Reported Decision: 171 A Crim R 407 New South Wales Court of Criminal Appeal CITATION: R v MAJW [2007] NSWCCA 145 HEARING DATE(S): 26/04/07 JUDGMENT DATE: 24 May 2007 JUDGMENT OF: James J at 1; Rothman J at 41; Harrison J at 63 DECISION: Question of Law referred by District Court determined CATCHWORDS: Criminal Law - Criminal Appeal Act s5A - indictments - whether counts in indictment alleged essential factual ingredients of offences - amendment of indictment Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act English Indictments Act 1915 Queensland Criminal Code Ex parte Ryan; re Johnson (1943) 44 SR (NSW) 12 Griffiths v The Queen (1977) 137 CLR 293 Heymann v The Queen (1873) 8 LRQB 102 John L Proprietary Ltd v Attorney General for the State of New South Wales (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kingswell v The Queen (1985) 159 CLR 264 Maxwell v The Queen (1996) 184 CLR 501 CASES CITED: Project Blue Sky v ABA (1998) 194 CLR 355 R v Aspinall and Ors (1876) 2 QBD 48 R v Burns (1920) 20 SR (NSW) 351 R v Dossi (1918) 13 Cr App Rep 15 R v Janceski (2005) 64 NSWLR 10 R v Mai (1991) 26 NSWLR 371 R v Stroulger (1886) 17 QBD 327 Saraswati v The Queen (1991) 172 CLR 1 Taylor v The Queen (1895) 1 QB 25 PARTIES: R v MAJW FILE NUMBER(S): CCA 2007/732 COUNSEL: D C Frearson SC / N F Noman - Applicant J S Stratton SC / L T Brasch - Respondent SOLICITORS: Director of Public Prosecutions - Applicant McNamara James O'Connor Solicitors - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/51/0160 LOWER COURT JUDICIAL OFFICER: Solomon DCJ IN THE COURT OF CRIMINAL APPEAL 2007/732 JAMES J ROTHMAN J HARRISON J THURSDAY, 24 MAY 2007 R v MAJW Judgment 1 JAMES J: In this matter his Honour Judge Solomon of the District Court referred certain questions of law to the Court of Criminal Appeal for determination, pursuant to s 5A of the Criminal Appeal Act. His Honour, in submitting the questions of law for determination by this Court, signed a document in the following terms: "Factual background On 8 November 2006 the respondent was arraigned before me and a jury of twelve in the District Court at Grafton and pleaded not guilty to 2 counts of produce child pornography and 13 counts alleging various sexual offences upon a child victim. Counts 9 and 10 on the indictment alleged that, between 4 February 2002 and 22 May 2003, the respondent had sexual intercourse with the victim, a person above the age of 10 years and under the age of 14 years, namely 11 years, in circumstances of aggravation, namely the victim was under the authority of the respondent. Counts 11 and 12 on the indictment alleged that, between 26 January 2003 and 25 December 2003, the respondent had sexual intercourse with the victim, a person above the age of 10 years and under the age of 14 years, namely 12 years, in circumstances of aggravation, namely that the victim was under the authority of the respondent. On 16 November 2006, the jury returned verdicts of guilty in respect of 14 of the 15 counts on the indictment, including counts 9-12. Section 66C of the Crimes Act 1900 [sexual intercourse — child between 10 and 16] was inserted in the Act in 1985. Since 13 June 2003 s 66C (2) of the Crimes Act 1900 provides: Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years. Prior to 13 June 2003 s 66C (2) provided: Any person who has sexual intercourse with another person who — (a) is of or above the age of 10 years, and under the age of 16 years; and (b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person, shall be liable to imprisonment for 10 years. The prosecution was listed before me for sentence on 2 March 2007, at which time I indicated that I was not prepared to sentence the respondent in respect of the guilty verdicts entered for counts 9-12 on the indictment because they did not disclose offences known to law. I have deferred sentencing the respondent pending determination of the within referral. Questions referred for determination by the Court of Criminal Appeal pursuant to s 5A of the Criminal Appeal Act 1912 1. Do counts 9-12 on the indictment disclose offences known to law? 2. Does the present form of the indictment preclude me from proceeding to sentence the respondent in respect of counts 9-12? 3. If the answer to question 2 is "yes", am I empowered to amend the indictment in respect of counts 9-12 post verdict? R Solomon Judge Date: 23-3-07" 2 The provisions of s 66C(2) of the Crimes Act, both before and after 13 June 2003, are set out in the document signed by Judge Solomon. However, it is necessary to refer to other parts of s 66C, as in force since 13 June 2003. Under sub-section (5) of s 66C the expression "circumstances of aggravation" includes a fairly large number of circumstances, including that "(d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender". Under s 66C(4) a person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years. 3 After the jury returned verdicts of guilty on 16 November 2006, the proceedings were adjourned to 2 February 2007. 4 On 2 February 2007 the Crown's representative drew the Court's attention to what was described as an "error" in counts 9-12 in the indictment. In each of counts 9 and 10 the offence alleged had been described as having sexual intercourse with a person "above the age of 10 years and under the age of 14 years, namely 11 years", whereas, it was said, the offence should have been described as having sexual intercourse with a person "above the age of 10 years and under the age of 16 years, namely 11 years". In each of counts 11 and 12 the offence alleged had been described as having sexual intercourse with a person "above the age of 10 years and under the age of 14 years, namely 12 years", whereas the period within which it was alleged that the offence had been committed included:- (1) a period up to 13 June 2003, during which s 66C(2) made it an offence, carrying a maximum penalty of imprisonment for 10 years, to have sexual intercourse with a person of or above the age of 10 years and under the age of 16 years, where the victim was under the authority of the offender, and (2) a period on and from 13 June 2003, during which s 66C(2) made it an offence, carrying a different maximum penalty of imprisonment for 20 years, to have sexual intercourse with a person of or above the age of 10 years and under the age of 14 years, where the victim was under the authority of the offender. 5 On 2 February 2007 the Crown's representative sought Judge Solomon's leave to amend counts 9 to 12 in the indictment. This would appear to have been an application under s 20 of the Criminal Procedure Act, which provides that an indictment may not be amended after it is presented, except by the prosecutor (a) with the leave of the Court or (b) with the consent of the accused. 6 In support of the application the Crown's representative referred to the decision of the English Court of Criminal Appeal in R v Dossi (1918) 13 Cr App Rep 158. In Dossi Atkin J, who gave the leading judgment, referred to s 5(1) of the English Indictments Act 1915, which permitted an indictment to be amended "before a trial or at any stage of the trial". 7 This expression is also used in sub-s (4) of s 21 of the Criminal Procedure Act. Sub-section (1) of s 21 provides that the Court, if of the opinion that an indictment is defective but that, having regard to the merits of the case, it can be amended without injustice, may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. Sub-section (4) of s 21 provides that an order under the section may be made "either before trial or at any stage during the trial". 8 On 2 February 2007 Judge Solomon enquired of the parties whether there was any Australian authority on the meaning of the word "trial" in sub-s(4) of s 21 of the Criminal Procedure Act. Neither party was able to cite any Australian authority. Consequently, his Honour stood over the proceedings to 2 March 2007 to enable the parties to conduct further research and to lodge written submissions. 9 On 2 March 2007, no Australian authority on the meaning of "trial" in s 21(4) of the Criminal Procedure Act having been cited to Judge Solomon, his Honour delivered a judgment on the Crown's application that the indictment should be amended. 10 In his judgment Judge Solomon found that, having regard to the circumstances of the case, the indictment could be amended, without causing any injustice. His Honour noted the Crown's submission that the words "during the trial" in s 21(4) of the Criminal Procedure Act should be interpreted as extending to the period after the jury has returned its verdict or verdicts and before the final disposition of the matter by way of sentencing the offender. However, his Honour considered that Dossi did not support the Crown's submission and noted that the Crown had been unable to find any other authority. His Honour had been referred by counsel for the offender to s 572(3) of the Queensland Criminal Code, which provides that:- "If the Court is satisfied no injustice will be done by amending the indictment, the Court may make the order (amending the indictment) at any time before or at any stage of the trial on the indictment or after verdict " (emphasis supplied). 11 Judge Solomon concluded that the "trial" of the respondent had concluded, as soon as the jury returned their verdicts and that he had no power to amend the indictment under s 21 of the Criminal Procedure Act. His Honour thereupon declined to sentence the respondent on counts 9-12 in the indictment and, having been informed that the Director of Public Prosecutions would be giving the matter further consideration, declined to sentence the respondent on any of the counts in the indictment, until the position was clarified. 12 Section 5A of the Criminal Appeal Act provides:- "The judge before whom any person is tried and convicted on indictment may submit any question of law arising at or in reference to such trial or conviction to the Court of Criminal Appeal for determination and such submission shall be dealt with as if it were an appeal under section 5". 13 A submission was made by counsel for the respondent that this Court lacked jurisdiction under s 5A, for the reason that there was no evidence that the respondent had been "convicted". 14 Whether a person has been "convicted" depends on the context in which the question is asked (Maxwell v The Queen (1996) 184 CLR 501 at 507 per Dawson J, McHugh J). In Griffiths v The Queen (1977) 137 CLR 293, a case in which there was a plea of guilty, Barwick CJ at 301-2 and Aickin J at 334 stated in obiter dicta that, at least generally, a return of a verdict of guilty by a jury itself amounts to a conviction of the offender. There is no need for the trial judge, after the jury has returned its verdict, to make any announcement that he is convicting the offender of the offence (see Griffiths per Jacobs J at 312 and per Aickin J at 335-336). In some special contexts, such as where a defence of autrefois acquit is raised in subsequent proceedings, a verdict of guilty will not of itself amount to a "conviction". However, the present case is not within any of those special contexts. 15 In my opinion, the dicta of Barwick CJ and Aickin J in Griffiths should be followed and the Court should hold that in the present proceedings the respondent was "convicted" when the jury returned their verdicts of guilty and hence this Court has jurisdiction to entertain the Crown's appeal. Questions 1 and 2 1. Do counts 9-12 on the indictment disclose offences known to law? 2. Does the present form of the indictment preclude me from proceeding to sentence the respondent in respect of counts 9-12? 16 It is convenient to deal with these questions together. If counts 9-12 in their present form disclose offences known to law, then the present form of the counts in the indictment would not preclude Judge Solomon from proceeding to sentence the respondent on those counts. 17 It was submitted by the Crown on this appeal that counts 9–12, as framed, disclose offences known to the law and do not require any amendment. 18 In support of this general submission, it was submitted that it is not necessary that a count in an indictment charging an offence under a particular statutory provision should use the specific words of that statutory provision; that what is essential is that a count in an indictment alleges the essential factual ingredients of the offence charged; that, for the purposes of all of counts 9-12 in the present indictment, the elements of the offence of aggravated sexual intercourse charged were that the respondent had had sexual intercourse with the victim, that at the time of the sexual intercourse the victim was of an age which would fall within the range of ages stated in s 66C, as then in force, and that at the time of the sexual intercourse the victim was under the authority of the respondent; that in each of counts 9-12 the essential factual ingredients of the offence had been alleged, including the age of the victim at the time of the sexual intercourse alleged being an age which was within the range of ages stated in the section as then in force; and that, the age of the victim having been stated, it had not been essential to set out in each count that the complainant was above a certain age and below a certain other age. 19 It was further submitted by the Crown that any objection to the form of the indictment should have been taken at an earlier stage of the proceedings, in accordance with s 17 of the Criminal Procedure Act, and that any defect in the counts had been cured by the verdicts of guilty, because the jury must have been satisfied on each of counts 9-12 that all the elements of the offence charged had been proved. In support of this last submission the Crown referred to Heymann v The Queen (1873) 8 LRQB 102, R v Aspinall and Ors (1876) 2 QBD 48, R v Stroulger (1886) 17 QBD 327, Taylor v The Queen (1895) 1 QB 25. 20 It was submitted on behalf of the respondent that each of counts 9-12 was defective because, contrary to the submission made by the Crown, each count had failed to specify the essential factual ingredients of any offence; that the defects were not cured by s 16 of the Criminal Procedure Act; that the necessity of strict compliance with conditions for the validity of an indictment had been emphasised by the Court of Criminal Appeal in such cases as R v Janceski (2005) 64 NSWLR 10; and that the 19th century English cases relied on by the Crown were not applicable and had not survived the introduction of a statutory power to amend indictments. With regards to counts 11 and 12, it was submitted that the existence of a different maximum penalty before and after 13 June 2003 demonstrated that counts 11 and 12 were defective. It was submitted that it was merely fortuitous that in the present case the circumstance of aggravation pleaded had been a circumstance of aggravation, both before and after the amendments taking effect on 13 June 2003. Decision 21 Section 11 of the Criminal Procedure Act provides, in part, that the description of an offence in the words of an act of Parliament creating the offence is sufficient. However, it is not essential to the validity of a count in an indictment charging an offence created by a statutory provision that the count should use the specific words of the statutory provision. 22 As was submitted by both parties, what is essential to the validity of a count in an indictment is that the count should allege the essential factual ingredients of the offence. John L Proprietary Ltd v Attorney General for the State of New South Wales (1987) 163 CLR 508 at 519-521, R v Mai (1991) 26 NSWLR 371 at 377-378 per Hunt CJ at CL and the cases there cited. 23 In my opinion, each of counts 9-12 satisfied this condition by stating the essential factual ingredients of the offence charged, namely that the respondent had had sexual intercourse with the victim, the age of the victim at the time of the sexual intercourse and that at the time of the intercourse the victim was under the authority of the respondent. 24 It was not essential to state the range of ages of victims to which s 66C is capable of applying. Provided that the age of the victim at the time of the alleged offence was stated, as it was, the part of each count stating that the victim was above a certain age and under a certain other age could have been omitted, without affecting the validity of the count. In the case of counts 9 and 10 an allegation that the victim was above the age of 10 years and under the age of 14 years necessarily amounted to an allegation that the victim was above the age of 10 years and under the age of 16 years. 25 I am further of the opinion that, as was submitted by the Crown, any defect in the counts would have been cured by the verdicts of guilty, because the jury must have been satisfied on each of counts 9-12 that all the elements of the offence charged had been proved. There was no issue at the trial about the age of the victim or that her age had been correctly alleged in the counts in the indictment. 26 It is true that the 19th century English cases which were relied on by the Crown as establishing this principle do no appear to have been referred to in recent years. However, it is likely that this is because an occasion for applying them has seldom arisen, since the introduction of a statutory power to amend an indictment and of statutory provisions that defects of certain kinds will not invalidate an indictment. I would not regard these statutory provisions as having effected an implied overruling of the cases relied on by the Crown. 27 With regard to counts 11 and 12, it is true that the extended period alleged in each count straddles two periods in which there were different maximum penalties. However, in such a case, if the Crown is unable to establish that the offence was committed during the period in which the higher maximum penalty applied, the offender must be sentenced on the basis of the lower maximum penalty. Difficulties could arise in a case where the Crown charges an aggravated offence, if the circumstance relied on by the Crown was a circumstance of aggravation in one period but not in the other, but such a difficulty does not arise, and need not be addressed, in the present case. 28 In my opinion, question 1 should be answered "yes" and question 2 should be answered "no". Question 3 3. If the answer to question 2 is "yes", am I empowered to amend the indictment in respect of counts 9-12 post verdict? 29 Question 3 does not arise, because, in my opinion, question 2 should be answered "no" and I do not propose to determine what answer should have been given to question 3, had it arisen. However, as it was the question Judge Solomon addressed in his judgment of 2 March 2007, I will make some comments. 30 Earlier in this judgment I referred to the provisions of s 21(1) and s 21(4) of the Criminal Procedure Act. Under s 21(4) an order under s 21 may be made "before trial or at any stage during the trial". There was, as noted earlier, a similar provision in the English Indictments Act 1915. 31 In Dossi, the English case cited before Judge Solomon and again before this Court, the accused had been charged with indecently assaulting a child "on March 19th 1918". When returning their verdict, the jury said that they found the accused "with regard to the date March 19th not guilty. If the indictment covers other dates, guilty". On the application of the prosecution the presiding judicial officer amended the indictment by substituting the words "on some day in March" for the words "on March 19th 1918" and the jury then found the accused guilty on the amended indictment. 32 Atkin J, who delivered the judgment of the English Court of Criminal Appeal, disposed of the appeal on the ground that the date specified in the indictment as being the date on which the offence was committed was not a material matter and that "the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual date specified in the indictment". Atkin J continued:- "It is, therefore unnecessary to consider whether there was power to amend the indictment, but we must not be taken to express any doubt that the wide words in section 5(1) of the Indictments Act, 1915, which give the court power to amend an indictment "at any stage of a trial" might, in a proper case, permit of an amendment in circumstances similar to those which exist here". 33 This comment by Atkin J on behalf of the English Court of Criminal Appeal would give some support to the Crown's contention about the proper interpretation of s 21(4) of the Criminal Procedure Act. However, the comment was clearly obiter dicta and limited in its application to circumstances similar to those in Dossi. 34 The further researches of counsel turned up the decision of the New South Wales Court of Criminal Appeal in R v Burns (1920) 20 SR (NSW) 351. 35 In Burns, the accused had been charged with making a false pretence to one person N but the evidence given at the trial was to the effect that any false pretence had been made to two other persons A and W. Section 365 of the Crimes Act, as then in force, conferred the power to amend an indictment "on any trial". 36 All members of the Court of Criminal Appeal held that the Court of Criminal Appeal had no power to amend an indictment. 37 Gordon J, with whom Pring J agreed, said at 358:- "The Court of Quarter Sessions might have before verdict amended the indictment so as to cover the case made by the evidence but no such amendment had been made or asked for". 38 The Chief Justice said at 354:- "If this discrepancy had been noticed at the trial the indictment might have been amended before the verdict. But it is not, and cannot be disputed, that an amendment under the provisions of the Crimes Act would be too late after conviction". 39 It would seem that the dicta of the members of the Court of Criminal Appeal in R v Burns would be an obstacle in the way of holding that an order under s 21 of the Criminal Procedure Act can be made after the jury has returned its verdict but I reiterate that I do not propose to determine question 3. 40 In my opinion, the questions asked should be answered:- 1. Yes 2. No 3. Does not arise 41 ROTHMAN J: In this matter I have had the advantage of reading in draft the reasons for judgment of James J. I agree generally with the reasons of his Honour and I agree with the orders he proposes. 42 The agreement with the reasons of his Honour is subject to the following additional comments which do not detract and are not intended to detract from his Honour's reasons. I do not repeat the factual background summarised by James J nor the questions posed by his Honour Judge Solomon. 43 The rules of natural justice require, at least in proceedings seeking to impose a penalty, civil or criminal, notice of the case to be met and a fair opportunity to present a case in reply to it. As a general proposition the foregoing is trite. 44 In the case of criminal proceedings there are at least two requirements that necessarily flow from the requirements of natural justice in order for an indictment to be valid. James J has referred to John L Pty Limited v Attorney General (NSW) (1987) 163 CLR 508. However, John L deals particularly with a complaint that the indictment did not identify the necessary elements and material particulars of the offence alleged. 45 In order for an indictment to be valid it must not only disclose the particular act alleged it must disclose an offence known to the law and the legal nature of the offence. "… A defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. ( Johnson v Miller (1937) 59 CLR 467 at 489, per Dixon J) 46 The history of technical objections taken against indictments gave rise to the provisions now contained within section 11 of the Criminal Procedure Act 1986 (NSW). That history was briefly summarised by Jordan CJ in Ex parte Ryan; re Johnson (1943) 44 SR(NSW) 12. The passage is cited with approval by Brennan J in John L in the following terms: "As Jordan CJ explained in Ex parte Ryan; Re Johnson : 'The person accused is entitled to sufficient particulars of the matter charged against him to enable him to meet the charge. Hence, in earlier times, it was repeatedly held that to follow the words of the statute in alleging the offence in the information was not necessarily sufficient. `Where a particular act constitutes the offence, it may be enough to describe it in the words of the Legislature; but where the Legislature speaks in general terms, the conviction must state what act in particular was done by the party offending to enable him to meet the charge': R v James . In many cases it was open to doubt whether it was necessary to add particulars to the language of the statute in framing the information: Fletcher v Calthrop , and this led to its being expressly enacted that `the description of any offence in the words of the Act, or any order, by-law, regulation, or other document creating the offence, or any similar words, shall be sufficient in law' (Justices Act 1902, s 145A(1), taken from Summary Jurisdiction Act 1879 (42 and 43 Vict. c 49), s 39(1)).'" (Citations omitted) 47 Prior to the existence of such provisions objection was taken to criminal charges proffered in the words of an Act of Parliament creating the offence because of the generality of the words and because it did not particularise the conduct in question. Provisions such as section 11 of the Criminal Procedure Act were not intended and do not require the repetition of the words of an Act of Parliament in order for the indictment to be effective. They overcome an argument that to repeat the words renders the indictment invalid. 48 Any words which disclose the nature of the offence charged (assuming it is an offence known to the law) is sufficient to satisfy that aspect of the requirements for a valid indictment. Further, whatever words are used they must be words which allow the defendant to know the nature of the offence charged and the case that the defendant must meet. 49 Ignoring for present purposes the impact of the amendment to section 66C of the Crimes Act 1900 (NSW), there can be no doubt that the indictment discloses an offence known to the law; it discloses the nature of the offence; and, although not relevantly an issue, it discloses the material facts necessary in order for the accused to have met the case presented against him. In those circumstances, subject to the issue that I next deal with relating to the amendment to section 66C of the Crimes Act, the indictment is valid. 50 The amendment to section 66C has an impact on the above. The amendment and its effect is set out in the judgment of James J and I do not repeat it. The first and somewhat ironic impact is that a repetition of the words of the statute in the indictment would have, if it used the words of the statute as they existed prior to 13 June 2003, misled the defendant as to the elements of the offence charged against him, at least in relation to the offence if it had occurred after 13 June 2003. The use of the age of 14 years in the indictment may point to a deliberate attempt to specify, with particularity, the elements of the offence sought to be charged against the defendant so that it would meet the elements of both the pre and post 13 June 2003 offences. 51 There is little doubt that the indictment as charged discloses the elements of an offence under section 66C(2) as it existed prior to 13 June 2003 and also as it existed after 13 June 2003. If, on the other hand, the indictment had charged in terms of an age range between 10 years and 16 years it would have complied with the elements of the offence as it existed prior to 13 June 2003 but would have been insufficiently detailed to provide the elements of an offence if it occurred after 13 June 2003. In those circumstances the wording of the offence, assuming that the amendment to the Act did not, of itself, invalidate the indictment, would be the only way in which an offence of this kind could be charged, and appropriate material particulars provided, such that the defendant would know the charge he had to meet. 52 The amendment to the provisions of section 66C that occurred on 13 June 2003 has another effect. Given that the indictment charged, relevantly, that the sexual assault occurred between 26 January 2003 and 25 December 2003, the indictment does not disclose whether the offence charged is section 66C of the Crimes Act as it existed since 13 June 2003 or before that date. 53 It is not uncommon in cases of sexual assault, particularly on young children, and particularly in cases where the assault occurred some years earlier, for the criminal offence to be particularised in a way that alleges the offence occurred at a time or on a date within a period specified in the indictment. Such a particular makes it more difficult for a defendant to meet the case presented, but does not necessarily invalidate the indictment. 54 An amendment to the offence, of the kind here effected, will occasion a problem not only in circumstances where the offence is alleged over a range of dates. For example, a sexual assault that occurs over night, say between 11pm and 1am the next morning may involve a time period encompassing an amendment to the Act. 55 Ultimately whether it is permissible to charge an offence of this kind in these circumstances must be answered on the basis of two fundamental concerns. The first of them is that the defendant is entitled to be treated fairly and to have a fair hearing. In other words, the defendant must know precisely the facts that are sought to be proven against him and how, if at all, those facts may be met. In the present proceedings, this is easily done. The elements of each offence, as particularised in the indictment, are identical. The only distinction is the sentence that is capable of being imposed. Where the finding of guilt does not allow a discrimination as to which of the two offences apply, the lesser sentence is applicable. 56 Nothing in the foregoing should be taken to suggest that it is possible, in other circumstances, to frame an indictment in a manner that allows two different offences to be proven. Any duplicity in an indictment would invalidate the indictment and require an election or variation by the Crown. But here, only one offence can operate at any one time. 57 It is essentially an issue of fairness and the proper construction of the Act. 58 A similar issue was dealt with by the High Court in Saraswati v The Queen (1991) 172 CLR 1 and, in particular, the High Court adumbrated the principles to be applied in the construction of an Act: see also Project Blue Sky v ABA (1998) 194 CLR 355. His Honour Justice McHugh said: "Section 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction 'that would promote the purpose or object underlying the Act' over a construction 'that would not promote that purpose or object': cf Chugg v Pacific Dunlop Ltd . Moreover, the terms of s. 34 of that Act, which provides for the use of extrinsic material, make it plain that 'the ordinary meaning conveyed by the text of the provision' is the meaning conveyed by that provision after 'taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule'. Hence, it is always necessary in determining 'the ordinary meaning' of a provision such as s. 61E(2) to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision. Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes. In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as 'the ordinary meaning' and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act: Interpretation Act , s. 33. In Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation , Mason and Wilson JJ. said: 'when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.' Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision." ( Saraswati at 21-22 per McHugh J, with whom Toohey J agreed). (Citations omitted) 59 It seems unnecessary to decide finally whether section 66C as it applied after 13 June 2003 created one offence with aspects of aggravation or two offences each with an aggravating feature, or four separate offences. My preliminary view is that there are four separate offences created by each of the first four subsections of section 66C of the Crimes Act: cf Kingswell v The Queen (1985) 159 CLR 264. The proper construction of section 66C would seem to require a jury to determine whether the child was between 10 and 14 years of age or between 14 and 16 years of age and whether the circumstances of aggravation arise. As earlier stated, it is unnecessary to determine this issue finally. 60 It is sufficient, for my purposes, to determine that the clear purpose, derived from the terms of the Act itself, is that there not be a hiatus between the commission of an offence under 66C prior to 13 June 2003 and after that date. It would be an absurd result if the amendment of the legislature to increase the sentences applicable to an offence and to divide an offence into four sub-categories was construed in a way which prevented prosecution because it was impossible to determine whether the offence occurred at 11.59pm or 12.01am. 61 Different issues may arise if the elements of the offence sought to be proven were different. Here no such difficulty arises. There is no unfairness in giving effect to the clear purpose of the legislature that a person charged (and convicted) of sexual intercourse with a person of 14 years of age during a period that spanned 13 June 2003, in circumstances of aggravation, may be convicted of an offence under section 66C of the Crimes Act, the penalty for which must, in the present circumstances, be the lower of the offence available before and after 13 June 2003. 62 I agree with James J that the questions asked should be answered in the manner that he proposes. 63 HARRISON J: I agree with James J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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