Citation: Regina v Rodgers [2005] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 22 April 2005
Judge(s): Grove J, Howie J, Latham J
Background
The applicant had pleaded guilty in the Sydney District Court in February 1998 to eleven counts in an indictment, including counts of indecent assault and sexual intercourse with a child under sixteen years contrary to s 61D(1) of the Crimes Act 1900. He was sentenced accordingly, and in August 1999 the Court of Criminal Appeal granted him leave to appeal against the severity of his sentence, reducing the sentence on one count.
More than six years after his conviction and five years after that earlier appeal, the applicant filed a fresh application seeking an extension of time to lodge a further appeal. He appeared without legal representation.
The applicant argued that the conduct underlying his sexual intercourse convictions, specifically acts of fellatio, did not constitute "sexual intercourse" within the meaning of the relevant legislation, and that those convictions should be substituted with convictions for indecent assault.
Legal Issues
- Whether the court should grant an extension of time to lodge an appeal more than six years after conviction and five years after a previous appeal.
- Whether the statutory definition of "sexual intercourse" in force at the time of the offences extended to acts of fellatio, such that the applicant's convictions were legally sound.
- Whether the court retained jurisdiction to entertain a second appeal in these circumstances.
Decision
Grove J (with Howie J and Latham J agreeing) examined the legislative history of the definition of "sexual intercourse" in the Crimes Act 1900. He noted that, while the applicant correctly identified that an extended definition had been introduced by legislation commencing 14 July 1981, the applicant's account was incomplete. When that provision (originally s 61A) was repealed, it was re-enacted in substance as s 61H.
The court found that an extended definition of sexual intercourse, which expressly included acts of fellatio, had been in continuous operation from 1981 through to the time of the applicant's offences. The relevant counts (counts 5, 7, 9 and 11) all related to conduct occurring from January 1982 onwards, meaning the extended definition applied at all material times.
Because the applicant's argument had no legal merit, the court found it unnecessary to separately consider whether a second appeal, brought so long after conviction, should be permitted as a matter of jurisdiction or discretion. The absence of any arguable ground was itself sufficient to refuse the application.
Orders Made
- Extension of time for lodging appeal refused.
Key Takeaways
- The extended statutory definition of "sexual intercourse" in the Crimes Act 1900, encompassing acts such as fellatio, was introduced in 1981 and remained in continuous operation throughout the relevant period, notwithstanding subsequent renumbering of the provision.
- Charges describing acts of fellatio as "sexual intercourse with a child under sixteen" were properly brought under the definition in force at the time of the offences.
- Refusing the extension of time, the Court of Criminal Appeal observed that where an applicant's proposed grounds of appeal are entirely without merit, it is unnecessary to separately determine whether a second appeal is permissible or whether jurisdiction exists to entertain it.
- A significant delay in seeking an extension of time (here, more than six years from conviction) compounds the difficulties for an applicant, particularly where no arguable legal error in the original proceedings can be identified.
- Repeal and re-enactment of a statutory provision under a different section number does not, without more, create a gap in the law or render prior conduct charged under the definition invalid.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61D(1) (sexual intercourse with a child under sixteen)
- Crimes Act 1900 (NSW), s 61A (former extended definition of sexual intercourse, introduced 1981)
- Crimes Act 1900 (NSW), s 61H (successor provision to s 61A)
Cases cited: None identified in the provided text.