Hemsley v The Queen

[1989] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl29 of 1988

B e t w e e n -

GREGORY MARK HEMSLEY

Applicant

and

THE QUEEN

Resporident

Application for special

leave to appeal

:M..L\SON CJ

BRENNAN J

Hemsley

DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 AUGUST 1989, AT 11.49 AM

Copyright in the High Court of Australia

C2Tl8/l/JH 1 8/8/89

MR M.L. SIDES, QC:  May it please the Court, I appear with

my learned friend, MR M.J. IERACE, for the

applicant. (instructed by W.J. Robinson, Director,

Legal Aid Commission of New South Wales)

MASON CJ:	Yes, Mr Sides.
MR R.O. BLANCH, QC:	May it please the Court, I appear with

my learned friend, MR P.G. BERMAN, for the Crown.

(instructed by S. O'Connor, Solicitor for Public

Prosecutions)

MASON CJ:	Yes, Mr Blanch.	Mr Sides?
MR SIDES:	Thank you, Your Honour.	Your Honours, I hand up

an outline of the applicant's submissions and behind

each is a further copy of our list of authorities.

MASON CJ:  Thank you. Why are you handing us up a list of

the authorities?

MR SIDES:  Well, Your Honour, I was not aware whether

Your Honours would each have a - it was only to

provide Your Honours each with a list of authorities.

MASON CJ:  Yes, your list has been previously handed in,

I suppose?

MR SIDES:	Yes, Your Honours, yes, it was only handed in by way of facsimile.
BRENNAN J:	Mr Sides, speaking for myself, I find difficulty

with the proposition which is advanced in your second

paragraph and the views which I hold with regard

to the matter were expressed fully in

HE KAW TEH V REG, which I see is not on your list

of authorities and I think I should mention that so

that you can take it into account, if you wish.

MASON CJ:	Yes~ Mr Sides.
MR SIDES:	Your Honours, this is an application for special

leave to appeal from the orders made on 29 September 1988

in the New South Wales Court of Criminal Appeal

dismissing the applicant's appeal against conviction

on one count of sexual intercourse without consent, that

count being laid under section 61D(l) of the New South

Wales. CRIMES ACT. The question of law raised in

this application, Your Honours, is as to the

meaning to be given to the word "reckless" in

61D(2) of the CRIMES ACT. Section 61D(l) makes it

an offence to have intercourse with a person without

that person's consent and knowing that the person is

not consenting. Subsection (2) is a deeming

provision which deems that a person:

C2Tl8/2/JH	2	8/8/89
Hemsley

who is reckless as to whether the other

person consents -

or not -

shall be deemed to know that the other

person does not consent.

So, the question that arises, Your Honours,

concerns the mental element required to be proved

by the Crown in relation to offences of sexual intercourse without consent under section 61D.

It is submitted, Your Honours, that this does raise

a question of general importance to the administration

of law in New South Wales. Your Honours, briefly the

facts were that the applicant was indicted in

23 February 1987 upon two counts laid under section 61D,

both arising on 23 September 1984 and both against

the same complainant, Letitia Anne Green, also

referred to as Donna Green.

It was the Crown case, Your Honours, that

Ms Green and others, including the applicant's

sister, Linda Hemsley - who, when she gave evidence

had married and became Linda Morgan - attended a

party for Linda Hemsley in anticipation of her

forthcoming marriage to a Mr llirgan on the evening of

23 September 1984 at premises in Railway Parade

in the township of Leeton _ in New South Wales.

On the same night, a buck's party was being held for

her fiance, Eric Morgan,elsewhere in the town. At

some stage it seems the men from the buck's party

arrived at the female's party in Railway Parade and

as a result of this the complainant decided to

seek out her male friend, one Kevin Vilder, to

secure his presence at the party.

(Continued on page 4)

C2Tl8/3/JH	3	8/8/89
Hemsley

MR SIDES (continuing):· For this purpose, she borrowed

a yellow Valiant vahicle belonging to Eric
and Linda and, in the course of searching

for Kevin Vilder, she went to the apolicant's

place, a J:arr:thouse sorrie little c:istance fron

the township of Leeton where there was a

par t y in pro gr e o s-·· as 1-J e 11 .

Upon her arrival there, the applicant

approached the '"'10tor uahicle and subsequently

forced his way into it and -

MASON CJ:	Mr Sides, we are familiar with the general history
of the facts so that I think you may proceed to
the submissions you wish to make.

MR SIDES: If Your Honours olease. Your Honours, the trial

judge, in his summing up, dealt with the mental

element that the Crown was required to prove at

page 91, and on the following page, Your Honours,

dealt with specifically the aspect raised in this
appeal, namely, the deeming provision under

subsection (2).

Your Honours will see at the passage beginning

at the top of the page:

Between those two situations, on the

one hand the knowledge that the girl does

not consent and on the other hand an honest

though mistaken belief that she does, there

lies a third possible situation, where the

man does not actually know either way but

is reckless as to whether the girl is

consenting or not: that is to say, his

state of mind is such that he realises the possibility that she is not consenting but

chooses to proceed to have intercourse

notwithstanding.

Now, Your Honours, there were two very short passages

to .a .similar effect by way of summary appearing

at page 98 of the transcript. Your Honours, it

is clear, therefore, that His Honour directed the

jury that the Crown onlv had to prove that the

accused saw or realized a possibility of non-consent

on the part of Mrs Green.

The court below, Your Honours, found that

there was no error in this direction.

Section 61D of the CRIMES ACT ~As part of a

legislative package dealing with sexual assaults

that were inserted into the New South Wales

CRIMES ACT by way of the CRIMES (SEXUAL ASSAULT)

C2Tl9/l/SH	4	8/8/89
Hemsley

AMENDMENT ACT of 1981. That Act, we would submit, inheralded an entirely new approach to the law involvin~ sexual assault offences in the State

of New South Wales. In the most clearest of terms,

it did away with the common law offence of rape

in section 63 which provides:

The common law offences of rape and attempted

rape are abolished.

Your Honours, the intention of the Parliament to

abolish the common law offence of rape, we would

submit, is also to be found in the scheme of

offences which was inserted in the CRIMES ACT at

the time that the offence or the crime of rape

was abolished. Your Honours would well know that

the offence of rape was carnal knowledge of a

woman who did not consent and with intent to do

so, without her consent. The offence of rape -

BRENNAN J:	What do you mean intent without her consent?
MR SIDES:	The intent to have intercourse with her, without her consent.
BRENNAN J:	You are going on the MORGAN basis?

MR SIDES: Well - no, Your Honours, no. That, in our -

BRENNAN J:  No, do not let me interrupt it, if you are

speaking solely of the statute. but if you are speaking of the common law as instructive of the

statute, it is perhaps necessary to understand

what you mean by saying "with intent to have

intercourse without her consent".

MR SIDES:	Yes, Your Honour. I mean that as it has been
indicated in Australia in DALY's case; ZORAD,
SPEROTTO and other cases. Perhaps it might be
appropriate, Your Honour, to take Your Honours
straight to SPEROTTO, (1970) 71 SR (NSW) 334 at
page 337.  (Continued on page 6)

C2T19/2/SH	5	8/8/89
Hemsley

MR SIDES (continuing):  At the bottom of that page, part

way through, numbered paragraph 2, the court said.

In order to convict the accused of the

crime of rape and,subject to what in hereafter

is said, to establish this intention on his

part the Crown must prove beyond a reasonable doubt

that when the accused had intercourse with

the woman either (i) he was aware that

she was not consented or (ii) he realized

that she might not be consenting and was

determined to have intercourse with her whether

she was consenting or not.

Your Honours, that decision, we would submit, follows

the law that was being applied in Victoria in DALY

and FLANNERY and has subsequently been followed

in New South Wales in the decision of ZORAD.

BRENNAN J:  What about McEWAN and WOZNIAK?

MR SIDES: That is a South Australian decision, Your Honour.

BRENNAN J:  WOZNIAK was. McEWAN, I think, was New South

Wales, was it not?

MR SIDES:  Yes, Your Honour, but so far as is relevant to

the test laid down there McEWAN has not been altered

by the decision in MORGAN. The decision in MORGAN

only affected the - I withdraw that, Your Honours.

BRENNAN J:  Was McEWAN consistent with SPEROTTO?

MR SIDES: It is inconsistent with SPEROTTO but what is said

in SPEROTTO in relation to the passage I have just
read out is not affected by the subsequent decision
in McEWAN ,in my respectful submission, and, indeed,

the court below so found because, Your Honour,

McEWAN said that that part of SPEROTTO which related

to a belief or an honest belief having to be reasonable

was not the law as a result of MORGAN's case but

said in SPEROTTO. It only went to the issue of	it did not otherwise not approve that which was	the reasonableness of a belief.
And perhaps it might be convenient also at this stage, Your Honours, to indicate that the DALY
test was specifically adopted in the House of Lords
by at least one of Their Lordships, Lord Cross
of Chelsea, at the bottom of page 203. He makes
reference to REG V DALY as being the case that
he finds of much assistance.

Your Honours, the group of offences that

replaced the common law of rape - and here I am

concentrating particularly on those contained in

C2T20/l/ND	6	8/8/89
Hemsley

section 61B to 61D of the CRIMES ACT - introduced
a much different emphasis. It would be our

submission to Your Honours that the emphasis in the common law offence of rape was upon the act

of penetration. The emphasis on categories 1 and

2, sexual assault, in section 61B and 61C of the

CRIMES ACT is upon the violence aspect and the

overcoming of the will or the lack of consent on

the part of the complainant.

61B provides that:

Any person who maliciously inflicts grievious

bodily harm upon another person with intent
to have sexual intercourse with the other

person shall be liable to penal servitude -

and section 61C provides that - so far as it is

relevant for my arguments:

Any person who -

(a) maliciously inflicts actual bodily harm

upon another person; or

(b) threatens to inflict actual bodily harm

upon another person by means of an offensive

weapon or instrument,

with intent to have sexual intercourse with

the other person shall be liable to penal

servitude for 12 years.

(Continued on page 8)

C2T20/2/ND	7	8/8/89
Hemsley

MR SIDES (continuing): What was being concentrated upon in those

legislative provisions, we would respectfully submit,

is the violence and the threats relating to the

overcoming of the will, or suborning the will of a

complainant. In the category 3 Sexual offence,

which is one with which this applicant was charged,

the emphasis is slightly different. It provides

that:

Any person who has sexual intercourse with

another person without the consent of the other person and who knows that the other

person does not consent to the sexual

intercourse shall be liable to penal
servitude.

Now, Your Honours, this offence is, of course,

the one that nearest equates to the common law offence
of rape because it involves the concept of

penetration. But, when one looks at the overall

scheme, it is our respectful submission, having looked

at section 61B and section 61C, that it is much different,

particularly when one looks to the type of penetration

that can be involved in the offence under section 61G.

Unlike the common law offence of rape which provided only for the carnal knowledge, sexual intercourse has

been given a much broader meaning here in section 61A

and it means :

Sexual connection occasioned by the penetration

of the vagina of any person or anus of any

person by -

(i) any part of the body of another person; or

(ii) an object manipulated by another person,

except where the penetration is carried out

for proper medical purposes;

(b) sexual connection occasioned by the

introduction of any part of the penis of a

person into the mouth of another person:

(c) cunnilingus; or -

and importantly,

(d) the continuation of sexual intercourse

as defined in -

the above three paragraphs.

We would submit to Your Honour, that in the light

of particularli section 61B·and C creating these new types of offences, the abolition of the offence

of the common law crime of rape and the emphasis

that is put in the new scheme of legislation upon the

threats and violence means that a crime created by

C2T21/l/DR	8	8/8/89
Hemsley

the statute in section 61D is a distinct, separate

and new offence, previously, we would submit, unknown

to the law. Now, Your Honours, some reforms could

have been achieved by adding on or taking away from

the common law of rape. The crime of rape could have

been left and a definition of "intercourse" similar

to section 61A could have been inserted. There

were, of course, other provisions that were inserted at

this time. Section 61A(4) did away with the concept of

there not being rape within wedlock.

Section 405B altered the law concerning directions

relating to complaint; section 405C altered the law

and practices concerning directions about corrobation

and section 409B severely limited cross-examination and evidence relating to a complainant's reputation. Now, it would be our submission to Your Honours that

all that is sought to be achieved could have, in

some way, been tacked on, or welded on, or moulded

in some way as a part of the law to alter the offence

of rape.

That, in our submission, is the effect of what

has happened in South Australia where the offence

of intercourse without consent is defined somewhat

similarly to the current provisions in New South

Wales but it is still referred to as a felony of

rape. More particularly, Your Honours, there is no

equivalent in South Australia to sections 61B and

61C. · It would be our respectful submissions to

Your Honour, and Your Honour Mr Justice Brennan, I

think, earlier mentioned the decision in WOZNIAK

which was, of course, a decision concerning an

offence at common law of rape before the commencement

of the South Australian amendments but, none the

less, made mention of amendments and the Chief Justice

there indicated, I think at page 74, that he saw
those amendments as merely declaratory of the

common law position in MORGAN.

(Continued on page 10)

C2T21/2/DR	9	8/8/89
Hemsley

MR SIDES (continuing):  But, Your Honours, we would submit

that in New South Wales when one looks at the
decisions here and how mental element was put to

the jury in rape, looking at ZORAD and SPEROTTO,

following the Victorian decisions of DALY and

FLANNERY, that the juries were directed without

any reference to the word "reckless" whatsoever;

they were directed in terms of 'knowledge or

awareness that she was not consenting" or "a

realization that she might not be consenting".

So, Your Honours, WOZNIAK and the decision that

preceded it about a year before BROWN in 1975,

appear to be the first Australian authorities where

there was any reference to, or actual use of the

word, "reckless" in Australia. Some of the judges,

of course, in MORGAN do use the word "reckless"

but it would be our submission particularly as

indicated in ZORAD which followed, of course, MORGAN,

the directions were continued to be given in the

terms without any reference to the word "recklessness"
at all and in the terms that had previously been

given in SPEROTTO and DALY and others.

So, Your Honours, it would be our submission

that the use of the word "reckless" in the New South Wales provisions has to be looked at in that context. In the context, firstl½ of it not having been used

in the courts here in reference to mental element and,

secondly, it has to be looked at in what was a scheme,

or a legislative scheme, to completely do away with

and abolish the crime of rape and create an entirely

new and separate offence.

Now, Your Honours, in that light we would

submit that the Parliament in using the word

"reckless" in section 61D(2) intended that it mean

the same that it meant in section 18. And, it would

be our submission to Your Honours, that - - -

BRENNAN J:  Why should that be so?

MR SIDES:  Well, Your Honours, firstly, there is the

principle that unless there is a clear indication

to the contrary, the same word is to be taken to be

used consistently throughout the one piece of

legislation.

BRENNAN J:  But, the subject-matter is radically different,

is it not?

MR SIDES:  The subject-matter in the sense of the offence is

radically different but the subject-matter that is

being spoken about is, in fact, the mental element

in relation to a criminal offence.

C2T22/l/JH	10	8/8/89
Hemsley

BRENNAN J:  It is the mental element, in one instance, with

respect to a future result in section 18. But,

in 61D, it is a mental element about the state of

existing affairs.

MR SIDES:	Yes.
BRENNAN J:	Now, there is a world of difference between

whether you know what the present situation is and

whether you know what will happen if you do

something. And here your proposition, as I

understand it, is that here is a situation where

a man proposes to have carnal connection with a

woman; the question is what his state of mind is

when, in fact, the woman is not consenting. You

say that is the same as the state of mind of a

person who is doing an act when the issue is

whether he knows that the act will kill.

MR SIDES:  It is not the same state of mind, Your Honour,

obviously, but it is talking about states of mind

in relation to criminal offences.

BRENNAN J:  But in relation to different kinds of elements

of criminal offences.

MR SIDES:  Yes, Your Honours, but we would submit there is

good reason for having a consistent approach in

relation to the mental element in relation to

various offences across the board, as it were, and
we would submit that that is something the

House of Lords gave significant weight to in the decision of SEYMOUR, no doubt because the

difficulties trial judges were having in England
with the varying approaches to the word "reckless"

as it appeared in different pieces of legislation.

And, that was the recormnendation of the Law

Cormnission Report on Mental Element in Crime was

that in relation to recklessness even though they

postulated a different degree of advertence

it should be the same across the board.

(Continued on page 12)

C2T22/2/JH	11	8/8/89
Hemsley

MR SIDES (continuing):  Now., Your Honours, ot some assistance

in this regard, I would submit, is this passage

appearing in the decision of

this Court in CRABBE, (1985) 156 CLR 464. I want to

take Your Honours to a paragraph on page 470,

about point 6:

It was submitted on behalf of the Crown that a distinction can be drawn between foresight

of the consequences of an act - i.e. what

harm it would do if persons were in a position

to be affected by it when it occurred - and a

foresight of circumstances - i.e. of that fact

that persons were in a position to be affected.

That, in my submission, is the distinction that

Your Honour Mr Justice Brennan is talking about, and

the Court went on to say:

There is no justification in logic or principle

for drawing a distinction of this kind.

Now, Your Honours - - -

BRENNAN J:  I do not think it is what I am talking about as what

I am talking about I have already said in the passage
I have already referred to. I will not delay you any

further, Mr Sides.

MR SIDES:	If Your Honours please. Your Honours, in relation
to the use of the term "reckless" in New South Wales
so far as murder is concerned, it would be our
submission that it was in use as a term of art in New South Wales and that in so being used, the
word "probable'' rather than "possible" was of significance and that, in our submission, appears
quite clearly from the decision of the New South Wales
Court of Criminal Appeal in REG V SOLOMON,
(1981) 1 NSWLR 320, where the trial judge had used
the word "probable" and the appeal dealt with whether the section was limited to reckless indifference to human life, or whether reckless indifference to
grievous bodily harm was sufficient. At the bottom of page 326 the Chief Justice
said:

When we say "Reckless indifference to human

life" it must be recklessness that involves

actual foresight of the probability of causing

death or grievous bodily ~arm and indifference

to whether that result flows or not.

And, over the page, just above the letter Cat page 327:

I have had the advantage of reading the reasons

prepared by Begg J, in which he draws attention

to the necessity in this State of confining the

foresight to probability of causing death.

C2T23/l/FK	12	8/8/89
Hemsley

Now, that decision has to be looked at, in our submission, in the light of those authorities that

were dealt with by this Court that preceded it in

relation to that issue that are dealt with fully by

the Court in REG V CRABBE on page 467 over to 468,
where the Court goes through the differing approaches
of the Judges in PEMBLE and LA FONTAINE, and comes

to the view that:

Clearly the balance of opinion on this

Court has been in favour of the view that

the mental state necessary to constitute

murder in a case of this kind is knowledge

by the accused that his acts will probably

cause death or grievous bodily harm.

And, in addition, they support -··Your Honours, they are

supported - made reference to rather - a number of

Victorian decisions.

(Continued on page 14)

C2T23/2/FK	13	8/8/89
Hemsley

MR SIDES (continuing):  Now, since then, of course,

Your Honour, that position has been reaffirmed

by the Federal Court in BROWN and by the

New South Wales Court of Criminal Appeal in

ANNAKIN and Your Honours this morning have

refused leave to appeal from that decision.

Now, Your Honours, we would submit, therefore,

it is clear and I have covered this before so I will

not do it again in great detail, that the word

"reckless" has the same meaning in both the

sections and I have already dealt with the
principle of interpretation when addressing

remarks to Your Honour Mr Justice Brennan a

little earlier and the cases referred to in
paragraph (b) of my written submissions and my
opening submissions, of course, related to
paragraph (a).

The court below sought to distinguish the

mental element involved in rape from the mental
element involved in sexual assault and, in effect,

to distinguish CRABBE upon the basis - this is at

page 150 of the application book - that cn.An,131:, was

talking about the concept of malice aforethought.

Now, Your Honours, it would be our respectful

submission that that concept is of no relevance to

the law of murder in New South Wales. In REG V MRAZ,

(1955) 93 CLR 493, at page 510, His Honour

Mr Justice Fullagar made reference to section 5 and said this:

Section 5 contains what purports to be a

definition of "malice", which it is desirable

to set out in full, because His Honour referred

to it in the material part of his charge to
the jury. The "definition" is as follows: -

"'Maliciously':  Every act done of malice,

whether against an individual or any

corporate body or number of individuals, or

done without malice but with indifferene to

human life or suffering, or with intent to

injure some person or persons, or corporate

body in property or otherwise, and in any such case without lawful cause or excuse,

or done recklessly or wantonly, shall be

taken to have been done maliciously, within

the meaning of this Act, and of every
indictment and charge where malice is by

law an ingredient in the crime".

His Honour goes on to say:

C2T24/l/SH	14	8/8/89
Hemsley

So far as it is material to the present

case, this appears to me to be a mere question-begging definition saying no more than that "every act done of

malice . . shall be taken to have been

done maliciously".

His Honour's comments were specifically adopted

by the Chief Justice in the decision of REG V RYAN,

at page 213.

So we would submit, Your Honour, there is no

basis for the distinction between - for that

reason, there·is no basis for the distinction that

the court below sought to draw.

McHUGH J:	How does the court arrive at that when section 5
itself specifically refers to "every act ,done-of malice" or "done without malice"? The second
limb of section 5 surely p,o~s  beyond a question
of malice. It inc~udes a statutory definition of malice.

MR SIDES: Yes, Your Honour. Section 5 is a statutory

definition of "maliciously" or "malice".

McHUGH J:  I do not see why it is a question-begging definition.

(Contined on page 16)

C2T24/2/SH	1 5	8/8/89
Hemsley

MR SIDES: Well, I think, Your Honour, he came to that

conclusion in relation to murder as a result of

section 18(2) which provides that:

No act or omission which was not malicious, or for which the accused

had lawful cause or excuse, shall be

within this section.

GAUDRON J:  Even if it were question begging that would

not mean that the requirements of section 18(2)(a)

were written out of the Act. It would simply mean
that you had to find a better more reliable definition,

would it not?

MR SIDES: Well, no, I think not, Your Honour, because as I

understand His Honour to say, that the elements of

the mental element set out in section 18 which is

intentional causing of either death or grievous

bodily harm or an act done with the reckless indifference
to human life is, in effect, what is covered in
section 5 and, in effect, the concept of malice aforethought
therefore has no place because, in fact, that which was
taken to be contained within that concept is contained

within section 18(1).

GAUDRON J: Yes, thank you.

McHUGH J: Except that in MRAZ Mr Justice Fullagar said,".<:o

far as is material to the present case this appears

to me to be a rrere question- begging definition".

MR SIDES:	Yes.
McHUGH J:	He was not dealing with the second limb of it,

the recklessness aspect of it.

MR SIDES:  No, Your Honours, indeed, he was not. He was dealing

with what we loosely call the felony murder aspect

of it as the Court was in RYAN's case.

The next matter that I raise in my written

outline is, in fact, the position that Your Honour

Mr Justice Brennan raised earlier and there is, I think, little that I can add except perhaps to take Your Honours

to the passage in SEYMOUR where reference is made to

the desirability of a uniform approach. It is

REG V SEYMOUR, (1983) 2 AC 493. I want to take

Your Honours to page 506C. Lord Roskill says:

"Reckless" should today be given

the same meaning in relation to all

offences which involve "recklessness"

as one of the elements unless Parliament

has otherwise ordained.

Your Honours, of course, he was dealing with a position

of greater difficulty in England where there are numerous

C2T25/l/PLC	16	8/8/89
Hemsley

separate statutes creating offences that make reference

to "reckless" but specifically, Your Honours, the

Court of Appeal in REG V PIGG, (1982) 1 WLR 762, at page 770,

T25 Lord Lane says between the letters D and E:

We do not think, however, even had we

wished to do so, that we are entitled to

distinguish either of these cases, or to

take the view that they are not binding

upon us, as we have been invited to do.

They are decisions on the meaning of the

word "reckless," albeit in different
Acts, and they are decisions from which we cannot depart in so far as they apply

to the present case.

Your Honours, the present case at hand was a case

arising under the English legislation of intercourse

without consent where the term "reckless" was used.

On the other hand, Your Honours, that Court, subsequently

in SATNAM, (1984) 78 Cr App R 149, did seek to draw

a distinction between cases of sexual assault and

cases involving malice upon the basis that one

involved the concept of foresight of consequences,

the other, a belief in the present state of facts

or circumstances.

DAWSON J:  Can I stop you there? There must be a difference

between the use of the word "recklessly" in

different situations. Maybe the difference is when

it is used in a composite phrase. For example,

reckless driving is different from driving with reckless indifference to human life, is it not?

MR SIDES:  Your Honour, interestingly, in England, they say

not.

DAWSON J: Well, that would mean that reckless driving is

set at a very high standard, would it not?

MR SIDES:  Yes. Well, the test they adopt in England is

an objective test.

DAWSON J: You can drive recklessly, can you not, without

being recklessly indifferent to human life? You can

drive recklessly in the sense that you may cause an

accident but ~ot indifferent to human life?

MR SIDES:  Yes, Your Honour. I would not suggest that we

should adopt that English approach where reckless

driving is equated to "reckless" in other areas of

the law.

DAWSON J: Well, you see, the phrase in section 18 is

"reckless indifference to human life" and section 61D,

"reckless as to whether the other person consents" and they

must be capable of having different meanings, must

they not? They are different concepts.

C2T26/l/PLC	17	8/8/89
Hemsley

MR SIDES:  Your Honours, that may merely mean that the

degree of advertence that might be contained within

the word "probability" might not necessarily be
higher in relation to a charge of murder because it
has to be not any old recklessness but, in fact,

recklessness that death will follow.

Now, Your Honours, it would be our submission

that those words taken in that context in the group

might mean that a higher test is required and the

jury might, in interpreting the direction that would

be given in accordance with the decision in CRABBE,

apply a higher level of advertence than they might

if they were told, in a sexual assault case, that

they had to be satisfied beyond a reasonable doubt

the accused realized it was probable the complainant

was not consenting. But in my respectful submission

to Your Honours, that does not mean that "recklessness"

does mean completely different things and completely

different concepts in the two sections.

DAWSON J: But "recklessness" and "reckless indifference" might

be two entirely different things. I mean, a person

who recklessly commits rape might be far from being

indifferent as to whether there is consent or not.

MR SIDES:  Yes, but he may also be indifferent. "Indifference"

certainly in the English authorities, particularly

MORGAN, was referred to: "reckless indifference as

to whether she consents or not" but it-involves the

concept of "indifference". Even in the directions

that were given in the terms of ZORAD and others

a realization that she might not be consenting

but a determination to go ahead notwithstanding

that realization.

(Continued on page 19)

C2T26/2/PLC	18	8/8/89
Hemsley

MR SIDES·(continuing):  So that is an indifference, in my

submission, to her stance on the question of

consent.

DAWSON. J: Yes, I see what you are saying. Perhaps the real

quest ion,· "The indifference to what?", is the

important thing that may make the distinction

between the use of the two phrases in differently

places.

MR SIDES:  Yes, Your Honour, precisely. Your Honours, those

are the submissions that I have to make to

Your Honours in relation to the ground relying

on special leave. The second and third grounds

would be grounds I would only go to if Your Honours

granted special leave. Do Your Honours wish me

to proceed to those matters at this point in time?

MASON CJ:  At this stage we will call on the respondent,

Mr Sides, on the first ground that you have taken and hear Mr Blanch on that before we come to any

conclusion as to whether or not we will need to

hear from you on grounds 2 and 3.

MR SIDES: If Your Honours please.

MASON CJ:  Yes, Mr Blanch.

MR BLANCH:  May it please the Court. I hand up a copy of

the Crown's outline.

MASON CJ:	Thank you.
MR BLANCH: May it please the Court.	In our submission the

cases referred to have clearly established the

test to be applied in the common law offence of

rape and in 1981 when the section was changed or

this section was introduced it is clear that the

legislature intended the words in exactly the same

way that they were well understood in New South

Wales at that time.

It is our brief submission to the Court that

in accordance with the principle - and I have quoted

the AMERICAN DAIRY QUEEN case in support of the

proposition - that the statute should be interpreted

in conformity with the common law, there being
no expressed intention to alter that.

My friend has raised the question of reckless indifference to human life. That question, of

course, depends to some extent on the way this

Court answers the matter that was heard this morning.

BRENNAN J: Mr Blanch, looking at your paragraph l(a) - I

do not wish to harp on the subject but how does

C2T2 7 /1 /ND	19	8/8/89
Hemsley

that fit in with the kind of situation of a

drunken pack rape which seems to have been, perhaps,

the situation here?	They were too drunk to have
any realization.	Not guilty?

MR BLANCH:  Not guilty if there was no realization at all

but the trial judge in this case - - -

BRENNAN J:  In other words, your view was the same as MORGAN.

It was not a question of an honest and reasonable mistake, it was just a question of whether they

really realized that there was a risk? They were

too drunk not to worry about it and it did not

matter. The risk was with the woman.

MR BLANCH:  Your Honour, the trial judge at page 94 put it

in this way:

It may also be in a particular case that

a man may be affected by alcohol to such an

extent that he is no longer capable of knowing

whether or not a woman was consenting to intercourse, or no longer capable of the

realisation that she might not be consenting.

And the question was left to the jury on that basis.

McHUGH J:  You do not embrace the suggestion in PIGG's case

that having regard to its history "reckless" was

meant to cover the case of the man who did not

apply his mind at all to what the woman was thinking?

MR BLANCH:  No, Your Honour.

(Continued on page 21)

C2T27/2/ND	20	8/8/89
Hemsley

McHUGH J:	That goes too far.
MR BLANCH:	Yes, and in our submission, if there be a

distinction and, of course, I was putting to the Court

this morning that recklessness in section 18 bears

a particular interpretation, the use of the word

"reckless indifference" in section 18

bears the interpretation, advertence to
possible consequences to a real possibility

find against that proposition would, of necessity, involve a finding that it was a term of art as

as opposed to a probability and was
the question that I sought to agitate this morning.

applied to murder and that the categories of murder specified in section 18 of the CRIMES ACT, together

with section 18(2) and section 5, malice, together

reproduce the common law as it has been explained by

this Court in CRABBE in respect of malice aforethought,

and murder and the Stephen definition of murder and

malice, and if that be the situation it is our

submission that that has no significance at all to the use of the similar expression in this section.

Those are our submissions.

McHUGH J:  Mr Blanch, the wide scope of section 61B and

other sections require a higher degree of persuasion

of recklessness. If somebody, for instance, put a

cigarette in your mouth prima facie they are likely

to be convicted of an offence under section 61B, are

they not? If somebody puts a cigarette in your mouth

knowing that you are not consenting, that is an

offence under section 61D, is it not?

MR BLANCH:  I think not, Your Honour. I think it has to be

part of the body and not something manipulated.

McHUGH J:  It can be an object, can it? I see, it has to be

the vagina.

MR BLANCH:  Yes. There has to be a sexual connection.

McHUGH J:	Yes.
MR BLANCH:	It did purport to extend the definition of sexual intercourse fairly broadly, Your Honour, but even so
there were some limitations.  Mr Justice Brennan earlier
referred to statements that he had made in HE KAW TEH
and I understand the statements there to be
statements to the effect that recklessness in intention required foresight of the probable
consequences but recklessness in general terms was
foresight of possible consequences.
BRENNAN J:	When it is a question of recklessness in relation

to a fact attending upon a physical act as an

element of the defence, one looks to the statute

C2T28/l/HS	21	8/8/89
Hemsley

to see the purpose which the statute has in mind
and in rape the question is, is the protection of
the woman who is not consenting satisfactory if

the criterion of the mental state is one of actual

knowledge by either a possibility or whatever

because it does not cope with the situation of the

drunk.

MR BLANCH:  So far as the policy aspect of the protection

of the victim in these circumstances, there is no

doubt, in our submission, that what was sought to

do was to protect women in circumstances where an

accused realized that she might not be consenting

and went ahead with the act in any event.

GAUDRON J:  Why not in circumstances where he did not apply

his mind to the question at all?

MR BLANCH:  Well, Your Honour, that certainly is a possible

interpretation of "recklessness" but it certainly

goes so far as applying the mind to the fact that

the victim might not be consenting which is as far as

needs to be gone for this purpose.

BRENNAN J:	For the purposes of the sunnning up in this case?
MR BLANCH:	Yes, Your Honour.

MASON' CJ:	Yes, thank you, Mr Blanch.	Mr Sides?
MR SIDES:	I have nothing in reply.

MASON CJ:  The Court will adjourn now and resume at 2.15 p.m.

AT 12.46 PM LUNCHEON ADJOURNMENT

C2T28/l/JH	22	8/8/89
Hemsley
UPON RESUMING AT 2.19 PM:

MASON CJ:	Mr Sides, we do not trouble you further on
this matter.

MR SIDES: If Your Honours please.

MASON CJ: Having considered the substantial ground which

was argued by Mr Sides in support of the application

sufficient doubt to justify the grant of special leave to appeal. Accordingly, the

for snecial leave to anneal, the Court has come to attended with

the c~nclusion that th~·decision of the Court of

application is refused.

MR SIDES:	May it please the Court.
MASON CJ:	The Court will now adjourn until 10.15 am

tomorrow.

AT 2.19 PM THE MATTER WAS ADJOURNED SINE DIE

C2T30/l/JM	23	8/8/89
Hemsley