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 |
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…
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- AGLC
- R v Grey (No 2) [2019] ACTSC 315
- Case
- [2019] ACTSC 315
- Decision Date
CaseChat Overview and Summary
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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