2.Set aside the order of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 18 April 2013 and, in its place, order that:
(a) the appeal be allowed in part;
(b)the appellant's convictions on counts 13, 14, 16 and 18 of the indictment be quashed; and
(c) a new trial on counts 13, 14, 16 and 18 be had.
On appeal from the Supreme Court of the Australian Capital Territory
Representation
T A Game SC with J L Roy for the appellant (instructed by Kamy Saeedi Lawyers)
H J Dhanji SC with M A Jones for the respondent (instructed by Director of Public Prosecutions (ACT))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Gillard v The Queen
Criminal law – Appeal – Appeal against conviction – Sexual offences – Sexual intercourse without consent – Act of indecency without consent – Whether jury misdirected on mental element of offences – Whether jury misdirected on mental element of offences where statute negates consent.
Statutes – Interpretation – Whether prosecution must prove accused had knowledge that consent was caused by Crimes Act1900 (ACT) s 67(1) circumstance – Whether recklessness as to Crimes Act1900 (ACT) s 67(1) circumstance sufficient to establish mental element of offence.
FRENCH CJ, CRENNAN, BELL, GAGELER AND KEANE JJ. The appellant was convicted following a trial before Higgins CJ and a jury in the Supreme Court of the Australian Capital Territory of a number of sexual offences under the Crimes Act 1900 (ACT) ("the Crimes Act"). Three of the counts on which he was convicted alleged that the appellant had sexual intercourse with DD, without DD's consent, knowing that DD was not consenting or being reckless as to DD's consent. These counts charged offences under s 92D of the Crimes Act (counts 13, 16 and 18). The appellant was also convicted on one count of committing an act of indecency in the presence of JL, without JL's consent, knowing that JL was not consenting or being reckless as to JL's consent. This count charged an offence under s 92J of the Crimes Act (count 14). The sexual offence provisions of the Crimes Act were renumbered in 2001[1]. Section 92D became s 54(1). Section 92J became s 60(1). In these reasons, the provisions will be referred to by their present numbers in the form in which each provision stood at the date of the renumbering[2].
[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.
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Details
AGLC
Gillard v The Queen [2014] HCA 16
Case
[2014] HCA 16
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Mr. Gillard against his convictions for sexual offences. The dispute concerned the proper interpretation of the mental element required for these offences, particularly in circumstances where consent is alleged to have been vitiated by an abuse of authority or other specific circumstances defined by statute.
The legal issues before the Court were whether the jury had been correctly directed on the mental element of the offences, specifically concerning the requirement for the prosecution to prove the appellant's knowledge or recklessness as to the circumstances that negated consent under section 67(1) of the *Crimes Act 1900* (ACT). The Court also considered whether, in such circumstances, recklessness was a sufficient mental state or if knowledge was required, and whether consent was a relevant consideration for all counts of the indictment.
The Court reasoned that for the offences charged, where consent is negated by a circumstance specified in section 67(1) of the *Crimes Act 1900* (ACT), the prosecution must prove that the accused knew of that circumstance. The Court found that the trial judge had misdirected the jury by instructing them that recklessness as to the circumstance negating consent was sufficient. This misdirection applied to counts 13, 14, 16, and 18 of the indictment. Consequently, the appeal was allowed in part, the convictions on those counts were quashed, and a new trial was ordered for those specific charges.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 18 April 2013 and, in its place, order that:
(a) the appeal be allowed in part;
(b) the appellant's convictions on counts 13, 14, 16 and 18 of the indictment be quashed; and
(c) a new trial on counts 13, 14, 16 and 18 be had.
Background
Background to the litigation
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Evidence
Evidence Before The Court
On 8 November 2013, Hayne and Gageler JJ granted the appellant special leave to appeal from the order of the Court of Appeal dismissing the appeal against the convictions on counts 13, 14, 16 and 18. The appeal is brought on three grounds. In summary those grounds contend: first, that it was an error to direct the jury that it could convict if it was satisfied that the complainant's consent was caused by the appellant's abuse of his position of authority over the complainant and he was reckless as to that circumstance; second, that where s 67(1)(h) is relied upon to negate consent, the mental element of the offence is knowledge by virtue of s 67(3); and third, that the Court of Appeal erred in holding that consent was only an issue in respect of count 13. For the reasons to be given, the first and third grounds should be upheld and it follows that the appeal must be allowed, the appellant's convictions on counts 13, 14, 16 and 18 set aside, and a new trial had on those counts.The evidence It is sufficient to refer to the evidence of the offences charged in the four counts and an uncharged incident that is said to have occurred after DD turned 16 but before the incident charged in counts 13 and 14. Evidence of the uncharged incident was admitted to put DD's evidence of the incident charged in count 13 in context. DD gave evidence that the uncharged incident occurred on an occasion when the appellant was staying with her family in Wodonga. She and the appellant were alone in his car. The appellant demanded that DD demonstrate that she loved him, threatening that otherwise he would "start loving JL". DD was protective of JL and did not wish the appellant to turn his attentions to her, so she reassured him that she loved him. The appellant exposed his penis and forced DD to fellate him. The incident charged in counts 13 and 14 occurred in January 1999 in the lounge room of the appellant's Canberra home. DD was 17 years old and JL was 16 years old. DD said that the appellant offered to prove to JL that he and DD had "a relationship" and that DD would do whatever he wanted her to do. He instructed DD to give him a "head job". He stood up and guided DD down onto her knees. He pulled his pants down and took hold of the back of her head, pushing it forward and forcing her to fellate him. He maintained his grip so that she was unable to pull away despite her efforts to do so. The episode lasted about 30 seconds until DD was able to extricate herself (count 13). JL's account of the incident was broadly consistent with DD's account save that JL said that the appellant's hands were by his side when DD placed her mouth over the appellant's penis. JL said that she had not been asked if she was "okay" about the performance of a sexual act in her presence (count 14) and she had been shocked by it. The offences charged in counts 16 and 18 (count 17 charged an alternative offence to count 16) occurred on the one occasion in January 2000 in a bedroom at the appellant's Canberra home. DD said that the appellant had pushed her down onto the bed and inserted two of his fingers into her vagina (count 16). She protested, telling him not to touch her. The appellant proceeded to lick her vagina (count 18). DD said that she had tried to push him away but he had pinned her down with his left arm. Ultimately, DD succeeded in pushing the appellant away. He asked her if she still loved him. DD was afraid that if she said "no" the appellant would turn his attentions to JL and so she said that she loved him, before getting up and walking away.
Decision
Reasons for decision
FRENCH CJ, CRENNAN, BELL, GAGELER AND KEANE JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN, BELL, GAGELER AND KEANE JJ