The ground of appeal - other than paras (vii) and (viii)
40 The paragraphs for present consideration were a mixture of the conduct of the trial and the trial judge's directions. The appellant dealt with them together "as they are linked by consent, and knowledge and the provisions of Sections 61R(1) and (2) of the Crimes Act 1900".
41 It is necessary to say something of the course of the trial and identify the directions of which the appellant complained, with particular reference to the two matters of absence of consent and the appellant's knowledge that the complainant did not consent. A significant issue on appeal was how recklessness was dealt with as the basis for knowledge that the complainant in fact did not consent, and I will emphasise some references to recklessness.
42 The Trial Advocate opened in relation to these matters -
"So in relation to the next element of the Crown has to prove - without the consent of [the complainant]. The Crown will prove that by calling her, giving evidence about what happened on that night. A further element the Crown has to prove is the accused either knew or was reckless as to lack of consent . The Crown will say it would have been perfectly evident of what happened on this night, that she was not consenting and the accused would have known that. So in relation to consent I will just say this at this stage, that also at the time had certain definitions under the New South Wales Crimes Act. I will say this at this stage, a person who consents to sexual intercourse with another under the mistaken belief as to the identity of the other person is to be taken not to consent to sexual intercourse. As I said, she believed that what was going on was her boyfriend. And also just in relation to consent, 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 sexual intercourse. As you have heard from what I said, and I expect to hear from [the complainant], she will tell you exactly who she believed it was and what happened. Despite even that, she was still saying no, and he was saying yes and he still went through with it." (emphasis added)
43 Perhaps this could have been better expressed. It sufficiently indicated a Crown case of absence of consent because the complainant consented under the mistaken belief that the other person was Robert, but also a case that in fact she did not consent because she was saying no. It clearly enough foreshadowed a Crown case which included that the appellant was reckless as to lack of consent. Counsel for the appellant did not voice any complaint about the opening.
44 Counsel for the appellant also opened. After saying that there was no issue about the sexual intercourse because the appellant agreed that it took place, he relevantly said -
"What is in issue are the two elements that the Crown just referred to you [sic] - the element of consent, [the complainant's] consent, as well Mr Bochkov knowing that [the complainant] did not consent. And the defence case is this. The Crown has to prove beyond reasonable doubt that [the complainant] did not consent to sexual intercourse, and the defence case is that she did consent to sexual intercourse, and her consent was apparent from the actions that took place during the time of the sexual intercourse. The Crown has raised this issue of mistake, and the defence case is that [the complainant] did know who she was having sexual intercourse with. There was no mistaken belief on her behalf as to whom she was having sexual intercourse with, and that's the second element of these offences. The third element, which is also in issue, is whether the Crown can prove beyond reasonable doubt that Vladimir Bochkov did not know that [the complainant] was consenting, and the defence case is by the actions that [the complainant] took part in it was clear to Vladimir Bochkov that she was consenting to the sexual intercourse. The defence case in this matter is that [the complainant] consented to sexual intercourse. After it had happened she regretted what took place and that is where the complaint came from. So that gives you some outline of what the issues are in this case."
45 On the defence case, then, it was contended that the complainant was not under a mistaken belief and that she consented, and that her conduct was such as to indicate to the appellant that she in fact consented. As to the appellant's knowledge that the complainant did not consent, the defence opening was apt to take issue with all of the three bases of knowledge that she did not in fact consent, recklessness as to lack of consent, and knowledge that she consented under a mistaken belief.
46 Consistently with the defence opening, it was put to the complainant in cross-examination that at the time she understood that the only person who could have been present was the appellant, with which she disagreed. She disagreed also that she assisted the person by the movements of her body. It was put that she knew that it was the appellant, again meeting disagreement.
47 The cross-examination of the appellant included putting that he wanted to have sex with the complainant, and that he was pretending to be Robert and wanted her to believe that he was Robert. It was put that he did not ask the complainant if she wanted to have sex, and he replied that he "never asked her about anything" and that "it was clear from the very beginning. If a girl does not offer any resistance as I was caressing her and cuddling her, it is all clear". The appellant agreed that at no time did he "say it was you". This cross-examination was material to the appellant's knowledge that the complainant was under the mistaken belief that he was Robert, but also to recklessness as to lack of consent.
48 After the evidence concluded the trial judge held a discussion with the legal representatives. The effect of the discussion was as follows. His Honour obtained agreement that s 61R(2) of the Crimes Act, which by that time had been repealed, was in effect on the date of the offences charged against the appellant. Referring to a direction in the Bench Book prepared by the Judicial Commission, the direction concerning s 61R(2)(b) knowledge, he elicited that the Trial Advocate would be putting to the jury that there were "two scenarios". One was consent under a mistaken belief (s 61R(2)(a)), as to which the Trial Advocate said he would be putting to the jury that a person who knew that consent was under a mistaken belief was taken to know that there was not consent (s 61R(2)(b)). The second was that, if the jury was not satisfied that the complainant was under a mistaken belief, the jury could still convict on the basis of evidence on which they could find that she did not consent and the appellant must have known that she did not consent. Counsel for the appellant agreed that there were the two scenarios.
49 As the transcript reads the discussion was rather elliptical, and so I have described its effect. In relation to the second scenario and knowledge that the complainant did not consent, it was in terms that the appellant "must have known", not that he was reckless as to whether the complainant was consenting or not. The trial judge did, however, refer in relation to the second scenario to "the usual directions in relation to sexual intercourse", which could include knowledge through recklessness.
50 The judge asked that "the matters of law" be "run past" him before they were put to the jury. There was a short adjournment. Upon resumption, and it seems so that matters of law could be run past him, the trial judge asked the Trial Advocate what he was going to say.
51 The effect of the explanation, which included adoption of a number of contributions from his Honour, was that the Trial Advocate would submit to the jury that the appellant could be found guilty in two separate ways. The first was that the complainant was acting under a mistaken belief as to the identity of the other person, believing it was Robert, and that that was taken to be absence of consent, and that a person knowing that consent was under a mistaken belief was taken to know that there was no consent. The other was -
"HIS HONOUR: … there is another scenario and that is the words and actions of the complainant in relation to each of the three counts. And as to knowledge, his knowledge which flows from the words and actions of the …
TRIAL ADVOCATE: I'll say directly in the first two counts she said 'no', and the last count he would have known because she said no in relation to the first two counts".
52 Recklessness as a means of proof of knowledge of absence of consent was not specifically mentioned, and "would have known" in the Trial Advocate's response suggests actual knowledge. However, this also was elliptical.
53 Counsel for the appellant said that he had no objection to "that approach", provided that it was for the Crown to prove beyond reasonable doubt that the complainant was mistaken as to identity and it was not for the appellant "to identify himself in relation to s 61R in relation to mistaken identity".
54 In his address to the jury the Trial Advocate said, in relation to absence of consent and knowledge of absence of consent -
"In relation to the issue of consent, the Crown also has to prove, apart from the fact that the accused had sexual intercourse with [the complainant], it was without the consent of [the complainant]. The Crown relies on two ways the Crown says you can find the accused guilty. The first one is that the consent she gave, and I will just take you to something his Honour will raise with you later, a person who has sexual intercourse with another person without the consent of the other person and was reckless as to whether the other person consents to the sexual intercourse is taken to know that the other person does not consent to the sexual intercourse . A person who consents to have sexual intercourse with another person under a mistaken belief as to the identity of the other person is to be taken to not to consent to the sexual intercourse.
So in relation to that, if you accept that on this occasion [the complainant] believed it was Robert and went along with it under the mistaken belief that it was him and she in fact did give consent that is taken not to be consent because she believed it was Robert. And a person who knows that another consents to sexual intercourse under a mistaken belief is to be taken to know that the other person does not consent to the sexual intercourse. So when I take you to how the Crown says that was proved, which I will do shortly, in relation to what [the complainant] says you will accept beyond a reasonable doubt that the accused did know that she was not consenting. So that's the first way the Crown says that you can find the accused guilty.
The second one is relying once again on the first element, sexual intercourse, no issue there the Crown says, without the consent of [the complainant]. The Crown says if you rely on what [the complainant] says - and I will take you to this in more detail, but she said no on more than one occasion, she said no after he put his finger in her vagina. She said no after he put his penis into her vagina and a t that stage she ways he said, 'yes, yes, yes', when she said 'no, no, no', so that, the Crown says, is without the consent of [the complainant], and the accused would have known that because she said that to him. She said she said it in a loud voice. He said he didn't hear it.
The next element the Crown has to prove the accused either knew or was reckless to lack of consent . Once again the Crown says, relying on count 1 and 2, she said no. Count 3, because she had already said no, then the accused licked her vagina. So he would have known that she wasn't consenting to count 3 on the indictment." (emphasis added)
55 In the first of these paragraphs the Trial Advocate used the words of s 61R(1) in the third sentence, with a minor change. He gave the effect of s 61R(2)(b), largely using its words, in the fourth sentence. As will be seen, it was later said that he was reading from s s 61R. It is rather odd that, in the part of the address apparently intended to put to the jury absence of consent under the first scenario, there was reference to knowledge of the accused through recklessness as to consent, but recklessness was plainly flagged.
56 Recklessness was again referred to in the fourth paragraph, appropriately in relation to the appellant's knowledge of absence of consent. It was not clearly related to the second scenario, but when taken together with the prior reference to recklessness the Trial Advocate was maintaining a case of recklessness in the face of the complainant saying no, as well as actual knowledge through the complainant saying no.
57 Later in his address the Trial Advocate said -
"Just getting back to whether the accused would have known she wasn't consenting in relation to count 2, as I said in relation to count 1 she had already said no. She was facing away from him, she said she said no. Count 2, she said no in a loud voice. The accused, she said, she recognised it was a Russian voice because it was fairly low saying, "Yes, yes, yes", and [the complainant] said, "No, no, no", and the accused, as we know, did put his fingers into her vagina. We know then from [the complainant] that shortly after that she dozed off and then she felt someone licking her vagina and once again there is no dispute that the accused admits he did do that. the Crown says bearing in mind what she said earlier the accused would have known she wasn't consenting because she had said no in relation to count 2, no in relation to count 1."
58 Counsel for the appellant took no objection to the Trial Advocate's address.
59 In his own address to the jury, counsel for the appellant described the defence case as -
" … that [the complainant] knew who she was having sexual intercourse with - that was with Vladimir Bochkov. There was no mistake by [the complainant] as to who she was having sexual intercourse with, and there could have been no mistake in relation to who she was having sexual intercourse with. [The complainant] consented to the sexual intercourse, and she indicated her consent by her actions at the time of the sexual intercourse, and it was after Robert Seleznev arrived that [the complainant] changed her mind and then took a number of further steps."
60 Counsel identified as the elements to be proved by the Crown, beyond reasonable doubt, that the sexual intercourse took place without the consent of the complainant and that the appellant knew that the complainant did not consent. As to absence of consent, counsel said that the Crown relied on two alternative means to prove lack of consent. The first was that the complainant must have been under a mistaken belief as to the identity of the other person, thinking it was Robert whereas it was the appellant. The second was that her actions indicated that there was no consent. He addressed on the facts as to each of these, to the effect that they had not been made out. He turned to whether the appellant knew that the complainant was not consenting. He addressed on the facts, to the effect of inviting the jury to find that the complainant did not say no or that she did not wish to have intercourse and that her actions were actions which indicated to the appellant that she wished the sexual contact to continue. He submitted to the jury that the Crown had not proved beyond reasonable doubt that the appellant knew that the complainant was not consenting. He further addressed on the facts, at some length, and invited the jury to "have real concern about the evidence of" the complainant.
61 At a break during his address counsel for the appellant provided to the trial judge directions he wished to be given, to all but one of which the Trial Advocate agreed. The materials before us did not disclose what they were. It was not suggested that they were material to the ground of appeal.
62 After the addresses concluded his Honour told the legal representatives some of the directions he proposed to give, it appears in large part reading from a written draft. They included the directions in fact given to which I later refer. Neither the Trial Advocate not counsel for the appellant sought to raise anything.
63 The summing-up was quite lengthy; as I have indicated, it relevantly followed the foreshadowed directions.
64 As to absence of consent, the trial judge said -
"The Crown in respect of each count relies on two alternative positions regarding consent. I will now deal with the first position of the Crown. The first is that you find beyond reasonable doubt, one, that the complainant consented to the sexual intercourse with the accused; two, under the mistaken belief as to the identity of the accused, that is, she believed the accused to be Robert Seleznev. In respect of each the Crown asks you to draw the inference - and I refer you back to my direction about inference - of mistaken identity of Robert Seleznev on the following evidence, one, that Robert Seleznev was the complainant's boyfriend with whom she had sex that night. 2, the evidence that the complainant fell asleep in her bed and when she fell asleep she was next to Robert Seleznev who was watching television and that when Robert Seleznev left the bed the sexual activity by the accused began.
The accused on the other hand submits that the complainant did not consent to the sexual intercourse with him under the mistaken belief as to his identity. In this regard the accused submits that the complainant consented to the sexual activity. Further, the accused first says that you cannot draw the inference that the Crown asks you to draw from the evidence, and further, the accused relies on the evidence as to the difference as to the size, built, accent and facial [sic] between himself and Robert Seleznev. The accused submits that the complainant did not have a mistaken belief.
I direct you that if you make the finding in respect of any count that the complainant consented to sexual intercourse with the accused under the mistaken belief as to the identity of the accused, that is, that she believed him to be Robert Seleznev, that in respect of that count, in law, the complainant is taken not to have consented to the sexual intercourse.
The second and alternative position of the Crown, regarding the complainant not consenting to the sexual intercourse is this; in respect of count 1, the Crown asks you to infer from the following evidence that the complainant did not consent. One that the complainant when she felt a finger in her vagina pushed the finger aside and said "No, I don't feel like this". The activity continued and the complainant froze. In respect of count 2, the Crown asks you to draw from the following evidence that the complainant did not consent, that the complainant when she felt the person's penis in the opening of her vagina, said "No", about five or six times, and then she froze. In respect of count three the Crown asks you to draw the inference from the following evidence that the complainant did not consent, one, that the complainant went into shock when she felt a person put his tongue in her vagina, and then after what felt like five minutes she tried to kick that person off her.
The accused denies in respect of the first count that the complainant pushed his finger away. The accused denies as to the second count that the complainant said "no". The accused denies in respect of the third count that the complainant tried to kick him off her.
Now the Crown must prove beyond reasonable doubt in respect of each count that the complainant did not consent. If the Crown has failed to do so in respect of any count, then the accused is to be found not guilty of the charge contained in that count."
65 The trial judge then turned to "the third element which is that the accused knew that the complainant was not consenting". His Honour said -
"Now the Crown in respect of each count relies on two alternative positions regarding the accused's knowledge. The first position of the Crown applies to any count in which you have found, beyond reasonable doubt, that the complainant did not consent to the sexual intercourse because of a mistaken belief that she was having sexual intercourse with Robert Seleznev. Here the Crown relies on the law that if the accused knew that the complainant consented to the sexual intercourse under a mistaken belief as to the identity of the accused, then the accused is taken in law to know that the complainant did not consent to the sexual intercourse. If that be the case, then the accused would be found guilty of the offence.
In respect of this element, the Crown asks you to draw the inference, and I remind you of the direction I gave you regarding inferences, that the accused knew the complainant consented to sexual intercourse because of her mistaken belief as to his identity from the following evidence: 1. that the accused saw the complainant and Robert Seleznev together as a couple during the evening of 3 and 4 November 2007. 2. that the accused saw the complainant lay on the bed in the apartment next to Robert Seleznev and saw Robert Seleznev hug the complainant. 3. the complainant was asleep and remained asleep when Robert Seleznev left the apartment in the early hours of 4 November 2007.
The accused on the other hand submits that he did not know that the complainant had sexual intercourse with him because of a mistaken belief that it was Robert Seleznev having sexual intercourse with her. In this regard the accused firstly says that you cannot draw the inferences the Crown asks you to draw from the evidence, and secondly, the accused relies on the evidence of the differences as to size, build, accent and facial hair between himself and Robert Seleznev, and submits that the complainant knew she was having sexual intercourse with him, and not Robert Seleznev. Further, the accused submits that Robert Seleznev was not the boyfriend of the complainant when he had sex with her.
The second position of the Crown applies to any count in which you find that the complainant did not consent to sexual intercourse, having regard to her words and actions expressed to the accused. The Crown must prove the accused knew that the complainant did not consent. The test is a subjective test and not an objective test. You might ask yourself how, in the absence of an admission by the accused, the Crown can prove that the accused was aware that the complainant did not consent. I remind you of my directions regarding inferences, the Crown asks you to infer from other facts, which it sets out to prove that the accused must have known and that he did know that the complainant did not consent. In respect of count 1, the Crown relies on the following evidence for you to draw the inference that the accused knew that the complainant did not consent; one, evidence that the complainant pushed the finger which was inside her vagina aside and said "No I don't feel like this". The accused denies that the complainant said these words.
In respect of count 2, the Crown relies on the following evidence for you to draw the inference that the accused knew tht the complainant did not consent. The evidence that when the complainant felt the person's penis at the opening of her vagina, the complainant said to the person five or six times, "No". the accused denies that the complainant said those words.
In respect of count 3, the Crown relies on the following evidence for you to draw the inference that the accused knew that the complainant did not consent. The evidence that when the complainant felt a person putting his tongue in her vagina, she froze, and later tried to kick him off her. Further, in respect of this count, the Crown relies on the complainant's earlier words uttered, when digital and penile penetration occurred. The accused denies that the complainant tried to kick him off her. Further, the accused denies that the complainant used the words she said she used at the time of the digital and penile penetration of her.
Now 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, yes, he knew that the complainant was not consenting, and that is a guilty state of mind. If the Crown has satisfied you beyond a reasonable doubt that this was the accused's state of mind at the time of the acts of intercourse in respect of the counts then the third element of the charge has been made out.
On the other hand, the accused's state of mind might be that he honestly though wrongly, believed that the complainant was consenting to the intercourse, this is not a guilty state of mind. It is for the Crown to prove that at the time of intercourse the accused did not honestly believe that the complainant was consenting then you would have to say the third element is not made out and return a verdict of not guilty of that particular charge."
66 The summing-up raised for consideration in relation to the second scenario "that the accused must have known and that he did know that the complainant did not consent". There was no reference to recklessness. However, it will be noted that in the last of these paragraphs the trial judge gave the usual direction that if the appellant honestly but wrongly believed that she consented, the element of knowledge that she did not consent was not made out. I will refer to this later in these reasons.
67 The trial judge summed up at some length in relation to the facts, and summarised the submissions of the legal representatives. In doing so he described the Crown case as that the appellant "knew the complainant was not consenting 1. because he knew the complainant was having sexual intercourse with him because of the mistaken belief and 2. that he knew that she was not consenting by virtue of her words and actions". In summarising the submissions of counsel for the appellant he attributed to counsel that the complainant knew she was having sexual intercourse with the appellant because of her actions but changed her mind when Robert arrived, and as to mistaken identity that for reasons counsel gave the complainant would have known that it was not Robert having sexual intercourse with her. In that summary he also attributed to counsel that "as to the Crown's alternative position, that the complainant indicated her lack of consent to the accused", the complainant's actions indicated that she wished to have sexual intercourse and the appellant's evidence that he did not hear the word "no" should be accepted.
68 When asked, at the conclusion of the summing-up, neither the Trial Advocate nor counsel for the appellant raised any matters.
69 The jury retired. Thereafter a note was received from the jury in the terms -
"1. Please can we have the transcript of your summary with particular focus on each of the elements the Crown needs to prove.