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Court of Criminal Appeal 24 May 2001

R v Miller

[2001] NSWCCA 209

Also reported as 127 A Crim R 344
Sexual offences
CRIMINAL LAW CARNAL KNOWLEDGE BY STEP FATHER OF STEP DAUGHTER WHETHER STEP HELD NO

Citation: R v Miller [2001] NSWCCA 209
Court: Court of Criminal Appeal, New South Wales
Date: 24 May 2001
Judge(s): Giles JA; Greg James J; Badgery-Parker AJ

Background

The appellant was charged on an indictment containing two counts. The first alleged sexual intercourse without consent. The second alleged that, being a "step-father," he unlawfully carnally knew the complainant, who was then aged between 16 and 17 years, contrary to s 73 of the Crimes Act 1900 (NSW).

The agreed statement of facts revealed that the appellant and the complainant's mother began living together in November 1997. The appellant was described as a father figure in the household, though the complainant's mother exercised the primary control. The offending occurred in June 1998, and the appellant and the complainant's mother married on 20 June 1998, after the offending had taken place.

At sentencing, questions arose as to whether the relationship of step-father and step-daughter existed at the time of the offence, given that the appellant and the complainant's mother were not yet married. The sentencing judge, Freeman DCJ, ultimately granted leave to the Crown to withdraw its acceptance of the guilty plea, holding that marriage was necessary to establish the step-relationship under s 73. The appellant appealed that ruling.

  • Whether the term "step-father" in s 73 of the Crimes Act 1900 extends to a man in a de facto relationship with the complainant's mother, particularly where he also lives in the same household and assumes a paternal role.
  • Whether "step-father" can mean, more broadly, any person who is not the biological father but is in a position of authority or control over the complainant at the time of the offence.
  • Whether the guilty plea to the second count was validly available on the agreed facts.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, agreeing with Freeman DCJ that marriage between the offender and the complainant's mother is a necessary prerequisite for the step-father and step-daughter relationship under s 73 of the Crimes Act 1900.

Giles JA conducted a detailed analysis of the legislative history of s 73, tracing its origins back to the Criminal Law Amendment Act 1883. His Honour observed that the word "step-father" had acquired a clear legal meaning at common law, one founded on marriage rather than cohabitation. The legislature's use of a term with established legal content was taken to reflect an intention to adopt that meaning in the absence of any contrary indication in the statute.

The Court rejected the appellant's broader arguments. The suggestion that additional elements such as shared household and assumption of a paternal role could substitute for marriage was not accepted. The third ground of appeal, which would have dispensed with any marital or quasi-marital relationship entirely and defined "step-father" by reference only to authority or control over the child, was rejected even more firmly. The Court observed that such an approach would create unacceptable uncertainty about the scope of criminal liability, particularly given the need for the identity of persons within a criminal provision to be ascertainable by clear and established principles.

The Court also noted the practical difficulties that would arise from basing criminal liability on a de facto relationship. As Giles JA observed, the short-lived nature of the association between the appellant and the complainant's mother in this very case illustrated how uncertain the boundaries of such a relationship can be.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 73 of the Crimes Act 1900 (NSW), the term "step-father" carries its established common law meaning, which requires marriage between the offender and the complainant's mother. A de facto relationship alone is insufficient.
  • Where a word in a criminal statute has acquired a recognised legal meaning, courts will apply that meaning unless the legislative context clearly indicates otherwise. No such contrary intention appeared in s 73.
  • A broader construction of "step-father" based on cohabitation, assumption of a paternal role, or mere authority and control over the child was rejected as creating unacceptable uncertainty in the scope of criminal liability.
  • The Court of Criminal Appeal confirmed that Freeman DCJ was correct to grant leave to the Crown to withdraw its acceptance of the guilty plea once it became apparent that the facts did not support the legal elements of the charge.
  • In dismissing the appeal, the Court reinforced the principle that terms defining categories of offender in criminal provisions should be ascertainable by established legal principles, not by variable factual assessments of domestic arrangements.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I, s 73
- Criminal Law Amendment Act 1883 (NSW), s 43
- Criminal Appeal Act 1912 (NSW), s 5F(3)

Cases:
- Beckwith v R (1976) 135 CLR 569
- Re Burt (1988) 1 Qd R 23
- Re Cook; ex parte C (1985) ALJR 669
- Dickenson v Fletcher (1873) LR 9 CP 1
- Mander v O'Toole (1948) NZLR 909
- Murphy v Farmer (1988) 165 CLR 19
- R v Arnold (1992) 65 A Crim R 337
- R v Brown (CCA, 9 December 1998, unreported)
- R v Campbell (1968) Tas SR 38
- R v Dawson (1927) 27 SR 78
- R v Frith (1914) VLR 658
- R v G (1997) 91 A Crim R 590
- R v Geddeson (1906) 25 NZLR 323
- R v Reid (1901) 3 WALR 109
- R v Umanski (1961) VR 242
- Tuck & Sons v Priester (1887) QBD 629
- Waugh v Kippen (1986) 160 CLR 156
- Wilkinson v Joughin (1866) LR 2 Eq Cas 319