R v Getachew

The complainant spent the night of 29 June 2007 drinking in Melbourne with three others (of whom one was the accused). In the early hours of the next morning, the group went to a suburban house, where the complainant and the accused lay on a mattress on the floor, and the other two shared a bed in the same room. The complainant gave evidence that the accused touched her twice and that she asked him to stop both times. Having fallen asleep, the complainant later awoke to find the accused lying behind her, her clothing disarranged and the accused penetrating her.

The accused was charged and tried in the County Court of Victoria. The accused's defence was that he had not penetrated the complainant. He did not give evidence in the trial, and there was therefore no direct evidence as to his mental state.

Section 38 of the Crimes Act 1958 (Vic) provides that a person commits rape if he or she intentionally sexually penetrates another person without that person’s consent while “being aware that the person is not consenting or might not be consenting”.

At trial, the trial judge directed the jury that the accused had not raised as an issue that the accused thought or believed that the complainant was consenting to penetration. The trial judge also directed the jury that they could be satisfied that the accused was aware that the complainant was not or might not be consenting if the accused was aware that the complainant was or might be asleep at the time of penetration. The accused was convicted and subsequently sentenced to four years and nine months’ imprisonment.

The accused successfully appealed, the Victorian Court of Appeal holding that the trial judge should have directed the jury not to convict the accused unless persuaded beyond reasonable doubt that the prosecution had excluded the possibility that the accused may have believed that the complainant was consenting, even though he knew that she was or might be asleep.  In doing so, the Court of Appeal found that because the woman had not protested while her clothing was disarranged, it would have been open to the jury to conclude “that it was a reasonable possibility that the [accused] believed that she had finally consented” to the sexual act.

In R v Getachew [2012] HCA 10 the High Court allowed the prosecution’s appeal, with the result that the accused’s original conviction stands.

The High Court held that the Court of Appeal’s reasoning – that the accused may have believed that the complainant had finally consented because she had not protested when her clothing was disarranged – depended upon it being open on the evidence to conclude that the accused may have believed that the complainant was woken by her clothes being removed (or was sufficiently alert to realise what was happening when this occurred). Only if the accused believed that she was aware when these things were done could he have thought that she was consenting. 

However, the complainant’s evidence was that she was asleep until awoken by the accused’s penetrating her. Her evidence was that she was asleep while the accused disarranged her clothing, and that she only awoke when he “thrust into” her.  The accused did not assert that he thought he had woken the complainant, whether by his pulling at her clothing or otherwise.  In the absence of any evidence from the accused to this effect and in the absence of the matter having been put to the complainant in cross-examination, there was no basis on which the jury, or the Court of Appeal, could have concluded that the complainant was awake when her clothing was disarranged. The Court of Appeal was therefore wrong to conclude that there was evidence that raised any question about the accused’s belief in consent.

It was only if it had been asserted, or there was some evidence led at the trial, to the effect that the accused believed that the complainant consented to the penetration that any further question about the accused’s belief as to consent arise.  Absent such an assertion or such evidence, demonstrating that the accused knew that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting.

Phonographic Performance Co of Aust Ltd v Commonwealth

In 1912 the Commonwealth Parliament enacted the Copyright Act 1912 which declared that the Imperial Copyright Act 1911 was in force in Australia.  Pursuant to the Imperial Act copyright in records was conferred upon the owner of the “plate” from which the record was made.  The copyright included the sole right to perform in public the sound recording embodied on the record.  The corollary of that right was the ability to charge a fee for licensing a user to broadcast the sound recording over radio, and the right to sue for infringement of that right.

On 1 May 1969 the Commonwealth Copyright Act 1968 came into force.  Section 109 of that Act enables radio broadcasters to exercise a “statutory licence” to broadcast sound recordings in respect of which copyright existed by virtue of the Imperial Act, by taking away the copyright owner’s right to sue for infringement where the broadcaster has paid (or give an undertaking to pay) a royalty in an amount determined by the Copyright Tribunal.  The Copyright Act 1968 further provided that the Copyright Tribunal could fix the amount payable by a radio broadcaster to copyright owners in the aggregate, but capped that liability to 1% of that broadcaster’s gross annual revenue (in the case of commercial broadcasters) or 0.5c per head of the Australian population (in the case of public broadcasters).

The Phonographic Performance Company of Australia Ltd and various copyright owners commenced proceedings in the High Court challenging these provisions on the basis that the caps on royalties introduced by the Copyright Act 1968 authorised the acquisition of property without providing just terms, contrary to the requirements of placitum 51(xxxi) of the Constitution.

In Phonographic Performance Company of Australia Ltd v Commonwealth the High Court unanimously (although in three separate judgments) held that there was no relevant acquisition of property.  The Court held that the effect of the Copyright Act 1968 was to terminate the copyrights subsisting as at 1 May 1969 under the Imperial Act, and to bring into effect a new copyright.  There was no challenge based upon the termination of the copyrights under the Imperial Act.  To that new copyright in respect of sound records there was immediately attached the compulsory statutory licensing system, including the cap upon the royalties payable thereunder.  There was therefore no diminution in those rights; they were always subject to the licensing system. 

Having rejected the argument that there had been a relevant acquisition of property, the question of whether “just terms” had been provided did not arise.

Judgments to be delivered in the High Court of Australia

The High Court will deliver judgment in five cases next week.

On Wednesday, 28 March 2012 it will deliver three judgments: 

Phonographic Performance Company of Australia Limited v Commonwealth of Australia – which deals with the question of whether or not certain statutory licence provisions in the Copyright Act 1969 (whereby radio stations are entitled to broadcast sound recordings upon payment of a fee determined by the Copyright Tribunal) constitute an acquisition of property without providing just terms, contrary to section 51(xxxi) of the Constitution.

BBH v The Queen – which deals with whether evidence of an event, the source of which was a witness who proffered an innocent explanation for that event, could be used to prove an unnatural relationship between the accused and the complainant, where the complainant gives no evidence about any such event.  In this case the trial judge admitted evidence from the complainant’s brother who gave evidence that when he, the complainant and the accused were on a camping holiday he returned to the campsite to find the complainant undressed from the waist down and bent over with the accused’s hand on her waist and his face close to her bottom. The brother agreed that the incident could have been consistent with the accused examining the complainant for a bee sting or ant bite. The complainant gave no evidence about the incident.

R v Getachew – which considers the burden of proof in relation to the mental element for the offence of rape where the complainant was asleep at the time of penetration, and the evidence is silent as to whether or not the accused knew the complainant was asleep, ought to have known the complainant was asleep, or thought the complainant was awake.

On Thursday, 29 March 2012 the High Court will deliver judgment in Commissioner of Taxation of the Commonwealth of Australia v Bargwanna.  The question in this case is whether, in determining an application by a charitable trust for endorsement as an income tax exempt entity, the fact that the application of some of the trust funds is for purposes other than public charitable purposes results in the trust not being entitled to tax exempt status.

Finally, on Friday, 30 March 2012 the High Court will deliver judgment in Baiada Poultry Pty Ltd v The Queen.  This case will (hopefully) examine the extent to which a company can discharge its obligation to do what was reasonably practicable to provide and maintain a safe work site by relying on the expertise of its independent contractors (in this case, a haulage company which transported crates of chickens, and a labour-hire company that provided chicken catchers).

Next week in the High Court of Australia

Next week the High Court of Australia will hear argument in four cases.

First up on Tuesday, 27 March 2012 is Crump v State of NSW which will address the validity of section 154A of the Crimes (Administration of Sentences) Act 1999.  In 1974 Crump and a co-offender were sentenced to life imprisonment for murdering Ian Lamb, and for conspiring to murder Virginia Morse.  Justice Taylor recommended that Crump never be released.  As a result of subsequent amendments to the sentencing regime in NSW Crump applied for, and eventually succeeded in obtaining, a re-determination of his sentence so that he was required to serve a minimum sentence of 30 years in prison and thereafter became eligible for parole.  Following that re-determination, however, section 154A was enacted.  This section provides the Parole Authority with the power to release a prisoner the subject of a not for release recommendation, but only if the prisoner lacks the physical ability to harm any person, or is in imminent danger of dying, and in addition poses no risk to the community.  Crump does not satisfy these conditions.  Whereas according to the re-determination of his sentence he was now eligible for parole, section 154A had the effect that he could not be released, except in limited circumstances that did not apply to him.  At issue is whether the Parliament of a State has the power to pass a law such as section 154A that has the effect of varying or altering the operation of judgment of the Supreme Court of that State.  It therefore raises, yet again, an opportunity for the High Court to opine on the operation and limits of the so-called Kable doctrine.

The next case is The Honourable Brendan O'Connor Commonwealth Minister for Home Affairs v Zentai, to be heard on Wednesday, 28 March 2012.  This is yet another step in protracted attempts to extradite Charles Zentai to Hungary in order to face trial in respect of alleged war crimes.  At issue in the proceedings is whether or not extradition is precluded where the specific offence for which extradition is sought  was not an offence under Hungarian law at the relevant time (the conduct having occurred in 1944, and the war crime offence not having been enacted until 1945), even though the conduct constituted another offence (ie murder) at the relevant time.

On Thursday, 29 March 2012 the Court will hear argument in Board of Bendigo Regional Institute of Technical and Further Education v Barclay.  Barclay is a senior teacher employed by BRIT, and is also the sub-branch president at BRIT of the Australian Education Union. Barclay, in his AEU capacity, forwarded an email to AEU members employed at BRIT, in relation to an upcoming re-accreditation audit, in which he said he was aware of reports of misconduct by unnamed persons in BRIT.  The CEO of BRIT wrote to Barclay requiring him to show cause why he should not be disciplined for failing to report the misconduct alleged in his email to senior managers. Barclay was suspended on full pay, had his internet access suspended and was not required to attend BRIT during the suspension period.  At issue is whether or not the “adverse action” taken against Barclay by the CEO was taken because of a “proscribed reason” (in this case because of his membership of, or role in, the AEU or because he had been engaged in industrial activity).  Importantly, the case raises the question of whether, in answering that question, one is applying a subjective test and inquiring into the decision-maker’s actual state of mind, or whether one is applying an objective test so that it is sufficient to establish contravention that Barclay’s conduct was undertaken in his capacity as a union official, and that conduct has resulted in the adverse action taken.

Finally, on Friday 30 March 2012 the High Court will hear the continuation of argument in Forrest v Australian Securities and Investments Commission.  

Grants of Special Leave to Appeal in the High Court

On Friday, 9 March 2012 the High Court heard applications for special leave in Sydney and in Melbourne.

Only one case received a grant of special leave.  This was in Likiardoloulos v R, an appeal from the Victorian Court of Appeal in Likiardoupulos v R [2010] VSCA 344.  This case will examine the elements of the offence of murder where the offender does not physically cause the death of the victim, but is alleged to be part of a “joint criminal enterprise” that result sin the victim’s death.  In particular, it will examine the issue of whether it is open to the Crown to argue that the offender “counselled or procured” others to commit murder, in circumstances where the Crown had accepted pleas of guilty to manslaughter by the principal offenders.

In one other case, Sweeney v Thornton, the application for special leave was referred to the full bench, to be argued in full as on appeal.  This is an appeal from the NSW Court of Appeal in Thornton v Sweeney [2011] NSWCA 244 which concerns the content of the duty of care owed by a voluntary supervisor (not an instructor) to a learner driver.  

ALH Group Holdings v Chief Commissioner of State Revenue [2012] HCA 6

On 5 November 2003 Oakland Glen Pty Ltd entered into a contract with Trust Company Fiduciary Services Ltd (then known as Permanent Trustee Co Ltd), as trustee of the ALE Direct Property Trust. Under the contract Oakland agreed to sell a parcel of land to Trust Company.  No duty was charged on the 2003 contract, Revenue Commissioner having approved the transaction for the purposes of section 281 of the Duties Act 1997 (NSW), which concerns transactions in the nature of corporate reconstructions.

On 27 June 2008 Oakland, Trust Company and ALH Group Property Holdings Pty Ltd executed a document entitled "Deed of Consent and Assignment" under which, in essence: Trust Company agreed to assign its rights under the 2003 contract to ALH; Oakland consented to the assignment; ALH promised Oakland that it would perform Trust Company’s obligations under the 2003 contract; and Oakland released and discharged Trust Company from all liability under the 2003 contract.

In 2008 a further deed executed by ALH and Oakland cancelled the deed of Consent and Assignment.  The effect of this cancellation was that duty was not payable on the Deed of Consent and Assignment, but only if the Deed of Consent and Assignment was “an agreement for the sale or transfer of dutiable property” within the meaning of section 8(1)(b) of the Duties Act 1997.  That was the issue for resolution in the High Court.

In its judgment in ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue [2012] HCA 6 the High Court held that the Deed of Consent and Assignment, despite its title, operated as more than a mere assignment by Trustee Company to ALH of Trust Company’s rights under the 2003 Contract.  The obligations of the parties emanated from the Deed of Consent and Assignment, and not from the 2003 Contract.  The obligation to convey land requires identification of the person to whom it is to be conveyed.  The obligation of Oakland to transfer land to ALH, in place of the Trust Company, emanated from the Deed of Consent and Assignment and not from the 2003 Contract.  The Deed of Consent and Assignment was therefore an agreement for the sale and transfer of the land.  It having been cancelled, no duty was payable.

Strong v Woolworths Ltd [2012] HCA 5

I have previously said that the judgment in Strong v Woolworths Ltd [2012] HCA 5, which the High Court of Australia delivered today, would either be an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or a mundane fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.

Unfortunately it was the latter.  None of the judges in the majority (French CJ, Gummow, Crennan or Bell JJ) or in dissent (Heydon J – again) had anything much to say in relation to various issues that arise under the Civil Liability Act 2002.

Specifically, the Court declined to deal with the question of whether or not the statutory formulation of causation may produce a different conclusion to the conclusion yielded by applying the common law. 

Nor did it address questions of how cases of “causal over-determination” are to be accommodated under the statutory provision, although the majority seem to have subtly suggested that the authors of the Ipp Report (upon whose recommendations the present statutory causation formulation is based) may have misunderstood the House of Lords decision in Bonnington Castings Ltd v Wardlaw.

Apart from an interesting discussion by Heydon J (unaffected by the fact that his Honour dissented in the result) about the different meanings of the expression “evidential burden” (at [50]-[64]) there is really nothing of interest at all in the judgment.