R v Grey (No 2)

• Jurisdiction: Australian Capital Territory
• Judge: Murrell CJ
• Judgment Date: 29 October 2019
• Court: Supreme Court of ACT
• Date: 29 October 2019
• Docket Number: File Numbers: SCC 246, 247 of 2018; SCC 28 of 2019

[2019] ACTSC 315

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Murrell CJ

File Numbers: SCC 246, 247 of 2018; SCC 28 of 2019

ACT Director of Public Prosecutions

(Crown)

and

Bradley Grey

(Accused)

Representation:

Counsel

T Hickey (Crown)

B Morrisroe (Accused)

Cases Cited:

Gillard v The Queen[2013] ACTCA 17; 275 FLR 416

Michael v Western Australia [2008] WASCA 66; 183 A Crim R 348

Papadimitropoulos v The Queen (1957) 98 CLR 249

R v Howes[2000] VSCA 159; 2 VR 141

R v Tamawiwy (No 2)[2015] ACTSC 302; 11 ACTLR 82

Suleman v The Queen[2009] NSWCCA 70

Texts Cited:

ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report 18 (2001)

Law Reform Commission of Tasmania, Report and Recommendations on Rape and Sexual Offences, Report 31 (1982)

Legislation Cited: Crimes Act 1900 (ACT) ss 54, 60, 67(1)

Crimes (Amendment) Ordinance (No. 5) (ACT), No. 62 of 1985

CRIMINAL LAW — PRACTICE AND PROCEDURE — Engage in sexual intercourse without consent — Commit acts of indecency without consent — Consent alleged to have been negated by abuse of position of authority or trust — Meaning of “abuse of position of authority over”

Decision:

Direction on “position of authority over” at [22].

Murrell CJ

1 The question for determination is how the jury should be directed in relation to what constitutes a “position of authority over” another person within s 67(1)(h) of the Crimes Act 1900 (ACT) ( Crimes Act).

2 The accused was the owner or manager of a Canberra brothel known as Mitchell Mistresses (the business). He was responsible for recruiting sex workers for the business. Between late 2015 and early 2017, he responded to inquiries from nine women who were interested in undertaking sex work (the complainants). When each complainant first attended the business premises, the accused photographed her in lingerie for the purpose of website advertising and then undertook “training”. The “training” involved the accused engaging in sexual activity with the complainant.

3 The indictment contains 27 charges relating to the “training” of the nine complainants.

4 As a general proposition (the approach to each charge is tailored to its particular circumstances), the prosecution contends that the sexual activity that is the subject of each “training” episode involved acts of indecency and/or sexual intercourse in relation to which there was no consent (no free and voluntary agreement), contrary to ss 54 and/or 60 of the Crimes Act. Alternatively, the prosecution says that consent was negated because it was caused by a circumstance prescribed by s 67(1) sub-ss (g) and/or (h) of the Crimes Act.

5 In relation to each of the 27 charges, the annexed table describes the manner in which the prosecution puts its case on consent.

6 The accused concedes that it is a matter of fact for the jury to decide whether the accused was in a “position of authority over” any complainant and, if so, whether (pursuant to s 67(1)(h) of the Crimes Act) the complainant's consent to sexual activity was negated because it was caused by the abuse by the accused of his position of authority over the complainant: Gillard v The Queen[2013] ACTCA 17; 275 FLR 416 at [87] ( Gillard).

7 Section 67(1) provides:

67 Consent

• (1) For sections 54, 55(3)(b), 60 and 61(3)(b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—

  • (a) by the infliction of violence or force on the person, or on a third person who is present or nearby; or

  • (b) by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or

  • (c) by a threat to inflict violence or force on, or to use extortion against, the person or another person; or

  • (d) by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or

  • (e) by the effect of intoxicating liquor, a drug or an anaesthetic; or

  • (f) by a mistaken belief as to the identity of that other person; or

  • (g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or

  • (h) by the abuse of the other person of his or her position of authority over, or professional or other trust in relation to, the person; or

  • (i) by the person's physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or

  • (j) by the unlawful detention of the person.

8 In order to establish negated consent by relying on s 67(1)(h), the prosecution needs to prove three matters beyond reasonable doubt:

• (a) at the time of the relevant conduct, the accused was in a “position of authority over” the complainant;

• (b) the accused “abused” that position of authority; and

• (c) the abuse by the accused of his position of authority over the complainant “caused” her to consent to the sexual activity.

9 In these proceedings, all three matters are contentious, including whether the accused was in a “position of authority over” any or all complainants.

10 Prior to the enactment of s 67, the common law recognised that consent to an act of sexual intercourse could be vitiated by fraud, but only fraud in relation to the nature of the sexual act or the identity of the accused: Papadimitropoulos v The Queen (1957) 98 CLR 249. There was a general recognition of the need to expand the categories of conduct that would vitiate consent.

11 In 1985, the Crimes Act was amended by inserting s 92P, 1 which later became s 67. Section 92P adopted recommendations of the Law Reform Commission of Tasmania, Law Reform Commission of Tasmania, Report and Recommendations on Rape and Sexual Offences, Report 31 (1982). At [44], the Tasmanian Report recommended the legislative proscription of behaviour that created “non-consensual situations”, inter alia by “[removing] doubts in the area of … exploitation of authority or position …”.

12 The enactment of s 92 P (later s 67(1)) represented a significant departure from the common law: R v Tamawiwy (No 2)[2015] ACTSC 302; 11 ACTLR 82 ( Tamawiwy) per Refshauge ACJ at [55].

13 Section 67(1) was intended to have a broad reach; the provision expressly states that the circumstances identified within the provision do not limit “the grounds on which it may be established that consent is negated”. The breadth and lack of definition in the provision were criticised in the ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report 18 (2001). Fortunately, in these proceedings, it is unnecessary to consider the limits to the reach of s 67(1) as the prosecution has confined its case to ss 67(1)(g)–(h).

14 In s 67(1), the expression “position of authority” extends beyond well-recognised positions of authority such as those of parent/child and teacher/student. In Gillard, the Court observed that a person could be in a position of authority over a complainant despite the lack of “any formal authority” over the complainant, and even where the complainant was legally an adult: at [85].

15 The expression “position of authority over” has three aspects: it entails a “position” that is one of “authority” and is also a position “over” the complainant. The expression “position” implies an ongoing relationship (as opposed to one-off encounter) between the accused and the complainant. “Position of authority” suggests that the relationship is not one of approximate equality but a relationship in

which the accused has a greater status associated with a legitimate right to direct or control the actions of the complainant, and, consequently, the accused is in a “position of authority over” the complainant. Seen in this way, s 67(1)(h) addresses the improper use of a right to direct or control a complainant that arises in the context of an unequal relationship

16 Neither the terms nor the intention of the provision suggest that it should be confined to cases where the accused has a legal right to direct or control a complainant; rather, it extends to situations where the accused has a practical or moral “right” to direct or control her. Nevertheless, the right must derive from the accused's position. In R v Howes[2000] VSCA 159; 2 VR 141 ( Howes), Brooking JA (Winneke P and Chernov J agreeing) said that the words “under his or her care, supervision or authority” did not require the existence of rights or powers: at [50]. I note that, in Howes, the Court was not considering the expression “position of authority”, but rather “under his … authority”.

17 By its terms, s 67(1)(h) distinguishes between “position of authority over”, “professional trust in relation to”, and “other trust in relation to” a complainant. Both the expressions “position of authority over” and “trust in relation to” address relationships of inequality; confirming that the provision is designed to address the exploitation of authority or position. However, the former expression speaks of inequality arising from the accused holding a position that confers a legal, practical or moral right to direct or control a complainant; whereas the latter expression speaks of inequality arising from the complainant placing trust and confidence in the accused (and, thereby, becoming vulnerable) and the accused accepting responsibility for acting in the complainant's interests (whether or not in the context of a well-recognised relationship of trust such as doctor/patient).

18 Neither party referred me to a case that was directly on point.

19 In Suleman v The Queen[2009] NSWCCA 70 ( Suleman), the NSW Court of Criminal Appeal considered the expression “the offender abused a position of trust or authority in relation to the victim” in the...