R v Cutts [2005] QCA 306

SUPREME COURT OF QUEENSLAND

CITATION: R v Cutts [2005] QCA 306

PARTIES: R v CUTTS, Winston Gerald (appellant/applicant)

FILE NO/S: CA No 97 of 2005 / DC No 3124 of 2003

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 23 August 2005

DELIVERED AT: Brisbane

HEARING DATE: 29 July 2005

JUDGES: McMurdo P, Williams and Jerrard JJA / Separate reasons for judgment of each member of the Court, McMurdo P and Williams JA concurring as to the orders made, Jerrard JA dissenting in part

ORDERS: 1. Appeal against conviction dismissed / 2. Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – appellant taxi driver convicted after trial of rape and three counts of indecent assault – appellant drove physically disabled complainant home then entered her flat – complainant’s evidence was that she refused appellant’s first request for a kiss but then complied with his requests in the hope that he would leave sooner – appellant denied that any sexual contact occurred – whether the complainant’s evidence raised a s 24 Criminal Code mistake of fact defence – whether the judge erred in not directing the jury that if they accepted that non-consensual sexual contact occurred they should consider whether the appellant had an honest and reasonable mistaken belief as to consent / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – appellant sentenced to six years imprisonment for the rape conviction – as a taxi driver the appellant was in a position of trust given the complainant’s physical disability – no remorse shown and no cooperation with administration of justice given – appellant 29 years old at time of offence – whether sentence manifestly excessive / Criminal Code 1899 (Qld), s 24 / Brimblecombe v Duncan; ex parte Duncan [1958] Qd R 8, cited / Loveday v Ayre & Ayre; ex parte Ayre & Ayre [1955] St R Qd 264, cited / R v Bonnick (1978) 66 Cr App R 266, cited / R v CV [2004] QCA 411; CA No 182 of 2004, 5 November 2004, distinguished / R v Dutton [2005] QCA 17; CA No 205 of 2004, 11 February 2005, considered / R v Ewanchuk [1999] 1 SCR 330, cited / R v Shaw [1995] QCA 45; [1996] 1 Qd R 641, cited / R v Lyons (1987) 24 A Crim R 298, considered / R v Millar [1998] QCA 276; [2000] 1 Qd R 437, cited

COUNSEL: K M McGinness for the appellant/applicant / M J Copley for the respondent

SOLICITORS: Legal Aid Queensland for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: Mr Cutts was convicted after a jury trial of three counts of sexual assault and one count of rape. The complainant was a wheelchair bound 28 year old woman who, despite her cerebral palsy, lived alone and independently with the assistance of visiting carers. On 7 April 2003 she caught a taxi driven by Mr Cutts from a shopping centre to her home. She had not met him before. She gave evidence that Mr Cutts committed the three counts of sexual assault and one count of rape upon her. The evidence is fully summarized in the reasons for judgment of Jerrard JA so that I need repeat only those facts necessary to explain my reasons for refusing the appeal against conviction and the application for leave to appeal against sentence.

Mr Cutts gave evidence that he was not involved in any sexual activity with the complainant. The jury verdicts indicate that they rejected Mr Cutts' evidence beyond reasonable doubt and that they were also satisfied beyond reasonable doubt that the complainant was not consenting to the sexual advances of Mr Cutts. The primary question in this appeal is whether, even though Mr Cutts' evidence (rejected by the jury) did not raise any question of his criminal responsibility under s 24 Criminal Code, that issue was sufficiently raised on the complainant's evidence to require the judge to direct the jury on it. If that question is answered affirmatively, the secondary question is, after reviewing the whole of the evidence, do the appellant's convictions, or any of them, amount to a miscarriage of justice.

Was the judge obliged to direct the jury as to s 24 Criminal Code**?**

It is clear law that a trial judge is obliged to direct the jury on any defence fairly raised on the evidence even where it is not raised on the defence case: Pemble v The Queen;¹ R v Van Den Hoek.²

If s 24 Criminal Code is raised in respect of one or more of the charged sexual acts, the appellant is not criminally responsible unless the prosecution establishes beyond reasonable doubt that he did not honestly and reasonably believe the complainant was consenting to each charged act. For s 24 Criminal Code to be an issue for the jury's consideration there must be some evidence of the appellant's mistaken belief: Loveday v Ayre & Ayre; ex parte Ayre & Ayre;³ Brimblecombe v Duncan; ex parte Duncan;⁴ Larson v G J Coles & Co Ltd; ex parte G J Coles & Co Ltd.⁵ In this case the appellant gave no evidence raising s 24 and denied any sexual contact at all; if s 24 was raised, it was raised in the evidence of the complainant.

The complainant's relevant evidence is as follows. Before Mr Cutts touched her he asked "Do you want a kiss?". She replied "No". Despite that reply he kissed her placing his tongue in her mouth and rubbing her breasts in a circular motion with his hand inside her singlet and bra (count 1, indecent assault).

She thought her initial "No" was sufficient to indicate her lack of consent to all his subsequent conduct. She did not think she said or did anything to encourage Mr Cutts to sexually assault her. He next pulled up her clothing and sucked on her breasts. She could feel his teeth and it hurt (count 2, indecent assault). He then closed the curtains in her apartment.

He made some comments which she understood to mean that he intended to show her his penis. He asked her whether she wanted a cuddle. She moved her wheelchair over to him. She said she did this because although she wanted him to leave, she did not think he would and did not know what to do. He then unzipped his erect penis and asked her to rub it. She complied because she was scared and in shock; she thought that if she complied he would leave. He used his hands to assist her to rub his penis (count 3, indecent assault).

He then penetrated her mouth with his penis, placing his legs over the armrest of her wheelchair. He asked her to suck his penis and she complied even though she was not consenting because she felt she had no option (count 4, rape).

She gave the following responses to the prosecutor's questions:

"Did you want him to do any of those things?-- No.

Did you encourage him in any way at all to do any of those things?-- No.

Putting it more formally, did you give any him [sic] consent or permission to do those things?-- Towards the end he asked me but I was in a state where I couldn't really move anywhere or do anything and I don't think I really answered him.

Okay. The simple question might be did you want to do any of those things?-- No.

For instance, if you hadn't been feeling scared, would you have done any of those things?-- No, because I didn't know him."

It was not suggested to the complainant in cross-examination that she was consenting or that her actions may have caused Mr Cutts to believe she was consenting.

Does her evidence disclose any reasonable possibility that at the time of the sexual contact Mr Cutts had an honest and reasonable mistaken belief that she was consenting to one or more of the episodes of sexual contact between them?

The Queensland Court of Criminal Appeal considered a different but in some ways analogous situation in R v Lyons.⁶ Lyons was convicted of unlawful sexual assault when he grabbed the genitals of a male (an undercover police officer) in a toilet block allegedly frequented by homosexual men. At the hand basin near the urinal Lyons asked the police officer "What are you here for?". The police officer responded with the question "What are you here for?". The appellant answered "I'm here for this", stepping forward and touching the police officer's groin on the outside of his shorts. The Court held that those facts did not without more raise s 24 Criminal Code; they did not amount to evidence that Lyons may have had an honest and reasonable expectation that the complete stranger whom he accosted may have been consenting; it could not be reasonable to assume that any male who entered that toilet was there because he wanted to indulge in homosexual activity.⁷

A similar issue was considered more recently by this Court in R v CV.⁸ In that case the appellant was convicted of three counts of raping his brother's wife. The complainant's evidence was that on each occasion of sexual contact the appellant forced himself on her. On the first occasion he told her "to keep her fucking mouth shut". On the second occasion he had intercourse with her in her bedroom whilst her husband was in the shower; she did not tell her husband because she was terrified of the appellant. On the third occasion he again had intercourse with her, threatening that if she told anyone he would kill her. After she and her husband returned to their home he made a further threat by telephone. She told her husband of the rapes about 17 days after the first incident. The appellant gave contrasting evidence that he and the complainant had been friendly in 1991 and then renewed their acquaintance in 1999 by which time the complainant was married to the appellant's brother. In 2003 their physical interest in each other was rekindled and the acts of intercourse took place with her consent and without any threats or force of any kind. The jury's guilty verdicts indicated that they rejected the appellant's evidence. On appeal it was argued, as here, that s 24 Criminal Code was raised on the complainant's evidence alone. Jones J, with whom Williams JA and Cullinane J agreed, referred to Lyons with approval and determined that because of the clear and stark choice between the two versions before the jury, the complainant's version alone, which demonstrated continuing threats by word and implicit actions, did not raise any basis for a claim of honest and reasonable mistake and belief.

In R v Ewanchuk⁹ L'Heureux-Dubé J and McLachlin J (as she then was) of the Supreme Court of Canada also made pertinent observations. There, Ewanchuk was interviewing the 17 year old complainant in his van for a job. Afterwards he invited her to see some of his work in the trailer behind his van. She left the door open but he closed it. She thought he had locked it and became frightened. He initiated a number of touchings, each progressively more intimate. She made clear she was not consenting. He stopped his advances for a time but then persisted with a more serious sexual advance resulting in a charge of sexual assault. The complainant said that any compliance on her part was out of fear and that she clearly indicated that she was afraid and unwilling. The trial judge acquitted the accused of sexual assault based on a defence of "implied consent". The Canadian Supreme Court held there was no such defence in Canadian Law. L'Heureux-Dubé J noted:¹⁰

"… there is, on the record, no evidence that would give an air of reality to an honest belief in consent for any of the sexual activity which took place in this case. One cannot imply that once the complainant does not object to the massage in the context of a job interview, there is 'sufficient evidence' to support that the accused could honestly believe he had permission to initiate sexual contact. This would mean that complying to receive a massage is consent to sexual touching. It would reflect the myth that women are presumptively sexually accessible until they resist. McLachlin J has recognised in R v Esau [1997] 2 SCR 777, at para 82, that reliance on rape myths cannot ground a defence of mistaken belief and consent:

Care must be taken to avoid the false assumptions or 'myths' that may mislead us in determining whether the conduct of the complainant affords a sufficient basis for putting the defence of honest mistake on consent to the jury. One of these is the stereotypical notion that women who resist or say no may in fact be consenting.

Furthermore, I agree with Fraser CJ at p 278 that there is no air of reality to a defence of mistaken belief in consent 'in the face of the complainant's clearly stated verbal objections'.

…

[99]I agree entirely with Fraser CJ that, unless and until an accused first takes reasonable steps to assure that there is consent, the defence of honest but mistaken belief does not arise (see R v Daigle [1998] 1 SCR 1220; Esau, supra, per McLachlin J dissenting; and J McInnes and C Boyle, 'Judging Sexual Assault Law against a Standard of Equality' (1995), 29 UBCL Rev 341). In this case, the accused proceeded from massaging to sexual contact without making any inquiry as to whether the complainant consented. Obviously, interpreting the fact that the complainant did not refuse the massage to mean that the accused could further his sexual intentions is not a reasonable step. The accused cannot rely on the complainant's silence or ambiguous conduct to initiate sexual contact. Moreover, where a complainant expresses non-consent, the accused has a corresponding escalating obligation to take additional steps to ascertain consent. Here, despite the complainant's repeated verbal objections, the accused did not take any step to ascertain consent, let alone reasonable ones. Instead, he increased the level of his sexual activity."

McLachlin J agreed with L'Heureux-Dubé J that:¹¹

"… stereotypical assumptions lie at the heart of what went wrong in this case. The specious defence of implied consent (consent implied by law), as applied in this case, rests on the assumption that unless a woman protests or resists, she should be 'deemed' to consent."

Ewanchuk was cited with approval by Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Robinson v The Queen.¹²

In Queensland law, consent for the purposes of rape¹³ is defined relevantly in Criminal Code s 348 as:

"(1)… consent freely and voluntarily given …

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

…

(b)by threat or intimidation; or

…"

In this case the complainant said "No" when Mr Cutts first asked her if she wanted a kiss. She did absolutely nothing to encourage him in respect of counts 1 and 2. As she was very significantly disabled she could have done almost nothing more to indicate her non-consent. The defence under s 24 Criminal Code of honest and reasonable mistake of fact as to consent is certainly not raised on those counts.

The position is perhaps not quite so clear on counts 3 and 4 but there are five reasons which in combination persuade me that s 24 is not raised on these counts either. First, the complainant's evidence on these counts must be viewed in the light of her severe physical restrictions; it was difficult for her to physically resist him or leave. Second, she had already expressed her unwillingness to be intimate with Mr Cutts only shortly beforehand. Third, there is no evidence that she verbally communicated to him any change of mind. Fourth, Mr Cutts' evidence was not that she was consenting nor that he believed that she was consenting but that no sexual intimacy occurred. Fifth, the question of consent and the related question of whether the appellant may have honestly and reasonably believed she was consenting were not issues at trial; the complainant's evidence that she was not consenting and complied only because she was intimidated¹⁴ was not challenged. In the light of those five matters, the complainant's evidence does not raise a reasonable possibility that Mr Cutts honestly believed she was consenting to counts 3 or 4, let alone that any such belief may have been reasonable. The trial judge was not obliged to direct the jury on s 24. This conclusion is consistent with the approach of this Court in Lyons and CV and with the observations of members of the Canadian Supreme Court in Ewanchuk, approved by the High Court of Australia in Robinson. The issue of honest and reasonable belief as to consent was not raised at trial on the evidence.

Even if I am wrong and s 24 Criminal Code should have been left to the jury, after reviewing all the evidence, I am satisfied that no contemporary Australian jury would have acquitted the appellant on the basis that he may have honestly and reasonably believed the complainant was consenting to any of these counts. It follows that he has not been deprived of the chance of an acquittal and there has been no miscarriage of justice.¹⁵

I would refuse the appeal against conviction.

Sentence

As to the appeal against sentence, this was a very serious incident of rape by way of penile penetration of the mouth. The maximum penalty is life imprisonment. The complainant was vulnerable because of her very significant physical disabilities. She has courageously adapted to these to live a full and independent life. As her taxi driver the appellant was in a position of trust which he seriously abused in the commission of these offences. He acted as a despicable predator. He showed no remorse and did not have the benefit of a plea of guilty or co-operation with the administration of justice. He was a mature man, 29 at the time of the offence and 31 at sentence. Although his criminal history was not extensive he did have some prior convictions for dishonesty. A salutary penalty to deter others who would prey on the vulnerable in our community was warranted. There were no mitigating circumstances.

The six year sentence imposed was supported by this Court's decision in R v Dutton.¹⁶ Dutton, unlike Mr Cutts, pleaded guilty to a number of sexual offences including rape by forcing the complainant to take his penis in her mouth; she complied so that he would not attack her intellectually impaired companion for whom she was caring. This Court did not interfere with Dutton's seven years sentence with a declaration that he was convicted of a serious violent offence.

The sentence of six years imprisonment with no such declaration is not manifestly excessive.

I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

WILLIAMS JA: The evidence at trial is relevantly set out in the reasons for judgment of Jerrard JA and I do not intend to repeat it in detail. The evidence of the complainant was that she did not consent to any of the acts constituting the offences with which the appellant was charged. Given her medical and physical condition there was little if anything more she could do than verbally indicate her lack of consent. Her evidence was that she was scared and afraid, and the evidence from her neighbour to whom she went immediately after the incidents in question would tend to confirm that. It was against the background of her limited physical capacity and fear that she said she participated in some sexual activity in the hope that that would lead to the appellant's early departure from her unit and without further assault on her.

Counsel for the appellant at trial, during cross-examination, put to the complainant very explicitly that none of the acts relied on to constitute the offences occurred; it was put to the complainant that the appellant did not touch her in any inappropriate way. Those suggestions were denied by the complainant.

The appellant then gave evidence denying that he did any of the acts in question and he maintained that denial under cross-examination when the specific allegations of the complainant were put to him.

Against the background of that evidence experienced counsel for the appellant did not ask the trial judge to leave a defence of mistake based on s 24(1) of the Criminal Code (“the Code”) to the jury. That was understandable. Any concession that the appellant may have touched the complainant in a sexual way whilst he was in the unit would have been inconsistent with his sworn testimony and would have seriously weakened the force of that evidence.

Counsel for the appellant in this Court now submits that the learned trial judge erred in not leaving a defence based on s 24(1) to the jury. In essence it was submitted that the appellant could have had an honest and reasonable but mistaken belief, based on the fact that towards the end of the overall incident the complainant had complied with his demand to be masturbated and to take his penis into her mouth, that she was consenting to such activity.

Section 24(1) of the Code provides that 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 the person believed to exist." It can be seen immediately that essentially the provision is concerned with the doing of an act with an accompanying belief. So attention must be focussed on the accused person's belief at the material time. A person's belief is often hard to establish as a fact. The best evidence as to belief is honest, truthful evidence from the person as to actual belief at the material time. The truthfulness of such evidence may often be evaluated by comparing it to what a reasonable observer would infer from established facts to be that person's belief at the time. Often in a criminal trial there will be no direct evidence as to the belief of an accused person; in those circumstances belief can only be established by inference from proven facts. But, as already noted, the best evidence of a person's belief will ordinarily be what the person says on oath was their belief at the material time.

Here the appellant's evidence was that he did not do the acts in question. It might be said that his evidence amounted to a sworn belief that he did not do any of the acts. At trial the jury could reject that evidence, accept that evidence, or merely conclude beyond reasonable doubt that they accepted and intended to act upon the contrary evidence of the complainant.

It is clear from the authorities, some of which I will refer to shortly, that in order for the prosecution to overcome a defence based on s 24(1) the jury must be satisfied beyond reasonable doubt that the prosecution has negatived a belief in the offender as to "the real state of things". If the jury prefers beyond reasonable doubt the evidence of the complainant, how and on what basis can the jury conclude that the offender had a belief (contrary to that which he swore) with respect to some matter of fact which the prosecution must negative?

I indicated above that in certain circumstances a jury would be entitled to infer an offender's belief from objectively established facts which ordinarily would be relevant to the holding of a particular belief in a reasonable person. But how can a jury draw an inference that a belief was held which is totally inconsistent with the sworn testimony of the person that such a belief was not in fact held.

In Loveday v Ayre; ex parte Ayre [1955] St R Qd 264 at 268 Philp J said that the "section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake." Then in Brimblecombe v Duncan; ex parte Duncan [1958] Qd R 8 at 12 Philp J said: "True it is that there is an onus upon the defendant to show that there is before the court evidence of mistake or accident fit to be considered but there is no onus on him to satisfy the jury that that evidence establishes operative mistake or accident." That approach has been regularly followed. The Full Court adopted that approach in Larson v G J Coles & Co Ltd; ex parte G J Coles & Co Ltd (1984) 13 A Crim R 109 at 111. The Court of Criminal Appeal also adopted that approach in R v Lyons (1987) 24 A Crim R 298; there I said at 299: "The cases establish that there is an onus upon the defendant to show that there is evidence of an honest and reasonable mistake fit to be considered by the tribunal of fact, but once that point is reached it is for the prosecution to negative the existence of operative mistake, and the defendant is entitled to the benefit of any doubt that the tribunal of fact may have in that regard." In Sancoff v Holford; ex parte Holford [1973] Qd R 25 E S Williams J (with the concurrence of the other members) said at 33 that to "raise the defence it is merely necessary for the person charged to introduce evidence whether by cross-examination of the prosecution witnesses or by direct evidence, from which it could be reasonably inferred that an honest and reasonable belief in an appropriate state of things exists, and the onus then passes to the prosecution to negative the existence of such a belief."

The position was much the same with respect to the defence of mistake at common law. For example, the judgment of Dixon J in Thomas v R (1937) 59 CLR 279 at 299ff clearly indicates that. There amongst other things his Honour said that "a misapprehension of fact may produce a state of mind which though apparently of the required description is yet really of an entirely different quality". As his Honour said at 304: ". . . it is a good defence that the accused held an honest and reasonable belief in the existence of circumstances which, if true, would make innocent the act for which he is charged." Clearly at common law the evidence had to support the existence of a mistaken belief before the defence could operate.

It will not be necessary for the jury in every case of rape or sexual assault case to be directed on s 24(1) of the Code. R v Millar [2000] 1 Qd R 437 provides a good example of that. There McPherson JA (with the concurrence of the President and Ambrose J) said at 439:

"His Honour's failure to direct the jury in terms of s 24(1) was one of the grounds of appeal to this Court. To sustain it, it is necessary for the appellant to show that there was material on which the jury could legitimately have entertained a reasonable doubt about that issue, which was whether the appellant honestly and reasonably believed that the complainant had consented to his inserting his finger in her vagina. What effectively precluded the existence of any such belief on his part was that the complainant had been quite specific in her evidence that she had felt his finger already in her vagina on waking up. It is true that she had not immediately put a stop to it, and it had continued for another five minutes until she rolled over."

As his Honour went on to say there was no reason to doubt that when the appellant inserted his finger he knew the complainant was asleep as he said:

"At no time has the contrary ever been suggested. It was nevertheless submitted that there were facts capable of raising a doubt about his state of mind at that time. . . For s 24(1) to be available, the belief must be reasonable. The events relied on by the appellant, whether considered individually or in conjunction, are plainly incapable of being considered an assent or invitation to the appellant to insert his finger in the complainant's vagina. Even the most imaginative of minds would not interpret them in that way. And even if the appellant himself chose to construe them as meaning that the complainant was consenting, his belief could not in those circumstances have been regarded as a reasonable one."

Reference should also be made to an observation by Davies and McPherson JJA in R v I A Shaw [1996] 1 Qd R 641 at 646 where their Honours said:

"A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under s 24 of the Criminal Code."

It is essentially the reasoning in that passage that the appellant relies on here. It is submitted that the conduct of the complainant furnishes "some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting". In Shaw the appellant gave evidence that the sexual activity in question took place, but maintained it was with the complainant's consent; mistake was not left to the jury.

In R v CV [2004] QCA 411 the trial judge did not leave s 24(1) to the jury where the accused gave evidence admitting the sexual activity but claiming it was with consent; verdicts of guilty were returned. That obviously meant that the jury rejected the accused's evidence. It was contended on appeal that in determining whether the jury should have been directed on s 24 the matter had to be viewed as though the appellant had not given evidence. I then said, with the concurrence of Cullinane J: "No authority was cited in support of that approach. In my view the question whether or not s 24 should have been put to the jury must be considered in the light of all the evidence. As pointed out by Jones J the appellant's evidence was that the complainant was not only consenting to sexual intercourse on each occasion, but was an enthusiastic participant in what happened. For that reason defence counsel at trial objected to cross-examination of the appellant relevant to his state of mind. Given the way the defence at trial was conducted, and the evidence of the appellant, the learned trial judge was correct in not directing the jury on s 24."

CV was a decision on a particular set of circumstances; the objection by defence counsel at trial to cross-examination of the appellant relevant to his state of mind was critical to the ultimate outcome. The decision highlights the importance of deciding the relevance of s 24(1) on the particular facts of each case.

Where an accused person gives evidence admitting the sexual activity but contending that it was with the complainant's consent there is evidence that he believed the complainant to be consenting. If the jury rejects the correctness of the accused's evidence and accepts the evidence of the complainant that she was not consenting, that does not mean that the accused did not hold the belief to which he swore. In those circumstances the jury should go on and consider whether or not the belief was honestly and reasonably held, unless in the circumstances there is some good reason for not doing so. In a case such as that the rejection of the accused's evidence to the effect that the complainant was consenting does not necessarily amount to a rejection of the evidence that he held such a belief. This case is clearly distinguishable from that situation. The preference for the complainant's evidence and acceptance of it beyond reasonable doubt does not leave for consideration any evidence from the appellant as to his belief that the complainant was consenting. By his sworn testimony he has eschewed the holding of any belief that the complainant was consenting to the acts which the jury have found he committed. The only conclusion open as to the appellant's belief, consistent with his sworn testimony, is that he held none to the effect that the complainant was consenting to sexual activity with him.

The circumstances of this case are unusual. Before the learned trial judge could leave a defence based on s 24(1) of the Code to the jury there had to be some evidence that the appellant in fact held the belief that the complainant was a consenting party to the acts in question. It is only if there is some evidence that the appellant held a belief as to a state of things that a jury could in a meaningful way give consideration to whether that belief was honestly and reasonably held. One does not consider the evidence in a vacuum. It is not a question whether or not a reasonable person in the position of the appellant might have in all the circumstances have had a mistaken belief, held honestly and reasonably, that the complainant was consenting to sexual activity. Rather the question is whether or not in the light of the evidence this appellant held such a belief which required the jury to go on and consider whether or not it was held honestly and reasonably. Given the evidence of the appellant, and the way in which the trial was conducted on his behalf, that step is not established.

No authority was cited to the Court to the contrary of the cases referred to above which establish that it is for an accused person to show that there is evidence of an honest and reasonable mistake fit to be considered by the jury before s 24(1) should be left for their consideration.

Counsel for the appellant contended that the reasoning of the Court of Appeal in Bonnick (1977) 66 Cr App R 266 assisted her submission. When the case is carefully considered in my view it does not do so. The appellant there was charged with two counts of wounding with intent. He gave evidence that he was not at the railway station when the incident occurred; in other words his defence was an alibi. But it was contended by his counsel that cross-examination of prosecution witnesses established that self-defence was an issue raised by the prosecution case. In delivering judgment of the court Stephenson LJ said at 269-70:

"Common sense indeed rebels against allowing a defendant to say on his oath "I was not there and did not do it" and through his counsel "I did it but I was acting in self-defence." It might indeed be thought to confuse judgment and hinder justice if counsel were to be encouraged, in the proper discharge of their duty to do their best to ensure that their clients are not improperly convicted, to raise defences so completely contrary to their instructions.

When is evidence sufficient to raise an issue, for example, self-defence, fit to be left to a jury? The question is one for the trial judge to answer by applying common sense to the evidence in the particular case. We do not think it right to go further in this case than to state our view that self-defence should be left to the jury when there is evidence sufficiently strong to raise a prima facie case of self-defence if it is accepted. To invite the jury to consider self-defence upon evidence which does not reach this standard would be to invite speculation. It is plain that there may be evidence of self-defence even though a defendant asserts that he was not present, and in so far as the judge told the jury the contrary, he was in error; but in the nature of things it would require to be fairly cogent evidence, when the best available witness disables himself by his alibi from supporting it. We have come to the conclusion that . . . the judge was right to exclude the issue on the ground that it was not raised by the evidence of the prosecution witnesses. . . .

. . .

The duty of the prosecution to negative the possibility that the stabbings were acts of self-defence arose only if there was evidence from which self-defence could properly be inferred; until there was evidence raising that possibility there was nothing for the prosecution to negative. We are of the opinion that that was the position here. . . .

The only evidence which could give rise to the issue of self-defence was the evidence of Sales that the appellant and Sage may have thought that Sales was going to attack the appellant. But Sage did not confirm that evidence, nor of course did the appellant, and how could a jury properly find that it was reasonably necessary for the appellant to stab Sales or Sage at the time when according to their uncontradicted evidence, supported by the evidence of Mrs Sales and Vowles as to hearing screams, he actually stabbed them? The judge was, therefore, right to exclude from the jury's consideration what was, on the evidence, an impossible defence. . . . "

The position is even stronger here because, as already noted, s 24(1) requires the accused to hold a "belief in the existence of" a state of things which then the jury considers amounts to an honest and reasonable mistake. But it would be pure speculation where the accused has specifically denied holding such a belief to infer for the purposes of considering s 24(1) that in fact he held such a belief. As Stephenson LJ observed, in a situation where the accused eschewed the defence in question by his sworn testimony, there would have to be "sufficiently strong" or "fairly cogent" evidence from other sources before the court could permit consideration of that possible defence. Here in the absence of a relevant belief in the appellant there was nothing for the prosecution to negative. The evidence from the complainant was that she only acted as she did in response to the demands of the appellant and with a view to bringing the episode to an end as quickly as possible. That evidence is clearly not sufficient to amount to "sufficiently strong" evidence of honest and reasonable mistake fit to be considered by the jury pursuant to s 24(1).

The criminal law does not exculpate an accused merely on the basis that a reasonable person in the position of the accused might have held an honest and reasonable, but mistaken, belief as to facts relevant to the charge; in order for the defence to be open there must be some evidence that the accused in question held such a belief. That does not mean that the accused must give evidence as to the relevant belief. In the present case there is no cogent body of evidence which would support the inference that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to the acts which constituted counts 1 and 2. The acts which constituted counts 3 and 4 followed almost immediately and the appellant's belief at that time must inferentially have been affected by the fact that he must be taken to have appreciated the complainant did not consent to the acts constituting counts 1 and 2. In those circumstances a reasonable inference could not be drawn that he honestly believed the complainant was consenting to the acts constituting counts 3 and 4, particularly when his sworn testimony was that he did not do those acts.

It follows that the appeal against conviction must be dismissed.

The appellant also sought to appeal against the sentence of six years imprisonment imposed with respect to the offence of rape. Given that he was a complete stranger to the complainant, that she was a very disadvantaged person because of her physical condition, that he effectively restrained her in her unit, that his conduct was a gross breach of the trust which she imposed in him, and that there was no evidence of any remorse on his part, I am of the view that a sentence of six years imprisonment was clearly well within the appropriate range.

I would refuse the application for leave to appeal against sentence.

JERRARD JA: On 7 April 2005 Mr Cutts was convicted after a trial of one offence of rape of Ms A, and three offences of unlawfully and indecently assaulting her. All the offences occurred on 7 April 2003 at Brisbane, and the learned trial judge sentenced Mr Cutts to six years imprisonment on the rape charge, and two years imprisonment on each count of unlawful and indecent assault, to be served concurrently. Mr Cutts has appealed against his conviction and sought leave to appeal against all sentences imposed.

His counsel on the appeal principally made submissions about the six year sentence, although the application for leave to appeal alleged all sentences were manifestly excessive. The grounds for appeal against conviction in that application complained that the verdicts were unsafe and unsatisfactory having regard to the evidence, a ground which should be understood as a complaint that those verdicts were unreasonable or could not be supported having regard to the evidence,¹⁷ which ground requires this Court to ask itself whether the Court thinks that upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that Mr Cutts was guilty.¹⁸ As it happened, the appellant’s counsel did not argue that ground, conceding that if the jury accepted Ms A as a truthful witness, then they were entitled to conclude that Ms A’s version of events should be accepted over Mr Cutts’ beyond reasonable doubt, and to be satisfied Mr Cutts was guilty. Counsel sought leave to add, and argued, the following ground:

“The learned trial judge erred in law in failing to direct the jury to consider whether the Appellant may have had an honest and reasonable but mistaken belief that the Complainant consented to the sexual touching and rape: s.24 Criminal Code.”

That ground requires much the same consideration of the evidence as the abandoned ground.

MsA’s evidence and the Crown case

Mr Cutts was employed as a taxi driver in April 2003, driving a maxi cab vehicle seven days a week. He was aged 29 and Ms A was aged 26. She suffered from cerebral palsy, which affected her physical but not mental capabilities. She uses a motorised wheelchair, and when it is not available, a manual one. She lived alone in her unit in a Brisbane suburb, and carers attended twice a day, in the morning and night. Ms A has restricted use of her arms and legs.

On 7 April 2003 she went shopping and bought a gift for a friend. She finished that at approximately 3.00 pm, and contacted Mr Cutts’ employing cab company. He was allocated the job and collected her from the shopping centre in his maxi cab. During the trip to her home he “just kept saying how beautiful I was”.¹⁹ Ms A’s evidence was that when that was said, she “more or less switched off”.

The cab arrived outside her unit, but did not park directly outside, where there was a space; and Ms A paid the fare. When she was at, or about at, the front door to her unit Mr Cutts asked Ms A if he could use her toilet; he said words to the effect “I’m busting, I need to use the toilet”.²⁰ She had never seen him before, and was very reluctant to let him in, because she did not know him and she was quite scared of men in any event. She opened her front door and went into her kitchen. She indicated to Mr Cutts where the bathroom was, although she was unable to recall when giving evidence whether she had actually told him he could come in, and she then gave herself some medication. Mr Cutts used her toilet. She remained in the kitchen waiting for him to come out again, and eventually he did. He then pushed the button that shut the front door and at or about that same moment asked if he could stay for a while. She replied to the effect that her carer would be arriving shortly, which was untrue, but which Ms A said in the hope that Mr Cutts would “get the message that she did not want him there”.²¹ Ms A was feeling “pretty scared”. She did not ask Mr Cutts to leave or directly refuse his request to stay for a while.

He then approached her and knelt looking at her for what she described as “ages”,²² and she at first did not realise he was doing that. This happened while she was in the kitchen and he was at the door area, and she then moved in her chair into the lounge room. He came towards her, and knelt down in front of her, and then held her hand and looked at her for what she described as a long time. Nothing was said between them, and she described herself in evidence as being in shock at his behaviour. He then said “Do you want a kiss” and she said “No”.²³ She remained in shock, and was extremely quiet and very still.

Despite her express refusal of the offer to be kissed, Mr Cutts kissed her anyway, and she described his putting “his tongue in my mouth and was French kissing”,²⁴ which she said she had not wanted him to do. He was also rubbing one of her breasts in a circular motion when doing that. That conduct was the subject of the charge in count 1. When rubbing her breasts, he put his hand inside both her singlet and bra.

Ms A said that she did not say or do anything to encourage Mr Cutts’ behaviour, and she thought that because she had said “no” initially that should have been enough to stop that behaviour.²⁵ She next recalled his pulling her singlet up, and removing both of her breasts from her bra cups. He then put one of her breasts into his mouth, and she said she felt his teeth on it and that it hurt. Eventually he stopped doing that, put her breasts back in her bra and then got up and shut the curtains. That conduct was the subject of count 2.

After that Mr Cutts seated himself on the edge of a table, and said words to her to the effect “If you show me yours, I will show you mine”, which she understood meant that he intended to show her his penis. He also asked her if she wanted a cuddle, or words to that effect, and she moved herself in her wheelchair over to where he was. She explained in evidence that she had wanted him to leave, but did not think he was going to, she did not know what to do, and she thought that if she went along with what he wanted then he would “basically leave”.²⁶ He then unzipped his trousers and produced an erect penis, and asked her to rub it. She did that, and said that was because she was scared, in shock, wanted him out, knew that she had to get him out, and she “kind of thought doing what he asked and then he would leave”.²⁷ His hands were assisting her while she rubbed his penis. That conduct was the subject of count 3.

Counts 1 to 3 were the counts of unlawful and indecent assault. Count 4 was the charge of rape, constituted by Mr Cutts’ penis penetrating Ms A’s mouth. That happened after she had stopped rubbing his penis, which Mr Cutts continued to do to himself, and he then put his legs over the armrest of her chair. His penis was presented to her face by that manoeuvre, and Mr Cutts asked Ms A to suck it. She did, and explained in evidence that that was because she really wanted him out of her unit, he had his legs over her chair, and she could not move or do anything. She had not wanted to either rub or suck his penis. Count 4 was constituted by his inserting his penis into her mouth so that she could suck it.

After she stopped doing that Mr Cutts continued to rub his penis, but he then stopped that and asked her to provide him with a tissue. She went and got a box, and handed it to him. He continued to masturbate, and ejaculated, with part of the ejaculate going onto her kitchen floor and some onto the right side of her shorts. He then went to the bathroom (where the toilet was), and when he returned from there he said he would like to come back later that evening, and asked her for her telephone number.

She replied that she was not sure about that and that her carer would be coming, but at his further request provided him with a (false) mobile phone number, which she saw him put into his own mobile. She remarked then to him that she did not even know what his name was, and he told her it was (his correct Christian name). She told him she thought he had better go because her carer would be there shortly, and he left. Asked whether she had given him “consent or permission to do those things?” she replied:

“Towards the end he asked me but I was in a state where I couldn’t really move anywhere nor do anything and I don’t think I really answered him.”²⁸

The Crown called other evidence strongly supporting her account and her credibility. This included evidence that forensic testing revealed a semen stain on her shorts, which stain was seen by the neighbour (called as a witness) to whose premises Ms A went immediately after Mr Cutts had left, and to whom she complained of sexual abuse by Mr Cutts in the same general terms as in her evidence. The neighbour noticed what the neighbour described as a “sort of liquidy marking”²⁹ on Ms A’s shorts, and asked what it was. Ms A replied with words to the effect “That’s from his dick”.³⁰ That witness said Ms A was distressed, and the witness suggested that Ms A write down what she was saying; that written note was made an exhibit at the trial³¹ and recorded a complaint of her breasts being rubbed while she was kissed, of the taxi driver having obtained entry by asking to go to the toilet and then closing the door, asking could he stay for a while, then kissing her and rubbing her breasts, then pulling his privates out and putting her hand on it, and then putting it in her mouth. It also described the man having an erection with sperm.

As it happened, the forensic examination was unable to extract sufficient sperm cells from that seminal staining to permit any DNA analysis, and only female DNA was located on the shorts. Ms A denied the suggestion in cross-examination that there was any circumstance, other than Mr Cutts having ejaculated on her, which could explain the seminal stain on her trousers seen by the neighbour.

Other potentially supporting evidence included her distressed condition, observed by the neighbour, the carer who arrived that evening, and by the investigating police, and the terms of the very full complaint given by Ms A that night to those investigating police, consistent with her oral evidence, and which included the observation that she had noticed that Mr Cutts appeared not to be wearing underpants. That became relevant when it was established that his evidence was that he started work that day as a taxi driver wearing underpants, but claimed to have removed them at around 10.00 pm on the evening of 7 April 2003, because of a rash which had progressively developed as the day passed. It was common ground that when taken into custody much later that evening he was not wearing underpants. He was unable to explain how Ms A could have been able to describe that matter if events had not occurred as she described.

Mr Cutts’ version

Mr Cutts’ evidence completely contradicted hers. He agreed he had driven her home, and at his own request, in which he declared an urgent need, had used her toilet. He contended that after that no sexual dealings had occurred between them at all, although on his account she had wanted him to remain and talk to her for some time, and she had begun to ask him questions of a quite personal nature, such as whether he had a wife or girlfriend, and about sex. He had become uncomfortable with her intrusive questioning and wanted to leave; at her request he had kissed her on the cheek before leaving. His account made her an apparently intending sexual predator, who was frustrated in her designs by his courteous enough avoidance of her.

He had difficulty in cross-examination explaining how it was that if her account was untrue, the investigating police had discovered that the toilet bowl lid was up when they arrived to search her unit, and the box of tissues was on the toilet rim, with tissues floating in the bowl. Those tissues on examination were too wet through to be capable of any DNA analysis. His mobile phone did not contain the number she had given him, when the police examined it; he said either the police removed it or he did not enter it correctly. The Crown suggested he had deleted it.

His flat denial of any sexual dealings left the jurors with two entirely different accounts of the day, and with Ms A’s version apparently supported by the ejaculate upon her shorts, the Kleenex box on her toilet and the tissues in it, the toilet lid being left up, and her knowledge that he was not wearing underpants. The jurors were appropriately directed about those and other matters.

Mistake of fact

At no stage during the trial did the experienced defence counsel suggest that the learned trial judge should direct the jurors about the possibility that Mr Cutts honestly and reasonably, but mistakenly, believed that Ms A was consenting to any sexual dealings with him. Given that Mr Cutts swore that none occurred, that was understandable. On this appeal his counsel, Mrs McGinness, who did not appear at the trial, submitted that although the learned trial judge was not asked to direct on s 24, nevertheless a miscarriage of justice has occurred because the judge did not do so. This was because a defence under s 24 of the Criminal Code was fairly raised on the evidence. That ground of appeal requires that Mr Cutts establish that the direction which was not asked for should have been given, and that it is reasonably possible that the failure to direct the jury on s 24 may have affected the verdict, in the sense of depriving Mr Cutts of an opportunity of acquittal.³²

Mrs McGinness submitted that there was evidence, in Ms A’s own account, upon which the jury could legitimately entertain a reasonable doubt about whether Mr Cutts honestly and reasonably believed that Ms A had consented to his behaviour. She referred to R v Millar [2000] 1 Qd R 437 at 439, R v Hunt [1994] QCA 226, and R v Bonnick (1978) 66 Cr App R 266, particularly at 269. She also referred to the decision in R v IA Shaw [1996] 1 Qd R 641 at 646, where Davies and McPherson JJA wrote that:

“A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under s 24 of the Criminal Code.”

Mr Copley, for the DPP, submitted that nothing in Ms A’s evidence raised the possible application of s 24. He argued that that defence was not raised simply because a person in her position, having said “no” to a fairly low level of foreshadowed intimacy, failed to say “no” to an unannounced rub of her breasts and then to other more intimate activities.

A defence of mistake

A number of propositions have been made clear by authority. These include that a defence, such as self-defence or mistake, on which the prosecution carry the burden of disproof, should be left to the jury where it is fairly raised on the evidence (Howe v R (1980) 55 ALJR 5 at 7). This is because the trial judge must be “astute to secure for the accused a fair trial according to law.” (Pemble v R (1971) 124 CLR 107 at 117). Securing a fair trial involves an adequate direction both as to the law “and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.” (Pemble at 117-118). This has been put as an obligation on a trial judge “to put to the jury every lawfully available defence open to the accused on the evidence even if the accused’s counsel has not put that defence and even if counsel has expressly abandoned it”. (Fingleton v R [2005] HCA 34 at [83], per McHugh J).

Once a defendant shows that there is evidence of an honest and reasonable mistake fit for the jury’s consideration, the onus is on the prosecution to negative it. If any authority is needed for that, see R v Lyons (1987) 24 A Crim R 298 at 299. To show that evidence, a defendant is not obliged to give evidence of his or her state of mind. (R v Lyons; Sancoff v Holford; ex parte Holford [1973] Qd R 25 at 33; Larson v GJ Coles & Co Ltd; ex parte GJ Coles & Co Ltd (1984) 13 A Crim R 109 at 111; R v CV [2004] QCA 411 per Jones J at [39] and Cullinane J).

However, although it is clear a defendant is not bound to give evidence to having acted under an operative mistake for the defence to be raised, and although there is authority that the absence of honest and reasonable but mistaken belief in the existence of consent must be proved beyond reasonable doubt the prosecution, (per Fitzgerald P in R v Hunt [1994] QCA 226), there must be some evidence, looking at the case as a whole, of the operative mistake. (Loveday v Ayre; ex parte Ayre [1955] St R Qd 264 at 267-8). It has been observed, and I respectfully agree, that fairly cogent evidence from other sources would be required to provide evidence of operative mistake where the best available witness, namely the defendant, disables himself or herself – by an entirely inconsistent and contradictory defence actually advanced – from supporting the evidence of any relevant mistake. This was remarked by Stephenson LJ in R v Bonnick. Further, in R v CV both Williams JA (at [2]) and Jones J (at [39]) held that it is the whole of the evidence, including the defendant’s evidence which has been rejected by the jury, which should be considered when deciding if an issue such as operative mistake is fairly raised on the evidence. That approach requires that when considering the proposition that the possibility of an operative mistake was raised by Ms A’s evidence, it is necessary to do so in the context that Mr Cutts not only did not claim a mistake but positively denied the basis on which it could be raised, namely Ms A’s evidence.

The proper objects of a criminal justice system include both the accurate identification, conviction, and appropriate remedial orders for those who are criminally responsible for conduct alleged against them, and also the object of assuring the acquittal of those who are not criminally responsible. Dishonest evidence from a defendant can frustrate achievement of the latter goal just as much as it can frustrate achieving the former. Where the evidence from the prosecution genuinely points to an absence of criminal responsibility for particular conduct, and a defendant relies on a defence which simply denies that that conduct ever happened, and where that is the only matter considered by the trier of fact, any resulting conviction occurs without adjudication on the actual issue on which criminal responsibility depends. Mr Cutts’ conduct towards the end of his dealings with Ms A suggests he then believed he had consent to at least the later part of his conduct. His asking for and obtaining the tissue, and then going into the bathroom and leaving Ms A alone outside it, albeit in her wheelchair, showed an assumption by him that she would not attempt to leave the unit or telephone for assistance, and that assumption, suggesting confidence in consent, is consistent with his having then suggested he should return later that evening, and his asking for her mobile phone number, and entering that in his own.

I consider that the evidence raised mistake as a defence which the jury was obliged to consider in respect of counts 3 and 4. On these counts it was not simply that Ms A remained quite silent after having said “no”, and said nothing more to encourage or discourage Mr Cutts, because of her general intimidation by his presence; the circumstances the jury had to consider on those counts included not just her silence, but her moving her wheelchair to be close to him after he had invited her to a “cuddle”, her taking his penis in her hand and then her mouth, all actions apparently consistent with consent, as was her obtaining at his request a box of tissues and supplying him with them. Those acts could reasonably, but mistakenly, be thought to convey consent, and his conduct suggested he thought it had been conveyed. The jurors could not avoid considering whether he had, for reasons of his own, falsely denied conduct which exploited his position of authority and trust as her driver, even though he did not commit any criminal offences by the latter parts of that conduct.

That defence does not apply to the conduct in counts 1 or 2. That occurred before any acts were done by Ms A capable of providing an apparent contradiction to the “no” she had earlier uttered. The conduct on which Mr Cutts could rely as capable of giving rise to a mistaken belief in consent all happened after the completion of the incidents which constituted counts 1 and 2. Had Mr Cutts desisted and left then, there would be nothing in Ms A’s behaviour capable of negativing her express non-consent to being kissed. There is therefore no miscarriage of justice in maintaining the convictions on counts 1 and 2. In those circumstances I would uphold the appeal on counts 3 and 4 and order a re-trial on those, but dismiss it in respect of counts 1 and 2.

I would dismiss the applications for leave to appeal against sentence on counts 1 and 2. The submissions made about sentence on the appeal accepted that sentences of up to 12 months were appropriate on counts 1 and 2; but those submissions overlook Mr Cutts’ position of trust and power relative to Ms A. Those two assaults on her were a significant abuse of that position, and a two year sentence was appropriate for that level of criminality.

Footnotes

1. (1971) 124 CLR 107, 117 - 118. ↩

2. (1986) 161 CLR 158. ↩

3. [1955] St R Qd 264, Philp J, 268, Stanley J, 270. ↩

4. [1958] Qd R 8, Stanley J, 23. ↩

5. (1984) 13 A Crim R 109, Connolly J, 111. ↩

6. (1987) 24 A Crim R 298. ↩

7. Above, Williams J (as he then was), 300. ↩

8. [2004] QCA 411; CA No 182 of 2004, 5 November 2004. ↩

9. [1999] 1 SCR 330. ↩

10. Above, 376-378, [97]-[99]. ↩

11. Above, 379, [103]. ↩

12. (1999) 197 CLR 162, 168. ↩

13. Criminal Code, s 349. ↩

14. See s 348(2)(b) Criminal Code. ↩