Gillard v R [2013] ACTCA 17

[2013] ACTCA 17

Court of Appeal (ACT)|2013-04-18|Before: North JJ

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Court

Court of Appeal (ACT)

Decision date

2013-04-18

Before

North JJ

Source

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.

MICHAEL ALAN GILLARD v THE QUEEN

[2013] ACTCA 17 (18 April 2013)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether verdict was unsafe – multiple amendments of dates of charges in an indictment – no availability of new alibi evidence – appeal dismissed

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – irregularity of trial process – general prejudice – prejudice suffered not particularised – appeal dismissed

APPEAL AND NEW TRIAL – APPEAL – appeal against sentence – whether sentence was manifestly excessive – whether non-parole period was particularly high – whether non-parole period was so low as to suggest trial judge’s realisation that head sentence was excessive – non-parole period neither particularly high nor particularly low – whether some sentences inappropriately accumulated – no error found in either length or accumulation of sentence – appeal dismissed

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – sexual offences – consent negated under s 67(1)(h) of the Crimes Act – need for separate or explicit abuse of authority or trust – not needed – appeal dismissed

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – sexual offences – consent – recklessness under s 67 of the Crimes Act

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – direction as to consent – whether direction was adequate – direction was adequate – appeal dismissed

Crimes Act 1900 (ACT), ss 54(1), 55(2), 60(1), 61(2), 65, 67, 264(1)

Criminal Appeal Act 1912 (NSW), s 6(1)

Criminal Code 2002 (ACT), s 44(1)

Supreme Court Act 1933 (ACT), s 37O

Ayles v The Queen (2008) 232 CLR 410

Director of Public Prosecutions v Walker [2011] ACTCA 1

Evans v The Queen (2007) 235 CLR 521

Fleming v The Queen (1998) 197 CLR 250

M v The Queen (1994) 181 CLR 487

R v Radley (1973) 58 Cr App R 394

R v Schippani [2012] ACTSC 108

R v Tolmie (1995) 37 NSWLR 660

Ryan v The Queen (2001) 206 CLR 267

S v The Queen (1989) 168 CLR 266

Sims v Drewson (2008) 188 A Crim R 445

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

The counts in the indictment arose under legislative provisions as follows: (a) s 54(1) of the Crimes Act 1900 (ACT) prohibits sexual intercourse without consent; (b) s 55(2) of the Crimes Act prohibits sexual intercourse with another person who is under 16 years of age; (c) s 60(1) of the Crimes Act prohibits acts of indecency on another person, or in the presence of another person, without consent; (d) s 61(2) of the Crimes Act prohibits acts of indecency on another person who is under 16 years of age; (e) s 44(1) of the Criminal Code 2002 (ACT) provides that attempting to commit an offence is itself an offence; (f) s 65 of the Crimes Act prohibits possessing child pornography.
The appellant pleaded not guilty to all counts, and the matter proceeded immediately to trial. The verdicts
The jury returned its verdicts on 22 September 2011, after around four and a half hours of deliberation.
Only 17 counts went to the jury, Counts 1 and 15 having been abandoned in circumstances set out at [12] to [29] below.
The appellant was found guilty of three of the 11 offences by then alleged to have occurred between 31 December 1995 and 14 May 1997, and guilty of all five offences alleged to have occurred from 31 December 1998 onwards.
Specifically, the jury found the appellant guilty on Counts 2, 3, 4, 13, 14, 16, 18 and 19. There were acquittals on Counts 5, 6, 7, 8, 9, 10, 11 and 12. Count 17 was an alternative count and in the event the jury did not need to reach a verdict on it. The facts of the offences proved
A general background to the offences was given in the case statement prepared for the trial, as follows (some of the dates specified, and the nature of the appellant’s relationship with the family, were the subject of conflicting evidence and argument during the trial, but the general description of these circumstances was not challenged): Between January 1990 and 1991 or 1992 [X] and [Y] and their four children [A, DD, JL and B] resided at [an army base in the ACT]. [X] was in the armed services at this time. It was through the armed services that he met [the appellant], who became a family friend. In around 1991 or 1992 the ... family relocated from the ACT to [T, in Victoria]. [B] did not move with the family as he [suffered a severe disability] and required 24 hour care. [B] remained in the ACT in a care facility. Between December 1992 and January 2000 [DD] and [JL] and occasionally their older sister [A], would visit [B] during the Christmas school holidays. Whilst in the ACT they would stay with [the appellant] at his home ... in the ACT. [The appellant] resided in the unit alone and [the victims] considered him to be an uncle type figure and an unofficial godfather. [The appellant] would drive to [T] to pick them up and take them to Canberra. They would leave [T] sometime from New Years Day onward and stay with [the appellant] for a week. The visits took place during the summer school holidays. When [DD], [JL] and [A] stayed with [the appellant] they slept in the spare bedroom located at the rear of the premises, which contained a standard single bed and a fold out single bed.
The 19 offences charged related to nine separate incidents, as described in the following table: Incident Count No. Offence charged Details (where appellant found guilty)

The order of the counts was said to reflect the sequence of events. As well, incidents 1, 2 to 4, and 5 to 6 (giving rise to Counts 1 to 12) were said to have occurred in three separate January school holiday periods.
Some further information about the circumstances of the offences is set out at [114] below in the remarks of the sentencing judge. Amendments to the charges
Before the trial finished, there were several amendments of dates in the indictment, and two of the charges were removed from the jury’s consideration, as described below. The first amendment of dates is made
DD’s evidence as to the chronology of certain events, and her age at certain times, raised questions about the years in which the events could have occurred. Accordingly, on the fourth day of the trial and after DD had given all her evidence, the prosecutor (in the presence of the jury, after discussions in its absence) sought leave to amend the starting dates of the periods specified in Counts 1 to 14 of the indictment.
Over objection from the appellant at trial, on the fourth day of the trial, the trial judge allowed this amendment, such that the original starting dates were replaced: (a) for Count 1, by 31 December 1992; (b) for Counts 2 to 4, by 31 December 1993; (c) for Counts 5 to 12, by 31 December 1994; and (d) for Counts 13 and 14, by 31 December 1997. The removal of Count 15
By the time the first amendment to the dates took place (at [14] above), it had also become clear that DD had given no evidence in relation to Count 15, and the trial judge entered a verdict of not guilty on that count. The second amendment of dates is made
Several days later (on trial day five), the prosecutor sought leave to withdraw the amendment of the starting date for Counts 13 and 14, and this leave was granted. The starting date for the period in which those offences were alleged to have occurred therefore reverted to the date originally specified, 31 December 1998. The third amendment of dates is raised
Two further issues were raised in relation to Counts 1 to 12, which led to further amendments.
First, it was an element of the offences charged in Counts 1 to 12 that the victim was under the age of 16 years. On trial day six, in the absence of the jury, the prosecutor indicated that she would be seeking leave to extend the final date in relation to those counts to 14 May 1997 (the day of DD’s sixteenth birthday). His Honour indicated that, because the “date on a count is a particular, and it is not an essential element of an offence”, the prosecutor’s amendment would be allowed.
Secondly, by this point the appellant’s evidence had raised further issues about the periods in which the offences in Counts 1 to 12 were alleged to have occurred. In particular, there was independent evidence that the appellant had only moved into the premises in which the offences were alleged to have occurred in February 1995. For that reason, the prosecutor also indicated a proposed start date for Counts 1 to 12 of February 1995. The removal of Count 1 is raised
The new period to which Counts 1 to 12 could apply ran from February 1995 to May 1997, a period containing only two sets of January holidays. It had been initially put by the prosecutor that there had been three holiday periods in which offending had occurred before the complainant turned 16 on 14 May 1997 (that is, that Count 1 had occurred in one year, Counts 2 to 4 in another, and Counts 5 to 12 in a third).
There was discussion (still in the absence of the jury) between the trial judge and the prosecutor about whether Count 1 could be pressed. The third amendment of dates is made
Later that day, in the presence of the jury, the prosecutor sought to formally amend Counts 2 to 12 of the indictment to refer to the period between 1 February 1995 and 14 May 1997. Despite the prosecutor’s inclusion of Count 1 in her initial canvassing of possible amendments to start dates (at [19] above), but presumably because of the issues about how many January holiday periods there had been during the period defined by the proposed new particulars (at [20] above), she did not seek to amend the dates specified in Count 1.
There was some discussion about the fact that the prosecutor had conceded that the relevant visit by DD to Canberra, and therefore the acts alleged, must have happened at the earliest in January 1996 (that is, during a January holiday visit). The prosecutor accordingly sought a new starting date of 31 December 1995.
The trial judge allowed the amendment to dates, over objection from the appellant on the basis of “general prejudice”. Count 1 is removed
The jury then retired. The prosecutor said that she would tell the jury that Count 1 was not being pressed, and suggested that the trial judge would enter a verdict on that count. The trial judge agreed with this approach. The jury returned to the courtroom, and closing addresses began. Both counsel adverted to the fact that Count 1 was not before the jury.
The next day, in his summing up to the jury, the trial judge said: [the complainant] says ... that there was an occasion when there was some touching. Now, if there was or wasn’t that’s not the subject of a charge because that was intended to be encompassed by the 1st count on the indictment and the Crown concedes that couldn’t have happened within the timeframe that is asserted in that charge.
Later in his summing up, in relation to the first visit that was alleged by DD (during which the offence mentioned in Count 1 was alleged to have occurred), his Honour said “the Crown is not really asserting that they can prove either that it happened or that ... there was that further visit.”
His Honour also said “1st count, of course, is disposed of”, and later again said “and you don’t need, of course, to consider Count 1 as being before you”.
However, it does not appear that there was ever a formal entry of a verdict in relation to Count 1. Nor were comments made about the significance of the exclusion of Count 1 from the jury’s consideration of the evidence before it. Notice of appeal
On 22 December 2011 a Notice of Appeal was filed, notifying appeals against conviction and sentence
The grounds of appeal stated in the Notice of Appeal were: CONVICTION a) In respect of counts 2, 3, 4, 13, 14, 16, 18, and 19 the findings of the jury were unsafe and unsatisfactory. b) In respect of counts 2, 3, 4, 13, 14, 16, and 18 the accused was unfairly and unreasonably prejudiced by the decision of the trial judge to permit the Crown to amend counts 2 to 12 during the trial after the close of the Crown case. c) In respect of counts 13, 14, 16, 17, and 18 His Honour misdirected the jury in respect of the issue of consent. SENTENCE d) The sentences in their totality were manifestly excessive. e) His Honour accumulated the sentences to an inappropriate degree so that the final result was crushing. f) In respect of counts 16 and 18 the degree of accumulation was too great given the events occurred in one transaction. Conviction appeal Ground (a) – Unsafe and unsatisfactory verdicts
At the hearing of the appeal, the appellant withdrew reliance on this ground of appeal in relation to Count 19, and referred to it only in general terms in relation to Counts 13, 14, 16 and 18.
Section 37O of the Supreme Court Act 1933 (ACT) sets out the orders that may be made on appeal to the Court of Appeal. Section 37O(2)(a) requires that an appeal against conviction must be allowed if the Court considers that: (i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or (ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or (iii) on any other ground there was a miscarriage of justice;
In M v The Queen (1994) 181 CLR 487 at 492-3, Mason CJ, Deane, Dawson and Toohey JJ, in dealing with an appeal brought under a provision in equivalent terms to s 37O(2)(a), applied a test of whether a conviction was “unsafe and unsatisfactory”: Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1) [the NSW equivalent to s 37O]. The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. [citations omitted]
Their Honours, in M v The Queen, also provided (at 494-5) the following guidance in considering whether a verdict is unsafe or unsatisfactory: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above. [citations omitted]
Counsel for the respondent pointed out that in Fleming v The Queen (1998) 197 CLR 250, the High Court (at [11]-[12]) drew attention to the fact that s 6(1) of the Criminal Appeal Act 1912 (NSW) provided three grounds on which an appeal should be dismissed (equivalent to those set out in s 37O(2)(a)). The Court pointed out that confusion could be caused by using the phrase “unsafe and unsatisfactory” instead of identifying which of the three grounds was specifically relied on.
The appellant did not make it clear on which of the grounds in s 37O(2)(a) he was relying in the appeal, but the way in which his argument was made seemed to suggest that his claim was that there was a miscarriage of justice (s 37O(2)(a)(iii)) because the Crown had created an artificial approach to the evidence by withdrawing Count 1, and amending the dates of Counts 2 to 12, thereby requiring the jury to speculate on when the acts said to constitute the offences in Counts 2, 3 and 4 had occurred. Counts 2, 3 and 4
As to Counts 2, 3 and 4, the appellant’s main propositions as made in oral submissions seemed to be as follows: (a) The Crown case had originally been that there had been three separate occasions on which DD had stayed with the appellant in Canberra before she turned 16 in May 1997, which would (on the assumption that the visits had been made during the January school holidays) have been in January 1995, 1996 and 1997. The Crown case also relied on the particular sequence of events, that is, the development of the appellant’s conduct towards DD, as given in DD’s evidence. (b) The evidence that emerged was that the appellant had been posted to Canberra in January 1995 and the utilities had only been connected at his flat in Canberra in February 1995. The prosecutor conceded that January 1995 was not available as an occasion for any of the incidents charged. Count 1 was effectively taken away from the jury, but DD’s evidence of events during three successive visits was still before the jury. (c) The prosecutor put to the jury that they could find that Counts 2 to 4 occurred in January 1996 and Counts 5 to 12 in January 1997, or that they could find that Counts 2 to 4 occurred in January 1997 and therefore Counts 5 to 12 occurred later, after DD turned 16. (d) This amounted to inviting the jury to guess. The jury was not told that they had to account for the evidence given in relation to Count 1, even though they were aware that they did not need to reach a verdict on Count 1. (e) The jury accepted the evidence in relation to Counts 2 to 4, but not Counts 5 to 12; the jury’s rejection of Counts 5 to 12 meant that it was unsafe and unsatisfactory for them to accept DD’s evidence in relation to Counts 2 to 4. (f) Even if the jury’s willingness to distinguish between Counts 2 to 4 on the one hand and Counts 5 to 12 on the other meant only that the jury was not satisfied about the dates, this made the verdicts on Counts 2 to 4 unsafe and unsatisfactory, because the dates, or at least a requirement that DD was under 16 at the time of the offences charged in Counts 2 to 4, was an element of each of those offences. (g) The jury could not have been satisfied beyond reasonable doubt that DD was under 16 when the incidents giving rise to Counts 5 to 12 were alleged to have taken place, which meant that they could not have been satisfied about Counts 2 to 4 because “the overall general unreliability” of DD’s evidence in relation to timing meant that DD’s evidence was generally unreliable in relation to events occurring before she was 16, and that this “went beyond credit”.
Counsel for the appellant relied on the case of S v The Queen (1989) 168 CLR 266 for his submission that the way the evidence was put before the jury invited them to guess. In that case, three charges of carnal knowledge of the accused’s daughter were laid, each of which specified a period of 12 months within which the offence was said to have been committed (two of the periods overlapped by nearly two months). The offences were not otherwise particularised, despite a pre-trial application by the defence. Evidence was given of two specific acts of sexual intercourse, and of regular sexual intercourse over three years, but in the absence of any particulars of the offences charged, the Court (Dawson, Toohey, Gaudron and McHugh JJ, Brennan J dissenting) found that this had involved a substantial miscarriage of justice.
Counsel said that the process in the appellant’s trial “involved the jury speculating in the terms proscribed by the High Court in S v The Queen”.
We do not see any relevant similarity between that case and this one. Here, the incidents giving rise to the charges were particularised in some detail except as to exact dates, the relevant part of each year was identified, and the sequence of the various incidents was also a matter of evidence. Indeed, the fact that Count 15 was withdrawn from the jury when DD failed to give any evidence of the particular incident alleged demonstrates that the charges against the appellant did not suffer from the vice described in S v The Queen by Dawson J (at 273) as follows: [T]he evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged with any particular count.
We do not accept the appellant’s argument that the way the evidence was ultimately put to the jury involved inviting the jury to guess. What was being put to the jury was that the evidence appeared to rule out more than two January visits by DD to the appellant’s home in Canberra before her 16th birthday, and that, if they were satisfied beyond reasonable doubt that there had been two such visits, they would need to consider whether they could be satisfied beyond reasonable doubt that any, and if so which, of the incidents reflected in Counts 2 to 12 had taken place during those visits and thus before May 1997 when DD turned 16.
The jury’s verdicts, being findings of guilty on Counts 2 to 4 and acquittals on Counts 5 to 12, suggest that they understood the position, and in particular the significance of the evidence about the incident charged in Count 1, quite adequately. Those verdicts are explicable by findings that the first incident had taken place and must therefore have taken place in January 1996, that the second set of incidents had taken place, in the sequence described by DD (in that they were after the Count 1 incident but before the Counts 5 to 12 incidents), and must therefore have taken place in January 1997, and finally that therefore the jury could not be satisfied beyond reasonable doubt that any of the incidents charged in Counts 5 to 12 had taken place before DD turned 16.
Thus, we cannot say that the verdicts on Counts 2 to 4 were unsafe and unsatisfactory by virtue of suggesting that the jury had overlooked the significance of the evidence it had heard on Count 1. Rather, the verdicts indicate that the jury accepted the evidence it had heard in relation to Count 1, and DD’s evidence about sequence, and understood that, having done so, it could not be satisfied beyond reasonable doubt that the incidents that founded Counts 5 to 12 had taken place before May 1997.
Nor can we find those guilty verdicts unsafe and unsatisfactory on the grounds that when the prosecutor said that two sets of findings were open in relation to Counts 2 to 12, the jury “were being invited to guess”. The final form of the amended indictment in relation to Counts 2 to 4 particularised a period from 31 December 1995 to 14 May 1997. That is, the Crown made no claim that it could specify the exact dates, or even more limited periods, in which the relevant offences were said to have occurred. The jury was not being asked to find exactly when the various offences were committed – it was asked to find which if any of them had, beyond reasonable doubt, been committed during the specified period. To the extent, if any, that the prosecutor’s suggestion to the jury that alternative findings were open risked an unsafe and unsatisfactory verdict on the relevant counts, it is apparent that the jury avoided that risk.
A further “unsafe and unsatisfactory” argument seemed to be put in reliance on the difficulties with the dates of the relevant visits. Even if the visits described by DD, and disputed only as to dates by the appellant, did not begin until January 1996, DD was then only 14 years old. The appellant’s trial was held in 2011, 15 years later.
That a witness cannot give the date, or gives an incorrect date, for an event does not necessarily make the evidence of the happening of that event unreliable, especially if the event is one that the witness is likely to remember because it is significant, traumatic or otherwise memorable. What is remembered differs from person to person as noted by W.A.N. Wells, Evidence and Advocacy (Butterworths, 1988) at 127.
In our view, the fact that DD’s memory about the dates of the various incidents she described was shown to have been faulty does not, given her youth and the lapse of time, affect the credibility or reliability of her evidence about the incidents themselves. DD’s inaccuracy about the years of her visits to the appellant in Canberra (as suggested by the independent evidence about the appellant’s residence in Canberra) did not as such oblige the jury to doubt her evidence that the incidents had taken place, or of the sequence in which they had taken place.
With one exception we deal with below, we have not been able to identify the particular doubt which, on counsel’s argument, we and therefore the jury should have experienced. We have already noted that the evidence did require the jury to doubt that there had been three Januarys in which such incidents had taken place before DD turned 16, and the jury appears to have acted on that doubt.
The only other particular doubt that seemed to have been articulated on behalf of the appellant is a doubt whether the relationship between the appellant and the family of DD and JL was as close as the Crown asserted. This closeness was challenged by counsel on the basis that if the appellant had not moved into his flat in Canberra until February 1995, then there had been much less interaction between him and the family than was suggested by the family’s evidence. The significance of this argument is not clear, but in any case it is easily addressed by reference to the fact that the appellant himself, in his police interview, gave several answers confirming that he was close to DD and her family – a single example will suffice: Q96 What was the nature of your relationship? A96 Um, I’ve been friends with [DD’s father], that’s her dad for twenty odd years plus, he worked for me. I’ve known [DD] since she was two, three. I met them in Brisbane, um, I would have said really close, really close. Oh, [DD’s father] often said I was sort of her godfather, her unofficial godfather.
Finally, it seemed to be put that the jury’s “not guilty” verdicts on Counts 5 to 12 of themselves raise doubts about the “guilty” verdicts on Counts 2 to 4. That is, counsel seemed to be submitting, once the jury had concluded that the difficulties with the dates of the relevant visits meant that it could not be satisfied that the incidents relied on for Counts 5 to 12 took place before DD turned 16, the jury should have concluded that DD’s evidence was generally unreliable in relation to any incident said to have occurred before she was 16.
We have rejected the suggestion that the confusion about dates made the verdicts on Counts 2 to 4 unsafe and unsatisfactory. The verdicts on those counts and on Counts 5 to 12, to the extent that the different verdicts indicated the jury’s understanding of the significance of the confusion over dates, suggest not that the jury should have found DD’s evidence unreliable in relation to the substance of Counts 2 to 4 as well as in relation to Counts 5 to 12, but that the jury found DD’s evidence in relation to Counts 5 to 12 unreliable only as to dates. Again, counsel has not articulated the particular doubt that we and the jury should have experienced.
We are satisfied that on the whole of the evidence, it was open to the jury to be satisfied that the appellant was guilty of Counts 2 to 4. The guilty verdicts on those counts were not unsafe or unsatisfactory. Ground (b) – irregularity of the trial process
The second ground of appeal was expressed to relate to all but one of the counts on which the appellant was found guilty, being Counts 2, 3, 4, 13, 14, 16 and 18. It relies on prejudice said to be caused to the appellant by the trial judge permitting the Crown to amend Counts 2 to 12 after the close of the Crown case. In written submissions, counsel for the appellant also submitted that the procedural irregularities he had identified affected not only Counts 2 to 12 (and therefore the verdicts on Counts 2 to 4), but also, by permitting the relevant counts to be amended rather than removed from the jury, made the treatment of Counts 13 to 18 unfair, in that: [a]t the very least, the competing addresses to the jury as to the complainant’s overall credit would have occurred in a very different context when counts 1 to 12 had been taken from them by the Crown or by direction.
The history of amendments to the indictment during the trial is set out at [12] to [29] above. There is no doubt that it was a messy and possibly confusing process.
The appellant concedes that as a general rule it is open to the Crown to amend an indictment. In the ACT, provision is made for such amendments in s 264(1) of the Crimes Act as follows: If, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make the order for the amendment of the indictment that the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.
Counsel for the appellant, who also appeared in the trial, said that prejudice was asserted on behalf of the appellant on “both occasions” on which the dates in Counts 2 to 4 were amended (being the first and third amendments of dates described above).
On the first occasion, prejudice was asserted in the following exchange: HIS HONOUR: All right, well, what do you say, Mr Archer, about all that? Limit the dates and withdrawal of count 15? MR ARCHER: In relation to, I’ll perhaps indicate a point of view. In relation to the amendments, in light of the evidence of the complainant which is the only evidence which goes in any detail to the date of the offence we say there is prejudice. Not in the amendment of the earlier date but by the retention of dates of the other date which ultimately will invite the possibility or leave open the possibility that the jury will adopt the very global approach to it because there’s overlapping dates and say, well, our duty is just to find something in a particular timeframe and convict him. Now, in relation to this matter, this is, as I understand it, the third iteration of the time frames that we’ve had to answer. HIS HONOUR: Yes. MR ARCHER: We now have some specific evidence from a witness in relation to the date, time and place at which these events happened, and we say, your Honour, that to ensure that there is some fairness in relation to the Crown approach and to allow our client to bring an answer, that the amendment should only be allowed in terms of the evidence given. In respect of the first date, I hear what my friend says. That seems to reflect what the evidence is, but, if that’s the case, there is no justification, your Honour, for leaving the charges so widely expressed in relation to each of the events, and we say that leaving it in that form will ultimately leave open procedural irregularity but, in relation to Mr Gillard, mounting a defence in relation to it that he’s not able to properly mount a defence, even at this late stage, because of the imprecision that the Crown attempts to preserve for a forensic and tactical advantage but not based on the evidence. HIS HONOUR: I’m not sure what you mean by that, but it seems to me that there is a conflict within the evidence which seems to me to relate to whether it was this year or the next year. The complainant originally obviously gave an account fixing it at a later time. MR ARCHER: Yes. HIS HONOUR: And gives evidence now that it was at an earlier time without addressing the difference. I’m not suggesting she’s creating a difference, she just has created a difference. I don’t think there’s any doubt that it’s one incident which was referred to in each case or, if you like, a series of incidents within the same time frame. But there’s no confusion about the time frame per se. It’s just about the date to which it is assigned. I don’t think that prejudices the accused at all. MR ARCHER: Well, I’ve put a position. HIS HONOUR: You have. You’ve no objection to count 15 being withdrawn? MR ARCHER: No. HIS HONOUR: No. MR ARCHER: But there is an objection to the amendment, your Honour. HIS HONOUR: Right. Well, I understand that, and I’ll allow the amendments.
The formal objection to those amendments was noted, without further discussion, early on the next day of the trial.
Later that same day, there was discussion between the prosecutor and the trial judge about possible further amendments to the dates in the indictment. Counsel said: MR ARCHER: Your Honour, it falls to be decided until after the defence case but a submission might be made as to addresses that the Crown should not be permitted to change its case on address and also to invite the S sort of reasoning or that something happened before the person turned 16 years old. That’s where we’re headed, I think. HIS HONOUR: I don’t know if we are ...
Discussion about those proposed amendments resumed on the following day and counsel for the appellant made the following submissions: MR ARCHER: Well, in my submission, your Honour, it is getting to the stage now where the way the Crown intends to pursue the matter on address would involve a fundamental shift in the way it puts its case and although there’s talk of dates not being particular, in relation to an essential element of the offence, that is obviously, as your Honour observed, quite wrong. On its opening, the Crown did not invite a working back. On its opening, the Crown was clear in relation to the sequence of events. HIS HONOUR: Yes. MR ARCHER: It is now, by virtue of an artifice of ditching count 1, trying to obtain some wriggle room in relation to the other counts, so that theoretically, there is a possibility that something may have happened before January of 1998, so the four year period becomes one. ... Mr ARCHER: ... So in relation to the strength of the case, your Honour, in relation to the under 16 counts, we would say that the way the Crown has approached it and the tenuous, I think tenuous and vague were the words that my friend used in relation to the nature of the evidence that the jury could rely upon, then in those circumstances – and we say, and it must as a matter of logic be correct, that in relation to all of them, given the way the Crown has put the case and the complainant has put the case, that there are significant yearly gaps in the evidence. And to the extent that it becomes tenuous and vague that an event occurred in January 1996, then ipso facto, the sequential years, keeping in mind that it has to have occurred before May of 1997, that the Crown is going to inevitably invite the jury to conflate events, to ignore the general and essential thrust of the complainant’s evidence, so as to produce a result where the jury is asked to guess whether or not these events could have happened within the time frame. It offends the principle in S. That’s what the Crown is going to do, is effectively invite some guesswork in relation to these events, strip them of context, strip them of chronology and just to ask oneself whether or not an event could have happened prior to May 1997. That’s what the Crown is up to. HIS HONOUR: And event to be identified as falling within the allegations in counts – well, 5 to 12 really. MR ARCHER: Well, that’s what we say and we would --- HIS HONOUR: That’s what you say and I mean, there is – Ms Jones is obviously aware there is a problem there, but it would, I suppose, be open to the jury to find that something, maybe one or more, maybe none of them, of those events occurred before, shall we say, January 1997, I suppose it would be. It’s going to be 1996 or, rejecting what the accused says about it, January 1995. Those are the only two occasions on which something could have happened. MR ARCHER: Well, the Crown eschews 1995 and will say so in front of the jury, because they have some evidence that establishes that in their possession ...
After the appellant had finished giving evidence, the prosecutor formally applied to amend the dates on the indictment, and the following discussion took place: MS JONES: Yes. Your Honour, I would have an application in relation to the dates on the indictment. HIS HONOUR: All right. MS JONES: Would it be more appropriate to raise that with your Honour in the absence of the jury? HIS HONOUR: Well, I suppose so, yes. Yes, it probably would. MR ARCHER: In my submission, your Honour, is that it doesn’t need to, because it doesn’t involve anything of a prejudicial nature. It’s just simply another application that the Crown is making to yet again amend the indictment, so - - - HIS HONOUR: I understand that is what it is, yes. All right. Well, it is up to you, Ms Jones. If you want to do it now, it probably doesn’t adversely affect the case. MS JONES: No, your Honour. The – in relation to the indictment – if I can just find it – for counts two – the second count through to the twelfth count. HIS HONOUR: Yes. MS JONES: I seek an amendment, your Honour, of each of the dates to the first date – so, still between dates, but the first date in all the counts would be 1 February – the first day of February, 1995. HIS HONOUR: Yes. MS JONES: And the final date 14 May 1997. HIS HONOUR: Okay. So just to make it clear about that, those are the dates, starting with the earliest date upon which Mr Gillard resided in the flat in question. MS JONES: Yes, your Honour. HIS HONOUR: And the last date is the date upon which [DD] turned 16. MS JONES: 16, yes. HIS HONOUR: That’s the reason for those two dates. MS JONES: That is the reason for those two dates, your Honour. HIS HONOUR: All right. Yes, and otherwise, as is. MS JONES: Yes, your Honour. HIS HONOUR: All right, well, Mr Archer, what do say about that? MR ARCHER: We oppose it, and in relation to it, we note your Honour, there is a concession by the Crown that in relation to the 1995 date that an event could not have occurred in 1995, so we say, your Honour, that the Crown should be compelled to actually faithfully represent in the indictment what its case actually is in relation to when these events occurred. HIS HONOUR: Well, the previous dates, to reflect visits to Canberra in January of 19 – of whatever year it was. They start on 31 December, and I suppose it would not make much difference to you if that was done? MS JONES: No, your Honour. So – no, and just to - - - HIS HONOUR: Because you are – your case is that it was in the January of whatever year - - - MS JONES: Yes, your Honour. HIS HONOUR: - - - it was, that something happened, not otherwise. MS JONES: Yes. So, your Honour, the case would be that – yes, so it could be amended to 31 December - - - HIS HONOUR: 1995. MS JONES: 1995, yes. HIS HONOUR: All right. MS JONES: And then, yes, as your Honour has raised, the date 14 May ‘97 is the day on which [DD] turned 16. The offence date, or the range of dates, is a particular and not an essential element, of the offence except for one of the essential elements of the offence is that she is aged under the age of 16. HIS HONOUR: For the offences alleged in - - - MS JONES: In counts one to twelve. HIS HONOUR: Up to twelve, yes. MS JONES: Yes. HIS HONOUR: All right, all right. Well that’s the reasoning. That’s the application. Mr Archer? MR ARCHER: We oppose it on the basis of general prejudice, but at least now we have enjoined the issue in relation to when these things are said to have occurred in a 15 month period between December and May of 1997. HIS HONOUR: Yes, quite so, All right. Well, I will grant leave for those amendments to be made.
There are in our view two difficulties for the appellant in these exchanges.
The first is that, generally, counsel gave no content to the prejudice that was being asserted.
Secondly, in recording his objection on the basis of “general prejudice”, counsel then went on to note that in fact the issue in relation to Counts 2 to 12 had now been narrowed to cover a shorter period. Counsel described this as “a 15 month period between December and May of 1997”, but the actual period, as specified by the trial judge shortly thereafter, was 16½ months from 31 December 1995 to 14 May 1997. The effect was, for the period particularised in Counts 2 to 4, to extend the period by about 3½ months by advancing the start date from 31 December 1994 to 31 December 1995 and deferring the end date from 30 January 1996 to 14 May 1997. The period particularised in Counts 5 to 12 was also extended, by replacing the 31 December 1996 start date with the 31 December 1995 start date and deferring the end date from 29 January 1997 until 14 May 1997, an overall extension of over 15 months.
The real effect of the amendments, however, having regard to the evidence, was to provide, for each of Counts 2 to 12, two Januarys in which the events charged could have occurred rather than one; however, the two Januarys covered were the January previously covered by Counts 2 to 4 and the January previously covered by Counts 5 to 12.
Thus, the amendments did not raise the possibility that new alibi evidence might have become relevant. If the amendments had resulted in other evidence becoming relevant (whether evidence not previously provided in the accused’s case, or evidence about which Crown witnesses had not been cross-examined), counsel did not identify that fact, and did not make any application to re-open his case or to recall Crown witnesses.
Nor, on the appeal, was counsel able to identify the prejudice that the appellant had suffered as a result of the amendments of the indictment. In written submissions he argued as follows: The date in respect of counts 1 to 12 was an essential element of the offence and the dates provided the particulars of the case the accused came to trial to meet. In this case the requirements of procedural or substantive fairness should have acted to deny the Crown’s application to change the indictment when and how it did ... The accused came to court to meet a particular case. The amendment of the indictment and the amendment after he gave evidence did not allow him to address the case the Crown now brought. As has been noted repeatedly in these submissions the Crown case was set in a particular context as to both categories of charge. The second amendment to the indictment clothed the change of the Crown case in procedural regularity (so far as the jury was concerned). In fact the whole process had become procedurally unfair. The ability to put the amended indictment to the jury did not allow the accused to raise issues in respect of counts 1 to 12 that would have gone to the overall credit of the complainant specifically but also generally in relation to the issues concerning the relationship between the accused and the various members of the family. This was an issue directly relevant to the jury’s consideration of Counts 13 to 18. At the very least the competing addresses to the jury as to the complainant’s overall credit would have occurred in a very different context when counts 1 to 12 had been taken from them by the Crown or by direction. The Crown’s case changed as a result of the amendment and prejudice was asserted.
Despite the assertions, counsel did not manage to particularise the issues he said he could not raise in respect to Counts 1 to 12 or the way in which the amendments denied the appellant an opportunity to challenge the complainant’s credibility, being an opportunity that had not been available before the amendments were made. None of the evidence was changed and the jury were well aware, obviously, of the amendments that were made to the indictment. This issue was raised in oral submissions and counsel was no more enlightening of this issue.
In oral submissions, counsel said: MR ARCHER: Well, there was no application to bring more evidence, because the amendment - and this addresses what your Honour was saying - to say it’s an alibi case, I suppose that’s right, but it’s more than that in relation to this particular case, because the amendments to the indictment happened after the conclusion of the evidence. So there was no - - - PENFOLD J: But you knew it was coming. REFSHAUGE J: What dates? MR ARCHER: No, it doesn’t. With respect, the cases of M v M and Borrowden, which have been put forward by the Crown in relation to relevant principle, if one looks at the facts of those cases, the application to amend was made in the Crown case, in the Crown case. REFSHAUGE J: Yes, yes. MR ARCHER: Not after the close of the defence case. REFSHAUGE J: But you could have applied to re-open? MR ARCHER: Re-open in what way? REFSHAUGE J: Your case. MR ARCHER: But I needed witnesses to do that. I needed to - - - REFSHAUGE J: Well, you could have - - - PENFOLD J: Did you ask? Did you apply to - - - MR ARCHER: No, I’ve answered that question, your Honour, and I said I didn’t.
After further discussion between counsel and the members of the Court, counsel conceded that his failure, in response to the Crown’s application to amend, to seek to recall the Crown witnesses to cross-examine them in the context of the amended indictment was an obstacle to the success of his argument that the second amendment of the indictment had deprived the appellant of a fair trial.
Counsel then sought to raise a subsidiary argument in relation to the amendments, to the effect that under s 264 of the Crimes Act the trial judge should have given reasons for allowing the amendment of the indictment once prejudice to the appellant had been raised.
Counsel did not seek reasons from his Honour at trial.
As Gummow and Hayne JJ observed in Evans v The Queen (2007) 235 CLR 521 at 531; [34], “Not every ruling given at trial must be accompanied by reasons”. By the time the trial judge allowed the amendment of the indictment, there had already been extensive discussion (some but not all of which is quoted elsewhere in this judgment) about the Crown’s reasons for seeking to make the amendments. There was nothing more the trial judge needed to say about why his Honour permitted the amendments. We are also satisfied that, given counsel’s failure to raise anything more than “general prejudice” in objecting to the amendments, there was little the trial judge could usefully have said by way of reasons for permitting the amendments over objection.
Finally, counsel submitted that, following the amendments, the appellant should be re-arraigned. He relied on English authority. The only relevant one was R v Radley (1973) 58 Cr App R 394 at 404, where Widgery LCJ, for the Court, said: We can see no possible reason for saying that to arraign the accused again after the amendment is made can be prejudicial or irregular in any way. By arraignment, we refer of course strictly to the putting of the charge to the accused and asking him to plead to it. It is not suggested that when that has been done he has to be put in charge of the jury a second time or that a jury have to be empanelled again. It is perfectly permissible, if an amendment is made of a substantial character after the trial has begun and after arraignment, for the arraignment to be repeated, and we think that it is a highly desirable practice that this should be done wherever amendments of any real significant are made.
This approach is the same as that of the High Court, in Ayles v The Queen (2008) 232 CLR 410 at 436; [83], where Kiefel J, with whom Gleeson CJ and Heydon J agreed, said:

In this case, there was no new charge; all that had been done was to amend the particulars. There is no suggestion that re-arraignment would have produced a different plea (as suggested in Radley) or any other prejudice to the appellant. There was no unfairness in the trial arising from the fact that, after amendment, the appellant was not re-arraigned.
We are satisfied that there was nothing about the amendments of the indictment that were made in the course of the trial that deprived the appellant of a fair trial. Ground (c) – misdirection as to consent
Counsel for the appellant submitted that the trial judge misdirected the jury as to the law on consent, which was relevant to Counts 13, 14, 16, 17 and 18. In fact as the trial developed, consent was only an issue in relation to Count 13, because in relation to that count the appellant admitted the intercourse charged but said it was consensual. In relation to Counts 14, 16, 17 and 18 the appellant simply denied that the sexual activity had taken place at all.
This ground of appeal raises the interpretation of s 67 of the Crimes Act, which describes situations in which apparent or ostensible consent to a sexual act cannot be relied on by an accused because of the origins of the “consent”. Section 67 is as follows: (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.
After extended discussions on several occasions between the trial judge and both counsel, the trial judge ultimately directed the jury in relation to this issue as follows: After a person turns 16 they may lawfully consent to an act that’s of a sexual nature and the act of a sexual nature is not a crime unless there is no consent and there are other conditions too. There’s knowledge of consent but I’ll come to that in just a moment. But consent has its ordinary meaning and a state of mind that agrees with acquiescence in the act in question. That’s what consent is. Now, there is a qualification to that of course. That is whether there is apparent consent or acquiescence. It may be no real consent because of some vitiating circumstances. One obvious one would be a force or a threat of force. Even if the person’s [sic] so threatened apparently without demure concurs with the demand then made you wouldn’t say that was consent. You wouldn’t say it because the apparent consent is vitiated by that consideration. I say the one relied upon here is not that of course. There is a question of what is said to be a position of authority or trust occupied by the accused in respect of [DD]. Now, whether there was such a position is a matter for you. When the evidence is reviewed, that matter may become clear or less clear as the case may be but that is the accusation there. So, for example, if a person who had authority such as, I suppose, a commanding officer, commanded a subordinate to submit to something it may be that that would be an abuse of the position of authority and it may be that the apparent consent would be vitiated. Now, the mere fact that there is no overt indication of lack of consent, no resistance, no physical assault or that there had been prior consent to other things does not of itself mean there is consent. A person is entitled to consent on one occasion and not on another. So even if there has been consent to sexual acts in the past, for example, it doesn’t mean that therefore [sic] should be concluded to be for that reason consent on another occasion. Now, I mentioned the accused [sic] knowledge and the accused is guilty of a crime where consent is absent if and only if the accused, first of all, knows that there is no consent. So it must be either knowledge of consent – of lack of consent, I’m sorry. If there is knowledge of lack of consent then there being no consent and [sic] that becomes a crime. There is however another alternative and that is that the accused might be reckless as to whether there is consent or not and that may be constituted in one of two ways. That is the accused might be aware that there is a risk that consent is absent but proceeds nevertheless. Now, that corresponds, no doubt, with what you might well think recklessness is. That is taking an unjustified risk. There is also another category of recklessness which again might well accord with your own view of it. That is where an accused has no positive reason to assume that there is consent but proceeds without turning his mind to the question at all. An obvious example of that might be if the accused person came across a sleeping woman and proceeded to have sex with her without bothering to turn his mind to whether she might agree or not agree to that. That would be reckless. ... HIS HONOUR: Members of the jury, continuing, first of all can I add one observation to the directions I gave you concerning consent. Not to what constitutes consent nor to what factors might vitiate consent but rather this, it was mentioned to you that the accused should know that there was no consent. If so then the accused knows that and whatever apparent consent there is, is of no consequence or no signs. That is to say no overt signs of consent would be relevant. However, if the accused does not know or you’re not satisfied that he did know that there was no consent you would have to, by virtue of the directions I gave you concerning the onus of proof, proceed on the basis that the accused did not know there was consent because you’re not satisfied beyond reasonable doubt that he did know that there was no consent. I’d say the next question’s recklessness and you might be satisfied the accused was reckless or you might be satisfied that the accused knew that the apparent consent which he perceived was a result of a breach of trust or a breach of his position of authority if there was one. Now, he must, in that consequence, in that circumstance, know that the apparent consent is so procured. In other words if you take the example, Mr Archer gave of the errant doctor, while there’s a breach of medical ethics for a doctor to have intercourse with a patient it’s not of itself a crime. But if the doctor said, first of all, overtly said to the patient I won’t treat you anymore unless you consent, that would be abuse of a position of authority but he would have to know it was an abuse of that position of authority. You might well think, well, of course he knows it and that might well be the answer. But if it was the patient who thought to herself, well, if I don’t consent to this suggestion that I have sex he might not treat me anymore and agrees to the sexual act because of that then, it would be a crime if and only if the doctor was aware that that was the reason for the apparent consent. ... And I just remind you it has to be without consent, the accused knowing it was without consent or at least be reckless as to whether there is consent. And in considering apparent consent you also consider whether any coercion of the kind I’ve mentioned was used and is breach of position of authority. It was suggested – I’ll talk about that a bit later – but certainly threats would be qualified as vitiating consent if there were any. And [DD] said she was protesting throughout that time saying I don’t want to do this and I don’t want you to touch me. Again, that’s a question for you as to whether that’s happened or not happened and what inference you draw from it as to the accused’s knowledge of any consent or lack of it. ... The issue that arises there is whether the other elements are made out. That is knowledge of lack of consent or recklessness as to whether there was consent and even if it was acquiescence whether it was genuine consent. If there was no consent, you’re satisfied about that, of course that’s a matter for you.
The Crown relied (in the alternative to an argument that the appellant was in fact aware that DD was not consenting to his actions) on an abuse by the appellant of his “position of authority over, or professional or other trust in relation to” DD (s 67(1)(h)).
At the trial, counsel for the appellant argued that the relevant provision had not been shown to be applicable in this case. His argument had the following elements: (a) The appellant was not shown to be in a position of authority or trust in relation to DD, and the trial judge did not explain to the jury how they could conclude that he was. (b) Even if the appellant was in a position of authority or trust, s 67 did not “negate” DD’s consent unless that “consent” had been obtained by a separately identifiable abuse of that position of authority or trust. (c) Furthermore, even if it could be shown that DD’s will had been overborne by the abuse of the appellant’s position of trust or authority, it also had to be shown that the appellant knew that DD’s “consent” has been obtained because of the overbearing of her will by that abuse (recklessness as to consent would not be sufficient). Whether the appellant was in a position of authority or trust
As to whether the appellant could have been in a position of authority or trust, counsel withdrew his initial submission that s 67(1)(h) of the Crimes Act, in referring to “professional or other trust”, extended only to positions involving trust in the nature of professional trust, apparently conceding that, for instance, a babysitter, or a person involved in non-professional caring for a disabled person, could be found to have been in a position of trust in relation to the person in their care.
Counsel did not concede, but we are satisfied, that a person over the age of consent to sexual activity, and even a person who is legally an adult, may in certain factual situations be under the authority of another person, or that another person may occupy a position of trust in relation to such a person, quite apart from the existence of any formal authority or recognised professional trust placed in that other person by the person or by others such as parents.
In this case it was open to the jury to find that DD’s parents had over several years (including before DD turned 16) entrusted DD and her sisters to the appellant’s care on various occasions, including during their school holiday visits to Canberra. The continuation of the arrangement into early 2000, after DD turned 18 but while she apparently continued, despite having reached adulthood, to live as part of the family, meant that the jury was not obliged to find that DD was no longer “entrusted” to the appellant when she continued to visit him in order to visit her brother. Even if DD was not by the time she was 18 “entrusted” to the appellant’s care, the jury might have found that the appellant retained some of the authority over her that he had exercised when DD had stayed with him in accordance with arrangements made by her parents.
This is, of course, not to say that DD and the appellant could not have entered into a legitimate consensual sexual relationship after DD turned 16, whatever her parents’ views on such a relationship; all we are saying is that, even after DD had reached the age of consent and even after she was no longer legally under her parents’ authority, the application of s 67(1)(h) to a sexual relationship between DD and the appellant remained a question of fact and properly a question for the jury. Need for separate or explicit abuse of authority or trust
The next stage in counsel’s argument was that sexual activity between two people one of whom is in a position of authority or trust does not necessarily involve an abuse of that trust or an absence of genuine consent (which accords with the view we have expressed above), that it is necessary for the prosecution to show that the consent has been obtained or given as a result of an abuse of that position (which may also be a correct proposition), and that such an abuse requires specific acts on the part of the accused “that involve the exploitation of the essential characteristics of that relationship”. It seemed, on counsel’s argument, that this had to be separate from the sexual activity itself. This last step in the argument is something with which we have difficulties.
As to whether it is necessary to show a specific act of abuse of authority or trust that exploits the position of authority or trust, counsel’s submissions on appeal gave, as an example, the case of a military officer making sexual favours from a subordinate a condition of the subordinate’s advancement.
In discussion with the trial judge, counsel also suggested a doctor saying to a patient “I won’t prescribe you that anti-depressant unless you have sex with me”. Later in argument, the trial judge said that the concept seemed to him to be “the procuring of apparent consent by reference to the position of authority over the person concerned”, and counsel seized on his Honour’s use of the expression “by reference to” the authority. His Honour then went on to say: “If he says to her and that may not be express implied [sic], but he says to her, well, come to the bedroom I wish to do something to you...”, to which counsel added “[y]ou’re my daughter, come to the bedroom”.
On appeal, counsel confirmed that his submission was that the accused person must have done something, in reliance on the relevant relationship, beyond simply engaging in the sexual activity. He summed up this “something” as a threat, a bribe, or “something in addition to the actual sex”; this, counsel said, was the “intendment” of the legislation. Counsel did not take this further step, but perhaps the statement he suggested at the trial and that is quoted above, “[y]ou’re my daughter”, might exemplify another category of actions that would fit counsel’s suggested requirement for there to be something more than “the actual sex”, namely an explicit reminder of the nature of the power relationship between the accused and the complainant.
Counsel’s argument in support of the narrow interpretation of s 67(1)(h) that he proposed did not seem to rely either on the specific words of the provision or on anything in any relevant explanatory material produced either before or after the provision was enacted. Rather, it relied on a suggestion by the ACT Law Reform Commission (LRC) in its Report on the Laws Relating to Sexual Assault, Report No 18 (2001) at [21] and [24] to the effect that the provision could have a very wide operation, and counsel’s submission that the “incredibly wide potential effect” suggested by the ACT LRC needed to be constrained by an implied requirement of an abuse “over and above the trust relationship”. The argument was not developed any further than this. In particular, counsel did not identify any particular part of the trial judge’s directions about the matters dealt with in s 67 that went beyond what he said was an available approach to s 67, or any particular part of the evidence in this case that, he said, should have raised a reasonable doubt in the jury’s mind about whether the prosecution case had established the necessary state of the accused’s mind in relation to consent.
We accept that a threat or a bribe relevant to the relationship concerned would be likely to constitute an abuse of authority or trust placed in an accused. We also consider that an explicit reminder to a complainant about the nature of that relationship would be likely to support a claim that an apparent consent to sexual activity was obtained through an abuse of the position of authority or trust. However, we are not satisfied that s 67(1)(h) requires anything in the nature of an explicit invoking of the relationship in order that an abuse for the purposes of that provision can be made out. We see no reason why the abuse may not be implied in the exchanges between the parties, or simply implicit in the relationship, especially where it has been the basis for prior sexual activity of a similar kind. It will depend in each case on the particular facts and the circumstances in which the act is committed. Whether an accused was in a position of authority or trust, and whether any particular “consent” was obtained through an abuse of that position, are questions of fact that are properly left to a jury. Relevant mental element
Finally in relation to s 67, counsel raised a question about which mental element can be relied on when the prosecution case depends on s 67. The basic submission was that if s 67 is the ground for saying that any apparent consent was not real consent, then the prosecution must particularise the charge in relation to the accused’s state of mind as that the accused knew that the complainant did not consent, and cannot charge only that the accused was reckless as to consent.
Counsel had raised a similar issue in the case of R v Schippani [2012] ACTSC 108. He relied in this appeal on the analysis by Penfold J, who, in obiter dicta in R v Schippani, explained the issue as follows: Operation of s 67(3) 81 Finally, I note the question that also arose in this trial about the operation of s 67(3) in relation to consents “negated” by s 67(1). 82 One intended effect of s 67(1) seems to be that an ostensible consent to the relevant sexual activity is not a real consent if the giving of that ostensible consent is caused by any of the actions or circumstances described in paras 67(1)(a) to (j). Section 67(1) thus enables the requirement of an absence of consent to be established, despite an ostensible consent, in appropriate cases. 83 In 2001, the ACT Law Reform Commission (LRC) considered s 92P of the Crimes Act (now s 67) in its Report on the Laws Relating to Sexual Assault (Report No 18 (although incorrectly printed as No 17)). The LRC noted at [184] that the section may also enable an “actual consent” to be deemed not to have been given in the circumstances covered by the section, but that the intended meaning of “negating” consent appears to be different for different paragraphs of s 67(1) – for instance, the LRC said, the reference to force and threats (s 67(1)(a), (b), (c) and (d)) may suggest negation of what was only ever an apparent consent (because it was not free or voluntary), but the reference to the abuse of a position of trust (s 67(1)(h)) suggests negation of an actual consent. 84 The question that was raised in this trial, however, was whether s 67(3) confines the operation of s 67(1) to cases in which the accused can be shown to have known that the ostensible consent was caused by one of the actions or circumstances described in paras 67(1)(a) to (j) (and is therefore deemed to know that the complainant did not consent), or whether s 67(1) also applies where an accused person may have been reckless about consent. That is, does s 67(1) apply where any ostensible or actual consent would have been negated under that provision (thus establishing the objective absence of consent) but where the accused’s state of mind cannot be shown to have involved knowledge so as to invoke the operation of s 67(3). If s 67(1) still applies in such a case, this would leave the question of the accused’s state of mind (specifically, whether he or she was reckless about consent) to be addressed by other evidence, rather than by a legislative presumption such as is provided by s 67(3) in relation to knowledge. Otherwise, s 67 only protects a complainant whose “consent” has resulted from one of the circumstances described in that subsection if the accused knows that this was the origin of the consent, but not if the accused was reckless about the origin of the consent.
Her Honour then referred to previous consideration of s 67(3), before noting that she did not need to reach a conclusion about the question for the purposes of that judgment. 85 The LRC in its 2001 Report criticised s 92P (the forerunner of s 67) on several grounds, and said relevantly (at [191]): Subsection 92P(3) is, of course largely dependent upon subsection (1). It also gives rise to further and obviously unintended complication. Sections 92D and 92J prescribe alternative mental elements of knowledge or recklessness as to consent but the deeming provision in this subsection applies only to knowledge. This may suggest that an accused could be convicted if he had known that [the complainant’s] consent had been due to a belief that he was another person but could not be convicted if he had been reckless as to whether she had consented for that reason. This is a further instance of the incongruity and confusion that seems to characterise this section. 86 Sections 92P, 92D and 92J are now ss 67, 54 and 60 respectively. The problem identified by the LRC may have been compounded by the fact that ss 54 and 60 have now both been amended to specify the mental element of recklessness as to consent. There is a separate provision to the effect that recklessness can also be established by proof of knowledge. It is not clear to me what the effect of s 67(3) would be in relation to an offence that is now likely to be charged as involving recklessness as to consent, even where the evidence suggests knowledge of an absence of consent. 87 No judicial consideration of s 67 since the LRC made these comments was drawn to my attention by counsel, but since the accused’s trial, in Jones v Chief of Navy [2012] ADFDAT 2, the Defence Force Discipline Appeal Tribunal (Tracey J, White JA and Mildren J) considered the applicability of s 67 in a proceeding under the Defence Force Discipline Act 1982 (Cth). The Tribunal commented on the operation of s 67(3) as such, saying (at [73]): As to s 67 (3), in our opinion it does not create a statutory fiction. As a matter of logic and common sense, knowledge of circumstances which negate consent means that not only was there no consent at all, but the accused knew there was no consent. Section 67 (3) is merely a provision for the removal of any doubt on that subject: see Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 207 (per Gleeson CJ). This subsection also makes clear that honest and reasonable mistake of fact is not available as a defence in the circumstances to which s 67 (3) applies, (although as a matter of logic, if the fault element is knowledge, it is difficult to see how one could be mistaken about something when it was proved that the accused had the relevant knowledge). 88 The Tribunal did not apparently need to consider the question raised in this case, namely whether the existence of s 67(3) excluded the operation of s 67(1) in a case where the charge relied on recklessness rather than knowledge as to consent, but the description of s 67(3) as “merely a provision for the removal of any doubt” does not suggest that the Tribunal saw the provision as confining the operation of s 67(1). 89 As noted at [72] above, since I did not find beyond reasonable doubt that an act of indecency had occurred, I have not had to decide on the effect of s 67 in a trial in which recklessness as to consent may be in issue. It is unfortunate, however, that s 67, which was presumably intended to be an element in the protection of the vulnerable against sexual assault, has for so long been left in a state in which its operation in various respects seems to be quite unclear.
All the relevant charges (set out in Counts 13 to 18) referred both to the appellant knowing that DD did not consent and to the appellant being reckless as to whether DD did consent.
We note that the matters referred to by Penfold J tend to support the view that s 67(3) was not intended to limit the operation of s 67 solely to charges based on the alleged knowledge of the accused, and that nothing was put to us on appeal that seemed to take the matter any further.
In this case, as noted, each relevant charge referred to the two alternatives of knowledge and recklessness on the appellant’s part. The trial judge directed the jury, in the context of whether there had been consent, in relation to both the possibility that the accused knew there was no consent and to the possibility that he was reckless about consent. If s 67 only applies to cases involving knowledge and not to those involving recklessness, then the failure of the trial judge to instruct the jury that the possibility of apparent, rather than genuine, consent was only relevant to determining whether the appellant knew there was no consent, could be said to have deprived the appellant of a chance of acquittal on the six charges where consent was theoretically in issue. In those circumstances, and in contrast to her Honour’s position in R v Schippani, we do need to reach a conclusion about the scope of s 67.
Our conclusion is that ss 67(1) and (2) are applicable to determining whether there was consent, not only where knowledge of absence of consent is alleged but also where the allegation is recklessness as to consent.
In reaching that conclusion, we have had regard to: (a) the material referred to by Penfold J; (b) the absence of any further material put before us in support of the appellant’s submissions; (c) the absence of any further development of the arguments made before Penfold J; and (d) the absence within either the substantive provisions of s 67 (being ss 67(1) and (2)) or within s 67(3), of anything other than s 67(3) itself that gives any hint of any legislative intention to confine the whole of s 67 to cases involving knowledge that there has been no consent.
There is also a further ground on which we rely for that conclusion. In relation to offences involving sexual activity with persons who are able to give consent, the question of consent is, of course, relevant in two respects. The elements of a relevant offence include both an absence of consent by the complainant as a matter of fact and, on the part of the accused, either knowledge of that absence of consent, or recklessness about whether there is consent. Sections 67(1) and (2) relate directly to the question whether there was in fact consent by the complainant (the genuine consent required by law) to the sexual activity. Those provisions have nothing to say about the state of mind of the accused. They could sensibly stand alone even if there were no provision along the lines of s 67(3), and the question of whether there was in fact consent is equally relevant whether the offence charged is said to involve knowledge of absence of consent or recklessness about consent.
There is therefore no reason to assume, without any explicit statement or even implicit hint to that effect, that s 67(3) not only has its explicit substantive effect but is also intended to exclude the application of the rest of s 67 to cases not covered by s 67(3).
We also consider that a statement such as is made in s 67(3), which can sensibly be made in relation to a requirement of knowledge on the part of an accused, is, on proper analysis, irrelevant in relation to the concept of recklessness.
Applying the test for recklessness found in R v Tolmie (1995) 37 NSWLR 660, which was accepted by Besanko J in Sims v Drewson (2008) 188 A Crim R 445 at 452; [25] as applying in this Territory (reasoning which appeared to the Court of Appeal to be correct in Director of Public Prosecutions v Walker [2011] ACTCA 1 at [53]), that a person is reckless about another person’s consent if he or she simply did not consider whether there was consent, as well as if he or she realised the possibility that the other person might not be consenting but went ahead regardless, it is apparent that there is no obvious “recklessness” equivalent for s 67(3).
First, there would seem to be no need for an equivalent in relation to recklessness consisting of a simple failure to consider whether there was consent. If the accused has not considered the question of consent at all, it would be neither necessary nor meaningful to try to expand or narrow the particular kinds of consent issues that he or she has not considered.
Similarly, if a jury is satisfied that an accused realised the possibility that the complainant might not be consenting, but went ahead regardless, it does not seem to matter whether the accused’s recognition that consent might be absent included a recognition of any particular reason why consent was an issue. Whatever the basis for the accused’s recognition that consent might be absent, it is the recognition as such, together with his or her action in going ahead regardless, that constitutes an element of the offence.
As is apparent from the transcript of the appellant’s trial, discussions in court about the operation of s 67 tend to focus on the problem caused by the concept of “negating” consent, and are commonly resolved by participants reading the s 67 references to consent being negated as references to “apparent” or “ostensible” consent not being real or genuine consent if “given” in one of the circumstances mentioned in the section. It seems to us that the aim of s 67(3) is simply to ensure that an accused cannot defeat a charge by establishing that, although he or she knew that the consent given had been caused by any of the circumstances set out in s 67(1), he or she did not know that at law that “consent” was not a real consent.
Thus, we are satisfied that both the following matters were properly before the jury in the appellant’s trial: (a) the possibility that any apparent consent given by DD to any of the acts charged in Counts 13 to 18 was caused by the abuse by the appellant of his position of authority over, or other trust in relation to, DD (that is, the possibility that any “consent” was “negated” under s 67(1)(h)); (b) the possibility that the accused was reckless as to whether the complainant was consenting at all.
There is no basis for saying that, if the jury found that the appellant was reckless about whether DD had consented (a finding as to the appellant’s state of mind), any finding that DD had not consented (a finding as to DD’s state of mind) needed to be reached without reliance on s 67. There is accordingly no basis for concluding that the trial judge misdirected the jury by leaving to the jury both the question of apparent or real consent and the question of knowledge or recklessness as to an absence of consent, or that his Honour thereby deprived the accused of the chance of an acquittal on any of Counts 13 to 18 on which he was in fact found guilty.
We note, however, that any amendment of s 67, whether to clarify the independence of ss 67(1) and (2) from s 67(3) or to overrule our findings, could usefully eliminate the surplus and confusing “who” in the opening phrase of the current s 67(3). Appeal against sentence The sentences imposed
The maximum penalties for the offences of which the appellant had been found guilty were: (a) for Counts 2, 3 and 4 – 10 years imprisonment; (b) for Counts 13, 16 and 18 – 12 years imprisonment; (c) for Counts 14 and 19 – 7 years imprisonment.
On 2 December 2011, the trial judge sentenced the appellant to 9 years 9 months imprisonment, with a non-parole period of 5 years and 3 months (around 54% of the total sentence). The total sentence was made up as follows: (a) On Count 2 – 6 months imprisonment; (b) On Count 3 – 12 months imprisonment, cumulative on the above as to 6 months; (c) On Count 4 – 6 months imprisonment, cumulative on the above; (d) On Count 13 – 5 years imprisonment, cumulative on the above as to 4 years; (e) On Count 14 – 6 months imprisonment, cumulative on the above; (f) On Count 16 – 4 years imprisonment, cumulative on the above as to 2½ years; (g) On Count 18 – 4 years imprisonment, cumulative on the above as to 1 year; (h) On Count 19 – 3 months imprisonment, cumulative on the above.
The trial judge, in sentencing, made the following comments about the relevant offences: [I]n relation to count 2, the accused, in circumstances of indecency, caused the victim to be photographed naked. It does seem those are not the photographs with which we are concerned in relation to count 19. We do not know what happened to them, but nevertheless, he did take photographs of her. For the purposes of the act of indecency it is the taking of the photographs, and the causing of her to be naked, rather than the photographs themselves, which constitutes the offence. It is not perhaps the most gross act of indecency one can imagine, but it is still a rather indecent thing to do in respect of a young girl who was then in the care of the offender. I will say this now because it applied to all these offences, even those where the young lady was over the age of 16, he was in a position of trust in respect of her. He knew that she, and her sister for that matter, were in his care because of the tragic circumstances which surrounded their elder brother. He knew that they were in a vulnerable position as a result and he took advantage of that. To put it bluntly, he exploited the situation. I need do no more than note that, because it is a circumstance, and to my mind a considerable aggravation, in respect of each of the matters which have been found by the jury to have justified their guilty findings. The third count relates to touching of the breast and vaginal areas and was much more intrusive. To my mind that is of a more serious category than the previous one, although still the same offence. Then there is count 4, which involves his walking in on the young lady while she was having a shower and touching her. Admittedly this was not a prolonged touching, but nevertheless it was indecent. I am satisfied that the accused did have an illicit attraction towards [DD]. He described it as a special relationship, but I think he had in his own twisted mind the idea that maybe she fancied him. I should say that from the outset that the evidence satisfies me that nothing was further from the truth and I do believe that he was, in undertaking those acts, bearing in mind that he may get the opportunity to go further later, as indeed he did. The next count upon which the jury found a verdict of guilt is count 13. This, to my mind, was the most egregiously outrageous of the acts which the accused performed. He caused [DD], who was then, it may be accepted, over the age of 16, to engage in fellatio with him. There were a number of reasons why that was so. Partly the previous relationship that he had created with her, partly the fact that she was, as I have already mentioned, there with her sister at this point to engage with their brother, who was, to everybody’s knowledge, seriously disabled. The offender was in effect showing his power over [DD] and indeed I accept that he said something to that effect to [JL] ([DD]’s younger sister). He engaged in an act of fellatio, he obviously did so without [DD]’s consent, knowing that she did not consent. To my mind, it was quite apparent from the circumstances of which [DD] gave evidence, corroborated as she was by [JL], even allowing for the differences between them, that the offender knew very well that [DD] was acquiescing only because of his power, in the circumstances, over her. Drawing [JL]’s attention to that act is a separate offence and to my mind an egregious act of indecency as well. I need say no more about that particular offence than that. We then come to the incident which relates to the two matters referred to in count 16 and count 18. The circumstances of these offences are all the more poignant, because this was the time at which their brother died. I accept that it was not known at that stage that the brother would immediately die. Nevertheless, it is a circumstance which adds to the seriousness of that situation and highlights the exploitation which the accused engaged in. He did two things. He engaged in digital penetration, which of itself is an act of sexual intercourse, again without consent and knowing full well there was no consent. He also engaged in an act of cunnilingus, again without [DD]’s consent and knowing that there was no consent. Those acts are perhaps only slightly less serious than the act of fellatio which he engaged in the previous year. I note the nineteenth count, the photographs. It is agreed that the photographs are not those of the most serious category of child pornography that one can imagine. The categories of child pornography are laid down in the case of R v Oliver (2003) Crim LR 127. This would fall into the least serious category of such matters, but nevertheless, it is the fact that the accused has been found by the jury to have possessed those items, being the depiction of a person under the age of 18 years and for the purpose of sexual gratification. I note that the maximum penalty for that offence is five years imprisonment. Plainly it does not require the imposition of as much as that. The grounds of appeal
There were three grounds of appeal against the sentences imposed (set out at [31] above). We regard grounds (e) and (f) as particulars of the claim in ground (d) that “the sentences in their totality were manifestly excessive”.
In oral argument counsel initially said, in discussing sexual assault cases in general terms, that “there are few, if any, [ACT] cases involving such a long head sentence with such significant non-parole period” . Asked why the non-parole period was described as “significant”, counsel conceded that a non-parole period representing 54% of the head sentence was not high as a proportion of the total sentence, and then argued that this relatively lenient non-parole period indicated that the sentencing judge had calculated a head sentence that was “extraordinarily long”, and “particularly crushing”, and had been forced to ameliorate that head sentence by setting a low non-parole period. He then conceded that a non-parole period of 54% was not particularly low in the ACT. These concessions may have explained why counsel did not in oral argument press his written submissions that the non-parole period did not “reflect any hope in respect of the appellant” and did not reflect any leniency for the appellant’s good character.
We note that, given the appellant’s apparent lack of remorse, any absence of “hope in respect of the appellant” felt by his Honour might have been explicable. We also note that given the role of the appellant’s good character in providing the opportunity for this offending over several years, his Honour was not obliged to give any particular leniency for prior good character. See Ryan v The Queen (2001) 206 CLR 267 at 309; [143] per Hayne J.
Counsel did not put any comparable sentences to the Court in support of his argument that the appellant’s sentence was manifestly excessive, but relied in the end on assertions that at two points there had been excessive accumulation of particular sentences.
The total sentence imposed on Counts 2 to 4 (involving three acts of indecency while DD was under 16) was 18 months imprisonment.
The sentence on Count 13, an act of sexual intercourse without consent after DD had turned 16, was five years imprisonment, accumulated as to four years, and on Count 14, an act of indecency constituted by committing the sexual intercourse charged in Count 13 in the presence of DD’s younger sister JL, a fully accumulated six months imprisonment; that is, the incident charged in Counts 13 and 14 added a further four and a half years to the sentence.
Counts 16 and 18 related to a single incident involving digital penetration of DD and cunnilingus. The sentence for Count 18 was accumulated on the Count 16 sentence of four years as to one year, giving a total sentence for that incident of five years, which was accumulated on previous sentences to a total of three and a half years.
Counts 13, 16 and 18 related to acts of sexual intercourse without consent, and Count 14 related to committing one of those acts in the presence of DD’s sister. The two incidents involving sexual intercourse without consent, and the four offences arising from those incidents, which took place a year apart, together provided eight years of the head sentence. The remaining 21 months of the sentence accounted for three other acts of indecency committed on separate occasions during a period of about a week, and the child pornography offence committed several years later.
Counsel submitted that “[c]ounter intuitively His Honour imposed much lower sentences in respect of acts committed before the age of 16 when on the abuse of trust rationale, the behaviour must have been considered more egregious” and submitted that the sentences for the earlier offences “set some sort of bench mark so far as the operation of the aggravating factor of abuse of trust was concerned”. Counsel seems to have overlooked the fact that the earlier offences were acts of indecency rather than sexual intercourse without consent, and carried lower maximum penalties (albeit not substantially lower – maximums of 10 years imprisonment compared with 12 years). Furthermore, his Honour expressed clearly the different assessments he made of the earlier acts of indecency compared with the Count 13 sexual intercourse (at [114] above). It is apparent that his Honour recognised that offences against victims under 16 are generally more serious than equivalent offences against older victims in his treatment of Count 14, another act of indecency but against a person who was at least 16; although his Honour described this as an egregious offence, he imposed a penalty equivalent to those imposed for the less serious of the earlier offences (Counts 2 and 4).
We accept that this is a severe total sentence. However, we take account in particular of the following matters: (a) that the total sentence addressed six different incidents that took place over a period of several years; (b) the difference in age between the appellant and his victims (the appellant is 27 years older than DD and 29 years older than JL); (c) the contents of the Victim Impact Statements; (d) the appellant’s complete absence of remorse, particularly as expressed to the Pre-Sentence Report author, when he said that there was “no bloody way” that DD would have been affected by his offences, because “I know her, I know what she’s like, she’s a user, a sympathy getter”, and also when he described DD as a “manipulator”; and (e) the evidence that the appellant induced DD to submit to the activity charged in Count 13 by threatening to turn his attentions to her younger sister JL, a possibility that DD felt she had to prevent.
We do not consider that this sentence goes beyond what is appropriate to recognise the total criminality of the appellant’s conduct as found by the jury, or that it could be described as “manifestly excessive”. Furthermore, we consider that the comparatively short non-parole period reflects not the trial judge’s recognition that he had imposed an excessive head sentence but an intention to ensure that the head sentence, while severe, was not crushing and would serve the twin purposes of leaving some hope in the appellant for a worthwhile life after his return to the community and enabling a period of substantial supervision to ensure his reform. Conclusions
We can see no basis for finding that the jury’s verdicts were unsafe and unsatisfactory, we do not consider that the appellant was unfairly or unreasonably prejudiced by the prosecution’s amendment of Counts 2 to 12 after the close of the Crown case, and we do not consider that the trial judge misdirected the jury in relation to the issue of consent. The challenges to the appellant’s convictions cannot be made out.
Nor do we accept that the appellant’s total sentence was manifestly excessive.
The appeal must be dismissed.