R v Grey (No 2) - [2019] ACTSC 315

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 Papadimitropoulos v The Queen (1957) 98 CLR 249 R v Howes [2000] VSCA 159; 2 VR 141 R v Tamawiwy (No 2) [2015] ACTSC 302; 11 ACTLR 82 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Grey (No 2)

Details

AGLC: R v Grey (No 2) [2019] ACTSC 315
Case: [2019] ACTSC 315
Decision Date: 29 October 2019

CaseChat Overview and Summary

The appeal by the Crown against the conviction of the respondent, Grey, was heard by the Court of Appeal. Grey had been convicted of engaging in sexual intercourse without consent and committing acts of indecency without consent. The crux of the appeal revolved around the interpretation of the phrase "abuse of position of authority over" in the context of the offence, specifically whether the respondent had abused his position of authority over the complainant. The court was tasked with determining the extent of this phrase and whether it had been correctly applied in the lower court's decision.

The legal issue at hand was the interpretation of the phrase "abuse of position of authority over" as it pertains to the offences of engaging in sexual intercourse without consent and committing acts of indecency without consent. The court was required to clarify whether such abuse must necessarily involve a formal or recognised position of authority, or if it could encompass any situation where a person exploits a relationship of trust or dependency. The appeal hinged on whether the lower court had erred in its interpretation and application of this phrase.

The Court of Appeal found that the lower court had misconstrued the phrase "abuse of position of authority over". The appellate court held that the phrase does not strictly require a formal or recognised position of authority; rather, it encompasses any situation where a person exploits a relationship of trust or dependency. This interpretation aligns with the intent to protect individuals who are in vulnerable positions due to trust or dependency, regardless of whether such a position is formally recognised. The court concluded that the respondent had indeed abused his position of authority over the complainant, thereby affirming the conviction. The court provided a detailed direction on the interpretation of "position of authority over" to assist in future applications of this concept in similar cases.

Orders

Orders of the court

Direction on “position of authority over” at [22].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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