Banditt v The Queen

[2005] HCATrans 243

[2005] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2004

B e t w e e n -

STEPHEN GARRY BANDITT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 2005, AT 2.41 PM

Copyright in the High Court of Australia

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

MR G.E. SMITH, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Director of Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, this application raises questions of general importance as to the mental element of rape under the common law and for sexual assault without consent in New South Wales.  The Court of Criminal Appeal of New South Wales has endorsed a test of recklessness which we say is contrary to prior common law authority in this country and elsewhere.

GUMMOW J:   There were additional directions, were there not?

MR ODGERS:   From the trial judge to the jury?

GUMMOW J:   Yes.

MR ODGERS:   The additional directions – is your Honour referring to pages 72 to 73?

GUMMOW J:   I am referring to page 134 of the application book, your opponent’s submissions.

MR ODGERS:   I am not aware of any such further directions, your Honour.

McHUGH J:   Line 11.

MR ODGERS:   Your Honour, that is a reference, I think, to the application book, page 73, line 25.  This deals with an issue which we have not sought to make a basis for the application for leave; that is, the question of whether or not the jury were confused as to whether the test was subjective or objective.  There were certainly aspects of the summing up where objective elements were introduced, and there was a ground of appeal before the Court of Criminal Appeal that there was confusion on that question, and the Court of Criminal Appeal referred to page 73, line 25 as curing, in their view, the danger that the jury thought the test was objective.  That is not something we are ventilating here, your Honour.

Just so we are clear, the basis for the application is that the jury were directed – and you can see it at 73 in the sentence above the one that I have referred to:

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

That was endorsed by the Court of Criminal Appeal.  It held that recklessness as to lack of consent is established by awareness that consent might not – a possibility – be present or complete inadvertence.  It also held in the Court of Criminal Appeal that awareness of a real possibility of absence of consent will constitute recklessness even if the accused believes that it is probable, even highly probable, that consent is present.

Under prior authority, advertence to the possibility she might not be consenting is not sufficient for recklessness under the common law.  There must be indifference as to whether consent is present or not.  It is very important to understand that the concept of indifference is a state of mind.  It is a state of mind of not caring whether or not the complainant is consenting.  It is a state of mind of considering the issue and saying, “I don’t care whether she is or she isn’t”, and I will not take your Honours to what the House of Lords said in Morgan but in every one of the majority judgments the test of recklessness was formulated in that way, and indeed, there was no reference in the majority judgments of the House of Lords in Morgan to the idea of advertence to possibilities.  It was all expressed in terms of indifference, not caring whether or not she is consenting.

We also say that under prior authority an honest belief that consent is present will require a verdict of not guilty.  It has never been suggested in that prior authority that the accused had to believe that it was certain that she was consenting.  It is enough – and the authorities have held this numerous times – that belief that she was consenting is sufficient.  The effect of the judge’s directions were the opposite of that.  The effect of the judge’s directions in this case were that even if he believed that it was likely that she was consenting, he would still be guilty.  Why?  Because that meant that he was aware of the possibility that she was not, and that was the end of it.  If he was aware of the possibility, no matter how small that possibility was in the minds of the jury in terms of their assessment of what he regarded the risk as, even if he turned his mind ‑ ‑ ‑

McHUGH J:   But why is it not indifference?  If he is aware of the possibility and he goes ahead, why is it not the same as him being indifferent?

MR ODGERS:   Your Honour, the answer is that it depends on the circumstances.  In some circumstances it may be sufficient for a jury to go the extra step to say, “We’re satisfied that he was aware of the possibility and that the reason he didn’t do anything about it, the reason he didn’t make sure, was because he didn’t care.”  But there will be many cases, and the present one is an example, where a person’s awareness of a possibility may exist.  He may be aware of the possibility, but there are good reasons why he is unable or unwilling to find out for certain.

McHUGH J:   Now, where is the passage in the Court of Criminal Appeal’s judgment that you say is erroneous?

MR ODGERS:   Your Honours, page 102 of the application book, line 39:

In my opinion, it is sufficient to constitute this kind of recklessness that the first person realises that the second person might not –

and that refers to possibility –

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 just another way of expressing the concept of indifference.

GUMMOW J:   Well, the court is construing section 61R, is it not, in saying that?

MR ODGERS:   It was accepted in the Court of Criminal Appeal, and has been accepted that ‑ ‑ ‑

GUMMOW J:   Which is set out at the bottom of 101.

MR ODGERS:   Yes, your Honour, but the point I am making is that it has been well accepted that the test of recklessness in 61R is the same as the test of recklessness for the common law.

GUMMOW J:   Well, yes.

MR ODGERS:   Yes, your Honour.

GUMMOW J:   Why do you not begin with the statute, Mr Odgers.

MR ODGERS:   Yes, your Honour, I understand that.  But recklessness can have different meanings in different contexts.  This Court looked at recklessness I think in the context of negligence in Lavender.  But, your Honours, we come back to the basic policy point, which is that it would be quite wrong to say that in all cases advertence to the possibility of absence of consent will make a person equally culpable as the person who knows there is no consent.  We have given examples of just the kind of factual scenarios that do arise – this is page 124 of the application book –where there is advertence to a possibility and yet it would be quite wrong for the criminal law to say that that is a state of mind of comparable culpability to knowledge of lack of consent.

Example (a) is based on the facts of Morgan, and your Honours are probably aware of that, and I will not take your Honours through it.  Paragraph (b) is closer to the facts of this case.  You have a situation where there has been a pre-existing relationship between the accused and the complainant, on his version of events, which the Crown invited the jury to convict on the accused’s own account, your Honours.  On his account he has had sex with her consensually before.  On the last occasion he had attempted a relationship she had rebuffed him, so the Crown said, “Well, he’s on notice that there’s a lack of consent”.  He is invited to come around to her house, he comes around, he has a conversation with her, she shows by her physical actions that she is receptive to sex, she is in a vaguely awake state, on his version – which the Crown invites the jury to say means that he must be reckless – she is intoxicated, he is intoxicated.  In those circumstances, assuming those facts – and the Crown invited the jury to do so – what is he to do?  Is he to wait till she sobers up before he makes certain that she is able to properly consent?  That goes back to example (b).

What is a person to do who knows that the person they are with is intoxicated and gives all the appearance of consenting to sexual activity, but is aware of the possibility that it may not be a real consent because of the presence of intoxication?  On this test of the Court of Criminal Appeal, that person is guilty of sexual assault without consent because of the awareness of the possibility that the intoxication may mean that the consent is not a real one.

The other example is (c) on page 124 where the conduct of the complainant gives the appearance of consent, and the accused believed that it was likely that she was consenting.  The mere fact that there is a possibility, we say, that she is not cannot be on its own sufficient to conclude that a person is equally culpable with somebody who knows there is an absence of consent.

McHUGH J:   You keep talking about equal culpability, but that is not really the question, is it?  Reckless is not the same as intent.

MR ODGERS:   No, quite.  But, your Honour, the criminal law generally takes the view, with respect, that there are levels of comparable culpability, but the essence of my argument is this.  Firstly, the language of advertence to possibility is inconsistent with the whole line of authority which has required a particular kind of mental state.  That is indifference, not caring.

McHUGH J:   But what about non-advertent recklessness?  That is even further down the scale.

MR ODGERS:   Well, in a sense no, your Honour.  In a sense one can see how that is very culpable because a person is just simply not turning their mind to the question of whether or not she is consenting.  That is really a form of ‑ ‑ ‑

McHUGH J:   Yes, but on your theory ‑ ‑ ‑

MR ODGERS:   That is highly culpable.

McHUGH J:   On your theory if somebody does not turn their mind to it that she is not consenting, therefore that person is guilty of recklessness and guilty of rape.  On the other hand, they turn their mind to it, they think there is a possibility she is not consenting and go ahead and you say ‑ ‑ ‑

MR ODGERS:   No, we say, your Honour, that the test of recklessness is as it was stated in the House of Lords in Morgan, and it has been repeatedly stated in common law authorities in this country, that is, a state of mind of not caring, and it has been wrong for the Court of Criminal Appeal of New South Wales, only in New South Wales as we understand it, to develop an idea of indifference as being some state of inadvertence.  So we say that there has been some confusion based on the idea of indifference, that it should extend to not thinking about it at all, and that the true basis for liability is a state of mind of not caring whether or not there is consent.

Your Honours, if the Court of Criminal Appeal is right, from now on juries will have to be directed to distinguish between real possibilities and bare possibilities or small possibilities on the basis that the Court of Criminal Appeal recognises that a 1 per cent chance is not a sufficient basis to convict a person of sexual assault without consent.  So we say that the very approach that the court adopts is going to create more confusion and more difficulty than under the pre-existing law, and we say that indeed the test of indifference, which is the test that has been around now for 30 or 40 years, should not be simply swept away without a careful analysis of whether or not it is appropriate to do so.

Your Honours, other than this decision, there is no intermediate appellate authority supporting the proposition that we can sweep away what has been said for decades about the proper test of indifference, not caring less, and replace it by mere advertence to possibility.  As we have said, to do so runs the very grave risk that people will be found guilty in circumstances where it is wholly inappropriate.  The point I make, your Honours, is this.  Even if it is wholly reasonable for an accused person to take the risk, let it be assumed that it is wholly reasonable to say, “Well, it’s a very small risk, it’s one that I can disregard, it’s not possible in the Morgan scenario for me to untie the tied up woman to find out whether she really is consenting”, or it is wholly unreasonable for a person to say, “Well, I’d better wait till this person is no longer intoxicated or no longer under the influence of alcohol so that I can make certain that she is really engaging and informed and ‑ ‑ ‑

McHUGH J:   Well, many feminists might say that is a good thing.

MR ODGERS:   Well, they might, your Honour, but to say that the person who does not do that is liable to 14 years, even though a jury might think it was wholly reasonable – because on this test the jury does not even get to engage in an assessment of reasonableness.  The point is that recklessness under the Commonwealth Code requires awareness of a substantial risk, so it is not just possibility – that is the first point – and the jury has to be satisfied beyond reasonable doubt that the person was not justified in taking the risk.

Under this test it is a possibility, so it is not substantial risk, it is any possibility, and the jury is not required to pass judgment on the reasonableness of the actions.  So the position in New South Wales under the common law becomes worse than in the Code jurisdictions where the jury does make an assessment of reasonableness.  So that you can have a scenario where a person believes it is highly likely she is consenting, is aware of the possibility that she is not truly consenting because she is intoxicated or whatever, or half asleep or whatever, thinks it is reasonable in the circumstances not to find out for sure.  The jury may well agree, but on the directions that they are given they must convict.

Can I take your Honours to the very question that the jury asked here at page 69.  Perhaps before I do that, can I take you to the original directions at page 28.  I will not read it all out because I do not have time, but the directions at page 28 were premised on the Crown’s address saying, “You can convict even on the accused’s own version of events, and why on the basis of recklessness”, and then his Honour at line 20 said:

even on the accused’s point of view, you might find that he knew she was not consenting, because he was reckless.

and he said if he is reckless, he is deemed to know she was not.  Then at line 40:

the Crown argues . . . that even on his own version of things, the last attempt at intimacy, he had been rebuffed.

So they had had sex before but on the last occasion he had been rebuffed:

He had no right to assume that she was going to consent on this night . . . there had been no prior arrangement between them.  She was only, in his terminology, “vaguely awake” and he had no right to consider that she was likely to be consenting, indeed he was reckless –

Now, what does that convey to a jury?  It conveys this, that even though he thought that she was likely to be consenting, he is still guilty because he had no right to think that.

McHUGH J:   Yes, but that is not what the judge says.  You have added a gloss.  What the judge says is he had no right to assume that she was going to consent.

MR ODGERS:   But that is the same thing, your Honour.

McHUGH J:   No, it is not.  It is not the same thing as him thinking that she was consenting.

MR ODGERS:   I am sorry, your Honour.  As I understand it, what the jury would have understood that to mean was even if he thought she was consenting he would still be guilty because he had no right to think that, because in the circumstances he was reckless.  It becomes clearer, your Honour, when you go to 70 to 73 because in response to the question at 69 – I am sorry, page 70 of the application book, line 15:

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

HIS HONOUR:  No.

Then he explains that later on.  Page 72 line 40:

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.

So the answer is no, he cannot believe that she is consenting in those circumstances.  Why?  He then goes on to explain, because recklessness is satisfied by being aware that there is a possibility that she is not consenting.

So by the end of the summing up the jury are understanding what the situation is, that if she is semi-awake and if her bodily responses show she is consenting, he cannot take that as consent because he must be aware of the possibility that she is not consenting, therefore he is reckless, therefore he is guilty.  At the bottom of page 73 of the application book:

the Crown suggests that you will be persuaded beyond reasonable doubt that he either knew –

either knew she was not consenting –

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 –

So what is the judge saying?  “The answer to that question is no, it cannot be taken as consent.  He cannot be permitted to say he believed she was consenting.  Why?  Because he must have been aware of the possibility she was not consenting.  That’s recklessness.  Therefore he’s guilty”.

Your Honours, even if the jury thought that it was reasonable in the circumstances to take the risk, he is guilty.  Even if the jury thought that he believed that it was highly likely that she was consenting, he is guilty.  In my respectful submission, your Honours – and this is the last thing I will say – we have a situation where the law has been changed.  The issue is an important one.  The formulation that the Court of Criminal Appeal has advanced now creates difficulties of differentiating between different levels of possibility, and there is a risk of serious injustice not only in this particular case but more generally if this test is allowed to stand.  Thank you, your Honours.

McHUGH J:   Yes, Mr Smith.

MR SMITH:   If the Court pleases.  The aspect at page 28 my friend referred to:

the Crown suggested to you late in the piece in his closing address, that even on the accused’s point of view, you might find that he knew she was not consenting, because he was reckless.

It is unfortunate the Crown put that, but nevertheless that opened up the need for a direction on recklessness.  It is our submission that the directions given were consistent with the established law, that ‑ ‑ ‑

McHUGH J:   What, with Tolmie’s Case?

MR SMITH:   With Tolmie’s Case and also with Morgan, in the sense that this judge talked about:

“if you just go ahead and do it willy nilly, not even considering whether the person is consenting or not –

and this is at page 131 of the application book –

you are reckless and the law says you are deemed to know that the person is not consenting.”

That is what Lord Hailsham ruled in Morgan’s Case [1976] AC 182 and it is consistent, we submit, in Morgan at 215.  That is ‑ ‑ ‑

McHUGH J:   Yes, but the argument that is put against you is that that is really a case of non-advertent recklessness and that is not what happened here.  That is not what the applicant fastens on to.

MR SMITH:   Well, that was one aspect of the directions given.  As to the other aspect ‑ ‑ ‑

McHUGH J:   Well, it is not complained of, as I understand it.

MR SMITH:   It is not complained of.  As to the other aspect, your Honours, we submit that the decisions of Tolmie and Kitchener and the other authorities that have been referred to are a reasonable body of evidence.  They are supported, we submit, by Wozniak, Dr Bray, which is referred to at page 131, paragraph 3.7.

McHUGH J:   Page 131?  In your submissions, yes.

MR SMITH:   Yes, in our submissions.  That is the easiest way I can look at it.

McHUGH J:   Yes.

MR SMITH:   The question of the real possibility.  It was left as a real possibility that she was not consenting.  My friend seems to be complaining that because the court has not added that, and still went ahead with it – whatever the outcome he was determined to go ahead with it.  That seems to

have been omitted in the final wash of this case.  We submit it is not necessary.  Once he has that awareness of the real possibility that she is not consenting, that is sufficient. 

So far as this case is concerned, we submit it is not a suitable vehicle in any event because there was significant – it was a very strong Crown case and it is not one where there has been a miscarriage of justice shown in the sense that the version that the Crown left as a rider right at the end that you could even convict on his version is certainly only an afterthought when one looks at the whole of the case and all the lies, the credibility lies, that the Crown was relying on.  We submit that the direction is correct in any event, and my friend has not been able to show that it is not.  Those are our submissions.

McHUGH J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, there is no intermediate appellate court decision, other than this one, which has held that advertence to possibility is sufficient.  In Wozniak it is true that in South Australia, in respect of a statutory formulation which is different from the present, there was a holding some decades ago by the South Australian Court of Criminal Appeal which supports the Crown, but that is all that the Crown can point to of supporting the formulation adopted here.  We have pointed to an abundance of intermediate appellate authorities and House of Lords decisions and English Court of Appeal decisions, all of which adopt a very different test.  I stress that the point about determination – where the formulation is used determines to go ahead, that conveys with it a state of mind.  It is not simply, “I’m aware of a possibility and I am going to have sex”.  It is, “I’m aware of a possibility and I am going to have sex whether or not she’s consenting.  Why?  Because I don’t care whether or not she’s consenting”.  That is the very state of mind which makes it so culpable as to justify making the person liable to imprisonment for 14 years, or worse.  That is the first point I want to make.

Secondly, my friend says this was a strong prosecution case.  Well, it was word against word to some extent.  The accused said that they had had consensual sex before and she said they had not.  Well, that was a matter for the jury to decide who they believed.  There was a lot of consistency in their accounts.  She agreed that she was vaguely awake at the time that the sex occurred, she agreed – and I have not made this point.  It is really - perhaps the most striking fact about this case is the moment she says “No, stop”, he does so.  Now, if this man was determined or wanted to have sex regardless of consent, you would not have expected that when she said “No, stop”, he would immediately stop and get off her.  But he did.  That is consistent, we say, with a belief that she was consenting, and a realisation when she said “No, stop” that she was not, and a willingness to stop at that point.

He told lies, but the explanation for that was entirely plausible, that he did not want his uncle or family to know that he had had sex with his cousin.  That is hardly powerful evidence to prove that he had raped her or ‑ ‑ ‑

McHUGH J:   What about the failure to object to the directions of which you now complain?

MR ODGERS:   Your Honour, there was an objection.  We put two arguments.  One is that to use the language of possibility is wrong because it does not convey the idea of not caring.  The other side of the argument is this – and it was objected to and nothing was done about it.  We say that a jury should be told that if they think it is possible that the accused believed she was consenting, he is not guilty.  And the defence counsel asked the judge to say that.  This is at page 71 of the application book, your Honours.  Can I take you to that.

McHUGH J:   Line 34.

MR ODGERS:   Line 43:

The fact is if they’re not satisfied that he didn’t have a genuine belief that she was consenting then they should find him not guilty –

and the defence counsel is asking the judge to give that direction.  The judge gives the impression that he is going to.  So he is being asked to say, “If it’s possible he believes she’s consenting, then he’s not guilty”.  But the judge does not give that direction.  He goes on to direct the jury in substance that even if he believes that it is likely that she is consenting, he is still guilty.  Why?  Because he is aware of the possibility that she is not.  I mean, obviously.  It is logical that if you believe it is likely, or very likely, you are still aware of the possibility that she is not.

McHUGH J:   Well, you throw the weight of your argument, do you, on the sentence in 73, line 20:

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

MR ODGERS:   That is one side of it, your Honour.  The second side is the failure to direct the jury that if he believes she was consenting, he is not guilty. 

McHUGH J:   Yes, there will be a grant of leave in this matter.

AT 3.12 PM THE MATTER WAS CONCLUDED