HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-02-14 Daily Xml
Contents
Pdf Xml

CRIMINAL LAW CONSOLIDATION (RAPE AND SEXUAL OFFENCES) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 12 February 2008. Page 1907.)

New clause 14A.

Mrs REDMOND: I have a question or two. I want to be clear about the effect of the amendment and, to do that, we have to go back to the Criminal Law Consolidation Act. I note in passing that here I am struggling with reading a section of an act and interpreting it, and today it is 38 years to the day since I began my legal career in the Crown Solicitor's Office in Sydney.

The Hon. M.J. Atkinson: Hear, hear! Congratulations!

Mrs REDMOND: Here I am still struggling with the reading of statutes. I will paraphrase section 268 of the act. It provides in subsection (1) that, if the objective elements of an alleged offence are established against a defendant, but his consciousness was impaired by being so drunk that he did not know what he was doing, he is still to be convicted provided it is established that he actually intended to commit the offence and that he deliberately became intoxicated to give him the Dutch courage that was necessary to commit the offence.

Subsection (2) provides that, if the objective elements of an alleged offence are established against a defendant and he was so drunk that he could not be in control of what he did, he is nevertheless to be convicted if he would (but for the drunkenness) have been guilty of the offence.

Subsection (3) as it currently stands reads that it will not extend to a case in which it is necessary to establish that the defendant realised what the consequences of his conduct would be or was aware of the circumstances surrounding his conduct.

Having gone through that section and the amendment that is proposed, and the explanation by the Attorney about the effect of the proposed amendment, I am still not exactly clear what is to happen. We seem to be dealing with double and triple negatives in this clause. So, we have the fact that if someone commits an offence and he is so drunk that he does not know what he is doing, he is nevertheless to be taken to be guilty except in circumstances where he foresaw the consequences or was aware of the circumstances surrounding his conduct.

Now it will say that if someone was drunk, and so drunk that they did not know what they were doing but, except for the drunkenness, they should be found guilty of the offence, that provision will not apply when either he foresaw the consequences of the conduct or he understood the circumstances; but that, in turn, will not apply in the case of rape. Can the Attorney manage to give me a more straightforward explanation of the effect of the amendment, because I still get muddled up? Even though I have been doing this for 38 years—trying to read legislation and understand what it says—there seems to be an enormous number of exceptions to exceptions to exceptions to reach a conclusion as to what precisely the effect of the law will be with this amendment compared to what it is at the moment.

The Hon. M.J. ATKINSON: On Tuesday afternoon, I was only halfway through my explanation of this clause. When we resumed today, the member for Heysen rose when the call should have been mine.

The CHAIR: That was also my expectation.

The Hon. M.J. ATKINSON: Therefore, I refer readers of Hansard, and the member for Heysen, to that part of my explanation of this clause which concludes on page 1962. I shall now continue for the benefit of the member for Heysen. She is right that it is an exception on top of an exception. Sometimes such impairment is as a result of intoxication. When intoxication is self-induced, a defence to criminal charges on this ground may be called the 'drunks defence'.

Section 268(2) of the act is an exception to the common law rule. It stops the drunks defence being used to deny criminal liability in the sense of voluntariness and intent once the objective elements of an offence have been established. Section 268(3) makes an exception to this exception. It allows the drunks defence in limited circumstances that are consistent with fundamental principles of criminal liability. It says—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: We are not on the bill. For the benefit of the chair, we are on the existing law. It says that the prohibition on the drunk's defence is not to apply to cases:

in which it is necessary to establish that the defendant—

(a) foresaw the consequences of his or her conduct; or

(b) was aware of the circumstances surrounding his or her conduct.

So, we are dealing now with crimes of specific intent. Section 268(3) allows the drunk's defence where foresight of the results of one's conduct is an element of the offence, or where awareness of the circumstances surrounding one's conduct is an element of the offence.

In the broadest terms, the elements of the customary offence of rape described in proposed section 48(1) are: (1) engaging in sexual intercourse with another person—a physical element; (2) the other person not consenting to act—another physical element; (3) knowing of or being recklessly indifferent to that lack of consent—a fault element, and one that attaches to the previous physical element. It requires proof that the defendant was aware of the circumstances surrounding his act; that is, whether or not the other person consented to it.

For the kind of rape described in the proposed section 48(2), there is an additional element of compulsion. Section 268(3), clause B, allows a drunk's defence to rape because it is an offence that requires proof of an awareness of the circumstances surrounding the defendant's conduct—awareness of consent. That would be contrary to the policy behind this bill, which aims to stop defendants escaping liability by specious assertions that they did not know or could not have been expected to know that the other person was not consenting. The amendment will stop this happening.

Under this amendment, section 268(3), clause A, will still, however, allow a drunk's defence for a rape of the kind described in proposed section 48(2) to the extent that, in prosecuting the charge of this offence, it is necessary to establish that the defendant foresaw the consequences of his act. It is not necessary to establish that for the customary offence of rape in section 48(1); it is necessary only for the offence described in proposed section 48(2), the offence involving compulsion of the third party.

Mrs Redmond: The other party.

The Hon. M.J. ATKINSON: The other party, yes; thank you. Those 38 years have come in handy. They are triumphing at this late stage. This element, whether of an offence of rape or any other serious criminal offence, should always be capable of denial on the ground that the person did not know what the result of his acts would be, whatever the reason for that. There has been no suggestion in the review of the laws of rape and sexual assault that this approach should be changed in its application to this particular element of this particular offence. In summary, the effect of the amendment will be:

that a person may not defend a charge of rape under the proposed section 48(1) or under the proposed section 48(2) on the ground that he did not know whether or not the other person consented because his consciousness was impaired by self-induced intoxication; and

that a person may defend a charge of rape under the proposed section 48(2) (that is, rape in the form of compelling a person to have sexual intercourse with another to engage in self-penetration or to engage in bestiality on the ground that he did not foresee the result of his act of compulsion).

The CHAIR: Member for Heysen, I hope that we have been very helpful.

Mrs REDMOND: Clear as mud. Can the Attorney state the law in the positive as it will be in the circumstances? I have used the example, basically, of a female being raped by a male; although I accept that there is a range of possibilities within the law of rape that are not countenanced by that, but commonly that is the easiest way to refer to it. We have already dealt with the issue of a female who is unconscious or so affected by alcohol that she is unable to give real consent: I understand that.

What we are dealing with now is that for a male, who is relying on the consent of a female, or the lack of consent and proceeding without the consent of that female, the law is clear if he is not affected by alcohol. Once he becomes affected by alcohol, I assume that the existing section 268(1) applies in the first place: that if he, in fact, has decided to commit an act of rape and deliberately gets the Dutch courage to do that by consuming alcohol, then he is caught by the presumption in section 268(1) of our existing law.

But I am still puzzled about the situation for a male who, whilst under the influence of alcohol to the point of criminal irresponsibility—to use the term in the act—participates in an act of sexual intercourse without being able to form an intention either way, without being able to become aware of whether or not the female consents to that act of sexual intercourse. One might think that it is almost impossible for him to be both so consumed by alcohol and yet able to perform, but is it the case that a male who engages in sexual intercourse and is so affected by alcohol that he is incapable of forming the necessary criminal intent will be found potentially guilty of rape if the other elements are proved under the amended legislation?

The Hon. M.J. ATKINSON: The short answer is that he will be convicted. He cannot use his self-induced intoxication to argue that he was unaware that the woman was not consenting. I will correct the member for Heysen on one thing: it is not a question of deliberately getting drunk or drinking to get Dutch courage. Anyone who administers the alcohol to themselves comes under the category 'self-induced intoxication'. They do not get drunk for a particular purpose; they just voluntarily get drunk.

Mrs REDMOND: I understand what the Attorney is saying. In fact, the reference that I was making was to, in particular, the existing section 268(1), which specifically provides that if the objective elements of the offence are established, and you have someone who is intoxicated to the point of criminal irresponsibility, they have to be convicted if it is established that they formed an intention to commit the offence before becoming intoxicated and consumed the intoxicants in order to strengthen their resolve to commit the offence. I was referring only to the effect of that existing section in passing, not trying to tie that into the current amendment that I am trying to get my head around. I think I understand what the law will say.

New class inserted.

Schedule passed.

Title passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

[Sitting suspended from 16:47 to 16:57]

The Hon. M.J. ATKINSON: I move:

That the sitting of the house be extended beyond 5pm.

Motion carried.

[Sitting suspended from 17:00 to 17:30]

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT