R v B & P [1998] QCA 45

"It is apparent that sentences of more than ten years tend to be accompanied by aggravating features such as the commission of concurrent offences such as sodomy, or abduction or deprivation of liberty, or circumstances such as a brutal attack, the use of weapons, or attacks on very old women or very young girls, or cases where the authority of a father or person in loco parentis has abused the trust of a child."

It would be difficult not to regard as an "aggravating factor" within their Honour's contemplation, the depravity of these applicants, in a calculated way, having placed their vulnerable 11 year old daughter within the sexual clutches of this grossly disreputable 67 year old, and for their own ultimate, and cheap, financial profit. I consider the 12 year old sentence imposed here to fall within the appropriate limits of the sentencing discretion available to the judge.

The applicants do however contend that the judge fell into particular error, in the way he apparently took into account evidence of past exploitation of the complainant by S with the applicants' connivance. The judge said this, referring back, as the time of "the first rape complaint", to late 1996:

"Consistent with (the) verdicts and my own assessment of the evidence I intend to proceed on the basis your relationship with S, at least from the time you became aware of the first rape complaint, was not innocent and in that sense your actions on 22nd February cannot be viewed in isolation. In taking this approach I have considered the principles summarised by the Court of Appeal in DF [1995] QCA 329; (1985) 80 ACR 50 at pages 87 to 88. In my judgment the evidence of your ongoing relationship with S over that period, involving as it did the exchange of money, after the child had made her first complaint is an important matter in sentencing."

It is convenient for me to set out now the essence of the submissions made in this regard for the applicants:

"It is submitted that the learned sentencing Judge erred in taking into account on sentence that the relationship of the applicants with S, at least from the time they became aware of the first rape complaint, was not innocent and involved the exchange of money.

The applicants were convicted for procuring and being parties to a single rape offence on 22 February 1997. S was also convicted of two further offences of attempted rape, one in late 1996 and another on 20 February 1997. The applicants were not convicted of any offence in respect to either of those attempted rapes. Nor were they charged with perverting the course of justice in respect of the withdrawal of the rape allegation in November 1996.

The logical consequence of the approach His Honour took resulted in the appellants being sentenced on the basis they were culpable in respect to the withdrawal of the original rape complaint and the commission of the attempted rape on 20 February 1997. Those matters were not material to the sentence to be imposed for the offences upon which the applicants were convicted. The head sentence received by the applicants was the same as that of S although he was convicted of multiple offences against the child and they were convicted in respect to a single occasion of rape.

It is submitted that the relationship taken into account involved separate offences for which the applicants were not convicted. the sentencing approach was therefore inconsistent with the principles outlined in R v D [1995] QCA 329; [1996] 1 Qd R 363 at 403."

The principle confirmed in R v D, as relevant to this case, is simple enough: the court must not, in sentencing for offences of which the applicants were convicted, take into account other possible offences, or any circumstances which might with respect to the offences charged constitute a circumstance of aggravation. In other words, the sentence must not be affected by reference to uncharged criminal conduct. This judge was referred to D, and asserts that he has not acted inconsistently with it. There is no reasonable ground for doubting that assertion.

What the judge is to be taken as saying, is that over a period prior to these offences, the applicants at least acquiesced in the development, between S and the complainant, of a relationship which was on his and the applicants' part morally reprehensible, including on their account a questionable financial motivation. The judge is to be seen as having gone no further than that: it was morally reprehensible conduct, although not criminal, so that the constraint of D was not infringed.

But the character of that earlier relationship was certainly important and relevant, because it indicated that the judge should regard the circumstances of the offences just as they appeared - that is, without excuse or other mitigating feature, and for that reason, necessitating severe punishment.

The circumstance that the majority of the Court in Appeal No. 343 of 1997 is of the view that the sentence of 12 years should, in the case of S be reduced to 9 years does, however, render the 12 years imposed on these applicants disproportionately heavy. Acknowledging that S is, following appeal, to be subject to the 9 year term, and that he was the offender who actually committed the sexual act, the 12 year penalty imposed on the applicants for count 4 should be moderated. I would achieve that by allowing the applications for leave to appeal against sentence, in the case of count 4, to the extent of adding to the 12 year sentence a recommendation for consideration of eligibility for parole after 4 years and 6 months. That means that the applicants will face the immediate prospect of serving one half of the term to which S is to be subject, which establishes reasonable proportion, taking account of his advanced age on the one hand, but his more active physical participation on the other.

I have read the reasons of de Jersey C.J., in which the nature of the case is explained. His Honour has expressed the view, with which I respectfully agree, that there were inadequacies in the directions the judge gave the jury; unlike de Jersey C.J., however, I have come to the conclusion that the defects in the judge's directions were such as to require that the convictions be quashed.

There were six counts in the indictment, three of which concerned these appellants, and the counts required the jury to consider, with the assistance of directions from the trial judge, allegations of 12 offences - 6 against S and 3 each against these appellants. Counsel for these appellants asked that they be tried separately from S and that application was refused. No complaint is now made of that refusal, but because of it the matter remained one in which it was essential for the judge to explain to the jury precisely what were the matters of which they had to be satisfied in order to convict, in respect of each of the dozen Crown cases.

That was no easy task. It was one of particular importance with respect to the appellant B, the allegations against whom (in respect of the two counts on which he was convicted) were described by the trial judge as "tenuous, weak and vague".

The jury had to consider three allegations of rape on different dates and two of attempted carnal knowledge by anal intercourse. By its verdicts the jury showed that it was not satisfied, to the requisite standard, about four out of the five sexual acts complained of; S was found not guilty of two of the three rapes alleged, and not guilty of the two allegations of attempt to have carnal knowledge by anal intercourse; the convictions against him were two of attempted rape and one of rape.

Each of the appellants was convicted on two counts, each of which related to the one rape of which S was found guilty. The extent to which the jury was not prepared to declare itself satisfied, to the requisite standard, of the truth of the complainant's allegations is of significance when one considers whether or not the judge's misdirections entitle these appellants to have their convictions quashed; the rejection of, or failure to accept, parts of the complainant's assertions makes it harder to conclude that if the jury had been directed as (in my respectful opinion) they should have been they must inevitably have convicted the appellants on the two counts in question.

Mr Butler S.C., who appeared for the appellants, argued that the convictions were unsafe because of contradictions in the complainant's evidence, and other matters. As there should, because of the judge's directions, be an order made quashing the appellants' convictions, I find it unnecessary to explain why I have concluded, as I have, that that part of Mr Butler's argument must be rejected. But I propose to deal with one factual point Mr Butler made; it illustrates that one should not assume, in considering whether convictions were inevitable, that the jury must have confidently accepted the accuracy of that part of the complainant's evidence which dealt with the counts on which the appellants were convicted (counts 4 and 5).

Count 2 alleged that on 20 February 1997, S raped the complainant and count 3 alleged that on that date he attempted carnal knowledge of her by anal intercourse. In an interview with a police officer on 22 February 1997, two days later, the complainant said in effect that on 20 February 1997 and also on an occasion in 1996 -

". . . I screamed and then these, two people then, then came over from the flats and asked me what's wrong and I told them, then they told him to leave me alone, took me home and my mum rang here . . . ".

In conversation with the witness N on the same day, according to the evidence of that witness, the complainant told her that on 20 February S raped her, that she screamed and that two people "from the flats" must have heard her scream, came to the door and asked what was happening. She told them that, "this man in here" was raping her, twice. They then told S to leave her alone, took her home and told her mother what was happening. Then, according to the complainant's version said to have been given to N, her mother rang the police, the police came and she told the police everything.

It is puzzling that there was no evidence from the people said to have come to the door, nor from the police, about the events just mentioned. There must in consequence be at least some doubt as to whether it was true that the complainant told people who came to the house, or her mother or the police on 20 February 1997 that S had raped her. In mentioning this aspect I do not wish to convey a view that it was the only weakness in the Crown case; it was, however, one which must have given any rational jury concern, as to the extent to which they could rely upon evidence the complainant gave about conversations. Accuracy in recounting conversations with the appellants was an important consideration in the Crown case against these appellants.

The two counts of which the appellants were convicted both relied, in essence, on the same proposition - that the appellants got the complainant to go to S so that S could have sexual intercourse with her. To establish the allegation in count 4, that of procuring the complainant to engage in carnal knowledge, it was not necessary to prove that she was raped; s. 217(1) of the Code reads as follows:

"A person who procures a person who is not an adult or is an intellectually impaired person to engage in carnal knowledge (either in Queensland or elsewhere) commits a crime.

The word "procure" is defined by s. 217(3) as follows:

" 'procure' means knowingly entice or recruit for the purposes of sexual exploitation."

To prove count 5, that the appellants committed rape upon the complainant, the Crown had to prove that she was raped and that the appellants were complicit in the rape under one of the provisions of s. 7(1) of the Code. What the judge said by way of explanation of the way these provisions bore upon the case against the appellants was as follows:

"Count 4, members of the jury, is different form of charge altogether . . . It is alleged that the three accused procured [the complainant] - it is alleged she is not an adult but you won't have a doubt about that - to engage in carnal knowledge. Procured is defined by the law in this way: it means to knowingly entice or recruit someone for the purposes of sexual exploitation. Carnal knowledge includes carnal knowledge by anal intercourse. So that allegation contained in that count depends on the evidence of [the complainant] to which I have briefly referred and which has been referred to you in some detail by counsel . . .

The Crown brings the charge against the parents in relation to count 5 on the basis of a provision in our law which, when I read it out to you, I am sure you will see accords with commonsense. The relevant provision in our Criminal Code provides as follows: 'When an offence is submitted (sic) each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it; that is, every person that does the act which constitutes the offence.'

The Crown say in relation to counts 5 and 6 that is the accused S, 'Every person who does or omits to do any act for the purposes of enabling or aiding another person commit the offence and every person who aids another person in committing the offence.' The Crown case against both the accused parents here is that they did or omitted to do acts which enabled or aided S to commit the offence of rape in count 5 and that is referable to the evidence in [the complainant's] interview with Detective Plant on the 22nd February which has been read to you on a number of occasions."

It will be noted that the judge did not identify the evidence on which count 4 depended, other than to say that he had referred to it briefly and that counsel had referred to it. His Honour did not attempt to explain what sort of knowledge was necessary to fulfill the requirement that the enticement or recruitment be done "knowingly". Nor was there any explanation of the relationship between counts 4 and 5 which, as I have said, as a practical matter relied on the same facts - except as to the element of lack of consent to intercourse. These were in my view unsatisfactory features of the directions.

One must suspect some mistyping or omission in the sentence beginning: "The Crown say in relation to counts 5 and 6 . . . ". The words "that is the accused S" make no sense, where they appear. That sentence directs the jury's attention to paras. (b) and (c) of s. 7(1) of the Code, on both of which the Crown presumably relied. There is a difference between the wording of those two provisions which has present significance and was discussed by Philp J. in Solomon [1959] Qd.R. 123 at 128, and by Macrossan C.J. in Beck [1990] 1 Qd.R. 30 at 37, 38. The latter passage includes the following:

"The intention involved in the criminal activity referred to in subs. 7(b) emerges from the use of the phrase 'act for the purpose of . . .'. Similar express words are absent from subs. 7(c) but as Philp J. observed it is hardly possible to aid the commission of the offence without awareness of the offence which is (or might be) committed . . . it is obvious enough that 'aids' in subs.(c) means 'knowingly aids' . . .".

The Crown case against the appellant B was essentially dependent upon a sentence which is to be found in Exhibit "A", a transcript of a police interview with the complainant:

"Then my dad drove me up and um he said go like your mum said, you've got to do it, because we need the money and um, so he sat outside for half an hour while he did it to me, and then I got the twenty dollars and gave it to my dad."

Because it was clear that the complainant had gone to S's premises on other occasions for innocent purposes, because there were reasons to be doubtful of the reliability of the complainant's account of conversations she had had and because of important contradictions in the complainant's evidence, it was in my opinion necessary, in the interests of a fair trial for the appellants, to direct the jury to an important point. This was that, to convict the appellants on either of counts 4 and 5, it was necessary for the jury to be satisfied not merely that the appellants caused the complainant to go to S's premises, but that they did so (as to count 4) so that S could have sexual intercourse with her and (as to count 5) so that he could rape her. As to count 4, the point is clear enough; the enticement or recruitment must be "for the purposes of sexual exploitation" and must be done knowingly; there could be no conviction unless the jury were satisfied that the appellants' purpose in doing what they did was to enable S to have intercourse with the complainant. These considerations apply to P with less force than to B because the conversation which the complainant said she had with P about going to S was, if accurately recounted, unequivocal.

The necessary mental state of the accused is not so clear, however, with respect to s. 7(1)(c) and that is so because of the expression used in Beck, following Solomon: "awareness of the offence which is (or might be) committed" (emphasis added); see also Jervis [1993] 1 Qd.R. 643 at 647, 648. In his reasons in Beck, Macrossan C.J. referred to the "taxi driver who innocently drives the passenger part of the way to the place where a crime will be committed by him". Is it enough, to convict the taxi driver of the crime committed by a passenger, to prove that he knew that the person being carried might commit a crime at his destination? An answer is, in my view, suggested by the decision of the High Court in Giorgianni [1985] HCA 29; (1985) 156 C.L.R. 473. In that case the High Court construed a New South Wales provision corresponding to s. 7 of our Code, namely s. 351 of the Crimes Act 1900 (N.S.W.):

"Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender".

Giorgianni was charged with an offence relating to the death of a person in a motor collision; he was said to be criminally liable under s. 351, although not present at the collision, because he got one Renshaw to drive one of the vehicles involved when it was in a defective state. Gibbs C.J. said:

"No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender". (487, 488)

Wilson, Deane and Dawson JJ. said in effect that to have aided, abetted, counselled or procured Giorgianni -

" . . . must have intentionally participated in the principal offences and so must have had knowledge of the essential matters which went to make up the offences of culpable driving on the occasion in question . . . ". (500) (emphasis added)

Their Honours also said, referring to the offences of aiding and abetting and counselling and procuring, that they -

" . . . require intentional participation in a crime by lending assistance or encouragement . . . The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime". (506, 507) (emphasis added)

I particularly draw attention to the rejection, in the passage just quoted, of the idea that it is enough if the alleged aider or abetter knew of the probability that the acts he was assisting were such as to constitute the factual ingredients of a crime. This either throws doubt on, or makes it unsafe to rely too literally on, the proposition that knowledge that a crime might be committed is enough.

Giorgianni was, a few months after it was decided, applied by the High Court in a civil case. In Yorke v. Lucas [1985] HCA 65; (1985) 158 C.L.R. 661, the court had to construe a provision in the Trade Practices Act 1974 (Cth) imposing liability on a person who "aided, abetted, counselled or procured" a particular contravention. In the principal judgment one finds:

" . . . the words used, 'aided, abetted, counselled or procured', are taken from the criminal law where they are used to designate participation in a crime as a principal in the second degree or as an accessory before the fact. Both in the case of felonies where the principal offender and the secondary participant commit separate offences, and in the case of misdemeanours where no distinction is drawn between the two, a person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he intentionally participates in it. To form the requisite intent he must have knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime." (667) (emphasis added)

It is not easy to see a reason for failing to apply the doctrine of Giorgianni to s. 7 of the Code, where a person is charged under s. 7(1)(b) or 7(1)(c). As to s. 7(1)(b), the provision itself says that there must be a purpose of enabling or aiding another person to commit the offence; to secure a conviction under that provision it was necessary for the Crown to show that the appellants did the acts complained of for the purpose of enabling S to rape the complainant. But, as I have pointed out, the Crown relied below upon para. 7(1)(c) as well as para. (b). It is not clear from the wording of para. (c) what state of mind the accused must have, in order to be guilty as an aider. I incline to the view that, following Giorgianni as well as Yorke v. Lucas, the proper construction of the provision is that the accused must be shown to have intentionally taken part in the offence. But it is perhaps unnecessary to reach a final conclusion on the application of Giorgianni to s. 7 of our Code, a matter which was not argued before us.

There is nothing in the summing-up which emphasises or indeed mentions the necessity of a finding of intentional aiding. The last sentence of the parts of the summing-up quoted above merits repetition:

"The Crown case against both the accused parents here is that they did or omitted to do acts which enabled or aided S to commit the offence of rape in count 5 and that is referable to the evidence in [the complainant's] interview with Detective Plant on the 22nd February which has been read to you on a number of occasions."

If the jury took this part of the direction literally, they would think it enough that the appellants did something which in fact enabled S to rape the complainant; there is no mention of any requirement that the appellants be proved to have known or believed that what was to happen as a result of their efforts was that S would rape the complainant.

De Jersey C.J. has dealt in his reasons with another aspect of the directions, namely the absence of guidance on the use of circumstantial evidence, against the appellant B. I am in agreement with his Honour's view that the case against B is properly classified as circumstantial and that therefore a direction as to the proper use of evidence of that sort should have been given. I would add that this was a case in which it was, in my view, of particular importance to ensure that the jury understood precisely what the law required them to be satisfied of before they could convict. With all respect to the learned trial judge, it is my view that his Honour did not achieve that end.

Muir J. has in his reasons discussed the question of consent to intercourse, and the relevance of the complainant's age to that problem; I agree with his Honour's treatment of the matters.

If one were to start from the assumption that the jury must have accepted that the complainant properly recalled and accurately recounted the circumstances in which she came to visit S's premises on 22 February 1997, then there would be much to be said for the view that the defects in the directions given could not have influenced the verdicts. But in my respectful opinion, one is obliged to conclude that the jury could rationally have entertained some doubt about precisely what happened, so far as the appellants were concerned, on 22 February 1997 - but nevertheless been convinced that whatever the appellants did and said brought about the result that the complainant was raped. Had the necessary mental element, particularly with respect to the Crown case relying on s. 7(1)(c) of the Code, been explained and emphasised to the jury, it is not in my view inevitable that the verdicts would have been the same. As to the appellant B, there is the additional circumstance that he was entitled to and did not receive a direction with respect to the use of circumstantial evidence, which might well have assisted his case. The case against the appellant P was stronger than that against B, but it does not appear to me that the difference between the two cases is enough to justify applying the proviso against P.

I have not overlooked that neither appellant gave evidence; that in my opinion goes against them on their appeals, but that is not enough to enable the Court to resist the conclusion that the trial miscarried and the verdicts must be set aside.

I would allow the appeal of each appellant, set aside their convictions and order that each be tried again on counts 4 and 5. I find it unnecessary, therefore, to discuss the question of sentence.

I have had the benefit of reading the reasons for judgment of Pincus J.A. and de Jersey C.J. I am in broad agreement with the latter in so far as they relate to count 4. I would allow the appeal of each appellant against conviction on count 5 (a charge of rape) and set aside the conviction. I share the concerns of Pincus J.A. as to the adequacy of the directions given by the learned trial judge. In relation to count 4, however, I am of the view that the verdicts are not unsafe and unsatisfactory and, like de Jersey C.J., I would apply s.668E(1A) of the Criminal Code. It seems clear that the jury accepted that part of the evidence of the complainant set out on pp.4 and 5 of de Jersey C.J's reasons for judgment. Once the jury accepted that evidence it seems to me that it, properly instructed, would nevertheless have convicted.

I am unable to reach the same conclusion in relation to count 5. It involves the same act of intercourse as count 4 but the essential difference between the two counts is that, in the case of the latter, it was necessary to establish lack of consent on the part of the complainant. That the jury concluded that there was a lack of consent may be seen from the conviction of the appellants' co-accused S on a charge of rape arising out of some of the same facts. The appellants, however, did not directly participate in the acts constituting the rape of the complainant. Their conviction was secured by operation of s.7 of the Criminal Code which relevantly provides:-

"(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:-

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence."

As I earlier remarked, an element of the offence of rape is absence of consent by the victim. Neither appellant, as the reasons of Pincus J.A. demonstrate, can be convicted by virtue of aiding, counselling or procuring the commission of an offence unless his or her participation was "intentionally aimed at the commission of the acts which constitute it." Giorgianni v. R [1985] HCA 29; (1984-1985) 156 CLR 473 at 506. The jury was not so instructed.

There is no direct evidence that either of the appellants intended, expected or contemplated that any act of intercourse by S would take place without the complainant's consent. The fact that the appellants procured the complainant to have carnal knowledge with S does not lead inevitably to the conclusion that they procured her rape by S. It may have been possible also for the Crown to rely on s.347(1) of the Criminal Code. That section relevantly provides:-

"Any person who has carnal knowledge of another person without that person's consent or with that person's consent if it is obtained by force, or by means of threats or intimidation of any kind, or by exercise of authority . . . is guilty of a crime which is called 'rape'."

The critical part of the summing up though, made no reference to considerations such as intimidation and exercise of authority. It is worth repeating it in full:-

"Members of the jury, rape simply is where the male penis penetrates the female vagina to any extent - that is defined in our law as carnal knowledge; you can take it to mean sexual intercourse - without the consent of the female. Clearly with an 11 year old child consent would not be an issue as between an adult male and 11 year old child. That really has not been the way in which the matter has been litigated. The defence is that it simply didn't occur. Any degree of penetration is sufficient. In other words, the Crown don't have to prove there is full penetration. Any degree of penetration of the vagina by a penis is sufficient. The Crown don't have to prove that the accused ejaculated." (emphasis supplied)

I have another difficulty with the above passage. The learned trial judge was making the point that the accused, S, had not raised the matter of consent, his case being that no form of penetration had occurred. But it is implicit in the direction that the complainant should be taken as not having given consent to intercourse by virtue of her tender age. No doubt the age of the complainant, if a minor, will often be highly relevant to the question of whether or not consent should be found to have been given. The jury was entitled to regard this complainant's age as highly significant. However, there is no principle of law which deems an 11 year old to be incapable of giving consent.

Not only then was there no direction in relation to intentional participation but the jury may well have understood from the direction they received that there was no need for them to turn their minds to the question of each appellant's intention in relation to non-consensual intercourse or penetration. Having regard to those matters, I find it impossible to conclude that the jury gave proper consideration to the elements necessary to establish the appellants' guilt.

I do not regard s.668E(1A) of the Criminal Code as capable of application to the conviction on count 5. The fact that the jury was prepared to convict on count 4 shows an acceptance by the jury of a high degree of moral depravity on the part of the appellants. However, I am not able to conclude that a properly instructed jury would have found all the elements of the offence of rape proven against the appellants.

There was evidence from which it was open to the jury to infer that the conduct of P was intentionally aimed at the commission of acts which constituted the rape of the complainant. The most telling evidence against P may be thought to be the evidence that the complaint of rape in late 1996 was withdrawn at the appellant's instigation in return for a payment of moneys by S. There is also the evidence, in the complainant's record of interview, of a conversation in which the complainant asserted an unwillingness to have intercourse with S but in which the appellant told her to submit to S "because we need the money". But the evidence is not without aspects which give rise to concern. In his reasons, Pincus J.A. referred to an incident alleged by the complainant in her record of interview in which: she was allegedly raped on 20 February 1996; in which neighbours, in response to her screams, came to the door of the S's residence and were told she had been raped and in respect of which the police were called and told of what had occurred. He points out that no evidence was adduced by the Crown of any such complaint or response by neighbours. The complainant did not persist with this assertion in cross-examination.

The complainant gave oral evidence that, in relation to the November 1996 incident, the appellants' response to the complainant's assertion that she was raped was to tell her that she was a liar.

She responded "No" to the question "Had you ever spoken to your Mum about Mr S and that (sic) you told her that he was doing things to you, improper things?"

It is also the fact that the jury rejected other parts of the complainant's evidence.

The case against the male appellant is weaker than that against the female appellant as it is largely circumstantial.

Even without the difficulties in the Crown case which I have just mentioned, the appellants' case in relation to count 5 appears to me to be stronger than that of the appellant in R v. M (7 March 1994, Court of Appeal, Qld, unreported).

The court in that case concluded that "it was fundamentally wrong to give a positive direction to the effect that consent was impossible" [in the case of a 12 year old complainant]. The court, although clearly of the view that the case against the appellant was a strong one, allowed the appeal on the basis that "the appellants' chance of acquittal on the count of rape, however slim, was denied to him by the misdirection."

I would also allow the appeals against sentence to the extent stated in the reasons for judgment of de Jersey C.J. In taking this course I have in mind the reduced sentence of the appellant's co-accused who actually committed the sexual act, their acquittal on the charge of rape and the female appellants' lack of a previous criminal history.