R v Tatola (No. 3)

[2023] NSWDC 388

District Court

New South Wales

Medium Neutral Citation:

R v Tatola (No. 3) [2023] NSWDC 388

Hearing dates:

12 September 2023

Date of orders:

12 September 2023

Decision date:

12 September 2023

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

See [21]

Catchwords:

CRIME – Statutory interpretation – Whether or not the act of sexual intercourse must be an intentional act – Whether or not s 61I Crimes Act is an absolute offence – Requisite mens rea for the act of sexual intercourse

Legislation Cited:

Crimes Act 1900 (NSW), ss 4A, 61I, 61HK, 61HC, 61HH, 61JA

Cases Cited:

CTMv The Queen [2008] HCA 25

He Kaw Teh v The Queen (1985) 157 CLR 523

R v O’Connor (1980) 146 CLR 64

VallancevThe Queen (1961) 108 CLR 56

Category:

Procedural rulings

Parties:

Rex (Crown)
Mateo Lisi Tatola (Accused)

Representation:

Counsel:
Ms K James (Crown)
Ms E Hile (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Tang Lawyers (Accused)

File Number(s):

2022/00164198

Publication restriction:

Statutory non-publication order regarding the name of the complainant or anything that might identify them.

Judgment EX TEMPORE

Whether or not the Act of Sexual Intercourse must be an Intentional Act

1. HIS HONOUR: Judgment on the question of whether or not the act of sexual intercourse described in the offence under s 61I of the Crimes Act 1900 (NSW) must be an intentional act.

2. I think it most useful to commence this judgment with the helpfully efficient statement of the Crown’s position addressed in the latter part of the argument and then return to the substance of the argument. The Crown position is that parliament has deliberately drawn s 61I Crimes Act to compose by the expression of that section, all of the elements of the offence.

Is that a fair statement, Ms Crown, before I go on?

SOLICITOR ADVOCATE: Yes. That's a fair statement.

HIS HONOUR: Thank you.

SOLICITOR ADVOCATE: Thank you, your Honour.

3. HIS HONOUR: A very helpful description of the argument was put by Ms Crown. According to my note, it was that parliament has drawn an “absolute offence” in that the entirety of the elements are in the offence provision. What that submission explores in the sense that it is composed within the submission is that the very words of the section describe the three elements. They being;

1. The act of sexual intercourse;

2. That it occurred without consent; and

3. That the accused knew that the complainant was not consenting.

4. It is to be assumed in these reasons that the parties have referred to knowledge as used in the words, “who knows that the other person does not consent to the sexual intercourse”, in s 61I Crimes Act as contemplating the definition of knowledge set out in s 61HK of the CrimesAct.

5. The submission for the defence is premised upon the High Court decision He Kaw Teh v The Queen (1985) 157 CLR 523 and particularly the judgment of Brennan J at 563 to 565. His Honour there was considering…