CATCHWORDS CRIMINAL LAW - Sexual Offence ~ Adequacy of direction as to consent - Reckless indifference of accused as to consent. R. v. Crabbe (1985) 58 A.L.R. 417 R. v. Daly (19687 V.L.R. 257 WILLIAM MARK ELPHICK V. THE QUEEN A.C.T. NO.G82 OF 1985 CORAM: NORTHROP , SHEPPARD and SPENDER JJ. DATE : 19 MARCH 1986 PLACE: CANBERRA IN_THE FEDERAL COURT OF AUSTRALTA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) A.C.T.No. G82 of 1985 ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : WILLIAM MARK ELPHICK Appellant AND: THE QUEEN Respondent MINUTE OF ORDER CORAM: NORTHROP, SHEPPARD and SPENDER JJ. DATE OF ORDER:19 MARCH 1986 WHERE MADE: CANBERRA THE COURT ORDERS THAT: The appeal be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) ) ) DISTRICT REGISTRY GENERAL DIVISION A.C.T.No. G82 of 1985 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: WILLIAM MARK ELPHICK Appellant AND: THE QUEEN Respondent CORAM: NORTHROP, SHEPPARD and SPENDER JJ. DATE : 19 MARCH 1986. PLACE: CANBERRA REASONS F'OR JUDGMENT NORTHROP J.: I would ask Mr. Justice Spender to express his opinion first. SPENDER J.: William Mark Elphick was found guilty by a jury in the Supreme Court of the Australian Capital Territory of two offences. The first was that on 18 November 1984, he indecently assaulted Elizabeth Margaret McGhee. The second was that on that day he assaulted her and caused her actual bodily harm. On the first charge, he was liable to imprisonment for three years and in respect of the conviction for assault eccasioning actual bodily harm, the term of imprisonment to which he was exposed was five years. He appeals against both conviction and sentence. The circumstances accepted by the learned trial judge as being implicit in the jury's verdicts, were that towards the latter part of the afternoon of 18 November, the accused had fallen into conversation with Miss McGhee and persuaded her to go for a drive with him, ostensibly for the purpose of enabling her to make a telephone call. At the same time there was some conversation in relation to a suggestion of smoking marijuana. After Mr. Elphick had driven Miss McGhee in his car toa nearby park and parked in a _ semi-secluded position, they had a further conversation during the course of which both Mr. Elphick and Miss McGhee smoked some marijuana. The trial judge was satisfied that he attempted familiarities with her; familiarities which she rejected, and that she attempted to leave the car but was pulled back by his seizing her right arm, which caused a bruise to be apparent on that arm. The trial judge was satisfied that Elphick cut Miss McGhee with a knife, on the face, with a view to forcing her to engage in sexual familiarities with him and, further, that he placed his hand around her throat and squeezed her throat to the point where she became terrified that she would be gravely hurt, and thus, more amenable to the suggestion that he was making. The trial judge was satisfied that Mr. Elphick placed Miss McGhee's hand on his private parts, that he forced her to engage in masturbating him and, finally, required her to engage in oral intercourse with hin. The trial judge regarded the sexual offence as a very serious one, warranting, in his view, towards the maximum available, that is to say, three years in prison. Miss McGhee, in his view, suffered no serious physical injury. The appellant was born on 5 March 1956. He has a very lengthy criminal history. He has a history of psychiatric illness. He has had the benefit of many attempts at rehabilitation by welfare officers. In respect of the two offences, his Honour imposed on the charge of indecent assault a sentence of imprisonment of two years and six months. On the charge of assault occasioning actual bodily harm, he sentenced Elphick to imprisonment for a period of 18 months. He fixed a non-parole period of one year and six months. So far as the appeals against conviction are concerned, two grounds were pressed by counsel for Mr. Elphick. The first was that the trial judge, in his directions to them as_ to consent, left the jury or may have left the jury with the impression that there was some onus on him to establish a belief as to consent by the girl. The passages that are involved in this submission are these. The learned trial judge told the jury first:- "Now the accused must have intended to do what he did, so if he assaulted her, as the prosecutrix says he did, that must be an intentional assault. There is no suggestion in this case that anything he did was other than intentional, but it is still for you to be sastisfied that his mind and his will went with acts which he committed, if you accept that he did in fact commit them. But there is also another aspect of the matter. He must - he has, as one understands the case put forward on behalf of the accused, put to you that the prosecutrix was consenting. It is for the Crown to negative his belief that she was consenting in the circumstances. That means that you have got to be satisfied beyond reasonable doubt of the facts of the case and not only that, you have got to be satisfied beyond reasonable doubt that he did not believe that she was consenting." In my opinion, if the directions in relation to consent stopped there, then subject to the question of reckless indifference, there could be no fault of any kind in the directions given to the jury as to the nature of the Crown's obligation concerning consent. His Honour's observations to the jury continued, however: "The belief is available as a defence even though the basis of the belief is quite unreasonable. Provided the accused honestly believes that the complainant was consenting, you cannot convict him of the indecent assault." It is quite true that the use of the words, "as a defence", has inherent within it the possibility of suggesting that somehow it is for the accused to carry some onus' in that regard. The second sentence is correct as far as it goes. Its obvious purpose was to highlight the fact that the existence of an honest belief was sufficient. The manner of expression may, however, suggest a reversal of the true onus. I accept that this passage by itself may have some difficulties associated with it. However, later in the charge to the jury, the learned trial judge said:- "Really, the ail important question in respect of the indecent assault is this. You may have little doubt on all the facts, that the accused intended to commit an act of indecency upon or with the complainant. That is a matter for you, but you may have littie doubt about that. The all important question you may think in this case is whether he, in carrying out that intention, knew that he was acting without the complainant's consent to his action or was indifferent, recklessly indifferent, to whether she was consenting or not when, in fact, she was not consenting." And there follows another passage to which I have to make reference later. It seems to me that when one reads the whole of the charge, while there are criticisms that can be levelled at some aspects of it, the jury were properly informed of their obligation not to convict unless they were satisfied beyond reasonable doubt of the essential elements of both charges and that the onus lay on the Crown in respect of those elements from first to last. There are words used which, taken by themselves, may suggest to the contrary, but a fair reading of the charge as a whole, in my opinion, does not establish the first ground of complaint relied on by the appellant. The second ground relied on against conviction concerned the direction given by the learned trial judge as to reckless indifference. Counsel referred to the decision of the High Court in R. v. Crabbe (1985) 58 A.L.R. 417, where the Court held that the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or do grievous bodily harm must be a knowledge of the probability that his act will cause death or grievous bodily harm. Some comfort was sought to be gained from observations in that case. It was submitted that, in the light of Crabbe's Case, it would be wrong to direct a jury, as in R. v. Daly £1968] V.R. 257, to the effect that the Crown must prove either knowledge by the accused of non-consent, or a realisation that she might not be and determining to have intercourse with her whether she was consenting or not. However, it seems to me that those questions which were canvassed by counsel for the appellant have no bearing on the disposition of this case. What the trial judge told the jury was this:- "You have two questions to ask yourself. Did he know that she was not consenting? If the answer to that is yes, you need not consider the second question. If it is no, however, you still have to (ask) whether he proceeded with reckless indifference to whether she was consenting or not, she in fact not consenting. If you answer that question yes, then the prosecution has established the intent to commit the act of indecent assault." It seems to me, with respect, that that method of putting the matter to the jury was correct. There was no obligation on the learned trial judge to explain further what the words "reckless indifference" mean, and that seems to me to be so, particularly when one has regard to the fact that he was not asked to amplify that direction. The nature of the mental element based on indifference was not a live issue in this case and need not, it seems to me, be addressed in this instance. The jury were properly directed as to what the Crown's obligation was and 1t seems to me that this ground of complaint also is without substance. On the question of a sentence, it has not been suggested that any of the factors referred to by the learned primary judge in addressing the question of sentence was erroneous. While a sentence of two years six months out of a possible imprisonment for three years is, of course, towards the top of the range, in my view the indecent assault was a very serious. one and called for precisely that sort of sentence. In relation to the sentence of 18 months out of a possible five years for the assault occasioning actual bodily harm, constituted by the infliction of a wound to the cheek by means of a knife, again 18 months is certainly unobjectionable. The sentences were ordered to be run concurrently, as was appropriate since they arose out of the same series of incidents. In my opinion, no objection can be taken to any part of the sentence including the non-parole period fixed by the learned primary judge. In my opinion the appeal should be dismissed. NORTHROP J. : I would also dismiss the appeal for the reasons given by Spender J. SHEPPARD J.: I am of the same opinion. I only wish to add this for myself. In relation to the question of whether his Honour's direction as to reckless indifference to whether Miss McGhee was consenting or not, I would agree that what his Honour has said in the passage, which my brother Spender has read in the summing up, is all that his Honour was required to say, particularly bearing in mind that he was not asked by counsel for the appellant to say anything more. No application was made that there be any redirection or correction of anything that was contained in the summing up. It must be remembered that the realities of this case involved the use by the appellant of a knife in order to have his ww way with Miss McGhee. The jury, as his Honour found, must have been satisfied that the knife was used. Once that was established, it would seem to me that, realistically, consideration of the matter could have only followed one path, the path that the jury followed by reaching the conclusion that they should find the appellant guilty of both charges. What I wish to make clear, however, is that I, myself, have not come to a conclusion on submissions which were made by counsel for the appellant that the statement of this matter in the judgment of the Victorian Court of Criminal Appeal in Reg. v. Daly C19681 V.R. 257, is now incorrect in the light of what has been decided by the High Court in Reg. v. Crabbe (1985) 58 A.L.R. 417. Essentially what counsel submitted to us was that the relevant passage in the judgment in Daly's case 1s no longer correct. The passage is as follows (pp.258-9):- "Furthermore, this involves, as it appears to us, that the Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting, or else realised she might not be, and determined to have intercourse with her whether she was consenting or not". What counsel has submitted is that the words: "or else realised she might not be", are no longer apposite in the light of Crabbe's case and should be replaced with some such words as: "or else realised that she was probably not consenting". 10. In my view this is not a case in which we need to decide whether counsel's submission is correct or not. The submission must await a more appropriate case in which it can be raised and ruled upon. I agree, as I say, that the appeal should be dismissed. NORTHROP J.: Accordingly the order of the court is that the appeal he dismissed. cr Dated \\ Maw \WHak .