Princhester, that’s the provision I was referring to. As I say, context can displace that definition. I would be very surprised if Adams wasn’t aware of it, however, so he must have had a reason for coming to his conclusion. I am hesitant to be critical until I have read the decision (if I ever do).
If NSW law is anything like it is elsewhere, there is a route of appeal from Adams J to the Court of Appeal (albeit by way of leave). This case might well attract leave if the accused wants to take it further.
This is not a trivially easy area of discourse. It emerges throughout the criminal law. In cases of forgery, for instance, it makes a difference whether you forge a document signed by a person who actually exists, or merely forge a signature of a fictitious person. This is not resolved typically by statute but by case law. A recent decision involved a person being convicted of the conceptual equivalent of uttering financial bonds which were forged. In truth, the bonds were not copies of real bonds, but invented documents that looked impressive but did not represent any bonds ever actually issued. He was acquitted. This raises questions about how far that doctrine might go - if you forge a realistic looking $10 bill, but put on it a number that was never issued, is it a forgery?
Subtle questions arise when considering the difference in law between the real and the fictitious.
Cuckoorex, the law about abortion in Australia (and, no doubt, elsewhere) is not arrived at by first trying to determine what a “person” is. That process may inform the policy behind whatever the legislature enacts the law to be, but not the law itself. In those places where it is prohibited, the law simply forbids abortion except in those (defined) circumstances where it is justified. (Those justifications are now read extremely widely. In my jurisdiction, abortion is illegal but so set about with wide exceptions that there hasn’t been a prosecution in quarter of a century.) So while I understand your connecting the two issues, for the purposes of the law they are separate. An abortion case will never involve a "fictitious’ mother.
I understand your issue about thoughtcrime, too, and it may be that ultimately your view prevails. But the debate is not resolved by a process of classification by the attribution of pejorative epithets. The large question (aside from whether Adams J has correctly interpreted the law) is whether in this specific type of case, the thoughts are so clearly linked to acts and escalations of the sort I described in an earlier post as to justify criminalising them. That is a matter of judgment. The slippery slope argument you raise about a threesome with Ang and Sal is not compelling. Such arguments typically don’t hold much weight. Courts typically respond by saying they will deal with the case before them now, and worry about a case involving you, movie stars and a glazed expression if and when it arrives.
