AM v R

Factual background 5The evidence in the Crown case was as follows. The appellant came to the complainant's home on 28 February 2008. The complainant resided on a farm at Benerembah with her partner and her son. Her partner had gone to work that morning. She had gone to pick up her son from his work at some time between 1.40pm and 2.10pm when she returned with him to the property. Her son had a shower and went to lie down, as he was tired. When the complainant went outside to clean up around the house, she saw a silver-grey ute heading along the road towards the homestead. The complainant did not immediately recognise the vehicle or the driver until the appellant stepped out of it. She then recognised him as someone she had met previously when accompanied by her partner. 6The complainant enquired of the appellant what he was doing there and he asked her whether her partner was home. She told him that her partner was not at home. The appellant then told the complainant that he had some melons for her and she made a comment to the effect that that was nice of him. The appellant was carrying a rockmelon and a watermelon and asked the complainant where she would like them. She told him that the kitchen would be appropriate. The appellant did not hand the melons to the complainant as she expected but instead took them into the kitchen himself. In doing so he walked in through the back door of the house, through the laundry and the pantry and then into the kitchen. He placed the melons on the sink, turned to the complainant and pushed her into a corner, wedging her between the oven and a bench. He said to her, "I've wanted to fuck you since the first time I met you". The appellant then placed one of his hands under her clothing, grabbing at her breasts. The complainant asked him not to do that to her. She said, "Don't do this, my son is here asleep". The appellant replied, "No, there is no-one here, only me". 7The appellant attempted to kiss the complainant but she resisted. She reminded him that her partner would soon be home. The appellant then walked through the kitchen and into the laundry. The complainant followed him to make sure that he was leaving. He then turned back and grabbed her around the waist and with his other arm closed and locked the door between the laundry and the pantry. The appellant disputed that he closed or locked the door, contending instead that it was the complainant who did so. 8The appellant then undid the belt of the complainant's jeans, turned her around and pulled her jeans and her underwear down to just below her bottom. He pushed her forward in a bent over position facing away from him and attempted unsuccessfully to penetrate her from behind. He then turned the complainant around and attempted to place her hand on his penis. The appellant then told the complainant that he wanted her to perform oral sex upon him. She made no reply. The appellant then pushed the complainant backwards and she lost her balance, falling onto the toilet seat, which cracked under her weight. The appellant then grabbed the complainant's legs and pinned her feet under his armpits from the ankles and grabbed at her jeans, which then came down. 9The appellant then penetrated the complainant. This lasted for about a minute. The appellant and the complainant then tidied themselves using toilet paper that was placed in the toilet and flushed. The complainant washed her hands. The appellant had by then walked into the kitchen. He sat down on a stool at the breakfast bar and said, "I might have a beer now". He proceeded thereafter to drink three beers to which he helped himself. The complainant sat opposite him. He said to the complainant, "Don't tell anyone about this. Don't tell anyone". The complainant replied, "Alright, alright" or "No I won't, no I won't". 10The complainant was very scared and was trying to keep herself calm. She did not call out to her son for help, as she was afraid of her son's reaction. The appellant asked her how often she went to town and he said to her, "When you do, ring me. [Your partner] has my phone number". The complainant said that she thought she agreed because she would have said anything to get him to go. The appellant said, "I can't keep coming here, people will get suspicious, I'm known as a bad boy around town". The appellant left via the laundry. The complainant went with him out to his vehicle. The appellant asked her to look at a plastic sign on the rear window, which read: "I like my beer cold, my women hot, my cars fast". He turned to her again and pushed her backwards onto the bonnet of an old Ford. She said, "You'd better go, [my partner] will be home soon". He left. The whole episode lasted about 45 minutes. 11The complainant then showered and changed her clothes. She did not tell her partner what had happened when he came home, as she was ashamed and frightened of his reaction. She did not tell her son either. She went to bed late but could not sleep. She told her partner what had happened the next day by saying, "[The appellant] raped me". The police were called on the evening of 29 February 2008 and attended the home at about 2.30am on 1 March 2008. They left at about 7.40am. The complainant and her partner went to the hospital that same day. 12While the complainant was at the hospital, her partner's phone rang. It was the appellant. He identified himself and asked if the complainant's partner would come and see him. He was told "No". He then asked if he could come and see the complainant's partner. He was told "No". The appellant then said, "Please ... don't cause any trouble". The complainant's partner hung up. 13The complainant made a statement to police on 2 March 2008. 14On 6 March 2008 the complainant took part in a telephone conversation with the appellant. This was organised by the police who were present when it took place. A transcript of the recording of the conversation became an exhibit in the proceedings. Part of that recording is as follows: "C: Been a week now. A: Yeah. C: I been pretty upset by all this. Um.. A: Well I'm upset too because I know I shouldn't have done it. But you could've said Look, don't do it. C: I did say that to you. A: Yeah. C: I did say that to you I did. A: I just hope that you don't make much trouble for me please. ... C: Oh right. Right but why after all this had happened and I had said no to you when you had been there in the kitchen in that corner and you were putting your hands up under my T-shirt and that and you were grabbin' me you knew I didn't want you to do that didn't you? A: Yep. C: You knew that. A: Yeah. ... C: When you put me in the laundry, why did you lock the door? Why why did you lock the door? A: No you locked the door. C: No I did not lock that door. A: [Complainant], you locked that door. C: No I didn't. A: Because because your son was in there in, in, in, ah in the bedroom. ... C: But the thing is [appellant], at the, at the end of the day you know that what you've done you have raped me. You know that don't you? A: I'm not goin' to I'm not denyin' it because I tried and I thought, I thought you wanted to right? C: You thought I wanted to? A: Oh that I thought you wanted, honest but.. C: You thought I wanted.. A: I but [complainant] I know I'm I'm in the wrong." 15The appellant did not give evidence at the trial.

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.

Ground 7 33In Kurdi v R [2011] NSWCCA 179 at [3]-[18], Bathurst CJ reviewed the principles applying to cases where the verdict of a jury is challenged under the provisions of s 6(1) of the Criminal Appeal Act 1912 upon the basis that it is unreasonable, or cannot be supported, having regard to the evidence. Those principles are uncontroversial and guide this Court in the determination of this ground of appeal. 34The appellant's case at trial was that the jury would reject the complainant's evidence as not credible, to the effect that it was she who initiated the sexual contact, and that she had taken the appellant by the hand and led him into the laundry. The appellant's case at trial also challenged the complainant's account that any sexual activity had occurred in the kitchen. The complainant wholly rejected the case put to her in cross-examination. Those denials included the following: that she offered the appellant a beer or a cup of tea; that she presented him with a beer or made herself a cup of tea; that she sat at the breakfast bar with him; that the television was on and that she told the appellant that her son was watching it; that the appellant asked to meet her son; that the reason that she did not call out to her son was that the appellant did not touch her on the breast; that the appellant wished her a Merry Christmas and a Happy New Year and gave her a kiss on the cheek; that she kissed him back; that she took his hand and proceeded into the pantry and then the laundry; that she pulled the door closed and locked it; that she closed and locked the door to make sure that her son would not disturb them in the laundry; that the reason her jeans leg came off easily was because she pulled her leg out herself; that she and the appellant engaged in marital infidelity and she consented to sexual intercourse with the appellant. 35It was open to the jury to accept these denials. More importantly, in the light of recent authority and having regard to the whole of the evidence, I consider that they should be accepted. 36The appellant's submissions focussed primarily on three matters. First, who locked the laundry door. Secondly, the failure to complain, resist or escape when there were ready means available to do so and when the complainant's son was available to come to her aid. Thirdly, the fact that after the offence the appellant went into the kitchen and drank beer. 37None of these features was an intermediate fact upon which the jury had, or this Court on appeal has, to be satisfied beyond reasonable doubt before they could convict. The jury was, and this Court is now, entitled and required to assess and evaluate the evidence relating to each matter in the light of the totality of the evidence. Each matter had to be viewed in context. 38The issue of who locked the door and why was agitated at length in the course of the evidence at the trial. The appellant's arguments are predicated upon him being truthful in the telephone conversation when he disputed that it was he who locked the door and upon a rejection of the complainant's evidence that he did so. However, the fact that the appellant denied that he locked the door does not correspond necessarily to a finding that the complainant should not be believed. 39There was no relevant failure to complain. The complainant told her partner what had occurred within 24 hours of the events in question. She waited that long because she was ashamed and frightened of the reaction she might get. She did not tell her son what had happened because she wanted to protect him from it. The complainant conceded that she could have moved quickly up the hallway to her son's room and that she made no attempt to do so while the appellant was there. She did not call out for help. She did not try to escape, despite an opportunity to do so, because she was scared. The Crown contended that all of this evidence was entirely understandable and commonplace in cases of sexual assault. I agree. 40All of the matters to which the appellant draws attention were matters that were properly within the province of the jury. It is convenient at this point to recall what was said in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited by the Chief Justice in Kurdi at [6] as follows: "[6] In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, the majority of the High Court (Mason CJ, Deane, Dawson and Toohey JJ) set out the approach which should be adopted when a ground of appeal is that the verdict of the jury is unreasonable or cannot be supported by the evidence. Relevantly, their Honours stated at 493: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.' And, at 494-495: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' " 41I consider that, upon the whole of the evidence, it was clearly open to the jury, and it is clearly open to this Court, to be satisfied beyond reasonable doubt that the accused was guilty. I do not consider that any reasonable doubt attends that conclusion. The matters to which the appellant points were matters about which the complainant gave evidence and upon which she was cross-examined. The fact that an alternative possibility may have been raised in each case does not mean that the verdict was unreasonable or cannot be supported having regard to that evidence. 42The complainant described how she and the appellant went from the kitchen to the laundry. It was open to the jury to accept, and I accept, that version as truthful. No part of the evidence leads to the result that an acceptance of the complainant's version was unreasonable. The same applies to the issue of who locked the door. The issue of why only one door was locked does not seem to be particularly relevant and its importance or significance has not otherwise been explained by the appellant in support of this ground. 43The complainant gave evidence that the appellant removed her clothing. The appellant's submission appears to be that because the complainant was wearing jeans, he could not have undressed her without her co-operation. However, once again, that was evidence that was open to the jury to accept or to reject. It is evidence that I accept, having regard to the whole of the evidence. It is not evidence, in the light of all the evidence in the case, that apparently contains discrepancies, or displays inadequacies, or which is tainted or otherwise lacks probative force in such a way as to lead this Court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. The same can be said of the fact that the appellant proceeded to go to the kitchen and drink beer before leaving. It was clearly open to the jury to find, and I would find, that audacious conduct of its kind was consistent with the appellant's other conduct exhibited by him immediately beforehand in the commission of the offences. 44Moreover, the whole of the evidence in the case included the taped conversation between the complainant and the appellant. The jury considered these preceding issues in the light of the terms of that conversation, which are strongly probative of the appellant's guilt. I consider them to be strongly probative of the appellant's guilt. His comments to the complainant during that conversation are consistent with knowledge on his part that he did not have the complainant's consent to engage in sexual intercourse. There was no issue at the trial or in this Court that the appellant's comments in that conversation amounted to admissions. 45As the authorities make clear, the ultimate question must always be whether this Court thinks that upon the whole of the evidence it was open to the jury, properly directed, to be satisfied beyond reasonable doubt that the accused was guilty. In my view it was. 46I consider that this ground must also fail.

Conclusion 47It follows, in my opinion, that the appeal should be dismissed.

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