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Court of Criminal Appeal 12 February 2024

Lam v R

[2024] NSWCCA 6

Sexual offences
REPEALED S 81 OF CRIMES ACT 1900 (NSW)

Citation: Lam v R [2024] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 12 February 2024
Judges: Meagher JA; Garling J; Weinstein J

Background

The applicant, a former teacher at a boys' school, was charged with 15 counts of indecent assault upon male persons contrary to the now-repealed s 81 of the Crimes Act 1900 (NSW). The alleged offending occurred in 1978 and involved four male students aged between 13 and 16 years. The alleged conduct included penile-vaginal intercourse, masturbation, fellatio, and instructions to the students to perform sexual acts on the applicant.

The applicant applied to the District Court by way of demurrer and an application to quash the indictment or permanently stay the proceedings. The primary judge, Girdham SC DCJ, rejected those applications in July 2023. The applicant then sought leave to appeal to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

The central question on appeal was whether s 81, as it stood in 1978, was capable of applying to conduct by a female upon a male at all.

  • Whether s 81 of the Crimes Act 1900 (NSW), which prohibited "indecent assault upon a male person," extended to sexual conduct committed by a female upon a male, or was confined to male homosexual conduct.
  • Whether the charges in the indictment were deficient in form because they did not use the language of s 81.
  • Whether the prosecution should be permanently stayed on the basis that a 2023 jury could not fairly apply the community standards relevant to "indecency" as they existed in 1978.

Decision

Construction of s 81 (Ground 1)

The Court of Criminal Appeal allowed the appeal on the first ground, holding that s 81 was directed exclusively at male homosexual conduct and did not apply to conduct committed by a female upon a male. Meagher JA, with Garling and Weinstein JJ agreeing, traced the legislative history of s 81 from its origins in English sodomy and "unnatural offences" legislation, through to the Offences Against the Person Act 1861 (UK) and the Crimes Act 1900 (NSW). That history confirmed that the provision was directed at conduct which was considered inherently "unnatural" and "indecent" without regard to consent or age, a characterisation that applied only to male homosexual acts at the time.

The Court placed considerable weight on the additional words in s 81 "of whatever age, with or without the consent of such person." Those words signal that the conduct proscribed was inherently indecent regardless of consent or the age of participants. The only sexual conduct fitting that description at the time of enactment was male homosexual activity. By contrast, s 76, which dealt with indecent assault on females, required consideration of the complainant's age and consent before the conduct could be characterised as indecent. Kirby J's observation in Crampton v The Queen (2000) 206 CLR 161, that s 81 was "directed against so-called 'unnatural [sexual] offences' by males with males," was treated as confirmatory.

The Court also drew on the parliamentary debate surrounding the Crimes (Amendment) Act 1984 (NSW), which repealed s 81. The stated purpose of that legislation was the decriminalisation of male homosexual conduct. Meagher JA found it inconceivable that the Premier, Leader of the Opposition, and Attorney-General each discussed the 1984 amendments solely in terms of homosexual law reform if s 81 had in fact extended more broadly to conduct between females and males.

Deficiency in form of the indictment (Ground 3)

The Court found that each count in the indictment was defectively pleaded: the charges described an assault and a separate act of indecency rather than tracking the language of s 81. However, the primary judge had not erred in declining to quash the indictment on this basis alone, because the Crown could have amended the indictment without difficulty. This ground of appeal was therefore rejected.

Permanent stay application (Grounds 2, 4 and 5)

Because the indictment was to be quashed on the first ground, the Court considered it unnecessary to finally determine the stay application. However, Meagher JA stated briefly that the Crown's position, accepted by the primary judge, that community standards of "indecency" are assessed at the time of trial rather than at the time of the alleged offending, was wrong. The Court cited Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173, where Campbell JA described the applicable community standards as "those of the time," meaning the time of the alleged offending.

Orders Made

  • Leave to appeal granted under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).
  • Appeal allowed.
  • Orders of Girdham SC DCJ dated 18 July 2023 set aside.
  • Pursuant to s 5F(5)(b) of the Criminal Appeal Act 1912, the demurrer upheld and the indictment quashed.

Key Takeaways

  • Section 81 of the Crimes Act 1900 (NSW), as it stood between 1900 and its repeal in 1984, was confined to male homosexual conduct. Its legislative ancestry, its structural position among the "unnatural offences" provisions, and the additional words "of whatever age, with or without the consent of such person" all point to a provision directed exclusively at inherently indecent conduct between males.

  • Although the word "whosoever" in s 81 was gender-neutral on its face, the Court of Criminal Appeal found that this did not determine the scope of the provision. The critical question was whether the conduct described could be committed by a female at all, and the answer was no.

  • Under the "indecent assault" offences in the Crimes Act 1900, the relevant community standards of "indecency" are those applicable at the time of the alleged offending, not at the time of trial. The Court of Criminal Appeal regarded the contrary proposition, accepted at first instance, as incorrect.

  • A deficiently worded indictment will not necessarily be quashed where amendment is available and the Crown's case statement adequately describes the conduct alleged. The court retains power under the Criminal Procedure Act 1986 to order amendment before or after the indictment is presented.

  • Historical legislative context and parliamentary debates can be decisive aids to statutory construction, particularly where a provision has been repealed and replaced and the purpose of the amending legislation is clearly stated on the record.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 76, 79, 80, 81, 81A, 81B (now repealed in relevant parts)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 11, 17, 20
- Crimes (Amendment) Act 1984 (NSW)
- Offences Against the Person Act 1861 (UK), ss 61, 62, 63
- Interpretation Act 1987 (NSW), ss 34, 35

Cases
- Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60
- Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241
- Crowe v Graham (1968) 121 CLR 375; [1968] HCA 6
- R v B and L (1954) 71 WN (NSW) 138
- JAD v R [2012] NSWCCA 73
- R v Court [1989] AC 28
- CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28