R v Hunt [1994] QCA 226

Court of Appeal (Qld)|1994-06-22|Before: Fitzgerald P, Pincus JA, Shepherdson J

This is an appeal by the appellant from two convictions for rape in the District Court at Southport on 2nd February, 1994. The appellant was also convicted of assault causing bodily harm and indecent assault. All offences involved the some complainant, a middle-aged woman with whom the appellant had previously lived in a de facto relationship. The sole ground of appeal argued, which related only to the two counts of rape, was that the trial judge erred in not directing the jury to consider whether the appellant might have had an honest and reasonable, but mistaken, belief that the complainant consented to the two acts of vaginal sexual intercourse which admittedly occurred between them on 2 June 1993: Criminal Code, s.24

The appellant and the complainant had ceased cohabiting in January 1993, but remained in contact and had sexual intercourse on about four occasions between the date they separated and the beginning of June that year. Further, while they lived together, their acts of sexual intercourse were sometimes preceded or accompanied by threats or violence. On occasions, the appellant punched the complainant, once he held a gun to her head and threatened to kill her if she did not take her clothes off, and once he cut and once he ripped her clothes off. The complainant did not complain to any authority about these incidents or leave the appellant because of them. The nature of the relationship between the appellant and the complainant while they lived together formed a foundation of the submissions for the appellant based on section 24 of the Code.

Counsel for the appellant based his argument upon the complainant's testimony, which he accepted must have been believed by the jury. The appellant gave evidence, which it was agreed the jury must have rejected. The appellant's account of the events of 2 June was of a consensual, loving interlude, involving fond words and gestures, kissing and cuddling and a complete absence of force. According to the appellant, when he departed, the complainant asked him to call her the next day.

The complainant's version could scarcely have been more different.

On 1 June 1993, the appellant asked the complainant to return his engagement ring and the complainant changed the locks on her house, to which the appellant had had a key.

On 2nd June 1993, the appellant arrived at the complainant's house but the complainant would not let him enter. The appellant then punched and broke the screen on the screen door. The complainant ran out of the house, but was pushed over by the appellant. When she hit the ground, she struck her knee and lost some skin. The appellant then dragged her back inside the house by her hair. He then took the telephone off the hook and locked the back door, pushed her into her bedroom, and raped and assaulted her.

Inside the bedroom, the appellant asked the complainant whether she wanted to have sex with him and added "because if you don't say yes you could have me up for rape." The complainant replied "Yes". Her evidence was that she gave that answer because she was frightened and believed that the appellant would have hit her had she refused. The appellant removed his clothes and, after the complainant had removed some of her clothing, he completed undressing her. Sexual intercourse followed. The complainant's affirmative answer to the appellant and her omission to struggle were the other matters upon which his attempted reliance on section 24 of the Code was principally based. Reference was also made to the complainant's evidence that, before he later left her home, the appellant asked her whether she loved him. Her answer, according to her evidence, was that she hated him.

It is appropriate to consider the appellant's conviction on the first count of rape by reference to the matters thus far referred to. Other subsequent events cannot properly be taken into account in determining the appellant's state of mind at the time of the first act of sexual intercourse.

There was no real dispute between counsel concerning the approach to be adopted. It is sufficient to quote from what was said by Philp J. in Loveday v. Ayre and Ayre, ex parte Ayre and Ayre (1955) St. R. Qd 264 at p.268;

"Section 24 provides that a person is not criminally responsible if he acts under an honest and reasonable mistake of fact; the onus then is on the prosecutor to satisfy the court beyond reasonable doubt of the non-existence of operative mistake. Of course the section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake."

His Honour quoted that passage in Brimblecombe v. Duncan, ex parte Duncan (1958) Qd.R. 8 at 14, in a judgment concurred in by Matthews J.. Compare R. v. O'Malley (1964) Qd.R.226, 233.

When an accused gives evidence or has earlier offered an explanation of which evidence is given at his trial, there is a danger that such evidence or explanation will be seen as inconsistent with the existence of an operative mistake and, for that reason, the issue of mistake will not be left to the jury. The point is well-illustrated by the case of Bonnick (1977) 66 Cr. App.R. 266, which involved the broadly analogous question whether evidence from an accused that he was not present when an alleged offence of wounding with intent occurred prevented him from relying upon the defence of self-defence. After describing the defence raised and the defence of self-defence as not merely inconsistent but contradictory, Stephenson LJ., who delivered the judgment of the Court, said at p.269:

"... Common sense ... 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."

"... It is plain that the 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 latter passage raises a question as to the quality of the evidence needed before an issue favourable to an accused which is inconsistent with the accused's own evidence and arises out of the prosecution case should be left to the jury. It is convenient to pass over that for the moment. The passage in question also demonstrates that, if there is sufficient evidence in the prosecution case, the issue should be left to the jury although inconsistent with the accused's evidence. In the present case, the appellant's position is stronger, because there is no inherent inconsistency between an assertion by an accused that a complainant consented to an act of sexual intercourse or a finding by a jury that she did not do so and a conclusion by a jury that it is not satisfied beyond reasonable doubt that the accused did not honestly and reasonably, but mistakenly, believe that there was consent.

Attention was also directed to a passage in the judgment of King CJ., with whom White and Bollen JJ. agreed, in Athanasiadis (1990) 51 A Crim R 292. That was a case of rape, in which one possible issue was whether the accused was "recklessly indifferent" as to whether the victim consented to sexual intercourse with him. At p.294, King CJ said:

"I do not see how the question of mistake and the consequent issue as to reckless indifference could be regarded as a live issue in the present case. On the alleged victim's evidence, her actions could have left no possible doubt in the appellant's mind that she was not consenting and that indeed she was actively resisting his advances. On the appellant's evidence, there could likewise be no room for mistake or misunderstanding. The alleged victim initiated that sexual activity and co-operated enthusiastically in it thereafter. In those circumstances I do not think that any further elaboration of the concept of reckless indifference was called for."

The important difference between that case and this, if the appellant is correct, lies in the fact that, in Athanasiadis, it was held that the victim's "actions could have left no possible doubt in the appellant's mind that she was not consenting". Here, it is submitted that it was a matter for the jury whether the appellant might honestly and reasonably, but mistakenly, have held the belief that the complainant consented.

Two passages are set out above from Bonnick. The second refers to the need for "fairly cogent evidence" in the prosecution evidence to raise an issue for the jury's consideration which is inconsistent with an accused's own testimony. Earlier in the same paragraphs, Stephenson LJ. had said:

"... 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."

These observations cannot be directly transposed to a case like the present. There is no evidentiary onus upon an accused in relation to section 24 of the Code. An absence of consent, and an absence of an honest and reasonable but mistaken belief in the existence of consent, must be proved by the prosecution beyond reasonable doubt. An accused is entitled to have the latter issue left to the jury if there is any basis upon which a reasonable jury, acting reasonably, could have a reasonable doubt as to whether the accused was honestly and reasonably mistaken.

While ordinarily the issue should be left to the jury, in this case the jury could have held no such doubt. The matters relied on by the appellant, taken in conjunction, are not capable of raising a reasonable doubt. Nothing in their past relationship could possibly justify the appellant in thinking that the complainant consented to sexual intercourse when, at a time after the cessation of their relationship, she had tried to lock him out of the house, had tried to escape him, and he had intruded by force, injured her, locked the door and effectively disabled the telephone. Further, it must have been apparent to him that her spoken assent to sexual intercourse and her removal of part of her clothing did not signify consent, but frightened submission.

The appeal in relation to the second account of rape is even less persuasive.

After the first act of sexual intercourse, the complainant was thrown onto the floor and told to get on all fours. She was then told that she was going to get something that she had never had before. The appellant then penetrated her anus with his penis. At that time, she was screaming out.

After the anal penetration, the appellant left the room and came back with a drink of water and a cigarette for himself and the complainant. They each had a cigarette before he again had vaginal sexual intercourse with the complainant, this time with her lying face down on the bed with her legs off the end of the bed and him standing between her legs.

It is fanciful in the extreme to contemplate that the appellant could have believed that the complainant, whom he had shortly before brutalised by the act of anal penetration, was consenting almost immediately afterwards to an act of vaginal sexual intercourse.

It is unnecessary to refer to other aspects of the prosecution case, such as the evidence of fresh complaint by the complainant and medical evidence of genital injuries which were consistent with the complainant having had fairly forceful and somewhat painful vaginal sexual intercourse.

There is no substance in the appeal, which should be dismissed.

There was nothing in the evidence, on either side, which could have qualified as "...some evidence, looking at the case as a whole, of operative mistake." I incline to the view that directions about s. 24 of the Code would simply have distracted the jury from the true issue, which was whether the Crown had proved the complainant's account of events to be substantially correct.

I have had the benefit of reading in draft the reasons for judgment of the President and accept generally the facts as stated by him.

It is obvious that the jury rejected entirely the appellant's evidence of consensual intercourse on the two occasions on 2 June 1993.

The appellant's evidence in chief included his telling the jury that before the first act of intercourse, he asked the complainant "did she want to make love and where upon [the complainant] said yes" (p.112 record). In cross-examination the appellant was referred to a diary he had written up on the night of 2 June and he agreed that he wrote in the diary "Asked if she wanted to make love. She said she did. No violence. Had good sex" (p.118 record).

In those two passages in his evidence, the appellant spoke of the complainant's express consent to sexual intercourse. Each of the two acts of sexual intercourse was separated by an act of anal intercourse in respect of which no section 24 issue is raised.

On his evidence, the appellant could only have believed that the complainant was consenting to sexual intercourse because she had expressly said she wanted to make love.

The appellant's counsel in effect has submitted to this court that despite the appellant's evidence of express consent, the learned trial judge erred in law in declining to address the jury on section 24 of the Criminal Code.

In Loveday v. Ayre & Ayre ex parte Ayre & Ayre (1955) St. R. Qd. 264 Philp J. in speaking of section 24 said (at pp. 267-8):-

Of course the section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake."

In Brimblecombe v. Duncan ex parte Duncan (1958) Qd.R.8, another case concerning section 24, Philp J. (at p.15) referred with apparent approval, to the following statement of Dixon J. in Proudman v. Dayman [1941] HCA 28; (1941) 67 C.L.R. 536 at p.541:-

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe."

Thus, before a section 24 issue is to be left to the jury there must be evidence, looking at the case in respect of each charge as a whole, of operative mistake.

The question then arises - when is evidence sufficient to raise the section 24 issue fit to be left to a jury? In Bonnick (1977) 66 Crim. A.R. 266, this question of sufficiency of such evidence arose and the issue there was said to be self defence. In that case the appellant was charged on two counts of wounding with intent. The prosecution case was that he had stabbed his two victims on a railway station late one night. His defence was at first one of mistaken identity, his solicitors having served notice of alibi. At the end of one of the victim's evidence in chief, the trial Judge suggested that identification was the only issue and then for the first time the appellant's counsel submitted that self defence was also an issue. The trial judge overruled that submission and in summing up told the jury that the reason why he refused to let the issue of self defence go to them was because the appellant's defence was an alibi - he was not at the scene of the crime.

The sole ground of appeal was that the judge wrongly refused to allow the defence to raise the question of self defence on the ground that the appellant's case was that he was not the man involved, although cross-examination of the prosecution witnesses showed that self defence was an issue raised by their own evidence.

At p.269 Stephenson L.J. in reading the judgment of the Court of Appeal said:-

"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 insofar 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."

Reverting now to the facts in the present case, the appellant in his evidence relied on express consent by the complainant to each act of sexual intercourse. Nevertheless, notwithstanding that evidence of consent, there was, on my reading of the evidence, in respect of each of the two rape charges, no evidence let alone cogent evidence of which it could properly be said - "this was evidence sufficient to raise the issue of section 24." In my view the learned trial Judge was correct in deciding that there was no such evidence. Had there been such evidence, the question for each member of the jury on each of the two counts of rape would have been:-

"Can I be satisfied beyond reasonable doubt that the accused did not have an honest and reasonable belief that the complainant was consenting to the act of sexual intercourse."

Had that question been posed, then, in the state of the evidence on each of the rape charges, the only evidence of belief came from the appellant and that was as to express and non-mistaken consent.

The President has recounted the evidence of the complainant and it is in my respectful view patently obvious as a matter of common sense that in the circumstances of this case in respect of each charge of rape, the appellant's evidence excluded his holding any honest and reasonable but mistaken belief that the complainant was consenting to each act of sexual intercourse. In my opinion the appeal must be dismissed.

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Judgment (48 paragraphs)

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