Wilkshire v The Queen [1961] HCA 60

High Court of Australia Dixon C.J. McTiernan and Windeyer JJ. Wilkshire v The Queen [1961] HCA 60

ORDER Leave to appeal granted, appeal heard instanter, conviction as pronounced quashed, substitute a conviction in terms of the information, otherwise dismiss the appeal.

Dixon C.J. delivered the judgment of the COURT:—

Sept. 29 Dixon C.J.

This is an application for leave to appeal from a conviction by the Supreme Court of the Northern Territory upon an indictment to which I will refer with more particularity.

Under the law of the Northern Territory prosecution on indictment is by information in the name of the Attorney-General and the trial is without a jury. The actual charge contained in the information was that the prisoner, the present applicant, on a girl under the age of 12, namely, four years and eleven months, unlawfully did make an assault with intent that he should unlawfully know and carnally abuse the girl. That information was laid under a provision which was enacted as s. 64 of the Criminal Law Consolidation Act of 1876 of the State of South Australia and is incorporated in the criminal law of the Northern Territory.

It provides for two offences. One is an attempt carnally to know a girl under the age of twelve, and the other is an assault upon her with intent carnally to know her. Perhaps it would be as well if I read the material part of the section—"Whosoever shall be convicted of any attempt, or assault with intent, unlawfully and carnally to know and abuse a girl under the age of twelve years, shall be guilty of a misdemeanour and, being convicted thereof, shall be liable to be imprisoned for any term not exceeding seven years". The side-note to the section says "Attempting to carnally know a girl under twelve years". On the back of the information is endorsed a statement that the indictment was "attempting to carnally know a girl under the age of twelve years".