Dale Smith, ‘Can Reckless Abuse of Authority Amount to Rape?: Gillard v The Queen‘ (2 June 2014).

The High Court has unanimously allowed an appeal against the ACT Court of Appeal’s decision to dismiss an appeal against multiple convictions for child sexual offences and rape by a family friend of the complainants. The Court quashed each of the four convictions and a new trial has been ordered for those counts. The ACTCA rejected arguments that the jury’s mixed verdicts were unsafe, that multiple and last minute changes to the alleged dates made the child sexual offence convictions unfair and that jury directions on the effect of the friend’s ‘position of authority’ on the issue of consent in the rape convictions were wrong.

The High Court accepted the first and third grounds of the appeal: that the trial judge erred in directing the jury that it could convict if satisfied that the complainant’s consent was caused by the appellant’s abuse of his position of authority and he was reckless as to that circumstance; and that the ACTCA erred in holding that consent was only an issue regarding count 13 (against s 92D now s 54(1) of the Crimes Act 1900 (ACT), ‘sexual intercourse without consent’). Under s 67(1), the mental element of these offences is satisfied by proof that the accused knew the complainant was not consenting, or proof that the accused was reckless as to the complainant’s consent. Recklessness as to a risk of a circumstance outlined in s 67(1) would not, in and of itself, be sufficient to establish reckless indifference to consent. The Court at [34] (emphasis in original) indicated that the direction stated:

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.

The Court held at [39] that the directions were material misdirections as they left open the possibility that the jury might find the appellant guilty ‘on satisfaction that the appellant was reckless as to the risk that … consent was occasioned by the abuse of his position of authority over her’. This misdirection affected each count and justified quashing the convictions on those counts.