R v Stevens (No 2)
[2017] ACTSC 296
•2 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stevens (No 2) |
Citation: | [2017] ACTSC 296 |
Hearing Dates: | 27, 28 February, 1, 2, 3 March 2017 |
DecisionDate: | 2 March 2017 |
Before: | Mossop J |
Decision: | See paragraph 8 |
Catchwords: | CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – sexual intercourse without consent – recklessness – non-advertent recklessness – accused state of mind – indifference to complainant consent – going ahead “willy-nilly not even caring whether [a complainant] consented or not” |
Legislation Cited: | Crimes Act 1900 (ACT) s 60 |
Cases Cited: | R v Tolmie (1995) 37 NSWLR 660 R v Kitchener (1993) 29 NSWLR 696 |
Parties: | The Queen (Crown) Craig Joseph Stevens (Accused) |
Representation: | Counsel R Christensen (Crown) J Stewart (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 69 of 2016 |
MOSSOP J:
I have been asked to indicate in advance of closing submissions what direction I will give the jury in relation to non-advertent recklessness. I have heard submissions from the parties on this issue. Counsel for the Crown contends that it is appropriate to give a direction consistent with that in the New South Wales Criminal Trials Bench Book. The New South Wales Bench Book incorporates the elements of the description of non‑advertent recklessness described in the headnote to the decision in R v Tolmie (1995) 37 NSWLR 660. This is the formulation articulated by Kirby P. It differs somewhat from the formulation of Newman J, who adopted the earlier decision of R v Kitchener (1993) 29 NSWLR 696 at 697, where Kirby P said:
This can be shown not only where the accused adverts to the possibility of consent but ignores it, but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirement for consent.
Barr AJ agreed with both the reasons of Kirby P and the reasons of Newman J and hence there is no clear majority formulation of the appropriate test. The headnote, however, picked up the formulation of Kirby P.
In Gillard v The Queen [2014] HCA 16; 88 ALJR 606, the High Court, while approving various formulations in the House of Lords in Director of Public Prosecutions v Morgan [1976] AC 182, expressly said that it was not necessary to consider whether recklessness extends to the state of mind of inadvertence to consent in the way described in Tolmie (see Gillard at [26].) The Court said:
It is sufficient in order to address the issues raised by the appeal, to observe that recklessness is a mental state captured by the concept of indifference to the complainant's consent, as explained in the joint reasons in [Banditt v The Queen [2005] HCA 80; 224 CLR 262].
The authorities in this jurisdiction since 2008 have not explored the possible different formulations of non-advertent consent. Those decisions involve approval of the decision of Besanko J in Sims v Drewson [2008] ACTSC 91; 2 ACTLR 307, as is made clear by his Honour's judgment at [32]. The issue that his Honour was called upon to decide was whether or not non-advertent recklessness was within the concept of recklessness in s 60 of the Crimes Act 1900 (ACT). His Honour formulated the concept of non-advertent recklessness as follows:
Non-advertent recklessness is where the accused person is so indifferent to the rights of the alleged victim as to ignore completely the requirement of consent.
It is worth noting that this picks up the language of Lord Cross in Morgan. Besanko J also made reference to the decision of the New South Wales Court of Appeal in Kitchener and the Court of Appeal decision in Fitzgerald v Kennard (1995) 38 NSWLR 184, which followed the decision in Kitchener. Finally he referred to the decision in Banditt v The Queen [2005] HCA 80; 224 CLR 262, which was consistent with the acceptance of non‑advertent recklessness being within the scope of the concept of recklessness. His Honour's discussion of Tolmie was limited and he did not discuss the correctness of the particular formulation captured by the headnote in Tolmie. The correctness of Besanko J's reasoning in Sims was confirmed by the Court of Appeal in Director of Public Prosecutions v Walker [2011] ACTCA 1 at [53].
The Court of Appeal in Gillard v The Queen [2013] ACTCA 17 at [105] approves the test for recklessness articulated in Sims and describes Sims as "[a]pplying the test for recklessness found in R v Tolmie". Having regard to the decision in Sims, the express reference to Tolmie must be to the acceptance of the concept of non-advertent recklessness rather than to the specific approval of the formulation as set out in the headnote. I note also that the pinpoint reference to [25] in Sims must be incorrect. It is probably intended to be a reference to [23].
As I have indicated above, the High Court in Gillard, while dealing with a slightly different point, expressly left open the question of whether or not the formulation reflected in the headnote in Tolmie was correct. In my view, the ACT authorities confirm the applicability of the concept of non-advertent recklessness but do not mandate any particular formulation of it.
Having regard to the manner in which the decision in Tolmie was dealt with in Sims, I do not consider that it involved a specific approval of Kirby P's formulation of the concept. In the circumstances, it would be consistent with the decision of the High Court in Banditt and Gillard if the direction that I gave in relation to non-advertent recklessness was to the effect of that given by the trial judge in Banditt, with additional references to the verbal formulae expressed in Morgan, which were approved in Gillard, namely:
Recklessness does not have to be the product of conscious thought. If the accused does not even consider whether the complainant is going to consent or not then that is reckless. This can be described in various ways: namely, that the accused's state of mind is at least indifferent to the complainant's consent, if he just goes ahead willy-nilly not even caring whether she consented or not, or that he has gone ahead without caring whether she was a consenting party. If the accused was reckless in that sense then the law says that he is reckless.
That direction appears to me to be consistent with the formulation of Besanko J at [23] in Sims; namely:
Non-advertent recklessness is where the accused person is so indifferent to the rights of the alleged victim as to ignore completely the requirement of consent.
It also appears to be consistent with the decisions of the New South Wales courts relied upon by Besanko J in Sims; namely, Kitchener and the decision of Newman J in Tolmie. Although the references to proceeding willy-nilly or having a state of mind of indifference tend to suggest a higher test than a mere failure to consider the issue of consent, because they might suggest a positive state of mind rather than an absence of consideration, I do not consider that there is a difference of substance if the circumstances are such that there is a possible absence of consent.
I consider that the formulation based on Kirby P's reasons in Tolmie, reflected in the headnote, is a test which appropriately captures the essence of non-advertent recklessness: failing to consider something that in the circumstances one should. The President's formulation has the benefit of avoiding the uncertain implications from the varying form of expression in Morgan. However, any potential difference between that formulation and those expressly approved by the High Court in Gillard have not been explored in the High Court or the Court of Appeal and it is therefore appropriate in this case to attempt to adopt a formulation that has been so approved.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 October 2017 |
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