Gordon v The Queen [2010] VSCA 207

2 After a trial in the County Court, the applicant was found guilty on a charge of rape. A plea was conducted and the applicant was sentenced to be imprisoned for a term of four years and nine months with a minimum term of two years and nine months before the applicant was to be eligible for parole.

3 The applicant seeks leave to appeal against the conviction and the sentence.

4 The principal Crown witness at the trial was the complainant. At the time of the alleged offence she was 17 years' old. The applicant was 18 years' old. The complainant and the applicant had known each other at high school.

5 On 26 January 2008 they attended a party in a shed at a farm near Cobden. The complainant took a swag to sleep in. At about four o'clock the next morning the complainant was with the applicant and three other youths. The complainant told the boys that she was going to bed, walked to her swag and got in. The complainant believed that the applicant was going to sleep with his girlfriend in a campervan nearby.

6 Five minutes later the applicant got into the swag. The complainant told him to get out. The applicant ignored her protests and got on top of her and started to pull her pants down. He took his own pants off and had intercourse with the complainant for some five to ten minutes. The complainant made no attempt to attract the attention of persons nearby and did not complain until she went to the police towards the end of March 2008.

7 The applicant gave evidence that when the complainant got into her swag, she was pulling his hand, which the applicant interpreted as an invitation. The applicant and the complainant hugged and kissed. The complainant took her top off and undid her bra, whilst the applicant helped to pull her pants down. The applicant said that the intercourse was consensual.

8 The grounds of the application for leave to appeal against conviction are as follows:

Ground 1: The learned trial judge erred in her directions on the mens rea required for rape; and in particular she erred:

(a) in directing that "[y]ou might find that the accused believed that the complainant was consenting but still be satisfied beyond reasonable doubt that he was aware of the possibility that she was not consenting, and if you did get to that point then the fourth element would be met";

(b) in directing that "I told you earlier that the law requires that a participant in sexual activity must communicate their consent. Likewise, a person must satisfy themselves that that other person is consenting. In other words it is not enough to assume consent. Consent must be freely given and communicated. It follow[s] that the giving of consent must be received".

Ground 2: The learned trial judge erred in her directions on the complainant's motive for making a false allegation; and in particular she erred:

(a) in directing that "[y]our rejection of any such reason or motive is one factor to take into account in deciding whether the prosecution has satisfied you beyond reasonable doubt that [the complainant] is truthful and reliable on all matters in dispute";

(b) in failing to direct that, if the applicant did not know of or proffer a reason for the complainant to make a false allegation or if he proffered a reason that was rejected beyond reasonable doubt, that could not advance the prosecution case.

Ground 3: The learned trial judge erred in failing to give any Kilby or credibility direction pursuant to s 61(1)(b)(ii) of the Crimes Act 1958 (Vic).

Ground 4: The learned trial judge erred in failing to give any direction on good character.

Ground 5: An aggregate of errors or defects caused the trial to miscarry.

9 In the course of her charge, the trial judge told the jury:

Evidence of the accused's belief of consent must be taken into account by you when determining whether the prosecution have proved beyond reasonable doubt that the accused was aware that the complainant was not or might not be consenting. Even if you find that the accused did have such a belief, you will still need to decide whether the prosecution has proved this fourth element. You might find that the accused believed that the complainant was consenting and still be satisfied beyond reasonable doubt that he was aware of the possibility that she was not consenting. And if you did get to that point, then the fourth element would be met.

10 The trial judge based this aspect of her charge on the charge book, which unfortunately was in error. If the jury concluded that the applicant believed that the complainant was consenting to intercourse, the Crown necessarily failed to establish the fourth element to the criminal standard. Once a jury accepted the existence of belief in consent the Crown could not establish either that the accused was aware that the victim was not consenting or else that the victim might not be consenting. See Worsnop v The Queen [2010] VSCA 188.

I told you earlier that the law requires that a participant in sexual activity must communicate their consent. Likewise, a person seeking to sexually penetrate another person must satisfy themselves that that other person is consenting. In other words, it is not enough to assume consent. Consent must be freely given and communicated. It follows that the giving of consent must be received.

12 In my opinion the direction was likely to confuse rather than inform the jury. There is no requirement in law that a person who has sexual intercourse with another must satisfy himself that the other person is consenting. If the Crown fails to exclude beyond reasonable doubt a belief in consent based upon an assumption, that is enough to avail the accused. Further, this jury may well have thought the consent must be communicated to an accused by words rather than by conduct. There is no requirement as to the means by which consent may be signified.

13 As to Ground 2 of the application, the trial judge in her charge directed the jury as follows:

Mr Lavery also referred to a possible motive for [the complainant] making a false allegation that she was raped. He said that Mr Gordon had failed to talk to her the next morning or on the days or weeks following. She might have felt slighted and that perhaps she thought that whatever happened was not her fault. The accused, as I have said from the outset of this trial, does not have to prove anything, and that includes not having to prove any motive or reasons for the allegations being made by the complainant. If you reject the motive or reason put forward on behalf of the accused that I have just outlined, it does not mean necessarily that [the complainant] is telling the truth. Your rejection of any such reason or motive is one factor to take into account in deciding whether the prosecution has satisfied you beyond reasonable doubt that [the complainant] is truthful and reliable on all matters in dispute.

14 Her Honour erred in telling the jury that rejection of the suggested motive to lie was a factor which could be taken into account in determining the guilt of the applicant. The absence of a motive to lie was neutral. It is only the acceptance of a motive to lie which may be taken into account in deciding whether or not the prosecution has proven guilt beyond reasonable doubt. See The Queen v SAB [2008] VSCA 150.

15 Counsel for the applicant sought a Kilby[1] direction pursuant to the provisions of s 61(1)(b)(ii) of the Crimes Act 1958, in the light of the complainant's failure to complain for some two months after the events giving rise to the charge. The trial judge refused the application. In her charge to the jury the trial judge advanced reasons why the complainant might delay in complaining, but did not give any Kilby direction. Counsel for the applicant submitted that she was obliged to do so, for the delay was capable of having a substantial impact on the credibility of the complainant.

16 I do not consider that the trial judge erred in not being satisfied that there was sufficient evidence to suggest that the credibility of the complainant was so affected by the delay to justify the giving of a warning. The delay was for a period of two months. The reason for the delay was fully ventilated at the trial, so that the applicant was able to challenge the reasons advanced for the delay and the complainant was aged only 17 years. The assumption that victims of sexual offences generally complain in a timely fashion should not readily be made in the case of young girl who may be anxious as to whether she may be believed or embarrassed by the revelation of sexual intercourse.

17 In my opinion, this ground has not been established.

18 Counsel elicited evidence that the applicant had no prior convictions and urged the trial judge to give a good character direction. Her Honour refused the application. In my opinion, the jury would have been assisted by a direction as to the use they could make of the evidence of good character. The credibility of the

complainant and the applicant was a central issue in the trial.

19 For the foregoing reasons I am of the opinion that the application for leave to appeal against conviction should be granted, the appeal instituted instanter and allowed and the conviction recorded below set aside.

20 Counsel for the appellant contended that the Court should direct that an acquittal be entered. He submitted that the complainant's account was improbable and was not corroborated. The complaint was delayed for two months. Finally, the applicant has spent some nine months in prison.

21 In my opinion the circumstances relied upon by the appellant do not lead to conclusion that there should be an acquittal. The strength or weakness of the prosecution case depends largely upon the credibility of the complainant. That is not a matter which this Court can judge. The surrounding circumstances do not compel the conclusion that a verdict of guilty must be unsafe. I consider that the other matters advanced on behalf of the appellant should be determined by the prosecuting authorities.

22 Accordingly, I would order that there be a new trial.

24 Accepting that the Crown has rightly conceded error, I agree with Buchanan JA that there should be a retrial for the reasons stated by his Honour.

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted and heard instanter and is allowed.

3. The conviction sustained by the appellant in the Court below is quashed and the sentence passed thereon set aside.

5. The appellant is remanded in custody pending the new trial.

The Court will grant a certificate under s 14 of the Appeal Costs Act 1998.

26 Just one typo for your Honour when you are revising the judgment. When you read out the passage in respect to the first ground, the first paragraph of the judge's directions. The last sentence: 'and if you get to that point the fourth element would be met.' Your Honour inserted a negative in there: 'would not be met'.

[1] Kilby v R [1973] HCA 30; (1979) 129 CLR 460.