R v Aiken

Crimes Act, ss 61D, 61I, 61L, 61R, 65A, 94 LEGISLATION CITED: Criminal Appeal Act, s 6(1) Queensland Criminal Code, s 347

R v Jackson [2004] NSWCCA 110 Papadimitropoulos v The Queen (1956) 98 CLR 249 R. v Olugjoba (1982) QB 320 Question of Law (No. 1 of 1993) (1993) 59 SASR 214 R v O'Neill (1979) 2 NSSWLR 582 CASES CITED: R v Liberti (1991) 55 A Crim R 120 Reg v Dee 14 L.R.Ir 468 Reg v Clarence (1889) 22 QBD 23 Reg v Flattery (1876-77) 2 QBD 410 R v Williams (1923) 1 KB 340 R v Shaw (unreported, Qld CA, 21 December 1994)

J. Girdham (Crown) COUNSEL: C. Smith (Appellant)

S. Kavanagh (Crown) SOLICITORS: S.E. O'Connor (Appellant)

IN THE COURT OF CRIMINAL APPEAL 2005/899

STUDDERT J KIRBY J HOWIE J

Tuesday 20 September 2005 REGINA v BRUCE MALCOLM AIKEN Judgment 1 STUDDERT J: The appellant, Bruce Malcolm Aiken, pleaded guilty to three of six offences charged in an indictment and the Crown accepted the pleas in satisfaction of the indictment. The relevant offences were these:

(i) sexual intercourse without consent, knowing that the victim was not consenting;

(iii) stealing money. 2 The offence of sexual intercourse without consent knowing the victim was not consenting was an offence for which s 61I of the Crimes Act provided a maximum penalty of fourteen years imprisonment. The offence of assault with act of indecency was an offence for which s 61L provided a maximum penalty of five years imprisonment. The stealing offence was one for which s 94 of the Crimes Act provided a maximum penalty of fourteen years imprisonment. 3 His Honour Judge Bell sentenced the appellant for the offence under s 61I to a non parole period of twelve months with a balance of term of three years. The sentence was backdated to commence on 10 June 2004 when the appellant was first taken into custody. For the offence under s 61L, a concurrent sentence with a non parole period of twelve months was set and a balance of term of four months. For the stealing offence, a fixed term penalty of twelve months imprisonment was imposed, again to commence on 10 June 2004. 4 The appellant appeals against his conviction in relation to the two sexual offences and seeks leave to appeal against the sentences which were imposed upon him. 5 As the sentencing judge remarked, the facts giving rise to the commission of these offences were "somewhat out of the ordinary". The relevant facts were the subject of a statement of agreed facts upon which the sentencing judge was asked to proceed to sentence, and I draw upon that statement to record here the relevant facts: "1. About 1pm 9 June 2004, the victim An Thi (Kim) Duong, attended Burwood Westfield to do some shopping. 2. The victim attended the K-mart store. There the victim walked to the ladies section and put a pair of black underwear in her pocket. 3. She then went to other sections of the store and took two pairs of pliers and four reels of cotton and put them into a plastic bag.

4. The victim was planning to steal these items from the store.

5. The victim then went to the electrical appliances section. There she took a kettle and was in the process of taking an iron from the shelf and putting it into her bag.

7. There he purchased a suit from Lowes, using his name and purchase order from IPC Employment (an employment assist agency).

9. It is not known when the accused first sighted the victim. However, the accused realised the victim was attempting to steal some items from the store.

The accused told the victim he was watching her and she thought he was undercover security. The accused told her he would tell security.

The accused said, 'I can help you if you help me.' The accused pointed to his groin.

The victim placed her hand on his trousers on top of his penis.

The accused told the victim to follow him. The accused and victim left the store.

The accused asked the victim if she had any other items on her. She said, 'No.'

The accused noticed that she had other items under her clothing and told her to leave them in the store.

The accused asked if he could go to the victim's home. She said, 'I share with someone.'

The accused suggested they go into the toilets. When they arrived the toilets were occupied.

Whilst they waited, the accused walked to some nearby shops.

The victim was outside the toilets. 21. The victim still believed the accused was a Security Officer and felt scared. 22. The accused locked the door and pulled down his trousers and underpants around his knees and put the victim's hand on his penis. The accused penis became erect. The accused told her to kiss his chin (Vietnamese for penis). 23. The victim is Vietnamese. 24. The victim said no. She said 'I don't even do that for my ex-husband.' 25. The victim acceded to the request and put the accused's penis in her mouth three times. However, it hurt the accused as she used her teeth. The accused told her to use her hand. 26. The accused put some soap and water on his penis and on the victim's hand so that she could masturbate his penis. The victim did masturbate the accused until he ejaculated. The accused then pulled up his trousers. 27. The accused asked the victim if she had any money. The victim told him she had $200 in her purse. The accused searched the victim's purse and located $200. He took the money and later spent it at Burwood RSL. 28. The victim asked the accused could he help her obtain some items in K-mart. The accused said 'ok, I will meet you back in K-mart'. 29. The victim walked back into K-mart and could not locate the accused. 30. The victim left K-mart and walked to a lady bag checker at the front of the store and told her what happened. The Westfield Security and Police were called…" 6 It was further agreed that the appellant was later arrested on the same day and that in an electronically recorded interview he admitted what had occurred.

The appeal against conviction 7 Although the appellant pleaded guilty to the offences under s 61I and s 61L of the Crimes Act, it has been submitted in this Court that those convictions ought not to be allowed to stand for the reason that as a matter of law the appellant could not properly have been convicted of either of them. It was submitted that this Court can and should go behind the pleas of guilty. 8 Reference was made to R v Jackson [2004] NSWCCA 110 and to the judgment of Sully J, with which Wood CJ at CL and Hislop J concurred. Sully J, in considering the significance of s 6(1) of the Criminal Appeal Act said this: "…The foundational jurisdiction and powers of this Court are in their entirety statutory, deriving from the Criminal Appeal Act 1912 (NSW) . It is the positive duty of the Court, pursuant to section 6(1) of that Act, to set aside a conviction if the Court is of the opinion "……that on any ……ground whatsoever there was a miscarriage of justice" . It seems to me that if an appellant can demonstrate that he stands convicted of an offence of which, as a matter of law, he cannot properly be convicted, then it must follow that there has been a miscarriage of justice in proceeding to that conviction. I think that such an approach is supported by the reasoning in Liberti (1991) 55 A Crim R 120: see per Kirby P, (Grove and Newman JJ concurring), at 121, 122; and Caruso (1988) 37 A Crim R 1: per Von Doussa J at 26."

With respect, I accept the above as a correct statement of principle and a relevant statement in the circumstances of the present appeal. 9 Put shortly, it has been submitted on behalf of the appellant that the agreed facts disclosed that the victim consented to the acts constituting the two offences, albeit under a belief that the appellant was a security officer when he was not. Further, it is submitted that the consent was not vitiated by reason of the apparent deception of the appellant. 10 Counsel for the appellant referred to the well known case of Papadimitropoulos v The Queen (1956) 98 CLR 249. In that case the appellant had intercourse with a woman whom he had deceived into believing he had earlier married. The High Court determined that he was not guilty of rape. In the course of their joint judgment Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ said this (at p 261): "…the key to such a case as the present lies in remembering that it is the penetration of the woman's body without her consent to such penetration that makes the felony. The capital felony was not directed to fraudulent conduct inducing her consent. Frauds of that kind must be punished under other heads of the criminal law or not at all: they are not rape. To say that in the present case the facts which the jury must be taken to have found amount to wicked and heartless conduct on the part of the applicant is not enough to establish that he committed rape. To say that in having intercourse with him she supposed that she was concerned in a perfectly moral act is not to say that the intercourse was without her consent. To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape." 11 It was submitted that the reasoning in Papadimitropoulos applies to the present case and that the victim must be regarded as having consented to what the appellant did. 12 The Crimes Act does not define consent. Plainly, it is to be distinguished from submission, because there may be submission without consent: see R v Olugboja (1982) QB 320, in particular at 332; and Question of Law (No. 1 of 1993) (1993) 59 SASR 214 per King CJ at 220, where the Chief Justice said: "The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. A previous refusal may be reversed thereby rendering the act consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats." 13 Here the Crown submitted that the statement of facts earlier recorded supports a conclusion that the victim was not consenting but rather that she was acting under coercion. Reference was made in particular to the facts set out in the sentences in the agreed statement numbered 12, 14, 18, 21, 22, 24, 25, 26 and 27. It was submitted that these facts afforded support for a finding of the necessary elements in the offences charged under s 61I and s 61L. 14 Moreover, the Crown relied upon the appellant's pleas. In pleading guilty to the two offences, the appellant made admissions as to the necessary elements in the offences: see R v O'Neill (1979) 2 NSWLR 582 and R v Liberti (1991) 55 A Crim R 120 at 122. It was submitted that the appellant pleaded guilty with a full appreciation of the benefits that attended the course he adopted, including the manner of expression of the agreed statement of facts. 15 Whilst the Crimes Act does not define consent, s 61R addresses this issue and identifies various situations in which consent is vitiated. The section provides: " 61R Consent (1) For the purposes of sections 61I, 61J and 61JA, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse. (2) For the purposes of sections 61I, 61J and 61JA and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated: (a) a person who consents to sexual intercourse with another person: (i) under a mistaken belief as to the identity of the other person, or (ii) under a mistaken belief that the other person is married to the person, is to be taken not to consent to the sexual intercourse, and (a1) a person who consents to sexual intercourse with another person under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or any other mistaken belief about the nature of the act induced by fraudulent means) is taken not to consent to the sexual intercourse, and (b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) or (a1) is to be taken to know that the other person does not consent to the sexual intercourse, and (c) a person who submits to sexual intercourse with another person as a result of threats or terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse, and (d) a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse." 16 Section 61R(2)(a)(i) expressly vitiates consent in circumstances such as were considered in Reg. v Dee 14 L.R.Ir 468 and discussed by Stephen J in Reg. v Clarence (1889) 22 QBD 23 at 43-44; s 61R(2)(a)(ii) vitiates consent in circumstances such as arose in Papadimitropoulos (supra); s 61R(2)(a1) vitiates consent in circumstances such as arose in Reg. v Flattery (1876-77) 2 QBD 410 and in R v Williams (1923) 1 KB 340. However, it is s 61R(2)(c) which attracts particular attention here. What sort of threat is contemplated as vitiating consent for the purposes of s 61I, s 61J and s 61JA? 17 It can hardly be doubted that submission to sexual intercourse by the immediate threat of physical violence is to be regarded as non consensual. Moreover, s 61R(2)(c) contemplates that the threat need not be against the person who submits to intercourse; it may be directed at some other person. However, must there be a threat of physical violence as opposed to some lesser threat? It cannot be that any type of threat necessarily enlivens the operation of s 61R(2)(c). For instance, it does not seem to me that a despicable threat by an employer that he would block an employee's prospects of promotion at work unless she had intercourse with him would suffice, without more to vitiate consent. 18 The alternatives contemplated in s 61R(2)(c) are "threats or terror". The latter word is defined in the Macquarie Dictionary as "sharp, overpowering fear", or "feeling, occasion or cause of great fear", and the placement of "threat" beside "terror" suggests that the legislature had in mind "threats" as being threats to physical safety. 19 In extensive supplementary written submissions, the Crown acknowledged (at para 22) "the dearth of cases involving convictions for sexual assault where violence is neither used, threatened nor feared". It was suggested that this may be "because of the overbearing physicality of the very nature of the sexual act". However, the Crown submitted it did not follow that the offence can only occur under threat of violence. 20 Reference was made to the decision of the Queensland Court of Appeal in R v Shaw (unreported, 21 December 1994). In Shaw a conviction for rape was upheld where the complainant had intercourse after a threat other than a threat of violence. However, under s 347(1) of the Queensland Criminal Code as it then stood: "Any person who has carnal knowledge of another person without that person's consent or with that person's consent if it is obtained by force, or by means of threats or intimidation of any kind or by exercise of authority, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married female, by impersonating her husband, is guilty of a crime, which is called 'rape'." 21 Hence, the Queensland Criminal Code as it stood for the purposes of the decision in Shaw contained a broader concept of "threats" than is to be found in s 61R(2)(c) of the New South Wales Crimes Act. In these circumstances, I do not find that decision of assistance. 22 The Crown also referred to Olugboja (supra) as authority for the proposition that consent might be vitiated where there was absent the threat of physical violence. However, the facts in that case, as set out in the judgment of Dunn LJ at 326, were very different from those in the present case: "The defendant, who is a Nigerian, aged 20 at the time and studying at Oxford, had sexual intercourse with Jayne, then aged 16, on March 8, 1979, at the bungalow of his co-accused Lawal. She had been taken there with her friend Karen (aged 17) and Lawal in a car driven by the defendant from a discotheque in Oxford where they had all been dancing. Lawal had offered the girls a lift home, but the defendant had driven them to the bungalow which was virtually in the opposite direction from where they lived. This was a deliberate trick to get them to the bungalow. When they got there both girls refused to go in, and started walking away. They did not know where they were. Lawal followed them in the car, and after some argument they got in. After a further argument Karen again got out, and, as she was trying to get Jayne out, Lawal drove off, stopped in a lane, and raped Jayne. Lawal then drove back to the bungalow, picking Karen up on the way, and the three of them went inside. The defendant was there lying on the sofa asleep, and saw them arrive. Jayne was the last to come in. She was either crying, or obviously had been. Music was put on. Jayne declined to dance. She went to the lavatory and returned to find Lawal dragging Karen into the bedroom. The defendant switched the sitting-room lights off and told Jayne that he was going to fuck her. She told him that Lawal had had her in the car and asked why could the defendant not leave her alone. He told her to take her trousers off and she did because she said she was frightened. She was still crying and the room was in darkness. The defendant pushed her on the settee and had intercourse with her. It did not last long. She did not struggle; she made no resistance; she did not scream or cry for help. She did struggle when she thought after penetration that the defendant was going to ejaculate inside her, and he withdrew. She put her clothes on and the other two emerged from the bedroom, where Lawal had raped Karen. The defendant and Jayne then went into the bedroom. She told him she was going to call the police. He said that if she opened her big mouth he would not take her home. He later did." 23 On the facts above reviewed, there was plainly a case for the jury's consideration on the issue of consent and an appeal against conviction was dismissed. 24 Reference has been made in the written submissions of counsel to other authorities, but none of those other authorities assists in determining the issue presently before the Court. 25 However, there is a statutory indication to the meaning intended for the concept of "threat" in s 61R(2)(c) when s 61R is read in conjunction with s 65A. That latter section provides as follows: " 65A Sexual intercourse procured by intimidation, coercion and other non-violent threats (1) In this section: non-violent threat means intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force. (2) Any person who has sexual intercourse with another person shall, if the other person submits to the sexual intercourse as a result of a non-violent threat and could not in the circumstances be reasonably expected to resist the threat, be liable to imprisonment for 6 years. (3) A person does not commit an offence under this section unless the person knows that the person concerned submits to the sexual intercourse as a result of the non-violent threat." 26 Section 65A was introduced into the Act by Act No. 184 of 1987. In the Second Reading Speech that preceded such introduction, as Hansard records it, what Mr Unsworth said was this: "The ladder of offences created by the 1981 legislation reflects the community view that rape is essentially a crime of violence and that the greater the degree of physical violence, the more serious the offence. The violation of a woman's body is always a terrible and traumatic experience for her. One objective of the New South Wales laws is to ensure that women report these crimes. In some circumstances women are intimidated and coerced into sexual intercourse against their will by threats of harm other than violence. These cases have not come before the courts, because up until now it has been unclear whether the law covers threats which are not threats of physical violence. To enable these cases to come before the courts the Government is introducing a new offence so that a defendant can be convicted of sexual assault where the victim submits to sexual intercourse as a result of coercive or intimidatory conduct and could not in the circumstances be expected to resist the threat. The prosecution will have to prove that the defendant knew that the victim submitted to the sexual intercourse as a result of the coercive or intimidatory conduct. This new section 65A will carry a penalty of six years. Threats or force which include actual or threatened physical violence or force will continue to be charged under section 61 of the Crimes Act. An example of a situation where this new offence could be charged is an immigrant woman who speaks almost no English, works from home as an outworker, sewing piece-work. This provides her only income and she has dependent children. The man delivering work to her indicates that he will stop bringing work unless she submits to sexual intercourse with him. That woman submits to intercourse because she believes that, if she does not, she will be denied her only access to an earned income. She has been intimidated into submitting to sexual intercourse by a threat that her only source of income will be terminated - a threat that she could not in the circumstances be reasonably expected to resist. The question of what could not, in the circumstances, be reasonably resisted will be a question of fact for the jury." 27 Section 61I was not introduced into the Crimes Act until 1989 (by Act No. 198 of 1989), but prior to its introduction and at the time of the introduction of s 65A, the Crimes Act contained s 61D, and s 61D(1) was in terms similar to s 61I (although the earlier section provided for a lesser maximum penalty). Section 61D(3) was in terms similar to s 61R, which was introduced into the Crimes Act with s 61I in 1989 (again by Act No. 198 of 1989). 28 Hence, when s 65A was passed there was already in place a provision the equivalent to s 61R. 29 Having regard to the legislative history above reviewed, it seems to me that the presence of s 65A and the definition of "non violent threat" therein contained lend force to the submission that Mr Smith made for the appellant as to the meaning of "threats" for the purposes of s 61R(2)(c). If s 61R(2)(c) extended to threats not involving a threat of physical force, why introduce s 65A? 30 A further matter of significance in s 65A is that to prove an offence under that section the Crown must prove not only submission to intercourse as a result of a non violent threat, but also that the victim could not in the circumstances be reasonably expected to resist the threat offered. Section 65A adds an element which is not contained in s 61R. 31 The maximum penalty imposed for an offence proved under s 65A is only six years imprisonment compared with the maximum penalty of fourteen years imprisonment imposed under s 61I. 32 It would be a curious result indeed, having regard to the presence of s 65A, if the statute authorized the Crown to prosecute an offender for the more serious offence under s 61I following "a non violent threat". Particularly is this so bearing in mind that to prove that offence under s 61I the Crown was not also required to prove that the victim could not reasonably be expected to have resisted the threat as a statutory ingredient in the crime charged. 33 As I view the statutory scheme in place, and this was the scheme in place at the time of the commission of the alleged offence by the appellant, the statute did not have in contemplation for the purposes of s 61I that consent was vitiated by a threat such as that made by the appellant. The threat which he made was a threat to inform security that the complainant had been observed shoplifting and was hence "a non violent threat" within the meaning of s 65A(1). It was not enough for the Crown to have proved in order to establish an offence under s 61I that the victim was influenced to cooperate with the appellant by such a threat. Such a threat did not vitiate consent for the purposes of s 61I. The appropriate section upon which to have proceeded against the appellant would have been s 65A. 34 I therefore conclude that on the agreed facts it would not have been open to a jury to have convicted the appellant of the offence charged under s 61I, and it seems to me that there has been a miscarriage of justice in the circumstances of the appellant's conviction and sentence for the offence so charged. 35 This brings me to the offence charged under s 61L. The assault with act of indecency was identified by the sentencing judge as the conduct of masturbation initiated by the appellant. Here again it was necessary for the Crown to prove that the complainant was not consenting to what occurred. I add that s 61R does not apply to offences charged against s 61L. The Crown could have been in no better position to prove the offence charged under s 61L than it was to prove the offence charged under s 61I. It follows that there has been a miscarriage of justice in the circumstances of the appellant's conviction and sentence for the offence against s 61L also. 36 In my opinion therefore, the convictions and sentences for the offences charged under s 61I and s 61L of the Crimes Act should be quashed, and I propose orders to that effect.

The appeal against sentence 37 Whilst the grounds of appeal filed were not so limited, in his written submissions Mr Smith of counsel made it plain that the application for leave to appeal against sentence was limited to the sentence imposed for the offence of sexual intercourse without consent. Since I consider that the convictions and sentences for the offences against s 61I and s 61L should be quashed, I do not consider that the occasion arises to deal with the application for leave to appeal against sentence.

Formal orders proposed 38 1. That the appeal in relation to the conviction for sexual intercourse without consent and in relation to the conviction for assault with act of indecency be allowed.

3. That in lieu thereof, judgments of acquittal be entered. 39 KIRBY J: I agree with Studdert J. 40 HOWIE J: I agree with Studdert J.

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