The Queen(Crown) v Craig Joseph Stevens (Accused)

• Jurisdiction: Australian Capital Territory
• Judge: Mossop J
• Judgment Date: 02 March 2017
• Court: Supreme Court of ACT
• Docket Number: File Number: SCC 69 of 2017
• Date: 02 March 2017

[2017] ACTSC 296

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop J

File Number: SCC 69 of 2017

The Queen

(Crown)

and

Craig Joseph Stevens

(Accused)

Representation:

Counsel

R Christensen (Crown)

J Stewart (Accused)

Cases Cited:

R v Tolmie (1995) 37 NSWLR 660

R v Kitchener (1993) 29 NSWLR 696

Gillard v The Queen [2014] HCA 16 ; 88 ALJR 606

Director of Public Prosecutions v Morgan [1976] AC 182

Banditt v The Queen [2005] HCA 80 ; 224 CLR 262

Sims v Drewson [2008] ACTSC 91 ; 188 A Crim R 445

Legislation Cited:

Crimes Act 1900 (ACT) s 60

CRIMINAL LAW — PARTICULAR OFFENCES — Offences Against the Person — sexual intercourse without consent — recklessness — non-advertent recklessness — accused state of mind — indifference to complainant consent — going ahead “willy-nilly not even caring whether [a complainant] consented or not”

Decision:

See paragraph 8

Mossop J

1 I have been asked to indicate in advance of closing submissions what direction I will give the jury in relation to non-advertent recklessness. I have heard submissions from the parties on this issue. Counsel for the Crown contends that it is appropriate to give a direction consistent with that in the New South Wales Criminal Trials Bench Book. The New South Wales Bench Book incorporates the elements of the description of non-advertent recklessness described in the headnote to the decision in R v Tolmie (1995) 37 NSWLR 660. This is the formulation articulated by Kirby P. It differs somewhat from the formulation of Newman J, who adopted the earlier decision of R v Kitchener (1993) 29 NSWLR 696 at 697, where Kirby P said:

This can be shown not only where the accused adverts to the possibility of consent but ignores it, but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirement for consent.

2 Barr AJ agreed with both the reasons of Kirby P and the reasons of Newman J and hence there is no clear majority formulation of the appropriate test. The headnote, however, picked up the formulation of Kirby P.

3 In Gillard v The Queen [2014] HCA 16; 88 ALJR 606, the High Court, while approving various formulations in the House of Lords in Director of Public Prosecutions v Morgan [1976] AC 182, expressly said that it was not necessary to consider whether recklessness extends to the state of mind of inadvertence to consent in the way described in Tolmie (see Gillard at [26].) The Court said:

It is sufficient in order to address the issues raised by the appeal, to observe that recklessness is a mental state captured by the concept of indifference to the complainant's consent, as explained in the joint reasons in [ Banditt v The Queen [2005] HCA 80; 224 CLR 262].

4 The authorities in this jurisdiction since 2008 have not explored the possible different formulations of non-advertent consent. Those decisions involve approval of the decision of Besanko J in Sims v Drewson [2008] ACTSC 91; 2 ACTLR 307, as is made clear by his Honour's judgment at [32]. The issue that his Honour was called upon to decide was whether or not non-advertent recklessness was within the concept of recklessness in s 60 of the Crimes Act 1900 (ACT). His Honour formulated the concept of non-advertent recklessness as follows:

Non-advertent recklessness is where the accused person is so indifferent to the rights of the alleged victim as to ignore completely the requirement of consent.

5 It is worth noting that this picks up the language of Lord Cross in Morgan. Besanko J also made reference to the decision of the New South Wales Court of Appeal in Kitchener and the Court of Appeal decision in Fitzgerald v Kennard (1995) 38 NSWLR 184, which followed the decision in Kitchener. Finally he referred to the decision in Banditt v The Queen [2005] HCA 80; 224 CLR 262, which was consistent with the acceptance of non-advertent recklessness being within the scope of the concept of recklessness. His Honour's discussion of Tolmie was limited and he did not discuss the correctness of the particular formulation captured by the headnote in Tolmie. The correctness of Besanko J's reasoning in Sims was confirmed by the Court of Appeal in Director of Public Prosecutions v...