Director of Public Prosecutions Northern Territory v WJI
[2004] HCATrans 44
[2004] HCATrans 044
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D14 of 2003
B e t w e e n -
DIRECTOR OF PUBLIC PROSECUTIONS FOR THE NOTHERN TERRITORY OF AUSTRALIA
Appellant
and
WJI
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 5 MARCH 2004, AT 10.02 AM
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR W.J. KARCZEWSKI, QC and MR M.J. CAREY, for the appellant. (instructed by Office of the Director of Public Prosecutions for the Northern Territory)
MR S.J. ODGERS, SC: May it please the Court, I appear for the respondent with my learned friend, MS S.J.COX. (instructed by Northern Territory Legal Aid Commission)
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, the issues in this case, as the Court will have seen, are concerned with what has to be proved by the Crown in prosecutions for offences under section 192(3) of the Criminal Code (NT).
GLEESON CJ: Could you give us a practical, not unduly colourful, example of a case in which the difference between the majority view and the minority view in the Northern Territory Supreme Court would matter.
MR JACKSON: Could I take your Honours to the summing up by the trial judge in the present case and, in particular, to the aide‑memoire which he gave to the jury, which is at page 28 of the appeal book. Your Honours will see at page 28 that he refers to a number of elements of the offence. I should say, your Honours, that section 192(3) refers to “sexual intercourse without consent”, sexual intercourse defined in a number of ways in section 1, “consent” defined in section 192(1) and (2) as meaning “free agreement”, a term elaborated upon in subsection (2). Your Honours will see then element 1.2 is there referred to and one sees that in element 1.3 he says at the bottom of the page that:
The accused knew [that she] was not consenting or may not be consenting and proceeded regardless.
Your Honours will then see in element 4.2 that:
If the accused mistakenly believed that [she] consented to his having sexual intercourse with her, he will NOT have intended to have sexual intercourse with her without her consent.
Your Honours will see the element that he refers to immediately following that in the second paragraph of 4.2 and then, your Honours:
Such a “mistaken belief” does NOT have to be based on reasonable grounds.
Now, your Honours, the essential difference, I suppose one could put it this way, between the two contentions is what appears in paragraph 4.3, that the:
“mistaken belief” does NOT have to be based on reasonable grounds –
although that the absence of reasonable grounds is a relevant factor. That is essentially it, and the question which arises is if in any particular case there is established, or the jury is entitled to find, that there was sexual intercourse, that there was not free agreement in terms of the definition of “consent” and, your Honours, that there was not, however, established an intention to have sexual intercourse without consent because there was an honest, although unreasonable, mistaken belief.
GLEESON CJ: So this dispute bites in cases in which the jury have concluded that there were no reasonable grounds for believing that she consented, but nevertheless he might have believed she consented.
MR JACKSON: Yes, your Honour. The jury is not satisfied, if I could put it in the reverse way.
GLEESON CJ: Yes. I was not endeavouring to embrace questions of onus in that, but, just in terms of straight fact‑finding or opinion of a jury, this covers a case where the jury says, “This man had no reasonable grounds for believing that she consented, but he might nevertheless have believed that she consented”.
MR JACKSON: Yes.
KIRBY J: That has the advantage of upholding the fundamental principle of criminal law that the act must be accompanied by the intention, but it has the disadvantage of upholding an unreasonable way of coming at that intention. Is that not a matter for the jury to sort out?
MR JACKSON: Your Honour, could I say that what your Honour put to me does involve – if I may say so, with respect – a value judgment, of course, “fundamental”, and this is an issue on which there are two views of what might amount to fundamental. May I say two things about that. The first is that one view has been taken by the States which formerly were common law States in crime. Now, the relevant provisions are all dealt with by statute, so that is historical. In the Code States in Australia, the view that has been regarded as the fundamental – if I could use that word ‑ view has been the view for which we contend, namely, that it is a question to be dealt with not by the equivalent of section 31, but by the equivalent of section 32, the mistake provision.
GLEESON CJ: I think, unless I am mistaken, in what you have described as the common law States, there was a change in direction following a decision of the House of Lords in the case of Morgan.
MR JACKSON: Yes, your Honour, although I think the Victorian position had been arrived at before Morgan.
HAYNE J: In Flannery?
MR JACKSON: Hornbuckle, I think.
HAYNE J: Hornbuckle before Flannery.
MR JACKSON: Yes.
GLEESON CJ: Then New South Wales came into line after Morgan.
MR JACKSON: Yes. Your Honour, in relation to the older offence of rape and its modern derivatives, of course, if one goes back in the common law, it was an offence which had to be committed “wilfully”. I am speaking in somewhat historical terms.
HAYNE J: You have taken us to 4.2 as the ground for debate. How does 4.2 sit with 4.1? Is 4.2 to be understood as in amplification of 4.1? What is the relationship?
MR JACKSON: Your Honour, the relationship seems to be the first of the things your Honour put to me, that 4.2, in the way the judge put it, was to be giving an example, I suspect – that may not be quite the right word, but am amplification of 4.1. Your Honour will see it is all under the heading of “Element 1.3”. May I just say one other thing about it: what the judge is saying is, in effect, in paragraph 4.1 at the bottom of page 28, the element is that the accused had to know that she:
was not consenting or may not be consenting and proceeded regardless.
And that, in 4.2, if it happened that he:
mistakenly believed that [she] consented . . . he will NOT have intended to have . . . consent –
which seems to be in explanation of that. A difficulty which does arise, your Honour, in this area, is that what one is speaking about is really not so much a question of intention but a question of belief. That is why the apposite provision when one has a Code of this kind is section 32 rather than section 31 in relation to this aspect. That is tied up with the elements of the offence, of course, in the first place.
HAYNE J: Because, at least in some cases, the matter dealt with in 4.2 would be enlivened only by the course of evidence.
MR JACKSON: Quite, your Honour.
HAYNE J: And absent something in the evidence to raise as a matter for debate or possibility, that the accused may have thought that there was consent.
MR JACKSON: Yes. Your Honour, whether that is true in mistake in any sense, of course, relevantly - because we entirely accept the position as summarised shortly by Justice Angel in his dissenting judgment, that in relation to section 32, the mistake provision, the burden would lie on the Crown of negativing that if the issue is raised in the evidence. Either aspect of mistake, whether it be mistake as contended for, or as referred to by the trial judge here, or as we would contend for, is something which has to be negatived, if raised, of course.
HAYNE J: Yes, if raised, because we are not dealing with elements of the offence.
MR JACKSON: Yes, your Honour, and not dealing with matters which are defences on which the burden lies on the accused, so I use defence in that sense and, of course, there are a number of ways in which issues can be raised. Your Honour, may I say one thing. Given I see your Honour Justice Gummow is using the Criminal Code, may I say one matter by way of self‑protection. We have given this to your Honours by way of convenience, the convenience as to have the - it is a little later than the offence here, but it does not have any changes that we would contend are relevant, so they are still relevant. But it is for convenience, your Honours.
GLEESON CJ: Mr Jackson, you cannot be contending, can you, that the way to correct this aide‑memoire would be to delete 4.3 and to add to 4.2 after the word “believed” the words “on reasonable grounds”?
MR JACKSON: Well, your Honour, I have not tried to do an amendment of it.
GLEESON CJ: Have we a formulation of what you say the direction should have been?
MR JACKSON: Well, what we would say, your Honour, is that if one goes back to element 1.3 in paragraph 4.1 - perhaps I should start a little earlier. The element which is referred to at paragraph 1.3 should have been deleted and, your Honours, one would see then in relation to paragraph 4, which deals with that element, 1.3, that the judge should have given a direction which related to the terms of section 32.
GLEESON CJ: Should you delete 1.3, or should you delete the words “without her consent” in 1.3?
MR JACKSON: I am sorry. Your Honour is right, yes.
GLEESON CJ: So you leave 1 as it is except that you leave out the last three words of 1.3. When you come to 4 ‑ ‑ ‑
MR JACKSON: Your Honour, it would then essentially be a repetition, first of all, of what was in 1.3 and then the jury would be directed, if the issue arose, in terms of section 32. I have not attempted to formulate the precise words of ‑ ‑ ‑
KIRBY J: The trouble with just deleting those last words in 1.3 would be that that would make it an offence although the complainant never communicated at all, just kept it in her or his brain.
MR JACKSON: Your Honour, the situation ‑ ‑ ‑
KIRBY J: The first step is having the sexual intercourse, the second is, did not give her consent, and the third is, had intercourse with her. So would that not cover the situation where the complainant simply kept the issue of consent to herself?
MR JACKSON: Your Honour, I would say two things about that. The first is that one is, after all, dealing with an offence in terms of section 192(3), which does not itself contain that requirement, so one has to look elsewhere. One looks then to the criminal responsibility provisions of the Code, and the criminal responsibility provisions of the Code are found relevantly in section 31 and section 32. One then has to see, so far as any question of intention is concerned, what application section 31(1) is capable of having. Your Honour will see from the terms of section 31(1) that questions of intention relate to the “act, omission or event”, so is a question which constitutes the offence. One then has to look to see whether there is a relevant “act, omission or event” – I will come to that in a moment – but in relation to those the only act, in our submission, is the act of sexual intercourse. That is the aspect to which ‑ ‑ ‑
GLEESON CJ: That is what the entire case turns on, is it not, whether or not the act is the act of sexual intercourse or the act of sexual intercourse without consent?
MR JACKSON: Quite, your Honour. Yes, I accept that.
KIRBY J: Traditionally, rape has been sexual intercourse without consent, but we have to, as it were, remove that from our thinking and just concentrate on the Code.
MR JACKSON: Traditionally where, with respect, your Honour? One does not ‑ ‑ ‑
GLEESON CJ: Traditionally in Queensland.
MR JACKSON: If you take, your Honour, the Criminal Code of 1899, I think, before Federation, and it has gone on for the last 105 years just about, in Queensland, the tradition has been entirely the reverse of what your Honour has said, a little shorter in Western Australia, a little shorter again in Tasmania, but for half – I am not speaking in population terms ‑ but half geographically and half in terms of the State jurisdictions constituting the Federation, the modern, if I can call it that ‑ ‑ ‑
KIRBY J: I was thinking of traditionally in the common law.
MR JACKSON: Well, your Honour, one should move on from that, with respect.
GLEESON CJ: Just a minute, on that subject we had a look at Sir Samuel Griffith’s draft of the Criminal Code (Qld) in a recent case and we saw him noting common law alongside various things, and in particular we saw that notation alongside the defence of honest and reasonable mistake. So Sir Samuel Griffith, in many respects, was not setting out to alter the common law.
MR JACKSON: Your Honour, what he was seeking to do was to develop a code, a code which of course, whatever the views of the author, no matter whether one regards that as the work of an Austinian jurist or not, but whatever the views of the author, ultimately like the Constitution, to be interpreted from time to time.
GLEESON CJ: And I think until the decision of the House of Lords in England in Morgan the view of the common law that was taken in England was consistent with what you are saying, is it not?
MR JACKSON: Yes.
GLEESON CJ: As an historical fact, statements about what the common law was or was believed to be may need some closer consideration.
MR JACKSON: Your Honour, the common law was in a state of development. One can also say the same about interpretations of the Codes and, no doubt, that will happen from time to time. But, in relation to the Codes one might see at times a view taken that the provision about mistake should be treated as a defence rather than as a matter ‑ ‑ ‑
GLEESON CJ: It was only in about 1930 that the common law got to the stage of saying that if a man fires a gun and kills somebody and claims it is an accident the onus is on the Crown to prove that it was not an accident.
MR JACKSON: Yes, your Honour. Woolmington’s Case was, in a sense, a consolidation and restatement. The point I am seeking to make, and I hope I have not done so offensively, is that one is talking about Codes and the position that one might think was the position ultimately adopted in the common law jurisdictions was a view that has not prevailed – I doubt this Court could change it ‑ in relation to the Code States for a long time.
GLEESON CJ: Mr Jackson, it may be that this is to be found in the judgments of the Northern Territory Supreme Court, but it would certainly assist me, if at some stage and perhaps later after argument is concluded, you could let us have what you say is the direction that should have been given.
MR JACKSON: Certainly your Honour, yes.
HEYDON J: Was a direction asked for, of the kind do you say should now have been given?
MR JACKSON: Yes, it was, your Honour. Yes.
HEYDON J: And the accused raised what might be called reasonable mistaken belief?
MR JACKSON: Your Honour, the issue was one that appears to have been raised and resulted in these directions being given, including those concerning the need for absence of reasonableness. All that one has in the application book is the actual directions that were given by the judge, but, if necessary, I can take your Honour to further aspects of it.
HAYNE J: Is the consent referred to in section 192 a reference to the state of mind of the complainant, or is it a reference to a communicated state of mind.
MR JACKSON: Your Honour will see that 192(3) speaks of “without the consent of the other person” and by subsection (1) consent means “free agreement”. There is a number of things which are set out then in subsection (2), a number of circumstances in which there is not a free agreement. Your Honour will see, for example, the reference in 192(2)(c) to the person being asleep, for example. Now, I suppose that that is a form of communication by non‑communication, as it were.
HAYNE J: What provokes my question is especially 192A. Was that part of the Code at the relevant time?
MR JACKSON: Yes, your Honour, that is so.
HAYNE J: Thus, there were directions to be given about consent which at least struck me as perhaps suggesting that consent is a communicated state of mind, not simply a state of mind within the complainant.
MR JACKSON: Your Honour, most often that will be so. There is likely to be some words or conduct which convey agreement or the absence of it.
HAYNE J: No doubt, but is the concept communicated or uncommunicated state of mind?
MR JACKSON: Your Honour, if I can put is this way, for there to be rape – I have used the abbreviated form – for there to be the commission of that offence, what there has to be is the absence of agreement. It is the absence of agreement. If there is no communication of agreement, there is likely to be the absence of agreement. Agreement, we would say, is the fact: has the person agreed – and agreed freely, of course – or not? Communication is an element in demonstrating whether there has or has not been.
KIRBY J: Is the policy behind the construction of the Code that you advocate that it is the business of people who have sexual intercourse to make sure that they have consent? Is that the social policy that the Code is seeking to attain?
MR JACKSON: Yes, your Honour, it is. The Code is not just something which is a law, in a sense, to be interpreted for the protection of criminals. I do not mean that in an offensive sense. What I mean to say is that if one looks at the terms of section 192 and 192A, what your Honours will see is that the provision in the older Codes of consent with some things that would amount to absence of consent has been elaborated upon. You will see matters that have been the subject of a variety of cases historically dealt with specifically by section 192(2). You will see the concept of freedom in the expression “free agreement” emphasised and also section 192A.
All those provisions, your Honours, are ones which are directed to the protection of women. The definition of “sexual intercourse” has a wider operation, but they are provisions which are, amongst other things, intended for the protection of women.
KIRBY J: Are these gender specific offences?
MR JACKSON: Well, I am going to take your Honour to that now. Your Honours will see that the offence is created by section 192(3). It consists of the two elements of “sexual intercourse with another person” and absence of consent. I have taken your Honours to the definition of “consent”, but the “sexual intercourse” is defined by section 1 of the Act, and it is at page 8. Your Honour will see it is not a gender specific, although some of the concepts are.
KIRBY J: It is just that you said that this is for the protection of women. On that definition of “sexual intercourse” it is for the protection of persons, is it not?
MR JACKSON: Your Honour, I accept that. I think at the time I said protection of women but though not exclusively, or words to that effect. Your Honours, it is for the protection of the victim, if I could use that expression. Your Honours, the terms of section 192(3) do not themselves require intention to have sexual intercourse without consent as an element of the offence. That is the position in the Code States of Australia. We have given your Honours the references and some extracts in our written submissions in paragraphs 27 to 34.
KIRBY J: So 1.3, which is the high hurdle that you are complaining about in the directions, would not have been a correct direction in your submission in the Code States?
MR JACKSON: No, it would not have been. Your Honour will see in paragraphs 27 to 34 of our written submissions that we set out the position in those States.
GLEESON CJ: It would not have been only because of the presence in 1.3 of the words “without her consent”. If 1.3 had said that the accused intended to have sexual intercourse with the victim, full stop, that would reflect the law in Code States.
MR JACKSON: Yes, your Honour, it would. Your Honours will see – I will not read them out – the extract from Chief Justice Burt in the Western Australian court in Attorney‑General’s Reference No 1 of 1977, where he refers to this matter. Your Honours will see that has been followed in the case to which we refer in paragraphs 32 and 33, BRK v The Queen, and we refer to the position in Queensland.
GLEESON CJ: Now, I am just a little concerned about whether or not a finding against you in this case requires us to overrule decisions in the Code States. Do you say that it does?
MR JACKSON: It would be possible but, in our submission, incorrect, of course, to arrive at a different conclusion by reference to a few words, perhaps, in the definition of “act” in the Act. That is the only way, we would submit, in which that could be done. It would be erroneous, we would submit, but otherwise it would involve a consideration of the position in the other States. It is very difficult to see a difference.
GLEESON CJ: I notice the Northern Territory majority took a dim view of the decisions in the Code States.
MR JACKSON: A dim‑ish, your Honour, yes.
GLEESON CJ: What are the grounds upon which one could distinguish the Northern Territory Code from the other Codes in relation to this?
MR JACKSON: Your Honour, to put it shortly, we submit there are none. However, I would propose to go, in just a moment, to deal with what appears to be the only really possible basis. Your Honours, could I just say that, in our submission, in the present case the position for which we contend is summarised very neatly, with respect, in the reasons for judgment of Justice Angel. Your Honours will see those at page 35.
GLEESON CJ: He comes from a Code State.
MR JACKSON: I am sorry, your Honour, I should have said at page 36 in paragraph 22. He had referred in the preceding paragraph to the mental element and then, after referring to Justice Bailey’s recitation of the position in other jurisdictions ‑ ‑ ‑
GLEESON CJ: No, he is from a non-Code State. He is from a common law State – Justice Angel, I mean.
MR JACKSON: Yes, Justice Bailey more so, your Honour, but Justice Angel is staying a little closer to the text, with respect. Your Honours will see that in paragraph 23 where he says that:
Criminal responsibility under the Criminal Code (NT) is imposed, inter alia, with respect to intentional acts and foreseen events (s 31(1)). In order to ascertain whether a person is criminally responsible, one necessarily must ask what act or event is in question. Because an even is the result of an act one can not have an event –
and that is picking up the words of the definition of “event” –
one can not have an event in the absence of an act. Section 192(3) of the Criminal Code (NT) prescribes no specific mental element. Section 31(1) of the Criminal Code (NT) applies to the crime of “sexual intercourse with another person without the consent of the other person” –
which is 192(3) –
In s 192(3) the crime . . . constitutes neither an “act” nor an “event” within the meaning of the Code. Rather, it is constituted by the act of penetration accompanied by the extrinsic circumstance of lack of consent of the victim.
GLEESON CJ: Just pausing there, that is consistent with something that Sir Harry Gibbs said, is it not?
MR JACKSON: Yes, that was in Kaporonovski, your Honour, page 130, I think.
HAYNE J: Again pausing there, how does that fit with section 2 of the Code?
MR JACKSON: Well, section 2 says that:
a offence is committed when a person who possesses any mental element that may be prescribed with respect to that offence does, makes or causes the act . . . constituting the offence ‑ ‑ ‑
HAYNE J: What struck me was, his Honour at paragraph 23 says the offence:
is constituted by the act of penetration accompanied by the extrinsic circumstance of lack of consent –
Does that analysis fit with section 2?
MR JACKSON: Well, it does, your Honour.
HAYNE J: How?
MR JACKSON: In this way, your Honour – perhaps if I endeavour to do it not entirely by analogy but to say this. One sees that offences which are constituted by acts – there are some, not many, offences which are constituted by omissions, mainly failure to take care of people, and there are acts which are constituted by events. The term “events” is defined to refer to consequences, but offences which are constituted by acts, such as assaults and various other offences, may constitute events or may be acts which by themselves and absent some other quality attributable to the circumstances would not be in any way criminal.
Sexual intercourse, for example, absent some other quality, is not criminal. Similarly, a person who engages in certain acts may be engaging in acts which have no criminal element but for the fact that what is done is addressed, say, to a police officer, a judge or something of that kind. One of the provisions of the Code is a provision, for example, dealing with compounding penal actions, where a person has brought a penal action, settled it. Well, your Honour, it may be debatable, but in the ordinary course of events, to settle an action, perhaps even a penal action, would not be something that was criminal, but is made criminal in the Code if that is not done with the consent of the court in which the proceedings have been instituted.
Your Honours, numerous offences are constituted by acts, but done in a particular circumstance. So when one is speaking about an offence like sexual intercourse without consent, one is speaking of an offence which does not have a mental element prescribed for it and does the act which constitutes the offence, that is the sexual intercourse.
GUMMOW J: Is there any definition of “deed”?
MR JACKSON: No, your Honour.
GUMMOW J: The Act refers you to – it means a deed in certain cases.
MR JACKSON: It is certainly slightly dated…..with respect. The word one can, your Honour ‑ ‑ ‑
HAYNE J: By virtue of section 2 have you got to put it into one or a combination of the three descriptions “act, omission or event”?
MR JACKSON: Your Honour, I think the answer is yes, there has to be something which is an act, omission or event which constitutes the offence.
GLEESON CJ: The word “deed” commonly appears in a context of confessing transgressions in thought, word or deed?
MR JACKSON: Yes. Your Honour, if I could just go to the word “act” where the word “deed” is, I think your Honour is taking it from, and the definition of “act” in section 1, your Honours will see that it speaks of “the deed alleged to have been done by him”. So if one is speaking about “act” that is what section the definition is talking about, “the deed alleged to have been done by him”.
GLEESON CJ: Mr Jackson, which is the general provision about mistake of fact?
MR JACKSON: It is 32, your Honour.
GLEESON CJ: Section 32, thank you. Yes, you mentioned that earlier. That is the one that Sir Samuel Griffith had “common law” written alongside?
MR JACKSON: Yes, I think that is right, your Honour.
GLEESON CJ: And it is the one that Sir Owen Dixon said perfectly reflected the common law.
MR JACKSON: Yes. Your Honour, could I just go back for a moment, your Honour, to complete the reference I was giving to Justice Angel at page 36 of the appeal book? Your Honours will see in the middle of paragraph 23, he said:
The extrinsic circumstance of lack of consent is not part of ‑ ‑ ‑
GUMMOW J: This expression “extrinsic circumstance”,…..life from?
MR JACKSON: Your Honour, it is not a Code term?
GUMMOW J: No.
MR JACKSON: Your Honour, it is just a judicial description.
GLEESON CJ: It was coined by Sir Harry Gibbs, I think, was not it?
MR JACKSON: Yes, your Honour. I am saying it is not a Code term. One sees it used in a number of contexts by judges.
GUMMOW J: What does it identify?
MR JACKSON: Your Honour, it identifies, in the particular case, something other than the act itself, but in the particular case, the absence of consent, that is what is being referred to. Your Honour, I was referring to the next sentence, where he said there was “no event” and then referred to Arnol and Kaporonovski and a number of cases. Your Honours will see then that he said in paragraph 24:
Section 31(1) only applies to s 192(3) in so far as there is an act and in the absence of any event. From this it follows that in order to prove the elements of s 192(3) the prosecution must prove:
(a) that the accused intentionally had sexual intercourse with the complainant; and
(b) that the complainant did not in fact consent to that act at the time; and, if the issue of mistake under s 32 of the Criminal Code (NT) is raised on the evidence: ‑
and your Honours will see then:
(c) that the accused did not at the time have an honest and reasonable, but mistaken, belief that the complainant consented to the act of sexual intercourse.
Then your Honours will see the observations which were made in paragraph 25. Your Honours, could I just go on to say, and if I could come then to section 32, your Honours will see that section 32 is one of the provisions of Division 4 of Part II of the Code which deal with excuse, and excuse provisions are relevant because of section 23, and section 23 says that:
A person is not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorized, justified or excused.
Your Honours, the grammar of that provision seems to be this: if any Act done by him, omission made by him or event caused by him was authorised, justified or excused. Now, if one goes to section 32 itself, and may I take your Honours to its terms. Your Honours will see that section 32 applies when a person does an act, makes an omission or causes an event, but does so with a “belief in the existence of any state of things”. The existence of free agreement is, of course, such a state of things. That was referred to specifically by the West Australian Court of Criminal Appeal in Re Attorney‑General’s Reference No 1 of 1977 in the passage that has been extracted in our written submissions. Your Honours will see that at the bottom of page 7 of our written submissions, the last four or five lines.
GLEESON CJ: In a sense, the question is whether you regard the matter of consent as part of the act constituting the offence, or as a “state of things” referred to in section 32.
MR JACKSON: Yes, your Honour, I think that is so. There is no doubt, in our submission, that the absence of consent would be a state of things in terms of section 32.
GUMMOW J: These provisions, 31 and 32 are in Division 4 of Part II, the general heading is “CRIMINAL RESPONSIBILITY”. We have “Authorization, justification” and then all these sections fall under Division 4, “Excuse”. What is the relationship between Part II and, one might say, Part VI, in which 193 falls?
MR JACKSON: Your Honour, the connecting feature is section 23.
GUMMOW J: Then it talks about:
[the] act, omission or event constituting that offence . . . was . . . excused.
MR JACKSON: Yes, well, your Honour, first add a word from that in section 23:
if any act, omission or event constituting that offence done, made or caused by him –
That takes one back to the definition of act, where it speaks of:
the deed alleged to have been done by him –
If I could come back to the terms of section 32, what your Honours will see is that it applies when a person has done one of those three things with a belief in the existence of any state of things. I have referred to that aspect already. Section 32 operates if that belief is mistaken, but there are two qualifications to that. One is that the mistake must be honest; the second, that it must be reasonable. If that occurs, then the accused person in turn is not, section 32 says:
criminally responsible for [the act] to any greater extent than if the real state of things had been such as he believed to exist.
GLEESON CJ: I am not sure whether you know of this, but we have a reserved decision in relation to a case under the Criminal Code (WA) on that corresponding section.
MR JACKSON: Yes, your Honour. I cannot really say whether it will affect it or not – your Honours will know that – but this is the obvious meaning of the provision, and the burden lies on the Crown to negative it if the issue is raised.
The view adopted by the Court of Criminal Appeal in this case is that in addition to section 32, section 31 also comes into play. Could I say we do not dispute, of course, the contention, if I could express it in a simplistic form, that section 31 is capable of applying to an offence under section 192(3). The real question is, to what element or elements of section 192(3) is it applicable? If I could take your Honours to the terms of section 31, the principle provision is section 31(1). It states the broad proposition that:
A person is excused from criminal responsibility for an act, omission or event unless it –
that is, the act, omission or event was either:
intended or foreseen by [the accused] as a possible consequence of his conduct.
The latter proposition – the way in which I put it involved, without saying it, a question of construction of the section, a minor question, but it seems fairly plain that the words of section 31(1) fall into two parts, that is, “unless it was intended” on the one hand, or unless, on the other hand, it was:
foreseen by him as a possible consequence of his conduct.
Your Honours, as to the second aspect, one then has section 31(2). The concluding words of section 31(2) make it really extremely unlikely, in our submission, that at least that part of the provision could have any application to the consent aspect in a case under section 192(3).
HEYDON J: Sorry, could you explain that again?
MR JACKSON: Yes, your Honour. Your Honour will see that subsection (2) deals with the “foreseen” part of 31(1). It then says:
A person who does not intend –
which takes out, of course, the first part of 31(1) –
a particular act or omission or event, but foresees it as a possible consequence of his conduct –
which picks up the words of the ending part of 31(1) –
and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.
The conduct on the respondent’s case being sexual intercourse without consent. As a practical matter, bearing in mind the nature of the offence, it seems very difficult to imagine circumstances where a jury could properly take the view, in the light of the nature of the offence, that an ordinary person, similarly circumstanced and having such foresight, would have proceeded with the conduct.
HEYDON J: I misunderstood that point. The foresight of the victim’s lack of consent was not a consequence of his conduct.
MR JACKSON: I am sorry, your Honour, I could not hear.
HEYDON J: The foresight as a possible consequence of the conduct of penetration of lack of consent is, as it were, the wrong way around. The consent or lack of consent is a matter to be considered shortly before the actus reus of penetration.
MR JACKSON: Indeed, your Honour. It seems inapposite ‑ ‑ ‑
HEYDON J: So in that sense subsection (2) just does not work in relation to the lack of consent part.
MR JACKSON: No, nor, your Honour, of course, the second half of 31(1).
HEYDON J: Yes.
MR JACKSON: With 31(2) being an expatiation, as it were.
HEYDON J: Yes, quite.
GLEESON CJ: Am I right in thinking that it is section 31 that is relied on as the distinguishing feature of this Code from other Codes?
MR JACKSON: Yes, your Honour. It is, your Honour - I am sorry, I have to put it this way. The way in which the Court of Criminal Appeal arrived at its decision was by putting together, as it were, section 31(1) and I think the definition of “act” and “event”. Now, precisely how the result was arrived at does not quite appear, in our submission, although those appear to be the elements that brought about the result.
GLEESON CJ: But they did not purport to disapprove of or not follow the decisions of the other Code States.
MR JACKSON: They treated them, your Honour, as inapposite to this Code.
GLEESON CJ: Because of the presence of section 31.
MR JACKSON: Well, your Honour, section 31 does not differ very much from, say, section 23 of the Criminal Code (Qld) or the equivalent in Western Australia.
GLEESON CJ: But is there anything about the Northern Territory Code except section 31 that is materially different from the other Codes?
MR JACKSON: Well, your Honour, the only thing I can suggest, and I am suggesting that but saying it is wrong, is in the definition of “act”. In the words that one sees in the definition of “act” ‑ ‑ ‑
KIRBY J: But 31(1) with those words “unless it was intended” gives a toehold at least for the terms of paragraph 1.3 of the instruction given to the jury, does it not?
MR JACKSON: Your Honour, we accept entirely that section 31(1) applies to the act which is the subject of section 192(3), that act being the act of sexual intercourse. Now, it might well be possible for there to be cases where that occurs where it was not intended by the person who engaged in the act. It may be forced. It does not happen very often, but it may be forced. So there is no doubt about the application of section 31, and there has been no doubt about the application of the equivalent provision in the other States. The question is to what does it apply?
GLEESON CJ: Well, there is a rather extended definition of “sexual intercourse” if you look at paragraph (b) in section 1.
MR JACKSON: Yes, your Honour. In paragraph (b) – I was really speaking of the simplest case in effect, in part of (a) in 192(3), with which the Court is presently concerned.
GLEESON CJ: Yes.
MR JACKSON: But as your Honour has said, there is an extended definition in paragraph (b). Your Honours, the reasons for the Court of Criminal Appeal’s view appear to come from two passages, if I could reduce it as far as possible. First of all, Justice Bailey at page 50, paragraphs 75 and 76, your Honours will see that in the fourth line of paragraph 75 he said:
it matters not whether this is viewed as an “act” or an “event” within the meaning of the Code. On either view . . . It is not to the point that “act” in relation to State Criminal Codes has been construed more narrowly than the definition in s 1 of the Criminal Code (NT)
Your Honours will see the reference to “event” in the next paragraph:
to impose criminal responsibility only where a person’s mental state does encompass the consequences of his actions.
That may be so in some cases. It depends whether it is an event or not. Your Honours will then see the conclusion arrived at at the end of that paragraph and the restatement of the conclusion in paragraph 76. Chief Justice Martin at page 35, paragraph 15 said:
If a person engages in an act of sexual intercourse with another that constitutes an “act”. It is not unlawful without –
and the word “something” is obviously missing –
else. The act becomes unlawful if it be done without the other’s consent. The act combined with the lack of consent produces a result, that is, the person performing the act has sexual intercourse without the consent of the other. That combination of circumstances constitutes the offence prescribed by s 192(3) of the Code. The crime consists of a combination of an act and an event.
Your Honours will see in the next three paragraphs, 16 to 18, he says that section 32 is not exhaustive.
GLEESON CJ: Just pause with that word “event”. “Event” is defined as “the result of an act or omission”. I can understand, I believe, an argument that says the relevant act is sexual intercourse without consent. I know you say that is wrong. I am having some difficulty at the moment with the concept that sexual intercourse without consent is an event, that is, the result of an act or omission.
MR JACKSON: Your Honour, in our submission, the view that it is is not one that is properly open. The definition of “event” in section 1, at the bottom of page 5, is that it means “the result of an act or omission”. That seems to involve the notion ‑ ‑ ‑
GLEESON CJ: The absence of consent is not the result of the penetration.
MR JACKSON: On any view, it is something that accompanies the penetration, as it were, accompanies the act of sexual intercourse. It is not the result of it at all. To say that the result is the combination is really, with respect, to give the words of the definition of “event” a meaning they do not, with respect, bear.
GLEESON CJ: Maybe to give its colloquial meaning. I can understand somebody saying that, colloquially, an act of sexual intercourse without consent is an event.
MR JACKSON: Yes, it is not as defined though, with respect.
GLEESON CJ: But it is not the defined meaning of “event”.
HAYNE J: To confine the act to the sexual intercourse identifies consent as something wholly confined to the complainant, does it not?
MR JACKSON: Yes, it does, your Honour. If one sees ‑ ‑ ‑
HAYNE J: Which gives “agreement” an unusual content.
MR JACKSON: With respect, your Honour, no, because what one sees is that the term “consent” is a defined term. It means free agreement and your Honour will see in section 192(3), it says:
without the consent of the other person.
“Consent” means free agreement and is free agreement of the other person.
HAYNE J: Yes.
MR JACKSON: Your Honour, undoubtedly when one is speaking of free agreement of the other person, it is speaking of free agreement of the other person to an act within the definition of sexual intercourse being performed in relation to that other person. It is not free agreement in the contractual sense.
HAYNE J: No.
MR JACKSON: I do not suggest your Honour was saying that to me, but it is speaking of whether the person upon or in relation to whom the act which constitutes sexual intercourse is to be performed accepts that it is to happen to them and does so freely.
HAYNE J: Well, is it acceptance or agreement? There is, perhaps, part of it, but we have exposed the point.
MR JACKSON: Yes. Your Honours, could I just go then for a moment to the definition of “act” in section 1. What your Honours will see is that it is expressed to be:
“act”, in relation to an accused person, means the deed alleged to have been done by him; it is not limited to bodily movement and it includes the deed of another caused, induced or adopted by him or done pursuant to common intention -
That seems to involve cases where there were secondary parties involved in the offence or, perhaps the principal does the act and the person is the secondary party.
GLEESON CJ: Is that common to all the Codes?
MR JACKSON: This definition?
GLEESON CJ: Yes.
MR JACKSON: No, your Honour. The Codes do not define “act”. They speak of “act” or “event” but do not define “act”. Your Honours, one sees, in our submission, that the words “it is not limited to bodily movement” are words put in to resolve the somewhat elegant discussions one saw in a number of cases dealing with what constitutes the act under the Code. I will give your Honours one reference in just a moment. It becomes, if one takes the firing of a firearm, the question of whether it is simply pulling the trigger or the fact that the firearm itself fires or whether it goes to the damage done to the person and so on which would be an event in this case.
Your Honours, if I can go to for just a moment to the R v Falconer (1990) 171 CLR 30 at 38. Your Honours will see halfway down the page a reference to section 23 of the Criminal Code (WA), which is set out at page 35:
a person is not criminally responsible for an act of omission which occurs independently of the exercise of his will, or for an event which occurs by accident.
Then, your Honours, one sees at page 38, a little past halfway down the page:
The “act” in s. 23 has been differently described in judgments in this Court: see Vallance; Timbu Kolian; Kaporonovski v The Queen. In our opinion, the true meaning of “act” in s. 23 is that which Kitto J. in Vallance attributed to “act” in s. 13(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility.
Your Honours will see that referred to through the remainder of that paragraph.
GLEESON CJ: Accompanying state of whose mind?
MR JACKSON: It would be an accompanying state of mind of the accused, in my submission. If I could just interpolate there, when one sees the definition of act in the Northern Territory Code, the way in which it is expressed is:
in relation to an accused person, means the deed alleged to have been done by him ‑ ‑ ‑
GLEESON CJ: What about an act like cheating and defrauding? Does that not involve a combination of conduct on the part of the cheat and an accompanying state of mind on the part of the victim?
MR JACKSON: Well, it may, your Honour, yes. It depends on how it is expressed. Most often those provisions are ones which contain a specific intent, intending to do this or that, but in such a case this Court’s decision in Charlie v The Queen would mean that section 31 is not applicable because the provision is one which has a specific intent.
GLEESON CJ: If it has a specific intent. But are there not some crimes that – I mean a lot of crimes involve an act on the part of – well, homicide is the obvious example, it has to result in death. It is not only an act plus consequences. Are there not some crimes in which it is an act plus an accompanying state of mind on the part of a third party?
MR JACKSON: Well, your Honour, most often those cases are ones where the act would induce a state of mind, and that would be something which would be an event.
GLEESON CJ: An event.
MR JACKSON: Be the result of an act or omission. There may be cases on the fringe, no doubt, and one would need to look at particular provisions, but, generally speaking, if I could just go back to the definition of act for a moment, it commences with the words “in relation to an accused”, then it says:
means the deed alleged to have been done by him; it is not limited to bodily movement –
Now, presumably, that means it is not limited to bodily movement by that person. One sees then, in the first paragraph on page 39 of Falconer, if I could go to the last sentence, about the last five lines of that paragraph:
Adopting the meaning of “act” expressed by Kitto J. in Vallance, the act with which we are concerned in this case is the discharge by Mrs. Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr. Falconer.
Your Honour, it is to deal with things of that kind, in our submission, that one sees the words as not limited to bodily movement, as it were, of the accused person. Your Honours, could I just say that the consequence of the decision given by the Court of Criminal Appeal is, in our submission, that effectively section 32 is otiose.
GLEESON CJ: That is not a surprising consequence in this context, because that is exactly what happened in New South Wales after Morgan. Judges in New South Wales, until the decision in the House of Lords in Morgan, had addressed this issue by directing juries in relation to honest and reasonable mistake. The New South Wales Court of Criminal Appeal said that following Morgan you have to forget all about honest and reasonable mistake and the law on that subject and deal with it as a matter of intent.
MR JACKSON: Your Honour, the privilege of saying that the common law changes in that way does not really quite exist when there is a statutory provision like section 32, because section 32 cannot be in a sense written out. It exists and the legislature has put it in to have some application. It is a curious thing, in our submission, if the result of the view taken by the Court of Criminal Appeal is that really in one of the class of cases in which the section 32 issue is most likely to arise, sexual cases of this kind, that that provision does not have an effective operation. Of course, the view taken by the Court of Criminal Appeal is one which would go beyond section 192(3) offences. It would apply to assault cases. “Assault” is defined in section 187 to mean:
the direct or indirect application of force to a person without his consent –
and, your Honours, in our submission, that is a serious consequence. Could I say just one or two things about our ‑ ‑ ‑
GLEESON CJ: I am sorry to badger you about Western Australian cases, but in another case in relation to the Western Australian Code and the equivalent of section 32 in which we gave judgment last year I think we pointed out that there are certain crimes to which a provision like 32 has no application, because they contain within the definition of the crime some element such as knowingly doing something.
MR JACKSON: Your Honour is not thinking of Charlie? That is the Northern Territory case.
GLEESON CJ: No, I was thinking of a Western Australian case concerning ‑ ‑ ‑
MR JACKSON: Is it Ugle, your Honour?
GLEESON CJ: No, it was a case about ‑ ‑ ‑
MR JACKSON: Ugle and Murray, your Honour, perhaps ‑ ‑ ‑
GLEESON CJ: ‑ ‑ ‑ a man who turned up in contravention of an apprehended violence order and threatened his wife. We said in that case – there was a complaint. It was a litigant in person who was complaining that the judge did not direct the jury in terms of section 32 and we came to the conclusion that the judge did not have to, because 32, or the equivalent of 32, did not arise because it was an element of the offence and the Crown carried the onus of proving a state of mind on the person’s part.
MR JACKSON: Your Honour, that really seems to accord with the approach taken by the Court in Charlie, where section 31 was held inapplicable to cases where a specific intent was required. Your Honours, could I just say, if your Honours were to look at our learned friend’s written submission in paragraph 15 and in particular paragraph 15(a), what is said is essentially, which is something that has been dealt with in part:
Section 31(1) excuses criminal responsibility for an act unless it was intended or foreseen by the actor as a possible consequence of his [or her] conduct. However, the Code imposes no criminal responsibility on an act of sexual intercourse with another person, on its own.
And your Honours will see the remaining sentence. This is an aspect that your Honour Justice Hayne mentioned to me earlier, I think. Your Honours, could I just say this. There are really two objections to that proposition. One is the one I advanced earlier, that there are numerous offences constituted by an act which may, by itself, be entirely lawful but the circumstances in which it occurs produce a different result. Could I just give your Honours some references to four of them; sections 188, 189A, 186B and 105. Section 105 is, I think, the provision I was referring to specifically before about compromising penal action, the compounding penal actions.
Your Honours, could I just say the second thing about it though is this. If one is saying that there is no criminal responsibility to excuse that really, in our submission, reverses the position. To make section 31(1) applicable in a way which assists the respondent’s case one really does have to enlarge what is the act or event contemplated by the provision.
GUMMOW J: What is your point about section 188?
MR JACKSON: Section 188(1), your Honours will see it refers to unlawful assault generally. In subsection (2) it refers to a number of circumstances which provide that it becomes a crime and there is a liability to imprisonment. Your Honours will see in relation to the various elements there that they are elements of the offence. No doubt one can regard them as circumstances of aggravation, but so far as the offence picked up by 186(1) and 186(2) are concerned, they are elements which, at least in a number of respects or a number of occasions, do not involve any particular act but they relate to the quality of the act, as distinct from the nature of the act itself.
GUMMOW J: But the suffering of bodily harm would be an event, would it not?
MR JACKSON: Yes, your Honour, but there are alternatives and, for example, if one went to paragraph (e) “a member of the Legislative Assembly” ‑ ‑ ‑
GUMMOW J: Yes. Is this in all the Code States?
MR JACKSON: Your Honour, I cannot say for certain, but I believe I have seen it and I would be surprised if the legislators had not made sure it was there. Your Honour, could I just say two things? In relation to section 192A – I think your Honour Justice Heydon asked me this – the directions appear at page 9 at about line 30 through to page 10, about line 34.
HEYDON J: Yes, I was just interested. It probably does not matter in view of where we now are whether counsel objected to the directions given in accordance with the formula which you are going to supply subsequently after the Chief Justice ‑ ‑ ‑
MR JACKSON: Yes, your Honour, we objected to the directions that were given. Your Honour, so far as the development, as it were, of the common law is concerned, in Morgan’s Case the common law developed in the way in which there has been reference made. Your Honours, in B v Director of Public Prosecutions what had been said by Lord Diplock in Sweet v Parsley which was the general principle of construction that the words of a criminal offence creating a statute were:
to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent.
That is the section 32 equivalent. That was revisited in B v Director of Public Prosecutions [2000] 2 AC 428. It was said in that case ‑ ‑ ‑
GLEESON CJ: What was the page number, please, Mr Jackson?
MR JACKSON: Page 428. I will give your Honours the particular references in just a moment. But it was said that that formulation, in the light of Morgan, had to be altered so that the reference to “reasonable grounds” was omitted. So that it was pure honesty, not honest and reasonable. So that the equivalent of section 32 has gone, but the English position in relation to sexual offences was altered by the Sexual Offences Act 2003, which was assented to on 20 November 2003, and will come into operation in May this year. That is likely to affect the situation, your Honours.
I said I would give some references in B v Director of Public Prosecutions: at page 463F per Lord Nicholls, with Lords Irvine and Mackay agreeing, and in a separate judgment Lord Steyn at page 477D to 478B. I do not think I need take your Honours to it now, but the effect is simply as I said, that the question of reasonableness has gone.
GLEESON CJ: But to come back to your section 32 argument, as I understand the argument against you, it is that there are some crimes, of which this is an example, where having regard to what the Crown has to establish you never get into the question of an accused showing or seeking to show mistake. If the argument against you as to what the Crown has to prove is right, it is not a question of reading section 32 out of the Code. It is
just that the issue that is potentially raised in relation to other crimes by section 32 is not one that comes up for consideration.
MR JACKSON: Your Honour, that is correct, if the premise of it is right, of course, but in determining whether the premise of it is right there are really two aspects. One is to look at the language of the provision to which section 31 is to operate and to see on what parts of that provision section 31 does operate. The second is a slightly different aspect, and that is as an aspect of arriving at an ultimate conclusion the presence of a provision like section 32, in relation particularly to offences of the present kind, is one which, in our submission, makes it unlikely that section 31 is to be read in relation to the particular offence in the way in which it is contended for by the other side. That is why, your Honour, one cannot leave out of account section 32. It has to be taken into account in arriving at a conclusion as to the meaning of the Act.
HEYDON J: The respondent seems to accept that section 32 can apply; paragraph 12 of his written submissions.
MR JACKSON: Yes, your Honour. Difficult to see. Easy to say, your Honour. But if the section – it is difficult to see how one would get to section 32 really if the section 31 argument is successful.
HEYDON J: Yes.
MR JACKSON: One can make a very fine distinction, I think, about these very difficult ‑ ‑ ‑
HEYDON J: If you do get to section 32 that must mean that question 2 should be answered favourably to you because on no view can there have been a proper section 32 direction.
MR JACKSON: Yes, I think that is so, your Honour. Your Honour, I have to be wrong. I…..draft direction.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Odgers.
HEYDON J: Was there a satisfactory section 32 direction?
MR ODGERS: Your Honour, as I understand it, because the Crown raised the question of belief and raised this issue of whether it had to be reasonable, his Honour correctly directed the jury, on our analysis of the Code, that it is not correct that it had to be a reasonable belief, that the effect of 31, as the trial judge understood it, was that it did not have to be reasonable.
HEYDON J: Do you defend that?
MR ODGERS: Yes, on a proper application on section 31.
GLEESON CJ: So you say section 32 does not arise?
MR ODGERS: In this case, in the practical circumstances of this particular case, no, but we do submit that there may be unusual cases where it could arise, where it could have work to do, and we give the example of a situation where a defendant did believe on the balance of probabilities that she was consenting but realised there was a possibility she was not. Now, the effect of 31 would be he has got – 31 would not save him because he has foreseen the possibility that she is not consenting.
KIRBY J: Here the defendant said that the accused did not consent in words but by her action, and the fight at trial was between a case where the complainant said that there was no consent at all and that she was resisting and struggling and the accused who said she did consent, though not in words, by her actions. It was a fairly clear‑cut factual case.
MR ODGERS: Yes. In many cases there is really no issue about belief in consent or – it turns on was there consent or was there not, in many cases. But sometimes, and this case was one, a judge concludes that it is appropriate to give proper directions about the mental element, and the debate between the appellant and respondent comes down to the question, “Does 31 have work to do in respect of the consent element of section 192?”
The appellant’s contention is that it has no operation whatsoever on the consent element. The majority of the Northern Territory Court of Criminal Appeal considered that it did have work to do. Whether or not 32 might, in some remote circumstances, also have some work to do does not really, with respect, matter much. Notwithstanding what your Honour the Chief Justice says, we can contemplate circumstances in which 32 might save a defendant.
HAYNE J: I do not understand how that can be, Mr Odgers. If you are right in your principal argument, I do not understand how 32 can ever be engaged in connection with questions of consent.
MR ODGERS: I will repeat that scenario, your Honour. It is a defendant who recognises it is a possibility, realises there is a possibility she is not consenting. Under 31, he is not excused – subject to 31(2), but I accept that 31(2) will almost never have any effect. He is not excused, because he has foreseen that possibility.
GLEESON CJ: That is on the basis that he has foreseen what? An act, an omission or an event?
MR ODGERS: We support the view of the majority, that it is either an act or an event, properly characterised.
GLEESON CJ: What is an event?
MR ODGERS: Sexual intercourse without consent.
GLEESON CJ: But an event is defined as a result.
MR ODGERS: Yes, I understand your Honour’s difficulty in seeing how sexual intercourse without consent can be appropriately characterised as the result of an act. I will attempt to answer that in a moment, but, returning to what your Honour Justice Hayne raised with me, the effect of 31 is that you are not excused if you foresaw the possibility she was not consenting. So 31 will not save you, it will not excuse you, if you foresaw that possibility.
HAYNE J: What has the Crown to prove?
MR ODGERS: That you either intended to have sexual intercourse without consent, or realised that it was possible she was not consenting. If you do either of those two things, then you are not excused by 31.
GLEESON CJ: How is that foresight? It is what your state of mind is at the time of what Mr Jackson called “the deed”. What does foresight have to do with it?
MR ODGERS: If one can be anticipating something happening a second ahead, you can foresee what is the situation that I am confronted with. If I engage in sexual intercourse now with this person, will the position be that I am engaging in sexual intercourse without consent? So I am anticipating the situation and the defendant in that circumstance proceeds and will not be excused. Now, I accept that it is a little bit difficult to characterise it as foresight in terms of anticipation of future events, because there is an element of contemporaneity.
HAYNE J: The difficulty is leading to a needless elaboration and complication of what otherwise is, comparatively, a straightforward set of circumstances to be established by the Crown.
MR ODGERS: My response to that is that section 32 is, on one view of it, an unjust provision. If 32 is the relevant and only applicable test of criminal responsibility for sexual intercourse without consent, then that means that defendants, who honestly believe that the complainant is consenting, can still be convicted.
HAYNE J: That seems to be to regard the excuse provisions as driving the entirety of what must be established in relation to intent. We have to traipse our way through the Code from the beginning.
MR ODGERS: Your Honour, I accept that and I will attempt to do that but I am responding to the appellant’s contention. The appellant’s contention is that the mental element for the offence of sexual intercourse without consent in the Northern Territory, I will just use the term “rape”, is satisfied by an intention to have sexual intercourse, full stop. There is also, according to the appellant, a defence of honest and reasonable mistake of fact so that if you believed that she was not consenting, and it was a reasonable belief, you will be excused.
On that analysis, if the appellant is right, if Justice Angel is right, a person charged with rape in the Northern Territory will be convicted even if he honestly believed that the complainant was consenting. It may be that this Court says if that is the result of the proper interpretation of the Code, so be it, and it is, I fully concede, appropriate then to go through, step by step, what the Code says but I am pointing out the consequences of the appellant’s contention.
If I could return, because I do not want to leave it up in the air, to the question your Honour asked me as to any work 32 would have if we are right about 31, I repeat again, if a defendant foresaw the possibility that she was not consenting, subject to the questions about foresight, he will not be excused by 31. However, one can imagine circumstances in which he will be excused by 32. Nonetheless, where he has, for example, regarded the possibility as very slim, he has put it out of his mind, he has thought, “It is clear to me that she is consenting, maybe she is not but it is a negligible possibility, I am not going to act on it and I am going to proceed”, and perhaps he had reasonable grounds for that belief, 32 would excuse him even though 31 would not.
GLEESON CJ: The Western Australian case I was referring to – one of them – was King v The Queen (2003) 77 ALJR 1477. It is not exactly this situation, but it is a case in which there was an offence of being in breach of a restraining order and a defence if you could establish that the person who was complaining about the breach consented to what you did. One of the grounds on which that decision proceeded was that, depending on the terms of the restraining order, it might be obligatory for the prosecution to prove absence of consent, in which case the excusing provision would never come into play.
MR ODGERS: Yes.
GLEESON CJ: Because of the elements of the principal offence, the matter of excuse never arises for consideration.
MR ODGERS: And, as your Honour said, as is recognised in New South Wales, if the mens rea provisions apply to sexual intercourse without consent, honest and reasonable mistake will have no operation. I qualified that in the Northern Territory; can I explain why it is different in the Northern Territory. It is because under the common law jurisdictions they talk about reckless indifference and it really is very hard to see how honest and reasonable mistake of fact can co‑exist with a conclusion that there was not reckless indifference. That is why, as a practical matter, it is really inconceivable that honest and reasonable mistake of fact would have any work to do. The Northern Territory Code is different because it does not talk about recklessness or reckless indifference, it talks about foresight of a possibility. I have given the scenario. It is possible to imagine situations in which 32 would have work to do.
HEYDON J: Just on that, the accused did not give evidence, but there was a detailed record of interview which was exculpatory. When you say that this limited scenario does not arise, is that because of a construction of the record of interview? Is it not another approach that everything is, as it were, open to a wide range of factual findings in any case, and therefore there is always going to be a section 32 possibility that the Crown would have to exclude, in which case these questions are not appropriate?
MR ODGERS: No, your Honour, it is well recognised that directions on mistake will not be necessary in every case of rape or sexual intercourse without consent, and there has to be some evidentiary basis for the possibility that there was mistake.
HEYDON J: So the evidentiary basis is here excluded, you say, because if we read page 23 and thereabouts of the appeal book we do not find ‑ ‑ ‑
MR ODGERS: No, I am sorry, I do not want to give the impression that the evidentiary basis was excluded. There was a basis for mistake in this case.
HEYDON J: If so, then, should there not have been an appropriate question about it?
MR ODGERS: But, your Honour, the question is, it really goes to the nub of the appeal because it is a question of how a jury is properly to deal with this issue of mistake. On the Crown’s contention they deal with it by asking, “Did he honestly believe it, and was it reasonable?” The judge directed the jury on the basis that, “No, no, no. If he honestly believed it, it does not have to be reasonable”. If he made an honest mistake he will not be guilty, whereas on the Crown’s contention, he could well still be guilty if it was an unreasonable belief. So the issue was raised in this case. The question is how you properly direct the duty about it. The appellant’s contention is they were misdirected because they should have been told it had to be both honest and reasonable.
KIRBY J: Yes, but is not Justice Heydon right, that the finding of facts, and the determination of what the true facts were, they being in stark contrast, was a matter for the jury.
MR ODGERS: Yes.
KIRBY J: And depending upon the way they found the facts, you needed a direction under section 32.
MR ODGERS: Your Honour, in this particular case, it seemed to fit within what the Chief Justice said, the normal situation where, if 31 operates, you do not need to get into an alternative issue of honest and reasonable mistake of fact.
KIRBY J: But the judge would not have any way of knowing how the jury - there was a sharp conflict of testimony here. The judge giving directions would not know how the jury was going to resolve that.
MR ODGERS: Your Honour, I am content to accept that it may be that in some situations a judge will have to give both proper 31 and 32 directions, and a judge would say, and I think it is appropriate this time, since I anticipated that your Honours were going to ask me what would be the proper directions that should be given, I have drafted a document which I will hand up to your Honours, which we would say, is the proper directions that should be given if you need to give directions under both 31 and 32. So yes, the judge did not give directions under 32 in this case. I do not understand that there is any real complaint about that by the appellant, and the questions of law that went to the Court of Criminal Appeal did not raise the issue anyway, with respect.
HEYDON J: Was the learned trial judge correct in directing the jury, in respect of the aspect of mistaken belief as to consent, that such a mistake and belief need not be based on reasonable grounds?
MR ODGERS: I think it was understood that he was relating that back to the proposition that the defendant either had to intend to have sexual intercourse without consent or foresee the possibility that she was not, or foresee - I will find the precise words, your Honours, if I can find the appeal book.
HEYDON J: Are you looking for the questions, the aide‑memoire?
MR ODGERS: Yes, the aide‑memoire, your Honour.
HEYDON J: Page 28.
MR ODGERS: Page 28, thank you. As I understand it, it has been assumed all along, perhaps wrongly, but assumed all along that, and I think Mr Jackson put it correctly, that 4.2 was an explanation of 4.1 so that when he was talking about 4.2 he was not talking about 32, if I might use that language. He was really giving an explanation of 4.1. It may not have been an entirely strictly accurate direction. I have attempted to draft, what I say, are strictly accurate directions, but that has not really been a matter that has been argued about, either in the Court of Criminal Appeal, or as I understand it, by the appellant. The appellant is really - can I be brutally frank about this your Honours - the appellant is not particularly concerned about these particular directions in whether they are strictly correct or not. There is only one question that this Court really needs to focus upon, and that is, does section 31 apply in respect of the absence of consent element?
The appellant says it does not, but the majority of the court said it did, so that is the issue. While I do not want to understate the criticisms that might be made of the directions, that has never been really the focus of this appeal or what was argued below.
GLEESON CJ: The point of departure between the majority and the minority view is found in that part of the judgment of Justice Angel that Mr Jackson referred us to relying on what Justice Gibbs said. That is at page 36, lines 25 to 35.
MR ODGERS: Yes. If I might summarise the majority view, the majority view is that sexual intercourse without consent is either an act for the purposes of section 31, as defined by the Code, or it is an event for the purposes of section 31, because the same test applies whether it is an act or an event. Justice Angel’s analysis is it is neither an act nor an event.
GLEESON CJ: His view is that the sexual intercourse is the act.
MR ODGERS: His view, correct.
GLEESON CJ: And the absence of consent is not an event.
MR ODGERS: Yes, but, of course, the majority did not say that absence of consent is an event. They said that sexual intercourse without consent is either an act or an event.
GLEESON CJ: Which?
MR ODGERS: They said you do not need to decide which. That was Justice Bailey’s judgment and he was the one that two other members of the court agreed with. He said you do not need to decide because it is one or the other.
GLEESON CJ: I can understand how you could describe it as an event colloquially, but how can you describe it as an event having regard to the definition?
MR ODGERS: My primary submission is that all that the definition does – all it does – is impose some causal connection between an act and an event.
GLEESON CJ: The penetration did not cause the lack of consent.
MR ODGERS: No, but what I submit was that the event of sexual intercourse without consent was the result of the accused engaging in or having an act of sexual intercourse with the complainant.
HEYDON J: It sort of caused itself in part then. The act of sexual intercourse caused the act of sexual intercourse without consent?
MR ODGERS: One does not need to – when one looks at the definition of “event” it just says “the result of an act”. It does not say “the act which is the act for the purposes of determining criminal responsibility”. So it could be any acts of the defendant leading up to, what you might call, the act of sexual intercourse, but the critical point is that his acts caused the event of sexual intercourse without consent. His acts caused that.
HAYNE J: That is a proposition that bears little, I dare to venture no, relationship to the words of the Code. You have to grapple with the words, Mr Odgers. It is of no utility divorcing it from the words of the Code.
MR ODGERS: The words of the Code are:
“event” means the result of an act or omission ‑ ‑ ‑
HAYNE J: Just so. What is the relevant act with which we are concerned here?
MR ODGERS: I am suggesting to your Honours that one does not need to, in that analysis, say that it is the act of sexual intercourse. One could say that it is any other act of the defendant leading up to what we say is the result. The result is sexual intercourse without consent. We say that all the definition does is to require some causal connection between some act and the thing said to be the event. The fact that there is another circumstance present does not make it any less the result of his actions or his acts and omissions. The definition “result of an act” does not say the result of an act and nothing else; it does not say the result of an act which is an act upon which criminal responsibility turns. It just simply says the result of an act.
Now, I sense your Honours are not entirely persuaded by this. I have put an alternative analysis or argument in the written submissions, at 6.4. At page 6 of the written submissions, in the middle of the page, I have suggested that:
Using the language of the definition of “event” in s 1, the result of the respondent failing to obtain consent was that sexual intercourse took place without the consent of the other person.
GLEESON CJ: But you have an alternative argument, do you not? That sexual intercourse without consent is an act. That has to be it.
MR ODGERS: Of course. If your Honours are not persuaded that it would be open to regard it as an event, then, obviously, my argument is that it would be open to regard it as an act.
GLEESON CJ: Which is now relevantly a deed, is that right?
MR ODGERS: Correct, and, significantly, it is not limited to bodily movement. That is important, because your Honour have been taken to judgments in Tasmania and judgments of the High Court in Vallance where, under the Code provisions operative in those jurisdictions, it was held that “act” was limited to a bodily movement. The Code makes it clear beyond doubt that such a narrow interpretation of the word “act” is not to be adopted in the Northern Territory, quite apart from the use of the word “deed”.
GLEESON CJ: Does that mean that if we agreed with your submission we would either have to hold that the line of authority in the Code States on this subject is wrong or, alternatively, that the outcome of this case rests upon the peculiar definition of “act” in the Northern Territory Code and section 31?
MR ODGERS: We say that it is not necessary to uphold this decision to hold that any decision in any other Code jurisdiction is wrong.
GLEESON CJ: And why is that?
MR ODGERS: Well, for a number of reasons. The first reason is because “act” is defined, as your Honour said, specifically in a way in the Code which makes it clear that it is considerably broader than the narrow view of “act” that has generally been taken in respect of those other jurisdictions. That is the first point.
Can I say, just before I continue with that point, as I understand it, the decision in Ugle last year by this Court effectively overturned the narrow view of “act” which had been taken in Vallance and adopted in Kaporonovski. True it is Ugle was from Western Australia rather than Tasmania. In Ugle your Honours held unanimously that a wounding is an act, and rejected the narrow view that the act was the bodily movement.
It was the minority view in Vallance that the act was the wounding, and that was rejected by the majority. It is that narrow view which was then followed by the Tasmanian courts. As it happens, although it is of limited relevance to this appeal because the Code itself makes it clear that “act” has a much broader meaning, as it happens this Court - the law has moved on in any event. That is really an excursus.
Returning to your Honour the Chief Justice, the first reason we say “act” is clearly not narrowly defined, there is a reference to “deed”, there is a reference to it being more than bodily movement, but we also say that assistance in interpreting it is to be gained by the terms of 31(2). Can I explain that point. It was a point that perhaps was better made by Justice Nader in Pregelj, which I will take your Honours to in due course, but I will make the points as best I can now.
What 31(2) appears to make clear is that the Code proceeds on the basis that an act can be foreseen as a possible consequence of conduct. Now, when one steps back and says, “Well, what does that mean?” it certainly does seem to suggest that the word “act” is intended to have a much broader connotation than the narrow view that has been taken in respect of other Codes. I will refer you to what Justice Nader said in Pregelj in due course.
The second reason why we say that your Honours do not have to override or take the view that other Code decisions are wrong is because we place a lot of weight on the word “event”, which may not attract your Honours, but it is very important to appreciate that if you could characterise sexual intercourse without consent as an event, then that produces a totally different result from the other Code jurisdictions, because, of course, in those jurisdictions the event, where it is an event, is only excused where it occurred by accident, whereas here, in the Northern Territory, if it is an event, it is excused if it was not foreseen. In Tasmania, Western Australia and Queensland, because the test is “event occurring by accident”, it is an objective test, so it does not have any real work to do in this context, whereas the Northern Territory provision does. If it is an event, it has to be foreseen.
Your Honours, just following up, returning to the question of why the other Codes are different. It is clear when you look at the cases in Tasmania of Snow and Arnol that they turn on a narrow conception of what “act” was, which, as I have said, relied on the view that an act was a bodily movement. So we say, therefore, that those cases do not have to be overturned ‑ ‑ ‑
GLEESON CJ: Except that Justice Gibbs gave this very case as an example of what is not an act in Kaporonovski. When he was setting out to demonstrate what was not an act, he said in a case of rape the act does not include the absence of consent on the part of the victim.
MR ODGERS: Yes.
GLEESON CJ: We would have to disagree with that, would we not, if we were to find in your favour on this argument, or relate it to something special abut the Northern Territory Criminal Code?
MR ODGERS: Yes, but, your Honour, as I understand it, Justice Gibbs took the narrow view of what an act was, which, as I have said, I do not think can stand any more with the Court’s decision in Ugle. In Vallance the very question arose, “What was an act in a situation where somebody stabbed another?” It was held by the majority that it was the bodily movement and not the wounding. As I say in Kaporonovski, Justice Gibbs, as I understand it, said that is the position and therefore “act” is a very narrow concept. Quite apart from the Northern Territory, this Court has now unanimously held that wounding is an act for the purposes of the Western Australian Code, and there is no relevant difference between the Western Australian and Tasmanian Codes.
GUMMOW J: Ugle is 211 CLR 171.
MR ODGERS: Can I say this. When asked the question, what is a wounding, a wounding is a combination of the act of somebody moving his arm in a particular direction combined with the fact that he is holding a knife and combined with the circumstance that the knife moves in a direction which comes into proximity with the body of somebody else and enters that body. Wounding is a combination of acts and circumstances, properly analysed.
So my first response to what Justice Gibbs said in Kaporonovski is that it is hard to see how it can stand with Ugle, but my second response is to say, even it is correct in the Northern Territory, the definition of “act” makes it clear that those who drafted the code intended to adopt the minority view in Vallance. They intended to not adopt the majority view. They intended to have a broad concept of “act” and, therefore, even if Justice Gibbs was right and that is still the position in those other Code jurisdictions, it has no relevant effect in the Northern Territory.
My third point is this, we do argue, and this is really, perhaps, an alternative argument, that the intention behind the drafting of the Code was that every offence in the Code would be constituted by an act, an omission or an event, every offence.
GLEESON CJ: You mean all the elements of the offence would fall within either the definition of an act or an omission or an event.
MR ODGERS: Correct, or a combination of those concepts. Section 2 of the Code does, we say, tend to suggest that that was the intention behind those who drafted the Code. There is no reference to the words “extrinsic circumstance” in the Code.
GUMMOW J: Some gloss that has appeared.
MR ODGERS: Your Honour, no doubt it is a gloss that partly derived from what Justice Gibbs said in Kaporonovski and no doubt those lawyers in the Northern Territory who are familiar with the position in Queensland and Western Australia and so on have sought to utilise that reasoning. Our submission, in respect of this, is that section 23 talks about an act, omission or event constituting the offence and Mr Jackson has taken you to that aspect of our argument where we have said the appellant’s argument cannot stand. The appellant’s argument is that section 31 applied in respect of the act of sexual intercourse. Our response is “So what?” because it has to be an act, omission or event constituting the offence and sexual intercourse does not constitute the offence; the offence is constituted by sexual intercourse without consent. We put the argument that it is implicit, within the Code, that all external elements of offences should be characterised as acts, omissions or offences or of events ‑ ‑ ‑
GLEESON CJ: All right. Well, take section 134 of the Criminal Code, is the relationship of father to daughter part of an act or an omission or an event?
MR ODGERS: Your Honour, it may be that this is a case where Charlie would raise its head in that because there is a specified specific mental element that it would be understood that 31 would not have operative effect.
GLEESON CJ: Well, I am just looking at section 134. That is a case where having sexual intercourse with somebody is a crime, not because of any presence or absence of consent, but because of the fact of the relationship between the participants.
MR ODGERS: Yes your Honour.
GLEESON CJ: Now, is the fact of the relationship of the participants something of the kind that Sir Harry Gibbs was describing as an extrinsic circumstance, or is it part of the act or – it is certainly not an event, I should have thought.
MR ODGERS: Well, your Honour, absent the relevance of Charlie, I would submit that it was an event. The event is having sexual intercourse with a person having certain characteristics. That is the event.
GLEESON CJ: I can understand how colloquially you would describe that as an event.
MR ODGERS: We are returning now to this problem of the definition.
GLEESON CJ: Let us assume that you are wrong on that, can you describe that as part of an act?
MR ODGERS: Broadly interpreted, yes, just as one can say that wounding is an act, just as one can say that sexual intercourse without consent is an act.
GLEESON CJ: Well, take section 132, is the age of the child part of the act?
MR ODGERS: At the end of the day, the question for a court is, “Can it characterised as an act or an event?” It may be that it would not be appropriately characterised as an act. I am not making any strong submission on that.
GLEESON CJ: I picked 132 and 134 because they strike me as classic examples of cases where you might want to defend yourself under section 32.
MR ODGERS: There is no difficulty in relying on 32, even if 31 has operative effect. It returns to this point your Honour raised.
GLEESON CJ: If a person is charged with an offence under section 132 and he says, leaving aside questions of onus of proof, “I thought that that was a person of 17 years” and questions of mistake come up, does the mistaken belief have to be on reasonable grounds or not?
MR ODGERS: No, because it is appropriately characterised as an act or event which has to be intended or foreseen. It is appropriate to characterise indecent dealing with a child under the age of 16 as either an act or an event which has to be intended or foreseen. He would have to, at the least, foresee that the child may be under the age of 16. Unless that was foreseen as a possibility, the defendant would not be guilty by reason of the operation of section 31.
HAYNE J: That is blending 31 and 32 and injecting notions of foresight into ‑ ‑ ‑
MR ODGERS: No, your Honour, I am applying 31 to that scenario and I am submitting that it is appropriate to take the view that that circumstance, if I call it circumstance, of being under the age of 16 can be something to which 31 has operative effect.
HAYNE J: The opposite point of view may be that unless 32 is engaged in such a case – the mistaken age case – 31 has no work to do at all.
MR ODGERS: That is the appellant’s contention, that only 32 would operate, so that even if he honestly believed that the child was 16 or 17, if that was an unreasonable belief, he would be guilty.
HAYNE J: Yes.
MR ODGERS: That is their contention. Can I say this, your Honours, as a matter of linguistic analysis, I think I would have to accept that it is at the very least arguable that sexual intercourse without consent is not an act or event. Equally, I say, as a matter of linguistic analysis, it is arguable that it is an act or event, even accepting that an event is defined in a particular way in the Code. But it is at this point that I seek to rely very heavily on what has happened in the Northern Territory. The fact of the matter is that the Northern Territory Supreme Court, over decades now, has taken a very broad view of act or event, and the legislature has not sought to intervene, has not sought to override that very broad view. Indeed, the Northern Territory Supreme Court has taken the view in respect of assault ‑ I will take you to it in a moment – that assault, which is an offence of infliction of force without consent, is something to which 31 operates.
GLEESON CJ: I can understand that as a reason for refusing special leave to appeal, but now that we have taken the issue on we just have to interpret the Code, whether for you or against you, in the way that it appears to us to be correct, do we not?
MR ODGERS: No. I draw it in aid as an aid to interpretation, that if there is ambiguity the Court should – if a view has been taken by the Northern Territory Supreme Court over many years, a particular view which your Honours think is doubtful or questionable, but nonetheless, if it is a view that is open, then your Honours should not replace it with your own views ‑ ‑ ‑
HEYDON J: It is better to be perpetually wrong than eventually right?
MR ODGERS: No, I am drawing an inference that the Northern Territory legislature has been content with how the Northern Territory Supreme Court has approached the scope of the concept of act or event under section 31.
KIRBY J: The contrary canon of construction is that you seek to get consistency in the way basic principles of criminal law are looked at in different States.
MR ODGERS: Of course.
KIRBY J: Particularly in the Code States.
MR ODGERS: Yes, your Honour.
KIRBY J: Unless there is some linguistic basis for distinction.
MR ODGERS: Yes. Well, that goes back to the question of what does “act” mean and what does “event” mean?
HAYNE J: And the particular debate that we find in Justice Gibb’s judgment in Kaporonovski is a debate that arises in connection with a crime defined by reference to consequences. So it was assault occasioning particular levels of harm. It was a man who assaulted another with a broken glass, was it not? Now, true it is Justice Gibbs refers to absence of consent in connection with his discussion of the content of “act”, but I think that a way of seeing what is written at 230 to 231 of 133 CLR is drawing a distinction between “act” on the one hand, “event” on the other which looks particularly to offences defined by reference to consequences; assault occasioning actual bodily harm, grievous bodily harm, et cetera, that kind of offence. And do you include the GBH or ABH in the definition of “act”? His Honour says no, but query whether that analysis stands in the case of an offence of this kind, intercourse without consent, where a view is that consent has to be regarded at least bilaterally. True it is it is given, but for the accused presence or absence of knowledge of consent is an important element.
MR ODGERS: We say that the Western Australian, Queensland and Tasmanian Codes were formulated at a time when the view was that the common law was to be understood in terms of honest and reasonable mistake, and that the Northern Territory Code was formulated at a time when that position had changed, and that the Northern Territory intended that by introducing the unique section 31, which is unique in a number of ways and in terms of the definitions, that the result would be that an element of – using common law language – mens rea would be imported for the constituent external elements of offences under the Code, and that would include an offence of sexual intercourse without consent.
Can I return to my argument, which I do maintain and I do submit is not limited to a question of special leave, that very soon after the Code was introduced the Northern Territory Supreme Court adopted a view of section 31 which is consistent with the view that the Court has taken in this case ‑ ‑ ‑
KIRBY J: But Justice Angel says that it is one that does not work very well in the circumstances in the Northern Territory.
MR ODGERS: No, I am sorry, your Honour, you misunderstand me. I am talking about the case of Pregelj v Manison.
KIRBY J: It was usual once to say, “I have not made myself clear”.
MR ODGERS: I do apologise, your Honour.
GLEESON CJ: “I am sure the fault is mine”, that is what you say.
MR ODGERS: Your Honours, no doubt it was my fault. I think your Honour is referring to the case of McMaster, which was a case on an earlier formulation of rape in the Northern Territory. Can I deal with Justice Angel’s view, because it needs to be addressed. I will return to McMaster in due course. Justice Angel was concerned about the situation of the person who is drunk and simply does not advert to the question of consent. True it is that if 31 operates, if he did not advert to consent at all, then he will be excused, because he has not foreseen that there may be an absence of consent.
KIRBY J: That is what he refers to at paragraph 27 in this case. Why is that not a fair ‑ ‑ ‑
MR ODGERS: Our response is that the solution to the problem is offered by section 154 in the Act, which is the “dangerous act” provision.
GLEESON CJ: What is the maximum penalty for that?
MR ODGERS: 11 years, if the person is intoxicated. That is by reason of subsection (4). When I say 11, that is on the assumption that he has caused grievous harm. It would be 9 years if he has not caused grievous harm.
GLEESON CJ: It has to cause:
serious danger, actual or potential, to the lives, health or safety of the public or to any person ‑ ‑ ‑
MR ODGERS: Yes. Our submission is that that would cover this situation. Where a person is drunk and sexually assaults them in an objective sense, there is no doubt whatsoever that his acts have caused:
serious danger, actual or potential, to the lives, health or safety of the public or to any person ‑ ‑ ‑
KIRBY J: But in paragraph 27 his Honour deals with two cases of overriding action. One was “drink” and the other was “lust”, and the suggestion is that in this particular area there are some people who just do not care and they might be completely sober. Section 154 would be no answer to that, would it?
MR ODGERS: If they do not care, then they have foreseen the possibility of an absence of consent.
GLEESON CJ: What if they think it is their right?
MR ODGERS: They have still foreseen the possibility of absence of consent. A person might say, “I simply do not care whether or not you are consenting”. It is still foreseeing the possibility that she is not consenting. It is inevitable. The fact that he has proceeded, for whatever reason, does not excuse it. Section 31 would still have the effect that he is not excused. Justice Angel was dealing with a situation where the person simply did not think about it all, is inebriated, and our answer is that that person should not be liable to imprisonment for life, which would be the effect of Justice Angel’s view, but should be liable to imprisonment for 9 or 11 years.
GLEESON CJ: You have on a couple of occasions now put the proposition, and it may be right, that by reason of the language of section 31, if the aggressor, if I can use that expression, foresees the possibility – you keep talking about foreseeing the possibility, which is an awkwardness in itself – but foresees the possibility that the victim is not consenting.
MR ODGERS: Yes.
GLEESON CJ: Put aside the problem of foresight in relation to something that is actually happening now, on the instant, how does that relate to the language of section 31? Am I right in thinking that you would depend upon section 31 to justify that proposition?
MR ODGERS: Yes.
GLEESON CJ: How do you relate that to the language of 31? You have a person, in the example I gave, who is so misguided and insensitive as to believe that he has a right to do what he is doing and the question of consent, or absence of consent, just does not enter into his decision‑making process. You say that would involve an offence because under section 31 he foresees as a possibility that she is not consenting.
MR ODGERS: Well, to use the language of 31, because he foresees that a possible consequence of his conduct will be, or is, that he is having sexual intercourse with a person who is not consenting. He foresees that a possible consequence of his conduct is, or will be, that he is engaging in an act or participating in an event where the other person is not consenting. Your Honours, I submit that that is linguistically acceptable. It is not an absurd formulation and, significantly, the Northern Territory Supreme Court for now, in the case of McMaster, 10 years, in the case of Pregelj, for 17 years, has taken that view and the Northern Territory legislature has not sought to override it.
KIRBY J: Mr Odgers, we have said many times that it is a fiction to think that the legislature is sitting there examining everything that the courts do and just holding themselves back in their enthusiasm to reform the law. You should know better than that.
MR ODGERS: I am going to have to take you to the cases because Pregelj has been regarded as the leading authority in the Northern Territory, and is still the leading authority in the Northern Territory on criminal responsibility.
GLEESON CJ: On the argument that you are putting to us, your opponent is the Director of Public Prosecutions for the Northern Territory.
MR ODGERS: Yes, who is independent of the legislature. At the end of the day, the question is does this Court, acting on the submissions of the Director of Public Prosecutions, change the law as it is understood in the Northern Territory, or does it do what we submit your Honour should do, leave it to the legislature bearing in mind that there is an element of ambiguity, an inevitable ambiguity about words like “act”, “deed”, “event”, “result”, particularly as they are applied to particular statutory formulations in a Code. Ambiguity is inevitable and, given that, your Honours may favour a particular interpretation. Unless the view that has been taken by the Court of Criminal Appeal over 17 years is completely wrong, self‑evidently wrong, I maintain the submission that your Honour should leave it to the legislature to fix it if it is not happy with it.
GLEESON CJ: Do the common law States address the problem that I just raised with you by this concept of indifference?
MR ODGERS: Your Honour, there is actually some degree of disagreement in the common law States. I am not sure I am answering your Honour’s question, but it relates back to the question Justice Kirby raised with me and the point that Justice Angel made. There has been some disagreement as to whether or not a person who does not even think about consent is recklessly indifferent to the question of consent. One view, the traditional view, if I might call it that, is that he has to advert to it, a view which the New South Wales courts have taken in cases that Justice Kirby was himself involved with, is that reckless indifference extends to a situation where there is no advertence at all and the defendant fails to even consider the question of consent.
GLEESON CJ: How does the Code handle the problem of indifference?
MR ODGERS: Our submission is that there will be an excuse under 31. You will not be liable to imprisonment for life if you are so drunk that you do not think about it, simply inadvertence, not the person who is your Honour’s scenario of somebody who just does not care.
GLEESON CJ: Well, that is the example I want to address.
MR ODGERS: The person who does not care is plainly aware of the possibility that she is not consenting. The very fact that you say “I don’t care whether she is consenting or not” almost necessarily carries with it an awareness that she might not be.
KIRBY J: In this case, the accused said that he believed she was consenting by her actions even though she did not say anything. Physical action can imply or lead to an inference of consent in some cases.
MR ODGERS: Yes, but your Honour, can I deal with that and I will return to the Chief Justice because it is very important to appreciate that, if I might call it, the potential injustice of the view of Justice Angel and the view that the Director of Public Prosecutions is contending for is that the defendant who honestly believes, based on what he has observed, that she is consenting, can still be convicted of a crime punishable by penal servitude, by imprisonment for life on the interpretation of Justice Angel and the Director.
I submit that is inconsistent with proper principles of justice. The answer should be that that person is liable to a less serious offence, and 154 provides the mechanism. Section 154 is unique to the Northern Territory. There is no comparable provision in any of the other Codes. It was created to deal with the situation of the person who does not intend or foresee the elements of the offence, if I might use that neutral term, and in it says in that situation you are excused from the more serious offence, of the offence that might carry a penalty of life, but you will nonetheless, because your acts are dangerous, objectively dangerous – and using that term, generally – you are liable to a conviction under 154.
We submit that the very existence of 154, unique as it is, supports a view that section 31 should be given a wide operation. It is unjust that a person who honestly believes that there is consent should be at risk of going to gaol for life.
HEYDON J: It is pretty unjust that they should go to gaol for 11 years too, in a sense. I mean, it is harsh.
MR ODGERS: Your Honour appreciates, as I do, that maximum penalties are for the worst case scenario, but the reality is that a person who, let us say, honestly believes she is consenting, facing a maximum penalty of life, would be looking at a significantly heavier sentence than somebody convicted under 154. As your Honours appreciate, the maximum penalty is the guide that the legislature gives.
KIRBY J: But the difficulty is the terms of paragraph 1.3, as it were, requiring deliberate intercourse against consent, as distinct from the gradations that can exist lower than that which arguably fall within the Code.
MR ODGERS: I am not sure I fully understand what your Honour is putting to me.
KIRBY J: Mr Jackson’s complaint is targeted on paragraph 1.3, as I understand it, those last words.
MR ODGERS: His argument is that the only mental element for rape in the Northern Territory is an intention to have sexual intercourse, that is it, but that there will be a defence of honest and reasonable mistake. My response to that is to say that could produce manifest injustice.
KIRBY J: You say a lot of sexual intercourse goes on which is non‑criminal and consensual?
MR ODGERS: No, I suggest that there will be circumstances in which a person honestly but unreasonably believes that there is consent. That person should not be liable to a maximum penalty of life. He should be regarded as not in the same league, so to speak, of criminality as the person who has sexual intercourse knowing that there is an absence of consent. There is just a world of difference between those two people and they should not be regarded as committing the same crime. They should be regarded as committing different crimes, one considerably less serious than the other, and that is what this Code does if we are right.
If the appellant is right, it is the same crime. I mean, of course, sentencing might produce a different result but, nonetheless, the fact is the maximum penalty is life and, as we say, in the situation of complete inadvertence, again, it is inappropriate to say that a person who is drunk, so drunk that he does not even – who does not even think about the question of consent, should be liable to imprisonment for life. It should be regarded as culpable, as criminal, but at a significantly lower level of culpability and criminality than the person who has sexual intercourse knowing there is an absence of consent, and that is what we say the Code achieves.
Another point that we would make is that this debate about whether or not sexual intercourse without consent can be characterised as an act or an event tends to, we say, over‑complicate the issue because the Code uses a compendious phrase. It uses a compendious phrase “act, omission or event” and we say intends that that will be essentially comprehensive, compendious and comprehensive, and that all that a court needs to do is to say, “Is it the situation that sexual intercourse without consent can be reasonably regarded as falling within that compendious phrase?” It is appropriate, I think, at this stage that I take your Honours to those decisions in the Northern Territory.
GUMMOW J: Well, you fix on section 2, which seems to assume that any offence is constituted of one or more of those three elements.
MR ODGERS: Yes, we do submit that.
GUMMOW J: So where does the extrinsic circumstance fit in to section 2?
MR ODGERS: It does not. So if there is a thing which you might happen to call an extrinsic circumstance – let us say you say absence of consent ‑ ‑ ‑
GUMMOW J: The age of a person.
MR ODGERS: ‑ ‑ ‑ the age of a person – then it will fall into “act, omission or event”. You do not do it by saying, “Is the age of the person an event?” Of course not. What you say is, “Is having an act of indecency with a 15 year old an event?” and my answer is it is perfectly open to say that. Now, I say it both as a matter of general language – and I appreciate that the Chief Justice points to the definition, but I say that your Honours appear to be reading much too much into the definition of “event”.
GUMMOW J: Yes, but the definition is only of use insofar as it makes other sections work. The critical section is section 2.
MR ODGERS: Yes, and that is another reason why I submit that the definition should not be regarded as significantly narrowing the meaning of the word “event”.
GLEESON CJ: Just before you pass from that. One form of absence of consent described in section 192(2)(f) is where the victim mistakenly believes that the act is for medical purposes. Now, that form of absence of consent will consist of an expression of consent but a mistaken belief on the part of the person expressing the consent.
MR ODGERS: Yes.
GLEESON CJ: How do you relate that to section 31?
MR ODGERS: By saying that the combination of sexual intercourse with a person who has a particular mistaken belief is either an act, omission or event for the purposes of section 31. So you either have to intend to have sexual intercourse with a person who has this particular mistaken belief or you have to foresee that a possible consequence of your conduct is that you will be having sexual intercourse with a person who has this mistaken belief. If you foresee that she has this mistaken belief, then you will not be excused by 31. If you do not foresee that she has this mistaken belief, then you will be excused. You have to either know or contemplate – I am using “contemplate” and “foresee” as synonyms – that she has such a mistaken belief.
If you do not, if you believe that she is having sex with you for reasons unrelated to such a mistaken belief, then you are not guilty, but if you realise that she is only doing so because of the mistaken belief or you appreciate that that might be the case, then you will not be excused. Does that answer your Honour? Presumably the appellant’s contention is that if you believe that she is under no misapprehension, you believe that she is having sex with you because she likes you, let us say, then you will still be guilty if you did not have reasonable grounds for that belief.
GUMMOW J: Justice Brennan, in Rv Van Den Bemd 179 CLR 137 at 141, dealing with the Queensland Code, used the expression “external elements of an offence”. He was conscious of this problem too.
MR ODGERS: Your Honour, we have used the term “external elements” simply as a convenient differentiator from mental elements, so that from our submission – and I am not sure the appellant would really disagree – the external elements of sexual intercourse without consent are sexual intercourse, absence of consent. The debate is, what are the mental elements of that offence? The appellant says the only mental element is intent to have sexual intercourse. We say there is an additional mental element, that is, intent to have sexual intercourse without consent.
GUMMOW J: At 147 and following he deals with Sir Harry Gibbs’ judgement in Kaporonovski.
MR ODGERS: Your Honours, I am at a disadvantage, I was not aware that Kaporonovski was going to be before this Court, so I do not have a copy of it.
GLEESON CJ: You can have a look at it at lunchtime.
MR ODGERS: I can have a look at it at lunchtime, but my recollection of what – I have dealt with it the best I can by putting the submission that Justice ‑ ‑ ‑
GLEESON CJ: Justice Gibbs used both expressions, “extrinsic” and “external”, in Kaporonovski.
MR ODGERS: Yes.
GLEESON CJ: And I think he meant and I think Justice Brennan meant, external to the accused.
MR ODGERS: If that is right, then what I said to your Honour Justice Gummow is wrong because I understood it to be differentiating from the mental elements. So on that analysis all crimes will have external and mental elements. I am sorry, I take that back, but that will cover the field so to speak. So that on that analysis, an extrinsic circumstance is simply one form of external element, but again, as your Honour Justice Hayne pointed out to me, we really have to look at what the Code says.
Perhaps I am going in various directions, but can I point out to your Honours that in Arnol there has been a longstanding problem which this Court has had to deal with on many occasions about these “act” and “event” provisions. There does not seem to be any doubt, whatsoever, that the Northern Territory legislature is trying to reduce the degree of debate and disputation by drafting section 31 in the way it did and by defining those terms in the way it did.
By applying the same test to act and event, it was attempting to simplify things, because it was saying, “Look, it does not matter whether you characterise it as an act or an event. If it is one or the other, the same test applies”. That is the argument I keep stressing. They have defined “act” in a way which makes it clear that the minority view in Vallance is to be applied in the Northern Territory. This Code was attempting to clarify and resolve some of the very disputes that constantly come before this Court, in a way which we say supports the approach of the Court of Criminal Appeal in this case.
Returning to one of the first things I was talking about, which is the significance of the other Code jurisdictions, my submission is that the Western Australian and Queensland cases really have no impact at all on the Northern Territory, because they have never had to worry about section 13. They have never even turned their minds to the operative effect of section 13, because it is so narrowly drafted.
HEYDON J: Section 31? You said 13.
MR ODGERS: I meant 13, your Honour, because 13 is the comparable Western Australian and Queensland provisions. We have extracted them in the written submissions at the bottom of page 4. I have it wrong – I should have said 23. Section 13 is the Tasmanian provision, 23 is the Queensland and Western Australian provisions. It does not take very long to appreciate that when you look at 23 in both Queensland and Western Australia, it could not have any work to do in respect of sexual intercourse without consent.
The reason that the judges in those jurisdictions have looked at honest and reasonable mistake of fact is because no one has argued that 23 could have any effect here, because it only provides excuses for acts or omissions that occur independently of the will, or by accident, and this whole question of importing an element of foresight of consent could never arise.
HAYNE J: But in Kaporonovski Justice Gibbs begins by asking, in effect, whether the reference to “act” in section 23 is to be understood as the act which renders the person doing it liable to punishment, that is, the equation between the offence‑creating provision and the excusing provision, and he rejects that. That is at pages 230 and following.
MR ODGERS: I am differentiating between those cases in those jurisdictions which have looked at rape in Queensland and Western Australia. They have never looked at section 23 because it could not have any operative effect. That is a different question to what authority there is on the meaning of the word “act” under section 23. It has arisen, obviously, in many cases, particularly the cases of consequence cases, wounding cases, causing of death cases, where it is very important to work out what is the act, what is the event. Kaporonovski was a case in which Justice Gibbs adopted the narrow view of “act” which had been the view taken by the majority of the High Court in Vallance.
All I was really taking your Honours to was the authorities in Queensland and Western Australia about rape. It is not surprising that they say nothing about section 23 because it has no effect.
GLEESON CJ: Is that a convenient time?
MR ODGERS: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.00 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Odgers.
MR ODGERS: Your Honours, I was referring to the Western Australian and Queensland authorities. If I could just turn to the Tasmanian authorities? There are two in particular I will take your Honours to. The first is Snow [1962] Tas SR 271. The relevant part of the judgment is at 278 and in the middle of the page at point 6 there is a reference to:
the elements of the crime of rape defined in s 185 as consisting of -
(1) the act of physical penetration of a woman not the accused’s wife.
(2) the absence of her consent.
Then Chief Justice Burbury and Justice Cox go on:
It is now settled by Vallance’s Case that the “act” required by s 13 to be voluntary and intentional is the physical action of the accused and not the whole actus reus.
Their Honours then proceed to refer to Vallance’s Case. I have already, a number of times, made the submission to your Honours that it follows that this decision was based on a narrow view of “act” which was the majority view in Vallance which we submit is no longer good law, even in Tasmania after Ugle, but in any event, section…..under the Northern Territory Code, it is entirely distinguishable because of the definition that has been given to the word “act” in that Code.
If I can take your Honours to Arnol (1981) 7 A Crim R 291, which was an attempt to overturn Snow. This was an appeal seeking to persuade the Tasmanian Court of Appeal to overturn Snow. Of course, it was an appeal some decades after Snow had been decided. Chief Justice Green, at 296 of the judgment, did not think it appropriate to reconsider Snow. Your Honours will see in the second paragraph that he says:
It has been regarded as settled law for nearly twenty years . . . parliament has not seen fit to legislate so as to overcome its effect.
Justice Neasey, in his judgment at 297, referred, as had the court in Snow, to Vallance:
The High Court in Vallance held that the “act” which s. 13(1) requires to be voluntary and intentional is the physical action of the accused. All three justices comprising the majority so held.
He cited Justice Kitto and then he concluded that that was the correct analysis, at the bottom of 299, about eight lines up:
The only physical or bodily act contained within that definition, and therefore the only act to which s.13(1) is capable of applying, is to have carnal knowledge.
His Honour did not turn his mind to whether or not it might be an event, for the purposes of section 13 of the Tasmanian Code, and my submission is that that – no doubt for the same reason the judges in Western Australia and Queensland have not turned their mind to that question – is because an event is only excused in those jurisdictions if it is something that occurs by accident, and it is well established that that is an objective test and not a subjective test. However, the third member of the court did refer to “event”. At page 302 Justice Cosgrove relied on Kaporonovski. He says at point 6:
The place of discharge is a concurrent event – not a result of the act.
He is referring to Vallance. Then he says:
The act of penetration of a woman’s body is an act complete in itself – its character is, and must be, determined without reference to any resulting event and so without reference to foreseeability. The legislature in s 185 declared that the crime of rape is constituted by the act of penetration accompanied by an extrinsic circumstance – the lack of consent of the woman. That extrinsic circumstance is not part of the “act” –
and he cites Kaporonovski.
There being no consequence to the physical act involved in the definition of the crime, there is no room for the debate which occurred in Vallance.
Now, there is no doubt that Justice Cosgrove is contrary to the submission we make. This is the only discussion that we have found in any Western Australian, Queensland or Tasmanian case which has looked at the meaning of “event” in the context of sexual intercourse without consent. The reason I say that, your Honours, is that a view of one judge in Tasmania does not, we say, constitute a consistent and established line of authority. To the extent that it is legitimate for this Court to seek to ensure uniformity in the Code jurisdictions, obviously account must be taken of the different formulations in the Codes, but we stress that there is no consistent analysis of the term “event” and to the extent that there is discussion of the concept of “act”, it appears to be premised on a much narrower definition than applies in the Northern Territory.
HAYNE J: At least in the Tasmanian Code we see from Vallance that the offence with which they were there concerned was an offence described in terms as:
Any person who unlawfully wounds or causes grievous bodily harm to any person is guilty of a crime.
So the structure of the Code differed from the structure we see here, where it is, is it not, section 2 that is the offence‑creating provision?
MR ODGERS: No, I am not sure I can say that section 2 is the offence‑creating provision, your Honour.
HAYNE J: Then what is section 2 in this Code doing? What is its purpose?
MR ODGERS: Your Honour, it says “For the purposes of this Part”. That is a reference to Part 1, “Introductory Matters”, in the Code. Our submission is that it is placed in the Code in this position to deal with the problem of secondary liability. Why I say that is that in order to determine whether A is liable for an offence committed by B you need to determine what is the offence committed by B.
HAYNE J: So, relevantly, the offence‑creating section is 192(3)?
MR ODGERS: Yes, your Honour, and section 23 has the effect that the defendant would not be guilty of that offence if the act, omission or event constituting the offence is excused.
We refer to section 2, simply calling it in aid, to assist our argument that the Code seems to be premised on an assumption that offences are made up of acts, omissions or events, or combinations of those three things. Your Honours, that is all I wanted to say about the Tasmanian authorities. Can I now take you to Pregelj v Manison (1987) 51 NTR 1.
We submit that this is the leading authority in the Northern Territory on the principles of criminal responsibility. The appellant contests that by saying that Charlie is now the leading authority, but, with respect, that is not correct. Charlie dealt with the situation of whether 31 applied to an offence and held that it did not. What we are concerned with here is how 31 applies and Charlie says nothing about that. Pregelj v Manison is the leading authority and has been, unless this Court overturns it, in effect, in the Northern Territory on that question of how 31 applies.
The offence that the court was considering can be seen at page 8 of the judgment of Justice Nader. Your Honours will see, under section 47 of the Summary Offences Act:
Every person who is guilty –
(a)of any riotous, offensive, disorderly or indecent behaviour . . . in or within the hearing or view of any person in any road, street, thoroughfare or public place –
So offensive behaviour in view of any person in any public place. The question which the court had to determine was, what was the mental element of that offence? Justice Kearney dealt with this issue at page 19, line 10:
The offence charged is an offence of circumstance; as written, it consists of two elements – in this case, the act of sexual intercourse –
that was a reference to the offensive behaviour –
and the circumstance that the act was performed within the view of a person in the lane.
In essence, two people were having sexual intercourse in their house. A police officer was walking by, saw it over the fence, and they were charged with offensive behaviour in view of a public place. It was contended that they only had an offence of honest and reasonable mistake. If they reasonably believed they could not be seen, they would not be guilty. This Court held to the contrary. Continuing on:
It is the circumstance of public visibility which is said to make the otherwise innocent act –
that is, having sexual intercourse –
punishable. In the words of Dixon CJ in Vallance v R (1961) 108 CLR 56 at 59, these two elements are “the external elements necessary to form the crime”; together they constitute the “punishable act”. In common law terminology they constitute the actus reus of this offence.
There is, however, a third element, which is not apparent from the wording of s 47. Criminal responsibility for this offence is subject to the provisions of Pt II of the Criminal Code, comprising ss 22-43. The most important provision in the Criminal Code is s 31. In my opinion, the word “act” in s 31(1) means the “punishable act” in the sense set out above. The effect of s 31(1) is that the appellants are not criminally responsible for this offence unless they either intended the punishable act - that is, both external elements - or foresaw it as a possible consequence of their conduct.
Putting it bluntly, they were not guilty unless they foresaw, as a possible consequence of their conduct, that the sexual intercourse, the suggested offensive behaviour, would or might be seen from a public place.
GUMMOW J: Justice Nader at page 16, third last line, puts it more fully, I think. They gravamen of offensive behaviour ‑ ‑ ‑
MR ODGERS: Yes. Your Honours will have noted that I did not go straight to Justice Nader, and there is a reason for that. It has to be said that he adopts a somewhat different process of reasoning to Justice Kearney. He focuses on the question of offensive behaviour, and says that that involves an element of causing offence, and that that ‑ ‑ ‑
GLEESON CJ: Yes, I was going to say offensive behaviour is not a very clear example, is it, of the way this works in practice.
MR ODGERS: No, your Honour, but why I refer to Justice Kearney - and Justice Rice, in my submission, essentially adopts the same analysis – is because they focused on the circumstance of public visibility, and they held that that circumstance, which was plainly an element of the offence, had to be intended or foreseen. That was the holding that Justice Kearney reached.
Justice Nader did not concern himself with that aspect but focused on the question of offensive behaviour and said that the causing of offence had to be intended or foreseen. That is not as supportive of the respondent because it can be distinguished on the basis that causing offence falls within “event” more clearly because it is the result – getting back to the problem that your Honours have focused upon – it is more clearly seen to be an event because it is the consequence of conduct. I draw your Honours’ attention to what Justice Kearney and Justice Rice said because they took the view that the circumstance of public visibility did fall within the test, even though it is harder to call that a result of an act.
Justice Rice, in his short judgment – your Honours will find it at 23 ‑ not short judgment, but his short discussion of this issue, page 23 line 28:
Consensual sexual intercourse between adult couples takes place as normal human behaviour in virtually every dwelling house in the land.
Then he discusses that. Then he says on the last line of that paragraph:
By necessary implication, therefore, I do not think that the legislature ever intended that such activity in that setting per se should come within the purview of s 47(d) –
which is the offensive behaviour provision –
In my opinion, it follows that s 47(a), similarly, was never intended by the legislature to proscribe consensual sexual intercourse per se in the broad circumstances I have postulated, even if capable of being viewed from the street or public thoroughfare, unless there exists the added element of an intention on the part of the participants or one of them, to be “in or within the view of any person in any … public place”. I do not consider that s 31 of the Criminal Code in any way detracts from this approach, but on the contrary, reinforces it.
GLEESON CJ: Did any of them refer to the definition of “act” and “event” in the Code?
MR ODGERS: Justice Nader certainly did, and I will take your Honours to that.
GLEESON CJ: Justice Kearney refers to “act” meaning “punishable act”. We know what “act” means. It is defined in the Code. It means “the deed alleged to have been done”.
MR ODGERS: Yes, and my submission is that it is implicit in what he is saying that he considered that the deed in this case was sexual intercourse in public view.
HEYDON J: Justice Rice says something similar at the bottom of page 24.
MR ODGERS: Yes, thank you, your Honour. Returning to Justice Nader, although because of this difficulty over what an “event” means, his judgment is not something we place as much weight upon. We do refer your Honours to his discussion of “act” under the Code. Can I take you to page 14, your Honours. In the last paragraph, he says:
A striking difference between s 31 of the NT Code and the corresponding provisions of the other codes is the more indiscriminate use of the terms “act”, “omission” and “event”. Although this lack of discrimination is grammatically obvious, influenced by the ordinary meaning of the words, I imposed a distinction by construction: R v Krosel (1986) 41 NTR 34. It seemed an unnatural use of words to speak of foreseeing an act or omission. Foresight seemed appropriate only for an event. So I suggested that the section had the effect of excusing acts, omissions and events that were not intended and events that were not foreseen. But, I would now accept the charge of superficiality. A moment’s attention to the words of s 31(2) shows that the author of the section intended no such complete distinction between “act” and “omission” on the one hand and “event” on the other. Section 31(2) opens with the words: “A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, …”. Section 31(2) refers to acts and omissions that can be foreseen. Not only events can be foreseen under s 31(2). What does it mean to say that an act was foreseen by the actor? It surely cannot mean the bodily movements of the accused, for who would speak of foreseeing his own bodily movements as a possible consequence of his conduct? I do not think the sub‑section can refer to the act of another caused or induced by the accused (see definition of “act” below) because in either case the act would have been intended by the accused. The proposition that “act” does not mean what it ordinarily means is reinforced by the use of “conduct” in both sub‑sections. Is there a distinction between “act” and “omission” on the one hand and “conduct” on the other? There would have to be a distinction, at least as to comprehension, if an “act” of the accused can be a consequence of “conduct” of the accused. One can readily understand how an “event” can be a consequence of “conduct”, but the antecedent of “it” in the passage quoted of s 31(2) is “act, omission or event”, not “event” only. In Krosel, I should have adverted to the fact that the expression used in s 31(1) is “possible consequence of his conduct”, not “possible consequence of his act or omission” . . . I conclude , therefore that the words “act” and “omission” are wider in their comprehension than the mere bodily movement –
although I would interpose and say the definition says that anyway, so I am not sure that – I bring this to your Honours’ attention because it is another factor which we say supports a broad interpretation to the word “act” in the Code.
Can I say then that we rely on, certainly the majority in Pregelj, on the basis that that decision is consistent with the decision of the Court of Criminal Appeal in this case in that it was held that 31 did apply to an extrinsic circumstance. That decision has stood for 17 years and we say that that is a factor your Honours should take into account in considering whether or not the appeal should be allowed. The effect of allowing the appeal in this case would be to effectively overturn, we say, Pregelj.
Can I take your Honours then to McMaster (1994) 4 NTLR 92. McMaster dealt with the offence of rape as it existed prior to the introduction of the present definition. “Rape” was defined in the Northern Territory at the time of McMaster under section 192 in terms which are apparent from the words of Justice Gray on page 93, where he says:
The appellant was found guilty by a jury of one count of assaulting [H] with intent to have carnal knowledge –
contrary to s 192(1). The elements of rape at that time were assault, intent to have carnal knowledge – which was intent to have sexual intercourse. The important point that I really want to stress is that assault was then and is still now defined in section 187(a) – can I take your Honours to section 187 of the Code:
In this Code “assault” means –
(a) the direct or indirect application of force to a person without his consent or –
and the rest of it does not need to be considered. So “assault” is application of force without consent. So the offence of rape considered by McMaster had the following external elements: application of force; absence of consent; intention to have sexual intercourse. The court considered the mental element and your Honours will find at the judgment at page 99 in Acting Justice Gray’s judgment. He referred at point 3 to the crime of rape in common law jurisdictions where he said that belief “need not be a reasonable belief”. That is point 5 and then he says:
In my opinion, the same result is reached in the Northern Territory by virtue of s 31(1) –
and then he cited that provision.
This provision is doubtless intended to give expression to the common law principle that a person is not criminally liable for unintended conduct.
He refers to Ryan where that use of the word “deed”, of course, can be observed. He then refers to section 23 of the Queensland Code and then he says:
In relating s 31(1) to the present case it must be remembered that the assault which constitutes one of the elements of the offence charged is defined in s 187(a) of the Code as “the direct or indirect application of force to a person without his consent…”.
In my opinion, s 31(1) produces the result that the prosecution must prove that it was the intention of the accused to assault the victim without his or her consent. This involves the proposition that the accused knew that the victim was not consenting or knew that he or she may not be consenting and proceeded regardless.
True it is that after McMaster the law was changed – and I will deal with that in a moment – but what was not changed was the law relating to assault. Assault in the Northern Territory is an offence of application of force without consent. McMaster is authority for the proposition that 91 applies to the absence of consent. That is still good law in the Northern Territory. If your Honours uphold this appeal, it is no longer good law, it will be bad law, and the result of your Honour’s decision would be to overturn a decision which has stood for 10 years on that question. That is assault.
Now, on the question of rape, yes, the offence has been redefined, but not, I would submit, in any significant way because your Honours recall rape, as it now stands, is having sexual intercourse without consent. Under McMaster it was applying force without consent and intending to have sexual intercourse. When the Northern Territory legislature changed this provision, changed the terms of rape, there was never any suggestion that there was a concern about the result in McMaster, never any suggestion that the mental element as defined in McMaster was something which was unacceptable under Northern Territory law.
Your Honours, I do not know if you have the second reading speech in respect of section 192. I hope you have been provided with it. I can take your Honours just very quickly to it. At page 5 your Honours will see at point 3 what was the old section 192, the one that McMaster considered, so your Honours have that there. Then the Attorney‑General said this at the last paragraph on page 5:
In every case of rape, juries must be given directions by the trial judge as to the meaning of these definitions. Before a charge of rape can be made out, there needs to be an assault that is distinct from the act of penetration which in itself constitutes a second assault. Most cases of rape present no difficulty in so far as the facts will disclose an initial assault that is separate from the act of penetration. However, from time to time, cases do arise where the initial assault is minimal or non‑existent – for example, when the victim is asleep or where consent to continued intercourse is withdrawn after penetration has taken place. In such cases, it is easy to understand why jurors may become confused when, notwithstanding that the evidence discloses clearly that unlawful penetration has taken place, they are directed by the trial judge that the Crown must prove, in addition to penetration, that the accused assaulted the victim. Perhaps the resulting state of confusion explains partly the dismay expressed by a large number of Alice Springs residents in a petition sent to the Assembly in December 1993. The result is that the formula used to create the offence in section 192(1) needs to be revised.
The effect of the amendments contained in clause 12 is to create a new offence of having sexual intercourse without consent, and to create a new offence of committing an act of gross indecency. Assault will no longer be a legal element of these 2 offences . . . ‘Consent’ is defined as meaning ‘free agreement’ ‑ ‑ ‑
KIRBY J: What do you get out of this speech?
MR ODGERS: What I get out of it, your Honour, is that there is nowhere in this any reference to a concern about the mental element of rape in the Northern Territory. It is clear that the purpose behind the repeal of the old section 192 and the creation of the new provision was in order to deal with the problem of requiring both an assault and an intent to have sexual intercourse – sorry, followed by sexual intercourse, and to replace it with simply the act of sexual intercourse without consent. At page 7, your Honours, just very briefly, there is a reference in the fourth line to:
Proposed subsection 2(f) is intended to reverse the effect of the decision of the Supreme Court of Victoria in R v Mobilio –
which was about medical examinations of women. So there was a reference to a concern to override that decision. Again, no reference to any concern to overturn the result of McMaster.
So McMaster, we say, is significant in two ways. One, because it is still the law on assault in the Northern Territory, and if the appeal is allowed your Honours will be overturning that law. Secondly, there is no hint in the second reading speech of any concern on the part of the legislature about the result in McMaster. We say that is an important guide to a conclusion, it supports a conclusion that the legislature was happy with how McMaster resolved the problem of determining the mental element for rape in the Northern Territory.
Your Honours, I only have some final concluding submissions. Just returning to one matter raised before lunch, it seems Justice Angel’s primary basis for dissenting was that he was concerned about the situation of the non‑advertent offender, who simply does not turn his mind to the question of consent because he is intoxicated. I drew your Honours’ attention to 154, but I failed to mention to your Honours the existence of section 7(1)(b) in the Code which has the effect of creating a presumption that where a person is intoxicated:
it shall be presumed evidentially that the accused person foresaw the natural and probable consequences of his conduct.
So there is a presumption by reason of that provision that the intoxicated person did foresee the consequences of his conduct. That would tend to mitigate the concerns of Justice Angel in that regard.
KIRBY J: Which section is that?
MR ODGERS: Section 7(1)(b), your Honour. Your Honours, I repeat the submission I have made on more than one occasion, that where there is ambiguity there are two reasons why your Honours should not allow the appeal, notwithstanding that ambiguity. The first is the one I have made, which is that there has been this line of authority of Pregelj and McMaster and the legislature has not overturned it. Secondly, I point to the fact that the interpretation we support favours the rights, the interests, of the individual. It protects the person who honestly believes the consent exists and avoids that person being convicted on an objective test. We say that this Court should accept the approach of the Northern Territory Supreme Court, which is to err on the side of liberty, particularly bearing in mind the fact that the legislature has not intervened.
Your Honours, I referred to authority to support that proposition in my written submissions at the top of page 8. There is the case Re Bolton; Ex parte Beane. I will just hand up that authority, your Honours. I really just want to read from a short passage from Justice Deane’s judgment, at 238, your Honours, at the top of the page, three lines from the top:
In a case such as the present however, where neither dictates of general principle nor considerations of general policy, individual justice or practical inconvenience . . . militate in favour of the overruling of a long‑established and arguably correct decision upholding the liberty of the individual on a question of the construction of the words of a statutory provision, the considerations of practical justice and judicial responsibility which underlie the doctrine of stare decisis are likely to all but compel acceptance of the earlier decision as having settled the narrow question of the construction of those particular words in their particular statutory context.
I immediately accept the point your Honour Justice Kirby makes, that there is a contrary principle to achieve consistency in the Codes, but I have sought to argue to your Honours, that because of the different formulation of 31, because of the different definitions, the Code intends that there not be consistency on this issue. Your Honours, the last thing I have to say is that
we rely on essentially, the analysis of Justice Bailey in the Court of Criminal Appeal at page 50 of the appeal book, and I remind your Honours of what he said in paragraph 75. He refers to:
the accused is alleged to be criminally responsible for having “sexual intercourse with another person without the consent of the other person”. In my view, it matters not whether this is viewed as an “act” or an “event” within the meaning of the Code. On either view, s 192(3) imposes criminal responsibility for sexual intercourse without consent. It is not to the point that “act” in relation to the State Criminal Codes has been construed more narrowly . . . In my view, it is also clear that by including “event” in s 31(1) of the Code, the intention of the legislature was to impose criminal responsibility only where a person’s mental state does encompass the consequences of his actions.
Now clearly, his Honour considered that sexual intercourse without consent could be properly regarded as the consequence of his actions. To put it in different language, if a man realises that somebody is not consenting to sexual intercourse, the person realising that determines to have sexual intercourse regardless, the result, the consequence, the event that this produced is (1) sexual intercourse without consent. We say that that was an interpretation which was open, and this Court should not overturn it. Thank you, your Honours.
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, reference is made by our learned friends to the availability of section 154, the provision your Honours were taken to. A difficulty arises in relation to it, because of section 319. Section 319 is the provision dealing with alternative verdicts available on a count under section 192(3).
Whilst one sees in section 318 of the Code that section 154 can be applicable on an indictment charging with murder, manslaughter or another offence, there are specific provisions in section 319 dealing with the alternative convictions that may be open on a number of particular offences. One of them is dealt with by section 319(2) as on:
an indictment charging a person with a crime defined by 192(3) may be found guilty alternatively of -
and then particular offences referred to. They do not include section 154. Your Honours, that is the first thing I wanted to say.
The second thing concerned Ugle 211 CLR 171. Could I say, in relation to it, your Honour, it was suggested that the meaning of “act” had been widened or enlarged in that case but, if I could take your Honours to it for a moment, the offence with which the Court was there dealing was the offence of murder. It was not a case where, for example, wounding was an element of the offence. The offence was murder. What was said to have occurred was that while actually holding the knife, the knife went into the body of the deceased so that the context in which the observations are made are contexts where the act involved the person holding the knife as the knife goes into the body of the person who died. At paragraph 27, and your Honour Justice Kirby agreed with this paragraph specifically, your Honours will see it said:
It appears not to be disputed in the Court of Criminal Appeal, or in this Court, that in the present case the relevant “event” against which the accident limb of s 23 had to be considered was the death of the deceased. There was, however, no issue raised at the trial about whether the consequences of the knife entering the body of the deceased were unlikely or unforeseen. That being so, the accident limb of s 23 was not engaged. What was in issue, however, was whether the insertion of the knife in the body of the deceased was a voluntary act – an act “willed” by the appellant.
Your Honours will see then in paragraph 28:
In this Court, the respondent did not dispute that the jury should have been directed to consider whether the act of inserting the knife in the body of the deceased was an act willed by the appellant.
The question was really one whether the proviso applied.
Your Honours, if one goes to the other case that is dealt with in the same volume, Murray v The Queen, which commences page 193, in paragraph 53, there having been a discussion in the preceding paragraphs by your Honours Justices Gummow and Hayne about what was meant by “act” and the possibility that it had different applications depending on the circumstances, your Honours will see that it was said:
it is necessary to focus upon the relevant “act”.
And your Honours will see that then discussed throughout the remainder of the paragraph. Your Honours, it is very difficult to derive from either of those decisions the view that there was a whole new charter in relation to the concept of what was an act. The Court was really recognising the difficulty of the issue by saying these questions have to be decided by reference to the particular case. Now, your Honours, our learned friend relies upon two cases in the Northern Territory, McMaster v The Queen and ‑ ‑ ‑
KIRBY J: Can I just say that on Ugle that was raised in oral argument today. I do not think it is dealt with in the written submissions of your client or of the respondent. If on reflection there is some elaboration of it – I am not sure I have exactly got the point that Mr Odgers is raising and therefore I am not sure I have exactly the point that you are putting in response, but Mr Odgers put it so high as to say that we would be inconsistent with Ugle if we allow the appeal. Now, I am not sure that I quite understand how.
MR JACKSON: Your Honour, the proposition was clear, the reasoning, with respect, elusive. Why that conclusion should be drawn from those cases, in our submission, simply does not appear. That is why it is difficult to respond to something in those circumstances. I am happy if my learned friend wants to put in something more. We will respond to it.
KIRBY J: If it is a serious suggestion that what was said by the Court in Ugle bears on and is relevant to this case, seeing as it was not dealt with in the written submissions, I would appreciate ‑ ‑ ‑
GLEESON CJ: What was actually submitted was that Ugle overruled Vallance.
MR JACKSON: Yes, your Honour, it certainly did so, sub silentio, in a sense, we would submit.
GLEESON CJ: Was Vallance referred to in Ugle?
MR JACKSON: I think it is in passing. I will have to check that, your Honour.
GLEESON CJ: Yes, please.
KIRBY J: Sometimes things are said in the heat of oral exposition before the Court ‑ ‑ ‑
MR JACKSON: Footnote 15, your Honour, sorry.
KIRBY J: If, in quiet contemplation, after we have reserved decision, Mr Odgers thinks that it is important, perhaps he could put in a note. That would certainly be appreciated, and you could respond.
MR JACKSON: Thank you, your Honour. Your Honours, could I come then to the first of the two cases that were referred to, the Northern Territory cases. The first one is McMaster (1994) 4 NTLR 92. Could I say a number of things about it. The first is that, as appears from page 93.7, the charge under the then section 192(1) was a provision which contained its own intent provision. That was the intent to have carnal knowledge contrary to section 192(1) of the Criminal Code.
Now, it may be of assistance if we – I do not have them available to give your Honours now, but if I could give your Honours copies of section 192 as it then stood, because it was an intent provision. The situation would be that applying this Court’s decision in Charlie v The Queen (1999) 199 CLR 387, section 31 would not be applicable to that part of the provision which dealt with intent to have carnal knowledge – or perhaps the whole provision – because it was a provision containing its own state of mind condition.
That is the first thing, your Honours, but McMaster does have other difficulties. The principal judgment was that of Acting Justice Gray. On page 99 – your Honours have been taken to the passage in almost all of it, but may I refer your Honours to the first new paragraph on page 99 where you will see that the observations that were made about section 31 were observations made on a topic on which there had not been argument. That is because he says the argument was confined to section 32. One sees flowing through into his Honour’s reasons, in our submission, with respect, a kind of common law view which is then treated as one which was applicable to the Codes.
Your Honours will see that commencing in the next paragraph where he speaks of the common law, speaks of a requirement of proof, then in the paragraph commencing about point 4:
This means that a jury should be directed along these lines –
and then again refers to the common law doctrine and then says:
In my opinion, the same result is reached in the Northern Territory by virtue of s 31(1) –
and then refers to the principle in Ryan, then refers to section 23 of the Criminal Code (Qld) and says:
I take this to be another form of expression of the same principle.
Your Honours, there is some commonality of view, but what his Honour does not refer to is the fact that in relation to an offence such as rape, as it was, in the Queensland Code, one would arrive at an entirely different conclusion in relation to the question of the need to prove knowledge that there was no consent or knowledge that she may not be consenting and proceeding regardless. Your Honours will see that, without any reference to that, what one then sees in the last paragraph of page 99 is the conclusion arrived at.
If one goes to the next page, page 100, your Honours will see that he then speaks of the “necessary mens rea of the accused” being a “necessary element of the crime”. That is convenient, I suppose, terminology, but not one derived from the Code. Your Honours will see two paragraphs further down:
s I have said, upon the appeal before this Court it was argued that s 32 of the Code required –
and your Honours will see section 32. His Honour then said halfway down the page:
Although, in my opinion, s 32 does not touch upon the elements of the offence created by s 192(1), the trial judge should give a direction upon s 32 in all cases where the evidence raises the issue. There is a considerable degree of overlap –
His Honour also at page 101, halfway down the page, left the matter a little in the air by saying:
If I am wrong in my opinion that s 31(1) required a direction on this point, then a direction in the terms of s 32 was called for.
The point we would seek to make about it, your Honours, is that that is, with respect, an unsatisfactory adoption of the common law notions into the Code on a basis that, in our submission, is fundamentally incorrect.
Your Honours, could I say that the provision at issue in McMaster has been repealed. Your Honours, that was repealed by the Criminal Code Amendment Act No 3 1994, which came into operation on 1 June 1994. Your Honours, I will not go into the detail of it, but what one notices is that in this case in the Court of Criminal Appeal the court treated McMaster as not being relevant for present purposes. You will see that at page 41 of the appeal book in paragraph 38.
Your Honours, that is the first of the two cases. May I come to the second of them to which my learned friend has referred and described it as the leading case in the Northern Territory on some issues – we would say, with respect, your Honours, misleading case on these issues. If I could go to a number of aspects of it. The first thing is, if one goes to the reasons for judgment of Justice Nader, your Honours have seen set out at the top of page 8 the terms of the offence. His Honour extracted, immediately under that, at about point 3 or 4 on the page, the relevant parts of…..reasons and one can extract from that section the following. The view that Justice Nader took was one that discussed the common law up to page 12, about two-thirds of the way down the page, and then he set out the Code and then when one comes to the bottom of page 16, what his Honour said was, in the last three lines:
The gravamen of offensive behaviour is the offending of another person, and the offending must be intended. Behaviour that does not offend, at least potentially, cannot be offensive.
Your Honours will see that if one goes through the remainder of that paragraph through to about line 15 or 16 on page 17, he said:
By “intent to offend”, I mean “do an act with knowledge that the activity would, or at least could, offend”.
So he was treating the offensive behaviour part of section 47 as an offence of intent. If that be so, the consequence would be, if one applied the Court’s decision in Charlie v The Queen to that, that it would not be a section 31 case at all. Your Honours will also see on the same page, page 17, between about lines 39 to 45, that he refers again to the question of “intended” and, your Honours, I just wish to say he emphasised that point.
When one comes to Justice Kearney’s reasons, said to differ from those of Justice Nader, what your Honours will see at page 19 is that, in the first paragraph of Justice Kearney’s reasons, he said that he agreed generally with his Honour’s approach and conclusions. When you look at what Justice Kearney said on page 19, your Honours will see at about line 29:
The live question in this case was whether it was proved beyond reasonable doubt that the appellants knew that they could be seen from the lane in the location in the room where they performed the act, or foresaw that they might possibly be seen.
In one sense, that picks up the concepts in section 31, but, at the same time, if it be that his Honour is also agreeing with Justice Kearney’s analysis of the section itself, the section itself contained the requirement for intention and thus it was not one to which section 31 would be applicable.
GLEESON CJ: Is it right to say that the mens rea for an offence of offensive behaviour is an intent to offend?
MR JACKSON: Your Honour, I must say it does seem a little debatable, with respect, without entering into the detail of that offence. One could imagine – take the man who regarded it as his duty to walk from the top of Scotland to the bottom of England naked. Now, assuming that was something that would be regarded as capable of offending people, it would seem odd that he would not be guilty of that offence if the simple situation were that he did not intend to offend anyone and did not foresee that he would be, perhaps because of his own belief. One could exacerbate the situation by assuming that he was masturbating in public on various occasions as he went along. But, your Honour, it does seem odd to say that ‑ ‑ ‑
GLEESON CJ: Yes, but I had thought that the relevant intent in the offence of offensive behaviour was the intent to do that behaviour.
MR JACKSON: Yes, and then it becomes a question of whether that behaviour is offensive. That is why I say, your Honour, this is one of the reasons why we would say this case is not – it decides what it decided, but what it decided is a little hard to identify, in one sense, and justify, in another. Could I say in relation to Justice Rice’s observations on the case, if I could go to page 23, your Honours will see that he refers at line 26 to section 47(d):
Section 47(d) creates, inter alia, an offence of offensive behaviour in a dwelling house, simpliciter.
Then at about line 37, he says:
it follows that s 47(a), similarly, was never intended by the legislature to proscribe . . . unless there exists the added element of an intention . . . to be “in or within the view of any person in any . . . public place”.
Now, he said that section 31 did not detract from that, but reinforced it. That seems to be him taking the view as well that within the section itself was contained a question of intent.
Your Honours will then see at page 24, in the passage at about line 40, I think, where he refers to act and event and so on – that is something which, he says, “was not argued before us”. That is about twelve lines from the bottom of the page. Then he goes on to deal with that on the basis of section 23, which one sees at the top of page 25, saying, in the second paragraph:
consensual sexual intercourse between an adult male and female per se is a right recognised by law . . . [and] in the absence of any element of prurience, is authorised and accordingly lawful.
So he was using those observations for a completely different point, not argued. We would say, in relation to that case, it really was one where, if anything, it should have been a section 32 case, rather than section 31 being referred to.
HAYNE J: Do you go so far as to say that their Honours, in that case, departed from the principle referred to at the foot of page 12 stated by Sir Samuel Griffith in Widgee Shire Council v Bonney 4 CLR 977, particularly at 981 to 982?
MR JACKSON: Yes, they did. If one looks at the way in which the case was dealt with by Justice Nader, what you see is the discussion up to the middle of page 12 about the general law. That is used really as the springboard into the Code. Widgee Shire Council v Bonney is referred to, but one wonders why there was an earlier discussion – an earlier discussion of general law, I am sorry.
GLEESON CJ: And at the earlier discussion of general law he seems to proceed on a surprising basis as to the common law, or as to the element of mens rea in a non‑Code State, for the crime of the offensive behaviour.
MR JACKSON: Yes, indeed, your Honour, and ‑ ‑ ‑
GLEESON CJ: I mean, I would have thought that some conduct that qualifies as offensive behaviour is intended not to offend, but to excite or attract.
MR JACKSON: Quite, your Honour, yes.
GLEESON CJ: It might be regarded by the offender as seductive behaviour.
MR JACKSON: Well, your Honour, there are a range of motivations, from protest to seduction, no doubt, but your Honours, could I just say something in relation to section 2 of the Act. Your Honours, we are not, I think, far apart from our learned friends in relation to section 2. Could I say a couple of things about it. It is a definition section, as appears from the opening words of it. One notes, your Honours, that it excludes, in the last words, the concept of excuse. It refers to “not authorized or justified”, but it says nothing about excuse. Now, you Honours will see that it is capable of applying to provisions such as section 9 and section 12.
Your Honours, the relevant provision for present purposes is section 23. It is the provision that is the over‑arching, as it were, provision. Could I invite your Honours to note also section 25 because section 25 recognises that authorisation and justification have consequences which may be different from excuse. Your Honours will see section 25 says, amongst other things:
An act, omission or event expressly declared to be lawful is either authorized or justified –
It says nothing about excuse. One sees then in Divisions 2 and 3 what can amount to authorisation or justification. Your Honours, the point I would seek to make about that is simply this, that the authorisation and justification make the conduct lawful. There is, of course, an excuse provided in some other cases.
GUMMOW J: What is the purpose of – 25 only bears on Divisions 2 and 3 and not Division 4?
MR JACKSON: Yes, that is, your Honour. The situation, your Honour, is this. If one looks at what is contemplated by 26, the types of acts, omissions or events that are done – and I will not go through them – and one sees also the circumstances in which in Division 3 conduct can be justified, the result of that being justified or authorised is that the conduct is lawful. That would have the consequence that it could not be sued on, for example.
GUMMOW J: But excuse is something different.
MR JACKSON: Excuse is something different. Now, the result of excuse may well be that one is not guilty of the offence, or that there is not an offence, but it does not have the consequence that the conduct is lawful.
HEYDON J: It keeps using the expression “excused from criminal responsibility”.
MR JACKSON: I am sorry, your Honour?
HEYDON J: Section 30, 31 and so on keep using the expression “excused from criminal responsibility” which supports your point that it can be ‑ ‑ ‑
MR JACKSON: Yes, your Honour, and there is – although I have just lost it I am afraid – a reference somewhere to tort also. Your Honours, could I go then, and I will do so briefly, to the two Tasmanian cases, Snow and Arnol and just refer your Honours to a couple of passages in each, which your Honours have not seen.
In Snow [1962] Tas S R 271, could I take your Honours to page 279 in the judgment of Chief Justice Burbury and Justice Cox. Now, your Honours will see the passage which commences halfway down the page:
It follows that the only mental element that s 13(1) introduces into the crime of rape is that the accused’s physical act of penetration must be voluntary and intentional. An accompanying intent to penetrate the woman against her will is not a positive element of the crime. R v Hornbuckle does not therefore state the law under the Tasmanian Criminal Code.
Your Honours, then if I could go to page 283, again the same judges, the opening first two sentences in the second paragraph on the page ‑ ‑ ‑
GLEESON CJ: Am I right in thinking that at the time these Criminal Codes were written – I am not including the Northern Territory – that approach reflected or corresponded to the common law at the time?
MR JACKSON: Yes, your Honour, I think the answer is – the reason why I put it in that way is that the common law really developed over time. Morgan really brought things to a head, although there were steps along the way, for example, Hornbuckle in Victoria.
GLEESON CJ: Yes, but sometimes these Codes can fossilise the common law.
MR JACKSON: They can, your Honour, yes. Of course, one sees them change from time to time. If one looks, for example, at the definition of “sexual intercourse” and the definition of “consent”, one can see how things have changed over the years, the definitions which have been introduced in the various Codes.
Your Honours, I was going to refer also to page 293 in Snow, in Justice Crawford’s reasons for judgment, where, about two thirds of the way down the page, he said:
I think that it would be an abuse of the language used in the Code to refer to a “specific intent” to have intercourse without the woman’s consent. To constitute the crime of rape, the man must intend the movements which he makes, and the penetration must not be an event which occurs by chance. But the absence of consent is an objective co‑existent fact.
And your Honours will see the remainder of it, referring to mistake.
Could I refer also, your Honours, to a couple of passages in Arnol 7 A Crim R 291. In Justice Neasey’s reasons at page 296 in the penultimate paragraph on that page he said he had reconsidered the relevant law and thought “the decision in Snow’s Case was undoubtedly correct.” That is the last sentence in the second‑last paragraph on page 296. At page 299 he also said – about three‑quarters of the way down the page, where he spoke of:
the ingredients of a crime . . . It is for a male person to have carnal knowledge of a female, not his wife, without her consent. The only physical or bodily act contained within that definition . . . is to have carnal knowledge. That means . . . to penetrate. No specific intent is required; no consequence is required to ensue.
Your Honours will see the remainder of that page and he said that Snow’s Case was right. Finally, page 302. Your Honours were referred to a passage about three‑quarters of the way down the page. Could I refer to a passage half‑way down commencing:
However, in s 185, it is the physical act . . . which is proscribed. That is both an act and an impact, and the two cannot be separated. Once penetration is proved to be voluntary and intentional, there is no result, or resulting event, the foreseeability of which needs to be considered.
That relates to the question of event.
GLEESON CJ: I do not know how the Criminal Code(NT) deals with this matter but the Crimes Act (NSW) used to contain a provision concerning what was then called “carnal knowledge” which contained within itself a quite elaborate set of provisions relating to what might be called “mistake” in relation to the age of the victim. One result followed if she was over 14 but not 16 and another result followed if she was under 14 and there was scope for reasonable belief about her age. Does the Northern Territory Code go into that kind of elaboration in connection with that offence?
MR JACKSON: No, your Honour, it is all in section 192. What your Honour is referring to I think is the spreading out, as it were, of the offences of rape and unlawful carnal knowledge in previous times.
GLEESON CJ: Yes.
MR JACKSON: Your Honours, could I just deal with two further things. One of them is that one speaks of the common law – this issue that there is no jurisdiction in Australia which now deals with this issue as a common
law matter. Every jurisdiction has provisions dealing with the question whether intent, in the sense contended for by our learned friends, is or is not an element of rape. Could I mention to your Honours what the provisions are. In New South Wales it is section 61I of the Crimes Act. What I had proposed to do was simply to give the core provisions and then perhaps give to your Honours copies of the actual provisions and the surrounding ones. In the Crimes Act 1900 it is section 61I in New South Wales and sections 61I and 61R, deals with the question of consent. Your Honours, in South Australia, it is section 48 of the Criminal Law Consolidation Act 1935. In Victoria, your Honours, one has section 38 of the Crimes Act 1958. In the Australian Capital Territory the position is dealt with by section 92D of the Crimes Act 1900.
Your Honours, the last thing I sought to do was to give your Honours some – your Honour asked for an appropriate direction to the jury, as we would submit. Can I give your Honours one now.
GLEESON CJ: Thank you, Mr Jackson.
MR JACKSON: I am sorry, your Honours. May I withdraw that and give your Honours this instead.
GLEESON CJ: Thank you.
MR JACKSON: Your Honours, it follows, broadly speaking, the form of the aide‑memoire used by the judge.
GLEESON CJ: Just before you sit down, we will just pass our eyes over this.
MR JACKSON: Yes, certainly. Could I just say the earlier version contained a small typographical error. Your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Jackson.
MR ODGERS: Your Honours, I will provide a note on Ugle. Can I also withdraw a submission I made, which I think I should withdraw. I made a submission based on the second reading speech and McMaster. When I closely analysed that, I discovered the second reading speech occurred on the same day that McMaster was handed down, so I think an argument based on the Attorney‑General having some view about McMaster is not plausible. Thirdly, your Honour asked about carnal knowledge under the Code. There is a provision, it is section 129 of the Code, and it does have its own element of honest and reasonable mistake.
Your Honours, there are just two matters. I do not know if it is appropriate for me at all to raise them, I was just wondering whether I could say anything about them, about the submissions that Charlie overturned McMaster. I did not say anything in my submissions about that, no. All right, I will not say any more. Thank you, your Honour.
GLEESON CJ: We will reserve our decision on this matter and we will adjourn until 10.15 on Tuesday.
AT 3.19 PM THE MATTER WAS ADJOURNED
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