Director of Public Prosecutions v Walker [2011] ACTCA 1

[2011] ACTCA 1

Court of Appeal (ACT)|2011-02-03|Before: Commission J

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Court of Appeal (ACT)

Decision date

2011-02-03

Before

Commission J

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Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

DIRECTOR OF PUBLIC PROSECUTIONS v JOHN WALKER

[2011] ACTCA 1 (3 FEBRUARY 2011)

CRIMINAL LAW – Attorney-General’s reference – principles – reference limited to points of law arising in relation to the trial – question referred must be phrased with sufficient precision or appropriately for the Court to hear and decide – s 37S Supreme Court Act 1933 (ACT)

CRIMINAL LAW – offences of sexual intercourse without consent and statutory indecency – mens rea expressed as knowledge or recklessness – whether one or two offences depending on accused’s knowledge or recklessness – primary judge required Crown to elect between knowledge and recklessness on charges on an indictment for offences against ss 54 and 60 of the Crimes Act 1900 (ACT) – whether charge framed in terms of knowledge and recklessness duplicitous

Held: only one offence created – Crown need not elect between knowledge and recklessness

Crimes Act 1900 (ACT) s 54, s 60

Evidence Act 1995 (Cth) s 66(2)

Supreme Court Act 1933 (ACT) s 37S

Justice and Community Safety Legislation Amendment Bill (No 2)

Professor Sir John Smith QC (Smith and Hogan: Criminal Law (10thed; 2002)

Reg v Flitter [2001] Criminal Law Review 328

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to

Attorney-General (NSW) v X (2000) 49 NSWLR 653 applied

Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 referred to

Banditt v The Queen (2005) 224 CLR 262 referred to

Beckford v The Queen [1988] AC 130 referred to

Boughey v The Queen (1986) 161 CLR 10 considered

Director of Public Prosecutions Reference (No 1) (1999) 149 FLR 465 referred to

Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 referred to

Fitzgerald v Kennard (1995) 38 NSWLR 184 referred to

He Kaw Teh v The Queen (1985) 157 CLR 523 applied

Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 applied

Papakosmas v The Queen (1999) 196 CLR 297 applied

R v Daly [1968] VR 257 referred to

R v Kitchener(1993) 29 NSWLR 696 referred to

R v Lavender (2005) 222 CLR 67 referred to

The jurisdiction conferred on the Court of Appeal by s 37S(2) of the Supreme Court Act in a reference appeal is to “hear and decide any question of law arising at or in relation to the proceeding” on the indictment that has concluded. The decision on a reference appeal does not invalidate or affect any verdict or decision given in the proceeding below (s 37S(6)).
The jurisdiction given to the Court of Appeal under s 37S(2) is that it may hear and decide any question of law, arising at or in relation to the concluded proceedings, that the Director applies to have heard and determined. The purpose of provisions, such as s 37S, that allow the Crown or its representatives to refer questions of law to an appellate court after criminal proceedings against an accused have come to an end, is to correct an error of law that occurred in the proceedings and affected their outcome: Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 662 [38], 679 [136] per Spigelman CJ, 699 [226]-[228] per Priestley JA.
The legislature can be presumed to have intended that, by conferring jurisdiction on the Court to hear and determine such questions, the Court will exercise judicial power in deciding whether to answer the question of law and, if it decides to do so, in answering it. That presumption is founded on the institutional role of the courts to determine actual legal controversies. The exercise of judicial power does not extend to answering abstract or hypothetical questions or offering general advisory opinions on such questions: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ; Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 576-577 [10]-[14] per Gaudron, Gummow and Hayne JJ; Director of Public Prosecutions Reference (No 1 of 1999) (1999) 149 FLR 465 at 470-471 [14]-[15] per Martin CJ and Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 at 265C-F per Lord Mustill with whom Lords Goff of Chieveley, Slynn of Hadley and Clyde agreed.
The scope of the jurisdiction under s 37S(2) is considerable and may extend to some pre-trial rulings that were made in relation to the charge on the indictment before the commencement of the trial. Critically, s 37S(1) requires that the person must be charged on indictment in the Court before any relevant question of law can arise in relation to that indictment or the proceeding in the Court. Unlike its legislative counterparts in other places, s 37S is not confined to questions of law that arose at the trial (as in B 194 CLR 566) but extends to those arising “in relation to the trial”. It is comparable in scope to those provisions considered in DPP Reference (No 1 of 1999) 149 FLR 465 and X 49 NSWLR 653, although in s 5A(2) of the Criminal Appeal Act 1912 (NSW) the question of law must be one “arising at or in connection with the trial”. However, it is not necessary to consider exhaustively the outer boundaries of the jurisdiction in this application.
The Court of Appeal has a discretion whether or not to hear and decide a question of law in an application made under s 37S(2). This is because the question of law may be framed in terms that are not appropriate to the controversy that arose at or in relation to the trial, for instance, the question may be too imprecise, or require a text book length answer because of its complexity, cf: Attorney-General’s Reference [1998] AC at 265F-G; X 49 NSWLR at 662-663 [39]-[42]. The questions of law
The four questions of law raised by the Director’s application for the reference appeal were: 1. Is the Crown required to particularise between knowledge and recklessness on an indictment charging an offence against s 54 of the Crimes Act (alleged to have occurred on or before 28 August 2008)? 2. Is the Crown required to particularise between knowledge and recklessness on an indictment charging an offence against s 60 of the Crimes Act? 3. Is the test of recklessness applicable to ss 54 and 60 of the Crimes Act the test of recklessness contained in the Criminal Code? 4. Should the standard direction to a jury where complaint evidence has been tendered be that the evidence can be used to support credibility and also for a hearsay purpose, unless there has been a ruling that the evidence is inadmissible for the latter purpose? The relevant provisions of the Crimes Act
At the time of the alleged offences ss 54(1) and 60(1) of the Crimes Act provided: “54 Sexual intercourse without consent (1) A person who engages in sexual intercourse with another person without the consent of that other person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years. ..... 60 Act of indecency without consent (1) A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.” The factual context
The indictment of the interested person was signed on 11 February 2010 and lodged in the Supreme Court the next day. It charged, first, that on 1 September 2004 at Canberra the interested person: “engaged in sexual intercourse with [the complainant], without his consent, knowing that he was not consenting or being reckless as to whether he was consenting”
That charge followed the then statutory formulation of the offence in s 54(1) of the Crimes Act. The second count in the indictment was that on 1 September 2004 at Canberra the interested person: “committed an act of indecency in the presence of [the complainant] without his consent, knowing that he was not consenting or was reckless as to whether he was consenting”
The words italicised in each count were removed from the indictment after the primary judge required the crown prosecutor to elect between the alternate formulations of the interested person’s alleged state of mind. This occurred in the presence of the jury panel early on the first day of the proceedings. Questions 1 and 2 are directed to whether the primary judge was correct to require the Crown to make that election.
At the outset the prosecutor had asked for the accused (interested person) to be arraigned on the original two counts in the indictment. Counsel for the accused told his Honour that there was no objection to the indictment. Just after the two counts were read to the accused and he had pleaded not guilty to each of them, his Honour raised with the prosecutor that the counts were duplicitous because they alleged true alternative intentions, each amounting to a separate offence. The primary judge said that the point had been ruled on previously and was not open to argument. Nonetheless, some discussion occurred between his Honour and the prosecutor. At the conclusion of that interchange, the primary judge adhered to his previous view that the counts alleged two offences. In the result, his Honour permitted the indictment to be amended, without objection, by deleting the words italicised above. The accused was rearraigned on the amended counts and pleaded not guilty. A jury was then empanelled and the trial commenced.
The essential facts may be shortly stated. On 31 August 2004 the accused and the complainant were present at a dinner party held by Ruben Peculis. The accused was a lecturer at the AustralianDefenceForceAcademy. Both the complainant and Mr Peculis had been cadets there and students of the accused. During the evening, both the complainant and the accused consumed a lot of alcohol. At the end of the dinner party, early on 1 September 2004, the complainant offered the accused a lift to his home. When they arrived, the accused invited the complainant to come in for a drink. The complainant accepted and went inside.
The complainant gave evidence that after a while he fell asleep on a couch and subsequently woke up to find his fly was undone and the accused was performing oral sex on him. That allegation was the basis of the first count. The complainant’s evidence was that he told the accused to stop and pushed the accused off him. The complainant said that he abused the accused in terms derogatory of his homosexual conduct. The complainant said that the accused then undid his own trousers, began to masturbate and told the complainant that he wanted to have sex together with him. The masturbation allegation was the basis of the second count.
The prosecution also led evidence from a number of persons to whom the complainant had complained about the accused’s alleged conduct. These complaints were made by the complainant separately to his then girlfriend and his father in the early hours of 1 September 2004 and later, at about 4 am that day, to a medical practitioner. The complainant also complained to two police officers on 2 September 2004. The complainant gave evidence that he was “paralytically drunk” when he saw the medical practitioner, about two hours after his last drink.
The accused gave evidence. He denied that anything of a sexual nature had happened between him and the complainant at his home. He also denied that the complainant had fallen asleep.
The jury found the accused not guilty on both counts. QUESTIONS 1 AND 2 The summing up – consent
In his summing up, the primary judge told the jury that one element of each offence was that the sexual act complained of had to occur without the consent of the complainant. He said: “And that is a question of fact for you and anyone else to determine. Did the person agree to that act of sexual intercourse? Did they agree? And that is of course quite independently of whether they expressed agreement or disagreement. It is a question of fact as to their state of mind. Did they agree? If the answer is “No, they did not” then a further question does arise, and that is whether the accused person, as the person who engaged in the act of intercourse, there actually being in fact no consent to it, was reckless as to whether there was consent. Because if they reasonably believed there was consent they would not be guilty of an offence. And unless you were sure that they were aware that there was no consent or, as the charge says, reckless as to whether there was consent, they could not be guilty of the offence.” (emphasis added)
The primary judge then charged the jury that recklessness “… means an awareness of a substantial risk that there is not, or in the case of a prospective act, will not be consent, and that it is not justifiable to take the risk in the circumstances”. That last element of the above portion of the summing up gives rise to the issue in question 3, which will be considered later in these reasons.
The question of whether s 54(1) (as it was in 2004) and s 60(1) create one or two offences is of substantial practical importance in the administration of the law of the Territory. As noted below, in 2008, s 54(1) was amended to address the difficulties that had arisen because some judges of the Court had expressed the view or ruled that by using the alternate forms of intention, being knowledge or recklessness, the section created two offences. Those were, first, sexual intercourse without consent, knowing that there was no consent and secondly, sexual intercourse without consent, reckless as to whether there was consent.
This view was said to have been endorsed by various statements in the transcript of an appeal against sentence in R v Maddison [2007] ACTCA 18. There the accused had pleaded guilty to a count under s 54(1) on an indictment alleging the mental element of recklessness only. In the course of argument, the members of the Court of Appeal expressed the view that, on the facts, the accused was not reckless but knew that the victim had not consented. Ultimately, the Crown suggested that the conviction be set aside and the matter be remitted for further consideration. The Court accepted that suggestion and made the orders proposed without giving reasons.
Because the Court gave no reasons for the orders it made in Maddison [2007] ACTCA 18, it was not a decision on the construction of ss 54(1) or 60(1). Rather, it concerned whether a conviction on a plea of guilty, that specified the existence of one state of mind (recklessness) referred to in s 54(1), could stand where the evidence indicated that the accused there had the other state of mind (knowledge), that had not been the subject of the charge against him. Indeed, at best, Maddison [2007] ACTCA 18 if it has any value as a precedent, stood directly against the first portion of the primary judge’s charge to the jury in this matter (emphasised in [20] above): “And unless you were sure that they were aware that there was no consent or, as the charge says, reckless as to whether there was consent, they could not be guilty of the offence”. 2008 Amendment of s 54
As a result of the impression created by Maddison [2007] ACTCA 18, the Legislative Assembly amended s 54 to bring it into line with what the Explanatory Statement said was the common law, the intention of the drafter of the section in its original form, and in order to overcome the perceived result of that decision: see Explanatory Statement for the Justice and Community Safety Legislation Amendment Bill (No 2) at 4-5. Consideration – consent
The common law of criminal liability as it applies to the construction of statutes creating criminal offences, creates a presumption, displaceable by the statutory language, that to be guilty of a crime a person must, first, do a guilty act (actus reus) and, secondly, that when doing the act, he or she had a guilty mind (mens rea) in the sense that he or she intended to do the guilty act: He Kaw Teh v The Queen (1985) 157 CLR 523 at 528 per Gibbs CJ with whom Mason J agreed, 582 per Brennan J, 591 per Dawson J; R v K [2002] 1 AC 462 at 471-472 [17] per Lord Bingham of Cornhill. The common law conceived that such an intention would exist because the accused either knew, when doing the guilty act, that he or she was doing it or was reckless as to whether or not it occurred. However, the nature and extent of the knowledge of the accused could vary according to the particular ingredients of the crime at common law and, of course, as prescribed in any statute.
Brennan J explained the ambulatory nature of the expression “mens rea” as it applied to various states of mind as an ingredient in different offences in He Kaw Teh (1985) 157 CLR at 568-575 in a passage approved by Gleeson CJ, McHugh, Gummow and Hayne JJ in R v Lavender (2005) 222 CLR 67 at 77. Instructively, Brennan J observed in He Kaw Teh 157 CLR at 568: “The requirement of mens rea is at once a reflection of the purpose of the statute and a humane protection for persons who unwittingly engage in prohibited conduct. It is one thing to say that mens rea is an element of an offence; it is another thing to say precisely what is the state of mind that is required. It is the “beginning of wisdom”, as Lord Hailsham of St. Marylebone said in Reg. v. Morgan [1976] AC 182, at 213, to see “that ‘mens rea’ means a number of quite different things in relation to different crimes”. Indeed, it may connote different states of mind in respect of the several external elements of the same crime. If A strikes B and causes him bodily harm, A’s moral blameworthiness may depend on whether A moved accidentally, or whether he was unaware that B or anybody else was there, or whether he did not mean to cause bodily harm and could not and did not foresee that he would cause bodily harm. The particular mental states that apply to the several external elements of an offence must be distinguished, not only as a matter of legal analysis, but in order to maintain tolerable harmony between the criminal law and human experience.”
The elements of the offence in s 54(1) are that: a. the accused engages in sexual intercourse with another person; b. the sexual intercourse is without the other person’s consent; c. the accused knows that the other person does not consent, or is reckless as to whether the other person consents, to the sexual intercourse.
In many criminal offences direct evidence of the accused’s actual intention at the time of the alleged guilty act will not be available. Often that state of mind must be established by objective evidence from which the accused’s intention can be inferred. In sexual assault cases the intention of an accused will usually have to be inferred from the whole of the circumstances.
Each of ss 54(1) and 60(1) reflect the element of intention in the same terms as s 1 of the Sexual Offences (Amendment) Act 1976 (UK) (“the UK Act”). Each nominated the traditional common law alternate components of intention or mens rea in prescribing the offence it creates. As Gummow, Hayne and Heydon JJ noted in Banditt v The Queen (2005) 224 CLR 262 at 274 [28], the UK Act accepted the decision in Reg v Morgan [1976] AC 182 that the intention or mental element in the crime of rape was the composite of knowledge or recklessness. In Morgan [1976] AC 182 a majority of the House of Lords decided that an unreasonable belief that the victim consented was a defence to a count of rape.
In most cases, the prosecution will wish to allege and rely on both of those components, knowledge and recklessness, in the alternative, as would have been the position at common law. That is because there will normally be evidence from which each may be found or inferred by a jury. As Professor Sir John Smith QC has pointed out, the offender is guilty of the same offence in law whether he knew his victim did not consent or was reckless whether she or he did so: see his case note on Reg v Flitter [2001] Criminal Law Review 328 at 329.
The question is whether the legislature intended to introduce two offences, dependent on the accused having one or other manifestation of intention (ie knowledge or recklessness) or intended to relate the ingredients of the offence previously known as rape using common law concepts as to actus reus and mens rea.
The decision in Morgan [1976] AC 182 prompted a number of legislatures in England and Australia to amend, or to put on a statutory footing, the law of sexual assault, and ss 54(1) and 60(1) appear to have been part of that response, cf: Banditt 224 CLR at 270-276 [17]-[39] per Gummow, Hayne and Heydon JJ, 290-294 [89]-[99] per Callinan J.
The Explanatory Statement for the Crimes (Amendment) Ordinance (No 5) 1985 (ACT) authorised by the Attorney-General explained why ss 54 and 60 had been inserted into the Crimes Act 1900 (ACT). Originally s 54 was numbered as s 92D and s 60 as s 92J. The Explanatory Statement for s 92D said that the offence was “broadly equivalent” to the existing offence of rape unaccompanied by any infliction of bodily harm, and continued: “Accordingly the mens rea required for this offence is substantially the same as the mens rea required in relation to the existing common law offence of rape as stated by the House of Lords in DPP v Morgan [1976] AC 182. Recklessness for the purpose of this section means ‘subjective’ recklessness. The Crown must prove the same matters in order to establish the commission of this offence as it must prove to establish the commission of the existing offence of rape.” The Explanatory Statement for s 92J said that this section was in similar form to s 92D and that the explanation for it applied also to s 92J.
Although ss 54(1) and 60(1) are expressed differently to ss 61I and 61R of the Crimes Act 1900 (NSW), which were considered in Banditt 224 CLR 262 at 275 [32], Gummow, Hayne and Heydon JJ said there that a starting point for analysis of the legislation was its having been strongly influenced by developments in England including Morgan [1976] AC 182 and s 1 of the UK Act. That was enacted following a recommendation in the December 1975 Report of the Advisory Group on the Law of Rape (Cmnd 6352) chaired by Dame Rose Heilbron (the Heilbron Committee). Section 1 of the UK Act provided: “For the purpose of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if — (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; …”
In Reg v Flitter [2000] EWCA Crim 68 Henry LJ, Poole J and Sir Brian Smedley referred to the English practice of preparing an indictment as : “Rape contrary to section 1(1) of the Sexual Offences Act 1956” (being the section in the form inserted by s 1 of the UK Act). The particulars were simply that the accused on 14 March 1999 had raped the complainant. The accused appealed arguing that the trial judge was wrong to have summed up on recklessness. The Court of Appeal (Criminal Division) held that the judge had been “clearly right to do so” ([2000] EWCA 68 at [18]) and continued: “We are reinforced in that conclusion by the combined experience of the Court in participation in rape trials. We are aware that in the case of R v Bashir [1983] 77 Cr App R 59, the trial judge amended the rape indictment before him to allege “knowingly” and “recklessly” in separate counts, and the Court (per Tasker Watkins LJ) described that course as “wise”. Whether that remark was prompted by the unusual feature of that case, namely that the defendant “somewhat surprisingly” had said he could not remember the events of the evening, we know not. But our experience suggests that the offence is, so far as we are aware, in practice always indicted as it was here, without “knowing” and “reckless” being the subject of separate counts. Additionally, we have never in practice come across a prosecutor who has abandoned the alternative form of mens rea, namely “… at the time he … is reckless as to whether that person consents to it”, and fought the case on knowledge (“…at the time he knows that the person does not consent.”) alone. That would be not only foolish but bizarre, and we are satisfied that it simply did not happen here.” (emphasis added)
Counsel for the interested party drew to the Court’s attention the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in R v Sieders; R v Somsri (2008) 72 NSWLR 417 at 454 [209]-[211] where Campbell JA, with whom James and Johnson JJ agreed, held that s 270.6(2)(b) of the Criminal Code 1995 (Cth) created one offence, not two. That section provided that a person who conducts any business that involves the sexual servitude of other persons and “… (b) who knows about, or is reckless as to, that sexual servitude” is guilty of an offence. Campbell JA reasoned that, by using the words “an offence”, the section was intended to create only one offence: Sieders 72 NSWLR at 454 [211].
In Boughey v The Queen (1986) 161 CLR 10 the appellant had been convicted of murder contrary to s 157(1) of the Tasmanian Criminal Code set out in Sch 1 of the Criminal Code Act 1924 (Tas). That section provided four different possible sets of circumstances in which murder could be committed. Each was left to the jury. No issue of duplicity was raised. Mason, Wilson and Deane JJ described the last two of those sets, based on s 157(1)(c), as involving either that, the accused knew that his act was likely to cause the death in the circumstances, or that he “ought to have known” that the act was likely to cause her death in the circumstances: Boughey 161 CLR at 18. Their Honours held the latter alternative required the jury to consider what the accused ought to have known having regard to his actual knowledge and capacity in the circumstances: Boughey 161 CLR at 28-29; see too Simpson v The Queen 194 CLR 228 at 233 [10]-[12] per Gaudron and McHugh JJ.
Morgan [1976] AC 182 established two important aspects of the English law of mens rea. Both related specifically to rape, but each was also capable of a wider application to other criminal offences, cf: Beckford v The Queen [1988] AC 130 at 145B-F per Lord Griffiths for the Judicial Committee. The first was that the intention required to commit rape was that the accused knew that the victim was not consenting or was reckless as to whether she or he consented or not. The second was that the prosecution had to prove that the accused did not believe that the victim was consenting or was reckless as to whether she or he consented. The latter arose because in Morgan [1976] AC 182, three of the accused gave evidence of their belief, induced by their co-accused, the victim’s husband, that his wife would be pretending to resist in order to stimulate her sexual pleasure.
The second aspect troubled the Heilbron Committee which recognised that an accused may be able to say to a jury “… that a belief, however unreasonable, that the woman consented, entitled the accused to acquittal”: Cmnd 6352 at p 14 quoted in Banditt 224 CLR at 273 [26]. Accordingly, the Heilbron Committee recommended that the law should be statutorily restated in fuller form to identify the requisite subjective intention of an accused to obviate the availability of that mere belief as a defence.
Thus, the reformulation of the mens rea in s 1 of the UK Act identified the requisite intention as knowledge or, in the sense explained in Morgan [1976] AC 128, recklessness: Banditt 224 CLR at 273-274 [27]-[28], 276 [38]. There, Gummow, Hayne and Heydon JJ accepted that the explanations in Morgan [1976] AC at 203E by Lord Cross of Chelsea, 215C-D by Lord Hailsham of St Marylebone and 225F-G by Lord Edmund-Davies and by Professor Sir John Smith QC (Smith and Hogan: Criminal Law (10th ed; 2002) at 471) could properly be used to explain to a jury the concept of recklessness used in s 61R(1) of the Crimes Act 1900 (NSW). That provided that a person who has sexual intercourse with another person without the latter’s consent “… and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse”.
As Lord Hailsham said of the common law position in Morgan [1976] AC at 215C-D: “… the prohibited act is and always has been intercourse without consent of the victim and the mental element is and always has been the intention to commit the act, or the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or no. A failure to prove this involves an acquittal because the intent, an essential ingredient, is lacking”. (emphasis added)
This position is consistent with the law as it had developed in Australia before Morgan [1976] AC 182 was decided: see R v Daly [1968] VR 257 at 258-259; R v Sperotto (1970) 71 SR (NSW) 334; Banditt 224 CLR at 272-273 [25].
In substance, the alternate expressions of intention in ss 54(1) and 60(1) are equivalent, not separate offences. Their usage is analogous to the concepts of intention in the common law of murder explained by Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ in The Queen v Crabbe (1985) 156 CLR 464 at 469: “If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm.” (emphasis added)
More recently, in Reg v Khan (Mohammed Igbal) [1990] 1 WLR 813 at 819F-G Russell LJ, Rose and Morland JJ explained that the only “intent” of a rapist, in the natural and ordinary meaning of “intent” is to have sexual intercourse. They said, correctly, that: “He commits the offence because of the circumstances in which he manifests that intent — i.e. when the woman is not consenting and he either knows it or could not care less about the absence of consent.” That lucidly encapsulates why the original counts in the indictment were not duplicitous and why ss 54(1) and 60(1) in comprehending both components of mens rea at common law did not create two offences. Conclusion – Consent
Nothing in the legislative history of ss 54(1) and 60(1) suggests that these provisions had a purpose of creating two offences of rape, one depending on the accused’s knowledge of lack of consent, the other on his or her recklessness as to whether the victim was consenting or not. The consequence of concluding that the unintended result of the statutory restatement of the offence of rape was that two offences had been created would lead, in the apposite, if graphic, words of Henry LJ to a result that “… would be not only foolish, but bizarre” (Flitter [2000] EWCA Crim 68 at [18]). It would require, in most cases, the prosecution to include two counts in an indictment and to complicate, in cases of rape, the task of the trial judge, the jury and the parties for no good reason. The words of ss 54(1) and 60(1), relating to the mental element, restated the common law test of mens rea for the offences in order to achieve the clarification desired by the Heilbron Committee.
The primary judge was wrong to have required the prosecutor to elect between the two components of mens rea. The original counts in the indictment were not duplicitous. The Crown was entitled to proceed to prosecute the accused by proving that he had the intention to engage in sexual intercourse (or to commit an act of indecency) with the complainant without his consent, knowing that he did not consent or reckless as to whether he consented or not.
It follows that questions 1 and 2 should each be answered “No”. QUESTION 3 Test of recklessness
His Honour told the jury that he would define recklessness in the circumstances “slightly differently” from the way in which the prosecutor had defined it to them. She had told the jury that it could mean either that, first, the accused turned his mind to the issue of whether or not there was consent, realised that there was a possibility that there was no consent and continued nonetheless and, secondly, he did not even bother to ask himself whether there was consent and decided to proceed with the sexual intercourse regardless.
The primary judge’s direction to the jury as to recklessness was given in terms of s 20 of the Criminal Code (see [20] above). That provided: “(2) A person is reckless in relation to a circumstance if— (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.”
Thus, his Honour’s summing up removed from the jury’s consideration the second approach that the prosecutor had sought to put of considering the issue of “non advertent” recklessness. His Honour had not raised removing this issue from the jury’s deliberations with counsel before summing up. Significantly, the prosecutor did not ask for a redirection on this point after the summing up.
The Director argued that the Criminal Code did not apply to the offences created by s 54(1) (in the form in which it applied at the trial) and s 60(1). The interested person appeared to accept that, despite the 2008 amendment to s 54, s 8(1) of the Code had the effect for which the Director contended. The Director’s argument was correct. That was because s 8(1) of the Code provided that the Code did not apply to offences that were created by a provision that commenced before 1 January 2003: Sims v Drewson (2008) 188 A Crim R 445 at 452 [25] per Besanko J. There, Besanko J also held that at common law, the concept of recklessness included both advertence and non-advertence, and that these applied to the offence created by s 60(1) of the Crimes Act 1900 (ACT). He followed R v Kitchener(1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660; Fitzgerald v Kennard (1995) 38 NSWLR 184 and Sims 188 A Crim R at 453-454 [32]-[33]. Besanko J noted that in Banditt 224 CLR at 275 [36] Gummow, Hayne and Heydon JJ had observed that “recklessness”, in the New South Wales analogue sexual offence legislation (s 61R(1)), could include conduct that is negligent or careless.
The reasoning of Besanko J in Sims 188 A Crim R 445 appears to be correct. However, because the prosecutor did not seek a redirection on this issue, it would not be appropriate in this reference application to express a final view on this question, to the extent that anything more can be usefully added to what Gummow, Hayne and Heydon JJ had said of the meaning of “recklessness” in Banditt 224 CLR at 275 [36].
Question 3 should not be answered. QUESTION 4 The statutory scheme – complaint evidence
The Evidence Act relevantly provides that: “60 Exception: evidence relevant for a non‑hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)). Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594. ...

The primary judge directed the jury about the evidence of complaint by the complainant and of his distressed condition saying: “Now again, what weight you place on that evidence is, naturally enough, a matter for you. The Crown adduces that evidence and suggests to you that it is consistent with something of the kind of which [the complainant] complains having taken place. That is the extent of its relevance. Ordinarily if a person simply repeats an allegation they are not adding very much to the credibility of it, and in this case the repetition of it does not add to the credibility of it but the question is whether what you read into the consistency of complaint and distress[ed] condition, bearing in mind that if a person is making a false complaint they may still appear to be distressed, and they may repeat that complaint on a number of occasions. So the question of what weight you put upon it is a matter for you, and you assess the weight you put upon it in the light of all the evidence, not just the evidence of course of the complainant.” (emphasis added)
Thus, his Honour limited the use which the jury could make of the evidence of complaint to it being consistent with what the complainant’s evidence of what had occurred. The primary judge refused the prosecutor’s application, made after he had concluded the summing up, to redirect the jury, in accordance with the effect of s 60 of the Evidence Act, that the evidence of complaint was evidence of the truth of the facts asserted in each complaint. The prosecutor submitted that the complaint evidence, having been admitted as relevant to consistency of the complainant’s subsequent conduct with what he said had occurred and to the credibility of his account, was also evidence that the content of the complaints was true.
His Honour said that he had deliberately not given such a direction and he had not imposed any limitation on the use of the complaint evidence under s 136 of the Evidence Act. The following exchange took place between his Honour and the prosecutor: “MS WESTON-SCHEUBER: Well is your Honour excluding the admissibility for a hearsay purpose? HIS HONOUR: I didn’t exclude it but I didn’t include it and I did that deliberately, as I say, because it didn’t seem to me in the circumstances that it was appropriate to give a direction that it could be used to otherwise and to bolster credibility because I don’t see the difference really, frankly. I mean, if it bolsters credibility, it means because this is the truthful account. If it’s not a truthful account, it can’t bolster credibility. So the two things are the same. MS WESTON-SCHEUBER: Well your Honour, in my submission, it’s either admissible for a hearsay purpose or it’s not. The Evidence Act says that it is unless there’s some unfair prejudice arising to a party as a result of that. HIS HONOUR: No, no, no. I think the jury was told they can take account of it and they can obviously take account of it in terms of the way I put it, which is assessing credibility. They can’t do that unless they find it’s true. Refers to a true --- MS WESTON-SCHEUBER: Yes, That’s certainly so, your Honour. HIS HONOUR: --- account. So I don’t see the need to sort of draw out the obvious. MS WESTON-SCHEUBER: Well that is the standard direction, your Honour but it --- HIS HONOUR: Well no. I won’t give it.” (emphasis added) Complaint evidence – the parties’ submissions
The Director argued that ss 60 and 66 of the Evidence Act had changed the common law rule of evidence relating to the admissibility of complaints. That rule limited the use of evidence of a complaint about an alleged sexual offence to showing consistency of the conduct of the complainant with his or her evidence. Thus, the relevance of a complaint was limited to the credibility of the complaint as explained in R v Lillyman [1896] 2 QB 167 at 170 per Hawkins J. The Director relied on Papakosmas v The Queen (1999) 196 CLR 297 at 309 [33] and 310 (39]-[40] per Gleeson CJ and Hayne J, 327-328 [98] per McHugh J to contend that there was no general rule under the Evidence Act that such evidence should be limited in its use unless a limitation on its use had been made under s 136 of the Act.
The Director contended for a standard direction that complaint evidence was relevant for two purposes, namely as first, supporting the credibility of the complainant and secondly, proving the truth of the facts asserted in the complaint. Presumably relying on what the prosecutor sought in her application for a redirection at the conclusion of his Honour’s summing up, as “the standard direction”, the Director referred to the wording of the suggested direction in the Criminal Trial Courts Bench Book produced by the Judicial Commission of New South Wales at [2-560]. Relevantly, that suggested direction was: “Further, you can use what [he/she] said about the accused’s conduct toward [him/her] as some evidence of the truth of what [he/she] said – that is, as evidence that the accused did assault [him/her] in the way [he/she] alleges he did.”
The interested person argued that the direction given by the primary judge was appropriate and tailored to give the jury proper instructions on the relevant issues. He argued that that direction sought by the prosecutor would have been confusing to the jury. He contended that because the complainant was, on his own admission, “paralytically drunk” when he spoke to the medical practitioner early on 1 September 2004, his complaints to her, his father and girlfriend were in a different category to those in Papakosmas 196 CLR 297. This was because, he asserted, “the various and inconsistent drunken complaints” would have confused and distracted the jury from its task of assessing whether to accept the complainant’s evidence. The interested person also argued that the proposed direction in the context of his trial would simply raise a distinction without a difference.
Next, the interested person submitted that his Honour’s comments rejecting the request for redirection were consistent with a decision to limit the use of the complaints. He contended that his Honour had had his attention drawn to s 165 of the Evidence Act. That section requires a judge to warn the jury about unreliable evidence in certain circumstances, if a party so requests. However, the section applies only if a party requests such a warning and the judge can dispense with such a warning if there are good reasons for doing so (ss 165(2), (3)). The interested person did not contend that any request had been made to the primary judge for a warning in accordance with s 165(2).
More importantly, the interested person argued that the Court should be slow to endorse the concept of giving a “standard direction” in relation to complaint evidence of the kind sought by the Director. Complaint evidence – consideration
It was common ground that the complaint evidence was admissible under s 66(2) of the Act. The complainant gave evidence. The complaints were made at a time when the jury might find that the asserted facts were fresh in the complainant’s memory. The interested person did not submit to his Honour, at the trial or on the reference appeal, that the asserted facts were not capable of being found to be fresh in the complainant’s memory. His argument to distinguish Papakosmas 196 CLR 297 on the basis that the complainant said that he was “paralytically drunk” at the time he saw the medical practitioner, must be rejected.
The jury, properly directed, could have made its own assessment of the weight it would place on the veracity of the complaints made by the complainant, assessing for themselves the degree to which his ability to make a truthful complaint had been affected by his state of sobriety. Where evidence of complaint has been admitted without any limitation as to its use under s 136, the Evidence Act has provided that it may be used for a hearsay purpose by the jury as evidence of the truth of the facts asserted in the complaint: Papakosmas 196 CLR at 309-310 [32]-[40] per Gleeson CJ and Hayne J (with whom Gaudron and Kirby JJ agreed on this point at 311 [44]-[45]), 322 [82]-[83], 327-328 [98] per McHugh J. As McHugh J pointed out in Papakosmas 196 CLR at 322 [82]-[83] the Australian Law Reform Commission’s Interim Report on Evidence (ALRC 26 vol 1 at [693]) intended that the effect of s 66 would be to make evidence of a complaint in sexual offence cases admissible to prove both the existence of the facts asserted in that out of court statement by the complainant, as well as for the common law purpose of showing the consistency of the complainant’s assertions and conduct.
The primary judge wrongly limited the use of the complaint evidence in his direction. The legislative policy underlying the Evidence Act required his Honour either to limit the use of the complaint evidence under s 136 or to direct the jury that they could use the evidence as evidence of the truth of what the complainant had said to the witnesses who recounted his complaints in the witness-box; that is, as evidence that the accused had assaulted the complainant in the way he alleged. In the Evidence Act, the Parliament provided that such evidence, if relevant (as it was here), may be used for a hearsay purpose if it falls within an exception (as it did under ss 60(1) and 66(2)) to the general exclusionary rule in s 59(1) that hearsay evidence is not admissible to prove the truth of the facts asserted in it. The use of this evidence, however, can be subject to other provisions of the Evidence Act such as ss 135, 136, 137 and 165: Papakosmas 196 CLR at 309 [33].
The primary judge told the jury that the extent of the relevance of the complaint evidence was to show consistency with the complainant’s account. He directed them that the complainant’s repetition of his complaint “does not add to the credibility of it”. Those directions were inconsistent with the Evidence Act as explained in Papakosmas 196 CLR 297. As Gleeson CJ and Hayne J said (196 CLR and 310 [40]) there may be particular cases where the requirements of justice, in the circumstances, justify the use of a judge’s discretion in limiting the use of complaint evidence. However, the primary judge emphasised that he had not made any limitation on the use of the evidence. This clearly emerged in his exchange with the prosecutor when she sought a redirection.
The primary judge does not appear to have foreshadowed to counsel prior to summing up how he intended to direct the jury on the complaint evidence, although he discussed other aspects with them after they had addressed and before he began his charge. It is unfortunate that his Honour did not raise his understanding of the basis on which complaint evidence would be left to the jury before summing up. This is especially so since the prosecutor had addressed them on the basis that they could consider it as evidence of the truth of the facts asserted in the complaint.
This does not mean that question 4 should be answered. It is couched in terms of such generality that it is not a question of law arising at or in relation to the proceeding below within the meaning of s 37S(2) of the Supreme Court Act. The question asks the Court to lay down a general rule for the conduct of all trials as if the Court was a legislature. Ordinarily, a question of law in an application under s 37S(2) will need to be connected to the facts of the proceedings. Gaudron, Gummow and Hayne JJ said in B 194 CLR at 576 [11]: “Whether a particular power should be exercised in a particular way may well arise at a trial and although that might require consideration of whether power of the kind in question does exist, the question which arises at trial will, at least ordinarily, not be that broad and general question – “does the power exist?” – it will usually be whether the alleged power can be exercised in the circumstances arising at the trial.”
A direction on the use of the complaint evidence of the kind sought by the prosecutor would have been appropriate in the circumstances of the trial of the interested person. However, the form of question 4 is unrelated to the circumstances of that trial. It is not couched in terms that are appropriate for the Court to answer.