Beattie v R

Court of Criminal Appeal (NSW)|2020-11-26|Before: Johnson J, Hulme J, Wilson J

Judgment

JOHNSON J: By Notice of Appeal filed on 22 September 2020, the Appellant, Joshua Henry Beattie, appealed against his conviction by a jury at the Sydney District Court on 6 March 2020 upon a charge of having sexual intercourse without consent, knowing that the complainant was not consenting, contrary to s.61I Crimes Act 1900.

Appeal Against Conviction Prior to Sentencing

The Appellant stood trial before his Honour Judge Mahony SC and a jury upon two counts, each of which alleged that between 25 May 2018 and 26 May 2018 at [location] in the State of New South Wales, he did have sexual intercourse with the complainant without her consent, knowing that she was not consenting contrary to s.61I Crimes Act 1900.

Hearing of the Appeal

The hearing of the appeal proceeded before this Court on 26 November 2020. The written submissions furnished for the Crown acknowledged that erroneous directions had been given to the jury so that a proper foundation had been established for the Court to allow the appeal, quash the conviction and direct a retrial.
The Court was satisfied that error had been demonstrated by the Appellant and that the proper course was to allow the appeal and order a new trial. Accordingly, the Court made the following orders: "1. Grant leave to the Applicant under Rule 4 Criminal Appeal Rules to rely upon Ground 2. 2. Allow the appeal against conviction at the Sydney District Court on 6 March 2020 for an offence under s.61I Crimes Act 1900. 3. Quash the conviction and order that there be a retrial."
It was the understanding of the Court that the retrial of the Appellant on Count 1 would take place on 22 February 2021 with the Appellant to be indicted upon Counts 1 and 2 in the same way as he had been at the commencement of the trial which concluded on 6 March 2020.
The Court indicated that reasons for making these orders would be published at a later time.
My reasons for joining in the orders made on 26 November 2020 are contained in this judgment.

A Short Overview of the Trial

The alleged offences were said to have been committed against the complainant as part of a single course of conduct early in the morning of Saturday, 26 May 2018.
The Appellant and the complainant were amongst a group of university student friends attending a party at a house in Sydney on the night of Friday, 25 May 2018.
The complainant had arrived at the party with another friend at about 7.00 pm or 8.00 pm. Thereafter, she consumed a considerable amount of alcohol and became intoxicated. The complainant had a nascent relationship with a male student at the party with whom she had previously had sexual intercourse on two occasions. In the course of the evening, the complainant engaged in some intimate kissing with this male friend and expressed her wish to him (and to some other friends at the party) that she would like him to come to her bed that night. The male friend declined, confirming his romantic interest in the complainant, but indicating that she was too drunk and that they should wait for another occasion.
At some stage later that evening, the intoxicated complainant went to an upstairs bedroom in the house where the party was held and fell asleep in a loft bed in that room.
Thereafter, the Appellant went to the bedroom in which the complainant was sleeping. He slept for some time in the bed with her, but later awoke, engaging in some kissing of the complainant and then performing cunnilingus on her (Count 1) before engaging in unprotected penile/vaginal sexual intercourse during which he ejaculated (Count 2).
At about 5.45 am on 26 May 2018, the alarm on the complainant's mobile phone went off. When the light in the room was turned on, the complainant saw the Appellant. She complained immediately that she had thought that the person with whom she had engaged in sexual acts was her other male friend and not the Appellant. The complainant immediately raised the alarm with her friends as to what had happened and made a complaint to police within 24 hours.
The Appellant was arrested and charged with the offences on 11 December 2018.
The Appellant gave evidence at the trial and said that, when he got into bed, he was not aware that another person was present. He said that he woke up and felt an arm around him and began kissing that person and realised that it was the complainant. He said that he asked the complainant if she had a condom and that her response was "It's OK, it's alright".
On 6 March 2020, the jury found the Appellant guilty of Count 1 (oral intercourse), but was unable to reach either a unanimous or a majority verdict on Count 2 (penile/vaginal intercourse).

Grounds of Appeal

The Appellant relies upon the following grounds of appeal: 1. Ground 1 - His Honour, the trial Judge, misdirected the jury on the effect of substantial intoxication on the complainant's capacity to consent. 2. Ground 2 - His Honour, the trial Judge, misdirected the jury on the knowledge of lack of consent that the Crown was required to prove as an element of the offences.

The Way in Which the Crown Put its Case at the Trial

Given the grounds of appeal raised, it is helpful to note the way the Crown Prosecutor put the Crown case at trial. In opening to the jury, the Crown Prosecutor said (T21-22, 24 February 2020): "The evidence will be the accused climbed the ladder and got into bed with the complainant which caused her to rouse slightly, slightly wake a little bit. The room was dark. She will tell you she couldn't see who got into bed with her however she recognised [her male friend's] distinctive smell and assumed the accused was actually [her male friend] taking up her earlier invitation to join her in bed. She was still wearing the T shirt that [her male friend] had given her earlier in the evening. The complainant will say that she fell back to sleep briefly but woke again shortly thereafter. The accused kissed her on the lips and she responded without passion or energy as she will tell you she was still feeling quite sleepy and intoxicated. The accused then rolled her onto her back, got on top of her and performed oral sex on her for about 30 seconds to a minute. He then, the evidence will be, inserted his penis into her vagina. She felt some pain inside her vagina followed by the rocking motion of sex. Shortly thereafter, her mobile phone went off. The accused got out of bed and turned it off. The complainant woke up completely for the first time and said words to the effect of 'Fuck, wait, who is this? Turn on the light'. The complainant was shocked to see the accused and will tell you she said something like 'What the fuck? Why are you even in my room?' And the accused then said to her, 'Oh, what the fuck? It's you, [complainant's name]. Are you on birth control?' The complainant then said, 'What the fuck? Get out of my fucking room'. The accused then left. In the courts we encourage people to say exactly what was said, not to use euphemisms for those words. That's why I am saying them because I expect they will be said before you. The complainant was in shock and she began to cry. She will tell you she felt violated and disgusted as she thought she was having sex with [her male friend] not the accused. She put on her clothes and walked out of the bedroom where she saw [another friend], who had overheard the complainant shouting, because he was asleep on the couch just outside this room."
The closing address of the Crown Prosecutor to the jury included the following (T257-258, 2 March 2020): "The complainant … states that she did not consent to sexual intercourse with the accused. She thought she was having sexual intercourse with [her male friend]. Her evidence is that the accused made no efforts to identify himself or confirm with the [complainant] that she was consenting to sexual intercourse with him. The evidence also establishes that the complainant was heavily intoxicated and that both she and [her male friend] had made reference to her level of intoxication in their evidence and during the course of this episode. She also said that she was asleep when the accused climbed into bed with her and fell asleep immediately after he climbed in the bed with her. She was therefore asleep when the accused got into bed with her and she told you that she started to wake when he touched her and started to perform oral sex on her. You can also conclude, I submit, that the accused had heard the complainant expressing a desire, or through others, a desire to have sex or sleep with [her male friend] on that evening and that he took advantage of that fact and the fact of her intoxication."

The Crown and Defence Cases at Trial

The Crown case at trial was that the Appellant entered the loft bed in the early hours of the morning. The complainant was substantially affected by alcohol and had oral then penile/vaginal sex with the Appellant believing him to be her male friend. The male friend was also at the party and was a person with whom the complainant had previously had sex and with whom she was in the nascent stages of a relationship.
The defence case at trial was that, at the time of the sexual intercourse, the complainant was not substantially intoxicated and was well aware that it was the Appellant with whom she was having sex. Further, it was the defence case that the Appellant did not know (if it was the case) that the complainant was not consenting to the intercourse.
It may be seen from the extracts of the Crown opening and closing addresses to the jury that, although the Crown stated that the complainant had been quite intoxicated and that she was not fully awake at the commencement of the encounter, the Crown case was advanced mainly on the basis that the complainant had consented to (or acquiesced in) the sexual intercourse under a mistaken belief as to the identity of the Appellant as she had believed he was in fact her male friend.
There were other features emphasised during the Crown case, and in cross-examination of the Appellant, which made it clear that this was the central theme of the Crown case. These included: 1. an issue about whether the Appellant had been present when the sleeping arrangements for the night had been advised by the host (which the Appellant denied); 2. the Appellant's knowledge of the relationship between the complainant and her male friend and that she had said she wanted the male friend to go to her bed that evening (which the Appellant denied); 3. the Appellant's opening of another door and looking into another room prior to going into the room in which the complainant was sleeping (said to support the suggestion that the Appellant was looking for the complainant and deliberately sought to take advantage of her, which the Appellant denied).

Prior Discussion Concerning Directions to be Given to the Jury

During the course of the final day of evidence on Friday 28 February 2020, the trial Judge informed counsel that he would have a number of draft directions for them to peruse over the weekend. His Honour noted that the Crown "didn't open on recklessness and the draft does not include any reference to recklessness" (T246.17).
At the end of proceedings on 28 February 2020, his Honour provided a bundle of draft directions (MFI9) to counsel for their consideration (T253).
Closing addresses by the Crown Prosecutor and defence counsel proceeded on Monday 2 March 2020 and concluded just before the luncheon adjournment (T257ff).

Directions to Jury During Summing Up

His Honour summed up to the jury on the afternoon of 2 March 2020. In the course of the summing up, written directions were distributed to the jury in the form which had been provided to counsel on 28 February 2020 (MFI9).
The elements of the offences in Counts 1 and 2 were described in the following way: "The Crown must prove beyond reasonable doubt the following elements: 1. Between 25 May 2018 and 26 May 2018 at [location] 2. the accused had sexual intercourse with [the complainant] 3. without the consent of [the complainant], and 4. knowing she was not consenting to the sexual intercourse."
The written directions explained "consent" in the following way: "'CONSENT' 'Consent' involves the full and voluntary agreement on the part of a person to engage in sexual intercourse. It can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be words; it also may be communicated in other ways such as the offering of resistance, although this is not necessary as the law specifically provides that a person who does not offer any physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. A person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity."
His Honour gave further written directions to the jury concerning "consent" and "knowledge" (my emphasis): "Consent The accused does not have to prove that [the complainant] consented; it is for the Crown to prove beyond reasonable doubt that she did not. A person consents to sexual intercourse if she freely and voluntarily agrees to have sexual intercourse with another person. That consent can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words; it also may be communicated in other ways such as the offering of resistance, although this is not necessary as the law specifically provides that a person who does not offer any physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Consent which is obtained after persuasion is still consent provided ultimately it is given freely and voluntarily. The law provides that a person does not consent to sexual intercourse: (a) 'If the person does not have the capacity to consent to the sexual intercourse if that person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep.' In considering whether the Crown has proved beyond reasonable doubt that [the complainant] did not consent, you may have regard to the following matter if you have found it proved on the evidence before you: Namely, that the complainant had sexual intercourse whilst substantially intoxicated by alcohol. The law provides that if a person is substantially intoxicated by alcohol, that finding would negate consent to sexual intercourse. It does not follow simply because you find that fact proved that you should be satisfied beyond reasonable doubt that [the complainant] did not consent, but it is a relevant fact that you should consider in deciding whether the Crown has proved this element of the offence as it must do before you can convict the accused. The Crown must prove beyond reasonable doubt that [the complainant] did not consent. If the Crown fails to do so, then [the Appellant] is not guilty of this charge. If you are satisfied beyond reasonable doubt that the accused did have sexual intercourse with [the complainant] and also that she did not consent, then you must go on to consider the third element, namely, whether the accused knew that she was not consenting. Knowledge The Crown must prove to you, beyond reasonable doubt, that the accused knew that [the complainant] did not consent. It is the accused's actual knowledge of the lack of consent with which you are concerned. You might ask how the Crown can prove that the accused was aware that [the complainant] did not consent without an admission from the accused to that effect. The Crown asks you to infer or conclude from all the facts which it has set out to prove, that the accused must have known and that he did indeed know that [the complainant] did not consent as she was intoxicated at the time. In a situation where [the complainant] does not in fact consent, the accused's state of mind at the time of the act of intercourse might be that he actually knew that [the complainant] was not consenting. That is a guilty state of mind. If the Crown satisfies you beyond reasonable doubt that that was the state of mind of [the Appellant] at the time of the act of sexual intercourse, then the third element of the charge has been made out. On the other hand, you may decide on the basis of the evidence led in the trial and relied on by the accused that he might have believed that [the complainant] was consenting to sexual intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. Therefore, if you are not satisfied that [the Appellant] knew that [the complainant] was not consenting, the Crown must prove one of two facts before you can find the Accused guilty, either; (a) That [the Appellant] did not honestly believe that [the complainant] was consenting, or (b) That if he did have an honest belief in consent, that he had no reasonable grounds for that belief. It is for the Crown to prove that [the Appellant] had a guilty mind, and so if there is a reasonable possibility that he did honestly believe on reasonable grounds that [the complainant] was consenting, then you would have to find that this third element of the offence is not made out, and return a verdict of not guilty of this charge. In determining whether the Crown has proved that [the Appellant] actually knew that [the complainant] was not consenting to intercourse with her, you must take into account what steps were actually taken by [the Appellant] to ascertain whether [the complainant] was consenting to intercourse."
When the point was reached in the summing up for the written directions to be provided to the jury, his Honour said (SU11): "In a moment I will hand you out a set of written directions, which includes the essential elements of the charges. That document should serve as an aide memoir and is not a substitute for my oral directions. In the event that you were to find when you are deliberating that you had some doubt about a particular direction I have given, you should not attempt to resolve that doubt by yourselves construing the written directions. What you should do is send me a note saying that you would like to have the matter clarified and I will then reconvene the Court and give you further directions. There is an elements document and a definitions; you should get one of each."
The written directions were then distributed to the jury and his Honour then took the jury through the documents (SU11-16) during which he repeated what was said in the written directions concerning consent and knowledge. His Honour concluded his summing up, with the jury retiring to consider its verdicts at 3.16 pm on 2 March 2020.

Responses to Jury Questions

The jury continued its deliberations on 3 March 2020 and 4 March 2020 and, at 9.40 am on 4 March 2020, his Honour received a note from the jury containing seven questions on a range of issues including consent (MFI11). The questions were as follows: "Question 1: Does full and voluntary agreement require a person to be fully awake and alert or can a half awake person legally give full and voluntary agreement? Question 2: Does knowledge that a person is not fully awake equal knowledge that a person is not consenting? Question 3: Elements 3 and 4 - If you have one answer for three (consent) and a different answer for four (knowing), how do you decide which answer is applicable for the whole indictment? Question 4: In reference to elements 3 and 4, if 'the complainant] did not give consent due to being intoxicated, does that discount the need to consider element 4? Question 5: What level of intoxication negates consent the law states if a person does not have the capacity to make an informed consent due to being intoxicated? Question 6: Please restate the law regarding consent/knowledge, in particular nonverbal consent? Question 7: Please define beyond reasonable doubt."
The trial Judge discussed with counsel the questions in the absence of the jury, but his Honour did not set out his proposed answers in this discussion (SU40-42).
When the jury returned to Court, the trial Judge gave the following further directions in response to the jury's questions (SU43-48) (my emphasis): "I am going to go through the questions for you and give you directions of law but, in respect of questions 3, 4 and 6, I am going to repeat the direction I gave you earlier in the trial about knowledge and consent so that you fully understand it. In answer to question 1, 'Does full and voluntary agreement require a person to be fully awake and alert or can a half awake person legally give full and voluntary agreement?' I direct you that a half awake person may consent to sexual activity provided you find the consent is given freely and voluntarily. The law provides that there can be no consent if that person is unconscious or asleep and the law further provides that consent is negated if that person is substantially affected by alcohol. Question 2, 'Does knowledge that a person is not fully awake equal knowledge that a person is not consenting?' the short answer to that question is no. Whether a person is not fully awake is a matter that you may take into account in determining whether consent is given freely and voluntarily. This is a factual matter and, therefore, it is a matter for you to determine. Before I answer specifically question 3 and following, I am going to now repeat to you the direction I gave you earlier. The accused is charged with sexual intercourse without consent, knowing that the complainant was not consenting. The Crown alleges in counts 1 and 2 that, on 26 May 2018 at [location], the accused did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting. The Crown must prove beyond reasonable doubt, therefore, first, at the time and place alleged the accused had sexual intercourse with [the complainant] - and you know that is not in dispute; those two matters are not in dispute - two, without [the complainant's] consent, that is the third element in the elements documents you have been given and, three, knowing that [the complainant] did not consent, and that is the fourth element in respect of each charge on the indictment. For the purpose of your question I am going to pass over what I told you about sexual intercourse because it is not in dispute. Provided you are satisfied beyond reasonable doubt that the accused had sexual intercourse then you must consider the next element, that is, whether the Crown has proved beyond reasonable doubt that [the complainant] did not consent. The accused does not have to prove that [the complainant] consented. It is for the Crown to prove beyond reasonable doubt that she did not. A person consents to sexual intercourse if she freely and voluntarily agrees to have sexual intercourse with another person. That consent can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words. It also may be communicated in other ways, such as the offering of resistance, although this is not necessary as the law specifically provide that a person who does not offer any physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Consent which is obtained after persuasion is still consent, provided ultimately it is given freely and voluntarily. The law provides that a person does not consent to sexual intercourse if the person does not have the capacity to consent to the sexual intercourse if that person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep. In considering whether the Crown has proved beyond reasonable doubt that [the complainant] did not consent, you may have regard to the following matters if have found it proved on the evidence before you, namely, that the complainant, [the complainant], had sexual intercourse while substantially intoxicated by alcohol. The law provides that if a person is substantially intoxicated by alcohol that finding would negate consent to sexual intercourse. It does not follow simply because you find that fact proved that you should be satisfied beyond reasonable doubt that [the complainant] did not consent, but it is a relevant fact that you should consider in deciding whether the Crown has proved this element of the offence, as it must do before you can convict the accused. The Crown must prove beyond reasonable doubt that [the complainant] did not consent. If the Crown fails to do so then [the Appellant] is not guilty of each charge on the indictment. If you are satisfied beyond reasonable doubt that the accused did have sexual intercourse with [the complainant] and also that she did not consent, then you must go on to consider the last element, namely, whether the accused knew that she was not consenting. In respect of knowledge, the Crown must prove to you beyond reasonable doubt that the accused knew that [the complainant] did not consent. It is the accused's actual knowledge of the lack of consent with which you are concerned. You might ask how the Crown can prove that the accused was aware that [the complainant] did not consent without an admission from the accused to that effect. The Crown asks you to infer or conclude from all the facts which it has set out to prove that the accused must have known and that he did, indeed, know that [the complainant] did not consent as such was intoxicated at the time. In a situation where [the complainant] does not, in fact, consent the accused's state of mind at the time of the act of intercourse might be that he actually knew that [the complainant] was not consenting. That is a guilty state of mind. If the Crown satisfies you beyond reasonable doubt that that was the state of mind of [the Appellant] at the time of the act of sexual intercourse then the final element of the charge has been made out. On the other hand, you may decide, on the basis of the evidence led in the trial and relied on by the accused, that he might have believed that [the complainant] was consenting to sexual intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. Therefore, if you are not satisfied that [the Appellant] knew that [the complainant] was not consenting, the Crown must prove one of two facts before you can find the accused guilty. Those facts are either (a) that [the Appellant] did not honestly believe that [the complainant] was consenting, or (b) that, if he did have an honest belief in consent, he had no reasonable grounds for that belief. It is for the Crown to prove that [the Appellant] had a guilty mind and so if there is any reasonable possibility that he did honestly believe on reasonable grounds that [the complainant] was consenting then you would have to find that this third element of the offence is not made out and return a verdict of not guilty of the charges on the indictment. In determining whether the Crown has proven that [the Appellant] actually knew that [the complainant] was not consenting to intercourse with him, you must take into account what steps were actually taken by [the Appellant] to ascertain whether [the complainant] was consenting to the intercourse. Going back to your questions, question 3 read, 'Elements 3 and 4' - they are the elements of consent and knowledge - 'If you have one answer to three, consent, and a different answer for four, knowing, how do you decide which answer is applicable for the whole indictment?' First, in relation to each charge, count 1 and count 2, you must be satisfied beyond reasonable doubt of each of those elements before you can convict the accused. You also must consider each count separately. So you must be satisfied beyond reasonable doubt in respect of elements 3 and 4 in respect of both counts on the indictment. Where you refer in your question to 'the whole indictment', I emphasise that you must consider both counts separately. Question 4 reads, 'In reference to elements 3 and 4, if [the complainant] did not give consent due to being intoxicated, does that discount the need to consider element 4?' The answer is no. If you find that [the complainant] did not give consent, you then go on to consider element number 4, namely, whether the accused knew that she was not consenting. Question 5 is, 'What level of intoxication negates consent?' The law states, if a person does not have the capacity to make informed consent due to being intoxicated, the level of intoxication that negates consent is substantial intoxication. There is no definition of 'substantial intoxication'. They are ordinary English words which are to be given their ordinary English meaning. Question 6, 'Please restate the law regarding consent/knowledge, in particular nonverbal consent,' I have given you the direction in relation to that already and I will not repeat it again. Question 7, 'Please define 'beyond reasonable doubt',' as I told you in my summing up, the words 'beyond reasonable doubt' are ordinary English words and they are to be given their ordinary English meaning. The accumulated knowledge over the centuries is that, by trying to further define those, trial judges do not assist juries in coming to their determination. You give them their ordinary English meaning. Mr Crown, do you have anything to add? CROWN PROSECUTOR: No, your Honour, thank you. HIS HONOUR: Mr Green? GREEN: There is something I need to raise with your Honour but perhaps in the absence of the jury."
The jury left the courtroom and trial counsel for the Appellant raised concerns with respect to the directions given to the jury concerning substantial intoxication. Reference was made to s.61HE Crimes Act 1900 which his Honour had utilised for the purpose of framing the directions. As the incidents giving rise to the charges occurred prior to 1 December 2018, the applicable provision was s.61HA Crimes Act 1900, which was in similar but not identical terms to s.61HE. Section 61HE has applied since the commencement of the relevant provision in the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 on 1 December 2018. Section 61HA is reproduced later in this judgment (at [50]) with points of distinction between s.61HA and s.61HE being noted as well (at [51]-[52]).
Trial counsel for the appellant said in respect of the trial Judge's directions (SU48-50) (my emphasis): "GREEN: Your Honour, as a result of those questions I've had regard again to your Honour's written document and it's come into stark contrast that maybe there's some confusion as a result of the wording in relation to 'substantial intoxication'. If I start on p 2, there's no argument that the law provides that a person does not consent and, in fact, cannot consent to sexual intercourse if a person doesn't have the capacity to do so, and that's often the case because they so intoxicated by alcohol they're unconscious or don't have capacity. However, where it continues on at the very bottom of the page - 'Namely, the complainant had sexual intercourse while substantial intoxicated by alcohol, the law provides that if a person is substantially intoxicated by alcohol that finding would negate consent to sexual intercourse'. I'm not exactly sure that's correct, your Honour. HIS HONOUR: It comes from s 61 HE of the Crimes Act. GREEN: I understand that. Section 61HE(5) has a heading of 'Negation of consent' and states, 'A person does not consent to sexual activity' in the following circumstances and (a) is 'if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive capacity, or' (b), which is relevant here, 'if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep,' and then it goes on. Subsection (8) states the following, 'The grounds on which it may be established that a person does not consent to a sexual activity include (a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug.' So my position is that under 61 HE, if the jury made a finding that the complainant was substantially intoxicated by alcohol, it doesn't automatically negate consent but it's something they can take into account. HIS HONOUR: Yes, that's what I say on p 3 in the second paragraph. GREEN: I understand what your Honour says about the second paragraph. It's the first paragraph that now causes me concern, 'The law provides if a person is substantially intoxicated by alcohol that finding would negate consent to sexual intercourse.' HIS HONOUR: Yes, you had the opportunity during the trial raise that concern, Mr Green. The following paragraph qualifies it. GREEN: I understand the following paragraph clarifies that. HIS HONOUR: Yes. GREEN: Given the questions that have flowed, as I said, I didn't - given the context that one paragraph at the very top of p 3 appeared, it didn't have any great consequence, but given there now appears to be some confusion on the part of the jury. In any event, I've raised those concerns, your Honour. HIS HONOUR: Yes. Having raised them, do you propose that I take a particular course or not? GREEN: Yes, I do, your Honour. HIS HONOUR: What's that? GREEN: I think the jury need to be redirected, not necessarily by simply reading out the first paragraph on p 3 but by stating that an unconscious person, by way of intoxication or otherwise, cannot consent to sexual intercourse but a person who is substantially intoxicated by alcohol, that matter can be taken into account when considering whether a person can consent or is capable of consenting to sexual intercourse. HIS HONOUR: What do you say, Mr Crown? CROWN PROSECUTOR: No, I remain of the view that the two paragraphs completely cover the situation. I don't think any further redirection is required. HIS HONOUR: Yes, Mr Green, I'm afraid I'm against you on that. I think they've been told on two occasions now including that substantial intoxication is given no definition and is to be referred to its ordinary English meaning. GREEN: If the Court pleases. HIS HONOUR: In that case do you want me to bring the jury back? CROWN PROSECUTOR: I don't, your Honour. I think you could just tell them they may now continue. HIS HONOUR: Yes, thank you, court officer. CROWN PROSECUTOR: It's a matter for my friend. Do you want them in? GREEN: No. HIS HONOUR: Yes, I'll instruct the court officer to let the jury know that they may now continue their deliberations. CROWN PROSECUTOR: Thank you, your Honour."
In light of the trial Judge's ruling, the jury were informed that they could continue their deliberations.
At 12.46 pm on 4 March 2020, the jury sent a note indicating that they "are not unanimous on either charge" (MFI12). After discussion with trial counsel, his Honour gave a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 (SU51-53).
The jury continued deliberations for the balance of 4 March 2020 and, at 11.00 am on 5 March 2020, a further jury note was provided which contained the following questions (MFI13) (my emphasis): "1. This question is in relation to the elements document regarding point 3. In the case of mistaken identity, if consent is given to one person is it possible to be mistakenly transferred to another and be considered to have been given freely and voluntarily? 2. This question is in relation to the elements document regarding point 4. Could you please explain with further detail what constitutes a guilty state of mind and how we are to apply it?"
After discussion with counsel, the jury returned to Court and his Honour responded to their questions in the following way (SU56-58) (my emphasis): "Your note, which has been marked for identification as MFI 13, I will read in a moment but I am going to just say that you have done exactly as I asked of you, namely, if you had any difficulties with the elements document not to construe it yourself but to ask for clarification of it. '1. This question is in relation to the elements document regarding point 3. In the case of mistaken identity, if consent is given to one person is it possible to be mistakenly transferred to another and be considered to have been given freely and voluntarily? 2. This question is in relation to the elements document regarding point 4. Could you please explain with further detail what constitutes a guilty state of mind and how we are to apply it?' If I go back to question 1, namely, 'In the case of mistaken identity, if consent is given to one person is it possible to be mistaken transferred to another and be considered to have been given freely and voluntarily?' the answer is no. In this case, if the complainant was mistaken as to the identity of the person in bed with her, you cannot find that the complainant consented freely and voluntarily to sexual intercourse with the accused. '2. Could you please explain with further detail what constitutes a guilty state of mind and how we are to apply it?' this relates to element 4, namely, knowing she was not consenting to the sexual intercourse, meaning that the accused knew that she was not consenting to the sexual intercourse. It is the accused's actual knowledge of the lack of consent with which you are concerned in respect of this element. You might ask how the Crown can prove that the accused was aware that [the complainant] did not consent without an admission from him to that effect. The Crown asks you to infer or conclude from all the facts which it has set out to prove that the accused must have known and that he did, indeed, know that [the complainant] did not consent as she was intoxicated at that time. In a situation where [the complainant] does not, in fact, consent, the accused's state of mind at the time of the act of intercourse might be that he actually knew that [the complainant] was not consenting. That is the guilty state of mind. If the Crown satisfies you beyond reasonable doubt that that was the state of mind of [the Appellant] at the time of the act of sexual intercourse then the final element of the charge has been made out. On the other hand, you may decide on the basis of the evidence led in the trial that was relied on by the accused that he might have believed that [the complainant] was consenting to sexual intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. Therefore, if you are not satisfied that [the Appellant] knew that [the complainant] was not consenting, the Crown must prove one of two facts before you can find the accused guilty. They are as follows: one, that [the Appellant] did not honestly believe that [the complainant] was consenting or, two, that, if he did have an honest belief in consent, he had no reasonable grounds for that belief. It is for the Crown to prove that [the Appellant] had a guilty mind and so, if there is a reasonable possibility that he did honestly believe, on reasonable grounds, that [the complainant] was consenting then you would have to find that this element of the offence is not made out and return a verdict of not guilty on each charge. In determining whether the Crown has proved that [the Appellant] actually knew that [the complainant] was not consenting to intercourse with her, you must take into account what steps were actually taken by [the Appellant] to ascertain whether [the complainant] was consenting to the intercourse. I remind you that the accused gave evidence that he believed that [the complainant] gave consent to him for the sexual intercourse that took place and that the Crown must prove beyond reasonable doubt the two matters which I have just taken you to, namely, one, that [the Appellant] did not honestly believe she was consenting or, two, that, if he did have an honest belief in consent, he had no reasonable ground for that belief. In repeating the direction and setting out those matters, I trust that that answers your questions. I am now going to ask you to go with the court officer and to continue your deliberations, thank you."
The jury retired to further consider its verdicts at 11.28 am on 5 March 2020. Later that day, his Honour gave the jury a majority verdict direction after complying with the necessary preconditions in that respect for the purpose of the Jury Act 1977.
The jury continued its deliberations on 5 March 2020 and, on 6 March 2020, returned a majority verdict of guilty on Count 1. His Honour discharged the jury without verdict on Count 2 upon the basis that a majority or unanimous verdict could not be reached on that count.

Section 61HA Crimes Act 1900

It is appropriate to set out the terms of s.61HA Crimes Act 1900, as it existed prior to 1 December 2018, which applied to the trial of the Appellant.
It is unfortunate that reference was made during the trial to s.61HE Crimes Act 1900 which did not commence until 1 December 2018. There are differences between the old s.61HA and the current s.61HE.
Section 61HA provided as follows: "61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit 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. (4) Negation of consent A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (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."
For comparative purposes, it is useful to set out s.61HE, the successor provision to s.61HA. Section 61HE provides as follows: "61HE Consent in relation to sexual offences (1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF. (2) Meaning of 'consent' A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if - (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case - (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person. (5) Negation of consent A person does not consent to a sexual activity - (a) if the person does not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual activity because the person is unconscious or asleep, or (c) if the person consents to the sexual activity because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual activity because the person is unlawfully detained. (6) A person who consents to a sexual activity with or from another person under any of the following mistaken beliefs does not consent to the sexual activity - (a) a mistaken belief as to the identity of the other person, (b) a mistaken belief that the other person is married to the person, (c) a mistaken belief that the sexual activity is for health or hygienic purposes, (d) any other mistaken belief about the nature of the activity induced by fraudulent means. (7) For the purposes of subsection (3), the other person knows that the person does not consent to the sexual activity if the other person knows the person consents to the sexual activity under such a mistaken belief. (8) The grounds on which it may be established that a person does not consent to a sexual activity include - (a) if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug, or (b) if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person consents to the sexual activity because of the abuse of a position of authority or trust. (9) A person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity. (10) This section does not limit the grounds on which it may be established that a person does not consent to a sexual activity. (11) In this section - sexual activity means sexual intercourse, sexual touching or a sexual act."
It will be seen that the differences between the two sections include the following: 1. s.61HE(1) contains additional offences to which the provision applies; 2. the term "sexual intercourse" in s.61HA is replaced by the term "sexual activity" throughout s.61HE, with that term being defined in s.61HE(11) as meaning "sexual intercourse, sexual touching or a sexual act" so that the provision is wider than s.61HA which was confined to "sexual intercourse"; 3. s.61HA(3) is divided into s.61HE(3) and (4), with a number of changes including the term "other person" in s.61HA being replaced by the term "alleged victim" in s.61HE; 4. the provisions under the heading "Negation of consent" in s.61HA(4) are now contained in s.61HE(5); 5. what appeared in s.61HA(5) concerning "mistaken belief" is now contained in s.61HE(6), with certain additional amendments; 6. what appeared as a sentence at the end of s.61HA(5) concerning "mistaken belief" has now been inserted in s.61HE(7); and 7. the "substantially intoxicated" issue in s.61HA(6)(a) is now located in s.61HE(8)(a), although s.61HE(8)(a) is expressed, somewhat curiously, in terms that the "grounds on which it may be established that a person does not consent to a sexual activity" include "if the person consents to the sexual activity while substantially intoxicated".
It will be seen that there are similarities and differences between the old s.61HA and its successor in s.61HE so that care is required to direct attention to the applicable provision.

Ground 1 - Misdirection on Substantial Intoxication Concerning the Complainant's Capacity to Consent

As noted earlier (at [41]), the trial Judge refused an application by the Appellant's trial counsel to redirect the jury on the subject matter of the first ground of appeal. Accordingly, the Appellant does not require leave under Rule 4 Criminal Appeal Rules to rely on this ground. Submissions for the Appellant
Mr Smith, counsel for the Appellant, submitted that the written elements document did not comply with s.61HA(6)(a) in that the section stated that substantial intoxication "may" negate consent, but the written direction stated that it "would" negate consent. It was submitted that the three paragraphs of the written directions concerning intoxication (at [34] above) were apt to confuse the jury in that the second and third emphasised paragraphs stated contradictory things.
Counsel observed that, in oral directions, the trial Judge stated that the words "substantially intoxicated" are "ordinary English words that ought be given their ordinary English meaning" (SU15).
Mr Smith referred to Questions 4 and 5 as posed by the jury during deliberations (see [37] above). It was submitted that Questions 4 and 5 indicated a level of confusion as to the effect of intoxication on consent. It was submitted that trial counsel for the Appellant had made an appropriate application for a redirection having heard the responses given by the trial Judge to Questions 4 and 5. He submitted that the further oral direction given by the trial Judge was erroneous in that it stated that "consent is negated" if the person is substantially intoxicated. It was submitted that his Honour erred, as well, in the answer to Question 5 which raised the same topic and directed the jury that "the level of intoxication that negates consent is substantial intoxication".
It was submitted that the direct answer to the jury on Question 5 was clearly wrong and did not accord with s.61HA(6)(a) Crimes Act 1900.
Counsel for the Appellant submitted that trial counsel had sought to raise the issue with his Honour in the absence of the jury, but that his Honour declined to redirect the jury upon the basis that the third emphasised paragraph of the written directions concerning intoxication qualified the erroneous aspect of the direction (SU49).
Mr Smith submitted that the answer to Question 5 was the last direction given to the jury on the issue of intoxication before the verdict was delivered on Count 1 and that the direction was erroneous in its terms.
Counsel submitted that at no time was the jury given directions on substantial intoxication that were in accordance with the law. Submissions of the Crown
The Crown submitted that it is possible for the Crown, in a matter such as this, to put its case firstly on the basis of an actual lack of consent and, in the alternative, a lack of consent based upon a mistaken belief as to the identity of the other person. Reliance was placed in this respect upon Bochkov v R [2009] NSWCCA 166 where Giles JA (Buddin and Harrison JJ agreeing) said at [30]-[34] (referring to the applicable provision of the Crimes Act 1900): "30 Under s 61I it was for the Crown to prove two matters in relation to consent: that the complainant did not consent, and that the appellant knew that the complainant did not consent. 31 It would be proved that the complainant did not consent - (i) if the complainant in fact did not consent; or (ii) through the pathway of 'taken not to consent' in s 61R(2)(a), if the complainant consented under a mistaken belief as to the identity of the other person. 32 That the complainant did not consent was in part an artificial construct, encompassing consent under a mistaken belief by virtue of 'a deeming provision which extends what might be the limited denotation of the phrase 'does not consent' in s 61I': Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 at [31] per Gummow, Hayne and Heydon JJ. Proof that the appellant knew that the complainant did not consent then depended on the basis on which absence of consent was proved. 33 If the complainant in fact did not consent, it would be proved that the appellant knew that the complainant did not consent - (i) if the appellant knew that the complainant in fact did not consent; or (ii) through the pathway of 'taken to know' in s 61R(1), if the appellant was reckless as to whether the complainant consented. 34 If the complainant consented under a mistaken belief as to the identity of the other person, it would be proved that the appellant knew that the complainant did not consent, through the pathway of 'taken to know' in s 61R(2)(b), if he knew that the complainant consented under a mistaken belief."
It was submitted that, in the present case, using the references to pathways in Bockhov v R, the intoxication of the complainant (in combination with sleepiness) could have formed the basis for the complainant's lack of consent on the first pathway and/or otherwise could have been relevant to the complainant's mistake under the second pathway.
Whilst it does not appear to be the case that the first pathway was advanced on the basis of substantial intoxication alone (given the nature of the complainant's evidence at trial), the Crown submitted that, for present purposes, the Appellant appears to accept that the first pathway was a live issue at trial and that the complainant's level of intoxication was a relevant issue so that the direction on substantial intoxication could be given.
The Crown noted that the Appellant's complaint under the first ground of appeal was that the direction conflated substantial intoxication with the grounds vitiating consent under s.61HA(4)(b) being sleep and unconsciousness.
The Crown referred to the trial Judge's answers to the seven questions posed by the jury and observed that the Appellant relies, in particular, upon what his Honour said with respect to Questions 4 and 5. It was submitted that the trial Judge's response to the questions was qualified and made clear that substantial intoxication, if established, did not necessarily negate consent, but was a relevant factor to be considered.
The Crown relied upon Tabbah v R [2017] NSWCCA 55, where Button J (Hoeben CJ at CL and Payne JA agreeing) said with respect to s.61HA (at [140]-[144]) (my emphasis): "140 Fourthly, the section as a whole is an unusual amalgam of concepts. In sub-section (2), it defines consent (and therefore, conversely, lack of consent) in a clear and concise way. In the latter part of sub-section (3), it mandates things that must and must not be taken into account by the jury in assessing whether the Crown has proven the requisite mental element on the part of the accused. In sub-sections (4) and (5), it conclusively defines circumstances in which a complainant is to be regarded as not consenting. In the latter part of sub-section (5), it reverts to the topic of the inculpatory state of mind of the accused, and defines a further basis upon which that may be established. In sub-section (6), it sets out a non-exclusive list of 'grounds' that may lead to a conclusion by the jury that a complainant was not consenting. In sub-section (7), it is made clear that lack of 'actual physical resistance' on the part of a complainant does not, of itself, establish consent on his or her part. Finally, in sub-section (8), it is emphasised that this section (including the list in sub-section (6)) is not exclusive of other grounds on which it may be established that a person does not consent to sexual intercourse. 141 Turning to this particular example of application of the section, a number of the things said by the prosecutor to the jury were not strictly correct or at least potentially confusing; I infer that they occurred because of the difficult aspects of the section that I have summarised above. 142 In particular, one way of reading the extract of the opening in [124] above is that the fact that a person is substantially intoxicated by alcohol 'means' that he or she is not consenting to intercourse. As sub-section (6) demonstrates, that is merely a ground upon which it may be established that the person was not consenting: whether or not that factor actually establishes beyond reasonable doubt that the complainant was not giving free and voluntary agreement is a matter for the satisfaction of the jury. 143 Separately, I consider that the first extract from the closing address of the prosecutor that appears at [123] above also features an elision of concepts. Self-evidently, a person does not consent to sexual intercourse if he or she does not have the capacity to do so: as a matter of practical reality, human beings do not do things that they are incapable of doing. That principle is reflected in sub-section (4)(a). But to suggest that the circumstance of a person being substantially affected by alcohol meant of itself that he or she was incapable of consent was not correct. Nor would the fact that the complainant was substantially affected by alcohol mean that, of itself, it demonstrated that it was 'readily apparent' to the applicant that she was incapable of consenting. As sub-section (6) envisages, much will depend on the evidence in a particular trial, and the evaluation of it by the jury. 144 Thirdly, although the submission to the jury of the prosecutor that the complainant was 'unable to consent' may have been open on the evidence, and was consistent with the equivalence between incapacity to consent and lack of consent created by sub-section (4)(a), the reference was apt to confuse. That is because the state of mind of the complainant that needed to be proven beyond reasonable doubt was simply that the intercourse had occurred without her consent; in other words, without her free and voluntary agreement. The Crown did not have to go further and prove that the complainant was incapable of consenting. Although they are closely related, an incapacity to do something (whether it be to form a state of mind, to perform a physical act, or anything else) is conceptually separate from a failure to do that thing. In other words, if one did not have the capacity to do something, one cannot have done it; on the other hand, simply because one did have that capacity, does not mean that one actually did it."
The Crown submitted that, although part of his Honour's direction to the jury in the present case was expressed in absolute terms, taken as a whole it was sufficiently clear that substantial intoxication did not necessarily mean that consent was negated and accordingly there was no error of law.
If this Court formed a contrary view, the Crown accepted that the ground should be upheld and that the appropriate order would be for a retrial with no reliance being placed upon the proviso in s.6(1) Criminal Appeal Act 1912. Decision
I am satisfied that the issue of intoxication of the complainant arose sufficiently at the trial to call for an appropriate direction to be given with respect to substantial intoxication in accordance with s.61HA(6)(a) Crimes Act 1900.
Parts of the written and oral directions on substantial intoxication given by the trial Judge were inaccurate in that they suggested that substantial intoxication negated consent rather than it being a factor which the jury may take into account for the purpose of determining whether consent was negated. There was, at the least, an element of confusion in the directions given on this issue. Perhaps belatedly, trial counsel for the Appellant sought a redirection to clarify this issue, but his Honour declined to give a further direction (see [40] above).
I do not consider that the Crown is assisted by what was said in Tabbah v R. In that case, although an element of confusion had been introduced with respect to the relevant legal concepts in the addresses of counsel, it was held that the directions of the trial Judge were perfectly correct: Tabbah v R at [145]-[146]. In the present case, erroneous and confusing directions were given to the jury on the topic of substantial intoxication.
In the present case, there is at least a real risk that one or more members of the jury misunderstood the direction given with respect to substantial intoxication which was an issue of some significance in the circumstances of this trial.
I am satisfied that error has been demonstrated in accordance with the first ground of appeal.
The Crown submission that, if the Court found error, reliance would not be placed upon the proviso was both understandable and appropriate.
I uphold the first ground of appeal.

Ground 2 - Misdirection Concerning Knowledge of Lack of Consent as an Element of the Offence

It was common ground between counsel for the Appellant and the Crown that the matter complained of under the second ground of appeal was not the subject of any application for redirection by trial counsel for the Appellant. Accordingly, the Appellant requires leave under Rule 4 Criminal Appeal Rules to rely upon this ground. Submissions for the Appellant
Mr Smith submitted that the Crown case against the Appellant rested on two limbs. The first was that the complainant was substantially intoxicated at the time of the sexual intercourse and the second was that she had consented to each act of sexual intercourse, but under a mistaken belief as to the identity of the person with whom she was having sex.
Counsel submitted that at no point in the written directions on the elements, nor in the original oral directions, was the jury directed in accordance with s.61HA(5)(a) Crimes Act 1900. It was submitted that the jury should have been directed expressly that, if the complainant consented to having sexual intercourse with the Appellant under the mistaken belief that she was having sex with another person, then she did not consent. Counsel acknowledged that this was an omission which operated in the Appellant's favour.
However, counsel referred to the jury note concerning mistaken identity sent on 5 March 2020 (see [44] above). The trial Judge answered the first question correctly in the negative: s.61HA(5)(a). However, his Honour went on immediately to direct the jury that "The Crown asks you to infer or conclude from all the facts which it set out to prove that the accused must have known and that he did, indeed, know that [the complainant] did not consent as she was intoxicated at the time".
Mr Smith submitted that the direction was wrong in law for two reasons. Firstly, knowledge of intoxication did not automatically equate to knowledge of lack of consent. Secondly, in order for the Appellant to be convicted on the basis of s.61HA(5)(a), the relevant state of mind was that the Appellant knew that the person consented under a mistaken belief as to identity: s.61HA(3) and (5). The jury was never directed to that effect.
Counsel submitted that the only direction given to the jury as to the requisite state of mind in the case of mistaken identity was wrong and that at no stage was the jury informed correctly of the state of mind that the Crown was required to prove beyond reasonable doubt.
It was submitted that leave should be granted to the Appellant under Rule 4 to rely upon this ground and that the ground should be upheld. Submissions for the Crown
The Crown acknowledged that, whilst the Crown case may have been advanced on both of the pathways identified in Bochkov v R, it was clear from the Crown opening and closing addresses that the central thrust of the Crown case was that the complainant had been mistaken as to the identity of the person in her bed and that the Appellant had knowingly taken advantage of this situation.
The Crown noted that the Appellant's case was that he had consensual sexual intercourse with the complainant, that there was nothing to indicate to him other than it was consensual and that, in the alternative, even if the jury accepted that the complainant had made a "terrible mistake", the jury would not accept beyond reasonable doubt that the Appellant knew that this was the case (Defence closing address, T296).
The Crown noted that no directions were either sought nor given in relation to mistaken identity vitiating consent and the corresponding mental element which the Crown had to prove in order to establish guilt under that pathway. The Crown referred to the jury questions asked on 5 March 2020, which indicated that the jury was alert to both the issue of the complainant's consent in the context of mistaken identity as well as the corresponding mental state of the Appellant which the Crown was required to prove.
After referring to the trial Judge's answers to those questions (SU56-57) (see [45] above), the Crown submitted that the jury should have been directed according to the two pathways to guilt identified in Bochkov v R and that proof that the Appellant knew that the complainant did not consent depended on the basis upon which absence of consent was proved.
In relation to the second pathway (mistaken identity), the Crown submitted that the jury should have been directed that the mental element which the Crown had to prove was knowledge that the complainant had consented under a mistaken belief as to the identity of the Appellant and that otherwise she would not have consented to sexual intercourse with him. The Crown conceded that it was an error for the trial Judge not to have given a direction in these terms.
The Crown acknowledged that a further vice in the manner in which the directions had been left to the jury was that, although recklessness appears to have been abandoned, the jury was directed on the "no reasonable grounds for belief" basis for knowledge and could have applied this reasoning to the issue of mistaken identity.
The Crown drew attention to the decision of the High Court of Australia in Gillard v The Queen (2014) 88 ALJR 606; [2014] HCA 16 which concerned legislation of the Australian Capital Territory in substantially similar terms to the New South Wales legislation at the time of the offences. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ) made clear (at [28]-[29]) that the Crown must prove that the accused actually knew the other person only consented to sexual intercourse on the ground of vitiation relied upon, namely mistaken identity, and that recklessness will not suffice. The Crown submitted that, although the decision in Gillard v The Queen only dealt with recklessness, it would follow logically that "no reasonable grounds for belief" would also be insufficient to establish the mental element.
The Crown noted that, whilst no redirection was sought at trial, the error under the second ground of appeal appears to have been a serious misdirection affecting the elements of the offences so that there is a risk that the conviction on Count 1 involves a substantial miscarriage of justice. In those circumstances, the Crown did not submit that Rule 4 should apply to prevent the Appellant relying upon the second ground of appeal.
Once again, the Crown indicated that, if the second ground of appeal was upheld, reliance would not be placed on the proviso in this case. Decision
The resolution of the second ground of appeal has been assisted greatly by the thoughtful, balanced and accurate conclusion expressed by the Crown in written submissions prepared for the appeal.
The question of mistaken identity was a very live issue at the trial of the Appellant. I am satisfied that the jury was not given directions in accordance with law on that issue at the trial. The jury was conscious of the significance of the issue leading to questions asked to which his Honour responded without further complaint by counsel appearing at the trial.
As Button J observed in Tabbah v R at [140] (see [67] above), s.61HA "as a whole is an unusual amalgam of concepts". The same observation applies to the current provisions in s.61HE Crimes Act 1900. The concept of "mistaken belief" is referred to in s.61HA(5)(a) and the final sentence in s.61HA(5), with the later provision relating back to s.61HA(3). The directions given to the jury at the present trial did not meet the legal requirements laid down in s.61HA. It must be said that his Honour did not receive assistance from trial counsel on this issue.
I am satisfied that the issue raised by the second ground of appeal involved a serious misdirection on an important issue at the trial so that there is a risk that the conviction on Count 1 involves a substantial miscarriage of justice. In these circumstances, the Appellant should be granted leave under Rule 4 to rely upon the second ground of appeal.
I uphold the second ground of appeal.

Conclusion

The Appellant has made good each of his grounds of appeal.
The appropriate order is that a retrial on Count 1 should take place. I observe that there is a considerable advantage to the administration of criminal justice where the retrial on Count 1 will proceed at the trial already fixed at the Sydney District Court on 22 February 2021 with respect to Count 2.
It was for these reasons that I joined in the making of the orders at the conclusion of the hearing in this Court on 26 November 2020.
R A HULME J: I joined in the making of the orders on 26 November 2020 for the reasons provided by Johnson J.
WILSON J: I too joined in the orders of the Court of 26 November 2020 for the reasons given by Johnson J.

Amendments 29 April 2021 - Judgment no longer restricted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2021

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