R v Dunrobin

SUPREME COURT OF QUEENSLAND

CITATION: R v Dunrobin [2008] QCA 116

PARTIES: R / v / DUNROBIN, Lindsay Daniel / (appellant)

FILE NO/S: CA No 321 of 2007 / CA No 48 of 2008 / DC No 317 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence / Application for Extension (Sentence)

ORIGINATING COURT: District Court at Beenleigh

DELIVERED ON: 16 May 2008

DELIVERED AT: Brisbane

HEARING DATE: 31 March 2008

JUDGES: Muir JA, Fryberg and Lyons JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Allow appeal against convictionConvictions be set asideOrder a retrial on counts 1 and 4

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where the appellant was convicted of one count of indecent assault and one count of rape and sentenced to seven years imprisonment – where the appellant was acquitted of one count of rape and the prosecution entered a nolle prosequi in relation to one count of indecent assault – where the appellant stated in a police record of interview that the complainant agreed to sex – where the appellant’s counsel did not intend to advance an argument of actual consent – where the primary judge effectively ruled that the appellant’s counsel must put to the complainant the statement of actual consent in the record of interview – where the complainant’s responses in cross-examination in relation to actual consent were damaging to the appellant’s case – whether the appellant’s counsel was obliged to put to the complainant a version of events which she did not intend to rely – whether there was a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where the appellant suffered from chronic paranoid schizophrenia – where the appellant’s police record of interview was admitted – whether the appellant’s counsel should have argued that the record of interview be excluded due to the appellant’s psychiatric condition which made the content of the interview inherently unreliable – whether there was a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the appellant relied on the defence of honest and reasonable, but mistaken belief as to consent under s 24 Criminal Code 1899 (Qld) – where the appellant suffered from chronic paranoid schizophrenia – whether the primary judge’s directions were wrong in law and deficient in explaining the elements of s 24 Criminal Code 1899 (Qld) and in relating the facts of the case back to those elements – whether there was a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF TRIAL JUDGE – where the complainant in examination-in-chief gave evidence as to her understanding of the appellant’s state of mind at the time of the incident – where the evidence was not objected to in cross-examination – where the primary judge in summing up directed that the jury should disregard the complainant’s evidence so far as it went to establishing the appellant’s state of mind – whether a failure to object to the admission of inadmissible evidence constitutes a waiver of the rights of the non-objecting party – whether the primary judge’s directions were inadequate or were likely to mislead the jury / Criminal Code 1899 (Qld), s 24, s 668E(1A) / Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, applied / Browne v Dunn (1893) 6 R 67 (HL), cited / Fingleton v R (2005) 227 CLR 166; [2005] HCA 34, applied / Jones v Sutherland Shire Council [1979] 2 NSWLR 206, considered / R v Clark [2005] 13 VR 75, considered / R v Condon (1995) 83 A Crim R 335, applied / R v Mrzljak [2005] 1 Qd R 308, [2004] QCA 420, considered / R v Radford (1993) 66 A Crim R 210, considered / R v Zorad (1990) 19 NSWLR 91, applied / Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158, considered

COUNSEL: S M Ryan for the appellant / R G Martin SC for the respondent

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

MUIR JA: The appellant was tried in the Beenleigh District Court on one count of indecent assault (count 1), one count of rape (by digital penetration) (count 2), one count of indecent assault (touching of breasts) (count 3) and one count of rape (vaginal sexual intercourse) (count 4). On 26 October 2007 he was convicted of counts 1 and 4 and acquitted of count 2. The prosecution entered a nolle prosequi in relation to count 3. The sentence imposed for counts 1 and 4 was seven years imprisonment with a parole eligibility date fixed at 25 April 2010.

He appeals against his convictions and sentence.

The complainant’s evidence of the circumstances surrounding the offences

The complainant was 21 years of age on 23 May 2004. On that day she attended a friend’s 21st birthday with her sister and her sister’s male partner. She had a male partner at the time but he stayed home to mind her three children. At the party the complainant met a sister of a girl she’d been friendly with at high school, named Jamie, who introduced her to the appellant. He was the brother of Jamie’s partner. The complainant continued to chat with Jamie and in the early hours of the morning left the party with Jamie, her partner, the appellant and another person. They travelled to a house in Kingston in which Jamie and her partner resided.

After going into the house the complainant continued to talk to Jamie for a while before asking Jamie’s partner for a bed to sleep on. He directed her to a room which had a mattress on the floor. She lay on the mattress and went to sleep. The complainant, who was wearing a denim jacket, denim jeans and a bra, awoke when she became conscious that someone was lying beside her. She asked, “What do you want?” and the appellant responded that he wanted “scrape”, meaning sexual intercourse. Asked how she responded, she said, “I was just like ‘no’”.

The appellant was grabbing her breasts. He positioned himself on top of her and pushed down on her breasts, patting her in the process. She said, “I was telling him to stop and I was trying to push . . . him off me.” Asked what he was saying, she said, “I don’t really remember”. The complainant did not succeed in dislodging the appellant, who exposed one of her breasts and was squeezing it, even though she used as much force as she could and was angry. The complainant was “telling him to stop it and that I’ve got to get home to my kids.” The following exchange then occurred.

“Yes, okay. What did he say?-- I can’t remember, I think he was just like ‘it’s alright’, you know, thinking it’s okay.

Okay. What did he do next?-- He pulled off my jeans . . .

. . . he just yanked them . . . I was trying to pull them up but he’d actually ripped them right off and threw them in the corner

. . . and what did he do once he got them off?-- He was just, you know, saying – like it – like it was – I don’t know, how do you put it? Like it was okay.

And what were you saying to him?-- Nothing. I was just trying to get out of there.

Okay. And why weren’t you saying anything to him?-- I was scared. I was scared to yell out or anything.

Why was that?-- Because I had been molested when I was a child for many years and I – I told people and they never listened to me.

. . .

Alright. So, how did . . . all of that happening in your past, how did that effect [sic] you in this situation?-- I just – I just froze in a way, like I was just scared. And like I didn’t know him and I didn’t know what he could do to me.

So at this stage, apart from him – apart from you physically trying to push him off, was there anything else that you did that . . . I was trying to tap the wall with my knee.

Why were you doing that?-- I was trying to get some sort of attention from Jamie or one of the others.

Did you know where they were in the house?-- No.

Okay. So do you know what was on the other side of the door that you were tapping?-- The wall?

. . . it was going to outside to, I think, maybe their back yard.

How hard were you doing it?-- I wasn’t doing it hard to make it obvious that I was doing it, trying to catch attention but – and I wasn’t doing it soft, it was just in between . . .

Look, at this stage, were you doing anything else to show that you didn’t want him doing this to you?-- No, I don’t think so. Just telling him to stop.

Okay. How often did you tell him to stop?-- I think – I did it a few times, I can’t remember how many.

Okay. And how did you tell him? In what sort of . . . manner did you tell him to stop?-- I just told him to stop, like, I did in a normal voice at the beginning and then I just got frustrated and, you know, told him to stop.”

The appellant inserted his fingers into her vagina with “a fair bit of force” and she remembers moving backwards. By this time the appellant had removed her underwear. He withdrew his fingers from her vagina and inserted his penis. Before doing that, “I think he was just saying like, ‘come on, come on’.” She remembered having her hands on the appellant’s chest “just trying to pull him off me”. The appellant then had intercourse for “about two or three minutes”. Asked whether she was saying anything whilst that was happening, she said, “I was just like, ‘get off me’.” Asked if the appellant responded, she said, “No, he didn’t really speak that much.”

The appellant “just basically jumped off (her) and just lay down on the bed.” The complainant “jumped up really quick . . . grabbed (her) clothes, put them on . . . in the room.” She asked the appellant where the train station was. He pointed the direction out the window. She walked out up the hallway. She said she was “pretty sure” the appellant followed her outside yelling out “scrape” but she kept walking.

Asked why she didn’t approach her friend who was in the house she responded, “Because I just didn’t think that she would believe anything being that’s her partner’s brother and I know how that feels, you know.”

In cross-examination, the complainant said that as she was walking out of the house, the appellant asked “if he could do it again”. In her evidence-in-chief, the complainant said that the appellant followed her from the house on a bike and “that sometimes he’d come close, circle round and go backwards”. She said she was terrified and “walking pretty quick”. She said that he followed her until about two or three streets away from the station.

The complainant agreed in cross-examination that the appellant was in front of her at some stages and on other occasions behind her on his bike. She accepted also that he stopped at a shop on the way, was then out of her sight and subsequently offered her a cigarette and “a sip of his Coke”. It is not clear whether the complainant assented to the proposition that before riding off the appellant said “that’s as far as I’m going, bye”. She caught a train to the city and went to her aunt’s place, where she made a complaint and the police were called.

The following exchange occurred in cross-examination:

“Now it's correct, isn't it, that Lindsay Dunrobin pressured

you into a situation that you didn't want to be in?-- Yes,

that's correct.

And at some stage during that situation you froze, you told us yesterday, you froze?-- Mmm-hmm.

Because of past experience?-- Mmm-hmm.

There was nothing that Lindsay had done specifically that was threatening, that's correct; isn't it?-- Oh, what do you mean by threatening?

Had he threatened you with any words?-- He didn't threaten me in words, but just the way he was grabbing me and things like that - that's you know.

Exactly which way was he grabbing you that - that you know-----?-- Just the way he was grabbing me by the breast and just being real gruff. That's what I mean.

It hurt; did it?-- Yeah.

You were never prevented walking out of that bedroom during

the - during the incident; were you, he never stopped you

leaving?-- No, I couldn't get - get him off me to leave.

Were there occasions during that that you could have got up

and left?-- No I couldn't.

When you heard him come into the room and hop into the bed and start hugging you, could you have left then?-- Maybe.

Your friend and her boyfriend were in the house to the best of your knowledge?-- Yep.

You were not prevented from speaking - sorry, you were not

prevented by Lindsay from speaking, from crying out, yelling?-- No, I wasn't.

So, and I am aware that this is uncomfortable. My question is your - your behaviour changed during the incident; isn't that correct?-- How do you mean why my behaviour-----

You told us yesterday that you - you told him no, you pushed him?-- Yep.

And then you told us that you froze. And what I'm saying to you is that, it's correct isn't it, that your behaviour during the incident changed to the point-----?-- Yeah, 'cause I didn't - yeah 'cause I didn’t scream out or any of that -that's what I mean like.

And you also stopped any physical resistance?-- No, I still

tried to get him off me.

You stopped speaking to him though; didn't you?-- Yep.

And part of your change in behaviour to that extent was that past experience has not been believed; is that

correct?-- That's correct.

. . .

And you would agree, would you not that your behaviour towards Lindsay Dunrobin when he – in the face of his persistence changed, at some stage you froze? Is that correct . . . . ?-- What do you – what do you mean by that, please can you-----

. . .

I mean your conduct towards him during this incident at some stage changed because you froze?-- Yep.” (emphasis added)

I now turn to a consideration of the grounds of appeal.

There was a miscarriage of justice resulting from errors made by defence counsel in the conduct of the trial – failing to argue that there was no requirement for the defence to put to the complainant the appellant’s statements concerning consent in his record of interview

After the complainant left the courtroom at the conclusion of her cross-examination, the Crown prosecutor, in the absence of the jury, informed the judge that when he played a video recording of the appellant’s record of interview, the jury would hear the appellant saying that the complainant “actually agreed to sex and said yes.” He questioned whether that should be put to the complainant asserting that the alleged express oral consent “must be part of [the appellant’s] case.” There was some discussion between the judge and counsel. Defence counsel said:

“Your Honour, I appreciate that and I did give that some thought. Our case is that he has an – I should put that to her in all fairness. Perhaps in front of the jury, but my position relies on his misinterpretation of her consent . . . Yes, that’s what he says in his record of interview. I should have put that to the witness then that is my neglect.”

The discussion culminated with the trial judge observing “well, let’s start with the first thing. I certainly take your point, Mr McGhee, about putting to the complainant the issue about whether or not she, in fact, said yes at some stage . . . . the defendant says in the record of interview. Ms Taylor, you can put that as you see fit, but in a way that raises it as a live issue.”¹ Defence counsel responded “certainly” and his Honour said to the Crown prosecutor, “You’ll, of course, have the right to re-examine if that’s raised. We can then excuse the complainant so at least she’s gone.”

Defence counsel, troubled by the necessity to put matters in respect of a case she was not intending to advance, then said:

“Your Honour, I may be a little less au fait. It is possible for the defence to accept that that was not said. I’m sure I know what her answer will be.”

His Honour then remarked “I’m sure you do but I think you should put it in front of the jury” and the exchange continued as follows:

“Ms Taylor: ‘We’ll put it to her, certainly.’

His Honour: ‘I think you should.’

Ms Taylor: ‘Certainly. My mistake.’

His Honour: ‘Yes. The difficulty you’ve got, of course, is that I ruled the record of interview in, so to that extent you are stuck with what’s in there. And, Mr McGhee, I think, makes the appropriate point that he’s, effectively, raised his defence in there . . . .’ ”

In my view the above passages contain what is, in effect, a ruling by the primary judge that the substance of the appellant’s statement in his interview with police officers that actual consent had been communicated orally by the complainant must be put to the complainant by defence counsel. That was wrong. There is no obligation on the part of an accused to adhere to a particular version of events given to the authorities. Nor is there any obligation on counsel for the accused to attempt to make use of such a version of events by way of defence, even if the accused does not formally resile from it. The case to be presented is a matter for defence counsel, subject to the client’s instructions.

If defence counsel had intended to assert to the jury in her address that the complainant had given an express oral consent, failure to put that would have invoked the rule in Browne v Dunn.² Defence counsel had no such intention. Earlier she had tried to have her client’s record of interview excluded and she had refrained from putting to the complainant that she had consented.

In the course of argument the trial judge explained that there was a potential difficulty arising out of a case that the complainant had in fact said yes and an alternative case that even if she hadn’t, the appellant had an honest but mistaken belief that the complainant had consented. Defence counsel in response, made some observations which should have alerted the trial judge and the prosecutor to the distinct possibility that it would be inappropriate for defence counsel to put a positive case of consent.

The complainant was recalled and the complainant was cross-examined as follows:

“Ms Taylor: Thank you. S, I apologise for calling you

back in. I need to put a version of events to you. You

either agree or disagree. Is it correct that Lindsay, when he

came into the bedroom, laid with you for a while and then

asked you for some sex?-- No.

Did he lay with you for a while before he touched your

breasts?-- No.

Did he lay next to you hugging you before he touched your

breasts?-- Yeah, he was hugging on me.

He used a word that was familiar to you; that's correct; isn't

it?-- Yep.

Scrape, the word scrape. You - that - it is correct that you

took your jeans off?-- No.

Did you take your underwear off?-- No.

Did you tell him to "Come and lay down here"?-- No.

. . .

Okay. Did you ask him to lay down?-- No.

When he asked you for a scrape, it's correct that you said

"no"?-- Mmm-hmm.

A number of times or just once?-- And then I said "no" a

number of times.

That's right; is it? And did you say yes to him

eventually?-- I - no, I said "stop it" and things like that.

Did you ever tell him in words "yes"?-- No.

I'm putting it to you that - sorry, I'll just withdraw that.

I put it to you that when you were asked in those unfamiliar

words for sexual intercourse, you were asked a number of

times?-- Yes.

He asked you for a scrape. You said no and then you stopped

saying no but you never said yes, sorry, that was two

questions I should let you answer them. You initially said

no?-- Yeah, I said no.

. . .

Okay. I put it to you that you said yes to him at some

stage?-- No.” (emphasis added)

The re-examination, to which there was no objection, then reinforced the clear evidence of the complainant to the effect that she had at no time consented to sexual contact with the appellant:

“. . . did you, at any stage in that bedroom,

ever say yes to anything that he said?-- No.

Can you recall if the word "yes" was ever said in the context

of any conversation with him in that room?-- No.

Is it that you can't recall or do you know that you never said

yes to anything?-- I know I didn't say yes.

Okay. Just one more thing. When my learned friend was

talking about you freezing up, and you agreed that you did

freeze up?-- Mmm.

Physically what did you mean when you said you did freeze

up?-- That just by like I was like screaming inside myself, I

didn't yell out or anything like that, it's my kind of

freezing up like I didn't tell anyone-----

Mmm-hmm?-- -----when it was occurring, like I didn't yell or

anything like that.

Okay. Is that what you mean by freezing up?-- Yeah, in a way.

Okay?-- That's what I mean.

So when you were freezing up, physically what were you doing

though?-- Oh, I was pushing him off me.”

Defence counsel, eventually and, it would seem, formally, suggested to the complainant that she had given oral consent. The further cross-examination of the complainant elicited responses which were damaging to the defence case. That questioning took place because of an erroneous ruling by the trial judge at the behest of the Crown prosecutor. The ruling resulted from a confusion of concepts shared by the trial judge and the prosecutor. A pre-trial statement by the accused was equated with his case on trial. That understanding led to the further erroneous conclusion by the judge that defence counsel was obliged to put to a witness a version of events on which she did not intend to rely in address.

In her address defence counsel stated, “Our defence is ‘that Lindsay Dunrobin . . . mistakenly and honestly believed on reasonable grounds in something that actually wasn’t – wasn’t right.’ She then added:

“So unless I’m confusing only me – first point of call, she either did or didn’t consent. Second point of call, if she didn’t consent then did Lindsay Dunrobin have that belief. And if you believed that he did, was – is my friend’s case able to dispel that – take away that belief beyond reasonable doubt.

The belief – the reason that Dr De Alwis was obviously called was to give us all some insight into Mr Dunrobin’s functioning. The information available to him and his personal circumstances are relevant when you look at the nature of his belief – nature of what he thought was happening. Those circumstances include his impairment, we’ve heard a bit about his impairments.

. . .

Now what should be very clear by now is that we are saying that if in fact she didn’t consent, that he has misinterpreted her actions at the point that her actions change.

. . .

Lindsay obviously says she said yes, that’s the only evidence you have of that. But the – it is open to you to find that he’s misinterpreted behaviour of Ms F. In his record of interview he said she stopped saying anything, she had no hands on him. He knows that no meant no, he continued to ask until he feels that there was a yes response.” (emphasis added)

The final passage from the address just quoted was part of the address relating to the defence under s 24 of the Criminal Code 1899 (Qld). Defence counsel thus maintained the s 24 defence as her central argument, whilst raising the possibility of actual consent. The primary judge’s ruling was erroneous and it could not be said that the further cross-examination and re-examination had no bearing on the outcome of the trial.

The convictions are unsafe and unsatisfactory

The arguments advanced in support of this ground are as follows. The complainant’s evidence raised a reasonable doubt about whether the appellant honestly and reasonably but mistakenly believed that the complainant was consenting to sex. Consistently with such a belief, the appellant asked the complainant for sex again before she left the house. He rode a bicycle to show her the way to the train station and on the way to the station stopped at a shop and offered her Coke and a cigarette. In the appellant’s interview with police, he said, in essence, that the complainant initially said no and then said yes.

There was no reasonable basis upon which a jury could have rejected the part of the complainant’s evidence which raised the defence. That evidence clearly had an impact on the trial judge who observed during submissions that “at some point she’s gone from saying no to, effectively, saying nothing, and by conduct rather than by words, effectively acquiesced . . . I don’t say it makes it impossible, because it is still a jury question potentially, . . . but it’s something, I think, you should have a think about over lunch . . . it’s really a question of whether it should go to a verdict. It certainly can. It’s whether it should.”

The evidence on which this argument is based is that emphasised in the passages from the transcript set out above. Much is made of the complainant’s evidence about her “freezing up”. It is asserted that this change in conduct could well have misled the appellant.

Senior counsel for the respondent argues that the appellant’s submissions seek to make too much of the complainant’s evidence that she “froze”. He submits that whatever was meant by the complainant, she gave clear indications of her lack of consent throughout the subject incident. Passages in the complainant’s evidence in cross-examination and re-examination make it plain that, by her observations about “freezing up”, the complainant was not purporting to say that she did not move physically. She expressly stated that she continued to attempt to push the appellant off her.

In my view it was open to the jury to conclude from the complainant’s evidence that she had continued to resist the appellant throughout the incident and had by words and conduct communicated her lack of consent.

This ground of appeal has not been made out.

The trial miscarried because the defence of honest and reasonable, but mistaken belief as to consent, was not properly left to the jury

The primary judge summed up on mistake as follows:

“I want to talk to you about mistake of fact in respect of sexual offences. If you are satisfied beyond reasonable doubt that the complainant did not consent either in respect of the sexual assault count, which is count 1, and/or the rape counts, which are counts 2 and 4, there's another matter you must consider.

Our law provides that a person who does 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 to any greater extent than if the real state of things had been such as the person believed to exist.

In the context of this case, that means that you consider, even though the complainant wasn't consenting, if you find that, if the defendant in the circumstances honestly and reasonably believed the complainant was consenting. That's the essence of it.

Now, the complainant says that she did not consent. If you accept the complainant's evidence that the defendant touched her breasts and put his fingers and then his penis in her vagina against her wishes, you might think the defendant could not have honestly and reasonably believed the complainant was consenting.

Remember, however, the onus of proof. It is not for the defendant to prove that he honestly and reasonably believed the complainant was consenting, but for the prosecution to prove beyond reasonable doubt that the defendant did not honestly and reasonably believe that the complainant was consenting.

Accordingly, if the complainant wasn't, in fact, consenting, you must ask yourself, can I be satisfied beyond reasonable doubt that the defendant did not have an honest and reasonable belief that the complainant was consenting.

If the prosecution have satisfied you beyond reasonable doubt that the defendant didn't have such a belief, you must find the defendant guilty. If you are not so satisfied, even though the complainant wasn't consenting, you must find the defendant not guilty in respect of each of the counts.”

The fourth of the above paragraphs is misleading. The primary judge says in effect, “if you accept the complainant’s evidence that she didn’t consent you might think it unlikely that the defendant thought she was consenting.” A defence under s 24 of the Criminal Code in a matter such as this arises only where there is, in fact, no consent. The mere fact of touching and digital and penile penetration said nothing about the existence of a Section 24 defence. Relevant to that defence was the appellant’s state of mind and what was said and done at relevant times which bore on the existence or non-existence of that state of mind.

After the jury withdrew for the evening on the third day of the trial, counsel for the appellant mentioned to the judge that she had neglected to outline to the jury the facts upon which they could find that a belief was honestly and/or reasonably held by the appellant as to the complainant’s consent. She said that she had been “remiss in assisting the jury” in that regard. The judge remarked:

“Well, simple answer to that is if – if there is something even at this stage that you want me to add to the direction on honest and reasonable, I’m open to that. Think about it overnight. Bring a form of words in the morning----”

The next morning, in the course of argument in the absence of the jury, the prosecutor opposed a request by the appellant’s counsel for the judge to direct in a particular way. The judge, steering a course between opposing submissions, directed as follows:

“. . . I firstly want to briefly remind you about the last thing that I dealt with yesterday, which was the honest and reasonable, but mistaken belief, fact in respect of consent. I firstly remind you that in this trial, the complainant has given evidence that she did not consent to have sex with the defendant. The defendant, in his record of interview, says that the complainant did consent. Now, in respect of that issue, you must consider all the available evidence including where the events took place and when, and the conduct of both the defendant and the complainant in the house during and after the incident.”

This further direction, although seemingly intended to address the appellant’s s 24 defence, in fact related to whether, as asserted by the appellant in his record of interview, the complainant had expressly consented. The further direction not only failed to correct the deficiencies in the earlier direction, but confused evidence of actual consent with a case of honest and reasonable but mistaken belief.

The jury retired at 11.56 am. At 12.51 pm the trial judge informed the Court that a note had been received from the jury stating “We would like you to explain the consent law, i.e., if she didn’t give consent, but he thought he had it, et cetera et cetera.”

There was some argument about the wording of the proposed direction and after a consensus was reached, the following direction was given:

“The starting point is, if you find beyond reasonable doubt that the complainant was not consenting to one or more of the counts – remember, each must be considered separately – then you must consider whether the defendant had held an honest and reasonable but mistaken, belief that the complainant was consenting. In considering that issue, you must consider all of the relevant circumstances, and it is for the prosecution to persuade you beyond reasonable doubt that the defendant did not have an honest or reasonable belief that the complainant was consenting. If you are persuaded, then you find the defendant guilty of the relevant count – that is, if you are persuaded by the prosecution. If you are not so persuaded, then you find the defendant not guilty of the relevant count.

Now, has that explained it sufficiently? I know it’s a difficult concept. Okay? Thank you . . . enough of you seem to understand that. I’m hopeful you can explain it to the rest so thank you very much for your assistance.”

Argument on this ground initially took the form of a submission that a miscarriage of justice had occurred because of the failure of defence counsel to address adequately on the issue of mistake and to seek appropriate redirections. In the course of argument the appellant’s counsel (who did not appear on the trial) embraced an intimation from a member of the Court that it may be more advantageous for her to concentrate on deficiencies in the summing-up. None of the three parts of the summing-up which deal or purport to deal with mistake attempts to provide a factual context for the judge’s directions. At least as a general proposition “ . . . the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case”³. McHugh J explained the content of a trial judge’s obligation to sum up to a jury in a criminal case on questions of law in Fingleton v The Queen ⁴ as follows:

“[77] Section 620 of the Criminal Code declares that, after the evidence has concluded and counsel have addressed the jury, “it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make”. The court does not discharge that duty by merely referring the jury to the law that governs the case and leaving it to them to apply it to the facts of the case. The key term is “instruct”. That requires the court to identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts. As McMurdo P said in Mogg, ordinarily the duty imposed on a trial judge in respect of a summing-up requires the judge to identify the relevant issues and relate those issues to the relevant law and facts of the case. In the same case, after referring to s 620 Thomas JA said:

‘The consensus of longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken.’ [Footnote omitted]

[78] The statements of the learned President and Thomas JA show that the law concerning a summing-up in trials under the Criminal Code is no different from the law in trials at common law. Their Honours' statements are consistent with the statements of Gaudron A-CJ, Gummow, Kirby and Hayne JJ in RPS v The Queen concerning the duty of a trial judge in jurisdictions that have no counterpart to s 620:

‘The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes.’” (Footnotes omitted.)

In this case it was incumbent on the trial judge to go further than he did in explaining the elements of s 24 and in relating the facts to those elements.

The appellant had been diagnosed in 2001 as suffering from chronic paranoid schizophrenia. He was subject to a community involuntary order and, as a result, was and had been on anti-psychotic medications. Dr De Alwis was his treating psychiatrist from early 2006 to June 2007. In the course of her evidence-in-chief she said that the appellant had difficulty expressing himself and that he “has difficulty with the language and the description of things.” In her opinion:

“If he walked into a scene [he would not be able to] understand all the finer or the more – what’s happening around him, . . . if he focuses on something, that would probably be the only thing he would be able to understand, rather than the whole scenario . . . there is probably difficulty understanding grey areas. He would have difficulty comprehending a lot of things as well . . .”.

She observed that “his complex decision making would be hard for him” and that “he could reason simple things . . .and maybe complex things if assisted or if it’s broken down.” Asked what directions were required for the appellant to be able to function, she said:

“Well, a basic functioning for him, he would need very clear direction, very clear understanding. He would have difficulty . . . if the symptoms are very mild or when there’s hesitancy or when there’s a kind of complexity or a vague nature in anything he would have difficulty understanding. He will feel really black and white. . . kind of thing . . . he cannot kind of understand the grey of what – sometimes if someone says it it could mean something different. Those kind of things would be very hard for him to comprehend.”

Asked if she was saying that he would not be able to interpret ambiguity, she responded, “Yes. He would struggle with it unless assisted or it’s broken down.” Other relevant evidence given by her was:

“He struggles with communication. Definitely he has difficulty verbalising; he has difficulty stating a lot of things; . . . if they [the actions of other people] sound unclear he would have difficulty, I think, responding or giving call to give response . . . he probably . . . would not know what to do or would either ignore it or not carry it out.”

She agreed with the proposition put to her by the appellant’s counsel that the appellant’s ability to “respond appropriately to actions dependant [sic] on the clarity of those actions.” There was no cross-examination.

In a report dated 18 May 2007 Dr De Alwis said that the appellant’s decision-making capacity was impaired and that he could “misinterpret the actions of others.”

In my view, particularly where the jury requested assistance with the concept of honest and reasonable but mistaken belief, it was incumbent on the primary judge to alert the jury to questions of fact relevant to their determination. The jury should have been instructed also that the appellant’s mental condition was relevant to the appreciation of what, on his part, constituted a reasonable belief.⁵ In that regard the jury should have been referred by the primary judge to the evidence of Dr De Alwis which bore on the appellant’s capacity to comprehend completely and accurately what the complainant was attempting to convey to him at relevant times by words and conduct. The jury, uninstructed, was not in a position to know the relevance of the appellant’s psychiatric condition to the questions to be determined by them in relation to the s 24 defence.

In R v Mrzljak⁶ Holmes J, with whose reasons Williams JA agreed, concluded that an accused’s intellectual handicap is relevant to the assessment of the reasonableness of the accused’s belief for the purposes of s 24.⁷

The case raised questions of whether the intellectually impaired complainant had the capacity to give “consent” as defined in s 348(1) of the Criminal Code and the bearing of the appellant’s “mild mental retardation” on the question of whether he had an honest and reasonable but mistaken belief that the complainant was capable of consenting, and was consenting to intercourse. Her Honour observed⁸:

“It is not the handicap per se which bears on the excuse of mistake. It is the fact that the handicap results in the accused having to form his belief on a more limited set of information that is relevant, just as other external circumstances affecting the accused’s opportunity to develop and test his perception are relevant. A jury cannot assess the rationality of a belief in isolation from the circumstances in which, and the information on which, it is formed.”

It was not submitted that the majority view in Mrzljak should not be followed. As discussed above, the primary judge’s directions in relation to the s 24 defence were wrong in part and also deficient.

The appellant suffered a miscarriage of justice because of the conduct of the trial by his counsel in that she failed to seek exclusion of the record of police interview

The appellant’s counsel attempted, unsuccessfully, to exclude the record of interview on the basis that it contained no admissions against interest. It is submitted that she should have sought its exclusion on the basis that its prejudicial effect outweighed its probative value. The argument advanced was to the effect that defence counsel should have argued that the appellant’s psychiatric condition made what the appellant said in the course of his police interview so inherently unreliable that it ought be excluded. Reference was also made to the lateness of the hour at which the interview was commenced. That was about midnight.

There is no evidence that defence counsel had a proof of Dr De Alwis’s evidence or a clear or comprehensive understanding of the opinions Dr De Alwis was likely to give on relevant matters. Even if defence counsel had been in possession of a statement from Dr De Alwis there does not seem to be any reason why she could not have concluded, quite reasonably, that the record of interview was likely to be allowed into evidence but made the subject of appropriate remarks by the primary judge concerning its reliability. Even an insane person is not necessarily an incompetent witness.⁹ This ground of appeal lacks substance.

The primary judge erred in characterising evidence of the complainant as opinion evidence and in directing the jury to disregard it

In evidence-in-chief, after the complainant gave evidence that she was “just telling him to stop it and that I’ve got to get home to my kids”, she was asked what the appellant said. She responded, “I can’t remember, I think he was just like ‘it’s alright’, you know, thinking it’s okay.”

In cross-examination the following exchange occurred:

“I understood you to be saying yesterday that he thought what he was doing was all right during the incident?-- Yeah, that's correct.

Now, we know very clearly that it wasn't okay with you but your evidence is that he thought it was okay what he was going [sic]. Is that correct?-- Yes.”

The complainant also agreed with the cross-examiner that when she was walking out of the house the appellant “asked if he could do it again?”

The primary judge gave the following ruling in respect of this evidence.

“Now, during her testimony, the complainant . . .

gave evidence which purported to be what the defendant was thinking when he was in the bedroom of the house at Kingston with her. To the extent that any such evidence purports to be evidence from her as to the defendant's statement of mind, that is, what he was thinking at the relevant time, you must disregard it.

The complainant . . . has no ability to read the mind of the defendant or anyone else. She can only give admissible evidence of what she saw, heard, felt, touched or tasted. In other words, of her observations with her five senses.

So to the extent that you consider any evidence given by her to be evidence of the defendant's state of mind at any time, then you should disregard any such evidence in your deliberations.”

The evidence in cross-examination was not objected to and the primary judge did not rule it inadmissible. This evidence, although the expression of a non-expert opinion, was not inadmissible. It provided evidence of the complainant’s state of mind at the time of the subject incident. Her state of mind was relevant to the jury’s assessment of her evidence about what she did and said during the incident.

In my view the jury may well have understood from the direction that the complainant’s understanding about the appellant’s state of mind was irrelevant. Certainly, they were not told anything about how the evidence might be used by them: only about how it might not be used.

Did the primary judge err in directing the jury that if they considered the evidence under consideration to be evidence of the defendant’s state of mind, they should disregard it?

It was open to the jury to reason from the complainant’s evidence about her understanding of the appellant’s state of mind that she understood from what was done, or possibly from what was said and done during the subject incident by the appellant, that he failed to appreciate that his conduct was wrong or against the complainant’s will. The evidence was thus of potential benefit to the defence.

In Jones v Sutherland Shire Council¹⁰, Samuels JA observed:

“In my opinion, the general principle which emerges from the authorities (leaving aside the question of statements which are both admissions and self serving) is this. If evidence, admitted without objection, is legally admissible in proof of some issue in the case, its evidentiary use should be confined to that purpose. The testatrix's statements in Hughes' case provide an example. If, on the other hand, evidence, admitted without objection, is not legally admissible in proof of any issue, it may, once in, be used “as proof to the extent of whatever rational persuasive power it may have”. Suppose a hearsay document is tendered. It is not legally admissible to prove the truth of the assertions it contains, which are, however, relevant to an issue in the case. It might none the less be legally admissible as original evidence of the making of those assertions. But suppose further that there is in fact no issue to which, as original evidence, the document is relevant. No objection is taken to the tender, and the document is admitted. It is then evidence in proof of the issue to which it is relevant, the want of objection having waived the complaint, which would have been fatal, that, being hearsay, it was legally inadmissible.” (footnotes deleted)

In Ritz Hotel Ltd v Charles of the Ritz Ltd ¹¹, McLelland J also concluded that it was the doctrine of waiver which operated to give probative value to evidence otherwise regarded as having no probative value by application of a rule of law such as the rule against hearsay.

His Honour explained¹²:

“The tender of a statement may amount to a waiver by the tendering party of the application of the hearsay rule to that statement, and the absence of objection to the tender may amount to such a waiver by the party against whom the tender is made, but only in my view where such a waiver on each side can reasonably be inferred from the circumstances, and this will occur only where there is no other apparent explanation of the tender and the absence of objection. The most obvious instance of this is where the statement, as original evidence (that is, otherwise than as evidence of the truth of assertions in it) could not be relevant to any issue. If however the statement would be (or is tendered on the basis that it is) relevant to an issue in the proceedings as original (that is, non-testimonial) evidence, then it is not possible to infer either from the tender or the absence of objection, a waiver of the operation of the hearsay rule.”

The Court of Appeal in Victoria has held that a failure to object to the admission of inadmissible evidence in a criminal case may constitute a waiver of the rights of the non-objecting party. In R v Radford¹³ the consequence of the waiver of an objection to hearsay evidence was that the hearsay evidence admitted without objection was treated as evidence of the facts asserted. In R v Clark¹⁴ all members of the Court approved of the approach taken in R v Radford but differed on the consequences flowing from the failure of defence counsel to object to the opinion of an expert witness based on unproven facts. Maxwell P took the view that the defence counsel’s failure to object had the consequence that the opinion evidence had probative value.¹⁵ His Honour took into account that the point had not been raised before trial notwithstanding an obligation under the relevant rules to identify disputes over admissibility.¹⁶ He also had regard to the absence of “cogent explanation” for the failure to object.¹⁷

The other members of the Court, whilst in agreement with the principles relevant to the application of the doctrine of waiver to the failure to object to the admissibility of evidence in criminal proceedings, considered that in the circumstances the proper course to follow in respect of defence counsel’s belated objection was for the judge to permit the prosecution to re-open its case and call further evidence.¹⁸

In my view it is fairly plain that defence counsel was not introducing the evidence in question as evidence which went to the assessment of the complainant’s conduct and that this ought to have been apparent to the prosecutor. In the passage from the cross-examination of the complainant quoted in paragraph 49 above, defence counsel seeks confirmation of the complainant’s understanding of the appellant’s state of mind “during the incident”. She then observes, “Now, we know very clearly that it wasn’t okay with you but your evidence is that he thought it was okay what he was going [sic]. Is that correct?” The point of the exercise was to obtain the complainant’s opinion on the appellant’s state of mind. Had there been an objection which succeeded completely or which elicited a ruling that the evidence was admissible on a limited basis, defence counsel would have had the opportunity of questioning the complainant further concerning conduct relative to consent. In these circumstances I am of the view that it is probably the case that any right of the prosecution to limit the use of the evidence was waived. I think probably also that the evidence of the complainant’s opinion as to the appellant’s state of mind could be used “as proof to the extent of whatever rational persuasive power it may have.”¹⁹

I have expressed myself tentatively only because of the very limited argument advanced by counsel on this point, without reference to authority. It is sufficient for present purposes that the direction was likely to mislead the jury or was inadequate for the reasons already given.

Conclusion

The above deficiencies in the evidence, the conduct of the trial and the summing-up together resulted in the appellant being denied a fair trial. It could not reasonably be supposed that one or more of these matters did not influence the result of the trial.²⁰ In particular, the summing-up in relation to the appellant’s only effective defence renders it inappropriate that s 668E(1A) of the Criminal Code 1899 (Qld) be applied.

For the above reasons I would allow the appeal, order that the appellant’s convictions be set aside and order a retrial on counts 1 and 4. It may be arguable, perhaps, that the conviction for count 1 which relates to the appellant’s touching the complainant on the breasts shortly after the commencement of the subject incident is less affected by the above errors than the other counts and should therefore stand. In a practical sense, however, it was part of the one incident and there is a real possibility that the jury’s approach in relation to count 1 was affected by the summing-up. In my view it would be artificial to treat count 1 as standing alone.

FRYBERG J: I agree with the orders proposed by Muir JA and with the reasons of both of my colleagues. There are five additional matters to which I would refer.

The first concerns the summing up. In relation to s 24 of the Criminal Code, the trial judge directed the jury generally in accordance with §76A.1 of the Queensland Supreme and District Courts Benchbook. The fourth paragraph of that direction is in the following terms:

“The complainant says that he/she did not consent [and made that clear to the accused]. If you accept the complainant’s evidence that he/she (quote the evidence), you might think that the accused could not have honestly and reasonably believed the complainant was consenting.”

The trial judge's adaptation of that paragraph is set out in the reasons for judgment of Muir JA.²¹ That adaptation reveals a misunderstanding of the benchbook. The evidence which the words in parenthesis suggest be quoted is intended to be evidence given by the complainant of matters tending to negate the existence of a mistaken belief. Commonly such evidence might include expressions of negativity and physical resistance. There was some such evidence in the present case and it could usefully have been referred to at this point. However the evidence which was referred to was not such as tended to negate the existence of a mistaken belief.

That brings me to the second matter: the overall structure of the summing up. It is trite to say that there is no one right way of summing up a particular case to a jury. Different judges have different styles and the summing up is not to be criticised simply for matters of style. The structure of a modern summing up is doubtless influenced by matters of style; but some common patterns may be observed. In the present case, the summing up began conventionally enough. After dealing with the usual “general matters”, his Honour gave specific warnings regarding the use of the record of the police interview with the appellant and the use of evidence regarding preliminary complaint. He then turned to the elements of the charges. He dealt in turn with the elements of indecent assault (count one), including definitions and the definition of consent in this context; and the elements of rape, both digital and penile, including some reiteration of the law relating to consent. He dealt with these matters as pure issues of law without relating them to the evidence in the case or placing the facts in the relevant context. He then dealt with mistake of fact in respect of sexual offences. Save to the extent already described, he again did so without referring to the evidence. He then adjourned for the day.

His Honour reminded the jury of his directions of the previous day in the first paragraph of his resumed summing up. Again he did not refer to any evidence relevant to s 24. He then told the jury, “Now, my next task to assist you is to summarise the addresses of the barristers, who spoke to you yesterday and to remind you of what they said.” Thereafter he did as he foreshadowed, dealing with the addresses of each barrister in turn and summarising fairly comprehensively the points which each had made. These included some references to matters of law, but they were extremely limited. That was followed by some conventional concluding remarks, after which the jury retired to consider its verdict.

That structure meant that the summing up failed to comply with the requirements identified in the cases cited by Muir JA. Those requirements would have been satisfied had the judge referred to the evidence and the submissions of counsel in the context of each instruction on the law. The sections of the Code creating offences and those defining criminal responsibility and creating defences are conventionally split into elements in a jury charge. In respect of those elements which are more than formally in issue, the summing up should state not only the proper interpretation of the law, but also the evidence relevant to the element, the party's submissions on that evidence and the judge’s own comments (if any) about it; and should do so for each element in turn. The essence of the judicial task is to rearrange the evidence from the serial, chronological or other form in which it was given into a categorised form which places it in the context of the relevant law. The same should be done with the parties’ submissions. Of course the better submissions will often have done this, at least in part. It is the judge’s task to ensure that it is done comprehensively for all matters in issue. Had it been done in the present case, a number of the errors referred to by my colleagues may have been avoided.

In the present case there were two elements of s 24 in issue: whether the appellant did the relevant acts under the honest belief that the complainant was consenting (to say that the belief must be honest is to say no more than that it must be held in fact)²²; and whether that belief was reasonable. In the benchbook direction those two elements are substantially merged. That direction may be acceptable in cases where there is a high level of overlap of the evidence relating to each of the elements. There was considerable overlap in the present case and it is unnecessary now to consider whether the separation of the elements was even desirable, let alone a necessity. How the matter is dealt with at the retrial will depend upon the state of the evidence at the trial. For the future, it may be that some reconsideration should be given to the reformulation of the direction in §76 and §76A of the benchbook.

For the sake of completeness I should add that in a case where credibility is in issue, the summing up must also address that subject. Whether it is addressed as a separate topic from the contextual discussion of the law and the evidence or in the context of a particular part of that discussion or in the context of the instructions regarding credibility in the general remarks (or in some other way) must depend upon the circumstances of the particular case.

The third matter may also affect the retrial. There was evidence from which the jury could have inferred that at the time of the alleged offences the appellant might have been suffering an acute relapse of a condition of chronic paranoid schizophrenia. In a number of ways the evidence was in an unsatisfactory form; for example it was not given by the doctor who made the diagnosis and was in a very general form rather than related to the day in question. It showed all the signs of poor and underfunded preparation. Nonetheless it was sufficient to direct attention to the requirements of the majority decision in R v Mrzljak.²³ That decision would seem to require that the jury be told how the psychiatric evidence impacts not only upon the existence of the suggested belief but also upon its reasonableness. That decision is probably not the last word on the topic, but it is not appropriate to undertake an analysis of it in the present appeal. Formulation of the precise direction must depend upon the evidence and it may be thought that the psychiatric evidence at the retrial will be more elaborate than that which was given below. It is something to which the judge who retries the case may wish to give some attention in advance.

The fourth matter concerns the prosecutor's address. Again I raise it because there is to be a retrial; not to criticise the prosecutor in this trial. The prosecutor told the jury that there were two issues: the first, the issue of consent, and the second what he characterised as “the fallback position”:

“[I]f you believe [S] that she never said ‘yes’ then you have to then consider whether he misinterpreted her repeatedly saying ‘no’, or doing anything to suggest that she was interested, because he’s given a version which is in direct contrast to [hers]. He says she says ‘yes’.”

He continued in like vein, repeatedly drawing the dichotomy between the position which would arise if the jury believed that the complainant said yes and that which would arise if they accepted that she repeatedly said no. He characterised the former option as the appellant's version and spent a good deal of time addressing arguments about why the jury should reject that version. He told the jury that “the basic plan for this trial” was that the accused says that [S] says “yes”; we say that she says “no”. He correctly characterised the issue of mistake as arising only if the jury accepted the Crown case and emphasised the unlikelihood of the existence of a mistake in the face of the complainant saying no.

The prosecutor's address misrepresented the defence position in two respects. First, the defence at trial did not rely upon the version given by the appellant in the record of interview that the complainant said yes, nor did it lead evidence to that effect. It is true that defence counsel in one question put that proposition to the complainant, but only because she had been directed to do so by the judge. It was not the defence case, as was clear from her address, which preceded that of the prosecutor. The defence put the prosecution to proof on the issue of consent but did not rely upon what was said in the record of interview as evidence that consent had been given. Second, the defence of mistake was the centrepiece of the defence case, not a fallback position.

The prosecutor's approach, while forensically understandable, arguably created a need for the trial judge to refocus the jury on the thrust of the defence case. It certainly created the need for the judge to consider what the jury should be told about the record of interview. The prosecutor drew attention to the appellant’s allegation in it that the complainant said yes. It is difficult to see why. It was not a case where the prosecution alleged that the answer amounted to a lie evidencing a consciousness of guilt. Nor had the appellant given evidence, so his credibility was arguably irrelevant. The defence did not rely upon the answer; thereby tacitly conceding that it was a lie. It is arguable that at the least, a direction of the type described in Zoneff v The Queen²⁴ should have been given.

It may be that at a retrial, if the defence follows the same tactic, the prosecution will not think it appropriate to direct attention to the answer.

Finally there is the question of whether count one should be treated differently from count four at the resolution of the appeal. On a strict analysis it may be that the grounds on which the appellant succeeds do not apply to count one. However the respondent did not suggest any such differentiation in the course of argument. Had it done so some complex questions as to the appropriate order might have arisen, which in the event were not addressed by the party's submissions. In the circumstances I am content to follow the course proposed by Muir JA and not treat count one as standing alone.

LYONS J: I have had the advantage of reading the reasons of Muir JA and agree with those reasons and the orders he proposes. I agree that the appellant was denied a fair trial principally because the defence of honest and reasonable but mistaken belief as to consent was not properly left to the jury for a number of reasons and I wish to add the following comments in relation to that aspect of the trial.

The circumstances of the offences are fully set out in the reasons of his Honour and I will not repeat them. Of particular relevance to these offences was the fact that the appellant had a diagnosis of chronic paranoid schizophrenia and he had had such a diagnosis since 2001. At the time of the hearing he was the subject of an involuntary treatment order pursuant to the provisions of the Mental Health Act 2000 (Qld). He was monitored by a mental health team and was receiving compulsory treatment for his illness by way of daily anti-psychotic medication in tablet form and by fortnightly injections. He was allowed to reside in the community while he received this treatment as an involuntary patient but had a history of hospitalisation when his symptoms became acute. Dr De Alwis was the appellant’s treating psychiatrist from early 2006 until June 2007 and had treated him as an in-patient in early 2006 and had then reviewed him regularly after discharge until he was transferred to another mental health team.

Dr De Alwis gave evidence at the hearing that due to his psychiatric illness the appellant had impaired capacity and that complex decision making would be difficult for him.²⁵ She considered that he was “…significantly incapacitated”²⁶ and advised that he had “…chronic residual symptoms.”²⁷ Dr De Alwis stated that “…[h]e has quite a blunted affect, very difficult to assess what he feels and his emotions and he has - and he also has difficulty understanding someone else’s emotions…”²⁸ The evidence of the psychiatrist also indicated that paranoid schizophrenia affects the frontal lobe which relates to executive functioning which is the higher level or “…more sophisticated functioning of a person.” She also stated that in the appellant’s case his lateral thinking was affected:²⁹

“…so he would not be able to, if he walked into a scene, to be able to understand all the finer or the more - what’s happening around him, you know, he - if he focuses on something, that would probably be the only thing he would be able to understand, rather than the whole scenario.”

She considered that the appellant had very “…black and white”³⁰ thinking and that grey areas were difficult for him.

Dr De Alwis stated that the appellant also had difficulty with communication and that if other people’s actions were unclear the appellant would “…have difficulty” in responding and stated that “…he would need very clear direction, very clear understanding.”³¹ She also indicated that he would have difficulty when there is hesitancy or where there was complexity or vagueness.

The appellant’s impaired thinking was therefore vital to the issue of honest and reasonable but mistaken belief and this thinking needed to be specifically referred to in the summing up. In particular there needed to be a reference to the appellant’s impaired cognitive functioning and the elements of the s 24 defence. Section 24 provides:

“24 Mistake of fact

(1) 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.

(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

It is clear that the learned trial Judge did refer to this defence in his summing up and indeed he did refer to some of the evidence of Dr De Alwis in relation to the appellant’s psychological functioning but in the circumstances of this case there needed to be a greater objective analysis of the interrelationship between the elements of the defence, the factual matrix, and the appellant’s impaired thinking. The evidence of Dr De Alwis about the way the appellant functioned needed to be specifically related therefore to the circumstances of the offences and the elements of the defence of mistake of fact. This was particularly relevant given that defence Counsel had indicated that she had neglected to fully outline to the jury the factual basis for the appellant’s honest and reasonable but mistaken belief as to the complainant’s consent in her address to the jury. Furthermore, the trial Judge did give a full summary of the Crown’s position with respect to the evidence of the psychiatrist in relation to the defence of mistake of fact.

The evidence indicated that the complainant’s behaviour towards the appellant changed and that she went from saying no to the appellant and trying to push him off to a situation where she “froze” and was not saying anything to the appellant but rather was “…just trying to get out of there.”³² When asked why she wasn’t saying anything to him she said “…I was scared. I was scared to yell out or anything.”³³

The evidence of the psychiatrist indicated that if a direction was ambiguous the appellant would not be able to understand the ambiguity but would answer either ‘yes’ or ‘no’ and that the appellant’s ability to respond appropriately depended on the clarity of the actions to him. The evidence of the psychiatrist that the appellant may have had difficulty in interpreting messages that were being communicated to him by the complainant needed to be explained to the jury. The facts surrounding the alleged rape and the evidence of the appellant’s mental functioning needed to be clearly and objectively outlined to the jury together with the direction which was in fact given which set out the elements of s 24.

The direction which was given stated that a person who does an act under an honest and reasonable but mistaken belief in the existence of a state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist. It was made clear that there was no burden on the appellant to prove that he made a mistake of fact but rather the prosecution needed to satisfy the jury beyond a reasonable doubt that the appellant had not had intercourse with the complainant believing that she was consenting. However, the jury had to be clearly directed that if the prosecution had failed to satisfy them that the appellant did not act under an honest and reasonable mistake of fact then they should find him not guilty of rape. I do not consider this was made sufficiently clear, not just on a theoretical level, but by reference to the particular facts and circumstances of this case.

What was required in this case was a consideration of what the appellant believed based on the circumstances as he perceived them to be. This issue also involved a consideration as to whether this belief was held on reasonable grounds but the focus of the belief is based on what the appellant actually believed. It is clear that the appellant’s actual circumstances, including his psychiatric functioning, were relevant to the question as to whether his belief was reasonably held and this needed to be referred to. Furthermore, there were other factual matters which could have been considered as consistent with the appellant’s belief that the complainant had consented including the evidence that as she left he asked her again for sex, he accompanied her towards the station on his bike and stopped at a shop and offered her Coca Cola and a cigarette. All of these factors needed to be referred to in the context of the s 24 defence.

As Thomas JA said in R v Mogg (2000) 112 A Crim R 417, 430; [2000] QCA 244 at [73]:

“The consensus of longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken.”

In the circumstances of this case I do not think that this was achieved in relation to the defence of mistake of fact and accordingly this defence was not properly left to the jury.

I agree with Muir JA that this failure in relation to the s 24 defence, together with the other matters outlined by his Honour in his reasons, meant that the appellant was denied a fair trial. I do not consider that this is an appropriate case for the operation of the proviso and I agree with the orders proposed.

Footnotes

1. Emphasis added ↩

2. (1893) 6 R 67 (HL) ↩

3. Alford v Magee (1952) 85 CLR 437 at 466. See also R v Zorad (1990) 19 NSWLR 91 at 105 and R v Condon (1995) 83 A Crim R 335 at 347 ↩

4. Fingleton v R (2005) 227 CLR 166 at 196 – 197 ↩

5. R v Mrzljak [2005] 1 Qd R 308 ↩

6. [2005] 1 Qd R 308 ↩

7. [2005] 1 Qd R 308 at 329, 330 ↩

8. [2005] 1 Qd R 308, at 330 ↩

9. Sinclair v The King (1946) 73 CLR 316 ↩

10. [1979] 2 NSWLR 206 at 219 ↩

11. (1988) 15 NSWLR 158 at 170 ↩

12. (1988) 15 NSWLR 158 at 170 ↩

13. (1993) 66 A Crim R 210 ↩

14. [2005] 13 VR 75 ↩