Gillard v The Queen [2013] HCATrans 285 (8 November 2013)

Last Updated: 12 November 2013

[2013] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No C7 of 2013

B e t w e e n -

MICHAEL ALAN GILLARD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 1.06 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: May it please, I appear with MS J.L. ROY for the applicant. (instructed by Kamy Saeedi Lawyers)

MR H.K. DHANJI, SC: May it please the Court, I appear with MS M.A. JONES for the respondent. (instructed by the Director of Public Prosecutions (ACT))

HAYNE J: Mr Game.

MR GAME: If the Court pleases. The point that we wish to argue concerns the relevant mental element in a case of sexual intercourse without consent or indecent assault without consent under the relevant ACT legislation. If I could take your Honours to page 83 of the application book, you will see section 67 is set out there. That is in the same terms as section 92P and that is a convenient reference point.

The point that we wish to argue is reserved, in our submission, in paragraph 83(c) at page 86 of the application book and our position is that the point is grasped in Justice Penfold’s judgment in Schipanni. The problem is grasped at paragraph 83 and an answer is given at 84. Just while we are on that judgment, then over the following page the answer given in Jones - it was obiter in Jones v Chief of Navy but the answer given there on page 92, in that paragraph that begins “As to s 67 (3)” does not really make sense.

The proposition that it merely is there to, as it were, state the obvious, does not make sense. The argument that we put is this. If you look at section 67, section 67 is not limiting cases of absence of consent. In fact, it can extend to cases where there is actual consent as well as cases where there is ostensible but not actual consent. It uncomfortably brings together different classes of events but it actually uses the language of actual consent. So what we say section 67(3) - - -

HAYNE J: Sorry, could I just back up one stage a moment?

MR GAME: Yes, your Honour.

HAYNE J: Section 67(1) has as its premise that consent has been given, does it not?

MR GAME: That is right, that is right.

HAYNE J: Right.

MR GAME: That is right. So it goes beyond.

HAYNE J: But a jury gets to this point and considers this point only, what - if first I have to build in a burden of proof?

MR GAME: Can I just put it this way? Say the jury on ordinary notions of consent was satisfied that absence of consent had been established, you would not need to go to this section at all.

HAYNE J: That is right.

MR GAME: But this takes you to cases of actual consent.

HAYNE J: What I am stumbling at, at the moment, is there is a burden of proof issue buried in this.

MR GAME: Yes.

HAYNE J: The jury get to consider the engagement of this provision in what state of mind about consent?

MR GAME: Okay, could I be - take (e) - person is actually consenting but they are actually consenting only because they are drunk. Okay, so that is a case of actual consent and they are intoxicated.

HAYNE J: Yes.

MR GAME: So on the face of it, the physical element of absence of consent in the primary offence-making provision was not there until you got into this provision. So the Crown failed in its - say the Crown had alternative cases. I did not consent, but if I did consent, I consented - and there is no problem with that.

HAYNE J: In this case, the Crown case was?

MR GAME: Well, in this case the Crown case was - again it was put in that alternative way, but it was put – (h) was picked up, (h) was engaged in relation to, we say, counts 13 to 18 but even if it is just count 13 that was a substantial - - -

HAYNE J: There was no consent or if there was consent was negated.

MR GAME: That is right, yes, accepted.

HAYNE J: Yes.

MR GAME: Yes. So our point is this. We are not saying that you cannot get to a case of recklessness if you have an alternative case, but what we are saying is that subsection (3) provides the mental element for cases where an absence of consent is only established through section 67. So that is not to say that in a particular circumstance you will not be able to prove absence of consent through absence of knowledge or recklessness via the offence-making provision itself, but you will not be able to get there through section 67.

HAYNE J: Again, can I just stage it for my own understanding – the Crown could go to the jury, could it not, on the basis that the offence is proved because the accused is shown beyond reasonable doubt to have been reckless to whether or not the other party, complainant, consented.

MR GAME: Yes, the answer is yes, but one has to be very careful about how one puts that because if say you end up with a situation where the only evidence - say you take a case like a threat or something, so a threat is coming from a third - say wherever it - you are going to be able to - - -

HAYNE J: We are not going to give you an essay on the whole of the operation of this section.

MR GAME: Okay. We will just deal with the ones - okay, so say they only get there through (h). Now, it is no good to say if they only get there through (h) you are going to be able to get back into a mental element of recklessness because there is no information. If that is the only way they get there, there is no information coming back from the - there is an absence of information. It is going to depend – do you understand what I am saying? It is like - I will not say what it is like, that is worse.

Let me put it this way. We do not say that you cannot still rely on the common law for the mental element of intent or recklessness but the thing you want to prove the physical element by is, shall we say, (h), it has to be knowledge in respect of (h) and that is our point. Now, we say that the actual construction put on the provision in this case and the reasoning of the court on pages 93 to 95 really gives subsection (3) no work to do and that is our point.

Now, if one goes through these directions, and we have done it and our opponents have done it, there are very confused directions, both in the Crown’s opening, closing and the judge says contradictory things at various points of the summing-up and on one occasion he puts it the way we say it should have been put but on a number of other occasions, which we have set out, he says it wrongly and he says it wrongly in the middle of saying it correctly. So we say that is not going to save the Crown.

GAGELER J: Well, the Court of Appeal seems to be on your side.

MR GAME: Yes, they say it had to be resolved. So, the yellow light has not even gone on, but that is our question.

HAYNE J: Yes. Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honour.

HAYNE J: Are you going to defend the directions that were given at trial?

MR DHANJI: Yes, your Honour. The directions given at trial, well, firstly - - -

HAYNE J: Yes, but.

MR DHANJI: I am not particularly warmed by the reception, your Honour, but the key thing in relation to the directions at trial was that redirections were sought and your Honours will see that in terms of this section 67(3) issue, the direction that was sought was a direction that the accused had to know if that was the reason for consent. Now, if your Honours go to page 15 of the application book, your Honours will see about halfway down the page, about line 17:

he must, in that consequence, in that circumstance, know that the apparent consent is so procured. In other words if you take the example, [defence counsel] gave of the errant doctor, while there’s a breach of medical ethics for a doctor to have intercourse with a patient it’s not of itself a crime. But if the doctor said –

and it goes on and I will not read all of that, and then in the next paragraph:

But if it was the patient who thought to herself, well, if I don’t consent to this suggestion that I have sex he might not treat me anymore and agrees to the sexual act because of that then, it would be a crime if and only if the doctor was aware that that was the reason for the apparent consent.

Now, that is a very clear direction that the jury are given after they have come back from a break. Insofar as other directions were given, they were clearly not intended and would not have been understood by the jury to have been comprehensive. Insofar as the - - -

HAYNE J: Well, do you say the Court of Appeal was wrong to make the criticisms it made of the trial judge’s directions?

MR DHANJI: Insofar as the Court of Appeal regarded it as necessary to make the determination, part of the difficulty is that there is a degree of confusion in terms of what is being discussed at various stages and what the precise complaint was before the Court of Appeal, what the Court of Appeal regarded it as necessary to resolve and, indeed, on this special leave application what the question is that needs to be determined because if your Honours go to the special leave application, the special leave point is set out at application book 109. I will just turn it up. The special leave question is put as:

In the prosecution of an offence of sexual intercourse without consent . . . where absence of consent is established through s 67(1)(h) of the Act (breach of trust), but not otherwise, may the mental element of the offence be established through recklessness as to the circumstances under s 67(1)(h), or is knowledge required by operation of s 67(3)?

Now, in terms of that question, the direction that I just took your Honours to could not be clearer. The trial judge directed them that if it was the 67(1) factor that caused the person to consent - - -

HAYNE J: Well, can I take you to the draft notice at page 107, ground 2. Paragraph 2, the first of the grounds identified proceeds on a premise. The premise is that the Court of Appeal in fact held that the trial judge did not err in directing the jury in a particular form. Is the premise of that ground accepted or challenged?

MR DHANJI: Challenged, your Honour.

HAYNE J: What is the best short means of demonstrating that the premise is false?

MR DHANJI: Your Honour, just bear with me one moment - - -

HAYNE J: I should say to you, Mr Dhanji, it is not my impression of the matter at the moment that the premise is false.

MR DHANJI: Your Honour, it is not accepted that the Court of Appeal determined this matter on the basis that there was no error in a direction as to recklessness as to the 67(1) factor but rather what was determined by the Court of Appeal was that there was no error in determining the jury as to recklessness, that is as to consent. That is what the Court of Appeal decided because that was what was argued.

GAGELER J: Can I put what is perhaps the same question another way? If one adopts the construction of section 67(1)(h), for which Mr Game contends, was there a misdirection?

MR DHANJI: There was. If it is the case - and part of the difficulty in answering that question and the reason - I am not meaning to obfuscate, but different arguments have been put but if one comes to the end point and says that the argument ultimately that the applicant puts is that if you are within section 67(1) then the Crown must prove its case only by proof of the section 67(3) matter, well, yes, then the jury was not directed in that way.

The fundamental problem with that proposition is that, as your Honour the presiding Judge has indicated, it prompts intermediate inquiry. What would need to happen in any case would be the jury would then have to be directed that they must make an intermediate determination - do you find consent or not consent? If you find consent but negatived because of this 67(1) factor, go down path A; if you find not - - -

HAYNE J: There would be consequences, but again the directions given at this accused’s trial did not grapple with those consequences.

MR DHANJI: That is so, but what the accused trial demonstrates though is that when one looks at 67(1) and one looks at the various range of matters that are within 67(1) - and Mr Game tried and I will try as well to go outside (h) - and one looks at say violence, for example, it is going to be a very odd situation because you are going to have gradations. There may be no bright line at which someone, a jury is able to say, or a juror is able to say, well, at this point I am satisfied that it has gone from actual consent but negatived to actually there was no consent.

HAYNE J: That may be a reason why the legislature chose actual knowledge to provide as close to a bright line in these areas as one can.

MR DHANJI: That is so.

HAYNE J: You are deeming.

MR DHANJI: Indeed, that leaves open very plainly the routes to establishing the Crown case. One goes to prove the physical elements - lack of consent or, potentially, consent negatived and then one goes separately and distinctly to the mental element in relation to the accused. The construction that is sought to be put poses the obvious question, well, why would it be that an accused - and particularly having regard to the bright line aspect I was talking about - why would it be that an accused in that case could go ahead and have intercourse with a complainant, not caring as to whether the complainant consents or not, but if the jury was not satisfied beyond reasonable doubt, and this is where that standard aspect comes in that your Honour raised, the jury is not satisfied beyond reasonable doubt that there was not consent as opposed to negatived consent, the reckless offender is acquitted and that would be, in our submission, a curious result because - - -

HAYNE J: The very nuances you point to as possibly arising, Mr Dhanji, may indicate the difficulty of the area, may they not?

MR DHANJI: To an extent, if I can perhaps just highlight - - -

HAYNE J: Then it becomes, is this a case in which those difficulties arise? It becomes case specific. I understand the complexity presented by the statute.

MR DHANJI: Yes. Well, in terms of case specific - and it is perhaps the next point I was going to make and should go there now - when one looks at this case this is a breach of trust case. Now, one might have breach of trust in quite a range of circumstances. One might have a workplace where there is not much difference between age, experience - and there will be a subtlety to that. This was a case where the applicant stood in the position of godfather to the complainant, but not just that. By the time of counts 13 and 14, it is true that consent became an element of any offence to be charged because she was above the age of 16, but that was necessarily going to be something that was always going to be seen through the prism of what had happened earlier because the complainant, the jury was satisfied, had been the victim of sexual abuse by the applicant.

Now, in those circumstances, it becomes a rather arid exercise, if I can put it in those terms, to start drawing distinctions between consent/non-consent because the jury was of course also directed in the terms of section 67(2), that is, failure to show outward signs - I am paraphrasing - but the failure to show any outward sign of lack of consent is not taken to mean that the complainant was consenting and that is obviously enough typical in a case that has this type of history and, indeed, that is the basis upon which relationship evidence is regularly admitted. The evidence of the early accounts would have gone in, had they not been charged, as relationship evidence to prove the fact that the complainant’s response was entirely normal.

So to answer in – I have gone around about it in a long way – but to answer your Honour’s question, whatever the subtleties, this is not the case but we say for a number of reasons it is not just a resort to what might be described as unattractive facts, but the distilling of the argument, we say, is not one that is apparent through the process from trial to this Court in that

we maintain the position put in the written submissions that this narrower point - as I said at the outset, the special leave question originally argued a broader proposition, can you have recklessness at all - this narrower point is not one that was specifically taken in the court below. It was dealt with ultimately by the Court of Appeal, we accept, but in the Court of Appeal we of course say that their Honours were entirely correct in the position that they came to.

Your Honours, that really is as much as we would wish to say. In our submission, the simple point is that there is firstly no reason to doubt the correctness of the Court of Appeal’s decision, but, secondly, we would submit that this is a wholly inappropriate vehicle, even if there was some issue as to it.

HAYNE J: Thank you, Mr Dhanji. Mr Game, I should have asked you and did not, the third of the grounds that you allege in your notice of appeal, how connected is that with the first two of the grounds?

MR GAME: About count 13?

HAYNE J: Yes, just so.

MR GAME: Well, your Honour, the point was this, that there were directions on consent and recklessness with respect to 13 to 18; 13 and 14 go together and then 16 and 18 go together and - - -

HAYNE J: My base question is do you press the application in respect of all grounds or is there some distinction which is to be - - -

MR GAME: There is a distinction on the facts between 13 and the others. We are talking about two separate incidents; 13 and 14 go together and 16 and 18 go together, 16 and 18 happened the next Christmas – I think the next year. So there was a denial. So that is - - -

HAYNE J: I will not trouble you further about that, Mr Game. You may have leave on all of the grounds. What would counsel estimate for time – less than a day?

MR GAME: Half a day.

HAYNE J: It may spill over a bit if we have to dance through the whole of these provisions I fear, Mr Game, but not much more, I would hope. Counsel and their instructors will be provided with the directions regulating the time for provision of submissions. There will be a grant on the grounds, all of the grounds alleged.

AT 1.31 PM THE MATTER WAS CONCLUDED