R v Wilson

[2012] HCATrans 14

[2012] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M161 of 2011

B e t w e e n -

THE QUEEN

Applicant

and

MICHAEL WILSON

Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON MONDAY, 6 FEBRUARY 2012, AT 3.31 PM

Copyright in the High Court of Australia

MR T. GYORFFY, SC:   If it please your Honour, I appear for the applicant.  (instructed by Director of Public Prosecutions (Vic))

MR C.B. BOYCE:   If it please your Honour, I appear with my learned friend, MR L.C. CARTER, for the respondent.  (instructed by Victoria Legal Aid (Criminal Law Section))

HIS HONOUR:   Thank you.  Now, Mr Gyorffy, I have read some of the papers in this matter and I have looked at the appeal book and submissions that have been filed in the matter of Getachew.

MR GYORFFY:   Yes, your Honour.

HIS HONOUR:   Immediately you are moving, I think, on the summons of 19 December 2011.  Is that right?

MR GYORFFY:   Yes, your Honour.  Events seem to have overtaken that in the sense that the timetable there is unattainable.

HIS HONOUR:   Yes.

MR GYORFFY:   However, if your Honour was amenable we would like to proceed on the basis that the application for special leave to appeal in Wilson be heard either at the same time or immediately after Getachew.

HIS HONOUR:   Now, what advantage does the Court obtain from doing that?  What disadvantage does the Court avoid by doing that?

MR GYORFFY: If I can put it this way? Your Honour having read the papers should realise that in effect what these two appeals come down to is a particular charge from the charge book where judges have said that provided the jury is satisfied beyond reasonable doubt of certain facts which are set out in section 36 of the Crimes Act that that would be sufficient to establish the fourth element of rape.

Now, in Getachew the same form of charge appears at paragraph 16 of the judgment and was based on section 36(d) of the Crimes Act; that is, that the person was asleep.  In relation to Wilson, exactly the same form of charge was based on sections 36(f) and (g) of the Crimes Act.  So, in other words, the same form of charge has been challenged.

In Wilson itself the Court relied on Getachew, its decision in Getachew, as an authority for making the finding it did.  The most significant difference between the two cases is that in Getachew consent was not an issue, and in Wilson the issue of consent was a live issue in the hearing of the case. 

I do not know if your Honour had the opportunity to look at the transcript of the leave application.  In the course of discussion between her Honour Justice Bell and my learned friend, Mr Boyce, her Honour raised the possibility that it might make a difference that the issue of consent was live.  Ultimately, it is the same issue to be determined in both cases.

So the advantage to the Court to allow the two matters to be heard together essentially is that there is full argument over the entire scope of the application of section 36. It is not confined just to the case where it has not been raised as an issue where the Court might take the view that the Pemble point would be sufficient to dispose of it as opposed to the whole of the argument being put in the entire context.  It would save the Court a considerable amount of time and resources because there is a massive overlap between the two arguments. 

The way I see it, your Honour, the principal arguments would be put in Getachew and then the only residual argument to follow on would be the fact that is there a distinction to be drawn in the application of that principle because it was an issue in Wilson whereas it was not in Getachew.  As your Honour would have seen from looking at the submissions, the counsel appearing in both cases is common counsel so the matter could be dealt with quite expeditiously.

HIS HONOUR:   The matter of Wilson is much more factually heavy than the matter of Getachew.  Getachew is a small appeal book, narrow issue, the complainant having been, according to the evidence, asleep at the time of the penetration.

MR GYORFFY:   That is right, your Honour. 

HIS HONOUR:   This is four complainants, 14 counts involving a very substantial set of directions to the jury and the ultimate complaint that the accused made in the Court of Appeal was deficiency in directions, so that at some point the Court is going to have to come to grips with the directions that were given. I know you say the directions given were deficient or not according to the construction you urge of section 36 and associated sections, but are we not likely to be embarking on a much larger inquiry in Wilson than we are in Getachew?

MR GYORFFY:   I would submit not, your Honour, because the Crown is not challenging any of the facts that were found in Wilson and the facts in Wilson, when one looks at paragraphs 117 and 118 of the judgment, really indicate that the battleground here is not the facts. The battleground here really is whether in fact the common law concept of consent continues after section 36 is educed.

Now, the position would be that ultimately what was said by the Court in relation to why it overruled cases at 135 and 136, your Honour - and I think that looking at those paragraphs, in effect, answers your Honours’ question - it comes down to this situation.  The Crown’s contention will be that the jury’s verdict shows that they rejected the account given by the accused at the trial.  If that is accepted as being the case, then the arguments the Crown puts follow.  If, on the other hand, what is said in here, in particular – the last paragraph:

Depending on what evidence the jury accepted ‑ ‑ ‑

HIS HONOUR:   Where are you reading?

MR GYORFFY:   The top of – well, it is a continuation of paragraph 135 over to page 26 I think, your Honour, the judgment.  My numbers have been chopped off at the top.

Depending on what evidence the jury accepted, it would have been open to it to conclude that, notwithstanding that the [appellant] was aware that a complainant was mistaken about the sexual nature of an act or whether the act was for medical or hygienic purposes, nevertheless he interpreted her verbal and non‑verbal responses to the impugned act as conveying consent.

Now, that is the nub of this case.  What the prosecution says is no, you cannot go onto that last part.  On the other hand, if the court says that what the Crown is arguing is wrong, then it follows that you can go onto that part and therefore the court is correct in its interpretation.  Now, exactly the same situation arises in paragraph [25] of Getachew where their Honours had put the point that – and this is at the top of page 5, your Honour, of the judgment of the Court of Appeal. 

The jury may have concluded that there was no protest by the complainant because she was asleep.

Now, what we say is if she is asleep there cannot be consent.  That is the end of the matter, in effect. 

Equally, if they had been properly instructed the jury may have concluded that the applicant thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that the applicant believed that she had finally consented.

That is the point that we challenge, your Honour, and it is probably beautifully summarised in his Honour the President’s third paragraph in Wilson where, after his lament about the complexity of charges in Victoria, he says the logical consequence of the decision that they have just made is – and I am reading the second‑last line of the first block in paragraph 3:

that in a future case such as this the jury would be expected to understand the distinction between:

(a)being satisfied that the accused was aware that a complainant was (or might be) mistaken about the sexual nature of the act or about whether it was performed for a medical or hygienic purpose; and –

(b)being satisfied that the prosecution had excluded, beyond reasonable doubt, the possibility that the accused, even with that awareness, might not have been aware of the absence, or possible absence, of consent.

Now, the argument really narrows down to this, your Honour. The Crown will be submitting that (b) is just not right, that once section 36 criteria are met and the accused is aware of the factual basis in section 36 that, as a matter of law, means there can be no consent. The only way that the accused can overcome that is by running a factual argument that he was not aware that the woman was asleep.

The second part of the argument is that you cannot bring in other arguments outside of the scope of section 36. We make that point, your Honour, in the reply in Wilson where we give the example of, for example, the person believing that merely because she is protesting she is still saying yes in circumstances where you have section 36 as a communicated consent.

So the point really is whether the common law position applies, the common law position being a generic concept of consent, or whether the effect of section 36 in the legislation in Victoria has been to modernise that making it true consent and communicated consent as a result of which the reasoning that has been followed through from Worsnop no longer applies in Victoria.

HIS HONOUR:   If the appellant succeeds in Getachew, do you say it follows inevitably that you succeed in Wilson?

MR GYORFFY:   Yes, your Honour.

HIS HONOUR:   If you lose Getachew, do you say it follows inevitably that you lose Wilson?

MR GYORFFY:   Yes, your Honour, with one caveat on that.  There are two grounds in Getachew.  One ground is that the charge is correct, which is the common ground between Getachew and Wilson.  There is a second ground, which I will loosely call the Pemble ground, that the issue of consent never arose in the trial and should never have been left.  Therefore, that issue does not arise.  If the Court were to take the view that only the second ground succeeds, not the first, then Wilson would still remain open, but that is the only caveat I put on it, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Boyce, what is the attitude of the respondent to the application for leave?

MR BOYCE:   Your Honour, at first blush I have to concede that the issues raised by the Crown in each case and that are expressed in its ground 2A in each case are almost identical.  There is no doubt about that.  Then, at first blush, your Honour, the submissions that Mr Gyorffy make might have some appeal but ‑ ‑ ‑

HIS HONOUR:   But if the issues are identical, there is a needless duplication.

MR BOYCE:   Yes, you see, your Honour – your Honour asked the question very early on to my learned friend, namely this, what is the benefit to the Court of having these two cases listed together, as it were?  There could be only benefit, in my respectful submission, if Mr Gyorffy’s side won in Getachew.  If Mr Gyorffy’s side, or the appellant in Getachew, loses, then there is no benefit.

Then we go to the next point which is on what basis might Mr Gyorffy win in Getachew and if he does, will that necessarily as a matter of logic mean that he will win in Wilson and, therefore, it would be convenient to have both cases heard together.  As you have just heard my learned friend concede, a win for him, if I can put it that way, in Getachew, does not necessarily mean a win for him in Wilson.  We draw attention also to the fact that the cases, at least factually speaking, in Getachew and Wilson are very different and I do not want to dwell upon that. 

Secondly, we draw attention to the fact that in neither case, that is in the intermediate appellate court, the Court of Appeal, in either Getachew or in Wilson, does it appear to us that the question that the appellant now wishes to ventilate, that is, whether the Court of Appeal has repeatedly failed to apply the will of the legislature in terms of the interpretation of section 36 and section 38 of the Crimes Act, in neither case, insofar as we can see was the court troubled with that submission.

We say, with respect, that the plot thickens somewhat and that if Mr Gyorffy – and that, therefore, the link between the two in terms of convenience to the Court, that is to say, in terms of it being convenient to the Court necessarily to deprive or to save the Court from having to have two hearings when it might only have one, is a tentative link at best.  Whilst we concede, obviously enough, that in Mr Gyorffy’s documents he raises the same point in each case and we have to live with that, in substance, the connection is not logically apparent.  I do not know if that assists your Honour, but that is the position.

HIS HONOUR:   If you were sitting in Court you would have heard there is a list of cases that will be fixed for Melbourne on 9 March.  Getachew is in the list to be heard as an appeal in Canberra on 8 March.  Is there an advantage in – if I were minded not to join the two cases together for hearing by the Full Court as on appeal, so if I were not minded to refer Wilson in for consideration by the Full Court on 8 March, is there advantage to be had by putting Wilson in for leave on the 9th?

MR BOYCE:   We will be ready to proceed on that day.

HIS HONOUR:   You may be ready but is there advantage?

MR BOYCE:   Is there advantage?  At first blush, your Honour, I cannot see it, with respect, no.

HIS HONOUR:   The Court will have heard argument in Getachew, inevitably, by then.  We may have a better view of how Getachew is likely to fall out.  It occurs to me that bringing the application on whilst argument in Getachew is, at least, fresh in the mind may enable us better to dispose of the application for leave.

MR BOYCE:   Of course, that would be an objective reality depending on how things pan out in Getachew and ‑ ‑ ‑

HIS HONOUR:   The bottom line, Mr Boyce, is this:  if I put Wilson in for hearing with Getachew I am more than doubling the record that we have to get on top of.

MR BOYCE:   Precisely.

HIS HONOUR:   I am factually complicating the cases.  One concerns a complainant who is said to have been asleep at the time of penetration.  This is a series of complainants who say that they were assaulted in

circumstances where there may be a question about whether that was an act for medical or hygienic purposes or, alternatively, an act where the complainant was mistaken about the sexual nature of the act.  What do we get by putting them all together?  Unless we get something putting them altogether I am not minded to do so.

MR BOYCE:   In my respectful submission, the odds, if I can put it that way, your Honour, of their being a benefit to the Court are speculative at best.  It may well indeed turn out to be a burden, but that is all.  Thank you.

HIS HONOUR:   Yes.  Thank you, Mr Boyce.  Mr Gyorffy, you have heard what I have said to Mr Boyce.  As I say, the bottom line is what do we get out of this?  I am sorry to be as blunt as that, but best we talk tintacks. 

MR GYORFFY:   Well I thought I was as blunt as could be, your Honour, in saying that there is such an overlap of the issues that I would have thought that the back of the argument would be broken in Getachew.  If we come back the next day I see the wisdom of coming back on 9 March to deal with the leave application here in Melbourne on that day because whoever sits on the Court hearing that leave application will have got, really, most of the argument.  The only thing that would be left would be this issue of whether the fact that there was an issue raised of consent is material to what might be the outcome.  That is all that would be left.  That is it, in a nutshell, your Honour.

HIS HONOUR:   That last point you mention is really the Pemble point, that is, does disposition of Getachew turn on whether there was a live issue at trial about consent or was the only issue sleep or not sleep?

MR GYORFFY:   They go together because, being practical about it, it would be open to the Court to deal with Getachew purely and simply on the Pemble point.  I accept that.  The danger of doing that ‑ ‑ ‑

HIS HONOUR:   I am not sure whether it is a Pemble point or it is a proviso point.  It may be, I do not know.  I just do not know.

MR GYORFFY:   It has been treated as a proviso point in Victoria and we will be submitting that is wrong.  It should be a Pemble point.  Leave that to one side, your Honour, if it is dealt with that way then the issue remains live, but the problem that the Court would leave the administration of justice with in Victoria is that there would be a stain hanging over that form of charge which we say is right and which we would be submitting to the Court is the only charge that a judge can make in circumstances where no issue has risen because there is the obligation to deal fully with the elements, notwithstanding that an issue is not taken, and the only charge

that the judge can give in those circumstances is what the judge gave in this case.  So we will be pushing strongly for the Court to actually decide both grounds because of the practical importance of it, your Honour.

HIS HONOUR:   Yes, thank you. 

In September 2011, Justices Heydon and Bell granted special leave to the prosecution to appeal to the Court from the whole of the judgment and order of the Court of Appeal of the Supreme Court of Victoria given in the matter of Tomas Getachew v The Queen. An issue that was agitated in the Court of Appeal in that matter and which the prosecution will agitate in its appeal to this Court concerns the application and thus the proper construction of section 36 of the Crimes Act 1958 (Vic) and its provisions concerning the meaning of “consent” for the purposes of subdivisions 8A to 8D of Part 1 of that Act.

In Getachew a central factual issue was, as I understand it, whether the complainant was, as she contended, asleep when the accused, now respondent in this Court, sexually penetrated her. That in turn gives rise to questions about the meaning and application of section 36(d) of the Crimes Act and its provision that:

“For the purposes of Subdivisions (8A) to (8D) consent means free agreement.  Circumstances in which a person does not freely agree to an act include the following –

. . . 

(d) the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing”.

Section 38 of the Crimes Act provides in subsection (2) that:

A person commits rape if‑

(a)he or she intentionally sexually penetrates another person without that person’s consent‑

(i)while being aware that the person is not consenting or might not be consenting; or

(ii)while not giving any thought to whether the person is not consenting or might not be consenting -

The matter of Getachew is fixed for hearing by a Full Court in Canberra on Thursday 8 March next. 

In October 2011, the Court of Appeal of the Supreme Court of Victoria delivered reasons for judgment and made orders in the matter of Michael Wilson v The Queen.  That matter concerned the conviction of Mr Wilson for numerous sexual offences allegedly occurring in the course of his practice as a naturopath.  The Court of Appeal ordered that 14 of the convictions entered at trial should be set aside and that a new trial be had in respect of those 14 counts, counts which involve four different complainants.

On 23 November 2011, the prosecution applied for special leave to appeal to this Court against the orders made by the Court of Appeal in the matter of Wilson.  The prosecution alleges that the legal issues that will arise in the matter of Wilson, if not identical to, are at least very substantially similar to those that are to be debated in the matter of Getachew. 

The prosecution alleges that the same legal questions will arise, despite the engagement or possible engagement of two different paragraphs of section 36 of the Crimes Act from the paragraph that was engaged in the matter of Getachew.  In the matter of Wilson, the two paragraphs of section 36 that may have application are paragraph (f) “the person is mistaken about the sexual nature of the act or the identity of the person”, or paragraph (g), “the person mistakenly believes that the act is for medical or hygienic purposes”.

The prosecution has applied by summons for orders which, in effect, would have the result that either the application for special leave to appeal in the matter of Wilson or any resulting appeal in Wilson should be heard by this Court at the same time as, or immediately after, the hearing of the appeal in Getachew.

Subject to one qualification, counsel for the applicant in the matter of Wilson accepts that if the appellant succeeds in Getachew he would submit that the application for special leave in the matter of Wilson should be granted and the appeal instituted in consequence of that grant should also be allowed.  He accepts that if the appeal in Getachew fails then the application for special leave and any consequent appeal in Wilson would also fail. 

The qualification that he enters is that in Getachew there is a question whether, having regard to the manner in which the trial was conducted at first instance, questions of consent were alive, at least in the fashion that now is sought to be agitated in this Court. 

In my opinion, there is no sufficient advantage to be gained by expediting the matter of Wilson by now referring the application for special leave in that matter for consideration by the Full Court that will hear the matter of Getachew.  The factual record in Wilson is larger and more complex than it is in Getachew.  If disposition of Getachew in truth concludes the issues in Wilson, so be it.  No doubt, effect can be given to that after judgment is given in Getachew. 

Because the record in Wilson is as voluminous as it is and the issues that were agitated at trial were larger than the issues that were agitated in Getachew it is better, in my opinion, that Getachew go forward in its present form without the addition of any complication presented by having Wilson argued as on appeal at the same time. 

Nonetheless, there may be some advantage in the application for special leave to appeal in the matter of Wilson being heard very soon after the hearing of the appeal in Getachew and, accordingly, subject to anything that counsel may say as to the form of the orders that I propose, I would propose to order that subject to any further order of the Court or a judge, the application for special leave to appeal in the matter of Wilson is to be fixed for hearing in the list of cases to be heard in Melbourne on Friday 9 March 2012. 

Do counsel wish to be heard further about the form of the order or is there any other order that I should consider making?

MR GYORFFY:   I do not want to be heard on the form of the order, and I do not think it is necessary to make directions in relation to filing of matters.  We have reached the point now where we are just about ready to file the appeal book on that, your Honour.

HIS HONOUR:   Yes, well there is no occasion, is there, to make some expedited timetable?  Everything can be done in time, can it, Mr Gyorffy?

MR GYORFFY:   We are fine, your Honour.  It can be done in time.

HIS HONOUR:   Yes.  Mr Boyce?

MR BOYCE:   Your Honour, can I just mention one matter, and it is this.  In our summary of argument in the special leave application of Wilson we seek costs if special leave is refused and we would even go so far so to seek costs if special leave is granted.  May we apply for an order that the costs of this summons be costs in the application for special leave?

MR GYORFFY:   I do not object to that, your Honour.

HIS HONOUR:   It may be better if any order for costs is to be made simply to reserve them for consideration by the Full Court that hears the application for leave, I think, Mr Boyce.  If I make them costs in the cause, as it were, that rather suggests that there should be an order for costs and that is a separate and distinct issue, I think.

MR BOYCE:   With the greatest respect, your Honour, I agree with your Honour’s formulation if I may.

HIS HONOUR:   Mr Gyorffy, if I reserve any question of costs for consideration by the Full Court that hears the application for leave, is that appropriate?

MR GYORFFY:   Yes, your Honour. 

HIS HONOUR:   Yes.  I will add that order.  Thank you.  There is nothing else?  Then adjourn the Court.

AT 4.07 PM THE MATTER WAS CONCLUDED