Gillard v The Queen [2014] HCA 6

The High Court has held unanimously in the case of Gillard v the Queen [2014] HCA 6 that recklessness as to consent is a state of mind of indifference as to whether the complainant is consenting. The court thus allowed Michael Alan Gillard’s appeal against his conviction for sexual assault.

Facts of the Case

The offences occurred during the school holidays when DD and JL were staying at Mr Gillard’s home. Mr Gillard was a friend of DD and JL’s father. He acknowledged that DD and JL had been entrusted to his care during their visit. Mr Gillard engaged in sexual intercourse with DD during these visits and engaged in an act of indecency with DD in the presence of JL, allegedly without either’s consent. Mr Gillard contends that consent had been given by DD.

The Legislation

Section 67(1)(h) of the Crimes Act 1900 (ACT) provides that where a complainant consents to intercourse or acts of indecency, but the consent is caused by the abuse by a person of a position of authority over the complainant, then the consent is negated. Further, the mental element of the crime provided by ss 54(1) and 60(1) is either knowledge that the complainant is not consenting to sexual intercourse or recklessness as to consent. Also, s 67(3) provides that where an accused knows that consent to intercourse was caused by his abuse of authority, he is deemed to know that the complainant is not consenting. The prosecution argued at trial that the complainant’s consent had been caused by Mr Gillard’s abuse of authority.

The issue contested by Mr Gillard in this case was that the jury at trial was directed that mental culpability could be established by proof of either knowledge or recklessness. Mr Gillard argued that it was necessary to establish that he knew that the abuse of the authority was the cause of the consent and that recklessness as to consent alone would not be sufficient.

The High Court Appeal

When the argument appeared before the High Court, the court unanimously held that there indeed had been a misdirection leading to a miscarriage of justice. The court ruled that the recklessness factor could only be satisfied by indifference as to whether the complainant was consenting. Recklessness is not satisfied by an accused that is heedless of the risk that he may be abusing his authority which subsequently led to the complainant’s consent. The court thus ordered a new trial. 

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