Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Sexual offences - Appellant convicted after a trial by jury on twelve counts of unlawful and indecent assault and one count of sexual penetration without consent - Whether trial judge erred in concluding that there was no evidentiary basis for the operation of s 24 Criminal Code (WA) - Statutory construction - Whether s 319(2)(a) Criminal Code (WA) definition of consent applies to sexual offences involving assault in ch XXXI Criminal Code (WA) - Consent obtained by fraud

Acts Amendment (Sexual Assaults) Acts 1985 (WA), s 324G

Criminal Code (WA), s 1(1), s 24, ch XXVI, XXXI, XXXIA

Evidence Act 1906 (WA), s 31A

Leave to appeal granted on proposed grounds 4 and 5

Convictions and sentences on count 2 and counts 4 to 13 set aside

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334

Holman v The Queen [1970] WAR 2

Hunter v The State of Western Australia [2014] WASCA 184

Michael v The State of Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348

Narkle v The State of Western Australia [2011] WASCA 160

Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249

R v BAS [2005] QCA 97

R v Cutts [2005] QCA 306

WCW v The State of Western Australia [2008] WASCA 232

1 McLURE P: I agree with the orders proposed by Mazza JA. These are my reasons for joining in those orders. The factual background is detailed in the reasons of Mazza JA and not repeated here. It is sufficient for present purposes to note, using Mazza JA's abbreviations, that the appellant was convicted of 10 counts of unlawful and indecent assault of S contrary to s 323 of the Criminal Code (WA) (the Code). I propose to commence with ground 4, the construction question.

Ground 4 - the statutory meaning of consent

2 The issue is whether the definition of 'consent' in s 319(2)(a) of the Code applies to a s 323 offence. Section 323 of the Code relevantly provides that 'a person who unlawfully and indecently assaults another person is guilty of a crime'. Section 319(2) and s 323 are in Ch XXXI of the Code.

For the purposes of this Chapter -

(a) consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.

4 This reflects a significant tightening of the common law meaning of consent: Michael v The State of Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348.

5 There is no definition of the term 'assault' in Ch XXXI of the Code. Section 1(1) of the Code defines the term 'assault' as having the definition provided in s 222. Section 222 relevantly provides:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault. (emphasis added)

6 The italicized alternatives relating to consent in s 222 (the first consent limb and second consent limb respectively) are relevant in the construction exercise.

7 The statutory text, context and purpose lead to the conclusion that s 319(2)(a) applies when determining whether, for the purposes of s 323, there has been an 'assault' as defined in s 222 of the Code. The statutory indicators are as follows.

8 First, the chapeau to s 319(2) uses the expression 'For the purposes of this Chapter', in contrast to the chapeau to s 319(1) which states 'In this Chapter'. The difference in wording is consistent with the proposition that the definition of consent in s 319(2)(a) includes, but is not confined to, the meaning of the word 'consent' where the term appears in Ch XXXI. It is an element of a number of offences in Ch XXXI that the physical element occur 'without the consent' of the complainant (s 325(1), s 326(1)).

9 Second, the form of the definition of consent in s 319(2)(a) is significant. It is in positive terms and indicates what constitutes 'consent' for the purposes of the offences in Ch XXXI. So, for example, if consent is not freely and voluntarily given as defined in s 319(2)(a), the requirement in s 325(1) and s 326(1) that the relevant conduct was without the consent of the complainant will be satisfied.

10 Third, the definition in s 319(2)(a) links directly with the first consent limb in the definition of assault in s 222 of the Code. If there is no consent within the meaning of the term in s 319(2)(a), the physical element of the definition of assault to the person of another will be 'without [her] consent' for the purpose of s 222 insofar as it applies to a s 323 offence or other relevant Ch XXXI offences. The definition of consent in s 319(2)(a) is intended to cover the field in relation to Ch XXXI offences. The second consent limb in s 222 (with his consent if the consent is obtained by fraud) is not consistent with the approach to consent in s 319(2)(a) and is confined to offences outside Ch XXXI of the Code.

11 This construction of s 319(2)(a), based on the statutory text, context and purpose, is consistent with the relevant legislative history, in particular the second reading speech and explanatory memorandum accompanying the Acts Amendment (Sexual Assaults) Bill 1985 (WA) which made sweeping changes to the then existing law relating to 'rape, sexual assault and other forms of violence against women'. I would dismiss ground 4.

12 The appellant claims the trial judge erred in his consent directions relating to counts 2 to 13 concerning S. The trial judge's directions are coloured by the way in which the prosecution conducted its case relating to the charges against S. Whether or not S had consented to the conduct the subject of the charges was a very live issue on the material in the prosecution brief. The prosecutor's opening on the subject was in the following terms:

[I]f another person makes contact, physical contact with another adult with consent, prima facie there's no offence but the State case is that in this situation, [S] was misled.

He offered - the accused man offered to give her a body massage and that [S's] intention was not to allow him to get any sexual gratification by making contact - by touching her breasts or touching her vaginal area (ts 56).

13 It can be seen that the prosecutor's focus was on S. There is no suggestion that the appellant was responsible for 'misleading' S and thus no particularisation of the appellant's acts, omissions, intentions or knowledge in that regard. The conduct of the prosecution case at trial was consistent with the opening. In particular, there was nothing in the way the prosecution conducted its case to suggest that S's consent was not freely and voluntarily given because it was obtained by the appellant's use of deceit or fraudulent means for the purposes of s 319(2)(a) or that S's consent was obtained by fraud for the purposes of s 222 of the Code. The only references on the subject in the prosecutor's closing address were to the following:

(a) at their first meeting the appellant told S that 'he was a person who has international dealing, who has massage and gave freely to a lot of people, who in fact got people in wheelchairs walking and did treatment of people by way of massages then got rid of their scars' (ts 9.5);

(b) S's evidence that 'she thought, oh, what's happening, but well, this must be the massage. This is the correct technique. They have to touch these parts of the body, so I shouldn't show that I'm immature. I'm a silly girl. So she just allowed that to happen' (ts 9.6);

(c) '[I]t is inherently improbable a person saying without any professional qualification or training that he can run two fingers and locate the dislodged disc and nerves and give that type of diagnosis' (ts 13.5).

14 In the context of a no case submission, the trial judge ruled that the meaning of consent in s 319(2)(a) of the Code did not apply and that the State was required to prove that S's consent to the conduct the subject of the charges was obtained by fraud. The trial judge directed the jury in accordance with his understanding of the State case as follows:

On the issue of consent, the State's case is that the evidence of [S], taken with the other evidence in the prosecution case, is capable of satisfying you that although she submitted to being massaged by [the appellant] in a manner that included the massaging of her breasts and her vaginal area, her consent was not freely and voluntarily given in circumstances where she believed that what the accused was doing was a legitimate form of massage, such that she felt it was unreasonable for her not to feel comfortable being touched that way.

It's otherwise the State's case that her consent was obtained by fraud inasmuch as it has been represented to her by [the appellant] in the conversation in the Railway Hotel and in the conversations that were - the conversation that occurred during the first massage, that the purpose of the massage was to alleviate her back pain - that is, for a therapeutic purpose, not for his sexual gratification (ts 286 - 287).

15 The first paragraph of the direction encapsulates the State case as it was opened and conducted (the misunderstanding basis). It suggests that permission and submission to conduct of the type in issue resulting from a complainant's misunderstanding that is not induced by (or at least known to) the accused is capable of establishing that the conduct occurred without the complainant's consent. I return to this matter below.

16 In the second paragraph of the direction, the trial the trial judge raised with the jury for the first time the alleged fraud of the appellant (the fraud basis), which he said was based on statements made by the appellant to the effect that the purpose of the massage was to alleviate S's back pain. However, there is no evidence from S that the appellant had made any representation to that effect at any relevant time or that it caused her to consent to the appellant's actions. Further, the jury were not told the meaning of the statutory terms 'fraud', 'deceit' or 'any fraudulent means' or that it was necessary for the prosecution to prove that S's consent was obtained by that conduct or that in order to rely on a representation as fraudulent, the representation had to be fraudulent at the time it was made.

17 After the jury retired to consider its verdict, a number of questions were directed to the trial judge, two of which related to the issue of consent. The first question was 'did the accused ever claim to be a masseuse to [S]'? The other question was 'could you please clarify the issue of consent, specifically how is it interpreted/defined if gained by fraud, deceit or dishonest representation.

18 The appellant submits the first question is of concern because it evidences confusion on the part of the jury about what precisely the prosecution case was in relation to whether S's consent had been obtained by fraud or other misconduct. It would appear to have no other relevance. However, it was never the State case that the appellant had obtained S's consent by falsely holding himself out to be a masseur. The trial judge's answer to the first question did not engage with the possibility that the jury may have thought that it related to the fraud case (ts 313 - 324).

19 In answering the other question, the trial judge redirected the jury in very general terms. He said that consent obtained by deceit or by some dishonest representation is not true consent (ts 325) but did not identify any specific conduct of the appellant that could constitute fraud, deceit or some dishonest representation. It was left it to the jury to decide what that conduct could be, the prosecution having failed identify it. The trial judge did not repeat or retract his earlier flawed direction on the subject.

20 I accept the appellant's claim that the redirection gave rise to a real risk that the jury may have considered that it was open to convict the appellant on counts 2 to 13 because they were satisfied the appellant had overstated his ability to cure people through massage or because he did not have any professional qualifications or training.

21 The State case on consent and the trial judge's directions on the subject are confused and confusing. I am satisfied that the errors give rise to a miscarriage of justice. I would uphold ground 5.

22 The appellant claims the trial judge erred in failing to direct the jury on the defence of mistake under s 24 of the Code in relation to counts 2 to 13 (ground 2) and count 14 (ground 3).

23 In essence, the appellant claims the trial judge erred in concluding that the appellant had not satisfied the evidentiary burden of raising the mistake defence.

24 The relevant question is whether there is evidence which, taken at its highest in favour of the appellant, could as a matter of law, lead a reasonable trier of fact to have a reasonable doubt that the appellant honestly believed on reasonable grounds that the complainant consented to the sexual activity the subject of the charge: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36].

25 As the defence of mistake only arises for consideration if the jury is satisfied beyond reasonable doubt that the complainant did not consent, the evidentiary burden will only be satisfied if there is a version of the facts which leaves open, as a reasonable possibility, that the appellant could honestly and reasonably but erroneously believe that the complainant consented: Narkle v The State of Western Australia [2011] WASCA 160 [3].

26 In short, there must be evidence from which it was open to the jury to infer that the appellant honestly believed that the relevant complainant had consented to the conduct the subject of the charge and that there were reasonable grounds for his belief. I agree with Mazza JA for the reasons he gives that there is no merit in ground 3 relating to Y.

27 It is the case that the appellant's evidence at trial was positively inconsistent with him having mistakenly believed that S had consented to the acts the subject of the charges. He denied engaging in the conduct the subject of the charges and accepted that there was no physiological or other justification for massaging a person's breasts or groin area. The latter evidence is clearly linked with the appellant's unequivocal denial of the conduct. It is apparent from the verdicts that the jury positively disbelieved the appellant's evidence, which must then be put to one side in assessing whether the appellant had satisfied the evidentiary burden of raising mistake.

28 Ordinarily, the evidentiary foundation for the subjective aspect of mistake (honest belief) is the evidence of the accused. That must be the case in circumstances where the complainant gives unequivocal evidence of the absence of consent. Moreover, if the sole basis of conviction is that an offender obtained the complainant's consent by deceit or fraudulent means (as to which, see Hunter v The State of Western Australia [2014] WASCA 184 [37] - [38]), there would be no evidentiary basis for the defence of mistake. However, in the trial judge's summing up in this case the jury was presented with a State case comprising dual pathways to conviction, being the misunderstanding basis and the fraud basis.

29 There was no claim by the appellant that the misunderstanding basis was incapable, as a matter of law, of satisfying the requirement that the conduct the subject of the charges relating to S were without her consent. I remain to be persuaded that permission and submission to such conduct

resulting from a complainant's misunderstanding that is not caused or contributed to by the conduct of the accused and of which he has no knowledge is capable of establishing the absence of consent. However, that is an issue for another time. I will assume that the misunderstanding basis is capable of sustaining a finding of absence of consent. If that is correct, it means a person can be convicted of a sexual offence in the absence of proof by the State of any fault element, even knowledge, that a complainant was acting under a misapprehension. The absence of any fault element would itself provide an evidentiary basis for the defence of mistake under the Code. In any event, S's evidence at trial provides an evidentiary foundation for the defence of mistake. S's conduct (verbal and otherwise) was consistent with her evidence that she had assumed, with J's reassurances, that the appellant's conduct the subject of the charges was a normal incident of a whole body massage (ts 111, 131, 137, 138, 146, 150 and 153). S was also cross-examined about the effect of her conduct on the appellant's state of mind regarding her consent to his conduct (ts 138, 139, 140, 141 and 142). Further, S's conduct on the first three occasions provides context, and an evidentiary basis, for the mistake defence in relation to the counts relating to the fourth occasion. I would uphold ground 2.

30 MAZZA JA: Before the court is the appellant's application for an extension of time within which to appeal and, if granted, his appeal against conviction.

31 The appeal was filed approximately one month out of time. The delay is adequately explained. I would grant the extension of time.

32 The appellant was charged in the District Court on indictment with 14 counts of sexual offending between 1990 and 1997 as follows:

(a) Count 1 alleged that the appellant sexually penetrated V without her consent when V was under the age of 16 years, contrary to the now repealed s 324E of the Criminal Code (WA) (the Code).

(b) Counts 2 to 11 and count 13 alleged that the appellant unlawfully and indecently assaulted S by either touching her breast or her vaginal area.

(c) Count 12 alleged that the appellant unlawfully and indecently assaulted S by placing her foot on his penis.

(d) Count 14 alleged that the appellant unlawfully and indecently assaulted Y by touching her breast.

33 All of the offences allegedly committed against S and Y were contrary to s 323 of the Criminal Code.

34 The appellant was tried before Staude DCJ and a jury. On 13 February 2015, the jury returned verdicts of guilty on all counts, save for count 3. On this count, he was acquitted (ts 328 - 331). On 23 April 2015, his Honour imposed a total effective sentence of 4 years 9 months' immediate imprisonment, backdated to 24 January 2014.

35 None of the grounds of appeal concerns the appellant's conviction on count 1. Whatever the outcome of the appeal, the conviction stands on that count.

36 Originally, the appellant relied upon three grounds of appeal. At a leave hearing, proposed ground 1 was abandoned (appeal ts 2).

37 Grounds 2 and 3, for which leave to appeal was ultimately granted, allege the same thing: there was a miscarriage of justice by reason of his Honour's failure to direct the jury in relation to the defence of mistake pursuant to s 24 of the Code. These grounds of appeal concern the convictions in respect of the unlawful and indecent assaults against S and Y.

38 At the hearing of the appeal, the appellant was granted leave to add two further grounds of appeal (appeal ts 8). Proposed grounds 4 and 5 allege errors of law or miscarriages of justice by reason of his Honour's directions to the jury.

39 It is unnecessary to describe in detail the allegation made by V, the subject of count 1, because there is no ground of appeal in respect of the conviction on this count. All that needs to be said is that V testified to the effect that in or about 1991, when she was aged 14, the appellant, during the course of what was supposed to be a back massage, penetrated her vagina with his thumbs without her consent (ts 82 - 83).

40 The offences regarding S were said to have occurred between August and September 1994. At that time, she was 26 years of age and the mother of three young children. She and her partner, J, lived in Donnybrook (ts 102).

41 S recalled that on 2 August 1994, her birthday, she and J went to the Boyanup pub and later to the Railway Hotel in Donnybrook. There, they met the appellant. Initially, J spoke to the appellant but later, J introduced him to S. The appellant told S that he was going to massage J's back the following day. On hearing this, S said to the appellant 'Oh, you can do mine as well then' (ts 104). S testified as to a number of claims made to her by the appellant, including that he had helped people in wheelchairs walk again; healed scars and performed massage. From S's perspective, the appellant sounded 'like a miracle worker' (ts 104). S said that at the time she had a minor back problem (ts 105).

42 S testified that the appellant came to her house on the following day, 3 August 1994. There, after massaging J, the appellant committed the offences alleged in counts 2 and 3. S described how the appellant called her into a spare room. The appellant told S to take her singlet off, which she did. As S was not wearing a bra, her breasts were exposed. He then massaged her back and shoulders. He then told her to put her singlet back on, which she did. The appellant then manipulated her body, during which S heard her vertebrae click (ts 106). After this, the appellant asked S to lie down on her back and take her singlet off again; again, leaving her breasts exposed. The appellant then put 'some sort of lotion' on his hands, and kneaded her breasts and tweaked her nipples between his thumb and forefinger (ts 107) (count 2). Next, the appellant asked S to remove her ski pants, which she did, leaving her wearing only a G-string. He massaged her pelvic area, hips, thighs down to her pubic area and then massaged the lips of her vagina beneath her G-string with his fingers (ts 107 - 108) (count 3).

43 S said that after this occasion, she described what had occurred to J. She said she told J that she did not realise that the conduct 'was supposed to happen' (ts 110). J told her 'Well, it's a full body massage. It means full body' (ts 111).

44 The appellant returned to S's house a few days later. It was not disputed that the date of the second visit was 7 August 1994. Again, the appellant massaged J followed by S. On this occasion, S said that she took her top off and the appellant, as he had done on the first occasion, kneaded her breasts and tweaked her nipples (count 4), then massaged her lower body until he touched her 'groin' inside her G-string (ts 109) (count 5).

Counts 6, 7, 8 and 9 (the third occasion)

45 S described how the appellant came to her house again on 24 August 1994 when J was not home. She said that the appellant massaged her face and then lifted her top and kneaded her breasts and nipples (count 6). S's 8-month-old son became upset. While she was settling him, the appellant continued to massage S, gradually getting to the point where he rubbed her pubic area, the inside of her thighs, her groin and her vaginal lips outside her ski pants (ts 113) (count 7). At this point, there was a noise at the door. By this time, the appellant was massaging her breasts again (count 8). When the appellant heard the noise at the door, he stopped what he was doing and pulled S's top down 'really quickly' (ts 113). It turned out that S's daughter had come home from school. When the appellant saw this, he 'immediately pulled [S's] top back up' again and resumed massaging her breasts (ts 113) (count 9).

46 S said that she thought that what had occurred was 'a bit weird' and talked to J about it (ts 114). After discussing it with J, S decided that, if the appellant came around again, she would ask him not to touch her on the breasts or the vaginal area (ts 114). S explained that, at this time in her life, she suffered from anxiety, could not stand confrontation and was not very assertive. She said that 'back then, I was like this pathetic little wallflower' (ts 114).

Counts 10, 11, 12 and 13 (the fourth occasion)

47 The final time the appellant came to S's house was 2 September 1994. She was at home. S agreed to the appellant massaging her. She said that before the massage, she changed into what she described as 'normal people knickers instead of a G-string' and put on a bra (ts 115). S said she did this because she was unsure as to whether she would be able to 'get it through to [the appellant]' that she didn't want him 'to touch her in these areas' (ts 115). S told the appellant that she did not want him to touch her breasts or between her legs. She said that when she said this, she thought that the appellant had been doing 'the correct thing just being an all over body massage person who heals people and I was being silly and prudish by asking him not to touch me in these areas' (ts 116). S said that after she told him not to take it personally, he said 'Fair enough' (ts 116). Upon hearing this, S said she felt safe to carry on with the massage.

48 S described how the appellant told her to take off her top and lie on her back. She said that somehow her ski pants were removed and he massaged her as he had before; that is, kneading her breasts and tweaking her nipples (count 10). S said that she was 'shocked' and that she 'just froze' (ts 116). She did not say anything to the appellant. S described how the appellant then knelt at her side and massaged her hips, groin and the inside of her thighs. He then put his fingertips inside her underwear and massaged the lips of her vagina (ts 117) (count 11). S said that the appellant got her left foot and, while massaging the bottom half of her calf, pulled the foot towards him onto his fully-erect penis which S could see under his clothes (ts 117 - 118) (count 12). S testified that the appellant asked 'Have you had enough now?' to which she said that she had (ts 118). S said that the appellant then opened her legs and then massaged the lips of her vagina again (ts 118) (count 13). The appellant then left the house. S did not see him again.

49 S said that, on 7 September 1994, she went to the police and reported what had occurred (ts 119).

50 In addition to the four occasions I have mentioned, S said that the appellant came to her house on 'at least two' other occasions on a week day when J was not home. On one of these occasions, S said that the appellant came to the house when the Midday Show was just starting on television. The appellant massaged her on the couch. He had S take her top off, after which he massaged her breasts and, after edging down the waistband of her ski pants, he got as far as her pubic hair, but no further (ts 110).

51 S's cross-examination proceeded on two broad themes. First, although the appellant had massaged S on the occasions about which she testified, and on more occasions, the appellant had at no time touched her on the breasts or vagina. Second, S consented to the acts of sexual touching that she described.

52 It is evident from the cross-examination that, apart from the occasion on 2 September 1994 (the subject of counts 10 to 13), S did not ask the appellant to stop what he was doing. S testified to the following effect:

(a) On the first occasion, she did not know what to expect (ts 136).

(b) On the second occasion, she knew what to expect; had agreed to the massage; and did not tell the appellant that she was uncomfortable with what he did (ts 138 - 140).

(c) In the lead up to the third occasion, she neither did nor said anything which indicated she was uncomfortable or wanted the appellant to stop (ts 140 - 142).

(d) On the third occasion, she did not, at any time, tell the appellant to stop, but agreed that she could have done so if she did not want him to continue what he was doing (ts 143 - 146).

(e) Up until the fourth (last) occasion, she had not, at any time, said that she did not want the appellant to massage her.

S said that although she was uncomfortable with what the appellant did, she did not think at the time that he was doing anything wrong (ts 146 - 147). When defence counsel asked S if she had given the appellant any indication that she was upset when he massaged her, she responded that, although she had not said anything to that effect to him, 'He'd have to be really dumb to not realise' (ts 147). Earlier, S testified that on the first occasion she was 'sort of squirming [but] trying not to' (ts 137). With respect to the fourth (last) occasion, she agreed that she took her bra off and that she did not tell the appellant to stop either touching her breasts or groin during the massage (ts 150).

53 Towards the end of the cross-examination, the following exchange took place:

Would it be fair to say this, [S], at the time that each of the massages occurred, that you consented to what he was doing and it wasn't until afterwards when you thought about it that you changed your mind about that?---Up until the [fourth occasion]. When you say 'consent' I mean, I didn't object, yeah, but only because I thought what was going on was - this was what was supposed to be going on with a full body massage and that, and that had been confirmed to me or that thought, that thought had been reinforced to me by [J] at the time. I thought, 'He knows what he's talking about,' so - - -

All right?---So I didn't try and stop him but the consent was only there because I thought, "This is what, what is probably - properly supposed to be going on with a full body massage."

But you did consent to it, didn't you?---If you mean I didn't, I didn't - - -

Well, you allowed him to continue to massage you. If we take, if we take out the [fourth] occasion - - -?---Yeah.

- - - and we talk about the ones before that?---Yes.

You let him keep coming back to massage you so I think - I'm suggesting to you it's fair to characterise that as consenting to a massage?---Only because I didn't know what he was doing wrong.

All right. Well - - -? ---What - I didn't know what - that he was doing anything wrong.

All right. And in respect of the [fourth] occasion, I understand that you said that you told him not to touch you in those places?---Mm hmm.

But when it was going that way, you didn't stop him, did you?---No. I froze (ts 153 - 154).

54 In re-examination, S said in substance that, although she felt uncomfortable with her breasts and vaginal area being touched by the appellant, she thought that the touching was part of a full body massage, as she understood it to be. As she put it:

I personally felt uncomfortable with - with those areas being touched, but I - I just thought, you know, "It's - don't be silly. This is - everyone who's ever had a full body massage ever in the history of the whole human race, this is how they're massaged obvious [sic] because that's how he's doing it, so that's how it's done" (ts 155).

55 Y testified that in 1997, when she was 20 years of age, she was living with her partner, T, in the Perth metropolitan area (ts 172). Y said that a friend of her partner introduced her to the appellant, who told her that 'he was a masseuse [sic]' (ts 173). She testified that T asked the appellant to massage his back, which the appellant did. Y said that, at the time, she was complaining about a sore shoulder, so the appellant asked her if she wanted her shoulder 'done' (ts 173). Y said that she and the appellant went into a room where the appellant told her to take off her top. She said that she only pulled her T-shirt up so that her back was exposed, but had undone her bra so that the appellant could do her back (ts 174 - 175). The appellant massaged her shoulder and back, and then her legs above her knee and then 'up around [Y's] groin' (ts 175). Y said she closed her legs 'to give the hint' (ts 175). The appellant then massaged her back and shoulder again. He asked her to turn over, then lifted her T-shirt and began to massage her breasts, at which point she got up and walked out of the room (count 14) (ts 175 - 176).

56 Defence counsel cross-examined Y, suggesting to her that her memory had been affected by the effluxion of time and by drugs. She agreed with these propositions, adding that she had tried to block the incident from her memory (ts 181). Y said that she left the room because she 'felt uncomfortable' and intended to indicate to the appellant that she did not want him touching her breasts (ts 183). Y denied the proposition 'that at no time did [the appellant] touch your breasts' (ts 184). It was not suggested to Y that she had consented to any such touching.

57 The State's case not only comprised the evidence of the complainants; it also adduced evidence from J and T. It is unnecessary to describe that evidence. The State also adduced evidence that the appellant fled the State of Western Australia after being charged with these offences. It was the State's case that this conduct amounted to an implied admission of guilt. The State also adduced evidence pursuant to s 31A of the Evidence Act 1906 (WA) of another instance where the appellant had, under the guise of therapeutic massage, indecently assaulted a 17-year-old girl by touching her breast and groin.

58 The appellant elected to give evidence in his defence. He testified to the effect that he recalled each complainant and each occasion on which it was alleged that he had offended. He unequivocally denied inserting his thumbs into V's vagina and indecently assaulting S and Y.

59 The appellant gave a version of events very different to S's version.

60 He claimed to have met S one morning at the Railway Hotel when she was on her own (ts 222). He struck up a conversation with her, during which he told S about his interest in natural healing and fitness (ts 222 - 223). S told him that she suffered from stress. After further talk, she said to the appellant 'Don't you ... go through town, without calling around to my place and giving me a deep tissue back massage' (ts 223). According to the appellant, S indicated to him where she lived (ts 223).

61 The appellant said that 'two weeks and two days later', he went to her house (ts 223). On this occasion, J was home. He testified that, in J's presence, S told the appellant 'I'm ready for the deep tissue back massage' (ts 224). According to the appellant, she took him to what he thought to be a spare room. There, he gave S a deep tissue massage for 'about 15 minutes', during which time he 'put [S's] back ... neck and hips in for her' (ts 224). S thanked him, adding that she 'had no stress and [felt] no pain in [her] body' (ts 225). The appellant said he would come back in the next week or two (ts 225).

62 The appellant said that he 'worked on' S ten times in the next three months (ts 225). He said that, in the course of that work:

(d) he did not, apart from her back, massage any other parts of S's body at any time (ts 225).

63 The appellant testified in some detail about the last occasion on which he massaged S. He said that J was not at home. According to him, this was the first occasion he had worked on S without J being at home (ts 226). The appellant described how S grabbed him, hugged him and, in effect, invited him to have sex with her (ts 226 - 227). He testified that he rebuffed S's advances, left her house and never returned (ts 227).

64 As with S, the appellant's version of events with respect to Y was very different to that of Y.

65 The appellant testified that he went to a friend's house where he met Y and T. There, T complained of back pain, so the appellant massaged the lower part of his back, with apparent success (ts 228 - 229). He said that he noticed Y holding her head in her hands. Y told him that she was suffering from a persistent 'bad headache' (ts 229). The appellant said that he told Y that he could get rid of her headache by giving massaging 'pressure points' on her head (ts 229). Y agreed to his offer. According to the appellant, they went into a bedroom where he gave Y a head massage, working on her 'pressure points' for 'about 20 minutes', after which time Y said that her headache had 'gone' (ts 229).

66 The appellant recalled in detail what Y was wearing on this occasion: a shirt, a jumper, heavy-duty denim trousers and a suit coat with very thick padded shoulders on it, amongst other things. He recalled the last detail of the suit coat because, when he was working on Y's head, he felt the padding in her coat (ts 229). The appellant testified that Y lay face down; was clothed the whole time; and that he 'only worked on her head' (ts 230).

67 Under cross-examination, the appellant said that he began massaging people when he was about 14 or 15 years old. He said that he was taught about 'pressure points' and 'how to put backs, necks and hips into place' (ts 231). The appellant said that he had healed 'thousands and thousands from all over the world' (ts 231). The appellant claimed to have helped people with 'mental problems' by counselling them, and enabled a group of elderly people in wheelchairs to walk (ts 232).

68 The appellant testified that there was no reason for him to massage a person's buttocks or chest because there were no pressure points in those parts of the body and that, in any event, they were 'private' and 'personal' (ts 233). He elaborated that he was 'very respectful' of the people he treated and acknowledged that 'people are trusting me with their bodies' (ts 233). The appellant said that when he massaged people, the only article of clothing he ever asked them to remove was 'their top' (ts 234). Some women, he explained, were more comfortable with their bra off. He explained that if that occurred, he would turn the other way while it was being removed and the woman would then lie down on her front (ts 234). He said that the people he massaged wore shorts, and that there was no reason for these to be removed as he worked on 'their legs and not - not any other body part' (ts 235). The appellant was emphatic that there was no reason for him to touch the groin area, saying:

That's a private part. That's a no-no. I wouldn't - no, never even thought about it. That's wrong (ts 235).

69 With respect to the offences of unlawful and indecent assault, his Honour directed the jury on 'consent', as follows, at ts 259 - 260:

Now, I turn to the elements of unlawful and indecent assault, which is the offence charged in counts 2 through to 14. Now, in order to prove that an unlawful and indecent assault was committed, the State has to prove three things: that the accused assaulted the complainant; ... that the assault was indecent; and that the assault was unlawful.

Now, 'assault' is relevantly defined in the Criminal Code as touching, striking, moving or otherwise applying force to the person of another, directly or indirectly, without their consent or with their consent if the consent is obtained by fraud. So basically, it involves the touching of another person without their consent. The touching must be deliberate, not inadvertent. If you bump someone on the bus accidentally, that is not an assault. It has to be intentional.

'Consent', in this context, means a consent freely and voluntarily given. Obviously, consent is not freely and voluntarily given if it is obtained by fraud. That means that consent obtained by deceit or by some dishonest representation is not true consent.

Now, these directions are of particular significance with respect to the counts involving 'S' who repeatedly agreed to be massaged by [the appellant], expecting, on her evidence, on the basis of what occurred on the first occasion, that he would massage her breasts and vaginal area. And I'll come to say more about the case in relation to the counts involving 'S' in due course.

Again, in relation to indecent assault, failure to offer resistance does not, in itself, constitute consent. It is a matter for you what you make of a failure to resist in a particular case, but as a matter of law, mere submission in itself, does not constitute consent. That is something I'm sure you understand as a matter of common sense (ts 259 - 260). (emphasis added)

70 His Honour summarised the State's case on the issue of consent as it related to S, in this way:

On the issue of consent, the State's case is that the evidence of [S], taken with other evidence in the prosecution case, is capable of satisfying you that, although she submitted to being massaged by [the appellant] in a manner that included the massaging of her breasts and her vaginal area, her consent was not freely and voluntarily given in circumstances where she believed that what the accused was doing was a legitimate form of massage, such that she felt it was unreasonable for her not to feel comfortable being touched that way.

It's otherwise the State's case that her consent was obtained by fraud inasmuch as it has been represented to her by [the appellant] in the conversation in the Railway Hotel and in the conversations that were - the conversation that occurred during the first massage, that the purpose of the massage was to alleviate her back pain - that is, for a therapeutic purpose, not for his sexual gratification. Her evidence was that when she realised on the last occasion of being massaged that [the appellant] was sexually aroused by massaging her, she understood that his touching her in the way complained of was improper (ts 286 - 287).

71 The jury retired to consider its verdicts at about 12.23 pm on 12 February 2015. The jury did not reach verdicts that day. On the morning of 13 February 2015, the learned trial judge received several jury questions, two of which concerned the issue of consent. The first such question read:

Did [the appellant] ever claim to be a masseuse [sic] to [S] (ts 298)?

Could you please specify the issue of consent, specifically how is it interpreted/defined if gained by fraud, deceit or dishonest representation (ts 298)?

73 In answer to the first question, with the agreement of counsel, the learned trial judge read to the jury various excerpts from the transcript (ts 313 - 317).

74 In answer to the second question, his Honour repeated, in substance, the direction he gave at ts 259 - 260. He also, in substance, repeated the parties' submissions on the question of consent. His Honour then added:

If [S] gave her consent under a mistake that was hers, then that doesn't involve any fraud on the part of [the appellant]. If her consent was obtained by a misrepresentation as to what was being done, such that you thought that it was not true consent, then you would have to be satisfied that there was something said or done by [the appellant] to cause her to give consent where otherwise she wouldn't: and that seems to me the reason for your first question.

Obviously, you're giving consideration to that issue. Now, I've read to you what the evidence is in that regard and it's for you to make what you will of it. But I would say that whilst her consent is capable, if you find it was given, capable of being vitiated by fraud on the part of [the appellant]: that is some deceit that he practised on her, it's not enough that she believed that a full body massage included touching of the breasts and the vagina.

You would have to be satisfied that there was something that he did or said that deceived her or operated to defraud her in that respect (ts 326 - 327).

75 No exception was taken to his Honour's directions or redirections.

76 Grounds 2 and 3 both concern the defence of mistake and therefore, may be dealt with together.

77 Section 24 of the Code relevantly reads as follows:

24**. Mistake of fact**

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

78 During defence counsel's closing address, she made a submission to the effect that, even if V had not consented to being sexually penetrated (the subject of count 1), the jury needed to consider whether the appellant honestly and reasonably, but mistakenly, believed she was consenting. His Honour immediately interrupted defence counsel and said '... there's no basis for that on the evidence' (closing addresses, 11 February 2015, ts 20 - 21). Defence counsel then inquired as to whether his Honour's view extended to all of the counts on the indictment; in other words, whether this view applied also to the offences against S and Y. His Honour replied that it did, for two reasons: first, the appellant denied the acts that had been alleged; second, the appellant had testified that 'none of those acts would have any place ... in a massage done by him' (closing addresses, 11 February 2015, ts 21). Nothing more was said on the issue and his Honour gave no direction on the subject of mistake.

79 The appellant submits that his Honour was obliged to direct the jury on the question of mistake with respect to S and Y. It was argued that, although the appellant denied unlawfully and indecently touching S and Y as they had alleged, their testimony sufficiently left open the possibility of mistake and gave rise to an obligation on the part of the trial judge to leave mistake to the jury with respect to counts 2 to 14.

80 The respondent submitted that, as there was no evidence led at trial that the appellant believed that either S or Y were consenting, there was no evidentiary basis upon which mistake could be left for the jury's consideration. The respondent pointed to the appellant's evidence in which he denied unlawfully and indecently touching S and Y, and that there was no reason for him to touch the breasts or genitals of a person in a therapeutic massage.

81 I respectfully adopt the following propositions of law enunciated by Buss JA in WCW v The State of Western Australia [2008] WASCA 232 [7] - [10]:

A defence under s 24, in the context of the offence of aggravated sexual penetration without consent, will not arise for determination unless:

(a) there is, in fact, no consent; and

(b) there is some evidence, fit for the jury's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration.

See Loveday v Ayre; Ex parte Ayre [1955] St R Qd 264, 267 - 268 (Philp J); R v Lyons (1987) 24 A Crim R 298, 299 (Williams J).

Where there is evidence, fit for the jury's consideration, of an honest and reasonable, but mistaken, belief by the accused, the burden of negativing the defence rests upon the prosecution. See CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978 [8], [35] (Gleeson CJ, Gummow, Crennan and Kiefel JJ); Loveday, (268) (Philp J), (271) (Stanley J); Lyons, (299).

The question for a trial judge in determining whether there is evidence, fit for the jury's consideration, of an honest and reasonable, but mistaken, belief is this: whether, on the version of events most favourable to the accused that is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused did not have an honest and reasonable, but mistaken, belief. Compare Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 334 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

The concept of honest and reasonable belief has subjective and objective elements. The subjective element is, ordinarily, peculiarly within the knowledge of the accused. The objective element must be capable of being measured against the evidence by the tribunal of fact. See CTM [8].

82 With respect to the subjective element of the defence, the criminal law does not exculpate an accused merely because a reasonable person in the position of the accused might have held the belief in question. That does not mean that the accused must give evidence as to the relevant belief, but there must be some evidence (whether in the prosecution or defence case) capable of showing, directly or by inference, that the accused actually held the belief: R v Cutts [2005] QCA 306 [48] (Williams JA).

83 R v Cutts was given some prominence by senior counsel for the appellant. It has some similarities to the present case, but also some differences.

84 The appellant in R v Cutts was a taxi driver who drove the victim, a wheelchair-bound woman with cerebral palsy, home from a shopping centre. The appellant and the victim were not previously known to each other. The victim testified that after she paid the fare, the appellant entered her home on the pretext of needing the toilet. After using the toilet, he returned to the lounge room, where he rubbed the victim's breasts and put one of her breasts into his mouth (counts 1 and 2). The victim testified that she did not consent to these acts.

85 He then asked her to rub his erect penis, which she did because she was scared (count 3). He then asked the victim to suck his penis. She complied with this request because, she said, she wanted him out of the house (count 4).

86 The appellant's testimony contradicted that of the victim. He said that after he used the toilet, the victim asked him questions of a sexual nature which made him feel uncomfortable. He denied that any of the alleged sexual acts occurred. He said that, upon leaving her house, he kissed the victim on the cheek.

87 The issue at trial was whether the victim consented. The appellant was convicted of three counts of unlawful and indecent assault (counts 1 to 3) and one count of rape (count 4). The appellant's experienced trial counsel did not suggest that a s 24 defence should be left to the jury. On appeal, it was submitted that the appellant suffered a miscarriage of justice by reason of the failure to leave to the jury a s 24 defence. The appeal against conviction was dismissed.

88 The issue to be decided on appeal was (as in the grounds presently under consideration), presupposing the rejection of the appellant's denials, whether a s 24 defence was sufficiently raised on the evidence of the victim.

89 McMurdo P, Williams JA and Jerrard JA each wrote separate judgments. Each accepted that a s 24 defence may be left to a jury even where the accused denies the alleged sexual conduct on the basis of the evidence of the complainant. The judgments are clear that the defence must be left in all such cases and that whether a s 24 defence should be left in such circumstances depends upon the particular facts of the case. I accept these propositions.

90 McMurdo P and Williams JA held that, on the facts of the case, a s 24 defence did not arise in respect of any of the counts. Jerrard JA held that the defence arose only in respect of counts 3 and 4.

91 The appellant's evidence was more than a mere denial that he had touched S and Y as they alleged. He testified to the effect that:

(b) there was no legitimate healing reason for him to massage a woman's breasts or vaginal area; and

(c) he would never do that because those areas of the body were 'private' and 'personal'.

92 There is no reasonable basis upon which to doubt that the statements made in (b) and (c) reflected his belief at the time of the alleged offences.

93 With respect to the first occasion in which dealt with S, he was ostensibly there to perform a back massage on her. He did not ask S whether she wished to have her breasts and vaginal area massaged. She gave no indication that he could. He simply did it, knowing that, according to his evidence, in the context of a massage, he should not do so. In my opinion, there was no evidential basis to support the notion that the appellant held the belief that S was consenting on the first occasion.

94 Nor do I think that there was any basis for the appellant to believe that S was consenting on the fourth occasion. It will be recalled on that occasion, S told him that she did not want him to massage her breasts and vaginal area and that she dressed to avoid contact with those areas of her body. Her statements were clear and unequivocal. With respect to the fourth occasion, there was no evidence capable of supporting the contention that the appellant held a belief S was consenting.

95 However, the second and third occasions are much less clear-cut. On any analysis, S's conduct had some highly unusual features. As her evidence, particularly in cross-examination, showed, she gave the appearance of consent. On those occasions, she:

(a) knew what to expect, that is, a 'full body massage' which involved the touching of her breasts and vaginal area;

(c) did not tell the appellant to stop what he was doing, but could have done so.

96 A scenario open on the evidence was that, although the appellant knew that he should not touch S in the way that he did in the context of a massage, she nevertheless allowed him to do so in such circumstances that it may be inferred he believed her to be consenting to his actions.

97 In my opinion, but only in respect of the second and third occasions, there was sufficient evidence from which a jury could properly infer that the appellant believed S was consenting and that belief was reasonable in all of the circumstances. I wish to emphasise that, in arriving at this conclusion, I regard the facts of the present case as not at all typical. They are, as I have said, highly unusual.

98 Of course, a defence under s 24 of the Code could not arise if the jury was satisfied beyond reasonable doubt that S's consent had been obtained by fraud. This is because a finding of fraud would contradict any notion that the belief of consent was honest.

99 With respect to Y, there is no aspect of the evidence that could support any contention that the appellant held a belief that she was consenting.

100 Ground 2, which related to S, has been made out to the extent that his Honour should have left a defence pursuant to s 24 with respect to S, but only on counts 4 and 5 (the second occasion) and counts 6, 7, 8 and 9 (the third occasion). Ground 3, which only concerns Y, has not been made out.

Proposed ground 4 - did his Honour misdirect the jury as to the meaning of 'consent' for the purposes of counts 2 to 14?

The learned trial Judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, by the direction given to the jury regarding the meaning of 'consent' for the purposes of counts 2 to 14, which charged the appellant with offences contrary to s 323 of the Criminal Code.

Particulars

(a) The learned trial Judge directed the jury on a number of occasions that the meaning of consent for the purpose[s] of counts 2 to 14 on the indictment, which alleged that the appellant had committed offences of indecent assault contrary to s 323 of the Criminal Code, was a consent 'freely and voluntarily given'.

(b) The learned trial Judge should have directed the jury that the meaning of consent for the purposes of counts 2 to 14 on the indictment was its ordinary meaning for the purposes of s 222 of the Criminal Code.

102 It is convenient to begin consideration of this proposed ground by setting out the relevant statutory framework which applied at the time the offences were allegedly committed against S and Y.

The statutory framework - ch XXXI and XXVI of the Code

103 Section 323 of the Code read (omitting the penalty):

1. A person who unlawfully and indecently assaults another is guilty of a crime ...

104 Section 323 is contained in ch XXXI of the Code. The chapter is entitled 'Sexual Offences'. Within it are various sexual offences, including with respect to children, de facto children, lineal relatives and incapable persons. Some offences expressly require proof by the prosecution of an absence of consent; for example, s 325.

105 Chapter XXXI of the Code begins with s 319, which is headed 'Interpretation'. It comprises four subsections. Subsection (1) defines various terms which are used elsewhere in ch XXXI. The chapeau to subsection (1) reads 'In this chapter'. Section 319(1) defines such terms as 'circumstances of aggravation', 'deals with', 'indecent act', 'to indecently record' and 'to sexually penetrate'. Subsections (2), (3) and (4) each begin with the chapeau 'For the purposes of this chapter'. Section 319(2) relevantly reads:

(a) 'consent' means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means;

(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;

(c) ...

106 Section 323 of the Code does not expressly refer to an absence of consent; however, an absence of consent is an element of an offence against that section. That is because an offence against s 323 is a specific type (unlawful and indecent) of assault.

107 The word 'assault' is not defined in s 319 or elsewhere in ch XXXI of the Code. The term 'assault' is defined in s 222, which appears in ch XXVI of the Code. Section 222 is in these terms:

A person who strikes, touches or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person and the act is called an assault. (emphasis added)

108 Thus, in order for striking or touching, etc, to be an 'assault' within the meaning of the Code, it must be 'without ... consent, or with ... consent if the consent is obtained by fraud'. The word 'consent' is not defined in s 222 or elsewhere in ch XXVI, nor is there a general definition of 'consent' in s 1(1) of the Code.

109 The principal question raised in proposed ground 4 is whether the definition of 'consent' in s 319(2)(a) of the Code is to be applied to an offence against s 323 where the requirement for an absence of consent comes from the definition of 'assault' in s 222.

110 The appellant submitted that the meaning of 'consent' in s 319(2)(a) of the Code - that is, 'a consent freely and voluntarily given' - only applies to offences in ch XXXI and only where an absence of consent is an expressly stated element. As s 323 is not such an offence, the appellant submitted that s 319(2)(a) does not provide the definition of 'consent' for the offence of unlawful and indecent assault. The appellant alleged that 'consent', for the purposes of s 222, and therefore, an offence against s 323, has its 'ordinary meaning' which, it is said, does not fully accord with the definition of 'consent' in s 319(2)(a). The appellant submitted that, as a result, the learned trial judge's directions on 'consent' focusing on his Honour's use of the words 'not freely and voluntarily given' with respect to counts 2 to 14 were erroneous. Instead, his Honour should have instructed the jury as to the 'ordinary meaning' of the term 'consent'. The appellant submitted that the directions given by his Honour had the potential to extend the appellant's criminal liability beyond that provided for by law. It is said that a miscarriage of justice arose because, although the jury concluded that a complainant's consent was 'freely and voluntarily given', they may well have reached a different conclusion if they had been required to apply the 'ordinary meaning' of the word 'consent'.

111 The respondent submitted that the meaning of 'consent' in s 319(2)(a) of the Code applies to s 323 and that his Honour's directions were correct; alternatively, the direction did not give rise to a miscarriage of justice.

112 At the heart of the appellant's arguments on proposed ground 4 is the proposition that, had the jury been directed as to the 'ordinary meaning' of 'consent', it may well have acquitted the appellant of the offences against S and Y.

113 The appellant's complaint about his Honour's direction is focused on his instruction that 'consent', for the purposes of s 323, had to be 'freely and voluntarily given'.

114 In my opinion, the ordinary meaning of 'consent', in the context of contemporary sexual conduct, requires that it be given 'freely and voluntarily'. The meaning of 'consent' in the context of sexual offences has changed with the times. For example, the notion that consent to sexual intercourse may be 'hesitant, reluctant, grudging or tearful' (see Holman v The Queen [1970] WAR 2 [6]) does not accord with contemporary concepts of 'consent'. No longer is 'submission' synonymous with 'consent'. Nor is it expected that a victim of a sexual assault must physically resist his or her assailant.

115 Thus, even if the construction point raised by the appellant succeeds, I do not think his Honour's directions concerning 'free and voluntary' consent have given rise to any miscarriage of justice.

116 However, the construction point raised by the appellant should, nevertheless, be resolved.

117 The legislative history of s 319(2)(a) was described in detail by Steytler P in Michael v The State of Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348 [31] - [44].

118 In his report published in 1983 entitled 'The Criminal Code: A General Review', Mr Michael Murray QC (as he then was) drew attention to what he described as 'deficiencies' in the way 'consent' is defined for the purpose of the offence of rape as it then stood in s 325 of the Code. His Honour referred to the decision of the High Court in Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249.

119 Mr Murray recommended that a general definition of 'consent' be inserted into the Criminal Code in s 1(1) in these terms:

'Consent' means a consent freely and voluntarily given, and without otherwise affecting or limiting the meaning of the word, a consent is not freely and voluntarily given if it is obtained by force, threats or intimidation, or by any deception or fraudulent means (528).

120 Mr Murray recommended that the words in s 222 concerning consent obtained by fraud should be deleted.

121 Parliament did not adopt Mr Murray's recommendation as to the incorporation of the general definition of 'consent' into the Criminal Code. However, Parliament undertook a significant overhaul of sexual offences with the passing of the Acts Amendment (Sexual Assaults) Act 1985 (WA). By s 324G of that Act, Parliament defined the term 'consent' for the purposes of what was then ch XXXIA of the Criminal Code. Section 324G relevantly read:

324G (1) For the purposes of this chapter, 'consent' means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.

(2) ...

122 This text closely resembled Mr Murray's proposed general definition of 'consent'.

123 Further changes with respect to sexual offences, particularly as against children, were later enacted in the Acts Amendment (Sexual Offences) Act 1992 (WA). Chapter XXXIA of the Code was repealed and replaced with ch XXXI. Section 324G was replaced with s 319(2) as it applied in the present case. Section 319(2) is in almost identical terms to s 324G.

124 As Steytler P observed in Michael at [44], s 319(2) of the Code and its predecessor, s 324G, substantially altered the common law because the words 'obtained by force, threat, intimidation, deceit or any fraudulent means' are not expressly limited in any way.

Statutory construction: relevant principles and discussion

125 The principles of statutory construction relevant to this case were encapsulated by this court in City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 [47], in these terms:

The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12; (2014) 88 ALJR 514 at [22] (the Court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 at [39] (the Court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78].

Analysis of appellant's statutory construction point

126 I start by noting that Parliament used different chapeaux within s 319 of the Code as between s 319(1) on the one hand, and s 319(2), s 319(3) and s 319(4) on the other hand. I also note s 319(1) is definitional in its nature, but so too is s 319(2) insofar as s 319(2)(a) is concerned. Had Parliament wished to restrict the meaning of 'consent' to where the term expressly appears in ch XXXI, it could easily have inserted the definition of the word in s 319(1) under the chapeau 'In this chapter'. Instead, Parliament chose to insert the definition of 'consent' in s 319(2) under the chapeau 'For the purposes of this chapter'. In my opinion, this requires the word 'consent' to be given the meaning set out in s 319(2) where the word is expressly used in ch XXXI (for example, in s 325) and, as in s 323, by reason of the definition of 'assault'. Thus, for the purposes of an offence against s 323 of the Code, s 222 is to be read subject to the definition of 'consent' in s 319(2). I accept this construction would have the effect of making the words in s 222 'or with ... consent if the consent is obtained by fraud' otiose. However, it is a consequence of the proper construction of the relevant provisions in s 319.

127 A consequence of the construction urged upon this court by the appellant is that there would be two different concepts of 'consent' in relation to sexual offences within ch XXXI where absence of consent must be proved, depending upon whether a person was charged with an offence of sexual penetration without consent of an offence of unlawful and indecent assault. The substance of the appellant's arguments is that the definition of consent in s 319(2) of the Code is stricter than the 'ordinary meaning' test in s 222. This submission may be accepted, given Steytler P's observations in Michael, to which I have referred. That is a plainly undesirable consequence. Parliament should be taken to be cognisant of the fact that alleged sexual offenders are often accused of more than one offence, including a combination of offences of sexual penetration without consent and unlawful and indecent assault. A construction of s 319(2) of the Code which favours the application of a uniform definition of 'consent' across the range of sexual offences where absence of consent must be proved should be preferred. A purpose of the reform of the law in 1985 (which the 1992 amendments reflect) was to modernise sexual offences and bring them into line with contemporary standards (see Western Australia, Parliamentary Debates, Legislative Assembly, 3 September 1985 (Ms P Beggs), 700 - 701). The construction I prefer promotes that purpose.

The applicability of R v BAS in this jurisdiction

128 The appellant sought to support his arguments in respect of this proposed ground by reference to the decision of the Queensland Court of Appeal in R v BAS [2005] QCA 97. In my opinion, R v BAS is distinguishable and does not apply in Western Australia. In order to understand why, it is necessary to set out some of the applicable legislative provisions in Queensland.

129 Chapter 32 of the Criminal Code (Qld), as it stood at the time of that case, was headed, 'Rape and sexual assaults'. The offence of rape was set out in s 349. It relevantly stated:

(1) Any person who rapes another person is guilty of a crime.

[penalty omitted]

(2) A person rapes another person if -

...

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with ... a part of the person's body that is not a penis without the other person's consent; or

130 Section 352 of the Criminal Code (Qld) is as follows:

(a) unlawfully and indecently assaults another person ...

is guilty of a crime.

131 The definitional section for ch 32 is s 347 Criminal Code (Qld). That section is prefaced by the words 'In this chapter'. The section provides that 'consent' is defined in s 348. Section 348 is in these terms:

(1) In this chapter, 'consent' means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained -

...

(e) by false and fraudulent representations about the nature or

purpose of the act; or

132 The definition of 'assault' is contained in ch 26 of the Criminal Code (Qld). Section 245 states:

(1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person's consent, or with the other person's consent if the consent is obtained by fraud, ... is said to assault that other person, and the act is called an 'assault'.

(2) In this section -

'applies force' includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

(1) An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

(2) The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

134 The appellant relied particularly upon statements made by Fryberg J (with whom Davies JA agreed) in R v BAS, in these terms:

Until the question was raised in the course of argument on this appeal, it seems to have been assumed that issues of consent and fraud in relation to the offence created by s 352(1)(a) arose under s 347 and s 348. In my judgment that assumption was incorrect. Section 352(1)(a) applies to any person who unlawfully and indecently assaults another person. The provision does not use the words 'consent' or 'fraud'. Its requirements are satisfied by the commission of an unlawful and indecent assault on another person. Section 348 provides an exclusive definition of the word 'consent', but the defined meaning is for 'consent' 'in this chapter'. The section does not purport to provide a definition for 'consent' when that word is used in other chapters of the [Criminal Code (Qld)]. It cannot be used to import concepts of consent and fraud into s 352(1)(a) [51].

135 Fryberg J further sought to reinforce this reasoning by stating that it was consistent with the overall structure of the Criminal Code (Qld) [52]. Despite this, it can be seen that Fryberg J's conclusion - that the definition of 'consent' in s 348 does not apply to an offence under s 352 - is derived substantially by s 348, which imports the definition of the word 'consent' where that word appears 'In this chapter [ch 32]'. Importantly, these introductory words of s 348 of the Criminal Code (Qld), 'In this chapter', do not correspond with the introductory words 'For the purposes of this chapter' in s 319(2) of the Code. In my opinion, this difference in the statutory language between the Queensland and the Western Australian provisions is highly significant.

136 In my opinion, the learned trial judge was correct to direct the jury that the meaning of 'consent' for the purposes of an offence against s 323 of the Code was 'a consent freely and voluntarily given'. His Honour made no error of law and there is no miscarriage of justice.

137 While I would give leave to appeal with respect to proposed ground 4, it has not been made out.

138 Proposed ground 5 concerns only the offending with respect to S (counts 2 to 13). Shorn of its particulars, the proposed ground alleges a wrong decision on a matter of law or a miscarriage of justice as a result of the directions his Honour gave with respect to 'consent obtained by fraud'.

The definition of 'consent obtained by fraud' under the Code

139 The phrase 'consent obtained by fraud' is, as I have noted, from the definition of 'assault' in s 222 of the Code. I have concluded that the relevant definition of 'consent' for an offence against s 323 of the Code is s 319(2).

140 The outcome of this proposed ground is not dependent upon whether the definition of 'consent' derives from s 222 or s 319(2) of the Code because, in my view, whatever the applicable definition, as I will explain, there has been a miscarriage of justice.

141 Before going further, it is necessary to make some preliminary remarks. As best as I understand it, the State's case at trial was that the appellant obtained S's consent by some fraudulent or deceitful oral representation. Whenever the State mounts such a case, it must make its case clear. This means it should clearly specify the fraudulent or deceitful representation upon which it relies.

142 The scope of what is precisely meant by 'fraud' in s 222 of the Code, or 'deceit or any fraudulent means' for the purposes of s 319(2), are not matters for decision in this case. Adopting conventional principles (R v BAS [90]), a fraudulent or deceitful representation is a representation which is false in fact and which the maker knows at the time of making it to be false. The maker must intend by making the representation to obtain the complainant's consent to the act when he or she would not otherwise have given their consent. The representation must have a causal connection to the obtaining of that consent.

The State's case on 'consent obtained by fraud'

143 The State's case on 'consent obtained by fraud' was never clearly specified. Insofar as it was put, it was confusing and devoid of any legal architecture.

144 In the prosecutor's opening address, and in the context of the offences relating to S, the prosecutor said:

[W]ith regard to [S], if another person makes contact, physical contact with another adult with consent, prima facie there's no offence but the State case is that in this situation, [S] was misled. He offered - the [appellant] offered to give her a body massage and that [S's] intention was not to allow him to get any sexual gratification by making contact - by touching her breasts or touching her vaginal area ... (ts 56). (emphasis added)

145 It may be supposed that what the prosecutor was indicating to the jury was that the State's case with respect to S on the element of consent was that she consented to each act, but that consent was obtained by fraud. The prosecutor did not go on to explain, with precision, how the State alleged that the appellant 'misled' S.

146 By the time the State closed its case, the State's position was no clearer. The prosecutor acknowledged that an element of the offence of unlawful and indecent assault was that the touching occurred without consent (closing addresses, 11 February 2015, ts 7 - 8); however, there was still no particularisation of the alleged fraud. To the extent that anything was said that might remotely relate to this question, the prosecutor referred to:

(a) how, when the appellant first met S and J, he told them that 'he was a person who has international dealing [sic], who has massaged and gave freely to a lot of people, who in fact got people in wheelchairs walking and did treatment of people by way of massage then got rid of their scars' (closing addresses, 11 February 2015, ts 9);

(b) S's evidence which, as the prosecutor put it, was to the effect that '[S] thought, ["]oh, what's happening, but well, this must be the massage. This is the correct technique. They have to touch these parts of the body, so I shouldn't show that I'm immature, I'm a silly girl.["] So [S] just allowed that to happen' (closing addresses, 11 February 2015, ts 9); and

(c) the idea that '... it is inherently improbable a person saying without any professional qualification or training that he can run two fingers and locate the dislodged disc and nerves and give that type of diagnosis' (closing addresses, 11 February 2015, ts 13).

147 In her closing address, defence counsel made submissions to answer the State's allegation that S had somehow been misled by the appellant. Defence counsel submitted to the jury that:

(a) the appellant had not lied about his expertise 'in order to be deceitful or fraudulent about [his actions]';

(b) if S had 'misapprehensions about what was going on', it was not because the appellant 'misled [her]'; and

(c) it was as a result of S's conversation with J, regarding what entailed a 'full body massage', that S allowed the appellant to massage her (closing addresses, 11 February 2015, ts 20).

148 The appellant submitted that the State's case on 'consent obtained by fraud' was never clearly stated and what was said by the prosecutor was confused. This confusion was illustrated by the questions asked by the jury which led to the redirection. It was submitted that in the difficult circumstances that faced the trial judge (and probably because of them), his directions on 'consent obtained by fraud' were inadequate.

149 The respondent submitted that the State's case on 'consent obtained by fraud' was clear and obvious. It was that the appellant obtained S's consent by falsely purporting to conduct a legitimate, therapeutic massage upon her. The State contended that the direction and redirections were adequate and correct.

150 I have already set out at [69] and [70] the relevant portion from his Honour's summing up and his redirection on 'consent obtained by fraud'.

151 Turning first to the summing up, the learned trial judge's reference to 'consent obtained by fraud' is brief. He merely states '... consent obtained by deceit or by some dishonest representation is not true consent'. He did not direct the jury as to the matters I referred to in [142] of these reasons.

152 Given the confusion in the State's case on this issue, his Honour was faced with the invidious task of then summarising it for the jury. He told the jury that the State's case on 'consent obtained by fraud' was that the appellant had represented to S, during their conversation at the Railway Hotel and when the first massage occurred, that the purpose of a massage was to alleviate her back pain (ts 287). Having closely examined S's evidence as to what the appellant said to her at the Railway Hotel and at the first massage, I note that she did not expressly say that the purpose of any massage was to alleviate her back pain. In any event, it is difficult to see how these representations, if they had been made, could have been relevant beyond the appellant's first visit to S's house when, on her version of events, she submitted to a 'full body massage'.

153 This takes me to the redirection after the jury's questions. His Honour (correctly) told the jury if S gave her consent by reason of a mistake of her own making that is not 'fraud' on the appellant's part. He also said that the jury had to be satisfied 'that there was something that [the appellant] did or said that deceived [S] or operated to defraud her in that respect' (ts 327). No prior direction had been given to the jury about what the appellant might have 'done' to defraud S. The State did not particularly identify anything 'done' by the appellant in this regard. Further, given the unfocused way in which the State put its case on the issue, informing the jury that it needed to be satisfied that it was 'something' the appellant did or said that deceived S ran the palpable risk of leaving it up to the jury to decide for themselves what things the appellant did or said deceived S, without reference to the State's case.

154 Given the level of confusion and imprecision in the State's case on 'consent obtained by fraud' and the defects in the directions (including the redirections) I have identified, I have been persuaded that proposed ground 5 has been made out.

155 The State did not seek to invoke the proviso. In my opinion, ground 3 and proposed ground 4 have not been made out, but ground 2 and proposed ground 5 have been made out. The appellant seeks a retrial. The appeal should be allowed; the convictions with respect to S only should be set aside; and a new trial should be ordered.

1. Leave to appeal is granted on proposed grounds 4 and 5.
2. The appeal is allowed.
3. The convictions and sentences on count 2 and counts 4 to 13 are set aside.
4. There be a new trial on count 2 and counts 4 to 13.

157 CORBOY J: I agree with the orders proposed by Mazza JA. I only wish to add the following.

158 The President and Mazza JA differ on the extent to which the trial judge was obliged to direct the jury on the defence of mistake. The President has concluded that a direction ought to have been given in respect of counts 2 and 4 - 13 (the appellant was acquitted on count 3). Accordingly, her Honour would allow ground 2 of the appeal as alleged by the appellant.

159 Mazza JA, on the other hand, has concluded that there was no evidentiary basis for the defence of mistake on counts 2 and 10 - 13. Accordingly, his Honour would only allow ground 2 to the extent that it alleges an error in respect of the directions given by the trial judge on counts 4 - 9.

160 The difference between the President and Mazza JA does not affect the disposition of the appeal as they agree that the appellant's convictions on counts 2 and 4 - 13 ought to be set aside and a retrial ordered on ground 5 of the appeal. I agree with those orders generally for the reasons given by the President and Mazza JA. Consequently, it is not necessary for me to express a concluded view on ground 2 of the appeal. However, I make the following comments.

161 Obviously, the question of whether there is an evidentiary foundation for the defence of mistake will substantially depend on the evidence concerning the absence of consent. The reasons of the President and Mazza JA on ground 5 of the appeal explain the difficulties caused by the way in which the State sought to put its case on that element and how the issue was left with the jury. Those difficulties were also directly relevant to ground 2. The State ought to have more clearly and fully identified the basis on which it alleged that the complainant, S, had not freely and voluntarily consented to the alleged assaults that were the subject of counts 2 - 13.

162 As the President has noted, the State's case was put on alternative bases and the jury were directed by the trial judge in terms that reflected those alternatives. One alternative, referred to by the President as the 'misunderstanding basis', focussed entirely on the complainant's state of mind (her misapprehension as to the nature of the massage to be performed by the appellant) without requiring the State to prove, and the jury to make findings about, the appellant's conduct or state of mind as it related to the issue of consent (for example, that he had either induced the misunderstanding or had knowingly taken advantage of the complainant's misunderstanding to commit an indecent and unlawful assault).

There was no claim by the appellant that the misunderstanding basis was incapable, as a matter of law, of satisfying the requirement that the conduct the subject of the charges relating to S were without her consent. I remain to be persuaded that permission and submission to such conduct resulting from a complainant's misunderstanding that is not caused or contributed to by the conduct of the accused and of which he has no knowledge is capable of establishing the absence of consent. However, that is an issue for another time. I will assume that the misunderstanding basis is capable of sustaining a finding of absence of consent. If that is correct, it means a person can be convicted of a sexual offence in the absence of proof by the State of any fault element, even knowledge, that a complainant was acting under a misapprehension. The absence of any fault element would itself provide an evidentiary basis for the defence of mistake under the Code.

164 There are difficulties with the proposition that a person could be guilty of a sexual offence as a result of a misapprehension by the complainant that was not contributed to by the accused and about which the accused had no knowledge. However, the point was not argued in the appeal and accordingly, it is not appropriate to express a concluded view.

165 I agree that on the assumption identified by the President in the passage reproduced above, the trial judge was required to give a direction on mistake in respect of counts 2 - 13 of the indictment. However, I would stress that this conclusion reflects the unlikely combination of the way in which the State chose to put its case, the trial judge's directions that reflected the State's case and the assumption that has been made for the purpose of disposing of this ground of appeal. Whether, and to what extent, a direction on s 24 of the Code will be required in the retrial will depend on the evidence and how the State chooses to formulate its case.

166 The President and Mazza JA agree that ground 4 of the appeal should be dismissed, essentially because the definition of 'consent' contained in s 319(2)(a) of the Code applies to s 323 so that the trial judge did not err in directing the jury that consent for the purpose of determining whether there had been an assault as defined by s 222 meant a consent that was 'freely and voluntarily given'. I agree; the statutory text, context and purpose compel that conclusion.

167 The President has noted that s 222 of the Code incorporates two qualifications relating to consent: 'without his consent' or 'with his consent if the consent is obtained by fraud'. Her Honour considers that the definition of consent in s 319(2)(a) links directly with the first qualification ('without his consent') and is intended to cover the field in relation to the offences created by Ch XXXI. Accordingly, an offence will be committed pursuant to s 323 if the offender touches etc the victim without his or her free and voluntary consent. Her Honour also considers that the second qualification ('with his consent if the consent is obtained by fraud') is not consistent with the approach to consent in s 319(2)(a) and is, therefore, confined to offences outside Ch XXXI of the Code.

169 I agree with the observations of Mazza JA regarding the need for the State to clearly particularise an allegation that a complainant's consent was obtained by any of the means specified in s 319(2)(a). The particulars ought to be provided prior to trial or by the prosecutor's opening.

170 I further agree with his Honour's observations concerning the difficult position in which the trial judge was placed by the ill-defined nature of the State's case. However, his Honour's directions did not clearly identify what the jury were required to decide on the issue of consent and what they could consider in determining that issue on the State's case.