Brennan v The Queen [2012] VSCA 151

Brennan v The Queen [2012] VSCA 151 - VSCA 2012 case summary — Zoe

[53]

The third element: the prosecution must prove that there was no lawful justification for the touching, such as consent. I do not think I need go over it again. The prosecution case is this woman only permitted the touching of her breasts on the basis that she said that he had spoken to her about lactation and because he was speaking in medical terms, and she said she trusted him that that was a legitimate medical technique. The prosecution ask you to accept that and be satisfied beyond reasonable doubt that that was the circumstance. The accused's account: no, did not say anything like that and what was done in relation to the breasts was with consent. No consent arises so far as the accused is concerned because he says he did not touch the vagina.

The fourth element: the accused's state of mind - must prove that the accused was aware that the complainant was not consenting or that she might not be consenting to the respective touching. In relation to the - I repeat the medical issue, the law says that, again, consent is a state of mind and the law says that means free agreement. So MM would not have consented to the touching if she did not freely agree to be touched. If you are satisfied beyond reasonable doubt, as MM says is the situation that she mistakenly believed that the touching was for medical purposes. If you are satisfied beyond reasonable doubt that that is the reason that the complainant permitted the accused to touch her on the breast, that is in the mistaken belief that the touching was for medical purposes, then the law says you must conclude that the complainant was not consenting.

Applying that direction to this fourth element of the accused's state of mind, the mind of the accused such as would justify you concluding that he was aware that the complainant was not consenting, this element will be satisfied if the prosecution case can prove beyond reasonable doubt that the accused was aware that MM was of the mistaken belief that the rubbing of her breasts was for medical purposes, or prove that the accused was aware that MM might be mistaken about that but he decided to touch her regardless of this possibility. It is a bit of a mouthful but that is what the law directs me to tell a jury in this case of this question of the touching in circumstances where the complainant is under the mistaken belief that it was for medical purposes.

This fourth element, that is that the accused had the necessary state of mind to establish this particular element, will therefore be satisfied if the prosecution case can prove beyond reasonable doubt that the accused was aware that MM was of the mistaken belief that the rubbing was for medical purposes or the accused was aware that MM might be mistaken about that but he decided to touch her regardless of the possibility of her being mistaken.

It is for you to determine whether the prosecution has proved that the accused had the level of awareness necessary for this element to be satisfied. In making this determination you have got to consider all of the circumstances. This includes what was said or done at the time of the alleged touching. I have reminded you of the evidence about that.

[95]

In the result, that the jury can have been in no doubt that it was only if the Crown persuaded them that there was not consent and that the applicant knew that there was not consent or might not be consent, that it would be open to convict the applicant of the offence of indecent assault.
The next complaint is that at page 469 of the transcript, line 12 the judge said that he should have brought the prosecution of Count 5 to an end because in effect the two touches of NH's vagina were all part of the one, and yet the judge failed to put an end to prosecution of that count.
The difficulty with that argument is that it overlooks what happened after the judge made that observation (which was in the absence of the jury in response to an exception taken by the prosecutor). The prosecutor responded by pointing out to the judge that the reason that the two touches were alleged as separate counts was because NH was in a different position when touched on the first occasion to the position she was in when touched on the second. As the prosecutor reminded the judge, the Crown was thus bound or at least not wrong to plead the two touches as separate counts.[36]
The final complaint is that in the course of discussion with counsel in the absence of the jury, at Transcript 470 lines 18 to 24, the judge expressed the view that the Presentment was overloaded but failed to do anything about it.
That is really the same point, to which the answer is the same. But to that may be added that, despite the judge's comments, his Honour evidently did not consider that the Presentment was so overloaded that he should sever some of the counts and defence counsel did not seek that his Honour do so. Nor do I think that his Honour should have done so. It may be that the Crown could have been more discriminating in the offences which it determined to prosecute. His Honour's remarks to that effect are grounded in common sense and experience. But there were arguments the other way, which the prosecutor put with force immediately after the judge had made the observation; and apparently with the effect of sufficiently persuading the judge of the efficacy of that view of the matter to conclude that the presentment should not be severed or amended.[37] At all events, I do not consider it to be seriously arguable that the presentment was overloaded or so overloaded as to constitute a miscarriage of justice.[38]

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Judgment (164 paragraphs)

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