The Queen v Michael Wilson

[2012] HCASL 82

THE QUEEN

v

MICHAEL WILSON

[2012] HCASL 82
M161/2011

1. The respondent, Michael Wilson, was charged in the County Court of Victoria with 50 counts of sexual offences.  At trial, he was convicted of 22 counts of indecent assault, 11 counts of rape, one count of sexual penetration of a child under the age of 16 years, and one count of committing an indecent act in the presence of a child under the age of 16 years.  Each count related to a person with whom the respondent had dealt in his practice as a naturopath. 

2. On his appeal against conviction to the Court of Appeal of the Supreme Court of Victoria, the Court of Appeal (Maxwell P, Redlich JA and Kyrou AJA) ordered that his convictions on 17 of the counts (six counts of indecent assault, 10 counts of rape and the count of committing an indecent act in the presence of a child) be quashed and a new trial had. 

3. The prosecution seeks special leave to appeal to this Court against those orders.  The prosecution alleges that the Court of Appeal was wrong to hold that the trial judge had misdirected the jury about the issue of consent.  The prosecution submits that the respondent's appeal on these grounds should have been dismissed.

4. This application for special leave was stood out of the list pending the hearing and determination by this Court of R v Getachew[1], in which the Court considered issues about the construction and application of some of the general provisions relating to sexual offences set out in subdiv (8) of Div 1 of Pt I (ss 35‑37B) of the Crimes Act 1958 (Vic).

   [1](2012) 86 ALJR 397; 286 ALR 196; [2012] HCA 10.

5. The factual circumstances of this matter differ from those considered in Getachew.  In Getachew, the complainant was asleep at the time of penetration, which bore upon the question of consent.  By contrast, in this case, there are questions about whether one or more of the complainants was mistaken about the sexual nature of the act of which complaint was made[2] or mistakenly believed that any of the acts of which complaint was made was "for medical or hygienic purposes"[3]. 

   [2]Crimes Act 1958 (Vic), s 36 (f).

   [3]Crimes Act 1958 (Vic), s 36 (g).

6. Contrary to the submissions of the applicant, we are not persuaded that the directions given by the trial judge about the questions of mistaken belief, the accused's knowledge of the existence of such a mistake or mistakes and the accused's state of mind about consent accorded with what this Court said in Getachew about the proper construction and operation of s 37AA of the Crimes Act[4].  It follows that we are not persuaded that the applicant has sufficient prospects of disturbing the actual orders made by the Court of Appeal in this matter to warrant a grant of special leave.  It would therefore not be in the interests of justice in this particular case, or more generally, that there be a grant of special leave to appeal. 

   [4]R v Getachew (2012) 86 ALJR 397 at 404 [28]; 286 ALR 196 at 203‑204.

7. The respondent seeks, and should have, the costs of the application. 

8. Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
19 June 2012 S.M. Kiefel