Citation: Porteus v R [2003] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 17 February 2003
Judges: Giles JA, Simpson J, Smart AJ
Background
The appellant was a remedial massage therapist operating a business in East Maitland. Two male clients (referred to as C1 and C2) attended separately for massage appointments over a period of months. Each alleged that the appellant engaged in sexual acts during or after their respective sessions without their consent.
The appellant was convicted in the District Court on two charges of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The relevant sexual intercourse in both charges involved oral contact. The appellant received sentences of 18 months' imprisonment on the first charge and four years' imprisonment with an 18-month non-parole period on the second, both commencing 27 August 2002.
The appellant appealed against conviction and sought leave to appeal against sentence. By the time of the hearing, the appeal against conviction was confined to a single element: whether the jury could be satisfied beyond reasonable doubt that the appellant knew the complainants were not consenting.
Legal Issues
- Whether the jury's verdicts were unreasonable or could not be supported by the evidence, specifically in relation to the appellant's knowledge of the complainants' lack of consent
- Whether recklessness as defined under s 61R(1) of the Crimes Act 1900 was established on the facts, specifically whether the appellant realised the complainants might not be consenting but proceeded regardless
- Whether the sentences were excessive or outside the proper range
Decision
The Court confirmed that under s 61R(1) of the Crimes Act 1900, a person is taken to know that another does not consent to sexual intercourse if they are reckless as to consent. Recklessness, drawing on the common law of rape, encompasses two situations: failing entirely to consider whether the other person was consenting, or realising the possibility of non-consent but proceeding regardless. The trial judge's directions to the jury accurately reflected both limbs.
In relation to C1, the Court examined the circumstances carefully: C1 lay on the massage table with his eyes closed after the formal massage had ended and the appellant had washed his hands, creating a clear contextual break. C1 froze in shock and did not verbalise objection, but the Court found the jury was entitled to conclude the appellant knew or was reckless as to C1's non-consent, given the absence of any invitation or indication of willingness from C1.
Regarding C2, the evidence showed the appellant had progressively escalated physical contact. C2 had shaken his head during an earlier touching, and while he did not further protest during subsequent acts, the Court found the jury could reasonably conclude the appellant had perceived the possibility of non-consent at the point of oral contact and disregarded it. Smart AJ added that the argument about the complainants not wearing underclothes to the appointment carried little weight and did not provide a meaningful foundation for the appellant's claimed belief in consent.
On sentence, the appellant conceded he could not identify any sentencing error and acknowledged the sentences were within range. The Court found no basis to intervene, as neither a sentencing error nor undue harshness had been demonstrated.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence refused
Key Takeaways
- Under s 61R(1) of the Crimes Act 1900, recklessness as to consent is established where an accused either failed to turn their mind to the possibility of non-consent at all, or recognised that possibility and proceeded regardless. Either state of mind satisfies the knowledge element in a charge under s 61I.
- A complainant's silence or physical inaction during the offence does not, of itself, indicate consent or negate an inference of the accused's recklessness. The Court of Criminal Appeal affirmed that juries may assess all surrounding circumstances, including context, prior conduct, and the absence of any invitation.
- In dismissing the conviction appeal, the Court applied the M v The Queen (1994) standard, examining whether it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt. The confined scope of the appeal, limited to the knowledge element only, meant consent itself was accepted as unestablished.
- No sentencing error was identified where the appellant conceded the sentences were within range and pointed to no specific error, only general character considerations. That is insufficient to ground appellate intervention.
- Contextual breaks during a professional appointment, such as the formal end of treatment and the practitioner washing their hands, can be relevant circumstances from which a jury draws inferences about an accused's awareness of non-consent.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61H(1), 61I, 61R(1), 578A
Cases:
- M v The Queen (1994) 181 CLR 487
- R v Sperotto (1970) 71 SR (NSW) 334
- R v Murray (1987) 11 NSWLR 12
- Hemsley (1988) 36 A Crim R 334
- R v Kitchener (1993) 29 NSWLR 696
- R v Tolmie (1995) 37 NSWLR 660
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- R v Cooper [2002] NSWCCA 428
- Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81
- Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640