Gillard v The Queen

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge,Penfold,North JJ
• Judgment Date: 18 April 2013
• Court: Court of Appeal of ACT
• Docket Number: No. ACTCA 61 - 2011
• Date: 18 April 2013

[2013] ACTCA 17

IN THE COURT OF APPEAL OF THE

AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judges:

Refshauge, Penfold, North JJ

No. ACTCA 61 - 2011

No. SCC 254A of 2009

Between:

Michael Alan Gillard

Appellant

and

The Queen

Respondent

Counsel for the appellant: Mr K Archer

Senior Counsel for the respondent: Mr HK Dhanji SC with Mr T Jackson

Ayles v The Queen (2008) 232 CLR 410

Director of Public Prosecutions v Walker [2011] ACTCA 1

Evans v The Queen (2007) 235 CLR 521

Fleming v The Queen (1998) 197 CLR 250

M v The Queen (1994) 181 CLR 487

R v Radley (1973) 58 Cr App R 394

R v Schippani [2012] ACTSC 108

R v Tolmie (1995) 37 NSWLR 660

Ryan v The Queen (2001) 206 CLR 267

S v The Queen (1989) 168 CLR 266

Sims v Drewson (2008) 188 A Crim R 445

Crimes Act 1900 (ACT), ss 54(1), 55(2), 60(1), 61(2), 65, 67, 264(1)

Criminal Appeal Act 1912 (NSW), s 6(1)

Criminal Code 2002 (ACT), s 44(1)

Supreme Court Act 1933 (ACT), s 37O

ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report No 18 (2001)

W.A.N. Wells, Evidence and Advocacy (Butterworths, 1988)

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — whether verdict was unsafe — multiple amendments of dates of charges in an indictment — no availability of new alibi evidence — appeal dismissed

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — irregularity of trial process — general prejudice — prejudice suffered not particularised — appeal dismissed

APPEAL AND NEW TRIAL — APPEAL — appeal against sentence — whether sentence was manifestly excessive — whether non-parole period was particularly high — whether non-parole period was so low as to suggest trial judge's realisation that head sentence was excessive — non-parole period neither particularly high nor particularly low — whether some sentences inappropriately accumulated — no error found in either length or accumulation of sentence — appeal dismissed

CRIMINAL LAW — PARTICULAR OFFENCES — Offences Against the Person — sexual offences — consent negated under s 67(1)(h) of the Crimes Act — need for separate or explicit abuse of authority or trust — not needed — appeal dismissed

CRIMINAL LAW — PARTICULAR OFFENCES — Offences Against the Person — sexual offences — consent — recklessness under s 67 of the Crimes Act

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE- direction as to consent — whether direction was adequate — direction was adequate — appeal dismissed

REASONS FOR JUDGMENT

THE COURT:

The original charges

1 On 12 September 2011, Michael Alan Gillard ( the appellant) was arraigned before the Chief Justice ( the trial judge) on an indictment dated 7 April 2010. This original indictment charged 19 counts involving two complainants, DD (born 14 May 1981) and her sister JL (born 26 December 1982), being:

SECOND COUNT	THAT between the 31st day of December 1993 and the 1st day of February 1995 at Canberra in the Australian Capital Territory [the appellant] committed an act of indecency upon [DD] being a person above the age of 10 years but under the age of 16 years. AND FURTHER THAT between the 31st day of December 1994 and the 30 th day of January 1996 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] being a person above the age of 10 years but under the age of 16 years.
THIRD COUNT	AND FURTHER THAT between the 31st day of December 1994 and the 30 th day of January 1996 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] being a person above the age of 10 years but under the age of 16 years.
FOURTH COUNT	AND FURTHER THAT between the 31 st day of December 1994 and the 30 th day of January 1996 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] being a person above the age of 10 years but under the age of 16 years.
FIFTH COUNT	AND FURTHER THAT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] engaged in sexual intercourse with [DD] being a person under the age of 16 years.
SIXTH COUNT	AND IN THE ALTERNATIVE TO THE FIFTH COUNT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] being a person under the age of 16 years.
SEVENTH COUNT	AND FURTHER THAT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] attempted to engage in sexual intercourse with [DD] being a person under the age of 16 years.
EIGHTH COUNT	AND IN THE ALTERNATIVE TO THE SEVENTH COUNT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] being a person under the age of 16 years.
NINTH COUNT	AND FURTHER THAT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] attempted to engage in sexual intercourse with [DD] being a person under the age of 16 years.
TENTH COUNT	AND IN THE ALTERNATIVE TO THE NINTH COUNT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] being a person under the age of 16 years.
ELEVENTH COUNT	AND FURTHER THAT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] engaged in sexual intercourse with [DD] being a person under the age of 16 years.
TWELTH COUNT	AND IN THE ALTERNATIVE TO THE ELEVENTH COUNT between the 31 st day of December 1996 and the 29 th day of January 1997 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] being a person under the age of 16 years.
THIRTEENTH COUNT	AND FURTHER THAT between the 31 st day of December 1998 and the 27 th day of January 1999 at Canberra aforesaid [the appellant] engaged in sexual intercourse with [DD] without her consent, knowing that she did not consent or being reckless as to whether she consented to the sexual intercourse.
FOURTEENTH COUNT	AND FURTHER THAT between the 31st day of December 1998 and the 27 th day of January 1999 at Canberra aforesaid [the appellant] committed an act of indecency in the presence of [JL] knowing that she did not consent or being reckless as to whether she did consent.
FIFTEENTH COUNT	AND FURTHER THAT between the 31 st day of December 1998 and the 27 th day of January 1999 at Canberra aforesaid [the appellant] engaged in sexual intercourse with [DD] without her consent, knowing that she did not consent or being reckless as to whether she consented to the sexual intercourse.
SIXTEENTH COUNT	AND FURTHER THAT on the 5 th day of January 2000 at Canberra aforesaid [the appellant] engaged in sexual intercourse with [DD] without her consent, knowing that she did not consent or being reckless as to whether she consented to the sexual intercourse.
SEVENTEENTH COUNT	AND IN THE ALTERNATIVE TO THE SIXTEENTH COUNT on the 5 th day of January 2000 at Canberra aforesaid [the appellant] committed an act of indecency upon [DD] without her consent, knowing that she did not consent or being reckless as to whether she consented to the act of indecency.
EIGHTEENTH COUNT	AND FURTHER THAT on the 5 th day of January 2000 at Canberra aforesaid [the appellant] engaged in sexual intercourse with [DD] without her consent, knowing that she did not consent or being reckless as to whether she consented to the sexual intercourse.
EENTH COUNT	AND FURTHER THAT on the 13 th day of February 2009 at Canberra aforesaid [the appellant] did intentionally possess child pornography.

2 The counts in the indictment arose under legislative provisions as follows:

(a) s 54(1) of the Crimes Act1900 (ACT) prohibits sexual intercourse without consent;

(b) s 55(2) of the Crimes Act prohibits sexual intercourse with another person who is under 16 years of age;

(c) s 60(1) of the Crimes Act prohibits acts of indecency on another person, or in the presence of another person, without consent;

(d) s 61(2) of the Crimes Act prohibits acts of indecency on another person who is under 16 years of age;

(e) s 44(1) of the Criminal Code 2002 (ACT) provides that attempting to commit an offence is itself an offence;

(f) s 65 of the Crimes Act prohibits possessing child pornography.

3 The appellant pleaded not guilty to all counts, and the matter proceeded immediately to trial.

The verdicts

4 The jury returned its verdicts on 22 September 2011, after around four and a half hours of deliberation.

5 Only 17 counts went to the jury, Counts 1 and 15 having been abandoned in circumstances set out at [12] to [29] below.

6 The appellant was found guilty of three of the 11 offences by then alleged to have occurred between 31 December 1995 and 14 May 1997, and guilty of all five offences alleged to have occurred from 31 December 1998 onwards.

7 Specifically, the jury found the appellant guilty on Counts 2, 3, 4, 13, 14, 16, 18 and 19. There were acquittals on Counts 5, 6, 7, 8, 9, 10, 11 and 12. Count 17 was an alternative count and in the event the jury did not need to reach a verdict on it.

The facts of the offences proved

8 A general background to the offences was given in the case statement prepared for the trial, as follows (some of the dates specified, and the nature of the appellant's relationship with the family, were the subject of conflicting evidence and argument during the trial, but the general description of these circumstances was not challenged):

Between January 1990 and 1991 or 1992 [X] and [Y] and their four children [A, DD, JL and B] resided at [an army base in the ACT]. [X] was in the armed services at this...