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 a customs offence. It was not an offence composed in the words of s 61I Crimes Act which Ms Crown properly described as an absolute offence. Brennan J explained the general proposition of criminal offending to which in this ex tempore judgment I will attempt not to do too much damage.

6. Under the subheading General Principles, he stated that an act or omission done or made by a person is the essential foundation of his criminal responsibility. That criminal responsibility depends not only upon the person’s act or omission, but also upon the circumstances in which the act is done or the omission made, usually upon his state of mind at the time and sometimes upon the results of his act or omission. In my opinion, determination of the argument between the parties is assisted by Brennan J’s identification in that passage I last referred to, that criminal responsibility most often depends not only on the person’s act or omission and his Honour’s elucidation – that it depends – but also upon the circumstances in which the act is done or the omission made.

7. Remaining with his Honour’s judgment at 565, he referred to elements of conduct, circumstances and results. Being what Dixon CJ in Vallance v The Queen (1961) 108 CLR 56 at 59 called, “the external elements necessary to form the crime.” Then Brennan J reasoned:

“When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind.”

8. His Honour then referred to the judgment of Stephen J in R v O’Connor (1980) 146 CLR 64 at 96 to 97, in which Stephen J approved, from an earlier statement of law by Lord Simon, that it is the mental element which must be present as to stigmatise as wrongful by the criminal law, the act or omission, such that it is the state of mind, when compounded with prohibited conduct, constitutes the particular offence.

9. To my understanding, application of those general principles here deserves the primary observation that they be in common law in 1985 and s 61I Crimes Act was inserted into the statute in 1989 and became operational on 17 March 1991. As a basic proposition, it is the statutory expression of the offence in s 61I Crimes Act which prevails in the determination of this issue. That said, the passages to which I have referred from the judgment of Brennan J teach us that the mental element is usually implied in the definition. From that would follow that by the words of s 61I, or the statutory intention under the Crimes Act 1900, the expression must be considered in regard to whether or not that implication remains applicable. In other words, is the offence as stated in s 61I Crimes Act an “absolute offence” as Ms Crown put it?

10. Applying the reasoning, in s 61I Crimes Act, the prohibited conduct, being the sexual intercourse, is the first of the elements of the offence. And the circumstances in which that act is done are also elements of the offence. Those circumstances being that the sexual intercourse with another person was without consent of the other person and that the accused knows that the other person does not consent to the sexual intercourse. I moved with counsel through sections of the Crimes Act1900 in order to investigate the legislature’s intention in the framing of s 61I, and whether the legislative intention is to exclude the element of voluntariness or intention. This is the first time in these reasons I have mentioned voluntariness, but my absence of doing so to this point disserved the defence submission, as Ms Hile of counsel for the accused having in her oral submission referred to a voluntary act.

11. The parties confirmed my understanding of that to be a question of whether or not s 61I Crimes Act captured as a criminal offence an act which was accidental.

12. In brief, consideration of those sections of the Crimes Act included the following: posing the question how can one offend against the element of knowledge of lack of consent, unless one acts with a guilty mens rea? In posing this question I note that the section would have to provide in the sense of it being a description of an absolute offence, as Ms Crown put it, a strict liability which would encapture an accidental penetration, being an accidental act of sexual intercourse. Because the fundamental element of mens rea is so prevalent in criminal offending, that is not a proposition easily preferred in my opinion. But, specifically, I observe that it would give little utility to the legislature’s careful provision of the offending states of mind of the accused set out in s 61HK Crimes Act.

13. Ms Hile of counsel for the accused says that it is not expected in the case that the element of the act of sexual intercourse having occurred will be an issue, or that the element of lack of consent of the complainant to the sexual intercourse will be an issue.

14. In my opinion, if s 61I Crimes Act were to capture an unintentional and involuntary act, it is difficult to see utility in the legislature’s careful description of what the offender is taken to know in regard to the other person not consenting to the sexual act set out in s 61HK. I note the time, but I am three quarters of the way through, so I think I will continue, and apologise to the jury when we get them on.

15. Moving further into the legislature, I note the following: in s 4A Crimes Act, recklessness, that being one of the states of knowledge identified in s 61HK Crimes Act, provides that, “For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.” That definition seems to me to be opposite contemplation of the sexual intercourse being an offending act, absent a state of mind. Obviously, the state of mind referred to in s 61HK Crimes Act, being the state of mind in 61I of knowing that the other person does not consent is not a specific reference to intention or voluntariness of the act of sexual intercourse, but those words do characterise the offence as contemplating a guilty state of mind, in my opinion.

16. I also note that a “sexual act”, as defined in s 61HC Crimes Act, is an act carried out in circumstances where a reasonable person would consider the act to be sexual, and, in my opinion, a jury may well determine that an act which was accidental would not be sexual in the sense of that offence. Consistent with the relevance of that observation in this determination is the s 61HH Crimes Act describes “sexual activity” to include “sexual intercourse”, “sexual touching” or a “sexual act”.

17. The final statutory provision to which I will refer is s 61JA Crimes Act. Whilst the heading characterising the section is described as “Aggravated sexual assault in company”, pursuant to it, the co-offender must have shared a common purpose that this act of sexual intercourse would occur, and have been in sufficient proximity to provide encouragement to the principal offender, or coercion to the complainant. Then I observe that the act is described in precisely the same terms as the act in s 61I Crimes Act, that is a person, “who has sexual intercourse with another person without the consent of the other person, and who knows that the other person does not consent to the sexual intercourse”. In other words, for that aggravated form of the offence of sexual intercourse without consent, there could not have been a common purpose if there was not an intention, and a voluntariness to the act of sexual intercourse. I acknowledge that as a different offence, but I have, I hope, covered sufficient provisions of the Crimes Act (and I have not been taken to others by the parties), to observe that none of the provisions, by their words, exclude a guilty mens rea, or exclude voluntariness of the act as an element of the offending.

18. I then turn to the authority upon which the defence also relies, of CTM v The Queen [2008] HCA 25. Between [19]-[20], to which I was taken, the High Court, whilst dealing with offences expressly relating to sexual offending against children, and that, statutorily, the parliament had removed an element of consent, nevertheless, as found by the High Court, at [20], “It was necessary for the prosecution to prove an intentional act of sexual intercourse with a certain person.”

19. In [19], there is reference made to s 61I Crimes Act. Obviously that section, being the one presently under consideration, does not relate to sexual intercourse with a child. In that paragraph, the High Court dealt with the statutory amendments made by the State legislature in 2003. The reference to s 61I Crimes Act was made to identify the difference between offences of carnal knowledge with a child, in regard to which consent was not an element, and the subject offence, elements of which are that the sexual intercourse with another person is without the person’s consent, knowing of the absence of consent.

20. In my opinion, what is said in [20] is particularly relevant here. This is because in CTMv The Queen, the High Court at [20] was identifying the necessary element of the act of sexual intercourse as being an intentional act. In specific response to the Crown’s argument, I make the following observations:

1. It is my opinion that a problem with the “absolute offence” argument is that s 61 does not logically, nor by its precise expression exclude the circumstantial elements of consent and knowledge, and therefore, as a matter of statutory interpretation, it does not exclude or subtract from the elements of the crime the criminality of the nature, including guilty mens rea, in the conduct of the sexual intercourse;

2. In terms of statutory interpretation, the Crown put, “If the accused did not truly intend the act of sexual intercourse, then the Crown cannot prove that the accused knew she was not consenting.” In my opinion, that does not follow. It elides intention across the specific act of sexual intercourse, and the circumstances of consent and knowledge to which I have referred in accordance with the passages from He Kaw Teh. That sexual intercourse, as an element, and absence of consent, as an element, might not be in contest in this case has nothing to do with the element of proving that the accused knew that she was not consenting. Taking this further. From that which I have heard from counsel they expect it to be the situation in this case, that indeed the sexual intercourse, the lack of consent, and that the accused knew that the complainant was not consenting are all likely to be not contested. That does not denude the necessary and implied criminal element of the offending from s 61I Crimes Act, that the sexual intercourse be an intentional act.

21. For these reasons, I determine that intention is a necessary element of the offence, being the charge in the indictment.

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Decision last updated: 22 September 2023