R v A G [1997] ACTSC 41; (1997) 129 ACTR 1 (4 June 1997)

SUPREME COURT OF THE ACT

THE QUEEN v. A G
No. SCC 52 of 1996
Number of pages -
3
Criminal law
[1997] ACTSC 41; (1997) 129 ACTR 1

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Criminal law - sexual intercourse with a young person less than 10 years of age - replacing common law offence of rape - ss92-92U Crimes Act 1900 (ACT) - definition of "sexual intercourse" - meaning of the term "vagina".

Words and phrases - "vagina" - "sexual intercourse".

Crimes Act 1900 (ACT), Part 111A, ss92-92U

Crimes Act, 1900 (NSW), s61A

R v Hill (1781) 1 East P C 439

R v McRue (1838) 173 ER 653; 8 C & P 641

R v Allen (1839) 173 ER 727; 9 C & P 31

R v Hughes (1841) 169 ER 75; 2 Mood 190

R v Lines (1844) 174 ER 861; 1 C & K 393

Holland v R [1993] HCA 43; (1993) 117 ALR 193

HEARING

CANBERRA, 2-5 June 1997 (hearing), 4 June 1997 (decision)

4:6:1997

Counsel for the Crown: Mr G Tilse

Instructing solicitors: Director of Public Prosecutions

Counsel for the Accused: Mr B Collaery

Instructing solicitors: Bernard Collaery & Associates

ORDER

THE COURT RULES THAT:

1. There is no prima facie case supporting the counts on the indictment as presented. 2. Leave granted to the Crown to present an amended indictment.

DECISION

HIGGINS J

In this trial, an indictment was presented alleging that the accused had "engaged in sexual intercourse" with a young girl, his step-daughter, then aged less than 10 years on four occasions. There were four counts in relevantly similar terms.

However, the Crown evidence was that there had been no penetration of the vagina of the girl as that part of the body is described for anatomical purposes. The Crown case was, therefore, that the accused had penetrated the girl's genitalia with his penis up to but not beyond her hymen.

At common law, to constitute the crime of rape, proof of penetration to any extent of the genitalia of a female by the penis of a male person was necessary, see R v Hill (1781) 1 East P C 439. Proof of rupture of the hymen was not required, see R v McRue (1838) 173 ER 653; 8 C & P 641, R v Allen (1839) 173 ER 727; 9 C & P 31, R v Hughes (1841) 169 ER 75; 2 Mood 190, R v Lines (1844) 174 ER 861; 1 C & K 393. Thus the Crown evidence in this case could support penetration as that term is understood to apply in the offence of rape.

In 1985, however, the offence of rape was abolished in the Australian Capital Territory, being replaced by Part 111A, ss92-92U Crimes Act 1900 (ACT). Those provisions created a number of sexual offences including, in s92E, the offence of engaging in "sexual intercourse" with a young person.

The term "sexual intercourse" is defined by s92 to mean, inter alia,

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person.

It is the meaning of the term "vagina" as used in that definition which is in issue.

Dr Sue Packer gave evidence that from an anatomical perspective, the vagina is defined as the passage between the cervix and the hymen. The area from the external genitalia to the hymen is called the introitus.

In 1988, the Crimes Act, 1900 (NSW) was amended to include, as part of new provisions (subsequently repealed), a definition of "sexual intercourse" in the following terms, inter alia, s61A,

... sexual connection occasioned by the penetration of the vagina of any person ... by; (i) any part of the body of another person.

That is almost identical to the relevant part of the definition introduced into this Territory in 1985.

In Holland v R [1993] HCA 43; (1993) 117 ALR 193, the High Court of Australia was required to define the term "vagina" appearing in the New South Wales provision. It was argued that sexual intercourse was to be taken to include penetration of the parts of the female genitalia external to the vagina.

Mason CJ, Brennan, Deane and Toohey JJ held, 197-198, rejecting that argument,

It is true that the requirement of penetration in the case of common law rape could be satisfied without penetration of the actual vagina. It is also true that, as the Crown suggested, the word "vagina" is commonly used to refer generally to the female genital area ... in the context of a criminal provision such as s61A which contains an exhaustive definition of "sexual intercourse", the word must be understood as used in the narrower and technically correct sense of meaning the female organ consisting of the membraneous passage or channel leading from the uterus to the vulva.

Whilst dissenting from the result arrived at by the majority, Dawson, Gaudron and McHugh JJ, nevertheless accepted that interpretation of s61A as correct. It should be noted that lack of penetration would not preclude prosecution for attempted penetration or the characterisation of the alleged acts as "acts of indecency".

The definition of "sexual intercourse" in s92 Crimes Act 1900 (ACT) is equally exhaustive. It is not possible to find any relevant difference between the sense in which the term "vagina" was used in s61A and the sense in which it is used in s92.

I consider, therefore, that I was bound to rule that the indictment as presented by the Crown was not supported by the evidence it had presented. Indeed, that evidence excluded the possibility that any such offence had occurred. However, I did permit the Crown to present an amended indictment to reflect those offences of which there was prima facie evidence. The Crown then elected to charge four counts alleging the commission of acts of indecency and presented an amended indictment accordingly. As that amended indictment relied on the same facts and evidence as had previously been notified and presented, there was, in my view, no injustice to the accused in permitting that indictment to be received and adjudicated upon by the jury.