ACCUSED CHARGED WITH BESTIALITY FILED A DEMURRER ON THE BASIS THAT THERE WAS NO PENETERATION WITH A PENIS

Elnami v Tasmania [2020] TASSC 54 (12 November 2020)

This case involves the accused filing a demurrer on the basis that the law on bestiality requires that there must be a penal penetration.

Facts:

The accused Ammar Ibrahim Elnami has been indicted for the crime of bestiality, particularised as follows: "[Mr Elnami] at Hobart on or about the 15th day of September 2019 engaged in sexual activity with a dog, namely by 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."

The accused has filed a written demurrer pursuant to s.354(4) of the Criminal Code and seeks an order that he be discharged forthwith from that indictment on the basis that the crime of bestiality is only committed if there is penetration with a penis by, or of, an animal.

The State contends that in 2017, s.122 of the Code was amended by the Criminal Code Amendment (Sexual Assault) Act 2017, so as to replace the crime of "unnatural crimes" with the crime of "bestiality".  It is submitted on behalf of the State that this amendment was part of a suite of legislative reforms which, amongst other things, broadened the definition of "sexual intercourse" and made other amendments intended to modernise the language of the Code.

Counsel for the State, Ms Shand, places reliance on the second reading speech of the Criminal Code Amendment (Sexual Assault) Bill  2017 (the Bill). In light of the Bill's second reading speech, the State submits that a clear parliamentary intention existed to widen the scope of the crime beyond its post-1987 iteration.

Issue: Should the court allow the demurrer filed by the accused?

Law:

• Criminal Code Act 1924  S.122
• R v Bourne (1952) 36 Cr App R125

Analysis:

The Crown's position in this case directly implicates the principle that it is for Parliament and not the courts to expand the scope of criminal liability. The Crown invites the Court to develop the common law definition of bestiality so as to expand the scope of criminal liability for that offence. If we accept the Crown's position, the offence will fundamentally change from one relating to sexual intercourse between a human and an animal to one proscribing and punishing any touching of a sexual nature between a human and an animal. There is no clear statutory mandate to do so. And, to accept that invitation would be to exceed the proper role of the courts in defining criminal liability.

Mr Dolbey's (counsel for the accused) concluding submission is that Parliament has not expressed a clear intention that "bestiality" should be construed to mean anything other than as it was understood at common law – "penetration by or of an animal". The court accepts that submission.

The word "bestiality" has a well understood legal meaning, that Parliament must be taken to have used the word in that sense and that the second reading speech cannot be substituted for the text of the law. Section 122 of the Code requires an act of bestiality as expounded in  R v Bourne, namely penile penetration by, or of, an animal (which term has historically been taken to include any animal or bird). Any change effected to s.122 by the 2017 amendment was inconsequential.

So understood the indictment is bad as the particulars do not disclose, and could not if proven, constitute the crime of bestiality contrary to s.122.

Conclusion: The demurrer pleaded by the accused is allowed and the judgment of the Court is that the accused is discharged from the premises set forth in the indictment, and is discharged accordingly. The court shall release him from his bail.

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