R v THOMPSON DRIVER

Supreme Court of the Northern Territory of Australia

Asche C.J.

11 August 1987 at Alice Springs

Criminal Code - S. 192(1) - unlawfully assaulting with intent to have carnal knowledge - whether the word "unlawfully" governs both "assaulting" and "intent to have carnal knowledge" - latter expression not unlawful per se - intention of legislature nevertheless clear.

Counsel for the Crown Solicitor for the Crown Counsel for the Accused Solicitor for the Accused

J. Karczewski
N.T. Government Solicitor
D. Ross
Central Australian Aboriginal Legal Aid Service

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asc870095

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS

No. sec No. 44 of 1987

THE QUEEN

V

THOMPSON DRIVER

CORAM:	Asche C.J.

RULING

(Delivered the 11th day of August 1987)

The accused has been charged that on 14 March 1987 he unlawfully assaulted the prosecutrix with intent to have carnal knowledge.		Before the jury is empanelled, Mr Ross, who appears on behalf of the accused, has sought to quash the indictment.	Mr Ross has put this argument to the court, that a	person who does an act with intent to have carnal knowledge is not, because of that intent, thereby to be

taken necessarily as doing something unlawful. Subject to the obvious exceptions carnal knowledge, in itself, is not unlawful.

Mr Ross submits, therefore, that s. 192(1) raises an absurdity.	That section says:

"Any person who unlawfully assaults another, with intent to have carnal knowledge, is guilty of a crime and is liable to imprisonment for 7 years."

Mr Ross' argument is that the absurdity arises because an assault may obviously be a crime but it should not make it any greater crime if one is doing something which is not unlawful.	For instance, one could assault somebody in the furtherance of getting into one's own car. The fact that one was endeavouring to get into one's own car should not make the assault itself unlawful to any greater degree than it already is.	Mr Ross submits that the same
argument applies here.

He submits further that the word "unlawfully" does not take the matter any further because that should govern the verb "assaults" and does not govern the expression "intent to have carnal knowledge."	The appropriate phraseology, if one were to enact that a sexual assault should be more serious than a common assault, would be to say "any person who unlawfully assaults another with intent to have unlawful carnal knowledge...".

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Mr Karczewski on the other hand for the Crown submits that the expression "assaults another with intent to have carnal knowledge" cannot be and should not be subdivided into two expressions, namely "assault", and "intent to have carnal knowledge"; that the expression should be taken as a whole; that is, "assaults another with intent to have carnal knowledge"; and when it is taken as a whole, then the expression "unlawfully" governs the whole phrase and there is no incongruity because "unlawfully" is defined in the code as meaning "without authorisation, justification or excuse".	The offence thereby becomes one where a person assaults another intending to have carnal knowledge and in doing so is assaulting with that intent and without any authorisation, justification or excuse, thereby aggravating, and I use that word as a neutral term, and not in the technical sense used in the Code, aggravating the assault so that it becomes an assault of a more serious nature for which the Code imposes a maximum penalty of 7 years.	Mr Karczewski also draws attention to S. 2 of the Code, which reads:

"For the purposes of this part, an offence is committed when a person who possesses any mental element that may be prescribed with respect to that offence does, makes or causes the act, omission or event, or the series or combination of the same, constituting the offence in circumstances where the act, omission or event, or each of them, if there is more than one, is not authorized or justified."

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;I	Ka1:czewski subwits that that section, applied to
S. 192, is further justification for accepting the term "assaults another with intent to have carnal knowledge" as a single compendious term.

Although I consider that Mr Ross raises a very interesting point and it might be that S. 192(1) should be more clearly stated, I agree with Mr Karczewski that the expression "unlawfully" governs the whole of the phrase "assaults another with intent to have carnal knowledge", and thereby creates the offence, and thereby removes the absurdity which Mr Ross has submitted is there.

In any event, it seems to me that even if I were to agree with the submission of Mr Ross, one would have to give meaning to the section; even if one took the view that the construction of a more serious offence than a common assault was accompanied ins. 192(1) with some elements rationally unjustifiable in the sense that one was coupling an obvious crime, namely assault, with an act which  may  not  be criminal, namely  having carna.l knowledge.	I am not sure that that argument would avail even if one agreed with it; because the legislature has plainly  said  that  that particular act is an offence; and has plainly provided a maximum term greater than the rr,aximum term imposed for  common assault; and one would  still be  bound  to treat that as a legislative intention.	The expression is plain enough

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to have meaning, and whether or not it might thereby be criticised serr,antically, would not prevent the court from enforcing its terms if its terms remain able to be interpreted.

For those reasons I refuse the application by M.r.

Ross.

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