R v Grey (No 2)
[2019] ACTSC 315
•29 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Grey (No 2) |
Citation: | [2019] ACTSC 315 |
Hearing Dates: | 28 and 29 October 2019 |
DecisionDate: | 29 October 2019 |
Before: | Murrell CJ |
Decision: | Direction on “position of authority over” at [22]. |
Catchwords: | CRIMINAL LAW - PRACTICE AND PROCEDURE – Engage in sexual intercourse without consent – Commit acts of indecency without consent – Consent alleged to have been negated by abuse of position of authority or trust – Meaning of “abuse of position of authority over” |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60, 67(1) Crimes (Amendment) Ordinance (No. 5) (ACT), No. 62 of 1985 |
Cases Cited: | Gillard v The Queen [2013] ACTCA 17; 275 FLR 416 Michael v Western Australia [2008] WASCA 66; 183 A Crim R 348 Suleman v The Queen [2009] NSWCCA 70 |
Texts Cited: | ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report 18 (2001) Law Reform Commission of Tasmania, Report and Recommendations on Rape and Sexual Offences, Report 31 (1982) |
Parties: | ACT Director of Public Prosecutions (Crown) Bradley Grey (Accused) |
Representation: | Counsel T Hickey (Crown) B Morrisroe (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 246, 247 of 2018; SCC 28 of 2019 |
MURRELL CJ:
The question for determination is how the jury should be directed in relation to what constitutes a “position of authority over” another person within s 67(1)(h) of the Crimes Act 1900 (ACT) (Crimes Act).
The accused was the owner or manager of a Canberra brothel known as Mitchell Mistresses (the business). He was responsible for recruiting sex workers for the business. Between late 2015 and early 2017, he responded to inquiries from nine women who were interested in undertaking sex work (the complainants). When each complainant first attended the business premises, the accused photographed her in lingerie for the purpose of website advertising and then undertook “training”. The “training” involved the accused engaging in sexual activity with the complainant.
The indictment contains 27 charges relating to the “training” of the nine complainants.
As a general proposition (the approach to each charge is tailored to its particular circumstances), the prosecution contends that the sexual activity that is the subject of each “training” episode involved acts of indecency and/or sexual intercourse in relation to which there was no consent (no free and voluntary agreement), contrary to ss 54 and/or 60 of the Crimes Act. Alternatively, the prosecution says that consent was negated because it was caused by a circumstance prescribed by s 67(1) sub-ss (g) and/or (h) of the Crimes Act.
In relation to each of the 27 charges, the annexed table describes the manner in which the prosecution puts its case on consent.
The accused concedes that it is a matter of fact for the jury to decide whether the accused was in a “position of authority over” any complainant and, if so, whether (pursuant to s 67(1)(h) of the Crimes Act) the complainant’s consent to sexual activity was negated because it was caused by the abuse by the accused of his position of authority over the complainant: Gillard v The Queen [2013] ACTCA 17; 275 FLR 416 at [87] (Gillard).
Section 67(1) provides:
67Consent
(1) For sections 54, 55(3)(b), 60 and 61(3)(b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—
(a) by the infliction of violence or force on the person, or on a third person who is present or nearby; or
(b) by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or
(c) by a threat to inflict violence or force on, or to use extortion against, the person or another person; or
(d) by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
(e) by the effect of intoxicating liquor, a drug or an anaesthetic; or
(f) by a mistaken belief as to the identity of that other person; or
(g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
(h) by the abuse of the other person of his or her position of authority over, or professional or other trust in relation to, the person; or
(i) by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or
(j) by the unlawful detention of the person.
In order to establish negated consent by relying on s 67(1)(h), the prosecution needs to prove three matters beyond reasonable doubt:
(a) at the time of the relevant conduct, the accused was in a “position of authority over” the complainant;
(b) the accused “abused” that position of authority; and
(c) the abuse by the accused of his position of authority over the complainant “caused” her to consent to the sexual activity.
In these proceedings, all three matters are contentious, including whether the accused was in a “position of authority over” any or all complainants.
Prior to the enactment of s 67, the common law recognised that consent to an act of sexual intercourse could be vitiated by fraud, but only fraud in relation to the nature of the sexual act or the identity of the accused: Papadimitropoulos v The Queen (1957) 98 CLR 249. There was a general recognition of the need to expand the categories of conduct that would vitiate consent.
In 1985, the Crimes Act was amended by inserting s 92P,[1] which later became s 67. Section 92P adopted recommendations of the Law Reform Commission of Tasmania, Law Reform Commission of Tasmania, Report and Recommendations on Rape and Sexual Offences, Report 31 (1982). At [44], the Tasmanian Report recommended the legislative proscription of behaviour that created “non-consensual situations”, inter alia by “[removing] doubts in the area of … exploitation of authority or position … ”.
[1] As amended by Crimes (Amendment) Ordinance (No. 5) 1985 (ACT), No. 62 of 1985.
The enactment of s 92 P (later s 67(1)) represented a significant departure from the common law: R v Tamawiwy (No 2) [2015] ACTSC 302; 11 ACTLR 82 (Tamawiwy) per Refshauge ACJ at [55].
Section 67(1) was intended to have a broad reach; the provision expressly states that the circumstances identified within the provision do not limit “the grounds on which it may be established that consent is negated”. The breadth and lack of definition in the provision were criticised in the ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report 18 (2001). Fortunately, in these proceedings, it is unnecessary to consider the limits to the reach of s 67(1) as the prosecution has confined its case to ss 67(1)(g)–(h).
In s 67(1), the expression “position of authority” extends beyond well-recognised positions of authority such as those of parent/child and teacher/student. In Gillard, the Court observed that a person could be in a position of authority over a complainant despite the lack of “any formal authority” over the complainant, and even where the complainant was legally an adult: at [85].
The expression “position of authority over” has three aspects: it entails a “position” that is one of “authority” and is also a position “over” the complainant. The expression “position” implies an ongoing relationship (as opposed to one-off encounter) between the accused and the complainant. “Position of authority” suggests that the relationship is not one of approximate equality but a relationship in which the accused has a greater status associated with a legitimate right to direct or control the actions of the complainant, and, consequently, the accused is in a “position of authority over” the complainant. Seen in this way, s 67(1)(h) addresses the improper use of a right to direct or control a complainant that arises in the context of an unequal relationship.
Neither the terms nor the intention of the provision suggest that it should be confined to cases where the accused has a legal right to direct or control a complainant; rather, it extends to situations where the accused has a practical or moral “right” to direct or control her. Nevertheless, the right must derive from the accused’s position. In R v Howes [2000] VSCA 159; 2 VR 141 (Howes), Brooking JA (Winneke P and Chernov J agreeing) said that the words “under his or her care, supervision or authority” did not require the existence of rights or powers: at [50]. I note that, in Howes, the Court was not considering the expression “position of authority”, but rather “under his … authority”.
By its terms, s 67(1)(h) distinguishes between “position of authority over”, “professional trust in relation to”, and “other trust in relation to” a complainant. Both the expressions “position of authority over” and “trust in relation to” address relationships of inequality; confirming that the provision is designed to address the exploitation of authority or position. However, the former expression speaks of inequality arising from the accused holding a position that confers a legal, practical or moral right to direct or control a complainant; whereas the latter expression speaks of inequality arising from the complainant placing trust and confidence in the accused (and, thereby, becoming vulnerable) and the accused accepting responsibility for acting in the complainant’s interests (whether or not in the context of a well-recognised relationship of trust such as doctor/patient).
Neither party referred me to a case that was directly on point.
In Suleman v The Queen [2009] NSWCCA 70 (Suleman), the NSW Court of Criminal Appeal considered the expression “the offender abused a position of trust or authority in relation to the victim” in the context that abuse of such a position was an aggravating factor in sentencing: at [21]. At [22], Howie J (with whom McLellan CJ at CL and Hislop J agreed) considered that the provision referred to established “special” relationships, such as relationships between solicitor and client.
While s 67(1)(h) is not confined to established special relationships, Suleman is of some assistance in that it proposes that, for there to be a “position”, there must be some degree of ongoing association and a relationship that exists objectively, not just subjectively in the mind of one person: at [23].
The prosecution suggested that the expression “position of authority” was similar to “position of influence” and argued that the provision captured relationships where the accused had the practical power to influence the complainant’s conduct. I disagree. If the prosecutor’s argument was correct, the impact of the provision would be far greater than could ever have been intended. Regrettably, in sexual relationships, positions of influence (versus authority) are commonly abused, just as lesser fraudulent misrepresentations are commonly made but were not necessarily intended to fall within s 67(1)(g): see the observations of E M Heenan AJA in Michael v Western Australia [2008] WASCA 66; 183 A Crim R 348 at [373] and Refshauge ACJ in Tamawiwy.
I will direct the jury as follows:
(a) In order to establish “no consent” by proving that the accused abused his position of authority over a complainant, the prosecution must prove beyond reasonable doubt that:
(i) the accused had a position of authority over the complainant;
(ii) the accused abused that position of authority; and
(iii) the abuse by the accused of his position of authority “caused” the complainant to consent.
(b) It is for the jury to decide whether, in the particular circumstances of the relationship between the accused and the particular complainant at the time of the incident, the accused was in a “position of authority over” that complainant.
(c) An accused has a “position of authority over” a complainant if the relationship between them is such that, in a practical sense, the accused has a right to direct the complainant’s actions. It is not necessary that the accused has a legal right to direct the complainant’s actions; what is necessary is that, in a practical sense, he has the right to direct her actions.
(d) Obvious examples of relationships where one person has “authority over” another in the sense that they have a practical right to direct the other person’s actions are the parent/child relationship and the teacher/student relationship. These well-known categories provide us with a starting point to understand the concept of one person having a “position of authority over” another person, but the concept of having “a position of authority over” another person is not confined to these well-known categories. Depending on all the circumstances, a sporting coach may have a “position of authority over” a member of the team that they coach, in the sense that the sporting coach has the practical power to direct the actions of the player, both on and off the field. Another example might be the position of a close family friend or an aunt or uncle vis-à-vis a young adult. It is for the jury to consider all the circumstances of the particular relationship and then decide whether the relationship is such that one person has a “position of authority over” the other person such that, in a practical sense, the first person has the “right” to direct the actions of the second person.
(e) There is a distinction between a “position of influence” and a “position of authority over”; it is a distinction between having a relationship that enables you to persuade someone to act in a certain way and having a relationship that gives you the practical right to direct them to act in that way.
(f) A person “abuses” their position of authority if they deliberately misuse their position of authority; if they deliberately misuse the relationship that empowers them to direct the other person as to how they should act.
(g) An abuse of a position of authority “causes” consent if, in the context that the accused faces a serious criminal charge, the causal connection between the abuse and the giving of consent is sufficiently substantial to warrant the attribution of criminal responsibility.
| I certify that the preceding twenty- two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
ANNEXURE A
Outline of counts and consent
Key for ‘consent’:
(1) No consent
(2) Consent was negated because it was caused by the accused’s abuse of his position of authority over the person
(3) Consent was negated because it was caused by the accused’s fraudulent misrepresentation that sexual activity was a necessary part of training to the new job
| Count | Complainant | Offence | Particulars | Consent |
| 1. | KN | Act of indecency without consent | The accused told her to massage his nipples while he masturbated himself. | (1) no consent or (2) abuse of position |
|
|
|
|
| [Jury were directed to enter a verdict of not guilty for Count 2] |
| 3. | KN | Sexual intercourse without consent | The accused inserted his fingers into her genitalia. | (1) no consent or (2) abuse of position |
| 4. | UC | Act of indecency without consent | The accused lay on the bed and tried to get her hand to masturbate his penis. | (1) no consent or (2) abuse of position |
| 5. | BG | Sexual intercourse without consent | The accused performed oral sex on her. | (1) no consent or (2) abuse of position or (3) fraudulent misrepresentation |
| 6. | BG | Sexual intercourse without consent | The accused made her perform oral sex on him. | (2) abuse of position or (3) fraudulent misrepresentation |
| 7. | BG | Act of indecency without consent | The accused masturbated himself to finish himself off and made her suck on his nipples. | (1) no consent or (2) abuse of position |
| 8. | BU | Act of indecency without consent | The accused massaged her including touching her genitalia. | (1) no consent or (2) abuse of position or (3) fraudulent misrepresentation |
| 9. | BU | Sexual intercourse without consent | The accused inserted his fingers into her genitalia while he massaged her. | (1) no consent or (2) abuse of position or (3) fraudulent misrepresentation |
| 10. | BU | Act of indecency without consent | The accused massaged her front including fondling her breasts. | (1) no consent or (2) abuse of position or (3) fraudulent misrepresentation |
| 11. | BU | Sexual intercourse without consent | The accused performed oral sex on her. | (1) no consent or (2) abuse of position or (3) fraudulent misrepresentation |
| 12. | BU | Act of indecency without consent | The accused made her masturbate him. | (2) abuse of position or (3) fraudulent misrepresentation |
| 13. | BU | Sexual intercourse without consent | The accused made her sit on his face and he performed oral sex on her. | (2) abuse of position or (3) fraudulent misrepresentation |
| 14. | BU | Sexual intercourse without consent | The accused made her perform oral sex on him. | (2) abuse of position or (3) fraudulent misrepresentation |
| 15. | DL | Act of indecency without consent | The accused made her massage his penis. | (2) abuse of position or (3) fraudulent misrepresentation |
| 16. | DL | Sexual intercourse without consent | The accused made her perform oral sex on him. | (2) abuse of position or (3) fraudulent misrepresentation |
| 17. | DL | Sexual intercourse without consent | The accused performed oral sex on her. | (2) abuse of position or (3) fraudulent misrepresentation |
| 18. | DL | Sexual intercourse without consent | The accused had penile-vaginal sex with her. | (2) abuse of position or (3) fraudulent misrepresentation |
| 19. | SH | Act of indecency without consent | The accused took close up photos of her genitalia using his hands to adjust her labia. | (1) no consent or (2) abuse of position |
| 20. | SH | Act of indecency without consent | The accused massaged her front including her breasts, thighs and pubic region. | (1) no consent or (2) abuse of position |
| 21. | SH | Sexual intercourse without consent | The accused made her perform oral sex on him. | (2) abuse of position or (3) fraudulent misrepresentation |
| 22. | BI | Sexual intercourse without consent | The accused performed oral sex on her. | (2) abuse of position or (3) fraudulent misrepresentation |
| 23. | BI | Sexual intercourse without consent | The accused made her perform oral sex on him. | (2) abuse of position or (3) fraudulent misrepresentation |
| 24. | NH | Sexual intercourse without consent | The accused performed oral sex on her and inserted his fingers into her genitalia. | (1) no consent or (2) abuse of position or (3) fraudulent misrepresentation |
| 25. | NH | Sexual intercourse without consent | The accused made her perform oral sex on him and fondle his penis. | (2) abuse of position or (3) fraudulent misrepresentation |
| 26. | FN | Act of indecency without consent | The accused grabbed her hand and moved it towards his penis. | (1) no consent or (2) abuse of position |
| 27. | FN | Attempted sexual intercourse without consent | The accused made her lie down on the bed and tried to perform oral sex on her. | (1) no consent or (2) abuse of position |
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