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. Continue reading