Tasmania's new bestiality charge has failed to cover what the government intended it to cover, after a Hobart man had his charge dismissed in the Supreme Court last week.
Ammar Ibrahim Elnami did not deny that he engaged in sexual relations with a dog in Hobart on September 15 last year, but his legal argument came down to a lack of sexual penetration and whether this constituted bestiality.
Tasmania's laws were updated in 2017 as part of a suite of changes to rape laws, including changing the crime of "unnatural sexual intercourse" to "bestiality" in an attempt to cover all sexual acts with animals.
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In his second reading speech, Acting Attorney-General Matthew Groom outlined the intent of the law change.
"During development of the Bill, it became apparent that the application of the definition of 'sexual intercourse' to the crime of 'unnatural sexual intercourse' under section 122 was not appropriate and did not support prosecution for all acts of bestiality," he said.
Crown prosecutor Allison Shand relied upon this speech to argue that the law applied in Mr Elnami's case.
But Supreme Court Justice Stephen Estcourt instead found that he was required to analyse the meaning of the term "an act of bestiality" in common law, its past applications in law, international examples and whether it applied without the act of penetration.
In Victoria, the term "bestiality" was broadened to include a range of sexual acts. In South Australia, it was defined as "sexual activity between a person and an animal" - similar to the ACT definition.
Ms Shand said that bestiality "is no longer only a legal word of technical meaning", but has a "widely accepted broader meaning encompassing any sexual activity between humans and animals", which the Tasmanian Parliament intended, but did not explicitly outline.
The Canadian criminal courts faced a similar situation in 2016 in which its laws also did not define bestiality, and so a man had his charge dismissed on appeal due to a lack of penetration.
The majority ruling in that case stated that "Parliament may wish to consider whether the present provisions adequately protect children and animals" but that "it is for Parliament, not the courts, to expand the scope of criminal liability for this ancient offence".
Justice Estcourt accepted the argument that the Tasmanian Parliament had not expressed a clear intention that "bestiality" was anything other than what it was under common law: "penetration by or of an animal".
"For the reasons he advances as analysed above I am of the view that 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," he said.
Justice Estcourt found that the circumstances of Mr Elnami's situation did not constitute the crime of bestiality as it was understood in common law and as it stood under Tasmania's 2017 law change.
Mr Elnami's charge was discharged and he was released from bail.
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