R v Getachew [2012] HCATrans 55 (8 March 2012)

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R v Getachew [2012] HCATrans 55 (8 March 2012)

Last Updated: 8 March 2012

[2012] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M139 of 2011

B e t w e e n -

THE QUEEN

Appellant

and

TOMAS GETACHEW

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 MARCH 2012, AT 11.17 AM

Copyright in the High Court of Australia

MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MS E.H. RUDDLE, for the appellant. (instructed by Director of Public Prosecutions (Vic))

MR C.B. BOYCE: If it please the Court, I appear on behalf of the respondent with my learned friend, MR L.C. CARTER. (instructed by Leanne Warren & Associates)

FRENCH CJ: Yes, Mr Gyorffy.

MR GYORFFY: If I might indicate, your Honour, I will be presenting the submissions on ground 2A, and my learned friend, Ms Ruddle, being International Women’s Day, most appropriately, will be presenting the arguments on ground 2B. I understand that there are some time constraints. I think we can deal with this much quicker than the dot points would indicate.

If I might have leave to hand up one document to your Honours. What I have attempted to do is to set out the positive proposition that we are trying to establish in ground 2A and I will speak to that proposition, if I might have leave to do that?

FRENCH CJ: Yes. This sort of outline – we have commented on it yesterday as well - does not really meet the purpose of the outline. We need a road map from which it is easy to discern the series of propositions that you wish to put to us. In any event, let us get on with it.

MR GYORFFY: Well, your Honour, so far as ground 2A is concerned, the proposition we want to put is that that is in that paper that I have just handed up. We want to make the positive proposition that where the statute provides that a given fact situation means that as a matter of law there can be no consent, if the prosecution establishes beyond reasonable doubt that the accused was aware that that factual situation existed, or might have existed, it has established the fourth element of rape as defined by the Act, even if the accused has a genuine belief in consent based on some other ground.

Now, that really is the battleground that exists here. If your Honours have a look at the respondent’s outline of propositions and look at paragraph 6:

Awareness of a possibility that another might be asleep is not inconsistent with a positive belief in consent. Nor does awareness of the possibility of sleep necessarily entail awareness of the possibility of lack of consent -

That is the battleground here. What we say is that the law of rape has now come out of the quagmire of the common law and has been projected into a statutory universe, and it is the statute which determines what the law of rape now means, not the common law. This is not a case where one has to go back to the common law to determine what is meant. Our fundamental proposition is that the error that has arisen in this case, so far as ground 2A is concerned, occurs in paragraph 10 of the judgment of the Court of Appeal.

BELL J: Can I, just before we go to the judgment, just take up one matter arising out of your document?

MR GYORFFY: Yes, your Honour.

BELL J: That is the apparent acceptance that one might hold a genuine belief in consent in circumstances in which one is aware that the complainant might not be consenting. But does this not just raise a simple question about what belief means? How can one entertain a belief that a person is consenting in the sense of holding or having as a state of mind a belief in the existence of the fact of consent as true in circumstances where your state of mind is also an awareness that they might be asleep? Something might be thought to fall short of genuine belief.

MR GYORFFY: Yes, your Honour, that is the problem that we grapple with and what we submit is that the problem comes from the amorphous nature of the concept of consent in the common law where, for example, a complainant might say no, but the accused says, “Yes, but she was wearing a low-cut top and a dress and she had been out dancing with me and got drunk” and that can be used then as his basis of a genuine belief that she was consenting. What we say, your Honour, is that might be fine at common law, but it is not going to work under the statute. It is not going to work under the statute because section 36(d) defines explicitly that there cannot be consent when a person is asleep.

KIEFEL J: Section 36(d) deals with the consent so far as it relates to the complainant, but you are still left with awareness and that is resolved as a question of evidence and here the fact that no issue is raised. I mean, the evidence from the complainant simply was that she was asleep. That being the only evidence, one would infer that she gave all the indicia of being asleep. The accused raised no issue about his belief otherwise. Why does it get any more complicated than that?

MR GYORFFY: It gets more complicated than that for this reason. Beginning with the premise that your Honour put, yes, it is correct to say that section 36(d) goes to the third element, that is, the actus reus, whether there has been consent or there has not been consent. But what we submit is that there cannot be a different meaning to consent in section 38 when it comes to what the accused has to know to what the Act defines as consent because if that is the case you defeat the purpose of the Act.

I mean, the purpose of the Act is to empower people to make positive decisions about whether they engage in sexual conduct or not. That is probably the lynchpin of our argument that if you define “consent” in section 36, that same definition has to inform the exercise of section 38 so far as consent is concerned. That then gets back to what your Honour Justice Bell put.

We say 36(d) says if you are asleep there is no consent as a matter of law. What we submit is that if the accused is aware of that factual situation, no matter what other belief he might have - for example, the example I gave your Honour before which would fit in with the scenario here - that will not get him out of the conviction because the element is awareness of consent. The consent cannot exist if the person is asleep and the awareness of that comes from the fact of being factually aware that that is the case.

BELL J: If one simply looks at the provisions of section 38(2) one sees that a person commits rape in Victoria if that person:

intentionally sexually penetrates another person without that person’s consent –

with a particular state of mind, that being awareness that –

the person is not consenting or might not be –

Without going any further than that, if a person has an awareness that another might not be consenting to sexual penetration, where in that universe is it possible that they hold a genuine belief in consent? It is a question arising from your document which seems to introduce complexity that need not be there.

MR GYORFFY: I tried to explain but obviously I have not done it properly. Our argument is, effectively, that if the jury is satisfied beyond reasonable doubt that the accused knows that this woman is asleep or might be asleep then the elements of 38 are met and no other belief that he might hold can break that cycle of the Crown having established the element of intent.

When I use the words “genuinely held” I am using it more in a colloquial sense, in the sense that he might actually believe that and the jury might think he actually believes that, but what we submit is that that belief would not be relevant because once you incorporate section 36 into that definition and you put the words “while being aware that the person is asleep” or “being aware that she might be asleep”, the Crown proves its case, and in this particular case the Crown did that, we submit.

So at common law - and we have referred to some matters there in the first dot point under 2(a) “What does consent mean at common law” - I am not going to take the Court through it, I just refer to that for the purpose of showing the confusion that existed at common law in relation to what consent meant. What we submit to this Court is contrary to what was expressed in Worsnop by the Court of Appeal. There has been a significant change brought about by this statute. That significant change is the introduction of section 36 which must inform what “consent” and “consenting” means in section 38.

HAYNE J: If that is right, how does that fit with 37AA, in particular, how does it fit with what seems to be the premise of 37AA that if an assertion is made of belief the question for the jury is then identified in the chapeau to 37AA:

in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider –

Leave aside (a), that is obvious, but (b) –

whether that belief was reasonable –

and in particular, having regard to (i), I omit words:

whether the accused was aware that [the section 36] circumstance existed in relation to the complainant –

What is the embroidery that is thus applied to the otherwise simple garment that you want us to adopt?

MR GYORFFY: What I submit in relation to that paragraph your Honour has just taken us to, that is an indication of where the law has departed; there is no requirement at common law to look at consent in those terms.

HAYNE J: I am not concerned with what the common law said or did not say, I am at the moment focused only on what the statute says.

MR GYORFFY: Yes, all right.

HAYNE J: Now, what is it saying in 37AA(b)(i)?

MR GYORFFY: When we get to the second line where it says “the accused believed that the complainant was consenting”, what we submit is that that is a recognition of the way evidence is given at trial. The way trials unfold, they unfold on the basis that the accused says, “Well, I believed she was consenting for the following reasons”. So all that expression is doing is capturing what is the reality of a trial, that the accused would raise the question, “I believed she was consenting”. But then as one goes down, at the second part of that first block it begins:

the prosecution has proved beyond reasonable doubt that the accused was –

and then we get straight back to the formulation in section 38, that is, that he was aware that the complainant was not consenting or might not have been consenting.

HAYNE J: Now, you say that concludes the inquiry, but the statute says you have to go on.

MR GYORFFY: Well, if I come to (b) - - -

HAYNE J: You say it is enough if he was aware that the complainant was asleep, end of game.

MR GYORFFY: There is one other word that I need to look at, your Honour, before I answer that, and that is in (b) where it says “whether that belief was reasonable”. “Reasonable” is not a description of the element of the offence, and as your Honours are aware, coming from Morgan’s Case that is the yardstick for measuring whether the belief existed or did not exist. So when the statute says there “whether the belief was reasonable in all the relevant circumstances” it is really saying, incorporating Morgan, whether the belief existed in all the circumstances, which picks up what your Honour Justice Bell has said, because that is what it is about – “reasonable” there does not mean a quality of the belief that is required for the law. What it means there is that it is the yardstick of the existence of the belief.

CRENNAN J: Is it the opposite of “unreasonable” in that context?

MR GYORFFY: No, your Honour, because - - -

CRENNAN J: I am bearing in mind what Justice Ashley said in Worsnop’s Case at paragraph 34 where he made a number of observations about 37AA.

MR GYORFFY: Yes, and I want to come to that, your Honour. I will do that very shortly. It is not the opposite of “unreasonable” because if it was the opposite of “unreasonable” - - -

FRENCH CJ: Does it not simply mean there are some grounds for the belief; reasonable grounds for the belief, rather than something that somebody has conjured up out of their own head, as it were?

MR GYORFFY: No, your Honour, because it goes to existence.

FRENCH CJ: You can have beliefs which are unreasonable and beliefs which are reasonable. This talks about beliefs which are reasonable. Is it not a category of belief?

MR GYORFFY: No, it talks about whether the belief that has been put forward by the accused is reasonable in all the circumstances of the case and that means, well, given the other facts did it exist? That is what it means. Did he hold that belief? That is where we come to section 36 and section 36 is incorporated, 36(b), because what we would submit is once you incorporate in there the fact that, one, the complainant was asleep, and two is important too, that is not in the common law either, whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so the nature of those steps.

So all of this is aimed at determining – for the jury to determine for itself whether there existed a belief that has been asserted by the accused. Now, your Honour Justice French is right in saying the yardstick is reasonableness, but just because it is unreasonable, the jury does not have to reject it. It measures it up to determine whether it is reasonable for the purposes of believing it. That is one of the real difficulties with Morgan’s Case. In a sense it is a fiction. It is saying no, this is not a reasonable mistake of fact type defence.

We are using “reasonable” simply to say, well, if this explanation is preposterous, we would say it is not reasonable therefore could not be accepted, but it is not adding the element of a reasonable man, for example, would a reasonable person or man come to this conclusion in these circumstances. That is precisely not what it is doing and that is why it is a difficult concept and that is why we submit that the word “reasonable” there means existed, that is, whether the belief existed in all the relevant circumstances having regard to. I suppose that comes back to what your Honour Justice Bell put initially, that if you look at the statute and you come within one of those categories in section 36 then there cannot be another reasonable belief because this analysis here takes that out.

KIEFEL J: Could I just ask you to approach it this way. The statute by section 37AA and section 37(2) might be taken to require any issue about belief and awareness to be raised.

MR GYORFFY: Yes.

KIEFEL J: In this case there was no issue raised. No direction could be given about awareness.

MR GYORFFY: That is right.

KIEFEL J: The only evidence given by the complainant was that she was asleep, in fact, perhaps in a heavy sleep because she had been drinking, but she was asleep. The only inferences that can be drawn from her evidence is that she conveyed the indicia of a person who is asleep. In that circumstance there was no prospect from that evidence that any issue about his awareness that she may or may not have been asleep could possibly arise, nothing to found a belief. In paragraph 25 of the Court of Appeal, Justice Buchanan, in the third last line, has constructed a possibility of what the jury might have thought on the basis of a false premise, namely, “that the applicant thought that the complainant might have fallen asleep”. There was no such evidence.

MR GYORFFY: That is right, your Honour. Your Honour is probably wondering, well, why are we bothering with ground 2A.

KIEFEL J: Yes, I was thinking that.

MR GYORFFY: My learned friend, Ms Ruddle, will deal with ground 2B which is the one that your Honour is specifically dealing with. The reason why we are bothering about ground 2A is really put under our heading - - -

KIEFEL J: It is necessary to state here, and it will be necessary for this Court to say, how the statute is meant to work and the importance of the clarification of consent and also the fact that the statute requires an issue to be raised in relation to awareness.

MR GYORFFY: Absolutely, your Honour.

KIEFEL J: Understand that because there appears to be other decisions based upon a view that the Court of Appeal has historically taken. But in the end result, if we accept the statutory framework in the way it has been put to you by Justice Bell and myself and Justice Hayne, accepting that it works in the way it postulated, the matter here turns on a very small evidentiary point, namely, that there was no evidence, that that founded any awareness or an assertion.

MR GYORFFY: I agree with all of that, your Honour. When Justice Hayne looked at the extension of time – or sorry, the listing of Wilson for tomorrow that came up and it is possible that your Honours might dispose of this appeal solely on ground 2B on the basis that the evidence is not there. But the reason why we are arguing that you should, in fact, also take into account 2A is effectively what we have put under heading 5 in the dot points.

The point is this, even if there is no obligation of the trial judge to put the charge on consent within the terms of 37AA, the plea of not guilty at the start of the trial puts in issue all of the elements, even though they might not be live in terms of the battle that is going on in the trial. A judge then, even though that issue is not raised and even though the judge is not going to have to go into 37AA and explain it to the jury as consent, still has to tell the jury something about ground 4.

BELL J: But the judge has to do that conformably with 37(2) which requires that the judge not give the directions in 37AA and AAA in the event that it is not relevant to the facts in issue in the proceeding.

MR GYORFFY: That is right, your Honour, and his Honour here did not do that. He was right to not do that but then he still had to say to the jury the four elements of rape are 1, 2, 3 and 4. In fact, he has done it at page 165 in the appeal book in relation to this charge and what we say is that the only thing a judge can say to the jury in these circumstances where the issue is not raised is what his Honour said in this case and which appears in paragraph 16.

What he has said, quite clearly, is look if you are satisfied beyond reasonable doubt that the accused knew, and it is important, that the accused knew that she was asleep or might be asleep, then the fourth ground – you can find the fourth ground proven. But that is the only thing, we submit, that a trial judge could possibly say given the caveats that your Honour Justice Bell just put on the basis that they cannot go into consent and on the basis that what your Honour Justice Kiefel put that there is no evidence to go into anyway. But even under Pemble there is still a responsibility to tell the jury what the four elements are of rape and to give them sufficient to go on with it. This is a case in which - - -

HAYNE J: That is a view of Pemble that may or may not accurately reflect what is decided in Pemble when understood against the background provided by Alford v Magee. The task of a trial judge is to identify the real issues in the trial and tell the jury so much of the law as they need to know to decide those issues.

MR GYORFFY: That is what section 37A says as well, your Honour.

HAYNE J: Pemble is about whether, on the facts, there is a real issue.

BELL J: Section 37(2) goes further than that. The judge is precluded from giving certain lengthy directions entirely unrelated to the issue in the circumstances stated. I raise the matter because it would seem to me that your fundamental proposition embodied in the document handed up might introduce confusion in a case such as this where no issue of belief in consent is raised.

MR GYORFFY: Yes, it comes from the use of the words “genuine belief” and I tried to - - -

BELL J: Absent any evidence that that is an issue in the trial.

MR GYORFFY: Yes, absent the issue, all the judge can really say is what his Honour said here, which appears in appeal book 165 in his charge. I would hope your Honour Justice Hayne might actually make those comments that you made in the judgment because - - -

HAYNE J: Well, if you read the CLRs you might that I have made them more than once.

MR GYORFFY: Could I take your Honour to page 245 of the appeal book and what Justice Bongiorno said and that is:

Although no assertion was made that the applicant believed that the complainant consented to sexual penetration and there was no direct evidence of such belief before the Court so as to enliven the provisions of s 37AA of the Crimes Act 1958, it was nevertheless incumbent upon the Crown to prove the mental element of the crime of rape as defined in s 38(2)(a) of the Act. The Crown had to prove that the accused was aware at the time of penetration that the complainant was not consenting or might not be consenting to that act.

So this judgment has the very opposite point in it, your Honour, and that is our complaint. Our complaint is that this trial judge complied with what Justice Bongiorno wanted anyway and he has complied with what was said in paragraph 22 by Justice Buchanan that he did not do.

KIEFEL J: But, your answer to Justice Bongiorno’s statement is section 37(2).

MR GYORFFY: Yes, but he did not listen on the day, your Honour.

KIEFEL J: Well, but for the purposes of this appeal, that is all you have to say?

MR GYORFFY: Yes. That 37A is the answer to it. But the reason why I am fighting on (2)(a) is the overruling by the Court in paragraph 10 of what the judge said in this case. Sorry, it is actually line 10 on page 242 of the appeal book. I have got a bit confused:

the prosecution might fail to prove the mental element of the offence of rape even though a belief and consent on the part of the accused was unreasonable because the accused was aware that the complainant might be asleep.

It was the argument that was put by counsel, and then, on the previous page, line 17 – sorry, in paragraph 16, his Honour sets out what his Honour said in this case, which we say is the only thing a trial judge can say in this circumstance. Then his Honour goes and says that that is wrong at law. That is our complaint, that if your Honours do not address that issue that what the trial judge said here was appropriate to be said in circumstances where there is no factual issue raised, and unless you go on to the point that his Honour Justice Hayne said and say well, in a case such as this, where it is not raised on the facts, the judge does not have to say anything about that element, that overruling by the Court of that paragraph 16 has to be dealt with because we say it is the only thing a trial judge can do.

I do not know that there is much more that I can say, really. The point that we make is that section 36 is a big change and you can see the big change is incorporated through the application of 37AA when the issue of consent arises. It incorporates section 36. It also incorporates the requirement that the jury look at what was done to try and ascertain whether there was consent or not. Now, we are either right or wrong on that issue, but I cannot dress it up any further and unless there is any specific question your Honours would like to ask, I will now ask my learned friend, Ms Ruddle, to address you on ground 2B.

FRENCH CJ: Yes, thank you.

MS RUDDLE: May it please the Court. The Court has canvassed many of the points I intended to make and I will try and keep it as short as possible as to not repeat anything that my learned leader has already taken the Court to. In regards to ground 2B, the submission of the appellant is that the decision of the Court of Appeal is essentially divorced from the reality of the way this trial was run. Whilst it is accepted that a judge has an obligation to direct on each and every element that is an element of the offence, the judge in this case did that. He took the jury through the fact that they had to be satisfied beyond reasonable doubt of each and every element, and he did that at pages 143, 162 and 167 of the appeal book. He has also explained each element of the offence. What the Court of Appeal’s decision does is it fails to recognise that belief in consent is not an element of the offence but it is, effectively, a defence, something that can negative the fourth element, mens rea.

FRENCH CJ: Well, 37(2) apart, you say that it is a defence which requires the discharge of an evidential burden before it can be put to the jury?

MS RUDDLE: No, sir, it is not so much an evidential burden, but it has to be raised as an issue. The defence does not carry the burden. The burden remains with the Crown, but there must be something that the Crown - - -

FRENCH CJ: By evidential burden I meant introducing the issue and being able to point to some evidence which might be capable of supporting the existence of the belief.

MS RUDDLE: Yes, sorry, I misunderstood the question.

FRENCH CJ: Legal burden still remaining on the Crown if the evidential burden is satisfied to negative belief beyond reasonable doubt on the condition that the evidential burden is satisfied.

MS RUDDLE: However, it is not appropriate for the judge to give the jury directions on law that are not applicable to the evidence led at the trial. It is really the point that his Honour Justice Hayne already made in regards to Alford v Magee. In this case, there was not a scrap of evidence of belief in consent. The trial was run on the issue of penetration alone. That was put to the jury both in the defence response, in the closing addresses and really throughout the course of the evidence. There was no record of interview – sorry, there was a no comment record of interview by the respondent in this case and he stood mute at the trial. The evidence in-chief of the complainant was that she told him to desist from touching her three times and that she immediately went to sleep.

There is nothing to support the conclusions of his Honour at paragraph 25 of the judgment of the Court of Appeal that there was some possible belief in consent. In addition, the cross-examination of the complainant revolved around the basis that she was mistaken about there being any penetration, and that was put to her at pages 37 and 43, that

“Tomas never had his penis out”, that he, “never penetrated you.” It was never put that there was any consensual sexual activity, anything that could raise that concern or raise that flag before the jury. As such, there is nothing to enliven this issue before the jury.

Each case obviously must turn on its own facts, but over the years courts have used different indicia, for instance, whether there is a viable outcome on the basis of the evidence. We say that that indicia has not been met. In Victoria there has been the decision of Tran where it was phrased as a real issue as opposed to a remote or artificial possibility and we would say again there is no real issue arising as to belief in consent. One cannot, at the Court of Appeal level, go through the evidence and cherry pick small sentences here and there to try and create a defence that was not available at the trial that is - - -

FRENCH CJ: The line of cross-examination, if I am right, was entirely on the premise that the complainant put in her evidence that she was asleep until the moment that she alleged or experienced penetration.

MS RUDDLE: Yes.

FRENCH CJ: It was never put in cross-examination that she was aware of any rearrangement of her clothes.

MS RUDDLE: In fact, the only thing that was put to her was that she may have rearranged her own clothes and she resisted that proposition. In fact, the entire line of cross-examination was premised on the fact that she was heavily intoxicated, that she was dizzy and staggering and that she was thoroughly relieved to be lying down. It was all premised on her being in quite a heavy sleep rather than there being any activity or behaviour on her part that may have enlivened a mistaken belief in consent in the respondent. I believe that we have really covered everything on this particular issue, unless your Honours have any questions.

FRENCH CJ: Yes, thank you, Ms Ruddle.

MS RUDDLE: May it please the Court.

FRENCH CJ: Yes, Mr Boyce.

MR BOYCE: Thank you, your Honours. Your Honours, the first point is this. The appellant’s contention that section 38(2)(a) of the Crimes Act did anything other than codify the common law conception of the offence of rape, so far as the mental element of that offence is concerned, ought, it is submitted, be rejected. That such codification occurred has never been doubted in the court below, the Court of Appeal, or its predecessor the Court of Criminal Appeal since 1991 or thereabouts. But perhaps the most recent iteration of the view that section 38(2)(a) did codify the common law conception of rape, insofar as the mental element of the offence is concerned, is contained in the decision of Worsnop which is included in our list of authorities under the first number and is cited, your Honours, at (2010) 28 VR 187.

Could I take your Honours, to short circuit it perhaps a little, to page 194 of the report where his Honour Justice Ashley at paragraph 28, after having, through pages 192 and 193, examined judgments of the Court of Criminal Appeal in Victoria – and perhaps most importantly your Honours will see at page 193, footnote 4 – look at those judgments in the context of what this Court had to say about what the common law – I say this advisedly – but of Australia is in Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262. Of course that was a case concerning New South Wales legislation, and I do not need to take your Honours to the decision, but it appeared to us that this Court in Banditt, in essence, approved the common law as being that set out in the old case of Daly in Victoria, which of course was referred to in Morgan.

The point is this. Our submission is that Justice Ashley, indeed the Court of Appeal, was correct when he ultimately concluded after examination of the authorities at paragraph 28 that:

The definition of rape introduced by s 38(2)(a) of the [Crimes Act by the] 1991 Act in substance codified the common law conception of the offence so far as a mental element was concerned.

HAYNE J: I am not sure how consistent that is with the LRCV (1991c) Report No 43 Rape: Reform of Law and Procedure, which is the antecedent to the legislation.

MR BOYCE: Yes. It might be that the view of Law Reform Commission changed somewhat, your Honour, because it – I think I am correct in saying that in 2004 the Victorian Law Reform Commission Report Sexual Offences Final Report at 2004 of the Commission at paragraph 8.2 stated categorically:

Victorian law reflects the House of Lords decision in the DPP v Morgan which established that an honest belief in consent, however unreasonable, prevents an accused from having the necessary mens rea for the crime. Lord Hailsham recognised that the absence of reasonable grounds for the belief could be relevant in deciding whether the accused held an honest belief.

The views of the Commission might have changed, your Honour, but that was certainly the view in 2004. But perhaps most importantly, your Honour, is the material that your Honours may seek to have regard to, that we have handed up behind our outline of propositions, which is the second reading speech of the late Mr Kennan to the Legislative Assembly, delivered on Tuesday, 26 November 1991. Your Honours will see at page 1 of that second reading speech a reference to the Crimes (Rape) Bill. If I can take your Honours down to the third paragraph of that, of course, as your Honour Justice Hayne notes:

The commission has completed two reports, the second of which, Rape: Reform of Law and Procedure, was tabled earlier this session.

But to take your Honours further down to the last paragraph on that page where the Attorney said as follows:

The major elements of the common-law offences are retained, but they are expressly stated and defined in order to remove uncertainty.

In particular, then at the following page, if I could take your Honours to the third complete paragraph, and it is important. The Attorney said:

The Bill retains the requirement that, to be guilty of rape or indecent assault, a person must have known that the other person was not consenting to a sexual act or was aware that the other person might not be consenting. A person who makes an honest mistake, even unreasonably, does not commit either offence.

This subjective test of criminal culpability reflects a fundamental principle in serious criminal offences that a person is only guilty if he or she actually intended to cause the prescribed harm or knew that harm was likely to result from what he or she was doing. As the commission points out in its detailed consideration of the issue, the principle has been strongly upheld by the High Court, by the drafters of the modern criminal codes, and by the major commentators.

I do not need to take your Honours further than that, but the Attorney - - -

KIEFEL J: Can I take you to the final report of the Victorian Law Reform Commission to which we have been referred, the 2004 report, the recommendations at pages 422 and 423?

MR BOYCE: I am sorry, your Honour, which State was that?

KIEFEL J: This is the final report, what became sections 73AA, AAA and - - -

MR BOYCE: Section 37AA.

KIEFEL J: Yes.

MR BOYCE: Yes, your Honour.

KIEFEL J: At 422 and 423 at the third dot point the recommendation was that there would be a combination of subjective and objective elements, and the fourth dot point is:

The accused must produce some evidence that he had an honest belief –

Then it goes on in the next dot point:

Where an accused alleges that he believed –

then there must be certain things that follow.

MR BOYCE: Yes.

KIEFEL J: In relation to burdens of proof at paragraph 8.38 on the opposite page:

Under our recommendations the defence will have the burden of producing some evidence of the existence of an honest but mistaken belief in consent –

Now, that was the way in which the provisions were intended to operate.

MR BOYCE: Yes, that is correct. I might say, your Honour, we had the benefit of – I think her Honour was one of the commissioners at the time – her Honour Justice Neave in a decision – we have not included it in our authorities but if your Honours will just accept this from me – the case is Sibanda v The Queen [2011] VSCA 285 – this was referred to in the special leave application - and at paragraph 7 her Honour said as follows:

I also wish to comment that the decision in Worsnop v The Queen and the cases following it, demonstrate the need for legislative change to clarify and simplify the required mens rea for rape –

I do not know if this answers your Honour’s question –

The current provisions have failed to implement the recommendations made by the Victorian Law Reform Commission, which were intended to ensure that a person who sexually penetrates another person, whilst being aware that the latter is not or might not be consenting to penetration, is guilty of rape.

KIEFEL J: Well, I understand the point that you are making, but the question really is whether or not when one reads the provision of section 38 with the other provisions now brought in whether or not the recommendations are reflected – I am sorry, that is approaching it incorrectly – appreciating what was intended to be achieved, the question is whether it has been achieved.

MR BOYCE: It has been achieved, yes.

KIEFEL J: That is a question of construction. Now, as indicated to the Crown, you have the provisions of now section 37AA which says “if evidence is led” about belief, then the directions must follow. You have section 37(2) which say no directions must be given. Now, the question is whether they are strong statutory provisions, indications that there is a requirement that some evidence must be led by an accused for the issue that is referred to in section 38(2) to be in play.

MR BOYCE: Yes. Your Honour has taken me a little out of the order of my argument, but can I deal with what has fallen from your Honour at this point? The respondent has to confront section 37AA and 37(2). There was no direction given in accordance with that in this trial, and neither was one asked for. In my respectful submission, however, it is not really material to the point that is in issue in the case and the point that divides my learned friend and I.

In my respectful submission, what section 37AA tells us, even if it had no application in the present case in terms of directions being given, it tells us that the legislature countenances an accused person being aware that a section 36 deemed state of affairs existed in respect of the complainant, but again in such a case, the Crown failing to prove mens rea. With respect, if this is what was intended by his Honour Justice Hayne in his Honour’s observations when my learned friend was on his feet, I am not certain, but if there was any doubt about the legislature’s intention to, as we would put it, conflate sections 36 and 38 in terms of the definition of “consent” insofar as our learned friend has argued - - -

KIEFEL J: The alternative position, though, to your colleague’s argument is that section 36 addresses the act of the question of the complainant’s consent - - -

MR BOYCE: That is right.

KIEFEL J: That is a matter upon which the jury may make a finding, and section 37AA is addressed to the question whether or not, regardless of that finding of fact made, nevertheless an accused may have had a mistaken belief.

MR BOYCE: Precisely.

KIEFEL J: But in a way that is beside the point. If one focuses merely on the question of awareness, one only need focus upon sections 37AA and 37(2) read with section 38(2) to see the essential point which arises here, which is whether or not there was an onus upon the accused to raise the question of his belief.

MR BOYCE: I am not sure if I have answered your Honour’s question correctly. What we submit is this. Assume for the purposes of argument there is a case where 37AA is engaged. What the legislature has said loud and clear in 37AA that in determining:

whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting –

in other words, the terms of section 38(2)(a) –

or might not have been consenting, the jury must consider –

any evidence of that belief and whether the belief was reasonable, in all the relevant circumstances, having regard to, in the case of a proceeding in which the jury finds that the circumstance specified in section 36 exists in relation to the complainant.....whether the accused was aware that that circumstance existed in relation to the complainant. So in the circumstance where it is engaged, it expressly contemplates the prosecution failing to prove mens rea even in a circumstance where the accused is aware of the section 36 deemed circumstances.

FRENCH CJ: Just taking a very simplistic approach to it, awareness under 38(2)(a) is an element of the offence. Lack of awareness might be demonstrated if one reversed the onus - or fall over, if you like, if there is a belief that the person was not consenting – was consenting because that would be inconsistent with an awareness that she was not consenting. The question that then follows - now is that a matter raised as a matter of defence which requires the discharge of an evidential burden or is it a matter which is covered under 37(2) as a fact in issue? Absent it being a fact in issue the judge must not give a jury a relevant direction.

MR BOYCE: Sorry, to answer the Chief Justice’s question, we answer it this way. Our submission is that in order to avail yourself of the direction, of course, the conditions specified in section 37(2) need to be satisfied, however one phrases that. But in the final analysis, if there is evidence of a belief in consent – sorry I will take it stage by stage. If it is engaged, then mens rea will or could fail to be proved even where - - -

FRENCH CJ: Let us use the statutory term here, it is awareness, is it not?

MR BOYCE: Awareness of lack of consent or might not be consenting. It failed to be proved even in circumstances where the person is aware of a section 36 deemed circumstance legislation - and it would be curious, indeed, if the words “consent” in 38(2)(a) would have a different meaning in an instance where 37AA was engaged as opposed to an instance where it was not engaged.

BELL J: Can I ask how that arises in the context of the issues at this trial. No question arose at the trial of the necessity to give a 37AA or AAA direction, nor did the court - - -

MR BOYCE: I think – sorry, your Honour, AAA was given, I think, yes, but AA was not.

BELL J: The AA – nor did the Court of Appeal identify that as an error.

MR BOYCE: No, that is right.

BELL J: Now, in circumstances in which there was no evidence to which the accused pointed as to the existence of a belief, that is, a state of mind on his part respecting - - -

MR BOYCE: No express evidence from his mouth, that is correct, yes.

BELL J: Indeed. In those circumstances, can I just take you to application or appeal book 243, paragraph 23, where Justice Buchanan says that the trial judge erred:

in telling the jury that the requirement to prove mens rea was met if the jury concluded that the applicant was aware that the complainant might be asleep.

Again, thinking of this charge to the jury in an Alford v Magee sense, in a circumstance where no assertion has been made that the accused had a belief in consent and where the ingredient that it was necessary to prove touching on his mental state was an awareness either of absence of consent or the possibility of absence of consent, what is it that was wrong in that practical direction resolving the question?

MR BOYCE: This, as follows, if I may, your Honour. This is directly what was put below to the court. The conflation point, that is, the taking of section 36 deemed consent into section 38 – and it is speaking of “might be asleep” as distinct from “might not be consenting”, the diversion from the words “might not be consenting” to “might be asleep” – told the jury that they could find the accused guilty on the basis of a finding, in essence, what we would classify as an intermediate fact from which it might have been open to the jury to, if I may, your Honour, infer the ultimate fact or the ultimate matter which was proof of mens rea or awareness of “might not be consenting”. Sorry, does your Honour have something you wish to tell me?

BELL J: I am trying to come to terms with whether or not it is being suggested that a jury might conclude that a person who was asleep was nonetheless consenting?

MR BOYCE: No, no.

BELL J: Mr Boyce, this is getting somewhat Jesuitical. Let us not go to the statutory considerations of deemed non-consent for the purpose of proof of that fact. Looking at whether or not the Crown has discharged a burden of establishing that the accused had an awareness that a person whom he was sexually penetrating might not be consenting, can you explain to me how if his state of awareness was that the person was asleep, or might be asleep - - -

MR BOYCE: Yes, how could it possibly be that the element would not be - - -

BELL J: Yes, in terms of the issues that were live in this trial, nothing to do with getting into the interstices of the legislation.

MR BOYCE: The simple answer is this. If it was open to this jury on all of the evidence in the case to find it reasonably possible that he thought or believed, notwithstanding no evidence came out of his mouth to that effect, but circumstantially that the complainant was awake, then the issue for the jury would be, if I may, your Honour, having come to the view that it was reasonably possible that this man thought the complainant was awake but still being satisfied beyond reasonable doubt that he thought she might be asleep, am I prepared to draw the final inference that I should have been asked to draw – that is, am I prepared to find that he was aware that she might not be consenting beyond reasonable doubt. There is an important distinction between a finding beyond reasonable doubt of an intermediate fact from which the inference might be drawn on all of the evidence and - your Honour is shaking your head.

BELL J: I think St Thomas Aquinas might have had difficulty following the direction that you are proposing.

MR BOYCE: No, if the judge had said to the jury what we say the judge should have said to the jury, and that is to say to the jury in simple terms, “The mens rea of this offence is awareness of lack of consent or might not be consenting” and not diverted the jury into the realm of finding the element proved by dint of a finding beyond reasonable doubt of any intermediate fact along the way to that, then we would have no complaint.

BELL J: Can I take you to appeal book 162 and 163 where his Honour gave the directions, including telling the jury of the necessity to establish that the accused’s state of mind was an awareness that the complainant was not consenting or that she might not be, and he invited them to underline the words “aware”, “was not” and “might not”, and then it continued. It is not as though the portion of the direction extracted in the reasons of the Court of Appeal was all that his Honour said on the topic.

MR BOYCE: No, that is right. That is correct.

BELL J: What his Honour was doing at the point extracted in the reasons at 241 was relating the evidence in a practical way to the issues for the jury’s determination, was he not?

MR BOYCE: We cannot cavil with the fact that his Honour on occasions, and I think probably on three occasions, defined the mens rea of the offence of rape correctly. What he did do, however, was at appeal book 165, divert the jury from a correct analysis of the mens rea by telling them, as a matter of law, if you find that he was aware that she might be asleep then he is guilty of the offence. His Honour is not talking about facts from which inferences might ultimately be drawn. His Honour is saying to the jury, “As a matter of conclusion, it is determinative. You find this fact and he is guilty on mens rea.”

BELL J: If we go back to Alford v Magee, as I recollect what Sir Leo Cussen had to say in the case of a prosecution for larceny, if the issue was whether or not the goods were carried away then a summing-up is good if the judge says, “If you are satisfied beyond reasonable doubt he took the goods away he is guilty of larceny.”

MR BOYCE: Yes. Well, this is different, with respect, your Honour. It is wrong, it is submitted, and in error to tell a jury that satisfaction of an intermediate fact from which the ultimate conclusion would be drawn is the element of the offence.

What we are proposing or what we submit the jury should be told is of course, we would submit, a lot simpler than what the jury was actually told. Simply tell the jury what the statute says without diverting them away from it.

HAYNE J: Well, is not the issue which your argument presents an issue about whether you are giving proper weight to that element of the offence which is described as “while being aware that the person might not be consenting”?

MR BOYCE: That is right, yes.

HAYNE J: Demonstration beyond reasonable doubt that the accused penetrated the complainant while being aware that the person might not be consenting marches in step, does it not, with 37AA and marches in step in the sense that - - -

MR BOYCE: Yes, it does.

HAYNE J: - - - questions of belief that are relevant are reasonable belief, and that it is only if the accused reasonably believed that there was consent that the element is negated. Is that right so far?

MR BOYCE: No.

HAYNE J: No?

MR BOYCE: May I join issue with your Honour on that point?

HAYNE J: Yes, why?

MR BOYCE: I think my learned friend and I might be in agreement about this and I do not wish to use him as a plank for my argument because I do not think I need to. The orthodoxy or the way in which this section has been approached is as my learned friend said, however, namely that if the – in accordance with Morgan – if the belief is unreasonable that is evidence it can be used by the jury to determine whether it was held or otherwise. But we have not, unless I am - - -

FRENCH CJ: But reasonableness is not a condition of the existence of the belief. It simply goes to whether you can infer that the belief existed in the circumstances.

MR BOYCE: Existed, precisely.

BELL J: In a case in which it is raised, and that is the point.

MR BOYCE: Your Honour, the 37AA direction was not given. Perhaps it should have been given in this case.

BELL J: But the point that I am raising with you, Mr Boyce, is the structure of this statutory scheme is where that is a live issue the trial judge is required to give more elaborate directions than might have been the case at common law, where it is an issue. Where it is not an issue, directions of that character are prohibited. Then one comes back to directing on the elements of the offence created by 38(2).

MR BOYCE: Precisely, yes.

BELL J: And giving assistance with the issues that are live in the trial and how – can I come back to - a few moments ago you said it would have been simpler for the judge to give a direction. I do not know whether you have told us what that direction is.

MR BOYCE: Just in terms of the section - - -

BELL J: Justice Buchanan considered that the jury should have been directed that, in terms I infer from paragraph 23, if he was aware of the possibility that the complainant was asleep but that the jury nonetheless considered it was reasonably possible that he believed that she was awake, the Crown would not have established the fourth element, is that the line - - -

MR BOYCE: I do not think Justice Buchanan is putting it in terms of the need for directions. It was agreed below that 37A direction had not been sought and we took no point about that. What his Honour is doing is accepting the argument which is to say it is wrong to, in my respectful submission, to tell a jury to infer - - -

BELL J: Yes, I understand, I understand your point, Mr Boyce. So, the conclusion was that notwithstanding repeated and correct directions as to the elements of the offence in a case in which belief was not raised and where the trial judge was, therefore, precluded from giving elaborate directions going to that question, nonetheless the direction given might have cut off one possible avenue.

MR BOYCE: Precisely. We have submitted that what I might conveniently or perhaps colloquially call Mr Gyorrfy’s – we have called it the conflation point, that is to say that the use of the word “consent” in section 38(2)(a) must bear the same meaning as appears in section 36. We have made submissions about why that cannot be because it runs headlong, in our respectful submission, into what the Attorney said to the Legislative Assembly back in 1991.

It runs headlong perhaps more forcefully into what we can determine is the purpose of the legislation by reference to section 37AA even if section 37AA did not apply in this case. It tells us the legislation contemplates or countenances a person who has an awareness of section 36 deemed state of affairs or the possibility of saying still not having mens rea.

CRENNAN J: Does it come down to this. You spoke in terms of the direction given, having cut off a possible avenue, is the possible avenue an unreasonable belief of consent, having regard to section 36D? Is that what in essence you are saying?

MR BOYCE: It might be reasonable, it might be unreasonable. The point is not to tell the jury that the element is proved if you find an intermediate factor on which the ultimate inference should be drawn. I will come to the evidence in a moment because I might have thought, and I do not mean to speak obviously out of turn, but it seemed to us that a battle that we will have before your Honours is the factual matter, even assuming that our analysis of the law is correct because we see this case, with respect, as a proviso case. We have a unanimous decision below on error but we have a division of opinion on whether, as we put it, the proviso should be applied. On the one hand, Justice Buchanan and Justice Bongiorno were not prepared to apply the proviso and Justice Lasry was.

Now, did it make any difference? Was it open to say that the Crown had failed to show that there was no substantial miscarriage of justice in this case? Our submission is, if I may move to that, your Honours, I do not know if your Honours want me to move to that aspect of the case, that the learned majority was correct. You see, one has to face the case realistically, obviously enough, but the facts that were before the jury and that were put before their Honours below – I can be very brief about this – are as follows, and they are really summarised by the appellant in his summary of argument at paragraph 5 at appeal book 1 and in our summary of argument at paragraph 4.1. In essence, what occurred here was – if your Honours would just allow me to elaborate a small amount.

There were young people out drinking and dancing in two bars in the city. There were two couples. The respondent met the complainant for the first time that night. At around 5 am they decided to leave. At that time the respondent went to leave the group. He was going to go off and not follow the others back, but he decided to go but he was called back by the complainant, and one finds that evidence at appeal book 48, 10.

They then hopped in the car and drove out to Warrandyte. Perhaps your Honours may all know, but the Victorian Justices might know that Warrandyte is not a hop, skip and a jump. Even at 5 am it is probably about an hour to get there to a bungalow out the back of Mr Bothin’s home. Your Honours see the photos of what the room was like. You can see those at appeal book 132 to 133. It is apparent that these photos were taken some time later because persons would have had a great difficulty sleeping on that double bed with all of that stuff on it.

FRENCH CJ: I think the complaint was about a week after the event, was it not?

MR BOYCE: That might have been so, yes. The photos were taken two months after. It is in Bothin’s evidence, yes. But you see the double bed and you see the mattress on the floor next to it, a single bed mattress. Now, the evidence seems to suggest, and it not abundantly clear, but it is tolerably clear, your Honours, that when Bothin and his partner, Ms Ngomomati, got to the double bed, they at some point commenced having sexual intercourse with one another.

The complainant and the respondent were on the single bed mattress together and I think they had one blanket over them. It was a cold night and from then on the complainant’s evidence becomes important. I will not read from too much of it, but if I may, your Honours, just take your Honours to what the important evidence was, and this is really evidence that one finds summarised by his Honour Justice Buchanan at paragraph 25 of the reasons. But it is at appeal book 17, line 23, if I may, your Honours. His Honour asks at line 23:

Did anything happen before you went to sleep?

Then Mr Delany asks that question and the complainant answers:

Yes. When I lay down – and I was going to sleep and Tomas started touching me.

Just pause there and just tell the Court exactly what happened in relation to that?---He started touching me, touching my leg, and I told him to away.

So did he stop touching your leg when you said to him?---Yes, he stopped, but then he started again.

How long after the first time he touched your leg was it that he started to touch you again?---Not so long.

When he touched you again the second time had you gone to sleep or were you still awake from the first time or what?---I was falling asleep. I wasn’t completely asleep.

Where was he touching you on the second occasion?---I think on my leg.

What happened so far as that was concerned? Did you say anything to him as a result off the second time?---Yes, I was more insistent. I told him that if he didn’t stop touching me I’d go sleep in the car.

Did he respond to that?---Yes, he offered to go sleep somewhere else but I said, “Don’t worry about it, just don’t touch me and let me sleep.”

“Don’t touch me - - - “?---“Let me sleep.”

So did you then fall off to sleep properly?---Yes.

Then the complainant recounts to “What happened when you woke up?”

When I woke up from sleep he was still there and as I said he’d moved all my clothing around . . .

Okay. He’d pulled down my underwear, lifted my skirt up and my coat and he was thrusting into me from behind.

Just pause there if you would, please. How were you lying in the bed at that time?---I was lying on my left side.

Where was Tomas?

FRENCH CJ: I think we are all familiar with the factual background.

MR BOYCE: I am sorry, your Honour.

FRENCH CJ: The factual circumstance out of which you seek to erect at least the possibility of a belief negativing awareness is that it must have taken time to rearrange her clothing, the possibility is that she was awake or awakened by that process and that he would have believed absent protest that she was consenting.

MR BOYCE: Not only that. Yes, that is correct, your Honour, but not only that. Just two other matters, if I may. Appeal book 20, line 18. This is after the incident and has gone to the car:

Did he immediately leave the car as soon as you said that to him?---He seemed to be a little confused about why I wanted him to leave the car so I had to be very insistent and then eventually he left.

And further at line 5:

Would you tell the court in detail, please, as best you recall it what that conversation was?---As best I can recall I was really angry with him and he asked me, “What’s wrong?” I felt like I couldn’t really find words to say because of the state I was in. But I do recall saying to him, “Is that why I woke up with your dick halfway up my arse?”

BELL J: But I think it might be relevant to notice his response, which was, “I was just so freezing.” The matter I am taking up with you, Mr Boyce, is where do you point to evidence led or an assertion made that the accused believed that the complainant was consenting?

MR BOYCE: The evidence led – I concede there was no assertion made but, excuse me, your Honour - - -

BELL J: Evidence led that the accused believed - - -

MR BOYCE: If I may, your Honour.

BELL J: Yes.

MR BOYCE: We do not complain about the fact that a section 37AA direction was not given. We did not complain about that. If I may, I do not want to get sidetracked by that.

KIEFEL J: What is the evidence, Mr Boyce? Do not keep us in suspense any longer.

MR BOYCE: No. The evidence is this is evidence that is relevant to whether or not the jury were prepared to draw the ultimate - - -

KIEFEL J: Yes, what is it?

MR BOYCE: It is concluded in Justice Buchanan’s judgment at paragraph 25 and it has been summarised - - -

KIEFEL J: That is not the evidence. That is a construction on a lack of evidence. What is the actual evidence you can point to in paragraph 25 of Justice Buchanan’s judgment that you say was before the jury?

MR BOYCE: It is circumstantial evidence, that is, as the learned Chief Justice has said, this must have taken place while her back was to the respondent. It was, as Justice Buchanan found at paragraph 25, evidence that could give rise to a reasonable doubt or make it reasonably possible that the respondent thought the complainant was awake.

FRENCH CJ: Well, you are saying there that there are inferences of fact which could have been drawn from the circumstance that her clothing was rearranged before penetration.

MR BOYCE: Exactly. All we sought to do in the Court of Appeal is say to the Court of Appeal, do not close out that evidence, those facts - - -

FRENCH CJ: Do you mean “do not close out that evidence” or “do not close out those inferences”?

MR BOYCE: Those inferences, I should say. Yes, those inferences. Allow the jury to draw the ultimate inference on all the facts and the inferences that could be drawn from them. If it was the case that the jury was satisfied beyond reasonable doubt that the respondent was aware that the complainant might be asleep, fine. In circumstances where they thought it was reasonably possible that he positively believed she was awake, would they be prepared to draw the ultimate inference as to mens rea rather than being told that one of those intermediate facts or inferences from those facts was sufficient, and that is where the error bit, in submission - - -

BELL J: The Court of Appeal concluded that there were facts supportive of an inference of belief in consent. That seems to flow from paragraph 25.

MR BOYCE: Yes.

BELL J: That would seem to raise an issue about the structure of the legislation in light of the provisions of section 37.

MR BOYCE: Precisely, yes, yes.

BELL J: What is a judge to do? One has a case where the accused’s case is there was no penetration. There is no evidence in the sense of evidence led or an assertion made respecting a positive belief.

MR BOYCE: May I cavil gently with the phrase “evidence led”?

BELL J: By all means.

MR BOYCE: I agree, your Honour, there was no assertion made.

BELL J: We are looking at evidence led of belief. In a case in which there is – the case is conducted upon the basis of the issue being penetration or no. I am just wondering at what point you say one gets to a point of evidence being led or an assertion made of the existence of belief? The part rather supposes that there will be cases where the question of the accused’s belief is a live issue by reason that there is evidence that raises it. There will be other cases where it is not and the judge is precluded by law from giving the more elaborate directions respecting belief in the latter case. It is very difficult to see that this was not a case in which it was not an issue.

MR BOYCE: Your Honour, two things, if I may? In our respectful submission, this man could not concede mens rea. He was drawing issue at some earlier point in time.

BELL J: Yes.

MR BOYCE: He could not concede it. It still had to be proven. It is an interesting question your Honour raises. I think on reflection, your Honour, our submission would be that it is of interest but it does not need to be answered to decide this case because below before the Court of Appeal on behalf of the then applicant, 37AA became relevant to the case solely as evidence of the legislature’s purpose and whether it was correct for the learned trial judge to commit what we described as the conflation that had taken place.

Yes, certainly, Justice Buchanan in his reasons dwells upon section 37AA and it is, indeed – this is at appeal book 241 – crucial to his Honour’s reasoning process. If I might, his Honour’s reasons are traditionally spare and there is never a word out of place, but it was not being contended below that there was any error in the failure to not give a direction in terms of section 37AA. In our respectful submission, the reference by his Honour to it was simply to make the point that we had made to him, or I had made to him; that is to say, the direction is in error, but that is all. Now, we have gone to the evidence – I will not say any more about it except to say this, if I may?

HAYNE J: Go on.

MR BOYCE: Thank you, your Honour. Picking up from where I left off, namely that this was, as we would term it, a proviso case, the points - I think there were seven or thereabouts in number - obviously enough we rely upon the reasoning of Justice Buchanan in paragraph 25 and we submit that those reasons – or those facts or inferences should not be looked at in isolation but in the context of the case as a whole. But when coming to Justice Lasry’s dissent, we deal with all of the matters his Honour raised at paragraph 9 of our respondent’s outline of propositions and I think I can

rely upon them in terms of them being written. I do not want to take up too much more of the Court’s time. For the reasons that we set out at paragraph 9, we submit that his Honour was wrong to apply the proviso, in effect, and that - - -

FRENCH CJ: The only way in which the proviso, if Justice Lasry’s judgment is raised against you, as I read the appellant’s submissions, is that his analysis is - I am looking at paragraph 59 - consistent with the conclusion that there is no evidence or material to enliven the issue.

MR BOYCE: That is right. It is a factual question. Some might call it a visitation question, I do not know.

FRENCH CJ: But you are facing a proviso argument in this case?

MR BOYCE: No. We submit that that is really the point. The error was clear and we have given our reasons for why that is the case. We submit then that the only question was, was the Crown able to establish that there was no substantial miscarriage of justice? That is the basis upon which the court divided and we say, with respect, the findings of the majority were open to them. Will your Honours excuse me for one moment? I was just reminded by Mr Carter that if it was not a proviso case, we submit, how was it that Justice Lasry found error? All judges below unanimously found error. They split on whether it made any difference. Unless there is anything further, your Honours, those are our submissions?

FRENCH CJ: Yes, thank you, Mr Boyce. Yes, Mr Gyorffy.

MR GYORFFY: Just a couple of short matters. Mr Boyce referred to the fact of sleep as being an intermediary fact. It is not an intermediary fact. Section 36 defines “sleep” as being a state where there can be no consent. The problem comes in all of this because of the approach in Morgan’s Case. A judge cannot turn around and say, if you find that fact, then you must find that that element is made out, and the judge did not do that in this case. The judge said, if you find that, you may find the element made out.

It comes back to that word “reasonable”, and what our learned friend has tried to do is to twist the lack of reasonableness around and say that the belief can be unreasonable and treat that as if it were a virtue. It is not. The expectation in Morgan’s Case is, along the lines that Justice Hayne put, that if the jury finds that it is unreasonable in the circumstances that the accused holds that belief, then they will find that the belief is not held. That is the expectation.

It is not that there has to be reasonableness. The point is very, very clearly made in the case that our learned friends referred to of Banditt and if your Honours look in Banditt at paragraph 26 on page 273 of the report, there is:

“Recommendations for declaratory legislation”, the Heilbron Committee –

and paragraph 82 of that report said:

Secondly, it will be unfortunate if a tendency were to arise to say to the jury ‘that a belief, however unreasonable, that the woman consented, entitled the accused to acquittal’. Such a phrase might tend to give an undue or misleading emphasis to one aspect only and the law, therefore, should be statutorily restated in a fuller form that would obviate the use of those words.”

Now, the point is that the expectation for Morgan is, if the jury finds this is unreasonable then they should find that that belief was not held. That is the way the test is meant to work. That is the way section 37AA is meant to work.

KIEFEL J: Mr Gyorffy, I have just noticed that the passage from his Honour the trial judge’s directions to the jury set out in the Court of Appeal judgment at paragraph 16, if one goes to the transcript of his Honour’s directions at appeal book page 165 - - -

MR GYORFFY: Yes.

KIEFEL J: Taking the numbering from the top – the Court of Appeal’s recounting of the direction finishes at about line 11, agreeing to the sexual penetration.

MR GYORFFY: Yes.

KIEFEL J: The Court of Appeal did not go on to note what was then said by the trial judge, namely:

the defence really do not take issue with this fourth element; that is, they do not say: he thought, believed that she was consenting - - -

MR GYORFFY: Yes, and there was no exception taken to that either and that comes back to the point that why we are fighting so hard to have that charge retained and the stain on it from the judgment taken away because there is nothing else the judge could say in these circumstances, and there is nothing wrong with that charge. In fact, his Honour’s charge is a model charge, we would submit. The only other point I want to take up, your Honours, goes back to Worsnop. My learned friend talked about - - -

KIEFEL J: Is Worsnop the first decision where this view of the operation of the Act started?

MR GYORFFY: It followed decisions under the common law of Saragossa and other - - -

KIEFEL J: But under the Act?

MR GYORFFY: I am not sure, I think so, your Honour. I am not one hundred per cent sure on that, but it has become the genesis of the problems in Victoria where numerous cases have been sent back for retrial because of this point. In paragraph 34 his Honour Justice Ashley tries to explain why it is that the common law still applies and he then turns to the argument that was put to him about 37AA, the argument that has been going on in this Court today, and his Honour says:

In my opinion, s 37AA did not have the effect asserted by the explanatory memorandum.

That is what he is referring to in paragraph 32 and 33 –

Prior to its enactment, there was a long judicial understanding of the consequences of belief truly held for the purposes of the fourth element. It would have taken clear words to establish some new and less favourable position from the standpoint of an accused person.

Can I stop there and say that there was nothing done in the charge book or in this charge to change what was the approach taken in Morgan. But it is the approach in Morgan that is adopted, that is the requirement that the accused know that the person is not consenting at the time of penetration. That has been adopted, but the rest – what is consent, how that is described, how that is defined, has not because you could not find what consent means at common law, we would say. So his Honour goes on:

There was no presently pertinent change to s 38 itself.

Well, we have had discussion on that today, I will not go over it. Then this is the part that we really say is wrong:

Then, as to s 37AA, it appears to me not to have introduced any new concept.

So that is the basis on which his Honour says well, the common law applies. Now, I have taken your Honours through in argument earlier why it is that we submit that section 37AA has made significant changes. It incorporates the requirement to look at a section 36 position. It incorporates the requirement to take into account what steps have been taken to find out whether there is consent.

Final matter, my learned friends took your Honours to Mr Kennan’s second reading speech in the Crime (Rape) Bill. He did not take your Honours to under the heading “Outline of the Bill” at the bottom of page 1998:

The major elements of the common-law offences –

I am sorry, it did take you to this –

are retained, but they are expressly stated and defined in order to remove uncertainty.

Then the important one that occurs over the page:

Of particular importance is the element of consent. The Bill makes it clear that consent means free agreement, not submission induced by fear or force or other harm. It means real and informed agreement, not the exploitation of a person who does not understand the sexual nature –

and so it goes on. So the Attorney-General was clearly indicating that this Bill was making changes, it was making changes in a way that is important, we submit, to the way this legislation operates. We submit that the way that your Honours have put to us in questioning is the way it operates; there is nothing wrong with this legislation in terms of actually putting into words what the Law Reform Commission wanted – the passage your Honours have been taken to. The problem comes from the interpretation that is put on it by the Court of Appeal, and it comes from the issues that we have talked about today. Thank you.

HAYNE J: Mr Gyorffy, if the Court were with you and were to allow the appeal, what consequence would that have immediately for the accused? Is he now on bail or - - -

MR GYORFFY: He was released on bail, your Honour, but then breached his bail conditions and he is now back in custody. A trial has been listed for him for 7 May. There is going to be a mention hearing on, I think, 19 March – 15 March – 13th – the.....thinks the 15th, defence think it is the 13th – some time in the middle of March there is a hearing listed for deciding when the trial goes on, at which time his bail may be reconsidered, your Honour.

HAYNE J: But if a trial were to occur there would be at the moment a question about what directions a trial judge would give?

MR GYORFFY: Yes, and there is a number of other cases in the list for retrial where exactly that issue arises which have not been brought to this Court, and it depends on this point, the point we have argued today. Tomorrow’s case of Wilson is another example of that, only it has a broader factual context where the issue was actually raised.

FRENCH CJ: Yes, thank you, Mr Gyorffy. The Court will reserve its decision. The Court adjourns until 2.15 this afternoon.

AT 12.52 PM THE MATTER WAS ADJOURNED