Grounds 4 and 5
16As the Crown's submissions indicate, no guidance is provided by the terms of these grounds of appeal as to the respect or respects in which it is said that the learned trial judge erred so as to give rise to a miscarriage of justice. Counsel for the appellant did not advance oral argument in this Court in support of these grounds of appeal, instead relying on his written submissions. Those submissions do not identify, discuss or analyse any single portion of the trial judge's directions on recklessness at all, and certainly not in a way that makes good the complaints about the directions, which the appellant seeks to advance. This is very unsatisfactory in my view.
17In contrast, counsel for the Crown proffered a detailed consideration of the directions, and the relevant law, in support of a submission that no error had been made. She did so in the following way.
18Section 61I of the Crimes Act provides that any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. In bringing that charge the Crown undertook to prove that:
(i) sexual intercourse took place between the appellant and the complainant;
(ii) the complainant did not consent to the intercourse; and
(iii) the appellant had the requisite mental element for the offence.
19In seeking to prove the requisite mental element the Crown was entitled as a matter of law to rely upon recklessness. Section 61HA applied to the circumstances of this case. It is relevantly in these terms:
" 61HA Consent in relation to sexual assault offences
(1) Offences to which section applies: This section applies for the purposes of the offences under sections 61I, 61J and 61JA.
(2) Meaning of consent: A person 'consents' to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent: A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse."
20The Crown's opening to the jury included the following:
"You have to be satisfied that [the appellant] knew that [the complainant] did not consent to the sexual intercourse or that he was reckless as to whether she was consenting and, thirdly, that he had no reasonable grounds for believing that [the complainant] consented to the sexual intercourse."
21The Crown's closing address contained the following:
"It is clear the Crown says that on the evidence this man, the accused, knew that [the complainant] wasn't consenting and if you at least listen to the tape he was reckless as to whether she was consenting and, given the way that she behaved and what she said, if you accept her evidence, there was no reasonable grounds for believing that she was consenting."
22On the issue of consent her Honour directed the jury in the following terms:
"The issue for you to consider in this trial is consent. The Crown must prove beyond reasonable doubt that [the complainant] did not consent to intercourse with [the appellant]. [He] does not have to prove that [she] did consent. A person consents to intercourse if she freely and voluntarily agrees to have intercourse with another person. Consent can be expressed in words or actions. Absence of consent can also be expressed in words or actions, but a person who does not offer physical resistance is not by that fact alone to be taken as having consented to intercourse.
The Crown relies on [the complainant's] evidence that she did not consent, that she said to [the appellant] 'Don't do this' and tried to push his hand away when he touched her breasts, that she moved her head to prevent him kissing her. Her evidence was she did not say anything or do anything when the sexual intercourse occurred because she was scared.
If you are satisfied beyond reasonable doubt that [the complainant] did not consent you go on to consider whether [the appellant] knew she was not consenting. If the Crown has not proved beyond reasonable doubt that [she] did not consent to the intercourse you will find [the appellant] not guilty.
The third element the Crown must prove beyond reasonable doubt is that the [appellant] knew [the complainant] did not consent to intercourse. It is the [appellant's] state of mind which you must consider. The Crown relies on what it says are admissions by the [appellant] in the phone conversation with [the complainant]. You can also draw the conclusion that the [appellant] knew [the complainant] did not consent from evidence of the words she spoke at the time and her actions which I have just referred to. To draw that conclusion from that evidence you will need to be satisfied beyond reasonable doubt that that conclusion is available to be drawn from that evidence. If you are satisfied beyond reasonable doubt that [the appellant] knew [the complainant] did not consent to intercourse then the Crown will have proved that element of the offence.
You may also consider whether the [appellant] honestly believed that [she] was consenting to intercourse. This issue might be raised in your minds by [the appellant's] statement in the telephone conversation with [the complainant] when he said, 'I thought you wanted to'. The test is whether [the appellant] honestly believed [the complainant] was consenting to intercourse, and if he did have that belief whether he had reasonable grounds for having such a belief.
The Crown must prove beyond reasonable doubt that [the appellant] either (1) did not honestly believe that [she] was consenting or (2) if he did have that honest belief he had no reasonable grounds for that belief. The Crown case is that given [her] evidence of her actions the [appellant] did not have reasonable grounds for such a belief.
The Crown bears the onus of proving that the [appellant] had a guilty mind, so if there is a reasonable possibility that [he] did honestly believe on reasonable grounds that [the complainant] was consenting the third element of the offence is not made out and you will find [him] not guilty of the charge.
The other way in which the Crown can prove that the [appellant] had a guilty mind for this third element of the charge is if the Crown proves beyond reasonable doubt that [he] was reckless as to whether [she] consented to have intercourse with him. If the Crown proves [he] was reckless about whether [she] was consenting the law says he is taken to know that [she] did not consent.
To prove beyond reasonable doubt that the [appellant] was reckless about [the complainant's] consenting the Crown must prove one of two situations, either (1) that [the appellant] failed to consider whether or not [she] was consenting and just went ahead with the act of intercourse, even though the risk that [she] was not consenting would have been obvious to someone with [the appellant's] mental capacity if he had turned his mind to it or, (2) that [he] realised at the time of intercourse the possibility that [she] was not consenting but went ahead with the intercourse regardless of whether she was consenting or not.
The Crown says [the appellant's] statements during the phone conversation with [the complainant] show he was reckless, so you will examine his words in that conversation and see whether either one of those states of recklessness which I have just referred to are established by that evidence."
23Her Honour's direction on recklessness was in accordance with the example contained in the Criminal Trials Bench Book. No objection was taken to that direction when it was given.
24Subsequently, the jury asked her Honour to explain the concept of recklessness again. Her Honour did so in these terms:
"To prove recklessness beyond reasonable doubt the Crown can prove that in one of two ways. The first way is if the Crown proves that [the appellant] failed to consider whether or not [the complainant] was consenting and just went ahead with the act of intercourse even though the risk that [she] was not consenting would have been obvious to someone with [his] mental capacity if he had turned his mind to it.
The second way the Crown can prove recklessness is if it proves beyond reasonable doubt that [the appellant] realised at the time intercourse was occurring the possibility that [the complainant] was not consenting but went ahead with intercourse regardless of whether she was consenting or not. Why I talk about 'at the time' it's not what he might have realised afterwards, it must be his state of mind at the time.
If the Crown proves either one of those states of recklessness then the law says that that's equivalent to [the appellant] knowing [the complainant] did not consent. Does that answer the question?
FOREPERSON: Yes."
25Counsel for the appellant at the trial then said this:
"Having thought about it over the luncheon adjournment, my concern is that the Crown opened, as is its right, raising the issue of recklessness. In its closing, however, on my notes the Crown really referred to the issue of recklessness in relation to the phone call which was recorded. So that's my concern and yet I think the Crown closed on the strength of the evidence is that on [the complainant's] account of what occurred at the house on the day that no real issue of recklessness arises out of her evidence there, it's only in relation to the phone conversation that's recorded that one can really speak about the possibility of recklessness arising and I would be wanting your Honour to give the jury a direction along those lines."
26Her Honour declined to give the further direction sought.
27Counsel for the appellant in this Court referred to Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 at [37] in these terms:
"[37] A direction that 'reckless' has the meaning to be given by the jury in the particular circumstances of the case would be erroneous... In the present case, the trial judge properly emphasised that it was not the reaction of some notional reasonable man but the state of mind of the appellant which the jury was obliged to consider and that this was to be undertaken with regard to the surrounding circumstances, including the past relationship of the parties."
28Unfortunately, the appellant's submissions did not attempt to explain, either by reference to this passage or otherwise, how it was suggested that her Honour's direction was erroneous. Instead, the submissions dwelt upon a particular factual issue in the proceedings, concerning who closed the laundry door. This approach was presumably taken in aid of the contention that if the jury believed that the complainant closed it, then it amounted to an indication that she consented to the intercourse.
29I confess that I have had some considerable difficulty understanding the appellant's written submissions in support of this ground. The apparently relevant paragraphs of those submissions are in these terms:
"55. When one looks at the recording as transcribed and the conversation had in the course of that recording, it is, we would respectfully submit, patently obvious that the matter under consideration was, in terms of the appellant's appreciate of what had occurred, a situation where - marital embarrassment and feelings of guilt aside - he was adamant that he did not close the door, thereby securing the scene and the privacy more importantly for the conduct of the intercourse in question and its commission, and equally did not allow himself to be entreated to admit that it was he who closed the door, but maintained it was the complainant. He further indicated that it was the complainant who had sought to have intercourse from a standing position, but that it was impossible for him to do so and that intercourse thereafter took place in a more facilitative format, bearing in mind the height difference between the complainant and the accused.
56. These critically were matters that should have been redirected by the trial judge as to the nature of the recklessness to be appreciated by the jury and, more importantly, matters that should have been taken into account by the jury in the circumstances if such a direction had been given as a result of which a miscarriage of justice has occurred. This ground has also been made out, but in any event impacts upon the ground taken in the submissions made on whether the verdict was unsafe and/or unsatisfactory."
30While this issue of who closed the door and what is said about it in the recorded telephone conversation is referred to in more detail in relation to Ground 7, it is sufficient at this point to observe that it was plainly open to the jury to disbelieve what the appellant said in the telephone conversation and believe what the complainant said in that conversation or in her evidence generally. Its relationship to the issue of recklessness, and to the possibility that her Honour misdirected the jury on the issue, is obscure at best and illusory at worst. There was to my mind no error in the way in which her Honour directed the jury on the recklessness issue or in failing to redirect them as requested. This is not a case where the direction could be regarded as "an unfortunate side-wind", to adopt the words of Callinan J in Banditt at [112], nor was the direction strictly unnecessary: see R v Kitchener (1993) 29 NSWLR 696. As the Court said in R v Henning (NSWCCA 11 May 1990, unreported at 32):
"...recklessness will become a relevant issue...when there is a possibility of ambiguity in the signals of consent or non-consent emanating from the complainant or arising from the circumstances".
31There was no argument in this case at trial or in this Court that a direction was unnecessary, and there were circumstances that bore upon the desirability of the direction being given notwithstanding the appellant's claim that the complainant was consenting. These were notably the contents of the recorded conversation. The appellant expressly accepted that recklessness was an issue raised at the trial. I can discern no error in the direction on recklessness that was given to the jury to prove that the appellant knew that the complainant did not consent. Nor was there any error by the trial judge in leaving this lawfully available method of proof to the jury.
32These grounds of appeal are not made out.