limitation did not apply to that sort of

situation. That sort of situation which the Act

was introduced to cover was a unilateral situation

of, in effect, the accused performing in an

indecent manner in front of the victim, or

persuading the victim without violence, whether she

consented or not, to do something to him.

Now, we do not suggest for one moment that the

Act should be construed so that the 12 month

limitation applies to that sort of situation. It

does not. What we say is that you are not

entitled, as the prosecuting authority, to do away

with this traditional safeguard which has been

there for 80 years, has always been there since the

age of consent was raised from 14 to 16. You

cannot evade or abolish the traditional safeguard

by simply saying, "Righto, although it is an

indecent assault, although it is a carnal

Saraswati 4 10/10/90

knowledge, we will call it an act of indecency and

charge for that." That is, in fact, what happened

to this applicant.

Although the jury acquitted him of a number of

counts, in the ultimate, he was convicted of two
counts of indecent assault and one count of carnal

knowledge and all cases put to the jury as such and

the jury being told that, as such, they were acts

of indecency and, in one sense, that is right.	An
indecent assault is, in one sense, an act of

indecency. Carnal knowledge, I suppose, on a girl

under age is, in one sense, an act of indecency.

DAWSON J:  Is an act of indecency or indecent assault an

alternative verdict to carnal knowledge?

MR PORTER:  No, act of indecency is hot an alternative

verdict to carnal knowledge. I think attempted

carnal knowledge would be an alternate verdict and

I think indecent assault might well be an alternate verdict but I do not think act of indecency would

be an alternate verdict.

DAWSON J:  Why not?

MR PORTER: Being the lesser offence?

DAWSON J: Well, if the greater offence involves all the

elements under ordinary tests - - -

MR PORTER:  That is right, yes. Your Honour is putting it

to me on the basis that a person charged with rape

could be convicted of common assault.

DAWSON J: Yes.

MR PORTER:  Yes, on that basis, yes, Your Honour, it could

be but subject to this, of course:  we would say,

and there is some authority against us on this, but

we would say that that could only occur if the
prosecution had been brought within 12 months

because otherwise you would not be properly before

the court on the indictments.

DAWSON J: Well, that is the question.

MR PORTER:  Yes.

DAWSON J: But, it is clear enough that carnal knowledge

would involve all the elements of an act of

indecency.

MR PORTER:  Yes. Your Honour, we are not disputing the fact

that if you take carnal knowledge, you can, without

much ingenuity, find within it - assuming it is not

between husband and wife, of course - an act of

Saraswati 10/10/90

indecency, an indecent assault, an attempt carnal

knowledge and finally, success.

DAWSON-~:  And, you can put on one side immediately all

those cases in which consent is a defence because

they are not relevant to this situation, are they?

I mean, if one - - -

MR PORTER:  I am sorry, Your Honour?

DAWSON J: Well, let me put it - in those cases in which the

accused was acquitted of carnal knowledge on the

basis that there was consent and to convict of an

act of indecency where consent would be a defence

is inconsistent in carnal knowledge.

MR PORTER:  Yes.

DAWSON J: Those cases are irrelevant.

MR PORTER: Yes, but in the whole of my argument,

Your Honour, I am dealing with a situation where

the victim is over 14 and under 16, so she cannot

give her consent.

DAWSON J: That is right, consent cannot be given.

MR PORTER: That is right.

DAWSON J:  So it comes down to this, that the legislature

cannot have intended that for the lesser offence

the time limit - let me put it another way: that

because the time limits are different for the

greater and the lesser offence the legislature

cannot have intended it to be permissible to charge

with the lesser offence when the greater offence

cannot be charged because of the time limit.

MR PORTER:  Yes, Your Honour. I do not know whether I am

expressing it a different way to Your Honour but

the way we would put it is this, that the

legislature, having established a safeguard by way

of statutory immunity by the 12 month limitation it

is not permissible to avoid the safeguard or the

immunity by calling something by a different name.

DAWSON J:  Can I put it to you this way: you would not have

an argument were it not for the different time

limits. Would you concede that?

MR PORTER:  Yes. Your Honour, we do not suggest that it is

not technically possible to charge a person who was

apparently guilty of rape with common assault or

assault occasioning actual bodily harm. We do not

dispute the power of the Crown to charge for a

lesser offence rather than the greater offence but

Saraswati 6 10/10/90

what we do say is that where you have a situation

such as this you cannot use that procedure for the purpose of avoiding a statutory immunity and there

- are a number of reasons why you cannot do it.

GAUDRON J: Is that a matter of statutory interpretation in

the strict sense or is it a matter of challenge to

the prosecutor's discretion?

MR PORTER: Well, Your Honour, we put it both ways. If you

ask me for my preferred argument it is the former

of construction of the statute. That is my

preferred argument but if I fail it that way I

would go about it the other way.

GAUDRON J:  What then is the precise limitation to be read

into the old 76A - the present, is it 66C - as a

matter of statutory construction?

MR PORTER:	Well, as a matter of statutory construction, section 76A, now section 61E(2), only applies to
sexual misconduct which is not encompassed in the
concepts of indecent assault, carnal knowledge or
attempt carnal knowledge and that still leaves it a
large area in which to work. That is what it was inserted for and we say that it cannot be extended
beyond the purpose for which it was inserted.
GAUDRON:	Yes, but I have some difficulty then in

reconciling that with your statement that the Crown

can charge the lesser offence, other than in cases

where it has been done to avoid the time limit.

MR PORTER:  That is right. I do not know whether at the

present time my argument is at the stage where I am

actually arguing the argument or arguing the

special leave point, but I really intended to put

this at this stage, as my outline of argument

shows, that it is obviously a question of very

considerable public importance and applies to a lot

of cases, and it is a question upon which the

authorities have disagreed,· but the majority of

authorities seem to be our way.

In fact, the only authority directly against

us on this is Pople which I refer to in

paragraph l(b). Blight, the New Zealand case is,

of course, direct authority in our favour. That

was a bench of seven New Zealand judges; I think

five were the majority, two were in the dissent.

In Pople, of course, one was in the dissent there.

DAWSON J:  But before we get to the authorities it might be

helpful if we could get quite clear what your

argument is.

MR PORTER:  Yes.

Saraswati 7 10/10/90

DAWSON J:	If in fact the limitation period had not expired for carnal knowledge, would the Crown be precluded
from deciding not to charge with carnal knowledge

- but an act of indecency, notwithstanding the act

relied on was carnal knowledge?

MR PORTER:  Yes. Your Honour, on my preferred argument

they would still be precluded because upon the proper construction of the statute it does not

apply to that situation. On the other argument

they would not be precluded by construction but

they would be precluded because it is an abuse of

process to do it that way.

DEANE J:  Mr Porter, without indicating any view at all as

to whether special leave will be granted, it seems

from your point of view the obvious convenient

course is to go ahead with the substance of your

argument instead of trying to maintain distinctions

between the first step and the subsequent step.

MR PORTER: If Your Honour pleases. Well then, if I can

come back to - - -

McHUGH J:  Why do you go to the authority before you go to

the history? I mean, if you look at the history

of 61E - the old 76A - and the report of the

commission, it is fairly plain, is it not, that

active indecency, in what is now 61E, was intended
to cover those cases which did not constitute an

assault.

MR PORTER: That is right. It was intended to cover the

gap.

McHUGH J: That is what the report - - -

MR PORTER: That is what the criminal law committee said, or

whatever it was. It is usually referred to - I

think it is the Amsburg Committee, is it not, that

committee?

McHUGH J: It was the Amburg Committee.

MR PORTER: Yes, and that is what they said, and I give the

illustration of Rogers' case which is quite a good
illustration of the gap. Now, that is what it was

intended to do. In favour of my construction argument, I say that if that was Parliament's

intention, it would be wrong to then give the

section a meaning which had the effect of

abolishing the safeguard contained in section 78

because although it might be said by the Crown, "Oh

yes, but it's a lesser offence", that is not really

so. I mean, if you approach this case on a basis

of reality, what happened to this accused was, as

frequently does happen, there were a number of

incidents, he was convicted of some, he was

Saraswati 10/10/90

acquitted of the others, there were enough there to

get a substantial accumulation and he finished up

with a sentence which was very much the same as if

he had been convicted of indecent assault and

carnal knowledge.

It is not one of those cases, if Your Honour

pleases, where one can say, "Oh well, there's such
a difference in the sentencing that Parliament

might have meant that the statutory bar shouldn't

apply for that reason". We would say it is quite

simple, what Parliament did was, they said, "Well,

there's a gap here, we create this new offence,

section 76A to fill that gap, we don't apply

section 78 to that gap because the offence we

envisage under section 76A is a unilateral

offence."

TOOHEY J: But when you put it that way, Mr Porter, you are

not talking about statutory immunity, are you?	You
are just talking about an offence which does not fall within the ambit of the section.

MR PORTER: That is so, if Your Honour pleases.

McHUGH J: It is a question of statutory construction not

statutory immunity.

MR PORTER:  Yes. We say that it is important to construe it

in that way strictly because Parliament passed it

in the context of a statutory immunity and if

Parliament meant to abolish that statutory immunity

it would have done so.

DAWSON J: Mr Porter, are the statutory penalties for carnal

knowledge and an act of indecency the same?

MR PORTER: No, no. Perhaps I will give Your Honours the -

the penalty for act of indecency was two years;

for carnal knowledge it was 10; for attempt carnal

knowledge five and for indecent assault - yes

section 61, it was then - - -

DAWSON J: It does not matter.

MR PORTER:  I am sorry, it is the one I have been referring

to all the time, it was section 61E(l);	it was
four years but six years if the girl was	under the
age of 16.

TOOHEY J: Mr Porter, I am still have difficulty with the

argument. Is the proposition that, in the

circumstances of this case, the conduct of which

the applicant was accused was not conduct which

fell within section 61E(2)?

MR PORTER: That is right.

Saraswati 9 10/10/90

TOOHEY J:  Not because of any question of statutory immunity

but simply because the section does not comprehend the conduct with which he was charged, is that the

- proposition?

MR PORTER: Well, if Your Honour pleases, we produce the

statutory immunity to reinforce our argument but,

fundamentally, we are not in disagreement with what

Your Honour says. You see, previously, there was

specific offences covering indecent assault, carnal

knowledge, attempted carnal knowledge, therefore

when you introduce a new offence and call it "act

of indecency" and it covers a clear gap that the

law reformers I have been talking about for some

years, then there is no reason to extend it beyond
the gap having regard to the fact that the other
matters are already covered by express offences,

but we reinforce that by the fact that unless you

do limit it in that way you will, in effect, be

abolishing your immunity.

TOOHEY J:  But when you put it that way there cannot be any

fall-back position related to prosecutorial

discretion. It is just a straight matter of

statutory construction.

MR PORTER: Well, if that is upheld, we do not need to fall

back. If it is not upheld, well then we fall back

to the prosecutorial discretion.

McHUGH J:  The contest is between the literal school of

statutory construction and the purpose of school of

statutory construction.

MR PORTER: But the modern Interpretation Act says that the

Court should follow the latter school, purpose

McHUGH J:	If you interpret 61E literally then the word "act of indecency" would cover this case clearly.
MR PORTER: That is right.
McHUGH J:	If you try to determine Parliament's purpose in

enacting 61E, it gives 61E a construction which is

designed to overcome the problem in Fairclough v

Whipp and the other case Rogers.

DAWSON J:  When you come to define an offence it would be

very difficult to define an offence which confined

itself to the very mischief which was being

attacked by the legislation. Inevitably in
criminal law you have offences overlapping for a

variety of reasons. I mean, indecent assault is

clearly covered by carnal knowledge and maybe this

Saraswati 10 10/10/90

trespasses on the area of indecent assault, but the

fact that there is overlapping is not surprising.

MR POR~£R:  Yes, Your Honour, we would say what Your Honour

said - - -

DAWSON J:  I mean, you take culpable driving causing death

and manslaughter which you are well aware of?

MR PORTER:  Your Honour, we would say what Your Honour has

said would generally be true, but not in this

particular context, because you see you have a

legislative history here where they have defined

the offences and they have made the statutory

immunity apply to all of the offences. Now that

was the legislative pattern right through from 1910

to at least 1974, but during that period they

discover a clearly defined and very tightly
confined gap and the gap is very clearly defined;

it is a gap where the defendant performs in the

presence of the victim without any violence towards

the victim, whether with or without the victim's

consent. Now it has been very precisely defined,

that area, and so although what Your Honour - - -

DAWSON J:  What has been precisely defined?

TOOHEY J: It is not defined; it is confined on your

argument.

MR PORTER: Well, defined and confined. It has been defined

for the point of exposing the gap in a number of

cases where persons escaped conviction for indecent

assault because there was no violence. It is

confined on my argument because it is quite clear

that it is in a completely different category to

the other offences, which is - - -

TOOHEY J:	You have to read section 61E(2) really to this effect, would you, Mr Porter? Any person who
commits an act of indecency, not being an act of
carnal knowledge or attempt to have carnal
knowledge or an indecent assault with or towards -
and so on.
MR PORTER:	Yes, if Your Honour pleases, that is

really - - -

TOOHEY J: Or alternatively, you simply give act of

indecency a meaning which excludes those particular

types of conduct.

MR PORTER: Yes, Your Honour, there are two ways one can get

there, and the authorities have used both ways.

The first way is the way that Your Honour has put

just then. The second way is a different way

altogether, and it says there that if you have a

Saraswati 11 10/10/90

carnal knowledge or an indecent assault or attempt
carnal knowledge, then such lesser offences as may

be encompassed in those matters merge into the main

- offence where there is a statutory immunity by way

of time for prosecution.

TOOHEY J: That is a much different argument, is it not?

MR PORTER: It is a closely related argument, but I do not

shirk from the fact, I do not withdraw from the

fact that it is a different one, but I would

question the word "much" different.

TOOHEY J: Trouble with the word "much"?

MR PORTER:  Yes. You see, if you look at it from the point

of common sense, we say that what has happened is

you have clear cases of indecent assault and carnal

knowledge. Everyone knows what they mean. You

have a statutory immunity which says you cannot

prosecute for them except within 12 months. So

what do you do? The 12 months has expired by a

matter of several years - I think it is three or

four years later - so you come along and say, "Well

look, we will not call them indecent assault.	We
will not call them carnal knowledge.	We will call

them act of indecency, and thereby we tear up

section 78."

TOOHEY J: That is coming perilously close to begging the

question though, is it not? I mean, your argument

may well be right if that is what act of indecency
means. But do you not first have to establish what

the section comprehends?

MR PORTER: Well, in our submission you first have to

establish what the section comprehends, or if I may

put it the purpose of the section, but in deciding

that question you have to keep firmly in mind the

fact that there is this statutory immunity.

DEANE J:

What if there is an act of indecency that is

clearly preliminary to carnal knowledge? rs the

position on your argument that if you go ahead, or

if you repent - if that is the right word - in time

and draw back, you are guilty of an offence, the
offence of an act of indecency? But if you do not
repent and draw back the offence will, as it were,

disappear by being merged?

MR PORTER: Well, Your Honour, on the authorities which we

submit are correct of the Queensland cases of

Fehring, Cooling and Brombey, and for that matter

the Victorian case of Whelan - they are both on

page 2 of my outline - the answer I give to

Your Honour is simply this: If perchance the

so-called preliminary act is clear and separate so

Saraswati 12 10/10/90

as to be an independent transaction, then he may be

punished for that as a separate independent charge.

But if, in fact, the so-called preliminary act is essentially part of the main transaction, then it

merges in the main transaction and he cannot be

separately charged.

DAWSON J: That is something I just do not understand

because you can have a lesser offence which is

comprehended by the greater offence and you can

prosecute for the lesser offence and it can be
brought in as an alternative verdict. Where, of

course, the verdict on the lesser charge would be

inconsistent with acquittal on the greater charge

where, for instance, the basis of acquittal on the
greater charge was consent, and obviously consent
is applicable to the lesser charge, then I can

understand that you cannot be convicted of either

or he must be convicted of the greater charge.

But, in a situation such as this, I simply do not understand that submission.

MR PORTER:  I do not know whether Professor Howard sets it

out with greater eloquence than I have just

attempted to expound it and I give the reference of

his fifth edition at pages 191 to 192.

DAWSON J:  He may say something but why; why is what you

say correct?

MR PORTER:  Why it is correct is simply this, if

Your Honours please, and this proposition only

applies in the context of a statutory immunity. It

is only an important question in the context of a

statutory immunity.

DAWSON J: Just take the proposition as you put it: that

where the lesser offence is comprehended by the

greater offence, it merges in the greater offence

and you can only be convicted of the greater

offence - that, to my mind, is completely wrong.

MR PORTER:  Your Honour, are we at cross-purposes? Is

Your Honour speaking as a general proposition of

law or in the context of a statutory - - -

DAWSON J:	As a general proposition.
MR PORTER:	As a general proposition of law, if we can get

away from this, Your Honour, I can say to you this:

that if a person is charged with armed

robbery - - -

DAWSON J: Well, then we are going over the same ground

because I asked you initially, putting one on one

side, the limitation period - - -

Saraswati 13 10/10/90

MR PORTER:  That is right. Putting aside the limitation

period, my argument does not dispute what

Your Honour said.

DAWSON J: Very well.

MR PORTER:  Where we say that the position does arise,

however, is if there is a limitation period.

DAWSON J:  Now, can I just, while I have interrupted you,

ask this further question? If the penalties are
different, and they clearly are - the penalty, as I
read it, for an act of indecency is half the

penalty for indecent assault, for example - then

why should not the legislature say, "Well, look,

this is a less important of.fence; the penalty is

very much less than for carnal knowledge, for instance, therefore it is not as important to

impose a limitation period".	Why should it not say
that?

MR PORTER: Well, if Your Honour pleases, there is no limit

to what the legislature may say if it wants to say

it but, in our submission, the legislature would

not say what Your Honour has just suggested because

it has no logical purpose about it. You see, if

there was a reason for giving a statutory immunity

to school boys or others who had a consensual

relationship with a girl under 16, whether it

amounted to indecent assault or carnal knowledge or

attempted carnal knowledge, and it is easy enough

to see the reason for the immunity, then -

DAWSON J:  I did not understand that when you first said it

because ·the thing that you say even an act of

indecency should be confined to comprehends, in

fact it really presupposes, some sort of a

consensual relationship, some sort of consent

anyway; no active participation on the part of the

accused and some voluntary act on the part of the

victim.

MR PORTER:  Well, no, if Your Honour pleases, normally an

act of indecency is a unilateral act, possibly

persuading the other person to do something -

possibly.

DAWSON J:	Well, in the cases, in fact, it does.
MR PORTER:	The normal act of indecency does not even

involve a physical contact. You see, wilful

exposure in the presence of a girl is an act of

indecency.

DAWSON J:  Could you charge someone who is charged normally

with indecent exposure with an act of indecency?

Saraswati	14	10/10/90
MR PORTER:	Of course you could.	Certainly when she is

under 16 you would charge him with that, yes.

TOOHEY_ iJ:  You say "she", and this perhaps raises another

point. Under section 61(2) the act of indecency is

not confined to a girl under the age of 16; it is

a person under the age of 16, whereas section 71

and section 72, of course, are concerned with

carnal knowledge or attempted carnal knowledge of a

girl under the age of 16. I do not know whether

there is any significance in that fact.

MR PORTER:  I do not think so, Your Honour, because there

is a complete code with regard to homosexual

relationships in a different part of the Act

altogether introduced in - - -

TOOHEY J:	But there is no reason why an act of indecency cannot be committed towards a male or female under
the age of 16, is there?
MR PORTER:	It could be that an act of indecency could be

committed towards a male or female - - -

McHUGH J:  But it does not affect your argument, does

it - - -

MR PORTER:	It does not really.
McHUGH J:	- - - because under section 61E(l) a woman

could be convicted of indecent assault.

MR PORTER:	That is right, yes, and has been.
TOOHEY J:	But it just makes the sort of attempted equation with section 71 and section 72 perhaps a little
more tenuous when you have a section which is not
confined to conduct relating to a girl under the
age of 16.
MR PORTER:	Well we would query that, if Your Honour

please, because when the - the first application of

this to women as defendants, I think, came in long

after the Act, I think it was in the 1930s - but we

would say that that does not affect the matter

one iota. You have still got the immunity period

and you have still got a very limited purpose for

section 61E(2). Interestingly enough, I think the

immunity period has normally only been thought to
cover male defendants qua female victims, but of

course in terms, as Your Honour Mr Justice Toohey

points out, that may well not be so. The immunity

period would appear to cover the other situation as

well, because that uses the word "person".

DEANE J:  But taking you back to your separate - - -

Saraswati 15 10/10/90

MR PORTER:  On the other hand - would Your Honour just

permit me before I lose this thread. On the other

hand, once you start applying the sections to the

male situation rather than the female situation you

run against the difficulty, of course, that

section 77, which is the key section about no

consent, is confined to females.

DEANE J:  Mr Porter, taking you back to your separate

transaction point, that will be relevant on the

question of multiple convictions in the sense

that - and it seems, to the extent that he refers

to it, that is part of what Professor Howard has in

mind.

MR PORTER: Yes, Your Honour.

DEANE J:  Now, in the multiple conviction case, that is

where the act of indecency is properly to be seen

as a precursor of carnal knowledge and distinct

from it, does your argument have any application to

that?

MR PORTER:  Your Honour, with respect, the words Your Honour

used may put the question wrongly. The fact that

is a distinct act but a precursor to it may leave

open the question as to whether it is a separate

transaction. That is the expression I would prefer

to use and the way it was put to the jury in the

Queensland cases that - you see, if it is so close

to the main transaction and a precursor to the main

transaction, then in the context of a statutory

immunity, it is, in fact, part of the main

transaction. But, on the other hand, if it were

quite separate from the main transaction, it would

not, and if I can illustrate that - - -

DEANE J:  I was asking it in a context of multiple

convictions, not of statutory immunity. Forget all

about statutory immunity.

MR PORTER: Well, in the context of ·multiple convictions,

Your Honour, it has been said that it is wrong - I

think even Mr Justice Mahoney referred to this

matter - to divide up one main transaction into

multiple parts when, in truth, it is the one

transaction and the answer to Your Honour's

situation in that case on the multiple conviction

point, it would be quite wrong to do it that way.

The only justification for doing it that way would

be if there was some doubt, say, about penetration

and he might be charged then. That would be a

justification for doing it that way, but it would

be quite wrong, regardless of any statutory

immunity, if you have a case of carnal knowledge,

to charge the person with act of indecency,

indecent assault, attempt carnal knowledge and

Saraswati 16 10/10/90

finally succeeding. That would have to be wrong.

You get it in this classical situation, of course,

that it would be quite ridiculous to charge someone

with attempt carnal knowledge and carnal knowledge

for the same transaction.

So, if I can sum up what I have said: in our submission, section 61E(2) involves on its proper

construction only matters that are not included in

section 61E(l), section 71 and 72. I am using the

numeration applicable at the time, in 1983.

We also say that the same result is reached in

another way by saying that if you have one of those offences under section 61E(l), 71, or 72, it is not permissible to take, as it were, incidents of the

one transaction for the purpose of avoiding the

statutory immunity contained in section 78 but,

rather, the incidents such as in this particular

case, an act of indecency, committed during an
indecent assault, a carnal knowledge or attempt

carnal knowledge merges into the main incident.

DAWSON J:  I am not sure of the way you put it; you say

merges. It merges on conviction.

MR PORTER:  No, but emerges before, in the context of a

statutory immunity.

DAWSON J: In the context of the limitation?

MR PORTER:	Yes.
DAWSON J:	Not otherwise?

MR PORTER:  Not otherwise, no, Your Honour. I thought I had

made it - - -

DAWSON J: Well, yes, but you keep - well, I understand that

everything you say on that subject is now covered

by the qualification because of the -

MR PORTER: Because of the statutory immunity, yes.
GAUDRON J:	When does it merge?
MR PORTER:	When does it merge?
GAUDRON J:	Yes .
DEANE J:	I think on your answer to what I was asking you

about it must be on conviction because I was asking

you regardless of the statutory immunity.

MR PORTER: Well, no, in my submission -

Saraswati 17 10/10/90

DEANE J:  I gave you the example of an act of indecency

preceding and completed before the act of carnal

knowledge and you said that the former merges in

the latter.

MR PORTER:  In answer to Justice Gaudron and in answer to

Your Honour, upon completion of the substantial

act, in my submission, the minor act merges into

the major act.

DEANE J: Regardless of conviction on the

MR PORTER: Regardless of conviction. It is not - - -

DEANE J:	And regardless of statutory immunity?
MR PORTER:	No, if Your Honour pleases.

DEANE J: Well, that is what I was asking about.

MR PORTER:  No, but Your Honour, I was trying to make this

distinction: the type of merger I am referring to

in my argument is a true merger in which, in

effect, the minor offence merges into the major at

the time of the completion of the major.

The type of merger to which Your Honour was

referring regardless of the statutory immunity is

probably a loose way of using the word "merger" at

all. It is merely a matter of prosecution policy

that the courts have directed to the prosecuting

authorities that it is wrong to divide offences up

into their constituents so as to create multiple

offences.

DEANE J: Well then, in answering my question you said it

merged, that is not what you meant, is that so?

MR PORTER: Certainly not merge in the sense that I have

been using it in relation to a statutory immunity.

DAWSON J:	Can I suggest something, Mr Porter, what you are saying is because of the time limitation and what
that indicates about the offence, a man who commits
carnal knowledge does not commit the offence of an
act of indecency?
MR PORTER:	No, that is right.

DAWSON J: It is not a question of merger, he just does not

commit the offence.

MR PORTER: Because the true offence he commits is

such-and-such and you cannot get round the

statutory immunity by giving it a different name.

Saraswati 18 10/10/90

DAWSON J: Whatever the reason, that is what you are saying,

if he commits carnal knowledge he does not commit

the offence of act of indecency?

MR PORTER: That is right, yes, that is precisely what I

say, if Your Honour pleases, and you get there the

two ways.

DAWSON J: It is not a question of lesser offences it is a

question of entirely different offences, mutually

exclusive offences.

MR PORTER: Well, that is one way of putting it and that is

my main -

DAWSON J: That is the way you put it, is it not?

MR PORTER:  That is my main way of putting it. The other

way of putting it is a different way of reaching
the same result. The merger argument is a

different way of reaching the same result.

DAWSON J:  I cannot see there is any room for merger.

MR PORTER: Well, in our submission - and it is adopted, as

I say, from a number of Queensland and Victorian

authorities and from Professor Howard - that is

another way of reaching the same result as we would

prefer to get to by direct construction - - -

DAWSON J: But how do you justify it logically, apart from

Professor Howard and the - - -

MR PORTER:  And the courts?

DAWSON J: Yes.

MR PORTER:  How do I justify it logically? On the simple

basis that the court is astute to so construe

offences as not to permit a statutory immunity to

be bypassed contrary to the will of Parliament.

DAWSON J: That is still saying they must be different

offences, entirely different.

MR PORTER: Well, I am sorry I cannot agree with that, I say

there are two ways of reaching the same result.

TOOHEY J:  So that if a person was charged with an act of

indecency would it be a defence to say, "I had

carnal knowledge of the girl and she was under 16".

MR PORTER:  It certainly would if there was a statutory

immunity for carnal knowledge - - -

Saraswati 19 10/10/90

TOOHEY J:  No, but statutory immunity aside, if as you

suggest and I understand the argument that act of

indecency in section 66E(2) - - -

MR PORTER:  61E(2)

TOOHEY J: Sorry, 61E(2) is an offence quite distinct from

the other offences of which you have spoken, then

would it not be a defence to a charge of an act of

indecency to say that the conduct fell within one

or other of those sections?

MR PORTER: It would, yes. Yes, it would. The plea would be - one would normally not claim that unless the statutory immunity period had expired but assume

one is charged - that is precisely what happened in

this trial. We said, in effect, these indecent

assaults and these carnal knowledges with which he

is charged cannot be put up in the guise of

section 61E(2) because section 61E(2) - - -

TOOHEY J: It was a different factual situation because your

client said that the incidents did not happen.

MR PORTER:  Oh quite, yes, but we simply say that

section 61E(2) does not apply to that sort of

event. Your Honours, as I say, until the present

case, that is the one under application to

Your Honours - until Saraswati's case which is now
reported in 18 NSWLR 143, there did not seem to be

any New South Wales authority on this matter at

all, but so far as the other States are concerned,

the leading authorities are Pople in

South Australia in 10 SASR 448, which was rather

criticized by a later South Australian case,

Salmon, to which I refer in paragraph (b) of main

paragraph 3, but where the court said,

"nevertheless it was bound by it". On the other

hand, the New Zealand authority of Blight is direct

authority in favour of our proposition and we get

support from the Queensland cases of Cooling,

Fehring and Brombey and the Victorian case of Whelan.

DAWSON J:  Some of those cases are cases which involve the

issue of consent, are they not?

MR PORTER:	I do not think so, Your Honour.
DAWSON J:	None of them?

MR PORTER:  No, I do not think so, Your Honour. I think you

Your Honour is probably referring to English

authority. There is no doubt about the proposition

that -

DAWSON J: Well perhaps if you take us through them.

Saraswati 20 10/10/90

MR PORTER:  There is no doubt about the proposition that if

you have a person charged with rape with an

alternate verdict possible of indecent assault and

- the issue was consent, then if there was consent it

covers both. If the only - - -

DAWSON J: If there is one physical act.

MR PORTER:  No, but if the only issue at the trial was

consent, it is difficult to see how you can justify

an indecent assault conviction and acquittal on

rape.

DAWSON J: That is right, unless you can clearly separate

what is said to be the indecent assault as a

separate incident, in which case you might,

somewhat artificially, say, "Well there was no

consent to that, but consent to the rape."

MR PORTER: There could have perhaps have been two distinct

incidents in separate rooms on the one night.

DAWSON J:	I meant one.
MR PORTER:	No, the authorities I am referring to are not those and, with great respect, I do not think they
have that much to do with it. The authorities I am
referring to are, in fact, the authorities of
constructing these sections in the context of a
statutory immunity.

DAWSON J: Well you are going to take us quickly through

them, are you?

MR PORTER:  That is right. Your Honour, in the New Zealand

case of Blight, 22 NZLR 837, there was an offence

of carnal knowledge for which there was a statutory

immunity and there was an offence of indecent

assault for which there was not. The issue was

quite well put by counsel for the appellant at

page 838, when he said, half-way through the

paragraph at the top:

Section 188 is a general section dealing with

indecent assault on all females. Section 196

is a special section dealing with carnal

knowledge of girls between the ages of twelve

and sixteen, with a special time limit. The

special time limit must apply wherever the

offence is really one under the special

section.

That is one way in which the argument has been

frequently put.

The Chief Justice and Mr Justice Conolly

dissented, Mr Justice Williams, Denniston, Edwards

Saraswati 21 10/10/90

and Cooper were in favour of the argument.	If I
can come firstly to the judgment of

Mr Justice Williams - it is the third page of his judgment, down at the bottom of the page, he says:

It seems to me that the effect of this is to

exclude the offences created by section 196

from the operation of section 188, and that if

the facts show that a man has committed an

offence under section 196 -

that is carnal knowledge -

he must be prosecuted under that

section ..... If the Legislature prescribes in a later section a time limit for the prosecution

of acts constituting a particular offence,

that time limit ought not to be evaded by the

prosecution, under an earlier section which

has no time limit, of the same acts under a

different name.

And that is precisely how I have put it in my

argument.

DAWSON J:  The answer to that, really, is provided by

Chief Justice Stout, is it not, at 844. He says:

If this conviction is not upheld it means that

prisoners who commit the full offence will
escape even for indecent assault if the
prosecution is not begun in a month, whilst

prisoners who proceed no further than the

indecent assault will be liable to punishment

even if the prosecution is not begun for years

afterwards.

MR PORTER: That may be so.

DAWSON J: So, there is a certain degree of illogicality on

either side.

MR PORTER:  Your Honour, one has to concede that in the

New Zealand case, the legislative pattern was

nowhere near as logical as the New South Wales

legislative pattern. But what Mr Justice Williams

went on to say was:

If the above construction be not adopted the

result is that no effect could be given to

section 196, and that section would be

practically expunged from the Act, and the

protection given by the time limit would be

quite illusory.

And that is the other argument.

Saraswati 22 10/10/90

DAWSON J: Well, that is hard to understand too, is it not,

because the lesser offence is not the same. The

penalty is not the same, so effect is given to the

time limit.

MR PORTER: No, in this particular case, if Your Honour

please, in New Zealand - - -

DAWSON J: Is that right?

MR PORTER: That did not apply either.

DAWSON J: Well, it would here.

MR PORTER:	Yes.
McHUGH J:	Do you rely on the general principle and

interpretation which Mr Justice Dixon referred to
in the Anthony Hordern case, 47 CLR 7, when he

said:

When the Legislature explicitly gives a power

by a particular provision which prescribes the

mode in which it shall be exercised and the

conditions and restrictions which must be

observed, it excludes the operation of general

expressions in the same instrument which might

otherwise have been relied upon for the same

power.

MR PORTER: Precisely, if Your Honour please, and that is,

in effect, what the judges in Blight said because

Mr Justice Denniston put it in the second page of

his judgment that:

By merely giving the offence a different

name - by describing the transaction disclosed

on the depositions in terms of one of its
incidents - the person charged can be

convicted of an offence involving liability to

a longer sentence, with the additional

penalty -

et cetera.

DAWSON J: That would lead to absurd results, would it not,

Mr Porter? You would be able to charge carnal

knowledge and an act of indecency as alternatives,

whatever the time situation was would you not?

MR PORTER:  If Your Honour please, you could only charge

them as alternatives if you brought the prosecution

within 12 months.

DAWSON J: Well, assume that there was some dispute about it

and the defence was raised in one form or another

that no, the time limit had been passed for carnal

Saraswati 23 10/10/90

knowledge, then the result would be that he is not

convicted of an act of indecency.	I suppose you
could say that is what follows.

MR PORTER:  That is right. Your Honour, it may well be, and

one cannot help but notice this when you go to the

legislative patterns of all of these areas, whether

England - New South Wales probably has the most

logical pattern of the lot, but they all have

logical flaws.

DAWSON J:  The - I can't think of a better word - the

absurdity, or it would seem to be that, is that to

a charge of an act of indecency you can raise a

defence of carnal knowledge if the time limit is

passed. But you would say that is not an

absurdity? ·

MR PORTER:  It is not an absurdity at all.

DAWSON J: That the legislature intended all of these

offences.

MR PORTER: That is right, yes. The legislature intended

that if someone was guilty or someone was alleged

to be guilty of something that was in substance

carnal knowledge, attempted carnal knowledge or

indecent assault, then - - -

DAWSON J: It is an absurdity really, is it not?

MR PORTER:  - - - he was not to be prosecuted unless he was

prosecuted within 12 months.

DAWSON J:  It is ·an absurdity because you do not say that an

act of indecency was intended to be subject to a

time limit.

MR PORTER:  No, because the act of indecency, as

contemplated by the section - - -

DAWSON J: So, it is absurd to say that to a charge of act

of indecency within the proper time it is a defence

to say, "I was guilty of carnal knowledge"?

MR PORTER: Yes, Your Honour. I mean, if you are against my

argument Your Honour would put it that way; if you

are in favour of my argument you would say, "I am

entitled to the statutory immunity and this is the

way to getting around it". You do not say, "I was

guilty of carnal knowledge", you say, "I am

entitled to the statutory immunity".

DEANE J: But do you say that if you accept, as you did, what Justice McHugh put to you and that is that

this comes within what was referred to by

Mr Justice Dixon. Because, if you accept that, do

Saraswati 24 10/10/90

you not have to say that regardless of the time

limit the very fact of the existence of the special

procedure involving a time limit precludes
proceedings for act of indecency within or outside

time?

MR PORTER:  Your Honour, I do not shrink from that for one

moment. I thought I had made this perfectly clear.

We say that act of indecency means the sort of act

which is unilateral and does not involve anything

in the nature of an assault whether with or without

consent by the defendant upon the victim.

McHUGH J:  To be logical you have got to argue that 61E(2)

is not applicable to this sort of case inside or

outside the time limit.

MR PORTER: Quite, yes. There is no difficulty about that

but it is because, we say, because of the time

limit contained in section 78, that this

construction for which there would otherwise have

been strong arguments anyhow, but this

construction, in our submission, takes on
compelling force because otherwise, you, in effect,

emasculate section 78.

McHUGH J:  So that if a person was charged with an indecent

act and the facts arising from the committal

proceedings pointed to the commission of an offence

under 71 or 72 or, for that matter, under 61E(l),

then the charge would be demurrable.

MR PORTER: That is right. That is just perfectly true.

McHUGH J:  It would have to be, on your argument.

MR PORTER: That is so, yes.

McHUGH J: That is the necessary consequence of the

proposition.

DEANE J: Or, put differently, it would be a defence to a

charge of an act of indecency to prove that you

were guilty of carnal knowledge and if the

12 months had expired in the meantime it would be a

very good defence to hold up your sleeve.

MR PORTER: Yes, Your Honour, as I pointed out to

Mr Justice Dawson, there are two ways of describing

the defence. If you do not like it you say you are

pleading guilt for the more serious offence as a

defence to the lesser. But, if you do like the

argument you say, "I am relying upon a statutory

immunity which the Crown is trying to get around by

describing an offence by a different name".

Saraswati 25 10/10/90

TOOHEY J: But it does apply statutory immunity or not; they

are two distinct offences. The reason - - -

MR PORTER: Yes, that is right.

TOOHEY J:  which does produce an oddity, to say the

least.

MR PORTER:  I am not quite sure that I follow what Your Honour has just put.

DEANE J: Well, for example, say that they are charged in

the true alternative within time, does the judge
say to the jury, "Unless you are satisfied beyond

reasonable doubt that carnal knowledge occurred,

you will acquit on that charge and if you have a

doubt that carnal knowledge may have occurred, you

will acquit on the act of indecency charge".

MR PORTER:  Assumes he has been charged with two

alternatives.

DEANE J: Yes, act of indecency, carnal knowledge, as true

alternatives, not as one in compass.

MR PORTER: Yes. As I see the situation, it never gets to

that because counsel would move to take the act of

indecency case away from a jury on the basis that

there was no evidence to go before the jury of act

of indecency.

DEANE J:  No. Say the evidence plainly establishes act of

indecency but the Crown goes further and alleges,

which is denied, that he had gone on and committed

carnal knowledge.

MR PORTER:  I see, two separate incidents, yes.

DEANE J: Yes, and what I put to you is, he cannot be

convicted of carnal knowledge unless carnal

knowledge is proved beyond ·reasonable doubt.

MR PORTER: That is so, yes.
DEANE J:	On your argument, he cannot be convicted of act of

indecency if there is a reasonable doubt about

carnal knowledge.

MR PORTER:  I am sorry, Your Honour, you have lost me

because the - - -

DEANE J: Well, perhaps it is not worth pursuing.

MR PORTER:  No, the example Your Honour gave was two

different incidents but if you assume that -

DEANE J:  No, one leading into the other.

Saraswati	26	10/10/90
MR PORTER:	Yes.	If you have two different incidents, one

leading into the other, it seems to me that the

problem Your Honour has raised does not arise on

that because you have got two distinct allegations

supported by two distinct bodies of evidence.

DAWSON J:  No, but say the Crown alleges just the one;

serious, but the accused said, "No, no, I didn't go

as far as that. I stopped at this point".

MR PORTER: Well, it would be a complete defence to a charge

of carnal knowledge to say that, "I didn't have

carnal knowledge", obviously.	I do not quite get
what Your Honour is -

DEANE J: But what if the jury found him not guilty of

carnal knowledge on the ground that they thought he

had had it but they were not convinced beyond
reasonable doubt?

MR PORTER:	Yes.
DEANE J:	Can he then be convicted of act of indecency even

though on your argument -

MR PORTER:  Only if the act of indecency was an entirely

separate incident.

DEANE J: Yes. Well, that is the point, yes.

MR PORTER: But, only. But, if the alleged act of indecency

was, in effect, part of the main transaction of alleged carnal knowledge, no. You see, I think

some little time ago I put it to Mr Justice Dawson

that you could have a situation in which he was

guilty of an act of indecency in one room; then he

moved to another room and had carnal knowledge.

Well, obviously, the act of indecency could be

separately charged in that case.

DEANE J:  But, you see, what you a~e putting, though, is

that if it is clear beyond any doubt that he has

committed an act of indecency viewed in isolation,

if it is a complete defence to any charge if he can

prove or if it emerges that he probably had carnal

knowledge but there is a doubt about it.

MR PORTER:  I think that probably goes that far. If the

facts alleged are as - you see, in this particular

case that Your Honours have before you there was

never any doubt about that - they were clearly

indecent assaults and carnal knowledge - but if

there was a situation before the jury in which

there was a very real doubt as to whether the

alleged act of indecency was a separate transaction

to carnal knowledge, well, then, he is entitled to

Saraswati 27 10/10/90

be acquitted. That must follow from the argument I

have been putting up to Your Honours.

McHUGH J: That sort of problem arises quite independently

of this section does it not, in practice, because

somebody is charged with carnal knowledge and the

question arises whether there can be a verdict of

indecent assault in the alternative?

MR PORTER:	Yes sir.
McHUGH J:	And if the jury has got a doubt as to whether it

is part of the one transaction then he is

acquitted.

MR PORTER: That is right. That is so, if

Your Honour pleases, that is precisely the effect

of some of the Queensland cases. But normally

there is not that much difficulty about working out

whether it is part of the one transaction or not.

DEANE J: Well, what I was putting was not so much one

transaction. I mean, say you are on alternative

charges; the jury go out and say, "We are convinced

beyond reasonable doubt that what he did was an act

of indecency viewed in isolation but we think it is

probable that he also had carnal knowledge - - -

MR PORTER: That it was simply a part of a - - -

DEANE J: Yes, "but we are not convinced beyond reasonable

doubt that he did have carnal knowledge". There

meaning to what the law was then and if per chance

Parliament has adopted some sort of impression of

the law in 1984, it still cannot affect what the

law was in 1983.

DEANE J: But it may well be, may it not, that if you were

faced with it now 78G to T have, by effectively

introducing a code, taken male homosexual offences

out of the previous provisions altogether.

MR PORTER: Well, that could be so, if Your Honour pleases.

You see, the trouble with this sort of legislation

is that people tend to draft it politically as well

as legally. There was a time when politically it

was nice to put in "person" instead of "girl". think anyone really thought about what they had

done to.the rest.

TOOHEY J: But can that be right? Are you suggesting that

when 61E(2) was introduced that the Act used the

expression "person" to refer only to "girl"?

MR PORTER: No. Section 76A, as I recollect, originally did

only refer to "girls" and then section 61E(2)

changed it to "persons".

TOOHEY J: Yes, I appreciate that. I am not sure what you

seek to derive from that.

MR PORTER: But, Your Honour, what I am saying is this,

that having done that, I do not know whether the

draftsman who introduced the homosexual provisions

was really aware of what he had left in

section 61E(2). But, Your Honour, it may well be

that the proper construction - and there is no

authority on this, I am pretty sure - of the new

sections 78G to 78T would be that they are intended

to create a code as to homoseYual conduct and,

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therefore, they have produced an implied amendment

of section 61E(2). I do not think any of that

really affects the question before Your Honours.

The final matter, Your Honour, was I thought I

had made it very clear in my submissions that it

was no part of our submissions that normally sexual

intercourse is an act of indecency. Just what is
an act of indecency? Juries are usually

instructed, according to the decision of this Court

in Crowe v Graham, 121 CLR 375 which, although it

was related to indecent publications, is the

standard direction given in indecency cases

generally. I think the test is, "What would offend

the sensibilities of the average man or woman?" What I said in my submissions is this, that

whether intercourse between persons under 16 was of

itself indecent or not is a question which may have

to wait for decision, but why there was indecency

in this case was the disparity of ages between the

accused and the victim, she then being 15 and he

then being considerably older.

McHUGH J: Well, is it that so much as the lack of consent?

MR PORTER:  No, there was consent.

TOOHEY J: Fairly reluctant one, would you not feel?

MR PORTER:  No, Your Honour, there is no good defence in

law, that is right and it may well be - I mean, as

I say, the question of ordinary, normal sexual intercourse between two young people under the age

of 16 may or may not be indecent. On one argument,

it would have to be indecent because neither of

them are entitled to consent to it. That is one

argument, but whether that argument carries it that

far or not, I do not know.

TOOHEY J: But, it is not part of your argument that the

acts in question did not fall within the

subsection.

MR PORTER: But, what I was seeking to explain was this:

that by no means do I argue or did we ever concede

that, as a general proposition, an act of sexual

intercourse in private was indecent, but the

particular circumstances of these acts left us no

alternative but to concede that they were indecent
if they had, in fact, occurred.

It did come to my attention over the lunch hour that the case to which

Mr Justice Badgery-Parker referred as to the

discretion of Crown prosecutors to accept pleas of guilty to lesser offences and generally as to plea

Saraswati 56 10/10/90

bargaining, the case of Brown - it was then

unreported - is now reported in 44 A Crim R 385,

and the relevant passage is page 392 about there

- may be circumstances where the decision of the

prosecuting authorities to charge a person with one
offence to which he is prepared to plead guilty
rather than another and more serious offence which
is apparently committed, is an abuse of the process

of the court. There may be but they have not spelt

it out.

That authority, for what it is worth, is

clearly authority for the proposition that the

Crown prosecutor's discretion is by no means

completely uncontrolled by the court and if my

submission is correct that what was done in this

case was an abuse of process, then the court has

the jurisdiction, of course, to interfere.

Your Honours, it would be my submission that

if we succeed in our appeal, then the only result

could be the quashing of the convictions. No

question of a new trial arises in these cases

because, if my submissions are correct, there was

no case to go to jury on any charge.

DEAME J: Thank you, Mr Porter. Mr James, have you anything

to say in relation to the last matter, that

is - - -

MR JAMES:  No, Your Honour.

DEANE J:  Very well. The Court will consider its decision.

AT 2.17 PM THE MATTER WAS ADJOURNED SINE DIE

Saraswati 57 10/10/90