The High Court has unanimously overturned the conviction of a Canberra man who sexually abused two teenage girls in his care.
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Michael Alan Gillard, 60, will now face a retrial on three charges of sexual intercourse with the elder girl, and one count of committing an act of indecency in the presence of the younger sister.
In 2011, Gillard was found guilty in the ACT Supreme Court of eight offences against the elder sister. He did not challenge four of the convictions.
He was jailed for nine years and nine months.
He had been looking after the girls during school holidays at his Canberra home.
Gillard abused the girl when she was under the age of consent, and then again after her 16th birthday.
The offences after the girl had reached the age of consent were said to have occurred in front of the girl’s sister.
The sister said Gillard has ordered the elder girl to perform oral sex on him.
But Gillard disputed that evidence, saying the girl had consented to the sexual act after she was 16.
At trial, the Crown argued that even if the girl had consented, that consent had been negated because Gillard had abused his position of authority or trust.
But Gillard’s legal team, Canberra firm Kamy Saeedi Lawyers, argued the trial judge, former chief justice Terence Higgins, misdirected the jury on the issue of consent at the end of the case.
Gillard won the right to take the case to the High Court of Australia after a failed challenge in the ACT Court of Appeal.
In March, Gillard appealed convictions and sentences on four of charges, arguing the convictions should be quashed and a re-trial ordered.
The Crown held no error was made by the ACT Court of Appeal.
The High Court handed down its decision on Wednesday, finding the jury had been misdirected about consent.
The court found that recklessness as to consent is a state of mind of indifference as to whether the complainant is consenting.
The court said this state of mind was different from that of an accused who was heedless of the risk that he or she may be abusing a position of authority or the risk that such abuse of authority may have caused the complainant to consent.
“The directions given to the jury at Mr Gillard's trial wrongly conveyed that it was open to convict Mr Gillard if the jury was satisfied that he was reckless in either of these respects,” a High Court press release said.
“The Court held this was a material misdirection affecting each of the counts that were the subject of the appeal and directed a new trial be had of those counts.”
The matter will now return to the ACT Supreme Court for retrial.