The Queen v Senge
[2021] NTSC 80
•27 October 2021
CITATION:The Queen v Senge [2021] NTSC 80
PARTIES:THE QUEEN
v
SENGE, Aaron
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22035102
DELIVERED: 27 October 2021
HEARING DATES: 20 September 2021 & 5 October 2021
JUDGMENT OF: Brownhill J
CATCHWORDS:
CRIME – Sexual offences – Sexual Assault – Consent – ‘Advance Consent’ – Whether a conscious person can consent in advance to sexual activity that will occur while they are asleep or unconscious – Whether such sexual activity would constitute sexual intercourse without consent – Criminal Code Act 1983 (NT) s 192(2)(c) – Statutory construction.
GW v The Queen [2019] HCJAC 23; The Queen v JA [2011] 2 SCR 440, applied.
McMaster v The Queen (1994) 4 NTLR 92, distinguished.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Boughey v The Queen (1986) 161 CLR 10; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Papadimitropoulos v The Queen (1957) 98 CLR 249; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214; SAS Trustee v Miles (2018) 265 CLR 137, Stuart v The Queen (1974) 134 CLR 426; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; The Queen v Barlow (1997) 188 CLR 1; The Queen v Dee (1884) 15 Cox CC 579; The Queen v Makary (2018) 274 A Crim R 392; The Queen v Mueller (2005) 62 NSWLR 476; The Queen v Shaw [1996] 1 Qd R 641, referred to.
Crimes Act 1958 (Vic) s 36.
Criminal CodeAct 1983 (NT) ss 1, 187, 192.
Criminal Code Amendment (Criminal Responsibility Reform) Bill 2005 (NT).
Criminal Code Amendment Act (No 3) 1994 (NT).
Criminal Code, RSC 1985, c C-46 (Canada).
Criminal Law Consolidation Act 1935 (SA) s 46.
Interpretation Act 1978 (NT) ss 62A, 62B.
Sexual Offences (Scotland) Act 2009 (Scot).D Manzie, Sexual Abuse Discussion Paper (Discussion Paper, No 2, July 1992).
D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019).
Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 5 – Sexual Offences Against the Person (Report, May 1999).
New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020).
Northern Territory, Parliamentary Debates, Legislative Assembly, 2 March 1994 (Daryl Manzie, Attorney-General).
Queensland Law Reform Commission, Review of Consent Laws and the Excuse of Mistake of Fact (Report No 78, June 2020).
REPRESENTATION:
Counsel:
Crown:V Engel
Accused:J Razi
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: Bro2117
Number of pages: 34
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Senge [2021] NTSC 80
No. 22035102
BETWEEN:
THE QUEEN
AND:
AARON SENGE
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 27 October 2021)
The issue raised in this matter is whether a conscious person can consent in advance to agreed sexual activity that will occur while they are asleep or unconscious, or whether such sexual activity would constitute sexual intercourse without consent.
The accused is charged with one count of gross indecency without consent contrary to s 192(4) of the Criminal CodeAct 1983 (NT) (‘the Code’) (Count 1), one count of sexual intercourse without consent contrary to s 192(3) of the Code (Count 2) and, in the alternative to Count 2, one count of gross indecency without consent.
Crown case
The Crown case is that, in January 2020, the complainant was staying with the accused and other members of his family. The complainant and accused had been friends for about 10 years. She was staying there because a previous relationship had ended and she needed a place to stay. In June 2020, the complainant was shown video footage of the accused engaging in sexual conduct with her. She has no memory of what is shown in the footage. She provided the footage to police. There are two videos, which run sequentially. In the footage, the complainant is seen asleep on a mattress on the floor of a bedroom. She is wearing a red dress and a blanket partially covers her. The accused uses his arm to touch the complainant’s bottom area, moving his arm under the blanket. He then repositions himself and moves her dress up from her thigh to her hips, exposing her underwear and skin, he then puts his hand down the back of her underwear and moves his hand in an up and down rubbing motion on her body. He touches her around her genitals for several minutes. He then licks his finger(s) and digitally penetrates her vagina. This continues for about a minute. He then walks to the door, opens it, looks around, closes it and returns to where the complainant is lying. He stands at her feet, facing her, unties his shorts, exposes his penis and rubs it in her direction. The video then cuts out. During the entire footage, she is asleep and unresponsive.
The defence may wish to raise the issue of ‘advance consent’. That is, the defence may wish to argue that the complainant had, on some earlier occasion when she was awake, given consent to the accused to engage in sexual touching and/or penetration of her whilst she was asleep.
The defence asked the Court, prior to trial, to rule on the following question of law:
Can a conscious person consent in advance to agreed sexual activity that will occur while he or she is asleep or unconscious?
That question was said to raise the ‘component question’:
Is the notion of advance consent consistent with the concept of consent as provided by the Code?
On 5 October 2021, I answered the questions as follows:
A conscious person cannot consent in advance to agreed sexual activity that will occur while he or she is asleep or unconscious because the notion of advance consent is inconsistent with the concept of consent as provided by the Code.
These are my reasons.
Principles of statutory construction
The task of statutory construction is the attribution of meaning to text.[1] The High Court has said on many occasions that the task begins and ends with the text itself.[2] What that means is that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, whilst at the same time, regard is had to its context and purpose.[3] So, from the outset (not only when ambiguity might be thought to arise), the text must be considered in context (which includes the existing state of the law and, by the legitimate use of extrinsic materials, the mischief which the statute was intended to remedy),[4] and attribution of meaning to the text in context must be guided so far as possible by the statutory purpose,[5] noting that the language which has actually been employed by the legislature is the surest guide to the statutory purpose.[6]
Both the common law principles of statutory interpretation and s 62B of the Interpretation Act 1978 (NT) permit recourse to various extrinsic materials in attributing meaning to the statutory text by reference to its context. Section 62B is constrained in its application to considering the material to confirm the ordinary meaning conveyed by the text or to determine the meaning when it is ambiguous, obscure or the ordinary meaning would lead to a result that is manifestly absurd or unreasonable (s 62B(1)). The common law principles have no such constraint and, in light of the ‘modern approach’ to statutory interpretation as set out in paragraph [9] above, the constraints in s 62B(1) are unlikely to prevent a court from having regard to extrinsic materials.[7]
Extrinsic materials that may be legitimately referred to when considering Northern Territory statutes include any explanatory speech or statement given by a Minister or other Member of the Legislative Assembly on introducing the Bill; any explanatory memorandum relating to the Bill containing the provision; and any relevant document that was laid before or furnished to the Members of the Legislative Assembly by a Minister or other Member before the provision was enacted (s 62B(2)).
As regards the construction of penal statutes and criminal codes in particular, there is some difference amongst the authorities as to the degree to which the courts may refer to the common law.[8] Nevertheless, it is clear enough that ambiguity in the terms of the Code, or the use of words that have previously acquired a technical meaning, will justify resort to the common law.[9]
Authorities
The question raised by this matter has not been determined in this jurisdiction. The closest any authority in this jurisdiction appears to have come is the decision of the Court of Criminal Appeal in McMaster v The Queen.[10] The issue there was (relevantly) whether the trial judge should have directed the jury about the accused’s intention to have sexual intercourse with the complainant without her consent (noting this charge was brought under the former version of s 192 of the Code), in circumstances where there was evidence suggesting that the complainant was so affected by alcohol that she was incapable of consenting to the sexual intercourse, there was evidence the accused had consensual sexual intercourse with the complainant some weeks before the intercourse in question, and the jury had asked for direction as to when consent ‘begins and ends’ and whether a person could give consent at some time prior to the sexual intercourse. The issue went to the accused’s intention or knowledge about lack of consent, rather than to the complainant’s consent per se. The judgment of Gray AJ (with whom Thomas and Priestly JJ agreed) sets out (at 98) the trial judge’s exchange with counsel, in which the trial judge said, in effect, that it was not the law that the complainant could have given advance consent to sexual intercourse which took place whilst she was asleep. There was no demur from that statement by Gray AJ. Patently, the decision offers no real assistance in the determination of this matter.
The question raised by this matter does not appear to have been determined elsewhere in Australia. I have been referred to two decisions from other Commonwealth countries which have addressed the issue of advance consent. These are dealt with below.
The terms of s 192(1), (2)
The offence in s 192(3) is to have ‘sexual intercourse with another person … without the other person’s consent; and knowing about or being reckless as to the lack of consent’. The offence in s 192(4) is in identical terms save that it refers to ‘performs an act of gross indecency on’ another person. In these reasons, for ease of reference, I will refer only to ‘sexual intercourse’ rather than to both ‘sexual intercourse and an act of gross indecency’.
By s 192(1), ‘consent’ means ‘free and voluntary agreement’. Applying that definition, the relevant offence is to have sexual intercourse with another person without the other person’s free and voluntary agreement and knowing about or being reckless as to the lack of free and voluntary agreement.
Section 192(2) is in the following terms:
(2) Circumstances in which a person does not consent to sexual intercourse or an act of gross indecency include circumstances where:
(a)the person submits because of force, fear of force, or fear of harm of any type, to himself or herself or another person;
(b)the person submits because he or she is unlawfully detained;
(c)the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing;
(d)the person is incapable of understanding the sexual nature of the act;
(e)the person is mistaken about the sexual nature of the act or the identity of the other person;
(f)the person mistakenly believes that the act is for medical or hygienic purposes; or
(g)the person submits because of a false representation as to the nature or purpose of the act.
The Crown argued that s 192(2) sets out a list of circumstances, operative at the time of the sexual intercourse, in which consent is deemed not to have existed, and if one of the listed circumstances is established at the time of the sexual intercourse, then lack of consent is, without more, established.
The defence argued that s 192(2) sets out a list of circumstances in which consent is not capable of being given. The circumstances are operative at the time of behaviour that might otherwise appear to be consent (‘apparently consenting behaviour’), which generally, but not necessarily, will coincide with the time of the sexual intercourse. Consequently, it was argued, s 192(2)(c) does not preclude a finding that a person consented to sexual intercourse because they gave consent in advance to agreed sexual activity that will occur while they are asleep or unconscious.
Both parties referred to various textual features of s 192(1) and (2) as supportive of their respective construction of its terms.
‘Circumstances’
The defence argued that the chapeau of s 192(2) refers to ‘[c]ircumstances in which a person does not consent’, thereby tying the circumstances to the lack of consent and indicating that s 192 addressed ‘the circumstances of the consent and not the circumstances of the sexual intercourse’. The defence’s reference to ‘the circumstances of the consent’ is a reference to the apparently consenting behaviour, and I will substitute the former term for the latter term when referring to the defence’s arguments.
The chapeau refers to ‘[c]ircumstances in which a person does not consent to sexual intercourse’. The chapeau must be read as a whole. When that is done, the ‘circumstances’ being referred to could be the circumstances of the apparently consenting behaviour or the circumstances of the sexual intercourse.
The Crown argued that the defence’s construction created two rules, one for s 192(2)(c) (that the circumstances are the circumstances of the apparently consenting behaviour) and one for s 192(2)(a), (b), (d), (e), (f) and (g) (that the circumstances are the circumstances of the sexual intercourse), and that the existence of two different rules is not supported by the language of the chapeau, which simply refers to ‘[c]ircumstances in which a person does not consent to sexual intercourse’. The defence argued that its construction did not create two rules, but one, namely that the circumstances are the circumstances of the apparently consenting behaviour, nevertheless conceding that in all but rare cases, there would be a ‘convergence’ of both the question of consent and the act of sexual intercourse. The ‘rare cases’ referred to appeared to be cases of advance consent.
The language of the chapeau is capable of referring to both of the ‘rules’ posited by the Crown and the ‘rule’ posited by the defence. Whether the chapeau is seen as creating two rules which respectively apply depending on the factual situation, or one rule which, depending on the factual situation, might, in all but rare cases, operate consistently with a different rule, seems to me to offer little assistance. Even if the Crown is correct, of itself, this is not a basis to reject the defence’s construction.
‘Does’
The defence argued that the word ‘does’ in the phrase ‘does not consent’ in the chapeau of s 192(2) connotes the doing of something, namely the ‘not doing of consenting’. It was said this word was deliberately chosen by the legislature, as opposed to words like ‘is not consenting’ or ‘cannot consent’, to indicate that the circumstances referred to are those operating at the time of the apparently consenting behaviour. To my mind, those alternative words would not have made it any clearer what ‘circumstances’ are being referred to. This argument is similar to the argument referred to in paragraph [21] above and is answered as set out in paragraph [22] above. It does not follow from the presence of the word ‘does’ that the circumstances being referred to are those operating at the time of the apparently consenting behaviour, rather than at the time of the sexual intercourse.
Work for s 192(2)(c) to do
On the defence’s construction of s 192(2), the effect of s 192(2)(c) would be that a person cannot give consent (ie free and voluntary agreement) while they are asleep or unconscious. To my mind, it seems so obvious as to go without saying that a person who is asleep or unconscious cannot exercise their will so as to come to a mind-state of free and voluntary agreement to anything. If that were so, s 192(2)(c) would have no work to do, a matter which points against the defence’s construction.[11] However, as submitted by the defence, one could say the same thing about where a person submits to sexual intercourse because of force or fear of force or harm and the work which s 192(2)(a) is to do. Even on the defence’s construction, it could be accepted that the work that each of s 192(2)(a) to (g) has to do is, in varying degrees, to avoid doubt. It follows that this is not a basis to reject the defence’s construction.
The language and content of the paragraphs
The Crown argued that the presence of the words ‘submits because’ in s 192(2)(a), (b) and (g) contrasts with the absence of those words in s 192(2)(c). The Crown argued that the legislature could have included the words ‘submits because’ in s 192(2)(c) but deliberately chose not to, indicating that, unlike s 192(2)(a), (b) and (g) which require that the stated circumstances impacted the person’s will and caused them to submit, the legislature intended in s 192(2)(c) that the stated circumstances alone (ie the mere state of being asleep or unconscious at the time of the sexual intercourse) were sufficient to deny consent.
The defence argued that the distinction referred to by the Crown is explained by the nature of the circumstances set out in each paragraph, and does not indicate that the legislature intended that, if a person was asleep or unconscious at the time of sexual intercourse, they must be taken not to have consented.
As the defence argued, the language of each paragraph is referable to the particular circumstances covered. Section 192(2)(a), (b) and (g) contain the words ‘submits because’ because those paragraphs describe situations in which the person’s will or mind is overborne. Section 192(2)(d), (e) and (f) do not contain the words ‘submits because’, and instead contain the word ‘is’, because those paragraphs describe situations in which the person’s will or mind is irrelevant because it is incapable of understanding or mistaken about the true situation. Section 192(2)(c) does not contain the words ‘submits because’, and instead contains the word ‘is’, because that paragraph describes a situation in which the person has no will or mind.
Conclusion as to textual indications of meaning
Notwithstanding the textual matters referred to by the parties, the language and content of the paragraphs of s 192(2) can be read either as referring only to circumstances existing at the time of the sexual intercourse or, alternatively, to circumstances existing at the time of the apparently consenting behaviour, which will commonly but not necessarily coincide with the time of the sexual intercourse.
It follows that, in their ordinary meaning and applied to the issue arising in this matter, the words of s 192(2)(c) of the Code are ambiguous.
Context – other provisions in s 192
Section 192(3) describes the offence as (relevantly) where the person ‘has sexual intercourse with another person … without the other person’s consent’. The term ‘sexual intercourse’ is defined by s 1 of the Code: (a) to mean specified conduct involving the insertion of body parts or objects into other body parts, cunnilingus or fellatio; and (b) to continue ‘until the withdrawal of the part of the body or object from the [body part] into which it was inserted or the cessation of cunnilingus or fellatio, as the case may be’. In their terms, the effect of these provisions is that, if a person who consented to sexual intercourse at the time of penetration revokes that consent during sexual intercourse and communicates that revocation to the other person, continuation of the sexual intercourse thereafter by the other person would constitute an offence against s 192(3).
Consistently with that, s 192(4A) of the Code provides that being reckless as to a lack of consent includes not giving any thought to whether or not the other person ‘is consenting’ to the sexual intercourse.
These provisions are contextual indications that the term ‘consent’ in the Code requires that the free and voluntary agreement:
(a)must be existing, and operative at the time of, and during, the sexual intercourse; and
(b)may be withdrawn at any time during the sexual intercourse.
These provisions do not, however, give any indication one way or the other as to whether the capacity to withdraw the agreement during the sexual intercourse is a necessary, rather than a possible, incident of the notion of ‘consent’, such that its absence would compel a finding of a lack of consent.
Context – other provisions in the Code
Section 192A(c) of the Code provides that, in a relevant case, the Judge shall direct the jury that a person is not to be regarded as having consented to an act of sexual intercourse only because the person had, on that or an earlier occasion, consented to sexual intercourse, whether or not of the same type, with the accused.
The Crown argued that s 192A supported its construction of s 192(2)(c) as not accommodating advance consent because it compels the trial judge to direct the jury that consent to sexual intercourse given at an earlier time is not determinative of the issue of consent, and a case founded on advance consent would assert that consent given at an earlier time is determinative of the issue of consent.
The defence argued that s 192A(c) was directed to preventing the jury from reasoning to implied consent (ie reasoning from consent to prior sexual activity to consent to the subsequent sexual intercourse), as opposed to advance consent (ie reasoning from prior consent to the subsequent sexual intercourse occurring whilst the person is asleep or unconscious). The defence also argued that the proper effect of s 192A, which turns on the word ‘only’, is to compel a trial judge to direct the jury that, in effect, in considering the issue of consent, they must take into account the evidence about all of the circumstances of the sexual intercourse, which may include advance consent to the relevant sexual intercourse.
At first blush, s 192A(c) appears to require a trial judge to direct the jury that the complainant is not to be regarded as having consented to an act of sexual intercourse only because she had, on that occasion, consented to sexual intercourse with the accused. Such a direction would be nonsensical – the complainant is not to be regarded as having consented to the sexual intercourse only because she had consented to it. However, I accept the Crown’s submission that the words ‘had, on that … occasion’ are referable to the situation where the complainant consented, on that occasion, to sexual intercourse not of the same type, as captured, but not exhausted, by the composite phrase ‘whether or not of the same type’.
A difficulty for the defence arguments is that a defence case of advance consent appears to fall squarely within the terms of s 192A(c) because, as the Crown submitted, that case would assert that the complainant is to be regarded as having consented to the act of sexual intercourse only because they had on an earlier occasion consented to sexual intercourse, of the same type, with the accused. In its terms, s 192A(c) is directed to consent on an earlier occasion, not sexual intercourse on an earlier occasion. Its language quite readily captures consent given at an earlier time to any sexual intercourse, whether at that time or subsequently.
To my mind, s 192A(c) is a strong contextual indication that the term ‘consent’ in the Code does not contemplate advance consent.
Mischief to which s 192 was directed
Section 192 was substituted by, and s 192A and the definition of ‘sexual intercourse’ were inserted by, the Criminal Code Amendment Act (No 3) 1994 (NT) (‘Amendment Act’), which commenced operation on 1 June 1994. The new s 192(1) defined ‘consent’ as ‘free agreement’. The new s 192(2) was in essentially the same form as it currently is, save that it used the words ‘freely agree’ rather than ‘consent’ in the chapeau.[12]
Before the substitution, s 192(1) provided that a person who unlawfully assaults another with intent to have carnal knowledge or to commit an act of gross indecency is guilty of a crime. The concept of consent was found in the definition of ‘assault’ in s 187, which was defined to mean:
the direct or indirect application of force to a person without his consent or with his consent if the consent is obtained by force or by means of menaces of any kind or by fear of bodily harm or by means of false and fraudulent representations as to the nature of the act or by personation.
At that time, there were no definitions of ‘consent’ or ‘sexual intercourse’ in the Code.
In the Second Reading Speech for the Bill for the Amendment Act,[13] the Attorney-General stated that the Bill gave effect to the majority of proposals contained in Part 2 of the Sexual Abuse Discussion Paper,[14] which were directed towards improving the expression and elements of existing offences in the Code.
The Discussion Paper proposed (at [4.8.2]) that the existing offence of assault with intent to have carnal knowledge be repealed and replaced by the offence of unlawful sexual intercourse without consent. A new definition of ‘sexual intercourse’ was proposed (at [4.1.1]) and, under the heading ‘Withdrawal of Consent’, it was proposed (at 4.1.2]) that the definition of ‘sexual intercourse’ should include ‘non-consensual continuation of penetration’.
The Discussion Paper stated (at [4.9.1]) that the Code did not incorporate the concept of free agreement between parties to the act of sexual intercourse in its reference to consent, and:
[w]here the complainant is so intoxicated as to be incapable of giving consent, or is asleep, it is not clear, on the definition provided by section 187, that lack of consent could be proved…
These concepts of consent are included in the common law definition of consent as applied in other States of Australia.
The Discussion Paper noted (at [4.9.1]) that Northern Territory courts were permitted to consider the common law because the word ‘consent’ was ‘a word of doubtful meaning’, but proposed that the situation be clarified by including a definition of consent and ‘making it clear that the basis of consent is free agreement’.
The Discussion Paper referred (at [4.9.4]) to the legislation of other jurisdictions and proposed that a definition of consent be included in the Code in similar terms to that of s 36 of the Crimes Act 1958 (Vic) (‘Victorian Crimes Act’) ‘so as to provide that consent means free agreement’ and ‘[t]he categories included in section 36 where consent is not freely given should be adopted in the Northern Territory’. It also proposed that consideration be given to including a provision similar to that in the Victorian Crimes Act about the giving of directions by the trial judge on consent in sexual assault cases.
In the Second Reading Speech, the Attorney-General stated that the Bill:
(a)included a new definition of ‘sexual intercourse’, which dealt with the issue of continuing penetration after withdrawal of consent to sexual relations, and made it clear that ‘[f]ailure to withdraw or cease [sexual intercourse] upon communication of termination of consent makes continued sexual intercourse unlawful’;[15]
(b)changed the offence from unlawful assault with intent to have carnal knowledge to the offence of sexual intercourse without consent;[16]
(c)introduced into the Code a definition of ‘consent’, and stated that:[17]
‘Consent’ is defined as meaning ‘free agreement’ and further provides that a person does not freely agree to an act in the circumstances listed in proposed new section 192(2).
…
The formula which has been settled upon, and which appears in proposed new section 192(1) and (2), is taken from the Victorian Crimes Act. The bill provides that circumstances in which a person does not freely agree to sexual intercourse or to an act of gross indecency include circumstances where:
[as set out in paragraphs (a) to (g) of s 192(2)]
This list is not intended to be exhaustive. There may be an absence of free agreement even though none of those circumstances exists.
…
The list of circumstances which negate free agreement speak largely for themselves.
(d)inserted new s 192A in partial implementation of one of the proposals in the Discussion Paper, which:
gives teeth to the proposed definition of ‘consent’ in proposed new section 192(1) and (2) by requiring a trial judge, in a relevant case, to give specified directions as to the circumstances in which a person is not to be regarded as having freely agreed to the relevant sexual act. It will be up to the trial judge, with the assistance of counsel, to determine which of the directions, if any, should be given in a particular case.
It is clear from these extrinsic materials that no specific consideration was given to advance consent. It is apparent from the observations about withdrawal of consent that there was an unstated assumption that the issue of consent arises at (and persists during) the time of sexual intercourse such that a person who is asleep or unconscious at that time is unable to consent to it, and cannot be taken to have consented to it.
Model Criminal Code Report
In May 1999, the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General produced the ‘Model Criminal Code – Chapter 5 – Sexual Offences Against the Person – Report’ (‘Report’).[18][19] The Report considered the approaches taken to defining consent in the Australian jurisdictions, and observed (at p 39) that there were two different approaches, namely:
(a)In New South Wales and the Australian Capital Territory, no defined concept of consent, but a non-exhaustive list of circumstances in which ‘consent is deemed to be vitiated, or in which the victim is to be regarded as not consenting’, which ‘seeks to exclude consideration of consent as an issue at trial if sexual penetration took place in certain listed circumstances’ because, where ‘the jury is satisfied that penetration took place in one of the specified circumstances, consent is deemed to be vitiated’.
(b)In Tasmania, Queensland, Western Australia, Victoria and the Northern Territory, a defined concept of consent ‘before proceeding, in conformity with the general approach described [in paragraph (a)] above, to specify those circumstances that, if present, mean that there is no consent’. Specifically about the Victorian and Northern Territory approach, the Committee observed (at p 40) that the list of non-exhaustive circumstances ‘define those cases in which consent is deemed not to have existed’.
The Report observed (at p 40) that ‘the only effect of the list is that, once the listed circumstances are established, then lack of consent is automatically established’.
To be clear, reference is made to the Report, not as an extrinsic material, but as a resource much like a text book which offers the opinions and observations of the learned members of the Committee, for the Court’s consideration.[20]
The above observations show that the Committee construed the language of s 192(1) and (2), consistently with similar provisions from other Australian jurisdictions, as denying consent to sexual intercourse if the person was asleep or unconscious at the time of the sexual intercourse. Again, no specific consideration was given to advance consent and the same unstated assumption as set out in paragraph [51] above appears to have been operating.
Legislative purpose
By s 62A of the Interpretation Act 1978 (NT), a construction of a statutory provision that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote the purpose or object.
On the basis of the terms of s 192(1) and (2), read with the extrinsic materials referred to above, including the implied assumption that the relevant temporal moment for consent is the moment of sexual intercourse, the legislative purpose of the Amendment Act in inserting the new s 192(1) and (2) into the Code was to define the term ‘consent’ by a ‘two-pronged definition’, firstly in general terms (as ‘free agreement’) and secondly containing a set of circumstances which, if existing at the time of sexual intercourse, mandated a finding that the sexual intercourse was without consent.
The effect of s 62A of the Interpretation Act is that a construction of s 192(2)(c) of the Code which promotes that purpose is to be preferred to one that does not.
Consent at common law – ‘active consent’
In order to resolve the ambiguity in s 192(2)(c) referred to in paragraph [31] above, it is appropriate to consider the concept of consent to sexual intercourse under the common law. There was no dispute that the common law concept of consent was characterised by the following features.
First, ‘consent’ is a noun that refers to a subjective state of mind[21] constituted by free and voluntary agreement.[22] It has been described as ‘the free exercise of the will of a conscious agent’.[23] Those characteristics are consistent with the definition of ‘consent’ in s 192 of the Code.
Secondly, the relevant time for consent is the time when sexual intercourse occurs,[24] and consent demands a perception as to what is about to take place, as to the identity of the other person and the character of what they are doing.[25] These characteristics are consistent with the implied assumption referred to in paragraphs [51] and [55] above.
Thirdly, consent, previously given, may be withdrawn.[26] This characteristic is consistent with the definitions of ‘consent’ and ‘sexual intercourse’ in the Code, particularly the notion that consent can be withdrawn during the sexual intercourse.
Together, these three features (free and voluntary agreement, at the time when sexual intercourse occurs, withdrawable at any time during the sexual intercourse) were referred to by the defence as ‘active consent’.
It follows from paragraphs [59] to [62] above that the notion of active consent must inform the construction of s 192(1) and (2). As I have said in paragraphs [61]-[63] above, the language of those provisions and the apparent assumption on which they are based, are consistent with these three features of active consent.
The defence argued that none of the authorities which established the features of active consent had considered the possibility of advance consent. The defence conceded that active consent necessarily involves the capacity to withdraw consent up to and during sexual intercourse, but qualified that concession by saying that the proposition applied in most circumstances and advance consent can be active consent, notwithstanding the inability to withdraw the consent during sexual intercourse within the unconscious period, because that period was contemplated when the person was conscious and gave consent to the sexual intercourse occurring during the unconscious period.
Canadian decision – The Queen v JA
Although not adopting the language of ‘active consent’, the defence’s proposition set out in paragraph [65] above is a reason relied upon by the minority of the Supreme Court of Canada in The Queen v JA.[27]
The case involved sexual activity between JA and his long-term partner KD. One evening, in the course of their sexual relations, JA put his hands around KD’s throat and choked her until she was unconscious. She estimated she was unconscious for less than three minutes. When she regained consciousness, her hands were tied behind her back and JA was inserting a dildo into her anus. About 10 seconds after she regained consciousness, JA removed the dildo and they had vaginal sexual intercourse. On the basis of KD’s evidence at trial, the Court of Appeal found that KD consented to JA choking her, understood she might lose consciousness, consented to the anal penetration and consented to the vaginal intercourse. Some two months after the intercourse, KD made a complaint to Police, claiming she had only consented to the choking, not to the sexual activity. She later recanted her allegation, saying she had made the complaint because JA had threatened to seek sole custody of their son.
The trial judge convicted JA of sexual assault. A majority of the Canadian Court of Appeal set aside the conviction and dismissed the charges. The Supreme Court,[28] by a 6:3 majority, upheld the conviction, essentially finding that the Criminal Code, RSC 1985, c C-46 (‘Canadian Criminal Code’) had defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question to ensure that people are not the victims of sexual exploitation, and that individuals engaging in sexual activity are capable of asking their partners to stop at any point.
At [103], Fish J (delivering the minority judgment) held that it did not follow that consenting adults cannot, as a matter of law, willingly and consciously agree to engage in a sexual practice involving transitory unconsciousness from the basis that, during the brief period of that consensually induced mental state, they will be unable to consent to doing what they have already consented to do. At [105], Fish J held that there was no factual or legal basis for holding that KD’s prior consent, ‘otherwise operative throughout, was temporarily rendered inoperative during the few minutes of her voluntary unconsciousness’ and was not ‘suspended by the fact that she had rendered herself incapable of revoking the consent she had chosen, freely and consciously, not to revoke either immediately before or immediately after the brief interval of her unconsciousness’ [emphasis in original].
McLachlin CJ (delivering the majority judgment) held (at [33]) that the term ‘consent’ had been defined in the Canadian Criminal Code ‘in a way that requires the complainant to be conscious throughout the sexual activity in question’. Her Honour held (at [34]) that the definition of consent as ‘the voluntary agreement of the complainant to engage in the sexual activity in question’ suggested that the consent must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what the Parliament had in mind.
Not unlike s 192(2) of the Code, the Canadian Criminal Code contained a non-exhaustive list of circumstances in which ‘no consent is obtained’, one of which was if the complainant is incapable of consenting to the activity. McLachlin CJ held (at [36]) that this provision indicated Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent, which might arise from unconsciousness. Her Honour held that it follows that Parliament intended consent to mean ‘the conscious consent of an operating mind’.
Her Honour held (at [37]) that the provisions of the Canadian Criminal Code relating to the mens rea of sexual assault confirm that individuals must be conscious throughout the sexual activity. In particular, her Honour relied (at [39]) on a provision stating there can be no consent if the complainant expresses, by words or conduct, a lack of agreement to engage in the activity, which she held suggests a present, ongoing conception of consent, rather than advance consent to a suit of activities. Her Honour also relied (at [40]) on the provision stating it is erroneous for the accused to believe the complainant is still consenting after she expresses a lack of agreement to continue to engage in the activity as indicating that Parliament ‘wanted people to be capable of revoking their consent at any time during the sexual activity’, which in turn supported the view that consent is ‘the product of a conscious mind’, because a person who has been rendered unconscious cannot revoke her consent. Her Honour observed that the protection of this provision would not be available to a complainant once she was rendered unconscious.
Her Honour held (at [42]) that the provision requiring the accused to take reasonable steps to ensure the complainant ‘was consenting’ to engage in the sexual activity in question was grounded in the assumption that ‘the complainant must consciously consent to each and every sexual act’ and indicated, by its use of the present tense, that consent was an ‘ongoing state of mind’.
Her Honour held (at [43]) that these provisions indicate that Parliament viewed consent as requiring a ‘capable’ or operating mind, able to evaluate each and every sexual act committed, and to hold otherwise runs counter to the Parliament’s clear intent that a person has the right to consent to particular acts and to revoke her consent at any time. Her Honour found support (at [44] and following) from other decisions of the Court, even though none had specifically considered advance consent.
As for the proposition that advance consent was the same as active consent because a complainant who has consented cannot change her mind after being rendered unconscious, McLachlin CJ held (at [53]) that the proposition is contrary to the requirement that the only relevant time for ascertaining consent is while the sexual touching (that being the language of the Canadian Criminal Code) is occurring, and when a complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that she is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.
The other significant reason relied on (at [60]) by the majority was the ‘total vulnerability’ of the unconscious partner, who cannot meaningfully control how her person is being touched, leaving her open to abuse. In addition (at [61]) where the complainant is unconscious, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent, and where only one person really knows what happened during a period of unconsciousness, the unconscious party is open to exploitation.
At [114]-[115], Fish J held that the right to make decisions about one’s own body comprises the right to say ‘no’ and the right to say ‘yes’ to sexual conduct in private that neither involves bodily harm nor exceeds the bounds of consent freely given, and it would be a significant limit on the sexual autonomy of individuals to say that, as a matter of law, no-one can consent in advance to being sexually touched while asleep or unconscious.
At [65], McLachlin CJ held as follows:
In the end, we are left with this. Parliament has … dealt with consent in a way that makes it clear that ongoing, conscious and present consent to ‘the sexual activity in question’ is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. …[T]he appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.
Scottish decision – GW v The Queen
In GW v The Queen,[29] the Appeal Court of the High Court of Scotland dismissed an appeal against conviction for rape of the appellant’s partner constituted by sexual intercourse with her when she was asleep. It had been their practice that, on occasion, he would wake her by penetrating her vagina with his penis and she had consented, at the start of their relationship, to being woken in this way and that consent had never been withdrawn. The appellant argued that this advance consent was permitted by the Sexual Offences (Scotland) Act 2009, and that the case was distinguishable from The Queen v JA because of differences in the relevant legislation.
Lord Justice General Carloway (delivering the judgment of the Court) held (at [28]) that the use of the present tense in defining the offence as committing the act without the other person ‘consenting’ and without a reasonable belief that he or she ‘consents’ was indicative of a need for the consent to be given at the time of the sexual act and not at a point remote from it, which was consistent with the general notion of the need, expressed in the Act, for there to be continuing consent throughout the conduct. Further, his Honour relied (at [29]) on the provision stating that a person cannot consent to conduct whilst asleep or unconscious, which means that a sleeping person is not capable of consenting, and given that consent must be given at the time of sexual conduct, such conduct which occurs when the person is asleep or unconscious is criminal as it cannot be consented to at a remote point in advance. His Honour agreed (at [29]-[30]), in essence, with the majority of the Supreme Court of Canada in The Queen v JA. His Honour concluded by observing (at [32]) as follows:
It is, of course, possible to employ as a test the reduction ad absurdum to suggest that the waking embrace could constitute a crime… [T]he problem, if it arises at all, is not one which is likely to occur in practice. It would be surprising if the Crown prosecuted such conduct. If they did, and convictions followed, it may be that the legislature would require to amend the Act.
Active consent is critical
While there are differences between the statutory provisions considered in The Queen v JA and GW v The Queen and the terms of s 192(1) and (2) and the other provisions of the Code referred to above, the differences are not significant and the concept of active consent is a strong underlying foundation of them all. Despite the legislative differences, these decisions significantly support the construction of s 192(2)(c) as not contemplating advance consent.
The policy debate
The defence argued that a person should be able to consent in advance to sexual activity occurring later when the person is unconscious or asleep on the basis that this aligns with the principles of autonomy and freedom of choice, which underpin the law of sexual offences generally.
In response, the Crown essentially pressed the protective aspects of active consent, and referred, amongst other things, to the views of the New South Wales Law Reform Commission (‘NSWLR’) in its Report No 148, ‘Consent in Relation to Sexual Offences’.[30] In that Report, the NSWLR rejected a proposal to permit advance consent and concluded (at [6.96]-[6.98]) that ‘the law should treat all sexual activity involving a person who is unconscious or asleep as non-consensual’. It said there were strong reasons for this, namely: (a) that people who are unconscious or asleep are highly vulnerable; (b) the principles of autonomy and freedom of choice require that consent, once given, can be withdrawn;[31] and (c) a person who initially agrees to certain sexual acts occurring, is unaware of and unable to modify or withdraw consent in response to a change in circumstances.
At base, the reference to the policy debate is a reference to the consequences of the respective constructional choices put by the parties, which is a matter to be considered in construing the provisions.[32] Like McLachlin CJ in The Queen v JA, and Carloway LJG in GW v The Queen, I consider that a construction of s 192 which encapsulates active consent delivers justice in the vast majority of cases and observe that prosecutions in cases of advance consent are extremely rare. If that were to change, it would be for the legislature to address if it saw fit.
Other consequences of constructional choices
The Crown argued that to accommodate advance consent would effectively shift the relevant time for consent to the moment the complainant fell asleep or passed out. The practical difficulties of identifying when that moment occurred are obvious. Further, as McLachlin CJ observed in The Queen v JA (at [62]), it would require the court to determine what the unconscious party wanted just prior to going unconscious, and then assess if this is what indeed occurred, giving rise to an objective inquiry rather than the subjective inquiry required by the Canadian statute.
South Australian provision
The defence referred to s 46(3)(c) of the Criminal Law Consolidation Act 1935 (SA) (‘SA Act’) as the only consent provision in the country which expressly provides that a person is taken not to consent (ie freely and voluntarily agree) to sexual activity if the activity occurs while the person is asleep or unconscious. Presumably, the point of the submission is that, if the legislature intended s 192(2)(c) of the Code to have that effect, it could have expressly said so.
So much may be accepted, but this argument adds little to the resolution of this matter, when one takes into account the matters of context and extrinsic materials referred to above which support an equivalent construction of s 192(2)(c).
Conclusion
For all of the reasons set out above, the proper construction of s 192(2)(c) of the Code is that the consent of the complainant is deemed to be absent if sexual intercourse occurs whilst the complainant is asleep, unconscious or so affected by alcohol or another drug as to be incapable of consenting. Consequently, advance consent to sexual intercourse occurring whilst asleep or unconscious would not constitute consent within s 192.
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[1]SAS Trustee v Miles (2018) 265 CLR 137 at [41] per Gageler J (‘SAS Trustee’).
[2]See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ (‘Alcan’).
[3]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, at [37]-[39] per Gageler J (‘SZTAL’); SAS Trustee at [64] per Edelman J.
[4]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ (Gaudron J agreeing).
[5]SZTAL at [14] per Kiefel CJ, Nettle and Gordon JJ.
[6]Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ.
[7]D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [3.19].
[8]Ibid [8.9]-[8.10].
[9]See Stuart v The Queen (1974) 134 CLR 426 at 437 per Gibbs J (Menzies and Mason JJ agreeing); Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 22 per Mason J; Boughey v The Queen (1986) 161 CLR 10 at 30 per Brennan J (in dissent but not as to the principle); The Queen v Barlow (1997) 188 CLR 1 at 18-19 per McHugh J (in dissent but not as to the principle).
[10](1994) 4 NTLR 92.
[11]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.
[12]Section 192(1) was amended by the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005 (NT), which commenced on 20 December 2006, to define ‘consent’ as ‘free and voluntary agreement’. Section 192(2) was amended to replace the words ‘freely agree’ with the word ‘consent’. There is nothing in the Explanatory Statement to the Criminal Code Amendment (Criminal Responsibility Reform) Bill 2005 (NT) which refers to these amendments.
[13]Northern Territory, Parliamentary Debates, Legislative Assembly, 2 March 1994, 11391 (Daryl Manzie, Attorney General).
[14] D Manzie, Sexual Abuse Discussion Paper (Discussion Paper, No 2, July 1992).
[15]Northern Territory, Parliamentary Debates, Legislative Assembly, 2 March 1994, 11392 (Daryl Manzie, Attorney-General).
[16]Ibid 11395-11396.
[17]Ibid 11396-11397.
[18] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 5 – Sexual Offences Against the Person (Report, May 1999).
[19]The background to the Model Code Report and the functions of the Model Criminal Code Officers Committee is set out in the Preface to the Model Code Report.
[20]Which was constituted by Judges of the District Court of New South Wales, officers of the Departments of Justice or the Attorney-General from each Australian jurisdiction and an academic, and advised by Queens Counsel and another officer of the New South Wales Department of the Attorney-General (see pp v-vi).
[21]The Queen v Shaw [1996] 1 Qd R 641 at 646 per Davies and McPherson JJA (‘Shaw’), cited with approval in The Queen v Makary [2019] 2 Qd R 528 at [34], [45] per Sofranoff P (Bond J agreeing).
[22]Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214 at 220 per King CJ, at 233 per Perry J, at 237 per Duggan J (in dissent) (‘Question of Law Reserved on Acquittal’), cited with approval in The Queen v Mueller (2005) 62 NSWLR 476 at [36] per Studdert J (Hunt AJA and Hulme JA agreeing) (‘Mueller’).
[23]The Queen v Dee (1884) 15 Cox CC 579 at 595 per Lawson J.
[24]Question of Law Reserved on Acquittal at 220 per King CJ, cited with approval in Mueller at [36] per Studdert J (Hunt AJA and Hulme JA agreeing); Shaw at 646 per Davies and McPherson JJA.
[25]Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261 per Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ.
[26]Question of Law Reserved on Acquittal at 220 per King CJ, cited with approval in Mueller at [36] per Studdert J (Hunt AJA and Hulme JA agreeing).
[27][2011] 2 SCR 440.
[28]In Canada, the Supreme Court is the highest court and sits above the Court of Appeal.
[29][2019] HCJAC 23.
[30] New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020).
[31]Citing Queensland Law Reform Commission, Review of Consent Laws and the Excuse of Mistake of Fact (Report No 78, June 2020, 99 [5.111]).
[32]D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 77-80 [2.57]-[2.59].
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