Leesa Jan Alexander v Akis Emmanouel Livas
[2014] ACTMC 5
•31 March 2014
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Leesa Jan Alexander v Akis Emmanouel Livas |
Citation: | [2014] ACTMC 5 |
Hearing Date(s): | 18 March 2014 |
DecisionDate: | 31 March 2014 |
Before: | Magistrate Morrison |
Decision: | 1. The defendant is committed to the Supreme Court of the Australian Capital Territory for trial. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – committal – sexual intercourse without consent – where consent of prostitute induced by fraud – whether open to jury to conclude misrepresentation as to matter of fact and not promise as to future conduct – interpretation of section 67(1)(g) of the Crimes Act 1900 (ACT) – whether section to be read down so as not to apply to fraudulent misrepresentation alleged against defendant – section not to be read down – defendant committed for trial. |
Legislation Cited: | Crimes Act 1900 (ACT), s 54(1), s 67(1)(g) Magistrates Court Act 1930 (ACT), s 94 |
Cases Cited: | Papadimitropoulos v R (1957) 98 CLR 249 Michael v The State of Western Australia [2008] WASCA 66 |
Texts Cited: | Australia Capital Territory Law Reform Commission, Report on the Laws Relating to Sexual Assault [2001] Tasmanian Law Reform Commission Report No 31, Report and Recommendations on Rape and Sexual Offences [1982] |
Parties: | Leesa Jan Alexander (Informant) Akis Emmanouel Livas (Defendant) |
Representation: | Counsel Mr T Hickey (Prosecution) Mr P Edmonds (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Prosecution) Mr P Edmonds (Defendant) | |
File Number(s): | CC 9500 of 2010 |
Publication Restriction: | Complainant’s name and identifying features |
MAGISTRATE MORRISON:
Mr Akis Emmanouel Livas is charged with one offence of engaging in sexual intercourse without consent in contravention of section 54(1) of the Crimes Act 1900 (ACT).
The test to be applied to the committal decision is set out in section 94 of the Magistrates Court Act 1930 (ACT) and is uncontroversial.
The complainant in this case is a prostitute and the defendant was one of her customers. The prosecution case is that the defendant tricked the complainant into consenting to intercourse with him.
Under section 67(1) of the Act the consent of a person to intercourse is negated if the consent is caused by the fraudulent misrepresentation of any fact made by the other person.
The contest in this case is about the meaning to be given to section 67 and its application to the findings which would be open to a jury on the prosecution evidence presented at committal.
The committal took place on the basis that the only evidence to be considered was that contained in the prosecution brief which is Exhibit P1. Directions had been made for the filing of written submissions and I had the benefit of having them in advance of the committal hearing.
At my request at the hearing the prosecution particularised the fraudulent misrepresentation which they assert was made by the defendant in the following terms:
The defendant falsely represented the envelope he gave her contained $850.00 in payment for the sexual intercourse.
The reference to “her” is clearly a reference to the complainant, and the reference to “the sexual intercourse” is clearly a reference to the act of intercourse which is the subject of the charge.
Prior to the hearing I had caused an email to be sent by my associate to prosecution and defence inviting further submissions at hearing on the distinction to be drawn between a fraudulent misrepresentation of fact and a fraudulent breach of a promise or undertaking.
I made that request without knowledge of the manner in which the prosecution would go on to particularise the alleged fraudulent misrepresentation.
Part of the argument before me on behalf of the defendant was that any fraud perpetrated by the defendant went to future conduct on his part – that is his intention to pay for sex with the complainant. By reference to the High Court decision in Greene v R (1949) 79 CLR 353 Mr Edmonds argued that such a representation was not a representation of an existing fact and therefore the consent-negating provisions of section 67 did not apply.
If the evidence before me rationally permitted only an inference of fraud as to a future promise to pay that would be a very persuasive argument.
But the prosecution particularises its allegation about the fraudulent misrepresentation in terms of the defendant having purported (in the past tense) to pay the complainant, before intercourse took place, by delivery of the envelope which he represented as containing $850.00 in cash.
On the basis of the evidence before me such a finding of fact would be open to a jury. That is it would be open to the jury to find that the defendant by delivery of the envelope to the complainant before intercourse made to her a representation as to an existing fact – that being the presence of cash in the envelope by way of payment to her – and not a representation by way of promise to pay at some future time.
It follows that the defence submission on that point fails.
The second argument raised by the defence is that the apparently broad words of section 67(1)(g) must be read down, and that when they are read down in the manner pressed for, the evidence cannot support a conclusion that the complainant’s consent was negated as alleged by the prosecution.
The defence argument for reading down the section is based upon what the defence says would be absurd potential outcomes if it were not.
For his part the prosecutor says that such results as are a possible outcome of the literal interpretation of section 67(1)(g) are not absurd.
It is apparent that, if a literal interpretation is applied to section 67(1)(g) then a very broad range of conduct by way of fraudulent representations is potentially caught by section 54. Some examples appear in the decisions of Michael v The State of Western Australia [2008] WASCA 66; R v Linekar [1995] 3 All ER 69; and in the 2001 Australian Capital Territory Law Reform Commission Report on the Laws Relating to Sexual Assault [2001].
In support of his argument that section 67 should be read down, Mr Edmonds referred me to the dissenting judgement of Heenan AJA in Michael. The decision under appeal in Michael involved a conviction for sexual penetration without consent under the Western Australian Criminal Code 1913 (WA).The Western Australian Code defines consent as meaning a consent freely and voluntarily given and goes on to say that it is not freely and voluntarily given if obtained by force, threat, intimidation, deceit, or any fraudulent means.
The facts in Michael involved the defendant posing as a police officer and procuring the services of prostitutes while doing so.
In dismissing the appeal the majority in Michael held that the complainant’s consent was procured by a combination of deceit, threats and intimidation.
For his part however, Heenan AJA concluded that the jury verdicts may not have been founded solely on a conclusion that consent was founded on threats and intimidation and he embarked upon an analysis of the law in relation to consent obtained through fraud.
His analysis is thorough and scholarly and his reasoning is persuasive.
He concludes that “...(t)here are compelling practical considerations to confine the scope of fraud or deceit under the relevant Western Australian legislation dealing with consent to avoid inclusion within the Western Australian offence fraudulent deceptions which do not go to the nature or quality of the act or its purpose or to the identity of the person proposing the sexual activity”. He, in effect, read down the Code definition of what does not constitute free and voluntarily consent accordingly.
In his reasons Heenan AJA traced the history of the consent provisions of the Western Australian Criminal Code. He refers to the 1983 report produced by Mr MJ Murray QC as he then was following a review of the Western Australian Criminal Code. The Murray Report referred to the decision of the High Court of Australia in Papadimitropoulos v R (1957) 98 CLR 249 and recommended that a definition of consent be introduced into the Code but does not appear to have gone so far as to suggest what that definition should be. A definition was inserted in the Code in amendments in 1985 in terms not materially different from its present form. Heenan AJA comments that it is not possible to conclude that when enacting the 1985 amendments the Western Australian Parliament intended to act solely on the recommendations in the Murray Report. He refers to the absence of any explanatory memoranda accompanying the relevant Bill before the parliament and adds that the second reading speeches do not provide any basis for further insight into the relevant concepts of fraud and deceit.
He goes on to say:
“Nothing in the legislative history of s 319, or its comparable preceding provisions, allows any conclusion to be drawn about the nature or extent of the fraud or deceit which is regarded as making consent to sexual acts ineffective if the consent were given in reliance on the deceit or fraud. I do not regard it as possible to conclude affirmatively that the Murray recommendations with respect to the Papadimitropoulos doctrine involved acceptance by parliament that any form of antecedent fraud leading to consent would render the consent ineffective.”
The Western Australian scheme centres on the concept of consent freely and voluntarily given and provides that consent is not freely and voluntarily given in certain circumstances – of which one is consent obtained by deceit or any fraudulent means. The words used in this jurisdiction are different – the relevant reference being simply to consent – with section 67 providing that the consent is negated in certain circumstances – of which one is consent caused by a fraudulent representation of any fact.
Putting aside as irrelevant for present purposes the difference between fraudulent statements as to existing fact and future conduct, there appears to be little effective difference between the Western Australian and Territory legislation in this area.
What is different however is the legislative history of the provisions.
I was invited by Mr Edmonds to consider pursuant to chapter 14 of the Legislation Act 2001 the explanatory statement accompanying the Bill which introduced the forerunner to section 67 and the Tasmanian Law Reform Commission Report No 31 which is referred to in the explanatory statement. I have done so.
The explanatory statement accompanying the Crimes Amendment Ordinance (No 5) 1985 which introduced the forerunner to section 67 records that the contents of the section are “substantially in accordance with the recommendations contained in the Tasmanian Law Reform Commission Report on Rape and Sexual Offences”.
A copy of that report usefully forms part of the defence outline of submissions.
The report makes reference to the definition of consent then appearing in the Tasmanian Criminal Code and the High Court decision in Papadimitropoulos in these terms:
“Despite the apparent width of these words it would seem that their effect is not clearly settled. In Schell [1964] Tas. S.R. 184, Crisp J., following Papadimitropoulos [1957] 98 C.L.R. 249, held that in the case of Rape it is consent to the physical character of the act and to the identity of the male person only which is in issue. It follows then that sexual intercourse procured by fraud as to antecedent inducing causes or status or attributes of the accused does not destroy the reality of consent. However in Woolley v. Fitzgerald [1969] Tas. S.R. 65, Chambers J. raised some doubts as to the application of Papadimitropoulos and suggested without deciding that if there was fraud as to ‘’the matter to which he consents’ then there was no consent. On this view fraud as to other matters would vitiate consent, but the common law position would appear to allow fraud to vitiate consent only where a woman’s husband is impersonated or where the victim is mistaken as to the nature of sexual intercourse rather than its purpose.”
At paragraph 44 of the report the authors give their reasons for recommending the legislative approach of listing what does not constitute “full and free” consent. Paragraph 44(b) includes the following:
“It specifically identifies the behaviour that is proscribed. An extensive, but not exhaustive list of non-consensual situations avoids the problems of a vague generalised definition of consent. Such definitions have caused much confusion and resentment because it is felt that they can be interpreted to exonerate the accused in situations which many women would regard as non-consensual, e.g., where the victim is coerced by threats of public humiliation, by threats of violence to a third-party, or by fraud as to some fact not amounting to fraud as to identity of the perpetrator or the nature of the act. There is concern also that only fear of death or grievous injury will be accepted as sufficient to render a consent invalid. The provision recommended would remove doubts in the area of force and threats of violence (paragraphs (a) and (b)) where the law is vague and extend it in the area of fraud (paragraphs (e) and (f)) threats of public humiliation and extortion (paragraph (e)) and exploitation of authority or position (paragraph (g)) where it has not gone far enough.”
Unlike the position in Western Australia, the language used in the recommendations in the report of the Tasmanian Law Reform Commission Report (upon which section 67 is expressed to be based) makes it clear that the authors had in mind significant extension of the circumstances under which fraud would operate to negate consent.
I was also referred in the course of submissions to the 2001 Australian Capital Territory Law Reform Commission Report on the Laws Relating to Sexual Assault. The report pointed to difficulties with the interpretation and application of the forerunner to section 67 - including section 67(1)(g) – and recommended that what it described as the “negative and piecemeal approach” in it be replaced by a positive consent standard described as “a consent freely and voluntarily given with knowledge of the nature of the act in question and the identity of the other person”.
I was not asked to draw any inferences from the fact that the recommendation was not acted upon and I have not done so.
As I understood Mr Edmonds submissions they are that section 67(1)(g) should be read down so that, in effect, consent is only negated where caused by fraudulent misrepresentation as to identity or purpose (that being the common law at the time of Papadimitropoulos) or as to the validity of a marriage (that being the consent negating proposition rejected by the High Court in Papadimitropoulos).
It may be that I misunderstood the defence submissions and that what was pressed for by the defence was that the section be read down in the same manner that the relevant provision of the Western Australian Criminal Code was read down by His Honour AJA Heenan in Michael – that being expressed as not including deceptions which do not go to the nature or quality of the act or its purpose or to the identity of the person proposing the sexual activity.
Nothing turns on that for present purposes. In either case the defendant’s argument should be rejected.
There are powerful and common sense arguments against treating what is a relatively low-level business fraud as a crime of sexual violation. As Couglan JA said in Onnis v The Queen [2013] VSCA 271 (24 September 2013):
“No doubt, a prostitute has just as much right to be protected against fraud as a woman to whom the idea of selling herself is anathema. But there is a substantive difference. If a prostitute is fraudulently induced to forego her fee, her complaint is that she has not been paid what is owing. And she can be compensated by payment of what is due. It is otherwise, however, and generally speaking likely to be more serious, where a woman is deceived in respects which go beyond the measure of money.”
In addition, I acknowledge the similarities between the legislation in Western Australia and this Territory, and the persuasive reasoning of Heenan AJA in Michael for reading down the corresponding provision in the Western Australian legislation.
However the legislative history in the two jurisdictions is markedly different. Against the background of the very broad recommendations in the Tasmanian Law Reform Commission Report on which the relevant provision in this jurisdiction is based, the Territory legislature cannot have intended by its use of the words of very broad import chosen in section 67(1)(g) to restrict the circumstances negating consent in either of the limiting ways referred to earlier.
It follows that I am not persuaded that the proper interpretation of section 67 is that pressed for by the defence.
The conclusion I reach is that, rightly or wrongly, the proper interpretation of the legislation in this Territory is that the business fraud conduct alleged against the defendant is caught within the rubric of a serious crime of sexual violation under section 54 of the Crimes Act 1900.
Having reached that conclusion, on the basis of the evidence before me, the committal of the defendant for trial in the Supreme Court is inevitable.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison. Associate: Date: 26 March 2015 |
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