Clarification on bestiality, Apple Isle style … A “specie” of buggery … Penetration essential … And, no opportunity for defence counsel to make submissions on sentencing … Finding of apprehended bias against Supreme Court judge … Janek Drevikovsky has news from The Map
That’s because, down in the progressive Apple Isle, it’s not bestiality unless there’s penetration.
Justinian Stephen Estcourt of the Van Diemen Supremes declared the law on bestiality last week, in a decision that put the leash on the prosecution of a local dog-lover.
Ammar Ibrahim Elnami of Hobart was accused by the authorities of “sexual activity” with a dog, namely:
“Inserting his finger into the dog’s anus on multiple occasions, touching and attempting to masturbate the dog’s penis on multiple occasions, touching the dog’s anus, attempting to induce the dog to lick his penis and attempting to penetrate the dog’s anus with his penis.”
Mr Elnami was charged under s.122 of the Tasmanian Criminal Code, which makes it an offence to commit the crime of “bestiality”.
The question for his honour was whether bestiality required penetration, or whether Mr Elnami’s non-penetrative routine was enough.
The court was assisted by “comprehensive” and “helpful” submissions from both prosecution and defence counsel, whose eagerness traversed the whole history of the crime of bestiality.
Bestiality, we learn, is a “specie” of buggery, first proscribed by Parliament in 25 Hen 8 c 6, or An Acte for punysshement of the vice of Buggerie.
From the beginning, bestiality required penetration, either of or by the animal. Until the early 19th century it also required “emission of seed”, but that requirement has fallen away.
The Australian authorities were scarce, his Honour said, but R v Packer, from the 1930s Victoria, showed that penetration was still required, at least at common law.
Incidentally, that case asked at what age children are capable of “canal [sic] knowledge” – which could only be what Dutch boys get from seeing one too many dykes.
We were also treated to delightful citations like Is A Duck An Animal? An Exploration of Bestiality as a Crime.
Until recently, the Tasmanian Code defined bestiality as an act of “sexual intercourse”. But in 2017, parliament removed that definition, replacing it with the undefined term “bestiality”.
Counsel for the prosecution argued the old common law definition of bestiality should not determine the meaning of section 122. Rather, the word’s ordinary sense should apply – and that sense was any sexual activity, not just penetration.
His Honour wouldn’t throw this argument a bone. It was far from clear, he said, that the modern use of “bestiality” really did imply sexual activity other than penetration.
In any case, the court could not expand the scope of a crime by reading new meanings into the words of the statute. The more conservative, legal sense of the words was to be preferred, in the absence of a clear contrary indication from parliament.
The second reading speech accompanying the 2017 amendment did say that the old definition of bestiality was “inappropriate”. But the speech was no clearer than that, and so ultimately unhelpful.
Estcourt J, a noted foodie and gourmand, therefore interpreted bestiality, under the Code, as requiring an act of penetration.
Because Mr Elnami had not quite managed to penetrate the dog in question, he got off (by not getting off).
No wonder Eric Abetz and other Derwent River paleoconservatives were always so worried about the slippery slope from same sex marriage to canine–human romance.
In other Hodevelopments in Hobart Town, Justice Gregory Geason has been quashed for apprehended bias.
Drew Jones appealed against Geason J’s orders to reactivate a suspended sentence he had handed down in September 2019.
Back then, his Honour dished up 12-months’ porridge to Mr Jones, nine of those months to be suspended.
While at large and on a good behaviour bond, Jones notched-up a series of traffic and firearms offences.
He was brought back before Geason, where the crown asked for the rest of his nine month sentence to be imposed.
This was a plain case of apprehended bias, according to a full bench of the Supremes – Chief Justice Alan Blow, Justice Robert Pearce and Acting Justice Brian Martin.
“There cannot be a clearer case of apparent pre-judgment than this one.
The learned primary judge said he was activating the suspended part of the sentence without first giving the appellant’s counsel an opportunity to make submissions as to whether that would be unjust.
Such submissions are routinely made by defence counsel in applications of this nature. Even when persuaded that he ought to let the appellant’s counsel speak, his Honour commented that he did not see upon what basis it could properly be submitted that he ought not to activate the sentence.
That was a second unmistakable indication of apparent pre-judgment.”
The Ebner test was satisfied – Geason would, to a fair-minded lay observer, have seemed not to bring the required impartial mind to his judicial task.
The decision was quashed and the matter remitted for fresh consideration by another judge.