Gillard v The Queen

[2014] HCATrans 43

[2014] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C20 of 2013

B e t w e e n -

MICHAEL ALAN GILLARD

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
CRENNAN J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 MARCH 2014, AT 10.01 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with MS J. L. ROY.  (instructed by Kamy Saeedi Lawyers)

MR H.J. DHANJI, SC:   May it please the Court, I appear for the respondent with my learned friend, MS M.A. JONES.  (instructed by Director of Public Prosecutions (ACT))

FRENCH CJ:   Thank you, Mr Dhanji.  Yes, Mr Game.

MR GAME:   If the Court pleases.  We have provided our outline.  Should I pause for a moment?

FRENCH CJ:   Perhaps we might just have a quick glance at it.  You can take a seat for a moment.

MR GAME:   Thank you.

FRENCH CJ:   Yes, thanks, Mr Game.

MR GAME:   Clearly enough, a question of statutory interpretation arises in relation to section 92P or section 67, as it was renumbered, and I will address that first.  Then, the balance of the submissions relate to how the matter was put at trial and on appeal and I hope to be able to do that in a fairly summary way, having regard to the fact that it has been drawn out in the submissions.

FRENCH CJ:   So does a constructional question reduce to the issue whether recklessness is available to establish a relevant mental element in relation to the existence of a circumstance under section 67(1).

MR GAME:   That is right.

FRENCH CJ:   Then the second question is whether the trial judge directed or adequately directed the jury on your contention that it was not.

MR GAME:   Yes. That is right, yes. I should just mention that, although we have not said anything about it, section 37O of the Supreme Court Act reflects the common form appeal provisions. So subsection (2) of section 37O is just slightly different in terms of the structure but the meaning of it and structure is the same as the common form provisions.

BELL J:   Can I just add to the matters that the Chief Justice raised with you this?

MR GAME:   Yes.

BELL J:   Your argument depends upon a view that when the prosecution puts its case on a basis that the act of intercourse was without the consent of the complainant by reason of one of the grounds in (a) to (j) of section 67(1), recklessness may not be left as a path to a finding of guilt?

MR GAME:   Recklessness based on recklessness as to a section 67 circumstance.  So, if there was no consent in the sense of freely and voluntarily given agreement to participate in the act then recklessness can clearly be left, and it can still be left in respect of that same count, but in terms of the alternative way of putting the case based on section 67(1) the only route, we say, to the mental element of that offence is through section 67(3).

BELL J:   This is on a view that section 67(1) operates to extend the physical element of a section 54(1) offence.

MR GAME:   That is right.

BELL J:   That depends upon a view that consent may be negated in the sense - by a 67(1) factor such that one may meaningfully speak of a person being convicted of an offence under 54(1) which requires an act of intercourse without consent in circumstances in which, by reason of 67(1), there has been actual consent negated.

MR GAME:   That is right.  So, if I could just take your Honours directly to the – there are a number of indicators of that but – and I will come to this in a little while but the section seems to have been built on the Tasmanian provisions and on the New South Wales 1981 provisions, both of which saw - and we have set it out in the reply - the Tasmanian report saw, for example, the introduction of fraud as an explicit extension. 

Nobody has referred to it but there is a decision of this Court that was referred to in Banditt in Papadimitropoulos 98 CLR 249 which involves quite a detailed examination of the very limited circumstances in which fraud would run. But (g), for example, is “by a fraudulent misrepresentation of any fact”. So the common law was very far much more restrained and concerned and in Papadimitropoulos the fraud was actually the going through of a marriage ceremony.

FRENCH CJ:   Does it matter to your argument whether the circumstances set out in section 67(1) are characterised as extending the – or providing alternative physical elements?  It is really a question, is it not, of the proper construction of the deeming provision in 67(3) and whether the words “knows the consent” would embrace “reckless”?

MR GAME:   Yes, your Honour, except that - our argument is more powerful if section 67(1) contemplates an extension.  If it contemplates an extension then it becomes very explicitly clear that you need a mental element for the extension because you are extending the actus reus of the offence by extending the states of mind.  So that, to take an example, yes ‑ ‑ ‑

CRENNAN J:   So a deeming is an extension?

MR GAME:   A deeming is an extension, yes, and the deeming word comes from the New South Wales 1981 Act and the report, we have actually provided it to you today, but not before.  We actually only just noticed that it seems to have been built on both.  Subsection (3) is explicitly taken from subsection (2) of 61D of the New South Wales legislation.

CRENNAN J:   What about the situation where there may be alternative scenarios?  Accepting, for example, your proposition that you cannot have recklessness in section 67 circumstances, what about the circumstance of a failure to be satisfied of the section 67 circumstances?  You are then back with the elements of section 54, are you?

MR GAME:   As a matter of logic, you will not have got to section 67 unless you have failed on the common law idea of absence of consent in section 54.  So, “Yes, I agreed.  Yes, I meant to agree.  I gave all the signs of agreeing.  This had been going on for years and it happened when I was a child as well”, gets you into section 67.  But it is only if the first – if the “No, I didn’t agree” fails – that you actually logically go, and that is how it was argued in this case and that is the natural way in which people would argue in a curial context about this issue.

BELL J:   “Consent” is not defined in the Act, is that so?

MR GAME:   That is correct.

BELL J:   Do you accept that “consent” in 54(1) is to be understood as meaning a consent freely and voluntarily given?

MR GAME:   Yes.  Incidentally, the Tasmanian provision did have “truly and voluntarily” in the chapeau to the list.  It does not matter ‑ ‑ ‑

BELL J:   But accepting that it does not appear here, it is ‑ ‑ ‑

MR GAME:   No, it is not – so that lends support to the idea that it is not a definition of “consent”.  If it said “A person does not truly and voluntarily consent to sexual intercourse if” or “extending to the following circumstances”, then the section would potentially have a different meaning.  But section 67(3) is – that is why I agreed with the Chief Justice’s first question, is that in one sense this does not matter, but in a sense what I am putting about it is defensive because our position is much stronger if you can see the extension.

GAGELER J:   Mr Game, I may misunderstand the case against you, but if your point is the narrow one that the offence under section 54 cannot be proved by recklessness as to a section 67(1) factor, then I am not sure that the contrary is put against you.

MR GAME:   The contrary is put against us.  Yes, the contrary is put against us.  What has been put against us is that section 67 – at the special leave application I am not sure that it was explicitly put against us, but it is now explicitly put against us.

GAGELER J:   I think your argument at the special leave application may have been a wider one.

MR GAME:   It may have, your Honour, but both parties have, shall I say, narrowed their positions.  We never contemplated the idea that you could not get to recklessness at all if, in some respect, the prosecution was relying on section 67.  They can get to recklessness through recklessness as to free and voluntary agreement to participation in the act if that is the basis on which it is left, but if those circumstances fall away then you have to identify the circumstances with respect to which the recklessness applies. 

So if the recklessness is applying to “Yes, I agreed, but he said that he was Louis B. Mayer and he could get me into the movies” - which is one of the examples given - “and that is why I agreed and he was lying”, then you are out of section 54 and you are exclusively into section 67 and we say recklessness cannot apply to that, that the mental element is provided by subsection (3) and that subsection (3) is quite explicitly in the language of providing a mental element.

BELL J: Can I just suggest that your argument seems to be somewhat narrower perhaps than that that the Full Court was dealing with. At paragraph 94, which in the report, (2013) 275 FLR 416, is at 440, one sees the Full Court putting it as – the submission on behalf of your client in that court was that:

if s 67 is the ground for saying that any apparent consent was not real consent, then the prosecution must particularise the charge in relation to the accused’s state of mind as –

one of knowledge and not recklessness.  Now, I must say I ‑ ‑ ‑

MR GAME:   It is not – sorry, I am interrupting your Honour.

BELL J:   Well, I understood, and I think in part the court was responding to an argument that in the way this count was particularised - and one notes by reference to count 13 in the indictment the allegation was of knowledge of absence of consent or recklessness as to consent.

MR GAME:   I think the true situation is that it was not drawn out as explicitly.

BELL J:   That may be right.

MR GAME:   So, for example, the first sentence of 94 would be fine because it says “case depends on s 67”.

BELL J:   Yes.  It is the balance of 94 that raises that other view.

MR GAME:   Yes.  I said this a moment ago, we are not saying you cannot get to recklessness at all in such a case, but it is not going to be through a section 67 factor and recklessness has to apply to circumstances.  It would make no sense to say I consented but I only consented because of a section 67, so you have got actual consent and then you say, what is your recklessness applying to if you feed it back because you are saying – and I thought there was a possibility the person was not consenting, but the person was consenting.  So you have to link the recklessness to the section 67 factor.

BELL J:   This may to add an unnecessary level of complexity, Mr Game, because to distinguish between actual consent and negated consent may be a somewhat artificial distinction and, perhaps, not a correct one when one comes to construe section 67 as part of the scheme.  Your point would still be good, would it not, in this sense?  That to the extent that the submission is that the complainant’s consent to the act of sex was because her will was overborne by an abuse of the position of authority occupied by the accused and reliance is placed on his mental state respecting those circumstances ‑ ‑ ‑

MR GAME:   That is right.

BELL J:    ‑ ‑ ‑ it is necessary to establish that he knew her consent was procured for that reason.

MR GAME:   That is right.

BELL J:   That is your case.

MR GAME:   That is right.  So the issue becomes very real when you are looking at section 67 and you are extending liability to recklessness in respect of that factor.  So, although it is difficult to seize on the problem, when one gets to the section 67 factor and says, well, what is the mental state applying to that circumstance, and that problem was a real problem and a real issue in this case.  It was put in various inconsistent ways by counsel and the judge. 

KEANE J:   So, Mr Game, just to sort of try to bring this together, if one looks at paragraph 107 at page 735 in volume 2, you would not dispute the accuracy of paragraph 107 or 110 on the following page.  Is that right?

MR GAME:   I think that that paragraph read in context is – I would not dispute that if you have not got true and voluntary consent, recklessness can still apply to that circumstance.  But that if that circumstance goes and you have got an account that depends on section 67, then it makes a lot of sense to talk about recklessness.  You have to talk about recklessness as to that circumstance.  So I am not saying that – I have said this before – I am not saying recklessness cannot run but it has got to run in a different way and it has got to latch on to a different circumstance.

CRENNAN J:   One philosophic difficulty, I think, underlying all of this is an apparent consent, on one view, is not a true and voluntary consent.

MR GAME:   That is true.

CRENNAN J:   But section 67 seems to be predicated on well we start with consent.  Question – what sort of consent are they starting with?

MR GAME:   Yes.The Tasmanian Law Reform Commission and all of the other reports at the particular time were very concerned about the proposition that consent might not even be the right idea in respect of sexual offences.  In the report – the passage we have set out – they said it does not go far enough and they give specific examples of fraud and position of authority. 

It might be worthwhile – it has not been referred to anywhere, but we think and I do not think our opponents dispute this, but part of the inspiration from this provision actually came from the New South Wales 1981 legislation.  It is to be remembered that in the ACT really until self‑government the New South Wales criminal law was pretty much the law of the ACT.

But if you look at the passage from the report that we have given you which was written by Dr Woods ‑ incidentally, again we have given you the provision there.  The ACT has very broad provisions in relation to extraneous material - and we have given you the relevant provision of the Legislation Act - in fact, in a funny sort of way, broader than others, but if you look at page 17, which is section 61D(3) you see:

(a)a person who consents to sexual intercourse with another person –

(i)under a mistaken belief . . . 

shall be deemed not to consent to the sexual intercourse;

(b)a person who knows that another person consents to sexual intercourse under a mistaken belief –

shall be deemed.  If one reads the report (a) was intended as an extension and (b) was intended as the state of mind applying to the extension.  Dr Woods, in the pages that follow particularly through to page – under the heading “Mistake” on page 19 through to the beginning of the discussion about 61E on 20 explains the limitations of the common law. 

BELL J:   Well, whether that is right or not takes one back, perhaps, to the analysis of the common law in Papadimitropoulos v The Queen (1957) 98 CLR 249. There one goes back into the history respecting whether personating a woman’s husband exposed a person to liability for rape or not and it is quite clear there was a division of views about that and it was around about 1856 that in the United Kingdom legislation was enacted to make clear that personation in that context constituted the offence of rape. That is before the offence of rape was defined in the way that the 1981 New South Wales reforms introduced. The matter I am raising with you is whether it is right to say of section 61D(3)(a)(ii) that it was intended to be some form of extension to the law as it was then understood might be a controversial statement.

MR GAME:   It was thought by the author of that – it is not to be forgotten that New South Wales already had a provision of obtaining sexual intercourse by fraud.  There is one sentence in Papadimitropoulos where the Court says – I am sorry it is not on anybody’s list but:

In the language of a note of the Canadian decision of R. v. Harms, fraud in the inducement –

Sorry, our opponents have copied it - perhaps if we just provide it to your Honours.  It seems that everybody latched onto this case sometime yesterday afternoon.  Can I just provide it to your Honours? 

FRENCH CJ:   Yes.

MR GAME:   It is actually incredibly interesting - if you are interested in this sort of thing.  It is quite an interesting discussion about where this all came from but I was just going to read one sentence at the bottom of 258. One would have to say that it is quite a remarkable outcome anyway.  At the bottom of the page of 258:

In the language of a note to the Canadian decision of R. v. Harms, fraud in the inducement does not destroy the reality of the apparent consent; fraud in the factum does.

That just shows how limited the idea was. 

FRENCH CJ:   So, could you have a circumstance where, without relying upon any deeming – well, statutory negation, as provided for in section 67(1), a person engaging in sexual intercourse with another and abusing a position of authority in so doing would be doing so in a situation where the other person’s apparent consent was not a consent for the purposes of the common law or for the purposes of section 54?

MR GAME:   That is right.

FRENCH CJ:   In which case recklessness, of course, would be engaged.

MR GAME:   That is right.

CRENNAN J:   Because the common law had that very useful notion of a real consent, did it not?

MR GAME:   Yes, it did, but this was all inspired by a concern that the common law had failed.  The language is strong because it says, “is negated if that consent is caused by”.  Now, it is put against us, for example, that on our construction why would you have (a) in place.

BELL J:   Your answer to that is a submission which, for my own part I have some difficulty with, that in the context of domestic violence consent might be free and voluntary in the sense you acknowledge 54(1) speaks of and yet the particular act be caused by violence or a threat of violence.

MR GAME:   Well, a prosecutor might have recourse to this if the person apparently acquiesced and participated in it but could cite an earlier history of physical violence.

BELL J:   But the Crown would still need to establish that the engagement in the act of intercourse, the subject of the count, was caused by the threat or the violence.

MR GAME:   That is right.  In that instance they would have to say it was caused that which had occurred before, whether it was months or years before, but you could rely on – yes.  But the strength of the language which is then replicated in subsection (3) is the language of a mental – first of all, (1) is the language of cause and one would doubt that that was a “but for” cause, one would think that was more of a substantial contributing cause.  That has not been discussed in the cases.  But then when one comes to (3) “knows the consent” has been caused so the knowledge goes to the actual fact of the cause in any of those particular instances.

FRENCH CJ:   If the deeming operation is to be engaged.

MR GAME:   That is right.

BELL J:   Just on a practical level, if one goes to the way this jury was directed, and this is at appeal book 631, the judge appears to have adopted something of your analysis, Mr Game, because at line 8 he says:

However, if the accused does not know or you’re not satisfied that he did know that there was no consent you would have to, by virtue of the directions I gave you concerning the onus of proof, proceed on the basis that the accused did not know there was consent because you’re not satisfy beyond reasonable doubt that he did know that there was no consent.

Then he moves to the next matter, being recklessness, and then to a consideration of apparent consent in the context of the 67(1)(h) factor.

MR GAME:   Yes.  We seek to take that passage apart and show what the problems with it are.

BELL J:   I understand that and I understand you will come to that later in your argument.  The matter I am taking up with you is the division which some might think unnecessary if one simply views 67(1) as stating non‑exhaustively the circumstances in which a person will not have consented within 54(1) to an act of intercourse.  It seems to me it does not take away the balance of your argument, but in terms of the logic of the scheme and directing a jury in a way that will be meaningful, there may be much dissent for that analysis.

MR GAME:   Understood, your Honour, but the way it is put in this case, and one would imagine that this would be a natural way one would think about it, is the Crown says, look, the complainant made it clear that she was not consenting.  But even if she was, we say that this was an abusive relationship that had been going on for years and you could say that the agreement was based on a section 67 factor.

So that even if the proper construction of the provision as your Honour puts it, in a practical way it is going to be broken up into different steps and section 67(3) bites at that point.  So we would say that it is hard to get away from the division of the process of thinking about it.  The reason is because the prosecution would put that the person – the accused should be convicted even if for all ostensible appearances consent was given because of the history of the relationship, so that that is the “brought in aid” to establish the absence of consent and that is the extension.

BELL J:   An extension ‑ ‑ ‑

MR GAME:   It is an extension.

BELL J:   An extension if free and voluntary consent does not embrace a consent because your will is overborne by the relationship of power.

MR GAME:   Well, in a sense, yes, your Honour.  In a sense, yes, but that problem would become more real if there was no section 67(3).  One would really have to address that question because if there was nothing there, then one would have to work out what one did about this going back to section 54 or 60, so the fact that section 67(3) is there and in explicit terms we say takes the thing out of contention, in a sense.

There is also a level of - confusion is the right word - but confusion when one talks about the mental element of sexual intercourse without consent and as late as Morgan it was being talked about in terms of honest belief.  The honest belief is no more than stating in reverse the mental element of the offence and the explanatory statement for the ordinance speaks in terms of honest belief in Morgan and that is the language of a mental element, so that ‑ ‑ ‑

CRENNAN J:   It is a defence, though.

MR GAME:   It is not a defence, disproving it is an element of the offence.  But, as late as Morgan, it was still being talked about as a defence.  Properly put, that is no more than a statement of the mental element.  Ideas of mistaken law and mistaken fact, really, are just introducing confusing into the discussion.

FRENCH CJ:   They are in the Code States.

MR GAME:   So, your Honour was about to ask me a question.

BELL J:   No, I was just about to raise, in the context of that last exchange, that this Court pointed out in Banditt v The Queen (2005) 224 CLR 262 at 275, paragraph 32 in the joint reasons, that the New South Wales legislation on which you submit Part 3 of the Crimes Act (ACT) is partly based, was strongly influenced by developments in England, including Morgan.

MR GAME:   Yes.

BELL J:   There one sees in the 1985 second reading speech for the ordinance that the earlier form of 67(3) was understood as addressing Morgan.

MR GAME:   Yes.  That passage at page 7 of the ordinance, properly understood, is slightly baffling to read but, anyway, what that means is that it is providing a mental element.  It could not mean something else.

BELL J:   Well, it may mean that there was a misunderstanding about the law.

MR GAME:   Yes.

BELL J:   What we are left with is 67(3) as it is.

MR GAME:   Yes.  But, as I say, if one chased it down, it really does seem that 67(3) was lifted from Dr Woods’ draft in New South Wales.  Sorry, your Honour ‑ ‑ ‑

BELL J:   No, go on.

MR GAME:   The language of “no” and “deeming” – sorry, incidentally, the word “deeming” in the New South Wales provision was dropped in 1991 and was changed to it “is to be taken to know”.  Again, in case I forget it, the New South Wales legislation is gone into by our opponents and it divides cases from cases where there is no consent and it has other cases where there is consent which is negated, so they actually break a provision like section 67 up into component parts.

But, the other thing I was going to say is that there is probably no need to go to the case itself, but we have given your Honours a case called Bochkov in New South Wales where the very exercise that we say should be conducted was carried out at trial in breaking it up the way we say.  We have set that out in the document we have handed to your Honours at page 2 under the heading “Similar treatment in New South Wales”.

FRENCH CJ:   Can I just go back to the text of 67(3) for a moment?

MR GAME:   Yes, your Honour.

FRENCH CJ:   Just use it to test its extent.  First of all, can I ask whether the word “who” in the first line is actually a mistake, should not be there?

MR GAME:   Yes.

FRENCH CJ:   So, if one were to pose the question in the terms of section 67(3), but let us say in the context of consent for the purposes of section 54, in these terms:  If:

it is established that a person [is reckless about] the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1)(a) to (j) –

So, let us suppose that it is able to be established that person has been reckless as to whether consent has been induced by one or other of those circumstances, would that, in your submission, have any significance at all in the context of a prosecution under section 54, or does it depend upon the particular circumstance and how it stands with the common law?

MR GAME:   So say two people are drunk and they both consent but both only because they are drunk, or one of them only because they are drunk, so that in your ‑ ‑ ‑

FRENCH CJ:   You are looking at (e).

MR GAME:   Sorry?  You are looking at (3), yes.  So that the person who is the accused says, yes, I thought about whether or not the person was consenting, I thought it was a possibility but I thought that they were consenting, which might be a form of recklessness, the only relevance of that would be to make out a case that they actually knew - in subsection (3).  So that recklessness will not bite, in our submission.

FRENCH CJ:   But there may be recklessness as to some of these circumstances which may go to the question of recklessness as to the existence of consent.

MR GAME:   Yes, absolutely.

FRENCH CJ:   For example, by (a).

MR GAME:   Yes, (a), very much so.  But in most instances it would be ludicrous to say I only consented because the other person was violent towards me.  So that is why my example that I put to your Honour Justice Bell might not be so absurd because you would not be talking about consenting.  Anyway, that really is the question of construction. 

So what one brings to it is the common law in sections 54 and 60, whether you call it the statutory extension, the statutory framing of things that might otherwise appear to be or be consent in subsection (1) and then the affixing of a mental element to those defined circumstances and that makes sense to do so and it only makes sense that that is a mental element, but also the extension to recklessness, the legislature could do it, but it might be thought to be contentious.

It might be thought that that is a step too far to say yes, I agreed, yes, the other person agreed, but we were both reckless as to – as the Law Reform Commission in the ACT pointed out, you could have two people having sexual intercourse with each other who are both guilty of rape.  So it is a contentious thing and because it is taking an extended – I say the word “extended” but a section 67(1) actus reus – and it is an extension of liability for mental element to states of, shall I say, bare advertence or not caring less, or willy‑nilly is the old‑fashioned language – was in Morgan’s Case.  So it bites and it hurts at that – it means a lot at that point in terms of directing a jury and finding liability.

BELL J:   Another view of 67(3) is that it is saying nothing about the elements of the offence, those having been created relevantly in section 54(1), but it is talking about means of proof and, perhaps unsurprisingly, being a statutory statement that if you have sex with someone knowing their engagement in the act is because of the infliction of violence or threats you are taken to know that they were not consenting.

MR GAME:   But, your Honour, that would be otiose, in fact.

BELL J:   Well, it might be.  It is not so uncommon to encounter that.

MR GAME:   No, but it would be – maybe that is what they thought, but it would be otiose and that is not what properly read the explanatory memorandum says when it is talking about “honest belief”.

BELL J:   The explanatory memorandum has its own problems.

MR GAME:   Quite, your Honour.  But as I said, the reason why we have pulled in the New South Wales and the Tasmanian thing is to try to give some context to it. 

GAGELER J:   Mr Game, can I ask you a question about that context?  There seems to be slight difference in structure between the offence‑creating provision in New South Wales and the offence‑creating provision in the ACT which may have a bearing on the extension, I just do not know.

MR GAME:   There may be, your Honour, but if one looks from Bochkov it seems that the actual way a thing works through in practice is the same.  But the New South Wales legislature now has different – I am not quite answering your Honour’s question but section 61HA now which we have given to your Honours, first of all it defines sexual intercourse:

if the person free and voluntary agrees –

We have provided the current section, section 61HA.  Then we have the mental element, knowledge, knowledge and recklessness.  Then:

A person does not consent to sexual intercourse –

if, those things, and then subsection (5):

A person who consents –

then the mental element is provided in the section.  It has got:

For the purpose . . . the other person knows . . . if the other person knows that the person consents –

That is how it was analysed in that case of Bochkov which is that you can only get to a subsection (5) factor through knowledge, you cannot get there through recklessness.  That is how that has been construed.  Again, I am not sure if that answers your Honour Justice Gageler’s question but that is how it has been analysed in New South Wales.

GAGELER J:   The difference in structure is that I have not fully digested this new provision but the provision you took us to before which was section 61D(3) followed from section 61D(1) and (2) which is at page 15 of the print.  The section 61D offence was an offence required a mental element of knowledge ‑ ‑ ‑

MR GAME:   Or recklessness because of subsection (2).

GAGELER J:   Yes, that is my point.  I do not know if anything really follows from it.  Section 61D had knowledge, subsection (1); subsection (2) recklessness was deemed to be knowledge.  In the ACT provision it is the other way around.

MR GAME:   Yes, your Honour, that is true but there have been changes recently, but it is now recklessness in the ACT, but at the time it was knowledge or recklessness.

GAGELER J:   Was the difference between recklessness being the mental element and knowledge being deemed to be recklessness an advertent change.  Is there some reason for that difference in the ACT?

MR GAME:   The change?  No, your Honour, but section 61D(2) spoke to 61D(1) in the same way that section 61D(3) spoke to section 61D(1), so that they both fed in to (1), so we say the analysis would be the same.

GAGELER J:   It is much easier to see section 61D(3) as an extension ‑ ‑ ‑

MR GAME:   It is.

GAGELER J:   ‑ ‑ ‑ in circumstances where section 61D(2) was an extension.

MR GAME:   Yes, it is much easier to see it, but we say that just because it is much easier to see it, but when you couple that with what they were doing in the Tasmanian provisions, which is where this list comes, you see that they really meant to extend it and they used the language and they said where the common law has not gone far enough are the final words in that discussion that we extracted, and they gave the example of fraud and abusive relationships.

BELL J:   Can I just query this with you?  The matter has been conducted on the basis that the change in the numbering of the provisions in the ACT Act is a matter of no relevance, but am I right in understanding that at the time of the commission of the offence in count 13, the Act was in the form that is annexed to your submissions, 92D(1), which was in different terms to 54?

MR GAME:   Different terms to how it is now, your Honour, but it is not different terms to how it was when it was renumbered in 2002.  So what has happened is that section 92D and P became 54 and 60 in 2002 and at that time there was no change to the language of the provision.  But it would be a mistake to look at the current section 54 or 60 for the words of the section as it was at the time.

BELL J:   Indeed, yes.

MR GAME:   So it is unfortunate that throughout this case everybody has been saying section 54 and 67.  I assume that is because in the ACT these sections are referred to in this way.

BELL J:   But it is misleading ‑ ‑ ‑

MR GAME:   It is misleading.

BELL J:   ‑ ‑ ‑ because there is a significant difference respecting the elements of the offence.

MR GAME:   Yes, absolutely.  But in our annexure A to our submissions we gave you in five attachments all the relevant changes and the ones to look at are the first and the second, not any others.  Now, that is really what I wanted to say about the question of construction.  If I could then return to our hand‑up document today and I will try and take your Honours through these passages as quickly as I can. 

If one looks at paragraph 10 of our submission that we have provided today, we see particular parts of the Crown’s opening that are drawn out.  It does not matter particularly, but at the bottom of page 21 of the appeal book, line 36 – and this is the kind of thing that I put to your Honour Justice Bell before, that it is only natural to start talking in this language, but at line 36:

If you’re of the view that she did in fact consent then there’s still the question of –

At other times it is not put so explicitly, at other times it is put in terms of apparent consent and so forth but what one sees is that apparent consent, we submit - on the bottom of page 20 to the top of page 23 it is put in relation to counts 15 to 18 and there is a mistake at the bottom of 22 which is:

her consent is negated, it has no effect.  In such a case, he is then deemed to know –

Now, it does not matter terribly because everybody would have forgotten about it, but that leaves out the mental element altogether.  So that is how the Crown opened on it.  Then we have extracted the evidence in a really very summary way, the relevant evidence at trial, but there is just one bit I wanted to draw out which is at the top of page 3 of our outline.

I should say that we put that the appellant could actually have been convicted on counts 13 and 14 on his own account on the way this case was left on recklessness.  Now, as I say, the top of page 3, 14, what we are just dealing with there is counts 16 to 18 and the appellant denied that there were any sexual acts after counts 13 and 14, so he denied those, but in the cross‑examination of the complainant that little part that we have extracted from pages 132 to 133, one can how section 67 could come to have some work to do in respect of that account.  Now, then in the next passage, again I will try and do it in a summary way, if one looks at the Crown’s closing address, and I will just take your Honours to it briefly, at 585 and 586 of the appeal book – actually it starts at 584, and one sees at line 40 on 584 – recklessness:

If he is aware that any apparent consent ‑

Recklessness is attached to apparent consent and we see that at 585, lines 5 to 10.  That is explicit.  We say that lines 5 to 10 are explicit and important and we say that they are important because the judge endorsed what the prosecutor said at the final part of his summing‑up.  Then one sees at 585 to 586 - we say that the whole of that passage from 585 to 586 is extending counts 13 and 14 and 16 to 18 to apparent consent because that is how the case was put and it may make sense.  They may say well, the jury may have said on 16 to 18, well, look, it happened.  Why do we need to trouble ourselves about the issue about whether or not there was apparent acquiescence or not or whether she consented?  We have got the history of the abusive relationship.

Once we have found it happened we convict him.  So it is not as far‑fetched as our opponents are putting against us that it extends to 16 and 18.  As we say, that is how the case was put.  Now, again going back to our outline, we have extracted – as we have in the submissions – the relevant parts of the summing‑up.  If I can take your Honours to the passages briefly, at 626 his Honour gave a - the direction on consent is between lines 10 and 15.  The crucial line – and I do not mean to be critical of the Chief Justice in the ACT – but it is difficult to make sense of it – but it says:

But consent has its ordinary meaning and a state of mind that agrees with acquiescence in the act in question.

That does not really give a very good direction on - but then the next line is:

Now, there is a qualification to that of course.  That is whether there is apparent consent –

That is the point I was making before.  It is only natural that one then does it in that way.  Then his Honour gives a direction as to recklessness at the bottom of page 626 through to line 17 on 627.  Then there is a discussion about the directions and Mr Archer asks for a further direction at 630, lines 20 to 25.  He was also putting another argument that there had to be some other different abuse and that argument was put in the Court of Appeal but ‑ ‑ ‑

BELL J:   But you do not press that.  Do you accept that what one is looking at in 67(1)(h) in terms of negation of consent is the concept that the complainant’s will is overborne by reason of the relationship?

MR GAME:   Yes, but your Honour just said 61(h) and I think you meant ‑ ‑ ‑

BELL J:   I meant 67(1)(h).

MR GAME:   Yes, your Honour. 

BELL J:   Can I just take this up with you?  For my own part I have some difficulty understanding recklessness in the context of the issues live at the trial.  In terms of the offence charged in count 13, there was evidence that the complainant did not consent and was offering some physical resistance and there was a case that in the circumstances, having regard to the history of the relationship and the statements of the appellant to the effect that he would demonstrate to the younger sister his power over the older, that her will was overborne. 

MR GAME:   Yes.  But that was not the only evidence.  There was evidence that might have limited the proposition that the complainant resisted or may have actually done away with it.

BELL J:   Indeed.  The younger sister’s evidence did not support the complainant on that aspect.

MR GAME:   Yes, yes.

BELL J:   But it was necessary, if recklessness was to be left, one might think, to give a fuller explanation of recklessness.  How is it suggested recklessness arose in this context?

MR GAME:   Well, one might well ask that question but it is possible one can see how it would – what it would mean is that, “I thought that – I turned my mind to the possibility that the complainant was only agreeing because of the things I had done to her in the past and I went on regardless”.  So there you have got recklessness as to the section 67 factor that is relied on.

BELL J:   Where is the evidence for that?

MR GAME:   No, no, the evidence ‑ ‑ ‑

BELL J:   We are not doing an examination piece here.  We are looking ‑ ‑ ‑

MR GAME:   No, no.  Well, the evidence for that is what the Crown drew out from the abusive relationship.  The Crown said all right, even if it is the case that to all intents and purposes this was a willing act, even if that be the case, then he must have realised that there was – that the things had – it is close to deeming him – when I say it is close, it is close to making him liable on the basis of the fact that these things have happened in the past and he knows it.  But, as I said before, it really does bite in terms of fixing liability because it is extending to states of, shall I say, bare advertence or not caring less about that.  That is to say, not caring less about what has gone on in the past.

BELL J:   The matter I was raising with you, I understand your argument is recklessness as to the circumstances nominated in subparagraphs (a) to (j) is not an available route to guilt.  I am raising with you here, the jury were directed on recklessness and there is an available view that that is open in the what I will describe as conventional sense, but I am asking for your submission on how that on the facts in this case was open; that is, recklessness as to absence of consent.

MR GAME:   Recklessness as to absence of consent in the common law sense or with ‑ ‑ ‑

BELL J:   Yes.

MR GAME:   Very little room for it.  Very little room for that, but there might be room for recklessness as to these factors.  There might be room for it if you are saying, “I did not care less about what had happened in the past”, if that is the jury’s view of it.  That is how it was put.  “The relationship was abusive, so what if she agreed”, that is the kind of euphemistic way of putting it.

BELL J:   Yes, I understand that is your compliant.

MR GAME:   But in terms of common law recklessness, but in our reply we referred to a decision of Justice Kirby when he was sitting in the Court of Criminal Appeal in a case called Tolmie where recklessness was left and his Honour dealt with the – it is not on anybody’s list, but he dealt with the difficulties of conceptualising the recklessness case but said since it was left – since it was articulated, it had to be put correctly.  But what your Honour is putting to me, if I kind of turned it around, that would mean that one would say recklessness should not have been left at all, because if it falls out with respect to the common law and it cannot apply to section 67, then you have taken it out of the case.

FRENCH CJ:   You say that 67(1)(h) provides no common law – that circumstance provides no common law pathway to negate consent?  It has to negate consent via the statute?

MR GAME:   That is right.  Although I freely accept that an abusive relationship could tell you in a particular instance that there was not free or voluntary consent.

FRENCH CJ:   Yes.

MR GAME:   So there is no doubt about that, which really just points out the fact that this legislation, as the Law Reform Commission pointed out many years ago, needs to be redrafted.

FRENCH CJ:   An abusive relationship might be contextual factor relevant to whether there was a free ‑ ‑ ‑

MR GAME:   Yes.  It is better to say the way the New South Wales legislation is that these things in free or voluntary consent these things may demonstrate absence of consent, so that you have got a non‑exhaustive list that tells you that they may be things that indicate that there was not true or voluntary, so that you actually then bring them in in a meaningful way into one idea.

FRENCH CJ:   And there recklessness can have its proper place.

MR GAME:   Yes, that is right.  Then recklessness just runs with respect to everything.  You do not bifurcate the thing.

BELL J:   But recklessness always is to be absence of consent and there might be thought to be some force to the idea that it is not necessary if recklessness is established to inquire into the process of reasoning.  It is a simpler inquiry.

MR GAME:   Quite, your Honour, but recklessness applies to circumstances and that is the crucial thing and we say the Court of Appeal overlooked that crucial thing in the passage that your Honour Justice Keane took me to earlier this morning at paragraph 107.  So the redirection is sought.  Now, can I say, opportunistically, that what appears at page 631 is very difficult to know what – if you sat and listened to that it would be very difficult to know what was being communicated to you.  First of all, the first paragraph 1 to 5 seems to be saying, if he should know, then he knows.  That is the end of it, and there do not even have to be any overt signs of absence of consent.  So that is a kind of a form of negligence.  Then, the next passage at lines 10 to 15 includes the words:

I’d say the next question’s recklessness and you might be satisfied the accused was reckless or you might be satisfied that the accused knew that the apparent consent which he perceived was a result –

and we say, that the “recklessness” and the “knew” both apply to the apparent consent in that sentence, so that that on our submission is a misdirection.  Then, the next passage is trying to get the point that counsel was putting but not correctly because it says:

But if the doctor said, first of all, overtly said to the patient I won’t treat you anymore unless you consent, that would be abuse of a position . . . but he would have to know it was an abuse of that position –

If you wanted to get that correct you would have to say you would have to know that the consent was only brought about by reason of the abuse of the position, not that he was abusing the position, so that is wrong.  Then, the closest that it gets to being correct is line 31:

only if the doctor was aware –

So we say that in the context that is one correct direction in with a bundle of incorrect directions.  Then one comes to ‑ ‑ ‑

BELL J:   To the extent that one is dealing with the possibility of an act of intercourse without consent by reason that it was engaged in because of the abuse of a position of authority or trust it would be necessary to identify the circumstances with some particularity, would it not?

MR GAME:   Yes, your Honour, very much so, yes.  Now, just briefly, I will just take your Honours through these - 639 to 640 we see, for example, 639 is about count 13, and then at the bottom of 639 is about 16 to 18 and his Honour has extended recklessness to apply to apparent consent in respect of counts 16 to 18.  That is at lines 5 to 12.  Then 645 his Honour says, at line 34:

Now, the addresses of counsel I don’t think I need to reiterate for you.  Ms Jones of course pointed out some matters of law that I think you’ll probably find I’ve virtually agreed with.

Then, just lastly, at 646, counts 13 and 14, recklessness in respect of acquiescence is said to be picked up.  So, yes, it is attenuated in a sense, but it was actually put in respect of all of those counts and we say one can see a way in which that occurred.  So that is really all I wanted to say about the summing‑up.  We have touched on what occurred in the Court of Appeal.  We say the point was adequately taken and the court was seized of the

actual question, although not with the – I think both parties accept – precision that the argument is now being put.

Now, the only other thing I needed to say is if your Honours do uphold the appeal in respect of 13, 14, 16 and 18 then one can simply quash the convictions and order a retrial.  If you only quash 13 and 14 and not 16 and 18 then one would have to remit the case to the Court of Appeal to deal with the sentences imposed on all of the counts because there needs to be fixed a new non‑parole period and you can do that by the combined operation of section 37 of the Judiciary Act and 37O(1) of the Supreme Court Act.  So those would be the orders that we seek.

FRENCH CJ:   Thank you, Mr Game.

MR GAME:   If the Court pleases.

FRENCH CJ:   Mr Dhanji.

MR DHANJI:   Your Honours, I trust, have the respondent’s outline.

FRENCH CJ:   Yes, thank you. 

MR DHANJI:   Thank you, your Honour.  Your Honours, there seems to be no issue that the common law understanding of consent applies with respect to these provisions as they applied at trial and, indeed, the ACT provisions as they are now and that means consent freely and voluntarily given.  With that starting point it becomes of course then necessary for the appellant to make the concession that many of the factors, if not, indeed, all and, indeed, we would say all, at least in some circumstances, will necessarily fall into a situation where there is in reality no consent.  Ultimately, that is what we say section 67(1) is about. 

There is no creation within this scheme of an offence of sexual intercourse with consent but in circumstances where one of these factors operates and then turning to section 67(3), the accused knows the particular factor.  The offence‑creating provisions remain as they stand, that is, there is an offence created by section 54(1), for example, of sexual intercourse without consent – the accused knowing or reckless – I am paraphrasing – as to consent. 

Now, the appellant in accepting the understanding of consent and accepting in that context that clearly an abusive relationship may well lead to a situation where there is in fact no consent leads us, in our submission, to needing really in the context of this case to actually start with something of the facts of this case and to actually understand the context of the relationship and the circumstances in which the events were alleged to have occurred and then to consider how it is that these provisions feed in to the particular factual scenario at play here.

Ultimately, in terms of how that feeds in – I will come to that in a moment – but we say that starting point there is no separate offence.  The result of that is that – and this is the question the Court of Appeal was asked and answered – the result of that is that recklessness is available in the ordinary way.  As I understand my friend’s argument this morning that is not now contested. 

The second aspect or the second thing that flows from that is that in a practical sense recklessness as to the section 67(3) factors will also establish, for all intents and purposes, recklessness as to lack of consent.  So whilst one is not going through section 67(3) which is ultimately, in our submission, a facilitation of proof type provision, one does end up – not through section 67(3) but through general application of principle – with the practical reality that recklessness as to those circumstances will suffice.

FRENCH CJ:   Did he accept that recklessness as to any or all of those circumstances will provide a common law pathway to recklessness as to consent?  I thought, for example, the violence circumstance in (a), that is an obvious answer if that is in the affirmative, but it does not follow that it applies to all of those circumstances, does it?  Nor did I think he conceded that.

MR DHANJI:   Well, it works, in our submission, this way and that is when one understands section 67(1) as providing that there is in fact no consent, one also looks at the provision and understands it in the sense of it not providing a “but for” test.  Now, if you had a “but for” test you would have problems with the rock star example that has come up and one would not sensibly say – and I am jumping ahead in terms of where I propose to go – but one would not sensibly say in the situation of the rock star and the 15 year old, the rock star having been told by the complainant that she is 16 and the rock star as a result goes ahead - this is an example that is taken from the ACT Law Reform Commission report - now, one might well say in that situation, well, the rock star would not have had intercourse but for the assurance that he was given, but that “but for” test does not in any sensible way say or inform one that the consent of the rock star was caused.  It gave him the go ahead.  He went ahead and would not have but for.  But the consent to the act of intercourse was still a meaningful, free and voluntary consent, albeit under a misconception.  I will come back to these issues shortly.

BELL J:   Is the point you are making that the factors in 67(1)(a) to (j) all are about negating consent in what I will describe as a real way so that one is not looking at a circumstance in which, say, there has been some abuse of a relationship of trust but that one cannot characterise as meaningfully destroying the consent of the complainant who has been the party under the authority of the other?

MR DHANJI:   Yes.

BELL J:   One really does to look at 67(1)(h) as dealing with the circumstance where the will is overborne, to use a common law concept, by reason of the relationship of power, and in that circumstance the recklessness of which you speak comes back to a notion of a state of mind that the accused intends to have intercourse with the complainant regardless of her consent.

MR DHANJI:   Yes.

BELL J:   The circumstances may be relevant to an assessment of whether the Crown has established that, but that is the state of mind.

MR DHANJI:   Yes, or proceeds to have intercourse considering the possibility that the complainant does not consent.  One is in that territory, going back to the idea of, well, has the accused contemplated the possibility of non‑consent, and one then looks at the nature of the consent and that is why I say, in a practical sense one comes back to circumstances where recklessness as to the section 67(3) factor will almost inevitably lead to a finding of the requisite state of mind.  But one is not ultimately determining that the accused was reckless as to the 67(3) factor.  The ultimate determination is was the accused reckless as to consent.  I am sorry, I am jumping around, but just ‑ ‑ ‑

CRENNAN J:   You mean realise possibility that there might be an absence of consent ‑ ‑ ‑

MR DHANJI:   That is right, your Honour.

CRENNAN J:   ‑ ‑ ‑ but went ahead regardless?

MR DHANJI:   That is right.  Part of the difficulty – and there has been an exchange already in terms of some of these provisions being otiose or declaratory or the like – whilst in some circumstances where one has provisions and one can see a structure in which everything has work to do, in this area dating back to the legislation that came after Morgan which itself was indicated to be declaratory, there has been legislative enactment after enactment which has been regarded as declaratory.  So, in terms of latching onto a tool of statutory construction that in most circumstances is extremely helpful, it is not so helpful in this instance.

The other thing that perhaps might be said about the motivation – and I do not know if this assists or not but I will offer it up – the motivation for a provision like section 67(3) can be seen in the context of direction and whilst what the appellant says is right, we are not talking about a defence of belief, we are talking about an element of the offence.

But as soon as one starts giving directions, one starts talking about the accused’s belief in consent, and when one starts talking about the accused’s belief in consent there is a danger of importing into that the accused’s belief in consent, that being the accused’s particular understanding of what consent means in the particular context.  Provisions like this in a sense move away from and make clear that we are talking consent in the gateway actus reus sense, but the motivation, as I say, albeit whatever one says about the motivation – that is a possible explanation is perhaps all I am putting as to what motivates provisions like that.

If I can come back and perhaps deal with the relationship or the facts in relation to the present matter and then say something as to where that leaves one with respect to the significance of these provisions.  Your Honours, I provided with the outline a table.  It is perhaps a liberty extending me to four pages but it is factual rather than submissions.  It sets out some detail which your Honours do not need for present purposes, but if your Honours look down the left‑hand column, it is counts 1 through to 19, and your Honours will see a grey line between the various breakups of the counts.  Put to one side count 19 – that was the photographs.

Each group of charges between the grey lines relate to a particular visit and then what one can do, in our submission, fairly readily with the benefit of, in a sense, hindsight and being able to analyse the evidence is going backwards you can see counts 16 and 18 are tied to a specific date.  There is never any issue or never any change in relation to that and that occurred 2000.  Counts 13 and 14 were also tied to a particular event.  They were tied to the obtaining of the complainant’s learners permit in 1998 and she knew it was the next January that she went to Canberra.

That is actually tied in in two ways because it was also described as the visit prior to the 2000 visit.  So you have, in a sense, set in stone 13 and 14 and 16 and 18.  Then the overarching context to all of this is that the complainant did give evidence of five visits.  She did give evidence that she went to Canberra each January.  Then, ultimately, after she had given her evidence, it became apparent that she could not have been at the particular flat until 1996.  But, when one puts those things together, it would appear that counts 5 to 12 were the year before the 1999 events.  The result of that was that she was 16 years of age and that, we say, explains the acquittal in relation to those counts.

Then one goes back the previous year and you have her at counts 2, 3 to 4.  They were able to be committed in 1997.  Count 1 which was withdrawn but, in fact, as it turns out it was certainly open that that occurred in 1996.  If one takes the guilty verdicts indicating, in a sense, a general acceptance of the complainant’s evidence but allowing for some unreliability as to dates, in our submission, there cannot be much doubt that this reconciliation of the verdicts followed.  Indeed, the Court of Appeal underwent a similar process with the same conclusion.

The reason for taking your Honours to that is set out in our outline on the first page.  It is ultimately that one has – and this is at paragraph 4 – we would say, sexual abuse of the complainant from the age of 14 with the appellant aged 42.  I will not dwell on the details.  Your Honours have the factual material in relation to the relationship between them, apart from just the age differential and, of course, the statements that were made in relation to the sister and, of course, the dependency in the sense that the complainant was dependent on the appellant with respect to the ongoing desire to visit her brother who was in the care facility in Canberra.

So, when one looks at the commencement of the sexual abuse, and then goes on to look at – and we say it is only counts 13 and 14 that are really an issue – the most favourable version of 13 and 14, raising the issue of possible consent.  Let me put it this way, the accused’s version, we say, was rejected in relation to each count.  The most favourable version in relation to count 13 came from the sister [JL].  Her evidence - your Honours do not need to turn it up – it is at appeal book 174, at line 9 – her evidence was preceded with whatever she wants me to do I do and whatever I want her to do she does.  Then there is a single word:

“Come” –

bringing her over.  Then –

“On your knees.  You know what to do”.

Now, when one looks at that in the context of the relationship, there is, we say, significant force in the observation of the Chief Justice at trial who said that on its facts this case is really more about the ordinary meaning of consent and we say plainly that is so.  So starting from that proposition, we say ‑ ‑ ‑

BELL J:   Can I just interrupt you for a moment?  It is accepted that, perhaps unattractive as it may be, that in the context of the history of this relationship, nonetheless, after DD attained the age of 16 years she and the appellant might have entered into a sexual relationship with which the criminal law has no concern.  So that it is necessary to define with some particularity the circumstances capable of demonstrating beyond reasonable doubt that the act of oral intercourse was engaged in by DD in circumstances in which her will was overborne having regard to the nature of the relationship. 

MR DHANJI:   Yes.

BELL J:   Now, in that context it would be necessary – it may not be right for you to say that the jury necessarily rejected the appellant’s evidence.  It might be in the way the matter was left that the jury considered even if DD had, as the appellant put it, been an enthusiastic participant, nonetheless, having regard to the nature of the relationship and his knowledge of the nature of the relationship, the offence was proven.

MR DHANJI:   Your Honour, that was never put by anybody at trial.

BELL J:   Perhaps not quite in those terms, Mr Dhanji, but what I am taking up with you is the need for some greater identification in the course of the directions of exactly how it is said the will was overborne.

MR DHANJI:   The directions, your Honour, we say were sufficient having regard to the evidence that the jury heard because in a sense to come back to the idea that nobody put that the accused could be convicted even if his version was accepted and it was, in a sense, we would say, the case proceeded on the assumption that if you believed the accused he should be acquitted.  So, in terms of – and perhaps let me say this, there was no request by defence counsel for that particular type of particularisation. 

We say that the reason for that is that one did end up with what might be called a traditional case with a factual version put forward by the prosecution, albeit that on count 13 there were two versions, and a factual version put forward by the accused and the absence of any request for directions with respect to that matter we say does reflect the understanding at trial that the jury would really take one case or the other and that the verdicts would follow.  So, whilst I accept what your Honour says may be a requirement in some cases it is not, we would submit, this case and that is why it unfolded as it did.

FRENCH CJ:   What is the pathway to conviction which is left open the direction at 631 in which the trial judge said to the jury:

you might be satisfied that the accused knew that the apparent consent which he perceived was a result of a breach of trust or a breach of his position of authority if there was one.

MR DHANJI:   At 631.

FRENCH CJ:   A passage we have already been taken to.

MR DHANJI:   I am sorry, I have just lost the line, I am sorry, your Honour.

FRENCH CJ:   Yes, all right, just a minute.

BELL J:   Do you have appeal book 631?

MR DHANJI:   I do.

FRENCH CJ:   Yes, it is about lines 10 to 15.

MR DHANJI:   Your Honours, let me go from perhaps the beginning of that page.  The appellant pointed out the expression at line 2:

it was mentioned to you that the accused should know that there was no consent.

Read in context that would be understood as the appellant should know in the sense of – for a finding of guilt, that is – should know, must prove – the Crown must prove.  Then we go on:

However, if the accused does not know or you’re not satisfied that he did not know . . . proceed on the basis that the accused did not know –

There should be a “no” between “was consent” and whether that is a typographical error or what was said is not clear, but the judge clearly says:

proceed on the basis that the accused did not know there was [no] consent because you’re not satisfied beyond reasonable doubt that he did know that there was no consent.  I’d say the next question’s recklessness and you might be satisfied the accused was reckless –

Now, that pathway there is – and if I can pause there, that is a reference to reckless as to consent and his Honour had previously explained the two forms of recklessness and then his Honour goes on with an alternative.  Now, that is -

or you might be satisfied that the accused know that the apparent consent –

Now, clearly enough, once his Honour has gone on to talk about “the accused knew” he is out of recklessness territory -

you might be satisfied that the accused knew that the apparent consent which he perceived was a result of a breach of trust or a breach of his position of authority if there was one.

Now, that is a direction that his Honour has given ostensibly in compliance with section 67(3).  Now, we would submit that ultimately that is generous because, going back to what I said at the outset, one does not end up needing to go through section 67(3) and we say that for I suppose a primary reason that one is talking about consent in section 67(1) so if anything these directions, in requiring knowledge of that particular matter in ostensible compliance with section 63, were unduly favourable.

BELL J:   But, Mr Dhanji, the facts here in respect of count 13 were the complainant’s account that she was resistant to the act and her sister’s account which did not support that aspect of it.  One would have thought a lively question was a consideration of the question of whether the apparent consent was the result of a breach of trust or breach of position of authority, going back to those directions.  Now, in those circumstances, I am somewhat at a loss at present to understand your submission that this was an unduly favourable direction.

MR DHANJI:   Because, your Honour, even if one went through JL’s evidence and - sorry if I am repeating what I have said, but going through JL’s evidence in the absence of any request for articulation as to exactly how that worked with respect to breach of trust in effect led to an acceptance that there was the Crown case - it was a choice, in a sense, between the Crown case and acceptance of the Crown case or the defence case. 

Perhaps I should go back a step and put our primary position in relation to the directions and that is that the directions did direct knowledge as to the breach of trust, that his Honour did not leave recklessness.  Can I say in that regard it is our submission that the Court of Appeal did not deal with this question and was not asked to deal with this question.  What is now framed as the narrow question, the question the Court of Appeal was asked to deal with was the broader question which appears not now to be pressed.  But in terms of the direction that is there given, even if I come back from the submission that it is generous, it certainly does no disservice, on any view, we say ‑ ‑ ‑

BELL J:   But does not it leave open that a breach of trust might well be understood as the circumstance that the appellant was the best friend of this young woman’s father.  One can imagine a number of aspects of the evidence that might lead a jury reasonably to consider that the appellant had breached – was in breach of trust in relation to DD, having regard to the background, but not touching on the question of whether that circumstance affected DD’s consent in the sense of overbearing her will.  Is that not the critical aspect?

MR DHANJI:   Well, except that, your Honour, it was never suggested that the breach of trust was as a consequence of the breach of one particular aspect of the relationship.  Insofar as there was this relationship, there was not much dispute as to the nature of the relationship.  In fact, it came from the accused’s record of interview, significantly.  So there was never any opportunity for anyone to just pick out, well, having intercourse with your best friend’s daughter is a breach of trust.  Picking up that circumstance and saying, well, that is the breach of trust that might have been relied upon, was just not something that was live.  What was spoken about in terms of the breach of trust was a breach of trust – indeed, it was not so much – whilst his Honour used the words “breach of trust”, previously it has been referred to in terms of abuse of the position.

But the position – and when one is talking about his position, it is all aspects, the fact that the girls were staying at his house, the relationship with the father.  But more particularly by the time one comes to consider counts 13 we would also say looking at the verdicts in relation to the earlier counts when she was a child under the age of 16, that feeds in as well to the position – or the notion of consent in that context.  So, whilst I appreciate that on its face there might be a concern because, going back to what your Honour put to me earlier, there was no pulling apart of what was relied upon, in a sense that was because there was not much dispute as to what the whole package was, subject only to the earlier sexual abuse.

But, having regard to the verdicts, one has got the whole package in terms of the relationship plus the earlier sexual abuse.  So, once one finds the earlier sexual abuse, even on [JL]’s version, it is in our sense not sensible to be speaking of free and voluntary agreement.  The other side of that issue is your Honour predicated the question to me in terms of, however unattractive it might be, there could be a genuine relationship.  That is true.

But even on the accused’s version it was not suggested that there was some happy relationship, sexual relationship that developed and resulted in intercourse.  On the accused’s version there was this special bond, he said, but then just this sudden unexpected act, count 13, performed in front of the sister before he comes to his senses because he thinks it is not right.  That is on the accused’s version.  So one is a long way, in our submission, from any sense of there being a genuine relationship, and there was no need to unbundle it because there really was not much issue as to exactly what the relationship was, subject only, as I say, to feeding in the earlier sexual intercourse.

I will not delve into detail in terms of why we say that it was that the Court of Appeal only dealt with the broader issue.  We certainly accept that that is the case.  Ultimately – and I have already addressed, I think, much of what is on page 2 of the outline and we do rely upon the common law understanding of free and voluntary agreement and we have referred to Clark.

The other aspect that has to be fed into this, is the point made in Olugboja as to the difficulty in terms of the dividing line to be drawn in relation to these issues.  I will not ask your Honours to turn it up but there is a passage, and it is repeated in the decision of the Queensland Court of Appeal in Sutton, highlighting that you end up with a line needing to be drawn and, ultimately, what becomes essentially a jury question.

What seems to be contended for here is that you would, if one is in any of the circumstances in section 67(1), this need for the jury to make this first determination – this line‑drawing as to whether it is free and voluntary – and then go on and make some further determination but the further determination in the context of those factors and then to undergo the second line‑drawing exercise as to whether the consent is caused by one of those factors.  That process or those steps we say is a single step because if it is caused by one of those factors, you are back to non‑consent.

The appellant relies on, firstly, this morning the provisions in section – the New South Wales provisions introduced in 1981 and also the decision in Bochkov.  If I can perhaps take your Honours to Bochkov?  In Bochkov it is put against us that there is a similar situation created and the approach taken was that which is contended for here.  The first thing is it was not argued in Bochkov so it is not something that was given real consideration, but something else perhaps needs to be said.  If I can take your Honours to paragraph 32 to the reasons of his Honour Justice Giles, with whom Justices Buddin and Harrison agreed, at 32 his Honour says:

That the complainant did not consent was in part an artificial construct, encompassing consent under a mistaken belief by virtue of “a deeming provision which extends what might be the limited denotation of the phrase ‘does not consent’ –

There is reference to Banditt.  Some care needs to be taken there.  In fact the quote from Banditt is actually with respect to section 61R(1), which is set out in Bochkov at 28, so in other words it is talking about - the quote in Banditt in the joint reasons is actually talking about what is a genuine extension‑type provision extending recklessness to knowledge, but having said that, their Honours then go on to say:

Proof that the appellant knew that the complainant did not consent then depended on the basis on which absence of consent was proved.

That is in relation to the situation in – referring to section 61R(2).  Now, in relation to that, again some care needs to be taken because the assumption seems to have been made that what is in section 61R(2)(a) reflects an extension, but again, we have this situation where, similar to what we say occurs with the legislation we are concerned with:

a person who consents to sexual intercourse with another person –

I will skip over the subparagraphs –

is to be taken not to consent –

That, we say, is not terribly different to our construction of section 67(1) and what we say leads to that conclusion is in fact at common law the mistaken belief as to identify was already a factor that was understood to result in not real consent, and that is in Papadimitropoulos.  So this is not legislation which is changing or, as was assumed in Bochkov, changing or extending consent because for a very long time mistaken identity had been ‑ ‑ ‑

BELL J:   When you say common law, I think it does go back to statute to a ‑ ‑ ‑

MR DHANJI:   Well, there is the English statute.

BELL J:   The English statute in about 1856, which is discussed in Papadimitropoulos, but that resolved what was a controversy concerning that very issue.  But your point is for a long time it was uncontroversial that mistake as to the identity of the person, as distinct from a misrepresentation inducing intercourse ‑ ‑ ‑

MR DHANJI:   Yes, but just reading the joint reasons in Papadimitropoulos at the bottom of page 260 it is not apparent – and I confess I have not chased this through – but it is not apparent that the passage:

The identity of the man and the character of the physical act that is done or proposed seem now clearly to be regarded as forming part of the nature and character of the act to which the woman’s consent is directed.

That statement would appear to be an acknowledgement that the identity issue comes not so much from statute but from an understanding of consent being consent with respect to the nature and character of the act, that is consent in the genuine sense.  So, whilst I appreciate that there was the English statute, I do not know that that matters much in terms of how things are to be understood when section 61R was enacted.  Your Honours, as my friend pointed out, the Tasmanian report, in fact, did list the various matters now reflected – I do not think it is an exact match but reflected in section 61(1) but in the context of using the word “consent” – I am sorry, this is at page 15 of the Tasmanian report at paragraph 40:

consent procured thereby should not be full and free.

So certainly the report on which the provisions are based dealt with the idea of full and free and that is reflected in the clause that is proposed under paragraph 40.  Those words do not appear in the provisions which were enacted as 92P but, in our submission, nothing really turns on that and, indeed, when one goes to the explanatory statement one sees in the explanatory statement the word “consent” being used sometimes with inverted commas around it and sometimes not and it seems to be, and I am mindful of what your Honour Justice Bell said about that statement not too long ago, but one does see in that the idea of consent being spoken of in two different ways. 

In a sense, when one goes through the various authorities that discuss the issue, ultimately there is a, we say, kind of difficulty in talking about negated consent in the sense that my friend would put it, the idea that there is actual real consent but negated because you are always going to have to deal with this issue of free and voluntary consent.  I am not being very clear but one ends up in, we would submit, impossible territory.

FRENCH CJ:   That would require the assumption that a consent caused by any one of the factors in 67(1)(h) cannot be free and voluntary apart from the operation of the statute itself.

MR DHANJI:   I am sorry, your Honour?

FRENCH CJ:   Does that involve the proposition that a consent caused by any of those factors in (a) to (j) cannot be a free and voluntary consent, apart from the operation of the statute?

MR DHANJI:   The statute in a sense is confirmatory of the idea and ‑ ‑ ‑

FRENCH CJ:   So the statue does not do anything new?

MR DHANJI:   It does not do anything new.  Well, I suppose it depends on how one looks at it.  If one is, I suppose, arguing Papadimitropoulos in the 1950s, one would say it is significantly new, but in terms of the understanding of consent, because ultimately we say, once one gets to the point with current understanding of consent in terms of free and voluntary and the potential impact of relationships on that – let me go back a step.  Perhaps I will not go so far as to say it is doing nothing new. 

FRENCH CJ:   That is where I thought you were leading us, with a previous reference to “free and voluntary consent”.

MR DHANJI:   Yes, but certainly – perhaps, let me put it this way.  It does not matter, I suppose, is the respondent’s position as to whether it is truly new or not.  But it is certainly the case that if the consent is caused by one of those matters, it is actually not consent at all.  That is how we would put it and, in a sense, it is sort of an unnecessary and artificial exercise to start analysing what would have been the situation if not for the provision.

BELL J:   But your construction is that 67(1) is a statutory statement in non‑exclusive or non‑exhaustive terms of the circumstances in which an act of intercourse will be done without consent.

MR DHANJI:   And we would seize upon that non‑exclusive aspect of the section because, of course, if it was to work in the way that the appellant says it would work, well, there is just simply no room for anything beyond the matters set out in those subparagraphs and so it simply could not work in that way. 

KEANE J:   So that we read in 67(1) the words “consent is negated” as being the equivalent in terms of meaning of “without the consent” in 54(1).

MR DHANJI:   That is right, your Honour.

KEANE J:   It is functionally the same.

MR DHANJI:   So other legislation might use terms such as vitiating or consent is vitiated or consent is negated.  They are in this context synonymous, we would say.  That is why we say, going back to perhaps where I started, that one does not end up with an offence created by section 54(1) that is an offence of sexual intercourse with consent, but with a certain circumstance one starts with that section and it provides the offence of sexual intercourse without consent.

FRENCH CJ:   But the case in which, absent this provision, a consent is brought about in the sense of causal connection by somebody abusing a position of authority, an affirmative answer to the question whether consent was brought about by someone abusing a position of authority does not of itself necessarily answer the question whether the consent was free and voluntary, or whether the will was overborne, to use the expression that Justice Bell put to you earlier.  There might be a further inquiry absent the assistance of this provision.

MR DHANJI:   I would accept that, and I might have got adventurous earlier.

BELL J:   So that what is required, given your primary position that section 54 is the statement of the offence, is proof that the act was without consent such that, if you are relying on 67(1)(h), it is necessary to establish that the will was overborne such that it can be said there was no consent as distinct from a circumstance in which, in the context of a history of an abusive relationship, an act of intercourse occurs, but in which the jury is not satisfied the complainant’s will was relevantly overborne.

MR DHANJI:   Yes.

BELL J:   That would need to be explained to the jury, would it not?

MR DHANJI:   Except that in a case such as this, this case proceeds on the basis that the nature of the relationship is such that one does not need to go into – in other words, to come back to your Honour the Chief Justice’s question, yes, it is true that in some cases there might be a further inquiry that needs to be made, but not in all cases.  In some cases, the nature of the relationship will be such that one will follow the other.

FRENCH CJ:   That is the case where you do not need to go to 67, because it is simply part of the application of 54.

MR DHANJI:   That is right, and in a sense that is where we started, which is the Chief Justice’s observation at trial, that this is not section 67 territory.  This was just not consent.  Insofar as one would say, as I say, that any need for further inquiry, that was not this case.  Your Honours, we ultimately say in terms of the ‑ ‑ ‑

KEANE J:   But the case was presented on the footing that the Crown relied on 67.

MR DHANJI:   That is so, but despite that having been done, his Honour in that observation is remarking “All right, you have referred to section 67” and what in fact flowed from that was that the appellant received the directions sought with respect to section 67(3).  That is the submission I was trying to make earlier in terms of why there was some generosity in the directions, because once it was properly understood, in our submission, as the Chief Justice at trial put it that it really was not necessary to go down that path; this was just not consent, then there would not have been the need for, even on the appellant’s construction, directions making knowledge a specific requirement as to the particular circumstance.  I am not sure if I have ‑ ‑ ‑

BELL J:   Mr Dhanji, where is that reference by the Chief Justice?

MR DHANJI:   I am sorry, your Honours, it is at appeal book 648.  It is at line 26:

‑ ‑ ‑ we’re talking here about – I don’t think we’re actually talking here about section 67 so much as the ordinary meaning of the term consent –

KEANE J:   Well, at this point the jury are absent.

MR DHANJI:   Yes, your Honour. 

KEANE J:   Where does he tell the jury?

MR DHANJI:   He does not, your Honour.  I did not mean to suggest that he told the jury that.  Your Honours, the directions we have dealt with in our written submissions – I will not trouble to go through them other than perhaps just to note that, in our submission, the directions were sufficiently clear.  The appellants picked up the directions at a somewhat later point.  I think my friend did go back to ‑ ‑ ‑

FRENCH CJ:   While we are dealing with the directions, a judge effectively aligned what he was saying with what the Crown had put in closing, I think, in relation to the law.  I am not saying he incorporated by reference but he got pretty close to that.

MR DHANJI:   He did not – I mean, I know my friends rely on his Honour’s statement that he has pretty much agreed with what has been said, but that also has to be looked at in the context of the doctor example that was given and perhaps I will ‑ ‑ ‑

FRENCH CJ:   Can I just finish the question?

MR DHANJI:   Yes.

FRENCH CJ:   Because I just want to take you to 585 and the statement by the Crown in closing at about line 5:

There is also recklessness.  That is sufficient, that the accused may have been reckless as to the cause of any apparent consent on the part of D, if he was reckless to the fact that that’s why she was consenting because of that position of authority.

MR DHANJI:   Yes.

FRENCH CJ:   Nobody corrected that, did they?

MR DHANJI:   No, your Honour.  Insofar, as ‑ ‑ ‑

KEANE J:   That is not advantageous to the accused.

MR DHANJI:   It is not advantageous to the accused but, we would submit, it is not disadvantageous in the sense that when one comes back and understands that in the context of this particular relationship in which counts 13 and 14 occurred, there was no need to go – one is talking about consent and so, that is what I was saying earlier, as a practical matter, recklessness as to that would lead to an inevitable conclusion as to recklessness as to lack of consent.

So, on the facts of this case, that, we say, did not matter.  Whilst it was not corrected, what ultimately was endorsed was the doctor example and that had a sort of dual force because not only did his Honour give it but it was plain that it had come directly from defence counsel’s address.  I know the appellant puts that there was a bundle of directions and some were more or less clear than others.  It really does conclude, we would submit, with the clearest statement of what the appellant now argues for at 631, line 27, that is ending with:

if and only if the doctor was aware that that was the reason for the apparent consent.

So really no matter what has gone on before, having been given the example by defence counsel and having had that very example repeated and that concluding in the form that was given, we submit leads to the conclusion that there was no room for misunderstanding of the directions, even on anyone’s view, as to the operation of the provisions.  Your Honours, if I can say something very briefly in relation to what follows with respect to counts 16 and 18, it is true that the prosecutor – and this is at 586 at about line 30, in dealing with – there is the commencement of counts 16 to 18 at about line 17, but at line 29:

The act of itself is defined as sexual intercourse.  The prosecution case is that there’s no consent and that that must have been clear to the accused.  And in considering any possible consent you can also take into account the nature of the relationship –

so accept that there is a statement in passing at least as to the relationship impacting.  Then the prosecutor goes on –

But it’s clear her evidence was that she didn’t consent.  She communicated this verbally and she was also trying to get away.

That aspect of the address was actually taken up by defence counsel for forensic advantage, and this is at 615, line 24 where defence counsel says:

Now, if it were so clear‑cut before the witness was called, why was it the Crown relied on this extended definition of consent?  Why would that be necessary?  It was clear‑cut –

So there was forensic use made ultimately.  We submit that the trial judge correctly directed the jury, and we would add without complaint, at appeal book 640, and this is at line 26 – or line 24:

the same issues arise as to whether there was consent or not to that and I don’t think there’s much alternative in respect to that.  It either happened or it didn’t.

We say that is an accurate, or correct, approach to the issues at trial.  The appellant refers in his reply to Stevens v The Queen and the judgment of Justice McHugh.  It is not on the lists, but if I can just say very briefly, his Honour’s reasons are very much predicated on that case being a circumstantial case and so what his Honour is talking about is a rejection of the accused’s version but then what can be drawn or what possible inferences were available to be drawn from the evidence that were left on this circumstantial case.

It is a very different factual scenario to that here where, with respect to the cases for counts 16 and 18, there really were simply just two diametrically opposed versions.  One was an account of sexual intercourse without consent and one was there was simply no intercourse and, insofar as the accused’s – sorry, the complainant’s account was, it was a single narrative that you could not split up into parts because if you had a doubt about one part of that narrative you would have to have a doubt about all of it.  So we say that counts 16 and 18 are not relevant, or the issues in this appeal are not relevant to counts 16 and 18.  Your Honours, those are the submissions for the respondent.

FRENCH CJ:   Thank you, Mr Dhanji.  Yes, Mr Game.

MR GAME:   Briefly, your Honours.  Neither as a matter of statutory construction nor in the context of this case was section 67 directed in terms of establishing that consent was not freely and voluntarily given.  Section 67 – one cannot read into section 67 the proposition that through section 67 one establishes consent was not freely and voluntarily given.  What one establishes through section 67 is a different thing, which is that consent was given because of one of those factors, and that is a different thing.

BELL J:   On one view, where consent is given because of one of those factors it is not consent and it is an act without consent within 54(1).

MR GAME:   But that is only a conclusion because you have been satisfied of the matters in section 67.

BELL J:   And the causal link?

MR GAME:   That is right and that is how it works.

FRENCH CJ:   By operation of the section.  But it may be that outside the framework of the provision (a) which was the example we discussed earlier, violence, consent induced by that would not be free and willing consent without any help from section 67.

MR GAME:   That is correct, but in terms of proof one has to apply oneself to the language of section ‑ ‑ ‑

FRENCH CJ:   You have to look at each different circumstance and, no doubt, the factual context.

MR GAME:   I made no concession that recklessness as to a section 67 factor would necessarily take you back to section 54.  In fact, I have strenuously argued to the contrary that it would not in the circumstances.

FRENCH CJ:   Let us take the violence case.  You may have recklessness as to where the violence has - or threat of violence has induced consent and you can get to - sorry, has induced intercourse without consent and you get to criminal liability under 54 through that mechanism without, again, the assistance of 67.

MR GAME:   Now, there is no point in saying that this case was not a section 67 case when the case from beginning, middle and end was left on the basis of section 67 from Crown case statement to closing address and summing‑up.  The idea that there was no alternative case, one can see that there is an alternative case from the very fact that the case is left in terms of this “but for” if there is apparent consent it is based on the relationship of authority, so that the very putting of that case and - sorry, the other thing is I maybe did not emphasise enough in‑chief that one has to also read the cross‑examination of the complainant to see that what was being put to her was indicators of consent, like you kissed him, for example, in respect of

count 16 and you told him that you loved him and so forth, things that would establish consent. 

BELL J:   What do you say to Mr Dhanji’s assertion that you have widened the grounds of complaint?

MR GAME:   From the Court of Appeal - what we say is that we have narrowed them, that the ‑ ‑ ‑

KEANE J:   You say you have refined them.

MR GAME:   We have refined them, yes.  We say that the ground put in the Court of Appeal encompassed the proposition that we are putting, so that is what we say to that.  Now, there was a passage just ‑ ‑ ‑

BELL J:   I am sorry, Mr Game ‑ ‑ ‑

MR GAME:   I thought I had got away with ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ it may be that I am not quite aware of – Mr Dhanji was taking a point and I do not believe it was the narrowing of the ground, perhaps I am just ‑ ‑ ‑

MR GAME:   But it is the narrowing of the ground because what is – but the narrowing of the ground is a precise fixing onto recklessness as to the section 67 factor.

BELL J:   Yes.

MR GAME:   That is the – but can I say ‑ ‑ ‑

BELL J:   I wonder would you just bear with me if I inquire - Mr Dhanji, is that the point you were making?

MR DHANJI:   Sorry, the point was that it was not a refining – there are two separate issues that appear to arise reflected in the notice of appeal.  One is, if you rely on section 67 do you have to prove a case based on knowledge, and that is recklessness falls out of section 54?  That was the argument that was, in our submission, put forward in the Court of Appeal and that is the argument that the Court of Appeal dealt with.

BELL J:   Your complaint is what I am just seeking to get.

MR DHANJI:   Our complaint?

KEANE J:   As to the shifting of ground.

BELL J:   As to the shifting of ground.

MR DHANJI:   Yes.  So, what is now being argued, it seems that there is a shift away from that argument to a distinct argument that runs along the lines of, no, you can leave recklessness in a general sense but insofar as the pathway to conviction is through section 67 it is limited to knowledge of the section 67 factors and that ‑ ‑ ‑

BELL J:   I am sorry, I had not appreciated it is to the refinement of the argument to present a narrower case in this Court than was argued in the Court of Appeal.

MR DHANJI:   No, a different case, your Honour, I am sorry.

BELL J:   A different case, all right.  All right, I am sorry.

MR GAME:   Sorry, bickering between me and Mr Dhanji is not an unsual thing, your Honour.

CRENNAN J:   As long as it is constructive, Mr Game.

MR GAME:   Now, could I just take your Honours to page 726 of the appeal book?  We say that 83(c) sufficiently encapsulates the argument and that is good enough.  Page 735, 104 to 107 is really rejecting the argument there but it is also rejecting the argument that we are putting.  One small thing, Mr Dhanji referred to 641 about counts 16 to 18 and I took your Honours to – I already did it.  At 640 his Honour is dealing with recklessness in 16 to 18, so yes, he did say it either happened or it did not, but he also left recklessness in respect of 16 to 18.  One other thing is that ‑ ‑ ‑

KEANE J:   It was necessary, to convict your client, to reject his evidence, but it would not necessarily be sufficient.

MR GAME:   Would not necessarily be sufficient, that is right.  It is not quite as black and white as Mr Dhanji put it in terms of count 13 because – and one hesitates to go into this sort of arguing for the existence of a relationship, but he said there was kissing and cuddling before and things developed in a particular way, and then there was count 13 and then there was nothing after that.  So it is not quite black and white.  If you couple that with the cross‑examination of the complainant seeking to elicit agreeing things, then it – and one can see how the alternative case emerges out of that context.

Now, I agreed with your Honour – this is not really reply – I agreed with your Honour Justice Bell about abusive authority equals overbearing.  There may be more to it than that in terms of the – “overbearing” is an apt description of it to a point, but there may be a situation where that is not a full description of what ‑ ‑ ‑

FRENCH CJ:   You are agreeing with Mr Dhanji’s concession?

MR GAME:   Yes.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Game.  The Court will reserve its decision.  The Court adjourns until 9.30 tomorrow morning in Sydney, and 9.30 tomorrow morning in Canberra.

AT 12.23 PM THE MATTER WAS ADJOURNED