HES v The State of Western Australia - [2022] WASCA 151

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HES -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 151
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   19 JULY 2022
DELIVERED          :   2 DECEMBER 2022
FILE NO/S:   CACR 55 of 2021
CACR 56 of 2021

BETWEEN: HES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number            :   XXX IND 19 OF 2020

Catchwords:

Criminal law - Sexual offences - Indecent assault and sexual penetration without consent - Where the appellant allegedly represented to be an Aboriginal elder and fraudulently represented that the charged sexual acts were for the purpose of traditional Aboriginal cultural practices - Where the prosecution alleged that consent was obtained by deceit or any fraudulent means constituted by a partly implicit representation - Whether the prosecution had to prove that the accused intended to make the representation - Whether the prosecution had to prove that the representation was false - Whether the prosecution had to prove that the accused intended, by making the representation, to induce the complainant to consent to the charged sexual act - Whether the trial judge's directions adequately conveyed to the jury what the prosecution had to prove to establish that the consent was obtained by deceit or any fraudulent means

Criminal law - Conduct of the prosecution - Whether a miscarriage of justice arose from prosecutor's cross-examination of the accused and submissions insinuating that aspects of the accused's evidence were a recent invention on the basis that it was inconsistent from what he had told his lawyers - Where inference was invited to be drawn from differences between accused's evidence and statements made by defence counsel in opening and questions asked, or not asked, by defence counsel of prosecution witnesses

Criminal law - Appeal - Evidence - Whether evidence of the contents of a note from the jury to the trial judge, which reveals the votes cast at an interim stage of the jury's deliberation, is inadmissible on appeal for the purpose of demonstrating a miscarriage of justice arising from communication between the trial judge and jury

Criminal law - Whether a miscarriage of justice arose from the trial judge's comments to the jury, at the time of giving a majority verdict direction, suggesting that any doubts which members of the jury had about the accused's guilt on some counts could be resolved by reference to propensity evidence

Legislation:

Criminal Code (WA), s 222, s 235(1), s 319(2)(a), s 323, s 325(1)
Juries Act 1957 (WA), s 56A, s 56B, s 56C, s 56D

Result:

Appeal against convictions allowed
Convictions set aside
Retrial ordered

Category: A

Representation:

Counsel:

Appellant	:	F P Merenda & E R Zillessen
Respondent	:	B M Murray & B B Sertorio

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Ashley v The Queen [2016] NTCCA 2; (2016) 307 FLR 168
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
BRK v The Queen [2001] WASCA 161
Browne v Dunn (1893) 6 R 67
Chong v The Queen [2020] WASCA 143
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Galipo v The State of Western Australia [2019] WASCA 188
Graham‑Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221
Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Jeffery v The State of Western Australia [2018] WASCA 219
Loveday v Ayre; Ex parte Ayre [1955] St R Qd 264
McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307
Michael v The State of Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348
NH v Director of Public Prosecutions (SA) [2016] HCA 33; (2016) 260 CLR 546
OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249
R v Baring [2005] SASC 262; (2005) 92 SASR 117
R v BAS [2005] QCA 97
R v Birks (1990) 19 NSWLR 677
R v Clarence (1888) 22 QBD 23
R v Cuerrier [1998] 2 SCR 371
R v Draper [2015] QCA 66
R v Hutchinson [2014] 1 SCR 346
R v I A Shaw [1996] 1 Qd R 641
R v Lyons (1987) 24 A Crim R 298
R v Mabior [2012] 2 SCR 584
R v MAP [2006] QCA 220
R v Mobilio [1991] 1 VR 339
R v Parsons [2001] 1 Qd R 655
R v Robinson [1977] Qd R 387
R v Tamawiwy (No 2) [2015] ACTSC 302
R v Veltheim [1987] CCA 135; CA 120 of 1987, 18 August 1987
Re Attorney‑General's Reference No 1 of 1977 [1979] WAR 45
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418
The State of Western Australia v Wood [2008] WASCA 81
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977

TABLE OF CONTENTS

BUSS P:8

The State's case at trial in relation to consent

The appellant's case at trial in relation to consent

The trial judge's directions in relation to consent obtained by 'deceit, or any fraudulent means' within the definition of 'consent' in s 319(2)(a) of the Code

The submissions of counsel for the appellant and counsel for the State in relation to consent obtained by 'deceit, or any fraudulent means' within the definition of 'consent' in s 319(2)(a) of the Code

The common law principles where consent to sexual activity is obtained by fraud or deception

Consent in relation to the offence of rape under s 325 of the Code as originally enacted

The Criminal Code: A General Review (1983)

Consent in relation to the offence of sexual penetration without consent enacted by the Acts Amendment (Sexual Assaults) Act 1985 (WA)

Consent in relation to the offence of sexual penetration without consent enacted by the Acts Amendment (Sexual Offences) Act 1992 (WA)

Re Attorney‑General's Reference No 1 of 1977

R v Veltheim

R v I A Shaw

BRK v The Queen

R v BAS

Michael v The State of Western Australia

R v Tamawiwy (No 2)

Higgins v The State of Western Australia

Decisions of the Supreme Court of Canada on Canadian legislation

The concept of a complainant's consent being obtained by 'deceit, or any fraudulent means' within the definition of 'consent' in s 319(2)(a) of the Code

The direction that the trial judge should have given in the present case in relation to a complainant's consent having been obtained by 'deceit, or any fraudulent means'

MAZZA JA:

MITCHELL JA:

Summary

State's case at trial

Offending against Complainant A: counts 1 ‑ 5

Count 1: indecent assault by rubbing semen on Complainant A's body

Count 2: sexual penetration of Complainant A's vagina with fingers

Count 3: sexual penetration of Complainant A's vagina with penis

Count 4: indecent assault by touching Complainant A's breast

Count 5: sexual penetration of Complainant A's vagina with hand

Offending against Complainant B: counts 6 - 8

Count 6: sexual penetration of Complainant B's vagina with penis

Count 7: sexual penetration of Complainant B's vagina with penis

Count 8: sexual penetration of Complainant B's vagina with penis

Offending against Complainant C: counts 9 - 10

Count 9: sexual penetration of Complainant C's vagina with a rock

Count 10: sexual penetration of Complainant C's vagina by engaging in cunnilingus

Offending against Complainant D: count 11

Count 11: sexual penetration of Complainant D's vagina with a rock

Offending against Complainant E: count 12

Count 12: sexual penetration of Complainant E's vagina with a rock

Offending against Complainant F: counts 13 - 14

Count 13: sexual penetration of Complainant F's vagina with a rock

Count 14: sexual penetration of Complainant F's vagina with a rock

State's case as to lack of consent

Development of the State's case as to consent in closing submissions

Defence case at trial

Ground 1: trial judge's direction as to consent obtained by deceit or any fraudulent means

Statutory provisions

Case left to the jury by the trial judge

Appellant's contentions on appeal

State's contentions on appeal

Disposition of ground 1

Whether the appellant must have intended to make the representations

Whether the representation must be false

Whether the appellant must have intended the representations to induce consent

The direction which should have been given

Grounds 2 - 4: cross‑examination of the appellant

Additional evidence in the appeal

Appellant's evidence-in-chief

Appellant's background

Complainant A

Complainant B

Complainant C

Complainant D

Complainant E

Complainant F

Alleged inconsistencies with defence counsel's opening address

Appellant's status as an elder

Sex with Complainant D in the shower

Matters not put to witnesses by defence counsel

Swimming at 'Nightwell' with Complainant A

Incidents with Complainant D in the shower

Visit to ochre pits to celebrate Complainant A's pregnancy

Meeting Complainant B and Complainant D

Alleged inconsistencies with matters put to witnesses by defence counsel

Whether the appellant told Complainant B he was a lore man

Whether Complainant C sought a sexual relationship with the appellant

Whether Complainant B asked the appellant to assist her with a stalker

Whether the appellant and Complainant B had sex in a van at Mount Trio

Location of the appellant's stone when water nurturing Complainant C

Water nurturing of Complainant E

Whether Complainant F told the appellant about her anxiety

Prosecutor's closing submissions

Trial judge's direction on failure to comply with rule in Browne v Dunn

General principles as to cross-examining accused on matters not put to prosecution witnesses

General principles as to cross-examining accused on inconsistencies with counsel's questions

Disposition of grounds 2 - 4

Ground 5: trial judge's comments to the jury

Application to adduce evidence of the jury note

Ground 5(a): comment in relation to the evidence of Mr Warburton

Ground 5(b): comment in response to jury note

General principles as to comments by a trial judge

Disposition of ground 5

The proviso

Appeal against sentence

Orders

CACR 55 of 2021: appeal against conviction

CACR 56 of 2021: appeal against sentence

BUSS P:

The appellant has appealed against conviction and sentence.
On 4 March 2021, the appellant was convicted after a trial before Stevenson DCJ and a jury of one count of indecent assault, contrary to s 323 of the Criminal Code (WA) (the Code), and 11 counts of sexual penetration without consent, contrary to s 325(1) of the Code. He was acquitted of two other counts.
The offending of which the appellant was convicted related to six complainants.
On 3 May 2021, the trial judge sentenced the appellant to a total effective sentence of 12 years' imprisonment. The sentence was backdated to 4 March 2021. A parole eligibility order was made.
Details of each count on the indictment, the jury's verdicts and the sentences imposed on the appellant are set out in Mitchell JA's reasons at [143] below.
The appellant relies upon five grounds of appeal in his conviction appeal.
The grounds are as follows:
(a)As to ground 1, the trial judge made a wrong decision on a question of law when directing the jury as to the element of consent.
(b)As to grounds 2, 3 and 4, a miscarriage of justice arose from unfairness to the appellant resulting from:
(i)the prosecutor's cross‑examination of the appellant, which suggested, by reference to matters raised or not raised by defence counsel in submissions and cross‑examination of the complainants, that aspects of the appellant's evidence were recent invention;
(ii)the prosecutor's submissions inviting the jury to reach that conclusion;
(iii)the trial judge's directions to the jury on this issue; and
(iv)defence counsel's failure to put matters raised by the appellant's instructions to the complainants and to adduce evidence from the appellant in re-examination rebutting the suggestion of recent invention.
(c)As to ground 5, the trial judge's comments to the jury occasioned a miscarriage of justice.
In my opinion, all of the grounds in the conviction appeal have been made out. The proviso cannot be applied. Leave to appeal should be granted on all of the grounds; the appeal should be allowed; the judgments of conviction should be set aside; and a new trial should be had on those counts of which the appellant was convicted.
It is unnecessary, in the circumstances, for this court to determine the sentence appeal.
I agree with the reasons of Mitchell JA in relation to the issues raised by grounds 2, 3, 4 and 5 of the conviction appeal.
Although I agree with Mitchell JA that ground 1 of the conviction appeal has been made out, I will state my own reasons for that conclusion.

The State's case at trial in relation to consent

The State's case at trial on each of counts 1 to 8 was that the complainant's consent to the charged act was not freely and voluntarily given because her consent was obtained by 'deceit or fraud'.
The prosecutor said in his opening address in relation to consent in the context of counts 1 to 8:
It was not a consent freely and voluntarily given but it was consent obtained fraudulently by the accused by giving these complainants the false impression that what he was doing was part of genuine Aboriginal cultural practice, tradition or custom. And that was fraudulent, the State says, because none of the touching or penetration was actually a part of genuine Aboriginal cultural tradition. Rather, it was done for his own sexual gratification. And by creating that impression what he was doing was a cultural practice, the accused obtained their consent to being touched or penetrated and he took away the free and voluntary nature of whatever consent they gave.
So members of the jury, so I'm clear, the State case is put simply, the accused expressly or impliedly represented to each complainant that the touching or penetration that he was doing, engaged in or about to engage in, formed part of a cultural practice. Any consent they gave was a result of that representation. That representation was false. He knew it was false at the time he made it because the touching and penetration was not genuine Aboriginal cultural practice. There was no cultural basis for it at all and, accordingly, the State's case is that the consent was obtained by deceit or fraud (ts 87).
The prosecutor also said in his closing address that the appellant had expressly or impliedly represented that the charged acts were part of a genuine traditional Aboriginal cultural practice. In particular:
(a)as to each of counts 1, 7 and 8, the relevant act would protect the complainant;
(b)in the case of each of counts 2 and 3, the relevant act would heal infertility;
(c)in the case of count 4, the relevant act would activate the production of breast milk;
(d)in the case of count 5, the relevant act would prepare the complainant's body for birth; and
(e)in the case of count 6, the relevant act was for the purpose of initiation.
The State alleged that, to the appellant's knowledge, each of the representations was false.
The State's case at trial on each of counts 9 to 14 was that the complainant's consent to the charged act was not freely and voluntarily given because she had no opportunity to consent, further or alternatively the complainant did not give her consent, before or during the commission of the offence.

The appellant's case at trial in relation to consent

The appellant's case at trial on each of counts 1 to 8 was that the appellant admitted having had a sexual relationship with each complainant, but asserted that the sexual activity which occurred was consensual.
Defence counsel said in his opening address that all sexual activity between the appellant and each of the complainants the subject of counts 1 to 8 occurred as part of a consensual sexual relationship. The sexual activity did not have anything to do with Aboriginal healing or culture. They were simply having sex (ts 98). Later in his opening address, defence counsel emphasised:
The defence is not that there was any question of some sort of cultural practice that would heal these women or assist these women in any way.
Sex was sex. They wanted it; he wanted it (ts 100).
Defence counsel said in his closing address that the appellant had accepted, in evidence, that there had been sexual activity between the appellant and the complainants the subject of counts 1 to 8 and that the appellant did not assert that the acts charged in counts 1 to 8 had occurred for healing or cultural purposes. The appellant was having sex with the complainants the subject of counts 1 to 8 for sexual reasons and the sex had nothing to do with culture (ts 987).
The appellant's case at trial on each of counts 9 to 14 was that the sexual activity alleged in those counts had not occurred.

The trial judge's directions in relation to consent obtained by 'deceit, or any fraudulent means' within the definition of 'consent' in s 319(2)(a) of the Code

The trial judge gave the jury a written aide in connection with the charged offences.
The jury aide contained the following directions in relation to consent in the context of counts 1 to 8:
As a matter of law consent is not freely and voluntarily given if it is obtained by deceit or any fraudulent means.
Counts 1 ‑ 8: the State's case is that the [relevant complainant] did not consent to the act because the [complainant] says but for the [appellant's] deceit and fraud that the act was part of traditional Aboriginal cultural practice and healing she would not have participated. The [appellant] denies he made the alleged representations and says counts 1, 3 & 6 were consensual sexual acts.
Factual issues as to consent for counts 1 ‑ 8: [Complainant A and Complainant B]
a)did the [appellant] expressly or impliedly represent to the [relevant complainant] that the act was part of traditional Aboriginal cultural practice for the purpose stated ('the representation')?;
b)did the [relevant complainant] honestly believe, at the time the representation was made, that it was a true statement? ([complainant's] subjective state of mind);
c)did the [relevant complainant] based on her belief in (b) only agree to the [appellant] doing the act because of the representation? (causation & [complainant's] subjective state of mind); and
d)did the [appellant] know, at the time he made the representation, that it was not true and not part of traditional Aboriginal cultural practice for the purpose stated? ([appellant's] subjective state of mind).
If you are satisfied [beyond reasonable doubt] that the answer is 'yes' to (a) ‑ (d) above, then your verdict is guilty.
If you are not satisfied [beyond reasonable doubt] that the answer is 'yes' to each of (a) ‑ (d) above, then your verdict is not guilty. (original emphasis)
During his summing up his Honour gave oral directions to the jury on the issue of consent that were consistent with the directions in the jury aide (ts 1032 ‑ 1034, 1036 ‑ 1041).

The submissions of counsel for the appellant and counsel for the State in relation to consent obtained by 'deceit, or any fraudulent means' within the definition of 'consent' in s 319(2)(a) of the Code are summarised in the reasons of Mitchell JA. It is unnecessary to repeat his Honour's summary.

The common law principles where consent to sexual activity is obtained by fraud or deception

At common law, consent to sexual activity is not necessarily vitiated because one party is induced to consent as a result of fraud or deception by the other party.

At common law, fraud or deception as to the nature of the sexual act or as to the identity of the person performing the sexual act are capable of vitiating consent to the sexual act. See R v Clarence.[1]
[1] R v Clarence (1888) 22 QBD 23, 44 (Stephen J).
In Papadimitropoulos v The Queen,[2] the High Court reviewed comprehensively the law on the question of fraud vitiating a woman's consent to a sexual act. The facts of the case were these. The appellant and the complainant had agreed to marry. The appellant, who was of Greek descent, spoke English. The complainant, who was also of Greek descent, did not speak English. One morning the appellant asked the complainant to attend a registry office and get married. The appellant and the complainant, accompanied by some relatives none of whom spoke English, went to the registry office. There the appellant and the complainant signed a card and a form which had been filled in by a registry officer on information supplied by the appellant in English. The documents related to a proposed marriage ceremony. No marriage ceremony took place. Nevertheless, the appellant, speaking in Greek, told the complainant that the proceeding at the registry office was a marriage ceremony and that they had been married. The complainant, who was unwilling to have sexual intercourse before marriage, then had intercourse with the appellant. The appellant was charged with and convicted after trial of having had carnal knowledge of the complainant without her consent.
[2] Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249.
The High Court set aside the conviction on the basis that the complainant had in fact consented to having sexual intercourse with the appellant. The appellant's deceit or fraudulent misrepresentation did not relate to the essential nature of the act of intercourse or to his identity. Consequently, the appellant's deceit or fraudulent misrepresentation did not vitiate the complainant's consent.
Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ held that '[t]he 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' (260). Their Honours concluded (261):
To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.

Consent in relation to the offence of rape under s 325 of the Code as originally enacted

Section 325 of the Code, as originally enacted, created the offence of rape. The provision read:
Any person who has carnal knowledge of a woman or girl, not his wife, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape.
Section 325, as originally enacted, was amended by s 2 of the Criminal Code Amendment Act (No 3) 1976 (WA), but the amendment is not material for the purposes of this appeal.
Section 325, as originally enacted, referred, relevantly, to consent being obtained 'by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband' and, in that respect, reflected substantially the common law.

The Criminal Code: A General Review (1983)

In 1983 Mr M J Murray delivered to the Attorney General a report entitled 'The Criminal Code: A General Review' (the Murray Report) which Mr Murray had prepared following a general review of the Code.
In his report Mr Murray referred to s 325 of the Code and made, relevantly, a recommendation in relation to the meaning of the term 'consent' as follows (220 ‑ 221):
There should be a general definition in the Criminal Code of the meaning of the term 'consent' where that is used and there should not merely be specific reference to some of the more common problem areas only in relation to the offence of rape, as is now the situation.
In that regard there are deficiencies in the provision as it defines consent. It is illogical it seems to me to say that a consent is obtained at all where acquiescence is gained by threats or fear or intimidation, or any of the others matters mentioned in the section. Those occurrences are events which logically mean that an acquiescence, which is not true consent, has been obtained. The definition of consent should emphasise that what the law is interested in is a free and voluntary consent given without any form of pressure.
Also, for example, the definition makes it clear that the only types of fraud recognised as vitiating consent are those involving the identity of a person as the husband of a married woman or as to the nature of the act of intercourse itself. There are other types of fraud which should, but have been held not to, vitiate consent so as to constitute the offence of rape and I refer in this regard for example, to the High Court decision of Papadimitropoulos (1957) 98 CLR 249, 261 where the fraud concerned was as to the legality of the act because there were fraudulent representations as to the nature of a ceremony which had been performed which was in fact a bogus wedding ceremony. That clearly affected the question of consent to intercourse because the woman concerned clearly consented on the basis that she was married to the accused when in fact that was not so.
I have therefore devised a definition to be inserted in the general definition section, Section 1(1) and that is the plan which was followed in the Tasmanian Criminal Code. The definition is meant to clearly emphasise the need for a free and voluntary consent and to cover some of the difficulties which have arisen previously.
The definition of 'consent' drafted by Mr Murray read (528):
'consent' means a consent freely and voluntarily given and, without otherwise affecting or limiting the meaning of the word, a consent is not freely and voluntarily given if it is obtained by force, threats or intimidation, or by any deception or fraudulent means.

Consent in relation to the offence of sexual penetration without consent enacted by the Acts Amendment (Sexual Assaults) Act 1985 (WA)

Section 10 of the Acts Amendment (Sexual Assaults) Act 1985 (WA) repealed, amongst other provisions, s 325 of the Code. The Act introduced a new ch XXXIA of the Code, headed 'Sexual Assaults', which created new sexual assault offences, including a new s 324D. The new s 324D provided, relevantly, that any person 'who sexually penetrates another person without the consent of that person is guilty of a crime'.
The Acts Amendment (Sexual Assaults) Act defined the expression 'to sexually penetrate' for the purposes of the Code, and also defined in a new s 324G(1) the term 'consent', for the purposes of the new ch XXXIA.
The definition of 'consent' in the new s 324G(1) read:
For the purposes of this Chapter, 'consent' means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.
The terms 'deception' and 'fraudulent means' within s 324G(1) were not defined.
The explanatory memorandum relating to the Bill which upon enactment became the Acts Amendment (Sexual Assaults) Act said in relation to the definition of 'consent' in the proposed s 324G(1):
Proposed Section 324G: Provides a definition of 'consent' for the purpose of this chapter of the Code alone.
The object is to remove some present restrictions of a technical nature in the concept of consent as they are presently contained within the definition of the present rape offence in section 325 of the Code.
The purpose is to provide a definition which will emphasise that the only consent of any interest to the court will be consent freely and voluntarily given, and not obtained in any way by any force or threat or intimidation or any deception or fraudulent means.
It is also expressly stated that a failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.

Consent in relation to the offence of sexual penetration without consent enacted by the Acts Amendment (Sexual Offences) Act 1992 (WA)

Section 6(4) of the Acts Amendment (Sexual Offences) Act 1992 (WA) repealed ch XXXIA of the Code. The Act introduced a new ch XXXI of the Code, headed 'Sexual Offences', which created new sexual offences, including a new s 325. The new s 325 provided, relevantly, that a person 'who sexually penetrates another person without the consent of that person is guilty of a crime'.
The Acts Amendment (Sexual Offences) Act defined the expression 'to sexually penetrate' for the purposes of the new ch XXXI, and also defined in a new s 319(2)(a) the term 'consent' for the purposes of the new ch XXXI.
The definition of 'consent' in the new s 319(2)(a) read:
'consent' means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.
The definition of consent in s 319(2)(a) has not been amended. Section 325 has been renumbered s 325(1), but otherwise the provision has not been amended.

Re Attorney‑General's Reference No 1 of 1977

In Re Attorney‑General's Reference No 1 of 1977,[3] the Court of Criminal Appeal considered a reference made upon the request of the Attorney General of two questions of law which arose at a criminal trial. One of the questions was, in essence, whether an accused can properly be convicted of the crime of rape as defined in s 325 (as then enacted) of the Code, notwithstanding that the accused in fact believed that the woman consented, if the belief was not based on reasonable grounds.
[3] Re Attorney‑General's Reference No 1 of 1977 [1979] WAR 45.
Burt CJ (Jones & Smith JJ agreeing) observed that s 325 had 'nothing to say about intention and nothing to say about belief' (51). His Honour added that whether, upon the proof of the elements of the offence set out in s 325, the accused is criminally responsible depends 'not upon anything to be found by way of implication within [s 325] but upon the application to him of one or other of the sections appearing in Ch V of the Code and more particularly for present purposes upon the application to him of s 24' (51). His Honour said that the accused's mistaken belief that the woman was consenting must be both honest and reasonable to be within s 24.

R v Veltheim

In R v Veltheim,[4] the appellant was convicted after trial of a series of charges of unlawful and indecent assault. The appellant was a chiropractor. The complainants were young women who were his patients. The offences involved alleged acts by the appellant in purported treatment of the complainants. The Crown case was that on each relevant occasion each complainant consented to the procedure carried out by the appellant. However, the Crown alleged in relation to each charge that the assault was unlawful because the appellant obtained the complainant's consent by fraud.
[4] R v Veltheim [1987] CCA 135; CA 120 of 1987, 18 August 1987.
In the Court of Criminal Appeal of Queensland, Kneipp J (Demack & Carter JJ agreeing) explained what the Crown had to prove beyond reasonable doubt in relation to the appellant having obtained the complainants' consent by fraud (2 ‑ 3):
What the Crown had to prove beyond reasonable doubt in relation to each charge was the making of the relevant representation; that the representation was false; that the appellant knew that it was false; that the representation was made by the appellant with the intention that it should be acted on by the representee, that is that the representee would be induced by the representation to give a consent which would not otherwise have been given; and that the representee was in fact thus induced to give the consent.
There are some matters which must be borne in mind in relation to proof of these matters. The relevant representation must be capable of formulation with reasonable precision and of course it must be satisfactorily proved. An inquiry into states of mind is involved, whether the representation is made by words or, as it may be made, by conduct. The representation, whether by words or conduct, must be made deliberately with the relevant intent and with knowledge of its falsity. The representee must recognise the representation as a representation and be induced by it to give the relevant consent.
The Court of Criminal Appeal allowed the appellant's appeal and set aside his convictions on the ground that the only inducement which could reasonably be inferred from the evidence was 'quite different from' the representation which the Crown alleged had been made by the appellant (8).

R v I A Shaw

In R v I A Shaw,[5] the appellant was convicted after trial of a number of offences including three counts of rape against the complainant. At the trial the appellant, who gave evidence, admitted the relevant acts of sexual intercourse but asserted they were consensual. The complainant said in her evidence that she had not consented to any of the acts of sexual intercourse. The complainant also gave evidence to the effect that when the relevant acts of sexual intercourse occurred she was being menaced by the appellant with a knife. By s 347 of the Criminal Code (Qld), rape was defined to mean, relevantly, carnal knowledge of a female 'without her consent or with her consent if it is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm'. The Court of Criminal Appeal of Queensland dismissed the appellant's appeal against conviction.
[5] R v I A Shaw [1996] 1 Qd R 641.
Davies and McPherson JJA held that it was unnecessary, in the circumstances, for the trial judge to direct the jury about the conceptual differences, if any, between the complainant not consenting to sexual intercourse, on the one hand, and the complainant consenting to sexual intercourse only because of the effect of threats or intimidation used by the appellant, or the fear of bodily harm which she had at the time, on the other.
Fitzgerald P said that the jury's acceptance of the complainant's evidence, as plainly occurred, would have made it futile, and probably confusing, to direct the jury about whether the complainant's consent may have been 'obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm' within s 347.

BRK v The Queen

In BRK v The Queen,[6] the appellants were convicted after trial of a number of offences including offences against s 326(1) of the Code, which provides that a person 'who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime'. One of the grounds of appeal required the Court of Criminal Appeal to consider whether and, if so, in what respect the offence against s 326(1) involves a mental element.
[6] BRK v The Queen [2001] WASCA 161.
Murray J (with whom Parker J agreed) noted that neither s 326 nor ch V contains 'any provision which would make it an element of the [offence of sexual penetration without consent in circumstances of aggravation] that not only should the offender intentionally, wilfully or deliberately penetrate … the complainant, but that he should do so … knowing that she was not consenting thereto' [23]. His Honour observed that 'the relevant Code equivalent to the common law doctrine of mens rea is to be found in the provisions of s 23' [23]. Murray J held that an accused's 'consciousness or state of mind in relation to … the absence of the complainant's consent [is] to be tested against the application to the case of s 24 of the Code with the effect that the accused's criminal responsibility is to be co‑extensive with what would have been the position had the real state of things been as he honestly and reasonably but mistakenly believed them to be' [24].
Owen J said that s 325 (as originally enacted) 'had nothing to say about intention and nothing to say about belief' [93]. His Honour was of the view that the crime of sexual penetration without consent in circumstances of aggravation under s 326 'is not a crime for which the Crown must establish that the perpetrator had a specific intent' [95]. Owen J elaborated that the text of s 326 was 'clear' and the text 'does not admit of a conclusion that it is a crime that involves a specific mental ingredient' [96]. His Honour added, however, that the concept of a mental ingredient was not 'totally irrelevant' in relation to sexual offences of the kind embodied in s 326, and explained [98] ‑ [99]:
It may arise, for example, under s 4 and s 24 of the Criminal Code. Upon the application of s 24, the intention or state of mind of the accused becomes relevant. Similarly, an act of attempted sexual penetration without consent would involve an evaluation of the intention of the accused. The element of intention is only relevant to the offence of sexual penetration without consent when it is an attempt as defined in s 4 or when the defence of mistake of fact is raised, as defined in s 24.
In relation to s 24 the Crown must negate beyond reasonable doubt the honest and reasonable belief of the accused as to the state of things. In the context of the offence of sexual penetration without consent the relevant state of things is the consent of the complainant. The critical question is whether the accused honestly and reasonably, although mistakenly, believed the complainant was consenting.

R v BAS

In R v BAS,[7] the appellant was convicted of a number of offences including three counts of rape contrary to s 349 of the Criminal Code (Qld). The Crown alleged, relevantly, that the complainants' consent was obtained by fraud. The Crown case was that the appellant had dishonestly represented that his conduct was for the purpose of 'alternative therapy', when his purpose was in fact prurient. In general, the appellant admitted the relevant conduct. The defence case was that the purpose of the acts in question was therapeutic; that was the nature of the relevant acts; and if it was not their nature then the appellant at least believed that the relevant acts were therapeutic. Consequently, so the defence argued, there was no fraud. The Court of Appeal of Queensland dismissed the appellant's appeal against conviction.
[7] R v BAS [2005] QCA 97.
Section 349 provides, relevantly, that a person rapes another person if the person penetrates the vulva, vagina or anus of the other person without the other person's consent. Section 348(1) provides, relevantly, that 'consent' means consent freely and voluntarily given. Section 348(2) provides that, without limiting s 348(1), a person's consent to an act is not freely and voluntarily given 'if it is obtained … by false and fraudulent representations about the nature or purpose of the act'.
The appellant's purpose was a fact in issue at the trial. The Crown carried the burden of proving beyond reasonable doubt that the appellant's purpose in relation to each charge was not therapeutic. Once the jury rejected the appellant's evidence as to his purpose, there was, in the circumstances of the case, no middle ground. A finding beyond reasonable doubt that the appellant's purpose was in fact prurient was inevitable.

Counsel for the appellant relied upon the passage from the judgment of the Court of Criminal Appeal in Veltheim which I have set out at [48] above.
Counsel for the Crown responded that, to the extent that the decision in Veltheim might insist on a 'dissection' of the evidence, the principles involved had been modified by the later decision of the Court of Appeal in I A Shaw. Alternatively, counsel for the Crown submitted that Veltheim was wrongly decided. Fryberg J (Davies JA agreeing) rejected both submissions by counsel for the Crown [86].
Fryberg J said at [86] in relation to Veltheim:
As I read the judgment in Veltheim the court was not purporting to set out a principle of universal application in cases where consent is alleged to have been obtained by fraud. It is unlikely that the court would have taken such a step without any reference to authority. That is particularly true when the step in question might involve the importation into the criminal law of concepts originally developed by the common law for the quite different purposes of the tort of deceit. In my judgment the Court of Criminal Appeal was simply stating what the Crown had to prove in the circumstances of that case. It is true that there was nothing particularly remarkable about the case; what the court said would be applicable in most cases where consent is alleged to have been obtained by fraud. It applies in the present case. It is unnecessary to speculate about circumstances to which the passage might not apply.
Fryberg J then said at [86] in relation to I AShaw:
I A Shaw was concerned with a different point: whether it was necessary for a jury to be directed to decide first whether the complainant consented and then if she did, whether her consent was obtained by a vitiating factor. The factors involved in that case were threats and intimidation, and the evidence on that aspect was substantially the same as the evidence on the question of consent or no consent. In those circumstances, there was 'no occasion for the judge to burden the jury with philosophical discussions of the conceptual differences, if any, between not consenting to sexual intercourse, and consenting to it only because of the effect of threats or intimidation …'. (footnote omitted)
Fryberg J was of the opinion that whether consent was obtained 'by' a fraudulent representation about the nature or purpose of the act, within s 348(2), involved an inquiry into whether there was evidence of 'a causal link between the representation and the obtaining' [98]. His Honour said that it was inappropriate, in the circumstances of the case, to embark upon an examination of the concept of causation in the context of s 348. Nevertheless, his Honour made these remarks [98]:
I must however disclose the basis upon which I approach the present case. First, the law does not require the representation to be the sole cause of the obtaining of consent; it is sufficient if it plays a substantial (i.e. more than trivial) part in that process. Second, (without determining whether the reasoning in March v E & M H Stramare Pty Ltd ((1991) 171 CLR 506) can be applied in the present context) the concept of causation in this context is one of practical or commonsense causation and for that reason, particularly suited to determination by a jury. What was said of negligence in Bennett v Minister of Community Welfare is applicable here: 'In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense ((1992) 176 CLR 408 at pp 412 ‑ 13)'. Third, that being so, when a material representation is made which is calculated to induce the representee to give consent and that person in fact gives consent, it is open to the jury to infer that she was induced to do so by the representation (compare Gould v Vaggelas (1985) 157 CLR 215 at p 236 per Wilson J). In practice I do not think that proposition involves any reversal of the onus of proof. The jury will always be deciding the question in a context; whether they draw the inference will depend upon the context.

Michael v The State of Western Australia

In Michael v The State of Western Australia,[8] the appellant was convicted after trial of five charges of sexual penetration without consent contrary to s 325 of the Code. Three counts related to one complainant and two counts related to another complainant. Both complainants were sex workers. The State's case was that the appellant misrepresented to each of the complainants that he was a police officer and that he had threatened each of the complainants that he would report them if they did not provide him with sexual services for a discounted price or without charge. A majority of this court (Steytler P & Miller JA; E M Heenan AJA dissenting) dismissed the appellant's appeal against conviction.
[8] Michael v The State of Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348.
Steytler P noted that there has been some debate as to the extent of the amendment of the common law effected by the definition of 'consent' introduced by the Acts Amendment (Sexual Assaults) Act 1985 and reproduced by the Acts Amendment (Sexual Offences) Act 1992; in particular, the absence of any express limitation of the words 'deceit, or any fraudulent means' [50].
Steytler P referred to an article by Mr G Syrota entitled 'Rape: When Does Fraud Vitiate Consent' (1995) 25 University of Western Australia Law Review 334. In the article Mr Syrota concluded that, to vitiate consent and bring an accused within s 325 of the Code, the deceit or fraudulent means must relate either to the identity of the accused or to the nature of the act. Mr Syrota suggested that other frauds, which do not vitiate consent, may be dealt with under s 192(2) or s 409 of the Code.
Steytler P then said [60] ‑ [66]:
Mr Syrota's view, while shared by some (see EJ Edwards, RW Harding and IG Campbell, The Criminal Codes: Commentary and Materials (4th ed, 1992) 542 and see, also, E Colvin and J McKechnie, Criminal Law in Queensland and Western Australia: Cases and Materials (5th ed, 2008) [6.10]), is not shared by others. Simon Bronitt, 'Rape and Lack of Consent' (1992) 16 Criminal Law Journal 289, 300 ‑ 301, suggests that the approach adopted by the then s 324G of the Code is such that 'any fraudulent behaviour which induces a person to have intercourse will vitiate consent'. RG Kenny, An Introduction to Criminal Law in Queensland and Western Australia (6th ed, 2004) says (307) that the definition of consent in s 319(2) of the Code 'does not limit the deceit or fraudulent means to the nature of the sexual act and these terms may be broad enough to extend to the wider aspects of deception such as arose in Papadimitropoulos'.
Neil Morgan, 'Oppression, Fraud and Consent in Sexual Offences' (1996) 26 University of Western Australia Law Review 223 compares what he refers to as the 'narrow view' taken by Mr Syrota and others with the 'wide view' of s 319(2)(a) taken by Mr Bronitt and others (including B Fisse, Howard's Criminal Law (5th ed, 1990) 180 ‑ 183).
Professor Morgan suggests, rightly, that the ramifications of the wide view are truly dramatic. He offers examples of a man who falsely professes his undying love for a woman who agrees to have sexual intercourse only because she believes his protestations; of a woman who tells a man that she is unmarried when she is in fact married; and of a woman who agrees to sexual intercourse on the basis of the man's false promise that he intends to marry her. He suggests that it cannot have been intended that the law of sexual assault should reach so far or that attempted sexual assault charges might lie in the case of failed 'seductions'.
However, Professor Morgan takes a different approach from that adopted by Mr Syrota. He acknowledges that those who adopt the common law approach, notwithstanding the definition in s 319(2)(a), are able to point to the fact that, before referring to 'force, threats, intimidation, deceit, or any fraudulent means', that section specifically states that these factors do not 'in any way [affect] the meaning attributable' to the requirement that consent must be freely and voluntarily given. However, he suggests (231) that the more natural reading of the definition would seem to be that the phrase is intended to extend rather than to restrict the possible operation of the law. He points out that this would be more in line with what was said in the Murray Report. He goes on to say (231):
It is therefore submitted that section 319(2)(a) requires the courts to focus on the defendant's fraud rather than the victim's mistake. This ensures a clearer focus on the defendant's culpability and also accords with the policy behind modern sexual assault laws which … should seek to protect victims from violence and various forms of exploitation and not from their own mistakes.
Professor Morgan draws a distinction between cases involving force, threats and intimidatory behaviour, on the one hand, and fraud, on the other. He suggests (233) that, in cases other than fraud, judges should leave it to the jury to decide whether, as a matter of fact, there was free and voluntary consent as opposed to mere acquiescence. … He … argues that the courts should reject the view that any type of fraud can vitiate consent, describing that view as unworkable and as generating many practical difficulties. He suggests that the courts should adopt legal rules which delimit the situations in which fraud vitiates consent, by reworking the common law rules, and that they should not regard this as merely a question of fact for the jury.
There is a helpful discussion of the factors that should vitiate consent in a discussion paper published by the Model Criminal Code Officers Committee in 1996, headed 'Chapter 5: Sexual Offences Against the Person'. The authors favour the Western Australian Code's use of the words 'consent freely and voluntarily given'. They say (49) that this phrase makes it clear that lack of consent is not confined to physical circumstances involving the use of force or violence and that it emphasises that consent should be seen as a positive state of mind. They say, as regards fraud, that the argument in favour of a wide view is that there is 'little justification for restricting the basic offence to fraud as to the identity or nature of the act, thereby excluding the circumstances which arise in cases such as Papadimitropoulos and Mobilio'. This last reference is to R v Mobilio [1991] 1 VR 339, in which the fraud caused the victim to believe that penetration (by a medical instrument) was being effected for medical diagnostic purposes. This argument in favour of the wide view suggests (55) that, because the victim consents in such cases only because of the deception, it should be open to prosecute the accused 'for the basic offence'. The contrasting view put up by the Committee is that 'the basic offence should be restricted to cases involving force or the threat of force, whether express or implicit'.
The authors say (55), in regard to fraud, that it is conceded that the common law categories are correct. They go on to say:
However, to allow consent to be negated by any type of fraud threatens the seriousness of the offence. The basic offence should not be extended to cover conduct that is merely dishonest. To do so would mean that unlawful sexual penetration could be committed by mere deceit or trickery:
'The possibilities of misrepresentations are endless, ranging from one spouse's lie that he has obtained a job or that he is the benefactor of the delivered flowers, to assurances about possession of sexual dexterity and declarations of love and respect, to proffering a prostitute a worthless cheque.' (Cunliffe I 'Consent and Sexual Offences Law Reform in New South Wales' (1984) 8 Criminal Law Journal 271 at 281).
Again, while inducing others to take part in a sexual act by deceptive means may not be acceptable to most people, there is no public interest served in making this type of behaviour subject to the sanction of the criminal law. Alternatively, there may be some particular acts of fraud which should come under the criminal law. However, these ought to be the subject of some lesser offence such as those relating to procuration.
Steytler P was of the opinion that the more natural reading of the words 'without in any way affecting' in the definition of 'consent' in s 319(2)(a) of the Code is that the phrase extends rather than restricts the possible operation of the provision. His Honour added that this interpretation accorded with the recommendation in the Murray Report. His Honour said that it was 'very probable', from the fact that the Acts Amendment (Sexual Assaults) Act 1985 adopted in effect the definition in the Murray Report, that the recommendation was accepted by Parliament [78]. According to his Honour, the question whether consent has been obtained by any of the forbidden means is a factual question to be determined by the jury [79].
Steytler P dismissed the appeal against conviction on the basis that the jury must have found that the consent of the complainants had been obtained 'by' threat or intimidation. In particular, the jury must have accepted the evidence of each of the complainants to the effect that she agreed to provide sexual services to the appellant, when she would not otherwise have done so (namely, for a discounted price or without charge), solely because she was afraid that the appellant would arrest her or otherwise make trouble for her [80].
Accordingly, Steytler P concluded that it was unnecessary to decide what is comprehended by the phrase 'deceit, or any fraudulent means' within the definition of 'consent' in s 319(2)(a) [86]. However, his Honour expressed the view that the words 'deceit, or any fraudulent means' plainly render the definition of 'consent' in s 319(2)(a) 'susceptible to an interpretation that is dramatic in its reach, for the reasons suggested by Professor Morgan and Mr Syrota, amongst others' [89]. His Honour said that there was 'obviously a need for some limit to be placed upon the meaning of those words' and that this was 'best done by the legislature' [89].
Miller JA said that the definition of 'consent' introduced by the Acts Amendment (Sexual Assaults) Act 1985 and reproduced by the Acts Amendment (Sexual Offences) Act 1992 is 'to be read as significantly modifying the common law in relation to consent' [160]. His Honour elaborated [161]:
The extended definition of 'consent' contained within s 319(2)(a) of the Criminal Code means that the inducing causes of consent can now destroy the reality of consent: if a complainant consents to sexual intercourse in circumstances in which she perceives what is about to take place, understands the identity of the man in question and the character of what he is doing, there can, nevertheless, be an absence of free and [voluntary] consent if that consent is obtained by threats, intimidation, or deceit (being the aspects relevant to this case). They are the inducing causes.
Miller JA observed that the appellant had deceived each of the complainants by representing that he was a police officer. The appellant had 'impliedly threatened them in the sense that they thought that they would be in trouble if they did not go along with what was demanded of them and they were intimidated into doing what they did because of the representations that had been made' [163]. His Honour said that the reality of 'consent' was 'destroyed by the inducements which the complainants contended were made to them' [164]. The statutory formulation of the definition of 'consent' marked 'a dramatic variation from the provisions of the common law' [165].
Miller JA referred to legislative provisions in other jurisdictions, case law in relation to that legislation and the articles by Mr Syrota and Professor Morgan mentioned by Steytler P. His Honour then commented [178]:
It is perhaps sufficient to say that the present case is not concerned with fraud. Although I have placed some emphasis on the judgment of Fryberg J in R v BAS (a fraud case), it is only for the purpose of pointing out how significantly the extended definition of 'consent' has rendered consent irrelevant in some circumstances. Such circumstances will be where consent has been vitiated by a combination of threats, intimidation and deceit. That is the present case.
Heenan AJA (who, as I have mentioned, was in dissent) acknowledged that the definition of 'consent' in s 319(2) of the Code had made significant changes to the law [374]. However, his Honour was of the view that it may be necessary 'for the full impact of the limits to s 319(2) to be worked out by the experience of cases involving unusual situations, such as the present' [375]. His Honour continued [375]:
For example, would it be an unlawful sexual penetration for a recently deregistered medical practitioner to conduct a gynaecological examination of an unsuspecting patient who would not have consented, as she did, had she known that the person was no longer entitled to practice medicine? Or, in such a case, is the better view of s 325, to treat the conduct of the deregistered former medical practitioner as a breach of the provisions of the Medical Act and so subject to prosecution and penalty for an offence of that kind which such special legislation specifically addresses? I take the latter view.
Heenan AJA then stated this conclusion [376]:
For the present, therefore, I consider that the scope of deceit or any fraudulent means in s 319(2) should be treated as referring to those frauds or misrepresentations which deprived the person concerned of a full comprehension of the nature and purpose of the proposed activity or his or her legal status of the person as a spouse, or his or her identity as an acceptable sexual partner. In the present case, I do not consider that the appellant's deceptions of pretending to be a police officer by themselves constitute deceits or frauds which had the effect of making the consents given by these two prostitutes to his activities ineffective.

R v Tamawiwy (No 2)

In R v Tamawiwy (No 2),[9] Refshauge J dealt with an application by the accused for a directed acquittal on two counts of engaging in sexual intercourse with SJ, without his consent, and being reckless as to whether SJ was consenting, contrary to s 54 of the Crimes Act 1900 (ACT). There was no dispute that SJ had, in fact, consented to the sexual activities in which he engaged with the accused. However, the Crown alleged that SJ's consent was negated because his consent was caused by the accused's fraudulent misrepresentation of a fact.
[9] R v Tamawiwy (No 2) [2015] ACTSC 302.
Section 67(1)(g) of the Crimes Act provides, relevantly, that for s 54 of the Crimes Act 'and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person … is negated if that consent is caused … by a fraudulent misrepresentation of any fact made by the other person'.
The accused allegedly created a false persona of a woman named Taylah Edwards. The Crown's case was that the accused fraudulently misrepresented to SJ that Taylah Edwards existed as a woman and that she and her two friends, named Emily and Bella, would engage in sexual intercourse with SJ if he had sexual intercourse with a man named Christian (being, in fact, the accused). The Crown relied upon the fact that the two friends of Taylah Edwards, namely Emily and Bella, did not exist and that the alleged fraudulent misrepresentation was made before SJ engaged in sexual intercourse with the accused.
The question before Refshauge J was whether the alleged fraudulent misrepresentation fell within s 67(1)(g) of the Crimes Act and negated SJ's consent.
His Honour noted that the predecessor to s 67 of the Crimes Act, namely s 92P of that Act, was enacted by the Crimes (Amendment) Ordinance (No 5) 1985 (ACT). Section 92P was in the same terms as s 67. By an amendment made in 2001, s 92P was renumbered as s 67.

Refshauge J observed that the terms under which consent is negated pursuant to s 67 (and its predecessor s 92P) had been the subject of considerable interest, especially among academics and other commentators [30]. His Honour mentioned a report by the Australian Capital Territory Law Reform Commission entitled Report - Sexual Assault (ACT: Canberra, 2001). His Honour then said [31] ‑ [33]:
The Report comments unfavourably on a number of provisions of the section but, in particular, the paragraph relating to fraud and misrepresentation was addressed. The Commission said at 69; [189]:
Some of the other factors listed in subsection (1) are so inadequately delineated that findings of guilty could be obtained in wholly inappropriate cases and absurdity could be avoided only by the absence of complaint or the exercise of prosecutorial discretion. For example, if consent is negated if caused by 'a fraudulent misrepresentation of any fact', then the consent of a rock star who has sexual intercourse with a 15 year old may be negated if she assured him that she was over 16. In that event she could be taken to have raped him.
No legislative action was taken in respect of the provision criticised by the ACT Law Reform Commission. Section 67 of the Crimes Act remains, in relevant terms, identical to that introduced as s 92P. Given the lack of response to such a significant report to government, I must at least assume that the construction of the terms, namely, a wide view of fraudulent misrepresentation within the section was not unintended or unacceptable.
Similarly, the Model Criminal Code Officers Committee, in its Report on Chapter 5 'Sexual Offences Against the Person' (Canberra, May 1999), stated at 49:
As for fraud it is conceded that those kinds of fraud recognised by the common law as negativing consent should appear on the list. However, to mandate the extension of the negation of consent to consent obtained by any type of fraud undermines the seriousness of the offence. The basic offence should not be automatically extended to cover contact that is merely dishonest. To do so would mean that a very serious offence would be committed by mere deceit or trickery:
The possibilities of misrepresentation are endless, ranging from one spouse’s lie that he obtained a job or that he is the benefactor of the delivered flowers to assurances about possession of sexual dexterity and declarations of love and respect to proffering a prostitute a worthless cheque.
(Cunliffe I 'Consent and Sexual Offences Law Reform in New South Wales' (1984) 8 Criminal Law Journal 271 at 287).
His Honour expressed the view, based on the judgments of Steytler P and Miller JA in Michael, that there was 'no reason to impose a restrictive or common law view on the provisions of s 67(1)(g)' [55]. His Honour added that 'the legislative history and plain words of the provision require a wide interpretation', but it was unnecessary in the case before his Honour 'to explore the precise extent of that interpretation' [55].
Refshauge J considered that the fraudulent misrepresentation alleged by the Crown contained what were capable of being implied representations of the following matters that a jury may reasonably find to be existing facts [64]:
(a)that there was a young woman named Taylah Edwards;
(b)that she had two young woman friends, Emily and Bella;
(c)these women were members of a community which held functions at which the participants engaged in sexual activity with each other;
(d)such a function was to be held in the near future and to which SJ could be invited;
(e)these three young women were presently willing to have sexual intercourse with SJ if he fulfilled the condition of having sexual intercourse or other sexual activity with [the accused], who was introduced as Christian.
His Honour was satisfied that if the jury were to find that those facts had been represented by the accused to SJ, then the evidence and admissions made by the accused made it clear that the facts were false. In the circumstances, the false facts that had been represented by the accused to SJ were capable of being fraudulent misrepresentations of fact [65].
Refshauge J concluded that there was evidence on which a jury, properly instructed, could find that the accused made fraudulent misrepresentations of fact within s 67(1)(g). The evidence of SJ, if accepted by the jury, was capable of supporting a finding that SJ was induced to have sexual intercourse with the accused by the fraudulent misrepresentations of fact. The application for a directed acquittal was dismissed [67].

Higgins v The State of Western Australia

In Higgins v The State of Western Australia,[10] the appellant was convicted after trial of a number of sex offences. He appealed against conviction on several grounds including that a miscarriage of justice occurred at the trial because the trial judge failed to direct the jury on the defence under s 24 of the Code in respect of ten counts of unlawful and indecent assault contrary to s 323 of the Code. One of the issues raised by the appellant was whether the definition of 'consent' in s 319(2)(a) of the Code applies to an alleged offence against s 323. By s 323, 'a person who unlawfully and indecently assaults another person is guilty of a crime'.
[10] Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474.
McLure P held that the statutory text, context and purpose led to the conclusion that the definition of 'consent' in s 319(2)(a) applies when determining whether, for the purposes of s 323, there has been an 'assault' as defined in s 222 [7].
Mazza JA made these comments about the definition of 'consent' in s 319(2) [142]:
The scope of what is precisely meant by 'fraud' in s 222 of the Code, or 'deceit or any fraudulent means' for the purposes of s 319(2), are not matters for decision in this case. Adopting conventional principles (R v BAS [90]), a fraudulent or deceitful representation is a representation which is false in fact and which the maker knows at the time of making it to be false. The maker must intend by making the representation to obtain the complainant's consent to the act when he or she would not otherwise have given their consent. The representation must have a causal connection to the obtaining of that consent.
Like McLure P, Mazza JA concluded that the definition of 'consent' in s 319(2)(a) applies when determining whether, for the purposes of s 323, there has been an 'assault' as defined in s 222 [136], [139].
Corboy J agreed with McLure P and Mazza JA that the definition of 'consent' in s 319(2)(a) applies to s 323 and said that consent, for the purposes of determining whether there had been an assault as defined in s 222, means a consent that was 'freely and voluntarily given' [166].
The court unanimously allowed the appeal in Higgins and ordered a new trial because the trial judge did not clearly identify in his directions what the jury were required to decide on the issue of consent and what they could consider in determining that issue having regard to the manner in which the State ran its case.

Decisions of the Supreme Court of Canada on Canadian legislation

Section 265(1)(a) of the Criminal Code, RSC 1985, c C‑46 (the Canadian Criminal Code) provides, relevantly, that a person commits an assault when, without the consent of another person, the person applies force intentionally to that other person, directly or indirectly. Section 265(2) states, relevantly, that s 265 applies to all forms of assault including sexual assault and aggravated sexual assault. By s 265(3)(c), for the purposes of s 265, no consent is obtained where the complainant submits or does not resist by reason of 'fraud'.
In R v Cuerrier,[11] the respondent was charged with aggravated assault contrary to s 268 of the Canadian Criminal Code. The charge of aggravated assault required that the Crown prove that the respondent's acts 'endangered the life of the complainant' (s 268(1) of the Canadian Criminal Code) and that the respondent intentionally applied force without the consent of the complainant (s 265(1)(a) of the Canadian Criminal Code).
[11] R v Cuerrier [1998] 2 SCR 371.
The charges were based on allegations that the respondent had unprotected sexual intercourse with two women whom he misled regarding his HIV‑positive status. The Crown alleged that the respondent's misleading conduct constituted fraud that vitiated the women's consent and rendered the consensual sexual intercourse an assault. At the trial, both complainants gave evidence that if they had known that the respondent was HIV‑positive they would not have engaged in unprotected sexual intercourse with him. The trial judge was of the opinion that the offence of aggravated assault did not apply and entered acquittals. The Supreme Court of Canada allowed the Crown's appeal, set aside the judgments of acquittal and ordered a new trial.
Cory J (Major, Bastarache & Binnie JJ agreeing) held:
(a)The legislative history and the plain language of s 265 indicated that Parliament intended 'to move away from the rigidity of the common law requirement that fraud must relate to the nature and quality of the act' [105]. The simple reference to 'fraud' in s 265(3)(c) revealed an intention by Parliament to provide 'a more flexible concept of fraud in assault and sexual assault cases' [105].
(b)When examining whether consent in sexual assault cases was vitiated by 'fraud' it was no longer necessary to consider whether the fraud related to the nature and quality of the sexual act. Cory J saw 'no reason why, with appropriate modifications, the principles which have historically been applied in relation to fraud in criminal law cannot be used' [108].
(c)There are two elements within the concept of 'fraud' in s 265(3)(c) which must be satisfied before consent will be vitiated by fraud. The first element is dishonesty and the second is deprivation or the risk of deprivation [110] ‑ [116].
(d)The element of dishonesty can include non‑disclosure of important facts [115] ‑ [116].
(e)The concealment or non‑disclosure by an accused that he or she is HIV‑positive can constitute fraud which may vitiate consent to sexual intercourse [124].
(f)The element of deprivation (that is, that the dishonesty results in deprivation) may consist of actual harm or simply a risk of harm. However, the actual harm or the risk of harm cannot be trivial. The dishonesty must have had the effect of exposing the complainant to 'a significant risk of serious bodily harm' [128].
(g)The view expressed by L'Heureux‑Dubé J at [16], namely that any fraud that is 'designed to induce the complainant to submit' to the accused's act will vitiate consent and constitute an assault, should be rejected [131].
(h)The view of L'Heureux‑Dubé J should be rejected for the following reasons [132] ‑ [137]:
It must be remembered that what is being considered is a consensual sexual activity which would not constitute assault were it not for the effect of fraud. Obviously if the act of intercourse or other sexual activity was consensual it could not be an assault. It is only because the consent was obtained by fraud that it is vitiated. Aggravated assault is a very serious offence. Indeed, a conviction for any sexual assault has grave consequences. The gravity of those offences makes it essential that the conduct merit the consequences of conviction.
In the case at bar, the failure to disclose the presence of HIV put the victims at a significant risk of serious bodily harm. The assault provisions of the Criminal Code are applicable and appropriately framed to deter and punish this dangerous and deplorable behaviour. To say that any fraud which induces consent will vitiate consent would bring within the sexual assault provisions of the Code behaviour which lacks the reprehensible character of criminal acts. Let us consider some of the situations which would become criminal if this approach were followed.
In these examples I will assume that it will more often be the man who lies but the resulting conviction and its consequences would be the same if it were the woman. Let us assume that the man lied about his age and consensual sexual act or acts then took place. The complainant testifies and establishes that her consent would never have been given were it not for this lie and that detriment in the form of mental distress, had been suffered. Fraud would then be established as a result of the dishonesty and detriment and although there had been no serious risk of significant bodily harm a conviction would ensure.
The same result would necessarily follow if the man lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess. The evidence of the complainant would establish that in each case the sexual act took place as a result of the lie and detriment was suffered. In each case consent would have been obtained by fraud and a conviction would necessarily follow. The lies were immoral and reprehensible but should they result in a conviction for a serious criminal offence? I trust not. It is no doubt because of this potential trivialization that the former provisions of the Code required the fraud to be related to the nature and quality of the act. This was too restrictive. Yet some limitations on the concept of fraud as it applies to s 265(3)(c) are clearly necessary or the courts would be overwhelmed and convictions under the sections would defy common sense. The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action. However, it should not provide the foundation for a conviction for sexual assault. The fraud required to vitiate consent for that offence must carry with it the risk of serious harm. This is the standard which I think is appropriate and provides a reasonable balance between a position which would deny that the section could be applied in cases of fraud vitiating consent and that which would proliferate petty prosecutions by providing that any fraud which induces consent will vitiate that consent.
Nor can prosecutorial discretion be used or considered as a means of restraining these prosecutions. … There is a healthy reluctance to endorse the exercise of prosecutorial discretion as a legitimate means of narrowing the applicability of a criminal section.
It follows that in circumstances such as those presented in this case there must be a significant risk of serious harm if the fraud resulting from non-disclosure is to vitiate the consent to the act of intercourse. For the purposes of this case, it is not necessary to consider every set of circumstances which might come within the proposed guidelines. The standard is sufficient to encompass not only the risk of HIV infection but also other sexually transmitted diseases which constitute a significant risk of serious harm. However, the test is not so broad as to trivialize a serious offence.
McLachlin J (Gonthier J agreeing) held:
(a)The problem with the commercial concept of fraud indorsed by Cory J was that failure to disclose 'virtually any known risk of harm would potentially be capable of vitiating consent to sexual intercourse' [47]. The commercial fraud theory of consent offered 'no principled rationale for allowing some risks to vitiate consent to sex but excluding others' [47].
(b)Cory J's approach omitted the requirement that fraud must induce the consent. In particular [50]:
At common law, fraud as to the nature of the act vitiates consent only if it induces the consent. By saying that non‑disclosure itself suffices to vitiate consent, the causal requirement is eliminated. The defendant is guilty even in cases where the complainant would have consented anyway. This leads to the further problem that there would appear to be no deprivation, as required for commercial fraud, on which Cory J's theory is supposedly founded. … [O]n Cory J's theory of criminal liability for sex without disclosure, criminal liability could be imposed for conduct that is causally unrelated to harm or risk of harm.
(c)L'Heureux‑Dubé J correctly identified why it was indefensible to introduce commercial notions of fraud and then limit them on an ad hoc basis [51]. However, L'Heureux‑Dubé J, having concluded that Parliament intended to repeal the common law principle that fraud vitiating consent in an assault case is confined to the nature and quality of the act, indorsed 'a new, unqualified view of fraud as any deceit inducing consent to contact' [51].
(d)L'Heureux‑Dubé J's conclusion at [16] that 'fraud is simply about whether the dishonest act in question induced another to consent to the ensuing physical act' had a number of difficulties. First, the approach of L'Heureux‑Dubé J involved an assumption of Parliamentary intent to change the law of fraud for assault that was not valid. Secondly, her Honour's approach vastly extended the offence of assault. Thirdly, the approach of L'Heureux‑Dubé J, like that of Cory J, suffered from imprecision and uncertainty [52].
(e)A small, incremental change should be made, namely a return to the common law that existed before the decision in Clarence. The rationale for this change was as follows [70]:
The question is whether a narrower increment is feasible that catches only harm of the sort at issue in this appeal and draws the required bright line. In my view, it is. A return to the pre-Clarence view of the common law would draw a clear line between criminal conduct and non-criminal conduct. As I have explained, pre-Clarence, the law permitted fraud to vitiate consent to contact where there was (a) a deception as to the sexual character of the act; (b) deception as to the identity of the perpetrator; or (c) deception as to the presence of a sexually transmitted disease giving rise to serious risk or probability of infecting the complainant (Sinclair (1867) 13 Cox CC 28). This rule is clear and contained. It would catch the conduct here at issue, without permitting people to be convicted of assault for inducements like false promises of marriage or fur coats. The test for deception would be objective, focussing on whether the accused falsely represented to the complainant that he or she was disease-free when he knew or ought to have known that there was a high risk of infecting his partner. The test for inducement would be subjective, in the sense that the judge or jury must be satisfied beyond a reasonable doubt that the fraud actually induced the consent.
L'Heureux‑Dubé J held that fraud will be established when the accused's dishonest act induced the complainant to consent to the ensuing physical act, whether or not that act was particularly risky or dangerous [16]. L'Heureux‑Dubé J's view, based on the language of s 265(3)(c), as well as the objectives and context of the Canadian Criminal Code and the assault scheme, was that fraud was 'simply about whether the dishonest act in question induced another to consent to the ensuing physical act' [16]. L'Heureux‑Dubé J elaborated [16]:
The focus of the inquiry into whether fraud vitiated consent so as to make certain physical contact non-consensual should be on whether the nature and execution of the deceit deprived the complainant of the ability to exercise his or her will in relation to his or her physical integrity with respect to the activity in question. As Mewett and Manning explain (p 789): 'There must be a causal connection between the fraud and the submission' to the act. Where fraud is in issue, the Crown would be required to prove beyond a reasonable doubt that the accused acted dishonestly in a manner designed to induce the complainant to submit to a specific activity, and that, absent the dishonesty, the complainant would not have submitted to the particular activity, thus considering the impugned act to be a non-consensual application of force. See C Boyle 'The Judicial Construction of Sexual Assault Offences' in J V Roberts and R M Mohr (eds) Confronting Sexual Assault: A Decade of Legal and Social Change (1994) 136 at 146; and Great Britain, Law Commission Consultation Paper No 134, Criminal Law: Consent and Offences against the Person (1994) pp 51–52. The dishonesty of the submission-inducing act would be assessed based on the objective standard of the reasonable person. The Crown also would be required to prove that the accused knew, or was aware, that his or her dishonest actions would induce the complainant to submit to the particular activity. For a similar articulation of the elements of fraud, see R v Théroux [1993] 2 SCR 5 at 25–26.

The offending of which the appellant was convicted related to six complainants.
The indictment specified that it was to be dealt with at a named small regional city in Western Australia. See s 84(2) of the Criminal Procedure Act 2004 (WA). The appellant's trial was held at the small regional city. The trial began on 16 February 2021 and ended on 4 March 2021. The appellant and the complainants reside in or in the vicinity of the small regional city. Most of the offending occurred in rural areas that were reasonably close to the small regional city.
On 3 May 2021, the trial judge sentenced the appellant to a total effective sentence of 12 years' imprisonment. The sentence was backdated to 4 March 2021. A parole eligibility order was made.
On 19 July 2022, Mazza JA, Mitchell JA and I heard the appellant's appeals.
On 2 December 2022, judgment in the appeals was delivered.
This court was unanimously of the opinion in relation to the conviction appeal that:
(a)all of the grounds of appeal had been made out;
(b)the proviso could not be applied;
(c)leave to appeal should be granted on all of the grounds of appeal;
(d)the appeal should be allowed;
(e)the judgments of conviction on counts 1 ‑ 3, 5 ‑ 7 and 9 ‑ 14 in the indictment should be set aside; and
(f)a new trial should be had on those counts on which the appellant was convicted.
This court was also unanimously of the opinion that, in the circumstances, it was unnecessary to determine the sentence appeal.
On 2 December 2022, when this court delivered judgment in the appeals, orders were made giving effect to the opinions referred to at [8] and [9] above.
The citation of this court's reasons for judgment is HES v The State of Western Australia.[257]
[257] HES v The State of Western Australia [2022] WASCA 151.
On 2 December 2022, when this court delivered judgment in the appeals, a question arose as to the extent to which the reasons for judgment should be published before the completion of the new trial. This court decided that the reasons for judgment should not be published until that question was resolved.

The State's application in an appeal

By an application in an appeal filed on 7 December 2022, the State applied for a suppression order in relation to this court's reasons for judgment in the appeals in the following terms:

1.Subject to order 2, no person or entity is to communicate or publish to any other person or entity the reasons for judgment of the court delivered on 2 December 2022 in CACR 55 and 56 of 2021 without prior leave of a Judge of the Court of Appeal.
2.Order 1 does not prevent the communication or publication of the reasons for judgment to:
(a)any Judge or Registrar of the Supreme Court of Western Australia or the personal staff of any Judge or Registrar of the Supreme Court;
(b)any Judge or Registrar of the District Court of Western Australia or the personal staff of any Judge or Registrar of the District Court;
(c)the Director of Public Prosecutions (WA) or any of his counsel or employees; or
(d)the appellant or any of his legal advisers;

subject to any such person having previously been given a copy of these orders.
3.Order 1 is discharged and has no continuing effect on the completion of the counts the subject of indictment [XXX] 19 of 2020 by verdict of a jury or other final determination of those counts.

On 7 December 2022, the State made written submissions in support of the proposed suppression order as follows:
(a)The order was reasonably necessary for the proper administration of justice; in particular, to protect the integrity of the jury pool at the retrial and to avoid unfair prejudice to the appellant at the retrial.
(b)There was a real risk that, despite the anonymisation of the appellant's name and the complainants' names in the reasons for judgment, potential jurors would be able to identify the appellant and the complainants from the reasons for judgment if they were published.
(c)The circumstances of the alleged offending were unique and highly distinctive. Those features were compounded by most of the alleged offending having occurred within reasonable proximity of the small regional city.
(d)The original trial and the appeal proceedings have received considerable media attention. There has been publicity in the small regional city and more widely throughout the State, including publicity about some of the unique and highly distinctive aspects of the alleged offending.
(e)The evidence of the complainants was not recorded at the original trial. It will be necessary for each of the complainants to give evidence again at the retrial.
(f)The publication of this court's reasons for judgment on the Supreme Court's website would create a real and perceptible risk of the integrity of the complainants' evidence being undermined and would unfairly expose the complainants to cross‑examination suggesting collusion and collaboration as a result of each complainant being able to access and read summaries in the reasons for judgment of the evidence given by the appellant and other complainants at the original trial.
(g)The ability of each complainant to access and read summaries in the reasons for judgment of the evidence given by the appellant and other complainants at the original trial, and to be cross‑examined about at least the potential for them to have accessed and read the summaries, presents grave unfairness to the State.
On 7 December 2022, the appellant made written submissions in opposition to the proposed suppression order as follows:
(a)It is not in the interests of the administration of justice that the reasons for judgment be suppressed pending the conclusion of any retrial.
(b)The reasons for judgment significantly expand upon or otherwise clarify the law relating to sexual offending where the victim's consent was allegedly obtained by deceit or any fraudulent means. The reasons for judgment also address the requirements of fairness that a prosecutor must observe in any criminal trial.
(c)The assertions of unfairness made by the State either do not arise or do not give rise to a sufficient basis for restricting the publication of the reasons for judgment.
(d)The anonymisation of the appellant's name and the complainants' names in the reasons for judgment makes it unlikely that potential jurors would be able to identify the appellant and the complainants from the reasons for judgment if they were published. In any event, jurors are routinely instructed that they must not undertake their own research in relation to the subject matter of the trial including the accused and the complainants.

The disposition of the State's application in an appeal

On 9 December 2022, Mazza and Mitchell JJA made an order that the State's application in an appeal be dismissed.
Their Honours also made this order:
The Director of Public Prosecutions is to notify the Court of Appeal Registrar prior to the issue of summonses for the jury panel in the appellant's new trial so that the court can remove the reasons in the appeal from the court's website at that time until the conclusion of the trial.
I would have allowed the State's application in an appeal and made a suppression order in the terms set out at [13] above.

The reasons why I would have allowed the State's application in an appeal and made the suppression order

I was of the opinion, for the following reasons, that the State's application in an appeal should have been allowed and that a suppression order in the terms set out at [13] above should have been made.
In Australia a person who has been charged with a criminal offence has a fundamental right to a fair trial (or, more accurately, a right not to be tried unfairly). Subject to any applicable express statutory provisions, a superior court has inherent jurisdiction, and an inferior court has implied power, to control the criminal process to ensure it is not abused and to protect this fundamental right. See R v MacFarlane;[258] Hinch v Attorney‑General (Vic);[259] Jago v District Court (NSW);[260] McKinney v The Queen;[261] Dietrich v The Queen.[262]
[258] R v MacFarlane [1923] HCA 39; (1923) 32 CLR 518, 541 ‑ 542 (Isaacs J).
[259] Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 58 (Deane J).
[260] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 56 (Deane J).
[261] McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468, 478 (Mason CJ, Deane, Gaudron & McHugh JJ).
[262] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 299 ‑ 300 (Mason CJ & McHugh J), 326, 330 (Deane J), 362 ‑ 364 (Gaudron J).
There is a public interest in protecting the fundamental right of an accused to a fair trial. See Re Truth & Sportsman Ltd; Ex parte Bread Manufacturers Ltd;[263] Attorney‑General (NSW) v TCN Channel NinePty Ltd.[264]
[263] Re Truth & Sportsman Ltd; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242, 249 (Jordan CJ).
[264] Attorney‑General (NSW) v TCN Channel NinePty Ltd (1990) 20 NSWLR 368, 384 (Gleeson CJ, Kirby P & Priestley JA).
An essential feature of courts in the Australian judicial system is that they sit in public. In Russell v Russell,[265] Gibbs J made these observations about the open‑court or open justice principle:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' (Scott v Scott [1913] AC 417, at p 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall‑mark of judicial as distinct from administrative procedure' (McPherson v McPherson [1936] AC 177, at p 200) (520).
See also Hogan v Hinch.[266]
[265] Russell v Russell [1976] HCA 23; (1976) 134 CLR 495.
[266] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] (French CJ).
A corollary of the open‑court or open justice principle is that at common law, absent any limitation or restriction imposed by an order of the court, anyone (including the media) may publish a fair and accurate report of proceedings in open court. See John Fairfax & Sons Ltd v Police Tribunal(NSW);[267] John Fairfax Publications Pty Ltd v District Court of New South Wales;[268] Hogan [22].
[267] John Fairfax & Sons Ltd v Police Tribunal(NSW) (1986) 5 NSWLR 465, 481 (McHugh JA, Glass JA agreeing).
[268] John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 [20] (Spigelman CJ, Handley JA & Campbell AJA agreeing).
At common law, a superior court may, in the exercise of its inherent jurisdiction, and an inferior court may, in the exercise of its implied powers, make orders that limit or restrict the application of the open‑court or open justice principle, and the correlative entitlement to publish a fair and accurate report, by, for example, making a suppression order. But this jurisdiction or power may be exercised only where it is 'necessary' for the proper administration of justice, including securing the fair trial of an accused. See Riley McKay Pty Ltd v McKay;[269] John Fairfax v Police Tribunal (476 ‑ 477); Re a Former Officer of the Australian Security Intelligence Organisation;[270] Channel Seven Adelaide Pty Ltd v Draper;[271] Hogan [21], [26]. The term 'necessary', in this context, connotes reasonably necessary. It does not, in this context, mean essential. See Pelechowski v Registrar, Court of Appeal (NSW);[272] R v Perish.[273]
[269] Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270 (Street CJ, Hope JA & Rogers AJA).
[270] Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875, 876 ‑ 877 (Brooking J).
[271] Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160, [37] ‑ [39], [45] ‑ [48] (Gray J, Nyland J agreeing).
[272] Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [51] (Gaudron, Gummow & Callinan JJ).
[273] R v Perish [2011] NSWSC 1102 [42] (Price J).
Where there is a conflict between the fundamental right of a citizen to a fair trial on a criminal charge, on the one hand, and the open‑court or open justice principle and the correlative entitlement to publish a fair and accurate report, on the other, the application of the latter principle and entitlement must be modified to the extent reasonably necessary to ensure a fair trial. See John Fairfax v Police Tribunal (476 ‑ 477); L v ABC;[274] R v Strawhorn (No 2);[275] W v M;[276] Hogan [21].
[274] L v ABC [2005] NTSC 5 [17] ‑ [18] (Mildren J).
[275] R v Strawhorn (No 2) [2006] VSC 433 [32] (Habersberger J).
[276] W v M [2009] NSWSC 1084 [20] ‑ [22] (Brereton J).
These principles in relation to the fundamental right of a person in Australia to a fair trial on a criminal charge, and its interaction with the open‑court or open justice principle and the correlative entitlement to publish a fair and accurate report, have been formulated in the context of the publication of evidence or other information, and comment on evidence or other information. These principles have not been formulated in the context of the publication of the reasons (including findings of fact made in the reasons) of a court. However, these principles apply, by analogy, to the reasons (including findings of fact in the reasons) of a court. See AW v Rayney [No 4].[277]
[277] AW v Rayney [No 4] [2012] WASCA 117 [34] (Buss JA; McLure P & Newnes JA agreeing).
This court's inherent jurisdiction has not been circumscribed or excluded by any express statutory provisions applicable to the facts and circumstances of the present case. The inherent jurisdiction of this court, in the present case, extends to the making of a suppression order in relation to its reasons if it is satisfied that the order is reasonably necessary for the proper administration of justice in this State, even if the reasonable necessity for the order arises from the administration of justice in a pending proceeding in another court within this State's judicial hierarchy. See AW [35].
Section 171(2) of the Criminal Procedure Act provides for proceedings in a court to be in open court and for the courtroom where the court sits to be open to the public. That provision is subject to s 171(4) which empowers a court, if satisfied it is in the interests of justice to do so, amongst other things, to make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court. By s 3 of the Criminal Appeals Act 2004 (WA), that Act is to be read with the Criminal Procedure Act. Section 171 of the Criminal Procedure Act is not relevantly inconsistent with the aspects of the open‑court or open justice principles at common law which I have mentioned. See Hill v The State of Western Australia [No 2].[278]
[278] Hill v The State of Western Australia [No 2] [2022] WASCA 149 [3] (Buss P & Hall JA).
On 2 December 2022, after this court delivered judgment in the appeals, a journalist, KG, from Seven West Media (WA) in the small regional city where the appellant's original trial was held and in or in the vicinity of which the appellant and the complainants reside, sent an email to the Court of Appeal Office. The email reads, relevantly:
My editor … has just spoken to you on the phone, we are seeking information on [actual full name of the appellant]'s appeal. We have heard from an anonymous source that his appeal has been allowed … and his convictions overturned with a retrial date listed. We are seeking confirmation on if an appeal has been granted.
We are also seeking confirmation on whether there is a suppression order in place on this outcome.
I have searched online in eCourts and cannot find any information relating to the appeal, so I am hoping you can provide clarification.
On 14 December 2022, the Acting Court of Appeal Registrar sent a letter to KG (with a copy to the appellant's lawyers and the Director of Public Prosecutions (WA)), in response to KG's email of 2 December 2022, as follows:
I refer to your email dated 2 December 2022 seeking information relating to these appeals or confirmation as to whether the appeals are subject to a suppression order.
Please be advised that the respondent's application for a suppression order was dismissed on 9 December 2022. A copy of the orders made by the Court on 9 December 2022 in relation to appeal matter CACR 55 and 56 of 2021 is attached.
Please also find attached a copy of the Court's orders made on 2 December 2022 allowing the appellant's appeal against conviction in CACR 55 of 2021 and dismissing the appellant's appeal against sentence in CACR 56 of 2021 as well as the Court's reasons for decision [2022] WASCA 151.
I am satisfied, having regard to a number of factors, that the making of a suppression order in the terms set out at [13] above was reasonably necessary for the proper administration of justice.
First, as I have mentioned, the appellant's original trial was held at the small regional city. The appellant and the complainants reside in or in the vicinity of the small regional city. Most of the offending occurred in rural areas that were reasonably close to the small regional city. The retrial will, in the ordinary course, be held at the small regional city.
Secondly, the reasons for judgment of this court include, relevantly, the following:
(a)The State's case at trial was that the appellant was a 'prominent and well‑respected' Aboriginal man, aged between 47 and 52 years at the time of the alleged offending, who was actively involved in the local community in the small regional city [152].
(b)The prosecutor contended in his opening address that, while each of the complainants was supposedly learning and experiencing Aboriginal culture and healing, the appellant sexually assaulted them while pretending to be helping them with their various personal issues [153].
(c)The prosecutor alleged in his opening address that none of the charged acts that the appellant performed on the complainants was part of traditional Aboriginal culture [154].
(d)A reasonably detailed account of the proposed evidence of each of the complainants, as explained by the prosecutor in his opening address, is set out [155] ‑ [181].
(e)A reasonably detailed account of admissions made by the appellant in cross‑examination is set out [187].
(f)A reasonably detailed account of the defence case at trial, as explained by defence counsel in his opening statement and his closing address, is set out [189] ‑ [197].
(g)A reasonably detailed account of the appellant's evidence at the trial is set out [255] ‑ [280], [285] ‑ [286], [290], [294], [296], [301], [305] ‑ [306], [310], [314] ‑ [315], [320] ‑ [322], [327], [330].
(h)Some details of the evidence given by the complainants are recounted.
Thirdly, it is apparent from the email of 2 December 2022 from KG (see [29] above), that journalists in the small regional city where the appellant's original trial was held are aware of the appellant's full name and the material facts and circumstances relating to his original trial and his appeals. The orders made by the majority on 9 December 2022 (see [16] ‑ [17] above) do not prevent the media or any other person or entity from publishing or republishing the appellant's name on the internet or elsewhere in connection with the alleged offending, the original trial, the appeals or the retrial. In the circumstances, the anonymisation of the appellant's name in the reasons for judgment does not protect the appellant's identity pending the outcome of the retrial.

Fourthly, the orders made by the majority on 9 December 2022 (see [16] ‑ [17] above) do not prevent the media or any other person or entity from publishing or republishing the whole or parts of the reasons for judgment of this court (including those parts referred to at [33] above) on the internet or elsewhere. The order which requires the Director of Public Prosecutions to notify the Court of Appeal Registrar, before the issue of summonses for the jury panel in the appellant's retrial, so that the court can remove the reasons for judgment from the Supreme Court website until the conclusion of the retrial (see [17] above), will have no impact upon any secondary publication of the whole or parts of the reasons for judgment that has occurred on the internet or elsewhere.
Fifthly, the appellant elected to give evidence at the original trial. However, he is entitled to elect not to give evidence at the retrial. The appellant's retrial is to be determined by reference to the evidence adduced at the retrial and not by reference to the evidence adduced at the original trial.
Sixthly, although a complainant may have heard other complainants who were called later at the original trial and the appellant give their evidence, the orders made by the majority (see [16] ‑ [17] above) do not prevent a complainant from becoming aware for the first time or from refreshing her memory of the evidence given by other complainants and the appellant at the original trial. If that were to occur, it would have the potential to facilitate an attack by defence counsel upon the integrity of the evidence given by the complainant at the retrial.
Seventhly, it is true that the reasons for judgment contain observations of importance in relation to the definition of 'consent' in s 319(2)(a) of the Code where consent to sexual penetration is allegedly obtained by 'deceit, or any fraudulent means' within the definition. However, criminal proceedings in which it is alleged that consent to sexual penetration was procured by 'deceit, or any fraudulent means' are very unusual. In any event, the ambit of the definition of 'consent' was considered in some depth by this court in a published judgment, namely Michael v The State of Western Australia.[279] Lawyers who practise criminal law in this State are or should be familiar with the issues discussed in that case. Further, a suppression order in the terms set out at [13] above is an order that is frequently made by this court in criminal appeals where the court suppresses reasons for judgment pending a retrial. The order permits publication of the reasons for judgment to, amongst others, Judges of the Supreme Court, Judges of the District Court, the Director of Public Prosecutions (WA) and any of the Director's counsel or employees. Accordingly, if a suppression order in the terms set out at [13] above had been made, the reasons for judgment would have become available immediately to all of those persons. If it became necessary in any pending criminal proceeding for the reasons for judgment to be made available, as a matter of fairness, to defence counsel, it is standard practice within the Court of Appeal for the Court of Appeal Registrar to be notified and for the suppressed reasons to be made available promptly to defence counsel, subject to the provision of an appropriate undertaking.
[279] Michael v The State of Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348.
Eighthly, it is also true that the reasons for judgment contain observations of importance in relation to the conduct of prosecutors in criminal proceedings. However, the reasons for judgment do not enunciate a new principle. The reasons for judgment are concerned with the application of existing principles to the particular facts and circumstances of the original trial. In any event, as I have mentioned, a suppression order in the terms set out at [13] above permits the immediate publication of the reasons for judgment to, amongst others, the Director of Public Prosecutions (WA) and any of the Director's counsel or employees. Accordingly, the making of the proposed suppression order would not impede any steps by the Director to draw the reasons for judgment to the attention of the Director's counsel and employees.
Ninthly, it is reasonably to be expected that the District Court will give some priority to the listing of the retrial because of its status as a retrial which involves numerous complainants who will have to give

evidence again at the retrial in consequence of their evidence not having been recorded at the original trial. In any event, even if the listing is not given any priority, the very unusual and distinctive nature of the alleged offending, in the context of the appellant and the complainants residing in or in the vicinity of the small regional city, the media attention and publicity attending the original trial and the appeals and the ready access of almost everyone to the internet, makes it unlikely that the facts and circumstances of these appeals and their outcome will have been long forgotten by all potential jurors. Although the reasons for judgment will be removed from the Supreme Court website before the jury panel are summonsed, that circumstance will not, as I have mentioned, have any impact upon any secondary publication of the whole or parts of the reasons for judgment that has occurred on the internet or elsewhere.

Tenthly, although jurors are customarily directed not to undertake their own research in relation to the case they are hearing on the internet or elsewhere, it is well known that on occasions that direction has not been observed by some jurors.
Finally, in my opinion, the matters to which I have referred at [32] ‑ [41] above, in combination, favour the making of a suppression order in the terms set out at [13] above and decisively outweigh any reasons for refusing to make that order.

MAZZA & MITCHELL JJA:

On 9 December 2022, we made orders dismissing the State's application for suppression of the court's reasons in these appeals. These are our reasons for making those orders.
The obligation to give a public explanation of reasons for final decisions is an essential characteristic of Australian courts. Another essential characteristic of Australian courts is that they sit in public. The open-court principle exists to ensure that court proceedings are subjected to public and professional scrutiny and that courts maintain the appearance of independent and impartial tribunals. However, these principles are not absolute, and this court has an inherent jurisdiction to make orders suppressing publication of its reasons for decision where doing so is necessary to secure the proper administration of justice.[280]

[280] See Wainohu v The State of New South Wales [2011] HCA 24; (2011) 243 CLR 181 [54] - [58], [94], [109]; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] - [21], [85] - [91].

One circumstance in which suppression of the court's reasons may be necessary to secure the proper administration of justice may arise when this court allows an appeal against conviction and orders a new trial. As various decisions of the High Court illustrate, suppression of an appellate court's reasons will not be required in every case where a new trial is ordered.[281] However, where there is a real prospect that the general publication of this court's reasons may compromise the fairness of the new trial then a suppression order operating until the new trial is concluded may be necessary and appropriate.
[281] For recent examples, see Awad v The Queen [2022] HCA 36; (2022) 96 ALJR 1082; O'Dea v The State of Western Australia [2022] HCA 24; (2022) 96 ALJR 710; Orreal v The Queen [2021] HCA 44; (2021) 96 ALJR 78.
In the present case, the State raises two concerns as to how the fairness of a new trial of the appellant may be compromised if a suppression order is not made:
1.The State says that there is a real risk that, despite the anonymisation of the appellant's and complainants' names, potential jurors would be able to identify them from the judgment if it is published. The State says that the circumstances of the alleged offending are unique and highly distinctive, and the offending occurred in a regional town where the trial and appeal proceedings have attracted considerable publicity.
2.The State says that there is a perceptible risk that the integrity of the complainants' evidence will be undermined, and that they may be subjected to unfair cross-examination suggesting collusion and collaboration if they are able to read summaries of the parties' cases and evidence in the judgment.
We are not satisfied that either matter raised by the State justifies the making of a suppression order.
It seems to us, given the regrettable backlog of cases in the District Court of Western Australia (much of which is attributable to the effects of the COVID-19 pandemic) and the consequent delays in bringing matters to retrial, that, by the time a jury panel is summonsed, any media reports of the outcome of this appeal will be long forgotten by the potential jurors.
Members of the jury panel would have no reason to search for reports of the matter on the internet until they were summonsed. The risk of a potential juror reading the reasons of the court and the account of the first trial contained in those reasons can be addressed by removing the published reasons from the court's website before the jury panel are summonsed until the conclusion of a new trial.
At a new trial, jurors would be directed not to engage in any research of the matter on the internet or otherwise. A juror disregarding such a direction might see media reports of the matter and might see that this court has allowed an appeal against conviction. However, the respondent does not propose that this fact be suppressed. Further, as it is almost inevitable that some witnesses in any new trial will be cross‑examined by reference to their evidence in the previous trial, the jurors on the new trial will, very likely, be aware of the earlier trial. The jurors would ordinarily be directed not to concern themselves with why there was a previous trial. Any juror undertaking a prohibited search of the internet would have access to media reports of the earlier trial and the fact that the appellant was convicted by the jury at that trial irrespective of whether this court's reasons are suppressed.
If a juror somehow became aware of the court's reasons for setting aside the appellant's convictions, they would see that the court took the view that a miscarriage of justice arose from unfair questions being posed to the appellant in cross-examination, a misdirection as to the elements of the offence and the making of a comment to the jury by the trial judge. This is not a case where the reasons of this court express any view as to the cogency of evidence or the sufficiency of evidence to prove elements of the offence. We find it difficult to see how, if a juror somehow became aware of the reasons for this court's decision, the juror might be diverted from his or her task.
The second concern raised by the State seemed to us to be speculative. There was no evidence before us as to whether or not the complainants were present at the first trial after they gave their testimony. If, as the State contends, the first trial was widely reported, the complainants could have been aware of other evidence given in the trial through reading media reports. It seems unlikely that defence counsel would adopt the imprudent course of cross-examining a complainant on a judgment of this court.
We also note that the judgment in this case raises two issues of general importance. The first concerns the directions that should ordinarily be given in a case where a complainant's consent to sexual activity is alleged to have been obtained by deceit or any fraudulent means. The second concerns the dangers inherent in a prosecutor cross-examining an accused by reference to statements made or not made by their counsel at trial. It is in the public interest for practising criminal lawyers to have access to the reasons for decision dealing with those matters.
Having regard to the above matters, we were not satisfied that suppression of this court's reasons was necessary to secure the proper administration of justice in any new trial of the appellant. We therefore dismissed the State's application, while ordering the State to notify the court before the jury panel for a new trial are summonsed so that the reasons can be temporarily removed from the court's website at that time.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM
Associate to the Honourable Justice Mitchell

21 MARCH 2023