Moon v Whitehead
[2015] ACTCA 17
•22 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Moon v Whitehead |
Citation: | [2015] ACTCA 17 |
Hearing Date: | 22 February 2015 |
DecisionDate: | 22 May 2015 |
Before: | Murrell CJ, Penfold and Burns JJ |
Decision: | The appeal is upheld to the extent that the award of aggravated damages is set aside and judgment in favour of the respondent is varied to $658,856.00. The appellant to pay the respondent’s costs of the appeal unless an application for a different costs order is made within 14 days. |
Category: | Principal Judgment |
Catchwords: | TORTS – Trespass to the Person – sexual assault – sexual intercourse without consent – whether consent to be determined objectively or subjectively. DAMAGES – personal injury – trespass to the person – sexual assault – sexual intercourse without consent – aggravated damages – whether aggravated damages can be awarded for manner in which the trial was conducted by the appellant – whether aggravated damages can be awarded on grounds not advanced by the respondent. APPEAL – Appeal from the Master – whether the Master erred in finding that the appellant had not proved that the respondent consented to sexual intercourse – whether the appellant was afforded procedural fairness on the issue of aggravated damages – appeal partially upheld – judgment varied. |
Cases Cited: | Arthur v Anker [1996] 2 WLR 602, Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 |
Texts Cited: | Peter W Young, The Law of Consent (The Law Book Company Limited, 1986) |
Parties: | Michael Moon (Appellant) Sharon Whitehead (Respondent) |
Representation: | Counsel Mr AJ Bartley with Mr FJ Tuscano (Appellant) Mr Steven Hausfeld (Respondent) |
| Solicitors Ken Cush & Associates (Appellant) Snedden Hall & Gallop (Respondent) | |
File Number: | ACTCA 1 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Master Harper Date of Decision: 5 December 2013 Case Title: Sharon Whitehead v Michael Moon Citation: [2013] ACTSC 243 |
Murrell CJ and Burns J:
On 5 December 2013, Master Harper entered judgment for the respondent (the plaintiff below) against the appellant (the defendant below) in the sum of $668,856.00, including $10,000.00 for aggravated damages, together with costs. According to the Amended Notice of Appeal filed in Court by leave on the day of the hearing, the appellant now appeals from the orders made by the Master on the following grounds:
a.The Court below erred in finding that the defendant did not have the consent of the plaintiff to have sexual intercourse with her;
b.The Court below erred in finding that the defendant did not have the plaintiff’s permission to enter her bedroom, to kiss her;
c.The Court below erred in finding as a matter of law, there was a trespass to the plaintiff;
d.The Court below erred in dealing with the issue of consent and without consideration of the elements which must be determined before a finding could be made out;
e.The Court below erred in finding that the defendant did not have the consent of the plaintiff to have sexual intercourse with her as the learned Master found he was satisfied the plaintiff kissed the defendant back and that she played a part in the removal of her pyjamas and underpants;
f.The Court below erred in finding the defendant did not have consent as the learned Master found and accepted that the defendant believed that he had the plaintiff’s consent to have sexual intercourse with her and further found and accepted the plaintiff’s behaviour was such that the defendant was able to assume that he had her consent to have intercourse with her;
g.The Court below erred in finding that the plaintiff agreed to have sexual intercourse with the defendant under duress;
h.The Court below erred in dealing with the issue of duress in only one sentence and without consideration of the elements which must be determined before a finding of duress could be made out;
i.The Court below erred in finding the defendant committed a trespass to the plaintiff as the adopted process of reasoning was based solely on the state of the mind of the plaintiff;
j.The finding of trespass to the plaintiff was against the evidence and the weight of the evidence;
k.The Court below erred when assessing the plaintiff’s past sexual history when considering what did or did not happen in relation to the alleged trespass;
l. The Court below erred in analysing the credit of the plaintiff;
m. [ground withdrawn];
n.The Court below failed to appreciate the past sexual history of the plaintiff in assessing what did or did not happen in relation to the alleged assaults;
o. [ground withdrawn];
p. [ground withdrawn];
q. [ground withdrawn];
r. [ground withdrawn];
s.The Court below erred in finding this was a case where a small amount was appropriate by way of aggravated damages.
The appellant seeks orders that the appeal be allowed and that judgment be entered for him against the respondent, or that the matter be remitted to the Court below for a new trial. In the course of the appeal, the appellant made it clear that his primary position was that the matter should be remitted for a new trial.
The pleadings before the Master
The respondent’s claim was expressed as one of assault and battery. The respondent pleaded during the evening of 13 August 2007, after the respondent had retired to bed in an apartment she and the appellant were sharing in Sydney for the duration of an interstate work conference, the appellant came into her bedroom uninvited and, without her consent:
(a)lay on top of her while she was in bed;
(b)kissed her on her mouth;
(c)removed her pyjamas and underwear;
(d)fondled and kissed her breasts;
(e)fondled other parts of her body; and
(f)engaged in sexual intercourse with her by placing his penis in her vagina.
The appellant did not dispute that this sexual contact occurred with the respondent, but defended the respondent’s claim on the basis that the respondent had consented to him engaging in this conduct with her. As such, the real issue before the Master was a narrow one, being whether the respondent had consented to engaging in this sexual conduct.
The factual background
Most of the facts were not in dispute and we gratefully draw upon the appellant’s written outline of submissions and chronology in setting out the facts. In August 2005, the respondent commenced work at the Department of Immigration and Multicultural Affairs, where the appellant was also working, and met the appellant for the first time. On 1 November 2006, the appellant and the respondent visited sex shops in Fyshwick during their lunch break, and then returned to work and engaged in intimate activity in an elevator and then engaged in sexual activity short of penile-vaginal intercourse in a boardroom. The appellant also gave the respondent a vibrator as a present.
On 3 November 2006, the respondent ceased work at the Department of Immigration and Multicultural Affairs and commenced work at the Department of Veterans Affairs. On 8 November 2006, the appellant and respondent had lunch at a restaurant and afterwards engaged in sexual activity, again short of penile-vaginal intercourse, in the respondent’s car at Lake Ginninderra. In December 2006, the appellant and the respondent attended a Christmas function in Belconnen, after which the appellant walked the respondent to her car and kissed her goodbye.
In January 2007, the appellant began working at the Child Support Agency. In March 2007, they met for coffee near the respondent’s office in Woden, but no physical or sexual contact took place. In May 2007, the appellant asked the respondent to lunch to talk about the prospects of her coming to work at the Child Support Agency. In the course of the meeting, the respondent told the appellant that, if she came to work at the Child Support Agency, she was not going to sleep with him. She told him that she did not want a relationship with him and that he should have more respect for his current partner.
On 6 August 2007, the respondent commenced work at the Child Support Agency under the appellant’s supervision. On 13 August 2007, the appellant and respondent flew from Canberra to Sydney to attend a two day conference commencing 14 August 2007. Prior to attending the conference, they had agreed that they would share a two-bedroom, two bathroom apartment while they were in Sydney. It was agreed that each would have their own bedroom. The respondent gave evidence that it was also agreed that each would have their own bathroom. It was uncontested that, on their first night in Sydney, the appellant and respondent consumed alcohol and spent time looking through a number of sex shops in Oxford Street. When they returned to their apartment, the appellant entered the apartment while the respondent remained downstairs at the front of the apartment complex to have a cigarette. The respondent entered the apartment approximately five to ten minutes later. The respondent then went into her bathroom to have a shower. The appellant then entered her bathroom while she was in the shower and asked to soap her back. The respondent said that she rejected his offer and that the appellant left immediately. On the appellant’s evidence, he kissed the respondent on the lips before leaving the bathroom.
It was the evidence of both the appellant and the respondent that the appellant entered her bedroom once she had finished showering and she was in bed with the lights out. It was the appellant’s evidence that he entered the respondent’s bedroom wearing black boxer shorts and sat on the edge of her bed. The respondent gave evidence that the appellant was naked when he entered her room and that he climbed on top of her and requested a good night kiss. The respondent also gave evidence that she repeatedly told the appellant to “get out”. The appellant denied that the respondent ever used those words. The respondent testified that she was scared of the appellant and was worried about the possibility of losing her job. She said that the appellant continued to kiss her, and that she was pinned under his weight and could not hold him up. She said that by then she felt resigned, as the appellant had not left as requested. She said that her pyjama top came up around her neck and over her mouth, causing her to have difficulty breathing. She then removed her pyjama top. Sexual intercourse then took place.
It was, of course, the contention of the respondent that she had made known to the appellant that she was not consenting to sexual intercourse, but that she ceased protesting when he did not desist because she was scared of him and concerned about any impact rejecting the appellant would have on her employment. The appellant denied that the respondent said anything to him to make him believe she was not consenting. He agreed that the respondent had never explicitly stated that she was consenting to sexual activity on the night of 13 August 2007, but submitted that her consent was to be inferred from her conduct.
Both the appellant and the respondent gave evidence that they attended the conference the next day and went out for a meal at Kings Cross that night. They returned to the apartment and watched a movie before separately going to bed. They again attended the conference the following day, before flying separately to Canberra that afternoon. The respondent testified that, when she got home, she was feeling upset about what had happened in Sydney and did not know how she was going to deal with it. She rang a counsellor who advised her to go to the Canberra Rape Crisis Centre, but she did not follow that advice because she did not want anyone knowing what had happened. She returned to work on 16 August 2007 and realised that the presence of the appellant meant that she could not put the incident out of her mind as she had initially thought she could. She did not attend work on Friday 17 August 2007 and realised over the weekend that she could not return to the workplace. She felt suicidal. She telephoned her counsellor on Monday morning and they went together to the Canberra Rape Crisis Centre. While she was at the Centre, a work colleague apparently contacted the police and reported that she had not been at work and was not answering telephone calls. The police went to her house and forced entry. They telephoned her parents in Victoria to say that she was missing. Her parents came to Canberra to look after her. After having made contact with the respondent, the respondent’s mother contacted the police and said that the respondent wanted to report the incident in Sydney. She was referred to the New South Wales Police. The respondent and her mother subsequently attended the Queanbeyan Police Station and made a complaint. Ultimately, however, she told police that she did not want to take the matter any further.
It was the appellant’s contention that, in a number of respects, the statement given to the New South Wales Police by the respondent was inconsistent with the evidence that she gave before the Master. In particular, the appellant referred to the part of the statement concerning events after he entered her bedroom and before intercourse took place and in which the respondent said, “I don’t remember saying anything, I was feeling resigned and annoyed that I had said ‘no’ and he hadn’t listened and I was scared that if I said ‘no’ at this point, what would that do to our working relationship.” The appellant submitted that this was inconsistent with the evidence of the respondent before the Master that she had told him to “get out” on multiple occasions before sexual intercourse occurred.
On 19 November 2007, the appellant participated in a recorded interview with an investigator conducting enquiries on behalf of the Government Insurance Office in relation to a workers’ compensation claim made by the respondent. He admitted that sexual activity occurred between himself and the respondent on the night of 13 August 2007 in Sydney, but maintained that the respondent consented to that activity.
Trespass to the person
Whilst the respondent’s case was pleaded in both assault and battery, it was effectively conducted as an action in battery. The appellant accepted that absence of consent is not an element of the torts of assault or battery which must be proved by the plaintiff. Once an intentional interference with the plaintiff’s physical integrity is proven, the defendant is liable unless he or she establishes one of the available defences, including consent. In the present case, it was accepted that there was intentional physical contact between the appellant and the respondent, with the result that the appellant was liable in battery unless he proved on the balance of probabilities that the respondent had consented to that contact. As McHugh J expressed it in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 311:
The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a person’s right of bodily integrity. Other persons do not have the right to interfere with an individual’s body unless he or she proves lack of consent to the interference.
Senior counsel for the appellant (who was not trial counsel) initially submitted during oral submissions on the appeal that the question of consent was to be considered objectively. He submitted that, in order to determine whether consent to an intentional tort such as assault was established, the tribunal of fact needed to examine all of the circumstances including, but not limited to, the state of mind of each of the participants. He ultimately agreed that the proposition he was advancing was that the test of whether there was consent was whether a reasonable person observing the situation would have considered there to be consent. Senior counsel for the appellant did not refer the Court to any authorities supporting this proposition, and we have been unable to identify any ourselves. While counsel appeared to resile from this position later in his oral submissions, it is nevertheless appropriate to say something about this issue.
In “The Law of Consent”, The Law Book Company Ltd, 1986, the learned author Peter Young, a judge of the Supreme Court of New South Wales, refers at 146-147 to an unreported decision of the NSW Court of Appeal in Connell v Commonwealth (unreported, New South Wales Court of Appeal, Glass J.A., 23 September 1982), which is on point:
The plaintiff was an apprentice in the Royal Australian Navy and was undergoing a training course. After the day’s activities, an apprentice whose name was Cook and who was about to have a birthday, was strapped to a stretcher and lowered from a bridge seven feet down into a stream which was approximately six to nine inches deep. This started as a joke and the officer in charge thought it was a good way in which the trainees could let off steam and at the same time receive training in the use of the stretcher. However, skylarking broke out, and a number of trainees were thrown or pushed over the bridge into the stream in full view of the officer in charge. The plaintiff was pushed, but his foot caught on the stringer of the bridge and he landed head first in the bed of the creek. It was argued that a belief on the part of the person who pushed the plaintiff that the plaintiff was consenting would constitute a defence to an action in trespass. Glass J.A., giving the judgment of the court said:
“There is no doubt that consent is a defence to an action of trespass. Whether it is for the plaintiff to disprove consent or for the defendant to prove leave or licence need not be presently determined. The judges in Christopherson v Bare (1848) 116 E.R. 554, expressed conflicting opinions. Mr Mason has referred us to Coward v Baddeley (1859) 157 E.R. 927, but that decision in my view offers no support for the proposition that a belief by the defendant that the plaintiff consented to the trespass constitutes a defence. The most that can be said is that the defendant may urge the existence of such a belief in disproof of any negligence on his part.”
Negligence is assessed by reference to the standards of reasonable people. If, as initially suggested by the appellant, consent as a defence to an intentional tort such as battery is also to be assessed by reference to the standards of reasonable people, it would follow that the belief of the defendant in Connell v Commonwealth that the plaintiff consented to the physical contact would be relevant to the defence of consent, which is clearly contrary to the decision of the Court of Appeal in that case.
Consent may be expressed or it may be inferred from conduct. For example, entry onto premises by a person who has clear notice of the fact that egress from the premises, by the person or their property, may be contingent on payment of a fee may lead to an inference that the person has agreed to pay that fee, and that they have consented to the reasonable restraint of their person or property, as the case may be, until the fee is paid. In Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, the plaintiff entered onto a private wharf at the entrance to which there was affixed a notice that a fare of one penny must be paid by all persons entering or leaving the wharf, whether they had travelled on the company’s boats or not. The plaintiff paid his penny to enter the wharf through a turnstile. Having missed his boat, he attempted to leave the wharf through another turnstile but without paying a further penny. Servants of the appellant company endeavoured to detain him, but he eventually succeeded in forcing his way through a small opening beside the turnstile. He brought an action against the company for assault and false imprisonment. The plaintiff was successful at first instance. On appeal to the High Court, this judgment was overturned on the basis that, in part, it could be inferred from the plaintiff’s actions in entering the wharf in the knowledge of the conditions of entry that he consented to being subject to those conditions, which included a right on the part of the company and its servants to detain him until he had complied with those conditions. Similarly, in Arthur v Anker [1996] 2 WLR 602, the Court of Appeal held that a car owner could not maintain an action for tortious interference with his car based upon the owner of a private car park clamping the wheels of his car where the car owner was aware of notices at the entry to the car park that vehicles parked without authority would be clamped and a release fee would be charged. The Court of Appeal held that, by voluntarily accepting the risk that the car might be clamped, the car owner also accepted the risk that it would only be released on payment of the reasonable cost of clamping and removing the clamps and accordingly had, by inference, consented to the otherwise tortious act of clamping the car and its detention until payment. These cases may be contrasted with the decision in Vine v Waltham Forest London Borough Council [2000] 4 All ER 169, where the Court of Appeal held it could not be inferred that the owner of a motor vehicle had consented to having her car clamped, and to having to pay a fee for the removal of the clamps, in circumstances where she did not see the notices warning that any vehicle left unattended would be clamped or towed away, and would only be recoverable on payment of a fine.
In Arthur v Anker, Sir Thomas Bingham MR, with whom Neill LJ agreed and Hirst LJ agreed on this issue, said, concerning the question of consent as a defence to intentional torts:
It is suggested (see Clerk & Lindsell on Torts, 17th ed. (1995), pp 82 – 83, paras. 3 – 33, 3 – 34) that where intentional torts are concerned it may be more appropriate to speak of consent than of volenti, but the distinction does not appear to be crucial:
“Consent if present negatives liability. What must be established is that it was a consent freely given and extended to the conduct of which the plaintiff now complaints.”
In none of the above decisions was there any enquiry as to whether a reasonable person observing the situation would have considered there to be consent, nor was there any finding made on this issue. In cases of consent proved by inference, it will often but not inevitably be the case that there was no actual conversation about consent prior to the prima facie tortious act of the defendant. In some cases, such as the present, there will be direct evidence from the complainant that they did not consent to the interference with their person, but the other party may dispute that evidence and may adduce evidence to establish either that the complainant expressed their consent or that their consent should be inferred from their actions. If consent was to be determined in the manner suggested by the appellant, it would be expected that this would have been apparent in those authorities which consider the question of consent inferred from surrounding circumstances. The authorities do not approach the question of proof of consent in this way.
A significant impediment to the appellant’s submission is the fact that innocent mistake, and even reasonable mistake, is not generally a defence to an intentional tort. In Basely v Clarkson (1681) 83 ER 565, the defendant entered onto the plaintiff’s land and cut and carried away grass from the plaintiff’s land. The defendant’s land was adjacent to that of the plaintiff. The defendant pleaded that he had mowed the plaintiff’s land by mistake, believing it to be his land. It was held that the defendant’s misapprehension was irrelevant. Similarly, in Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714, it was held that a mistaken, albeit reasonable, belief that a prisoner was not due for release was no defence to an action for false imprisonment. Addressing an argument that an action in trespass is only available on proof of fault on the part of the defendant, Clarke JA said at 743:
The argument is in my opinion misconceived. The trespass in this case is the unlawful detention of the appellant. The first respondent intended to detain him and its conduct should therefore be regarded as intentional. In these circumstances the question of negligence or fault does not arise... [W]here the trespass is intentional there is no occasion to consider underlying fault or whether the defendant was negligent. Furthermore it is not a necessary element of assault (and battery) that the defendant intended to injure the plaintiff... In the context of trespass by way of false imprisonment it is the intention to detain which is important. If one couples that intention with the unlawfulness of the detention the tort is complete. There is no call to consider negligence. It is irrelevant. Similarly the lack of awareness that the detention is unlawful is irrelevant.
It is, we believe, impossible to reconcile the proposition that a reasonable mistake will not found a defence to an intentional tort such as false imprisonment or battery with the proposition that consent, as a defence to those torts, is to be determined objectively. We also note that this is an area of the civil law which has been traditionally closely aligned with the criminal law, and there can be no doubt that lack of consent as an element of the offence of assault is not proven objectively, based upon what a reasonable person would have considered, but is only proven by establishing the actual state of mind of the complainant whether by direct evidence or by inference. For these reasons, we reject the proposition initially advanced by the appellant that the answer to the question of whether the complainant was consenting to the sexual acts performed by the appellant was to be determined objectively, taking into account all of the circumstances including of the states of mind of the appellant and the respondent.
The nature of this appeal
Neither party addressed the Court at any length with respect to the nature of this appeal, but it is desirable to briefly set out the applicable principles. The nature of this appeal was set out by Dowsett J in Gaundar v Hogan [2014] ACTCA 4 at [5] – [6]:
It seems to be common ground that the appeal is by way of rehearing. The appellant submits that on such an appeal, “the Court is obliged to conduct ‘a real review of the trial’ and the judge’s reasons and give ‘the judgment which in its opinion ought to have been given in the first instance’”. The quoted passage comes from the decision of this Court in Australian Capital Territory v Crowley & Ors [2012] ACTCA 52 at [5]. Whilst it may be correct as far as it goes, it does not go as far as the appellant’s submissions might imply. There are at least two limitations upon it. The first limitation appears from the decision of the Full Court of the Federal Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21] – [30]. The case demonstrates that error must be shown before an appellate court is called upon to consider the appropriate judgment to be given. As Allsop J observed at [25], on some occasions the appellate court may not be convinced that it is in as good a position as the primary judge to assess a particular aspect, and so may be reluctant to find error. Further, a demonstrated error does not necessarily lead to a review of all aspects of the trial, but only to review of any part of the judgment which may be infected by the error.
As to the second limitation some aspects of a case may allow for more than one “correct” answer, although the “correct” answer may fall within a range. Again, an appellate court will not intervene to substitute its views for that of the primary Judge, unless error is first shown.
In Fox v Percy (2003) 214 CLR 118, the majority (Gleeson CJ, Gummow and Kirby JJ) said at [22] – [23] concerning an appeal by way of rehearing:
The “rehearing” does not involve a completely fresh hearing by the appellate court of all of the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of the case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Citations omitted)
The Master’s decision
The Master set out the evidence given by both the appellant and the respondent at some length before determining the issue of liability. He considered the respondent to be an honest and truthful witness, who made no attempt to embellish her evidence and who was willing to give evidence against her own interest. The Master considered the evidence she gave to be generally consistent with the description of events she had given shortly after the incident. He noted that her evidence and the contents of her previous statements were not exactly the same, but he considered any discrepancies to be minor and that the general picture of what happened at the apartment in Sydney was consistent throughout.
In contrast, the Master found the appellant’s evidence in court to be inconsistent in a number of respects with the statement that he had previously given to the insurance investigator in November 2007. The Master was clearly reluctant to find that the appellant had lied in his evidence, and hypothesised that a man of the appellant’s sexual experience may have confused some of the things which happened on 13 August 2007 with experiences he had at other times with other women. The Master was, however, satisfied that the appellant deliberately falsified his account of what happened on 13 August 2007 in his statement to the insurance investigator. The Master was satisfied that the appellant’s version of the respondent taking an active part in the sexual activity, including performing fellatio on him, was completely inconsistent with the respondent’s naivete and sexual inexperience. He also rejected the appellant’s statement to the insurance investigator that the respondent had told him that she had previously seduced a former superior.
The Master accepted the respondent’s evidence that, in Sydney, she had reminded the appellant of their agreement not to engage in further sexual activity and that she rebuffed physical advances he made before they returned to their apartment on the night of 13 August 2007. He further accepted that the appellant had entered the respondent’s bathroom naked when she was in the shower, and that she told him to leave. He also accepted that the respondent closed the door of her bedroom immediately before going to bed. The Master then found that the appellant came into her bedroom uninvited and “forced himself upon her”. He accepted that the respondent became resigned to her fate and did not fight him off, and that she kissed him and played a part in the removal of the pyjamas and underpants. He accepted that the appellant was probably misled by her behaviour into assuming that she was consenting to have sexual intercourse with him. The Master, however, made a clear finding that the respondent was not consenting to the sexual activity which occurred “after the first goodnight kiss, to which she agreed under duress to get rid of him”. He accordingly found that the appellant committed a trespass to the respondent’s person, entitling her to damages.
Submissions on appeal
The appellant’s submissions
The appellant did not address each ground of appeal individually. With respect to grounds (a), (b), (d), (e), (f), (g) and (h), he submitted that the Master did not take into consideration the whole of the evidence, and in particular the evidence of the previous relationship between the parties, and their previous sexual encounters, in determining whether the appellant had established that the respondent consented to the sexual activity on 13 August 2007. He further complained that the Master’s fact-finding fell into error because he failed to resolve inconsistencies between the respondent’s oral evidence relevant to consent and statements which she made to the police shortly after the alleged assaults. In particular, the appellant submitted that the Master had failed to provide adequate reasons for finding that the appellant had not satisfied the onus of establishing on the balance of probabilities that the respondent had consented. The appellant also submitted that the Master had not given reasons for dismissing the appellant’s evidence that he honestly believed he had the consent of the respondent to enter her bedroom.
With respect to grounds (g) and (h), the appellant submitted that the assertions made by the respondent in her oral evidence were inconsistent with the statement that she gave to the police, and that the Master had failed to give adequate reasons for his findings.
With respect to grounds (c), (i), (j) and (k), the appellant submitted that the Master’s finding that the appellant committed a trespass to the respondent’s person could only be supported by a finding that the appellant had not proven on the balance of probabilities that the respondent consented to engaging in the relevant sexual conduct.
With respect to ground (l), the appellant submitted that the Master’s assessment of the respondent’s credit was flawed because it was not based on an assessment of the totality of the evidence.
With respect to ground (n), the appellant submitted that the Master fell into error in failing to analyse and consider the past sexual history between the appellant and the respondent, and the uncontested evidence of them consuming alcohol and attending sex shops, in determining that the appellant had not proved on the balance of probabilities that the respondent consented to the relevant sexual activity.
Finally, with respect to ground (s), the appellant submitted that there had been a denial of procedural fairness in that the Master had awarded aggravated damages for conduct which had not been the basis of the respondent’s claim. In that regard, the Master awarded aggravated damages for the way in which the proceedings before him had been conducted by the appellant, and in particular the “highly confrontational and at times aggressive” cross-examination of the respondent. The appellant drew our attention to submissions made by counsel for the respondent at the close of the case before the Master in which he set out the basis for the claim for aggravated damages as the appellant’s denial of events to the insurance investigator and in the proceedings before the Master.
The respondent’s submissions
With respect to grounds (a), (b), (d), (e), (f), (g), (h) and (n), all of which essentially allege error on the part of the Master in finding that there was no consent by the respondent to the appellant having sexual intercourse with her on 17 August 2007, the respondent submitted that the Master had given reasons for his findings which did not reveal error. The respondent also submitted that the appellant’s concentration on the history of prior sexual activity between the parties was misguided, but that, in any event, the Master did consider those matters. The respondent submitted that the Master was clearly aware of the alleged inconsistencies between the evidence given by the respondent and the earlier statement she made to police, but that he was entitled to conclude that those inconsistencies were not material. The respondent further submitted that any honest and reasonable mistake on the part of the appellant as to whether the respondent had been consenting was irrelevant. Finally, the respondent submitted that the Master’s reference to “duress” was a “red herring”, as the pleadings did not allege duress and the Master had only used that term with reference to “the first goodnight kiss”.
With respect to grounds (c), (i), (j) and (k), the respondent agreed that the Master’s determination that the appellant had committed a trespass to the person of the respondent depended upon the finding by the Master that the appellant had not proved that the respondent was consenting to sexual intercourse. The respondent reiterated her position that there was no reason to disturb the Master’s finding of fact on this issue, and accordingly these grounds must fail.
With respect to ground (s), the respondent noted that the award of aggravated damages was not alleged to have been contrary to law. The respondent submitted that it was within the Master’s discretion to award aggravated damages, and that no error in the sense referred to in House v The King (1936) 55 CLR 499 had been identified.
Consideration
This was a case which turned upon a simple question of fact: did the respondent consent to sexual intercourse with the appellant on the night of 13 August 2007? Once it was admitted that sexual intercourse had occurred, which would be a battery unless committed with lawful excuse, the onus fell on the appellant to establish lawful excuse, in this case consent. The Master went beyond finding that the appellant had not discharged that onus, and made a positive finding that the respondent did not consent to sexual intercourse. The complaint that is now levelled at the Master’s decision on this issue, as refined by senior counsel for the appellant in his oral submissions, is that the Master’s reasons were inadequate. In particular, the appellant complains that the Master did not directly address the apparent inconsistency between the oral evidence of the respondent and the contents of the statement that she made to the New South Wales Police concerning whether she had said or done anything prior to sexual intercourse occurring to indicate to the appellant that she was not consenting. In assessing this complaint, it is important to consider the way in which the case was conducted before the Master. The respondent was extensively cross-examined by senior counsel then appearing for the appellant as to her credit. Curiously, she was never taken directly to the alleged inconsistencies and asked to explain them. The Master was left in the position of the appellant submitting that there were inconsistencies between the evidence given by the respondent and the contents of the statement made by her to the police. Accepting that there were apparent inconsistencies between these two versions as given by the respondent, all the Master could do was determine, in the absence of cross-examination about these inconsistencies, whether they were material inconsistencies. The appellant cannot complain that the Master took a broad brush approach to the issue, when that is the way the appellant dealt with the issue at trial.
The Master was satisfied that the “general picture” presented by the respondent had remained consistent, being a complaint that the sexual activity which occurred on the night of 13 August 2007 had been non-consensual. This was the single issue in the case. The Master was entitled to find that the respondent had not been consenting. There was evidence of the respondent making early complaints to co-workers, counsellors and to the police. There was evidence of significant psychological injury consistent with her version of events. There was also evidence that, within days of these events, she left the workplace she shared with the appellant and did not return.
The respondent was subjected to rigorous cross-examination and made numerous concessions which could only be seen as placing her in an unfavourable light in this type of proceedings. The Master assessed the respondent as being an honest and reliable witness. In contrast, he was not favourably impressed by the appellant, and gave reasons for reaching that conclusion. The issue before the Master was one which turned upon the question of the credibility of the appellant and the respondent.
Contrary to the submission of the appellant, it is clear that the Master took into account the history between the appellant and the respondent, and in particular the history of sexual contact between them, in reaching his conclusion on the question of consent. The Master was at pains to set out that evidence in some detail. In reaching his final conclusion that the respondent had not consented to sexual intercourse with the appellant on the night of 13 August 2007, the Master quite properly concentrated upon the events of that night. Whilst the history of consensual sexual activity between the parties was relevant, the real issue was what occurred on the night in question.
The submission that the Master fell into error by finding that the respondent had not consented to sexual intercourse while also finding that the appellant had probably been misled by the respondent’s behaviour into assuming that she did consent is misconceived. An error of fact on the part of the appellant, even a reasonably based error, is not a defence to the tort of battery. Once physical contact capable of amounting to a battery was admitted, it fell to the appellant to prove that that conduct was subject to a lawful excuse. In the present case, he had to prove on the balance of probabilities that the respondent consented to sexual intercourse. Consent, in this sense, means actual consent and is not established by proving that a reasonable person would have considered that the respondent consented. The Master applied the correct test in law. The appellant simply failed to prove on the balance of probabilities that the respondent was in fact consenting.
The finding of the Master that the respondent had consented to the first kiss in the bedroom on the night of 13 August 2007 “under duress” should not be read as implying a finding that consent by the respondent to that activity had been negatived due to duress. The Master clearly used the word duress in the sense that, while the respondent did not welcome the action, she was willing to consent to it if it meant that the appellant then left her alone. In any event, the Master’s comment was limited only to the first kiss in the bedroom and is irrelevant to the question of the respondent’s consent to the subsequent sexual intercourse.
We are satisfied that there was ample evidence upon which the Master was entitled to find that the appellant had not satisfied the onus of proving that the respondent had consented to sexual intercourse. There was, of course, the evidence of the respondent herself, which was accepted by the Master. There was evidence of early complaint. There was evidence of injury. In addition, there was evidence that the respondent had told the appellant in May 2007 that she was not willing to sleep with him, which she repeated to the appellant in the days leading up to 13 August 2007. In addition, there was the evidence that they agreed to share a two-bedroom apartment in Sydney, with each having a separate bedroom. There was also evidence that, shortly before the events in question, the respondent had rebuffed advances by the appellant after he entered her bathroom while she was showering. It is impossible to say that the finding of the Master that the appellant had not proven that the respondent was consenting to sexual intercourse was against the evidence or the weight of the evidence. This was a case in which credibility was very important, and the Master was clearly in the best position, having seen and heard the witnesses, to assess that issue.
For these reasons, the appellant’s appeal against liability must fail.
Turning to the award of aggravated damages by the Master, we are satisfied that the Master fell into error by failing to afford procedural fairness to the appellant. In his final submissions to the Master, counsel for the respondent did not seek aggravated damages based upon the manner in which the hearing before the Master had been conducted, but instead based the claim on the appellant’s continued denial of the respondent’s version of the events of 13 August 2007. The respondent submitted to us that the Master did not, in fact, award aggravated damages for the way in which the hearing was conducted by the appellant, but we think that a fair reading of the Master’s reasons is to the contrary. In our opinion, the award of aggravated damages should not be allowed to stand. Bearing in mind the modest award for aggravated damages made by the Master, the matter should not be remitted for further hearing on this issue.
Orders
We would uphold the appeal to the extent that the award of aggravated damages is set aside and the judgment in favour of the respondent is varied to $658,856.00.
We consider that the appropriate costs order would be that the appellant pay the respondent’s costs of the appeal, given that the respondent has been largely successful. However, we would stay this order for a period of 14 days to allow either party to make an application for a different costs order.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell and his Honour Justice Burns. Associate: Date: 22 May 2015 |
Penfold J:
I have read the judgment of Murrell CJ and Burns J in draft.
I agree with Murrell CJ and Burns J, for the reasons given by their Honours, that the appellant’s appeal against the Master’s finding of liability should be dismissed, and that his appeal against the award of aggravated damages should be upheld.
In particular, I agree with the effective concession of counsel for the appellant that the Master had asked and answered the right question about consent to the appellant’s trespass (albeit in the appellant’s view giving the wrong answer). The correctness of the Master’s conclusion that there was no consent is not affected by his Honour’s separate comment about the possibility that the appellant had been confused about the respondent’s intentions. I understand those comments as indicating that, although the appellant was liable for his deliberate tort, this did not exclude a recognition that his moral culpability might have been mitigated by the scope for confusion in his interactions with the respondent. I do not read the Master’s comments as indicating any confusion on his Honour’s part about the legal test to be applied to the question of liability.
I would join in the orders proposed by their Honours.
| I certify that the preceding four [4] paragraphs numbered [48] to [51] are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 22 May 2015 |
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