Wrigley v The Queen

[1995] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M23 of 1995

B e t w e e n -

ERIC JAMES WRIGLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 1995, AT 10.13 AM

Copyright in the High Court of Australia

MR P.C. DANE, QC:   If the Court please, I appear with my learned friend, MR O.P. HOLDENSON on behalf of the applicant.   (instructed by J.C. Galatas, Director, Legal Aid Commission of Victoria)

MR J.W. RAPKE:   If the Court please, I appear with my learned friend, MS K.E. JUDD on behalf of the respondent.   (instructed by P. Wood, Solicitor to the Director of Public Prosecutions Victoria))

DAWSON J:   Yes, Mr Dane.

MR DANE:   May it please the Court, this is a typical case of rape and attempted rape and involves the issue of capacity of the complainant to consent, such being the approach taken by both counsel.

DAWSON J:   You say it is a typical case of rape.  I would have thought it was an unusual one.

MR DANE:   With the aspect of alcohol being involved, it is typical in that framework but, unfortunately, it is typical, perhaps.  It does not have a remarkable aspect about it; it is a case that comes unfortunately before the courts all too often.  It is, perhaps, the only reason why we chose the word “typical”.  The question of the capacity to consent was recognised by both counsel and the learned trial judge.  This issue, in part, is now addressed by the legislature, finding its way into the Crimes Act at section 36, the purpose of that provision being to clarify and not to alter the relevant common law.

What has happened in this case is that the learned trial judge has merely recited the contents of a portion of that section when directing the jury and has not explained the issue to them as has been the case in this jurisdiction prior to the introduction of section 36.  Our complaint about the court below and the judgment thereof is that it failed to recognise the impact of the way the learned trial judge handled the matter which we say left the jury without instruction, or sufficient instructions or guidance and, if followed in the future, would deny to juries the help that has been determined in the past as both required and appropriate.

TOOHEY J:   Except that, ordinarily, one might expect counsel for the accused to seek a more elaborate direction which, as I understand it, was not done here although the matter was raised with the trial judge in relation to the question of onus.

MR DANE:   And the learned trial judge, at page 60, your Honour will recall no doubt, said that it was plain and it would be insulting the jury’s intelligence, in effect, to direct them again.

TOOHEY J:   But, in these sort of cases, if no further direction is sought, it rather tells against the appellant, or in this case, the applicant, because sometimes it might suit the defence to raise the question of alcohol.

MR DANE:   Alcohol was well and truly raised.  What we say is the difficulty here is that his Honour has just ‑ ‑ ‑

TOOHEY J:   I am sorry, my point really was just to raise that without seeking too elaborate a direction from the trial judge as to what is involved in consent.

MR DANE:   There was a difficulty facing counsel for the accused, as he then was, in that the trial judge had chosen the way in which he would direct the jury as to consent.  He did that by this recital of the section.  The jury then asked the question, “Could you just take us through that consent matter again?” and his Honour repeated that which he had said before, which is the recital and then counsel raised his concern about the matter with which we are here concerned and his Honour said, in effect, “I’ve told them twice, it’ll be insulting their intelligence”.  So, counsel was faced with having the jury being directed twice.

DAWSON J:   One of the difficulties is, of course, that there was fairly clear evidence of lack of consent, was there not?

MR DANE:   The difficulty about that, with respect, is that she said “No” and so there is a verbal expression of it; she has given movements of her hands which are indicative of absence of consent and yet, at the same time, she has kissed the applicant at the relevant moment.  The jury were most concerned about that and asked about the question of how kissing was to affect the question of consent.

DAWSON J:   And the judge directed them on that, did he not?

MR DANE:   There was the recital with which we are here making complaint.  The difficulty was that there is, as his Honour described, a prodigious amount of alcohol and yet, that she was clearly awake as she is the only person who could re‑tell the facts of the incident upon which the Crown relied.  She is the sole source of evidence as to the immediate facts.  So, she is not asleep; she is not unconscious and then we say the problem is that the section, when properly analysed, is a state of unconsciousness to a point that the Court recognised in O’Connor perhaps, that is so affected by alcohol or drugs in the same way as one would be unconscious or asleep.  That is not the case.  It just coincidentally happens to be not the case; she is awake; she is verbally saying.

So, one has a precursor of activity in the taxi where she is touching him and the suggestion was that she was at least frivolous with him, where there has been a kissing and that is in conflict with her utterance and her gesture with her hands.  There is clearly the question of consent.  But, consent is not dealt with, with respect, by his Honour other than to read this part out and this part, when analysed as a matter of statutory interpretation, has nothing to do with this class of consent and so his Honour has taken them ‑ ‑ ‑

DAWSON J:   I am sorry, I do not think I follow that proposition.

MR DANE:   The section which he read to the jury is 36(d) where she is talking about asleep, talking about being unconscious or so affected by alcohol or drugs ‑ ‑ ‑

DAWSON J:   As to be incapable of freely agreeing.

MR DANE:   Yes and if you are asleep, if you are unconscious or so ‑ and we lay emphasis clearly on “so” as the court below has done ‑ because one would interpret those as indicating that one does not have a capacity.

DAWSON J:   That is right and the word “freely” on that analysis could only apply to that limb which is concerned with alcohol.

MR DANE:   Or drugs, yes.

DAWSON J:   Or drugs.

MR DANE:   With respect, that certainly requires further explanation to a jury.  By merely reciting it ‑ ‑ ‑

DAWSON J:   What does “freely” mean then?

MR DANE:   Freely, your Honour?  Free agreement?

DAWSON J:   Capable of freely agreeing.  In other words, I am saying, what is the direction you say the trial judge ought to have given?

MR DANE:   The trial judge should have told the jury that which we have set out in our paragraphs 2.2 and 2.3 of the outline and these are, we say, what can be gleaned ‑ ‑ ‑

DAWSON J:   Did you say the outline?  The summary of argument?

MR DANE:   Summary of argument, 2.2.  We say it was necessary for the trial judge to direct the jury that the trial must prove that the complainant had not sufficient knowledge or understanding to comprehend that what the applicant proposed to do was the physical fact of penetration of the complainant’s body or if that is not proved, that the act of penetration proposed was one of sexual connection as distinct from an act of a totally different character.  They are the ways in which capacity to consent has been dealt with by the authorities in the past.

DAWSON J:   That is really not giving much operation to the word “freely”, is it?

MR DANE:   We are, perhaps, in furious agreement with your Honour inasmuch as when free agreement is introduced as a concept when alcohol is involved, then a jury is going to need a great deal of guidance to distinguish between the reduction of inhibition whereby consent is given and the question of alcohol rendering her incapable of making any decision.

DAWSON J:   The word “freely” imports matters of degree, does it not?  When matters of degree are involved, perhaps it is better left to the jury to determine the application of the particular ‑ ‑ ‑

MR DANE:   Yes, but certainly with assistance, your Honour.

DAWSON J:   I am not sure that you can give assistance, really.  You really have not dealt with the matter of what “freely” means in this particular paragraph.

MR DANE:   No, your Honour, but if one goes then to 2.3 we say that in the alternative to 2.2 it was necessary for the trial judge to direct the jury that the Crown must prove that the complainant’s understanding and knowledge was such that she was not in a position to decide whether to consent or not.

DAWSON J:   That really means that she would have to be sufficiently insensible.

MR DANE:   With respect, we agree.  That is what 36(d) is about, that is, when she “is asleep, unconscious or so affected by alcohol”, that the consent is vitiated.

DAWSON J:   But, it does not say that, you see.  It is not freely given.

GUMMOW J:   You just get into all sorts of difficulties if you attempt to paraphrase.

MR DANE:   With respect, 36 is an inclusive definition and thus not exhausted:

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 ‑

His Honour omitted (a), (b), (c) and went straight to (d):

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

The court below interpreted that as being as if one was so affected by alcohol to be unconscious; all the same thing as a matter of statutory interpretation.  With respect, we ‑ ‑ ‑

GUMMOW J:   We keep coming back to free agreement.

MR DANE:   It is the absence of free agreement.  These are the things that are set out that vitiate free agreement.  These things are not that which one talks about as free agreement; these are the things that are defined as vitiating the free agreement.  Taking advantage of a person who is so adversely affected by alcohol ‑ ‑ ‑

DAWSON J:   In a sense there is a problem because to say that there is no free agreement when someone is incapable of freely agreeing is really not revealing very much, is it?

MR DANE:   It is rather circular.  Our complaint is that what his Honour has done is said, well, this is what Parliament has said consent is about and this is the bit that talks about alcohol - we say, of course, on a completely different ground and not before this Court, he should have been dealing with the next subparagraph, but leave that to one side  ‑ ‑ ‑

DAWSON J:   That is (e), you say?

MR DANE:   Yes, because here the woman was not to such an extent.  It is (e) to where he should perhaps have gone.  But that is not before this Court.  But what we say is that his Honour has restricted himself to saying, “Well, this is what Parliament talks about consent; consent is now free agreement; free agreement, where is the bit about alcohol; here it is, I will read it to you”.  And he has read it to them twice, without the assistance that we say he would be obliged to do.  We say that he cannot be absolved, he cannot absolve himself from his responsibilities by directing the jury in that way.

The court below has permitted that circumstance of mere recital to be regarded as sufficient by not recognising, as we say, the impact of this class of direction.  Neither party, of course, raised 36 but the fact of the matter is his Honour went to section 36 - and it does not matter how section 36 was raised - once it is raised it has got to be explained. 

TOOHEY J:   That is one of the problems, is it not, for an appellate court, that you really do not know the way in which the trial was being run and what it might have suited the defence to refer to or not refer to, particularly in this type of situation.

MR DANE:   It is clear that the defence ran two courses and this arises only in the alternative course which his Honour explained to the jury.  The course that was taken first was no sexual contact took place and that the witness was so affected by alcohol that she would be an unreliable reporter of the event.  But, in any event, if you reject that, then the question of consent arises and that was his alternative proposition, and the judge directed the jury on that issue.

Now, clearly, with respect, the jury has rejected that and accepted that the accused told a lie in his record of interview where he denies that any sexual contact took place.  But they are concerned with that very issue of consent.  So the jury has expressed themselves as being concerned with the point that we bring to this Court, the issue of consent, and ask for direction.  They ask for direction after the section has been read.  They have clearly misunderstood it because they have said “Can you tell us it again”.  Then the court below has not, with respect, appreciated the process that was going on.  What we are asking for is that that lack of appreciation be put to one side, that the authorities that have guided this jurisdiction and several of the other jurisdictions as well as the English authorities be followed, and that this case not be used as a mechanism for avoiding the responsibility of dealing with the cases which are the authorities in this area.  Those authorities have been set out.  We say that the effect is that the judges in the future can ignore those authorities.

We certainly say that in view of that jury question and the failure of the court below to correct it, there has not only been a miscarriage of justice in this case by reason of the absent essential direction but there is the prospect of future miscarriage ‑ ‑ ‑

DAWSON J:   There was no request for elaboration, was there, of what the judge said?

MR DANE:   We are stuck with the proposition that counsel, after having heard the direction twice, said that he did not ask for a further direction.  In the play between counsel and the learned trial judge, set out on page 61, his Honour said, at line 23:

Yes.  Well, I should be astonished if they were not well seized of that, Mr Kayser.

With respect, when a judge is indicating that he would be astonished, then we say that counsel perhaps then desists.  But we say that counsel had recognised that there was a problem and then it was the interplay that occurred between counsel and what we say is that if he took the exception after his Honour had expressed himself in that way, then clearly he would not have given another direction.

TOOHEY J:   I am not sure that that follows, does it?  The judge had expressed astonishment in relation to where the onus of proof - that the jury might misunderstand where the onus of proof lay.  Does his astonishment go further than that?

MR DANE:   If your Honour would look up the page now at line 11:

Yes.  I’m sorry if I did misunderstand you, Mr Kayser, but insofar as an important limb of the defence case is the intoxication of this girl, it could hardly be out of the jury’s mind.

GUMMOW J:   Then counsel says, “Indeed”.

MR DANE:   It is an interchange.  What we say here is that the authorities of Victoria, Queensland, Tasmania and the English authorities are in conflict with the way in which the court below has left it.

DAWSON J:   Thank you, Mr Dane.

The Court is not persuaded that in the context of this case the directions given by the trial judge in the absence of any request for elaboration were inadequate.  Special leave is accordingly refused.

AT 10.34 AM THE MATTER WAS CONCLUDED