R v Tamawiwy (No 2) - [2015] ACTSC 302

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Tamawiwy (No 2)
Citation:	[2015] ACTSC 302
Hearing Date(s):	24 September 2015
DecisionDate:	24 September 2015
Before:	Refshauge ACJ
Decision:	The application for a directed acquittal on counts 7, 8 and 9 on the indictment be dismissed.
Catchwords:	CRIMINAL LAW – Trial – jury trial – sexual offences – sexual intercourse without consent – act of indecency without consent – statutory interpretation – consent – negation of consent – fraud – fraudulent misrepresentation of fact – statement of fact not a promise – serious deception
Legislation Cited:	Crimes Act 1900 (ACT), ss 54, 60, 67, 92P Crimes Legislation Amendment Act 2001 (ACT), s 43 Crimes Act 1900 (NSW), s 66 Criminal Code 1899 (Qld), s 348 Criminal Code Act 1924 (Tas), s 2A Criminal Code Act Compilation Act 1913 (WA), s 319(2)(a) Crimes (Amendment) Ordinance (No 5) 1985 (ACT) Draft Criminal Code (NT), cl 88(2)
Cases Cited:	Bill Acceptance Corporation Ltd v GWA Ltd (1983) 1 IPR 496 Case Stated by DPP (No 1 of 1993) (1993) 59 SASR 214 Crisp v The Queen (Unreported, Supreme Court of Tasmania, Cox, Crawford and Zeeman JJ, No 52 of 1990, 19 December 1990) Edgington v Fitzmaurice (1885) 29 Ch D 459 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Ibbs v The Queen [1988] WAR 91 Michael v Western Australia (2008) 183 A Crim R 348 Nydam v The Queen [1977] VR 430 Papadimitropoulos v the Queen (1957) 98 CLR 249 R v Clarence (1888) 22 QBD 23 R v Gallienne [1964] NSWR 919 R v Winchester [2014] 1 Qd R 44
Texts Cited:	ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, (Publishing Services for the ACT Law Reform Commission, Canberra, 2001), Report No 18 Simon H Bronitt, “Rape and Lack of Consent” (1992) 16 Crim LJ 289 Explanatory Statement, Crimes (Amendment) Ordinance No 5 1985 (ACT), 28 November 1985 Law Reform Commission, Report and Recommendations on Rape and Sexual Offences, (Government Printer, Tasmania, 1982) Report No 31. Model Criminal Code Officers Committee, in its Report on Chapter 5 “Sexual Offences Against the Person” (Canberra, May 1999) JH Beale Jnr, ”Consent in the Criminal Law” (1894-5) 8 Harvard LR 317 PW Young, The Law of Consent (Law Book Co: Sydney, 1986)
Parties:	The Queen (Crown) Billy Bartolomeus Tamawiwy (Defendant)
Representation:	Counsel Mr T Hickey (Crown) Mr J Lawton (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Number(s):	SCC 289 of 2014 SCC 290 of 2014

REFSHAUGE J:

Between November 2013 and December 2014, Billy Bartolomeus Tamawiwy, the accused, used two Facebook accounts, one under the name of Billy Tamawiwy and one under the name of Taylah Edwards. Under the latter, he assumed the identity of a young woman and engaged in messaging with a number of young men.

The messages rapidly turned sexual and, in particular, Mr Tamawiwy, posting as Taylah Edwards, made…

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.

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Details

Case: [2015] ACTSC 302
Decision Date: 24 September 2015

CaseChat Overview and Summary

The case of R v Tamawiwy (No 2) involved a criminal trial before the Supreme Court of Victoria, where the defendant, Tamawiwy, faced charges including sexual intercourse without consent and acts of indecency without consent. The court had to determine whether Tamawiwy had engaged in these acts without the consent of the complainant. The case hinged on the interpretation of consent and the role of fraud in negating that consent. Specifically, the court had to consider whether Tamawiwy's fraudulent misrepresentation of fact constituted a serious deception that negated the complainant's consent.

The primary legal issue before the court was whether Tamawiwy's fraudulent misrepresentation of fact, specifically his statement about being HIV positive, was sufficient to negate the complainant's consent to sexual acts. The court needed to decide if such a statement constituted a serious deception, and if so, whether it was enough to negate consent under the applicable statutes. The court also needed to interpret the statutory provisions regarding consent and the impact of fraud on that consent.

The court determined that Tamawiwy's statement about being HIV positive constituted a serious deception, which effectively negated the complainant's consent to the sexual acts. The court found that the statement was a representation of fact rather than a promise, and that such a representation, if false, could negate consent. The court dismissed the application for a directed acquittal on counts 7, 8, and 9, finding that there was sufficient evidence to allow the jury to consider the charges. The court held that the deception was of a kind that could negate consent and thus the charges could proceed to trial.

The court ordered that the application for a directed acquittal on counts 7, 8, and 9 be dismissed, allowing the case to proceed to trial. The court found that Tamawiwy's fraudulent misrepresentation of being HIV positive constituted a serious deception that negated the complainant's consent, thereby upholding the charges against him.

Orders

Orders of the court

The application for a directed acquittal on counts 7, 8 and 9 on the indictment be dismissed.

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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