By Dr Dale Smith
A man allegedly makes a 17-year-old perform a sexual act on him in the presence of her 16-year-old sister. He is prosecuted on the basis that neither sister consented. One argument that the prosecution puts to the jury is that any consent was negated by the man’s abuse of a position of authority or trust — he was a family friend and had known both girls since they were young.
In Gillard v The Queen  HCA 16, the High Court considered what the prosecution had to prove about the mind of this man in order to convict him of crimes akin to rape. Did he have to know that he was abusing his authority or trust? Or was recklessness about that enough (and, if so, about what)? The High Court’s unanimous answer casts new light on how the Court interprets modern statutes that define sexual offences such as rape.
The alleged abuse of authority
From 1993 until 2000, two sisters spent part of the summer school holidays staying with Michael Gillard at his Canberra home. Gillard knew both sisters, born in the early 1980s, from a young age. He had met their father while serving in the Army and the two men had become friends. It was subsequently alleged that Gillard had committed a number of sexual offences against both girls while they were staying with him in Canberra. Some of the offences were alleged to have been committed against the oldest before she turned 16, while others were alleged to have been committed after both turned 16. At his trial, he was convicted of some, but not all, of the offences that were alleged to have taken place before the older sister turned 16.
At issue in the High Court was his further convictions for four offences alleged to have occurred after both sisters had turned 16, including the incident described above. These involved three counts of engaging in sexual intercourse with the older sister without her consent and while knowing that she did not consent or being reckless as to whether she consented. This offence, known colloquially and elsewhere as ‘rape’, was defined under what was then s 92D of the ACT’s Crimes Act 1900 (ACT) and is now s 54(1) (the sexual offence provisions of the Crimes Act having been renumbered in 2001). The fourth charge was of committing an act of indecency in the presence of the younger sister without her consent and while knowing that she was not consenting or being reckless as to whether she was consenting, under what was then s 92J of the Crimes Act and is now s 60(1). (From now on, I will refer to the relevant provisions of the Crimes Act by their present numbers.)
To establish a lack of consent, the prosecution relied, in part, on s 67(1) of the Crimes Act. This sub-section lists a number of circumstances in which a person’s consent is negated for the purposes of sexual offences such as those contained in ss 54(1) and 60(1). One of those circumstances is where the consent is caused ‘by the abuse of the other person of his or her position of authority over, or professional or other trust in relation to, the person’ (s 67(1)(h)). The prosecution argued that the sisters did not consent to sexual intercourse or the commission of the act of indecency or, alternatively, that any consent on their part was negated under s 67(1)(h) given that the sisters had been entrusted to Gillard’s care during their visits to Canberra.
However, to make out the relevant charges, it was not enough for the prosecution to prove that the sexual intercourse and the commission of the act of indecency occurred without the consent of the respective sister. The prosecution also had to prove that Gillard knew that they were not consenting, or was reckless as to whether they were consenting. Under s 67(3) of the Crimes Act, if the prosecution could show that Gillard knew that consent had been caused by any of the means listed in s 67(1), he would be deemed to know that there was no consent. However, this sub-section refers only to knowledge that one of the s 67(1) circumstances obtains; it says nothing about recklessness.
This brings us to the three grounds of appeal that Gillard pursued before the High Court. Two raise general questions of law, and I shall focus on these. Gillard argued that, where one of the circumstances listed in s 67(1) is relied on to negate consent, s 67(3) entails that the prosecution must prove that the defendant knew that the complainant’s consent was caused by that circumstance. He also argued that the trial judge was wrong to direct the jury that the relevant offences would be made out if the girls’ consent was caused by his abuse of his position of authority, and he was reckless as to whether it was so caused. In a unanimous judgment, the High Court rejected the argument that knowledge of the accused’s abuse of his position was necessary, but accepted the argument that recklessness about that abuse was not sufficient and upheld the appeal on that basis (with the result that a new trial will need to be held with regard to the four charges that were the subject of the appeal).
Flawed consent or no consent at all?
Let’s start with the argument that the prosecution had to prove that Gillard knew that he was abusing his position of authority or trust. The argument began by noting that some of the circumstances listed in s 67(1) are not capable of negating consent at common law. For example, a ‘fraudulent misrepresentation of any fact’ (s 67(1)(g)) is not sufficient to negate consent at common law. In Papadimitropoulos v The Queen  HCA 74, the High Court held that only misrepresentations of the nature of the sexual act or the identity of the defendant would negate consent at common law. Gillard inferred from this that the role of s 67(1) is to allow for an accused to be found guilty in certain circumstances even though consent on the part of the complainant was present. In those circumstances, it cannot be necessary for the prosecution to prove knowledge of (or recklessness as to) non-consent, because consent is in fact present. This raises the question of what state of mind (or ‘mental element’) is required on the part of the accused in such a case, and Gillard’s suggestion was that it is the state of mind referred to in s 67(3) — that is, knowledge that a s 67(1) circumstance obtains. It follows that recklessness on the part of an accused is not sufficient to satisfy the mental element in such cases.
This is an ingenious argument, and one to which the High Court perhaps did not do justice. The Court noted (at ) that s 67(1) lists circumstances in which consent is ‘negated’, and then asserted that ‘[a] consent that is negated is no consent’. If that is right, then the inference that was central to Gillard’s argument — that s 67(1) allows for an accused to be found guilty in certain circumstances even though the complainant consented — is unsound. However, this seems too quick, since Gillard’s submission could be understood as denying that we should take the reference in s 67(1) to consent being ‘negated’ at face value, given that this produces results that are inconsistent with those that obtain at common law.
Nevertheless, there are good reasons to reject Gillard’s argument. That argument hinges on an assumption that s 67(1) should be read so as to be consistent with the common law. However, as the High Court has cautioned with regard to other jurisdictions (see, eg, R v Getachew  HCA 10 at –), one cannot simply assume that statutory provisions setting out sexual offences are intended to reflect the position at common law. Indeed, the most natural reading of s 67(1) is that it is intended to depart from the common law by expanding the range of situations in which consent will be taken to be absent. (This is, perhaps, what the Court was alluding to (at ) when it stated that consideration of the position at common law ‘fails to assist in understanding the relationship in this statutory scheme between s 67 and the offences to which it applies’.) That this is the preferable reading is supported by the complexity in the law that Gillard’s alternative reading would produce. On that alternative reading, the mental element of the offences contained in ss 54(1) and 60(1) varies depending on whether s 67(1) is engaged. Given the alternative bases on which the prosecution put its argument as to the mental element in Gillard, this would have necessitated two separate jury directions as to the mental element of those offences. In an area of law where it is already difficult to give clear jury directions, this would only increase the likelihood of confusion among jurors, and possibly of misdirections by trial judges.
Knowledge of abuse, or recklessness?
Gillard’s other argument fared better, with the Court agreeing that recklessness with regard to a s 67(1) circumstance is not sufficient to satisfy the mental element of the offences in ss 54(1) and 60(1). The Court noted that the Crimes Act does not define recklessness for the purposes of those offences, but suggested that the relevant provisions reflect reforms that were influenced by the decision of the House of Lords in DPP v Morgan  UKHL 3. In Morgan, recklessness was understood as involving indifference as to consent, and so covers cases where the accused does not care whether the complainant is consenting. The Court in Gillard embraced this understanding of recklessness for the purpose of understanding the relevant provisions of the Crimes Act. (Their Honours left to one side the question of whether recklessness also extends to a state of inadvertence as to consent, where the accused fails to consider whether the complainant is consenting.)
The Court then proceeded to note that the recklessness required to satisfy the mental element of the offences in ss 54(1) and 60(1) is recklessness as to the complainant’s consent. Moreover, recklessness as to the existence of a s 67(1) circumstance, or as to whether such a circumstance caused the complainant’s consent, is not enough, by itself, to establish that the accused was indifferent to whether the complainant was consenting (though it may be evidence of such indifference). It is, therefore, not enough, by itself, to satisfy the mental element of the offences in ss 54(1) and 60(1).
While this seems straightforward enough, it is in fact rather puzzling. Given that consent is negated if it is caused by a s 67(1) circumstance, why is recklessness (ie, indifference) as to whether consent is caused by a s 67(1) circumstance not equivalent to recklessness (ie, indifference) as to whether the complainant is consenting? In such a case, the accused does not care about the very facts that amount to a lack of consent on the part of the complainant.
One possible response is that the accused may not be aware that these facts amount to a lack of consent on the part of the complainant. It might therefore be possible that the accused cares very much about whether the complainant is consenting, whilst being indifferent to the question of whether the consent is caused by a s 67(1) circumstance.
Another possible response begins with the observation that s 67(3) states that knowledge on the part of an accused that the complainant’s consent is caused by a s 67(1) circumstance is deemed to amount to knowledge that the complainant is not consenting. The fact that s 67(3) lays down such a rule with regard to knowledge, but says nothing about recklessness, might be taken to indicate that Parliament intended recklessness to be treated differently in this regard: i.e. that recklessness as to the complainant’s consent being caused by a s 67(1) circumstance does not amount to recklessness as to whether the complainant is consenting.
However, the High Court does not appear well-placed to offer either response. Let’s start with the second response. The Court stated (at ) that s 67(3) is ‘declaratory’, in the sense that it simply declares the position that would obtain in any case:
As s 67(1) negates consent where a specified circumstance is the cause of the complainant’s consent, knowledge of the causal relation between the circumstance and the complainant’s consent is knowledge that the sexual intercourse or act of indecency was without consent. Section 67(3) serves to remove any doubt that the knowledge of which it speaks is inconsistent with a belief that the complainant was consenting.
Thus, whereas recklessness as to whether the complainant’s consent is caused by a s 67(1) circumstance does not amount to recklessness as to whether the complainant is consenting, knowledge that consent is caused by a s 67(1) circumstance does amount to knowledge that the complainant is not consenting. Moreover, the Court cannot appeal to s 67(3) to explain this difference, because it claims that this difference is not attributable to that sub-section (in the sense that the same result would obtain even in the absence of s 67(3)).
So why is recklessness treated differently from knowledge in this way? The first response sketched above does not help answer this question, either. Assume, for the moment, that it is true that an accused could care about whether the complainant is consenting even though he is indifferent as to whether the consent is caused by a s 67(1) circumstance. If this is true, it is because the accused may be unaware that the fact that the complainant’s consent is caused by a s 67(1) circumstance means that she is not consenting. But then why can it not be true, for exactly the same reason, that an accused could fail to know that the complainant was consenting even though he knew that the consent was caused by a s 67(1) circumstance? Conversely, if, as the Court states, knowledge that a s 67(1) circumstance caused the complainant’s consent is knowledge that the complainant is not consenting, why is recklessness as to whether a s 67(1) circumstance caused the complainant’s consent not recklessness as to whether the complainant is consenting? Perhaps knowledge and indifference function differently in this context, but, if so, the Court gives no indication of how or why they do so.
A ruling for the ACT, or elsewhere too?
The main issue in Gillard may not be of great practical importance in future. The Court expressed doubt about whether the issue of recklessness should have been left to the jury at all. It was also suggested (at ) that:
At a trial in which the prosecution relies on the causal relation between a s 67(1) circumstance and the complainant’s consent to sexual intercourse, or the act of indecency, to establish the absence of consent, the mental element of the offence is likely to be proved by establishing that the accused had the knowledge stated in s 67(3).
The idea seems to be that the prosecution does not need to fall back on claims about recklessness in cases where consent was caused by a s 67(1) circumstance, since it is likely that the accused will know that it was so caused (and so will know that the complainant is not consenting). If this is right, the primary question in Gillard — of whether recklessness as to a s 67(1) circumstance amounts to recklessness as to consent — may not be of much practical significance in future.
However, Gillard casts new light on the High Court’s earlier decision in R v Getachew  HCA 10. Getachew was concerned with somewhat similar provisions under Victoria’s Crimes Act 1958 (Vic). Under the Victorian Crimes Act, one way in which the mental element of rape is satisfied is if the defendant is aware that the complainant is not, or might not be, consenting. The Court in Getachew held that s 37AA(b)(i) of the Victorian Crimes Act means that, where an assertion is made or evidence is led that the accused believed that the complainant was consenting, awareness on the part of the accused that Victoria’s equivalent of a s 67(1) circumstance (‘a s 36 circumstance’) obtains does not amount to awareness that the complainant is not consenting. However, the Court also held that ss 37 and 37AA of the Victorian Crimes Act entail that, if no such assertion is made or evidence led, then awareness that a s 36 circumstance applies, or might apply, will suffice to establish awareness that the complainant is not, or might not be, consenting.
A very understandable reading of Getachew was that the default position is that knowledge or awareness of a circumstance that negates consent is not enough to satisfy the mental element of a sexual offence, subject to any statutory exception such as that created by ss 37 and 37AA of the Victorian Crimes Act. Gillard, however, suggests a very different reading of Getachew. On this alternative reading, the default position is that knowledge or awareness of a circumstance that negates consent is enough to satisfy the mental element of a sexual offence (though recklessness as to whether such a circumstance obtains is not). The position is different in Victoria because s 37AA(b)(i) requires the jury to be told that whether the accused was aware that a s 36 circumstance obtained is relevant to whether his alleged belief that the complainant was consenting was reasonable (which, in turn, is relevant to whether he was aware that she was not, or might not have been, consenting). This entails that awareness of a s 36 circumstance does not, of itself, amount to awareness of a lack of consent, and so displaces the default position. However, since, under ss 37 and 37AA, the jury direction must not be given where no assertion is made, or evidence led, that the accused believed that the complainant was consenting, something like the default position prevails in such a situation.
I say ‘something like the default position’ because the Court in Getachew suggested (at ) that, in this type of case, awareness that a s 36 circumstance might obtain is enough to satisfy the mental element of rape. This can be contrasted with the conclusion in Gillard that recklessness as to whether a s 67(1) circumstance applies is not enough to establish recklessness as to consent. Whether the position in Victoria follows from some distinctive feature of the Victorian Crimes Act, or whether it indicates that the High Court regards awareness of a possibility of non-consent as relevantly different from recklessness (in the sense of indifference) as to consent, remains to be seen.
AGLC3 Citation: Dale Smith, ‘Can Reckless Abuse of Authority Amount to Rape?: Gillard v The Queen‘ on Opinions on High (2 June 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/06/02/smith-gillard/>.
Dale Smith is a Senior Lecturer at Melbourne Law School.