Hewitt v The Queen M30/1996 [1997] HCATrans 179 (6 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M30 of 1996

B e t w e e n -

JON EDGAR HEWITT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 6 JUNE 1997, AT 3.03 PM

Copyright in the High Court of Australia

MR S. GILLESPIE-JONES: May it please the Court, I appear for the applicant. (instructed by John A. Clements Pty)

MR G.R. FLATMAN, QC: May it please the Court, I appear with MR T. GYORFFY for the respondent. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Vic))

BRENNAN CJ: Mr Gillespie-Jones.

MR GILLESPIE-JONES: Your Honour, this application arises out of a rape trial where the applicant and a person called Powell were charged with aggravated rape. They were charged on three occasions that on three occasions they did rape the complainant and the jury was charged by his Honour the learned trial judge that, firstly, on the basis that the applicant aided and abetted Powell; second, that he was acting in concert with Powell and, thirdly, bearing in mind that the applicant was not the person who penetrated the complainant, it was put by his Honour the trial judge to the jury that the applicant acted as a principal through use of an innocent agent.

Now, Powell was acquitted and the applicant was convicted. The circumstances of the aggravation were that the rape took place in the presence of the applicant. So, it would be submitted that by virtue of the jury's verdict, the only way that the applicant could have been convicted was by way of being a principal through an innocent agent.

BRENNAN CJ: Why?

MR GILLESPIE-JONES: The situation is, or at that stage was, your Honour, that the circumstances of aggravation was that the rape took place in the presence of my client and was aided and abetted by my client.

BRENNAN CJ: Is that not the fact, assuming the girl was raped; that is that somebody had sexual intercourse with her or penetrated her without her consent. Did that not happen, on the jury's finding?

MR GILLESPIE-JONES: No, because they were acquitted of aggravated rape. It was part of the circumstances of aggravation that the applicant aided and abetted. So if it were to be a joint venture, there had to be convictions for aggravated rape, as it were, either by way of aiding and abetting or by way of acting in concert.

BRENNAN CJ: Why?

MR GILLESPIE-JONES: Because that is how the case was framed, your Honour.

BRENNAN CJ: Just take the elements first of all. What were they convicted of? What was he convicted of?

MR GILLESPIE-JONES: He was convicted of rape, which was the alternative charge to aggravated rape.

BRENNAN CJ: Right. Now, if he was convicted of rape, the elements of that offence are: that the body of the prosecutrix was penetrated without her consent. That is No 1, is that not right?

MR GILLESPIE-JONES: Broadly speakaing, yes, your Honour.

BRENNAN CJ: Is it inaccurate?

MR GILLESPIE-JONES: It is inaccurate in so far as it is now subsumed by section 38 of the Crimes Act, but - - -

BRENNAN CJ: At the relevant time, was it accurate?

MR GILLESPIE-JONES: Not really, your Honour, and there is a matter that might turn on it in so far as the actual person who penetrates has to have a state of awareness - - -

BRENNAN CJ: Why? We are talking about actus reus, not about the mens rea.

MR GILLESPIE-JONES: If we are talking about the actus reus, that is absolutely right.

BRENNAN CJ: Then the next question is was that actus reus something which was aided and abetted?

MR GILLESPIE-JONES: No.

BRENNAN CJ: Why not?

MR GILLESPIE-JONES: Because of the verdicts of acquittal with respect to the aggravated rape, because the circumstances of the aggravation were the aiding and abetting by my client of Powell's penetration.

BRENNAN CJ: I thought you said it was in the presence of him, that the circumstance of aggravation was laid.

MR GILLESPIE-JONES: It was the aiding and abetting.

DAWSON J: That is the way the Crown case was put, was it not?

MR GILLESPIE-JONES: Yes. If one has a look at the presentment at page 2 one will see that the aggravating circumstances was the aiding and abetting in relation to the first count. That was the quirk of the legislation at that point in time, your Honour.

DAWSON J: So that the verdict of not guilty on that count must have negatived aiding and abetting and aggravation, because that was the aggravation.

MR GILLESPIE-JONES: And acting in concert also, because there could not have been the agreement between the two. So really what we have isolated here is only a rape by innocent agent because, having acquitted Powell of both, the applicant was then convicted of the rape simpliciter and the only way that could happen is if he were convicted by way of innocent agent.

BRENNAN CJ: Why do you say that acting in concert was negatived?

MR GILLESPIE-JONES: Because there would have to be an agreement between Powell and the applicant - - -

BRENNAN CJ: That? The agreement being?

MR GILLESPIE-JONES: To rape the complainant.

BRENNAN CJ: Why to rape, as distinct from having carnal knowledge of her?

MR GILLESPIE-JONES: I only say that because of the verdict of the jury with respect to the rape.

BRENNAN CJ: But if the fact was that there was an agreement between them that your client should procure this girl to go out into the bush and have intercourse with this man, and that is what happened, and your client knew, but the man did not, that she was not consenting, why is that not a concert which makes your client guilty of rape?

MR GILLESPIE-JONES: Because if one has a look at - the difficulty was that Powell himself was acquitted of the rape.

BRENNAN CJ: Yes, because he did not have the mens rea.

MR GILLESPIE-JONES: He did not have the mens rea, but it would be hard to have the agreement that the rape take place - for a rape to take place without the mens rea.

BRENNAN CJ: Oh yes, but that might not have been the agreement. The agreement might have been that intercourse take place.

MR GILLESPIE-JONES: That is right.

BRENNAN CJ: What I am putting to you is: what is wrong with the proposition that your client is guilty of rape if he agrees with Powell that he, your client, should take the girl out to the clearing with Powell and that Powell should have intercourse with her. And he knows, that is your client knows, that the girl is not consenting.

MR GILLESPIE-JONES: Because then he would not be acting in concert with Powell, in my submission.

BRENNAN CJ: Because they would not have the same mens rea?

MR GILLESPIE-JONES: That is right.

BRENNAN CJ: That is the argument, is it?

MR GILLESPIE-JONES: That is the way it was not dealt with in the Court of Appeal. But, in my submission, that also is not the way that it was put to the jury, with respect. It was put to the jury on the basis that if they acquitted Powell, they could still convict the applicant but they could do so by means of - and then the rape through innocent agent was put by the judge. Now, in so far as your Honour's hypotheses is put to me, that was not the hypothesis that was not the hypothesis that was put to the jury, I suppose would be the best way I can answer that.

BRENNAN CJ: I should not be occupying your time, but for myself at the moment, I do not see much difference between using the terms "rape by an innocent agent" and what I have put to you.

MR GILLESPIE-JONES: In my submission, your Honour, the trouble is - and if I can turn to precisely what the judge said with respect to this and it highlights the difficulty. If I can take your Honours to page 153 where the words with respect to innocent agent are put - and this is the basis that it is put to the jury. At the bottom I have underlined them, at line 31:

he is guilty because he allowed a scenario that he set up to take place. That is he allowed penetration to be effected by Powell knowing there was no consent by the girl, against the consent of the girl, and that he was fully aware she was not consenting, and I direct you in those circumstances that if you found that particular you could still make a finding that Mr. Hewitt was guilty, that is, if you found that particular you could still make a finding that Mr. Hewitt was guilty, that is if you found in the mind of Mr. Powell no knowledge that the girl was not consenting therefore you found that he was not guilty of rape.

Now, in my submission, there are a number of problems with that. The first, if I can put it this way, is that - and it is important, bearing in mind that we are looking at three counts, one of which is oral rape and two of vaginal rape, no one has said that it was necessary to prove that the applicant had actually caused the rape. Secondly, it was never put that the rape itself had to be intended. In other words, the applicant had to intend that the complainant be raped. Thirdly, one can see by the passage that is outlined that the acts that were done by the applicant that were alleged to have caused the rape were not outlined in the judge's charge. It is my submissions that each rape, for there to be the content to cause each rape, there would have to be some degree or some direction with respect to foresight, that is that he would foresee that there would be a rape that would take place. There are the kinds of causation problems that your Honours went through in Royall that would have to be applied to a situation such as this, in my submission.

DAWSON J: No direction was put on the basis of concert?

MR GILLESPIE-JONES: Yes, there was a direction with respect to concert but, in my submission, that was with respect to, as I understand it - and I am straining my memory - but I believe that was with respect to aggravated rape and then having an agreement between the two of them. But this particular aspect of the acquittal by Powell and the conviction of Hewitt on this particular basis was the only section that was put, as I understand it, to the jury and this is the basis upon which it was argued in the Court of Appeal.

BRENNAN CJ: Is the objection to what appears at 153 that the jury ought to have been told that it was necessary to prove, in addition to the facts that are stated there, an intention on the part of Hewitt that Powell should rape the girl?

MR GILLESPIE-JONES: That was an alternative submission that was put. It was put to the Court of Appeal alternatively to it not being possible to rape by way of innocent agent because of the intimate nature of the crime.

BRENNAN CJ: You say that that direction that is there is wrong because if that is all that was proved, he could not be guilty of the crime?

MR GILLESPIE-JONES: That is correct. In my submission, one has to be told that the crime is intended. It was covered in the Court of Appeal by the President and by Mr Justice Callaway. I have made reference to that at page 156 of the application book as his Honour said that, paragraph 3.9, that the direction that has been highlighted:

"could only be interpreted" as manipulating "the conduct of others" so that "he could be said to have relevantly caused the result" is wrong -

in my submission because there is no evidence that the applicant had manipulated Powell and that is the difference between, as it were, Cogan's Case and the case here. That is referred to in the judgment of Mr Justice Callaway and referred to at page 169 of the application book at line 12 where I have extracted from the judgment:

"Therein lies the second difference. Not only was there no evidence that the applicant persuaded Powell to penetrate the complainant but there was no reference to such persuasion in the charge. The emphasis in the first part of the passage that I have underlined is on forcing the victim, not persuading or influencing Powell. The critical difference is therefore the absence of any direction, or evidence that the applicant influenced Powell."

And that is the difference between this case where there is no evidence and Cogan and Leak.

In my submission, also, it is put by the Director in his responses to my submissions that the objections to the directions are hypothetical. In my submission, given the problems of causation, that is that the applicant would have to cause arguably Powell to have oral sexual penetration, in my submission the failure to give any direction as to causation had a very real impact on the applicant's prospect of an acquittal.

DAWSON J: I have now read the directions as to concert. The jury may have convicted on the basis of concert. You say we do not know that, I suppose.

MR GILLESPIE-JONES: In my submission, not, because of the way in which the charge was framed. I suppose I am drawing an inference from the verdicts of acquittal with respect to - - -

DAWSON J: Aggravated rape, but that is quite consistent. There may have been agreement to commit rape but because the particular accused was not present aiding and abetting, it could only be rape. In other words, what happened, which was not aggravated rape, was a possibility arising out of the agreement to do what they had agreed to do and that would bring them both in as principals.

MR GILLESPIE-JONES: The submission is that it was put to the jury not as that but as an innocent agent.

DAWSON J: By giving a direction in respect of innocent agent one is not able to say whether that was what the jury seized upon.

MR GILLESPIE-JONES: If I can answer your Honour in this way. The whole basis upon which the matter was decided in the Court of Appeal was on the basis of innocent agency and not on the basis of concert with the relevant lack of aiding and abetting. It was - - -

DAWSON J: I notice that it was the principle on which the Crown put it case, namely concert.

MR GILLESPIE-JONES: That is possibly right, but having said that, that was not really the way it was put before the jury. I cannot answer it any other way, I do not think.

BRENNAN CJ: The question for determination, however it might have been put on more conventional grounds, if you like to call them that, is whether the direction of which you complain in your summary at 153 is right or wrong. If it is wrong, the jury might have convicted in accordance with that direction and your client is entitled to a retrial. If, on the other hand, it is right, then there is no substance in the argument.

MR GILLESPIE-JONES: There are really two prongs to it, your Honour. It is put also that with respect to the nature of the crime itself, that is rape itself - and the section is reproduced at page 154 of the application book - - -

BRENNAN CJ: You say that direction must be wrong because there cannot be rape by another person.

MR GILLESPIE-JONES: Exactly.

BRENNAN CJ: Yes, I understand that.

MR GILLESPIE-JONES: And that is put on the basis of the - it is one thing talking about intentional awareness and things of that nature, but where as part of the crime it says - I am looking at 38)(2)(b):

A person commits rape if -

(a) .....

(b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.

This falls in the same category as bigamy in so far as it is the kind of crime that cannot be committed by an agent. It would be impossible, for example, for my client to withdraw from a person who is not consenting if he has not penetrated to start off with. And if that forms part of the mental element of an offence against section 38, as it would appear - - -

KIRBY J: There is an "or" between the two paragraphs.

MR GILLESPIE-JONES: Oh, there is no doubt about that. I just say that that illustrates it better. The first paragraph says it requires the awareness upon penetration. But it would be strange, in my submission, if you could be guilty of raping through an innocent agent for paragraph (a) and not through paragraph (b). Really, it is a question of time for the same state of awareness or the state of doubt.

I see I am out of time, your Honours. If I can just say that the general application of it is referred to in my outline at page 159, part IV. It is said by Mr Justice Callaway that he has taken a very wide view of the principles in the first degree and that if he is right many, if not most, accessories are principals in the first degree. So it is a matter, in my submission, of general import.

BRENNAN CJ: Yes. Mr Flatman.

MR FLATMAN: Your Honour, it is my submission the issue raised here is that the charge or directions to the jury were sufficient to identify the facts in issue for this crime, whether it be by way of innocent agent or - - -

DAWSON J: You have got to face up to the fact that if what the trial judge says about innocent agency is not correct, and even though the jury may have convicted on some other basis, the applicant is entitled to a new trial.

MR FLATMAN: Your Honour, the case of Matusevich 137 CLR 637 in the High Court really, in my submission, encapsulates the issue here. The situation is that the criminality is what is in question and the appropriate identification of the facts whereas the jurisprudence behind it, or the philosophy behind it, is not a matter that needs to be part of the charge.

BRENNAN CJ: We do not have to give words to it. The question is whether the charge was right or wrong.

MR FLATMAN: That is so.

BRENNAN CJ: Now, the particular part that is put against you is the part at page 153.

MR FLATMAN: Which simply is - - -

BRENNAN CJ: Is that right or wrong?

MR FLATMAN:

he is guilty because he allowed a scenario that he set up to take place. That is he allowed penetration to be effected by Powell knowing there was no consent by the girl, against the consent of the girl, and that he was fully aware that she was not consenting, and I direct you in those circumstances that if you found that particular you could still make a finding that Mr. Hewitt was guilty, that is, if you found that particular you could still make a finding that Mr. Hewitt was guilty, that is if you found in the mind of Mr. Powell no knowledge that the girl was not consenting therefore you found that he was not guilty of rape.

It sets out certain facts:

set this girl up, got the girl and told her, and forced her, by way of presence, or whatever, subject to what you find, to indulge in these acts of sexual activity with Mr. Powell.

Now - - -

DAWSON J: You say he forced her.

MR FLATMAN: That is effectively the - - -

DAWSON J: But, you see, what is put against you is that he would then certainly be an aider and abetter.

MR FLATMAN: Yes.

DAWSON J: But since the circumstances of aggravation were specified as aiding and abetting, and there was an acquittal on the aggravated rape charge, you must put that to one side.

MR FLATMAN: But the acquittal on the aggravated rape charge is consistent with the verdicts in the case because clearly if you apply the principle of innocent agent, he could not have been an accessory to the crime that he committed as a principal. That is quite compatible - - -

DAWSON J: That is true, but that is taking the legal situation. Taking the factual situation, the jury verdict indicates that he was not present and encouraging at the time.

MR FLATMAN: But the jury verdict is consistent with the findings of fact which, in turn, are consistent with the concept of innocent agency. Indeed, that is precisely what the Chief Justice Sir Harry Gibbs said in Matusevich. If I can read you - - -

DAWSON J: What is the exact passage there? That was concerned with concert and ability to make an agreement, was it not?

MR FLATMAN: Yes. But it looked back on the case of Tyler and Price which, again, is related to the concept of concert and the concept of innocent agency. If I can start, perhaps, at page 637 about two-thirds of the way down:

But if the insanity of Thompson was such that he was incapable of reaching any agreement, arrangement or understanding with the applicant, it does not follow that the latter must be acquitted if the death of Whateley was caused by the acts of Thompson. If the applicant incited Thompson to kill Whateley, the applicant would be guilty of murder, since Thompson, if insane, would then be treated as the applicant's innocent agent. If there was no preconcert between the two accused, and the applicant did not influence Thompson to act as he did, the applicant may nevertheless be convicted if he was present and assisted Thompson when the latter struck the fatal blows. The learned trial judge directed the jury that if they found Thompson not guilty on the ground of insanity they could not find the applicant guilty of aiding and abetting. The view that a person cannot be convicted on a charge of aiding and abetting another to commit a crime when the person who actually perpetrated the criminal act was of unsound mind, and was therefore himself not criminally responsible, is supported by Reg. v Tyler and Price where Lord Denman C.J. told the jury that in such a case "there will be no foundation on which the accessary crime can rest". However, the reasoning in Reg. v Bourne suggests that there are cases in which a person may be liable for aiding and abetting another to commit a crime, although the actual perpetrator is not criminally responsible. The law on this question remains unsettled (see Reg. v Cogan) but it is unnecessary to pursue the matter. If the applicant knew that Thompson intended to strike Whateley blows of considerable severity with an axe, and, himself intending that Whateley should be killed or seriously injured, assisted Thompson, the applicant would be guilty of murder. It would be an affront to justice and to common sense that Thompson's insanity should exculpate the applicant in those circumstances. If authority is needed to show that the applicant would be guilty in such a case, Reg. v Tyler and Price provides it. Opinions may differ as to the basis of that decision. It may be that the lunatic there was regarded as the innocent agent of the accused. Or it may be that the case establishes that an accused person may act in concert with a lunatic even if the latter is, for his part, not capable of making an agreement.

That, your Honour, is the point that was raised earlier. Perhaps it does not matter whether it is acting in concert or rape through an innocent agent. What is considered criminal is the act or in the circumstances of the case.

KIRBY J: But can I ask you this? Is murder defined in the Crimes Act of Victoria or not?

MR FLATMAN: No.

KIRBY J: Is there not this problem then where, in this particular case, you have a definition in section 38(2) and that definition seems to posit that it is the same person who forms the actus that has to have the mens rea. That is certainly so in respect of (b). Why is it not also so in respect of (a)?

MR FLATMAN: Your Honour, that is an argument - - -

KIRBY J: Ultimately we have got to be faced with the statute.

MR FLATMAN: I appreciate that. It still contemplates accessorial liability. The situation of rape in Victoria - - -

KIRBY J: It does not in (b).

MR FLATMAN: It may not in (b).

KIRBY J: Why would you interpret it so that - - -

MR FLATMAN: It might in (b), depending upon all of the circumstances. I mean (b) might be a situation - a person cannot be liable as an accessory in (b) unless they have got the necessary - - -

KIRBY J: Does that not rather suggest the same would be true of (a)?

MR FLATMAN: No, no, but in (b) the person would have to be acquainted with sufficient facts and be aiding and abetting in circumstances after the penetration - let us suppose something commences - - -

KIRBY J: It is hard to conceive - - -

MR FLATMAN: - - -and the girl says, no, no, and then someone says, "Well, go on".

KIRBY J: "Stop. I put you up to this but I am now stopping you."

MR FLATMAN: No. Look, your Honour, the difficulty is that it is a fiction, the whole concept of innocent agency, and indeed it is a very difficult area of the law as to which way the philosophy goes.

KIRBY J: But is there not a question here as to whether it applied in the case of the Victorian statute, given the way Parliament has bothered to define "rape"?

MR FLATMAN: Your Honour, in my submission, there is no problem about it applying in relation to the statute. Accessorial liability is attracted, the same principles apply that applied in Cogan and Leak, all of the textbook writers discuss Cogan and Leak at length. Many criticise it for different reasons. Everyone comes to the same conclusion that the end result is desirable, although the method of getting there might have certain criticisms. It is my submission that the statutory situation in relation to this really makes no difference at all because it allows for accessorial liability and therefore allows for the position where the person could be acting in concert, as referred to in this decision, or acting in circumstances where he is an innocent agent.

Indeed, the difficulty in then going to the charge, or the directions, and saying well, are they sufficient - - -

DAWSON J: There is a problem about innocent agency. I know they put it in the argument in a strange way saying it is such a personal thing, but in fact when you look at agency the agent stands in the shoes of the principal and you can hardly say that that is so in the case of rape, can you?

MR FLATMAN: Well, the textbook writer certainly draw that distinction.

DAWSON J: I mean in Tyler's Case it is quite different. Someone is murdered by raining blows and you can say that the person who actually rained the blows on the deceased was acting as the agent, was doing it for the principal. But that is a little difficult with rape, is it not?

MR FLATMAN: It is different?

BRENNAN CJ: Why? Why is it different?

MR FLATMAN: Because in one situation, the murder, A causes the effect. A can cause the death of someone whereas this is a more personal thing where - - -

BRENNAN CJ: I do not understand this in terms of personality, when it is a question of the particular act which is proscribed. The particular act in rape is penetration and you can penetrate as well as you can hit.

MR FLATMAN: Yes.

KIRBY J: It is usual sexual penetration for sexual gratification which - - -

BRENNAN CJ: Ah, well, that is not an element, is it, though?

MR FLATMAN: That is not really the law now, I do not think, that it is for sexual gratification. Generally it is, but it is not crucial to it at all. Can I answer it by saying that the point raised by Justice Dawson is supported by some textbook writers and the point raised by your Honour the Chief Justice is also supported by some textbook writers.

KIRBY J: This is beginning to sound a very interesting case.

MR FLATMAN: There is no question that it has infinite academic interest but one thing that the textbook writers always come back to is the proposition that it is desirable that it be treated as criminal activity under one or other of these heads. Now, Glanville Williams looked at a definition from a Law Reform Commission report. The English cases seem to have moved more towards procuring the actus reus without the principal perpetrator being convicted. There are movements, as this particular judgment refers to, about Cogan and Leak actually standing for the propositions that you can be an accessory although the principal is not convicted. The Court of Appeal in this case took the view that the most appropriate way of approaching it in a jurisprudential sense was to categorise it as rape through an innocent agent.

DAWSON J: But the trial judge did not differentiate that from concert, which is the chief way the Crown put its case, and the two are inconsistent with one another, are they not, really, when you think about it? Because if there was concert, then this certainly was not an innocent agent, he was far from innocent.

MR FLATMAN: That is right. The trial judge did not put the concert in the way that was raised by the Chief Justice. The trial judge put concert in the context of both parties doing it, carrying out their purpose both with the necessary mens rea.

BRENNAN CJ: Both intending that rape should take place.

MR FLATMAN: Both intending that they would go on regardless of her position; both having the necessary mental state. I am not certain that it could not have been put in the way that was raised in Court by your Honour before, but - - -

BRENNAN CJ: I must say, for myself, if that direction on 153 is not accurate, then the law is in a sorry state.

MR FLATMAN: If it is not accurate?

BRENNAN CJ: If it is not accurate, then the law is in a sorry state.

MR FLATMAN: I do not have any argument at all with that, your Honour. That was really where I was going to in this passage in Matusevich which says:

The jury.....need not be troubled by a charge which endeavours to explain these niceties. Nor should they be asked for special findings. What would be necessary would be to instruct them clearly as to the facts of whose existence they would have to be satisfied before they could convict. If upon a new trial -

et cetera. But, really, that is the point that, as a matter of reality, the real issues were put before the jury in that direction and if the jury found those things, then the law would be in a sorry state if the person was not guilty of the crime.

Can I diverge for a moment. I just recollected a case of Paterson, a New Zealand case which is referred to in the judgment, which was a case involving a burglary under the Code, under statute, and that was a situation where it was held that - - -

KIRBY J: I can understand those cases, murder and burglary. What I am worried about is the meaning of the section in the Victorian statute in relation to rape which I just have difficulty of conceiving of that as being something done by an agent. I have difficulty with the language. It does not apply to (b), in my opinion. It arguably may apply (a) but I think that is an important question. You have made this question sound so fascinating to me, with all the talk of all these textbooks. It is the sort of thing one could become quite interested in.

MR FLATMAN: There is no question that it is the perfect exam question but it is my submission that it has been - - -

KIRBY J: That seems very suitable for the High Court then.

BRENNAN CJ: Oh no.

MR FLATMAN: It does not arise in a way that gives rise to a special leave point in this case because the direction was sufficient.

KIRBY J: If that statutory point is good, then it arises acutely in this case. If you cannot have rape by innocent agent, then the statutory point is thrown up.

MR FLATMAN: That can be interpreted in many different ways. I mean, it need not be rape by innocent agent. It could be another interpretation of Cogan and Leak, but what I am saying is no matter how you approach the fact situation in this case, it has been properly resolved by the jury, however you choose to explain the jurisprudence behind it. It would be a front to common sense, in my submission, that a person would be liable in these circumstances under common law rape but not liable in circumstances where it now was in a statutory form.

BRENNAN CJ: Paragraph (b) expands the facts which would otherwise constitute rape under paragraph (a).

MR FLATMAN: Yes. And it would be a rare situation where you would have the facts to constitute paragraph (b) in an accessorial position, but it could occur.

KIRBY J: But paragraph (b) expands it on a hypothesis that is very personal to the raper, the perpetrator, and that is the question: does the hypothesis move backwards to become the hypothesis on which paragraph (a) is framed. If it does, it is fatal to the Crown's case. You cannot have rape by an innocent agent.

MR FLATMAN: That would mean that what was in all other - - -

KIRBY J: There may be some other offence that is committed here. I agree there should be some offence but - - -

MR FLATMAN: And the offence, in my submission, ought to be rape. This is under the first part of that section, and the offence ought to be rape.

KIRBY J: Perhaps it should be, but perhaps the Victorian Parliament denies it. Anyway, I think we understand the - - -

MR FLATMAN: Your Honour, that almost creates a conundrum. I do not concede that - obviously I do not concede that - - -

KIRBY J: Of course not. I understand, and it is arguable, it is distinctly arguable.

MR FLATMAN: In my submission, your Honour, this is not the case. I am very closely approaching my time.

KIRBY J: Is the definition of "rape" in other States similar or is this a peculiar Victorian phenomenon?

MR FLATMAN: I am not sure that that second leg has not been arguably part of the common law in any event for some time, simply that that has been put in statutory form following the common law as it has always been. I mean, there might have been two different views about whether it applied, but I think it was because of some controversy about that issue - - -

KIRBY J: There was a decision of this Court, I think, a Western Australian case.

MR FLATMAN: Yes, but certainly it was part of the common law and - I am not sure that, in those circumstances, the argument is equally valid in the Cogan and Leak situation as it is in the case before this Court today. They are the matters, your Honours.

BRENNAN CJ: Yes, Mr Gillespie-Jones.

MR GILLESPIE-JONES: Your Honours, with respect to the facts in this case, as opposed to Cogan and Leak, there are a number of dissimilarities that I would seek to emphasise. The first is it is put in the statement of facts that is agreed to by the respondent that there is no evidence of any direction or encouragement given by Hewitt to Powell and, in contrast to Cogan and Leak, there is no evidence of any influence that Hewitt brings to bear on Powell.

With respect, the difficulty then is, when one has a look at the highlighted extract from the charge, that the words:

he is guilty because he allowed a scenario that he set up to take place. That is he allowed penetration to be effected by Powell knowing there was no consent by the girl -

in my submission the word "allow" has a natural meaning that cannot be directly equated with "that he caused and intended". In my submission, also, there should be, with respect to notions of causation, a - it is not as if Powell does not have a mind and will of his own. It is not as if the complainant has a mind and will of her own with respect to the sexual penetration. It is not, in my submission, proper in principle to have a person convicted of rape where it is not put by the judge that he intended that the rape occur and it is not put by the trial judge that he caused the rape. Merely saying that "he allowed penetration to be effected", in my submission, casts an onus on him to prevent the sexual penetration from taking place, a breach of that onus meaning that he would be convicted of the rape. In my submission, the words that "he allowed penetration", the word "allowed" being repeated twice, is such as to really shift the onus on to him.

In my submission, notwithstanding that his Honour Mr Justice Callaway and the President found that that would be equivalent to saying "causing and intending", in my submission there is a very real danger in this case that he has been convicted because he has, to quote the judge, "allowed penetration to be effected by Powell". If that be the case, in my submission, that would be a bad direction in principle.

I do not think there is much more I can say, your Honours.

BRENNAN CJ: The Court will adjourn briefly in order to consider the course it will take.

AT 3.48 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.54 PM:

BRENNAN CJ: By majority, the Court is of the opinion that in the circumstances of this case there was no error in the trial judge's direction with reference to the liability of the applicant to conviction for rape in the absence of any concert between him and Powell. For that reason, special leave will be refused.

AT 3.55 PM THE MATTER WAS CONCLUDED