[1973] PNGLR 204

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

M. K.

Port Moresby
Minogue CJ Prentice Kelly JJ

5 September 1972
17 November 1972

CRIMINAL LAW - Permits carnal knowledge against the order of nature - “Permits” - Meaning of - Criminal Code (Queensland adopted), s. 208[cciii]1.

WORDS AND PHRASES - “Permits” - Permits carnal knowledge against the order of nature - Criminal Code (Queensland adopted), s. 208[cciv]2.

In s. 208 of the Criminal Code (Queensland adopted), by which any person who permits a male person to have carnal knowledge of him or her against the order of nature is guilty of a crime;

Held

(Per Minogue CJ and Kelly J) the word “permits” means no more than “allows”, without any qualification; (per Prentice J) the word “permits” should have its ordinary meaning of “allow, suffer, not prevent.”

Reference

This was a reference pursuant to s. 30 of the Supreme Court (Full Court) Ordinance, 1968 of questions arising in connection with the trial of one M. K. on a charge that he permitted one D. K. to have carnal knowledge of him against the order of nature. The questions so referred by the trial judge were:

1.       Was I wrong in law in holding as follows:

“In my opinion the word ‘permit’ in s. 208 of the Code should be similarly interpreted as connoting consent as defined by the two eminent judges in the cases cited. Thus it is not sufficient for the Crown to establish beyond reasonable doubt, merely that the accused man allowed or suffered, or did not prevent the act being committed upon him; the Crown must go further and show that there was permission in the sense that the accused consented in the sense of acting of his own free will. If the court is left in doubt that there was not more than submission on the part of the accused man then the charge is not made out.”

2.       Are the following questions of law pursuant to s. 30 of the Supreme Court (Full Court) Ordinance and if yes, how are the same to be answered?

(a)      Was I wrong in acquitting the accused on the facts found and for the reasons given by me?

(b)      Was I wrong in holding, in effect, that if A proceeds to have carnal knowledge of B against the order of nature and B, fearing that if he offers opposition then A, who is his “boss-boi” will report him to his employer for a dereliction of duty (consisting of not finishing tapping a line of rubber trees) does not for this reason offer opposition in the circumstance set out in the judgment, then B does not “permit” A to have carnal knowledge of him within the meaning of s. 208 of the Criminal Code.

Counsel

C. Wall, for the appellant (Crown).
B. Hoath, for the respondent (accused).
Cur. adv. vult.

17 November 1972

MINOGUE CJ KELLY J: This is a reference pursuant to s. 30 of the Supreme Court (Full Court) Ordinance, 1968 of questions arising in connection with the trial of one M. K. on a charge that he permitted one D. K. to have carnal knowledge of him against the order of nature. The learned trial judge held that it is not sufficient for the Crown to establish beyond reasonable doubt merely that the accused man allowed or suffered or did not prevent the act being committed upon him; the Crown must go further and show that there was permission in the sense that the accused consented in the sense of acting of his own free will. The first question contained in the reference is whether he was wrong in law in so holding.

The section of the Criminal Code (Queensland adopted), dealing with the offence with which the accused was charged is s. 208 which is in the following terms:

“208.   Any person who:

(1)      Has carnal knowledge of any person against the order of nature; or

(2)      Has carnal knowledge of an animal; or

(3)      Permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a crime, and is liable to imprisonment with hard labour for fourteen years.”

The court is here concerned with the meaning of “permits”. The meaning of that word has been judicially considered in various contexts in a number of cases relating to the use of property, in particular motor vehicles, and in others relating to the doing of an act such as the sale or consumption of liquor or the singing of a song. Here the subject matter is the doing of an act to the person of the accused which is a somewhat different concept and care must be taken in endeavouring to apply to that situation judicial statements made in entirely different contexts. The dangers of so doing in relation to this very word are pointed out with some force by Gowans J. in his dissenting judgment in Chappell v. A. Ross & Sons Pty. Ltd.[ccv]3.

In the majority judgment in that case Winneke C.J. and Smith J. at p. 382 dealt with the subject of permission in general terms, apparently not necessarily limited to the subject matter with which the court was there concerned, namely, the offence of permitting another person to drive a motor car contrary to the statute, and their Honours there said: “We think that in accordance with the natural use of language it involves not only a right or capacity on the part of the permittor to prevent the contravention, but also a state of mind amounting to consent to, or acquiescence in, the contravention.”

Whilst bearing in mind the warning given by Gowans J. some other judicial definitions of “permit” may be noted. In Broad v. Parish[ccvi]4 Starke J. defined it as “intentionally allow” and referred to Goldsmith v. Deakin[ccvii]5. In the same case McTiernan J. at p. 600 referred to Adelaide Corporation v. Australasian Performing Right Association Ltd.[ccviii]6, where Isaacs J. at p. 490 had dealt with the primary meaning of the word according to the Oxford Dictionary as “to allow, suffer, give leave; not to prevent”. Again in Adelaide Corporation v. Australasian Performing Right Association Ltd.[ccix]7 Higgins J. referred to the meaning given by Atkin L.J. in Berton v. Alliance Economic Investment Co.[ccx]8, as “either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man’s power to prevent it”, although as Higgins J. points out the words which immediately follow show that the mind of the learned judge was addressed to the particular facts before him.

In the Shorter Oxford English Dictionary amongst the meanings given are “to admit or allow the doing or occurrence of; to give leave or opportunity for. To allow (a person or thing) to do (or undergo) something”. Webster’s Dictionary gives amongst the meanings “to allow the act or existence of; to tolerate; to consent to expressly or formally, to grant leave for or the privilege of”. In each work there are other meanings given which are clearly inappropriate in the present context and do not require further consideration.

The word “permit” or “permits” is used in a number of other sections of the Code. In some cases it is qualified by “wilfully” (as in s. 144) or “knowingly” (as in ss. 166, 327, 447 and 448) or “knowingly and wilfully” (as in s. 233), while in other cases it is not so qualified (as in ss. 173, 179, 221, 223, 225 and 416). It may be noted that three of the latter group of sections are contained in the same chapter of the Code (Chapter XXII dealing with offences against morality) as is s. 208 and deal with a physical act done to the person of the accused or to some other person. On the other hand the word “consent” (as a noun) or “consents” (as a verb) is used in six sections of the Code (ss. 47, 48, 245, 347, 361 and 445) and two of those sections (s. 245 (assault) and s. 347 (rape)) deal with a physical act done to a person other than the accused. This analysis would support the view that in the Code permission and consent are two separate concepts and where the requirement is consent, or the lack of it, that word is used. Another matter which emerges from a study of the sections referred to is that if the act of permitting in order to be the subject of the sanction must be wilful the section says so. By “wilfully” is meant that the act is done deliberately and intentionally, not by accident or inadvertence, so that the mind of the person who does the act goes with it (R. v. Senior[ccxi]9 per Lord Russell of Killowen C.J., at pp. 290, 291).

Whilst in T. v. T.[ccxii]10 the Court of Appeal appears to have treated “permit” and “consent” used in relation to sodomy as though the words were synonymous, the court was there concerned with whether there had been any real consent on the part of a wife to acts of sodomy by her husband which would have had the result that sodomy would not be a ground for a decree of divorce, and the language used by the members of the court there should not be taken as providing guidance in the interpretation of the Code. Likewise with respect we do not consider that Clifford Dimes[ccxiii]11 is really of assistance since the statutory provision with which the court was there concerned (Punishment of Incest Act, 1908) required permission with consent. Again, with respect, we do not find the dictum of Dixon, J. (as he then was) in Proudman v. Dayman[ccxiv]12 referred to by the learned trial judge helpful in the present instance and we do not read the passage cited as indicating that in every instance permission involves consent. What his Honour was directing his mind to in that case was knowledge of or advertence to the thing permitted.

Counsel for the Crown based an argument on s. 31 (4) of the Code which deals with duress. That subsection provides that a person is not criminally responsible for an act or omission:

“When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution:

But this protection does not extend to an act or omission which would constitute an offence punishable with death, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.”

The argument, as we understood it, proceeded on the basis that the effect of giving to “permit” in s. 208 the meaning given by the learned trial judge would be to extend the definition of duress in s. 31 (4). The court is not here concerned with the meaning of duress at common law but simply with whether or not the act was done or omitted to be done under the circumstances set out in s. 31 (4); if the matter comes within those circumstances an accused person is not criminally responsible for the act or omission, but that of course is not to say that he is not to be excused from criminal responsibility because of the operation of some other provision of the Code. If some other provision does so operate it would not in our view be correct to say that an extended meaning was thereby being given to duress in s. 31 (4).

There is in our opinion much significance in a comparison of s. 208 and s. 223. Section 223 deals with incest by an adult female and provides that it is a defence if the woman or girl at the time she permitted the carnal knowledge was acting under the coercion of the male person concerned. There is no corresponding provision to be found in s. 208.

On a consideration of all the above matters we have reached the conclusion that the word “permits” in s. 208 of the Code means no more than “allows”, without any qualification. Whether it could be said that in the particular circumstances of any case an accused person had allowed the act to be committed on him would necessarily depend on the facts of that case. There may be cases where the accused suffered the commission of the act under such threats of violence that s. 31 (4) would operate to relieve him of criminal responsibility. Again there may be cases where, whilst s. 31 (4) would not apply, the accused had resisted to an extent that even though an act of sodomy had subsequently been committed on him the tribunal of fact could not be satisfied that it could be said that he had “allowed” the act. On the other hand if in circumstances where s. 31 (4) does not apply the accused because, for instance, of fear of suffering some harm, physical or otherwise, does not resist and simply suffers the act to be committed on him the tribunal might well find that he had “allowed” it and so was guilty of the offence created by the section. It seems to us that the operation which we have held s. 208 to have may in some circumstances be too harsh and that consideration should be given to allowing for a defence of coercion of lesser degree than that provided for in s. 31 (4).

In our opinion question 1 should therefore be answered “Yes”. We do not consider that the court should answer either of the questions in question 2. Question 2 (a) is the type of general question which as Jordan C.J. said in Re Van Der Lubbe[ccxv]13, it was not proper to ask under the corresponding provision in New South Wales and that view was adopted by this court in R. v. P. M.[ccxvi]14. Question 2 (b) involves the application of the law to the facts of the case; the matter of the law to be applied is already the subject of question 1 and in our view the application of that law to a factual situation is not a question of law coming within the purview of s. 30.

PRENTICE J: The decision of the learned trial judge was to the effect that a charge under s. 208 of the Criminal Code (Queensland adopted) of “permitting a male person to have carnal knowledge of him against the order of nature”, shall lie only where the pathic has consented of his own free will to the action—that it is not apposite where he merely submitted under some form of duress. As I understand his ruling, he would allow duress to be constituted by a threat to cause the loss of a job. His Honour ruled that the Crown had not negatived the existence of duress and that he could therefore not be satisfied that the accused had permitted in the sense of “consented to”, the act of carnal knowledge.

Buggery is one of the offences of sexual indecency which modern text writers see as “not designed so much for private protection as for the enforcement of officially received opinions on particular aspects of sexual morality” (Howard, Australian Criminal Law, 2nd ed., p. 171). It is traditionally hedged about with pejorative adverbs and adjectives in statutes, and in indictments alleging its achievement. I cite one old form from R. v. Allen[ccxvii]15—“did permit and suffer the said—feloniously, wickedly, diabolically and against the order of nature to have a venereal affair with him and then ... to carnally know him”. The State, until recent times has asserted an interest against its occurrence, to the extent of constituting it an assault despite its being a consensual act.

Counsel has submitted that duress as a defence which has to be negatived by the Crown once raised, is not to be given a wide interpretation, more particularly it is said, where as under a code, specific provision is made for it in a general section. The law as to duress has been slow to develop. Thus Kenny in 1929 (Outlines of Criminal Law, 13th ed., at p. 74) stated: “Duress per minas is a very rare defence; so rare that Sir James Stephen, in his long forensic experience, never saw a case in which it was raised. Consequently the law respecting it remains to this day both meagre and vague. It is, however, clear that threats of the immediate infliction of death, or even of grievous bodily harm, will excuse some crimes that have been committed under the influence of such threats. It is impossible to say with precision for what crimes the defence will be allowed to avail.”

In one of the only four cases in Australia in which seemingly it has been raised (R. v. Smyth[ccxviii]16 ), Sholl J. while commenting that duress as a defence on a criminal charge is one involving some difficulty, adopted the decision of the Irish Court of Criminal Appeal in Attorney-General v. Whelan[ccxix]17 as correctly stating the common law as being: “Threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal . . . Where the excuse of duress is applicable it must further be already shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to re-assert itself, no justification can be found in antecedent threats.” The other cases are discussed by Howard[ccxx]18.

In 1952, the Court of Criminal Appeal in the United Kingdom was concerned with an appeal by a man convicted of buggery—the circumstances being that he was said to have induced his wife to have carnal knowledge of a dog. In the judgment of Goddard L.J. the court found the offence to have been committed and the husband to have been a principal in the second degree; the offence depending “not on consent but the act”. At the same time the court seems to have assumed in arguendo, that a charge against the wife would not have brought punishment, and (semble) that a not guilty verdict could have been entered thereto. I quote from p. 128 of the report (Sydney Joseph Bourne[ccxxi]19):

“The case against the appellant was that he was a principal in the second degree to the crime of buggery which was committed by his wife, because if a woman has connection with a dog, or allows a dog to have connection with her, that is the full offence of buggery. She may be able to show that she was forced to commit the offence. I will assume that the plea of duress could have been set up by her on the evidence, and in fact we have allowed Mr. Green to argue this case on the footing that the wife would have been entitled to be acquitted on the ground of duress. The learned judge left no question to the jury on duress, but the jury have found that she did not consent. Assuming that she could have set up duress, what does that mean? It means that she admits that she has committed the crime but prays to be excused from punishment for the consequences of the crime by reason of the duress, and no doubt in those circumstances the law would allow a verdict of Not Guilty to be entered. I have only to read a passage from Black-stone’s Commentaries (Vol. 4, p. 27) to show that that is the true position: ‘The same principle which excuses those who have no mental will in the perpetration of an offence protects from the punishment of the law those who commit crimes in subjection to the power of others, and not as the result of an uncontrolled free action proceeding from themselves. Thus, if A by force takes the hand of B in which is a weapon, and therewith kills C, A is guilty of murder, but B is excused; but if a merely moral force is used, as threats, duress of imprisonment, or even an assault to the peril of his life, in order to compel him to kill C, it is no legal excuse.’ See also 1 Hale’s Pleas of the Crown, pp. 44, 51. That means that duress is not a legal excuse for murder. There may be certain doctrines with regard to murder which do not apply to other cases, but I am willing to assume for the purpose of this case, and I think my brethren are too, that if this woman had been charged herself with committing the offence, she could have set up the plea of duress, not as showing that no offence had been committed, but as showing that she had no mens rea because her will was overborne by threats of imprisonment or violence so that she would be excused from punishment. But the offence of buggery whether with man or beast does not depend upon consent; it depends on the act, and if an act of buggery is committed, the felony is committed.”

Whatever the position is, ought to be, or is becoming, at common law; the court is here concerned with the position under the Criminal Code which contains in s. 31 (4) its own strictly limited defences of justification by compulsion. Section 208 deals with offences in both active and passive roles. If the construction allowed by his Honour be correct, it would seem that such a defence of comparatively minor duress would be open to a pathic, but not (unless it were such as to come within s. 31 (4)) to one similarly coerced into an active role for the gratification of a socially dominant passive. In the light of the long continuance of legislative abhorrence for this class of deed, apparently intended to be carried on into the Criminal Code, one would find this a surprising result.

There are other sections of the Code in which the word “permits” appears. One finds significance in the insertion of an exception in the case of an act done “under coercion”, to the definition of incest by an adult female, in s. 223 as occurring when a woman “permits her father, etc. . . . to have carnal knowledge of her . . .”—a section occurring in the same chapter of the Code. Section 213 relates to permitting defilement of young girls on a householder’s premises; and s. 144 to permitting escape of prisoners. It is an interesting contrast that in the latter section, the word “wilfully” is inserted, which would no doubt allow a prison guard acting under duress to go free of liability for an escape which he was forced to “permit”. The definition of rape in s. 347 makes special provision for duress of a lesser kind than that in s. 31 (4), by including a reference to “consent obtained by force or by means of threats or intimidation of any kind”.

The legislature having shown itself alive to the necessity for exceptions as to duress in certain cases, should not in my mind be construed as having intended in s. 208 to say “freely permits”, or “willingly permits” . . . or to have intended the appendix “unless his action in so doing was a result of his being in any way forced to submit”. That the word “permit” is to be construed in its ordinary meaning thus appears to my mind not only from the context in s. 208 as a whole, but also from the other parts of the statute (Halsbury’s Laws of England, 3rd ed., vol. 36, p. 395).

An interesting side effect of allowing such an interpretation as his Honour gave to the section, to be the correct one, might be an increase in incidence of the offence. Assuming a first such offence; in so far as blackmailing pressure by the active might be said to constitute a defence of duress, the reluctance of the pathic to consent to further acts because of a possible criminal sanction, might be broken down by his knowledge of an available defence.

The cases in which the word “permits” has been construed are usually cases of responsibility being allegedly incurred through the actions of servants or agents of the person charged, or inaction in the face of such. As was stated by Gowans J. in Chappell v. A. Ross & Sons Pty. Ltd.[ccxxii]20 they have been “concerned with an owner, his property and a use of that property in relation to a particular subject matter. In such contexts, what will be sufficient to satisfy the word ‘permits’ will be affected by the subject matter to which it is related.” Such cases where the statutory use of the word “permits” has been construed to connote “knowledge” as a mental element of the prohibited conduct such as Proudman v. Dayman[ccxxiii]21, I find, with respect, not helpful to the construction of s. 208 of the Code. In my opinion Dimes’ case[ccxxiv]22 is to be distinguished not only as being a question concerning not whether an accused person had “permitted” but whether a third person had; but also because the Incest Act, 1908 would have required the witness to have both consented and permitted, to have become an accomplice.

In Papadimitropoulos v. The Queen[ccxxv]23 the High Court ruled that to constitute consent so as to excuse what might otherwise be rape, what was required in the woman was a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. In my opinion the word “permits” in s. 208 should have its ordinary Oxford English Dictionary meaning of “allow, suffer, not prevent” (cf. Broad v. Parish[ccxxvi]24 ). That is to say that once a person allowed, suffered or did not prevent (permitted) intercourse, having perceived what was about to take place, the character of the act,—he would be committing an offence under s. 208 (3).

I am of the opinion that question 2 (a) is not a question of law of the kind that should be answered by this Court (Re Van Der Lubbe[ccxxvii]25 ). I would answer the questions:

Question 1 - Yes.

Question 2 - Question 2 (b) only should be answered, and answered “Yes”.

Question 1 Answered - Yes; Question 2: Not answered.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the respondent: W. A. Lalor, Public Solicitor.

[cciii]Infra p. 205.
[cciv]Infra p. 205.
[ccv][1969] VR. 376, at p. 388.
[ccvi](1941) 64 CLR. 588, at p. 595.
[ccvii](1933) 50 TLR. 73, at p. 74.
[ccviii](1928) 40 CLR. 481.
[ccix](1928) 40 CLR. 481, at pp. 498, 499.
[ccx][1922] 1 KB. 742, at p. 759.
[ccxi][1899] 1 QB. 283.
[ccxii][1964] P. 85.
[ccxiii](1911-12) 7 Cr. App. R. 43.
[ccxiv](1941) 67 CLR. 536, at p. 541.
[ccxv](1949) 49 S.R. (N.S.W.) 309, at p. 312.
[ccxvi] [1971-72] PNGLR. 222.
[ccxvii](1848) 169 ER. 282, at p. 283.
[ccxviii][1963] VR. 737.
[ccxix][1934] IR. 518.
[ccxx]Howard, Australian Criminal Law, 2nd ed. (1970), at p. 407.
[ccxxi](1952) 36 Cr. App. R. 125.
[ccxxii][1969] VR. 376, at p. 398.
[ccxxiii](1941) 67 CLR. 536.
[ccxxiv](1911-12) 7 Cr. App. R. 43.
[ccxxv](1957) 98 CLR. 249, at p. 261.
[ccxxvi](1941) 64 CLR. 588.
[ccxxvii](1949) 49 SR. (N.S.W.) 309.