Parish v Director of Public Prosecutions

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 5830 of 2007

PHILLIP CHARLES PARISH	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2007
DATE OF JUDGMENT:	29 November 2007
CASE MAY BE CITED AS:	Parish v. DPP
MEDIUM NEUTRAL CITATION:	[2007] VSC 494

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CRIMINAL LAW - Assault – Consent – Indecent assault – Whether prosecution bear the onus of proving the defendant was aware the complainant was not consenting or might not be in a case of common assault – s.39 Crimes Act 1958 – s.23 Summary Offences Act 1966.

AG Reference (No. 6 of 1980) [1981] QB 715.
Albert v. Lavin (1981) 72 CrAppR 178;[1982] AC 546.
Boughey v. R (1986) 161 CLR 10.
Collins v. Wilcock [1984] 1 WLR 1172; [1984] 3 All ER 374.
Fagan v. Commissioner of Metropolitan Police [1969] 1 QB 439 at 444.
Fitzgerald v. Kennard (1995) 84 ACrimR 333; (1995) 38 NSWLR 184.
Gammon Ltd v. Attorney-General (Hong Kong) [1985] 1 AC 1.
He Kaw Teh v. R (1985) 157 CLR 523.
Proudman v. Dayman (1943) 67 CLR 536.
R v. Aitken, Bennett & Borson [1992] 1 WLR 1006.
R v. Benora (1994) 35 NSWLR 74.
R v. Court [1989] 1 AC 28.
R v. DMC (2002) 37 A.Crim.R. 246.
R v. Jones (1986) 83 CrAppR 375.
R v. Kimber [1983] 1 WLR 1118.
R v. Kuckailis [2001] NSWCCA 333.
R v. Morgan [1976] AC 182.
R v. Nazif [1987] 2 NZLR 122.
R v. Reynhardt (1962) 107 CLR 381.
R v. Saragozza [1984] VR 187.
R v. Whelan [1973] VR 268.
R v. Williamson [1969] VR 698.
Sherras v. De Rutzen [1895] 1 QB 918.
Thomas v. The King (1937) 59 CLR 279.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T. Kassimatis	Tony Hargreaves & Partners
For the Respondent	Mr C.J. Ryan SC	Office of Public Prosecutions

TABLE OF CONTENTS

Grounds of appeal............................................................................................................................. 2

History of the legislation on indecent assault.............................................................................. 8

Appellant's submissions................................................................................................................. 11

The elements of indecent assault.................................................................................................. 15

Case law............................................................................................................................................. 16

Respondent's submissions............................................................................................................. 24

State of mind and rape.................................................................................................................... 28

Defence of reasonable mistake of fact......................................................................................... 34

Unlawful assault per se and public interest............................................................................... 35

Conclusion......................................................................................................................................... 36

HIS HONOUR:

I have before me a Notice of Appeal under s 92(1) of the Magistrates’ Court Act 1989 against the final order made on 27 March 2007 by Mr L. Martin, Magistrate, in the Magistrates’ Court at Ringwood whereby his Honour found there were two charges of unlawful assault made out against Phillip Charles Parish pursuant to s 23(1)(b) of the Summary Offences Act 1966.

Section 92(1) of the Magistrates’ Court Act 1989 provides:

“A party to a criminal proceeding (other than a committal proceeding) in the Court may appeal to the Supreme Court on a question of law, from a final order of the Court in that proceeding.”

As will be seen below, the question of law raised in this appeal does arise from a final order in the Magistrates’ Court.

On the appeal, Mr Theo Kassimatis of counsel appeared for the appellant, Mr Parish. Mr C.J. Ryan SC appeared as Senior Counsel for the respondent, the Director of Public Prosecutions.

Grounds of appeal

The questions of law raised are as follows:

(1) Did the learned Magistrate err when he ruled at the conclusion of the evidence and submissions that it was not an element of the offence of common or unlawful assault that the defendant -

(i) knew that or was aware of; or

(ii) was reckless as to whether

the complainant was not consenting?

(2) Did the learned Magistrate err at the conclusion of the evidence and submissions that the offence the subject of both charges had been proved?

The grounds of appeal are that:

(1) The learned Magistrate erred when he ruled at the conclusion of the evidence and submissions that it was not an element of the offence of common or unlawful assault that the defendant –

(i) knew that or was aware of; or

(ii) was reckless as to whether

the complainant was not consenting.

Mr Parish was charged with:

Charge 1: Indecent assault contrary to s 39(1) of the Crimes Act 1958;

Charge 2: Unlawful assault contrary to s 23 of the Summary Offences Act 1966;

Charge 3: Unlawful assault contrary to s 23 of the Summary Offences Act 1966; and

Charge 4: Indecent assault contrary to s 39(1) of the Crimes Act 1958.

The alleged indecent assault involved the defendant, Mr Parish, assaulting a 15 year old girl. The Magistrate accepted the complainant’s evidence, which was to the following effect. She said that on 6 January 2006 at about 5.00 o’clock in the afternoon she took a train from the city to Box Hill after spending time in the city with her boyfriend. Prior to entering the train, she noticed Mr Parish looking at her. On entering the carriage, Mr Parish sat diagonally opposite her in the typical four seat arrangement, that is, two seats on either side, facing her. There were very few other people in the carriage. Very soon after the train started its journey, Mr Parish pushed his calf against her calf. She tried to move her leg away from his. He also changed positions and sat directly in front of her, with his hands over his knees. He then placed his hands on top of her knees. At this stage she was looking out the window, trying to ignore him. He then rubbed his hands on top of her knees. She did not speak to him or attempt to change seats.

When she got to Box Hill, she waited back and allowed Mr Parish to alight first. She then stood beside the train to make sure that Mr Parish was away from her. She then proceeded to take the escalator at Box Hill Station to go up to where buses are and, as she was riding up the escalator, she felt a hand on top of her hand. She turned around and noticed that it was Mr Parish. Mr Parish was standing on the step below her and, as the escalator was going up, he rubbed her lower back and her upper buttocks. She said that she was scared and was unable to move through the people surrounding her on the escalators. Again she said nothing to him.

After finishing the escalator ride, she went looking for her sister who worked at the Baker’s Delight at the Box Hill station, and broke down into tears when telling her sister what had happened. Subsequently, on the recommendation of family members, she made a complaint to the police. Mr Parish was identified from CCTV photographs obtained from the Transit Authority.

On being interviewed, Mr Parish denied any recollection of the events on 6 January and said he had no recollection of the alleged incident with the complainant. On the other hand, Mr Parish did admit, in his record of interview, that he had rubbed his leg against girls on trains before. He said:

“I put my leg close to her and see if she doesn’t mind. And if she kind of does then I won’t do it anymore. She didn’t seem - - - I suppose at the time she didn’t seem - - - she probably didn’t seem to mind”[1].

[1]Transcript 40.

He was then asked the question: “Did it ever occur to you that maybe she might have been frightened and not know what to do?”, and he answered: “Err no at the time it didn’t”. He was further asked: “Why did you rub her leg with yours?”. Answer: “It was kind of … I’m not as you say a very confident person, I’m more of a touchy feely sort of person and that was kind of my way of trying to get to know her a little bit”. Question: “Is that a way … is that a way that you … does it excite you?”. Answer: “It wasn’t, it wasn’t sexual. It wasn’t for excitement or sexual. It was more a way of me trying to get to know her, to see if something would come out of it; a relationship or something”.

Later on he was asked: “When you say that you don’t remember it, and you say you have tried to meet women on the train before, how many times have you tried to do this? But you just don’t remember this time”. Answer: “I just don’t remember the day it doesn’t”. Question: “How many women have you tried to meet by rubbing their legs?”. Answer: “I don’t know. Maybe four”. Question: “Have you ever had any success?”. Answer: “Err, once”. Question: “Yeah? What, that turned into a relationship, did it?”. Answer: “Not exactly, but …”. Question: “Did you see this woman to be scared, quite frightened as to a person she doesn’t know by this sort of thing happening to her on the train?”. Answer: “Yes, I can see that”. Question: “Especially on the escalator as well, the same person gets off and rubs her on the bottom. Can you see she may be frightened and may be feeling a bit violated?”. Answer: “Yeah”.

As mentioned above, the learned Magistrate found that he accepted the complainant’s evidence in its entirety as to the conduct of Mr Parish. The learned Magistrate said as follows:

“I can therefore be satisfied as to the following elements of the charge of indecent assault: firstly, that the defendant touched [the complainant] as she described in her evidence, including placing his hands on her lower back and rubbing that area together with her buttock area. I can be satisfied as to the touching as described by [the complainant] that occurred on the train. Secondly, I can be satisfied that the defendant intended to touch [the complainant] both on the train and at the station. Thirdly, that I can be satisfied that he had no lawful justification for touching her, or put another way, [the complainant] did not consent to the touching, that she did not do or say anything to indicate her agreement, is sufficient in the circumstances; that she did not protest or physically resist, apart from looking away from the defendant, moving her legs in the confined space, does not mean that she consented to the touching. Fourthly, and as to the fifth element of the offence, or alleged offence, I can be satisfied that the touching on the escalator at Box Hill was an indecent - - - was in indecent circumstances. To rub the bottom or the buttocks of a 15 year old female who was a stranger to the person doing the touching is, in my view, by community standards an act which is offensive to the modesty and decency of the community generally.”

As to the fourth element, that is the defendant’s state of mind, the learned Magistrate found that ultimately he could not be satisfied that Mr Parish was aware that the complainant was not consenting or might not have been consenting.

Mr Parish’s defence arose out of his having been recently diagnosed with Asberger’s Syndrome. Evidence was given by Dr Nicole Reinhardt, who had been treating Mr Parish, about the nature of Asberger’s Syndrome, including that a person born with Asberger’s is born without the brain capacity to understand, interpret and act in the social world – they have to be taught in a concrete way the rules of social behaviour. Further, she said people affected by Asberger’s Syndrome are unable to pick up non-verbal cues – a subtle cue probably would not even register. Dr Reinhardt gave the opinion that Mr Parish would have been unlikely to have been aware that the complainant was not consenting to his actions.

During her evidence-in-chief, Dr Reinhardt said as follows:

Question: “Can you say what level of sexual understanding or development from your dealing with Mr Parish in the light of his condition, what level of understanding, appreciation, development he had in that area?”.
Answer: “At the time that I assessed Phillip and subsequent appointments I have had with Phillip, overseeing his treatment, Phillip had no understanding of how … he has no understanding of how to make same sex friends, just in a friendship way. For example, he doesn’t know how long it is you have to speak to somebody before they might be your friend. Or is that they have to offer their phone number to establish that they might be your friend. In terms of meeting a potential partner of the opposite sex, Phillip has no idea how that would happen or how he would come to have a sexual encounter with a person of the opposite sex. He had this idea that perhaps … he’s not good, he knows he’s not good at expressing himself verbally. Pragmatics, part of the disorder, he was aware he’s not good with words, so had an idea that perhaps the way that you do it is you might use your hands … and that might be a way of … and if somebody doesn’t object, that might mean that they want to be your girlfriend. He didn’t know, when he had discussions about this, that you would interact with that person verbally, and that all the sophisticated steps that are involved in meeting a potential partner. He had no idea, so again, an early primary school aged concept.”

Under cross-examination, Dr Reinhardt was asked a question in relation to the fact that the complainant moved away from Mr Parish and there was a break before she had gone up the escalator. Dr Reinhardt said:

“The interpretation of that behaviour for a person with Asberger’s disorder … might be: M’hm, she might be interested, she might have enjoyed sitting next to me, em, I’ll follow her and see if I can get any more data to enter into my information about that social interaction … em … again unless there was this pronounced verbal and non-verbal communication that this isn’t OK in concert … would he have understood that this wasn’t OK for that person. Remembering at the same time that a person with Asberger’s disorder cannot interpret and understand other subtle cues that we would have. So, for example, tense body posture that the person, the victim, would have been no doubt showing … where her eyes were looking … all of that would have just been … it wouldn’t have even gone into Phillip’s thinking, … (indistinct) (long pause). I might just add, I’m giving you clinical anecdotes and observations, but em there are hard empirical data to show that people with Asberger’s disorder cannot pick up cues.”

The learned Magistrate found there was no case to answer on charge 1, the indecent assault on the train, in that the prosecution had not established a sexual connotation to the assault or that Mr Parish’s intent was sexual.

The nub of the defence on charges 2, 3 and 4 were that Mr Parish, by reason of his Asberger’s Syndrome, was not aware that the complainant was not consenting or might not have been consenting to his actions. Counsel for Mr Parish submitted that to make out the offence of indecent assault and common assault in the circumstances of this case the prosecution had to prove beyond reasonable doubt that the contact that was made was not consented to and was something that the defendant believed was not consented to or he thought might not have been consented to.

The learned Magistrate, after reviewing the evidence, held that he could not be satisfied that the defendant was aware that the complainant was not consenting or might not have been consenting. In those circumstances he dismissed the remaining indecent assault charge, charge 4, (that is the charge relating to the escalator incident). He went on to say, as to Charges; 2 (the incident on the train) and 3 (the incident on the escalator), the common assault charges, that he believed them to be an entirely different matter, saying that the defences to common assault are seldom the same and whilst consent can be a defence to assault, it has been confined to instances of, “say, sporting contact or perhaps restraint of liberty”. He said that on the evidence before him, clearly there was contact. He was satisfied that there was no consent with respect to that and that those charges had been made out.

Accordingly, it is his rejection of counsel’s submission that in the circumstances of this case the prosecution had to establish beyond a reasonable doubt that the defendant was aware the complainant was not consenting to Mr Parish’s contact with the complainant on the train and on the escalator or might not be which is said to be an error of law.

Section 23 of the Summary Offences Act 1966 provides, under the heading of “Common Assault”:

“any person who unlawfully assaults or beats another person shall be guilty of an offence”.

Section 39 of the Crimes Act 1958 provides:

“(1) A person must not commit indecent assault.
(2) A person commits an indecent assault if he or she assaults another person in indecent circumstances while being aware that the person is not consenting or might not be consenting.”

As indicated above, the defence of Mr Parish to the common assault charge was similar to the indecent assault charge: the prosecution must prove that the defendant was aware that the person was not consenting or might not be consenting.

History of the legislation on indecent assault

It is only necessary to go back as far as 1928 to deal with the issue currently before the court, and perhaps not even that. Section 51 of the Crimes Act 1928 provided:

“(1) Whosoever unlawfully and indecently assaults any woman or girl, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than three years.
(2) It shall be no defence to a charge for an indecent assault on a girl under the age of 16 years that such assault was made with the consent of such girl.
(3) Whosoever having been convicted of such misdemeanour as in this section mentioned afterwards commits such misdemeanour as in this section mentioned, shall be guilty of felony, and shall be liable to imprisonment for a term of not more than ten years”.

Section 55 of the Crimes Act 1957, No. 6103 of 1957, was the successor to s.51 and contained no material change to the statutory provision of indecent assault.

So, too, s.55 of the Crimes Act 1958, No. 6231 of 1958, made no material amendment to the provision. In 1991, however, there was a wholesale amendment of the laws relating to sexual offences made by the Crimes (Sexual Offences) Act 1991, No. 8 of 1991. Sub-divisions (8), (8A), (8B), (8C), (8D), (8E) and (8F) of Division 1 of Part 1 of the Crimes Act 1958 were substituted. In Part (8A), under the heading of “Rape and Indecent Assault”, s.42 provided as follows:

“Indecent assault
A person must not indecently assault another person.
Penalty: Imprisonment for five years.”

During that year, the Law Reform Commission of Victoria tendered its report number 43 entitled “Rape: Reform of Law and Procedure.”[2] The Commission considered that the Crimes Act should contain a clear and concise statement of the elements of the offences of rape and indecent assault.[3] The Commission recommended that the definitions adopted should be:
[2]Law Reform Commission of Victoria, Rape: Reform of Law and Procedure, Report No 43 (1991).
[3]Ibid para 9.

“Rape
A person commits rape if:
(1) he or she intentionally sexually penetrates another person without that person’s consent while being aware that the person is not consenting or might not be consenting; or
(2) after sexual penetration he or she does not withdraw from a person who is not consenting on realising that the person is not consenting or might not be consenting.

Indecent assault
A person commits indecent assault if he or she assaults another person in indecent circumstances while being aware that the person is not consenting or might not be consenting.”

The Commission considered whether the mental element of rape and indecent assault should be changed[4]. The Commission said in paragraph 22 as follows:
[4]Ibid para 22 and following.

“The mental element, or ‘mens rea’, of rape is that the accused:
· was aware that the other person was not consenting to being sexually penetrated; or
· was aware that the other person might not be consenting and intended to engage in the sexual act regardless of whether that person was consenting or not.

23. Under the common law, an accused is not guilty of rape if he honestly but mistakenly believes that the other person was consenting, even if a reasonable person would not have made the same mistake.”

The Commission recommended that the mental element of the offences of rape and indecent assault should remain[5]. Under the heading of “The General Principle and its Application to Rape”, the Commission included “assault” in the list of serious criminal offences where it was important to establish the intention to do the forbidden act. The Commission said as follows:

“It is one of the most important general principles of the criminal law that a person should not be convicted of a serious criminal offence unless he or she intended to do the forbidden act, was aware of the circumstances which made the act criminal. Murder, theft, rape, robbery, assault and drug offences are all defined that way. …”[6]

[5]Ibid para 26.

[6]Ibid para 28.

The Commission went on to say that this approach to culpability for serious offences has been strongly advocated by the High Court, the drafters of the modern criminal codes and by the major commentators[7]. Further, the Commission said that they strongly believe that the emphasis which the criminal law has traditionally placed on ‘mens rea’ is correct. The Commission said:

“The requirement that the prosecution prove ‘mens rea’ emphasises the importance of individual responsibility. It also recognises that ‘the criminal law is designed to punish the vicious, not the stupid or the credulous;[8] in the words of Brennan J of the High Court, it is ‘a humane protection for persons who unwittingly engage in prohibited conduct.’”[9]

[7]Ibid para 29.

[8]Ibid para 30. (Here the Commission cited Bray CJ in R v. Brown [1975] 10 SASR 139, 149).

[9]Ibid. (Here the Commission cited He Kaw Teh (1985) 157 CLR 523, 568).

The appendix to the report contained a draft Crimes (Rape) Bill. Subsequently, in 1991, the Victorian Parliament adopted the Crimes (Rape) Act 1991, No. 91 of 1991, and adopted substantially if not all of the Law Reform Commission’s report, including the new definition of “indecent assault” in the form in which it now appears in s 39 of the Crimes Act 1958.

The Second Reading Speech by the Honourable M.A. Layster said, amongst other things, that the Bill contains a clear and comprehensive legislative definition of the offences of rape and indecent assault. He said:

“The Bill retains the requirement that to be guilty of rape or indecent assault a person must have known that the other person was not consenting to a sexual act or was aware the other person might not be consenting. A person who makes an honest mistake even unreasonably, does not commit either offence.
The subjective test of criminal culpability reflects a fundamental principle in serious criminal offences that person is only guilty if he or she actually intended to cause the prescribed harm or knew that harm was likely to result from what he or she was doing. As the Commission points out in its detailed consideration of the issue, the principle has been strongly uphold by the High Court, by the drafters of the modern criminal codes, and by major commentators.”

The Commission’s report is of particular relevance to the issue before me as the Commission assumed that the fundamental principle of criminal law that a person should not be convicted of a serious criminal offence unless he or she intended to do the forbidden act, or was aware of the circumstances which made the act criminal, applied amongst other offences to assault[10]. The Second Reading Speech was to like effect.
[10]Paragraph 28.

It also should be noted that s.36 of the Crimes (Rape) Act 1991, No. 81 of 1991, in s.36, defined the meaning of “consent”, which would apply to the word as used in s.39.

The Crimes (Rape) Bill explanatory memorandum said that s.39 sets out the elements of indecent assault “which are the same as the existing offence”.

Appellant’s submissions

Counsel for Mr Parish submitted that the authorities establish that where consent is an issue on a common assault charge, the prosecution must establish that the defendant was aware that the complainant was not consenting or might not be consenting. Counsel for the appellant also submitted that mens rea should be assumed to be an element of the offence and that mens rea involved the defendant knowing the victim was not consenting or might not be.

Counsel for the Director of Public Prosecutions submitted that mens rea was established by proving the defendant intended to carry out the physical action constituting the assault. He further submitted that if consent was raised as a defence, then the prosecution bore the onus of rebutting that defence and could do so by proving the victim did not consent. He submitted that if consent was raised as a defence it was not necessary for the prosecution to prove the defendant was aware the victim was not consenting or might not be.

The appellant submitted that, just as it is settled law for the offence of indecent assault, that the prosecution must prove beyond reasonable doubt, that an accused knew or believed; or was at least reckless as to whether a complainant was not, or might not, be consenting; so, too, it is the case that those elements need to be proved for the alternative charge of unlawful or common assault.

The appellant submitted that both offences are truly criminal in nature, carrying terms of imprisonment for their breach. The appellant submitted that they each necessitate an actual or reckless knowledge or belief of the wrongfulness of the actus reas disclosed. On the importance of mens rea the appellant referred to Gammon Ltd v. Attorney-General (Hong Kong)[11] where Lord Scarmon, delivering the judgment of the Privy Council, said:

“In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submissions of the appellants’ counsel, which their Lordships gratefully acknowledge):
(1) There was a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
(2) The presumption is particularly strong where the offence is ‘truly criminal’ in character;
(3) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;
(4) The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;
(5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”[12]

[11][1985] 1 AC 1.

[12]Ibid 14.

The appellant says that the principle affirmed by the Judicial Committee in Gammon Ltd v. Attorney-General (Hong Kong) was approved and affirmed in the High Court of Australia in He Kaw Teh v. R[13] where Gibbs CJ said as follows in referring to a provision concerning the importation of a prohibited import:
[13](1985) 157 CLR 523.

“However the provision has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v. De Rutzen[14], as follows:
‘There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.’

There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: Proudman v. Dayman[15]; Bergin v. Stack[16]. However, the principle stated in Sherras v. De Rutzen has more recently been reaffirmed in the Judicial Committee in the House of Lords (Lim Chin Aik v. R[17]; Reg v. Warner[18] and Gammon Ltd v. Attorney-General (Hong Kong)[19]) and in this court: Cameron v. Holt[20]. The rule is not always easy to apply, its application presents two difficulties – first, in deciding whether the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression.”[21].

[14][1895] 1 QB 918 at 921.

[15](1941) 67 CLR 536 at 540.

[16](1953) 88 CLR 248 at 261.

[17][1963] AC 160 at 173.

[18][1969] 2 AC 256 at 272.

[19][1985] AC 1 at 12-13.

[20](1980) 142 CLR 342 at 346, 348.

[21]Ibid per Gibbs CJ at 528-529.

Further, Gibbs CJ said:

“The expression ‘mens rea’ is ambiguous and imprecise. The passage which I have cited from Sherras v. De Rutzen[22] suggests that it means ‘evil intention, or a knowledge of the wrongfulness of the act’. In Iannella v. French[23], Windeyer J approved of the statement in which Jordan CJ in R v. Turnbull[24] described the mens rea of an offender:
‘…assuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is that he knew that all the facts constituting the ingredients necessary to make the act criminal when involved in what he was doing’.

However, as Lord Diplock pointed out in Sweet v. Parsley[25], recklessness may be a sufficient mental element of some offences, and there was no single mental element that is common to all offences. As will be seen, it is a question whether negligence can amount to mens rea”.[26]

[22][1895] 1 QB 918 at 921.

[23](1968) 119 CLR 84 at 108-109.

[24](1943) 44 SR(NSW) 108 at 109.

[25][1970] AC at 162.

[26]He Kaw Teh v. R (1985) 157 CLR 523 per Gibbs CJ at 530-531.

The appellant also made reference to the decision of Brennan J in He Kaw Teh v. R[27], particularly where his Honour cited with approval the five propositions given by Lord Scarmon in delivering the judgment of the Judicial Committee in Gammon Ltd v. Attorney-General (Hong Kong)[28] referred to above. These references are also supported by the House of Lords in R v. Court[29] where the Court endorsed the principle in Sherras v. De Rutzen[30], cited by Gibbs CJ in He Kaw The v. R[31], in the case of indecent assault[32].
[27](1985) 157 CLR 523 at 564-566.
[28][1985] 1 AC 1 at 14.
[29][1989] 1 AC 28.
[30][1895] 1 QB 918 at 921.
[31](1985) 157 CLR 253 at 530-531.
[32][1989] 1 AC 28 at 41.

The appellant submitted that these authorities on mens rea establish that it is necessary for the prosecution to establish that the defendant intended to do the wrongful act, that is make contact with the complainant without her consent and that this is established by the prosecution proving beyond reasonable doubt that the defendant made contact while being aware that the complainant is not consenting or might not be consenting.

The elements of indecent assault

The appellant relied upon the elements of the offence of indecent assault and common law assault as specified in the Criminal Charge Book (Judicial College of Victoria)[33].
[33]See Part 7.3.2 – indecent assault, and in particular 7.3.2.2 – charge; Part 7.4.4.1 – common law assault – 7.4.4.1.2 – charge: assault – application of force.

The Criminal Charge Book says that in order to find the accused guilty of indecent assault there are five elements, all of which the prosecution must prove beyond reasonable doubt. The first element that the prosecution must prove is that the accused touched the complainant in the way alleged. The second element that the prosecution must prove is that the touching was intentional. The third element that the prosecution must prove is that there was no lawful justification for the touching, such as the consent of the complainant. The fourth element relates to the accused’s state of mind: The prosecution must prove that at the time of the touching the accused was either:

· Aware that the complainant was not consenting; or

· Aware that the complainant might not be consenting.

The fifth element that the prosecution must prove is that the touching occurred in indecent circumstances.

With respect to common assault involving the application of force, the Criminal Charge Book says that assault is a crime and that in order to find the accused guilty of assault, there are three elements, all of which the prosecution must prove beyond reasonable doubt. The first element that the prosecution must prove is that the accused applied force to the body of the complainant. The second element relates to the accused person’s state of mind. The prosecution must prove that the application of force was intentional. The third element that the prosecution must prove is that the application of force was without lawful justification or excuse.

The appellant makes the point that the element of “without lawful justification or excuse” is common to both offences and inclusively defined. That is correct. On the other hand, the Charge Book on “assault – application of force” does not say that on a charge of common assault involving the application of force where lawful justification such as consent is raised, that the prosecution must prove beyond reasonable doubt that the defendant was aware that the complainant did not consent to being touched or might not be consenting. The Charge Book only goes so far as saying as follows:

“If any lawful justifications, such as consent, self-defence, arrest or the lawful correction of children, are open on the evidence, add the following shaded sections. In this case, the defence argued that [insert evidence of lawful justification]. The prosecution argued [insert any counter-arguments]. Further, [if the excuse of ordinary social activity is open on the evidence, add the following shaded sections].
In this case the defence argued that while NOA did apply force to NOC’s body, this was done while [he/she] was carrying out the ordinary social activity of [insert evidence]. Under the law, force that is applied in the course of ordinary social activities is excusable. However, this excuse is limited to touching that is reasonable in our daily interactions. If the force that is applied goes beyond that, the accused will not have a lawful excuse.”

The references to the Criminal Charge Book are only of little assistance to the appellant’s case.

Case law

The appellant next submitted that the relevant case law provides persuasive authority for the proposition that the element of actual or reckless belief in absence of consent is an essential ingredient not only of indecent assault but one that is common to both indecent assault and common assault. The first case relied upon is R v. Benora[34], a decision of the Court of Criminal Appeal of New South Wales comprising Finlay, Abadee and Simpson JJ. The head note reads:

“On a charge of indecent assault contrary to s 61E(1) of the Crimes Act 1900, where consent is an issue and is raised on the facts, the trial judge should direct the jury that the Crown also has to prove that the accused was aware the complainant did not consent or was reckless as to whether the complainant consented or not.”

Section 61E(1) of the Crimes Act 1901 (NSW) provided:
“Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for ….”

[34](1994) 35 NSWLR 74.

It can be seen, therefore, that the New South Wales provision did not contain the express requirement that now appears in s 39 of the Crimes Act 1958 where it provides:

“A person commits indecent assault if he or she assaults another person in indecent circumstances while being aware that the person is not consenting or might not be consenting”.

As seen above, the words requiring the prosecution to establish awareness of not consenting were only added in 1991 and were said to not amend the existing law. The Victorian Act is in substance similar to the New South Wales Act in treating an indecent assault as merely an assault in indecent circumstances.

The appellant relied on observations made by Finlay J on assault simpliciter. Finlay J said:

“For there to be an assault, the law requires an intentional application of force to the person of another which is unlawful. For it to be an unlawful act of the accused, there must be no lawful justification for it. Consent in this case would be lawful justification or excuse. Moreover, to establish the guilty mind of the accused, the Crown must prove not only that the woman in this case did not consent but that the accused had a guilty mind in that he knew she was not consenting or, aware that she might not be consenting, nevertheless determined to touch her.”[35]

[35]Ibid 75.

Abadee J held to similar effect. He referred to the relevant ground of appeal which was in the following terms:

“Failing to direct the jury that they had to be satisfied beyond reasonable doubt in respect of each count that the accused was aware at the time of the incident that the complainant was not consenting or was reckless.”[36]

[36]Ibid 76.

The appellant submitted that Abadee J dealt with the matter as common assault or unlawful assault. Abadee J said:

“In the instant case the defence, as I have said, was that there was no unlawful assault all because in effect the appellant was saying: ‘I did it with the woman’s consent’. At the relevant time the complainant was almost aged 19 years of age.
In these circumstances the appellant submitted that the case is thus to be looked at as being one where there was really no issue as to indecency. Indeed, if there is no unlawful assault, because of consent, the issue of indecency would not arise. The term ‘assault’ involves the notion of want of consent. Thus in general terms it may be said that an assault with consent is no assault at all. This case thus concerns the mental element in the offence where the issue is lack of consent to the assault itself.”

Abadee J said that both the Crown and the appellant were unable to find any New South Wales authority and that the court’s independent researches showed no authority on the point[37]. He did, however, refer to R v. Whelan[38], a decision of Winneke CJ of the Supreme Court of Victoria concerning an indecent assault.
[37]Ibid 78.
[38][1973] VR 268.

In that case, the applicant was found guilty by a jury of indecent assault (upon a complainant aged sixteen at the time) but not guilty of rape or assault with intent to rape. The Full Court of the Supreme Court of Victoria held that the verdict of guilty on the indecent assault could not stand in view of the finding of not guilty on the rape. In quashing the conviction of indecent assault, Winneke CJ said[39] that once the jury had found the appellant not guilty of rape, thus negating absence of consent of the prosecutrix or the absence of belief by the appellant of non-consent on her part “it follows, in our view, that its verdict of indecent assault, an offence which, as we have said, also involved absence of consent or belief thereon on the part of the appellant as an essential ingredient, was inconsistent with its verdict of not guilty of rape”. The Full Court’s reasoning confirms that the offence of indecent assault did require the Crown to establish the defendant’s belief of non-consent before the Crimes Act 1958 was amended in 1991.
[39]ibid 270.

Abadee J referred to the decision of R v. Kimber[40] in which the Court of Appeal held in a case of indecent assault that the mens rea of the offence was the intent to use violence against the complainant without her consent and it followed that the prosecution had to prove such intent and, conversely, there was a good defence for the defendant to show that he had honestly believed that the complainant had consented to his actions. Abadee J noted that Brennan J cited R v. Kimber[41] with approval in He Kaw Teh v. R[42].
[40][1983] 1 WLR 1118.
[41][1983] 1 WLR 1118.
[42](1985) 15 CLR 523 at 575.

Abadee J also referred to R v. Nazif[43], where the New Zealand Court of Appeal considered a case where the accused was charged with the indecent assault of a sixteen year old girl. The accused alleged that the complainant consented. After referring to R v. Kimber[44] and other authorities, Summers J, who delivered the judgment of the court, said as follows:

“We are of opinion that, save in cases where it is otherwise provided by statute or where there are other more dominant public interest features, it would be contrary to principle that a person who believes the victim of an assault consented to it should be found guilty of assault. Where there is evidence of such belief it will be for the Crown to negative it. The reasonableness or otherwise of the grounds of such belief will be material to the question of whether the accused in fact held it.”[45]

The appellant laid stress on the reference by Summers J to assault simpliciter.

[43](1987) 2 NZLR 122.

[44][1983] 1 WLR 1118.

[45]R v. Nazif [1987] 2 NZLR 122 at 128.

Abadee J concluded as follows:

“A review of the authorities suggest that where consent is in issue and is raised on the facts, the trial judge should direct the jury that the Crown also has to prove that the accused was aware that the complainant did not consent or was reckless as to whether the complainant consented or not. The accused’s awareness that the complainant of an indecent assault is not or may not be consenting is an ingredient of the offence.
In the circumstances of this case, where there was an issue of consent, indeed that was what the case was essentially all about, his Honour should have directed the jury that the Crown was also required to prove that the appellant was aware at the time of each of the incidents that the complainant was not consenting or was reckless as to whether she was consenting or not.”[46]

Simpson J agreed with the orders proposed by Abadee J and his reasons therefor.

[46]R v Benora (1994) 35 NSWLR 74 at 79B-C.

The appellant also relied upon the decision in R v. Williamson[47], a decision of the Full Court of the Supreme Court of Victoria comprising Winneke CJ and Little and Menhenet JJ. In that case, Colin Gordon Williamson was presented before a Court of General Sessions upon a charge of unlawful and indecent assault of a girl under the age of sixteen years. After retirement, the jury returned to court and asked the trial judge whether it was open to them to bring in an alternative verdict of common assault. The trial judge directed that such a verdict was not open. The appellant was convicted of indecent assault as charged.
[47][1969] VR 698.

Winneke CJ, in delivering the judgment of the Full Court, said as follows:

“On a charge of common assault against a girl under the age of sixteen years, however, absence of consent is, of course, an essential ingredient of the offence. The offence of indecent assault charged against the appellant could, therefore, be committed with the girl concerned consenting, whereas in such a case the offence of common assault would not be committed. It follows that the lesser misdemeanour of common assault was not necessarily included in the misdemeanour of indecent assault as charged against the appellant, and the learned trial judge was accordingly correct in directing the jury that such a verdict was not open in the presentment. This does not mean that a verdict of common assault is never open on a charge of indecent assault, but it does mean that such a verdict is not open in those cases where the absence of consent is not an ingredient of the offence of indecent assault as charged in the presentment.”[48]

[48]Ibid 698.

In my view, R v. Williamson does not assist the appellant. It does not address the issue of whether or not the prosecution is required to establish that the defendant was aware that the complainant was not consenting or might not be consenting to being touched.

The appellant next relied upon Fitzgerald v. Kennard[49], a decision of the Court of Appeal of New South Wales comprising Kirby ACJ, Sheller and Cole JJA. The head note describes the facts as follows:

“K was convicted in the local court of an offence against s.61L of the Crimes Act 1900 (NSW). Whilst working as an electrician in the home of the complainant, he rubbed scars on the complainant’s legs; rubbed the complainant’s back; hugged her; rubbed her leg and moved his hands towards her bottom; attempted to touch her breasts and attempted to kiss her on the face. At the hearing, K stated that it did not enter his mind whether the complainant had consented to these acts. K was convicted by the magistrate.”

[49](1995) 84 ACrimR 333.

The court found that the Crown was required to prove that the appellant was aware, at the time of each of the incidents, that the complainant was not consenting or was reckless as to whether she was consenting or not[50]. Cole JA, under the heading of “Consent”, said as follows:

“It has always been the law that the onus is on the Crown to establish absence of consent if a prosecution of a sexual assault, or indeed any assault, arising from physical contact is to succeed. The mental ingredient required to be established by the Crown in such cases is an intention on the part of the accused to perform the act, be it of intercourse or other form of sexual or indecent assault without the consent of the victim or ‘willy-nilly not caring whether the victim consents or no’: DPP v. Morgan[51] per Lord Hailsham[52].” [My italics].

The appellant places weight on the reference by Cole JA to “any assault” and his statement that in such a case the Crown must prove the defendant’s intention to perform the act without the consent of the victim or “willy-nilly”.

[50]See Kirby ACJ at 337 where he expressly approves of Finlay J’s decision in Benora (1994) 35 NSWLR 74, Sheller JA at 343.9 where he also approved of what was said in Benora (1994) 35 NSWLR 74 at 80 and Cole JA at 351.

[51][1976] AC 182 at 215.

[52](1995) 84 ACrimR 333 at 351.

Further, Cole JA said:

“If the Crown proves, to adopt the words in Kimber, that the accused was ‘indifferent to her feelings and wishes’, that is, to whether she was or was not consenting, such that it can be said that he ‘couldn’t care less’ in that regard, recklessness in relation to consent is established. If the Crown establish to the satisfaction of the tribunal of fact, either the accused believed that consent may be absent, or that he was unaware whether consent was present or not and, uncaring in that regard, pressed on with his actions, in my opinion it would be established that the accused was reckless as to whether the complainant consented or not.
It follows, in my view, that, regarding consent, established failure by the accused to advert to the question of consent in cases of assault occasioned by physical contact, with the accused intending to and in fact proceeding with the offending acts, discharge the onus of proof on the Crown to establish the absence of consent to those acts so as to render them an assault within the meaning of s.61L of the Crimes Act.”[53]

The appellant relied on the reference by Cole JA to “the question of consent in cases of assault” and the obligation on the prosecution to prove that in cases of assault the defendant believed consent may be absent or uncaring in that regard.

[53]Ibid 353.

The appellant next referred to R v. DMC[54], a decision of the Court of Criminal Appeal of New South Wales comprising Hodgson JA, Hulme and Hidden JJ. This case dealt with assault simpliciter and the appellant argued it is direct authority on the issue before me. The appellant was charged with four counts of assault and one count of detaining with the intent to hold for advantage (kidnapping). The complainant was the appellant’s daughter and the first three counts of assault concerned incidents occurring during the period the complainant lived with the appellant. Following these incidents, the complainant went to live with her aunt and an apprehended violence order was taken out prohibiting the appellant having contact with the complainant. The fourth count (kidnapping) and the fifth count (assault) concerned an occasion when the appellant gained access to the apartment where the complainant was staying and took her away, grabbing her by the wrist in the process. The jury returned verdicts of guilty on the fourth and fifth (assault) counts, but was unable to reach a verdict on the other three. The appellant appealed from the convictions, contending that the trial judge failed to direct the jury as to the need to be satisfied that the contact was other than an incident of ordinary social intercourse and that the directions on both counts in relation to consent were deficient. The appeal was allowed.
[54](2002) 37 A.Crim.R. 246.

Hodgson JA, with whom Hulme J and Hidden J agreed, in dealing with the fifth count, that is, assault, said that Mr Dhanji submitted that the trial judge failed to direct the jury as to the need to be satisfied that the contact was other than an incident of social intercourse and also failed to direct the jury as to the need to be satisfied that the appellant knew the complainant was not consenting to the physical contact or was reckless as to whether or not she was consenting. Mr Dhanji relied upon R v. Benora[55], R v. Kuckailis[56] and Fitzgerald v. Kennard[57]. His Honour upheld the submission. He said:

“In my opinion, it was plainly open to the jury to find that the appellant’s grabbing of the complainant by the wrist was not an ordinary incident of social intercourse, in the circumstances referred to by the Crown prosecutor. However, in my opinion it is not correct to say that there was no real issue before the jury as to whether this could be regarded as an ordinary incident of social intercourse, as to whether the physical contact was without consent, and as to whether the appellant believed it was without consent.”[58]

[55](1994) 35 NSWLR 74.

[56][2001] NSWCCA 333.

[57](1995) 38 NSWLR 184.

[58](2002) 37 A.Crim.R. 246 at 251.

He also said that the directions were deficient to the jury in:

“… the failure to draw to the jury’s attention that the appellant should not be convicted unless the jury was satisfied beyond reasonable doubt that he had no belief that this kind of contact was consented to by the complainant.”

The appellant submitted that here is direct authority that in a case of common assault the prosecution must prove the defendant believed the contact was without consent.

The appellant also referred to R v. Aitken, Bennett & Borson[59], a case where three RAF officers were charged and convicted of inflicting grievous bodily harm upon a fellow officer. The appellant relies on the offence as involving an assault other than indecent assault. A flying officer was badly injured in a prank played on him by his fellow officers when they were all in a drunken state. The issue was whether a proper direction had been given by the judge advocate and, in particular, whether the judge advocate should have given a direction that, even if the flying officer had not consented to the prank, that it would have to be established that the defendant did not hold a genuine belief that Gibson (the officer) was consenting.
[59][1992] 1 WLR 1006.

Cazalet J, for the court (Farquharson LJ and Alliott and Cazalet JJ), held as follows:

“However, although it must, on the evidence, have been open to the court to find that the incident involving Gibson was per se unlawful, we do not consider, for the reasons submitted to us by Mr Butterfield, that this was so plain that the judge advocate was absolved from a direction that it was in the circumstances open to the court to find that the activities of the appellants were not per se unlawful. In this event the judge advocate should then have directed the court as to the necessity of considering whether Gibson gave his consent as a willing participant to the activities in question, or whether the appellants may have believed this, whether reasonably or not.”[60]

[60]Ibid 1020.

The court went on to say that the judge advocate should have given a direction which included the following:

“If Gibson did not consent, the application of force to him in the course of rough and undisciplined mess games is still not unlawful if a defendant held a genuine belief, whether reasonably held or not, that he was consenting, only if you are sure that Gibson did not in fact consent, and sure the defendant did not hold a genuine belief that he was consenting, would an assault be proved.”[61]

[61]Ibid 1021.

The cases referred to above and relied upon by the appellant support the appellant’s contention that the prosecution ought, in the circumstances of this case where the conduct was not per se unlawful, to have established that the defendant was unaware that the complainant was not consenting or might not be.

The appellant submits that the only element which properly distinguishes the two offences of indecent assault and common or unlawful assault is that of indecency; an element which he says is wholly objective in nature and an element proved by reference to the objective circumstances surrounding the alleged unlawful assault and not by reference to the state of mind of the accused. There is much force in that argument.

Respondent’s submissions

The DPP submitted that the assault in question is more properly described as a battery and can be constituted by the slightest intentional touching. The DPP referred to Archbold Pleading, Evidence and Practise in Criminal Cases 28^th Edition, paragraph 2636, where it is provided, under the heading of “Battery”:

“The term ‘battery’ means the actual application of unlawful force, however slight, to another, whether directly or indirectly. It includes beating and wounding. To beat, in the legal acceptance of the term, means not merely to strike forcibly with the hand, or a stick, or the like, but includes every touching or laying whole, however trifling, of another’s person or clothing, in an angry, revengeful, rude, insolent or hostile manner.”

The DPP also referred to the 42^nd Edition of Archbold, in particular paragraph 20-116, where it is said, under the heading of “Battery”:

“The mental element in the offence of battery is established by proof that the defendant intentionally or recklessly applied unlawful force to the person of another.”

Later, that edition says:

“In relation to the offence of ‘battery’, the fundamental principle, plain and incontestable is that every person’s body is inviolate. The law cannot draw the line between different degrees of violence and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having the right to meddle with it, in any of the slightest manner.”

Archbold refers to exceptions such as the correction of children, the lawful exercise of the power of arrest or the use of reasonable force when the necessity to act in self-defence arises and also the exception for the exigencies of everyday life.

The DPP referred to the 2007 edition of Archbold paragraph 19-175, which repeats in substance what was in the earlier editions about the nature of battery.

I note, however, that Archbold, 38^th Edition (1973) para 2634, provides:

“An assault is any act which intentionally – or possibly recklessly – causes another to apprehend unlawful violence. It is used to mean the actual or intended use of unlawful force to another person with out that other’s consent.”

This is the definition of James J in Fagan v. Commissioner of Metropolitan Police[62] approved by the Court of Appeal in AG Reference (No. 6 of 1980)[63] to which the Court said it would add “or any other lawful excuse”.

[62][1969] 1 QB 439 at 444.

[63][1981] QB 715 at 718 per Lord Lane CJ on behalf of himself and Phillips and Drake JJ.

The DPP submitted that from a fair reading of the evidence in this case it is hard to see how consent, as it is understood as a matter of principle when it comes to the issue of assault, was raised[64]. Nevertheless, the DPP’s main submission was that if consent was raised, the only onus thrown onto the Crown was to prove that the complainant did not consent[65]. In summary, what the DPP said was that its principal position is that consent was not raised, but that, if it is raised, it was merely incumbent upon the Crown to negative the issue of consent, not as to the state of mind of the appellant but as to whether consent was given or not[66].
[64]T43.
[65]T44, line 21.
[66]T48, lines 21-26.

The DPP relied for authority on Archbold 38^th Edition, paragraph 2644 under the heading of “Consent” where it is said:

“There are cases in which it is a good defence to an allegation of assault or battery that the person complaining thereof consents to the acts complained of. On the other hand, where a person is indicted for inflicting personal injury on another, the consent of the person who sustained the injury is no defence to the person who inflicted the injury, if the injury is of such a nature, or is inflicted in such circumstances, that its infliction is injurious to the public as well as to the person injured.”

And further, in paragraph 2644 it is stated:

“The burden of proving absence of consent on the part of the person alleged to have been assaulted lies upon the prosecution.”

The DPP also relied on the 42^nd Edition, paragraph 20-124, where a similar passage is repeated. Thus, the DPP alleges that if consent is raised as an issue, all that the Crown need prove is that in fact the complainant did not consent. The Crown say there is no obligation to establish any state of mind of the defendant that the complainant was not consenting or might not be consenting.

Finally on the authority of Archbold, the DPP referred to the 2007 Edition, paragraph 1918 dealing with the defence of consent. Again, Archbold says that on a charge of common assault, it is necessary for the prosecution to prove absence of consent. However, I note that Archbold refers to the decision of R v. Jones[67] and R v. Aitken[68] where it was said that even if consent was absent, a genuine belief that it was present would constitute a defence.
[67](1986) 83 CrAppR 375.
[68](1992) 1 WLR 1006.

The DPP relied on the High Court decision of Boughey v. R[69], and in particular the joint judgment of Mason, Wilson and Deane JJ, where they said as follows:

“There is strong authority for the proposition that the application of force to another, ‘be it never so small’, will constitute common law battery if it is ‘actually done to the Person of a Man, in an angry, or revengeful, or rude, or insolent Manner, as by Spitting in his Face, or any Way touching him in Anger, or violently jostling him out of the Way’: Hawkins, A Treatise of the Pleas of the Crown (1716), ch.LX11,s.2,p134). It has never, however, been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary general ingredient of an unlawful battery. … It was not, and could not properly be, suggested that the fatal and intentional application of force to the deceased’s neck in the present case constituted an ordinary incident of social intercourse. Nonetheless, it was submitted on behalf of the applicant that it would not have constituted common law battery unless it was accompanied by positive hostility or hostile intent towards the deceased, and that being so, it did not constitute unlawful conduct for the purposes of section 157(1)(c) unless such hostility or hostile intent were present. Is should be apparent from the foregoing that we are quite unable to accept that submission.”[70]

In my opinion, this passage does not address the issue of the necessary mental element on consent.

[69](1986) 161 CLR 10.

[70]Ibid 25.

The DPP relied on the decision of Cole JA in Fitzgerald v. Kennard[71] where his Honour cited Lord Ackner in R v. Court[72] where he referred to battery as being any intentional touching of another person without the consent of that person or without lawful excuse. The DPP submitted that lawful excuse would not include where the defendant thought the complainant was consenting when in fact he or she was not[73].
[71](1995) 84 ACrimR 333 at 348.
[72][1989] 1 AC 28 at 41-42.
[73]T54, line 21-22.

The DPP also relied upon the passage in Cole JA’s judgment where he referred to the decision of R v. Morgan[74] to hold that:

“The mental ingredient required to be established by the Crown in such cases [sexual or indeed any assault] is an intention on the part of the accused to perform the act, be it of intercourse or other form of sexual or indecent assault, without the consent of the victim or ‘willy-nilly not caring whether the victim consents or no’.”[75]

[74][1976] AC 182.

[75]Ibid 351.

I fail to see how that passage from Cole JA, applying the principle of R v. Morgan to any assault, provides assistance to the DPP’s argument in this case. On the contrary, it appears to me to support the appellant’s argument that the Crown must prove that the defendant was aware that the complainant was not consenting or might not be.

Next, the DPP relied upon Collins v. Wilcock[76], which involved a charge against a suspected streetwalker that she had assaulted a police officer in the execution of his duty contrary to the Police Act 1964 when she resisted being physically restrained by a police officer wishing to question her. It was held that the police officer had acted unlawfully in restraining the defendant. The charge was dismissed. The DPP referred to the judgment of Robert Goff LJ, who read the judgment of the court consisting of himself and Mann J where he said:

“We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person however slight may amount to battery. … But apart from the special instances where the control or constraint is lawful, broad exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who would move in society and so expose themselves to the risk of bodily contact. … Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.”[77]

[76][1984] 1 WLR 1172

[77]Ibid 1177.

Apart from that passage, there does not appear to be anything relevant in that case about the issue of the state of knowledge of the defendant. It appears to be a case about lawful justification.

The DPP then sought to distinguish the decision of R v. Bonora[78] by arguing that it and the authorities it relied upon are all dealing with indecent assault, not assault. It is true that R v. Bonora was a case of sexual assault, but it does include relevant observations about common assault.
[78](1994) 37 NSWLR 74.

State of mind and rape

The DPP then referred to R v. Morgan[79] and R v. Kimber[80]. The DPP submitted that those cases established that the obligation on the prosecution to prove the defendant was aware the complainant was not consenting or might not be had not been extended beyond indecent assault to apply to common assault.
[79][1976] AC 182
[80][1983] 1 WLR 1118 (CA).

In R v. Morgan[81], the issue of law raised was whether the judge was right in telling the jury that, if they came to the conclusion that the complainant Morgan had not consented to the intercourse in question but the defendants believed or may have believed that she was consenting to it, they must nevertheless find the defendants guilty of rape if they were satisfied that they had no reasonable grounds for so believing. The House of Lords held the judge’s direction was wrong and held that in rape the prohibited act is intercourse without consent of the victim, and the mental element of the offence is therefore the intention to commit that act or to commit it willy-nilly not caring whether the victim consents or not. A failure by the prosecution to prove this element involves an acquittal because the intent, an essential ingredient of the offence, is lacking and it matters not that it is lacking only because of a belief, not based on reasonable grounds.
[81][1976] AC 182.

In R v. Saragozza[82], the Full Court of the Supreme Court of Victoria held that the decision of the House of Lords in R v. Morgan[83] was the law in Victoria and it was to be followed in Victoria[84]. The court confirmed there was a distinction between the mental element of an offence and the true or substantive defence of reasonable mistake of fact. The court held that it was an element of the crime of rape that the accused either was aware that the woman was not consenting, or else realising that she might not be, determined to have intercourse whether she was consenting or not. They said that the conclusion was inescapable that a man who believes that a woman is consenting cannot be guilty of the offence, for the existence of this belief is inconsistent with the presence of the mental element of the crime[85].
[82][1984] VR 187.
[83][1976] AC 182.
[84][1984] VR 187 at 194 and 196.
[85]Ibid 193, lines 41-47.

In the case of R v. Kimber[86], the Court of Appeal applied the R v. Morgan[87] principle to indecent assault. The court said as follows:

“In this case the appellant by his own admissions did intentionally lay his hands on Betty. That would not, however, have been enough to prove the charge. There had to be evidence that the appellant had intended to do what he did unlawfully. When there is a charge of indecent assault on a woman, the unlawfulness can be proved, as was sought to be done in R v. Donovan[88], by evidence that the defendant intended to cause bodily harm. In most cases, however, the prosecution tries to prove that the complainant did not consent to what was done. The burden of proving lack of consent rests upon the prosecution: See R v. May[89]. The consequence is that the prosecution has to prove that the defendant intended to lay hands on his victim without her consent. If he did not intend to do this, he is entitled to be found not guilty: If he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge. It is the defendant’s belief, not the grounds on which it was based, which goes to negative the intent.
In analysing the issue in this way we have followed what was said by the majority in R v. Morgan’s case[90]. If, as we judge, the prohibited act in indecent assault is the use of personal violence to a woman without her consent, then the guilty state of mind is the intent to do it without her consent. Then, as in rape at common law, the inexorable logic, to which Lord Hailsham referred in R v. Morgan, takes over and there is no room either for a ‘defence’ of honest belief or mistake, or of a defence of honest and reasonable belief or mistake:[91] … The application of the Morgan principle to offences other than indecent assault of a woman will have to be considered when such offences come before the court. We do, however, think it necessary to consider two of them because of what we said in the judgment.[92]”

[86][1983] 1 WLR 1118.

[87][1976] AC 182.

[88][1934] 2 KB 498.

[89][1912] 3 KB 572 at 575 per Alderstone CJ.

[90][1976] AC 182: See Lord Hailsham of St Marylebone at 150 and 214 F-H respectively and Lord Fraser at 167, 168 and 273 E-G respectively.

[91]See 150 and 214 F-H.

[92][1983] 1 WLR 1118 at 1121-1122.

The first case that the Court of Appeal considered was a decision of the Divisional Court in Albert v. Lavin[93]. In Albert v. Lavin the defendant had been charged with assaulting a police officer in the execution of his duty contrary to s.51 of the Police Act 1964. The defendant, in his defence, contended, inter alia, that he had not believed the police officer to be such and in consequence had resisted arrest. The police officer had laid hold of the defendant to remove him from a bus queue where the police officer feared there may be a breach of the peace as the defendant had jumped the queue, much to the consternation of the others in the queue. The defendant said he did not know the police officer was such, as he was off duty and not in uniform and was entitled to resist being detained. The case was heard in the Magistrates’ Court, went on appeal to the Divisional Court and eventually to the House of Lords. The case turned on whether or not the police officer was lawfully entitled to restrain the defendant, which the House of Lords held he or any person was entitled to do.
[93](1981) 72 CrAppR 178;[1982] AC 546.

In the Divisional Court, Hodgson J discussed the elements of assault. Hodgson J addressed the differences between mens rea required for the basic elements of the offence and that required for a defence to the offence. Counsel for the accused analysed the offence in the same way as the Court of Appeal had done in R v. Kimber[94] and referred to the reasoning in R v. Morgan[95]. Counsel said the definition of assault was “the actual or intended use of unlawful force to another without the other’s consent”, referring to the definition in Archbold cited above. Counsel went on to say that just as lack of consent is one of the essential ingredients, so the unlawfulness of the assault is another. Counsel argued, relying on R v. Morgan[96], that the intention which the prosecution had to prove in assault is an intention to use or threaten actual force unlawfully and without the consent of the victim. Counsel argued that:

“It follows that if he [the defendant] believes what he is doing is not unlawful, it avails him just as much as if he believes that he has the consent of the victim.”[97]

[94][1983] 1 WLR 1118.

[95][1976] AC 182.

[96]Ibid.

[97]559-560.

Hodgson J rejected counsel’s argument that the Crown must establish that the defendant believes what he is doing is unlawful but accepted that a defendant can escape conviction for assault if he shows that he mistakenly but unreasonably thought his victim was consenting[98].
[98]562.

The Court of Appeal in R v. Kimber[99] rejected the reasoning of Hodgson J and in particular his finding that the element of unlawfulness is not part of the definition or the elements of the offence of assault. The Court of Appeal said:

“We have found difficulty in agreeing with this reasoning, even though the judge seems to be accepting that belief in consent does entitle a defendant to an acquittal on a charge of assault. We cannot accept that the word ‘unlawful’ when used in a definition of an offence is to be regarded as ‘tortologous’. In our judgment the word ‘unlawful’ does import an essential element into the offence. If it were not there social life would be unbearable, because every touching would prima facie amount to battery unless there was an evidential basis for defence. This case was considered by the House of Lords. The appeal was dismissed, but their Lordships declined to deal with the issue of belief.”[100]

The issue of belief there referred to is the belief by the accused in the unlawfulness of the assault. I draw particular attention to the Court of Appeal’s implicit agreement that belief in consent entitles a defendant to an acquittal on a charge of assault.

[99][1983] 1 WLR 1118.

[100]Ibid 1122-1123.

Both the observation of Hodgson JA and the Court of Appeal about applying the R v. Morgan[101] principle to the elements of assault and, in particular, to the element that the complainant was not consenting, adds weight to the appellant’s argument that the elements of the offence of an unlawful assault where lack of consent is an element of the offence include proving that the defendant was aware the complainant was not consenting or might not be. Further, the Court of Appeal’s observation that the word “unlawful” does import an essential element of the offence of assault adds weight to the argument that the prosecution must prove the defendant is aware that the complainant is not consenting or might not be.
[101][1976] AC 182.

R v. Kimber[102] was referred to with approval by the House of Lords in R v. Court[103]. That case is informative in itself, even though it concerned the mental elements of indecent assault. In particular, the issue was whether the prosecution had to establish that the defendant intended to commit an assault which right minded persons would think was indecent. The House of Lords held that intention was an element of the offence and must be established by the prosecution.
[102][1983] 1 WLR 1118.
[103][1989] 1 AC 28.

In doing so, Lord Ackner said it was necessary to have in mind the words of Wright J in Sherras v. De Rutzen[104]:

“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but the presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered …”[105]

Lord Ackner went on to say that:
“It cannot, in my judgment, have been the intention of Parliament, that an assault can by a mere mistake or mischance, be converted into an indecent assault, with all the opprobrium which conviction for such an offence carries.”[106]

[104][1895] 1 QB 918 at 921.

[105][1989] 1 AC 21 at 41.

[106]Ibid.

Lord Ackner also confirmed that the first stage in the proof of the offence of indecent assault is for the prosecution to establish an assault. He went on to say:

“The ‘assault’ usually relied upon is a battery, the species of assault conveniently described by Lord Lane CJ in Faulkner v. Talbot[107] as ‘an intentional touching of another person without the consent of that person and without lawful excuse’. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate.”

[107][1981] 1 WLR 1528 at 1534.

Lord Ackner’s statement that an indecent assault is, first and foremost, an assault, which is then characterised as indecent by other additional matters surrounding the assault adds weight to the appellant’s argument that the onus on the prosecution in establishing the awareness by the defendant that the complainant is not consenting or might not be, is the same for both indecent assault and common assault.

The DPP sought to distinguish the reasoning of Hodgson JA in R v. DMC[108] on the grounds that Hodgson JA was essentially addressing himself to the exigencies of life exception to assault and was not addressing the issue of establishing that the defendant was aware that the complainant was not consenting or might not be on a charge of assault.
[108](2002) 137 A.Crim.R. 246.

It was conceded, however, by the DPP that the reference by Hodgson JA to the father’s belief that the complainant was not consenting hurt the respondent’s case. But again the DPP sought to distinguish the decision as an exigency of life case. In my view, that distinction is not open. In my view, Hodgson JA was referring to the element that has to be established in indecent assault cases and saying it had to be also applied in a common assault case where lack of consent was an element to be established by the Crown.

The DPP also sought to deal with R v. Aitken[109] and R v. Jones[110] as falling within the horseplay exception, rather than as a separate element of the state of mind of the defendant in an assault case. I do not accept that distinction. Both cases dealt with the issue as one of consent and belief in consent.
[109](1992) 1 WLR 1006.
[110](1986) 83 CrAppR 375.

I have completed dealing with the submissions of the appellant and the DPP, but have a few other matters to address.

Defence of reasonable mistake of fact

A clear distinction is drawn between the mental element of an offence and the true or substantive defence of reasonable mistake of fact: R v. Saragozza[111]. The defence of reasonable mistake of fact was described by Dixon J (as he then was) in Thomas v. The King[112]:

“The rule accepted was that in the case alike of an offence at common law and unless expressly or impliedly excluded by enactment, of a statutory defence that the accused held an honest and reasonable belief in the existence of circumstances which, if true would make innocent the act for which he is charged.”

[111][1984] VR 187 at 194 per Starke, Kaye and Brooking JJ.

[112](1937) 59 CLR 279 at 304.

Such a defence was not raised by Mr Parish. On the contrary, Mr Parish’s case was that the prosecution had to prove beyond reasonable doubt as an element of the offence of assault in the circumstances of his case that Mr Parish was aware that the complainant was not consenting to his contact with the complainant or might not be.

Unlawful assault per se and public interest

Archbold Ed. 2007 para 19-180 under the heading “Consent” says:

“Where actual or grievous bodily harm or a wound is caused however, consent will be no defence in the absence of good reason.”

In AG Reference (No. 6 of 1980)[113] the Court of Appeal (comprising Lane CJ and Phillips and Drake JJ) dealt with assault where consent would be no answer. They held:

“We think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then if the victim consents, the assailant is not guilty. …
Bearing in mind the various cases and the views of the text book writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the court to hold otherwise? …
The answer to this question, in our judgment, is that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or public; it is an assault if actual bodily harm is attendant and/or caused. This means that most fights will be unlawful regardless of consent.
Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, et cetera. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.”[114]

[113][1981] 1 QB 715 CA.

[114]Ibid 718-719.

In R v. Aitken[115] the Courts-marshal Appeal Court referred to an alleged assault being per se unlawful. I assume, that what is meant by that remark, is that the conduct or the assault is one to which consent is no defence[116].
[115][1992] 1 WLR 1006.
[116]Ibid 1020.

In this case, the conduct is not such that consent could not be a defence to a charge of assault. In any event, the issue before me is not whether a defence of consent was open, but whether or not the prosecution had to establish that Mr Parish was aware that the complainant was not consenting or might not be, a different issue altogether. However, consistently with the authorities about where consent is available for a defence, it seems to me, although it is not necessary for me to decide it in this case, that such an element could not be an element of the offence that the prosecution needs to prove if the actual bodily harm was inflicted in circumstances where consent would not be an answer.

Conclusion

The above discussion establishes that in the case of common assault a distinction should be drawn between contact of such a nature that if done to another person consent is no answer and those where the prosecution bears the burden of negativing consent. It is the latter category that I am dealing with. In such a case where assault is being used to include battery, the definition of the offence is the actual intended use of unlawful force to another person without his consent or any other lawful excuse[117]. As such, from first principles one would expect the prosecution of having the onus of establishing that the defendant intended to use force on another without that person’s consent to establish the necessary mens rea. The authorities in mens rea cited above, would tend to suggest that this is the case[118].
[117]AG Reference (No. 6 of 1980) [1981] QB 715 at 718, CA.
[118]Gammon Ltd v. Attorney General (Hong Kong) [1985] 1 AC 1; He Kaw The v. R (1985) 157 CLR 523.

Further, the DPP has cited no cases where any court has expressly decided that where the prosecution must negative consent by the complainant that the prosecution does not bear the onus of proving beyond reasonable doubt that the defendant was aware the complainant was not consenting or might not be. The appellant on the other hand has referred to many cases, which I have discussed above, where the courts have expressly said as much.[119]
[119]R v. Whelan [1973] VR 268; Albert v. Lasim [1982] AC 546; R v. Kimber [1983] 1 WLR 1118; R v. Jones (1986) 83 CrAppR 375; R v. Aitken [1992] 1 WLR 1006; R v. Nazif [1987] 2 NZLR 122; R v. Bonora (1994) 35 NSWLR 74; Fitzgerald v. Kennard (1995) 84 ACrimR 333; R v. DMC (2002) 137 ACrimR 246.

As indicated above, the authorities treat the offence of indecent assault as a common assault in indecent circumstances. The amendment made to the Crimes Act provision in 1991 to add the requirement that the prosecution must establish the defendant was aware the complainant was not consenting or might not be was not intended to change the law but to merely identify the elements of the existing offence.

The DPP has rightly contended that R v. Kimber[120] has extended the R v. Morgan[121] principle to indecent assault. I can see no reason in logic or principle why it should not extend to common assault or any other form of assault in which the prosecution must negative consent by the complainant.
[120][1983] 1 WLR 1118.
[121][1976] AC 182.

For those reasons, I find that in the prosecution of Mr Parish for assault, the prosecution had the onus of establishing beyond reasonable doubt that Mr Parish was not aware the complainant was not consenting or might not be.

As indicated above, Mr Parish did not raise a defence of honest and reasonable mistake of fact and I do not need to discuss that defence[122].
[122]See Thomas v. R (1937) 59 CLR 279; Proudman v. Dayman (1943) 67 CLR 536, R v. Reynhardt (1962) 107 CLR 381.

The DPP has argued that the issue of consent was not raised. As indicated above, in my examination of the evidence the issue of Mr Parish’s belief about consent was raised. If I am wrong, however, in my view that the issue of consent was raised, I find that the prosecution still bears the onus of establishing that Mr Parish was aware that the complainant was not consenting or might not be just as it bore the onus of establishing that the complainant did not consent.

I therefore find that the learned magistrate did make an error of law in his decision in finding the assault charges made out and in rejecting the submission of the accused’s counsel that the prosecution should be required to establish beyond reasonable doubt that the defendant was aware that the complainant was not consenting to his actions or might not be. I therefore allow the appeal.

The consequential orders following the finding that charge 2 and charge 3 were made out will be set aside. As to the contact on the escalator (charge 3), the learned Magistrate has already made a finding that the prosecution failed to establish beyond reasonable doubt that Mr Parish was aware that the complainant was not consenting to his touching or might not be. Accordingly, charge 3 is dismissed.

As to the common assault charge relating to Mr Parish’s contact with the complainant on the train (charge 2), the learned Magistrate has made no finding relating to Mr Parish’s awareness. Accordingly, I will hear counsel on that issue.

I should add a note of caution about my decision. In this case, the learned Magistrate found that the prosecution had not proved beyond reasonable doubt that Mr Parish was aware his touching of the complainant whilst on the escalator, including touching her on the behind, was without her consent or might not be. As the learned Magistrate made clear, this finding only arose from the evidence of Mr Parish’s disability, his being a sufferer of Asberger’s syndrome and the unfortunate impact that has on Mr Parish’s ability to deal with other people. I would expect that in the case of a person who was not suffering from Asberger’s syndrome or having a similar disability, that the prosecution would be able to easily establish the necessary awareness on the part of any person who did what Mr Parish did – that the complainant was not consenting or might not be.

It is difficult to conceive of a person not beset by a similar affliction who would not know, in the circumstances of this case where the complainant said nothing, that she nevertheless was not consenting or might not be.

This case, however, was a most unusual one and should be treated as such. Be that as it may, the onus on the prosecution I have found will have general application in the circumstances I have described.

[2007] VSC 494

29 November 2007