Sims v Drewson [2008] ACTSC 91 (25 September 2008)

Last Updated: 26 September 2008

SIMS v DREWSON

[2008] ACTSC 91 (25 September 2008)

CRIMINAL LAW – indecent assault – number of acts occurring simultaneously or within seconds of each other – acts considered as a whole at trial – whether elements of offence could be made out with respect to first act only

Held: circumstances indicated elements of offence may have been made out with respect to first act only – matter remitted.

CRIMINAL LAW – whether recklessness within s 60(1) of the Crimes Act 1900 (ACT) includes non-advertent recklessness

Held: non-advertent recklessness included in recklessness in s 60(1).

APPEALS – order to review – whether terms of order nisi restricted review to a case of non-advertent recklessness

Held: terms of order nisi did not restrict review to a case of non-advertent recklessness.

APPEALS – order to review – whether substantial miscarriage of justice – interpretation in context of Crown appeal – whether Crown seeking to put case on new basis – whether leads to substantial miscarriage – whether leads to exercise of general discretion to refuse relief

Held: Crown not putting case on new basis – no sufficient reason to withhold relief.

Crimes Act 1900 (ACT) s 60(1)

Crimes Act 1900 (NSW) ss 61D(2), 61L, 61R

Criminal Code 2002 (ACT) s 20

Magistrates Court Act 1930 (ACT) s 219C, s 219F

Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262

Fitzgerald v Kennard (1995) 38 NSWLR 184

Gardner v Caporn [2005] WASCA 153

Haskett v Police [2005] SASC 174

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

Knight v Birch (1992) 106 ACTR 27

McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198

R v Chen (unreported, Supreme Court of Queensland Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997)

R v Kitchener (1993) 29 NSWLR 695

R v O’Connor [1980] HCA 17; (1980) 146 CLR 64

R v Tait (1979) 46 FLR 386; (1979) 24 ALR 473

R v Tolmie (1995) 37 NSWLR 660

S v The Queen [1989] HCA 66; (1989) 168 CLR 266

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Willcoxson v Legal & General Insurance of Australia Ltd (1990) 101 FLR 1

ON APPEAL FROM THE MAGISTRATES COURT

No. SC 251 of 2008

Judge: Besanko J

Supreme Court of the ACT

Date: 25 September 2008

IN THE SUPREME COURT OF THE )

) No. SCC 251 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN COLIN ALEXANDER SIMS

Appellant

AND DARREN DREWSON

Respondent

ORDER

Judge: Besanko J

Date: 25 September 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order made by the Magistrates Court of the Australian Capital Territory on 28 February 2008 dismissing the information against the respondent be set aside.
3. The parties have leave to address the terms of the remitter to the Magistrates Court of the Australian Capital Territory and the question of costs.

1. In May 2007 the respondent to this appeal was charged with an offence under s 60(1) of the Crimes Act 1900 (ACT) (“Crimes Act”), namely, that in the Australian Capital Territory, on 10 May 2007, he committed an act of indecency upon C, without the consent of the said C, and being reckless as to whether the said C had consented thereto. The charge was that the respondent was reckless as to whether C consented and not the alternative in s 60(1) that he knew that she had not consented. The respondent pleaded not guilty to the charge.

2. The charge came on for hearing before a Magistrate in the Magistrates Court of the Australian Capital Territory. At the end of the prosecution case counsel for the respondent told the Magistrate that he consented “to summary jurisdiction”. Counsel for the respondent accepted that on the evidence it was open to the Magistrate to find that there was a case to answer and he then said that he did not intend to call evidence. After hearing submissions the Magistrate held that the offence had not been proved beyond reasonable doubt and she dismissed the charge.

3. On 28 March 2008 the appellant, who was the informant in the proceeding, brought an appeal by way of order to review under s 219C of the Magistrates Court Act 1930 (ACT) (“Magistrates Court Act”) against the order of dismissal. The appellant sought an order nisi calling on the respondent to show cause why the decision of the Magistrates Court dismissing the information should not be reviewed. The application for the order nisi was supported by an affidavit of the prosecutor who had appeared for the appellant in the proceeding before the Magistrates Court. A number of grounds were specified in the application.

4. The appellant’s application came on for hearing before Higgins CJ on 1 April 2008. The Chief Justice made an order nisi requiring the respondent to show cause why the decision of the Magistrates Court should not be reviewed. The ground upon which the Chief Justice made the order was narrower than the grounds upon which the appellant had sought the order. The ground upon which the order was made is as follows:

The Learned Magistrate erred in law by failing to consider whether the defendant committed an offence contrary to section 60(1) of the Crimes Act 1900, when the defendant grabbed the complainant’s breast on the outside of her jumper without her consent and was reckless as to whether she consented to the committing of that act.

5. The appeal by way of order to review is before me on the return of the order nisi (see s 219F of the Magistrates Court Act).

The prosecution case

6. The alleged offence occurred on 10 May 2007 near a lake. There were two people present at the time of the alleged offence, C and the respondent. C was 17 years old and a student at a school undertaking her year 12 studies. One of C’s sporting activities at the school was kayaking. C had driven her own motor vehicle to the lake to attend kayak training. The training session started at about 3.45 pm and finished at about 5.30 pm.

7. The respondent was a teacher at the school, although in 2007 he did not teach C. He was the coach of the kayaking team, of which C was a member. In May 2007 the respondent was 36 years old.

8. The alleged offence occurred at about 5.30 pm. C was wearing a swimming bikini with board shorts over the top, as well as a top described in the evidence as a “Rashie”, or a jumper. I will call it a jumper. The jumper had a zipper at the front. Immediately before the alleged offence, C was waiting near a trailer with a friend. Her friend was waiting for her mother to collect her. The respondent was also present. C’s friend was collected by her mother and C and the respondent were left alone. C finished her conversation with the respondent and went to leave. The respondent smacked C on the bottom and said something like “bad girl”. C gave evidence that she thinks the respondent smacked her on the bottom again and he then grabbed her by the front of her jumper and pulled her towards him. The respondent then grabbed C’s breast on the outside of her jumper. C said that the respondent grabbed her breast “he had it sort of cupping it I suppose, but in a more sort of pinching sense”. C said it was “a forceful sort of grip I suppose”. At about the same time, the respondent asked C to get into his car. C refused and said she wanted to go home. The respondent then undid the zipper on C’s jumper and put his hand on her breast on the outside of her swimming costume and he undid her pants and put his hand on her groin area, again, on the outside of her swimming costume. C said that after this the respondent “pulled away” and she did up her jumper and her pants. C said that she did not consent to the respondent touching her.

9. C was cross-examined by the respondent’s counsel about what she did or did not do to convey to the respondent that she did not consent to him touching her. I will need to refer to the evidence in more detail later in these reasons. For present purposes it is enough to set out the concluding passages of C’s evidence in cross-examination.

Can I summarise the full picture in this way and see if you’ll agree with me?---Yes.

That you and Mr Drewson were on very friendly terms?---Yes.

You would regularly refer to him as “Drewy” and didn’t really see him in the guise of a schoolteacher, more of a friend?---Yes.

On this day he made certain advances towards you?---Yes.

For whatever reason you played along with those advances?---Yes.

And you did so in a way calculated by you to give him the impression that you were happy for the advances to be made?---Yes.

And in addition to that you didn’t try to extricate yourself from the situation in any way until it was over? That’s right.

By the time you came to speak to police about it, looking back you had come to the view that it was something that you hadn’t wanted to happen? That’s right.

But being frank and honest with the police you had to tell them that not only did you not say no, you’d done nothing to convey “no” and indeed you’d done some things to encourage Mr Drewson?---Yes, I suppose so.

That’s a fair summary isn’t it?---I suppose so, yes.

The Magistrate’s reasons

10. The Magistrate gave reasons for judgment ex tempore. A brief summary of her conclusions is as follows:

(1) The Magistrate said that she accepted C’s evidence “fully”.

(2) The Magistrate found that C did not consent to the respondent doing what he did to her.

(3) The Magistrate found that C did nothing that would have put the respondent on notice of her lack of consent. The Magistrate said that, on her own evidence, C “played along with the defendant in the sense that she conceded she was leading him to believe she was consenting”.

(4) On the second element of the offence, that is, whether the respondent was reckless as to whether C was consenting to what he was doing to her, the Magistrate said:

I am left with the question, the legal question, of what was in the defendant’s mind and whether the prosecution has proved beyond reasonable doubt that he did not believe that she was consenting. Her evidence is that there was nothing in her conduct that would have led him to that belief, or whether he had turned his mind to the possibility that she was not consenting and nevertheless determined to proceed.

It seems to me very clear, as I have indicated, that I could not be satisfied beyond reasonable doubt that the prosecution has proved the second element of the offence, no matter how credible and how reliable the evidence of the witness is.

11. For present purposes, the acts of the respondent which might have constituted an act of indecency within s 60(1) of the Crimes Act were the act of touching C’s breast on the outside of her jumper, the act of touching C’s breast inside her jumper but on the outside of her swimming costume, and the act of touching C’s groin area inside her board shorts but on the outside of her swimming costume. The charge in the information alleges “an act of indecency”. The opening by counsel for the appellant referred to the three acts I have identified and the smack on C’s bottom. In the course of his opening counsel for the appellant was asked whether the appellant’s act of kissing C on the back of the neck (an act which, as it happened, did not feature subsequently in the evidence) was an act of indecency on which the appellant relied. The response of counsel for the appellant was that the appellant was asking the Court to look at the whole incident: “we’re not taking any one in isolation”. The Magistrate’s reasons suggest that she approached the question of whether the mens rea of the offence – whether the respondent was reckless as to whether C was consenting – was or was not established by considering the acts as a whole.

12. The ground of the order nisi is that the Magistrate erred in not considering whether the elements of the offence were made out with respect to the first act, namely, the act of touching C’s breast on the outside of her jumper. In other words, although the Magistrate considered whether the appellant had established beyond reasonable doubt that the respondent was reckless as to whether C was consenting in relation to the whole course of conduct, she did not consider whether the relevant mental element might have been made out in relation to the first act.

13. The respondent submitted that the way in which the appellant presented his case in the Court below, that is, asking the Court to view the incident as a whole and not take any one act in isolation, was a powerful discretionary reason in favour of discharging the order nisi. I will consider that particular submission in due course. However, the submission gave rise to a question in my mind as to whether the way in which the appellant presented his case had any greater significance to the proper determination of his appeal, and, in particular, whether it could be said that the appellant had elected to proceed on the basis that the various acts were to be considered as a whole and that, having made that election, the Court below was entitled, and indeed bound, to ignore the possibility of one of the acts by itself constituting the offence charged. The basis of such an argument is that the prosecution was required to elect at the trial in order to avoid the information being considered defective by reason of duplicity (Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 490-491 per Dixon J; S v The Queen [1989] HCA 66; (1989) 168 CLR 266). I raised the issue of duplicity with the parties, but it is fair to say that only brief submissions were made. I do not think that it is necessary for me to ask for more detailed submissions because I am satisfied that the argument cannot succeed.

14. The conduct alleged against the respondent in this case was really a course of conduct and the various acts happened almost simultaneously, or within seconds of each other. The authorities make it clear that in such circumstances it is permissible for the prosecution to ask the Court to consider the events as a whole and to view them as constituting the offence charged. In R v Chen (unreported, Supreme Court of Queensland Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997) the Court said (citations omitted):

There are no doubt cases in which, notwithstanding that offences could be charged separately, it is nevertheless permissible and even appropriate to prefer only one charge. One obvious class of such cases is that where the offence may be constituted by continuing conduct. But also where one act constitutes a number of offences (stealing a number of articles at one time) or where there are a number of similar acts, each constituting a separate offence, but in a short space of time – a flurry of blows, whether with or without a weapon or a succession of shots – there is, in most cases, little practical advantage in separating them and no loss of fairness to an accused in failing to do so.

15. In Haskett v Police [2005] SASC 174, Doyle CJ in rejecting an argument that there was latent duplicity in a charge of assault occasioning actual bodily harm which was said to be constituted by blows to the head and kicks to the head said (at [18]):

I do not accept this submission. On the evidence all of the alleged blows were struck by Mr Haskett within the space of a few seconds, perhaps within no more than ten seconds. All of them were part of one course of conduct and constituted what any reasonable person would regard as a single incident. It would be artificial to treat each separate blow and each kick as a separate assault. It would be equally artificial to separate the blows from the kicks. In deciding whether a charge based on several acts occurring in the course of a single incident does give rise to latent duplicity, judgments of degree must be made. It is also relevant to consider whether the approach taken by the Prosecution is likely to be productive of unfairness or uncertainty at the trial. After considering all of these matters, and the relevant principles, I am satisfied that the Prosecutor was entitled to proceed as the Prosecutor proposed. This was, in substance, a single assault.

(See also Gardner v Caporn [2005] WASCA 153.)

16. In my opinion this case is similar to those identified in the above passages and there was no obligation on the appellant that he elect between the various “acts”. Nor was the charge defeated if the appellant failed to establish his case in relation to one “act” so long as it was established in relation to one or more of the other acts. In my opinion, this case is similar to those cases where, for example, a charge of the theft of a number of items is alleged and the charge is not defeated simply because the prosecution fails to prove its case in relation to one or some of the items, or a charge of assault said by the prosecution to be constituted by a number of blows is alleged and the charge is not defeated simply because the prosecution fails to prove its case in relation to one or some of the blows.

The relevant legislative provisions

17. The offence with which the respondent was charged is contained in s 60(1) of the Crimes Act, which is in the following terms:

A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

18. The procedure on an appeal by way of order to review is as follows. Under the provisions of the Magistrates Court Act an order nisi to review may be made on any one of five grounds (see s 219C(2)) and the relevant ground for present purposes was identified by counsel for the appellant as “a prima facie case of error or mistake on the part of the Magistrates Court”: s 219C(2)(a). The appellant claimed that the error was an error of law.

19. The power of the Supreme Court on the return of an order nisi includes a power to set aside or quash, in whole or in part, or otherwise vary or amend, the decision of the Magistrates Court: s 219F(1)(b). If the Court does that it may remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law: s 219F(1)(d)(i).

20. There is a power in the Court to discharge an order nisi if the Court is of the opinion that no substantial miscarriage of justice has happened. Section 219F(5) provides as follows:

(5) The Supreme Court may, despite the ground or any of the grounds on which the order nisi to review a decision of the Magistrates Court was granted has been established, discharge the order nisi if the Supreme Court is of the opinion that no substantial miscarriage of justice has happened.

21. The reference to “no substantial miscarriage of justice” is redolent of words in the proviso in the common form statutory provision and it would seem that in a case in which the prosecution seeks to rely on the subsection where a convicted person has appealed, the principles discussed in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 and McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198 would be applied. There is a question as to the application of the subsection in a case such as the present in which the prosecution has appealed against an order of dismissal. I will return to that question later in these reasons.

Issues on the appeal

22. The appellant submitted that the Magistrate erred because she did not consider whether the elements of the offence had been made out with respect to the first act and that, had she done that, there was evidence from which she could have concluded that the elements of the offence were made out. The appellant submitted that in those circumstances the order of dismissal should be set aside and that the matter should be remitted to the Magistrates Court for a hearing with respect to that issue.

23. As I understood the respondent’s submissions, he did not submit that the Magistrate had considered whether the elements of the offence had been made out in relation to the first act considered as a separate act. His first submission was that there were two forms of recklessness – advertent recklessness and non-advertent recklessness – and the order nisi was confined to a case of non-advertent recklessness. Speaking generally, advertent recklessness is where an accused person is aware of the risk that the alleged victim is not consenting but makes a decision to proceed regardless of this fact. Non-advertent recklessness is where the accused person is so indifferent to the rights of the alleged victim as to ignore completely the requirement of consent. The respondent’s submission that the order nisi was confined to a case of non-advertent recklessness was that I could only consider whether the Magistrate had made an error and whether the error should lead to relief by reference to a case of non-advertent recklessness and not also by reference to a case of advertent recklessness. The respondent submitted that on the facts before the Magistrate a case of non-advertent recklessness could never be made out. If there was recklessness (which of course the respondent denied) it was of an advertent kind. The respondent submitted that in those circumstances, the order nisi should be discharged. The respondent’s second submission was that, having regard to the facts, it was inevitable that even if the Magistrate had considered whether the elements of the offence were made out in respect of the first act, including a case of advertent recklessness, she would have concluded that the offence was not established beyond reasonable doubt. That conclusion means, so it was submitted by the respondent, that I should conclude that no substantial miscarriage of justice has happened and the order nisi should be discharged. The respondent submitted that if I found that the issues were finely balanced, the fact that the appellant had not asked the Magistrate to consider whether the elements of the offence were made out with respect to the first act was a matter I should take into account in exercising my discretion whether to grant relief and that it should lead me to refuse relief.

24. It is convenient to begin by considering the meaning of “reckless” in s 60(1) of the Crimes Act.

25. The hearing before the Magistrate was conducted on the basis that the statement of what constitutes “reckless” in s 20 of the Criminal Code 2002 (ACT) (“Code”) was applicable, but it appears that that assumption is incorrect. The meaning of “reckless” in s 60(1) of the Crimes Act is to be determined without regard to the Code: see s 8 of the Code and the legislative history of s 60(1) of the Crimes Act.

26. There have been a number of cases in New South Wales in which the meaning of “reckless” in a statutory provision creating a sexual offence has been considered. In R v Kitchener (1993) 29 NSWLR 696 (“Kitchener”) the New South Wales Court of Criminal Appeal considered the meaning of “reckless” in s 61D(2) of the Crimes Act 1900 (NSW), which was in the following terms:

(2) For the purposes of subsections (1) and (1A), a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse shall be deemed to know that the other person does not consent to the sexual intercourse.

27. Kirby P, Carruthers and Smart JJ considered whether non-advertent recklessness could constitute recklessness so as to bring the defendant’s state of mind within s 61D(2). Their Honours said that it could. Carruthers J (with whom Smart J agreed) delivered the leading judgment of the Court and he said (at 703):

Leaving aside those cases where the accused may be incapable of forming the requisite intent, I consider that where consent is withheld, a failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is “reckless as to whether the other person consents” within the meaning of s 61D(2). Such a conclusion is, in my view, consistent with both logic and legal principle.

28. In brief concurring reasons for judgment Kirby P said (at 697):

Nor is the construction of s 61D(2) preferred by me inconsistent with the basic rule that the Crown must prove beyond reasonable doubt the requisite intent on the part of the accused. The Crown does so, relevantly, by showing that the accused is “reckless” as to whether the other person consents to the sexual intercourse. This can be shown not only where the accused adverts to the possibility of consent but ignores it, but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirement of consent.

(See also R v Tolmie (1995) 37 NSWLR 660 (“Tolmie”).)

29. In Fitzgerald v Kennard (1995) 38 NSWLR 184 (“Fitzgerald”) the New South Wales Court of Appeal considered whether non-advertent recklessness was sufficient to constitute the mens rea for the offence of indecent assault under s 61L of the Crimes Act 1900 (NSW). Kirby A-CJ said it was not. He affirmed the principles in Kitchener but said that the decision was distinguishable because of the statutory provisions in issue in the case (at 189). Sheller JA followed Kitchener and applied it to the offence of indecent assault (194-195). Cole JA took a similar view and he said (at 204):

If the Crown established, to the satisfaction of the tribunal of fact, either that the accused believed that consent may be absent, or that he was unaware whether consent was present or not and, uncaring in that regard, pressed on with his actions, in my opinion it would be established that the accused was reckless as to whether the complainant consented or not.

30. In Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 (“Banditt”), the High Court considered the correctness of a direction to the jury about the meaning of recklessness within s 61R of the Crimes Act 1900 (NSW). That section was in the following terms:

[A] person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

31. The trial judge’s direction to the jury defined “recklessness” in terms of both advertent recklessness and non-advertent recklessness. The appellant’s complaint about the trial judge’s direction concerned his direction as to advertent recklessness. The submission that was put on the appeal by the appellant was that awareness of the risk of the absence of consent was of itself not sufficient to constitute recklessness; there needed to be indifference as to whether or not there was consent. In the course of discussing the concept of recklessness, Gummow, Hayne and Heydon JJ referred to conflicting authority as to whether recklessness can be constituted by non-advertent recklessness. At 274 [29] their Honours said (citations omitted):

The subsequent decisions in England construing the phrase in s 1 of the 1976 UK Act “reckless as to whether she consents to it” have reflected some tension between what Lord Rodger of Earlsferry recently in G identified as conflicting legal policies. The first, associated particularly with the speech of Lord Diplock in Caldwell is that, if the criminal law is to operate with the concept of recklessness it may properly treat as reckless “the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it”. The opposing view is that “only advertent risk taking should ever be included within the concept of recklessness in criminal law” and that the first view diminishes the significance of the mental element in criminal culpability.

32. For a number of years there has been a good deal of debate about whether non-advertent recklessness can constitute recklessness for the purposes of certain offences and, if so, what constitutes non-advertent recklessness. On the face of it, acceptance of the concept of non-advertent recklessness as sufficient to constitute the mental element of recklessness seems to run counter to traditional notions of mens rea in the criminal law as involving a guilty mind or evil intention (see R v O’Connor [1980] HCA 17; (1980) 146 CLR 64 at 96-97 per Stephen J; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 565-566 per Brennan J) and it may be noted that s 20 of the Criminal Code 2002 (Cth), although not applicable in this case, provides for a definition of recklessness which requires awareness of a substantial risk. On the other hand, the notion of non-advertent recklessness seems well-established in the case of certain offences of which the present offence is an example. I need only refer to Kitchener, Tolmie and Fitzgerald. The discussion of the policy considerations and the development of the law by Kirby P in Tolmie is, with respect, illuminating, as are the observations by Mr S Gardner in his note “Recklessness Refined” (1993) 109 LQR 21. Although the point was not directly in issue, certain observations by Gummow, Hayne and Heydon JJ in Banditt suggest their Honours considered that non-advertent recklessness was within the section under consideration in that case. Their Honours said (275 [36]):

It may well be said that “reckless” is an ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines. However, in its ordinary use, “reckless” may indicate conduct which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an “objective”, the latter a “subjective”, hue. These considerations make it inappropriate for charges to juries to do no more than invite the application of an ordinary understanding of “reckless” when applying s 61R(1).

In view of those observations and the New South Wales decisions, I think that I should proceed on the basis that recklessness in s 60(1) of the Crimes Act includes non-advertent as well as advertent recklessness.

33. For the respondent’s first submission (see [23]) to succeed he must establish two further propositions, namely, that the order nisi is restricted to a case of non-advertent recklessness and that a case of non-advertent recklessness could not possibly succeed.

34. The order nisi does not in its terms restrict this Court’s review of the decision of the Magistrates Court to a case of non-advertent recklessness. I do not think that such a limitation on the order nisi can be imposed by what was said or not said in the course of submissions before the Chief Justice, but even if it could, I have examined the transcript of submissions and I do not think that any such limitation emerges from the submissions. In the circumstances, it is not necessary for me to consider whether it would be open to me to expand the scope of the order nisi had a limitation of the type for which the respondent contended appeared in the order, or for me to consider the submission that a case of non-advertent recklessness could not possibly succeed on the facts.

35. For reasons I have previously given (at [11] and [16]), the Magistrate made an error of law in not considering whether the elements of the offence were made out in relation to the first act. In considering whether relief should be granted I am not restricted by the order nisi to a consideration of non-advertent recklessness only and I reject the respondent’s first submission. I may consider both advertent and non-advertent recklessness.

36. The respondent’s second submission is that even accepting these conclusions, relief should be refused for two reasons. First, having regard to the facts before the Magistrate, an order of dismissal was inevitable and therefore no substantial miscarriage of justice had happened within s 219F(5) and the order nisi should be discharged. Secondly, the respondent submitted that I have a general discretion to discharge the order nisi and I should exercise it in the circumstances of this case because the appellant had failed to ask the Magistrate to consider whether the elements of the offence were made out in relation to the first act.

37. There is no reason to think s 219F(5) does not apply in a case where a defendant has been acquitted or an information dismissed, and it is the defendant who seeks to rely on the subsection. The notion of a substantial miscarriage of justice directs attention to the merits of the case before the Magistrate. The respondent’s submission is that on the evidence it was inevitable that the Magistrate would entertain a reasonable doubt about whether the appellant had established that the respondent was reckless as to whether C was consenting; in other words it was inevitable that the respondent would be acquitted or the information dismissed. In this context the respondent referred to the following evidence before the Magistrate:

(1) C and the respondent were on quite friendly terms at the time of the alleged offence and had been for some time. Their friendship went beyond the normal teacher and student relationship. C called the respondent by his nickname.

(2) C and the respondent had a conversation of a personal nature about a love bite on C’s neck and he gave advice to her that she would get a reputation as a “bad girl”. That conversation took place either a day or a week before the alleged offence.

(3) It seems that the respondent smacked C on the bottom three times before the alleged offence took place; once in the boatshed a short time before the alleged offence and twice immediately before the alleged offence. C did not complain after the first smack in the boatshed.

(4) C had waited behind after her friend and her friend’s mother had left when there was no obvious reason for her to do so.

(5) The evidence of C was that it was the respondent who pulled away after the third act.

38. I do not think it is inevitable that a Magistrate would conclude from these matters that the appellant had failed to prove beyond reasonable doubt that the respondent was reckless as to whether C was consenting, particularly when regard is also had to the following matters:

(1) The respondent was a teacher at the school C attended as a student and he was a coach of a sporting team of which C was a member.

(2) There was a very considerable age difference between C and the respondent; C was 17 years old and the respondent was 36 years old.

(3) C and the respondent were not in a physical relationship at the time of the alleged offence and had never been in such a relationship. In fact, C had a boyfriend who was about her age and the respondent was married.

39. Whether the appellant establishes the offence in relation to the first act beyond reasonable doubt will be a matter for the Magistrate to determine on a rehearing; I am only deciding that it cannot be said that despite the error of the Magistrate it was inevitable that the appellant would fail to establish that the respondent was reckless as to whether C was consenting.

40. That leaves for consideration the submission that in the exercise of my discretion the order nisi should be discharged because the appellant conducted his case in a certain way before the Magistrate and he should not now be allowed to pursue what the respondent submits is a different case. In my opinion, under the section which gives me power to make orders I have a general discretion to refuse relief (see Willcoxson v Legal and General Insurance of Australia Ltd (1990) 101 FLR 1; Knight v Birch (1992) 106 ACTR 27). The power to set aside or quash the order made in the Magistrates Court is expressed in discretionary terms and relief may be refused in the proper exercise of the discretion. One ground upon which that might be done is that the prosecution seeks to put its case on a new basis; a basis which the respondent might have successfully challenged had the case been fully presented before the Magistrate (R v Tait (1979) 46 FLR 386 at 389; (1979) 24 ALR 473 at 476-477 per Brennan, Deane and Gallop JJ; Knight v Birch 106 ACTR at 32 per Miles CJ). I have considered this submission carefully. I do not think that the case the appellant now advances is a new case and I am not persuaded there is sufficient reason to withhold relief.

Conclusion

41. The appeal must be allowed, the order made by the Magistrates Court must be set aside and the matter identified in the ground in the order nisi must be remitted to the Magistrates Court for hearing according to law. I will hear the parties as to the precise form of the terms of the remitter. I will also hear the parties as to costs although it seems that they are payable by the appellant in any event: Magistrates Court Act s 219F(8) and (9).

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Date: 23 September 2008

Counsel for the Appellant: Mr M Chilcott

Solicitor for the Appellant: ACT Director of Public Prosecutions

Counsel for the Respondent: Mr J Pappas

Solicitor for the Respondent: Ben Aulick & Associates

Date of hearing: 26 June 2008

Date of judgment: 25 September 2008