Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Criminal Code s 24 - Turns on own facts

1 WHEELER JA: The appellant was charged on indictment with a variety of counts of attempted sexual penetration and sexual penetration at Kalgoorlie on 3 March 2007. He was convicted of one count only. He seeks to appeal that conviction.

2 Broadly, the facts were that the complainant and the appellant had been workmates and considered themselves to be friends. They had been at the complainant's residence socialising and consuming alcohol. They decided to go camping and drove into the bush. There was a problem with the vehicle becoming bogged and, in due course, they returned home to the complainant's house. The complainant went to bed. It was her evidence that, instead of going to the spare room in which she had placed a rug and a mattress for him, the appellant came into her room and jumped on her bed. He was apparently behaving in a light-hearted way and appeared to be intoxicated. He refused to leave and collapsed on the floor near her bed. Rather than continuing to attempt to make him leave, she allowed him to remain on the floor and fell asleep. It was her evidence that she woke to find him engaging in sexual conduct with her.

3 In a videotaped record of interview, the appellant essentially denied any recollection of what had happened immediately prior to the time at which he said he woke up "between [the complainant's] legs". He said he remembered trying to have oral sex with the complainant and did not remember if she was awake or not (he was convicted of the count alleging cunnilingus). He said that he doubted that she was naked, since she was "not that sort of sheila". He said he had no idea why he might have tried to engage in sexual conduct with her, and that he did not think that she had ever consented to his doing anything of a sexual nature to her, since they were "just mates". He said that both he and the complainant had been "drinking ... like it was going out of fashion".

4 His evidence at trial was slightly different from his assertions in the videotaped record of interview. He said he remembered certain aspects of the events in question. He said he had, for some time, without her objection, fondled the complainant's naked breasts (it being his evidence that she was naked from the waist upwards), and she had assisted him in removing her knickers. He then performed cunnilingus on her for some time before she suddenly kicked out at him and told him to leave.

5 It was against that background that an issue was raised as to whether the State had negatived an honest and reasonable but mistaken belief on the part of the appellant that the complainant was consenting to the sexual conduct alleged. The ground of appeal is concerned with his Honour's directions in relation to mistake.

6 Because it appeared to me on the papers that it was unlikely that the grounds of appeal contained in the appellant's written case had a reasonable prospect of success, I listed the leave application for hearing. That hearing took place on 31 July, when Mr Watters appeared for the appellant. On that occasion, counsel sought leave to amend the ground to more accurately formulate what it was that he considered to be the gravamen of the complaint concerning the direction. I gave leave for a minute of amendment to be filed after counsel had had the opportunity to consider the matter.

7 On 1 August 2008, a minute of proposed reamended ground of appeal was filed. It read as follows:

1. His Honour failed to properly or adequately direct the jury that intoxication was relevant to the element of 'honesty' for the purpose of any defence under Section 24 of the Criminal Code.

(a) Any defence under Section 24 of the Criminal Code has both subjective and objective elements.

(b) The question of whether an accused holds a belief honestly is a question to be resolved having regard to the subjective condition of the accused at the time of the event in question.

(c) The learned trial judge erred by directing the jury that the test was entirely objective.

(d) The learned trial judge should have directed the jury that the accused's intoxication was relevant to whether he held an honest belief as to the question of consent.

(e) The misdirection cost the accused the chance of an acquittal and led to a miscarriage of justice.

8 It can be seen that particulars (a) and (b) are propositions of law. Particular (e) is a conclusion about the effect of the alleged misdirection. Only particulars (c) and (d) concern his Honour's direction. In my view, neither of those particulars has a reasonable prospect of success, and it follows that the ground must fail.

9 Particular (c) asserts that his Honour directed the jury that the test (that is, the test as to whether the appellant's belief was honest) was entirely objective. Having read his Honour's direction a number of times, I could not find the direction complained of. I therefore caused a letter to be written to the appellant's solicitors inquiring where the direction impugned could be found. The response which I received from senior counsel instructed by the appellant was in the following terms:

I refer to your letter of 4 August 2008 to which I have been instructed to reply.

In relation to particular l(c) it would be our position that the impugned directions are on pages 136 and 141 of the transcript.

It is accepted that there is no articulated direction to the effect that honesty is to be assessed without regard to intoxication, but our contention is that the jury should have specifically been directed to this effect.

In our submission the overall context of the direction leaves the impression that the test to be applied to the defence of mistake generally is wholly objective.

It would be our submission that the direction at p141 was for this reason inadequate and had the capacity to mislead the jury. Our position in this regard is that there should have been a specific direction to the effect that for the purposes of assessing whether the accused's belief was honest the jury could (and should) have regard to his state of intoxication.

In our submission anything short of this type of direction was inadequate in a case where intoxication was beyond dispute, and was clearly a central issue in the case.

10 That is, in a nutshell, it was accepted that his Honour did not direct the jury that the test was entirely objective, but it was submitted that the overall effect of his Honour's direction may have been to leave the jury, mistakenly, with that impression. I will return to his Honour's direction in more detail in a moment.

11 So far as particular (d) is concerned, again it was necessary for me to inquire of the appellant's solicitors, since in his Honour's direction to the jury the following passage appears:

In the event that you find that [the complainant] was not consenting to any of the alleged acts of sexual penetration or attempted sexual penetration, then the amount of alcohol consumed by Mr Gust is relevant to the question of whether he had an honest and reasonable but mistaken belief that [the complainant] was consenting. (ts 141)

12 On its face, this is a direction that the appellant's intoxication was relevant to the question of whether he had a mistaken belief. It is in error, to the extent that it suggests that intoxication is relevant not only to the honesty, but also to the reasonableness of the belief; however, as to this latter aspect, his Honour had already explained to the jury, and reiterated, that the reasonableness of a belief was to be assessed on the basis of a "reasonable sober person".

13 Although I inquired of the appellant's solicitor how particular (d) sat with the direction I have quoted, the reply received, which I have quoted in full, does not directly address this issue. Because there is in the written reply from senior counsel an assertion about the possible overall effect of his Honour's direction, I now summarise it briefly.

14 His Honour said that the issue which was "perhaps the central issue" in the trial was whether the appellant had an honest and reasonable but mistaken belief in the complainant's consent. He told the jury that the first thing they needed to understand was that there was no onus on the appellant to prove that he had an honest and reasonable but mistaken belief. Further, he told the jury that it was important that they understand that there were two components to a mistake, the first being that the appellant had an honest belief and the second being that the belief was a reasonable belief. Having drawn that clear distinction, his Honour then advised the jury that the State could discharge its onus by proving beyond reasonable doubt that the appellant did not honestly believe that the complainant was consenting. He told the jury the honesty of the belief "requires an examination of his state of mind at the time, and you make that assessment on all the evidence". That is, the jury was explicitly directed that it was the appellant's state of mind that was important (that can only have been understood as a reference to his subjective state of mind) and that that assessment was to be made on all of the evidence. There is no reason why a jury might have considered at that point that the reference to "all the evidence" did not include the considerable body of evidence as to the respective parties' state of intoxication. His Honour then went on to tell the jury that the State's case essentially was that there was no such honest belief, but was that, being intoxicated, the appellant simply went ahead and took advantage of the complainant.

15 His Honour then turned his attention to what he had told the jury was the second component of mistake at law, and said that the other issue they needed to consider was whether the State had proved that the appellant did not hold a reasonable belief. It was in that context that his Honour explained, in terms which are not challenged by this ground of appeal, that the reasonableness of the belief must be assessed upon the basis of what would be a reasonable belief for a sober person. His Honour then dealt with certain submissions made about the factual materials which the jury could take into account in determining what such a person might have considered, including an issue about whether the complainant had or had not, or perhaps might have appeared to have, assisted in the removal of her knickers.

I stress to you again that this question of mistake, which is so central to this trial, is not something that the accused has any burden to prove. The State must prove beyond reasonable doubt that he was not under an honest - and I emphasise - and a reasonable belief that she was consenting, and the State must prove that beyond reasonable doubt. (ts 137)

His Honour then returned to matters relevant to the possible existence of a reasonable belief.

17 The reason for his Honour's emphasis on the issue of whether the appellant's possible belief was reasonable or not is, it seems to me, not difficult to understand. It would be a matter of fairly common experience that an intoxicated person may honestly believe something, but may do so wholly unreasonably. In the context of this trial, his Honour may well have considered that it would not be difficult for the jury to decide, one way or the other, whether there was a reasonable doubt as to whether the appellant held such a belief, but that they might need more assistance in relation to the question of whether such a belief could be considered to be reasonable. In any event, his Honour then went on to canvass at some length the factual differences in the evidence and the submissions made about that. Almost the last remarks which his Honour made to the jury about the question of mistake were those set out at [11] above.

18 It appears to me that the following things are clear from his Honour's direction. While his Honour did not use the word "subjective", by referring to the need to determine the appellant's state of mind, in relation to the question whether the appellant's belief was honest, he plainly directed the jury, in lay terms, that the test was a subjective one. In his reference to determining that issue on all of the evidence, there is no reason to suppose that the jury would not have considered that relevant evidence included evidence of intoxication. His Honour did not direct the jury, at any point, that the test as to whether the appellant's belief was honest was objective. On the contrary, he expressly directed the jury that there were two distinct elements relevant to the question of mistake, and his direction was to the effect that the hypothetical reasonable, sober person was relevant only to the second of those limbs, which was concerned with the reasonableness or otherwise of any belief the appellant may have held.

19 It follows that the grounds proposed have no reasonable prospect of success. I would grant leave to amend in the terms proposed, but would refuse leave to appeal and, that being the only ground, would dismiss the appeal.