R v Luke Maddison

[2007] ACTCA 18

R v LUKE MADDISON [2007] ACTCA 18 (9 August 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 8 - 2007
No. SCC 223 of 2005

Judges:        Higgins CJ, Crispin P and Madgwick J
Court of Appeal of the Australian Capital Territory
Date:           9 August 2007

IN THE SUPREME COURT OF THE       )         No. ACTCA 8 - 2007
  )         No. SCC 223 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

R

v

LUKE MADDISON

ORDER

Judges:  
Date:  9 August 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The conviction and sentence be set aside; and

1. The matter remitted to the Supreme Court for further consideration.

1. The appellant be admitted to bail.

IN THE SUPREME COURT OF THE       )         No. ACTCA 8 - 2007
  )         No. SCC 223 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

R

v

LUKE MADDISON

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  9 August 2007
Place:  Canberra

REASONS FOR JUDGMENT

Associate’s explanatory note: 

The respondent had pleaded guilty to the charge that he had ‘…engaged in sexual intercourse with [the complainant], without her consent, being reckless as to whether she consented.’  This matter was commenced as a Crown appeal against the sentence of periodic detention the respondent received for that offence.  However, the core issue that emerged during the course of the appeal was whether the judge at first instance should have accepted the plea given the material before him.  As a consequence, the parties to the appeal acquiesced to the suggestion that the matter be remitted to the primary judge to determine whether the plea should have been accepted. 

Ordinarily, the transcripts from which ex tempore judgments are derived are edited so as to exclude counsel’s submissions at hearing.  However, to adopt such an approach in this instance would serve to leave unexplained the somewhat unusual course this hearing took.  For that reason, this ex tempore judgment includes edited portions of the hearing transcript.

THE COURT:
MADGWICK J:  It is a matter of concern that the sentencing judge must know the factual scenario upon which the sentence is based.  The factual scenario includes not only the actions of the offender but the mental state of the offender at the time.
…
MR REFSHAUGE:  The count on the indictment was specified to be “recklessly”.
…
CRISPIN J:  The real question is, was the factual scenario consistent with recklessness rather than with … knowledge.  The statement of facts put to his Honour includes a record of the fact that the appellant had told the police that he had known that she did not want to have sexual intercourse and was crying while it occurred.  She had previously said, ‘No, no, no.’  It seems to be a case of knowledge of lack of consent rather than recklessness.
…
HIGGINS CJ:  There may be cases where … an initial refusal might be overborne and it might or might not then be overborne to the knowledge of the person doing the overbearing so as to vitiate that apparent consent or not. … But leaving that aside, that would be clearly the case on that version of events.  Then there is the version of events which was picked up by the pre-sentence report, which is at page 37 of the appeal book: 

Mr Maddison accepts responsibility for his actions in his discussions with this Service and appears to be genuinely remorseful.  He claimed that at the time he was not thinking about any illegalities and in fact considered his sexual activity as consensual.  In hindsight, however, he appears to have recognised that his activity had a traumatic effect upon the victim and acknowledges that his actions and behaviour was both illegal and morally wrong.

Leave aside the ‘illegal’ for the moment, because he may or may not be right about that.  But he seems to be saying, ‘Well, at the time I thought there was consent but I now realise, having looked back on it, that there was not.’  That is not necessarily inconsistent with recklessness.  But it certainly does not admit knowledge and it does not admit recklessness.

… Then there is the fact that the appellant gave evidence during the sentencing proceedings. … As far as I can see, the evidence he provided at the trial of his alleged co-offender, the transcript of which is at page 75 of the appeal book, is the only description from him on oath as to what it was that he did.  He heard ‘what sounded like sex’, he said, between the other two.  It was out of his sight but not out of his hearing.  And when it finished Mr Stewart said something to him:

A:        He said, ‘Did you want a go?’

Q:       And did you reply?
A:         I said ‘Yes, all right.’

Q:       And what did you do then?
A:        I walked up to her.

Q:       And what happened then?
A:        Then she said, ‘Do I have to do you too?’

Q:       And what did you say?
A:        I said, ‘He got one.’ 

Q:       And was there any further conversation?
A:        She said, ‘I don’t really want to but,’ – yes.

Q: Well, can you tell us as much as you can recall of any conversation that you had with her at this time?

A:        That was it.

Q:       So what did you do then?
A:         So I walked back to the car.

In other words, he gets an expression of lack of agreement.

Q:        And when you got back to the car what happened?
A:         I told Adam that she didn’t want to do it.

Q:       And what happened then?
A:        And then he said, ‘No, she will.’

Q:       And what happened then?
A:        He walked back up to her and was talking to her for a bit.

Q:       Did you hear anything that was being said?
A:        No

Q:       What happened then?
A:        And then he come back and he said, ‘Yes, she will.’

Q:       And what happened then?
A:        So I walked back up to her and she asked me how I wanted it.

Q:       And what happened then?

A: Well, I just said, ‘Bend over,’ so she bent over and pulled her pants down. 

And then the next is that they effectively have intercourse.
…
MADGWICK J: 
What his Honour said, is that he heard and saw the defendant’s evidence and he considered that the appellant put it fairly and exactly, not minimising his own role and not loading up the other man. … But the defendant told the probation officer that he believed he was innocent. … And in the victim impact statement his girlfriend attacks the victim, in effect accusing her of false accusations.

So every indicator is that he believed himself to be innocent except that a deal was done with the Crown and then a version of facts goes in that is consistent only with the defendant having actual knowledge that the complainant was not consenting.  What scenario should his Honour have acted on?  Given the agreed facts, how could he possibly deal with it on the basis only of recklessness?
HIGGINS CJ:  And by extension, what scenario should we act on?
MR REFSHAUGE:  … First of all, clearly he was aware when he first approached her that she was at least unenthusiastic.  He was then of the view that she would have sex with him.  For the moment, I am limiting it to the statement of facts. 

But what his plea says is that he was then reckless as to whether she was consenting, bearing in mind how that acceptance, if I can put a somewhat neutral word, had occurred.  That was by the co-accused, the co-offender, going over and having a word with her.  Now, what he then says is that he went over and she then had sex with him in circumstances which are not only consistent with consent but also consistent with her will being overborne …

One can construct from the information that we have, for example, that she knew she was not going to get home unless they had their wicked way with her and Mr Stewart had said, ‘You are going to do it,’ and came back and said, ‘Yes, she will.’  If, then, he was not satisfied that she was consenting then he may well have been reckless.  Well, he says, ‘I was,’ because that is what his plea says and that’s a scenario that’s consistent with the statement of facts.  …
CRISPIN J:  Is it consistent with the statement of facts?  I thought the only passage in the statement of facts dealing with the question of his state of knowledge was the passage in the middle of appeal book at p 27 [p 4 of the statement of facts]:

On 10 June 2005 …He [the appellant] was interviewed by police … He said that prior to sexual intercourse Ms G had said to him, ‘Oh, I don’t want to’ and, ‘No, no, no.’ He said that he was ‘pretty much forcing her’ and that he knew it was wrong at the time. He said that he knew she didn’t want to have sexual intercourse … He said that Ms G was crying while he was having sexual intercourse with him.

I would have thought that was pretty damning evidence of knowledge, not of recklessness. …
MR REFSHAUGE:  Yes, well, the only version of events so far as these issues are concerned on page 27 is to assume that that relates to temporally a point of time after he commenced having sexual intercourse with her and a degree of retrospective insight. 
…
HIGGINS CJ:  I suppose understandably, that his Honour’s attention was not drawn to this.  His Honour did not advert to it so we do not know what finding was made as to the state of knowledge or of recklessness that existed prior to the act of intercourse taking place.
…
CRISPIN J:  The question of whether the person knew, is answered yes or no.  The concept of recklessness gives rise to a spectrum of awareness.  It may be advertence to a risk, that is, that is very substantial or much less substantial.  It may give rise, presumably, to recklessness in the Kitchener sense of not caring whether the person is consenting or not.  Or, alternatively, you might have somebody who had formed a belief in the consent, at least theoretically, but who attained, nonetheless, a real doubt about it.

I always find some difficulty in understanding how, in the real world, there can be, save in very unusual circumstances, recklessness without real knowledge, especially when somebody is actually saying, ‘No’, and crying at the time.  But in a theoretical sense, you could have a sort of spectrum of awareness of risk that does not exist in relation to knowledge.  Now, that means that the state of mind of an offender alleged only to have acted recklessly would need to be looked at with some care.
HIGGINS CJ:  What his Honour did say about that question (Appeal Book, p 7):

It seems to me that on the first occasion when police first spoke to you you made the frank admission that what you had done was wrong …

That is equivocal.  It could have been in retrospect.

…that you knew what you had done was wrong…

That is equivocal in the same sense.  But the next phrase is not:

…that you knew when you were engaging in the sexual activity that she was trying to say no.

…
MADGWICK J:  There is a doctrine that if you are sentencing for one offence, you cannot do it on the basis of facts which constitute a more serious offence.  I appreciate that this is just one version of an offence.  But I do not really see why, having regard to questions of the integrity of the system, one should not apply the same rule here, in which case you cannot look at a version that says that he knew she was not consenting.  But that is his claim to contrition, that he immediately told the police he did know.

So to me it is just artificial to read the statement of facts on the basis that he realised she had not consented later on.  It seems to be that the true position is, as far as this material goes, that he knew full well that she had not consented.  He told the police that.  Later on to face family, the public and everybody else he persuaded himself that he had not known at the time, and only in hindsight had he appreciated that she was not, in fact, consenting.  In which case the new version is not recklessness.
…
MR REFSHAUGE:  In my submission, having regard to the issues that have been raised, the alternative I would urge upon your Honours is to set aside the conviction and sentence simpliciter.  … We will have to look carefully at what we do and my learned friend, who is not in a position to take a view at this stage, will have to look at what he will do and we will have to work out how to deal with it further. 
…

HIGGINS CJ:  I take it you are in agreement with Mr Refshauge’s suggestion? 

MR SABHARWAL:  Yes.
HIGGINS CJ:  On reflection the court is of the view that the suggestion should be accepted and so in consequence we would order that, without opposition, the conviction and sentence be set aside and the matter remitted to the Supreme Court for further consideration.  That form of that order does not require that it be placed before the sentencing judge.
…
MR REFSHAUGE:  There is an issue of bail, your Honour.  We invite the court to admit the respondent to bail … and that bail to be entered into by close of business tomorrow.  The respondent is not here.  In the ordinary course he would be reporting for periodic detention at 5 o’clock tomorrow. … A direction that the bail could be entered into before an officer of Corrective Services would allow him 48 hours …
HIGGINS CJ:  Yes, that would be the preferable course for obvious reasons.  …  The sum on which the bail will be given is $1,000.

I certify that the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:     9 August 2007

Counsel for the Appellant:  Mr R Refshauge SC with Ms L Hoult
Solicitor for the Appellant:  ACT Director of Public Prosecutions
Counsel for the Respondent:  Mr J Sabharwal
Solicitor for the Respondent:  ACT Legal Aid Office
Date of hearing:  9 August 2007
Date of judgment:  9 August 2007