Director of Public Prosecutions Northern Territory v WJI

[2003] HCATrans 345

[2003] HCATrans 345

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2003

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

WJI

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 SEPTEMBER 2003, AT 9.31 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 applicant.  (instructed by Director of Public Prosecutions)

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 NT Legal Aid Commission)

McHUGH J:   Yes.  Do not sit down, Mr Odgers.  This is an important point, is it not?  Why should not the Court grant leave?  I mean, you may succeed on the appeal but there are some important questions in it and you have a dissent.

KIRBY J:   And a dissent expressed specifically to the conditions of the Territory.

MR ODGERS:   To the conditions of the Territory in respect of whether or not a person might be guilty.

KIRBY J:   It seems to be a common problem, so Justice Angel says.

MR ODGERS:   It is true that alcohol is an issue in the Northern Territory and that sexual offences might be allegedly committed in conditions of intoxication.  Our answer to that is that that does not necessarily justify guilt of an offence carrying a maximum penalty of life and that it ‑ ‑ ‑

KIRBY J:   That might be so but it indicates that the point is important for the Territory of Australia.  They sat a bench of five judges and there was a dissent.  The dissent is expressed in terms of its importance for the conditions of the Territory.  It is suggested that it is a common problem.

MR ODGERS:   Yes.  We say, obviously enough, that the approach that the majority took was an entirely reasonable one.  Our submission is that it was legitimate, proper for the majority to take the view that sexual intercourse without consent was either an “act” broadly defined or an “event” as broadly defined under section 31.

McHUGH J:   Correct me, but they decided on a combination of the two, did they not?

MR ODGERS:   No, your Honour, that is not correct.  Justice Bailey’s judgment was the leading judgment.  At page 28 of the appeal book you will see ‑ ‑ ‑

McHUGH J:   He said:

In my view, it matters not whether this is viewed as an “act” or an “event” ‑ ‑ ‑

MR ODGERS:   Yes. The submissions that were put to the Full Court of the Northern Territory were that it was either.  Since the same test applies, whether it is an act or an event, as long as the Court is satisfied that it is one or the other, it must be one or the other.

McHUGH J:   Yes.  I had in mind what Chief Justice Martin said. 

MR ODGERS:   Yes.  I accept that, your Honour.  I think it is true to say that if the respondent was asked to choose between which is a more appropriate characterisation of sexual intercourse without consent we would say it is more appropriately characterised as an event.

KIRBY J:   You might be able to persuade us to that.

MR ODGERS:   I understand that, your Honour.

KIRBY J:   But is this not at the core of one of the central puzzles of criminal law, that is to say – and, of course, it will have to be answered by reference to the Code – but how you deal with a case where a person disenables themselves by their own conduct so as arguably to remove from themselves the criminal intent that is necessary for the crime.

MR ODGERS:   But, your Honour, if we could put to one side for a moment rape‑type offences and go to the broader question that your Honour is raising with me, there is no doubt that the Code intended a situation that in general for offences there would be a mental element of either intention or foresight.  That is implicit in section 31.  If criminal responsibility turns on this concept of act or event then it has to be “intended or foreseen” so there is plainly a subjective test.

However, there are discrete provisions within the Code which deal with the problem of intoxication and which, in certain situations, presume the existence of the necessary mental element, alter the burden of proof – if that is the operation of those provisions – but it is specifically dealt with in the Code, the problem of intoxication.

Indeed, as I have said, “dangerous act” is a compendious provision which is unique, to a large extent, to the Northern Territory – if that is appropriate language – which clearly deals with a situation where there is an absence of traditional mens rea, but nonetheless imposes liability for an offence, carrying a maximum penalty, in this context, of 11 years.  If you are intoxicated it adds four years to the seven‑year sentence for dangerous act and you are liable for that.

McHUGH J:   I appreciate there is some difference in the wording of the Northern Territory Code and the Codes in Queensland, Western Australia and Tasmania, but the fact is that the position reached by this decision is different from the position in the other Code States, is it not, and it aligns itself with the common law jurisdiction?

MR ODGERS:   Yes, your Honour, but can I just take you to what the differences are because they are not trivial differences.  At page 49 of the appeal book your Honours will see that we have extracted the other relevant Code provisions and the critical point is that they talk about “event that occurs by accident”, “event which occurs by accident”, “event which occurs by chance”.

The fact of the matter is that section 31 was a clear break from that approach, instead of it having to be an event which occurs by accident which it has been held imports no element of foresight.  It is well established that “event that occurs by accident” does not carry with it any requirement of foresight on the part of the offender.  It is an entirely objective test.  Then, in contrast in the Northern Territory, the test is the event has to be “foreseen . . . as a possible consequence of his conduct”.

KIRBY J:   I take the force of that - and are gathered in four of the five judges of the Court of Appeal, but we have a dissenting judgment.  We have three counsel here at the Bar table for the ‑ ‑ ‑

MR ODGERS:   Your Honours should not be influenced by the number of counsel.

KIRBY J:   Two of Her Majesty’s Counsel ‑ ‑ ‑

MR ODGERS:   Again, your Honour.

KIRBY J:   Indicating the great importance attached to it, it cannot affect your client, it cannot affect the accused because he has been ‑ ‑ ‑

MR ODGERS:   It cannot affect him, no, that is true.

KIRBY J:   Therefore ‑ ‑ ‑

MR ODGERS:   It would be a terrible precedent, your Honour, if the number of counsel and the seniority of counsel was a factor that this Court took into account.

KIRBY J:   No, but it does indicate – and the fact that the court was constituted of five judges, the fact that the dissenting judge says that this is a matter important to the circumstances of the Territory, we sit here as the Supreme Court of the nation and those are factors that I, at least, think we should take into account in considering special leave.

MR ODGERS:   I hear what your Honours say and I understand it.

McHUGH J:   But if your client had not been acquitted and there had been a new trial ordered then, for reasons I have expressed in the past, I would not be in favour of granting special leave to the prosecution in the case, but your client has been acquitted and it is an important question.

MR ODGERS:   Yes.  In Van Den Bemd, as I am sure your Honour Justice McHugh recalls ‑ ‑ ‑

McHUGH J:   Yes.

MR ODGERS:   It is true that that was a case where the majority refused special leave in a situation where there had been a situation – I think it was an acquittal – but it was an appeal against an acquittal, I think.

McHUGH J:   Yes.

MR ODGERS:   Of course, the majority in that case did say in respect of the words “event that occurs by accident” that this is a question of statutory construction.  The answer to the question did not depend on any important point of principle.

KIRBY J:   I have never seen you so reluctant to get into this Court, Mr Odgers.

MR ODGERS:   Your Honours, I have a very strong obligation to put my client’s position.

KIRBY J:   Of course you have and you have done it both in writing and orally, but ‑ ‑ ‑

MR ODGERS:   I am not going to give up, your Honour.  Until the lights flash I will keep going.  Your Honour, can I just say this that the real debate appears to turn not on the words “event occurring by accident” or “event that is foreseen as a possible consequence” but rather on whether or not sexual intercourse without consent can be legitimately characterised as an event.  The whole debate seems to turn on just what is an event.  I can understand an argument could be put that, well, that is a word that arises in other jurisdictions.

It is, quintessentially, I would submit, a question which needs to be answered in the particular circumstances of the case and where it just raises a question of statutory construction which raises no question of principle.  There is no question of principle that arises from this case.  Given that focus, if I have persuaded your Honours that ‑ ‑ ‑

McHUGH J:   But that is the whole purpose of Codes, is it not, that the Code states what the law is and, theoretically, they are only involved in the application of the principles which are found in the Code.

KIRBY J:   We did say in Barlow that we would look at Codes with at least in mind the desirability that important principles should be common throughout the country.  That was said by the Court in Barlow.

MR ODGERS:   I do not quarrel with that at all, your Honour.  What I am submitting though, that is, whether or not some particular concatenation of acts and mental states is an event in a particular case, I say that raises no question of principle.  That is the point I am making.  In Van Den Bemd there was a reference ‑ ‑ ‑

McHUGH J:   But just taking you back to the point you just made a moment ago, if I remember rightly, does not Justice Angel’s judgment raise a question of principle because he says that the mental element required by section 31(1) goes only to the sexual intercourse element and not to the lack of consent element.

MR ODGERS:   Yes, that is true.

McHUGH J:   That raises – yes?

MR ODGERS:   He says there is an act which is sexual intercourse and he rejects the majority view that sexual intercourse without consent is appropriately characterised as an event.  By implication he says it is not an event.  Therefore, 31 only operates on the act of sexual intercourse and that you then turn to 32.  The majority say, no, criminal responsibility in the Northern Territory is not imposed for sexual intercourse.  That self‑evidently is correct.

Criminal responsibility in the Northern Territory is only imposed when you have two things combined, sexual intercourse, absence of consent.  The majority held that that is appropriately characterised as an event, that you have sexual intercourse failing to obtain consent.  That is appropriately characterised as an event and it is appropriate that 31 operate in respect of it.

I steadfastly maintain the submission that that approach, that once you have concluded that it is an event, then 31 operates and it has no implications whatsoever for other Code jurisdictions because of the critical differences in the wording of the Code provisions.

McHUGH J:   But what about Kaporonovski and what Justice Gibbs said in that case.  Having regard to what he said, when a person is charged with rape then the act is having intercourse.  Not having intercourse without consent is outside it.  Therefore, the mental element provision operates only on the act of having sexual intercourse.

MR ODGERS:   Your Honour, in other Code jurisdictions, the whole debate is focused on the meaning of the word “act” because if it is an event, it is a wholly objective test and, therefore, there is simply no point in focusing it all on that.  But in the Northern Territory, because of a deliberate decision by the Assembly of the Northern Territory to change the test, “event” becomes a much more important concept.  Therefore, with respect, your Honour, nothing the High Court has said in respect of the meaning of the word “act” really has much bearing at all on this debate.

Your Honours, in 1987 in the Northern Territory I the case of Pregelj it was held that the offence of having sexual intercourse in circumstances of public visibility, where you are visible to the public, was an offence to which 31 applied; so that you had to foresee the possibility that you might be seen by somebody walking by.  Now, your Honours, that reflects a view that it was an event, at least either an act or an event, sexual intercourse in circumstances of public visibility. That was a line of authority which stood in the Northern Territory from 1987.  It still stands in the Northern Territory.

The decision of the Court in this case is on all fours with that because it says if sexual intercourse in public visibility is an act or event to which 31 applies, so does sexual intercourse without consent an act or event to which section 31 applies.  So we have a situation where ‑ ‑ ‑

McHUGH J:   Does your argument not, in effect, and I think, as the applicants contend, render mistaken belief as to a fact in section 32 to be inapplicable?

MR ODGERS:   That was rejected by the majority.

McHUGH J:   In a rape charge?  I know ‑ ‑ ‑

MR ODGERS:   No, the majority said no.  In practical terms, if the Crown has to prove that you foresaw the possibility of absence of consent, then if they failed to do that, honest and reasonable mistake will have little work to do.  But it is possible to imagine circumstances where it can have work to do.  You might, for example, foresee a remote possibility of absence of consent but, nonetheless, you believe that she is consenting.  Section 32 will protect you if it was a reasonable belief, and that is not a totally implausible scenario, “Yes, I believe she is consenting.  In the back of my mind, I accept that there is a possibility she is not”.  That means that the Crown has proved the 31 element because you have foreseen the possibility.  Are you guilty?  No.  Section 32 says you are not guilty if your belief was a reasonable one in the circumstances.  You believe she was consenting on balance.

So the majority accepted that 32 had still operated in the Northern Territory.  It is just that in practical terms in most cases it will not have much work to do.  But, of course also, the contrary point is one that needs to be made.  I think one of the judges said, “Look, the difference between the Crown and the respondent is not really a very practical one because if a jury thinks that it was unreasonable to have held the belief that she might be consenting, then it is highly unlikely that they are going to acquit on the basis that no matter how unreasonable, he still harboured that belief”.  So in practical terms it is really not going to make much difference.

Can I just emphasise some of the points I have been making.  Section 31 is unique to the Northern Territory.  It is completely different from other Codes.

KIRBY J:   Not completely different ‑ ‑ ‑

MR ODGERS:   In this context I would submit it is completely different and relevantly ‑ ‑ ‑

KIRBY J:   It has its differences.

MR ODGERS:   Yes.  In Van Den Bemd the Court talked about event occurring by accident and emphasised that it is an objective test, your Honour, which is the critical difference here.  Secondly, Pregelj is a case which is on all fours with the approach taken by the majority here and it has stood in the Northern Territory for 17 years.

Thirdly, the precursor to this provision, not 31 but the offence of what I will call rape, in the Northern Territory had been held in the case of McMaster to adopt a similar approach to the common law.  The Parliament of the Northern Territory, when they reformulated the provision, made no attempt to change that position.  They could have quite clearly drafted in a way which made it clear that 31 would not operate, but they chose not to.

McHUGH J:   I know, but in Charlie’s Case Justice Callinan said that although the Territory Code was unique, nevertheless, the Court should not lean in favour of construction that made it consistent with the other Codes.

KIRBY J:   That was said in Barlow too on matters of general criminal responsibility.

MR ODGERS:   I say two things about that, firstly, that of course the critical distinction from Charlie and this case is that it is not a situation where the Codes and the common law speak as one, so it is not a situation where you are leaning in favour of a construction which is consistent with both the Code jurisdictions and the common law jurisdictions, that is the first point.  The second point in response to your Honour Justice Kirby, Barlow was a situation where you are interpreting a Code provision which was consistent throughout the Code jurisdictions.  In this case, the provision is totally, I say, and relevantly, completely different from those other jurisdictions. 

KIRBY J:   I notice the light is on.

MR ODGERS:   Your Honours, the yellow light is on.  I think I have just about said all I can say.

McHUGH J:   Now, what about costs?  If there were a grant of special leave, this is a point of principle from the Crown’s point of view and it might be proper that it should pay costs?

MR ODGERS:   As I understand it, there is an agreement that neither side will be going for costs.  That is my understanding of the situation.

McHUGH J:   Mr Jackson, what do you say about the question ‑ ‑ ‑

MR JACKSON:   On the question of costs?

McHUGH J:   If special leave is granted?

MR JACKSON:   There is an agreement, your Honour - both publicly funded, in a sense, and there is an agreement between them.

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

AT 9.52 AM THE MATTER WAS CONCLUDED