Evans v The Queen

[1988] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al of 1988

B e t w e e n -

COLIN LESLIE EVANS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
WILSON J
DEANE J
DAWSON J

Evans

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 JUNE 1988, AT 12.04 PM

Copyright in the High Court of Australia

C2T25/1/VH 1 9/6/88

MRS. TILMOUTH:  May it please the Court, I appear with my

learned friend, MR T. GAME, for the applicant in

this matter. (instructed by Sykes Bidstrup)

MR J. J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned friend, MS A. M. VANSTONE, for the respondent.

(instructed by Crown Solicitor for South Australia)

MR TILMOUTH:  May it please Your Honours, I hand up the

written outline of our submission.

MASON CJ:	Thank you.
MR TILMOUTH:	This application centres upon the mental element of rape and, in particular, the mental
element of attempted rape.  The applicant, of course,
was convicted of the attempt.  Your Honours, very
quickly, ·the statutory framework is contained in the
CRIMINAL LAW CONSOLIDATION ACT, South Australia.
However, at least so far as the current law in
South Australia has it, that is declaratory of the
corrnnon law. Section 48 of the Act defines sexual intercourse - and the marginal note is - this is
the rape provision - as

Intercourse with another person without

the consent of that other person -

and either -

(a) knowing that that person does not

consent to sexual intercourse with him;

section 48, Your Honours - or,

(b) being recklessly indifferent as to
whether that other person consents to

sexual intercourse with him,

shall be guilty of the felony of rape and

liable to be imprisoned for life.

In 1985 that rider - the following words were added,

although they are not relevant to this case, it is submitted, after the word, "shall", the words were

added in brackets:

(whether or not physical resistance is

offered by that person).

But that does not relate to this case.

C2T25/2/VH	9/6/88
Evans

MR TILMOUTH (continuing): Under section 56, if the Court

pleases, indecent assault may be an alternative,

coupled with section 75, to which I will turn

in a moment. If indecent assault applies, the

maximum term of imprisonment is seven years,

in this case. It can be 10 years if the victim

is under the age of 12, but that was not the case

here. Of course, rape carries with it life penalty.

Under section 75, Your Honours, without reading it,

it is a long section, what it means is that indecent

assault is an alternative to rape. Section 48, specifically referred to, and also indecent
assault may apply, and, of course, the attempt to commit the felony, namely rape - the second

line again - also applies as an alternative.

And furthermore, in section 270a(l):

Subject to subsection (2), a person who

attempts to commit an offence (whether the

offence is constituted by statute or common

law) shall be guilty of the offence of

attempting to commit that offence.

And under(3~b) of the same provision if the

attempt is made out, the penalty is provided

in cases where the principal offence involves

life imprisonment, a term not exceeding 12 years.

So, in this case on.the conviction for the attempted

rape, the applicant liabled himself to a maximum

of 12 years imprisonment.

And simply as a matter of completeness

may be a verdict of attempt where the full offence

to finalize the statutory context, I point out,

is charged. In other words, even though the
attempt is not specifically referred to as an

alternative on the information, it nevertheless applies as is, of course, commonly the position

throughout Australia.

So, Your Honours, that is the statutory

framework. The provisions of the statute,

incidentally, appear to have come from

Justice Wells in BROWN's case, to which I will

turn a little later.

Your Honours, returning to the complaints

in this case, we submit, in very general terms,

that the directions of the trial judge in so far

as they pertain to the attempt were wrong in that

they put recklessness at all, and we rely on

general principle for that proposition. As an

alternative, Your Honours, we submit that especially

in the context of an attempt, that it is required for a judge to specifically alert the jury to the

requirement that there must be some foresight in

C2T26/l/JM	3	9/6/88
Evans

the accused of non-consent before there can be a

conviction. So, in the first place we complain

that recklessness was put at all; and secondly

we complain that it was put incompletely.

We submit it is important in the context of

attempted rape that it is very important to

direct the jury that specific advertence by

the accused to at least the possiblity that the

person may not be consenting is made out.

WILSON J:  Were those complaints made to the trial judge,

Mr Tilmouth?

MR TILMOUTH:	No, they were not, Your Honour.
WILSON J:	They were not?

MR TILMOUTH:  No, they were not. In fact, the case was

fought, largely until His Honour concluded his

summing up, on the issue of penetration,

intoxication and general putting the Crown to
proof. Defence counsel persuaded, after the

jury had gone out already, the trial judge to

put attempt. He did so reluctantly, but he

put it, we would suggest, out of an abundance

of caution. He was convicted of that attempt,

of course, by a majority verdict.

(Continued on page 5)

C2T26/2/JM	4	9/6/88
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MR TILMOUTH (continuing):  Your Honours, when the matter

came for leave to appeal, leave to appeal was

originally refused by a single judge but granted

later in private by the Full Court under our rules

and when the matter came to the argument in the

Court of Criminal Appeal there was no serious

suggestion that the failure to raise it was fatal

to the appeal simply because if we were right that

would be, of course, fatal to the conviction.

But to answer Your Honour Justice Wilson again,

no, it was not raised but it was not a serious

issue in the Court of Criminal Appeal.

Your Honours, as to the summing up, the directions

on the mental element required begin at 105 and 106

and at this stage, of, course, they are only directed

to the principal offence of rape itself and at

line 24 of page 105 His Honour directed the jury

in terms of the section. He said at line 24, 105:

In a nutshell, a man is guilty of rape if he
hadsexual intercourse with a woman without

her consent and the man either knows the woman

is not consenting or is recklessly indifferent

as to whether she is consenting or not. The

critical time is the time when the intercourse

takes place. The question is whether the woman was consenting then and whether the

man at that time knew that she was not consenting

or was recklessly indifferent as to whether

she was consenting or not.

Now, Your Honours, it is immediately apparent,

word the section without gloss or other embellishment.	of course, that that is putting almost word for elements, and I do not read them, and he returns
to what he calls the third element at line 16 and,
Your Honours, again without reading lines 16 to 19,
he repeats what he said on page 105 and then he
continued at line 20 as follows:  You see, members of the jury, you will

have to consider the state of mind of the

woman and also the state of mind of the man.

If you are not satisfied any intercourse took

place without the consent of the woman or

that you think it is reasonably possible the

man believed she did not consent the case

has not been proved against him and he is

entitled to be acquitted.

I want to say something more to you about

consent. Consent, ladies and gentlemen,
according to English language is full and
free agreement. It does not mean mere submission.

C2T27/l/AC	5	9/6/88
Evans

And then His Honour continues to talk about that, and I do not read it. And then he goes to the

accused's state of mind on 107, line 17:

I turn then to the accused's state of

mind, and I am now discussing the third

ingredient of the crime of rape.

And obviously, that is the foresight, the

recklessness issue.

What must be proved is either that the accused knew that the woman was not consenting or

that he was recklessly indifferent as to

whether she was consenting or not. Either
of those two states of mind proved beyond

reasonable doubt in all the circumstances

is sufficient.

So, again, His Honour is really staying ·with the

statute as it were. At 108 and 109, Your Honours,

he deals with the issue of intoxication and the

accused's belief. As to the belief - that begins

on top of 108 - he says this:

Now, there may be cases, ladies and

gentlemen, of course it is entirely for you

to say whether you think this is such a case,

but there may be cases in which although a

woman does not consent she perhaps gives the

appearance of consenting. Hence an accused

may genuinely believe that the woman is

consenting even though in fact she is not.

Now, plainly it would be unfair, you may think,

that if he genuinely believed she was

consenting that he would be guilty of rape

for the very good and logical reason that

he could not know she was not consenting or
have a reckless indifference to it. A genuine

belief on this topic, according to every day

language a fixed and settled conviction that

the fact was such and such, in other words

in this case, at the time that he had a fixed

and settled conviction that she was consenting.

So, again, the topic is repeated. It is repeated

this time in the context of the required belief

in the accused for what is sometimes called the

defence of belief and he then:turns to intoxication,

which I do not read Your Honours except to point

out again over to 109 His Honour returns, as before,

especially at lines 6 and 7 to the statute.

C2T27/2/AC	6	9/6/88
Evans

MR TILMOUTH (continuing): His Honour effectively stated

the statute, in fact, right throughout his summing

up. At 111 to 112, Your Honours, he puts the

defence case and although not strictly relevant for the current submission, I would draw Your Honour's

attention to it for completeness.	At 111, at the
bottom, line 26 to 27:

The defence here, members of the jury,

alleges conduct on the part of Michelle from

is that the Crown has not proved that the

accused had sexual intercourse with Michelle.

which he might reasonably have inferred that
she may have consented, if intercourse did occur,

and alternatively even if she didn't consent

he says the Crown has not proved beyond

reasonable doubt bearing in mind the evidence

about intoxicating liquor and all the other

evidence that either he knew she wasn't consenting
or that he was recklessly indifferent as to

whether she consented or not.

So as it were, Your Honours, although that is a very

summary reference to the defence and by that I mean

my reference to it not His Honour's, it is clear

that, as it were, all matters were in issue. The

question of whether there was penetration was in

issue, the question of the accused's apprehension,

of the consent or otherwise of the other person,
and his state of mind, it follows also, was in issue

and, of course, it must follow, as we submit, that

the jury must have at least had a reasonable doubt

on the issue of penetration by reason of its verdict.

Your Honours, skipping then some directions

about factual material, His Honour draws to a

conclusion at 118 where he goes back again to the

statute from which he really does never depart and

he directs the jury - and I think it is about

line 7 or 8, Your Honours, it is not evident on my

copy: 

If you entertain a doubt either abo~t whether

he knew she was not consenting, or entertain

a doubt about whether he was recklessly

indifferent as to whether she was consenting

or not you will of course give the accused the

benefit of that doubt.

And Your Honours can see, after a final statement,

the jury retired at 11.30 am. So, Your Honours, before

going to the attempt issue, what is abundantly plain,

in my submission, on those directions is that

His Honour put the statute - he did not depart from

the statute at all or he did not explain it, he did

C2T28/l/ND	7	9/6/88
Evans

explain what "recklessly indifferent" may mean, and

he clearly put the two states as distinct

alternatives. The disjunctive "or" appears in every

material direction on the point.

Your Honours, without reading there was a request

for further directions which occupies the pages from

118 to 127 on "attempt". I do not read it,

Your Honours, but His Honour was clearly reluctant

to put it to the jury. His Honour felt, for example

in the middle of 122, that he felt it was inconsistent

but in the end result he was persuaded to do so

by defence counsel and as I suggested, if Your Honours

p 1 ease , perhaps out of an · abundance of caution, but the

fact of the matter is he put it and the jury, in
the end result, acquitted of the major offence and
convicted of the attempt.

At 127, therefore, Your Honours - the jury returned, incidentally, at 126, over an hour later.

They were originally sent out about 11.30, they returned at 12.48 - at 126. At 127, he puts some

matters at the request of defence counsel on alcohol

and then he turns to the issue of attempt at line 14:

The other matter is this: it is theoretically

open to you in this case to consider

alternative verdicts. I don't as at present

advised see much logic in them on the
evidence in the case or the arguments of the

Crown or the defence, but I have agreed to put them to you and you must consider them

therefore. They are the alternatives of

attempted rape and indecent assault, which are

always open on a charge of rape.

An attempt is committed when a person takes

some step or steps towards the commission of

a particular offence, steps which go further

than mere preparation to commit the offences

and which can fairly be described as immediately

connected rather than simply remotely connected

with the offence.

(Continued on page 9)

C2T28/2/ND	8	9/6/88
Evans

MR TILMOUTH (continuing):

You might think on the present facts
the question here is whether the accused
tried to enter the vagina of Michelle
with his penis. If you are satisfied
beyond reasonable doubt that he tried to

enter her vagina without her consent and

knowing that she was not consenting or

being recklessly indifferent as to whether

she was consenting or not, but you are

in doubt as to whether he was successful in

obtaining entrance then you are likely, I

should think, to say that that is a step
towards committing rape which is very

immediately connected with it and by no

means remotely connected with or mere

preparation for it, and it would follow

that the proper verdict is guilty of

attempted rape. If you are in doubt as to
to whether the accused did try to enter

the vagina with his penis then you will

have to consider another alternative
which is open to you, and that is the

alternative of indecent assault.

And I do not read on, Your Honours. 'indecent

assault' is not relevant. So, Your Honours, what

is also, in our submission, abundantly plain is

that His Honour, when he comes to 'attempt'! stays

with the statute as he did with the principal
offence. We do not complain about the proximity

direction as it relates to 'attempt'but we do say that in the case of an attempt that it was wrong

to put '·'reckless indifference" to the jury.

Alternatively, as I said when I opened my

submission if, in the case of "attempt", he puts

"recklessly indifferent", it is encumbent on the

trial judge to explain to the jury what "reckless

indifference" means and, in particular, we submit th.at it

must involve and, certainly in the case of an

attempted rape, a direction to the jury that the

accused adverted to the possibility of non-consent

or that he realizedthat the other person might not

be consenting, but proceeded. We submit that any

direction which does not, at least, direct the jury that the accused must have that degree of foresight, is a bad direction, certainly so far

as attempted rape is concerned and Your Honours,

in one or two sentences, that really is the gravamen

of our appeal.

Your Honours, I then take you very quickly to

what the Full Court said about these Jireci.:ion~

and they begin with the Chief Justice at page 139.

C2T29/l/SH	9	9/6/88
Evans

I do not read page 139, Your Honours, but on the

second-half of the page, in the paragraph

commencing at about point 6, the learned Chief

Justice has summarized what I put in the court

below which is essentially what I have just put

to Your Honours.

His Honour, then, discusses, on page 140 -

again, I do not read - what an attempt means and

he calls it "purposive":- the second line ,..

do not quarrel with that. His Honour, then, proceeds

to consider the New South Wales' case of ZORAD and

I do read just below the reference to ZORAD at

about point 6 where His Honour deals with the

section 48 because His Honour does say it is the

common law and Your Honours will recall I mentioned

earlier, although we had statute-based defence here,

it is regarded in South Australia as, nevertheless,

declaratory of the common law confirmed by statute.

DEANE J:	You said that His Honour adverted to the argument
that you had put here.
MR TILMOUTH:	Yes.
DEANE J:	Did you put to the court below the second limb of
your argument and that is that_ even if "reckless
indifference" does apply you cannot have reckless
indifference unless you advert to the matter and
that His Honour should have directed to that effect?
MR TILMOUTH:	Yes, we did, Your Honour.

DEANE J: Is that dealt with -

MR TILMOUTH:  Yes, page 143 of the appeal book at point 5,

it was:

Argued further that the direction as to the
mental element of attempted rape was

explain to the jury the legal signification	defective in that the learned judge did not
of the expression "recklessly indifferent".
It is essential to a correct summing up that
the judge direct the jury in terms of the section -

and the South Australian Court of Criminal Appeal

case of SHERRIN is cited.

He is free to explain the meaning of the expression "recklessly indifferent" along

the lines of THE QUEEN V WOZNIAK AND PENDRY

sup:r:a and the· ·L:ases which preceded that

case, if he sees fit to do so, and I think
that generally speaking he would be wise to

to do so.

C2T29/2/SH 10 9/6/88

Evans (Continued on page l0A)

And, incidentally, those words just read effectively

summarize what the decision in SHERRIN was.

He is not required, however, in my opinion,
to add an explanation unless the circumstances

of the case require an explanati9n. The

legislature has chosen its expression to

denote the state of mind which is required

and I do not think that Judge's direction

can be criticised because he has confined

himself to that expression, unless
something in the circumstances of the case

or the course of the trial require more.

So, His Honour dealt with it there and dealt with

our argument in that way but, of course - - -

(Continued on page 11)

C2T29/3/SH	lOA	9/6/88
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DEANE J:  Do those cases say that you cannot be recklessly

indifferent unless you advert to the possibility?

MR TILMOUTH:	We say that WOZNIAK & PENDRY says that, yes.
DEANE J:	I see.

MR TILMOUTH:  And we say that BROWN says that. SHERRIN's

case was rather different, Your Honour. That was

a case principally determined on corroboration, but in the course of it there was a criticism

about not explaining the statute, and that was

rejected. But, of course, it was rejected with

respect to the primary offence, and whatever

one might say about the desirability or otherwise

of going beyond the statute for the primary
offence, we submit, because attempted rape is

purporsive, the jury would be really in great

difficulty on attempt with just the words,

"recklessly indifferent." It would be little

help to them, we would submit.

If I could finally - completely, rather -

answer further Your Honour Justice Deane,

Justice Bollen dealt with that same issue at 159

to 161, at about point 7 to 8 His Honour said:

I think that "reckless indifference" is

a sufficient mental state on the part of

the accused for the crime of attempted rape.

Mr Tilmouth complained that His Honour did

not explain what "reckless indifference" involved
when he gave his directions on the attempt.

I do not think it was necessary.

And I do not read on, Your Honours, but His Honour

goes back to some of the directions. He discusses,

on page 160, some other matters. Your Honours will

note that at page 161 His Honour isolates the

critical passage in SHERRIN's case of Chief Justice King,

which was referred to without specific reference by

Chief Justice King in the passage I have read already,

at page 143, and the relevant part of SHERRIN's case

is this, and it is at 161:

"I do not, of course, mean that the jury,

having been told of the elements of the crime

in terms of the section, should not be assisted

with further directions as to the meaning of the

terms. Moreover, where the accused asserts a belief

that the victim was consenting, there is every
reason for a direction that the existence of that

belief, if the jury considers it to be a reasonable

possibility, is inconsistent with the knowledge

or reckless indifference constituting the mental

element of the crime. It is, however, undesirablle,

in my view, for a trial judge to substitute for

'the words of the section a gloss or paraphrase of

his own."

C2T30/l/VH	11	9/6/88
Evans

MR TILMOUTH (continuing): But, Your Honours, as I say that

was a case on the primary offence. We submit, as

I said, that attempt requires something more.

Justice Bollen then emphasised that last sentence:

I think it all comes back to the need clearly

to tell the jury what are the elements of the

offence and to be sure the accused's case

touching each element is put to the jury.

The idea of reckless indifference is something

which jurors will, in most cases, easily grasp.

With all due respect to His Honour we part company,

if the Court pleases, with those last connnents

especially in the context of an attempted rape.

We submit that the jury should be told, as I have

said, that "reckless indifference" means advertence
to the possibility or probability, but some advertence

to the fact of non-consent and we submit that that

is fatal to the sunnning up.

Now, Your Honours, returning then to the

Full Court, the Court of Criminal Appeal, when going back again to the Chief Justice, I was dealing with
page 140 of the His Honour's reasons in the appeal

book - page 8 of his reasons - and I simply point

out to the Court at points 6 to 7 His Honour makes

the point:

that the mental element of the crime uI rape

at connnon law does not differ from that

prescribed by section 48 of the statute.

He cites WOZNIAK and PENDRY. His Honour then goes

on to deal with the New South Wales case of ZORAD

and His Honour then concludes at 141 in relation to

ZORAD, after the indented quotation:

It will be seen from that passage that the

terms of the sunnning up under review made it

unnecessary for the Court to decide the point

which arises on this appeal.

With respect, we agree with him,Your Honours. If Your Honours look up to ZORAD, the indented part, just above the small paragraph which concluded the

quotation, it is clear that the jury were directed

on attempted rape,- the last five lines:

in relation to the attempt to rape, that the

Crown must satisfy you that the accused, ZORAD,

must have had the intent to penetrate the

prosecutrix without her consent. The Crown

must establish the accused had that purpose

and the desire of this consequence.

C2T31/l/MB	12	9/6/88
Evans

So in ZORAD, although it is acknowledged that

Chief Justice Street made connnents obiter, which are

apparently against us, the fact of the matter is

that ZORAD's case did not require for its decision

a ruling on that matter. Your Honours, we say,

whilst 141 is open, that that direction which was

eventually given in ZORAD is more or less the

direction which should be given here:

must satisfy you that the accused must have

had the intent to penetrate -

and, of course, that applies if our first ground

is right. If Your Honours are against us on that

and say that there must be some recklessness in

the attempt nevertheless then, of course, we would

say that there should be the added explanation of

what "recklessly indifferent" means in the way that

I have attempted to expound it. On 142, Your Honours,

His Honour really comes to what is the critical part, and I read the conclusion in a moment

at the bottom. But His Honour deals with the

Canadian cases at about points 2 to 3, which

he puts to one side in any event, as· not bearing

on the issue. I point out,Your Honours,that those

cases have been overruled by the Canadian Full Court

in the case of ANCIO, which is on our list of

authorities. ANCIO is consistent, in our submission,

on the primary point, although that like the other

cases, ALISTER and so on, is a murder case.

But His Honour concludes, right after the reference

to RITCHIE, at about point 3 on 142:

but I would treat .the English cases as

adequate authority for holding that in

Australian law an attempt can only be

connnitted if the consequences which are

required by the definition of the crime are intended; recklessness as to those

consequences is not sufficient.

Now, so far, Your Honours, we agree and that is

part and parcel of our submission. But His Honour

then goes on to distinguish the casea which

we cited: ALISTER, MOHAN,and WHYBROW, the usual

line of cases,by distinguishing between circumstances

and consequences. The critical passage, Your Honours,

perhaps, is from 142, in the middle, to 143.

At 142 His Honour the Chief Justice said:

(Continued on page 14)

C2T31/2/MB	13	9/6/88
Evans

MR TILMOUTH (continuing):  At page 142 His Honour

the Chief Justice said:

Both English.cases are, however, clearly

distinguishable. The problem- in the present
case is different. It concerns the accused's

state of mind not as to the consequences

of his conduct but as to a state of facts

the existence of which renders his action

criminal. The state of facts, the existence

of which renders the act of sexual

penetration criminal, is the non-consent

of the person penetrated. The mental state

of the accused in relation to that state

of facts, required by the definition of

the crime in the section, includes reckless

indifference to its existence. There

cannot be an attempt to commit a crime
involving particular consequences where
those consequences are not intended, because

the notion of unintended consequences is

inconsistent with the notion of attempt to

bring about those consequences -

and this is the critical passage, and really the
focus of the whole appeal in many respects, if

the Court pleases -

That reasoning does not apply, however,

to an accused's state of mind as to the existence of circumstances:which render

an act criminal. There is no reason in

principle or logic why steps which are

sufficiently proximate to sexual

penetration should not constitute an

attempt to rape, consent being in fact

absent, if the accused has either of the

states of mind relative to the consent

of the alleged victim which would be sufficient

for the canplete crime. The distinction in relation

to attempt between recklessness as to the consequences

of conduct and recklessness as to the existence of facts

or circumstances rendering an act criminal

is made by the learned authors of Howard

on Criminal Law and Smith and Hogan on

Criminal Law. The purposive element of

attempt is supplied> in my opinion, by

the intention to sexually penetrate

irrespective of consent.

(Continued on page 15)

C2T32/l/HS	14	9/6/88
Evans

MR TILMOUTH (continuing):  Your Honours, that is really,

in essence, where we disagree for the purposes

of this argument. We submit that rape is an

intention - the mental element focuses on intention

rather than principally on belief, although belief

is part of it and we submit if this division of

circumstance and consequence is to intrude into

the general law and, Your Honours, with all respect,

I use the word "intrude" deliberately with respect

to His Honour the Chief Justice, the general

principles, we submit, do not generally recognize

the division.

In our submission, however, rape must be

regarded, and therefore attempted rape must be

regarded, as still consequence orientated. And,

Your Honours, at the risk of putting an argument

or an example which might founder I put it to

demonstrate the point so far as it can.

Your Honours, a person may have the requisite state

of belief that the other person might not be

consenting but at that point in time nevertheless

proceeds in the hope that he will persuade that

other person to consent. Now, if at the point

at which that person proceeds at that tim~ having

the belief that the person is not consenting is
a step in the direct ion of "at tempt", in the proximity
sense put by His Honour the trial judge, that
person will be guilty of an attempt even though
he had the final intention of not penetrating without

consent.

And, furthermore, we say, Your Honours, 1n

focusing on the issue of whether this offence is
circumstance orientated or consequence orientated

it cannot be ignored as a matter of very, very

basic priniple that the relevant time in the end

result is at the moment of penetration. And, in

short, the best argument that we can put to the

Court is that the difficulty that this direction

of the learned trial judge has, and the difficulty

at 142 and 143, is that it captures as criminal	of the distinction that Chief Justice King made	the person who proceeds, as I have mentioned, but
does not intend at the moment where penentration would, or would not, take place, to go any further.
Put the other side of the coin - it excludes the possibility or the contingency that the other person
may change their mind and turn non-consent into
consent.

Now, if the Court pleases, we submit that

whatever else one says about the reasons behind

the philosophy of the law of attempt, the thrust

of the cases such as ALISTER and so on is a cautious

thrust because "attempt" in the proximity sense

encompasses many, many factual situations, some of

them closely connected with the actual crime but some

of them, perhaps, rather more distanced from them.

C2T33/l/AC	15	9/6/88
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MR TILMOUTH (continuing):  The general common denominator

of the cases, in our submission, is to emphasize
a degree of caution, and that caution is, generally
speaking,reflected in the general principle that
for attempt only the mens rea for the completed

offence will do and that recklessness will not

suffice.

So, Your Honours, that is, to summarize it

all, the focus of our submission and the focus
of our submission on the first point must lead us to

disagree with Chief Justice King on those two

pages on the distinction he has made with circumstances

and consequences.

I should add, Your Honours, before dealing

with the cases, it is by no means clear where

the House of Lords in MORGAN were focusing

on intent, or consequences, but it appears that

Lord Hailsham, who is most often quoted, was against

us. But, we submit, the South Australian cases of

BROWN, and WOZNIAK AND PENDRY, are substantially

with us on focusing on intention rather than belief.

Your Honours, just to complete the judgments

in the Full Court, Justice Jacobs at 148 did not

express himself on this issue - sorry, Justice Jacobs

agreed, on 148, with both the Chief Justice and

Justice Bollen and, in a word, Justice Bollen did

not really, at least expressly, adopt what the

Chief Justice has said about circumstances and consequences. Justice Bollen, rather, after dealing

with ALISTER's and WHYBROW's case, at 156, and over

on.to 157 said,- this is 157, about point 3:

The offence of rape can be committed

by penetration against the will of the victim

and with reckless indifference to the

victim's wishes. There is, in my opinion,

sufficient "mental element" on the part of

the victim if he with that reckless

indifference tries to achieve penetration -

sufficient, that is, to satisfy the mental

element required for attempted rape.

(Continued on page 17)

C2T34/l/JM	16	9/6/88
Evans

MR TILMOUTH (continuing):  So His Honour, if I can paraphrase

him, says that the section provides the direction

and the direction is as good for attempted rape as

it is for the primary offence. His Honour then

deals with ALISTER's case which we quoted

extensively from in the court below and concludes

after that, as I have mentioned. His Honour also

deals with the case of BELL an~ Your Honour, I will

come to that shortly but the case of BELL, on one

view of its facts is with us and on another against

us but, Your Honours, without wanting to dwell on

it at the moment, His Honour distinguishes BELL's

case in that paragraph on the basis that it was a

code case but it; is clear from that judgment that

the judges in that case regarded themselves as

declaring the -c0mmon law irrespective of the code.

But, of course, that had no influence in any

event on His Honour's reasoning but I simply do

point it out that, in our respectful submission,

that was an error even if it was not part of the

reasoning essential to His Honour's judgment.

And, finally, Your Honours, without reading 158,

which is an extensive quotation again from ZORAD's

case which I have referred to already in the judgment

of the Chief Justice but with reference to further

material in that case to MOHAN's case and he

concludes ag~in; on page 159, as he had before:

An attempt to rape is an attempt to

commit rape as defined by the Act. The

accused's state of mind must be shown to

have been either a state of knowing that the

victim was not consenting or a state of

reckless indifference whether she was

consenting or not.

I think that "reckless indifference" is

a sufficient mental state on the part of the

accused for the crime of attempted rape.

And then His Honour goes on to deal with our

second argument about the proper direction which

I have already referred to.

So, Your Honours, that puts the context of this

appeal in the summing up and in. the reasons why it was

upheld in the Full Court. Could I take you to the

case of HE KAW TEH, (1985) 157 CLR 523. I do so,

Your Honours - I know it is not a case that on the

face of it has any bearing on this matter - but I

do so to take Your Honours to some references of

Justice Brennan in which he discusses, albeit briefly,

the issue of rape and he begins at page 571. And

the reason I go.to His Honour is, with respect, that

His Honour elucidates or summarizes the difficulty

that we say presents itself in this case.

C2T35/l/ND	17	9/6/88
Evans

MR TILMOUTH (continuing): At 571, Your Honours, right at the

bottom, the second to last line, His Honour is
dealing in general terms, with an analysis of the

external elements of an offence, but right at the

bottom he makes a very passing reference to the

House of Lords decision in MORGAN. His Honour says:

In MORGAN, a rape case, the speeches treated

the relevant external elements of the crime

(sexual intercourse and non-consent) as

integral parts of the whole act to which a

single mental state (intent) applied. It

followed that intent applied not only to the

physical act of intercourse but to the element

of non-consent.

Now, I acknowledge that that is only a passing

reference, but it is one to MORGAN. But more

specifically, Your Honours, Justice Brennan further

explains the difficulty at 576 to 577, without
resolution, I might add, but it does capture the

point which we say deserves special leave in this case.

At 576 there is a long paragraph in the latter half

of that page, and I begin my reading at 10 lines from

the bottom. His Honour says~ this - it is about -four lines

above the reference to Chief Justice Bray in WOZNIAK:

The question as to the required state of mind

as to non-consent in the crime of rape - "whether

the definition of mens rea in rape should be

formulated in terms of intention or in terms of

belief" (per Bray CJ in REG V WOZNIAK) - has not

received a uniform answer in this country (see,

amongst a large number of cases, REG V SPEROTTO -

a New South Wales decision -

and WOZNIAK). Substantial arguments support

either view and the controversy illustrates

the difficulty in ascertaining the true form of

mens rea in a particular offence when the

legislature has not expressed its intention.

At the moment, consistently with the notion that intent applies to all the circumstances

which make an act criminal, the controversy

seems to have swung in favour of the MORGAN

view in the States which have not adopted a

Code.

And he cites WOZNIAK, the South Australian decision;

MCEWAN, the New South Wales decision; and SARAGOZZA,

and an article.

C2T36/l/VH	18	9/6/88
Evans

MR TILMOUTH (continuing): Then, His Honour, after referring

to the Western Australian decision, the ATTORNEY-

GENERAL's REFERENCE, says:

This is not the occasion for settling that

controversy, for we are concerned with a

different offence, statutorily defined,

that contains different external elements

and that is aimed at a different mischief.

Now, of course, I do not gather comfort necessarily

from what His Honour has said there nor do I

suggest, on the other hand, that it is against us

but, Your Honours, I went to it, as I said, because

it does encapsulate the precise issue which we say

is the relevant special leave point in this case.

MASON CJ:	Mr Tilmouth, how long will your argument take?
MR TILMOUTH:	Your Honours, I think it might take another

45 minutes to an hour if the Court wants to hear

me extensively on MORGAN's case in particular.

MASON CJ: Yes, and Mr Solicitor, how long would your argument

take?

MR DOYLE:	About one hour, Your Honour.
MASON CJ:	Mr Tilmouth, it would be convenient if we adjourn

now and we will resume again at 2 o'clock.

MR TILMOUTH: If the Court pleases.

AT 12.45 PM LUNCHEON ADJOURNMENT

C2T37/l/SH	19	9/6/88
Evans
UPON RESUMING AT 2. 05 P .M.: ·
MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH:  Your Honours, I have spoken of general

principle,that is in relation to working out the

mens rea of rape,and I refer to two decisions of

this Court to make good that proposition. The

first is the decision in ALISTER V REG; (1984) 154 CLR 404,

an~ Your Honours, the relevant passage to commence

with is per the former Chief Justice Sir Harry Gibbs

at 421 and, Your Honours, whilst I acknowledge,

of course, that this is in the context of a murder

case, my submission is, however, that these statements

are matters of general principle.	The relevant
section begins at 421 t0wards the bottom.	I

acknowledge too, of course, that Sir Harry Gibbs

was in dissent at least as to the result in this

case and,·of course, therefore what I have to read

from him must be guarded in that respect.	What
he had to say, however, was agreed to by

Justice Murphy at page 431. Sir Harry Gibbs said

this, Your Honours - 421 about point 7:

One constituent element of the crime

of an attempt is "an intention on the part

of the offender to commit the complete offence":

DIRECTOR OF PUBLIC PROSECUTIONS V STONEHOUSE.

It follows that person is not guilty of an

attempt to murder unless he intends to kill.

"Paradoxically, but inevitqbly, the law's

requirements on a charge of attempting to

commit a crime, are stricter than on a charge

of actually committing it; for the concept of attempt necessarily invovles the notion of intended consequence": Smith and Hogan, Criminal Law, 4th ed. (1978), p. 247.

Accordingly, a person who attacks another

intending to do him grievous bodily harm will

be guilty of murder if the victim diews, but

not of attempted murder if he does not. In

R. V WYBROW, in a passage cited with approval

in REG V GRIMWOOD, Lord Goddard L.C.J. said:

"Therefore, if one person attacks another,

inflicting a wound in such·a way that an

ordinary, reasonable person must know that

at least grievous bodily harm will result,

and death results, there is the malice

aforethought sufficient to support the charge

of murder. But, if the charge is one of attempted murder, the intent becomes the

principal ingredient of the crime. It may

be said that the law, which is not al~ays

C2T38/l/AC	20	9/6/88
Evans

logical, is somewhat illogical in saying,

that, if one attacks a person intending to do grievous bodily harm and death results,

that is murder, but that if one attacks a

person and only intends to do grievous bodily
harm and death does not result, it is not
attempted murder, but wounding with intention

to do grievous bodily harm. It is not really

illogical because, in that particular case,

the intention is the essence of the crime

while, where the death of another is caused,

the necessity is to prove malice aforethought,

which is supplied in law by proving intention

to do grievous bodily harm."

(Continued on page 22)

C2T38/2/AC	21	9/6/88
Evans

MR TILMOUTH (continuing):  Then Your Honour, he goes on -

I skip the passage up to the Canadian decision of

LAJOLE, which is possibly where Chief Justice King

got his reference from because we read this passage

in the court below, and then His Honour goes on after

that reference, at about point 7 on page 422:

In my opinion however the statement of the law

in WYBROW was correct in principle. That decision has been followed in New Zealand

and it accords with the view taken in Australia:

see MATHEWS and BELL -

and BELL is a case I will come to later, Your Honours

because it was an attempted rape case -

I regard the law as correctly stated in

Russell on Crime, 12th ed. where it was

said that "a man cannot attempt to do that

which he does not intend, if he is able to,

to do" and that "obviously there can be no question of 'recklessness' or 'negligence' amounting to sufficient mens rea for a

criminal attempt". Since those words were

written, it has been held in MOHAN that an

attempt to commit a crime requires "proof

of specific intent, a decision to bring about,

in so far as it lies within the accused's

power, the commission of the offence which

it is alleged the accused attempted to

commit ... " and that a reckless state of

mind is not enough.

Now, Your Honours, I leave that quotation there.

In my submission, what His Honour has said is good

and sound in general principle, and albeit in the

context of a murder case, the essence of it applies

generally because the essence of intention is the

intention to commit the crime. Your Honours, as

I said, Justice Murphy agreed at page 431.

Your Honours Justice Wilson and Dawson were probably

contra to that, I acknowledge, but without a great

deal of discussion at page 446, at about point 3,

a little more than half-way down that large

paragraph on page 446, and with respect, I think

this is what Your Honours had in mind in the

recklessness aspect:

(Continued on page ~3)

C2T39/l/HS	22	9/6/88
Evans
MR TILMOUTH (continuing):

It may also be that the size of the bomb

was such that any plan to detonate the bomb

in the car necessarily encompassed the death
of any police officer who was in the vicinity

of the car at the time of the explosion so

that a finding of reckless indifference could

have supported a verdict of guilty. But

this was not the case presented to the jury.

His Honour, consistently with the case

presented at trial, focused their attention

on the conversation as carrying the burden of

the Crown case.

So I would suggest, if Your Honours please, that

really is a statement thatit is unnecessary for us

to decide in this case but I acknowledge that in so

far as it does appear to say anything it appears

to be, perhaps, contrary to what we have been putting.

Justice Brennan too, at 467, is possibly perhaps

slightly against us. At 467 His Honour refers to JOHNS' case, at the very top, five lines from the top,and then continues:

it was essential for the Crown to prove against

ALISTER that the counselling or the common

purpose extended not only to explosion of the

bomb (and that embraces an attempt to explode

it) but also to the killing of other persons

in the vicinity. An intention to cause their

death or a reckless indifference to whether their

death would be caused had to be proved.

Reckless indifference in this context is to be

understood in the sense explained in PEMBLE.

It was essential to the guilt of each of

Alister and Dunn of the crime of attempted

murder that he foresaw that the probable consequence

of exploding the bomb was the death of other

persons in the vicinity: foresight of the

probability of their suffering grievous bodily

harm does not suffice: RV WHYBROW.

So I suppose, if the Court pleases, there is a

little each way for the contending views here but
perhaps marginally against us, but nevertheless
clearly foresight whatever else one wants to say

about any other element of attempt.

( Continued on page 24)

C2T40/l/MB	23	9/6/88
Evans

MR TILMOUTH (continuing):  Your Honours, the other case which

we suggest supports this is GIORGIANNI, by analogy,

at least, (1985) 156 CLR 473. GIORGIANNI, again,

I do not bother with the facts, they are not relevant,

in our submission. I go straight to the judgments

at 487. GIORGIANNI, of course, was in relation to

aiders and abettors, principally secondary

offenders but there were some statements which are

capable of attaching also to attempts. At 487,

the former Chief Justice Sir Harry Gibbs dealt with
the recklessness issue briefly. In the middle of
the page, three lines after the reference to

Dr Edwards' book Mens Rea in Statutory Offences, the sentence commences "However" and I read from

there:

However connivance, or wilful blindness, is

only relevant to the liability of a secondary
party to an offence because it virtually
amounts to knowledge. Recklessness, in the
sense of not caring whether the facts exist

or not, would be relevant only if it too was

virtually equivalent to knowledge, in other

words only if it amounted to wilful

blindness.

And then I skip the next passage in the indented

part and read at the bottom of the page:

It can never be right to direct a jury that recklessness is enough to constitute a person

an aider, abettor, counsellor or procurer.

Indeed in many, if not most, cases it will be

unnecessary to introduce the subject of wilful

blindness into a summing up and it would only

be confusing to direct a jury on that subject

if the facts of the case did not require it.

May view of the law may be summed up very

shortly. No one may be convicted of aiding,

abettin& counselling or procuring the

commission of an offence unless, knowing all

the essential facts which made what was done

a crime, he intentionally aided, abetted,

counselled or procured the acts of the

principal offender. Wilful blindness, in the

sense that I have described, is treated as
equivalent to knowledge but neither negligence

nor recklessness is sufficient.

(Continued on page 25)

C2T41/l/ND	24	9/6/88
Evans

MR TILMOUTH (continuing):  Now, I know that His Honour did not

advert to "attempt," but nevertheless I submit the

analogy is there. However, some of Your Honours did.

But first, Your Honour Justice Mason, at 495 in the

central passage there referred to this issue but in

the context of wilful blindness and, in reference to

CRABBE's case, at 495 Your Honour said:

As we have seen, knowledge of all the essential
facts giving rise to the dangerous driving is
necessacy to constitute commission of the
offence on the part of the applicant. But it
is not necessary that there should be actual
knowledge of all the essential facts constituting

the offence in order to establish secondary

participation. It is enough if the defendant

has deliberately shut his eyes to a relevant

fact or has deliberately abstained from

obtaining knowledge by making an inquiry for

fear that he may learn the truth: cf.

REG V CRABBE.

And I jump four or five lines; Your Honour concludes

after the reference to GLENNAN:

It follows that the summing up was defective to the extent that it referred to the concept of recklessness.

Again, I acknowledge, not specifically related to

"attempt," but the analogy is there. But the final

reference, Your Honours Justices Wilson, Deane and

Dawson did advert to· it at least in passing, at 506 to 507.

The passage is at about point 5 to point 6, the new

paragraph, where Your Honours are speaking, in our

submission, of general principles relating to secondary

offenders, and this passage, we submit, is relevant on

the attempt issue:

For the purposes of many offences it may be true

to say that if an act is done with foresight of its

probable consequences, there is sufficient intent

in law even if such intent may more properly be

described as a form of recklessness. There are,

however, offences in which it is not possible to

speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another.

That is the critical but short sentence:

And we think the offences of aiding and abetting

and counselling and procuring are others.

C2T42/l/VH	25	9/6/88
Evans

MR TILMOUTH (continuing): If I can interrupt there, in

other words, as we would argue it, the passages

I have read earlier, although on aiding and

abetting and so on, can be called in aid on

the attempt issue. I read on:

ThoseDffences require intentional

participation in a crime by lending

assistance or encouragement. They do

not, of course, require knowledge of the

law and it is necessary to distinguish

between knowledge of or belief in the

existence of facts which constitute a

criminal offence and knowledge or belief

that those facts are made a criminal offence

under the law. The necessary intent is absent

if the person alleged to be a secondary

participant does not know or believe that

wnat he is assisting or encouraging is

something which goes to make up the facts

which constitute the conunission of the

relevant criminal offence. He need not

recognize the criminal offence as such, but

his participation must be intentionally

aimed.at the conunission of the acts which

constitute it. It is not sufficient if

his knowledge or belief extends only to
the possibility or even probability that

the acts which he is assisting or

encouraging are such, whether he realizes

it or not, as to constitute the factual

ingredients of a crime. If that were

sufficient, a person might be guilty of

aiding, abetting, counselling or procuring

the conunission of an offence which formed no

part of his design. Intent is required and

it is an intent which must be based upon

knowledge or belief of the necessary facts.

To the extent that REG V GLENNAN suggests

the contrary, it is not, in our view,

in accordance with principle and does not

correctly state the law.

So, Your Honours, we say that that passage supports

us on the issue of the general principle as I had

suggested it.

Your Honours, I had mentioned, but I

do not rea~ the case of ANCIO. Could I refer

Your Honours to it without reading the passage at 401, mer~ Justice McIntyre is speaking on behalf of the

Canadian Supreme Court, makes the point that -
sorry, Your Honours, I did.notmean to go to it directly, to save time, but at 401 the earlier cases of LAJOIE and RITCHIE are overruled. His Honour

makeR tbA nn~n~ that:

The conunon law recognition of the

fundamental importance of intent in the

crime of attmept is carried forward into

the Criminal Code.

C2T43/l/JM	26	9/6/88
Evans

And he also makes the point that the Crown must

prove mens rea, and that attempt and the principal

offence are really two different matters altogether.

But I did not want to stay to read that, Your Honours,

but 401, from about point 3 down to the bottom of

the page.

In other words, obviously, the Canadian

Supreme Court has gone in the direction which,

we submit, is appropriate here.	The emphasis
on the passage:

It is clear from the foregoing that

in common law and under the criminal law
of Canada criminal attempt is itself an
offence separate and distinct from the crime

alleged to be attempted.

And so on.

(Continued on page 28)

C2T43/2/JM	27	9/6/88
Evans

MR TILMOUTH (continuing):  Again, Your Honours, that was

a murder case however but our submission, of course,

is there is no relevant distinction. Your Honours,

I do not read from CRABBE's case, it has already

been referred to indirectly, but I refer

Your Honours to the passages we have mentioned

by reference intl1e written submission which, of

course, talk about the probability possibility

contention.

Your Honours, as to the mental element of rape

itself the most important case, at least from

South Australia's point of view, is the REG V BROWN,

(1975) 10 SASR 139. The ruling in BROWN is focussed

upon whether the belief in the accused must

be on reasonable grounds, and it ruled not so.

But there were, of course, important statements

on the mens rea. Dr Bray, at 141, is possibly the

most direct. His Honour rules at 141 at about

point 6 where he refers to DALY's case, the Victorian

decision, and he says just before that:

And I further assume that, in line with modern

developments in the law of homicide and

in accordance with recent authorities on

the subject of rape itself, with which I

respectfully agree on this matter (see,

for example, REG V DALY), recklessness is

to be equated with intention. Is it also necessary

that the accused should have intended to have

intercourse without the woman's consent or

irrespective of her consent?

Sorry, that is put rhetorically.

This is the way in which I prefer to put it.

It is said in DALY's case, "that the Crown

must establish beyond reasonable doubt that the

accused either was aware that the woman was

not consenting, or else realised she might not

be, and determined to have intercourse with

her whether she was consenting or not."

And I underline for our second argument, Your Honours:

or else realised she might not be, and

determined to have intercourse.

That is the advertence issue, there must be a

relevant belief ini:the accused person.	Your Honours,
I move on.	Much of the judgment is highly relevant,

of course, but I attempt to pick only the most

important aspects. At 142 to 143 His Honour refers

to the Victorian decision in LAMBERT and then states

at the bottom, after the indented passage, at 142:

C2T44/l/MB	28	9/6/88
Evans

It was very properly conceded by the learned

Solicitor-General in the present case that

those views appear to have received the

approval of the High Court in PAPADIMITROPOULOS V

THE QUEEN. Like him I regard the words in

brackets at p.255 -

that is in PAPADIMITROPOULOS -

(as to the need of the man's being aware of

the absence of consent)" as an adoption by the

learned Judges of LAMBERT's case.

Then His Honour goes on to refer to other cases

and at the end of FLANNERY AND PRENDERGAST says:

The principle to be gathered from these cases

is that one of the matters to be proved by the

Crown beyond reasonable doubt is that the

accused "was aware that the woman was not consenting,
or else realized that she might not be and

determined to have intercourse with her whether

she was consenting or not."

So realization is, in my submission, on Dr Bray,

required, and at 149, Your Honours, he said - and

this is his conclusion on the whole of the case

after the reference to BURLES and TAYLOR, at about

point 3:

I think it may be wise to tell the jury that, besides being satisfied about penetration and the absence of consent, they must also be

satisfied that the accused intended to have

intercourse despite the lack of consent or

irrespective of it, but in many cases it will

be sufficient to add that they would be entitled

to infer such an intention from the woman's

story if they accept it -

and so on. But, again, clearly there is the requirement

of the accused's intention in the way that I have

referred to it, so I submit that that is the

intention based mens rea, rather than the

circumstances based mens rea, or the belief mens

rea.

(Continued on page 30)

C2T44/2/MB	29	9/6/88
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MR TILMOUTH (continuing):  Justice Wells was apparently

otherwise at page 154 to page 155. His Honour

said, at about point 7, the paragraph which

commences there at page 154:

The appeal at bar does not, however, come

to us as res integra, and I am constrained
to acknowledge that the weight of authority

today in Australia points to the existence, in law, of a form of mens rea as one of the

ingredients of the common law felony of rape.

It is customary to express that ingredient

exclusively in terms of intention.	I should
prefer not to do so.	Intent (as Holmes so
page 53) 'will be found to resolve itself into	succinctl6 describes it in The Common Law at
two things; foresight that certain
consequences will follow from an an act,
and the wish for those consequences working
as a motive which induces the act".

Your Honours, I skip that next passage, although it

is important, and go over to page 155. His Honour

then says that he:

should prefer to define rape -

after making those comments -

as follows: "A person commits rape when he has

unlawful carnal knowledge of a female without

her consent, knowing that she is not

consenting, or recklessly indifferent as

to whether she is consenting or not."

Formulated in that way, it seems to me it

would be easier to explain to a jury, and

it is jurisprudentially a more accurate

definition.

Now, Your Honours, it seems evident and plain that

the Parliament took those words out of that judgment

and put them in section 48. So much is agreed in the

subsequent cases and obviously the parallel of those

words is almost exactly identical.
Finally, Your Honours, Justice Sangster, who

was the third judge in the quorum, appeared to deal
with the mens rea on the basis of intention rather
than the basis of belief. His Honour said at

page 163 to page 164, and page 163 is the very last

line:

It seems to me that the basic definition

of rape is unlawful sexual intercourse
with a woman without her consent, and that

the general requirement of mens rea is

applicable. The latter requirement applies

C2T45/l/HS	30	9/6/88
Evans

to all elements of the crime - to the

facts which rendered the intercourse

unlawful -

I leave the bracketed bits out -

to the sexual intercourse and to the

absence of consent. In its application

to the third element, namely absence of

consent, the accused must have intended to

have intercourse without the woman's consent -

usually expressed in terms of requiring the

prosecution to prove beyond reasonable doubt

that the accused (a) was aware that the

woman was not consenting, or (b) realised that

she might not be consenting and determined

to have intercourse whether she was

consenting or not.

So clearly, if the Court pleases, the majority

requires some intention, some knowledge in the

accused. I submit that Justice Wells does too,

although he prefers to state the mens rea a little

differently.

Your Honours, BROWN's case was decided shortly

before MORGAN in the House of Lords, but subsequently

in the case of WOZNIAK & PENDRY the Full Court had

occasion to consider MORGAN. WOZNIAK & PENDRY

was reported in (1977) 16 SASR 67, and again,

Your Honours, it is difficult to pick essential

passages from this judgment because, in many

respects, it is very important, but again

Dr Bray deals with this issue and he has the

concurrence of Justice Mitchell in what he has

written.

(Continued on page 32)

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MR TII.M)UI'H (continuing): At page 70, Your Honours, he deals

with the House of Lords in MORGAN and, after the reference to MORGAN on page 70 at about point 3,

he continued:

There was in each of those cases some

difference of opinion whether the definition
of mens rea in rape should be formulated in
terms of intention or in terms of belief.
All the Judges in this Court, however, and
all the learned Lords in the House of Lords
who adverted to the topic held that, besides
the intention to have intercourse without
the girl's consent, or the intention to
have intercourse knowing or believing that

the girl was not consenting, there was an

alternative form of mens rea, which can

compendiously be described as mens rea by

recklessness.

And a number of citations are given at pages.

In short, whether it should be put that it

is necessary either that he should have

intended to have intercourse without the

girl's consent or irrespective of her

consent, or that he should have known or

believed that she was not consenting or

have been recklessly indifferent as to

whether she was consenting, I do not think

there is any real dispute that the two

alternatives exist.

Your Honours, I leave out much of the next few pages

although His Honour does discuss the critical issue

of the difference between the intention and belief

approaches and that proceeds on to page 72 and
page 73. Then, His Honour deals with section 48

at page 73 and refers to the statute and concludes - - -

WILSON J:	Was this before section 48 was amended- substituted?
MR TILMOUTH:	No, this was after section 48, Your Honour.,

~-N:tAfZ & 'PENDRY was .

WILSON J: Only just.

MR TILMOUTH:  Only just, yes. His Honour deals with that and

says:

That the law has probably not developed

in this way. In South Australia the

point is now academic.

And he refers to the section. But, with respect,

Your Honours, it may be academic in the sense that the·cotmnon law was not necessarily stated by all

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judges or Law Lords the same way but, nevertheless,
the terms of section 48 still leave - if it is

declaratory of the common law, the issue is one that

is still begging. Over on to page 74, Your Honours,
His Honour concludes in the middle of that page - I

do not read the whole lot. Again it is all important

but his conclusion right in the middle of the page

that:

The accused has that intention if he has

intercourse realizing that the girl might

not be consenting.

So, at the end of the day, the Full Court still comes

down to the necessity of the accused person to

realize, at least, that the other person might not

be consenting.

Could I add this, Your Honours, at page 75 - - -

DEANE J:	It would be a quite extraordinary result that you
are contending for, would it not, that the trial judge would have to say to the jury, "If he did A, B, C, D and E, he is guilty of the crime but if you are
satisfied beyond reasonabl~ doubt of A, B, C, and D
and that he attempted to do E, he is not guilty of
attempting to do the crime" because that is, really,
what you are saying; that it is not good enough to
prove not that he attempted to act recklessly but
that he did act recklessly. I put that the wrong
way.
MR TILMOUTH:	Yes.
DEANE J:	It is not good enough to prove the fact that he was
recklessly indifferent.

(Continued on page 34)

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MR TILMOUTH: It is difficult to find the right words,

Your Honour.

DEANE J:  But when the law sounds, in terms of what you

have got to tell a jury, ridiculous it is normally

a pretty good reason for thinking that there is

something wrong in. what has been put somewhere

and, really, if you had to say to a jury: "He was

recklessly indifferent; the girl was not consenting;

if he had penetrated he was guilty of rape but

he attempted to penetrate but he is not guilty

of attempting to commit rape". I mean the jury

just would not know what you were talking about.

MR TILMOUTH:  That might be so, Your Honour, but it is only

as illogical as Lord Goddard suggested it was in WHYBROW's case, the principle is still the same, and the difference, of course, is that penetration

was not achieved in the end result. With all respect,

Your Honour, if what you have put to me is right,

and it may well be difficult to explain it to a

jury, but the same thing must pertain in murder

cases in exactly the same way.but the law has not

fallen short, at least so far, of saying that that

is a reason why juries should not be directed in

terms of ALISTER or GIORGIANNI.

DEANE J: Well, except apply it to a ~urder charge where

consent might be an answer. No - apply it to assault

where consent would be an.answer. If the person
was not consenting you do not have to - I am leading

you astray. Let us not take it any further.

MR TILMOUTH:  I am sorry, Your Honour, I understand the

difficulty, of course, in the illogicality but

I come back to Lord GoddaFd, if that is a sufficient

answer. But, of course, even if that is accepted,

that is Your Honour's suggestion arguendo as being

correct, the illogicality tells us there is something

wrong with the argument. Of course, that still

leaves our second argument which, we submit, is

and that second argument would not suffer from	just as important on the direction of foresight
the same difficulty, I submit, that the first one might as a matter of logic.

Your Honours, I was finally referring to

page 75 simply to say that it is the only reference
of which we know, apart from PIGG's case in the

United Kingdom where the word "indifferent" or

"indifference" is given any judicial consideration

and it is clear at the top of page 75 from what

Chief Justice Bray says that indifference still

requires the advertence that I have spoken of.

He said, right at the top:

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Miss Powell's second complaint was about

the word "indifference" in the learned Judge's

reference to an indifference as to whether

she ·was consenting or not. "Indifferent"

is the word used by Wells J. It is in this

context the semantic .. equivalent of "not caring"

in Lord Hailsham's formula. It means no more

than a determination to proceed with advertence

to the possibility of non-consent.

So, Your Honours, again, and on the second point

whatever else may be said about the principle of

mens rea, nevertheless, it seems, in my submission,

clear from BROWN and WOZNIAK AND PENDRY that when

it comes to reckless indifference there must be

the requirement that there be advertence by the

accused. And as I have endeavoured to point out

as strongly as I can that was not mentioned by

the learned trial judge in his charge.

Your Honours, I go then to the DPP V MORGAN

and· I will deal with MORGAN as quickly as I can,

it is a long case, (1976) AC 182, and, Your Honours,

it is difficult to know exactly whether MORGAN

is inconsistent with BROWN and WOZNIAK or not but,

of course, Chief Justice Bray in the passages I

have referred to in WOZNIAK said that he thought

that there was no inconsistency. Your Honours,

I only go to the chief passpges and one other -

there~are many others that could be referred to.

Lord Cros~ at 203 just above line E, said

merely-that:

Rape, to my mind, imports at least indifference

as to the woman's consent. I thin~, moreover,

that in this connection the ordinary man would

distinguish between rape and bigam~.

And he goes on.	Lord Cross really does not deal
with the issue then.	Of course, the principal

issue in Morgan was the required reasonableness

or otherwise of the belief in the accused.

Lord Hailsham, which is the speech most often cited is at 215-16 and the passage which most often

appears in the judgments when MORGAN is referred

to is 215, line C:

(Continued on page 36)

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MR TILMOUTH (continuing):

I am content to rest my view of the instant

case on the crime of rape by saying that it

is my opinion that the prohibited act is and

always has been intercourse without consent of the victim and the mental -element is and

always has been the intention to commit that

act, or the equivalent intention of having

intercourse willy-nilly not caring whether the

victim consents or no. A failure to prove

this involves an acquittal because the intent,
an essential ingredient, is lacking. It

matters not why it is lacking if only it is not there, and in particular it matters not

that the intention is lacking only because

of a belief not based on reasonable grounds.

WILSON J: Mr Tilmouth, I am sorry, I am not clear why you

are taking us to this kind of statement which is

talking about rape and does not seem to extend the

law beyond what the statute, in plain terms, in

South Australia says.

MR TILMOUTH:  Your Honours, I was doin? it for completeness.

My submission is that MORGAN s case does not help nor hurt, as it were, but I thought it desirable to simply refer the Court to the main passages in

MORGAN but I agree, Your Honour, and Your Honours -

WILSON J:	Much of your comments in the last few minutes seem
to have been directed simply to identifying the

elements of the crime of rape. I would not have

thought that Mr.Doyle would have be disputing that.

MR TILMOUTH: If that is the view, if the Court pleases, I

am content to leave it there.

WILSON J:	I am speaking for myself.
MR TILMOUTH:	I understand, Your Honour, I was always diffident

about going too lengthily into MORGAN's case.

Your Honours, can I give you the page numbers in

the Appeal Cases, without reading them:

Lord Hailsham, I dealt with; Lord Simo~ 218; Lord
Edmund Davies, 225; and Lord Fraser, 237;

But my point was to be about MORGAN, that it did not take the matter any further than WOZNIAK

or BROWN.

Your Honours, I have dealt with SHERRIN's case

and I am really now dealing ~xclusjvely n0w,with

the second g!-ouhd which we argue and that is the

failure to explain reckless indifference, especially

in the context of attempted rape.	I do not read
SHERRIN's case again.	I have dealt with that.
Nor do I read ZORAD's case.	I have mentioned it

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is, on the face of it, against it but it was not

necessary to decide and I pointed Your Honours to

that finding, indeed, in the court below,

Chief Justice King, at 140~ and we are content to agree with the Chief Justice on that issue.

WILSON J: Here, you face the difficulty, Mr Tilmouth, do

younot, on your second point, that you are really

complaining of non-direction, a non-direction that

was not sought by the counsel for the applicant and

it becomes a question that lacks any general

importance, does it not?

MR TILMOUTH: In my respectful smbmission, no, Your Honour,

because it is still very important so far as the
elements necessary in attempt are concerned to

define whether or not it is necessary to direct the

jury about what reckless - - -

WILSON J:  The precise form depends on the circumstances of

the particular case.

MR TILMOUTH:  Our a.rgument must·, to be good, Your Honour,

virtually go to the extent of saying where attempt

is concerned, the circumstances always dictate that

the direction should be given. I have al~eady dealt,

of' course, with the failure to raise the issue.

I can only say, again, that it seems to have been

regarded as an important point in the court below

but I acknowledge it was not ra±sed.

WILSON J:  Of course, there is a difference between an appeal

to a Court of Criminal Appeal and an application

for special leave.

MR TILMOUTH:  Indeed, every difference, I aekn0wledge that.

But, in our submission, it is necessary to resolve

that issue if our argument about attempt is right

and also, of course, Your Honours, if we are correct

then that would mean that the directions were wrong

and there would be a different consequence.

Your Honours, the last case I deal with is the case of BELL because it is im_point~ It is probably

against us on the first argument but with us on the

second. BELL, (1972) Taa R 127. And BELL's case,

as l mentioned was cited with approval by

Chief Justice Gibbs in ALISTER's case at 423.

BELL's case, Your Honours, was a Crown appeal and

the Crown contended that the mental element of

attempted rape was simply intercourse without consent

and that was r~jected.

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MR TILMOUTH (continuing): At 130, Mr Justice Neasey, said,

at about point 8 that the Tasmanian Code was:

Declaratory of the common law.

Your Honours will recall that - 130 point 8 - that

Mr Justice Bollen distinguished BELL on the basis that

it was a code decision. I point out that

Justice Neasey at 130 said the principle was the same

under code or at common law. At 132, Your Honours,

without reading it, the argument is dealt with on

WHYBROW's case, at the top. The conclusion is at point 2:

On a charge of attempted rape, therefore, it is

insufficient to prove that the accused intended to engage in sexual intercourse, even if at the material time the woman was not consenting to

intercourse, because the intended conduct was not in itself criminal. The Crown must prove that the accused intended to have intercourse with the woman, not his wife, without her

consent, since this is what constitutes the

crime of rape.

And, going down to the bottom, Your Honours, after

the reference to SNOW's case, at about point 8 to 9,

the conclusion of His Honour is:

Be that as it may, the intention which must

be proved in attempted rape is that the accused,

realizing that the woman may not consent to
intercourse, intended to have intercourse with

her regardless of whether she consented or not.

So, on the one hand, it is against us on the first

point, but it is with us on the second, in so far as

that realization is there. Justice Chambers, to

the same effect, though, Your Honours, his conclusion

is at 134 at the bottom - perhaps 134 at the top,

first of all:

It follows that the requirements of

section 2(1) of the CODE are not satisfied

upon a charge of attempted rape unless the

prosecution prove that the alleged acts of

the accused were done with intent to have

carnal knowledge of the woman without her

consent.

Then His Honour discusses some of the cases I have

referred to today. He says at point 7:

There is a third reason. At common law the

m~nrp1 pl P.1UPnt required for the completed

crime of rape is an intention to have carnal

knowledge of the woman with an awareness that

she is not, or might not be, consenting; in

·other words a determination to penetrate whether

she is consenting or not.

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He refers to the authorities and, again, in

contradistinction to the observation of Justice Bollen,

on the very last line says that the CODE is

declaratory of the connnon law. So, Your Honours,

without going to all the other interstate cases, we

say that this question of advertence or realization

is connnon to them all and we say that it was required

here. If the Court pleases, the only other case I

was minded to refer to, but I will not, is the

United Kingdom decision of PIGG.	As we submit in
our written outline, in PIGG the	question of

attempted rape was not argued; it was assumed, and

therefore we say that it is not a reliable guide to

the law in Australia.

I acknowledge in PIGG that there are rulings

which are against us, but, in our submission, they

do not apply here because of, at·:1.east at this stage,

the governing cases of BROWN, and WOZNIAK & PENDRY.

So, Your Honours, in conclusion, our submission is

that the directions were faulty for the reasons that

are outlined in our written submission: that

recklessness should not have been put or, because it

was attempted rape, our submission is reckless

indifference must be explained to the jury. It

would have no relevant meaning to them otherwise.

If the Court pleases.

MASON CJ:  Yes, thank you, Mr Tilmouth. The Court will

adjourn for a short period of time in order to

determine what course it will take in the matter.

AT 2.47 PM SHORT ADJOURNMENT

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UPON RESUMING AT 2.51 PM:

MASON CJ: We need not trouble you, Mr Solicitor. Having

considered the arguments presented to the Court

by counsel for the applicant, the Court sees no

reason to doubt the correctness of the decision

of the Court of Criminal Appeal. In those

circumstances the application for special leave

to appeal is refused. The Court will na.,adjourn.

AT 2.52 PM THE MATTER WAS ADJOURNED SINE DIE

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