The Queen v Billy Bartolomeus Tamawiwy

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 24 September 2015
• Docket Number: File Number(s): SCC 289 of 2014
• Court: Supreme Court of ACT
• Date: 24 September 2015

[2015] ACTSC 302

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge ACJ

File Number(s): SCC 289 of 2014

SCC 290 of 2014

The Queen

(Crown)

and

Billy Bartolomeus Tamawiwy

(Defendant)

Representation:

Counsel

Mr T Hickey (Crown)

Mr J Lawton (Defendant)

Cases Cited:

Bill Acceptance Corporation Ltd v GWA Ltd (1983) 1 IPR 496

Case Stated by DPP (No 1 of 1993) (1993) 59 SASR 214 Crisp v The Queen (Unreported, Supreme Court of Tasmania, Cox, Crawford and Zeeman JJ, No 52 of 1990, 19 December 1990)

Edgington v Fitzmaurice (1885) 29 Ch D 459

Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82

Ibbs v The Queen [1988] WAR 91

Michael v Western Australia (2008) 183 A Crim R 348

Nydam v The Queen [1977] VR 430

Papadimitropoulos v the Queen (1957) 98 CLR 249

R v Clarence (1888) 22 QBD 23

R v Gallienne [1964] NSWR 919

R v Winchester [2014] 1 Qd R 44

Legislation Cited:

Crimes Act 1900 (ACT), ss 54, 60, 67, 92P

Crimes Legislation Amendment Act 2001 (ACT), s 43

Crimes Act 1900 (NSW), s 66

Criminal Code 1899 (Qld), s 348

Criminal Code Act 1924 (Tas), s 2A

Criminal Code Act Compilation Act 1913 (WA), s 319(2)(a)

Crimes (Amendment) Ordinance (No 5) 1985 (ACT)

Draft Criminal Code (NT), cl 88(2)

Texts Cited:

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

Simon H Bronitt, ‘Rape and Lack of Consent’ (1992) 16 Crim LJ 289

Explanatory Statement, Crimes (Amendment) Ordinance No 5 1985 (ACT), 28 November 1985

Law Reform Commission, Report and Recommendations on Rape and Sexual Offences, (Government Printer, Tasmania, 1982) Report No 31.

Model Criminal Code Officers Committee, in its Report on Chapter 5 ‘Sexual Offences Against the Person’ (Canberra, May 1999)

JH Beale Jnr, ‘Consent in the Criminal Law’ (1894–5) 8 Harvard LR 317

PW Young, The Law of Consent (Law Book Co: Sydney, 1986)

CRIMINAL LAW — Trial — jury trial — sexual offences — sexual intercourse without consent — act of indecency without consent — statutory interpretation — consent — negation of consent — fraud — fraudulent misrepresentation of fact — statement of fact not a promise — serious deception

Decision:

The application for a directed acquittal on counts 7, 8 and 9 on the indictment be dismissed.

Refshauge J

1 Between November 2013 and December 2014, Billy Bartolomeus Tamawiwy, the accused, used two Facebook accounts, one under the name of Billy Tamawiwy and one under the name of Taylah Edwards. Under the latter, he assumed the identity of a young woman and engaged in messaging with a number of young men.

2 The messages rapidly turned sexual and, in particular, Mr Tamawiwy, posting as Taylah Edwards, made inquiries about the sexual orientation of the recipients of the messages.

3 One of the recipients was SJ and Mr Tamawiwy, as Taylah Edwards, represented that Ms Edwards, although she did not exist, was a member of a bisexual community which had gatherings at which the participants readily engaged in sexual intercourse and other sexual activities.

4 In circumstances I do not need to set out in detail, the messages from the Taylah Edwards' account invited SJ to participate in such activities. Indeed, the messages expressly indicated that Taylah Edwards and what were described as two of her friends, named Emily and Bella, would have sexual intercourse with SJ, but only on certain conditions. In order to induce SJ to comply with the conditions, photographs were posted in the messages from the Taylah Edwards account which purported to be naked pictures of Taylah Edwards and of Emily.

5 The conditions imposed were that SJ was required to engage in sexual activities, including sexual intercourse, with a male whose name was given as Christian. The male was, in fact, Mr Tamawiwy. The Crown's allegation was that Mr Tamawiwy was using the Taylah Edwards Facebook account to seduce young men to have sexual intercourse with him, the inducement being the opportunity to have sexual intercourse later with attractive young women. That was, of course, a false inducement.

6 Although reluctant to do so, SJ did meet Mr Tamawiwy and they engaged in sexual intercourse involving fellatio and penile/anal intercourse. There was no real dispute about the fact that Mr Tamawiwy and SJ had engaged in those activities.

7 It was also said by the Crown that Mr Tamawiwy had used his phone to photograph those activities, in particular the penile/anal intercourse, and videos of that activity were subsequently published in certain messages transmitted through the Taylah Edwards account on Facebook.

8 Having engaged in the activities, SJ then sought to meet Taylah Edwards, but the address he was given was not the address of Taylah Edwards who, of course, did not exist.

9 Later SJ went to the police and made a complaint. Mr Tamawiwy was arrested and charged with a number of offences, including two counts of engaging in sexual intercourse with SJ, without his consent, being reckless as to whether he was consenting, offences against s 54 of the Crimes Act 1900 (ACT), and, in respect of the filming by video of the intercourse, committing an act of indecency in the presence of SJ without his consent, being reckless as to whether he was consenting, an offence contrary to s 60 of the Crimes Act.

10 He pleaded not guilty to these and some other offences. On the first day of the trial, on an indictment containing 14 counts, however, he changed some of his pleas and pleaded guilty to five of the counts on the indictment, which also meant that two alternative counts were resolved, leaving seven counts, including one alternative count and also the three accounts referred to above (at [9]).

11 There was no dispute that SJ had, in fact, consented to the sexual activities in which he engaged with Mr Tamawiwy. The Crown case, however, relied on s 67 of the Crimes Act which provided that, in certain circumstances, consent is negated if it is caused by certain factors.

12 Although one paragraph of s 67(1) of the Crimes Act is relied on, the whole section is set out below, as the interpretation of the relevant provision may depend, at least in part, on the terms of the whole section.

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 by 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.

• (2) A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.

• (3) If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.

13 The relevant paragraph on which reliance is placed is s 67(1)(g), namely that the consent was caused by a fraudulent misrepresentation of a fact. A question has now arisen as to whether the misrepresentation relied on by the Crown falls within the relevant paragraph and so negates the consent.

14 If the consent is not negated then it is accepted that the Crown cannot make out its case on the relevant counts on the indictment. Indeed, Mr J Lawton, who appears for Mr Tamawiwy, has submitted that there is no evidence fit to go to the jury on the relevant three counts, to which I have referred above (at [9]), and that they should be withdrawn from the jury, or the jury directed to acquit the issue.

15 Because, of course, there are not often detailed pleadings in the criminal jurisdiction of this Court, the terms of the misrepresentation were not set out until articulated during the Crown case. The formulation that was accepted by the Crown was as follows: a fraudulent misrepresentation that Taylah Edwards existed as a woman and that she and her two friends would engage in sexual intercourse with SJ, if he had sexual intercourse with a male named Christian, being, in fact, Mr Tamawiwy.

16 The Crown relied also on the fact that the so-called friends of Taylah Edwards — Emily and Bella — did not exist either and that the representation that they existed, and would also have sexual intercourse with SJ, was made prior to the time when SJ engaged in sexual intercourse with Mr Tamawiwy.

17 Mr Lawton submitted that there was no case to answer on the three counts involving this matter because the fraudulent misrepresentation was not of a fact but a promise, namely that...