Gillard v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Crennan,Bell,Gageler,keane JJ.
• Judgment Date: 14 May 2014
• Neutral Citation: [2014] HCA 16
• Docket Number: C20/2013
• Date: 14 May 2014

[2014] HCA 16

HIGH COURT OF AUSTRALIA

French CJ, Crennan, Bell, Gageler and keane JJ

C20/2013

Michael Alan Gillard

Appellant

and

The Queen

Respondent

Representation

T A Game SC with J L Roy for the appellant (instructed by Kamy Saeedi Lawyers)

H J Dhanji SC with M A Jones for the respondent (instructed by Director of Public Prosecutions (ACT))

Crimes Act 1900 (ACT), ss 54, 60, 67. .

Gillard v The Queen

Criminal law — Appeal — Appeal against conviction — Sexual offences — Sexual intercourse without consent — Act of indecency without consent — Whether jury misdirected on mental element of offences — Whether jury misdirected on mental element of offences where statute negates consent.

Statutes — Interpretation — Whether prosecution must prove accused had knowledge that consent was caused by Crimes Act 1900 (ACT) s 67(1) circumstance — Whether recklessness as to Crimes Act 1900 (ACT) s 67(1) circumstance sufficient to establish mental element of offence.

Words and phrases — ‘consent’, ‘recklessness’.

ORDER

• 1. Appeal allowed.

• 2. Set aside the order of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 18 April 2013 and, in its place, order that:

  • (a) the appeal be allowed in part;

  • (b) the appellant's convictions on counts 13, 14, 16 and 18 of the indictment be quashed; and

  • (c) a new trial on counts 13, 14, 16 and 18 be had.

1 French CJ, Crennan, Bell, Gageler and keane JJ. The appellant was convicted following a trial before Higgins CJ and a jury in the Supreme Court of the Australian Capital Territory of a number of sexual offences under the Crimes Act 1900 (ACT) (‘the Crimes Act’). Three of the counts on which he was convicted alleged that the appellant had sexual intercourse with DD, without DD's consent, knowing that DD was not consenting or being reckless as to DD's consent. These counts charged offences under s 92D of the Crimes Act (counts 13, 16 and 18). The appellant was also convicted on one count of committing an act of indecency in the presence of JL, without JL's consent, knowing that JL was not consenting or being reckless as to JL's consent. This count charged an offence under s 92J of the Crimes Act (count 14). The sexual offence provisions of the Crimes Act were renumbered in 2001 1. Section 92D became s 54(1). Section 92J became s 60(1). In these reasons, the provisions will be referred to by their present numbers in the form in which each provision stood at the date of the renumbering 2.

2 The complainants, DD and JL, are sisters. DD was born in May 1981 and JL was born in December 1982. The appellant was a friend of their father, GM. The two men had met while serving in the Army. At material times the appellant was aged in his mid-forties. He had a close relationship with DD, whom he had known since she was a young child. From 1993 until 2000, DD and JL spent some part of each January school holiday staying with the appellant at his Canberra home. The purpose of these visits was to enable DD and JL to see their brother, who was physically disabled and living in a residential care facility in Canberra. The appellant understood that DD and JL had been entrusted to his care during these visits.

3 The indictment charged the appellant with a number of sexual offences against DD which required proof as an element of liability that DD was aged less than 16 years at the date of their commission. DD's consent was not an issue on the trial of these counts. The appellant was convicted on three of these counts and acquitted on the remaining counts. DD's evidence of the dates on which some of the offences occurred was uncertain. One explanation for the differing

verdicts is that the prosecution was unable to prove that the acts charged in counts five to 12 occurred before DD turned 16.

4 The appeal is confined to the appellant's convictions for the four offences that were alleged to have occurred when DD and JL were aged 16 years or more, in which the prosecution was required to prove that sexual intercourse, or the commission of the act of indecency, was without the consent of DD or JL, as the case may be.

5 Section 67(1) of the Crimes Act states circumstances which may negate a complainant's consent to specified sexual offences, including ss 54(1) and 60(1) offences. Relevantly, s 67(1)(h) negates consent to sexual intercourse, or an act of indecency, where that consent is caused by the abuse of a person's position of authority over, or professional or other trust in relation to, the complainant. The appeal is concerned with the relationship between s 67 and the offences created by ss 54(1) and 60(1).

6 The prosecution case on the four counts that are the subject of the appeal was left for the jury's consideration on alternative bases: that DD and JL did not consent to sexual intercourse or the commission of the act of indecency; or that DD's and JL's consent to sexual intercourse or the act of indecency was negated because it was caused by the appellant's abuse of his position of authority over DD and JL. Satisfaction of the mental element of each offence was the subject of directions on both knowledge of non-consent and recklessness as to consent. Section 67(3) provides that if a person knows that the consent of another person has been caused by one of the s 67(1) circumstances, the person is deemed to know that the other person does not consent to the sexual intercourse or the act of indecency. Section 67(3) is silent respecting proof of recklessness as to consent. The particular issue raised by this appeal is whether, in a case in which s 67(1)(h) is engaged to negate consent, the mental element of the offence may be established by proof that the accused was reckless as to the circumstance described in that paragraph.

7 The appellant appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory (Refshauge, Penfold and North JJ) against his convictions on a number of grounds. Only one ground is relevant to the appeal in this Court. That ground concerned the prosecution's alternative case based on abuse of the appellant's position of authority under s 67(1)(h). It was contended that the prosecution was required to prove that the appellant knew that the complainant's consent had been obtained by the abuse of his position of trust or authority and that recklessness as to whether her consent had been so obtained would not suffice 3. The Court of Appeal rejected the ground, holding that the trial judge had been right to leave the possibility that any consent given by DD to the acts charged in counts 13 to 18 was caused by the appellant's abuse of his position of authority over, or other trust in relation to, DD, or that the appellant was reckless as to whether DD was consenting at all 4.

8 On November 2013, Hayne and Gageler JJ granted the appellant special leave to appeal from the order of the Court of Appeal dismissing the appeal against the convictions on counts 13, 14, 16 and 18. The appeal is brought on three grounds. In summary those grounds contend: first, that it was an error to direct the jury that it could convict if it was satisfied that the complainant's consent was caused by the appellant's abuse of his position of authority over the complainant and he was reckless as to that circumstance; second, that where s 67(1)(h) is relied upon to negate consent, the mental element of the offence is knowledge by virtue of s 67(3); and third, that the Court of Appeal erred in holding that consent was only an issue in respect of count 13. For the reasons to be given, the first and third grounds should be upheld and it follows that the appeal must be allowed, the appellant's convictions on counts 13, 14, 16 and 1set aside, and a new trial had on those counts.

The evidence

9 It is sufficient to refer to the evidence of the offences charged in the four counts and an uncharged incident that is said to have occurred after DD turned 16 but before the incident charged in counts 13 and 14. Evidence of the uncharged incident was admitted to put DD's evidence of the incident charged in count 13 in context. DD gave evidence that the uncharged incident occurred on an occasion when the appellant was staying with her family in Wodonga. She and the appellant were alone in his car. The appellant demanded that DD demonstrate that she loved him, threatening that otherwise he would ‘start loving JL’. DD was protective of JL and did not wish the appellant to turn his attentions to her, so she reassured him that she loved him. The appellant exposed his penis and forced DD to fellate him.

10 The incident charged in counts 13 and 14 occurred in January 1999 in the lounge room of the appellant's Canberra home. DD was 17 years old and JL was

16 years old. DD said that the appellant offered to prove to JL that he and DD had ‘a relationship’ and that DD would do whatever he wanted her to do. He instructed DD to give him a ‘head job’. He stood up and guided DD down onto her knees. He pulled his pants down and took hold of the back of her head, pushing it forward and forcing her to fellate him. He maintained his grip so that she was unable to pull away despite her efforts to do so. The episode lasted about 30 seconds until DD was able to extricate herself (count 13).

11 JL's account of the incident was broadly consistent with DD's account save that JL said that the appellant's hands were by his side when DD placed her mouth over the appellant's penis. JL said that she had not been asked if she was ‘okay’ about the performance of a sexual act in her presence (count 14) and she had been shocked by it.

12 The offences charged in counts 16 and 18 (count 17 charged an alternative offence to count 16) occurred on the one occasion in January 2000 in a bedroom at the appellant's Canberra home. DD said that...