R v Karsten PETERSEN

The Queen v O'Connor (1980) 146 CLR 64 DPP v Majewski [1977] AC 443 Bernard v The Queen 45 CCC (3d) 1 R v Grant (2002) 55 NSWLR 80 CASES CITED: R v Banditt (2003) 151 A Crim R 215 Banditt v The Queen [2005] 223 ALR 633 R v Gulliford 920040 148 A Crim R 558 R v DJB [2007] NSWCCA 209 Holland v The Queen (1993) 68 A Crim R 176 DPP v Morgan (1975) 2 All England Reports

TEXTS CITED: Rooke and Ward on Sexual Offences

PARTIES: The Crown Karsten Petersen

SOLICITORS: NSW DPP Nyman Gibson Stewart

JUDGMENT 1 HIS HONOUR: This judgment concerns how a jury should treat evidence revealing that an accused was intoxicated at the time he allegedly committed an offence of sexual intercourse without consent, or indecent assault. 2 The ultimate issue is whether I should direct the jury in this case that in considering whether the accused knew or was reckless as to whether the complainant was consenting, I should tell the jury to ignore evidence of the accused's intoxication. The issue is a very difficult one. It concerns an area of law where, in a number of jurisdictions, principle has given way to policy, pragmatism and political expediency. For that reason it is difficult to use established legal principle to resolve the issue. 3 The idea that crimes can be divided into those of basic and specific intent is one which is widely acknowledged in the common law world. Previously the High Court in The Queen v O'Connor (1980) 146 CLR 64 rejected the position taken by the House of Lords in DPP v Majewski [1977] AC 443 where the House of Lords held that evidence of self induced intoxication could not be taken into account in crimes of basic intent. For many years that represented the law in New South Wales, but in 1996 part 11A of the Crimes Act was introduced. 4 That part now requires that where intoxication is raised I must decide whether an offence is one of specific intent or general intent because s 428D provides that,

"In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct… if the intoxication was self induced - cannot be taken into account".

5 The categories of specific intent offences and basic intent offences are problematic and it is not always immediately apparent into which category a particular offence falls. Perhaps part of the problem is as explained by Dixon CJC in Bernard v The Queen45 CCC(3d)1, at 10:

"The categories of 'specific' intent on the one hand and 'basic' or 'general' intent on the other hand have evolved as an artificial device whereby evidence, otherwise relevant, is excluded from the jury's consideration...It is said, however, by those who support the classification that as a matter of policy, consideration of evidence of intoxication must be excluded. Indeed, a notable feature to be found in the analysis of many of those that support restricting the jury's use of evidence relating to drunkenness is the concession that while principle and logic lead in an opposite direction, the policy of protection of the public requires that principle and logic should yield..."

6 Closer to home, Wood CJ at CL has made a similar point. In R v Grant (2002) 55 NSWLR 80 His Honour said,

"The decision in DPP v Majewski, which was not regarded with favour in R v O'Connor, but which now has immediate relevance since it was the source of the amending legislation, is, in many ways, troubling. It accepts the existence of an illogicality, in legal principle, in drawing a distinction between offences of general and specific intent, so far as the effects of intoxication are concerned".

7 Despite the difficulty in determining whether an offence is one of general or specific intent and despite the difficulty of determining whether the accused is entitled to rely on self induced intoxication as explaining why he might have made a mistake as to whether the complainant in this case was consenting, it is a difficulty with which I must grapple as I have to direct the jury one way or the other. 8 Let me put this issue in context. The Crown case is largely undisputed. The complainant has given evidence that she fell asleep in a house in which a number of other people were staying and woke up to find the accused's hand either in or near her genitals. She says his finger was inside her genitals. We know from Mr Dailly's opening that the accused will give evidence and, although he will deny his finger penetrated the complainant's genitals, he will accept that his hand was in that area. 9 In Mr Dailly's opening he indicated that his client would concede, indeed wholly accepted, that at the time he placed his hand where he placed it, the complainant was asleep and was thus not consenting to what he did. It is his case that he has made a mistake. Mr Dailly said this to the jury:

"Perhaps his misconception as we know now that she was not receptive and awake was partly due to his intoxication. We know now he was horribly mistaken".

10 After Mr Dailly had finished addressing the jury I raised with him the correctness of the suggestion that it would be relevant for the jury to take into account his client's intoxication in determining his client's guilt. A brief discussion ensued but as I did not want to delay the jury, resolution of the matter was postponed until this morning. The jury was asked to come in late, argument has just concluded and the jury will be here very shortly. 11 Again, I am anxious not to delay them and so will deliver this Judgment ex tempore, acknowledging that whilst reserving Judgment might allow me to better express myself, it would not lead to a different conclusion. 12 The strongest point that Mr Dailly made in favour of the approach he urged me to accept flows from the Judgment of the High Court and the Court of Criminal Appeal, flowing from the conviction of a Mr Banditt. He faced trial in relation to an offence committed after part 11A was introduced into the Crimes Act. He was convicted and on appeal to the Court of Criminal Appeal challenged the trial judge's directions in relation to recklessness. 13 In the Court of Criminal Appeal judgment R v Banditt(2003) 151 A Crim R 215, and also in the High Court Judgment, Banditt v The Queen [2005] 223 ALR 633, portions of the trial judge's summing up to the jury are quoted. I will not myself quote them but will merely note that the trial judge specifically directed the jury that in determining whether the accused knew that the complainant was not consenting, or was reckless, they should take into account his intoxication. 14 Not only was this direction quoted without adverse comment by any of the three judges of the Court of Criminal Appeal, or the four judges of the High Court, but James J who delivered the leading Judgment in the Court of Criminal Appeal appears at one stage to have specifically endorsed the accuracy of that direction. 15 On the other hand, it must be borne in mind that the issue which the Court of Criminal Appeal and the High Court was focused on was not the accuracy of that aspect of the trial judge's direction. Instead the appeals concerned the accuracy of the trial judge's directions on recklessness. 16 There are other decisions which are however directly on point. In R v Gulliford (2004) 148 A Crim R 558 at para 127 Wood CJ at CL said:

"In any event, s 428D of the Crimes Act provides that in determining whether a person had the mens rea for an offence other than one of specific intent, evidence that the person was intoxicated cannot be taken into account, if it was self-induced. Clearly the intoxication of the appellant in the present case was self-induced. The offence charged in s 112(2) of the Crimes Act is not included in the list of offences contained within s 428B as an offence of specific intent (that being defined as "an offence of which an intention to cause a specific result is an element"); nor is s 61I or s 61P included in that list. The decision in Holland v The Queen (1993) 68 A Crim R 176 would also support that outcome."

17 Later, in R v DJB [2007] NSW CCA 209, where the appellant was charged with three counts on an indictment, counts 2 and 3 being offences of sexual intercourse without consent in circumstances of aggravation, McClellan CJ at CL, with whom the other members of the Court agreed, said, at para 68:

"Counts 2 and 3 are not offences of specific intent. They are not included in the table and do not otherwise involve an intention to cause a specific result (s428B(1)). Accordingly, leaving aside s 428C(2)(a) a direction in relation to intoxication is not required."

In that case the trial judge had given a direction that the jury could take into account evidence of intoxication when considering count 1 on the indictment, and so it is significant that the Court of Criminal Appeal held that such a direction was not required for offences of sexual intercourse without consent, aggravated in that case, because they were offences of basic intent. 18 The reference to "the table" is a reference to s4(2)(b) of the Crimes Act. There are two important points to note. First, that the table includes within it, as a crime of specific intent, an offence of assault with intent to have sexual intercourse, but not either of the two offences charged in the present case. On the other hand the relevance of this circumstance is qualified by the opening words of 428B(2), where there is a reference to "without limiting the generality of subsection (1)", and a statement that those offences in the table are "examples" of specific intent offences. 19 It will be remembered that Holland v The Queen (1993) 68 A Crim R 176 was referred to in R v Gulliford as supporting the conclusion that an offence of sexual intercourse without consent is a crime of basic intent. That part of the judgment of Mason CJ, Brennan D, and Toohey JJ, which suggests that is to be found at page 98 where their Honours say:

"Of course the relevant intention is not a non-specific intention to do an act and the intended act either penetrates the vagina or would have penetrated the vagina but for the impediment. It is a different kind of intention from the intention involved in an attempt to commit an offence, the elements of which include a result caused by the act, thus attempted murder requires a specific act, the intent to cause the death of the victim or of some other person because the relevant intent relates to the death caused by the offender's act."

20 Murder has always been an offence of specific intent and is included in the table in s 428B, but as those decisions and others I will shortly refer to indicate sexual intercourse without intent has always been a crime of basic intent. 21 The idea that sexual intercourse without consent is a crime of basic intent is not an Australia peculiarity. In DPP v Morgan (1975) 2 All England Reports Lord Simon of Glaisdale said, at 365:

"This brings me to the fourth question, namely whether rape is a crime of basic or ulterior intent. Does it involve an intent going beyond the actus reas? Smith and Hogan say No."

22 The reference to Smith and Hogan is of course reference to a well respected textbook. In Majewski itself the idea that sexual intercourse without consent is a crime of basic intent is also accepted. 23 It appears in the limited time that counsel have had to research the matter that that still represents the law of England. The Crown Prosecutor referred me to a textbook, Rooke and Ward on Sexual Offences, Law and Practice published in 2004, at page 61:

"Under the old law Rape was held to be a crime of basic intent. Accordingly the principles laid down in DPP v Majewski applied and self-induced intoxication could not be used as the basis of a denial of mens rea".

The authors go onto note that the position has not been changed by statutory amendment. 24 In Canada a similar position was reached. When looking at Canadian Authority there is necessarily some caution to be exercised because of what appears to be the different statutory basis of the offence of sexual intercourse without consent under the Canadian Criminal Code. But with that qualification, it is helpful to note that in Bernard v The Queen, the Canadian Supreme Court held that sexual intercourse without consent was a crime of basic intent. 25 Mr Dailly referred me to the position which applies where self defence is raised to a crime of basic intent such as assault. He pointed out that self induced intoxication was nevertheless relevant. This does point out the lack of principle surrounding part 11A, at least insofar as it is compared with Division 3 of part 11. But the illogicality, if there be one, is one which is imposed by statute. And it is my task to interpret part 11A. Indeed, the circumstances that intoxication continues to be relevant in self-defence is a matter of some assistance in determining the position in the present case. But I note the absence in part 11A of any statutory exception related to any defence raised by an accused. 26 I should refer to two second reading speeches. The first is the second reading speech when part 11A was introduced. Parts of it are conveniently to be found in the decision of Grant. In the passage quoted at para 28 of Grant, this appears:

"The proposed amendments therefore essentially reflect the approach taken in Majewski, as well as that taken by the Commonwealth Criminal Code Act 1995, which enacts the principles of the Model Criminal Code."

27 The reference to the Model Criminal Code is interesting. The Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General published its report, entitled Chapter 5: Sexual Offences Against the Person in 1999, although a discussion paper had been published earlier. 28 Caution, has to be exercised when looking at the Model Criminal Code because the sexual assault provisions in that Code must only be interpreted in the light of the Code's general principles of criminal responsibility, which were not adopted in New South Wales. 29 The other second reading speech is a more recent one. When introducing the Crimes Amendment (Sexual Assault Offences) Bill 2007 (the provisions of which do not apply to this case because the provisions were not retrospective), the Attorney General said this:

"The reference to the exclusion of self-induced intoxication as a relevant circumstance simply replicates the current provisions in Division 11A [sic] of the Crimes Act 1900 in relation to intoxication. It serves as an important reminder that self-induced intoxication cannot be taken into account in relation to the mens rea for these sexual assault offences."

30 Thus at least the Attorney General believed that self-induced intoxication could not be taken into account for offences of the type with which this present accused has been charged. I have come to a similar view. 31 I am conscious that the decision I have reached means that the Judge who directed the jury in Banditt appears to have done so contrary to the view to which I have come. I am also conscious that the view to which I have come is one which did not occur to either of the Courts which considered Mr Banditt's appeals. For that reason alone, I have given anxious consideration to the way which I should resolve the present matter. It is no small step to say that the Court of Criminal Appeal and the High Court may have overlooked an important aspect of the trial judge's directions, although it is important to note that that aspect of the directions was not the subject of argument on appeal. 32 The two Court of Criminal Appeal cases to which I referred, namely, Gulliford and DJB are, however, cases where the relevant ground was argued and are directly on point. They hold, consistent with the view taken in other jurisdictions, that offences of sexual intercourse without consent are crimes of basic intent. The same result necessarily follows for offences of indecent assault. In those circumstances, I look to s 428D, which provides that evidence of intoxication of the accused cannot be taken into account. It follows that Mr Dailly's opening requires correction by me. It follows that the jury must perform a rather artificial exercise. They must take the accused as he was, except they must pretend - and I used the word 'pretend' after consideration - that the accused was perfectly sober. 33 I will direct the jury accordingly.

19/02/2008 - Typographical error - Paragraph(s) 22

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