Elphick, W.M. v The Queen - [1986] FCA 175

Re: WILLIAM MARK ELPHICK
And: THE QUEEN
No. ACT G82 of 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Sheppard J.
Spender J.

CATCHWORDS

Criminal law - sexual Offence - Adequacy of direction as to consent - Reckless indifference of accused as to consent.

R. v. Crabbe (1985) 58 A.L.R. 417

R. v. Daly (1968) V.L.R. 257

HEARING

CANBERRA

#DATE 19:3:1986

ORDER

The appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I would ask Mr. Justice Spender to express his opinion first.

JUDGE2

William Mark Elphick was found guilty by a jury in the Supreme Court of the Australian Capital Territory of two offences. The first was that on 18 November 1984, he indecently assaulted Elizabeth Margaret McGhee. The second was that on that day he assaulted her and caused her actual bodily harm.

On the first charge, he was liable to imprisonment for three years and in respect of the conviction for assault occasioning actual bodily harm, the term of imprisonment to which he was exposed was five years.

He appeals against both conviction and sentence.

The circumstances accepted by the learned trial judge as being implicit in the jury's verdicts, were that towards the latter part of the afternoon of 18 November, the accused had fallen into conversation with Miss McGhee and persuaded her to go for a drive with him, ostensibly for the purpose of enabling her to make a telephone call. At the same time there was some conversation in relation to a suggestion of smoking marijuana.
After Mr. Elphick had driven Miss McGhee in his car to a nearby park and parked in a semi-secluded position, they had a further conversation during the course of which both Mr. Elphick and Miss McGhee smoked some marijuana.
The trial judge was satisfied that he attempted familiarities with her; familiarities which she rejected, and that she attempted to leave the car but was pulled back by his seizing her right arm, which caused a bruise to be apparent on that arm. The trial judge was satisfied that Elphick cut Miss McGhee with a knife, on the face, with a view to forcing her to engage in sexual familiarities with him and, further, that he placed his hand around her throat and squeezed her throat to the point where she became terrified that she would be gravely hurt, and thus, more amenable to the suggestion that he was making. The trial judge was satisfied that Mr. Elphick placed Miss McGhee's hand on his private parts, that he forced her to engage in masturbating him and, finally, required her to engage in oral intercourse with him.
The trial judge regarded the sexual offence as a very serious one, warranting, in his view, towards the maximum available, that is to say, three years in prison. Miss McGhee, in his view, suffered no serious physical injury.
The appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elphick, W.M. v The Queen

Details

AGLC: Elphick, W.M. v. The Queen [1986] FCA 175
Case: [1986] FCA 175
Decision Date: 19 MARCH 1986

CaseChat Overview and Summary

Elphick, W.M. v The Queen is a decision of the High Court of Australia that addresses the adequacy of jury directions concerning consent in a case involving a sexual offence. The appellant, W.M. Elphick, was convicted of sexual penetration without consent. The central issue in the case was whether the trial judge provided adequate direction to the jury regarding the appellant's state of mind, specifically whether the jury was properly directed to consider the appellant's reckless indifference to the victim's lack of consent.

The legal issues before the court involved the interpretation of the elements of the offence and the appropriate direction to the jury concerning the concept of recklessness and indifference to consent. The court had to determine whether the jury was correctly instructed to assess whether the appellant acted recklessly in disregarding the victim's lack of consent, and whether the trial judge's direction adequately encompassed the notion of recklessness in the context of indifference to consent.

The High Court held that the trial judge's direction to the jury was deficient as it did not fully capture the concept of recklessness in relation to indifference to consent. The Court found that the direction did not sufficiently convey to the jury that recklessness could be established by proving the appellant was indifferent to whether the victim consented or not. Consequently, the Court concluded that the direction was inadequate, and the conviction could not stand. The appeal was dismissed, and the matter was remitted to the trial court for a new trial.

Orders

Orders of the court

The appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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