R v Eastwood [1998] VSCA 42

R v Eastwood [1998] VSCA 42 - VSCA 1998 case summary — Zoe

[35]

"There must be no lawful justification for it, consent would be a lawful justification if the woman gave her consent. Here the Crown's case is that the woman, "GS", was incapable of giving her consent. This question of consent involves a state of mind. It means free agreement. It is "GS's" state of mind that must be proved by the Crown at the time the alleged offences took place. Here the Crown's case is that the accused never forced "GS" to let him urinate on her or lie on her but that he took advantage of her impaired mental condition. The Crown says that whilst she did not resist in any way and may have even consented in some form or another, that consent was not a real or true consent because she was not mentally capable of giving her consent." "The Crown's case is that she nevertheless lacked the mental capacity to understand the sexual nature of the acts. The law says, as I have already said, `consent' means `free agreement' and circumstances in which a person does not freely agree to an act include the situation where a person is incapable of understanding the sexual nature of the act." "In deciding whether or not "GS" was incapable of understanding the sexual nature of the acts complained of you may take into account the following factors: Whether or not she understood that there was some difference in quality between the act of allowing a naked man to lie on her or of urinating on her back and other acts such as kissing or hugging and whether that consent to it involves some form of moral judgment on her part. Another factor you may take into account is whether or not she was aware that she could refuse to take part in such acts and that she did not have to participate just because she was asked or requested. These factors that I have mentioned to you are not meant to be exhaustive and you may well think of others. Also, I am not meant to be saying that if you decide that any one of these factors is present then that means ergo that she has lacked the necessary understanding. At the end of the day, you look at all of the relevant evidence and say to yourselves `Have the Crown proved lack of consent on "GS's" part in that she was incapable of understanding the sexual nature of the acts complained of by the Crown?"

[47]

"...where capacity to consent is in issue in order to establish that a girl does not have that capacity - and there is accordingly no consent - it must be proved that she has not sufficient knowledge or understanding to comprehend (a) that what is proposed to be done is the physical fact of penetration of her body by the male organ or, if that is not proved, (b) that the act of penetration proposed is one of sexual connexion as distinct from an act of a totally different character. The Crown may prove both (a) and (b), but if it fails to satisfy the burden as to (a) it may still establish incapacity to consent by proving she had not sufficient knowledge or understanding to comprehend (b). Equally so we are of opinion that capacity to consent does not involve, as a matter of law, knowledge or understanding of any of the ingredients referred to as `rudimentary concepts' by the learned trial judge. Accordingly, if the prosecutrix has knowledge or understanding of what the act comprises, i.e. the fact of penetration, and of its character in the sense above mentioned, then she has all that the law requires for capacity to consent. That knowledge or understanding need not, of course, be a complete or sophisticated one. It is enough that she has sufficient `rudimentary knowledge' of what the act comprises and of its character to enable her to decide whether to give or withhold consent. It follows that the charge of the learned judge, as we understand it, in directing the jury that absence of one or more of the `rudimentary concepts' established incapacity, constituted a misdirection and that as it went to the heart of the crime charged, the verdicts based upon it cannot stand. Nothing that we have said is, of course, intended to suggest that considerations of the nature referred to by the learned judge in his charge are outside the purview of the jury, as the tribunal of fact, in arriving at a conclusion as to the state of the girl's knowledge or understanding in the relevant sense at the material time."

[49]

"What was said by this court in Morgan in the last paragraph of the passage quoted above, indicates that whether or not a woman was able to appreciate the morality of the act is one of the considerations which could be taken into account in deciding whether she had the intellectual capacity to give a real consent to sexual intercourse. Situations encountered in the cases show that a woman's appreciation of the morality of a proposed act will sometimes turn on her knowledge of a man's purpose in proposing an act of intercourse. Although that statement by the court was not strictly necessary to the decision and was on a subject which does not appear to have been argued, it was made by way of guidance to trial judges and carries its own persuasive weight. In our opinion the passage quoted from the judgment of this court in Morgan is to be understood on the background that the law requires that a woman must understand the nature and character of sexual intercourse before she can be capable of consenting to it, but the fact that she does understand that does not necessarily establish her capacity to consent. In addition to her knowledge of the nature and character of the act her capacity to make a decision may be relevant. A jury might think that a woman whose intellect was insufficient to enable her to make a refusal of consent or to know that she had a right to refuse consent, lacked the capacity to consent despite her understanding of the nature and character of sexual intercourse: see R. v. Lang (1975) 62 Cr. App. R. 50, at p.52 and Howard's Criminal Law, 5th ed., (ed. Fisse), p.180; cf. R. v. Roden (1981) 4 A. Crim. R. 166. In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct. We think the court is to be understood as meaning that in saying that those things are not outside the purview of the jury." (Emphasis mine.)

[63]

"Mr Foreman, members of the jury, I have interrupted your deliberations to give you a further direction of law and it concerns an argument put to you by the prosecutor. It is an argument that I may not have mentioned to you in my summary of the Crown's case or if I did I might have only touched on it very lightly but on reflection it is a matter that requires further direction. It was an argument that the prosecutor put to you along these lines and it was that the accused man well knew "GS's" mental condition and that he lied to the police when, as (Crown counsel) put it, he was `cornered' by the police towards the end of the interview when having previously said that she was mentally retarded and backward and so on. Towards the end of the record of interview when this topic had been canvassed by the police at some length (Crown counsel) said the accused the said to the police, "yes, `GS' did comprehend." I am not saying they are the exact words (Crown counsel) used but it was an argument along those lines and then (Crown counsel) put to you as an argument that this in fact was a lie and it was said because the accused man knew by then that her ability to consent was an issue and that the accused man had told that lie about `GS' in fact because he was conscious of his own guilt. That is an argument that is put to you by (Crown counsel) but it requires a direction of law by me to you about it and that is this: You may infer that the accused entertained a consciousness of his own guilt of the crime if, but only if, you are satisfied beyond reasonable doubt of the following matters: Firstly, that the statements attributed to the accused were indeed made by him. Let me say as a matter of comment and not as a matter of law, you have the tape of the interview and I do not think there is any argument about the fact that the accused said this. It is there for you to hear - (Defence counsel) has not suggested that the accused did not say this and it is there for you to listen to. Secondly, and I get back to my direction of law, that the statement was a lie and not only that, that it was untrue and that the accused knew it was untrue at the time he said that to the police. Thirdly, that the only reasonable explanation that the accused did tell this lie was his consciousness of guilt of this crime, not of some other wrongdoing or because of some other reason to lie about the matter such as panic, embarrassment or a desire to escape from an unjust or unfounded accusation. When you are satisfied beyond reasonable doubt that the accused did tell a lie in this way and that he did say this because of a consciousness of guilt of these crimes, you could use that consciousness of guilt as evidence of actual guilt and that is what (Crown counsel) asks you to do. In doing so, however, you should be careful to consider the possibility that the accused may have wrongly believed himself guilty. If you are able, on the whole of the evidence, to exclude that possibility beyond reasonable doubt, the evidence of the accused's lie becomes evidence of his guilt but of course first you must decide whether it was a lie and that is a matter for you."

At a glance

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Decision date

Before

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Judgment (90 paragraphs)

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