R v Getachew - The High Court brings a little clarity, and a little confusion

R v Getachew [2012] HCA 10 was handed down yesterday and, as expected, the appeal was allowed. The behaviour of the court on the appeal made this aspect of the decision clear from the outset. The real question was how far they would go. In a surprising turn of events, the court overturned the point of principle the Court of Appeal decided in Worsnop but preserved the point of principle decided in Getachew, and allowed the appeal on the narrow Pemble ground. This approach has raised as many questions as it answers.

The continued unhappy state of the law of consent

The High Court has listed the appeal hearing in R v Getachew for the end of February and the outline of submissions for both the DPP and the accused are now available on the High Court website. It looks like the DPP is using the occasion to take a shot at the earlier authority of Worsnop, as it argues that the Victorian Court of Appeal has misstated the law with its focus on belief in consent, rather than the statutory language of knew that the complainant was not or might not be consenting.

Despite that development, the Court of Appeal is still handing down decisions dependent on the line of authority developed in Worsnop. The latest is GBD v R [2011] VSCA 437, a decision which highlights the absurdity of the current state of the law in this area. In a strongly worded judgment, Harper JA said of the principal offender that he

abandoned any concept of decency he might otherwise have had. The appellant was some distance behind; but his conduct was nevertheless such that nobody with any sense of responsibility to others would have engaged in it. The conduct of both men was abhorrent to all notions of civilised behaviour.

The principal offender plied two young girls of 13 and 14 with significant quantities of speed before engaging in extensive sexual conduct with them. GBD was a friend of the principal offender and was invited to join in this behaviour. The issues at trial concerned his belief in the age of the girls and his belief in consent. Ashley JA granted leave for the appellant to make a Worsnop argument, and the Crown, consistent with the state of the law as it stands under Worsnop initially conceded the point. At the leave hearing, Tom Gyorffy SC, fresh from writing the DPP's submissions to the High Court for Getachew, sought to withdraw that concession and argue that Worsnop was wrongly decided. Sadly, this point received only the following treatment:

After hearing argument, the Court refused the application.

It is disappointing that such a significant issue is dismissed in such a summary fashion.

On the substantive issue of whether to allow the appeal, Harper JA stated:

Section 36 of the Crimes Act 1958 provides that, for the purposes of those subdivisions of the Act which deal with rape and indecent assault, incest, sexual offences against children and sexual offences against persons with a cognitive impairment, consent means free agreement. Furthermore, the section goes on to provide that circumstances in which a person does not freely agree to an act include those in which the person is so affected by drugs as to be incapable of freely agreeing. Emphasis is given to the importance of these provisions by s 37A, which sets out the objects of the relevant subdivisions. These are (a) to uphold the fundamental right of every person to make decisions about his or her sexual behaviour, and to chose not to engage in sexual activity; and (b) to protect children, and those with cognitive impairments, from sexual exploitation.
26 Those objectives were trashed on 13 December 2008. That is strong language, but it is used deliberately. To groom two girls, a mere 14 and 13 years of age respectively, with alcohol and drugs, to then take them to a private home and, in the laundry of that house, inject them with more drugs, and then to indulge with them in a wide variety of sexual acts over an extended period, is exploitation of the worst kind. It is no excuse that they were thought to be a little older. They were strangers. The law should strongly discourage any adult in those circumstances from taking risks.
27 Y has been punished for his part in this affair. The gravity of the appellant’s misconduct was considerably less. On the other hand, the appellant knew something of the episode in the laundry, and either knew of the general nature of the activities being indulged in by Y, or deliberately shut his eyes to them. There being no evidence to the contrary, it was open to her Honour to find for sentencing purposes – indeed, the conclusion was inevitable – that he knew that the drugs were administered to the complainants for the purpose of inducing their consent to whatever acts, however gross, he and (more especially) his co-offender, were minded to subject them.
28 It was in these circumstances that he, on his own admission, digitally penetrated the vagina of one of the two victims. The jury might well have concluded that she did not give her free consent. Anyone with a normal capacity for insight would have known for a certainty that this was so. Even assuming that the appellant was not endowed with the usual capacities of humankind, and believed that she was consenting, he must have known that she might not be giving her free consent to that act; that was the point of what must have been significant expenditure on the acquisition of speed, and of her subsequently being injected, by the appellant’s friend and to the appellant’s knowledge, with methylamphetamine. Nevertheless, on the authority of Worsnop, the law cannot, so long as the Crown fails to prove the absence of his belief in her consent, convict him. Accordingly, the appeal must on this ground be allowed and the conviction on count 19 must be quashed. But, in my opinion, the gap in the law which was identified in Worsnop cries out for the remedial intervention of the legislature.

As far as I am concerned, paragraph 28 perfectly demonstrates how appellate authority in this area has gone wrong. Despite section 36section 38, introduces an unjustified limitation on the efficacy of the definition of consent in section 36 and effectively introduces a fifth element of disproof of belief in consent which is not found anywhere in the language of the offence, and is barely discernible in the language of section 37AA. As Harper JA says, this is a matter that cries out for intervention. Time will tell whether the respite from this unsatisfactory state of the law comes from the High Court or the Victorian Parliament.

Special leave report: R v Getachew

As Jeremy Gans mentioned in the comments to the previous post, the High Court has granted special leave to appeal Getachew v R. The transcript is available here. It is fascinating reading, starting with this exchange immediately after counsel make their appearances:

HEYDON J: Mr Boyce, I think it might be convenient if we hear from you first.
MR BOYCE: Thank you. Your Honours, it is submitted in this case that special leave should be refused because the applicant’s grounds have no point of principle worthy of a grant of special leave.
HEYDON J: I agree with that, but it does seem an extraordinary judgment by the Court of Appeal.

Chris Boyce did his best to defend the decision, stating that it was a natural extension of the principle from R v Worsnop and consistent with authority in Victoria, but Heydon and Bell JJ weren't convinced. Bell J also made some remarks that could cast doubt on the reasoning that underlie Worsnop, as she questioned whether an odd-on belief that a person is awake and hence consenting could rebut a mens rea of "aware that the person is not consenting or might not be consenting" (emphasis added). She did, however, qualify her remarks and indicated that they were not concerned with the correctness of Worsnop. Ultimately, the High Court granted special leave for the DPP to appeal the decision, without calling on the DPP to make any submissions.

It looks like the Crown will be running two grounds on the appeal. The first concerned the need for s37AA and s37AAA directions at all in the circumstances, when the accused's defence is that he wasn't there, and hence consent or awareness of consent were not real issues. This invites the court to further explain Pemble and the opening words to s37AAA on when the direction is necessary. The second argument is that the judge's original direction was entirely correct. I've written about my views on the second point previously, here.

In the circumstances, I'd think that the Court of Appeal would need to hold any further appeals that raise this issue in reserve until the High Court hands down its judgment, as otherwise there could be a long string of cases ordering retrials in circumstances where the High Court later decides that the reasoning underlying the decisions is erroneous. More difficult is to know what happens to Roberts and Neal, since they relate to the same point, but weren't the subject of the special leave application. The retrial in Neal can probably stand on its own feet, but Roberts is far more similar to Getachew and, if Getachew is overturned, that should logically take the retrial order in Roberts with it. Maybe the Crown will seek the join the matters later in some way?

The new proviso - Just like the old one

One of the reforms introduced by the Criminal Procedure Act 2009 was a change to the structure of what had previously been standard form criminal appeal grounds. The old statute required an appellant on a conviction appeal to establish one of three things:

• That the verdict was unreasonable or unsupported by evidence;
• That there was a wrong decision on a question of law; or
• That on any other basis there was a miscarriage of justice.

These three grounds were then qualified by the proviso that the appeal would not be allowed if the prosecution showed that there was no substantial miscarriage of justice. Under the new Act, the proviso was folded into the substantive appeal grounds, so that the court must allow the appeal if and only if:

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.

When the possibility of consent is (or is not) enough

Since 1991, s36 of the Crimes Act has contained an expanded statutory definition of the circumstances in which a person is deemed not to consent to sexual intercourse. Many of these are common sense propositions and indeed, I've wondered from time to time why it is that Parliament needs to tell us, for example, that a person who submits to intercourse under duress, is taken not to consent. But it is there and courts need to make sense of it.

In Getachew v R [2011] VSCA 164, the court curtailed the operation of s36, by effectively confining its operation to the factual question of whether a person is consenting, and not the allied question of whether the accused was aware the complainant was not or might not be consenting.

"Irrationally generous"

Yesterday the High Court handed down its decision in Stubley v Western Australia [2011] HCA 7, which concerns the admissibility of tendency evidence (or, as WA calls it, propensity evidence) or relationship evidence in a sexual offence proceeding. The case, in broad terms, is fairly straightforward. Several years after ceasing treatment, 2 women alleged that their psychiatrist, Stubley, had sexual intercourse with them during therapy sessions. They claimed that they either actively communicated their lack of consent, or that their acquiescence was not consent, but was improperly induced by threats and other misconduct. The prosecution sought to lead evidence from 3 other women who also alleged that Stubley had sexual intercourse with them in the context of a professional-client relationship. The defence case did not dispute the allegations of sexual intercourse, but relied on consent or belief in consent. The defence denied that consent was obtained by threats.

Setting the law back to the 1800s

First off, I want to congratulate the Human Rights Law Resource Centre for its excellent coverage of the Momcilovic appeal over twitter. In the coming days, I'll sit down with the transcript and give my thoughts on which way the wind was blowing at the hearing. In the meantime, I recommend you all get on Twitter, do a search for #momcilovic, and read the HRLRC's summaries. It's a credit to them that they managed to compress the gist of several party's arguments into the Twitter character limit.

I now want to turn to a brief article I saw in the MX on the way home, which is reproduced in most of the Herald Sun's companion papers. The article warns that "UNDERAGE girls in NSW could be charged with being an accessory to their own rape due to a legal loophole" (link here)

The article goes on to state:

Recklessness and indifference

The law recognises a significant difference between intention and recklessness. An intention involves an actual desire to achieve an outcome, while recklessness involves an awareness that conduct is likely to produce a certain result. The High Court's classic judgment in Crabbe v R (1985) 156 CLR 464 states that: