Tolmie v The Queen

[1996] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 1995

B e t w e e n -

ADAM PATRICK TOLMIE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 12.31 PM

Copyright in the High Court of Australia

MR T.A. GAME, If the Court pleases, I appear for the applicant together with my learned friend, MR S.J. ODGERS.  (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC:   May it please the Court, I appear with my learned friend, MR P.G. BERMAN, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

DAWSON J:   Mr Game?

MR GAME:   If the Court pleases, the law with respect to recklessness in rape was correctly stated by the Court of Criminal Appeal in Hemsley 36 A Crim R 337. In fact, a special leave application was sought to this Court and refused and at page 337, a quotation. Firstly, at point 7:

In my opinion the recklessness to which s 61D refers is the same as was sufficient to constitute the necessary mental element in the common law offence of rape.

Then a quotation from Daly which was cited with approval in several of the speeches in Morgan:

“Furthermore this involves, it appears to us, that the Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting or else realised she might not be and determined to have intercourse with her whether she was consenting or not.”

GAUDRON J:   I think you can probably assume that the trial judge’s direction is close to meaningless in the context of the withdrawal of consent, but how does the issue arise in this case?

MR GAME:   Well, your Honour, we argued that in the Court of Criminal Appeal and our argument was in one sense accepted but in another sense rejected because we said in the Court of Criminal Appeal the issue did not arise and I think there is a better answer, that the issue did arise, but we put a submission that it did not arise and the response of the Court of Criminal Appeal was, in effect, to say well, the jury were not directed on the factual matters that related to it. It was just a jury question and the jury can be assumed to have determined the case on some other basis.

In our submission, that is legally incorrect and what it amounts to is, your Honour, putting the case on an entirely different basis because, in fact, another basis for sexual intercourse was introduced; that is to say sexual intercourse by virtue of a continuation of sexual intercourse.  Now, that is an entirely different basis.  Now, to have a factual basis for the jury to convict being left to them which has no basis in fact, in our submission, such a verdict must be unsafe and unsatisfactory.  That is the argument we put to the Court of Criminal Appeal ‑ ‑ ‑

DAWSON J:   But if it cannot arise on any view ‑ ‑ ‑

MR GAME:   In my submission, it can arise in this case, your Honour.

DAWSON J:   Well, I suppose theoretically you might say it does, but practically speaking, I find it very difficult ‑ ‑ ‑

MR GAME:   But, your Honour, that is the very problem with these directions.  Now we have a standard in New South Wales of inadvertence being sufficient for the mental element for rape and it is incorrect and it is in a trilogy of cases.

DAWSON J:   Yes, but in this particular case it cannot have arisen, can it?

MR GAME:   Yes, your Honour, in my submission, it could have arisen.

DAWSON J:   Withdrawal of consent and then recklessness?

MR GAME:   Yes, your Honour.  Recklessness could arise any way, even without the context of withdrawal of consent and recklessness was put to the jury in an inadvertence sense, prior to any question of withdrawal of consent arising.  So, recklessness arises in this case regardless of withdrawal of consent because the jury were directed on it early in the summing up before ‑ ‑ ‑

DAWSON J:   But not incorrectly.

MR GAME:   Yes, in our submission, incorrectly, introducing a notion of inadvertence.  Now, that seems to be where one of the problems arose but, your Honour, factually, the question which the jury asked which appears in Justice Kirby’s judgment at page 49 is this:

“Basically, the question is this, that in the process of sexual intercourse, if the woman initially was a willing partner or a willing participant, and but at some advanced stage of the proceedings suddenly became an unwilling participant, is the point at which that occurred totally irrelevant to the question of whether rape has or has not been committed”

Thereafter followed the directions given.  Now, the jury had a very legitimate concern in this case.  There were at least three independent witnesses, K. Desborough, J. Desborough and T.Francis, who had the applicant and complainant kissing and cuddling and all over each other right up to the point - in particular the witness of J. Desborough, which is referred to in the summing up at page 16 - right up to the point at which they parted company with them.  Now, that was contrary to the complainant’s own evidence. 

So the jury might have thought, “Well, they can’t accept what the complainant has got to say about her having, in effect, been sort of pulled back from the crowd”.  On the other hand, the jury had the real evidence of the underpants and so forth which were found on the ground and they had her immediate complaint.  So they would think to themselves, “Well, we can’t believe what he says about the incident.  That is inexplicable.”

So logically speaking, they are confronted with a situation where they have reasoned in the jury room, they have got three independent witnesses who have got them kissing and cuddling right up to the last moment contrary to the complainant’s evidence, then they have got the objective evidence of what occurred after.  Therefore, something must have occurred in between time.  Now, that is what - there must have been a withdrawal of consent somewhere during - and the evidence is quite explicit as to what happened before.  They were really right all over each other in a very explicit sexual sense.  So this was a very ambiguous situation.

Not only that, there was a very large consumption of alcohol on part of both of them.  So that we would say, factually speaking, the jury had a real concern, and that was what their question was directed towards.  Now, the Court of Criminal Appeal’s response to our argument was, “Well, the directions were correct”.  But the directions were not correct.  The directions were, in our submission, clearly wrong and the Court of Criminal Appeal has now introduced a new test, in effect, of inadvertence in reckless rape.  That is a clear move away from the established principles with respect to reckless rape.  Such statements as “couldn’t care less” or “willy-nilly”, they are all indicative of advertence and that is where part of the confusion has arisen in these cases.

As I said before, there are now - in one sense it is said in these cases, “Well, it doesn’t arise, therefore we put it to one side”.  But the problem, in these sorts of cases, is when should these directions be given, that it is always hard for the ‑ ‑ ‑

DAWSON J:   One could say, in this case, that it should not have been given here.

MR GAME:   Your Honour, if it should not have been given here, we must succeed.

DAWSON J:   Oh no.

MR GAME:   But yes, your Honour, we must succeed, because there is neither factual nor a legal basis, and the directions are wrong.

DAWSON J:   The direction is meaningless.

MR GAME:   The direction was, in fact, wrong, in my submission, but your Honour, if you go back on page 49 to the passage higher up on the page, that is a passage early in the summing up, higher up the page at line 22:

or he simply failed to consider the question of whether or not she was consenting and just went ahead with the act of sexual intercourse.

Now, that is a direction that was given prior to any question of a case of withdrawn consent arising.

Then once the jury question is responded by an introduction for what was, in effect, a different legal basis for a conviction, and withdrawn consent was - at common law, withdrawn consent during the act of intercourse was an indecent assault.  It was introduced by the package of amendments in 1981 as an element of sexual assault.  But it is clearly a different legal basis.  So you have both a different legal basis and an introduction of the notion of recklessness in relation to it.  Now, once you introduce inadvertence in relation to that situation, and you couple that with the directions given in relation to the non-giving of consent or the non-consent aspect in the context of actus reus, then the inadvertence is - there is no incident that is identified that puts the accused on notice.

So that in the context of these directions, it becomes a case of conviction by what is called inadvertence, ie, so long as the jury is satisfied, in effect, that the complainant at some stage withdrew her consent and he should have known, then he is guilty of rape.  So, in our submission, whichever way one looks at it, either it does arise and it is relevant and we must succeed, or it does not arise and we must succeed because there was neither a factual or a legal basis and what was put to it legally was incorrect.  So, in our submission, either way one looks at this case, we must succeed.

The directions which we complain of emerge from Henning.  They introduce the words which are these, which we have referred to in our outline of argument at page 3:

A failure to advert at all to the question of consent, in other words treating it as an entirely irrelevant factor, would almost certainly amount to either knowledge or recklessness if consent was in fact withheld.

Now, as we point out in the written submissions, that could be ambiguous.  But the decisions have moved along from that point such that we now find in this case, that is to say Tolmie, Justice Kirby endorsing an approach which introduces inadvertence as a basis for recklessness in rape.  If I could take the Court to the application book at page 56, there is a reference to the formulations and these formulations are very significant.  Line 40, for example, from Lord Cross’ speech in Morgan, “at least indifference as to the woman’s consent”, or Lord Edmund-Davies, “without caring whether or not she was a consenting party”, Lord Hailsham, “willy-nilly”, or Kimber “was not really interested in [the woman’s] feelings at all”.

Now, those are all advertence states.  So much was acknowledged by his Honour Justice Kirby at page 57.  So it is necessary, in our submission, for his Honour to take legal principle further.  What his Honour has done, in our submission, is in effect introduce a negative definition of consent.  That is to say, a proposition that the crime is committed by a man who has intentional intercourse with a woman without her consent and without any belief on his behalf that he has her consent.  That is indicated at page 58 lines 35 to 45 and at page 60 lines 1 to 10.  It is in fact called in the literature towards a positive consent standard, but it was described by Chief Justice Bray in Wozniak as a negative definition and, in our submission, that is a better way of so describing it.

Then, your Honours, his Honour has moved from there to this.  His Honour has applied - and that negative definition, although it has attractions is not the law - then his Honour at page 62 has applied Caldwell, Lawrence and Reid.  Now, in England there has been some attraction towards adopting Caldwell in all contexts, including rape, including reckless driving.  No such tendency has occurred here, but in any event in England, Pigg’s Case, in effect, favourably reflected Caldwell.  But there has been a

withdrawal from that position and in directions given since Pigg, it has been made clear that Caldwell does not apply to cases such as this.  So Caldwell is not even applied in England.  In a special leave, in fact, in Hemsley his Honour Justice McHugh remarked that Pigg went too far and the Crown conceded that it went too far.

It is very important that recklessness means many different things in different areas of criminal law:  recklessness in section 18 murder; recklessness in negligent manslaughter; recklessness in dishonesty offences; recklessness in unlawful driving and so forth.  It has different meanings.  So that analogy, in our submission, does not apply.  Then it comes down to, in our submission, that which appears at page 63:

As in Kitchener, policy considerations played a large part in their Lordships’ deliberations, in particular the idea that advertence to risk is a flawed yardstick of moral culpability.

That may be so with respect to culpable driving or reckless endangerment, but it does not apply and it is not the law in rape.  In any event, with all due respect, policy considerations are ultimately, if there is any room for declaration of the common law, a matter for this Court, not for an intermediate court. 

It is perfectly clear, in our submission, that what has occurred in this line of cases, Henning, Hemsley and Kitchener, is the law has been moved.  It is out of step with the law in the rest of Australia.  It is out of step with the common law.  Those are our submissions, if the Court pleases.

DAWSON J:   Thank you, Mr Game. 

We have some reservations as to the correctness of the analysis of the Court of Criminal Appeal with respect to recklessness in the context of withdrawal of consent.  However, the issue of recklessness in relation to consent did not arise on the facts of this case and in the circumstances the direction given could not have occasioned any miscarriage of justice.  Special leave to appeal is refused.

MR GAME:   If the Court pleases.

DAWSON J:   The Court will now adjourn sine die

AT 12.49 PM THE MATTER WAS CONCLUDED