CREIGHTON V. THE QUEEN

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IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Judgment delivered at SYDNEY...

1H, Daw, Gor, Print, Melb.

camsonyes on__TURSDAY, 23RD. DECEMBER, 1952...

CREIGHTON

THE QUEEN

QRDER

Appeal allowed. Conviction quashed.

Order new trial on the same charge.

CREIGHTON

THE QUEEN

DIXON C.J.

JUDGMENT Weds J. . TAYTOR

Rd.

CREIGHTON

v. THE QUEEN DIXON C.J. JUDGMENT WEBB J.

TAYIOR J.

This is an appeal by leave from a conviction and sentence for rape alleged to have, committed at Ambunti in the Territory of New Guinea on or about the ist May, 19526 The appellant was indicted before the Supreme Court of Papua and New Guinea and was convicted by a jury of the alleged offence on the 29th August, 1952. In view of the opinion which we have formed concerning two submissions made on behalf of the appellant, it is unnecessary to make any particular reference to the other grounds argued on the appeal beyond saying that they did not appear to us of such a nature as to justify any interference with the conviction.

The first of the two grounds which appear to us to be substantial is concerned with the learned judge's charge.to the jury, but before discussing the questions which arise in relation to it it is desirable to refer in a general way to the nature of the charge and the circumstances in which the offence was alleged to have been committed. ~

The appellant was indicted under Section 347 of the Criminal Code of Queensland (as adopted and in force in the Territory). This section provides that

"Any person who has carnal knowledge of a woman, or girl,

not his wife, without her consent, or with her consent,

if the consent is obtained by force, or by means of

- 2-=< threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape". In this case the question for the jury was whether the accused, with consent obtained bymeans of threats or intimidation, had carnal knowledge of the native woman in question. The transcript of evidence in the case is somewhat confusing but it is clear that the complainant came to Ambunti about the 8th March, 1952, for the purpose of seeking hospital and medical attention for her child, an infant of tender years. The child remained in hospital until the 15th May, and the complainant lived at the hospital during the intervening period. The accused was a medical assistant at this hospital and saw the complainant shortly after her arrival, The evidence of the complainant and another native woman is to the effect that within a few days of the complainant's arrival the accused requested sexual intercourse with her and when it was refused said "the child would die". The complainant goes on to say that the child "got medicine for one month" put thereafter for two months "got no more medicine". There is, it should be stated, no real evidence that the child, which apparently had contracted pneumonia, was not properly treated for that complaint and it should be further stated that it was discharged on the 15th May as cured, though some four days later was found to be suffering from tuberculosis. For part of the period during which the child was in hospital the accused was said to have been absent. from Ambunti and there seems no doubt