Banditt v The Queen

[2005] HCATrans 683

[2005] HCATrans 683

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S216 of 2005

B e t w e e n -

STEPHEN GARRY BANDITT

Appellant

and

THE QUEEN

Respondent

GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 2005, AT 10.11 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the appellant with my learned friend, MS A. FRANCIS.  (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC:   May it please the Court, I appear for the respondent with my learned friend, MR C. McPHERSON.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GUMMOW J:   Yes, Mr Odgers.

MR ODGERS: Your Honours, the question raised by this appeal is the meaning of the term “reckless” in section 61R(1) of the Crimes Act (NSW). That provision is referred to on page 1 of the written submissions and is contained in the annexure to the written submissions. It was a provision which was introduced in almost identical terms in 1981 in New South Wales in section 61D(2) of the Crimes Act, and, your Honours, that is also in the annexure.

Although the offence of which the appellant was convicted was under section 112(1) of the Crimes Act, section 61R applied because 112(1) included as an element within it the commission of any serious indictable offence. By reason of section 4(1) of the Crimes Act, a “serious indictable offence” is defined to be any offence punishable by imprisonment for five years or more. Section 61I is an offence punishable by 14 years imprisonment. That is an offence of sexual assault without consent. Section 61R applies to that provision to deem recklessness as to consent knowledge as to absence of consent.

In brief, our submission is that the meaning of the word “reckless” in section 61R(1) is a concept which can be expressed in different ways, all meaning the same thing.

The various ways are indifferent to whether there is consent, not caring whether there is consent, determined to have sex regardless of whether there is consent, would have sex even if one knew there was no consent.  They are, we submit, all essentially the same idea, which I will, just for convenience, refer to as indifference.

The trial judge initially directed the jury in this case on recklessness in terms which we do not challenge and I will just take your Honours very briefly to that at page 263 of the appeal book.  After noting at line 17 that:

the Crown suggested to you late in the piece in his closing address, that even on the accused’s point of view –

and I think that is another way of saying even on the accused’s own version of events –

you might find that he knew she was not consenting, because he was reckless.

The law says, a person who has sexual intercourse with another, without the consent of that other person and who is reckless as to whether that other person consents or not, is to be taken to know that the other person is not consenting.  So if you just go ahead and do it willy‑nilly, not even considering whether the person is consenting or not, you are reckless and the law says you are deemed to know that the person is not consenting.

Now, as I have said, we do not challenge those directions.  While they might have been perhaps somewhat better expressed, they certainly were not directions which ‑ ‑ ‑

GUMMOW J:   How old was your client at this time?

MR ODGERS:   How old was he?

GUMMOW J:   Yes.

MR ODGERS:   I will check that, your Honour.

HEYDON J:   He was 29 at the time of sentencing.  How many years earlier did the crime take place?

MR ODGERS:   I will have that discovered.  I do not know the answer.

GUMMOW J:   How old was the complainant?

MR ODGERS:   I do not know that either.  Your Honours, at the end of the summing‑up, the foreman of the jury asked a question which is to be found at 305 of the appeal book at line 15:

FOREMAN:   One of the jury members has asked us to ask this on their behalf, they want advice if a person in partly awake partly asleep state gives non‑verbal bodily response indications, can that be taken as being consent to sex.

Now, before I go on, your Honours, just very briefly we have summarised the evidence in our written submissions that bears on this but in essence the appellant’s account was that the complainant was “vaguely awake”.  I think that was the language that was extracted from him by the Crown prosecutor. 

Just while I stop for a minute, your Honours, the answer to your Honour’s question, the appellant was, I am told, 27 at the date of the offence.  He was born on 18 October 1973 and the offence was 6 October 2001.  The complainant was the same age.  The Crown says, and I do not have any reason to challenge it, that she was 25, not 27.

HEYDON J:   She said she was 27 in her evidence‑in‑chief at the trial.

MR ODGERS:   Yes, that is when she gave evidence – thank you for that.  Returning to my brief summary of the appellant’s account, it is contained in the written submissions at page 3 of those written submissions and perhaps the key aspects of it in this context which explain, we say ‑ ‑ ‑

GUMMOW J:   You took us to page 305 and there was the foreman’s question.

MR ODGERS:   Yes, your Honour, and I was attempting to explain the basis of the foreman’s question, why it was asked.

GUMMOW J:   I see.

MR ODGERS:   And in our written submissions at page 3 we refer to the evidence of the appellant, particularly at line 30 on page 3 of our written submissions where he gave evidence that she was only vaguely awake.  He kissed and hugged her.  She rubbed his body and that is when intercourse occurred.  I think at another point he gave an account where he said she did not actually say yes.  So we say that on that evidence – part of which was extracted in cross‑examination by the Crown – one can understand the question that the jury was asking, or at least one jury member was asking.  Anyway, his Honour answered at 305 with, “No” and then he proceeded to say:

It cannot be taken as consent because that person is not making a conscious, willing acceptance of the act.  The relevance of that question, I daresay, is whether the other party can have a reasonable belief that it represents consent . . . I may need to say more to you about that –

but I will talk to counsel.  He then talked to counsel on page 306.  Defence counsel at line 33 made a submission which we would say in substance was asking his Honour to correct the reference to reasonable belief, which I just took your Honours to a moment ago, and to make it clear to the jury that if it was – to use my language – a reasonable possibility that the appellant honestly believed that the complainant:

was consenting then obviously they’d find him not guilty -

and that there is no reasonableness requirement.  Even if it was not a reasonable belief he would have to be found not guilty.  Of course, that is consistent with the law as it was established in Morgan and I do not understand the Crown to dispute that that is a correct approach to the law as it presently stands.

GUMMOW J:   In New South Wales.

MR ODGERS:   In New South Wales and not, as your Honour quite correctly points out, in the co-jurisdictions other than the Northern Territory.  Then at pages 307 to 309 his Honour gave further directions.  I do not need to take you through the first part of those directions on 307 because they were relating to the question of consent, but then at line 40 his Honour said:

But the other question that I adverted to is really whether that may give rise to a belief on the part of the accused in this case that there was consent.  There are two answers to that as well; or two reasons for the answer.

Now, can I stop there for a moment, your Honours.  That appears to be saying two reasons for the answer he earlier gave, which was “No”:

You will remember that I told you that knowing that a person is not consenting can consist of actually knowing – I mean you may have asked and they have said “no” so you know perfectly well that they are not consenting or it may consist of being reckless.  Remember the law that I told you was that if a person has sexual intercourse with another without the consent of that person and if the offender is reckless as to whether that other person consents or not then they are taken to know that the person is not consenting.  Now, recklessness is a factor to advert to in the question of whether the person is consenting or not.  It does not have to be the product of conscious thought.  If the offender does not even consider whether the woman is going to consent or not then that is reckless and he is deemed to know that she not consenting.

That, in essence, is a repeat of what his Honour had earlier said at 263, which we do not challenge.  Then his Honour proceeded and said the words which we do challenge:

If he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness.  But it is his state of mind that you are obliged to consider –

and I will not read out the rest of that part of the paragraph.  Then at line 47 his Honour said:

So the Crown relies on her evidence to say that she was not consenting and the Crown suggests that you will be persuaded beyond reasonable doubt that he either knew, because he penetrated her before she woke up, or he was reckless in the sense that he did not even consider whether she was going to consent or not, or at least he recognised that there was a possibility that she may not consent but he went ahead and did it anyway and the accused case is that he thought she had consented, and he had this belief.

Now, the appeal to the Court of Criminal Appeal was in respect of those words, which are repeated twice, which is that it is recklessness if he is aware of a possibility she is not consenting and he goes ahead anyway.

HAYNE J:   What is the complaint?  Possibility versus probability, or some other complaint?

MR ODGERS:   No.  The complaint is that that does not accurately reflect recklessness as I earlier defined it, which is a concept of indifference which can be expressed in many different ways, but as a state of mind of essentially saying, “I don’t care whether she’s consenting or not, I’m indifferent to that.  Even if I knew she was not consenting I would proceed.”

Can I say this, your Honour.  This is an example, we say, of an area of law where awareness of a possibility may well permit an inference to what is the true mental element, which is indifference.  It may well be that a person is aware of a possibility and proceeds regardless, or anyway, is indifferent because he or she has not done anything to remove the risk.

The dispute between us and the Crown and between us and the Court of Criminal Appeal is that the Court of Criminal Appeal formulated the element of the offence, recklessness, as being awareness of the risk and taking the risk.  Our contention is that that is not the element.  The element is indifference.  The point we make is that there will be cases where it is perfectly reasonable to take a risk as to consent, and I will come to that in due course, and that even if it is not reasonable there will be cases in which an accused honestly believed it was reasonable.

Those are examples of situations where there is either no culpability at all, because it is reasonable to take the risk, you cannot be culpable if it is reasonable to take the risk, or such a low level of culpability that the offence is not made out.  The offence will only be made out, we say, where there is recklessness in the sense of indifference and that is, in essence, a form – it is a level of culpability quite comparable to knowledge.

HAYNE J:   Is the proposition you advance different in any respect from what was for many years the traditional direction, that the accused either was aware that the woman was not consenting, or else realised she might not be and determined to have intercourse with her whether she was consenting or not?

MR ODGERS:   No, we say that that is correct. 

HAYNE J:   And what is the difference then between the formulation which I read which is taken from Daly [1968] VR 258 to 259, see also Flannery [1969] VR 31 at 33 and the formulation at line 20 on page 308:

If he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness.

What is the difference?

MR ODGERS:   The difference is that in the established traditional direction there is a state of mind of determination to have sex whether she is consenting or not.  That is a state of mind, “I am going to have sex with her”, usually, “even if she is not consenting.  Even if I knew she was not consenting, I am still determined to have sexual intercourse”.

HAYNE J:   What weight then are you giving to the words used by the trial judge in this matter, at line 20 on 308, if he is aware that is a state of mind?

MR ODGERS:   Quite.  Your Honour, the Daly formulation was a bipartite test.  There are two aspects to it.  There is the awareness of the possibility, but there is also a co‑existing determination, a co‑existing state of mind which we say is no different from the concept of indifference as it was articulated in Morgan which is, “I am determined to have sexual intercourse whether she is consenting or not”, which is another way of saying, “It is a matter of indifference to me whether she is consenting or not.  I do not care whether she is consenting or not.  Even if I knew she was not consenting I would continue”.  That is a state of mind.

HAYNE J:   That is, you inject into the formulation the existence of some additional separated state of mind, namely, determination ‑ ‑ ‑

MR ODGERS:   Whether she is consenting or not – I am sorry, your Honour.

HAYNE J:   On top of the fact that he has in fact gone ahead?

MR ODGERS:   Yes.

HAYNE J:   So being aware of the possibility, having in fact gone ahead?

MR ODGERS:   Yes.

HAYNE J:   So what is this additional state of mind that you are injecting?

MR ODGERS:   Indifference.

HAYNE J:   Yes, well, that is a nice tag, but what in fact are you adding other than an over‑intellectualisation of an otherwise simple proposition that jurors can understand?

MR ODGERS:   Your Honour, I am going to be repeating myself, but I will do it again.  That it is a state of mind which says, however you express it, “Even if I knew, I would still continue.  I do not care whether she is – I could not care less whether she is or she is not.  I am indifferent to that”.  These are all different ways of conveying the same idea that you do not care whether she is or she is not.

Perhaps the point can be made more clearly by giving examples, as we sought to do in the written submissions at page 13 of the written submissions, of circumstances where we say, at the very least, it would be – this is paragraph (d) - open to a jury to say that it was reasonable to take the risk.

I was not proposing to come to these at this point but it perhaps isolates the critical point of argument.  I will not read those examples out and it may be in due course I will come back to them, but the essence of the argument is that there are circumstances in human relationships, sexual relationships, where a person may be aware of a possibility, even a real possibility, that there is an absence of consent but takes the view, and it may be reasonable, that he - usually he - is either incapable, it is not possible to remove the risk, or there are good reasons not to take steps that would or might remove the risk and that that person, if you ask that person, “Look, assume that you know she is not consenting, would you proceed?”  The person would say, “Of course not.  If I knew she was not consenting, I would not dream of continuing”. 

That person is aware of a possibility and, on the formulation of the Court of Criminal Appeal, is guilty because he has taken the risk.  But we say that those examples demonstrate that there will be circumstances in which it is entirely reasonable to take the risk and that that points to the submission we make which is that properly understood, recklessness is not satisfied by an awareness of a risk.  It is satisfied by a discrete mental state which is, “Even if I knew, I would continue.  It does not matter to me”.

I will take your Honours in due course to a decision of the House of Lords last year where the House of Lords held, not in a sexual assault case but in a malicious damage case, that the term “reckless” in a statutory provision meant the bipartite test – I will withdraw that.  It is not the same as Daly, it is different from Daly but there are some similarities.  What was held was that recklessness means you are aware of a risk and it is unreasonable to take the risk.  The House of Lords was recognising by that judgment that there will be cases where it would be quite wrong for the criminal law to impose liability simply because of the awareness of a risk and that the solution to that problem was, in that case, to adopt the additional element that a jury satisfied it was unreasonable to take the risk.

Our contention is that the solution that the common law developed in the context of rape was to say, no, no, no, it is not a test of awareness of possibility or an awareness of a risk.  It is to require a different state of mind; a particular state of mind on the part of the accused which is what I have constantly referred to as indifference.  In truth, can I just say this, that properly understood, recklessness does not even require an awareness of the risk.

GUMMOW J:   Well, do we not have to look at the origin of the section?

MR ODGERS:   Quite.

GUMMOW J:   Does it not come out of the English legislation after Morgan?  In particular out of the Heilbron Committee Report? 

MR ODGERS:   Yes, your Honour, but as I understand it – can I just say this ‑ ‑ ‑

GUMMOW J:   Is anyone going to tell us anything about that?

MR ODGERS: I will tell your Honour about it. I am not sure if I have answered your Honour Justice Hayne’s question, but that is the answer I can give at this stage. Following on then from your Honour Justice Gummow’s invitation, at page 12 of our written submissions we refer to the history of section 61R. As I have explained, it was originally enacted as section 61D in 1981. We annex to the written submissions the second reading speech of that legislation and we have explained that there is nothing in that second reading speech which assists, so far as we can see, on this question.

GUMMOW J:   The words are the same, are they not, in section 1(2) of the Sexual Offences Act 1956 (UK)?

MR ODGERS:   Yes.  I was about to say, your Honour, that there is every reason to believe ‑ ‑ ‑

GUMMOW J:   They tend to go into these things rather more thoroughly than New South Wales legislature does.

MR ODGERS:   Yes, your Honour.

GUMMOW J:   You have a half-baked statement in the New South Wales Parliament that does not tell anyone anything.

MR ODGERS:   No, quite.

GUMMOW J:   There is, however, the coincidence of language, which might suggest something.

MR ODGERS:   Quite, your Honour.  As I understand it, there is no disagreement between the parties on this question, that the New South Wales legislation was intended to reflect the approach taken under the English legislation, the 1976 legislation, which, as was pointed out by the English Court of Appeal in Satnam:

was based on the recommendations of the Heilbron Committee and [that the term “reckless”] was intended to be “declaratory of the existing law as stated in DPP v Morgan”.

All of that, as I understand it, is conceded by the Crown and is not in dispute here.  Can I just say this.  As we understand the Crown’s argument, just so I can respond to it, the Crown’s argument is, yes, Morgan is the source of the meaning of the word “reckless” but that properly understood ‑ ‑ ‑

GUMMOW J:   It is only used by one Law Lord, is it not?

MR ODGERS:   No, your Honour, several of them use the term.  Perhaps I will take your Honours to it now.

GUMMOW J:   Was there not something of a furore after Morgan?

MR ODGERS:   Your Honour, there was.

GUMMOW J:   There was an apprehension, a wrongly based apprehension maybe, that rape was not proved if the man believed the woman was consenting, even if he was unreasonable in that belief.  Was that not the ‑ ‑ ‑

MR ODGERS:   Yes.  I think some referred to it as the rapist’s charter.

GUMMOW J:   There was a furore.  Yes, and Dame Rose Heilbron was called into public service and produced a report.

MR ODGERS:   Yes, and she said, “It is perfectly fine and that properly understood Morgan is sensible and we propose to enshrine it in legislation but we also” ‑ ‑ ‑

GUMMOW J:   And the word latched upon was “reckless”.

MR ODGERS:   Quite.  But it is clear that the Heilbron Committee understood that the House of Lords had held in Morgan that recklessness would satisfy the requirements of common law rape and Heilbron understood that “reckless” would be interpreted in the legislation in the same way that “recklessness” was understood in the House of Lords decision in Morgan, which I will go to in a moment.

GUMMOW J:   Is that formulation then any different from the 1968 Victorian Reports?

MR ODGERS:   It is, your Honour, because it uses the language of indifference, as we will see in a moment, but we say properly understood there is no difference.  We say there is no difference between a person who is indifferent as to whether or not consent is present and the person who is determined to have sexual intercourse whether it is present or not.  It is the same mental state.  “My behaviour, my course of action, will not change even if I knew she was consenting.  I am determined to have sexual intercourse whether she is consenting or not.  I don’t care whether she is consenting or not.”  They are the same mental states, as I have said a number of times.

Let us go to Morgan [1976] AC 182. I begin at 192, your Honours. The reason I take your Honours to 192 in the judgment is that that is where your Honours will find the certified question which the House of Lords was considering which was:

“Whether in rape a defendant can properly be convicted notwithstanding that he in fact believed the woman consented, if such belief was not based on reasonable grounds.”

By majority three members of the House of Lords answered the question in the negative, two answered in the affirmative, the result being that the answer was, no, you cannot be convicted if you in fact believe she consented, even if it was not based on reasonable grounds.  Just to interpose there, Heilbron accepted that that was correct but what the legislation did was to say, of course, in determining whether or not he honestly believed it you take into account the circumstances and if it was unreasonable to have the belief that would be relevant to the question of whether or not he honestly believed it, but I have been distracted a bit.

GUMMOW J:   The Heilbron Report is Command 6352.

MR ODGERS:   Yes, your Honour.

GUMMOW J:   Is it a very lengthy report, do you know?

MR ODGERS:   Your Honour, I have to be quite honest.  I have just relied on what the Court of Appeal extracted from it in the Satnam judgment.  Satnam is on the list of authorities.  I have relied on what the Court of Appeal said there where they essentially – they extracted parts of it and they stated that Heilbron was intended to reflect Morgan but I regret, your Honour, I have not gone to Heilbron.  Can I go back to Morgan?  The first member of the House of Lords who was in the majority was Lord Cross of Chelsea and at 203 ‑ ‑ ‑

GUMMOW J:   Just a minute.  Daly was cited, was is it not?

MR ODGERS:   It was.

GUMMOW J:   Where do they refer to Daly?

MR ODGERS:   It is on 203, towards the bottom, point 8.  Perhaps if I could just take your Honours through what his Lordship said at 203D and I will then take you down to Daly:

Rape is not a word in the use of which lawyers have a monopoly and the first question to be answered in this case, as I see it, is whether according to the ordinary use of the English language a man can be said to have committed rape if he believed that the woman was consenting to the intercourse and would not have attempted to have it but for this belief, whatever his grounds for so believing.  I do not think that he can.  Rape, to my mind, imports at least indifference as to the woman’s consent.

That is all he says on the issue before this Court.  As we will see, other judges, other Law Lords referred to indifference and referred to it as recklessness but continuing on down the bottom, at F, his Lordship said:

There is very little English authority on the point but what there is – namely, the reported directions of several common law judges in the early and the middle years of the last century – accords with what I take to be the ordinary meaning of the word.  The question has been canvassed in a number of recent cases in New South Wales and Victoria but there is only one of them – Reg v Daly [1968] VR 257 – that I find of much assistance. In none of the others do the judges advert to the fact that to include an intention to have intercourse whether or not the woman consents in the definition of rape and to say that a reasonable mistake with regard to consent is an available defence to a charge of rape are two incompatible alternatives which cannot be combined in a single direction to a jury – as, incidentally, the judge combined them in one passage in his summing up in this case. In Reg v Daly the court, as well as drawing that distinction which I regard as fundamental, indicated pretty clearly that it thought – as I do – that the former approach to the problem was the right one.  For these reasons, I think that the summing up contained a misdirection.

I think his Honour, when he is saying the former approach was referring to the approach which says rape is intention to have sexual intercourse whether or not the woman consents which imports at least indifference as to consent and that it would be inconsistent, that test would not be satisfied if the man honestly believes that consent is present.

Can I move onto Lord Hailsham who also referred to Daly and I will take your Honours to that in a moment.  Can I also say this, Lord Hailsham’s judgment is the one that is usually quoted as the major one of the majority of the Law Lords.  At 209 his Lordship referred to the directions given by the trial judge and it is really only G that I would take your Honours to:

The only qualification I would make to the direction of the learned judge’s “in the first place” is the refinement for which, as I shall show, there is both Australian and English authority, that if the intention of the accused is to have intercourse nolens volens, that is recklessly and not caring whether the victim be a consenting party or not, that is equivalent on ordinary principles to an intent to do the prohibited act without the consent of the victim.

Your Honours, in our reply we have annexed a definition of “nolens volens” from a Latin dictionary and that is translated as:

unwilling or willing, whether willing or not. 

So his Lordship is saying that the relevant mental element of rape is an intention to have intercourse whether she is willing or not, that is, recklessly and not caring whether she is consenting or not which is equivalent to intending to do it without consent.  Another way of expressing it is, equivalent to intending to have intercourse knowing that there is no consent.  Over the page, on 210 his Lordship says at about five lines down:

I believe that “mens rea” means “guilty or criminal mind,” and if it be the case, as seems to be accepted here, that mental element in rape is not knowledge but intent, to insist that a belief must be reasonable to excuse is to insist that either the accused is to be found guilty of intending to do that which in truth he did not intend to do, or that his state of mind, though innocent of evil intent, can convict him if it be honest but not rational.

His Honour then referred to authorities relied upon by the Crown and some of them were Australian authorities, Sperotto, Flaherty and other authorities.  Then at F his Lordship said:

By contrast, the appellants’ counsel had a fairly impressive list of authorities directly applying to the crime of rape and saying that the prohibited act is sexual intercourse without consent, and the intention is to do the prohibited act, that is to have sexual intercourse without consent or irrespective of whether the victim consents or not.

Then there is a reference to Archbold, to other authorities.  Over the page his Lordship says at D:

In contrast to the New South Wales cases –

which included Sperotto –

in four Victorian cases, the court took a view directly in support of the appellants’ contention -

See Hornbuckle, Daly, Flannery, Burles.  Can I just, so it is clear, your Honours, the appellants’ contention was spelt out by Lord Cross at page 200 at B:

the mental element in rape is an intention to have intercourse without the woman’s consent, that means not simply an intention to have intercourse with a woman who is not in fact consenting to it but an intention to have non‑consensual intercourse, not, of course, in the sense that it must be shown that the defendant would have been unwilling to have had intercourse with the woman if he had thought that she was consenting to it, but in the sense that he was either aware that she was not consenting or did not care whether or not she consented.

So returning then to 211 ‑ ‑ ‑

GUMMOW J:   How did that actually pan out in the result of the case, Morgan?

MR ODGERS:   Well, a majority held that the jury had to be properly directed – sorry, that a proper direction was that if it is possible he honestly believes she was consenting, he is not guilty.  But then they provisoed it, if I might use that shorthand term.  Back to 211 his Lordship continued:

In passing I may say that ‑ ‑ ‑

I am sorry, I will not read that.  There is a reference to the objective test which was Sperotto.  He then actually quoted from Sperotto where the passage is in terms similar to Daly:

the Crown must prove beyond reasonable doubt that when the accused had intercourse with the woman either (i) he was aware that she had not consented, or (ii) he realised that she might not be consenting and was determined to have intercourse with her whether she was consenting or not.  The intent and the act must both concur to constitute the crime . . . 

How then can one explain the apparently analogous cases relied on by the respondents which seem to establish that the defence of mistake of fact, in order to be a “defence” to a criminal charge must depend on an “evidential” burden to be discharged by the defence before the “probative” burden reverts to the Crown, to introduce material on which the jury could find a belief on the part of the accused which is not only honest, but reasonable?

And then at 214 his Lordship said at line F:

Once one has accepted, what seems to be abundantly clear, that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a “defence” of honest belief or mistake, or of a defence of honest and reasonable belief or mistake.  Either the prosecution proves that the accused had the requisite intent, or it does not.  In the former case it succeeds, and in the latter it fails.  Since honest belief clearly negatives intent, the reasonableness or otherwise of that belief can only be evidence for or against the view that the belief and therefore the intent was actually held, and it matters not whether, to quote Bridge J, in the passage cited above, “the definition of a crime includes no specific element beyond the prohibited act.” 

At the top of the page, his Honour noted that Professor Glanville Williams had taken a different view, as had Smith and Hogan.  Then at C:

I am content to rest my view of the instant case on the crime of rape by saying that it is my opinion that the prohibited act is and always has been intercourse without consent of the victim and the mental element is and always has been the intention to commit that act, or the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or no.

Now, your Honours, I can quickly go through the other members of the court.  The other Law Lord who was in the majority was Lord Fraser of Tullybelton.  All I have extracted that I can see his Lordship says is, firstly, at 236 in the middle of the page:

All the definitions of rape quoted to us which made any reference to the state of mind required of the rapist included a statement to the effect that:  “one of the elements of the crime of rape is an intention on the part of an accused person to have intercourse without consent.”

He relies on that to conclude that therefore an honest belief in consent is inconsistent with that mental element.  This is at 237, and at 237E he says:

It seems to me that the meaning of the direction and of the earlier dicta is that the mens rea of rape is an intention to have intercourse with a non-consenting woman or to have non-consensual intercourse.

He then reasons to answer the question in the negative.  I can also quickly take your Honours to the dissenting judges.  It is relevant, we say, because in truth the dissenting judges do not really disagree with our contention as to the mental element of rape.  At 218 your Honours will see ‑ ‑ ‑

GUMMOW J:   What was the objective theory that was being put?  How was that expressed?

MR ODGERS:   I am sorry, your Honour?

GUMMOW J:   The objective test.  How is that being expressed?

MR ODGERS:   That it not only had to be an honest belief but a belief based on reasonable grounds, I think was the ‑ ‑ ‑

GUMMOW J:   That is the current legislation in England, is it not?

MR ODGERS:   I think it is very close to that, your Honour.

GUMMOW J:   Section 1 of the Sexual Offences Act 2003:

does not reasonably believe that –

A, the actor –

does not reasonably believe that B consents.

(2)      Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

MR ODGERS:   That is right, yes.  That is correct, your Honour.  In 2003 the Sexual Offences Act was amended, and the test is – which replaced “recklessness” by a test of “does the accused” – sorry, establishing that the accused does not reasonably believe that the complainant consented, which of course is fairly close to the approach taken by the Code jurisdictions in Australia except for the Northern Territory.

Can I just quickly then return to Morgan.  At 218 Lord Simon of Glaisdale said at E:

The actus reus is sexual intercourse with a woman who is not in fact consenting to such intercourse.  The mens rea is knowledge that the woman is not consenting or recklessness as to whether she is consenting or not.  That it is nothing more can be seen by postulating an offence of rape with an ulterior intent.

On reflection, your Honour, his Lordship does not explain what “recklessness” is, he does not define it.  So his Lordship there is neutral on this question.

On the other hand, the other dissenting Lordship, Lord Edmund‑Davies at 225F said:

And, with respect, so do I, save that I would add –

I will go back a few lines.  The quotation from Justice Kenneth Jones was “intended to have intercourse without her consent”.  That is the mental element.  His Lordship continues:

save that I would add that the man would have the necessary mens rea if he set about having intercourse either against the woman’s will or recklessly, without caring whether or not she was a consenting party.

So, again, the same concept.  As I understand Lord Edmund‑Davies, he dissented because he thought that the weight of authority was overwhelming, that our belief as to consent would only negate liability if it was a reasonably held one, but in terms of his formulation of the mental element it was, I would submit, identical to the way that Lord Hailsham formulated it and the way that Lord Cross formulated it.

CALLINAN J:   Is reckless indifference tautologous?  Does reckless add anything?

MR ODGERS:   Your Honour, our answer is that it seems to be accepted that reckless can mean different things in different contexts.  Your Honours, it has been established that for murder reckless means, at common law, you are aware that it is likely or probable that death or grievous bodily harm will result.

GUMMOW J:   Yes, but that is consequential.  It is consequential in the sense of one looking at acts.  This is looking at what is going on in someone else’s mind.

MR ODGERS:   Your Honour, we would say that the court ‑ ‑ ‑

GUMMOW J:   That is some of the difficulty, I think.

MR ODGERS:   I understand that.  It is expressed most clearly ‑ ‑ ‑

CALLINAN J:   In New South Wales there have been statements, have there not, in manslaughter cases about wickedly – the word “wicked” has been used, has it not?

MR ODGERS:   I will answer that in a moment, if I could, your Honour.  Just returning to your Honour Justice Gummow, the criminal law and the Criminal Code (Cth), for example, recognise a distinction between foresight of consequences and awareness of circumstances and that recklessness can be something that can apply to either of those. Recklessness in malicious wounding cases applies to a consequence, or murder, it is a consequence – death or grievous bodily harm. In the context of sexual offences it is a circumstance, whether or not consent is present or not.

Having said that, I am not aware of any authority or any academic analysis which has advanced any kind of coherent explanation why you would adopt a different approach to recklessness for those two different situations, but I guess at the end of the day it does not really matter.  All I was saying in respect of murder is that recklessness for murder requires not foresight of the possibility that somebody will die but a foresight of the likelihood that somebody will die.

In other areas like malicious wounding there is some authority saying that awareness of the possibility that wounding will occur will be sufficient.  In the area of defamation law, as I understand it, the element is, “I don’t care whether or not what I say is true or not”.  The House of Lords has held in G, which I referred to a moment ago, that in the context of a statutory provision dealing with criminal damage that reckless means “I am aware of a risk and it is unreasonable to take the risk”.

The Criminal Code (Cth) defines “reckless” in the same way – slightly differently. It says you are reckless if you are aware of a substantial risk and that taking the risk is unjustifiable. What I am saying to your Honour Justice Callinan is that reckless has been given different meanings in different contexts, so that is the first part of my answer to your Honour’s question. In murder, as I have said, reckless means foreseeing that death is likely and it ‑ ‑ ‑

HAYNE J:   That is the decision in Crabbe.

MR ODGERS:   Quite.  The High Court has gone on to hold that there is no additional element of indifference.  So for murder you will be guilty even if you hope that death will not occur.  Because you are aware of the likelihood, that is sufficiently culpable to make you guilty even if you are not indifferent.

Our contention is that in the context of sexual assault the answer that the House of Lords gave in Morgan was that to make you sufficiently culpable, to make you guilty of the offence of rape, you needed to have a state of mind which was comparable to that of knowing that she is not consenting and that such a state of mind would not – they did not explicitly say so – be satisfied by an awareness of a possibility or a risk but would be satisfied by a state of mind of indifference or not caring one way or the other.

HAYNE J:   What is demonstrated other than indifference or not caring if a person knows that the complainant might not consent but in fact proceeds?  What does that reveal except indifference or not caring?

MR ODGERS:   In some cases, perhaps indeed in many cases, it would be a reasonable inference from that knowledge that the person did not care.  Just as in drug importations this Court held in a line of authorities, Saad  and Kural, that when you are talking about intention to import drugs that one can infer from an awareness of a real chance that there are drugs in the vase, for example, that there was an intention to import them.  But, as the High Court held in those cases, the mental element is intention and that one should not confuse factual matters that permit inferences to the mental element and may well be determinative with the actual mental element. 

So my answer to your Honour’s question is the same answer I gave earlier which is that there will be cases and those examples in the written submissions at page 13 are ones where a person is not indifferent, does not care, would certainly not proceed with sexual intercourse if he knew there was no consent, but reasonably or unreasonably does not think it appropriate or possible to completely remove the risk.

HAYNE J:   Are not each of the examples given on page 13 properly dealt with as cases of belief in consent of the kind considered in Morgan?

MR ODGERS:   With respect, no, your Honour. 

HAYNE J:   That is, the Crown in such a case would not demonstrate that the accused did not believe that the victim consented.

MR ODGERS:   It depends what belief means.  I say that quite seriously because one of the difficulties with this area is reconciling on the one hand a conception of recklessness which, let us take the Court of Criminal Appeal’s approach, you are aware of the possibility that she is not consenting, how is it then that a belief that she is consenting will negate liability?  The answer can only be, with respect, that you have to believe that it is certain because if you believe that it is highly likely that she is not consenting, then you are not negating recklessness because you are aware of the possibility that she is not.  So the only circumstances in which, on that approach, you could be not guilty would be if you believed it was certain that she was consenting. 

My answer to your Honour is that in the examples I have given on page 13, you are not certain.  You are aware of the possibility.  You do not believe it is certain.  You may believe it is highly likely, but on the Court of Criminal Appeal approach you would still be guilty because you are aware of the possibility.  There are very good reasons why you do not completely remove the risk, either because you cannot realistically remove the risk or because in the particular context it is – there are good reasons why you do not make certain.  I will give other examples.  I will take your Honours to a decision which is relied on by the Crown to give you another example of that kind of situation. 

At the end of the day it comes down to a recognition that in human interactions people often are aware that there are risks but take the risk and do so reasonably and do so in circumstances where it would be completely wrong for the criminal law to say, “Too bad, you are guilty of an offence in South Australia carrying life, in New South Wales carrying 14 years or more depending on aggravation, because you took the risk regardless of the circumstances”.  Can I say this.  On this approach of the Court of Criminal Appeal, even if the jury in the trial of the appellant had thought that it was entirely reasonable for him to take the risk, they still had to convict. 

GUMMOW J:   Is there any reference in G to Morgan?

MR ODGERS:   No, your Honour, none as far as I am aware.

GUMMOW J:   It is in the list, [2004] 1 AC 1034 at 1035.

MR ODGERS:   Yes.  Well, I will take your Honours to that.

GUMMOW J:   It is listed there.

MR ODGERS:   My friend tells me I answered your Honour wrongly and that it is referred to in G, only briefly I am told, at 1062, your Honour.

GUMMOW J:   Page 1062?

MR ODGERS:   Yes.

GUMMOW J:   In Lord Steyn.

MR ODGERS:   Page 1062D, yes, referring to the actual holding in Morgan, not to the discussion of recklessness in Morgan.

HAYNE J:   And stating it as a defence ‑ ‑ ‑

GUMMOW J:   Yes, exactly.

HAYNE J:   ‑ ‑ ‑ rather than as an element which has to be negated by the Crown.

MR ODGERS:   Yes, quite.  I will deal with G now since your Honours have it.  This was a decision of the House of Lords.

GUMMOW J:   It was a setting aside of Lord Diplock really.

MR ODGERS:   Yes, quite.  Very briefly, your Honours, the relevant statutory provision is at page – I am sorry, my page reference, I cannot even see it ‑ ‑ ‑

GUMMOW J:   These are cases of malicious damage, recklessly damaging.

MR ODGERS:   Yes.  At page 1039, the Criminal Damage Act.  There is a reference to subsection (1):

A person who without lawful excuse destroys or damages any property . . . or being reckless as to whether any such property would be destroyed or damaged –

So the question was the meaning of “reckless” in that provision.  It had been held in Caldwell in 1982 ‑ ‑ ‑

GUMMOW J:   Lord Bingham concludes correctly, does he not, at 1054 in paragraph 28:

The task confronting the House in this appeal is, first of all, one of statutory construction:  what did Parliament mean when it used the word “reckless” in section 1(1) and (2) of the 1971 Act?

MR ODGERS:   Yes.

GUMMOW J:   And that is our task here, is it not?

MR ODGERS:   Yes, your Honour, it is.  There is something I need to draw your Honours’ attention to in respect of that, and I will do it very soon.  Just before I do, the House of Lords held, I think unanimously, that the decision in Caldwell was wrongly decided.  Caldwell had imported an objective test into recklessness.

HAYNE J:   Caldwell was decided at the time when self-induced intoxication was the fashionable legal subject and a subject which led to a few intellectual knots being tied.

MR ODGERS:   Yes.  Can I just say here that although this appeal is not directly concerned with what is called inadvertent recklessness in sexual assault, when one looks at how the law has developed in that area in New South Wales, it becomes apparent that the courts were influenced by Caldwell and Lawrence to import a kind of objective test, particularly to deal with problems of intoxication, but if I may come back to that in due course.

What I was saying, your Honours, is that the House of Lords overturned Caldwell and formulated recklessness in the way that your Honours will see at 1057G.  The answer to the certified question was:

“A person acts recklessly within the meaning of section I of the Criminal Damage Act 1971 with respect to – (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”

So the House of Lords has drawn no distinction between foresight of consequences and awareness of risks.  It has adopted the same test, that is, you are aware of the risk but in addition a jury has to be satisfied that in the circumstances known to the accused it was unreasonable to take the risk.  The House of Lords based that on a report of ‑ ‑ ‑

GUMMOW J:   Paragraph 39 is important in Lord Bingham’s judgment too, I think.  The third sentence, “There is no reason to doubt”.

MR ODGERS:   Yes.  Well, that is reminiscent, your Honour, of Morgan and the Heilbron Committee, that if a tribunal is satisfied that it would be wholly unreasonable to form a particular state of mind, to believe, for example, there is no consent, then they are likely to use that to conclude that it really in fact was not a belief that was held in the sexual – that is what Morgan held.

GUMMOW J:   There is an echo of that in the last sentence in paragraph 39.

MR ODGERS:   Yes, that is right.  I have just been reminded of something which I think I said I was going to point to.  I was saying to your Honour Justice Hayne that your Honour will note that in Morgan none of the Law Lords referred to awareness of a risk or awareness of a possibility.  They never used that language.  The reason is, your Honour, that it is really that aspect of the Daly test is superfluous and, indeed, leads to confusion.

What is critical to recklessness is this state of mind of indifference or not caring.  It may arise in circumstances where you have turned your mind to possibilities or risks, but even if you have not.  If you do not even turn your mind to whether it is a possibility or a probability, if you have a state of mind that says, “It is irrelevant to me whether she is consenting or not.  I’m not going to even think about whether she is consenting.  Whether she might be consenting or might not be, it is irrelevant” then you are also indifferent, you are also reckless.  So that, properly understood, the addition of those words “aware of the risk” is superfluous and potentially misleading.

Can I say this, your Honours, we have attempted in the written submissions to demonstrate that the very use of those words “awareness of the risk” which led the New South Wales courts to go down this path of what they called “inadvertent recklessness” because inventive defence counsel were saying, well, if he is not aware of the risk, he cannot be guilty, and the New South Wales courts said well, but he may just regard it as irrelevant, he just does not bother to even think about it and he must be guilty too, surely.  The answer is, of course he is, because he does not care, he is indifferent.  Anyway, that is what I was reminded of, your Honour.

Returning then to G, I am not entirely sure what the point I was making, but in essence this was a recognition by the House of Lords that in England in 1971 “reckless” was intended to have this double, bipartite aspect: Awareness of risk and unreasonable to take it. The question then arises well, what did the New South Wales Parliament intend in 1981 in respect of section 61D of the Crimes Act.  Well, it has already been established that they intended that “reckless” would mean what the House of Lords held in Morgan, which is a very different formulation of “reckless”. 

Can I make this clear, your Honours.  We contend that the answer that the House of Lords reached in G  for the Criminal Damage Act was very sound in policy terms.  It made very good sense because it dealt with the problem that there will be cases where an awareness of a risk is not sufficiently culpable and so it dealt with the cases where it is reasonable to take the risk.  We say that Morgan provides another solution to that problem by defining reckless in the way that in truth dictionaries do it; in the way that the old English form of words did it; to do it in terms of not an awareness of a risk but a state of mind of indifference, as I have repeatedly referred to it.

Your Honours, I have been distracted.  I think I was at a point where I had taken your Honours to the summing‑up.  I then took your Honours to the written submissions at page 12.  Can I just take your Honours back to those because I am not going to read them out but I am just going to emphasise the points we make.  Paragraph (b) in the written submissions essentially says, as I have already made clear, Morgan is the guide to recklessness.  I have taken your Honours to Morgan and I rely on particularly what Lord Hailsham said.  In terms of Australian authorities, at 1981 Daly of course is the traditional formulation.  We say that that is essentially the same as Morgan.  Apart from authority, we put arguments at 12 and 13 and 14 and 15 as to why your Honours should accept the formulation of reckless for which we contend. 

At paragraph (a) on page 12 we refer to the dictionary definitions which involve this concept of “Utterly careless” – not caring. The etymology of reckless is from the old English word “recceleas” - a man who does not “reck”, a man who does not care. That is the formulation of “reckless” which we say is adopted in section 61D and now section 61R.

At paragraph (c) on page 12 we make the argument which I touched on earlier which is that one has to make judgments about culpability.  In Crabbe the High Court considered that a person who is aware that death is likely to result is equally culpable with a person who intends it to result.

We contend at page 13 that a person who is callously and deliberately indifferent to absence of consent, whose state of mind is “Even if I knew there was absence of consent, I would continue” is at a level of culpability which is comparable to knowledge of lack of consent.  In contrast we say that taking a risk may in some circumstances be reasonable and justifiable and even if not reasonable and justifiable the accused may have thought he was acting reasonably so that he may be regarded as regarded as negligent or stupid but not in the same league of culpability as the person who knows that consent is absent.

I have referred to the examples, your Honours.  I will not repeat them.  I have referred to G.  W say G supports our contention that there will be cases.  The law has to acknowledge there will be cases where taking a risk is reasonable and justifiable so that you should not impose liability simply because you took the risk.  I said I would give you another example.  Can I take you to a decision that is relied on by the Crown.  It is R v Blobel (2001) 216 LSJS 222 – I am being tested now.

GUMMOW J:   It is the Law Society Judgment Series really only understood by South Australia.

MR ODGERS:   Yes.  Your Honours, in one sense, this decision is against us because we accept that in South Australia the view has been taken that reckless indifference in the statutory provision is satisfied by an awareness of a risk or awareness that she might not be consenting, so to that extent it is against us.  We say that that line of authority is seriously flawed and I will deal with that in a moment.

GUMMOW J:   When did section 48 of their Criminal Consolidation Act take its present form – they were construing section 48.

MR ODGERS:   Yes.

GUMMOW J:   When did it go in their statute?

MR ODGERS:   In 1975, I think.  I may be wrong about that.

HEYDON J:   I think it is 1976, paragraph 27.

MR ODGERS:   Thank you, your Honours.

GUMMOW J:   So, it is another post‑Heilbron Report section, as well.

MR ODGERS:   Yes, I think that is right, your Honour.  I am a little confused as to precise dates but I think that is correct.  I will return in a moment to the South Australian authority but I just want to take your Honours to paragraph 26 of the judgment of the Chief Justice:

One submission, which I may not have fully understood, was that this approach could have caused the jury –

sorry, this is an approach of she might – it is enough that she might have – he is aware that she might not be consenting –

to reason that it was sufficient for a finding of guilt if Mrs Blobel was not consenting to intercourse but submitted –

this was a marriage – the complainant was married to the accused –

for the sake of peace and quiet, and for the sake of the marital relationship.  The submission seemed to me to be that there was a danger that the jury might have convicted on the basis that it was sufficient if Mr Blobel knew this might be so, and as almost anything might be so, the jury had convicted on an unsafe basis.  I reject that submission.  On the facts of this case the summing up was adequate in this respect.  Mrs Blobel’s evidence was that she was dragged, protesting, from the upstairs bedroom to the marital bedroom.  She said her protests continued.  They jury would not have approached the case as one of the kind suggested by Mr Cuthbertson, where a more detailed direction about recklessness would be required.

Now, we say that that scenario is yet another example of a situation where an awareness of a possibility of absence of consent could not properly justify a conviction and we say that the Chief Justice is recognising that in such a case, to give a direction simply in terms of awareness that she might not be consenting, or awareness there was a possibility that she is not consenting, would not be appropriate and indeed you have to give a more detailed direction.  He does not indicate what that would be.  But we call it in aid as another example of a situation where it would be unreasonable for the criminal law to impose liability of a – in South Australia – a crime punishable by life imprisonment because of the awareness that his wife might not be consenting because she is submitting for the sake of peace and quiet and the sake of the marital relationship.

HAYNE J:   Chief Justice Doyle in that same case, at paragraph 28 dealt with the earlier authority in South Australia on section 48, Wozniak.

MR ODGERS:   Yes.

HAYNE J:   And Chief Justice Bray appears to have rejected:

a submission that the prosecution must prove that the accused realised that the victim probably was not consenting to intercourse ‑ ‑ ‑

MR ODGERS:   Yes, and indeed his Honour the Chief Justice went further and said it is reckless if you are aware that she might not be.

HAYNE J:   Yes.

GUMMOW J:   Paragraph 30.

MR ODGERS:   That is authority against us and, your Honour, I do not like to be rude about South Australian practitioners.  It is truly, with respect, astonishing that South Australian courts have not appreciated that Wozniak was not a case interpreting the statutory provision, but was a case on the common law.  Now, his Honour Chief Justice Bray was not talking about the meaning of the term “reckless indifference” in the South Australian statutory provision, and I will take you to that in due course.

GUMMOW J:   The offence occurred in 1975 in Wozniak.

MR ODGERS:   Yes, your Honour. 

GUMMOW J:   Before the statute.

MR ODGERS:   Before the statute came in.  The South Australian Supreme Court has in a number of decisions relied on Wozniak as the – in the judgment of Chief Justice Bray as the source of the proper interpretation of the words “reckless indifference” in the South Australian statute.  Perhaps since I am on it, I will take your Honours to Wozniak -R v Wozniak and Pendry (1977) 16 SASR 67.

I will take you to the Chief Justice.  Firstly, if I can take you to what the trial judge actually said in his directions and that is to be found at 69, at about point 3:

If, however, a person accused of rape honestly believes that the female, against whom he is alleged to have committed the crime, has consented, he cannot be guilty of rape . . . The Crown bears the onus of proving that the accused had unlawful sexual intercourse with the female concerned, without her consent, knowing that she was not consenting, or without any genuine belief on his part that she was consenting.  Or that he went on and had intercourse with her, realizing that she might not be consenting, and with a determination to have intercourse with her, whether she was consenting or not.

. . . If the Crown fails to establish that the accused was aware she was not consenting, or that he was determined to have intercourse with her, with a realization that she might not be consenting, with an indifference as to whether she was consenting or not, if you have any reasonable doubts about these matters, he could not be found guilty of rape . . . 

On the other hand, if you are satisfied that the young girl did not consent, if you are further satisfied that the particular accused, the accused whom you are considering, was aware that she was not consenting or that he realized that she may not be consenting and that he was determined to go on anyway and have intercourse with her . . . with an indifference as to whether she was consenting or not, you are entitled to find the charge proved.”

Your Honours, we say that that summing-up was perfectly consistent with Morgan and unobjectionable.  Chief Justice Bray referred to Morgan and said, about point 3:

All the Judges in this Court, however, and all the learned Lords in the House of Lords who adverted to the topic held that, besides the intention to have intercourse without the girl’s consent, or the intention to have intercourse knowing or believing that the girl was consenting, there was an alternative form of mens rea, which can compendiously be described as mens rea by recklessness, as that term is understood in the modern criminal law –

and his Honour refers to Lord Cross, Lord Hailsham and Lord Simon.

GUMMOW J:   Page 73, the middle of the paragraph:

However, it seems to me that the law has probably not . . . The 1976 amendment –

…..wrong.  It has the words “recklessly indifferent” and they are taken from Justice Wells in Brown.  They have this word ‑ ‑ ‑

MR ODGERS:   Then his Honour says:

The phrase about reckless indifference has its own difficulties which will have to be met when they arise.

So his Honour was not dealing with that phrase.  He then says:

And even as at November 1975, the date of the present crime, it seems, as I have said, that the weight of judicial authority is in favour of a direction in the terms complained of –

which is quite correct, it was.  But, your Honours, I need to say a bit more about his Honour Chief Justice Bray because it bears directly on the Crown’s argument.  I have not put to you what the Crown’s argument here today is, but as I apprehend it, it is this.  The true test of recklessness is absence of a belief that she is consenting.  That is their first proposition, and the Crown then goes on to contend that that requirement will be satisfied if he was aware of the possibility that she was not consenting.  The Crown has relied on Wozniak to support their analysis, and they have quoted from Chief Justice Bray – I think it is 71, excuse me for a moment.  Perhaps it is 73 is the best place to go.  Back to 73, top of the page five lines down:

I may conclude this theoretical excursus by saying that it might have been preferable to define the mental element in rape negatively rather than positively.  It might have been preferable to say that the crime is committed by a man who has intentional intercourse with a woman without her consent and without any belief on his part that he has her consent, instead of saying that it is committed by a man who has intentional intercourse with a woman without her consent, knowing that she is not consenting or recklessly indifferent as to whether she is consenting or not.  The Crown under that formulation would have the onus of proving the absence of belief in consent and if that were shown the precise state of the defendant’s mind about consent would be irrelevant and it would not matter whether he was certain she was not consenting or thought she was probably not consenting or even possibly not consenting . . . 

However, it seems to me that the law has probably not developed in this way.  In South Australia the point is now academic.

So his Honour was recognising that an approach in terms of absence of belief and consent was not how the law had developed, rather you have to prove either intention or recklessness.  So, with respect, he is no support at all for the proposition that the Crown advances.  However, he did go on in dicta to say that recklessness under the common law would be satisfied by an awareness that she might not be consenting.  Can I take you to 74, point 5:

If it is, as I have suggested on reflection might be a preferable test, an intention to have intercourse without any belief in consent, then that belief is lacking if he realizes that she might not be consenting but nevertheless proceeds with intercourse.

That is the Crown’s argument today as I apprehend it. 

If, as Wells J suggested in Brown’s case and Lord Hailsham in Morgan’s case, it is an intention to have intercourse knowing that she is not consenting or recklessly indifferent as to whether she is consenting or not (Wells J) or, alternatively, willy nilly not caring whether she consents or not (Lord Hailsham), then a man who determines to have intercourse realizing she might not be consenting answers those requirements.

Now, that really, with respect, goes to what your Honour Justice Hayne put to me.  That is an assertion that you are indifferent, you do not care less, if you are aware she might not be and you proceed.  I have tried to persuade your Honours that that is not self‑evident by any means; indeed, it may well be wrong.  His Honour then proceeded:

In short, the requirement of a belief in the probability of non‑consent, as opposed to whatever degree of possibility is involved in the word “might”, has never, as far as I can see, been held to be a necessary ingredient of rape and it is implicitly excluded in all the formulations I have been able to discover.  No doubt fantastic or remote possibilities of non-consent would not normally enter a man’s mind –

So his Honour quite correctly, we say, rejected an argument that you had to be aware that it was probable that she was not consenting, and then he says at 75:

Miss Powell’s second complaint was about the word “indifference” in the learned Judge’s reference to an indifference as to whether she was consenting or not.  “Indifferent” is the word used by Wells J.  It is in this context the semantic equivalent of “not caring” in Lord Hailsham’s formula.

We agree.

It means no more than a determination to proceed with advertence to the possibility of non-consent.

That is where we take issue.  It is simply dicta.  There is no reasoning to support it.  It is an assertion.  We say it is wrong.

GUMMOW J:   But the direction complained of here at page 308 falls short of that, does it not?  Falls short of what you say is the wrong test now urged, does it not?

MR ODGERS:   I am sorry, yes, 308 – the direction in this case?

GUMMOW J:   Yes.

MR ODGERS:   Yes, quite.

GUMMOW J:  

If he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness.

MR ODGERS:   Your Honour, no.  The direction given here was consistent with that.

GUMMOW J:   Is that consistent with the proposition that an intention to have intercourse without any belief in consent?

MR ODGERS:   It is not consistent with what I will call Morgan recklessness.  It is not consistent ‑ ‑ ‑

GUMMOW J:   It seems to be somewhere in the middle perhaps.  I just do not know.

MR ODGERS:   Your Honour, as I understand it, in this context there are two alternatives.  There is the alternative which the trial judge adopted and the Court of Criminal Appeal endorsed, which is, “You are aware of the possibility she is not consenting, you have sex, you are guilty.”  That is how I understand it.  As I read his Honour the Chief Justice in Wozniak, he adopts the same view, “You are aware of the risk, you take the risk, you have sex, you are guilty, if she wasn’t consenting.”  The view for which we contend is that whether or not you turn your mind to the risk, or you are aware of a possibility or aware of a probability is not the point.  What matters is do you have a state of mind of indifference, not caring, it is irrelevant to you, you are going to have sex whether she is consenting or not.  I keep repeating myself.  That is the state of mind which – now, how does that fit in with belief in consent?

There seems to be unanimity of view, and Morgan is authority for the proposition, that quite apart from how you define recklessness, you are not guilty if it is reasonably possible you believe she was consenting.  Everybody seems to agree that that is correct, even Chief Justice Bray.  Now, quite how one justifies all of that I guess is neither here nor there.  What I can say in response to your Honour Justice Gummow is that we say that the trial judge in this case never said that to the jury.  It is true he did, at 309, refer to the fact that the accused says he believed she was consenting, but he never at any stage directed them that if they think it is a reasonable possibility that he did believe she was consenting then they must acquit.

We have argued, your Honours, at the last page of our written submissions that even on the view taken by the Court of Criminal Appeal as to recklessness that the appeal should be allowed because – this is at page 18 of our written submissions in paragraph 36.  We say even on the view adopted by the New South Wales Court of Criminal Appeal, the directions were in error because, firstly, the trial judge talked just about possibility – and your Honours will appreciate the Court of Criminal Appeal drew a distinction between real possibilities and slight possibilities, and that was not something put to the jury – secondly, because the judge was asked to direct the jury that he would not be guilty if he believed she was consenting, and he did not so direct; and thirdly, because in fact the answer to the question that was given, “No”, was wrong.  You can believe consent is present in circumstances where the woman does not say she is consenting but the bodily responses indicate that she is.  So in truth the answer that was given, even on the Court of Criminal Appeal’s approach, was wrong.

Our basic submission is that the Court of Criminal Appeal is wrong and your Honours should hold that recklessness under 61R means what the House of Lords held it meant in Morgan and it is a different concept.

GUMMOW J:   Where is the critical passage in the Court of Criminal Appeal?

MR ODGERS:   Your Honour, it is at 396 and 401.  At 396, line 37:

In my opinion, it is sufficient to constitute this kind of recklessness that the first person realises that the second person might not be consenting and, notwithstanding that realisation, decides to proceed to have sexual intercourse with her and has such sexual intercourse, without there being some additional, independent requirement that he is determined to have sexual intercourse with her, whether or not she is consenting.

That is the first holding.  The second is at 401, line 25:

I would accept that, in order for an accused person to be liable on the basis of advertent recklessness, the possibility that the complainant is not consenting, of which the accused is aware, must be more than merely a bare possibility.

His Honour then refers to other areas of criminal law, a common purpose liability and Lavender which, of course, was overturned by this Court fairly recently.  At line 36:

However, if an accused person is aware of a real possibility that the complainant does not consent to sexual intercourse, he acts recklessly if, having that knowledge, he decides to proceed to have sexual intercourse, even if he considers it probable (although ex hypothesi not certain) that the complainant does consent to sexual intercourse.

CALLINAN J:   Mr Odgers, the defence at the trial, was it put in the alternative that there was consent or ‑ ‑ ‑

MR ODGERS:   Yes, it was.

CALLINAN J:   Yes.  Then, alternatively ‑ ‑ ‑

MR ODGERS:   That even if she did not consent, he believed she was consenting.  Equally, the Crown case was put in the alternative.  You would believe her and on her account he must have known she was not consenting because on her account penetration occurred when she was asleep.  Plainly, if that is correct, he has to be guilty.  But the Crown also said you can convict even on his account because on his account he was reckless.  Why was he reckless?  Because he was aware that she was only vaguely awake.  She had not specifically said she was consenting.  He knew that on the last occasion he had – even though he had had sex with her before, on his account, that on the last occasion he had made an attempt to have sex she had rebuffed him.  So the Crown’s argument was, even on his version of events he knew she was vaguely awake, he was reckless.

CALLINAN J:   I do not really understand that.  I would have thought that what he said at 144 was just consent and what goes before really negates what he said before that.

MR ODGERS:   I am sorry, your Honour, I did not follow that precisely.

CALLINAN J:   I think it is at 144, Mr Odgers.  Let me just check that.  Yes.  If you look at about line 42 on page 144.

MR ODGERS:   Yes.

CALLINAN J:   I do not see how what has gone before that and a little after that can be consistent with anything other than up until a certain point, and that point involved penetration, she was actually consenting.

MR ODGERS:   Yes.

CALLINAN J:   I do not really see how there is any room on his version for ‑ ‑ ‑

MR ODGERS:   The Crown relied particularly on the cross‑examination that occurred at 166 top of the page:

Q.       I suggest to you that you were conceding that this lady hadn’t woken up and she hadn’t given any consent –

I am sorry, I should just take you back to 165.  At line 40 the Crown Prosecutor was taking the accused to something he had said on an earlier occasion and the answer he had given on an earlier occasion was:

“well she didn’t exactly say yeah let’s do it.”

That is at 45.  Then over at 166:

Q.       I suggest to you that you were conceding that this lady hadn’t woken up and she hadn’t given any consent?
A.       No, that’s not correct sir.

Q.       So you were, in effect, in a situation I suggest, where you had intercourse with this lady when she initially was asleep and then woke up?
A.       No sir.

Q.       And that you didn’t get any consent from her at all?
A.       No sir.

Q.       Do you think, at any stage, it might have been wise to have sort of made sure that she was a consenting party to this?
A.       That I what?

Q.       Do you think it might have been wise to have made sure, by asking her, whether she was a consensual partner?
A.       I was aware that – at the time she was awake.

Q.       I’m not asking you that.  What I’m saying to you is, don’t you think it would have been wise to have at least found out whether she was consenting or not?

CALLINAN J:   But it all depends really upon his saying on a previous occasion that she was vaguely awake.  Is there anything more than that?

MR ODGERS:   That is exactly correct, your Honour, and there is more, but I will just deal with that.  Line 35:

Q.       You’ve said, on a previous occasion, “that she was vaguely awake”?
A.       Well I did, I did, yeah.

Q.       And if she was vaguely awake how would she give her consent to what you did?
A.       She was awake enough to have a brief conversation with me and rubbing my body, so ‑ ‑

Q.       I’d suggest that there wasn’t any rubbing of the body at all?
A.       Yes there was.

So stop there.  The Crown has got him to concede he never asked her, “Are you consenting?”  She never said, “I’m consenting” ‑ ‑ ‑

CALLINAN J:   Well, that does not mean that there is not consent.

MR ODGERS:   I understand that, your Honour.  Can I just put the whole package.  He has conceded that.  He has conceded that at the time of intercourse, on one view of it, she was only vaguely awake ‑ ‑ ‑

CALLINAN J:   But after she had had a conversation with him, a perfectly coherent conversation, just looking at his version.

MR ODGERS:   Yes.  So he seems to be conceding that notwithstanding the fact that there was a conversation, a very brief conversation he described it as ‑ ‑ ‑

CALLINAN J:   I suppose it is that question at the foot of page 166, and the answer on the next page:

Q.       And then she woke up and as soon as she realised what was happening she told you to stop and to get off?
A.       That’s what happened.

MR ODGERS:   Of course, that was called in aid to support ‑ ‑ ‑

CALLINAN J:   No, just attend to my question, please, Mr Odgers.

MR ODGERS:   I am sorry, your Honour.

CALLINAN J:   That seems to be the basis, and the sole basis, on his account for the possibility of the alternative, that he was acting recklessly – on his version.  On his version up until then and apart from that he has actually had consent.  It may not have been an explicit verbal consent but he has had consent.

MR ODGERS:   Yes, that is true.

CALLINAN J:   So that that alternative proposition of reckless intercourse depends entirely really – on his version, not hers – depends entirely upon the last question on 166 and the answer on 167.

MR ODGERS:   I, with respect, your Honour, do not accept that. 

CALLINAN J:   Well, where else is the evidence in his version of her being awake and not knowing what is happening or not being awake or only being very, very vaguely awake and not in a state to give consent?  On his version, where is that evidence?

MR ODGERS:   Can I just say this, your Honour, just so that there is no confusion.  The defence case was either she was consenting or he believed she was consenting, he believed it.  It was the Crown which said you can convict him on the basis he is reckless, on his version.

CALLINAN J:   On his version.

MR ODGERS:   On his version, and the judge directed the jury to that effect.  So the directions to the jury convey the idea if on his version he was aware of the possibility she was not consenting, he is guilty.  That is what this appeal is all about.  So the jury is told, “On his version are you satisfied that he was aware that it was possible she was not consenting?”  Now, of course, he has never been asked that question.  He has never said anything about that but, of course, a jury might well say, “On his version it was obviously a possibility that she was not consenting.  He must have been aware of that possibility, therefore he is guilty.”

Now, what was the Crown pointing to as aspects of his version which supported that?  The answer I have given to your Honour – it may not be completely satisfactory – is a combination of he did not ask her; she never said she was consenting; he conceded at various stages she was only vaguely awake; he conceded that it was a very brief conversation at page 164 ‑ ‑ ‑

CALLINAN J:   Those matters and the matter ‑ ‑ ‑

MR ODGERS:   ‑ ‑ ‑ it is “a really brief conversation” at line 40 and ‑ ‑ ‑

CALLINAN J:   And what appears at the foot of 166.

MR ODGERS:   Yes, all of that and, indeed ‑ ‑ ‑

CALLINAN J:   All right.  I understand.

MR ODGERS:   Can I just also make this final point, your Honour, that given that he stopped immediately she said “stop”, that would tend to support a conclusion that he did not know she was not consenting, but the jury may have convicted on the basis that he must have been aware of the possibility.

CALLINAN J:   No, I understand.  Thank you, Mr Odgers.

MR ODGERS:   Thank you.  Your Honours, can I return I think to where I was, which was I was going through the reasons why we say that the Morgan approach, if I could call it that, with respect, should be adopted.  I was I think at page 13 of the written submissions.  I took you to Blobel’s Case as another example.  I will move on then to page 14.  At paragraph (e) we say that – and I have made this point before but I will just restate it – it is very difficult to reconcile the “aware of the possibility” test with the proposition which is that if he believes she is consenting he is not guilty.  I have explained why, because it could only be if he believed it was certain that you could say that it would negate liability because, plainly enough, if he was not certain, he thought it was only highly likely, he would still be aware of a real possibility, he would be guilty on the approach taken ‑ ‑ ‑

GUMMOW J:   I am sorry to take you off your track, Mr Odgers.  Could you just go to the sentencing remarks at the bottom of 314, line 50.

MR ODGERS:   Yes, your Honour.

GUMMOW J:  

I am satisfied, in other words, that the initial penetration was effected whilst the victim was asleep and that during the brief period during which she may have appeared compliant was not therefore any basis on which the offender could have formed legitimately a belief that she was consenting –

That is the approach you complain of, is it not?  Does that encapsulate the approach you complain of or is it some other approach to this question of recklessness?

MR ODGERS:   Your Honour, I will answer it this way.  As I apprehend his Honour, his Honour is sentencing on the basis that the complainant’s version was accepted by the jury and he is sentencing on that basis, the complainant’s version.  On the complainant’s version, while she said she was penetrated when she was asleep, she was somewhat ambiguous about that and she said I think she was in a dreamlike state.  All I understand his Honour to be saying there is that he would still be guilty even if she was in a dreamlike state and appeared to be compliant.  But I do hear what your Honour says and ‑ ‑ ‑

GUMMOW J:   It is just the notion of legitimately forming a belief.

MR ODGERS:   Yes, your Honour, in the Court of Criminal Appeal we did argue that the jury would have understood that there was an objective element to the concept of belief and that when his Honour used the term “reasonably believe” in the summing-up there was reference to was he – I cannot remember the precise form of words, but it was something along the lines of, was he entitled to believe, et cetera.  We have said, well, look, that is really importing an objective element like the Code States and is an error.

Now, that was rejected by the Court of Criminal Appeal because they considered that the ultimate directions said, well, it is not a reasonableness test, it is his own state of mind.  We have not sought to advance that argument here.  Our argument is more focused, that recklessness is a different concept to awareness of possibility.  I know I am repeating myself.  We have contended that the judge never told the jury explicitly that – he was asked to – can I just go back.  He gives a direction to the jury at the end, did he reasonably believe she was consenting.  The defence counsel says, “Your Honour, can you make it clear that he is not guilty if he believes she was consenting” and he does not do that.  So we do complain about that, but that does not really go to the central issue of principle raised by the appeal. 

GUMMOW J:   I took you away from Blobel.

MR ODGERS:   I think I dealt with Blobel, your Honour.  I am on page 14.  I do not have a great deal more to say.  At paragraph (f) ‑ ‑ ‑

HAYNE J:   Sorry, just following on from the matters you have just been discussing with Justice Gummow, does it follow that your argument puts into separate compartments whether the accused had a genuine belief?

MR ODGERS:   Your Honour, as we ‑ ‑ ‑

HAYNE J:   Or the necessary negative of that?

MR ODGERS:   Your Honour, my answer is, the House of Lords held in Morgan that given the mental element, the mens rea of rape is either knowledge that she is not consenting or recklessness in the sense of indifference.  They then proceeded to reason that if it is reasonably possible he believed she was consenting, then it inevitably means you cannot prove the mental element. 

HAYNE J:   Yes.

MR ODGERS:   It negates it.

HAYNE J:   Yes.

MR ODGERS:   So that a belief she is consenting negates indifference.

HAYNE J:   It is to that point I want to come.  That is, the Crown must demonstrate, to establish rape, intercourse with a victim who does not consent – element 1, absence of consent – and demonstrate that the accused either knew the victim was not consenting – plainly that would be rape – or, as the alternative, without a genuine belief that the victim was consenting and aware that the victim may not be, nonetheless went ahead.

MR ODGERS:   Your Honour, we do not accept that.  As we understand it, that is the Crown’s argument that they are putting to your Honours, but we say that that was what Justice Bray in Wozniak said might be a preferable way to approach it to express it in terms of proving that he did not believe that she was consenting but we say, no, the true mental element is, he is reckless as to consent which means he did not care whether she was consenting or not.

HAYNE J:   Is not an element of that indifference, that not caring, demonstrated absence of genuine belief as to consent?

MR ODGERS:   Your Honour, if demonstrated absence of genuine belief would include a situation where if belief means certainty, if you are aware of the possibility that she is not consenting ‑ ‑ ‑

HAYNE J:   Yes, if you want to add “if belief means certainty” that alters the whole ball game.  We are talking about the belief of the accused, reasonable/unreasonable.  We are talking about genuine belief, that is, that is what this man believed, irrationally, without any foundation, and jurors see through that, usually.

MR ODGERS:   Your Honour, I have great difficulty, and it may be my own flaw, but I need to ask the question, are we talking belief as to certainty or belief that something is probable.  If we mean belief that – I believe it because I regard it as highly probable.  I mean, I believe that the sun will come up tomorrow, well, that is something in the future, but I believe that I am standing in the High Court facing four members of the High Court.  I mean, I suppose I am pretty close to certainty but I could be going through some kind of mental breakdown and all I probably can say is it is ‑ ‑ ‑

HAYNE J:   That comes later, Mr Odgers.  That comes later.

MR ODGERS:   Thank you, your Honour – that is highly probable.  That is not a good example but I have given examples on page 14 of various kinds of belief.  I believe that that is the person who committed the crime.  I believe that the Liberal Party is going to win the next State election, or vice versa.  These are all beliefs I might hold but I would readily concede that there is a possibility that the opposite will hold.

I believe it but I recognise the possibility that I am wrong.  On the approach of the Court of Criminal Appeal I am guilty because that belief will not negate liability because it is satisfied by an awareness of the possibility of non‑consent.  I know I am repeating myself but that is why I say that – if we understand belief to extend to a situation where you think something is probable or likely, I believe that she is consenting, it is highly likely that she is, that person should not be convicted but under the approach of the Court of Criminal Appeal would be.  That is the best I can do in answering your Honour’s question.

HIS HONOUR:   Yes, thank you.

MR ODGERS:   Back to 14, paragraph (f), our contention is that the courts have been in a sense led astray by the daily formulation, which begins with this focus on awareness of risk, awareness of possibilities, and that in truth you do not need to get a jury - you do not need to ask a jury to even look at that.  The Court of Criminal Appeal, on their approach, says, “Well, a jury would have to be told if you’re satisfied beyond reasonable doubt that he was aware that it was a slight possibility she wasn’t consenting, then he’s not guilty.  But if you’re satisfied beyond reasonable doubt that he was aware that it was a real possibility then he is guilty.”

We submit that this is fanciful; this is not the real world.  It would be far preferable for this Court to endorse the approach of the House of Lords in Morgan, which does not even talk about possibilities or probabilities but, rather, says to a jury very simply, “Has it been proved beyond reasonable doubt that the accused did not believe that consent was present and simply didn’t care whether the complainant consented or not?”  That direction is, we say, the proper approach to recklessness.  It is the proper approach to imposing liability in cases of this sort.  It is simple, it is understandable and

it makes sense.  It will make sense to juries and it can be easily applied by them.

Your Honours, at paragraph (g) we go off on something of a side wind, but we do it for the purpose of inviting your Honours to consider that the approach we submit should be adopted also solves the problem of what has been called “inadvertent recklessness” because the whole problem of inadvertent recklessness grew out of directions to the jury in terms of “Was he aware of the possibility?  Was he aware of the risk?”  That presented difficulty in cases where the accused did not even bother to turn his mind to it.  For that reason, the courts in New South Wales have said, “Well, there is a different kind of recklessness.  It is inadvertent.”  We say, in truth, it is no different from Morgan indifference.  It is, “I am not even going to turn my mind to whether she is or she isn’t, whether it’s possible or not.  It’s irrelevant to me.  I’m indifferent.  I don’t care.  I couldn’t care less.”

We say that that is just an application of the Morgan principle.  Where it is true inadvertence, where a person is completely and utterly intoxicated or suffers from some mental problem, it would be quite wrong, we say, to make that person guilty, and we call in aid the observations of Justice Kirby in WJI last year.

Now, your Honours, that is the essence of our argument.  I rely also on what is contained at page 18.  I have taken your Honours to that.  That is where we say we rely on Morgan, the judge did not direct in terms of Morgan.  If we are wrong about that we ask your Honours to adopt the approach of the House of Lords in G, which we say is an alternative approach that should be adopted.  But we say in paragraph 36, even if all of that is wrong, the appeal should be allowed because of the matters referred to in paragraph 36.

In our written submissions we have responded to some extent to the Crown’s arguments but it may be preferable, your Honours, rather than me attempt to meet them now, for me to do so in reply.

GUMMOW J:   Yes, I think so.

MR ODGERS:   Those are our submissions.

GUMMOW J:   Thank you.  Yes, Mr Smith.

MR SMITH:   Your Honours, just going back, the appellant was convicted on 10 September 2003 on the charge that on 6 October at Bellingen he did break and enter the dwelling house of the complainant and committed a serious indictable offence, therein namely sexual intercourse with the complainant without her consent knowing she was not consenting. The serious indictable offence was against section 61I of the Crimes Act and that is set out in annexure A to the appellant’s submissions, that is:

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

As it is clear, the issue in this appeal is about the proper directions for the expression that someone is “reckless” and section 61R of the Crimes Act, also set out in annexure A, in subsection (1) says:

For the purposes of 61I, 61J and 61JA, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

Those particular provisions in 61I and R were introduced into the Crimes Act as a result of a significant piece of legislative amendment that dealt with sexual assault and the well‑known architect of that amendment was the now judge, Dr Greg Woods, QC, who is the director of the Criminal Law Review Division.

Although the second reading speeches in relation to the Crimes (Sexual Assault) Amendment Act 1981 (NSW) do not really contain any assistance for the Court in relation to how to interpret particular sections, Dr Woods did publish, with the authority of the Attorney-General and with his foreword, a commentary, and I would be seeking to circulate copies of that commentary in response really to the reply and taking you to a particular part of it where Dr Woods sets out 61D, which was the predecessor to 61R, so when the amendments were originally made 61R was in 61D. It was 61D(2) and my learned friend has put that in his chronology but 61D(2) said that:

For the purposes of subsection (1) –

which was an offence of sexual intercourse without the consent of the other person knowing that the person was not consenting –

a person who has sexual intercourse with another person without the consent without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse shall be deemed to know that the other person does not consent –

If I could circulate ‑ ‑ ‑

MR ODGERS:   Your Honours, I object to this.

GUMMOW J:   We had better have a look at it first, if we are going to rule on it, I suppose.  Does your opponent have a copy?

MR SMITH:   Yes.  Your Honours, if I could take you to page 15 of this document ‑ ‑ ‑

GUMMOW J:   Wait a minute.  So, what are the grounds of the objection?

MR ODGERS: Your Honour, as I understand it, this is being relied on as extrinsic material bearing on the proper interpretation of section 61D. My understanding of this document, it was written some months after the legislation was enacted and is, in my submission, simply an expression of opinion by someone who may have been involved at some stage in some of the reform process ‑ ‑ ‑

CALLINAN J:   But you say it is not within the Acts Interpretation Act.

MR ODGERS:   That is what I say.

CALLINAN J:   It may be useful, nonetheless, as an informed commentary ‑ ‑ ‑

MR ODGERS:   Your Honour, I did not have any notice of this.  I have not prepared any coherent argument as to the ‑ ‑ ‑

GUMMOW J:   We can give you the chance to do that.

MR ODGERS:   Thank you, your Honour.  Well, perhaps it may be a matter for written submissions.

CALLINAN J:   I would not think that your opponent would be seeking to rely upon it as material within the Acts Interpretation Act.

MR ODGERS:   If that is the case, then I ‑ ‑ ‑

MR SMITH:   No, I am not.

CALLINAN J:   I see you are concurring in that.

MR SMITH:   It is just a commentary which would assist, we would submit.

MR ODGERS:   On that basis then, I do not have an objection.

GUMMOW J:   You can look at it over lunchtime, Mr Odgers.

MR ODGERS:   Thank you, your Honour.

GUMMOW J:   I do not think it is catastrophic.  Yes, Mr Smith.

MR SMITH:   Your Honours, I have it here.  I was not necessarily ‑ ‑ ‑

GUMMOW J:   Page 15.

MR SMITH:   Yes, page 15 deals with the subsections of 61D, which covers both the equivalent of 61I and 61R, and then it sets out:

Subsections (1) and (2), read together, mean that the mental element required for the new category 3 offence is substantially the same as the mental element required in relation to the common law offence of rape. 

They refer to Daly and the quotation, discuss Morgan, which has been mentioned here, Brown, which was mentioned in the South Australian matter, Wozniak, and the learned author goes on to say:

The proposition that recklessness as to consent suffices as the required mental element of rape is made quite clear in these decisions, and accordingly section 61D(2) is not a novelty. It is emphasized that recklessness for the purpose of that subsection is intended to mean, and clearly does mean, subjective recklessness. The erroneous use of the term “recklessness” as synonymous with “gross negligence” is unfortunate and to be avoided.

CALLINAN J:   Why is that?  Just remind me why that is so?  You are adopting that as a submission, are you not?

MR SMITH:   Well, yes, I am, but I am leading up to the bit I am adopting perhaps, and your Honours can read this if you wish, but down the second‑last paragraph – there was a question his Honour Justice Gummow asked my learned friend as to was not the New South Wales law really just based on Morgan.  What the learned author says is:

Both in England and New South Wales it is a defence to a charge of rape if the accused honestly believed at the relevant time that the other person consented to the sexual act alleged.  More accurately, the Crown must prove that the accused, at the relevant time, foresaw at least the possibility of non-consent, but went ahead regardless.  Any reasonable possibility that at the relevant time the accused held an honest belief that the other person did consent, must be eliminated by the prosecution.

I am mainly referring to it to show that here is an early source, in 1981, in an official government document written by the man in charge of the unit responsible for the drafting of the rape reforms, that is the thinking of him, that the test, “the Crown must prove that the accused, at the relevant time, foresaw at least the possibility of non-consent, but went ahead regardless” is something that has been around in discussion in legal circles, in looking at the New South Wales amendments, for a long, long time.

As has been said in both written submissions, there is no definition of “reckless” or “recklessness” in the legislation.  In paragraph 1 of our submissions we set out a concise statement of what we see is the issues in this case and that is whether recklessness ‑ ‑ ‑

GUMMOW J:   Do you accept the appellant’s summation in reply, paragraph 2, as to what the issue is?

MR SMITH:   Yes, we say it is the same as under the common law.

GUMMOW J:   No, but do you accept the statement in paragraph 2 of the appellant’s reply as a statement of the issue where you join and where you depart?

MR SMITH:   Well, we do not argue that the Morgan definition of “recklessness” should be understood as absence of belief of consent.  We come on to some of the cases that have been decided in England subsequent to Morgan seeking to interpret Morgan and the subsequent Sexual Assault Amendment Act I think it was called – I cannot remember the name of it – section 1.

GUMMOW J:   Do you accept the statement in the first two sentences in paragraph 2?

MR SMITH:   Well, we do, but not totally.  I mean ‑ ‑ ‑

GUMMOW J:   We have to get some clear understanding of where the ground is between you.  It is not necessarily a reflection on you.

MR SMITH:   Paragraph 5.3 of our submission, which is at page 5, does say that section 61R refers to an alternative mental state less than actual knowledge of recklessness. The accepted definition of that mental state is the definition propounded by the House of Lords in Morgan.  But we accept that Morgan sets it out clearly, but we submit that there are other wordings that still fit within the Morgan definition that have been coined or used in other courts.  We submit that the New South Wales decisions, including the direction given in this case, as accepted as correct by the Court of Criminal Appeal, are consistent with the Morgan definition.

GUMMOW J:   We are trying to construe a statute.  We are trying to construe the word “reckless” in this particular statute.

MR SMITH:   Yes.

GUMMOW J:   It is not good telling us that we just look at various judgments in various particular factual situations and scratch around and come up with some particular answer in a particular case and then answer this appeal.

MR SMITH:   That is true, but one of the reasons I have referred to the ‑ ‑ ‑

GUMMOW J:   At the moment we are not being assisted greatly by either side, if I may say so.

MR SMITH:   Well, I am sorry if that is the case, your Honour.  I will do my best to assist as much as I can.  If I may continue.  My friend has referred to the two occasions where directions were given on recklessness in his summing‑up at appeal book 263 to 264 and again at 307 to 309.  I do not propose to go into those in any great detail except to say that the Court of Criminal Appeal in paragraph 70, which is at page 392 of the appeal book, in effect, set out the contest:

Counsel for the appellant contended that the direction given by the trial judge at p 72 of the transcript of the summing‑up –

and that is the second direction, the one at appeal book 307 to 309 –

that “if he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness” and the substantially similar direction given at pp 72-73 of the transcript of the summing‑up, that “he was reckless in the sense that … he recognised that there was a possibility that she may not consent but he went ahead and did it anyway” were erroneous.  It was contended that the mental state required for recklessness as to whether the complainant is consenting to sexual intercourse is not established by proof of an advertence by an accused person simply to the possibility of absence of consent on the part of the complainant.  An awareness of the possibility of absence of consent would only constitute the mental state required for recklessness, where it is accompanied by a determination on the part of the accused person to engage in sexual intercourse with the complainant whether or not she is consenting, that is to say a determination by the accused person to engage in sexual intercourse with the complainant, not caring whether the complainant is consenting.

Now, we do take up some questions raised by Justice Callinan towards the end of my friend’s submissions that on the version as put in the trial in his evidence‑in‑chief, and then in cross‑examination he adhered to it, of what actually happened there did not appear to be much room for any suggestion of ‑ ‑ ‑

CALLINAN J:   I formed a slightly different view when I read that question and answer, Mr Smith, at the foot of page 166 ‑ ‑ ‑

MR SMITH:   But I thought your Honours might be assisted if I took you to actually what the basis was.  Firstly, the issue of the recklessness was really raised by a submission made by the Crown in its closing address.  That is at page 223 of the appeal book.

CALLINAN J:   Could I just say to you before you go on that when I read that question and answer at the foot of 166 and the top of 167 I could see that there was a basis upon which a submission could be made of recklessness.

MR SMITH:   Yes, I appreciate that and I understand that, but I submit that it is still important to see just how the issue was raised through counsel.

CALLINAN J:   What page is that?

MR SMITH:   Page 223 of the appeal book, your Honour, up the top.

CALLINAN J:   Thank you.

MR SMITH:   This is at the conclusion of an address which is saying to the jury, “Look, the complainant is a credible witness.  She says these things commenced while she was asleep.  She woke up feeling the appellant having intercourse with her.  His penis was inside her vagina or he was trying to get it in.  She ultimately said it was in.  That she put her arms out.  She put her arms out, felt his head – he had a shaven head – and realised who it was, that it was her cousin, and immediately told him to get off and pushed him off, and that was it, that there had been no discussion before that.”  That was the basis of the Crown case in this matter, the reliance on her, plus a number of shifting excuses and versions given by the accused.  There were four versions which I will come to.  What my learned junior said was:

If I might just say this . . . it would be open to accept that even on his version the most favourable version that you could possibly accept in this case, the Crown would say to you that the accused has even on that version been reckless as to whether or not she consented to intercourse.  You see on his version he says that she was “vaguely awake.”  Not fully comprehending what is going on around her, and it was at this time that intercourse took place, and the Crown would say to you that he did not try to find out whether she was going to be consenting.

CALLINAN J:   Did he actually use the words “Not fully comprehending”?  That is a bit of a flourish, is it not?

MR SMITH:   I think that is the submission by the Crown, that she was “vaguely awake”, yes.  He just went ahead ‑ ‑ ‑

CALLINAN J:   It is a bit of an extension of being vaguely awake, is it not?

MR SMITH:   Yes, perhaps that is so, but I will bring you to the particular evidence that he ‑ ‑ ‑

CALLINAN J:   He says “irregardless” ‑ ‑ ‑

MR SMITH:  

He just went ahead and did what he wanted to do irregardless of whether she would consent or not.  The Crown is not saying to you that that is the version you would accept because the Crown quite clearly is putting to you that this accused, as he gave his evidence over here, tried to brave it out and lie to all of you, and that in fact what happened was what [the complainant] said occurred to her in that bedroom, and that is that the accused did not give her any opportunity to consent whatsoever.  She was asleep at the time that she was penetrated, and the time when he started to have intercourse with her.  There cannot be a question of consent in that case.

CALLINAN J:   But the defence joined issue on that alternative basis.

MR SMITH:   Yes, they did and we submit that the jury’s verdict was an acceptance of that version, particularly as they rejected in the break and enter.  He said he did not break and enter.  They found him guilty of that aspect of it and, in fact, there were good reasons for them to reject it.  One of them is that when he was originally arrested ‑ ‑ ‑

CALLINAN J:   He gave different versions ‑ ‑ ‑

MR SMITH:   Yes, he gave a lot of versions, but the version that this “vaguely awake” – if you look at appeal book 363, it sets out a passage of evidence that he gave on 26 March 2003, some months before the trial, in another hearing ‑ ‑ ‑

CALLINAN J:   He was arraigned earlier and the trial judge would not accept his plea of guilty.  That is what happened, was it?

MR SMITH:   That is right, and it is in those proceedings that he gave this evidence.  He actually reversed his plea.  I do not know that his Honour rejected it ‑ ‑ ‑

CALLINAN J:   Yes, I thought – anyway, it does not matter he ‑ ‑ ‑

MR SMITH:   Yes, and his Honour accepted the reversal.  But at page 363 of the appeal book, down the bottom, the question was:

why did you go into her room and force sex upon her whilst she was sleeping?
A.       Well, I went into the house and upstairs and I called her name, woke her up while she was – like was asleep on the bed and I just sat down on the end of the bed and I shook her and talked to her name – like, said her name and that and she sort of vaguely woke up and then I laid down and just started sort of hugging and kissing and one thing led to another and that was it so, and then I was told to leave a couple of minutes later.

Now, there was no suggestion when he gave that version, and it is consistent further down the page, that there was any real discussion, stroking and all this before the sexual intercourse occurred.  So his evidence in the trial was another version, let us say, a more favourable version to his case than what he said here.

CALLINAN J:   Mr Smith, I do not suppose the view is open that it was such a strong primary Crown case that the question of recklessness or not really does not arise?

MR SMITH:   We submit the case was strong enough ‑ ‑ ‑

CALLINAN J:   That a conviction was inevitable on the primary case.

MR SMITH:   Yes, that would be our submission but seeing as it was raised by the Crown and because the version given by the accused in the trial was quite contrary to what the complainant was saying, his Honour gave the direction which was appropriate and once he gives the direction he has to give it correctly.  But, in our submission, it was a very powerful Crown case of lack of consent and knowledge of that lack of consent and that the jury would have inevitably convicted anyhow.

CALLINAN J:   It is very hard, is it not, to accept his version when the television was turned off and he left his glasses on top of the television set?

MR SMITH:   Yes, and he has broken in, all those things, and ‑ ‑ ‑

CALLINAN J:   And broken in, silent entry, and then of course he says he called out, but even still ‑ ‑ ‑

MR SMITH:   That is right.  The jury did not accept it, obviously.  We say that what his Honour said about recklessness is not really determinative of what happened in the trial, but nevertheless he said it and it has to be looked at. 

The appellant argues in his reply that the cases we have footnoted at 1 in our submission at page 5 – this is in support of a submission that it is clearly established in New South Wales, as in the other common law States, that the mens rea for the offence is the intention to have sexual intercourse either knowing the other person does not consent or with a state of awareness less than actual knowledge of non-consent, usually described as awareness of the possibility that the other person may not be consenting.  The appellant argues that the cases that we have footnoted there at 1 – Hemsley, Kitchener, Tolmie and others – do not support our contention, and he argues that in his reply.             We submit that they do, and I am going to take you to Hemsley and other cases in support of that.  Do your Honours have the decision of R v Hemsley (1988) 36 A Crim R 334?

GUMMOW J:   Yes.

MR SMITH:    It is a decision of Justice Yeldham, with whom Justices Carruthers and McInerney agreed.  This is a case of a party at a farmhouse, lots of alcohol drunk and several instances of sexual intercourse with the complainant, and his Honour gave a direction, among other things, on recklessness.

At page 336 of the decision where the trial judge was talking about the situation where the girl did not consent and his Honour continues that the:

state of mind at the time of the act of intercourse might be that he actually knew she was not consenting -

which is a guilty state of mind. 

On the other hand, the man’s state of mind might be that he honestly, though wrongly, believed the girl was consenting to intercourse.  That is not a guilty state of mind . . . 

Between those two situations, on the one hand the knowledge that the girl does not consent and on the other hand an honest though mistaken belief that she does, there lies a third possible situation, where the man does not actually know either way but is reckless as to whether the girl is consenting or not:  that is to say, his state of mind is such that he realises the possibility that she is not consenting but chooses to proceed to have intercourse notwithstanding.  The law says that is a guilty state of mind.

So clearly in this trial this judge raised that as a specific direction.  That is the type of recklessness he described.  Then his Honour considered submissions on behalf of the appellant Hemsley that – this is down the bottom of page 336:

that his Honour should have directed the jury that the appellant realised the probability rather than the possibility that the victim was not consenting.

He relied upon Crabbe, and there is some discussion in the joint judgment of the High Court in Crabbe.  His Honour Justice Yeldham at 337 discusses that, but says at about point 4:

In my opinion that decision, and the principle which it enunciates, and which, as the House of Lords reminded us in Hyam v DPP (1975) AC 55; 59 Cr App R 91, has long been the law as far as murder is concerned, has no application to the crime of rape or to the statutory provision in s 61D, subs (2) that a person who is reckless as to whether his victim consents shall be deemed to know that she does not. The latter reference, of course, is to the offence provided for in subs (1) of s 61D which involves proof that the accused knows that the other person does not consent to the sexual intercourse. The two concepts, that is to say the malice involved in murder and the knowledge involved in rape or an offence under s 61D, are entirely different as are the requirements in each case concerning recklessness. In my opinion the recklessness to which s 61D refers is the same as was sufficient to constitute the necessary mental element in the common law offence of rape.

He refers to Daly, then Morgan and several cases in New South Wales and quotes from Sperotto and even though that was later overruled in McEwan on one aspect – that is the question of I think honest and reasonable belief – and he says:

The fact that Sperotto’s case was later overruled in McEwan [1979] 2 NSWLR 926; 1 A Crim R 242 as a result of the decision of the House of Lords in Morgan’s case in no way affects the passage referred to which, in my experience, is always the standard test put to the jury in the case of the crime of rape and where an offence under s 61D of the Crimes Act is charged.  In this respect I think what is said in P Gillies, Criminal Law (1985) pp 459-460 concerning recklessness in relation to the crim eof sexual assault under s 61D is entirely accurate.

In my opinion, this ground of appeal fails.

The next case that was referred to in footnote 1 – I am not going to all of them, just a few – was Kitchener (1993) 29 NSWLR 696. At page 700 of that decision – it is a decision of Justice Carruthers with whom the President, Justice Kirby, and Justice Smart agreed. At 701B his Honour said:

The first ground of appeal is expressed in the following terms:  “The learned trial judge erred in directions he gave concerning mens rea (see 9-11, s/u.”

This ground focuses upon the following passage in his Honour’s summing‑up (at 10):

“The Crown has to prove beyond reasonable doubt that the accused at the relevant time of the intercourse foresaw at least the possibility that the girl was not consenting, but went ahead regardless –

and that is what we say is the equivalent of what was said here by his Honour the trial judge –

or he failed to avert (sic) at all to the question of whether she was consenting and just went ahead.

That is the type of direction my friend does not object to, as I understand it, non‑advertent recklessness –

In other words, he treated consent, as far as he was concerned, as entirely irrelevant.  So there are two aspects I have just told you of in relation to that deemed knowledge coming from recklessness.  It is foreseeing that leads to a possibility that she is not consenting, but going ahead regardless, or failing to even avert (sic) to the question in the situation in which he was and which he wanted.”

His Honour, Justice Carruthers, said:

Thus, the trial judge put the issue of consent to the jury on three bases –

knowledge that he was not consenting –

that the appellant adverted to the possibility that the complainant was not consenting, but that he went ahead regardless of this possibility; and that the appellant failed to advert to the question of consent at all.  The appellant submitted that the directions on the third basis . . . constituted a misdirection –

so he was challenging the non‑advertent recklessness and that is what is usually challenged in these cases we have referred to, whether that is an appropriate principle and whether that is consistent with Morgan.  Down the bottom of the page, at subsection G:

It was submitted that recklessness within the meaning of s 61D(2) necessarily involves an advertence by the accused to the possibility that the complainant was not consenting. The direction of the trial judge was therefore bad in that it did not direct the jury to the need for the Crown to prove that the appellant had adverted to the possibility of non-consent. It was submitted that the requirement in relation to mens rea in cases under s 61D(2) is the same as that at common law in relation to rape: namely, that the Crown must establish beyond reasonable doubt, either that the accused was aware that the complainant was not consenting, or else realised she might not be consenting and yet determined to have intercourse whether she were consenting or not.

HAYNE J:   Can I take you away a moment just before the adjournment and back to where we have to begin and end, namely, the statute? 

MR SMITH:   Yes, your Honour.

HAYNE J: Section 61I defines the offence with an element of knowledge, “who knows the other person does not consent”. Section 61R amplifies what is without consent. To demonstrate contravention of 61I, you must demonstrate (a) intercourse, (b) intercourse without consent from the victim, then, (c) knowledge that the victim did not consent.

MR SMITH:   Yes.

HAYNE J:   There are three paths that then are before you about absence of consent.  Firstly, prove beyond reasonable doubt that the accused knew the victim did not consent.  Two, prove beyond reasonable doubt that the accused did not hold an honest, albeit mistaken, belief in consent.  Third, which is produced by 61R, is an element about knowledge - prove beyond reasonable doubt that the accused was aware that the victim might not consent and went ahead anyway, is, I understand, what you submit, whereas the applicant submitted in the Court of Appeal and here again, that there is what the Court of Appeal said in paragraph 79 of their reasons, an “additional, independent requirement” that the accused “is determined to have sexual intercourse with her, whether or not she is consenting”.

The question which is thus presented is where, in the language of the statute, and the relationship particularly between 61I and 61R, is there a foothold for, or requirement of this additional independent requirement.  Now, you can read to us lots of authorities that have said lots of things but at some point, Mr Smith, you are going to have to grapple with that question.  You can do it after lunch or now, as you choose.

MR SMITH:   I will start, because that is not something we are putting.  That is an additional element, as it were, that my friend says has to be there.

HAYNE J:   Yes.

MR SMITH:   We say it does not, but that is not how “recklessness” has been interpreted, and I know that it is difficult just having the word “reckless” in the statute but it is deemed to be knowledge, in effect, and we say it comes from a situation that with sexual assault, that is a social action where somebody else’s body is going to be ‑ ‑ ‑

HAYNE J:   I want you to grapple with the words.  In particular, the point that at the moment I struggle with – with Mr Odgers’ argument – is that 61R provides that something is taken or that the accused:

is to be taken to know that the other person does not consent –

that is, it is a conclusion about knowledge, and at the moment I do not see how there can be a hook in the words that would provide for the additional independent requirement that he is determined to have intercourse with her whether or not she is consenting as an additional and separate element of intention different from what appears in 61I, namely, knowledge.

MR SMITH:   Your Honour, we do not disagree with your difficulty.  We say it is not there, but I will come back to that after lunch, if I may?

GUMMOW J:   Very well, 2.00 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GUMMOW J:   Yes, Mr Smith.

MR SMITH:   Thank you, your Honour.  Just before the lunch break his Honour Justice Hayne asked me about this expression that had been used in paragraph 70 in the Court of Criminal Appeal report, an expression that my learned friend is pressing, that as an element, as it were, of recklessness there had to be:

An awareness of the possibility of absence of consent would only constitute the mental state required for recklessness, where it is accompanied by a determination on the part of the accused person to engage in sexual intercourse with the complainant whether or not she is consenting, that is to say a determination by the accused person to engage in sexual intercourse with the complainant, not caring whether the complainant is consenting.

He was asking how that fits in to recklessness as incorporated in section 61R of the Crimes Act (NSW). If I could say this, in general law recklessness requires a foresight of possible consequences. In the context of rape that has been said as an awareness of the possibility that the complainant is not consenting.

GUMMOW J: Section 61R(1) is a deeming provision in a way, when one is to be taken to know something.

MR SMITH:   Yes, thank you, your Honour.

HAYNE J:   And knowledge concerned is knowledge of consent, or absence. 

MR SMITH:   Yes.  In the decision of the Heilbron Report that your Honours have kindly circulated at paragraph 77 on page 12 and 13, the Committee said:

It seems to us that the most important aspect of the Morgan judgment, and one which has been almost wholly overlooked in comment on it, is that for the first time it has been stated clearly and unambiguously that recklessness as to whether the woman was consenting or not was sufficient mens rea for a conviction.  This was a matter of very considerable significance, not only in strengthening the law relating to the crime of rape, but also in having very important wider implications for the criminal law as a whole, particularly in regard to crimes of personal violence.  We believe that the emphasis on recklessness will in future cover a considerable range of cases.  For example where a burglar has sexual intercourse with an occupant against her will, and the claim of belief in consent is raised, a direction as to recklessness in regard to the lack of consent will no doubt be included in the summing‑up.

At the time of Morgan, of course, the law as to recklessness ‑ ‑ ‑

GUMMOW J:   The assumption in 61R(1), is it that the relevant mens rea element is “taken to know that the other person does not consent?

MR SMITH:   Yes.

GUMMOW J:   That is the statutory concept of the mens rea?

MR SMITH:   Is “taken to know”, if reckless, yes.

GUMMOW J:   Yes, “does not consent”.

MR SMITH:   Yes, and that is one of the elements of the offence, of course.  But the concept of recklessness or the understanding of recklessness at the time of Morgan was Cunningham and effectively Cunningham said that recklessness was a realisation of the possibility that some such injury might occur but nevertheless proceeding with the act.  If I can take you to Lord Steyn in R v G, which has been referred to earlier by my learned friend, at page 1059C, under the heading “The pre‑existing law”:

In enacting section 1 of the 1971 Act Parliament must be presumed to have been aware of the relevant pre‑existing law.  The best evidence of the state of the law was the reserved judgment of the Court of Criminal Appeal in R v Cunningham [1957] 2 QB 396. Giving the judgment of the Court of ‑ ‑ ‑

GUMMOW J:   They were construing the word “malice”, were they not, in the 1861 Act, in the Malicious Damage Act 1861?

MR SMITH:   Well, yes, they were, and in New South Wales, of course, we have a statutory definition of “malice” which includes recklessness which this Court and other courts have said is a hotch‑potch and really does not help much.  But there they said:

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).  It is neither limited to nor does it indeed require any ill will towards “the person injured”.

This was taken from originally Russell on Crime.  I think it was the view expressed by Mr Turner in his criminal law book in the 1^st edition.  So we submit that that was the state of recklessness as understood by the courts when Morgan pronounced that recklessness was a lesser form of mens rea than the actual knowledge of lack of consent, but would still apply to rape under the common law. 

In fact, the recommendation of the Heilbron Committee was that things be regularised by enacting a statute concerning sexual assault on the basis that although Morgan did go into some clarification of recklessness, it was not really the question that it was asked to answer.  The question was about whether an honest mistake by the accused that the complainant was consenting was sufficient to get an acquittal.  So at paragraph 83 at page 14 there was a recommendation about legislation.

Now, of course, New South Wales has proceeded on that understanding of recklessness when it enacted these provisions in 1981 and although Caldwell was decided, I think in 1981, cases such as R v Coleman (1990) 19 NSWLR 467, which was a decision of the New South Wales Court of Criminal Appeal which dealt with recklessness, examined the meaning of the expression and a direction given by the trial judge and giving a direction that the concept of recklessness is a realisation of the “possibility that injury might result but nevertheless proceeded to act”, and he followed what had been long accepted as the correct direction which was based on the English decision in Cunningham at 399 to 400.

Now, although Caldwell then became the law in England, in our written submissions we have given examples of how in the area of sexual assault – this is starting at paragraphs 5.7 and continuing – developed.  In Pigg, as I refer to at 5.7, the court applied the definition of “recklessness” in Caldwell and Lawrence to rape and defined recklessness in rape as:

a man is reckless if either he was indifferent and gave no thought to the possibility that the woman might not be consenting in circumstances where if any thought had been given to the matter it would have been obvious that there was a risk she was not, or –

and I emphasise the word “or” –

that he was aware of the possibility that she might not be consenting but nevertheless persisted regardless of whether she consented or not.

Now, in this definition indifference was equated with giving no thought to consent.  Then we go to the case of Satnam in 1984 where the Court of Appeal did not adopt either of these older aspects of lack of consent.  They propounded an alternative formulation that focused on whether the accused had no genuine belief that the complainant consented.  He said:

If, after considering those circumstances, they were sure he had no genuine belief that she wanted to, they would find him guilty.  If they came to the conclusion that he could not care less whether she wanted to or not, but pressed on regardless, then he would have been reckless and could not have believed that she wanted to, and they would find him guilty of reckless rape.

This concept of no genuine belief, although it was not referred to, was what Chief Justice Bray had been discussing in Wozniak and we go on to describe in our submissions on pages - bottom of 6 through 7 and onwards - that that way, according to the English Courts, is consistent with Morgan and is a reasonable interpretation, probably a better interpretation for recklessness than has been given so far.

Our main submission is that various judges in England and in South Australia and Professor Smith in his commentary in Gardiner, who we refer to at paragraph 5.17, are pointing out that indifference or could not care less is an aggravating factor, not a condition of guilt.  If the accused is uncertain of consent and aware of the possibility that there might not be consent but takes the chance and proceeds anyway, that is recklessness.  Non-advertent recklessness is regarded as an instance of having intercourse without a belief in consent.  Professor Smith – I have not put that in my case list – but we do rely on what Professor Smith says in Gardiner [1994] Crim LR 455 at 456 because that seemed to be the inspiration for some of the later decisions on this question of recklessness in the English courts.

So that we would submit that the best guidance for what the statute means is to look at the state of the law at the time and the state of the law was what had been said in Cunningham and that Morgan had reflected that and that Cunningham is now the law again, effectively, as a result of G.  For 23 years it was not, according to Caldwell, Lord Justice Diplock, but it has come back to that. 

If I can just continue with what I was saying before, we submit that in Tolmie (1995) 37 NSWLR 660 at 663, which is a decision of Justice Kirby, President Kirby as he then was, at paragraph C where he refers to the trial judge’s direction, which is, we submit, consistent with his Honour’s direction in this case and what the Court of Criminal Appeal in this case held to be a correct direction and his Honour’s discussion of it at 665, 666 and 672 is consistent with the point we had made in the early paragraph of our submission and that Justice Newman’s judgment at 678 and 679 looking at the same issue is also consistent.

Now, admittedly, the challenge in Tolmie again was a challenge to non-advertent recklessness.  There was no challenge to the advertent recklessness direction.  My friend referred to one of our cases which I had a minute ago of Blobel, but I would take you to an earlier page.  Do your Honour’s have that?

GUMMOW J:   Yes.

MR SMITH:   At paragraph 25 dealing with ground 3, the Chief Justice, Justice Doyle, said that:

The judge directed the jury that to convict they must be satisfied beyond reasonable doubt that Mr Blobel knew that Mrs Blobel was not consenting to intercourse, or that he “was recklessly indifferent about the consent of the victim in having the intercourse.”  He expanded on that as follows:

“Reckless indifference is where the accused realises the possibility that the victim may not be consenting but he, nevertheless, proceeds with the intercourse.  However, if there is a reasonable possibility that the accused did have a belief that the victim was consenting to the intercourse, then this third element cannot be made out.”

Now, whether that last bit is correct it is not – unfortunately, the word “reasonable” is, say, a word with explosive tendencies in this area, but the primary part of the direction, the first part, is consistent with the direction in this case, we would submit.  That decision, in our submission, is consistent with the way the law has been interpreted in South Australia.

His Honour referred at paragraph 28 to Wozniak and went into that in some detail and although my friend says that the South Australian courts have fallen into error in following what his Honour Chief Justice Bray said in Wozniak about recklessness in the sense that a statute has subsequently intervened, the decisions since then have accepted that the statute applies the common law where it refers to recklessness.  That is the situation in New South Wales as well, and in England up until recent amendments.

This aspect that my friend is putting as, as it were, a mandatory element in the proper direction on advertent recklessness, we submit whilst it is an expression that has been used on occasions in some of the judgments as a way of articulating recklessness there is just no authority to say that without that you do not satisfy the test of recklessness and you cannot be convicted under section 61R, using the definition of “recklessness” deeming it to be knowledge under 61R.

Just on the subject of Wozniak, my learned friend submitted that his Honour effectively abandoned that concept that he had come up with on page 73 of Wozniak:

that it might have been preferable to define the mental element in rape negatively rather than positively.

But, he basically said later on, because it has not developed that way and is now a new statute referring to reckless indifference that maybe he would not press it but, in effect, his Honour came back to it subsequently.  Again we submit that what he said at page 74 in that middle paragraph is consistent with the directions in this case and, we would submit, indicative correctness.

I cannot find it, but I would submit that, as the English courts have developed a similar proposal that instead of saying that it is committed by a man who has intentional intercourse with a woman without her consent knowing that she is not consenting or recklessly indifferent as to whether she is consenting or not, that it might have been preferable to say that the crime is committed by a man who has intentional intercourse with a woman without her consent and without any belief on his part that he has that consent.  But that is not what we have to defend. 

We have developed that to an extent to show how the law of recklessness has developed elsewhere, but, in our submission, as we say at paragraph 30 at page 11, in Victoria the position is substantially the same as New South Wales. The statutory provision section 38(2)(a) of the Crimes Act states the test as whether the offender was “aware that the person is not consenting or might not be consenting”.  The word “reckless” is eschewed and the critical issue is what the accused believed. 

In Lucin the trial judge had directed the jury that the Crown had to prove the accused realised the complainant might not be consenting “and determined to have intercourse with her whether she was consenting or not”.  That is an expression my friend has latched on to which is in other judgments as well.  But we would submit that it was questioned in that case whether it was necessary under the statutory formulation to add the words “and determined to have intercourse with her, whether she was consenting or not”, but the Court was not called on to decide the issue.  So I did not get much help out of that. 

In this Court’s decision in WJI (2004) 210 ALR 276, which we refer to at paragraph 5.31, the summing‑up on knowledge of lack of consent which was held to be correct was in terms that:

The accused knew [the victim] was not consenting or may not be consenting and proceeded regardless.

There was no additional requirement of indifference or determination to have intercourse regardless of consent.  The direction on mistaken belief was consistent with Chief Justice Bray’s formulation.  The Crown must therefore prove beyond reasonable doubt that the accused held no mistaken belief that the victim consented to having sexual intercourse with him.  We refer in our footnotes to the judgments of Chief Justice Gleeson and Justices Gummow and Heydon. 

We go on to refer to the situation in Canada where recklessness has been defined as:

It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk.  It is, in other words, the conduct of one who sees the risk and who takes the chance.

Really, that is what his Honour was directing the jury on here, but, of course, this was not really a recklessness case.  This was a case where, we submit, recklessness played a very small part and that, indeed, it was a question of knowledge that she was not consenting, that the jury had a great deal of evidence to support the Crown contention and they had a great deal of material to reject the accused’s statement. 

The accused’s version was so far apart from the complainant’s version of events which was supported by complaint evidence soon afterwards and her reaction and the delay explained in complaint.  She did not go to the police for eight hours or something.  But he was her cousin.  It did cause family issues if he ends up being complained to the police about.  So that eight hours is not really a long time in the context of these offences.  She had complained very quickly to other people, including her neighbours.

GUMMOW J:   You refer to the Court of Criminal Appeal in New South Wales in Henning.

MR SMITH:   Yes, your Honour.

GUMMOW J:   Of 11 May 1990.  Do we have that?

MR SMITH:   It is an unreported decision.

GUMMOW J:   Yes, that is right.

MR SMITH:   I do not think we have actually included it in our case list, but we certainly have copies of it, of which we can make copies.

GUMMOW J:   We had better have it.

MR SMITH:   There might be some highlighting.

GUMMOW J:   That is all right.

MR SMITH:   I can hand up a copy of that.  It is a decision of Chief Justice Gleeson, Campbell and Mathews, a decision of the court.  Now, we refer to that in the context I think of paragraph 5.39.  Perhaps we will come back to that when your Honours have a chance to look at it.

HAYNE J:   Now, does anything turn on the fact that 61R is concerned not with recklessness as to a result – death, serious bodily harm, damage to property or the like – but is recklessness about the accused’s state of mind, or recklessness identifying the accused’s state of mind?

MR SMITH:   Well, it goes really to the complainant ‑ ‑ ‑

HAYNE J:   The complainant’s.

MR SMITH:   The belief in whatever - the complainant’s state of mind.  We submit ‑ ‑ ‑

HAYNE J:   Yes.  The recklessness is about what the accused has done or not done in connection with consent.

MR SMITH:   Yes.

HAYNE J:   Its focus is on the accused.

MR SMITH:   It does, but it also, as it were, depends to some extent on the complainant as well because clearly in some of the instances that have been given consent can be very clear ‑ ‑ ‑

HAYNE J:   But the hypothesis – you never get there unless the complainant has not consented.

MR SMITH:   That is right.  Clearly, we are looking at the cases where there is – at least as a body of evidence that suggests a question mark over whether or not he could have formed a belief that the complainant was consenting.  In this case we submit that the evidence is very much in the Crown’s favour on that aspect because it is not as if there is a situation where he has come back to someone that he has been a regular – we submit on the evidence, as accepted by the jury – it is not as if he is someone who has lived with the woman and had a regular sexual relationship with her and suddenly she has decided she does not want intercourse with him any more, or there has been a separation and he has come back.

This is a situation between cousins, first cousins, I understand, where she, on her evidence, which we submit was accepted – in fact, the accused himself, the appellant himself, agreed that she had rebuffed him some short time before when he turned up at her place with a six pack of beer and wanted to stay and then started trying to kiss her and she rejected him and told him to leave.  He took a while to go.  He agreed that that had happened, although he alleged that there had been an evening when there had been sexual intercourse when they had both drinking a lot.  She denied that totally.

Also, he had agreed that he had been there on an occasion where the neighbours - I think calling out or banging on the door making a lot of noise, and the neighbours had told him to go.  So although he claimed that he had a standing invitation to go there, she denied that and he never – the only occasion when he actually was there with her acquiescence was the night he came with the beer when she let him in, but then not long after asked him to leave.

We have a situation where - it is not one where a mistake might form in the mind that this woman might consent because she has before, on the evidence that was the more acceptable version, we submit, and that the jury appears clearly to have accepted, we would say.  There was no previous history that might give him a reasonable belief and then, as had been put by the Crown Prosecutor in the final address, with his varying versions of events, the final one being a much more specific situation where he said she did consent - previously it had been, well, she was half drowsy or half awake and matters of that sort and there was no claim of foreplay or anything of that sort, so that the jury had before them this material and there was really very little material for them to really look at the recklessness matter in deliberating because if they were satisfied that he knew she was not consenting because he – they were satisfied with her version that she woke up finding him on top of her having intercourse with her, then that really blew out of the water any suggestion of mistaken belief or matters of that sort or the question of whether he might have considered she was not consenting.  It was quite clear that she had not been given an opportunity to consent and I think the law is quite clear that when someone is sleeping, they are not able to consent. 

There was another case, I think it has one of the abbreviations but it involves a doctor who gave a patient – in the Court of Criminal Appeal – gave a patient a knock-out drug saying he was giving her an inoculation.  She happened to be a tenant, or she lived in the same house where her mother put him up as a boarder and he filmed the event and although the filming of what he was doing to her showed her giggling and apparently enjoying it, the fact was that she was not capable of consenting because she was out to it and the court clearly rejected the appeal in that case because clearly, even though she might have had the appearance, that is a much more, let us say, case where a jury might be a bit more doubtful because of the expression that they were actually able to look at.  The fact was that she was not able to.

Your Honours, Henning has taken a little while, perhaps – because I have nearly finished ‑ ‑ ‑

GUMMOW J:   Yes.

MR SMITH:   Perhaps I will just take you to what we had said - we were referring, now I will just get my copy of Henning.

GUMMOW J:   It is enough if you give us the paragraph references in the judgment.

MR SMITH:   It is page 19 we have referred to of the decision ‑ ‑ ‑

GUMMOW J:   And they did not have paragraphs in 1990.

MR SMITH:   It is 11 May but it is in paragraph – we are referring to paragraphs 5.38 and 5.39.

GUMMOW J:   That is right.

MR SMITH:   The only problem is with Henning different versions of the report have different numbers of pages, but it is page 19, we understand.

GUMMOW J:   Thank you.

MR SMITH:   Those are my submissions.

GUMMOW J:   Yes, Mr Odgers.

MR ODGERS:   Can I begin with Justice Hayne’s question just before lunch.  Where does determination to have sexual intercourse regardless come from?  The answer is that the statute says you are guilty if you are reckless as to consent but the Crown has conceded, perhaps not unambiguously, but they have nonetheless conceded that the meaning of “reckless” is to be found in Morgan.  Morgan says ‑ ‑ ‑

HAYNE J:   I wanted the statute.  Your only word is “reckless”, is it?

MR ODGERS:   Of course, but ‑ ‑ ‑

HAYNE J:   That is the only hook?

MR ODGERS:   No, with respect, your Honour.  If it can be concluded, and it should be concluded, that the legislature of New South Wales intended that the word “reckless” was to be given the meaning that the House of Lords have given the word “reckless” at common law in respect of the common law offence of rape, then that tells us what was intended by the word and the word “reckless” was given the meaning by the House of Lords in Morgan could not care less whether or not she is consenting.

A convenient source of that form of words is referred to in our written submissions at paragraph 26, page 9 of our written submissions.  In Kimber [1983] 3 All ER 316, the English Court of Appeal applied Morgan in holding that “recklessness” is established by “indifference” to the woman’s wishes, “aptly described in the colloquial expression, ‘Couldn’t care less’”.  In Satnam in 1983, which our friends have taken you to, the English Court of Appeal said that that is how a judge, consistently with Morgan, should direct the jury.  “I couldn’t care less”.

So, if I go back to how I began this morning that “indifference”, “couldn’t care less” are saying the same thing as Daly said when it used the concept “determined to have intercourse whether she is consenting or not”.  It is the same idea.

So our answer to your Honour is that those words “determined to have intercourse whether she is consenting or not”, they come from the word “reckless”.  We would ask the question:  where does the Court of Criminal Appeal’s words come from, “aware of a risk”?  Where do they come from?  Particularly bearing in mind the fact that the New South Wales Court of Criminal Appeal says that is not the whole test of recklessness.  That is one basis for recklessness, but another basis for recklessness is you are inadvertent.

CALLINAN J:   At the moment I do not quite see why the jury have to be told anything about the meaning.  Reckless means reckless.

MR ODGERS:   Your Honour, given what we have said in ‑ ‑ ‑

CALLINAN J:   Relying upon the common sense of the jury to ‑ ‑ ‑

MR ODGERS:   One difficulty of course is that reckless is sometimes understood in an objective sense, grossly negligent.

CALLINAN J:   That is because lawyers have talked about it in all sorts of different ways and are always looking for synonyms and synonymous phrases, but I do not know whether that is always necessary and certainly whether it is necessary here.

MR ODGERS:   Your Honour, we would really not necessarily oppose that.

CALLINAN J:   You just often confuse or compound the difficulty

MR ODGERS:   It may well.  If I can go back to our first argument at page 12 of the written submissions, “reckless” means in the Macquarie Dictionary “utterly careless of the consequences of actions”.

CALLINAN J:   That is a synonym too, “careless”.

MR ODGERS:   Yes, your Honour, “utterly careless”.

CALLINAN J:   I do not know whether – you see “careless”, according to that definition, is not enough.  In any event, Macquarie is a descriptive not a prescriptive dictionary.

MR ODGERS:   I understand that, your Honour, but I am relying on it for this argument, that it is consistent with a conception of recklessness which is a state of mind of, “I couldn’t care less”, and it is not a state of mind of “Gee, I’m aware of a risk.”  That is the critical issue in this appeal:  his awareness of a risk, recklessness in the context of sexual assault.

We say that there is no support for that in Morgan, there is no support for it in the words of the statute and there are good reasons why, as a matter of policy, it would be quite wrong to have that as the test. 

Just dealing with some other matters, your Honours, the Crown relied on the document prepared by Dr Woods, who is now a District Court judge in New South Wales.  Mr Woods, as he then was, took a view of what recklessness meant.

GUMMOW J:   Yes, where is the particular passage you quarrel with in what he said?

MR ODGERS:   We agree with the passage where he refers to Morgan and, although he does not explicitly say it, he implicitly accepts that Morgan is the source of the meaning of “reckless”, but the passage we disagree with is on page 16, the third‑last paragraph.

GUMMOW J:   The latter words.

MR ODGERS:   Yes. 

CALLINAN J:   Sorry, which page, Mr Odgers?

MR ODGERS:   Page 16 your Honour.

CALLINAN J:   Thank you.

MR ODGERS:   In essence, Mr Woods, as he then was, was forming a view about what the law was under the common law.  That is something which is interesting but, with respect, we say he got it wrong.  He misunderstood what Morgan stood for.  He misunderstood what Daly stands for under the common law. The Crown have asserted that the law is well established, that foresight of possibility is the test. In their written submissions the Crown says at 5.2:

the mens rea for the offence is the intention to have sexual intercourse either knowing the other person does not consent or with a state of awareness less than actual knowledge of non-consent, usually described as awareness of the possibility that the other person may not be consenting.

Then they have footnote 1.

In our reply at pages 3, 4 and 5, beginning at paragraph 10, we have gone to each and every one of those cases and we say none of them support that proposition, none of them.  I am not going to go through them one by one.  It is in the reply and your Honours can read it.

GUMMOW J:   The question is how cogent they are.  We are not a court of criminal appeal, Mr Odgers.

MR ODGERS:   No, I understand that, your Honour, but to the extent that the Crown seems to be contending that there is a well-established line of authority in this area and that the High Court should follow it, we make the observation, your Honour, that there is no ‑ ‑ ‑

GUMMOW J:   We might adopt it.  We do not follow it.  Now, what do you say about page 17 and 19 of Chief Justice Gleeson’s judgment in Henning?

What the Court said there, Chief Justice Gleeson and Justices Campbell and Mathews, they were taken to the decision of the South Australian Court of Criminal Appeal in Egan.  Your Honours will see, if your Honours have Henning in front of you – I will get the copy you have.  On page 17, at paragraph 29, counsel for the appellant referred to the judgment of Justice White in Egan and then what follows is a lengthy extract from that judgment.  There is a reference to Wozniak.  That is contained within the judgment of Egan.  It goes through – the end of the quotation is on page 19 just above the second‑last paragraph.  Then their Honours say:

Without disagreeing with any of the above, all of which seems to be manifestly sensible and correct, we do not think it follows that a conscious advertence to the possibility of nonconsent is necessary to a finding of recklessness under section 61D(2).

Counsel for the appellant was relying on Egan to try to advance a proposition that inadvertent recklessness was not good law in New South Wales so he took them to a judgment of the South Australian Court of Criminal Appeal which was expressed in terms of awareness of a possibility that she is not consenting and relied on that.  The issue in Henning was not the issue before the Court today.

GUMMOW J:   No, we understand that.

MR ODGERS:   Secondly, we have, in our written submissions at pages 15 and 16, extensively criticised Egan, particularly at page 16.  Can I just take you very quickly to the points we make on page 16 of our written submissions.  At line 20 in our written submissions and down to 40, we point to serious errors made by Justice White in Egan.  The first error is that Justice White said that under the common law, actual knowledge of non‑consent was required, well that is not correct.  We know that.  Morgan said that is not correct.

Justice White said that Justice Bray had interpreted the words “recklessly indifferent” in Wozniak and we know that is not correct and then we point out that Justice White appears to have wrongly assumed that the dicta of Justice Bray regarding the Morgan test, that indifference “means no more than a determination to proceed with advertence to the possibility of non-consent” was an interpretation of the words “recklessly indifferent” in section 48 and they were not.  So the judgment of Justice White is seriously flawed for those reasons. 

CALLINAN J:   Mr Odgers, can I ask you another question - if you look at Kitchener 29 NSWLR at 701 in the judgment of Justice Carruthers.

MR ODGERS:   Yes.

CALLINAN J:   What his Honour is saying there is taken in part from something that Justice Yeldham said in Hemsley and his Honour says at 701B:

his Honour referred with approval to the following statement in Gillies, Criminal Law . . . concerning recklessness . . . 

“…The concept of recklessness is not defined in this legislation.  It may be that it is sufficient for a trial judge to tell a jury that they must find (at the minimum) recklessness on D’s part, without defining for them the meaning of this concept.  To do this would open up the possibility that the jury would evaluate D’s conduct on a purely objective basis –

Why?  I mean, why does it open that up?  I do not understand that.

MR ODGERS:   What I was saying to your Honour before, the idea is that in common parlance recklessness can extend to gross negligence where a reasonable person would have realised that obviously she was not consenting, you were ‑ ‑ ‑

CALLINAN J:   I mean, it might be hard to describe, but a jury knows it when it sees it, recklessness, I would have thought.

MR ODGERS:   Your Honour, I cannot put it any differently from how I have.  I respectfully endorse what Mr Gillies said there, but I do not endorse ‑ ‑ ‑

CALLINAN J:   But what the next sentence too, where he ‑ ‑ ‑

MR ODGERS:   I do not endorse that.

CALLINAN J:   I do not know where he gets that from frankly.

MR ODGERS:   Well, what he then goes on to say is that:

recklessness consists in an awareness of the possibility (not probability) that V is not consenting.

Well, of course that is right.  Wozniak held that, other authorities held that.  We do not contend otherwise.  But what we do contend is that it is wrong – an awareness of possibility is not the test. 

Your Honour, I just need to quickly mention Henning again.  At the end of the day, all one has in Henning then is dicta saying that what Justice White said in Egan is sensible and correct, that that is simply, we say, a matter that was not in issue where there was no argument about it, where while I have conceded that in many cases awareness of the possibility she is not consenting may permit an inference of recklessness, that is not the test and as I have explained, Egan is a seriously flawed case.

As I say, we have gone through the other authorities.  In our reply, we have dealt with Hemsley; we have dealt with Kitchener.  Can I just draw your attention to what was said there, your Honours, because it seems that they are being used against us and we say they are not just authority, they do not say what they are supposed to say.  In Hemsley Justice Yeldham endorsed Daly.  He endorsed Morgan, which are the cases upon which we rely.

GUMMOW J:   Yes, we saw that.  We can read.

MR ODGERS:   Yes, thank you, your Honour.  In Kitchener, Justice Carruthers endorsed Daly, endorsed Morgan, the cases upon which we rely.  The Crown relies on Daly to support their proposition.  Well, where is that from.  So, we say, in truth there is dicta from Justice Bray in Wozniak.  There is South Australian authority interpreting “reckless indifference” which is fundamentally flawed.  There is dicta in Henning, which is of very limited significance and that is about the end of it, in truth, and, I am sorry, Professor Smith expressed a view in an article.

GUMMOW J:   We have to found some foundation in principle.

MR ODGERS:   I understand that, yes.

GUMMOW J:   We will not find it in stacking up blocks on one side of the table or the other side of the table.

MR ODGERS:   Yes, your Honour.

GUMMOW J:   And we say it over and over again, and we are not heeded.

MR ODGERS:   Yes, your Honour.

GUMMOW J:   But we will continue saying it, and acting accordingly.

MR ODGERS:   Yes, your Honour.  It is a flaw that many barristers have that we have a tendency to go to cases ‑ ‑ ‑

GUMMOW J:   Do not encourage us further to expand on that subject.

MR ODGERS:   No, your Honour.  Can I just very briefly, and seeking your Honours’ indulgence, respond to just some of the other cases mentioned by my friend and relied upon.  He referred to Cunningham.  It is an English Court of Appeal decision dealing with causing of harm, and he said, well that is support for his contention.  Cunningham was a case ‑ ‑ ‑

GUMMOW J:   We know about Cunningham.  It has gone in and out of favour and it now seems to be back in favour.

MR ODGERS:   Yes, it is back in favour in England, with the important qualification.  They have added the requirement that it is not justifiable to take the risk.  You know about that.  However, in Australia, it was not in favour in 1981, which is an important consideration in the proper interpretation of this legislation.  In our written submissions we have summarised the law in Australia in respect of causing harm as at 1981 in our submissions at paragraph 29, and I will just draw your Honours’ attention to the fact that we have looked at the position in Australia in 1981 in respect of causing harm, and Cunningham was by no means the excepted position, and can I use it in our favour?

If the House of Lords intended in Morgan to adopt the Cunningham test, why did they not?  They did not.  The fact of the matter is they adopted a formulation of recklessness which is quite different from Cunningham.  So how is it then that the respondent can say that is what they meant, that is what the law is.  We say the reserve is true.  The very fact that they did not use that language shows that they had a different conception for recklessness in the context of sexual assault.

Similarly, Coleman that my friend has referred to, a 1990 case, nine years after 1981 dealing with the infliction of harm, a New South Wales authority.  We say that has no bearing at all on the interpretation of the 1981 Act.  The Crown relies on Satnam.  Satnam, we say, is very clear authority in our favour.  Satnam endorsed the “couldn’t care less” test, but we have dealt with Satnam in detail at paragraph 6 of our reply and I invite your Honours to look at that.

I have dealt with Henning.  I have dealt with Professor Smith.  He is just wrong, we say.  South Australia, we say, is wrong.  My friend referred to Victoria.  Your Honours, that is all very interesting but the legislation in Victoria says the test is he was aware that she might not be consenting.  That is what the legislation says.

GUMMOW J:   Yes, we have read that, too.

MR ODGERS:   But even there, your Honour – even there you have trial judges giving the direction we contend for, so even there there is a recognition – in that Lucin Case the trial judge the daily direction.  Why?  Why is that?  The answer is because there is a perception that there is something fundamentally wrong with a mere awareness of risk test and there is something fundamentally wrong with it.  Northern Territory.  My friend referred to WJI last year.  It does not mention the fact that section 31 of the Northern Territory Code actually talks in terms of awareness of possibility.

GUMMOW J:   Yes, we are aware of that, too.

MR ODGERS:   Yes, your Honour, but also what needs to be mentioned is that under section 31 you are not liable unless it was unjustifiable to take the risk, so that it is the same as under G in the House of Lords, the same as under the Commonwealth Code that mere awareness of possibility is not enough for liability in the Northern Territory.  Your Honours will be pleased to know that I have come to the end of everything I wanted to say about the legal position.  The final question is the proviso.  It has something that has been brought up.  I just need to say something briefly about that.

The critical issue, we say, is was it a reasonable possibility that the jury in this case acted on what the Crown put, which was a basis for conviction which was the appellant’s own version that he was reckless, on his own version, and should be convicted on that basis.  We say that there is a real possibility that they did.  Bear in mind, your Honours, the complainant’s memory of what had happened was potentially flawed.  She had had seven beers on her own account, she had smoked marijuana and she had had a sleeping pill that night.  So the jury may well have had a doubt about the reliability of her account and may well have thought that there may well be some truth in what the appellant’s version of events was.

CALLINAN J:   I would also have a serious doubt about what her state of mind was consenting ‑ ‑ ‑

MR ODGERS:   No, your Honour.  They obviously were satisfied beyond a reasonable doubt that she did not consent, but on his version of events there was no difficulty in reaching that conclusion.  The fact that she broke his glasses certainly showed that she believed she was aggrieved.  Absolutely.  There is no question about that.  But that is the whole point.  Just because she is aggrieved and she did not consent, does not mean that he was aware that she was not consenting.  The jury is being invited to convict on the basis that he was aware of the risk that she was consenting.

The fact of the matter is when she told him to stop he did, when she told him to leave he did, which is consistent with a man who was not aware that she was consenting until she told him.  The Crown relied on his version in order to invite the jury to convict as an alternative basis for liability.  The jury question at the end suggested that at least one member of the jury was looking at his version of events as a basis for convicting him and, lastly, it is true that the jury must have found that he did move a piece of wood to get in a window to get into the house.  They had to do that in order to convict.  His position on that was all over the place.  He conceded he was drunk.  The jury had good reasons to think that he had moved a piece of wood.  We say, “So what?  How does that really bear on the critical issue of whether or not he knew she was consenting?”

It is important to note, however, that the jury never made a finding that he was not invited to come around.  It was never put to them that you have to, in order to convict him, be satisfied that he knew that he was not invited.  All that they needed to convict was, “He entered the window, moved the piece of wood”, that was enough, on the directions given to the jury, to break and enter, so they made no finding that rejecting his claim that he had a standing invitation to come around.  Of course, on his version of events, he had had sex with her before, he had an invitation to come around, he came around and the events, as he said, proceeded, and when she made it clear she was not consenting he stopped and he left.  Thank you.

GUMMOW J:   The Court will consider its decision in this matter and will adjourn until 9.30 am tomorrow in Sydney, and 9.30 am in Melbourne.

AT 2.59 PM THE MATTER WAS ADJOURNED